Laxman Marotrao Nakade (Dead) ... vs Banjrangilal Bachairam Gupta
2023 Latest Caselaw 6461 Bom

                                1               926.CRA.128-2022 JUDGMENT.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR

        CIVIL REVISION APPLICATION (CRA) NO. 128 OF 2022

    1     Laxman Marotrao Nakade
         Aged About 80 years, Occ- Cultivator
         (Dead)         Through         Legal
         Representatives No.2 to 4.


    2    Narayan Laxman Nakade
         Aged About 80 Years,
         Occ - Cultivator


    3    Waman Laxman Nakade
         Aged about 55 Years,
         Occ - Cultivator


    4    Tara Sopan Nakade
         Aged About 45 Years,
         Occ - Household
         All R/o Maskasath, Near Post Office,
         Telipura, Itwari, Nagpur.


    5    Uday kumar Ramniwasji Vyas
         Wrongly described as Udayprakash
         Ramniwasji Vyas
         Aged About 63 Years, Occ - Business,
         R/o. Vijay Bhawan, West High Court
         Road, Nagpur.                            APPLICANTS


            Versus

         Bajrangilal Bachairam Gupta
         Aged About 55 year, Occ - Business,


::: Uploaded on - 08/07/2023              ::: Downloaded on - 08/07/2023 19:36:08 :::
                                            2                  926.CRA.128-2022 JUDGMENT.odt




         R/o. 58, Central Avenue Road,
         East Wardhaman Nagar, Nagpur.                         NON-APPLICANT



 -----------------------------------------------
 Mr. S.V. Purohit, Advocate for the Applicant.
 Mr. S.S. Sitani, Advocate for the Non-applicant.

 -----------------------------------------------


                               CORAM : AVINASH G. GHAROTE, J.

                               DATED      : 7th JULY, 2023.

  ORAL JUDGMENT :-


                   Heard.

2. Rule. Rule made returnable forthwith. Heard finally

with the consent of learned counsels for the rival parties.

3. The revision challenges the judgment dated

02.11.2022 passed by the learned Ad-hoc District Judge-1,

Nagpur, in Misc. Civil Appeal No. 160/2021, whereby the

judgment dated 14.08.2018 passed by the learned 8 th Joint Civil

Judge Senior Division, Nagpur, in M.J.C. No. 12/2012, thereby

rejecting the application filed by the non-applicant, who was the

3 926.CRA.128-2022 JUDGMENT.odt

original plaintiff in Special Civil Suit No.132/2004, which came

to be dismissed on 22.11.2011 under Order XXXIX Rule 11 of

the Code of Civil Procedure (for short "C.P.C."), has been set

aside and Special Civil Suit No.132/2004, has been restored to

file.

4. Special Civil Suit No.132/2004 was a suit for

specific performance of the agreement dated 29.05.2003 (page

126) filed by the non-applicant against the applicants. In the

said suit, the applicants filed an application for impounding the

agreement dated 29.05.2003 on the ground that since it showed

a consideration of Rs.90,00,000/- and also indicated delivery of

possession, but was written on a stamp paper of Rs. 100/-, the

same was required to be impounded under Section 33 of the

Maharashtra Stamp Act and was required to be sent to the

Collector of Stamps for assessing the stamp duty and penalty

payable thereupon. The said application came to be allowed by

the order dated 05.04.2006 directing impounding of the

document. Against this order, Writ Petition No.3328/2006 came

to be filed, which later on came to be disposed of as infructuous

on account of a statement being made by the learned counsel

4 926.CRA.128-2022 JUDGMENT.odt

for the non-applicant, that the evidence in the matter had

commenced. By this, the order of impounding therefore attained

finality. Thereafter the Collector of Stamps by his order dated

23.02.2007 calculated the stamp duty and penalty to be

Rs.46,51,010/-, being aggrieved by which the non-applicant

filed Writ Petition No. 4191/2007, in which by an order dated

01.10.2008, the order of the Collector of Stamps dated

23.02.2007 was set aside and the matter was remanded back to

the Collector of Stamps for recalculating the stamp duty and

penalty.

5. On remand, the Collector of Stamps by his order

dated 30.11.2010 calculated the stamp and penalty at Rs.

29,60,075/- which again came to be challenged by way of Writ

Petition No. 3743/2010, which came to be partly allowed by the

order dated 20.10.2010 directing the Collector of Stamps to

value the agreement at Rs.2,15,50,000/-. Special Leave Petition

No.25014/2011 there against came to be dismissed on

19.09.2011. The Collector of Stamps by his order dated

30.11.2010, consequent to the order dated 20.10.2010 in Writ

Petition No.3743/2010 calculated the stamp duty and penalty at

5 926.CRA.128-2022 JUDGMENT.odt

Rs. 28,67,987/-.

