Madras High Court
Vira Properties (Madras) Pvt Limited vs Baba Enterprises on 14 March, 2012
Author: C.Nagappan
Bench: C.Nagappan, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14-3-2012 C O R A M THE HONOURABLE MR.JUSTICE C.NAGAPPAN and THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN ORIGINAL SIDE APPEAL No.442 of 2011 and M.P.No.1 of 2011 and APPLICATION No.880 of 2012 in A.No.5028 of 2011 in Tr.C.S.No.998 of 2008 1.Vira Properties (Madras) Pvt Limited Registered Office at: No.781-785, Anna Salai Chennai 600 002 Rep. by its Executive Director M.R.Pratap 2.Rayala Corporation Pvt Limited Registered Office at: No.144/7, Old Mahabalipuram Road Kottivakkam, Chennai 600 041, Rep. by its Managing Director Ranjit Pratap ..Appellants vs 1.Baba Enterprises No.781, Mount Road Chennai 600 002 Rep. by its Partner Senthamilselvan 2.Mohan Breweries and Distilleries Ltd., Registered Office at: No.112, M.M. Nagar, Valasarawakkam, Chennai 600 087, Rep. by its Managing Director N.Nandagopal ..Respondents Original Side Appeal under Order XXXVI Rule 1 of O.S. Rules read with Clause 15 of the Letters Patent against the Order of this Court dated 21.11.2011 passed in A.No.5028 of 2011 in Tr.C.S.No.998 of 2008. A.No.880 of 2012 filed under Order XIV Rule 8 of O.S. Rules read with Section 148 C.P.C. praying for extension of time to obtain an order of regularization under Clause 3 of the Consent Decree dated 19.4.2011, as already ordered by this Court upto 17.1.2012 by order dated 21.11.2011 made in A.No.5028/2011, by a further period of three months from 17.1.2012 upto 17.4.2012. For Appellants : Mr.P.S.Raman Senior Counsel for Mr.Satish Parasaran For Respondents : R1 - given up by order of Court dated 11.1.2012 Mr.Srinath Sridevan for R2 J U D G M E N T
C.NAGAPPAN, J.
This appeal is preferred against the Order dated 21.11.2011 passed in Application No.5028 of 2011 in Tr.C.S.No.998 of 2008 on the file of this Court. Respondents 1 and 2 in the application are the appellants herein.
2.The case of the second respondent herein/applicant is that numerous suits were pending on the file of this Court between the parties herein and they settled the disputes by entering into a compromise on agreed terms and conditions and under the compromise decree dated 19.04.2011 in C.S.No.998 of 2008, it was agreed that a basic sum of Rs.41,00,00,000/- would be paid by the defendants to the plaintiff in the suit and it was further agreed that the appellants herein would pay the second respondent herein an additional sum of Rs.9,00,00,000/-, upon an order of regularisation for the eighth and ninth floors of the subject building from Chennai Metropolitan Development Authority on or before 17.10.2011 and though the second respondent herein diligently submitted the documents to obtain the order of regularisation, due to the Tamil Nadu State Assembly Elections, all such applications were not processed in a timely manner and the approval is in its final stage and the regularisation order shall be passed within a short time and hence, the time granted to obtain the order of regularisation be extended by a further period of three months from 17.10.2011 upto 17.01.2012.
3.No counter was filed in the application by the appellants herein/respondents 1 and 2 and after hearing both sides, the learned single Judge held that the provisions of Section 148 of the Code of Civil Procedure cannot be a bar to exercise the inherent jurisdiction to do substantial justice between the parties and in the interest of justice, extended the time as prayed for and consequently, ordered the application as prayed for and the said order is under challenge in this appeal.
4.The point for determination in the appeal is as to whether the second respondent herein is entitled for extension of time as granted to it so as to obtain an order of regularisation under Clause 3 of the consent decree.
5.The relevant part of the consent decree dated 19.4.2011, reads as under:
"2. That the plaintiff herein agrees that in addition to the consideration of Rs.41,00,00,000/- (Rupees forty one crores only) paid by them and as decreed in C.S.No.732 of 2001 and the plaintiff shall pay an additional consideration of Rs.9,00,00,000/- (Rupees nine crores only) to the defendant herein.
