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2020 DIGILAW 56 (MAD)

G. Kothandan v. G. Raja

2020-01-06

R.SUBBIAH, T.KRISHNAVALLI

body2020
JUDGMENT : R. Subbiah, J. 1. C.M.P. No. 22580 of 2019 is filed to condone the delay of 2377 days in filing the appeal in A.S.S.R. No. 122276 of 2019. The First Appeal (Appeal Suit) in A.S.S.R. No. 122276 of 2019 is filed against the judgment and decree dated 19.12.2012 passed in O.S. No. 85 of 2011 on the file of the II Additional District Court, Thiruvallur at Poonamallee. 2. When this C.M.P./A.S.S.R. is taken up for consideration, the learned Senior Counsel appearing for the petitioner/first defendant submitted that the suit in O.S. No. 85 of 2011 had been filed by the first respondent/plaintiff on false sale agreement, dated 15.12.2010 for specific performance to direct the defendants 1 to 5 (i.e. the first defendant, his daughter, his wife, his third daughter and one Dilipkumar) to execute the sale deed in respect of the suit property, after receiving the balance of sale consideration within the time that may be fixed by the Court, failing which, to direct the execution of sale deed by an officer of the Court and further to direct the defendants 1, 2, 4 and 5 to deliver the vacant possession of the suit property to the plaintiff. 3. It is further contended by the learned Senior Counsel appearing for the petitioner that since the petitioner/appellant/first defendant is addicted to alcohol, the first respondent/plaintiff had obtained the first defendant's left thumb impression for the alleged sale agreement, but actually, no consideration had been passed under the sale agreement. In fact, no independent document had been filed by the plaintiff except a fabricated and false agreement. The petitioner/first defendant is having fair chance of success in the appeal filed against the judgment and decree of the trial Court. The defendants 2 and 3 were set ex-parte in the suit and the suit was erroneously decreed by the trial Court, since the sale agreement was obtained by fraud. 4. It is also contended by the learned Senior Counsel appearing for the petitioner/first defendant that the petitioner applied for the certified copy of the judgment and decree of the trial Court on 16.09.2019 and obtained the same on 18.09.2019. Thereafter, he filed the present Appeal Suit (First Appeal) on 23.09.2019 before this Court, with a delay of 2377 days. The said delay is neither wilful nor wanton. Thereafter, he filed the present Appeal Suit (First Appeal) on 23.09.2019 before this Court, with a delay of 2377 days. The said delay is neither wilful nor wanton. Unless the delay is condoned, the petitioner/first defendant will be put to irreparable loss, as the decree was obtained by the first respondent/plaintiff by producing false sale agreement. 5. In support of his submissions, the learned Senior Counsel appearing for the petitioner/first defendant relied on a decision of the Supreme Court reported in 2019 (6) SCC 387 (Bhivchandra Shankar More Vs. Balu Gangaram More and others) (Civil Appeal No. 4669 of 2019, dated 07.05.2019). In that case, the Bombay High Court refused to condone the delay in filing the First Appeal challenging the ex-parte decree passed in Regular Civil Suit No. 35 of 2007, dated 04.07.2008. The Supreme Court set aside the order of the Bombay High Court and held that in the interest of justice, the appellant and respondent Nos. 14 and 15 therein are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits. 6. It is the further submission of the learned Senior Counsel appearing for the appellant/first defendant that the appellant is the owner of the suit property by virtue of a Sale Certificate, dated 20.08.2008, registered as Document No. 3707 of 2008 in SRO of Konnur, Chennai. The sale consideration for the suit property (auction purchased in the name of the appellant) is paid by the second defendant/second respondent herein (the daughter of the appellant) by transfer of funds through her Bank Account between 01.08.2008 and 24.08.2008 respectively. Since the second respondent/second defendant had misunderstandings with her husband, the suit property had been purchased in her father's name (the appellant herein) from and out of her funds. However, later, the appellant had settled the suit property, vide settlement deed, dated 06.01.2011 in favour of the second defendant/second respondent, registered as Document No. 45 of 2011 in SRO of Konnur. Subsequently, there was a dispute between the family members of the appellant and hence, he has revoked the settlement deed, dated 06.01.2011 executed in favour of his daughter, namely the second respondent herein, vide cancellation deed, dated 21.01.2011 registered as Document No. 220 of 2011. 