Calcutta High Court
Credwyn Holdings (India) Pvt. Ltd vs Jimmy J. Gazadar on 2 August, 2021
ODC-2
ORDER SHEET
IA No. GA/1/2021
In
CS/51/2016
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
CREDWYN HOLDINGS (INDIA) PVT. LTD.
VS
JIMMY J. GAZADAR
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : August 2, 2021.
[Via video conference]
Appearance:
Mr. Ranjan Bachawat, Sr. Adv.
Mr. Soumya Roychowdhury, Adv.
Mr. Sanjay Ginodia, Adv.
Mr. Shwetank Ginodia, Adv.
Ms. Mini Agarwal, Adv.
Mr. Rajarshi Dutta, Adv.
The Court : The petitioner has an injunction in its favour against
sale of the deceased respondent's property in Goa. The injunction was
modified subsequently to the extent of permitting the heirs of the deceased
respondent from selling the property but keeping the proceeds thereon in a
separate account till the issues in the suit are resolved.
Learned counsel appearing for the petitioner prays for further
orders in terms of Order XXII Rule 4(4) of The Code of Civil Procedure, 1908
which permits a Court in fit circumstances from exempting the plaintiff
from the necessity of substituting the legal representatives of the defendant
where such defendant has failed to file its written statement or has failed to
appear and/or contest the hearing of the suit. Counsel places a certificate
from the Department dated 16th September, 2020 which records that the
defendant herein was served and an order of a learned Single Judge dated
13th November, 2017 which directs that the suit should proceed as an
undefended suit. Counsel further places Section 213 of The Indian
Succession Act, 1925 under which no right of an executor or a legatee can
be established in any Court unless a Court of competent jurisdiction has
granted probate of the Will under which the right is claimed. It is submitted
that since in the present case the deceased was a Parsi, exception to
Section 213 under sub-section (2) would not apply.
Learned counsel appearing for the executor and one of the
legatees of the Will seeks time to respond to the prayer made by the
petitioner on the ground that the petitioner was aware of the death of the
defendant in the present case. Counsel relies on The Indian Succession Act,
1925 to submit that he has certain rights as an executor of the Will.
Upon hearing learned counsel, this Court is of the view that Order
XXII Rule 4(4) gives a discretion to the Court in fit circumstances to exempt
a plaintiff from the rigours of substituting the legal representatives of the
deceased defendant in the event the defendant has not filed its written
statement or contested the hearing of the suit. The provision proceeds to
entitle the Court to pronounce judgment in such case against the said
defendant regardless of the death of such defendant as if the judgment was
pronounced if the defendant had not died. Clause 4 of sub-section (4) of
Order XXII has a definite connection with Clause 5 which presumes that
the plaintiff was unaware of the death of the defendant and was unable to,
by reason of such ignorance, to make an application for substitution of the
legal representatives of the defendant.
The crucial factor in the present case is that the plaintiff was
aware of the defendant's death which would be evident from an exchange of
messages on the WhatsApp messaging/media between the concerned
parties. Moreover, Clause (ii) of sub-section (2) of Section 213 of The Indian
Succession Act, 1925 which deals with a Will made by a Parsi and serves as
an exemption to the applicability of Section 213 where the immovable
property is outside the ordinary original civil jurisdiction of this Court. The
property in the present case is located in Goa and hence it is arguable
whether the executor can be pinned down to the requirement of Section 213
in the present case.
For the above reasons, this Court is disinclined to allow the prayer
of the petitioner in terms of prayer (d) of the application which is for
granting leave to proceed with the suit for exempting the petitioner from the
necessity of substituting the legal representatives of the respondent. This
Court is also of the view that permitting such a prayer at this stage would
grant unilateral rights in favour of the petitioner which cannot be the case
once the executor of the respondent has appeared and contested the
proceedings by filing a separate application which is pending for
consideration.
However, since the interim order, as modified by the order dated
26th July, 2021, is due to expire on 6th August, 2021, the interim order is
extended for a further period of four weeks from date.
Let GA No. 2 of 2021 be listed along with the present application.
The executor is directed to file its affidavit within two weeks from date; reply
within a week thereafter.
The prayer (d) to the present application will be considered after
affidavits.
List this matter on 24th August, 2021.
(MOUSHUMI BHATTACHARYA, J.)
sg.
