Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order pronounced on: February 12, 2014
+ I.A. No.7327/2012 in CS(OS) No.1094/2012
PANNALAL RATHORE & ANR. ..... Plaintiffs
Through Ms.Anjali Manish, Adv.
versus
M/S W.H DEETH (BALLABGARH) & CO. ..... Defendant
Through Mr.L.D. Adlakha, Adv. with Ms.Ripu
Adlakha and Mr.S.B. Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The plaintiffs have filed the suit for specific performance of the
th
written agreement of sale dated 12 June, 2008 against the defendant
company in respect of the property located at premises bearing No.GF-I,
Ground Floor, No.75-76, Manisha Building, Nehru Place, New Delhi-
110019 (hereinafter referred to as the “suit property”) having a total covered
area of 1067 square feet.
2. Along with the suit, the plaintiffs filed an application under Section
151 CPC read with Section 5 of Limitation Act seeking condonation of
delay of 269 days in filing of the suit. Admittedly, the suit was filed in the
rd
Registry on 3 June, 2011 which is within limitation. The Registry raised
th
objections on 17 June, 2011 and the plaintiffs collected the papers from the
Registry in order to clear the defects. The case of the plaintiffs is that since
the defendant proposed for a compromise to the plaintiffs in the suit filed by
the defendant for possession, the delay has happened in refilling of the case.
It appears from the record that the defendant had been taking adjournments
CS(OS) No.1094/2012 Page 1 of 9
in its suit informing the Court about the compromise talks and since the
plaintiff No.1 is resident of Tamil Nadu and the plaintiff No.2 is resident of
USA, it took some time for the proposal of settlement given by the
defendant and in the meanwhile, the delay in refilling has occurred.
3. It is submitted that the said delay is neither wilful nor deliberate and
the same has occurred only due to the above mentioned circumstances.
th
4. By order dated 13 February, 2013, the liberty was sought by the
learned counsel for the plaintiffs from the Court to file a better affidavit in
th
support of his application and the same was filed on 26 May, 2013. The
th
time for reply was sought by the defendant on 25 October, 2013. But it
appears from the record that no reply to the application or affidavit has been
filed by the defendant. In the affidavit, it was reiterated that after collecting
th
the relevant papers from the Registry, the same were filed on 19 April,
2012 with a delay of 269 days in view of the reasons that talks for
compromise were going on between the parties which is also reflected in
th rd st
orders passed on 8 July, 2011, 3 October, 2011 and 1 December, 2011 in
the suit filed by the defendant against the plaintiffs for possession. The talks
of compromise continued till February, 2013 and the matter was even
referred to Mediation Centre. Under these circumstances, the delay has
occurred in re-filing in the suit.
5. No reply to the application has been filed by the defendant despite of
order. The learned counsel for the defendant has orally made his
submissions and raised various technical defects in purchasing the court fee
by the plaintiffs and in the plaint itself and argued that no sufficient grounds
are made in the application for condonation of delay in re-filing.
CS(OS) No.1094/2012 Page 2 of 9
Counsel has also referred to Gautam Associates vs. Food
Corporation of India , 2009 (111) DRJ 744. Relevant paras 26, 27 and 30 of
the said judgment read as under:
“26. In my view, in accordance with the Original Side rules of
this Court, as set out above, the occasion for this Court to consider
condonation of delay in re-filing will arise only in a chamber
appeal, if any, preferred against the order of the Registrar, declining
to register the plaint/petition on the date of first institution. Unless,
such an appeal is preferred, the order of the Registrar declining
registration is final.
nd
27. In the present case, the Registrar, on 2 May, 2003 declined
the registration dating back to the date of first institution by
insisting upon the petitioner to file an application for condonation
of delay in refiling. The remedy of the petitioner against such an
order was to prefer a chamber appeal which the petitioner did not
do. The said order of the Registrar declining registration dating
back to the date of first institution has since attained a finality and
this Court cannot now treat the institution to be as on the date of
first institution.
30. On a perusal of the aforesaid rules, immediately the
distinction between the rules for re-filing on Original Side and in
other jurisdictions comes to the fore. While upon delay in
refiling/representation on the Original Side, the Registrar is to
decline registration of the document if on the date of such re-
presentation it is found to be barred by time, in other jurisdictions
such institution is to be merely treated as fresh institution. The
reason appears to be that while Section 5 of Limitation Act, is not
applicable to suits, as also to OMPs under Section 34, it is, with
respect to other jurisdictions.”
