Bombay High Court
Sonal Deepak Shah vs Rachna Developers And Marketing ... on 30 August, 2016
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1487 OF 2014
IN
SUMMARY SUIT NO.906 OF 2011
M/s Rachana Developers And Marketing
And Others ... Applicants
In the matter between :
Sonal Deepak Shah ... Plaintiff
Versus
M/s Rachana Developers And Marketing
And Others ... Defendants
.....
Mr. Karl Tamboly i/b E.A. Sasi for the Plaintiff.
Mr. Rohaan Cama i/b Pavan Patil for Defendants/Applicants.
.....
CORAM : S.C.GUPTE, J.
RESERVED ON : 02 FEBRUARY 2016
DECIDED ON : 30 AUGUST 2016
JUDGMENT :
. This Notice of Motion is taken out by the Applicants (Original
Defendants) for setting aside an ex-parte decree passed on 19 December
2012 in the Summary Suit herein.
2 By this decree, the Defendants were ordered and decreed to pay a
sum of Rs.1,04,50,000/- along with interest at the rate of 18 per cent per
annum from the filing of the suit till payment or realization. When the
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Motion came up for hearing before a learned Single Judge, the parties
settled the matter and filed consent terms. On 19 November 2015, the
consent terms were taken on record and the Motion was disposed of in its
terms. The consent terms provided for payment of a sum of Rs.90 lacs in
two installments of Rs.45 lacs each by the Defendants to the Plaintiff in full
and final settlement of the suit claim, the first installment becoming
payable on or before 20 December 2015 and the second on or before 20
February 2016. In case of default, the Notice of Motion was to stand
dismissed and the Plaintiff to be entitled to execute the decree. The short
controversy today is this : The first installment being payable on 20
December 2015, which was a Sunday, the Defendants applied for a demand
draft for Rs.45 lacs on the following Monday, i.e. on 21 December 2015,
and got the same on 22 December 2015. The Plaintiff, however, refused to
accept the demand draft on account of delay. The Defendants seek
condonation of this delay of two days or, in other words, extension of time
under Section 148 of the Code of Civil Procedure. The Plaintiff opposes on
the ground that she is not agreeable to any extension and without her
consent, time cannot be extended by this Court. The question, thus, is of
jurisdiction and power of the Court to grant extension of time for payment
of decretal amount in a contested matter.
3 Mr. Tamboly, learned Counsel for the Plaintiff, submits that time
fixed for payment in a decree cannot be extended by the Court unilaterally.
He further submits that a compromise decree cannot be interfered with or
modified by the Court unless the parties agree to the same. Mr. Cama,
learned Counsel for the Defendants, on the other hand, submits that
consent terms, when made part of an order of the Court, get merged into
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the order and the time provided therein, which then amounts to time
granted by the Court to do a thing, can always be extended by the Court.
He argues that this the Court can do at any stage or time.
4 The questions, which fall for the consideration of the court, may, at
the outset, be correctly formulated. We are obviously at a stage where the
Court is not in seisin of the matter stricto sensu. The suit has already been
decreed. The decree, which is varied on consent of parties, provides for
payment by installments by a particular time and in default, for execution
of the decree for the entire decretal amount. The question is, is the Court
empowered to order postponement of payment or grant time to the
judgment-debtor without the consent of the decree-holder ? And if the
answer to this question is in the affirmative, whether, in the facts of the
present case, the Court would be justified in doing so.
5 Before we examine the judgments on the point, let us note the
provisions of law dealing with the subject on hand. The first and foremost
provision on the subject is Order 20 Rule 11 of the Code of Civil Procedure,
which deals with decrees, and post-decree orders, for payment by
installments. The provision is quoted below :
Order 20 Rule 11: Decree may direct payment by
instalments.- (1) Where and in so far as a decree is for the
payment of money, the court may for any sufficient reason
incorporate in the decree, after hearing such of the parties who
had appeared personally or by pleader at the last hearing,
before judgment, an Order that payment of the amount decreed
shall be postponed or shall be made by instalments, with or
without interest, notwithstanding anything contained in the
contract under which the money is payable.