3. That upon the defendant obtaining an order of regularization from the Chennai Metropolitan Development Authority for the 8th and 9th floor in Rayala Towers 11 & 111 of Rayala Towers on or before 17/10/2011 in terms of G.O.Ms.No.76, Housing and Urban Development (UDI) dated 27/02/1999 (hereinafter referred to as the Regularization Scheme).
4. That in the event the defendant does not obtain the said regularization within time as mentioned in clause (3) supra the plaintiff herein, shall not be liable to pay the additional consideration of Rs.9,00,00,000/- (Rupees nine crores only) and right of the defendant to receive the same stands abated/extinguished and claim of the defendant for the said sum under this decree stands fully discharged.
5. That however in such an event, the plaintiff shall pay sum of Rs.54,67,324/- (Rupees fifty four lakhs sixty seven thousand three hundred and twenty four only) which has been actually expended by the defendant in applying for regularizing the additional construction subject to the same being duly supported by receipts issued by the Chennai Metropolitan Development Authority and also subject to handing over all records drawings and relevant papers in connection therewith to the plaintiff herein.
6. That the plaintiff herein shall be liable to pay the aforementioned sum of Rs.9,00,00,000/- (Rupees nine crores only) forthwith to the defendant within seven (7) days of the aforesaid order of regularization.
7. That if the plaintiff defaults in making such payment within such time the defendant shall be entitled to execute this clause as a decree for money against the plaintiff herein.
8. That the parties hereto agree to bear their respective costs."
6.Mr. P.S. Raman, learned Senior Counsel appearing for the appellants, made the following submissions:
(i) Clause 3 of the Consent Decree constitutes a commercial understanding between the parties, arrived at after due negotiations and after taking into account various factors and hence, constitute an essential term of the contract and it is not capable of being extended or modified or altered by the Court without express consent of the parties. The condition for obtaining an order of regularisation from C.M.D.A. is a material commercial term and not just a ministerial act such as remittance of court fee or payment of costs and hence, time cannot be extended. Granting extension of time in such commercial transaction, more so in a consent decree, would tantamount to re-writing the contract, which is impermissible in law.
(ii) Inasmuch as parties agreed to a date in a negotiated settlement and no force majeure clause has been consciously inserted, time was clearly the essence of the contract and such time could not be extended invoking the provision under Section 148 or 151 C.P.C. The cut off date assumes certain sanctity and either party cannot plead or complain inequity or injustice in not honouring the cut-off date.
(iii) The stipulation and condition in the consent decree confer a benefit to the second respondent and any default in it would not amount to forfeiture or penalty and only deprive the additional benefit.
7.The learned Senior Counsel cited the following decisions on this issue.
(i) A learned Single Judge of this Court in the decision in MOORIANTHAKATH AMMO V. MATATHANKANDY VATTAKKAYIL POKKAN (52 L.W. 336), held that when there is a decree based on an agreement between the parties, an essential term which fixes a definite period for the performance of an obligation as an essential part of the contract, cannot be changed by the Court on the application of one only of the parties but the consent of both the parties would be necessary to vary the terms of the decree and if the time stipulated is an essential part of the terms of the contract embodied in the decree and not a mere threat of a penal nature, there is no power in the court to make a new contract for the parties fixing some other time than that which has been stipulated.
(ii) The said decision was followed in a subsequent decision rendered by the learned single Judge of this Court in BETHANNA NADAR V. M. SRINIVASAN AND OTHERS (1962 MLJR 418), in which it was held that the provision in the compromise decree, which fixed a definite period for the performance of an obligation as an essential part of the contract, such as deposit of a sum of money by one party as a condition of his recovering possession of the property and an extension of time, cannot be granted by the court on the application of one only of the parties.
(iii) In the decision in MAHANTH RAM DAS V. GANGA DAS (AIR 1961 SC 882), the Supreme Court held that procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, and they do not however completely estop a court from taking note of events and circumstances, which happen within the time fixed and the provisions under sections 148 and 149 C.P.C. provide ample power to the Court to do justice to a litigant for whom it entertained considerable sympathy, and granted extension of time for payment of the deficit court fee.
(iv) The Supreme Court in the decision in SMT. PERIYAKKAL AND OTHERS V. SMT. DAKSHYANI (1983 (2) SCC 127), held that the parties entered into a compromise and invited the Court to make an order in terms of the compromise, which the court did and the time for deposit stipulated by the parties became the time allowed by the Court and this gave the Court the jurisdiction to extend time in appropriate cases and of course, time would not be extended ordinarily, nor for the mere asking and it would be granted in rare cases to prevent manifest injustice and it is true that the Court would not rewrite a contract between the parties, but the Court would relieve against a forfeiture clause and where the contract of the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would surely not stand curtailed.
