Maqsood Ahmad vs Smt. Madhu Maheshwari And 4 Others
2023 Latest Caselaw 11697 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 21
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 166 of 2023
 
Petitioner :- Maqsood Ahmad
 
Respondent :- Smt. Madhu Maheshwari And 4 Others
 
Counsel for Petitioner :- Himanshu Hemant Gupta,Sridhar Awasthi
 
Counsel for Respondent :- Shailendra Singh
 

 
Hon'ble Manish Mathur,J.

1. Heard Shri Sudeep Seth, learned Senior Advocate assisted by Shri Himanshu Hemant Gupta, learned counsel for the petitioner and Shri Shailendra Singh, learned counsel for the respondent nos. 1 to 5. Respondent no. 6 being merely proforma in nature, notice is dispensed with.

2. Earlier on 9.2.2023, the following order had been passed:

"Heard Mr. Sudeep Seth learned Senior Counsel assisted by Mr. Himanshu Hemant Gupta learned counsel for petitioner and Mr. Shailendra Singh learned counsel for opposite parties.

Petition under Article 227 of Constitution of India has been filed against order dated 10th October, 2022 passed in Misc. case No. 335 of 2019 with a further direction to consider and adjudicate the aforesaid case on merits after condoning delay in filing applications. By means of the impugned order, application for condonation of delay in seeking recall of final order passed in execution case dated 18th December, 2013 has been rejected.

It is submitted that one Rooop Chandra entered into an agreement to sell dated 6th April, 1974 with petitioner with respect to agricultural plots in khasra Nos. 416 and 417 in village Mohibullapur, Pargana, Tehsil and District Lucknow. Prior to execution of sale deed in pursuance thereof, the said Roop Chandra expired on 7th September, 1974 leaving behind his three sons as his heirs succeeding to his estate. It is also submitted that the agreement to sell had an arbitration clause pertaining to any dispute arising out of the agreement. It has also been submitted that due to non execution of sale deed, the petitioner invoked the arbitration clause which commenced and resulted in arbitration award dated 20th December, 2008.

It is submitted that aforesaid award was never challenged in proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 but since it was not satisfied, the petitioner filed execution for case No. 64 of 2011 and during pendency of aforesaid execution proceedings, on an incorrect legal advice, application for amendment of claim was filed on 13th August, 2012 indicating that sale deed had been executed and registered for a portion of the property under agreement to sell. The aforesaid application for amendment was allowed by means of order dated 18th August, 2012 with sale deed in pursuance thereof being executed through the court on 18th December, 2013 due to which the execution case itself was decided by means of order dated 18th December, 2013.

Learned counsel for petitioner submits that although the aforesaid amendment applications had been filed by petitioner but the same being on legal advice and the petitioner not being well versed in law, did not consider the consequences of the aforesaid application and the aforesaid consequences became known to the petitioner only in the year 2019 when he contested a suit for cancellation of sale deed dated 18th December, 2013 filed by certain builder. It is submitted that upon gaining knowledge of the aforesaid amendment and decision of the executing court on that basis, certain applications were filed on 30th May, 2019. Learned counsel submits that all three applications were filed firstly, for condonation of delay in seeking recall, secondly under Section 51 of the Code of Civil Procedure for recall of order dated 18th August, 2012 in which leave to withdraw amendment application A-21 along with supporting affidavit C-22 was also made; thirdly application for correction and consequential amendments in the judgment and decree dated 18th December, 2013 under Sections 47, 152, 153 read with Section 151 of the Code.

Learned counsel further submits that by means of impugned order, application under Section 5 of Limitation Act was rejected along with consequential rejection of order for recall.

Learned counsel for petitioner has adverted to objections filed on the aforesaid applications by the opposite parties who are judgment debtors and particular emphasis has been laid on paragraph 10 of the objections in which the stand of petitioner being decree holders has been admitted to the effect that no sale deed has been executed by judgment debtors for the remaining area of 38,566 square feet which was part and parcel of agreement to sell. It is submitted that opposite parties have taken the same stand in the counter affidavit filed in the present petition as well and as such the executing court has erred in passing the impugned order.

Learned counsel appearing on behalf of opposite parties upon instructions and on the basis of counter affidavit filed in the present proceedings has admitted the stand of petitioner.

Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that for enforcement of agreement to sell, arbitration proceedings ensued and resulted in arbitration and award passed in the year 2008 whereafter execution was filed in the year 2011 during pendency of which the claim of petitioner was amended on their application vide order dated 18th August, 2012. Sale deed thereafter was executed of the portion over which the petitioner was placing his claim in pursuance to the amendment on 18th December, 2013 whereafter the execution case itself was also decided by means of judgment and decree dated 18th December, 2013. It also appears that applications as indicated herein above for condonation of delay, recall of order dated 18th December, 2013 as well as withdrawal of the amendment sought was filed in the year 2019 and have been rejected by means of impugned order.

