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2018 DIGILAW 2691 (BOM)

Pravin Mulchand Johare v. Kishorilal

2018-11-01

ROHIT B.DEO

body2018
JUDGMENT : ROHIT B. DEO, J. 1. Heard Shri R.T. Anthony, the learned Counsel for the petitioners and Shri Amol D. Patil, the learned Counsel for the respondent. 2. Rule. Rule made returnable forthwith by consent of the learned Counsels for the parties. 3. The petitioners are calling in question the judgment dated 24.04.2017 rendered by the Civil Judge, Senior Division, Nagpur in M.J.C. 225/2014, by and under which, the ex parte judgment and decree dated 14.03.2012 in Special Civil Suit 1260/2008 is set aside. 4. Special Civil Suit 1260/2008 was instituted by the petitioners seeking decree of specific performance of the agreement dated 17.04.2007. 5. It is not in dispute that the summons was duly served on the defendant - respondent herein. 6. The suit is decreed ex parte since despite the service of the suit summons the respondent - defendant did not contest the suit. 7. The defendant preferred an application under Order IX, Rule 13 of the Code of Civil Procedure (CPC) for setting aside ex parte judgment and decree. 8. The defendant contended that after the receipt of the suit summons he contacted the plaintiffs. The plaintiffs assured the defendant not to prosecute the suit if an additional agreement is executed. It is the contention of the defendant, which contention is seriously disputed by the plaintiffs, that a supplementary agreement dated 14.01.2009 came to be executed between the parties, which agreement the plaintiffs suppressed from the Trial Court. In sum and substance, the defendant contended that the plaintiffs practiced fraud in the sense that despite the assurance given to the defendant the plaintiffs continued to prosecute the suit. 9. The plaintiffs have rebutted every material averment in the application under Order IX, Rule 13 of the Code. The additional agreement dated 14.01.2009 is denied. During the course of the submissions, the learned Counsel for the plaintiffs points out that the alleged agreement dated 14.01.2009 does not bear the signatures of the plaintiffs, which fact is admitted by the sole witness examined on behalf of the defendant in M.J.C. 225/2014. 10. The parties led evidence. The learned Trial Court, by the judgment impugned, was pleased to set aside the ex parte judgment and decree. 11. 10. The parties led evidence. The learned Trial Court, by the judgment impugned, was pleased to set aside the ex parte judgment and decree. 11. The learned Counsel for the petitioners - plaintiffs Shri Anthony would submit that the Trial Court clearly fell in error in not appreciating that the very substratum of the application for setting aside the ex parte decree is falsified by the evidence on record. The defendant contends that an additional agreement dated 14.01.2009 was executed and the plaintiffs assured the defendant that the suit would not be prosecuted. Shri Anthony would submit that since it is admitted by the sole witness examined on behalf of the defendant that the alleged supplementary - additional agreement (Exh.57) is not signed by the plaintiffs, the entire justification pleaded in support of the application under Order IX, Rule 13 of the code collapses. Shri Anthony would then submit that the learned Trial Court clearly erred in law in not appreciating that the application under Order IX, Rule 13 of the Code was clearly time barred and could not have been entertained particularly since the defendant did not prefer an application for condonation of delay. The ex parte decree was passed on 14.03.2012 and the application under Order IX, Rule 13 of the Code was preferred on 02.05.2014. Since the suit summons was admittedly served, limitation would start running not from the alleged date of knowledge but from the date of the judgment and decree, is the submission. Per contra, the learned counsel for the defendant Shri Amol Patil would submit, relying on a decision of the Hon'ble Apex Court in Bhagmal and Others. v. Kunwar Lal and Others. reported in, (2010) AIR SC 2991, that having come to the conclusion, and which conclusion is not perverse, that the delay, if any, is satisfactorily explained, interference in writ jurisdiction would not be warranted notwithstanding that a separate application seeking condonation of delay was not preferred. Shri Patil would submit that important property rights are involved and the defendant is entitled to an opportunity to contest the suit on merits, particularly since the defendant has transferred the property to Shri Ashok Dhopadkar and Shri R.S. Dhakate and the said purchasers have instituted a suit alleging that the present petitioners and the respondent - defendant acted in collusion. 12. 12. Having scrutinized the judgment impugned, this Court is compelled to observe that the judgment is not entirely satisfactory. The learned Trial Court clearly erred in observing that since the application under Order IX, Rule 13 of the Code is preferred within 30 days from the receipt of the certified copy, the same is within limitation. The learned Trial Court noted, albeit briefly, the evidence and the contentions. However, the contention that the defendant was mislead into believing that the plaintiffs shall not prosecute the suit, is not considered at all. No finding is recorded on the main contention of the defendant, which is the edifice of the application under Order IX, Rule 13 of the Code. This Court did initially, contemplate remanding the matter for fresh consideration and in accordance with law. However, considering that the suit property is embroiled in litigation not only between the petitioners and the defendant, but between the purchasers Shri Ashok Dhopadkar and Shri R.S. Dhakate, on one hand and the petitioners and the respondent on the other, on a holistic consideration, this Court has refrained from remanding the matter to the Trial Court. 13. The merits of the application under Order IX, Rule 13 of the Code apart, the conduct of the defendant does not appear to be above board. The defendant has received Rs. 7,00,000/- from the plaintiffs in the year 2007, even if the disputed amount of Rs. 75,000/- allegedly paid at the time of execution of the supplementary agreement is excluded. The defendant admits to have sold the property for valuable consideration of more than Rs. 22,00,000/-. The defendant has neither informed the plaintiffs that the agreement is cancelled or that he intends to sell the property to some one else. The defendant further has not even offered to refund the part consideration, despite having received a sizable sum a sale consideration of the suit property. This Court is refraining from making any decisive observation on the material on record, inter alia the additional agreement pressed into service by the defendant, since such observation may prejudice the parties in the litigation. In view of the conduct of the defendant, while this Court is refraining from interfering with the judgment impugned in writ jurisdiction, stringent conditions are in order for showing indulgence to the defendant to contest the suit on merits. 14. In view of the conduct of the defendant, while this Court is refraining from interfering with the judgment impugned in writ jurisdiction, stringent conditions are in order for showing indulgence to the defendant to contest the suit on merits. 14. Without prejudice to the respective contentions, and subject to the final outcome of Special Civil Suit 1260/2008, the respondent - defendant shall refund the amount of Rs. 7,00,000/- along with the interest at the rate of 9% per annum with effect from the date of receipt of the amount till actual payment. This shall be done within four weeks. This shall be a condition precedent and failure of the defendant to make the payment of the said amount with interest shall revive the ex parte judgment and decree. 15. The petition is disposed of in the afore-stated terms.