Pawan Bhiwaniwala vs Hemanta Nahata And Anr

The Court : In view of the good grounds shown, the appeal pertaining to APO No. 138 of 2019 is re-admitted and the connected stay application is restored to the file.

The appeal is taken up for consideration along with the connected matter.

APO No. 138 of 2019 is an appeal from an order dated July 17, 2019. APO No. 162 of 2019 is an appeal from an order dated May 8, 2017.

The suit is for specific performance of an agreement for sale of an immovable property. An initial ex parte order of injunction was issued on April 26, 2017. Such order required the defendants not to deal with the property or create any third party rights in respect thereof. The order dated April 26, 2017 called upon the plaintiff to ensure that the defendants were duly served copies of the plaint and the application on which the ex parte order was passed along with copies of the relevant order within April 28, 2017.

The matter was next taken up by the interlocutory court on May 8, 2017 when the court noticed that an affidavit of service filed by the plaintiff claimed that the first defendant had been forwarded the papers by post and the postal endorsement was that the doors to the relevant premises were locked and due intimation to the addressee had been issued but no one collected the postal article containing the cause papers from the postal authorities. The court recorded the report as to service, took note of the objection of the second defendant that the agreement which was the subject-matter of the suit was not duly stamped and the court impounded the document and sent it for valuation of stamp duty, interest and penalty. The plaintiff says that such exercise has now been completed.

The order of April 26, 2017 was continued by the order dated May 8, 2017. Sometime in October, 2017, the first defendant applied to have the order dated April 26, 2017 as continued by the order dated May 8, 2017 to be vacated. It is such vacating application which stood dismissed by an order of July 17, 2019. Almost by way of an afterthought, the first defendant also preferred an appeal against the order dated May 8, 2017 along with its appeal from the order dismissing its vacating application on July 17, 2019.

Several inconsistent statements have been made on behalf of the first defendant and the case made out on facts appears to be somewhat incongruous. According to the first defendant-appellant, the memorandum of understanding executed in January, 2017 and of which specific performance is sought in the suit, was obtained by the plaintiff by coercion and duress. Indeed, in course of the submission on behalf of the appellant, it is submitted that the signature of the appellant was obtained at gunpoint on several documents.

Though an application was filed late in October, 2017 for vacating the order dated May 8, 2017, it appears that the first defendant had entered appearance in the suit upon vakalatnama being filed on behalf of the first defendant on or about April 27, 2017. Counsel for the appellant does not question the appellant's signature on the relevant document by which Advocate entered appearance in the suit on behalf of the appellant, but the submission is that the appellant's signature on such document was also obtained by coercion and intimidation.

However, in the vacating application that the appellant carried to the interlocutory court at a belated stage in October, 2017, there is no assertion of the first defendant having had entered appearance through lawyers on April 27, 2017 or of any document in such regard being executed by the appellant at gunpoint or the like. Quite clearly, there are glaring inconsistencies in the appellant's version before the trial court and the trial court was not impressed with either the story that the appellant presented or the defence that the appellant purported to make out.

In any event, it was evident that the appellant was aware, or had been made aware, of the institution of the suit and the initial order of April 26, 2017 having been passed thereon within reasonable time of such order being passed, but the appellant was either not available at the appellant's usual address or the appellant was aware of the institution of the suit but did not take any immediate steps to defend the suit or to ask for vacating the order within any reasonable time.

Indeed, the appeal against the order dated May 8, 2017, as aforesaid, also appears to be an afterthought after the appellant's vacating application stood dismissed by an order of July 17, 2019.

No ground is made out for interfering with either order impugned. Indeed, in view of the inordinate delay on the part of the appellant in seeking to assail the order dated May 8, 2017, the application for condonation of delay is dismissed. For the other reasons indicated above, the appeal from the order dated July 17, 2019 is also dismissed.

Accordingly, APO No. 162 of 2019 and APO No. 138 of 2019 are dismissed. GA No. 2460 of 2019, GA No. 2580 of 2019, GA No. 2022 of 2019 and GA No.2024 of 2019 are disposed of.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.