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(2) Order, after decree, for payment by installments--After the
passing of any such decree the court may, on the application of
the judgment debtor and with the consent of the decree holder,
Order that payment of the amount decreed shall be postponed
or shall be made by installments on such terms as to the
payment of interest, the attachment of the property of the
judgment debtor, or the taking of security from him, or
otherwise, as it thinks fit.
The other provision, which is of a more general nature, is Section
148 of the Code of Civil Procedure. The Section is quoted below :
Section 148 : Where any period is fixed or granted by the Court
for the doing of any act prescribed or allowed by this Code, the
Court may, in its discretion, from time to time, enlarge such
period not exceeding thirty days in total, even though the period
originally fixed or granted may have expired.
Then we have Section 151 of the Code of Civil Procedure, which
saves inherent powers of the Court and which is in the following terms :
Section 151 : Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to make such
orders as may be necessary for the ends of justice or to prevent
abuse of the process of the Court.
6 As a plain reading of the provisions quoted above would suggest,
whereas Section 151, as a saving provision, enables the Court to do
something necessary in the interest of justice in a contingency not
otherwise provided for in the Code of Civil Procedure (for the Code cannot
be exhaustive so as to deal with each and every contingency arising in a
civil proceeding), Section 148 provides generally for enlargement of time
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whenever the Court fixes any period or grants any time to do something
which is either prescribed or allowed by the Code. Order 20 Rule 11, on
the other hand, particularly provides for postponement or, in other words,
granting of time to pay the amount decreed, sub-section (1) providing for
granting of such time in the decree itself, and sub-section (2) providing for
granting of time after the passing of the decree. As a matter of principle,
whenever a law provides for a particular contingency it is that special
provision which must be resorted to for dealing with such contingency
rather than a general provision permitting the Court to do something in a
wide range of cases. Thus, when the Court, after the passing of the decree,
considers, as in this case, whether or not to grant time to pay the decretal
amount on the application of the judgment-debtor, the answer must be
looked for in the provisions of Rule 11 (2) of Order 20 rather than Sections
148 or 151 of the Code. Rule 11(2) requires as a condition for the exercise
of powers thereunder that such application must be made "with the consent
of the decree-holder". The Court cannot allow any application without such
consent. That appears to be the plain meaning of the provision. Let us
now see, if the decided cases hold otherwise.
7 A Full Bench of our Court considered the Court's power to enlarge
time in the case of an instalment decree with a default clause in Waman
Vishwanath Bapat Vs. Yeshwant Tukaram1. Before the Full Bench
considered the matter in Waman Vishwanath's case, there were two
conflicting views taken by our Court on the question. One was by Sir John
Beaumont in Burjorji Shapurji Vs. Mdhavlal Jesingbhai 2, where the
learned Chief Justice held that in a decree providing for payment of a
1 AIR (36) 1949 Bombay 97
2 AIR (21) 1934 Bom. 370
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certain amount on specified dates and marking of satisfaction of the
decree upon such payment and in default, the full amount of the decree
becoming payable, the stipulation was not in the nature of a penalty and
the Court could not relieve the judgment-debtor against the breach
committed in the failure to pay the amount on the due date. Beaumont
CJ, in keeping with this view, also held in Pari Chimanlal Dholidas Vs.