(v) The Supreme Court in the decision in SMT. SOVA RAY AND ANOTHER V. GOSTHA GOPAL DEY AND OTHERS ((1988) 2 SCC 134), held that under the agreement the ninth defendant therein was subjected to the condition that if he had to take advantage of the bargain he was under a duty to pay the stipulated amount by the time mentioned in the agreement and on failure to do so within time, he was to be deprived of the special benefit and such a clause cannot be considered to be a penalty clause and it merely deprived the ninth defendant of a special advantage in case of default and on facts, held that the ninth defendant cannot be permitted to make a grossly belated payment and justice was manifestly in favour of the plaintiffs and further the Clause in question was not a forfeiture Clause.
(vi) In the decision in GUPTA STEEL INDUSTRIES V. JOLLY STEEL INDUSTRIES PVT. LTD. AND ANOTHER ((1996) 11 SCC 678), the Supreme Court observed that as a principle of law, the High Court was obviously incorrect in interfering with and modifying the consent decree unless parties agree for the same.
(vii) In the decision in THE BLIND RELIEF ASSOCIATION & OTHERS V. THE STATE OF MAHARASHTRA & OTHERS (2000(2) Bom CR 262), the learned single Judge of the Bombay High Court held that the principle is that in a normal case, the Court will not alter the terms of consent decree without the consent of the parties, but in abnormal circumstances, where it appears to the Court that without the interference of the Court, a serious miscarriage of justice cannot be obviated, then certainly the Court can exercise its inherent power under Section 151 C.P.C. to step in and on the facts of the case held that the fourth defendant did not commit any default in making the payment to attract any of the default clauses in the consent decree and he is entitled to the relief sought for in the Chamber Summons.
(viii) In the decision in D.V. PAUL V. MANISHA LALWANI ((2010) 8 SCC 546), the Supreme Court held that there is no reason to draw a distinction depending on whether the prayer for extension is in regard to a conditional order or a conditional decree and the heart of the matter is that where the Court has the power to fix time and that power is not regulated by any statutory limits, it has in appropriate cases the power to extend the time fixed by it and on the facts of the case, it was shown that there was no deliberate inaction on the part of the appellant in depositing the amount and hence, he has made out a case for extension of time.
(ix) The Supreme Court in the latest decision in CITADEL FINE PHARMACEUTICALS V. RAMANIYAM REAL ESTATES P. LTD. & ANOTHER (2011 (6) CTC 112), held that the stipulation as to the time being the essence of the contract was specifically mentioned in Clause 10 of the agreement and the express terms of the contract, the commercial nature of the transaction and the surrounding circumstances, make it clear that the parties intended time was to be the essence of the contract and the suppression of a material fact would dis-entitle the plaintiff-purchaser from getting discretionary relief of specific performance by Court.
8.Per contra, Mr.Srinath Sridevan, learned Counsel appearing for the second respondent, submits that the extension of time for Clause 3 of the consent decree would depend upon whether time is of the essence and in order to determine as to whether the time is of the essence, it has to be seen as to whether the failure to fulfill the obligation within the time limit would result in any irreversible change of circumstances for the affected party and in the present case, there is no irreversible change in circumstances and hence time is not the essence of the compromise decree.
9.It is his further submission that the duty to obtain regularization order in a time bound fashion has been linked to a governmental action, over which the second respondent has no say or control and the second respondent has not committed any breach so as to disentitle it to the benefit of Rs.9 crores and the learned Single Judge has rightly exercised the power by granting extension of time as sought for.
10.In support of his submission, the learned Counsel relied on the following decisions:
(i) In the decisions of this Court in S.RAVINDRA REDDY V. K.VEERABHADRACHARI ((1999) 2 MLJ 251) and in SEETHAI AMMAL AND FIVE OTHERS V. V.C.VAIKUNDAM AND FIVE OTHERS (2002-2 LW 506), the point for determination that arose for consideration, was whether the time granted by the trial Court for deposit of the cost to comply with a conditional order to set aside the ex-parte decree, can be extended and the learned Single Judge of this Court in both the decisions, held that the Court has got power to extend the time under Section 148 of the Code of Civil Procedure.
