Dismissed

Tersee M. Fernandes and 2 Ors., v. Baltazar Das Neves Fernandes and 2 Ors.

Bombay HC6 Jul 2021AO/37/2019

Case brief

AI extract

What is this about?

This High Court of Bombay at Goa appellate bench dismissed an appeal seeking to reopen closed inventory proceedings and conduct a re-auction of assets. The court held that reopening was impermissible given the appellants' failure to raise a demand on time and their attempt to benefit from their own delay. The appeal was dismissed with liberty to deposit dues with interest.

What did the court decide?

The appeal was dismissed with liberty for the respondent to deposit the prescribed percentage of the owed amount with interest to the Inventory Court.

Tersee M. Fernandes and 2 Ors., Vs Baltazar… — Civil Procedure and Limitation | Bombay HC (2021)

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(13) AO 37 2019

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IN THE HIGH COURT OF BOMBAY AT GOA

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 APPEAL FROM ORDER NO 37 OF 2019

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TERSEE M. FERNANDES

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AND 2 ORS., …... APPELLANTS

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VS

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BALTAZAR DAS NEVES

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FERNANDES AND 2 ORS., ….... RESPONDENTS

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Mr. Galileo F. Teles, Advocate for the Appellants.

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Mr. M. D. Costa, Senior Advocate with Ms. K. Betquecar, Advocate for the
Respondent no.1.

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Mr. F. E. Noronha, Advocate for the Respondents no.2 and 3.

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 CORAM: M. S. SONAK, J.
 DATE : 6th July, 2021.

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ORDER:

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Heard Mr. G. Teles, the learned counsel for the appellants, Mr. M.D.

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D'Costa, the learned Senior Advocate who appears with Ms. K. Betquecar, for

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the respondent no.1 and Mr. F. E. Noronha, the learned counsel for the
respondent nos. 2 and 3.

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2.This is an Appeal Against Order dated 5/3/20219 made by the learned
Senior Civil Judge at Margao (Inventory Court) disposing of the appellants'
application at Exhibit B-1 for re-opening of the inventory proceedings and for

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re-auctioning of the assets of the inventory proceeding at Exhibit 19.

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(13) AO 37 2019

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3. Mr. Teles, the learned counsel for the appellants at the outset points out

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that there was an error o the part of the appellants in relying on the decision in
Vilas Atmaram Bandodkar vs. Atmaram P. Bandodkar 2010 Goa L. R. 175,
since this decision stands reversed by the Hon'ble Apex Court in Baburao
Karekar and anr. Vs. Vilas Atmaram Bandodkar (2015) 12 SCC 659 . Mr.
Teles, however, submits that even in terms of the decision of the Hon'ble Apex
Court, owlety amount or at least the prescribed percentage has to be deposited
within three days from the date of demand. He points out that the time period
of three days is to be assessed based on what is set out in the decision of the
Hon'ble Supreme Court in Baburao Karekar (supra).

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4. Mr. Teles submits that in the present case the auction was held on

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7/7/2001 and the chart based on the auction was prepared on 11/7/2001. He

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submits that till date the auction purchasers have not paid any percentage of the
owelty amount. He submits that in the year 2015, the appellants required the
auction purchasers to deposit such amount. But the auction purchasers resisted
the same by urging that the demand was too late. He submits that till date, no
portion of the owelty amount has been deposited by the auction purchasers and
therefore, going by the ruling in Baburao Karekar (supra) as also the legal
position, a re-auction will have to be held by reopening the inventory

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(13) AO 37 2019

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proceedings.

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5. Mr. M. B. D'Costa, the learned Senior Advocate and Mr. F.E. Noronha in

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unisim point out that the time for depositing commences from the date of
demand. They point out that by reference to the roznama that a specific notice
was issued to the father of the appellants requiring him to raise a demand. That
such notice was ultimately served by substituted service on 7/7/2001. They
point out that even after 11/7/2001 despite opportunity, no demand was raised
by the father of the appellants. Mr. Noronha points out that in the year 2015,
the appellants straightaway applied for setting aside of the auction without
making any demand. He points out that the respondent nos.2 and 3 specifically
applied to the Inventory Court for deposit of the amount, from which it is quite
clear that there was no resistance to the deposit. Mr. D'Costa and Mr. Noronha
submit that even now, the respondents are most eager to deposit the amount
and, that too, with interest as is specified under the law. They, therefore, submits

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that there is no error with the view taken by the inventory Court and this appeal
may be dismissed.

