Bombay High Court
Inderjit Nanakchand Sharma vs Lokmanya Nagar Priyadarshini Chsl And ... on 24 January, 2020
Author: N. J. Jamadar
Bench: N. J. Jamadar
This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020
3-chs-715-2018.doc
Yugandhara Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 715 OF 2018
IN
SUIT NO. 1315 OF 2000
Inderlok Infra Agro Pvt Ltd. .... Applicant
In the matter between
Inderjit Nanakchand Sharma .... Plaintiff
V/s
Lokmanya Nagar Priyadarshini C.HS. Ltd. .... Defendant
And
M/s Sheetal Sagar Buliders and Devlopers
Pvt. Ltd. .... Respondents
Mr. Aatir Saiyed i/b Jhangiani Narula and Associate, for Applicant.
Adv. F. Bhadha for proposed Respondent.
Mr. Sudan Patil i/b Prashant G. Karande, for Defendant.
CORAM : N. J. JAMADAR, J.
DATED : 24th JANUARY, 2020 P.C. :
1. This Chamber Summons is taken out by Inderlok Infra Agro Pvt. Ltd., a Company registered under the Companies Act, 1956, in the capacity of the assignee of the plaintiff, for the following reliefs:-
(a) Delay in taking out present chamber summons be condoned and abatement of suit be set 1/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc aside and suit be directed to be heard on merits;
(b) That applicants be permitted to be impleaded as the party plaintiff in place and instead of the original plaintiff (since deceased) and cause title of the plaint and other allied and inerlocutory proceedings be suitably permitted to be amended;
(c) That the respondents be permitted to be joined as party defendant No. 2 and the plaint be permitted to be amended as per the Schedule of amendments annexed at Annexure-I to the chamber summons.
2. The applicant claims that the original plaintiff Inderlok Infra Agro Pvt. Ltd. had executed Deed of Assignment in favour of the applicant on 1st April 2005 and assigned the right to obtain enforcement of the development agreement executed by defendant in favour of the original plaintiff on 11th September 1991.
3. The original plaintiff had instituted the suit for specific performance of the agreement dated 11 th September 1991 and in the alternative for the refund of amount of Rs.25,67,145 alongwith further interest and the amount claimed in the particulars of the claim. The original plaintiff died on 16th July 2007. The suit remained on dormant 2/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc file from 1st July 2007 and thus the assignee was not aware of the pendency of the suit. On 20th June 2017, the suit came to be listed before the Court and it was dismissed for want of prosecution.
4. The applicant claims that in third week of March 2018, the Director of the applicant came to know about the dismissal of the suit for want of prosecution, when grievances were received from several members of the defendant/society that development was being carried out breach of agreement. Thus, on inquiry, it transpired that the suit was dismissed on 20th June 2017 and in the intervening period the defendant/ society had executed certain development agreements in favour of the respondents, despite the lis pendens having been registered and those agreements being illegal, void and unenforceable in the face of subsisting agreement for development dated 11 th September 1991, the rights under which were duly assigned in favour of the assignee.
Hence the applicant has taken out this Chamber Summons for condoning the delay in setting aside abatement of the suit, permitting the applicant to prosecute the suit and implead the respondent as a party defendant No. 2 and further permit plaintiff to amend the plaint so as to incorporate aforesaid facts and seek reliefs against the 3/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc defendants.
5. Defendant has resisted the application by filing an affidavit in reply. The prayers of the applicant are stated to be misconceived. The application suffers from both inordinate and unexplained delay. There is no justifiable reason for condonation of delay of more than 12 years in seeking setting aside the abatement. The very claim of deceased- plaintiff under the agreement dated 11 th September 1991 has been found to be untenable by the authorities of MHADA. During the intervening period, the respondents herein have substantially implemented the redevelopment scheme. Two buildings of more than 19 floors for the benefit of 221 members of the defendant/ society have been already erected. The Municipal corporation of Greater Bombay has also issued occupation certification. Construction of new building for rest of 41 members is also under progress. In these circumstances, the belated application on the strength of the alleged deed of assignment doesn't deserve to be entertained.
6. I have heard the learned counsel for the applicant and the learned counsel for the defendant at some length. An endeavor was 4/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc made on behalf of the applicant to draw home the point that since the suit was never listed before the Court, after the year 2007 till it came to be dismissed for want of prosecution on 20 th June 2017, the assignee had no occasion to notice the pendency of the suit. The applicant company is a family owned company formed by the deceased plaintiff and his family members namely Prabha Sharma, Rakesh Sharma, Renu Sharma, Raajeev Sharma, being the promoters, share holders and Directors thereof. In fact, after the demise of the original plaintiff, the legal representatives of the plaintiff had initiated steps to get themselves impleaded in various proceedings, which were instituted by or against deceased plaintiff. However, since the instant suit never appeared on board, from the date of demise of deceased plaintiff, the assignee couldn't take requisite steps to prosecute the suit.