7. Subsequently, there was a dispute between the family members of the appellant and hence, he has revoked the settlement deed, dated 06.01.2011 executed in favour of his daughter, namely the second respondent herein, vide cancellation deed, dated 21.01.2011 registered as Document No. 220 of 2011. 7. It is further submitted by the learned Senior Counsel appearing for the appellant/first defendant that the plaintiff has entered into a sale agreement (unregistered stamp papers of value of Rs. 20/- dated 01.12.2010) on 15.12.2010 as ante-dated for no sale consideration and it is a sham and nominal sale agreement as if the advance amount of Rs. 27 lakhs was paid on 15.12.2010. Subsequently, on 28.12.2010, by endorsement on the back of the stamp paper of the value of Rs. 20/-, in which it is shown as if the said amount is paid in cash. Since it is an ante-dated false agreement, the payments are mentioned in cash, even for small amount, and the first respondent/plaintiff could not produce any mode of payment by any instruments, i.e. cheques or DD or Bank transfer, because it is ante-dated and fake. 8. It is represented by the learned Senior Counsel appearing for the appellant/first defendant that when once the first respondent/plaintiff had obtained a false unregistered sale agreement for no consideration as per the appellant, he used undue influence and force upon the appellant and his family members with all kinds of black-mailing. All the papers including the pleadings are prepared by the plaintiff and he obtained the signature of the appellant herein i.e. the left thumb impression of the appellant and his family members, except the second respondent/second defendant, who is not under the control of the plaintiff. The second defendant was set ex-parte with the influence of her Advocate and she was not informed in time. She came to know only after ex-parte decree was passed on 19.12.2012 in O.S. No. 85 of 2011 on the file of the II Additional District Court, Thiruvallur at Poonamallee, at later point of time, i.e. more than 200 and odd days. By virtue of the settlement deed, dated 06.01.2011, Document No. 45 of 2011 in favour of the second respondent/second defendant, the property tax had been assessed in the name of Mrs. By virtue of the settlement deed, dated 06.01.2011, Document No. 45 of 2011 in favour of the second respondent/second defendant, the property tax had been assessed in the name of Mrs. K. Jayanthi, the second defendant herein, who is always in possession and enjoyment of the said property, even earlier to 20.08.2008, i.e. the auction purchase made in the name of the appellant herein. The electricity connection account is also made in the name of Mrs. K. Jayanthi from the year 2011. 9. It is the further submission of the learned Senior Counsel appearing for the appellant/first defendant that when the second defendant has filed application to set aside the ex-parte order passed against the second defendant with application to condone the delay, vide. I.A.S.R., the said application for condoning the delay in S.R., was dismissed by the trial Court in O.S. No. 85 of 2011 on the file of the II Additional District Court, Thiruvallur at Poonamallee. Hence, the second defendant has filed A.S. No. 683 of 2014 on the file of this Court against the judgment and decree dated 19.12.2012 passed in O.S. No. 85 of 2011 with condone-delay petition for 400 odd days, which was allowed as per Apex Court judgment and A.S. No. 683 of 2014 was subsequently dismissed after hearing both sides on 23.04.2019 on the file of the Division Bench of this Court, against which the second defendant has filed S.L.P. (vide) No. 18338 of 2019 in the Supreme Court of India, which was dismissed on 09.08.2019 and the Review Petition filed on 23.09.2019 was subsequently dismissed by the Supreme Court. The delay has to be condoned after giving opportunities to the parties concerned to redress their grievances. The appellant has filed the present appeal after obtaining the certified copy of the judgment and decree dated 19.12.2012 passed in O.S. No. 85 of 2011 on 18.09.2019 in this Court and there was a delay of 2377 days in filing the present appeal. The appellant has filed the present appeal after obtaining the certified copy of the judgment and decree dated 19.12.2012 passed in O.S. No. 85 of 2011 on 18.09.2019 in this Court and there was a delay of 2377 days in filing the present appeal. The reason for the delay in filing the above appeal is only due to the fact that the petitioner has realised the threat and coercion upon himself and his family members and since the plaintiff has filed E.P. No. 73 of 2019 in O.S. No. 85 of 2011 before the Court below, the petitioner/appellant immediately applied for the certified copy of the judgment and decree in O.S. No. 85 of 2011 and filed the present appeal. 