(ii) In the subsequent decision in PADMINI AMMAL V. INDIAN BANK, RAMPAKKAM BRANCH, ((2002) 2 MLJ 756), learned Single Judge of this Court held that the Court has got power to extend the time for payment of the entire amount by the Judgment Debtor in the execution proceedings.
(iii) In the decision in GOWRI AMMAL V. MURUGAN AND OTHERS ((2006) 2 MLJ 729), the question that was referred to the Division Bench of this Court, was whether the Court has jurisdiction to entertain a petition for extension of time filed under Section 148 read with 151 CPC, even after the dismissal of the earlier petition for non-compliance of the conditional order within the time stipulated. The Division Bench after referring to various decisions, held that a conjoint reading of Sections 148, 149 and 151 CPC would make it clear that the Court has power to extend the time beyond the stipulated period, when sufficient cause exists.
(iv) Subsequently, another Division Bench of this Court in the decision in CANARA BANK, ASSET RECOVERY MANAGEMENT BRANCH V. COROMANDEL INDAG PRODUCTS AND OTHERS (MANU/TN/9196/2007), held that the Debt Recovery Tribunal was competent to extend the period for depositing the amount, since on the facts of the case, time was not being the essence of the compromise decree.
11.In addition to the above, learned Counsel for the second respondent also relied on the decision rendered by the learned Single Judge of the Bombay High Court in The Blind Relief Association Case which is cited supra.
12.Now the legal position that emerges from the decisions of the Supreme Court, referred to above, has to be seen. The decision of the Supreme Court in Mahanth Ram Case, was rendered by a Three Judge Bench, which held that in all decrees, except conditional decrees, the Court can grant extension of time under Section 148 CPC. The subsequent decision in Smt.Periyakkal Case, was rendered by a Two Judge Bench of the Supreme Court, which held that in consent decrees, extension of time to comply with the decree would not be granted ordinarily, not for the mere asking, but would be granted in rare cases to prevent manifest injustice. However, the Supreme Court in the said decision, cautioned the exercise of the power of the Court by observing that the Court would not rewrite the contract between the parties, but it would relieve against a forfeiture Clause. The subsequent decision in Smt.Sova Ray Case, came to be rendered by a Two Judge Bench of the Supreme Court which held that in the consent decree, the Clause directing a party to pay a certain sum within the stipulated time, cannot be considered to be a penalty Clause and it merely deprived the party of a special benefit in case of default and the Clause in question was also not a forfeiture Clause. The decision in Gupta Steel Industries Case, was also rendered by a Two Judge Bench of the Supreme Court, in which it was observed as a principle of law that the High Court was incorrect in interfering with and modifying the consent decree unless the parties agree for the same.
13.It is true that the judgment of the Supreme Court in Smt.Periyakkal Case, was not referred to in the decision in Gupta Steel Industries Case. However, it cannot be said that these two decisions are in conflict to each other, since the principle in normal case, is that the Court will not alter the terms of the consent decree without the consent of parties. Thereafter, the recent decision in D.V.Paul Case, was rendered by a Two Judge Bench of the Supreme Court, in which, it is held that there is no reason to draw a distinction depending on whether the prayer for extension is in regard to a conditional order or a conditional decree and the heart of the matter is that where the Court has the power to fix time, it has in appropriate cases, the power to extend the time fixed by it.
14.From the above, it is seen that extension of time to comply with the consent decree, would not be granted ordinarily; but, in rare or appropriate cases, to prevent manifest injustice or to relieve against a forfeiture/penalty Clause, the Court can grant extension of time.
15.In the present appeal, the point for determination is as to whether the second respondent/applicant is entitled to extension of time by three months as sought for?