7. The learned counsel for the applicants urged that Court is expected to take a justice orientated approach. Procedure being a hand maid of justice cannot be allowed to score a march over substantive justice. Court should thus take a liberal view in considering the application for condonation of delay and setting aside abatement, and allow the applicant to prosecute the suit.
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This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc
8. In order to lend support to the aforesaid submissions, the learned counsel for the applicant placed reliance on the judgment in the case of Mahila Ramkali Devi and Others Vs Nadram (Dead) through Legal Representatives and Others [ 2015 ]13 Supreme Court Cases 132, wherein it was observed that "It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost."
9. It is trite that an application for setting aside abatement is required to be construed liberally. The principles which govern the application for condonation of delay, under section 5 of the Limitation Act, generally govern an application for condonation of delay in setting aside abatement and for bringing the legal representatives on record. However, the facts of the instant case are of a totally distinct nature.
10. Evidently , the assignment of interest of deceased plaintiff in 6/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc favour of the applicant, a juristic entity, had occurred before the death of the original plaintiff. The provisions contained in Rule 3 of Order 22, thus do not govern the fact situation presented by the instant case. Conversely, the provisions contained in Rule 10 of Order 22, would govern the situation at hand. In a case governed by the provisions contained in Rule 10 of Order 22, the question of abatement doesn't arise. The provisions contained in Order 22 Rules 3 and 4 and Order 22 Rule 10 operate in different spheres.
11. A profitable reference in this context can be made to a Judgment of the Supreme Court in a case of Dhurandhar Prasad Singh Vs Jay Prakash University and Others, wherein the distinctive nature of the provisions contained in Rule 10 of Order 22, from the preceding Rules therein, was postulated. It was, inter-alia, observed that "the legislature while enacting rules 3,4 and 10 has made a clear cut distinction. In cases covered by rules 3 and 4, if right to sue survives and no application for bringing the legal representatives of a deceased party is filed within the time prescribed, there is automatic abatement of the suit and procedure has been prescribed for setting aside abatement under Rule 9 on the grounds postulated therein. In cases covered by rule 10, the legislature has not prescribed any such procedure in the event of failure to apply for leave of the Court to continue the proceedings by or against the person upon 7/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc whom the interest had devolved during the pendency of the suit which shows that legislature was conscious of this eventuality and yet has not prescribed that failure would entail dismissal of the suit as it was intended that the proceeding would continue by or against the original party although he ceased to have any interest in the subject of dispute in the event of failure to apply for leave to continue by or against the person upon whom the interest has devolved for bringing on the record."
(emphasis supplied).
12. It was further observed that:-
" Under Rule 10 of Order 22, when there has been a devolution of interest during pendency of the suit, the suit may,by leave of the court, be continued by or against person upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject matter of the litigation by an assignment or creation or devolution of interest pendente lite or suiter or any other person interested to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risks that the suit may not be properly conducted by the plaintiff on record and yet, as pointed out by judicial Committe in Motilal Vs. Karrabuldin he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary."
(emphasis supplied).
13. The aforesaid pronouncement was followed by Supreme Court in the case of Jaskirat Datwani Vs. Vidyavati and otheres (AIR 8/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc 2002 Supreme Court 2180 wherein it was enunciated that :-
" It has been held by this Court in the case of Dhurandhar Prasad Singh Vs Jay Prakash University and Others, reported in JT 2001 (5) SC 578, that Order 22, Rule 10 provides for cases of assignment, creation and devolution of interest during the pendency of a suit. It is held that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of suit is devolved upon another during its pendency. It is held that such a suit may be continued with the leave of the Court by or against the person upon whom such interest has devolved. But, if no such step is taken, the suit may be continued with the original party and the person upon whom the interest has devolved will be bound by the decree. Thus the Appellant would continue to be bound by the decree or order which has been passed in the suit, particularly when she had knowledge of the proceedings."
14. In view of the aforesaid legal position, the assignee was not enjoined to get himself impleaded as party to the suit pursuant to assignment of rights under agreement dated 11 th September 1991 by deed of assignment of 1st April 2005. However, by not choosing to get itself impleaded as a party to the suit the applicant had taken risk to continue with the suit at the instance of deceased-plaintiff, post assignment.
15. The original plaintiff died on 16 th July 2007. After expiry of 9/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc statutory period of 90 days, the suit stood abated, as the legal representatives of the deceased-plaintiff were not brought on record. It is well recognised that a formal order of abatement is not necessary and the abatement occurs by force of law. The question which thus arise for consideration is whether the abatement of the suit for not bringing the legal representatives of the deceased-plaintiff on record impairs right of assignee to get itself impleaded as a party post abatement of the suit?