10. The learned Senior Counsel appearing for the petitioner/first defendant also relied on a judgment of the Supreme Court reported in 1994 (1) SCC 1 (S.P. Chengalvaraya Naidu Vs. Jagannath), to fortify his submissions and in that case, the Apex Court held that one who comes to the Court, must come with clean hands. The Supreme Court in that case was constrained to observe that more often than not, the process of the Court is being abused. The property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal gains indefinitely. It was further observed by the Supreme Court that a person, whose case is based on falsehood, has no right to approach the Court and he can be summarily thrown out at any stage of the litigation. 11. According to the learned Senior Counsel appearing for the petitioner/first defendant, in the instant case, by producing a fake document, the first respondent/plaintiff had obtained the decree by playing fraud upon the Court. Therefore, in the interest of justice, the delay may be condoned so that the appellant/first defendant will have a chance to contest the case on merits in the First Appeal (Appeal Suit). If the delay in filing the appeal is not condoned, he will be put to irreparable loss and injury. He further submitted that in a catena of judgments, the Supreme Court had held that the Court shall be liberal in allowing the petition to condone the delay and the affected party shall be given opportunity to redress his grievance for adjudication of the case on merits. He further submitted that in a catena of judgments, the Supreme Court had held that the Court shall be liberal in allowing the petition to condone the delay and the affected party shall be given opportunity to redress his grievance for adjudication of the case on merits. Hence, the learned Senior Counsel appearing for the petitioner/appellant/first defendant prayed that the delay may be condoned. 12. Countering the above submissions, the learned counsel appearing for the first respondent/plaintiff submitted that it is incorrect to state that the first respondent/plaintiff had obtained decree by producing a false sale agreement. Earlier, the appellant/first defendant had purchased the suit property for a total consideration of Rs. 17,00,000/- in the auction held by the Authorised Officer of M/s. Housing Development Finance Corporation Limited. The first respondent/plaintiff had entered into an agreement of sale, dated 15.12.2010 with the appellant/first defendant to purchase the suit property for a total sale consideration of Rs. 60 lakhs and had paid a sum of Rs. 27 lakhs as advance on the date of sale agreement itself. Time period of 6 months was fixed for payment of balance sale consideration. The appellant/first defendant had agreed to vacate the tenants, failing which, it was agreed that the first respondent/plaintiff will take steps to vacate the tenants and the amounts paid by the plaintiff are to be adjusted out of the balance amount payable to the appellant/first defendant. 13. It is further contended by the learned counsel appearing for the first respondent/plaintiff that on 28.12.2010, the appellant/first defendant wanted further sum for getting vacant possession from the tenants. The first respondent/plaintiff had also paid a sum of Rs. 23 lakhs. After receipt of Rs. 50 lakhs, the appellant/first defendant had stealthily settled the suit property in favour of the respondents 2 to 4, who are his own daughters and wife. The first respondent/plaintiff/agreement holder did not have any notice of the same. He executed the document in favour of the second defendant on 06.01.2011 and cancelled the same on 21.01.2011 and on that day, he executed a document in favour of his wife. Both of them in turn settled the property, for which, an agreement had already been entered into in favour of the fifth defendant. Hence, the plaintiff had issued Lawyer's notice, dated 02.07.2011 calling upon