16.As per the terms of the consent decree, the first appellant herein paid a sum of Rs.41 crores to the second respondent herein in consideration of both the respondents giving up their claims/rights over Towers - II and III of Rayala Towers and it is also on record that out of the sum of Rs.41 crores paid, a sum of Rs.35 crores was being funded by M/s.Kotek Mahindra Bank Limited and in addition to the consideration of Rs.41 crores, the first appellant would pay an additional consideration of Rs.9 crores to the second respondent, conditional upon the second respondent obtaining an order of regularization of the entire 8th and 9th floors in Towers - II and III, from Chennai Metropolitan Development Authority (CMDA) on or before 17.10.2011. Clause 4 of the compromise decree also states that in the event of second respondent not obtaining regularization as above, the first appellant shall not be liable to pay the additional consideration of Rs.9 crores and the right of the second respondent to receive the sum stands abated/extinguished and the claim of the second respondent for the said sum would stand fully discharged. However, it is also recited in the decree, that in the event of second respondent not obtaining regularization on or before 17.10.2011, the first appellant would pay a sum of Rs.54,67,324/- which has been actually expended by the second respondent in applying for regularization of the additional construction, subject to production of receipts issued by CMDA, and handing over of records, drawings and relevant papers. The second respondent failed to get an order of regularization before the time stipulated, namely 17.10.2011, but, however, filed this application seeking for extension of time by three months from 17.10.2011 upto 17.1.2012 on the ground that it submitted the application seeking for regularization to the CMDA and on account of State Assembly Election, the application submitted to the concerned governmental authority was not processed in a timely manner; but, the regularization approval is now in its final stage and the order would be passed within a short time.
17.No counter was filed to the said application. Rejecting the contention of the respondents in the application, stating that no documentary evidence was adduced by the applicant, learned Single Judge observed that uncontroverted facts are not required proved being accepted.
18.The submission of the learned Senior Counsel appearing for the appellants, is that when the application seeking for extension of time came before the Court, they raised a preliminary objection that the application is not maintainable and did not make any submission on merits of the application; but, however, the learned Single Judge rejected their contention on maintainability and allowed the application by observing that no counter was filed to the application.
19.It is the further submission of the learned Senior Counsel appearing for the appellants, that Clause 3 of the consent decree constitutes a commercial understanding between the parties, arrived at after due negotiations and constitutes an essential term of the contract and hence not capable of being extended or modified or altered by the Court without express consent of the parties and merely at the instance of the applicant and in the event of the second respondent/applicant fulfilling its obligation of obtaining an order of regularization from CMDA within the time stipulated, namely 17.10.2011, the appellants are liable to pay an additional consideration of Rs.9 crores and the obligation coupled with the default Clause, is not in the nature of penalty/forfeiture Clause and the default merely deprived the additional benefit.
20.It is the submission of the learned Senior Counsel that the first appellant has itself borrowed a sum of Rs.35 crores from M/s.Kotek Mahindra Bank and is servicing a sum of Rs.43,75,000/- every month towards interest to the Bank without being able to market any portion of Towers - II and III owing to the fact that the said buildings do not have a completion certificate from CMDA and because of the above, no tenant or buyer is willing to enter into any agreement for lease/sale of the superstructure in the property and as a result of the same, the first appellant is losing heavily. Learned Senior Counsel for the appellants also submitted that the first appellant has already paid a sum of Rs.54,67,324/- to the second respondent/applicant, since the order of regularization was not obtained on or before 17.10.2011.
21.Per contra, it is the submission of the learned Counsel for the second respondent/applicant that at the time of entering into the compromise, it was felt that six months would be sufficient to obtain the order of regularization from CMDA and in view of the State Assembly Election and change in the Government, delay has occurred in the process of regularization and in the event of rejection of the application for extension of time, it would result in the appellants herein/respondents in the application, making an unjust enrichment, to which they are not entitled to.
22.In reply, it is contended by the appellants herein that out of the total agreed amount of Rs.41 crores, a sum of Rs.35 crores represented the value of the building in Towers - II and III upto 7th floor and the balance sum of Rs.6 crores reflected the reduced value of 8th and 9th floors in both the Towers, since these two floors were yet to be regularized by CMDA and thus, the sum of Rs.41 crores included the value of Towers - II and III upto 7th floor and also reduced value of its 8th and 9th floors and hence there is no injustice being caused to the second respondent/applicant.
23.It is brought to our notice during the arguments, that there were 19 suits between the parties and on compromise, 17 suits were withdrawn and consent decrees came to be passed in the remaining two suits, one of which is the subject matter herein. The memorandum of compromise was signed by the parties on 19.4.2011, and on the same day, this Court recorded it and passed the decree in terms thereof. There is no doubt that the Clauses of the consent decree constitute a commercial understanding between the parties, arrived at after due negotiations and after taking into account various factors including the State Assembly Election, the outcome thereof, etc. The surrounding circumstances make it clear that the parties to the consent decree intended the time to be the essence of the contract. The failure to fulfill the obligation of obtaining an order of regularization within the stipulated time, namely on or before 17.10.2011, cannot be considered to be a penalty or forfeiture Clause and it merely deprived the second respondent/applicant of an additional benefit of Rs.9 crores. It is also to be borne in mind that the total agreed amount of Rs.41 crores included the full value of the approved seven floors and the reduced value of 8th and 9th floors, which were yet to be regularized and the second respondent/applicant cannot plead any injustice.
