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2014 DIGILAW 964 (MAD)

Ajay Kumar Gulecha v. J. Vijayakumar

2014-04-22

N.KIRUBAKARAN

body2014
JUDGMENT : N. Kirubakaran, J. 1. The Plaintiff is before this Court challenging the Order passed in the Application filed by the First Respondent under Section 5 of the Limitation Act for condoning the delay of 1753 days in filing the Application to set aside the ex parte Decree dated 7.9.2006 passed against him in the Suit for Specific Performance of the Agreement dated 29.11.2004 entered into between the Petitioner and the First Respondent. The facts of the case are as follows: "The case of the Petitioner herein before the Trial Court in O.S. No. 74 of 2006 is that he entered into an Agreement of Sale dated 29.11.2004 with the First Respondent to purchase the property namely all piece and parcel of land together with building known as "JJ Shopping Complex" situated at No. 84, Bangalore High Road, Sriperumbudur Village and comprised in Old S. No. 731/7 and New S. No. 731/7A1 measuring to an extent of 2 acres and 30 cents for a sale consideration of Rs. 31,00,000/- and a sum of Rs. 5,00,000/- was paid as sale advance on that day itself." 2. Since the First Respondent failed to execute the Sale Deed, the Petitioner sent a Notice to the First Respondent on 9.6.2005 and thereafter filed the Suit for Specific Performance of Agreement dated 29.11.2004. In the said Suit, the First Respondent remained ex parte and an ex parte Decree was passed on 7.9.2006. Pursuant to the Order passed in E.P. No. 4 of 2007, a Sale Deed dated 27.11.2009 was executed through Court in favour of the Petitioner. At that stage, the First Respondent filed LA. No. 287 of 2011 on 26.7.2011 along with the Application to set aside ex parte Decree contending that there was a business transaction between him and the Petitioner and in that business transaction only for security the Power of Attorney was executed. 3. He would further submit that he also issued two cheques to the value of Rs. 26,00,000/- and Rs. 5,00,000/-, in all amounting to Rs. 31,00,000/-. The Power of Attorney holder, the Second Respondent is a close relative of the Petitioner and by collusion they created the Sale Agreement dated 29.11.2004 by virtue of the Power of Attorney dated 17.11.2004. That apart, the First Respondent revoked the Power of Attorney dated 17.11.2004 by a registered Revocation Deed dated 17.2.2005. 5,00,000/-, in all amounting to Rs. 31,00,000/-. The Power of Attorney holder, the Second Respondent is a close relative of the Petitioner and by collusion they created the Sale Agreement dated 29.11.2004 by virtue of the Power of Attorney dated 17.11.2004. That apart, the First Respondent revoked the Power of Attorney dated 17.11.2004 by a registered Revocation Deed dated 17.2.2005. When things stand so, suppressing all those facts, the Suit was filed and an ex parte Decree was obtained fraudulently. He is running a Jewellery shop at Sriperumbudur for the past several years. However, the ex parte Decree was fraudulently obtained by giving wrong address. When the First Respondent came to know about the ex parte Decree, he lodged a Criminal Complaint before the District Crime Branch and thereafter, he filed the Application under Section 5 of the Act along with the set aside Petition. 4. The aforesaid Application was contested by the Petitioner herein stating that the First Respondent entered into a Sale Agreement through Power Agent and a sum of Rs. 5 lakhs was also received by him. Since the First Respondent refused to execute the Sale Deed, the Suit for Specific Performance was filed. After the service of Summons only, the ex parte Decree was passed. Pursuant to the ex parte Decree, the Sale Deed was obtained through Court on 27.11.2009 and only the possession needs to be handed over. There is no proper explanation for condoning the delay of 1753 days. 5. After hearing both the parties, the Trial Court condoned the delay of 1753 days. The Trial Court found that Summons were not served on the First Respondent and the First Respondent was not the owner when the Sale Agreement was entered into. The said Order is being challenged before this Court. 6. Mr. R. Thiagarajan, learned Counsel appearing for the Petitioner would contend that: "1. There is no proper explanation for condoning the delay of 1753 days; 2. There is no contention as to when the First Respondent came to know about the ex parte Decree; 3. The Petitioner got right over the property through Court on payment of proper Stamp duty. 4. When the First Respondent received Summons, he should have defended the Suit properly." The learned Counsel for the Petitioner would further contend that the Order passed by the Trial Court is arbitrary and perverse in nature. The Petitioner got right over the property through Court on payment of proper Stamp duty. 4. When the First Respondent received Summons, he should have defended the Suit properly." The learned Counsel for the Petitioner would further contend that the Order passed by the Trial Court is arbitrary and perverse in nature. He would rely upon the following Judgments to contend that the Delay Petition should be considered very strictly and the Court should be satisfied with the reasons given in the Affidavit: "(1) Popat and Kotecha Property v. State Bank of India Staff Association, 2005 (4) CTC 489 (SC); (2) CCE v. J.K. Drugs & Pharmaceutical, 2005 (11) SCC 187 ; (3) Binot Bihari Singh v. Union of India, 1993 (1) SCC 572 ; (4) P. Chandramouli & another v. Tmt. K. Gomathi Ammal (deceased) and others, 2003 (1) CTC 661 (DB): 2003 (1) LW 85 (DB); (5) Kaliammal and others v. Sundharammal and another, 2006 (5) CTC 822 ." By relying upon above judgments, the learned Counsel for the Petitioner would submit that the Order passed by the Trial Court is wrong and seeks admission of the Civil Revision Petition. 