6. In the meantime, it is necessary to note, that the

non-applicant had on 27.11.2006 filed an undertaking Ex.44,

before the learned Trial Court stating that in case the evidence

is tried to be led upon the agreement of sale, he undertakes to

pay the stamp duty as per law (page 32). Another undertaking

was also filed on behalf of the non-applicant by his counsel on

22.03.2007 at Exh. 48 to the effect that the plaintiff undertook

to deposit the requisite stamp duty for impounding the

document within a period of four days (page 31).

7. The applicants on 04.01.2010 and 21.09.2011 had

already filed two applications under Order XXXIX Rule 11 (1) of

C.P.C. for dismissal of the suit for non-compliance of the

undertaking and also the order below Exh. 27, the application

for impounding of the agreement. The learned Trial Court by

the order dated 22.11.2011 (page 40), holding that the non-

applicant inspite of the order of impounding having become

final had failed to show any bonafides to comply with the same,

and therefore, in view of the provisions of Order XXXIX Rule 11

6 926.CRA.128-2022 JUDGMENT.odt

(1) of C.P.C., had committed default/contravened, the orders

passed by the Court dated 05.04.2006 below Exh. 27 and also

undertaking below Exhs. 44 and 48 in the matter of making

payment of deficit stamp duty and penalty thereupon on the

agreement of sale dated 29.05.2003 dismissed the suit for the

said reason (page 55).

8. The non-applicant thereafter filed an application for

setting aside the dismissal of the suit vide M.J.C. No. 12/2012

in which by judgment dated 14.08.2018, the learned Court

finding that the requirements of Order XXXIX Rule 11 (2) of

C.P.C., of sufficient cause having not been established rejected

the application (page 35). An appeal under Order XLIII Rule 1

of C.P.C., came to be preferred there against by the non-

applicant which was registered as Misc. Civil Appeal

No.160/2021. The learned Ad-hoc District Judge-1, Nagpur, by

the impugned judgment has allowed the same resulting in the

present revision.

9. Mr. Purohit, learned counsel for the applicants

submits, that the entire conduct of the non-applicant indicates

7 926.CRA.128-2022 JUDGMENT.odt

procrastination and avoidance to pay the correct stamp duty

and the penalty thereupon inspite of the fact that consequent to

the order dated 30.11.2010 passed by the Collector of Stamps

and dismissal of the Special Leave Petition by the non-applicant

on 19.09.2011, the quantum of the stamp duty and the penalty

payable thereupon had become final, and therefore, it was the

bounden duty of the non-applicant to have immediately paid

the same, non payment of which resulted in passing of the order

of dismissal of the suit on 22.11.2011. He further submits, that

even thereafter, there have been no attempts on part of the non-

applicant to show his bonafides and it is for the first time when

the query was made by this Court, that an application has been

filed for deposit of the stamp duty and penalty as per the order

dated 30.11.2010 in this Court.

10. Inviting my attention to para 15 of the impugned

judgment, it is submitted that this conduct of the non-applicant

has been duly noted by the learned Ad-hoc District Judge-1,

Nagpur, inspite of which the non-applicant has been permitted

to pay the stamp duty and the suit restored, which according to

him is not permissible in law. It is also contended, that the

8 926.CRA.128-2022 JUDGMENT.odt

undertakings at Exh. 48 dated 22.03.2007 as well as one at Exh.

44 dated 27.11.2006, bound the non-applicant, to pay the

stamp duty and the penalty, inspite of which nothing was done,

other than filing writ petitions questioning the quantum which

also according to him shows the conduct of the non-applicant in

procrastination and so also non compliance of the orders, as a

result of which, the requirement of Order XXXIX Rule 11 (1) of

C.P.C., clearly stood satisfied. It is also contended, that the

requirements of Order XXXIX Rule 11 (2) of C.P.C., have not

been complied with, and therefore, the impugned judgment

cannot be sustained.

11. Mr. Sitani, learned counsel for the non-applicant

submits, that there was no intention on part of the non-

applicant not to pay the stamp duty and the penalty and the

entire fight was to pay the correct stamp duty and penalty,

which according to him is evident from the fact, that on account

of orders passed in Writ Petition Nos. 4191/2007 and

3743/2010, the stamp duty and penalty which was earlier

calculated at Rs.46,51,010/- stood reduced to Rs. 28,67,987/-.