It is also evident from the stand of opposite parties not only in the counter affidavit filed before this court but also in their objections to the application before the executing court that they have supported the stand taken by the petitioner. It has been clearly stated in the objections filed before the executing court as well as before this Court that a portion of the properties included in the agreement to sell were left out from the execution proceedings due to amended claim and that no sale deed has been executed in favour of the aforesaid portion of the property.

In view of supporting stand taken by opposite parties, in the considered opinion of this Court, no fruitful purpose would be served in remanding the matter to executing court and dispute itself, if any, may be settled between the parties by Mediation Centre of this Court.

Learned counsel for parties upon instructions are amenable to the aforesaid proposition. As such dispute is referred to the Mediation Centre of this Court.

List this case before Mediation Centre of this Court on 17th February, 2023.

Office is directed to remit the paper book to the Mediation Centre. For the purposes of mediation proceedings, the petitioner shall deposit a sum of Rs. 50,000/- on the next date fixed before Mediation Centre. Office is also directed to list this case before the Court with mediation report on Ist March, 2023."

3. In pursuance of directions issued therein, a report from the Mediation Centre has been submitted dated 1.4.2023 indicating that no agreement could be arrived at between the parties and therefore the petition has been remitted back to this Court for consideration on merits.

4. Learned counsel appearing for the petitioner submits that once the respondents had admitted the facts as indicated in application for condonation of delay, there was no occasion for the Court concerned to have rejected the said application only on the ground of considerable delay. It is submitted that the impugned order has not adverted to submissions indicated in application for condonation of delay that the award issued in favour of petitioner was neither challenged nor satisfied in the earlier execution proceeding and that there was no negligence or malafide on the part of petitioner in seeking condonation of delay in recall of earlier orders particularly on the ground of wrong legal advice. It is submitted that in paragraph 35 of the application, it was specifically stated that arbitration award dated 20.12.2008 was yet to be satisfied fully and finally and the aforesaid averment in the application was admitted by respondents in their objection dated 11.8.2022, which furthermore indicated the fact that the property excluded from execution proceedings are still in possession of objectors and no sale deed with regard to same has been executed thereafter.

5. It is further submitted that the Court concerned has failed to consider provisions of Section 17(1)(c) of the Limitation Act, 1963 (hereinafter referred to as "the Act, 1963) as well as the fact that period of execution of award as provided under Article 136 of the Act, 1963 was still available to petitioner. Learned counsel has placed reliance on judgements rendered by Hon'ble Supreme Court in the case of Assistant Engineer (D1), Ajmer Vidyut Vitran Nigam Limited & Anr. Vs. Rahamatullah Khan alias Rahamjulla reported in (2020) 4 SCC 650, The State of West Bengal Vs. The Administrator, Howrah Municipality and Others reported in (1972) 1 SCC 366 and Board of Control for Cricket in India Vs. Netaji Cricket Club and Others reported in (2005) 4 SCC 741 to press his submission particularly with regarding the aspect that a genuine mistake of fact and law is a plausible reason for granting indulgence regarding consideration of application for condonation of delay.

6. Learned counsel appearing on behalf of respondent in terms of counter affidavit submits that the said respondents although have admitted to the claim made by petitioner but there was a dispute with regard to aspect of sale consideration and therefore, mediation proceedings had failed.

7. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that virtually all the averments made in the application for condonation of delay before Court concerned had been admitted by the objectors in their objections dated 11.8.2022 as well specifically the fact that award passed earlier was yet to be satisfied fully. In the present petition as well, answering respondent parties have not denied the claim of petitioner.

8. In view of aforesaid fact and particularly admission made by respondents, it is evident that earlier award dated 20.12.2008 in favour of petitioner was neither challenged nor fully satisfied even in execution proceedings. The submission regarding mistake of fact and incorrect legal advise taken by petitioner has not been controverted by the objectors/answering respondent parties and was of relevant consideration to be examined by the Court concerned, particularly when there is no allegation of malafide against petitioner and the period of limitation of filing execution was yet available. The aspects of exercise of bar under Section 17(1)(c) of the Act, 1963 has also not been adverted to by the Court concerned.

9. Upon applicability of judgments cited by learned counsel for petitioner, it is evident that liberal approach should have been taken by the Court concerned with regard to application for condonation of delay. The impugned order dated 10.10.2022 passed in Misc. Case No. 335 of 2019 (Riyaz Ahmad Vs. Smt. Madhu Maheswari and Others) being not in accordance with law, is hereby set aside.

10. Delay in filing the application for recall is consequently allowed.

11. The District Judge, Lucknow is directed to consider and adjudicate the Misc. Case No. 335 of 2019 (Maqsood Ahmad Vs. Smt. Madhu Maheswari and Others) on its merits expeditiously.

12. In view of aforesaid, the petition is allowed.

13.Parties to bear own costs.

Order Date :- 19.4.2023

Mohit Singh/-