Chimanlal Bhudardas Shah3 that there was no general power in courts
of equity to disregard the agreement between the parties contained in a
consent decree. The other view was held by another Chief Justice of this
Court, Sir Norman Macleod, which he gave expression to in the case of
Narayan Vs. Rajimal4. In that case, a consent decree provided for
payment of a sum in certain fixed instalments. It also provided that on
failure to pay two installments, the Plaintiff was entitled to take possession
of certain lands. There was a delay of a few days in the payment of two
instalments. The Plaintiff applied to get possession of the lands. The
Division Bench of Sir Norman Macleod CJ and Coyajee J held that the
default should be excused and the defendants relieved against the
forfeiture. Sir Norman Macleod observed that it was the privilege of this
Court to administer equity, and, in following the principles of equity, to
relieve against forfeiture. The same view was taken by Sir Norman
Macleod in Narsinha Gopal Vs. Balvant Madhav 5, another case of an
installment decree with a default clause, holding that the delay should be
excused and the judgment-debtor relieved from the consequences of the
default. The Full Bench in the case of Waman Vishwanath disagreed with
the view of Sir Norman Macleod, Chagla CJ, speaking for the Bench,
3 First Appeal No.244 of 1989, decided by Baumont C.J. And Sen J. on 29.11.1940.
4 AIR (13) 1926 Bom.81
5 AIR (9) 1922 Bom.170
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observing as follows :
"With greatest respect, what the learned Chief Justice overlooked
was whether there was any penalty provided in the consent
decree. It is not disputed and it cannot be disputed that a Court
of equity can relieve against penalties or against forfeiture. But
the question that has got to be determined is whether a certain
obligation undertaken by a judgment-debtor is in the nature of a
penalty or whether it is the result of a concession conferred upon
him by the decree-holder."
The Full Bench agreed with the view of Sir John Beaumont and
overruled the decisions in Narayan Vs. Rajmal and Narsinha Gopal Vs.
Balwant Madhav.
8 Much later, in the case of Durga Mohan Joshi Vs. International
Metal Industries6, a learned Single Judge of our Court (Sujata V. Manohar
J, as the learned Judge then was), relying on the Full Bench decision in
Waman Vishwanath, held that once a decree is passed in a suit, the Court
cannot pass any further orders. There was but one exception in equity to
this rule, namely, when in the case of a consent decree or a decree in
invitum, there is a provision for penalty or forfeiture in the event of a
default by the judgment-debtor. In such case, the Court in equity can grant
relief against such penalty or forfeiture. The learned Judge held as
follows :
Once a decree is passed in a suit the court cannot pass any
further orders. There is only one exception in equity to this
rule. In the case of consent decrees or decrees in invitum, if
there are any provisions for penalty or forfeiture in the event of
the judgment-debtor committing any default, then in equity the
6 AIR 1984 Bombay 314
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court has jurisdiction to give relief against penalty or forfeiture.
Cases of relief against forfeiture usually are cases of decrees
between landlord and tenant, where there is a provision that on
the tenant's failure to pay rent, his tenancy is to be forfeited.
Penal provisions in a decree were discussed in the case of
Waman Vishwanath Bapat Vs. Yeshwant Tukaram, (1948) 50
Bom. .R 688, by a Full Bench of this High Court. It held that in
a decree which is passed either by consent or in invitum, if there
is any provision for payment of the decretal amount in
installments and there is also a provision that on failure to pay
one or more installments, the whole amount of the decree
becomes payable at once, the Courts are bound, in the event of
such failure, to execute the decree in accordance with its terms,
and are not at liberty to relieve the judgment-debtor against the
consequences of failure on equitable considerations. Chagla,
C.J. held that such a provision in the decree could not be
considered as a penal provision. On the contrary, a provision for
payment of the decree by installments was a concession which
was granted to the judgment-debtor by the decree-holder. There
was no question, therefore, of the judgment-debtor being
granted relief against any penal provision in the decree. In this
judgment the High Court has cited with approval a decision of
the Division Bench of this High Court in the case of Burjorji
Shapurji Vs. Madhavlal Jesinghbhai, (1934) ILR 58 Bom 610. In
this judgment a distinction is drawn between a concession and
a penalty. "If there is an agreement to pay a sum of money by a
particular date with a condition that if the money is not paid on
that date a larger sum shall be paid, that condition is in the
nature of a penalty against which a Court of equity can grant
relief...... But if, on the other hand there is an agreement to pay
a particular sum followed by a condition allowing to the debtor
a concession, for example, the payment of a lesser sum, or
payment by installments, by a particular date or dates, then the
party seeking to take advantage of that concession must carry
out strictly the conditions on which it was granted, and there is
no power in the Court to relieve him from the obligation of so
doing." (See in this connection also Gajanaj Govind Pathak Vs.
Pandurang Keshav, (1951) 53 Bom LR 100 and Doshi Kantilal V.
Modiya Chandulal, (AIR 1973 Guj.80). The provision in the
present decree is for the payment of a lesser sum by
installments. It is clearly a concession and not a penalty. There
can be, therefore, no room for intervention on equitable
grounds.