16. For an answer to aforesaid question, it may be necessary to consider the provisions contained in section 146 and Order 22 Rule 10 of the Code. Section 146 read as follows "Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him."
Order 22 Rule 10 "In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved."
17. The language of Section 146 of the Code appears to be 10/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc more expansive than that of the provisions contained in Order 22 Rule 10 of the Code. It provides a general enabling clause whereby any proceeding may be taken or the application may be made by or against any person claiming under a party by or against whom such proceeding could have been taken or application made. Rule 10 of Order 22, on the other hand, covers a case of assignment, creation or devolution of any interest during the pendency of the suit. It provides that the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. Both, Section 146 and Rule 10 of Order 22, envisage the grant of leave by the Court.
18. On a plain reading of Rule 10, however, it becomes clear that Rule 10 would govern a situation where the suit is still alive. Where a suit is dismissed for want of prosecution or on account of abatement,can rule 10 be still resorted to, is the question which falls for consideration.
19. A Full Bench of Kerala High Court in the case of Goutami Devi Sitamony Vs. Madhavan Sivrajan (AIR 1977 (Ker) 83) , considered the aforesaid question in a different fact situation. The Kerala High 11/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc Court has framed the following question for its determination.
"The question for decision in this appeal is whether the assignee from an appellant could seek to get impleaded in the appeal under Order 22, Rule 10, Civil P.C. after the death of the appellant and after the period within which the appeal would abate under Rule 3(2) of Order XXII by reason for the failure to implead legal representatives of the deceased appellant."
20. After adverting to the various pronouncements of different High Courts, the Full Bench of Kerala High Court, answered the question in the following words:
"Rule 10 begins with the words "in other cases".
The reference is to cases other than those mentioned in Rules 2, 3, 4, 7 and 8 of Order XXII of the Civil P. C, as observed in Baijnath v. Mt, Tunkowati, AIR 1962 Pat 285. The provision, as we have said earlier, enables only continuance and that by leave of the court. There would be no scope for continuance where by reason of the operation of Rule 3 or Rule 4 as the case may be, there is abatement and consequently termination of the proceedings. In such a situation there is no scope for the assignee to make application under Order XXII, Rule 10, Civil P. C. In other words it means that no motion will succeed under Rule 10 when once there is abatement of the suit as against the party as whose assignee motion is made under Order XXII, Rule 10."
21. Even otherwise, the power vested in the Court under section 146 of the Code to permit a party to prosecute a suit, in the capacity of 12/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc the representative, is required to be exercised judicially. In the facts of the instant case, there are two impediments which the applicant is required to surmount. One, the applicant claims that the company is family owned company and thus the Promoters and Directors of the applicant, being the legal heirs of the deceased-plaintiff, cannot feign ignorance about the death of deceased-plaintiff. Second, from the own showing of the applicant, the pendency of the suit No. 1315 of 2000, was adverted to in the very deed of assignment, under which the applicant claims assignment of right to seek enforcement. Clause 3 of the deed of assignment makes an express reference to the suit. It reads as under :-
"The said agreement and power of attorney are valid, subsisting, binding and have not been legally terminated and/or cancelled and/or withdrawn by the said society or otherwise. However, the assignor has filed a suit for Specific Performance being suit No. 1315 of 2000 which is pending the High Court at Mumbai."
22. The fact that the applicant had knowledge of the pendency of the suit can thus hardly be disputed. In the circumstances, applicant can be said to have undertaken the risk of consequences which ensued on account of continuation of the suit by the original plaintiff, post 13/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc assignment.
23. It is not a case of mere delay. The delay of more than 12 years is both inordinate and unexplained. To add to this, the developments, in the intervening period, in the nature of execution of development agreements by defendant/ society in favour of the respondent on 8th July 2001, 21st October 2004 and 18th November 2008, as claimed by the applicant in the affidavit in support of the Chamber Summons, are required to be taken into account. A permission to prosecute the suit for specific performance of an agreement for development executed on 11 th September 1991, at this stage, would materially impair the rights of multiple parties, including the respondents to the Chamber Summons and members of defendant/ society who have been allegedly allotted tenements under the redevelopment scheme. These circumstances, dissuade this Court from exercising discretion in favour of the applicant, even if it is held that the abatement of the suit doesn't preclude the applicant from getting himself impleaded as a party to the suit on the strength of deed of assignment.
24. For the forgoing reasons, chamber summons deserves to be 14/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 13/02/2020 3-chs-715-2018.doc dismissed. Hence the following order.
25. Chamber summons stands dismissed.
(N. J. JAMADAR, J.) 15/15 ::: Uploaded on - 11/02/2020 ::: Downloaded on - 11/06/2020 07:09:03 :::