6. Another decision is referred by the counsel passed in the case of J.L.
Gugnani vs. Krishna Estate & Ors. , 184 (2011) DLT 410 passed by Gita
Mittal, J. Relevant para 60 referred of the said judgment reads as under:
“60. It may be mentioned that even if the plaintiff was given
extension of time and the delay in depositing the Court-fee was
CS(OS) No.1094/2012 Page 3 of 9
condoned, given the legal principles laid down in the judicial
pronouncement noticed above, the institution of the suit would
have to relate to the date on which the Court fee was deposited
on 3rd (or 9th) January, 2002. The above discussion would
show that by this date the relief claimed by the plaintiff had
become barred by limitation. Looked at from any angle, there
is, therefore, substance in the defendants’ objection that
valuable rights have ensured to the defendant and the present
application for condonation of delay cannot be considered
lightly or allowed as a matter of course.”
7. As far as case of J.L. Gugnani (supra) is concerned, the same was set
aside in the appeal being RFA (OS) No.101/2011 wherein the Division
Bench condoned the delay in refiling of the case subject to cost of Rs.10 lac.
8. The Division Bench of this Court in the case of Delhi Development
Authority vs. M/s. Durga Construction Co. , passed in FAO(OS) No.485-
th
86/2011 dated 7 November, 2013 though did not condone the delay of 166
days in refiling the objections under section 34 of the Arbitration and
Conciliation Act, 1996 on the issue of whether the delay in re-filing can be
condoned or not in a petition under Section 34 of the Act, it was observed as
under :
“16. In our view, filing of an application and re-filing the same after
removing defects, stand on completely different footings in so far as the
provision of limitation is concerned. It is now well-settled that
limitation does not extinguish an obligation but merely bars a party to
take recourse to courts for availing the remedies as available to the
party. Thus, in the event a party fails to take expeditious steps to initiate
an action within the time as specified, then the courts are proscribed
from entertaining such action at the instance of such a party. The
rationale of prescribing time limits within which recourse to legal
remedies can be taken has been explained by the Supreme Court in the
case of Bharat Barrel and Drum Mfg. Co. Ltd. v.ESI Corpn. : (1971) 2
SCC 860 as under:-
CS(OS) No.1094/2012 Page 4 of 9
“ 7. ..... The necessity for enacting periods of limitation is to ensure
that actions are commenced within a particular period, firstly to
assure the availability of evidence documentary as well as oral to
enable the defendant to contest the claim against him; secondly to
give effect to the principle that law does not assist a person who is
inactive and sleeps over his rights by allowing them when
challenged or disputed to remain dormant without asserting them
in a court of law. The principle which forms the basis of this rule
is expressed in the maximum vigilantibus, non dermientibus, jura
subveniunt (the laws give help to those who are watchful and not
to those who sleep). Therefore the object of the statutes of
limitations is to compel a person to exercise his right of action
within a reasonable time as also to discourage and suppress stale,
fake or fraudulent claims. ....”
17. The cases of delay in re-filing are different from cases of delay in
filing inasmuch as, in such cases the party has already evinced its
intention to take recourse to the remedies available in courts and has
also taken steps in this regard. It cannot be, thus, assumed that the party
has given up his rights to avail legal remedies.
20. It follows from the above that once an application or an appeal
has been filed within the time prescribed, the question of condoning
any delay in re-filing would have to be considered by the Court in the
context of the explanation given for such delay. In absence of any
specific statute that bars the jurisdiction of the Court in considering the
question of delay in refiling, it cannot be accepted that the courts are
powerless to entertain an application where the delay in its re-filing
crosses the time limit specified for filing the application.
23. The abovementioned decision of The Executive Engineers v.
Shree Ram Construction (supra) has also been considered by this
Court in Delhi Transco Ltd. v. Hythro Engineers Pvt. Ltd. (supra) ,
wherein it has been explained as under:-
“ 9. The decision in Competent Placement Services (supra), in our
view, does not say anything to the contrary from what has been
observed by the Division Bench in Shree Ram Construction Co.
(supra). All that has been observed by the same Division Bench on
the same day, is that the rigors of condonation of delay in re-filing
CS(OS) No.1094/2012 Page 5 of 9
are not as strict as condonation of delay in filing under Section
34(3). At the same time, the Division Bench also observed “but
that does not mean that a party can be permitted an indefinite and
unexplainable period for re-filing the petition” .