It is also contended, that the order below Exh. 27 dated

9 926.CRA.128-2022 JUDGMENT.odt

05.04.2006 was an order of impounding for which the

document i.e. agreement of sale dated 29.05.2003 was sent to

the Collector of Stamps, and therefore, there was no obligation

created upon the non-applicant of making any compliance on

account of which there was no violation of the said order so as

to attract provisions of Order XXXIX Rule 11 (1) of C.P.C. It is

also contended, that the provisions of Order XXXIX Rule 11 (1)

of C.P.C., were directory as held by the learned Division Bench

of this Court in Ramavatar Surajmal Modi Vs. Mulchand

Surajmal Modi, 2004 (2) Mh.L.J. 1 , and therefore, the claim of

the non-applicant for specific performance could not be thrown

out on the ground of non-compliance with the order dated

05.04.206.

12. Insofar as the undertaking is concerned, it is

contended, that the undertaking at Exh. 44 dated 27.11.2006,

was a conditional undertaking agreeing to pay the stamp duty

in case the evidence was led upon the document i.e the

agreement of sale dated 29.05.2003 and since only an affidavit

in lieu of evidence was filed on 28.11.2006 without the non-

applicant/plaintiff entering into the witness box, it could not

10 926.CRA.128-2022 JUDGMENT.odt

have been said that the document was attempted to be proved

by leading evidence on account of which the plea that the

undertaking at Exh. 44 dated 27.11.2006 was violated cannot

stand to reason. Insofar as the undertaking at Exh. 48 dated

22.03.2007 is concerned, it is submitted that the same was filed

by the counsel without any knowledge of the non-applicant, and

therefore, the non-applicant could not be penalized for the same

for which reliance is placed on Himalayan Cooperative Group

Housing Society Vs Balwan Singh, (2015) 7 SCC 373.

13. Mr. Sitani, learned counsel for the non-applicant,

upon instructions of the non-applicant, who is present in the

Court in order to show his bonafide states, that the non-

applicant is ready to make amends by payment of a cost of

Rs.2,00,000/- to the other side and so also to deposit the stamp

duty and penalty as calculated by the order dated 30.11.2010 of

Rs.28,67,987/- and so also undertakes to deposit the balance

penalty payable till date within a week from its calculation. He

therefore submits, that the rights of the parties need to be

determined on merits and further undertakes upon instructions

to ensure that the suit is decided in a time bound manner. He

11 926.CRA.128-2022 JUDGMENT.odt

therefore submits, that the revision application needs to be

dismissed.

14. The order dated 05.04.2006 (page 25) by which the

agreement of sale dated 29.05.2003, was impounded sends the

true/authentic copy of the same to the Collector, for the purpose

of taking action of assessment of the proper stamp duty leviable

and penalty payable and endorsement of a certificate therein

regarding the same having paid. The order therefore does not

impose any obligation or directions upon the non-applicant. In

case inspite of the Collector of Stamps, having calculated the

stamp duty and penalty, the non-applicant failed to pay the

same, the Collector of Stamps, could have sent the same back

with such an endorsement to the Court, in which case the

Agreement would not have been admissible in evidence. Thus,

there was no positive direction given or obligation created on

the non-applicant by the order dated 5.4.2006, so as to invoke

the provisions of Order XXXIX Rule 11 (1) of C.P.C. so as to

dismiss the suit itself. The dismissal of the suit by the order

dated 22.11.2011, therefore clearly does not appear to be

warranted in the first instance itself.