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6. The rival contentions now fall for my consideration:

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7. From the perusal of the material on record it does appear that the

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appellants are trying to take undue advantage of the situation. The situation was

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(13) AO 37 2019

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brought about because the father of the appellants despite opportunity in the
month of July 2001, failed to raise a demand as was required under the law. The
record indicates that on 22/6/2001 the inventory Court had made an ore
regarding issue of demand notice to Jose Luis Fernandes which was made
returnable on 7/7/2001. The said Jose Luis Fernandes is the father of the
appellants and the appellants claim through late Jose Luis Fernandes.

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8.The record indicates that there was difficulty in effecting service upon late

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Jose Luis Fernandes and, therefore, service was ultimately effected by way of
pasting on the door i.e. substituted service. Thereafter, on 9/7/2001, 10/7/2001
and even on 11/7/2001 late Jose Luis Fernandes remained absent as a result of
which the final schedule of partition was drawn and the proceedings were also
closed. At all this stages, late Jose Luis Fernandes had the opportunity to raise
the demand, but for reasons best known, no such demand was not raised.

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9.Even after 11/7/2001, depsite opportunities, no such demand was raised.

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Only in the year 2015, the present appellants claim through late Jose Luis
Fernandes applied for setting aside the auction. This application was made
almost 14 years after the final schedule of partition was drawn and the inventory
proceedings were closed. The only ground urged for setting aside was that there

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was afailure to deposit the prescribed owelty amount. There is nothing on

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(13) AO 37 2019

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record to indicate that the present appellant raised a demand at any time in the
interregnum between 11/7/2001 and the year 2015 and that depsite such
demand there was failure on the part of any of the respondents to pay or deposit
the prescribed percentage of the owelty amount.

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10.Mr. Noronha has pointed out that the respondent nos.2 and 3 actually
applied to the inventory Court for liberty to deposit the prescribed rates of the
owelty amount. He submitted that till date, the application is pending since no

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orders were made thereon.

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11.From the aforesaid, it cannot be said that there was unreasonable
resistance on the part of respondents to deposit the prescribed percentage of the
owelty despite notice of demand. Till date, there is no notice of demand and,
therefore, the consequences set out in Aricle1417 (C) of the Portuguese Civil
Procedure Code, at least prima facie cannot be said to be instituted. Be that as it
may, in the peculiar facts of the present case, there is merit in the submission of

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the learned counsel for the respondents that at least prima facie, the appellants
are trying to take advantage of the situation of their own creation and based
thereon, the appellants are attempting to reopen the proceedings which had
attained finality way back on 11/7/2001. Since this cannot be permitted, this
appeal is required to be dismissed.

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 AO 37 2019

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12.Another reasons for dismissal of the appeal is the statements made by the
learned counsel for the respondents, that the respondents, will deposit the
prescribed percentage of the owelty amounts before the Inventory Court
together with interest thereon at the prescribed rate, within a maximum period
of four weeks from today without waiting for any formal orders from the
Inventory Court. The Inventory Court to accept such deposit and to proceed
further in accordance with law. According to me, such deposit together with
interest will, to some extent, grant benefit to the appellants herein as well.

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13.The learned Inventory Court has considered the submissions made on
behalf of the present appellants. The Inventory Court, has quite correctly
observed that the material on record indicates the conduct of the parties and has
drawn the correct inference from their conduct. The inventory Court has quite
rightly observed that none of the parties had any serious objection for the
allotment and, therefore, there was no cause made out for reopening the
inventory proceedings at this point of time.

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14.The appeal is accordingly dismissed with the aforesaid liberty. The
Inventory Court, to now proceed in accordance with law and even dispose of the

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(13) AO 37 2019

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Execution proceedings as expeditiously as possible.

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15.All concerned to act on authenticated copy of this order.

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 M. S. SONAK, J.

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MARIA Digitally signed by MARIA AURA AURA PEREIRA Date: 2021.07.07 Ap/- PEREIRA 18:07:47 +05'30'

Tersee M. Fernandes and 2 Ors., v. Baltazar Das Neves Fernandes and 2 Ors.

Case brief

What is this about?

What did the court decide?

Tersee M. Fernandes and 2 Ors., v. Baltazar Das Neves Fernandes and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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