Gujarat High Court
Friends Co-Operative Housing Society ... vs Sarang Builders on 19 June, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/4931/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4931 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
FRIENDS CO-OPERATIVE HOUSING SOCIETY LIMITED
Versus
SARANG BUILDERS
==========================================================
Appearance:
DELETED(20) for the Petitioner(s) No. 3
MR SALIL M THAKORE(5821) for the Petitioner(s) No. 1,2
MR. PARTHIV SHAH for the Respondent(s) No. 1,2
==========================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 19/06/2020
CAV JUDGMENT
1. Rule. Mr. Parthiv B. Shah, learned advocate waives service of notice of rule on behalf of the respondents.
Page 1 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT2. The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of the order dated 30.11.2018 passed below Exhibit-54 in Special Civil Suit No. 289 of 2006, by virtue of which, the request of the petitioner to submit the written statement came to be rejected.
3. The background of facts in the present petition is that the premise of petitioner no. 1, a Hall in the name of Alkapuri Club needed renovation. As a result of this, for that work, a construction agreement came to be executed on 10.05.2004. The said work of renovation has generated grievance amongst the parties to the proceedings, which has resulted into filing of suit being Special Civil Suit No. 289 of 2006, before the civil court, at Vadodara whereby the plaintiff to the suit has prayed for a decree of Rs.12 lakhs with interest which has remained unpaid according to the plaintiff.
3.1 The petitioner has further asserted that upon receipt of the summons, they preferred simultaneous application, one for the purpose of granting time to file written statement at Page 2 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT Exhibit-14 and another application below Exhibit- 15 for referring the dispute to arbitration in view of Section 8 of the Arbitration and Conciliation Act, 1996. According to the petitioners, Exhibit-14 application came to be rejected. As a result of which, the petitioners were required to submit another application, at Exhibit-54 for permitting the petitioner to submit their written statement. However, the trial court was pleased to dismiss the said application at Exhibit-54 vide order dated 30.11.2018 mainly on the ground that the suit is at argument stage and this application has been submitted after a pretty long period and having found no justifiable reason or explanation for accepting the request, the court below was pleased to dismiss the application Exhibit-54, which is made the subject matter of present petition by invoking extra ordinary equitable jurisdiction of this Court.
4. This petition with the consent of both the learned advocates was taken up for hearing and after hearing the learned advocates at length, the matter was kept for orders, which is being disposed of by the present order.
5. Mr. Salil M. Thakore, learned advocate Page 3 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT appearing for the petitioners has vehemently contended that there is no undue delay on the part of the petitioners to submit this request before the Court since, now application under Section 8 of the Act came to be rejected. It has been contended that in between settlement talks were going on, as a result of this, on bona fide belief, the written statement could not be submitted. It has been further contended that no doubt, time to submit was granted by the trial court at Exhibit-14, but since application under Section 8 of the Act was under consideration, no reply could be filed. According to Mr. Thakore, there is a strong prima facie case in favour of the petitioners. As a result of which, instead of adopting technical approach to the issue, the learned trial court ought to have considered the request.
5.1. Mr. Thakore has further submitted that during the passage of time, there was some grievance with regard to non-handling of matter by the learned advocate therefore, substantial time went on. To substantiate this contention, learned advocate has relied upon the decision delivered by the Apex Court reported in 2006(1) SCC 46 and thereby has requested the Court to allow the petition by granting the relief as prayed for. It has further been submitted that Page 4 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT few circumstances about delay should not be allowed to come in the way of the petitioners to get the legitimate relief from the Court. A further decision has also been brought to the notice of this Court reported in ILR 2002 Karnataka 260 and has submitted that normally written statement deserves to be allowed to be submitted. By referring to this, learned advocate Mr. Thakore has reiterated to allow the petition. No other submissions have been made.
6. As against this, Mr. Parthiv Shah, learned advocate appearing for the contesting respondent in the present proceedings has vehemently contended that this is nothing but a glaring example of misusing leniency of the Court. A gross delay may not always be allowed to be condoned in a routine manner and that being the position propounded by series of decisions, this long delay has rightly not been considered by the court below and has rightly rejected.
6.1. Learned advocate Mr. Parthiv Shah has further submitted that from the record, it clearly appears that for more than pretty long period, the petitioners have dribbled the litigation to avoid huge liability and as such, it is their self-inviting trouble for which no Page 5 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT equity be shown to them. This conduct itself is sufficient enough to hold that there is no error committed by the court below.
6.2 Learned advocate Mr. Shah has further requested that the court below has exercised its discretion vested in law and has passed the order after proper scrutiny of the record and after minutely examining the conduct, the reason which has been assigned is well supported by the proceedings. As a result of this, there is no perversity of any nature which may permit the petitioners to invoke extra ordinary jurisdiction. It has been further submitted that law is well settled that if the order is passed well within the bounds of authority and the same is passed after due consideration of the circumstance, then, ordinarily in absence of any perversity, the view taken by the court below may not be substituted. That being the position, the petition being meritless, the same be dismissed with costs.
6.3 Learned advocate Mr. Shah has further contended before this Court that here is the case in which long back, issues have been framed, the plaintiff has already led the evidence way back on 20.07.2018 and a specific notice was issued by Page 6 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT passing the order on 06.09.2018 and though served specifically, the present petitioners went on applying for adjournment before the court below. Therefore, when the court below found that there is a limit of dragging the issue, the request has rightly been rejected and at least according to Mr. Shah, this is not a fit case in which the petitioners cannot seek equity from the Court. Hence, a request is made to dismiss the petition. Mr. Shah, for the purpose of strengthening his submission has drawn attention to various documents attached to the petition and thereby after referring to those documents, a point is made out that this is nothing but dragging of the matter to avoid litigation and the liability and as such, for such kind of conduct, no sympathy be shown by the Court.
7. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it appears that prima facie there is more than enough time consumed by the petitioners to make a request for submission of the written statement. It is not that on account of any negligence on the part of the advocate only, or on account of ignorance of proceedings this has resulted, but it is a conscious step visible by the court from the record that at convenient point of time only the Page 7 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT petitioners have made grievance or requested. From the overall record, it appears that the petitioners have remained silent and conveniently waited for appropriate time and there is no remote explanation found sufficient enough to ignore such inordinate delay which has caused in making the request by the petitioners.
7.1. It further appears that the petitioners were conscious about their obligation to file written statement in the proceedings and as such Exhibit-14 application was also submitted only with a view to take time but with a view to wait till the decision of application under Section 8 of the Act be taken and as such it is not correct to contend that the petitioners were unaware about the proceedings. The explanation is not possible to be digested by the Court. Further, from the record it clearly transpires that even after rejection of application under Section 8 of the Act, for a pretty long period for about ten months also, no such attempt is made to submit the written statement. From the record and the application which has been submitted on the record of the present case, it appears that there is no convincing and satisfactory explanation of any nature is reflecting which would permit the Court to show some sympathy or equity to the petitioners.
Page 8 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT7.2. The record has clearly revealed that application under Section 8 of the Act which was submitted has already been disposed of prior to ten months i.e., on 08.01.2018 and this application has been given only on 30.11.2018 and this is not suddenly it has been filed much prior thereto and in the year 2006 also application Exhibit-14 was granted but then conveniently waited and dragged on the issue and as such, when their application does not contain any proper explanation, cogent enough, the Court has no option but to reject as rightly decided by the trial Judge.
7.3. It further appears from the record that even after that also when the case was put up for arguments, though notice was served, the petitioners have chosen not to co-operate the proceedings and this application has been submitted after two months. So in nutshell, in a proceedings of 2006 for recovery of Rs.12 lakhs after consuming more than enough time, the petitioner have come out with a request now to permit written statement. This conduct is not permitting the Court to exercise extra ordinary jurisdiction. Page 87 is the application which was well within the knowledge of the petitioners Page 9 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT and further even a closing purshis is also reflecting on page 89 indicating that the evidence of the original plaintiff is already over. Hence, this application has been submitted at much belated stage, which has rightly been rejected by the court below.
7.4 Additionally, on perusal of the record and even the submissions of the learned advocate has generated no confidence in considering the request on the premise that there is some bona fide mis-impression about the submission of written statement. On the contrary, the Court is satisfied with the stand of the opponent herein and the order passed by the court below and the discretion vested in law has rightly been exercised.
7.5. Normally, no doubt there was a trend that by payment of costs, the written statement can be permitted to be brought on record even after extended period, but here is a peculiar case in which at a much beyond even extended period, a request is sought to be made, especially where the case has been put up for arguments and the evidence of plaintiff has already been over and if this stage to be considered in consonance with the relevant Page 10 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT statutory provisions i.e., order passed under Section 8 of the Code of Civil Procedure, it appears that there is no justification shown by the petitioners even to adopt such mode by imposing costs for written statement to be produced on record. More than enough opportunities have been given by the court below but the petitioners have not availed the same and have not remained vigilant.
7.6. Recently, the Apex Court while dealing with such kind of issue has taken note of this situation and has clearly opined that inordinate delay, mechanically, without going into the relevant facts whether the respondent had tendered proper satisfactory explanation for delay or not and in the said case, when the High Court was pleased to condone the delay of five years in submission of written statement by awarding costs of Rs.5 lakhs, the same has not been approved by the Apex Court. The said decision is reported in 2018 (6) SCC 639. Hence, considering this recent pronouncement, this Court is of the clear opinion that there is no proper or satisfactory explanation given by the petitioners, which would permit this Court to consider the request. As a result of this, no case is made out by the petitioners to call for any interference.
Page 11 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT8. In addition to this, the Court is also conscious about the fact as to in which situation extra ordinary equitable jurisdiction can be exercised to set at naught the discretion exercised by the court below. There are catena of decisions in which the Apex Court propounded that in absence of any patent illegality or in absence of any perversity, extra ordinary equitable jurisdiction should not be exercised to withheld the discretion to whittle down by the court below. Hence, here is the case in which the Court is of the opinion that no case is made out by the petitioners to dislodge the discretion exercised by the court below.
9. Now, in the background of these facts, the decisions which have been cited by the learned advocate for the petitioners are not of much avail. Hence, when the facts are different, even one additional fact would make a world of difference in applying the precedent. This Court is of the opinion that on the basis of this principle also, the decisions which have been cited by the learned advocate for the petitioners referred to above are not coming to rescue the petitioners. As a result of this, no case is made out by the petitioners to call for any interference. Accordingly, the petition being Page 12 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021 C/SCA/4931/2019 CAV JUDGMENT meritless, the same is dismissed hereby. Rule is discharged. Interim relief if any, stands vacated.
Sd/-
(ASHUTOSH J. SHASTRI, J) PHALGUNI Page 13 of 13 Downloaded on : Mon Feb 22 00:18:13 IST 2021