12 926.CRA.128-2022 JUDGMENT.odt

15. The provisions of Order XXXIX Rule 11 (1) of C.P.C.,

in light of what has been held by the learned Division Bench of

this Court in Ramavatar Surajmal Modi (supra) are directory in

nature, in light of which, even if there is a breach of an

undertaking or an order, it would depend upon the discretion of

the Court, for reasons to be recorded in writing, to the

satisfaction of the Court to either dismiss the suit or strike off

the defence depending upon who commits the breach. At the

same time Order XXXIX Rule 11 (2) of C.P.C., again confers a

discretion upon the Court, on sufficient cause being shown and

on such terms and conditions as it may deem fit to impose,

restore the suit or hear the party in defence, if the party in

breach makes amend for the default or contravention or breach

to the satisfaction of the Court. This would clearly indicate the

intention of the legislature that on account of passing of order

under Order XXXIX Rule 11 (1) of C.P.C., the lis was not to be

terminated or defence is not to be stricken off permanently,

unless the opportunity as contemplated by Order XXXIX Rule 11

(2) of C.P.C., was permitted. If that be so, it is apparent, that the

legislature intended that the suit was to be decided on its own

merits, as amends were permissible in respect of breach of an

13 926.CRA.128-2022 JUDGMENT.odt

order. If that be the purpose of the provision then though there

appears to be a default on part of the non-applicant/plaintiff, he

deserves an opportunity, inasmuch as though the Collector of

Stamps determined the stamp duty and penalty payable

thereupon at Rs. 28,67,987/- by his order dated 30.11.2010, the

same attained finality only on 19.09.2011 when the Special

Leave Petition filed by the non-applicant was dismissed. As

against this, the order below Exhs. 77 and 107, the applications

under Order XXXIX Rule 11 (1) of C.P.C., came to be passed on

22.11.2011, a mere three days after the order of the Collector

dated 30.11.2010, attained finality on account of dismissal of

Special Leave Petition on 19.09.2011. In such a circumstance, it

was permissible for the Court to have granted a reasonable

opportunity to the non-applicant/plaintiff to deposit the stamp

duty and penalty as calculated by the Collector of Stamps by his

order dated 30.11.2010 within a reasonable period of time and

in case that was not done then pass an order under Order XXXIX

Rule 11 (1) of C.P.C., for dismissal of the suit. This is moreso for

the reasons that Order XXXIX Rule 11 (2) of C.P.C.,

contemplates an opportunity of making amends, to the party

committing breach.

14 926.CRA.128-2022 JUDGMENT.odt

16. Insofar as the undertakings are concerned, the

undertaking at Exh. 44 dated 27.11.2006 appears to be

conditional and would come into operation when the document

was sought to be proved. It is an admitted position on record,

that though an affidavit in lieu of evidence came to be filed, the

non-applicant did not enter into the witness box at all, in view

of which, this situation did not arise at all. The undertaking at

Exh. 48 dated 22.03.2007 is admittedly an undertaking given by

the counsel for the non-applicant and the contention that it was

without instructions though made belatedly here, will have to

be considered in light of the duty of the counsel, to give such

undertaking only upon instructions or under the signature of

the non-applicant/party so as to bind his client, as such an

undertaking, has some consequences for the

non-applicant/party. In view of what has been said in

Himalayan Cooperative Group Housing Society (supra), it is

therefore necessary for a counsel to seek appropriate

instructions in this regard in writing from his client and then

give an undertaking to the Court or give the undertaking under

the signature of the client so that such situations can be

avoided.

15 926.CRA.128-2022 JUDGMENT.odt

17. The undertaking at Exh.48, which is only under the

signature of the counsel and not of the non-applicant, will

therefore, have to be considered in the above light and will have

to be held not to bind the non-applicant. Even presuming

otherwise, that it binds the non-applicant, it would be necessary

to be borne in mind that the dispute regarding the correct stamp

duty and penalty payable on the agreement, attained finality

only on 19.09.2011 on account of dismissal of the Special Leave

Petition and thus the obligation to pay the same within four

days as per the time given in the undertaking can be said to

have commenced on 20.09.2011 and ended on 23.09.2011,

however, the suit came to be dismissed on 22.11.2011 itself, a

day prior to the expiry of the period in the undertaking,

considering which position, the compliance of the undertaking

at Exh.48, was made an impossibility by an act of the Court,

which cannot prejudice the litigant/party to the suit.

18. In light of the discussions above and accepting the

statements made by Mr. Sitani, learned counsel for the non-

applicant, as indicated above as statements to the Court and

subject to filing of an undertaking in this Court by Monday i.e.

16 926.CRA.128-2022 JUDGMENT.odt

on 10.07.2023 to deposit the amount of stamp duty and penalty

of Rs.28,67,987/- with the Collector of Stamps, as calculated by

the order dated 30.11.2010 by way of Demand Draft on Tuesday

i.e. on 11.07.2023 itself and so also an undertaking to pay the

penalty from 01.12.2010 till today, within a period of one week

from the date the calculation thereof is made by the Collector of

Stamps and the payment of cost of Rs.2,00,000/- to the non-

applicant, to be deposited in this Court by Monday i.e. on

10.07.2023, the civil revision application is dismissed.

19. However, considering the suit is of the year 2004,

the learned Trial Court, is directed to decide the Special Civil

Suit No.132/2004 as expeditiously as possible and in any case

within a period of one year from the date on which the order of

this Court is brought to its notice, which shall be so done by

both the parties hereto, by 11.07.2023.

20. The Collector of Stamps is directed to calculate the

penalty within a period of one week from today. The

non-applicant, shall place before the Collector of Stamps, a copy

of this order on 10.07.2023, so as to enable him to make

17 926.CRA.128-2022 JUDGMENT.odt

calculations of the penalty payable from 01.12.2010 till today,

within the time stipulated, herein.

21. Rule stands discharged.

22. Pending application/s, if any, shall stand disposed of

accordingly.

( AVINASH G. GHAROTE, J.)

S.D.Bhimte