Bombay High Court
Santoshkumar S/O. Swamidas ... vs Ashwin S/O. Wardhaman Golechha on 28 April, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4691 OF 2015
PETITIONERS : 1] Santoshkumar S/o Swamidas Agrawal,
Aged about 75 years, Occu. Retired.
2] Smt. Veena W/o Santoshkumar Agrawal,
Aged about 69 years, Occu. Housewife,
Both Resident of Plot No. 508,
ig Ramdaspeth, Nagpur - 440 010.
- VERSUS -
RESPONDENT : Ashwin S/o Wardhaman Golechha,
Aged about 51 years, Partner of M/s Oswal
Builders and Developers, r/o Flat No. 501,
Situated on the top floor of the building
known as Mangalam Apartment,
Plot No. 905, Khare Town, Dharampeth,
Nagpur - 440 010.
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Mr. R. M. Sharma, Advocate for the petitioners.
Mr. S. V. Bhutada, Advocate for the respondent
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CORAM : PRASANNA B. VARALE, J.
DATE : APRIL 28, 2016.
ORAL JUDGMENT
By this petition, the petitioners challenge the order passed
by the learned 4th Joint Civil Judge, Senior Division, Nagpur, dated
17.07.2015 in Summary Civil Suit No. 45/2014, thereby rejecting the
application (Exh.43) filed by the petitioners/plaintiffs seeking
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withdrawal of the amount deposited by the respondent/defendant.
2. The present petition is having backdrop of some history,
may not be a chequered history to say, but some round of litigation
wherein some orders were passed by this Court. The petitioners, who
are the original plaintiffs, filed a Summary Civil Suit No. 45/2014
against the respondent/defendant for recovery of amount of
Rs.74,37,500/-. Certain documents are also placed on record to submit
that there was Memorandum of Understanding and exchange of
cheques between the parties. An application (Exh.16) was moved by the
respondent/defendant seeking leave to defend the suit. The order was
passed by the learned 4th Joint Civil Judge, Senior Division, Nagpur,
dated 28.08.2014, thereby allowing the application (Exh.16), which
gave rise to the petitions filed by both the parties in this Court i.e. Writ
Petition No. 5832/2014 and Writ Petition No. 5963/2014. While
deciding these writ petitions by the judgment and order dated
18.11.2014, this Court referred to the guiding principles of the Apex
Court, reflected in the judgment in the case of M/s Mechalec Engineers
and Manufacturers .vs. M/s Basic Equipment (AIR 1977 SC 577). This
Court then, by considering one of the important factor namely the
advance age of the plaintiffs, thought it fit to balance the equity by
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directing the original defendant to deposit an amount of Rs.Ten lacs in
the trial Court within stipulated period. This Court on the backdrop of
the very fact that the plaintiffs are in advanced age, directed the Court
below to make an endeavour to decide the suit as early as possible and
before 31st August, 2015. As there was some non-compliance, the
parties were again before this Court. A civil application on that aspect
was also decided by this Court. The order passed by this Court was the
subject matter in Special Leave Petition preferred by the respondent
herein before the Apex Court. The Apex Court initially granted stay to
the proceedings before the trial court and ultimately, while granting
leave, the Apex Court modified the order of this Court by directing the
petitioner therein (present respondent) to deposit an additional sum of
Rs.5,00,000/- within the stipulated period and directing the trial Court
to decide the suit on or before 31st December, 2015.
4] An application (Exh. 43) was then filed by the
petitioners/plaintiffs seeking withdrawal of the amount deposited by
the respondent/defendant. It was submitted in the application that the
applicants/petitioners are facing the ailments and they are in advanced
age. It was submitted that the plaintiff no.1 was suffering from multiple
arterial diseases and had undergone angioplasty. It was submitted that
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the plaintiff No.1 suffered paralysis and he is under the treatment of
one of the renowned medical practitioner of the city namely Dr. Shri
G.K. Dube. It is also submitted that plaintiff no.2 is also in her
advanced age. Considering the health issues, the petitioners/plaintiffs
need constant medical care and an attendant to take care of the plaintiff
no.1, who is unable to move around. It is submitted that the attendant's
services are hired through one agency namely 'Home Patient Care-Taker
Services'. It is submitted in the application that for the medical
expenses, attendant's expenses and other household expenses, the
plaintiffs need at least Rs. 40,000/- per month. He further submitted
that the plaintiffs are occupying the first floor of the building namely
'Arihant Krupa', whereas the ground floor is occupied by one Dr.Jain
and second floor is occupied by the son-in-law of the plaintiffs namely
Tarun Bhartia. It is submitted that the plaintiffs are in dire need of
repair of the premises as they would require to install a lift in the
building for their convenience. It is submitted that the plaintiffs have
made an enquiry with the various agencies by receiving quotations and
the approximate expenditure for the civil work and installing lift would
be approximately Rs.16 lacs. On these grounds, the petitioners/
plaintiffs prayed for withdrawal of the amount of Rs.15 lacs, deposited
by the respondent/defendant. The application was opposed by the
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defendant. The trial Court, on considering the rival submissions of the
parties and also by referring to the orders of this Court as well as the
orders of the Apex Court, found no favour with the applicants/plaintiffs
and rejected the application.
5] Mr. Sharma, the learned counsel for the petitioners
vehemently submitted that the learned 4th Joint Civil Judge, Senior
Division misdirected himself in deciding the application (Exh.43) only
on the ground that if the amount is permitted to be withdrawn, it will
lead to complication in future. The learned counsel further submitted
that the learned Judge also erred in observing that if the petitioners are
permitted to withdraw the amount, it may lead the defendant to believe
that the Court is willing to decide the suit in favour of the plaintiffs.
