Bombay High Court
M/S Golden Horizon Promoters Pvt. ... vs Sapna Vilasrao Dhumal And Ors on 6 July, 2021
Bench: Nitin W. Sambre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2131 OF 2021
M/s Golden Horizon Promoters .... Petitioner
Pvt. Ltd., through its M.D.,
Mr. Dilip J. Girme
Vs.
Smt. Sapna Vilasrao Dhumal & Ors. .... Respondents
Mr.Girish Agrawal for Petitioner
Mr. Parag Dube Respondent Nos. 1 to 6.
Coram : NITIN W. SAMBRE, J.
Date : 6th JULY, 2021
P.C.:
1. Heard respective Counsel.
2. In a Special Civil Suit No. 331 of 2013 initiated on 2 nd
March, 2013 on the file of Civil Judge, Senior Division, Pune for specific
performance, the Petitioner-Defendant suffered an order on 14 th
September, 2018 passed below Exhibit-51, an application under Order
XI, Rule 14 of Code of Civil Procedure. The Petitioner were directed to
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produce on record certified copy of the joint venture agreement, as
referred to in the application, Exhibit 51.
3. Since the order below Exhibit-51 was not complied with,
the Respondents-Plaintiffs moved an application, Exhibit 52 under Order
XXXIX, Rule 11 of Code of Civil Procedure (Bombay Amendment for
striking out the defence). The said application came to be allowed vide
order dated 2nd August, 2019.
4. Inspite of above order, the Petitioner has not immediately
produced the agreement, as directed, however, on 19 th December,
2020, moved for setting aside of an order passed below Exhibit 52 for
striking out defence, which prayer was rejected vide impugned order
dated 16th March, 2021. As such, this petition questioning the order
dated 16th March, 2021 passed below Exhibit-56.
5. Mr. Agrawal, learned counsel appearing for the Petitioner
would urge that it was a bonafide mistake on the part of the Petitioner-
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Defendant in not complying with the order dated 14 th September, 2018.
According to him, there was no intention on the part of the Applicant to
show any disrespect to the orders of the Civil Court. He would further
claim that the provisions of striking out of defence under Order XXXIX,
Rule 11 of Code of Civil Procedure ought not to have been justifiably
invoked against the Petitioner, particularly when an adverse inference
could have drawn against the Petitioner for non production of
document. He would draw support from the judgment of this Court in
the case of Zilla Parishad, Aurangabad and Another Vs. Punarjanma
Rewinders and Electricals, reported in 2006 (6) Maharashtra Law
Journal, page 661.
6. While countering the submissions, Mr. Dube, learned
counsel appearing for Respondent Nos.1 to 6 would urge that the
Petitioner is intentionally indulging in delaying tactics as the suit is of
the year 2013, which is not taken to its logical end till date.
7. According to learned counsel, the Court below was
sensitive to the non co-operative conduct of the Petitioner and as such
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was justified in invoking the provisions of Order XXXIX, Rule 11 of Code
of Civil Procedure for striking out defence. As such, he has sought
dismissal of the petition.
8. Considered rival submissions.
9. It is not in dispute that the document as directed was
produced by the Petitioner at a belated stage i.e. alongwith an
application, Exhibit-56, on 19th December, 2020 i.e. after a delay of
more than two years from the date of the order of production i.e. 14 th
September, 2018. Intentional delay in compliance can be inferred from
the above event. It can be seen that even after the defence was struck
out under Order XXXIX, Rule 11 of Code of Civil Procedure, by passing
an order below Exhibit 52 on 2nd August, 2019, the Petitioner appears
to have intentionally not complied with the order and rather delayed the
suit proceeding for a period of 16 months.
10. In this background, this Court was not inclined to show any
indulgence, however, Mr. Agrawal, learned counsel appearing for the
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Petitioner has assured that the Petitioner shall not be seeking any
adjournment in the suit and shall co-operate in expeditious disposal of
the suit. He would further claim that the Petitioner can be put to a
reasonable condition including payment of costs.
11. In the aforesaid backdrop, so as to give last opportunity to
the Petitioner, it will be appropriate, in my opinion to set aside the order
impugned dated 16th March, 2021 passed below Exhibit-56 thereby
rejecting the prayer for setting aside order dated 2 nd August, 2019
passed below Exhibit 52. As such, the Application, Exhibit 56 in Special
Civil Suit No. 331 of 2013 stands allowed and the order dated 2 nd
August, 2019 passed below Exhibit 52 is set aside subject to the
following conditions.
(A) The Petitioner, within four weeks, shall deposit
costs of Rs.1,00,000/- (Rupees One Lakh Only)
before the trial Court, to which the Respondent
Nos. 1 to 6 will be entitled to withdraw;
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(B) Any adjournment on unreasonable ground by the
Petitioner shall be subject to exemplary costs of
not less than Rs.25,000/-;
(C) The hearing of the Special Civil Suit No. 331 of
2013 stands expedited;
(D) In any case, the Suit be decided within a period of
one year from today.
12. The Writ Petition stands allowed in above terms.
( NITIN W. SAMBRE, J.)