the appellant/first defendant for completion of the suit transaction. Both of them in turn settled the property, for which, an agreement had already been entered into in favour of the fifth defendant. Hence, the plaintiff had issued Lawyer's notice, dated 02.07.2011 calling upon the appellant/first defendant for completion of the suit transaction. The appellant/first defendant had issued reply notice, dated 06.07.2011, admitting the sale agreement and receipt of Rs. 50 lakhs, but took a stand that his family members are preventing him from completing the sale. The first respondent/plaintiff applied for Encumbrance Certificate on 11.07.2011 and came to know that the first defendant had created the following documents: (i) Settlement deed in favour of his daughter Jayanthi on 06.01.2011, which was revoked on 21.01.2011; (ii) Another settlement deed in favour of his wife Padma on 21.01.2011; (iii) Settlement deed by the appellant and his wife Padma (fourth respondent) in favour of fifth respondent on 06.05.2011, and (iv) On the strength of the settlement deed, dated 06.01.2011, Ms. Jayanthi had executed a sale agreement for the property for Rs. 10 lakhs in favour of the third respondent, her son-in-law on 12.01.2011. The collusive nature of the sale agreement is ex-facie evident, because relationship between the parties is one of a mother-in-law and son-in-law. 14. The learned counsel appearing for the first respondent/plaintiff further submitted that the property was purchased for Rs. 17 lakhs and agreement of sale was for Rs. 60 lakhs, out of which, Rs. 50 lakhs had been paid, but the agreement was only for Rs. 10 lakhs. The first respondent/plaintiff further stated that, immediately, on receipt of the reply from the appellant/first defendant, the first respondent/plaintiff filed the present suit in O.S. No. 85 of 2011 on 24.07.2011 for specific performance against the defendants. The appellant/first defendant filed written statement in line with his Lawyer's notice on 21.08.2011, admitting the sale agreement and receipt of the advance amount. It is mentioned in the said written statement that the second defendant had filed a suit in O.S. No. 166 of 2011 for declaration that the cancellation of the settlement deed, dated 06.01.2011 executed by the first defendant on 21.01.2011, is invalid and that the second respondent is in possession and collecting the rents from the tenants. On 21.08.2011, the respondents 4 and 5, who are the wife and daughter of the appellant/first defendant, had filed a written statement adopting the written statement of the first defendant. 15. On 21.08.2011, the respondents 4 and 5, who are the wife and daughter of the appellant/first defendant, had filed a written statement adopting the written statement of the first defendant. 15. The learned counsel appearing for the first respondent/plaintiff further submitted that the present suit was transferred to the II Additional District Court, Poonamallee for trial. The plaintiff was examined as P.W.1 and one Mr. Ravi, witness to the agreement, was examined as P.W.2. The appellant (first defendant) was examined as D.W.1. Exs.A-1 to A-13 were filed on the side of the plaintiff. No documents were marked on the side of the defendants. The suit was decreed by the trial Court on 19.12.2012 by granting a decree for specific performance and the first respondent/plaintiff was directed to pay a sum of Rs. 10 lakhs. Therefore, it is incorrect on the part of the appellant/first defendant to state that the judgment and decree of the trial Court were passed ex-parte. 16. Learned counsel appearing for first respondent/plaintiff further stated that first respondent/plaintiff had paid balance sale consideration on 13.12.2013. Pursuant to E.P. No. 36 of 2013, II-Additional District Court, Thiruvallur had executed sale deed in favour of first respondent/plaintiff on 25.10.2013 and E.P. was terminated on 07.11.2013. First respondent/plaintiff had also paid stamp duty of more than Rs. 14 lakhs. Further, E.P. No. 37 of 2013 was filed by first respondent/plaintiff for attachment of suit costs, and the same was ordered for Rs. 5,18,935.50/-. The attachment was ordered on 17.12.2013. In both the Execution Petitions, the judgment debtor was served. It is further stated by the learned counsel appearing for the first respondent/plaintiff that on 23.10.2013, the second defendant had filed I.A.S.R. No. 4783 of 2013 in O.S. No. 85 of 2011 to set aside the ex-parte decree and the said I.A. was rejected on 