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The learned Judge also considered whether there was power in the
Court to grant extension of time for payment of installments under the
decree, under Section 148 read with Section 151 of the Code. The learned
Judge ruled that there was no such power in the Court, observing as
follows :
Provisions of S.148 are attracted when under an order of the
Court any time is fixed for the doing of any act prescribed or
allowed by the Code. This provision enables a court which is
seized of the matter and has control over it, to enlarge time for
the doing of any act which is prescribed or allowed by the
Code. Section 148 applies only to orders passed by a court
while it still retains control over the matter. Once a decree is
passed, the Court completes its task qua that matter. It does
not retain any further control over the proceedings. Hence the
provisions of S.148 cannot apply to final decrees of any court.
Any time for payment which is laid down in a decree cannot be
enlarged by resorting to Section 148. The only case where the
provisions of S.148 can be applied to a decree is the case where
the decree is of a preliminary nature and the court has retained
control over the proceedings for the purpose of passing a final
decree. Hence under S.148 there is no power in the court to
extend the time for payment under a decree as in the present
case.
The learned Judge also held that no such power existed even under
Section 151, observing as follows :
It is also not possible to invoke the inherent power of the court
under S.151 of the C.P.C. because the power under S.151 cannot
be restored to in order to achieve a result which is not permitted
by the express provisions of the Code. In the view of the
provisions of O.XX, R.11, sub-rule (2) of the C.P.C., the court
cannot grant any further extension of time after the passing of
the decree without the consent of the decree-holder. The
provisions of S.151 cannot be resorted to for the purpose of
overcoming the bar of O.XX, R.11(2).
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9 Learned Counsel for the Defendants relies on the decision of the
Supreme Court in the case of Periyakkal Vs. Dakshyani7. In that case, in
execution of a decree, a certain property of the judgment-debtor was
brought to sale. The decree-holder himself purchased the property. On the
application of the judgment-debtor's legal heirs under Order 21 Rule 90 for
setting aside the sale, the parties entered into a compromise with the leave
of the Court. The compromise inter alia provided for deposit of a certain
sum in full and final settlement of the decree by a particular date and in
default, for confirmation of the sale. The judgment-debtors failed to
deposit the amount in terms of the compromise order, and instead filed an
application under Sections 148 and 151 of the Code for extension of time
to make the deposit. The application was dismissed by the High Court. In
appeal, the Supreme Court held that the time for deposit stipulated by the
parties became the time allowed by the Court and this gave the Court the
jurisdiction to extend the time in appropriate cases. The Supreme Court
further held that time would not be extended ordinarily, nor for the mere
asking, but it could always be extended in rare cases to prevent manifest
injustice, observing as follows :
"True, 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."
10 It would seem, at the first blush, that this judgement supports the
Defendants in the present case. It is, however, important to note that the
7 AIR 1983 SC 428
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compromise order, with which the Court was concerned in Periyakkal's
case, was an order passed in execution proceedings and not a final decree.
It was passed in an application under Order 21 Rule 90 for setting aside a
sale in execution; It provided for payment by a particular date in
satisfaction of the decree; and it provided, in default, for confirmation of
the sale. What the Court did in that case was to relieve the judgment-
debtor from the forfeiture resulting from his failure to pay and granted
enlargement of time. The case was clearly covered under Section 148 and
not under Order 20 Rule 11. That is precisely how the ratio of Periyakkal's
case was explained by our Court in Durga Mohan Joshi's case and
extension of time was refused to the judgment-debtor on his unilateral
application under Order 20 Rule 11(2).
11 Even the other judgments relied upon by Mr. Cama for the
Defendants deal with extension of time provided in orders of the Court for
payment in cases other than decrees for payment of money under Order 20
Rule 11. Johri Singh Vs. Sukh Pal Singh8 was a case where the Court was
concerned with a decree in a pre-emption suit. The plaintiff's claim for pre-
emption was allowed subject to deposit of purchase money of Rs.41,082/-
less the amount of 'zare-panjum' by a particular date. The plaintiff
deposited the amount before the stipulated date and applied for possession
of the land. The possession was actually delivered to him in pursuance of
that application. In the meantime, however, the office of the Court
reported that the amount deposited fell short of the decretal amount by
Rs.100. The plaintiff decree-holder, in the premises, applied for
condonation of the delay and permission to deposit the balance of Rs.100/-
8 (1989) 4 Supreme Court Cases 403
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on the ground that there was an inadvertent arithmetical mistake on his
part as also on the part of the Court Officials. The defendants, on the other
hand, filed an application praying that there being short deposit, the decree
was a nullity and the suit stood dismissed and accordingly, the land be
restored to them. The first Court, namely, Senior Subordinate Judge,
condoned the delay and granted ten days time to the plaintiff to deposit
the balance of Rs.100/-. On a revision moved by the defendants under
Section 115 of the Code of Civil Procedure, the High Court set aside the
order of the Senior Subordinate Judge and dismissed the decree-holder's
application for condonation of delay and permission to deposit Rs.100/-.