24.The contention of the learned Counsel for the second respondent that the obtainment of order of regularization in a time bound fashion has been linked to a governmental action, over which the applicant has no say or control and the delay could not have been within the contemplation of the parties cannot be accepted. Admittedly, the application seeking for regularization of the two floors, was pending before the concerned authority on the date of entering into the compromise. Having that in contemplation, the time of six months was agreed as the stipulated period for obtaining the order of regularization and in the event of not obtaining regularization, the liability of the appellants/respondents to pay a sum of Rs.54,67,324/- being the actual expenses in applying for regularization, to the second respondent herein/applicant is also fixed. Factually also, the second respondent/applicant having failed to obtain the order of regularization within the stipulated time, the appellants herein/respondents have also paid the said amount of Rs.54,67,324/- to the second respondent. In such circumstances, we are of the considered view that the second respondent herein/applicant has not made out a case for extension of time as sought for and the order of the learned Single Judge is liable to be set aside.
25.During the arguments in the appeal, it is brought to our notice that the second respondent herein filed another application in A.No.880 of 2012 in A.No.5028 of 2011, seeking for further extension of time by three months from 17.1.2012 to 17.4.2012. By consent of the Counsel on both sides, we directed the Registry to list that application also before us.
26.In the affidavit filed in support of the said application, the applicant/second respondent herein has stated that the application for regularization had been dismissed by the authority by an erroneous order and the applicant had preferred an appeal to Government under Section 113-A(6) of Tamil Nadu Town and Country Planning Act, 1971, and the same was pending and the applicant thought that the appeal would be disposed of within six months and if the regularization order was obtained by 17.10.2011, the applicant would get a further sum of Rs.9 crores and if not, he would get back its costs and after the new Government came into power, there were innumerable litigations on the issue of regularization and a Monitoring Committee was appointed to decide the matter and the proceedings of the said Committee also have been delayed by litigations before this Court as well as before the Supreme Court and thereby, the process of the appeal of the applicant seeking for regularization, has been delayed and hence further extension of time is sought for.
27.An elaborate counter affidavit has been filed by the respondents 1 and 2/appellants herein stating that the applicant is also guilty of suppression of material facts, since in the affidavit filed by the applicant in A.No.5028/2011, it has stated that the regularization approval was in its final stage and the regularization order would be passed within a short time and that fact weighed with the learned Single Judge for allowing the said application; but, however, to their shock and surprise, the present affidavit and typed-set of papers have been filed in the present application, which reveal that CMDA had rejected the regularization application as early as on 2.6.2010, and the applicant had preferred an appeal before the Government on 7.7.2010 itself, and the said appeal is under examination and the whole process may take some more time, and had this fact been known to the respondents/appellants herein, they would not have entered into such a compromise at all or would have made a suitable alteration in the terms of compromise itself, to take care of the same and the conduct of the applicant would clearly disentitle it from any equitable relief in the form of extension of time to comply with its obligation.
28.We also heard the learned Counsel on both sides on this application.
29.There was rival contention pertaining to the knowledge of the dismissal of the regularization application by CMDA and the pendency of the appeal before the Government at the time of entering into the compromise between the parties. The fact remains that in the affidavit filed in support of the application in A.No.5028/2011, the applicant had stated that regularization approval is now in its final stage and the regularization order would be passed within a short time. In the typed-set filed by the applicant, a copy of the letter dated 12.1.2012, written by the Member Secretary, CMDA, addressed to the applicant/second respondent herein, is found in page No.24. In that communication, it is stated that the process of passing orders on the appeal preferred by the applicant, by the Government may take some more time. It has been concluded in the original side appeal that no case is made out by the applicant for extension of time in A.No.5028/2011. It is also to be borne in mind that there is no power in the Court to make a new contract for the parties fixing some other time than that which has been stipulated and hence the applicant is not entitled for the prayer sought for in A.No.880/2012.
30.In the result, this original side appeal is allowed and the order of the learned Single Judge dated 21.11.2011 in A.No.5028/2011 is set aside and A.No.5028/2011 is dismissed. A.No.880/2012 is also dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
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