10. It is in Shree Ram Construction Co. (supra) that the Court
actually examined as to what is the magnitude of delay in re-filing,
which the Court may tolerate and permit to be condoned in a given
case. Obviously, there cannot be any hard & fast rule in that
respect, and the Court would have to examine each case on its own
facts & merits and to take a call whether, or not, to condone the
delay in refiling the objection petition, when the initial filing of
the petition is within the period of limitation. However, what is to
be borne in mind by the Court is that the limitation period is
limited by the Act to three months, which is extendable, at the
most, by another thirty days, subject to sufficient cause being
disclosed by the petitioner to explain the delay beyond the period
of three months. Therefore, it cannot be that a petitioner by
causing delay in re-filing of the objection petition, delays the re-
filing to an extent which goes well beyond even the period of three
months & thirty days from the date when the limitation for filing
the objections begins to run. If the delay in re-filing is such as to
go well and substantially beyond the period of three months and
thirty days, the matter would require a closer scrutiny and
adoption of more stringent norms while considering the
application for condonation of delay in refiling, and the Court
would conduct a deeper scrutiny in the matter. The leniency
shown and the liberal approach adopted, otherwise, by the Courts
in matter of condonation of delay in other cases would, in such
cases, not be adopted, as the adoption of such an approach by the
Court would defeat the statutory scheme contained in the Act
which prescribes an outer limit of time within which the
objections could be preferred. It cannot be that what a petitioner is
not entitled to do in the first instance, i.e. to file objection to an
award beyond the period of three months & thirty days under any
circumstance, he can be permitted to do merely because he may
have filed the objections initially within the period of three
months, or within a period of three months plus thirty days, and
where the refiling takes place much after the expiry of the period
CS(OS) No.1094/2012 Page 6 of 9
of three months & thirty days and, that too, without any real
justifiable cause or reason.” (underlining added)
9. In the case of Nagaland Industrial Raw Materials & Supply
Corporation Limited vs. Union of India , passed in FAO(OS) No.230/2013
th
dated 8 November, 2013 the matter was remanded back to the Single Judge
for returning a finding and for considering as to whether the application for
condoning the delay, in refilling the petition under Section 34 of the
Arbitration and Conciliation Act, 1996, on the part of the appellant deserved
to be condoned or not.
10. In view of the decision rendered by the Division Bench of this Court,
it is clear that in case sufficient grounds are made in the application for re-
filing, such delay can be condoned even after the expiry of thirty days
provided, a strong case of condonation of delay is made out by the party
concerned in the application.
11. In the present case I find that there are sufficient grounds shown by
the plaintiff as both the plaintiffs were residing outside Delhi i.e. the plaintiff
No.1 is resident of Tamil Nadu and the plaintiff No.2 is resident of USA. It
cannot be denied the fact that parties in the present suit were trying their best
to resolve their disputes from time to time in the suit filed by the defendant
for possession against the plaintiffs. The said fact appears from the record
that the matter was even sent for mediation. Thus, there is force in the
submission of the learned counsel for the plaintiffs. In the present case, it is
also not disputed by the learned counsel for the defendant that originally the
suit was filed within the prescribed period of time.
12. Considering the overall facts and circumstances of the case, the prayer
made in the present application is allowed. The delay of 269 days in refiling
is condoned subject to the cost of Rs.20,000/- which shall be paid by the
CS(OS) No.1094/2012 Page 7 of 9
plaintiffs to defendant within four weeks from today. The application is
disposed of.
CS(OS) No.1094/2012
Let the plaint be registered as a suit. Issue summons to the
th
defendants, returnable on 30 April, 2014. Written statement be filed within
four weeks from the date of receipt of costs.
I.A. No.7325/2012
Notice for the date fixed.
The plaintiffs have filed the suit for specific performance of the
th
written agreement of sale dated 12 June, 2008 in respect of the suit
property.
The brief facts of the case are that defendant was the owner of the suit
th
property. Plaintiff No.1 had entered into an agreement of lease dated 5
st
December, 2012 for a period of three years with effect from 1 January,
st
2003 till 21 December, 2005. Thereafter, through registered rectification
th th
deed dated 26 May, 2003, the lease period was further extended upto 30
th
April, 2006. The plaintiff continued the tenancy till 11 June, 2008 by
paying enhanced rent.