The Supreme Court allowed the decree-holder's appeal holding that Section
148 of the Code empowered the Court to extend the time fixed by it even
after the expiry of the period originally fixed and that the case was one
where the court had to use this discretion and extend the time, since the
mistake was bonafide and not indicative of any negligence or inaction. The
court particularly held that in its decree the court had not specified the
amount of zare-panjum and thus, had not quantified the purchase money,
and as a result, an inadvertent error had crept in the arithmetical
calculation; that the deficit of Rs.100/- was a very small fraction of the
total payable amount which was paid very much within the time fixed for
the same, and that there was no reason, except for the mistake, why the
plaintiff would not have paid this Rs.100/- also within time; that the
decree-holder's application for payment of the challan annexed was
allowed by Court Officials without pointing out the mistake; and that the
amount was deposited accordingly and even possession of the property was
delivered to the decree-holder. This was clearly a case where the time was
provided for by the court in a decree, stipulating dismissal of the suit in the
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default clause, resulting in loss of the Plaintiff's pre-emption right. This
stipulation was clearly in the nature of a penalty or forfeiture, and the
court would relieve the decree-holder of the consequences thereof.
12 In Rizvi Nagar Co-operative Housing Society Ltd. vs. The
Municipal Corporation of Greater Bombay 9, our court was concerned
with a consent decree in a suit for a declaration that an auction sale
conducted by and between the defendants was illegal. The consent terms
filed in the suit provided for payment of a certain sum with interest in
instalments. The terms also provided that in case of default in payment of
any of the instalments, the auction sale would stand automatically
confirmed and the suit would stand dismissed without any further order.
The last instalment was not paid on or before the stipulated date and as a
result, the plaintiffs took out a chamber summons for condonation of delay.
The defendants opposed enlargement of time and inter alia cited
Periyakkai's case, referred to above. A learned Single Judge of our court
held that as a result of non-payment of the last instalment by the stipulated
date, the plaintiffs were loosing a valuable right in respect of the
immovable property mentioned therein. The court held that the default
clause, providing for dismissal of the suit and confirmation of the auction
sale, was in the nature of forfeiture and granted relief to the plaintiffs
against such forfeiture. This was clearly a case where as a result of non-
payment, the plaintiffs lost valuable property by way of a penalty or
forfeiture. The learned Judge was of the view that the decree could be
altered on the grounds of equity by granting relief against such penalty or
forfeiture.
9 1993(1)Bom.C.R. 495
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13 The case of M/s.Jolly Steel Industries Pvt.Ltd. vs. Gupta Steel
Industries10, referred to by Mr.Cama, concerned a consent decree passed in
a suit for recovery of land and immovables. The consent decree provided
for instalments and in default, dismissal of the suit filed by the plaintiffs.