28.04.2014 stating that the decree is not an ex-parte decree, but it was a contested one and this order had become final. Further, on 08.11.2013, E.P. No. 128 of 2013 was filed for delivery of possession. Moreover, the second respondent/second defendant filed C.M.P. No. 1 of 2014 in A.S.S.R. No. 42379 of 2014 through her counsel Mr. R. Ponnusamy, and in these proceedings also, the appellant was served. This C.M.P. was allowed and the delay was condoned. Further, on 08.11.2013, E.P. No. 128 of 2013 was filed for delivery of possession. Moreover, the second respondent/second defendant filed C.M.P. No. 1 of 2014 in A.S.S.R. No. 42379 of 2014 through her counsel Mr. R. Ponnusamy, and in these proceedings also, the appellant was served. This C.M.P. was allowed and the delay was condoned. The appeal was taken on file as A.S. No. 683 of 2014, which was dismissed by this Court on 23.04.2019, confirming the decree for specific performance granted by the trial Court. Thereafter, the first respondent/plaintiff had filed E.P. No. 73 of 2019 before the II Additional District Court, Poonamallee for delivery of the suit property. The judgment debtor(s) was/were served and entered appearance through Lawyers. They took time stating that they are approaching the Supreme Court of India against the judgment and decree in A.S. No. 683 of 2014, which is pending and posted to 07.12.2019. S.L.P.(C). No. 18338 of 2019 filed against the judgment and decree in A.S. No. 683 of 2014, was dismissed by the Supreme Court on 09.08.2019. The executing Court was informed of the same. Immediately, the judgment debtor(s) stated that they are filing a Review Petition before the Supreme Court and took time. Review Petition (C).Diary No. 34676 of 2019 in S.L.P. No. 18338 of 2019 was dismissed by the Apex Court by order dated 19.11.2019. 17. The learned counsel appearing for the first respondent further submitted that in the present appeal, the petitioner/first defendant had taken a totally different stand from that of his written statement and deposition given before the trial Court. Though there is a huge delay of more than 7 years, the appellant had not given any explanation for condoning the delay. This C.M.P. has been filed only with a view to delay and drag on the proceedings. The defendants have colluded together and created multiple litigations with a view to prevent the first respondent/plaintiff from enjoying the fruits of the decree granted in his favour. 18. According to the learned counsel appearing for the first respondent, the appellant/first defendant has not given proper explanation for condoning the delay. The plaintiff had committed fraud upon Court and obtained the present decree, but it is false to allege that the sale agreement itself is a fabricated one. The delay in this case is huge and inordinate, which may not be condoned. The plaintiff had committed fraud upon Court and obtained the present decree, but it is false to allege that the sale agreement itself is a fabricated one. The delay in this case is huge and inordinate, which may not be condoned. Hence, he prayed that the present C.M.P. may be dismissed. In support of his submissions, the learned counsel appearing for the first respondent relied on a judgment of the Supreme Court reported in 2010 (8) SCC 685 (Balwant Singh (dead) Vs. Jagdish Singh and others). 19. Though very many contentions have been raised on the factual aspects of the matter, so far as the present appeal is concerned, this Court has to see as to whether any sufficient reason has been assigned for the inordinate delay of 2377 days in filing the First Appeal. 20. From a perusal of the affidavit filed in support of the C.M.P., we find that absolutely no explanation was given to condone such inordinate delay. On the other hand, the appellant/first defendant has made submissions only on the merits of the matter stating that the plaintiff has obtained a false sale agreement. When the delay is inordinate, this Court cannot entertain the matter casually or in a mechanical manner. It is well settled that the length of delay is not the criteria for condoning the delay, but the reasons assigned alone is paramount consideration. In this regard, it is useful to refer a decision of the Supreme Court reported in 1998 (7) SCC 123 (N. Balakrishnan Vs. M. Krishnamurthy), relevant portion of which reads as follows: "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. .. ... " 21. Therefore, we are of the opinion that the above judgment of the