It is stated that the defendant expressed his willingness to sell the
property which is under the occupation of the first plaintiff. Therefore, after
th
deliberations on 12 June, 2008, the plaintiff No.1 and his off shore business
friend Vinay Gugnani/plaintiff No.2 on the one side and the defendant on the
th
other side entered into a written agreement of sale dated 12 June, 2008
whereby the defendant agreed to sell the suit property and the plaintiffs
consented to purchase the suit property. It is further stated that as per the
agreement the defendant agreed to receive a sum of Rs.4,00,12,500/- as sale
CS(OS) No.1094/2012 Page 8 of 9
consideration for selling the suit property in favour of the plaintiffs. It was
agreed between the parties that the plaintiffs were to pay Rs.25,00,000/- as
an advance payment towards the purchase of the suit property and thereafter
th
the rest of the amount was to be paid by 30 October, 2008. The agreement
had been signed by all the parties. At the time of entering into the
agreement of sale, the defendant received a sum of Rs.25,00,000/- as a sale
advance on the same day through a cheque No.577643 issued from Oriental
Bank of Commerce, Greater Kailash Branch, from the accounts of plaintiff
th
No.2. Thereafter, on 18 June, 2008, the plaintiff No.2 paid a sum of Rs.1
th
crore by a cheque No.577646 dated 18 June, 2008. The defendant orally
and on receipt of the balance sale consideration being Rs.2,75,12,500/-
agreed to execute the sale in favour of the plaintiffs and the possession of the
th
suit property continued with the plaintiff No.1, as tenant till 11 June, 2008
th
and as proposed purchaser from 12 June, 2008.
Having gone through the pleadings and material placed on record, it
appears to this Court that the plaintiffs have been able to make out a strong
prima facie case for grant of ad-interim injunction and balance of
convenience also lies in favour of the plaintiffs and against the defendant. In
case the interim order is not passed, the plaintiffs will suffer irreparable loss
and injury. Accordingly, the defendant is restrained from creating any third
party interest in the suit property. Dasti.
(MANMOHAN SINGH)
JUDGE
FEBRUARY 12, 2014
CS(OS) No.1094/2012 Page 9 of 9
% Order pronounced on: February 12, 2014
+ I.A. No.7327/2012 in CS(OS) No.1094/2012
PANNALAL RATHORE & ANR. ..... Plaintiffs
Through Ms.Anjali Manish, Adv.
versus
M/S W.H DEETH (BALLABGARH) & CO. ..... Defendant
Through Mr.L.D. Adlakha, Adv. with Ms.Ripu
Adlakha and Mr.S.B. Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The plaintiffs have filed the suit for specific performance of the
th
written agreement of sale dated 12 June, 2008 against the defendant
company in respect of the property located at premises bearing No.GF-I,
Ground Floor, No.75-76, Manisha Building, Nehru Place, New Delhi-
110019 (hereinafter referred to as the “suit property”) having a total covered
area of 1067 square feet.
2. Along with the suit, the plaintiffs filed an application under Section
151 CPC read with Section 5 of Limitation Act seeking condonation of
delay of 269 days in filing of the suit. Admittedly, the suit was filed in the
rd
Registry on 3 June, 2011 which is within limitation. The Registry raised
th
objections on 17 June, 2011 and the plaintiffs collected the papers from the
Registry in order to clear the defects. The case of the plaintiffs is that since
the defendant proposed for a compromise to the plaintiffs in the suit filed by
the defendant for possession, the delay has happened in refilling of the case.
It appears from the record that the defendant had been taking adjournments
CS(OS) No.1094/2012 Page 1 of 9
in its suit informing the Court about the compromise talks and since the
plaintiff No.1 is resident of Tamil Nadu and the plaintiff No.2 is resident of
USA, it took some time for the proposal of settlement given by the
defendant and in the meanwhile, the delay in refilling has occurred.