The learned counsel then invited my attention to certain documents
placed on record i.e. certificates issued by Dr. Dube and also the receipts
of the service provider agency namely 'Jeevan Aadhar - Home Patient
Care-Taker Services'. Mr. Sharma also invited my attention to some
photographs to submit that the plaintiffs are in need of continuous and
constant attention by some attendant and medical assistance round the
clock. It is submitted by the learned counsel that as the plaintiffs did
not wish to be the burden on their son-in-law, the plaintiffs wanted to
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install a lift in the premises. The learned counsel further submitted
that the petitioners/plaintiffs are ready to give surety or security, in case
withdrawal is permitted and also they would be giving an undertaking
before the Court below to the effect that the withdrawal permitted to
the plaintiffs would be subject to final decision of the suit.
6] Per contra, Mr. Bhutada, the learned counsel for the
respondent/defendant fairly submitted that the plaintiffs are in their
advanced age and this fact is not disputed. The learned counsel then
submitted that opposition by the defendant is on legal grounds namely,
there is no provision for such withdrawal, which can safely be said as
withdrawal pre-decree. It is the submission of the learned counsel that
the rights of the parties are yet to be crystalised. The claim will have to
be settled by the assessment of the claim on merits by the appropriate
forum namely Civil Court. It is further submitted by the learned
counsel that the plaintiffs' claim is in a way exorbitant for the reason
that the claim is not restricted only for the medical expenses, but the
claim is also for certain structural changes in the premises. It is the
submission of the learned counsel that withdrawal on such a ground is
certainly beyond the scope of any legal provision and the same cannot
be permitted in any event.
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7] I have heard both the learned counsel for the parties at
length. As already referred to above, in view of the proceedings and the
orders passed by this Court as well as the Apex Court, limited
controversy would be whether the plaintiffs are entitled for withdrawal
of the amount as claimed for and if they entitled, then to what extend
the petitioners would be permitted to withdraw the amount. Mr.
Bhutada, the learned counsel for the respondent was right in submitting
that the petitioners have not taken recourse to any legal provision for
seeking withdrawal, but at the same time this Court cannot ignore the
factual aspect that this Court itself considering the factum of the
advance age of the plaintiffs, permitted the plaintiffs to withdraw the
amount by moving necessary application before the Court below. It will
also not be out of place to state that in the round before the Apex Court,
the Apex Court modified the order passed by this Court by directing the
present respondent/defendant to deposit additional sum of Rs.
5,00,000/- and directed the trial Court to decide the suit on or before
31st December, 2015. It is submitted before this Court that the period is
now extended till 31.07.2016 to decide the suit. Thus, it is not in
dispute that this Court as well as the Apex Court balanced the equities
by issuing certain directions and also protected interest of both the
parties.
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8] The petitioners have prayed for withdrawal of the amount
raising the basic ground of ill-health of the plaintiffs. The respondent is
not disputing the fact that the plaintiffs are in their advanced age.
There is also neither serious objection to the documents placed on
record in the nature of certificate issued by one of the physicians of the
city nor there is dispute raised on the fact of services being hired from
the service provider agency for the attendant. The objection for the
expenses towards structural changes in the premises, was justified. But,
on the aspect of need of the plaintiffs for the medical treatment and for
the services of an attendant, sufficient material is placed on record. The
petitioners are also ready to provide surety or security in case of
withdrawal is permitted. The petitioners are also ready to give an
undertaking before the Court below that the withdrawal would be
subject to the final decision of the suit. It will not be out of place to
refer the order of this Court dated 05.10.2015, by which the petition
was admitted and by way of an interim order, the petitioners were
permitted to withdraw an amount of Rs. 7,00,000/-, deposited by the
respondent, by furnishing solvent security to the satisfaction of the trial
Court. The Court below ought to have considered the prayer of the
plaintiffs on the grounds raised by the petitioners/applicants. The Court
below only on the assumption that such withdrawal would lead to new
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complications, rejected the application. The Court below was also not
justified in observing that if the Court permits to withdraw the amount,
it would lead to an inference that the Court is willing to decide the suit
in favour of the plaintiffs. An interim order permitting the plaintiffs to
withdraw the amount by taking measures to secure the amount would
certainly not lead to any belief that the Court is deciding the matter in
favour of a particular party. Considering all these aspects, in my
opinion, the order passed by the Court below is unsustainable and the
same needs to be quashed and set aside.
9] In the result, the writ petition is allowed.
The impugned order dated 17.07.2015 passed by the
learned 4th Joint Civil Judge, Senior Division, Nagpur in Summary Civil
Suit No. 45/2014 is set aside.
The petitioners are permitted to withdraw further amount
of Rs.3,00,000/- (as the petitioners are already permitted to withdraw
Rs.7,00,000/- by order of this Court, dated 05.10.2015) out of
Rs.15,00,000/- deposited by the respondent/defendant in the trial
Court, by presenting solvent security to the satisfaction of the trial
Court. The petitioners also to file an undertaking before the trial Court
stating that the withdrawal permitted to them would be subject to the
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final decision of the suit. The undertaking be submitted to the trial
Court before 6th of May, 2016.
It is made clear that considering the peculiar facts and
circumstances of the case and the orders of this Court in the earlier
round, the petitioners are permitted to withdraw the amount. This
order may not be treated as precedent.
Rule is made absolute. The writ petition is disposed of
accordingly. No order as to costs.
JUDGE
Diwale