Supreme Court is squarely applicable to the facts of the present case. Invalid and unbelievable reason has been spelt out by the petitioner/first defendant to condone the delay. .. ... " 21. Therefore, we are of the opinion that the above judgment of the Supreme Court is squarely applicable to the facts of the present case. Invalid and unbelievable reason has been spelt out by the petitioner/first defendant to condone the delay. The reasons stated are flimsy in nature. Absolutely, no case has been made out by the petitioner to condone the inordinate delay of 2377 days in filing the appeal. It is to be noted that the condonation of delay is a matter of discretion of the Court and Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, but acceptability of the explanation is the only criterion. 22. Moreover, as per the decision of the Supreme Court reported in 2016 (16) SCC 565 (Shanti Devi Vs. Kaushaliya Devi), in the absence of any sufficient reason shown by the party before the Court to get the huge delay to be condoned, the delay cannot be condoned. 23. Though in the decision relied on by the learned counsel appearing for the first respondent/plaintiff, reported in 2010 (8) SCC 685 (cited supra), the Supreme Court, relied on another decision of the Supreme Court reported in Perumon Bhagvathy Devaswom Vs. Bhargavi Amma, reported in 2008 (8) SCC 321 , wherein it was held that the decisive factor in condonation of delay is not the length of delay, but sufficiency of a satisfactory explanation, in the case on hand, the appellant/first defendant has not made out a case with sufficient explanation so as to condone the delay in filing the First Appeal. It was further held in the said decision (Perumon Bhagvathy Devaswom) that the words "sufficient cause for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case and the type of case. The words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona-fides, deliberate inaction or negligence on the part of the appellant. The words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona-fides, deliberate inaction or negligence on the part of the appellant. It was also held therein (Perumon Bhagvathy Devaswom case) that the extent or degree of leniency to be shown by a Court depends on the nature of application and facts and circumstances of the case. This decision reported in Perumon Bhagvathy Devaswom (cited supra) had also been followed with approval by an equi-bench of the Supreme Court reported in Katari Suryanarayana Vs. Koppisetti Subba Rao reported in AIR 2009 SC 2907 . In the said decision reported in 2010 (8) SCC 685 (cited supra), it was further held by the Supreme Court that the requirement of law is that the application for condoning the delay cannot be allowed as a matter of right and even in a routine manner. In the case on hand, the reason assigned by the appellant/first defendant in filing the Appeal Suit (First Appeal) is neither reasonable nor satisfactory. Further, in terms of Section 5 of the Limitation Act, as held by the Supreme Court in the decision reported in 2010 (8) SCC 685 (cited supra), the discretion is vested in the Court to admit an appeal or an application, after the expiry of the prescribed period of limitation, if the appellant shows "sufficient cause" for not preferring the application within the prescribed time. Further, in the decision reported in 1997 (7) SCC 556 (P.K. Ramachandran Vs. State of Kerala), the Apex Court held that the Court should record any satisfaction that the explanation for delay was either reasonable or satisfactory, which is an essential pre-requisite to condone the delay. 24. Further, in the instant case, we do not find any satisfactory reason to condone the inordinate delay of 2377 days in filing the appeal. In fact, the learned Senior Counsel appearing for the appellant has not given any valid reason to condone the delay and he made his submissions only on the merits of the matter. This Court is not inclined to traverse on the merits of the matter at the condone delay stage. 25. For all the reasons stated above, and applying the decisions of the Supreme Court discussed supra, this C.M.P. is liable to be dismissed. This Court is not inclined to traverse on the merits of the matter at the condone delay stage. 25. For all the reasons stated above, and applying the decisions of the Supreme Court discussed supra, this C.M.P. is liable to be dismissed. Accordingly, C.M.P. is dismissed. Consequently, A.S.S.R. No. 122276 of 2019 is rejected. No costs.