3. It is submitted that the said delay is neither wilful nor deliberate and
the same has occurred only due to the above mentioned circumstances.
th
4. By order dated 13 February, 2013, the liberty was sought by the
learned counsel for the plaintiffs from the Court to file a better affidavit in
th
support of his application and the same was filed on 26 May, 2013. The
th
time for reply was sought by the defendant on 25 October, 2013. But it
appears from the record that no reply to the application or affidavit has been
filed by the defendant. In the affidavit, it was reiterated that after collecting
th
the relevant papers from the Registry, the same were filed on 19 April,
2012 with a delay of 269 days in view of the reasons that talks for
compromise were going on between the parties which is also reflected in
th rd st
orders passed on 8 July, 2011, 3 October, 2011 and 1 December, 2011 in
the suit filed by the defendant against the plaintiffs for possession. The talks
of compromise continued till February, 2013 and the matter was even
referred to Mediation Centre. Under these circumstances, the delay has
occurred in re-filing in the suit.
5. No reply to the application has been filed by the defendant despite of
order. The learned counsel for the defendant has orally made his
submissions and raised various technical defects in purchasing the court fee
by the plaintiffs and in the plaint itself and argued that no sufficient grounds
are made in the application for condonation of delay in re-filing.
CS(OS) No.1094/2012 Page 2 of 9
Counsel has also referred to Gautam Associates vs. Food
Corporation of India , 2009 (111) DRJ 744. Relevant paras 26, 27 and 30 of
the said judgment read as under:
“26. In my view, in accordance with the Original Side rules of
this Court, as set out above, the occasion for this Court to consider
condonation of delay in re-filing will arise only in a chamber
appeal, if any, preferred against the order of the Registrar, declining
to register the plaint/petition on the date of first institution. Unless,
such an appeal is preferred, the order of the Registrar declining
registration is final.
nd
27. In the present case, the Registrar, on 2 May, 2003 declined
the registration dating back to the date of first institution by
insisting upon the petitioner to file an application for condonation
of delay in refiling. The remedy of the petitioner against such an
order was to prefer a chamber appeal which the petitioner did not
do. The said order of the Registrar declining registration dating
back to the date of first institution has since attained a finality and
this Court cannot now treat the institution to be as on the date of
first institution.
30. On a perusal of the aforesaid rules, immediately the
distinction between the rules for re-filing on Original Side and in
other jurisdictions comes to the fore. While upon delay in
refiling/representation on the Original Side, the Registrar is to
decline registration of the document if on the date of such re-
presentation it is found to be barred by time, in other jurisdictions
such institution is to be merely treated as fresh institution. The
reason appears to be that while Section 5 of Limitation Act, is not
applicable to suits, as also to OMPs under Section 34, it is, with
respect to other jurisdictions.”
6. Another decision is referred by the counsel passed in the case of J.L.
Gugnani vs. Krishna Estate & Ors. , 184 (2011) DLT 410 passed by Gita
Mittal, J. Relevant para 60 referred of the said judgment reads as under:
“60. It may be mentioned that even if the plaintiff was given
extension of time and the delay in depositing the Court-fee was
CS(OS) No.1094/2012 Page 3 of 9
condoned, given the legal principles laid down in the judicial
pronouncement noticed above, the institution of the suit would
have to relate to the date on which the Court fee was deposited
on 3rd (or 9th) January, 2002. The above discussion would
show that by this date the relief claimed by the plaintiff had
become barred by limitation. Looked at from any angle, there
is, therefore, substance in the defendants’ objection that
valuable rights have ensured to the defendant and the present
application for condonation of delay cannot be considered
lightly or allowed as a matter of course.”
7. As far as case of J.L. Gugnani (supra) is concerned, the same was set
aside in the appeal being RFA (OS) No.101/2011 wherein the Division
Bench condoned the delay in refiling of the case subject to cost of Rs.10 lac.
8. The Division Bench of this Court in the case of Delhi Development
Authority vs. M/s. Durga Construction Co. , passed in FAO(OS) No.485-
th
86/2011 dated 7 November, 2013 though did not condone the delay of 166
days in refiling the objections under section 34 of the Arbitration and
Conciliation Act, 1996 on the issue of whether the delay in re-filing can be
condoned or not in a petition under Section 34 of the Act, it was observed as
under :
“16. In our view, filing of an application and re-filing the same after
removing defects, stand on completely different footings in so far as the
provision of limitation is concerned. It is now well-settled that
limitation does not extinguish an obligation but merely bars a party to
take recourse to courts for availing the remedies as available to the
party. Thus, in the event a party fails to take expeditious steps to initiate
an action within the time as specified, then the courts are proscribed
from entertaining such action at the instance of such a party. The
rationale of prescribing time limits within which recourse to legal
remedies can be taken has been explained by the Supreme Court in the
case of Bharat Barrel and Drum Mfg. Co. Ltd. v.ESI Corpn. : (1971) 2
SCC 860 as under:-
CS(OS) No.1094/2012 Page 4 of 9
“ 7. ..... The necessity for enacting periods of limitation is to ensure
that actions are commenced within a particular period, firstly to
assure the availability of evidence documentary as well as oral to
enable the defendant to contest the claim against him; secondly to
give effect to the principle that law does not assist a person who is
inactive and sleeps over his rights by allowing them when
challenged or disputed to remain dormant without asserting them
in a court of law. The principle which forms the basis of this rule
is expressed in the maximum vigilantibus, non dermientibus, jura
subveniunt (the laws give help to those who are watchful and not
to those who sleep). Therefore the object of the statutes of
limitations is to compel a person to exercise his right of action
within a reasonable time as also to discourage and suppress stale,
fake or fraudulent claims. ....”