7. Heard Mr. R. Thiagarajan, learned Counsel for the Petitioner. No doubt, the delay of 1753 days is huge. Law of limitation has been enacted not for destroying the rights of the of the parties. In this case, the property involved is very valuable one measuring about 2.30 Acres along with a building. When rights on such a valuable property is involved in the Suit, the rights of the parties should be decided on merits. 8. It is the specific case of the Petitioner that the First Respondent entered into an Agreement of Sale dated 29.11.2004 for a sale consideration of Rs. 31 lakhs and received a sum of Rs. 5 lakhs as advance. Even after passage of time, the First Respondent failed to execute the Sale Deed and therefore, the Suit for Specific Performance was filed and ex parte Decree was passed. Whereas the case of the First Respondent is that during business transaction only as a security the Petitioner got the Power of Attorney in favour of his close relative, namely the Second Respondent herein and also obtained two cheques for a sum of Rs. 26 lakhs and Rs. 5 lakhs, totalling a sum of Rs. 31 lakhs. 9. Whereas the case of the First Respondent is that during business transaction only as a security the Petitioner got the Power of Attorney in favour of his close relative, namely the Second Respondent herein and also obtained two cheques for a sum of Rs. 26 lakhs and Rs. 5 lakhs, totalling a sum of Rs. 31 lakhs. 9. As far as service of Summons is concerned, the Trial Court has gone into the issue and after perusing the original records observed as follows: "... On perusal of the Suit records, the Suit Summon taken through Court was returned as door locked on 15.04.2006. Subsequently, for the hearing date on 11.08.2006, it appears the Summon has been served through registered post. At the time also through Court the Summon was not served as absent. When the Court Summon was not served as absent how the postal Summon was served on the Defendant is not known. Prima facie, it points something wrong in the service. The Acknowledgment Card is also not signed by the First Defendant. So in fact there was no proper service of Summons on the Petitioner/First Defendant."... From the above, it is clear that the Trial Court was convinced that there was no proper service and noted that irregularity was committed in the service of Summons. After going thorough the original records only the Trial Court gave the factual findings that there was something wrong in service of summons. Hence, this Court cannot interfere with the said findings which was given based on records. Moreover, the discretion has been exercised by the Trial Court in favour of the First Respondent and therefore, this Court is not inclined to interfere with the same. 10. Though the learned Counsel appearing for the Petitioner would submit that the First Respondent did not give the details as to when he came to know about the proceedings and proper reason for condoning the delay of 1756 days was not given, it is seen from the case of the First Respondent that he did not execute the Power of Attorney in favour of the Second Respondent and it was executed only during the course of business transaction with the Petitioner. It is the further case of the First Respondent that even on the alleged date of Sale Agreement dated 29.11.2004, the First Respondent was not the owner of the entire property as stated in Paragraph-3 of the Affidavit filed by the First Respondent. 11. According to the First Respondent, on 7.5.2003, he settled 86 Cents out of two acres and 30 Cents, in the name of his wife Mrs. Rajkumari and 59 Cents in the name of his son Mr. Vishal. In the name of the First Respondent, only 88 Cents was retained. If really the First Respondent intended to execute the Power of Attorney, he ought not to have executed the document, when he already settled 86 Cents and 59 Cents in favour of his wife and son. The points urged by the First Respondent is that the Petitioner is a close relative of the Second Respondent and that was the reason why the Power of Attorney was executed in favour of the Second Respondent. The names of the Petitioner and Second Respondent would reveal that they are close relatives. 12. When the Petitioner issued a Notice to the First Respondent, it is stated in the Plaint filed by the Petitioner that the Second Respondent informed the Petitioner that the Power of Attorney executed by the First Respondent was cancelled on 17.10.2000 itself. This issue has to be gone into at the time of trial. One another factor considered by the Trial Court to condone the delay was that non-obtaining of original documents of the Suit property either by the Petitioner or by the Second Respondent and it is retained by the First Respondent. When the right of the First Respondent is taken away by the ex parte Decree and the valuable property is involved in the case, this Court has to take pragmatic view for condoning the delay of 1753 days. 13. The Hon'ble Supreme Court recently in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & others, 2013 (5) CTC 547 (SC) : 2013 (5) LW 20 held that there should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an Application for condonation of delay. 