There was a delay of less than four weeks in depositing the first instalment
as per the consent terms, whereas the second instalment was correctly
deposited. The plaintiffs explained the small delay, which explanation was
not disputed by the defendants. Considering the law laid down by the
Supreme Court in the case of Periyakkai (supra), the court held that this
was a case for extension of time under Sections 148, 149 and 151 of the
Code of Civil Procedure and it was necessary to extend the time in order to
avoid manifest and serious injustice to the plaintiffs. The court held the
case to be an exceptional case, where, if the time was not extended, the
plaintiffs would be losing not only rights provided under the consent terms,
but the entire landed property and machinery belonging to them for a
small fault. Again a case for relief against forfeiture or a penalty clause. It is
interesting to note that when the order of the Division Bench in Jolly Steel
Industries was carried in appeal before the Supreme Court, the Court
disagreed, as a principle of law, with the High Court interfering with or
modifying the consent decree without agreement for such modifiation
between the parties, though the Supreme Court declined to interfere with
the order at that distance of time. (see Gupta Steel Industries vs. Jolly
Steel Industries Pvt.Ltd.11)
14 The case of Jabendra Nath Mishra vs. Smt.Manorama Debva 12
10 1997(1)Bom.C.R. 192
11 (1996) 11 SCC 678
12 AIR 1970 Calcutta 199 (V 57 C34)
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was a case where an ex-parte decree was passed in a suit for partition. On
an application for setting aside that ex-parte decree under Order 9 Rule 13,
consent terms came to be filed, under which the suit was restored to file
and the ex-parte decree was set aside subject to payment of certain amount
by the original defendants within a certain time. The default clause
provided for dismissal of the miscellaneous application and affirmation of
the ex-parte decree. On account of illness, the defendant could not make
the deposit in time, with the result that the miscellaneous application stood
dismissed and the ex-parte decree confirmed. The court held that as a
result of non-deposit of money within time, the defendant was losing a
valuable right in respect of immovable property, or in other words, it was a
case of forfeiture and that relief against forfeiture could be granted.
15 None of these are cases of a money decree under Order 20 Rule 11,
and all provided for loss of valuable property in default of the conditions
stipulated therein. In Periyakkal's case, the compromise was entered into
in execution to prevent a sale and the default clause provided for
confirmation of the sale. In Johri Singh, the decree was for enforcement of
the plaintiff's right of pre-emption in respect of certain land subject to
payment, the default clause providing for dismissal of the suit and loss of
the right of pre-emption. In Rizvi Nagar Society's case, the subject matter
of the suit concerned an auction sale, the default clause providing for
confirmation of the auction sale, whereas in Jolly Steel Industries, the
consent decree was in a suit for recovery of land where the default clause
provided for dismissal of the suit and loss of the land by the plaintiff. In
Jabendra Nath Mishra's case, the default clause provided for confirmation
of a decree of partition. All these cases, thus, come under the exception
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referred to by our Court in Waman Vishwanath and Durga Mohan Joshi,
namely, the consent decree or decree in invitum providing for a penalty or
a forfeiture and the Court relieving the party in breach from its
consequences.
16 In the present case, there was a decree for a sum of Rs.1,04,50,000/-.
On the judgment debtor's application, by consent of parties, a concession
was granted to the judgment debtor to pay an amount of Rs.90,00,000/- in
two instalments of Rs.45,00,000/- each in full and final settlement of the
Plaintiff's claim. On failure of such payment, the order provided for the
entire decretal amount becoming due and the decree being liable to be
executed on that basis. The case clearly comes within the dicta of the Full
Bench judgment of our court in the case of Waman Vishwanath. A clause
providing for execution of the decree for the entire decretal amount on
failure of payment of a concessional amount within a stipulated time is not
in the nature of penalty or forfeiture and there is no question of this court
relieving the judgment debtor of its consequences. Mr.Cama tries to
distinguish the consent order in the present case as an order providing for
payment of a larger amount in default of payment of the decretal sum in
instalments. The submission is that the original decree was set aside and
substituted by a decree for payment of a smaller sum and in default, for
payment of the larger sum, i.e. the original decretal sum. The suggestion
seems to be that to come within the principle of Waman Vishwanath, the
original decree had to be retained and its satisfaction had to be provided in
terms of payment in instalments of a lesser sum (i.e. the concessional sum).
This is nothing but a matter of semantics. In substance, the original decree
is given a go by only on the basis of a concessional payment, failure of such
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payment resulting into an entitlement to execution of the decree already
passed, and that cannot be termed as a penalty or a forfeiture.
17 The application for extension of time is, accordingly, rejected.
A decree for full amount shall follow.
18 Learned Counsel for the Defendants / Applicants seeks
continuation of the status quo granted on 23 December 2015. Learned
Counsel for the Defendants / Applicants states that he shall not create any
third party rights in respect of his property, or dispose of or alienate the
property, otherwise than in the usual course of his business for the period
for which status quo shall be continued. On his application and subject to
his statement, which is accepted by the court, the status quo shall continue
for a period of four weeks from today.
(S.C.GUPTE, J.)