17. The cases of delay in re-filing are different from cases of delay in
filing inasmuch as, in such cases the party has already evinced its
intention to take recourse to the remedies available in courts and has
also taken steps in this regard. It cannot be, thus, assumed that the party
has given up his rights to avail legal remedies.
20. It follows from the above that once an application or an appeal
has been filed within the time prescribed, the question of condoning
any delay in re-filing would have to be considered by the Court in the
context of the explanation given for such delay. In absence of any
specific statute that bars the jurisdiction of the Court in considering the
question of delay in refiling, it cannot be accepted that the courts are
powerless to entertain an application where the delay in its re-filing
crosses the time limit specified for filing the application.
23. The abovementioned decision of The Executive Engineers v.
Shree Ram Construction (supra) has also been considered by this
Court in Delhi Transco Ltd. v. Hythro Engineers Pvt. Ltd. (supra) ,
wherein it has been explained as under:-
“ 9. The decision in Competent Placement Services (supra), in our
view, does not say anything to the contrary from what has been
observed by the Division Bench in Shree Ram Construction Co.
(supra). All that has been observed by the same Division Bench on
the same day, is that the rigors of condonation of delay in re-filing
CS(OS) No.1094/2012 Page 5 of 9
are not as strict as condonation of delay in filing under Section
34(3). At the same time, the Division Bench also observed “but
that does not mean that a party can be permitted an indefinite and
unexplainable period for re-filing the petition” .
10. It is in Shree Ram Construction Co. (supra) that the Court
actually examined as to what is the magnitude of delay in re-filing,
which the Court may tolerate and permit to be condoned in a given
case. Obviously, there cannot be any hard & fast rule in that
respect, and the Court would have to examine each case on its own
facts & merits and to take a call whether, or not, to condone the
delay in refiling the objection petition, when the initial filing of
the petition is within the period of limitation. However, what is to
be borne in mind by the Court is that the limitation period is
limited by the Act to three months, which is extendable, at the
most, by another thirty days, subject to sufficient cause being
disclosed by the petitioner to explain the delay beyond the period
of three months. Therefore, it cannot be that a petitioner by
causing delay in re-filing of the objection petition, delays the re-
filing to an extent which goes well beyond even the period of three
months & thirty days from the date when the limitation for filing
the objections begins to run. If the delay in re-filing is such as to
go well and substantially beyond the period of three months and
thirty days, the matter would require a closer scrutiny and
adoption of more stringent norms while considering the
application for condonation of delay in refiling, and the Court
would conduct a deeper scrutiny in the matter. The leniency
shown and the liberal approach adopted, otherwise, by the Courts
in matter of condonation of delay in other cases would, in such
cases, not be adopted, as the adoption of such an approach by the
Court would defeat the statutory scheme contained in the Act
which prescribes an outer limit of time within which the
objections could be preferred. It cannot be that what a petitioner is
not entitled to do in the first instance, i.e. to file objection to an
award beyond the period of three months & thirty days under any
circumstance, he can be permitted to do merely because he may
have filed the objections initially within the period of three
months, or within a period of three months plus thirty days, and
where the refiling takes place much after the expiry of the period
CS(OS) No.1094/2012 Page 6 of 9
of three months & thirty days and, that too, without any real
justifiable cause or reason.” (underlining added)
9. In the case of Nagaland Industrial Raw Materials & Supply
Corporation Limited vs. Union of India , passed in FAO(OS) No.230/2013
th
dated 8 November, 2013 the matter was remanded back to the Single Judge
for returning a finding and for considering as to whether the application for
condoning the delay, in refilling the petition under Section 34 of the
Arbitration and Conciliation Act, 1996, on the part of the appellant deserved
to be condoned or not.
