Dismissed

Suchi Bhatia And Ors. v. Mukesh Arora

Jharkhand HC23 Nov 2017FA/40/2017

Case brief

AI extract

What is this about?

In an appeal against a decree for specific performance, the High Court of Jharkhand examined an application for condonation of delay. Finding the delay in-digitattrous and unexplained, the court dismissed the appeal and rejected accompanying applications.

What did the court decide?

The appeal was dismissed; the application for condonation of delay (I.A. No. 1562 of 2017) and the application for stay of execution (I.A. No. 5499 of 2017) were rejected.

Suchi Bhatia And Ors. Vs Mukesh Arora — Specific Performance | Jharkhand HC (2017)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No. 40 of 2017

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1.Suchi Bhatia

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2.Ruchi Bhatia 3.Neha Bhatia

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….........Appellants

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Vrs.

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Mukesh Arora ….......... Respondent

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CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Appellants : Mr. Sanjay Kumar Sinha For the Respondent : Mr. Sailesh Kumar Singh

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08/23.11.2017 The appeal has been preferred after a delay of 525 days as per the Stamp Reporter, though as per the Appellants, there is a delay of 617 days in preferring the same. The Appellants have sought condonation of delay through I.A. No. 1562 of 2017. On notice the sole Respondent has entered appearance through his counsel.

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Heard learned counsel for the parties on the point of limitation. The Sole Respondent is the Plaintiff in Title Suit No. 258 of 2011, which was instituted for a decree for specific performance of agreement dated 02.07.2007 by directing the Defendents/ Appellants herein to execute and register a sale deed of suit property i.e. land situated at Mouza Dhanbad, Mouza No.51, P.S. Bankmore, District Dhanbad bearing Plot no. 25 measuring an area of 310 Sq. Feet on second floor, popularly known as Shivam Complex, Shop No. F-1 and F-2 in favour of the Plaintiff and in case the Plaintiff is found not entitled for such relief, a decree for part consideration amount along with interest and cost of the suit be allowed.

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After service of summons, all the Defendents appeared in the suit on 04.12.2012 and sought time to file written statement but did not file the same till 10.01.2014. Therefore, they were debarred from filing the written statement. From perusal of the impugned judgment, it further appears that learned Court there after proceeded for adjudication of the suit by framing 5 issues inter alia as follows:-

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I). Whether suit in the present form is maintainable?

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II). Whether agreement dated 02.07.2007 entered in between late Guldarshan Bhatia and the Plaintiff was valid document. III). Whether the Plaintiff has a valid cause of action? IV). Whether the Plaintiff has proved his readiness and willingness to execute his part of contract and defendants have violated the same? V). Whether the Plaintiff is entitled to any relief or reliefs as claimed for ?

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Plaintiffs adduced oral and documentary evidences inter alia as

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follows:-

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-2-

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Oral evidence adduced on behalf of the Plaintiff:

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I) P.W.1, Mukesh Arora; II) P.W.2, Ramesh Kumar Panjwani; III) P.W.3- Pawan Kumar.

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Documentary evidence adduced on behalf of the Plaintiff:

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I) Exhibit-1: Agreement dated 07.07.2007; II) Exhibit-2: Certified copy of sale deed No. 4475 dated 31.08.1999; III) Exhibit-1/1 and 1/2 : Signature of late Guldarshan Bhatia and Ramesh Kumar Panjiyani on the agreement; IV) Exhibit-3: Signature of A.K.Jha, Advocate on Advocate's notice; V) Exhibit-3/1 to 3/3: Three postal receipts dated 27.05.2011

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Issue no. II and IV were decided in favour of the Plaintiff. Learned Trial Court held that the Plaintiff had valid cause of action and the present suit was maintainable. Issue no. I,III and V were also decided in favour of the Plaintiff. The suit was decreed on contest against the Defendants with cost. The Defendants were directed to execute the sale in respect of the property mentioned in the plaint in accordance with agreement dated 02.07.2007 within two months, failing which, the plaintiff would be entitled to get the same executed through the process of Court.

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The Appellants through application made under Section 5 of the Limitation Act have stated that the impugned order was passed without hearing the Defendants and without their written statement as they were not in knowledge of fixing of date for filing written statement and the case proceeded without it and adjudicated without their written statement and evidence. The Appellant were under the impression that the case was still alive and they would be informed by their counsel only when the stage would come. The case was disposed of on 15.6.2015 without the knowledge of the Appellants. The Defendant /Appellant no.3 came to know of the impugned judgment on receipt of the notice of Execution Case No. 271 of 2015 in December, 2016. Thereafter steps were taken for filing of the memo of appeal after approaching the concerned counsel and other Defendants i.e. Appellant no.1 and 2. There is no deliberate delay in filing the instant appeal. Therefore, the delay may be condoned otherwise Appellants would suffer irreparable loss and injury. Learned counsel for the Appellants contends that there are good grounds on merits to agitate.

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Learned counsel for the Respondent Decree Holder has seriously contested the prayer . He submits that through the averments made in the I.A., it is itself evident that there are no worthwhile explanation for the inordinate delay and laches on the part of the Appellants in preferring the

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instant memo of appeal. It also indicates that there was complete lack of diligence on the part of the Appellants to defend the suit even after appearance on notice. No sufficient cause has been shown by the Appellants for condonation of such a huge delay. The decree holder has therefore rightly pursued the execution case.

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Considered the submission of learned counsel for the parties and the grounds urged by the Appellants in seeking condonation of delay through present I.A. It is evident from the impugned judgment that the Defendants / Appellants herein had appeared on notice on 04.12.2012 and had sought time to file written statement but not filed it till 10.01.2014, which resulted in the order of debarment for filing written statement. The learned Trial Court proceeded with the Suit and after considering the evidences adduced on behalf of the Plaintiff, decreed it by the impugned judgment dated 15.6.2015. The Appellants have also failed to show sufficient cause in explaining the delay in preferring the memo of appeal by any cogent material on record. Their explanation only shows that they have taken no interest either in defending the suit and even thereafter in moving the appellate Court on the passing of judgment and decree against them on 15.06.2015. The appeal suffers from inordinate delay of 525 days and laches on the part of the Appellants, which are not properly explained.

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In these circumstance, this Court does not find any reason to condone such a huge delay in preferring the instant memo of appeal. Accordingly, the instant appeal is dismissed on the point of limitation. I.A. No. 1562 of 2017 seeking condonation of delay and I.A. No. 5499 of 2017 seeking stay of the execution proceedings also stand rejected.

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(Aparesh Kumar Singh, J.)

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A.Mohanty

Suchi Bhatia And Ors. v. Mukesh Arora

Case brief

What is this about?

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Suchi Bhatia And Ors. v. Mukesh Arora

Case brief

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