13. The Hon'ble Supreme Court recently in Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & others, 2013 (5) CTC 547 (SC) : 2013 (5) LW 20 held that there should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an Application for condonation of delay. The Hon'ble Supreme Court referred to its earlier judgments in G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore, 1988 (2) SCC 142 ; O.P. Kathpallia v. Lakhmir Singh (dead) and others, 1984 (4) SCC 66 ; State of Nagaland v. Lipok AO and others, 2005 (1) MWN (Cr.) 166 (SC) : 2005 (3) SCC 752 ; New India Insurance Co. Ltd. v. Shanti Misra, 1975 (2) SCC 840 ; Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, 2010 (5) SCC 459 , which declared that the Court should be liberal in dealing with Condone Delay Petition. The principles are elucidated in the said judgment and Paragraphs 15 & 16 of the Judgment are usefully extracted as follows: "15. From the aforesaid authorities the principles that can broadly be culled out are: (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to en capsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (vii) The concept of liberal approach has to en capsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: (a) An Application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the Courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters." The Hon'ble Supreme Court also referred to some of its Judgments regarding Law of Limitation. Paragraphs 10, 11 & 12 are usefully extracted as follows: "10. In this context, we may refer with profit to the authority in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, 2010 (5) SCC 459 , where a Two-Judge Bench of this Court has observed that the law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the Law of Limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the Courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. Thereafter, the learned Judges proceeded to state that this Court has justifiably advocated adoption of liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate. 11. In Improvement Trust, Ludhiana v. Ujagar Singh and others, 2010 (6) SCC 786 , it has been held that while considering an Application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves. 12. A reference to the principle stated in Balwant Singh (dead) v. Jagdish Singh and others, 2010 (8) SCC 685 would be quite fruitful. It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves. 12. A reference to the principle stated in Balwant Singh (dead) v. Jagdish Singh and others, 2010 (8) SCC 685 would be quite fruitful. In the said case the Court referred to the pronouncements in Union of India v. Ram Charan, AIR 1964 SC 215 ; P.K. Ramachandran v. State of Kerala, 1997 (2) CTC 663 (SC) : 1997 (7) SCC 556 ; and Katari Suryanarayana v. Koppisetti Subba Rao, 2009 (4) CTC 286 (SC): 2009 (11) SCC 183 and stated thus: 25. We may state that even if the term sufficient cause has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of reasonableness as it is understood in its general connotation. 26. The Law of Limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the Applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly." 14. In this case, the vast extent of the property that too situated in a National High Way Road, i.e. Chennai Bangalore Highways, along with commercial complex, which is worth about crores of rupees, is involved and it should also be taken into consideration. 15. As already stated, the Law of Limitation cannot be invoked for destroying the rights of the parties. 15. As already stated, the Law of Limitation cannot be invoked for destroying the rights of the parties. No prejudice would be caused to the Petitioner, if the First Respondent is given an opportunity to contest the case on merits. If the Petitioner is so sure about the case that he can get favourable order on merits instead of getting ex parte Decree, as the First Respondent has denied the Petitioner's, claim and many issues are to be adjudicated after full pledged trial. While comparing the loss to the Petitioner and the loss to be caused to the First Respondent, namely loss of property worth about crores, the delay has to be excused and the case has to be decided on merits. 16. The Trial Court in terms of the Judgment of the Hon'ble Supreme Court in Esha Bhattacharjee, took a liberal, pragmatic, justice-oriented, non-pedantic approach and condoned the delay. Interest of justice requires an opportunity to the First Respondent by condoning the delay to set aside the ex parte Decree. In view of that the order passed by the Trial Court, cannot be found fault with and the Revision is dismissed. Considering the fact that the Suit was filed in the year 2006, the Trial Court is directed to pass appropriate Orders in the setting aside Petition on or before 31st July 2014 thereafter proceed with the Suit after giving opportunity to the Respondents to file Written Statement and dispose of the Suit within six months thereafter. The Civil Revision Petition is dismissed. No costs. Consequently the connected M.P. No. 1 of 2014 is also dismissed. The observation made by this Court is only for disposal of the Revision Petition and it will not give impact on the merits of the case.