10. In view of the decision rendered by the Division Bench of this Court,
it is clear that in case sufficient grounds are made in the application for re-
filing, such delay can be condoned even after the expiry of thirty days
provided, a strong case of condonation of delay is made out by the party
concerned in the application.
11. In the present case I find that there are sufficient grounds shown by
the plaintiff as both the plaintiffs were residing outside Delhi i.e. the plaintiff
No.1 is resident of Tamil Nadu and the plaintiff No.2 is resident of USA. It
cannot be denied the fact that parties in the present suit were trying their best
to resolve their disputes from time to time in the suit filed by the defendant
for possession against the plaintiffs. The said fact appears from the record
that the matter was even sent for mediation. Thus, there is force in the
submission of the learned counsel for the plaintiffs. In the present case, it is
also not disputed by the learned counsel for the defendant that originally the
suit was filed within the prescribed period of time.
12. Considering the overall facts and circumstances of the case, the prayer
made in the present application is allowed. The delay of 269 days in refiling
is condoned subject to the cost of Rs.20,000/- which shall be paid by the
CS(OS) No.1094/2012 Page 7 of 9
plaintiffs to defendant within four weeks from today. The application is
disposed of.
CS(OS) No.1094/2012
Let the plaint be registered as a suit. Issue summons to the
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defendants, returnable on 30 April, 2014. Written statement be filed within
four weeks from the date of receipt of costs.
I.A. No.7325/2012
Notice for the date fixed.
The plaintiffs have filed the suit for specific performance of the
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written agreement of sale dated 12 June, 2008 in respect of the suit
property.
The brief facts of the case are that defendant was the owner of the suit
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property. Plaintiff No.1 had entered into an agreement of lease dated 5
st
December, 2012 for a period of three years with effect from 1 January,
st
2003 till 21 December, 2005. Thereafter, through registered rectification
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deed dated 26 May, 2003, the lease period was further extended upto 30
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April, 2006. The plaintiff continued the tenancy till 11 June, 2008 by
paying enhanced rent.
It is stated that the defendant expressed his willingness to sell the
property which is under the occupation of the first plaintiff. Therefore, after
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deliberations on 12 June, 2008, the plaintiff No.1 and his off shore business
friend Vinay Gugnani/plaintiff No.2 on the one side and the defendant on the
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other side entered into a written agreement of sale dated 12 June, 2008
whereby the defendant agreed to sell the suit property and the plaintiffs
consented to purchase the suit property. It is further stated that as per the
agreement the defendant agreed to receive a sum of Rs.4,00,12,500/- as sale
CS(OS) No.1094/2012 Page 8 of 9
consideration for selling the suit property in favour of the plaintiffs. It was
agreed between the parties that the plaintiffs were to pay Rs.25,00,000/- as
an advance payment towards the purchase of the suit property and thereafter
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the rest of the amount was to be paid by 30 October, 2008. The agreement
had been signed by all the parties. At the time of entering into the
agreement of sale, the defendant received a sum of Rs.25,00,000/- as a sale
advance on the same day through a cheque No.577643 issued from Oriental
Bank of Commerce, Greater Kailash Branch, from the accounts of plaintiff
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No.2. Thereafter, on 18 June, 2008, the plaintiff No.2 paid a sum of Rs.1
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crore by a cheque No.577646 dated 18 June, 2008. The defendant orally
and on receipt of the balance sale consideration being Rs.2,75,12,500/-
agreed to execute the sale in favour of the plaintiffs and the possession of the
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suit property continued with the plaintiff No.1, as tenant till 11 June, 2008
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and as proposed purchaser from 12 June, 2008.
Having gone through the pleadings and material placed on record, it
appears to this Court that the plaintiffs have been able to make out a strong
prima facie case for grant of ad-interim injunction and balance of
convenience also lies in favour of the plaintiffs and against the defendant. In
case the interim order is not passed, the plaintiffs will suffer irreparable loss
and injury. Accordingly, the defendant is restrained from creating any third
party interest in the suit property. Dasti.
(MANMOHAN SINGH)
JUDGE
FEBRUARY 12, 2014
CS(OS) No.1094/2012 Page 9 of 9