Calcutta High Court
Chirantan Housing Private Limited vs Youdhister Kumar Dhanania Alias ... on 1 August, 2024
Author: I. P. Mukerji
Bench: I. P. Mukerji
OD 6
ORDER SHEET
APO/9/2024
WITH CS/29/2016
IA NO: GA/2/2024
CHIRANTAN HOUSING PRIVATE LIMITED
VS
YOUDHISTER KUMAR DHANANIA ALIAS YOUDHISTER KUMAR AGARWAL
Before:
The Hon'ble Justice I. P. MUKERJI
And
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 1ST August, 2024
Appearance:
Mr. Siddhartha Mitra, Sr. Adv.
Ms. Reshmi Ghosh, Adv.
Mr. Tanmoy Sett, Adv.
Mr. Atish Ghosh, Adv.
Ms. Antara Dey, Adv.
...for appellant/plaintiff.
Mr. Malay Kr. Ghosh, Sr. Adv.
Mr. Paritosh Sinha, Adv.
Mr. K. K. Pandey, Adv.
Ms. Enakshi Saha, Adv.
...for respondent.
The Court: We have heard out the appeal. It was from a judgment
and order dated 12th December, 2022 passed by a learned single Judge
of this court setting aside an ex parte decree in favour of the
appellant/plaintiff upon imposition of cost of Rs.10,000/- on the
respondent/defendant. It appears that the ex parte decree was
challenged after 411 days or so. This delay was first condoned before
setting aside the ex parte decree.
Simply put the case of the appellant/plaintiff is that they, as an
intending purchaser entered into an agreement with the
respondent/defendant for sale of an immovable property. At the time of
execution of the agreement for sale, a sum of Rs.75 lakhs was advanced
by them to the respondent/defendant. The property has not been
conveyed. They alleged total failure of consideration and return of the
said sum of Rs.75 lakhs with interest. The respondent/defendant
denies this transaction and says that the sum referred to by the
plaintiff was paid in respect of some other property, transaction. This is
the main issue that is likely to be raised in the suit. Prima facie, it
appears to us that there is no denial of the fact that Rs.75 lakhs was
received by the respondent/defendant.
At this point of time, they are unable to show any consideration
provided for this Rs.75 lakhs to the appellant/plaintiff. Our
observations are plainly prima facie. In the suit, the facts shall have to
be determined by the court and a final conclusion arrived at.
At the moment, we are concerned with the order passed by the
learned judge in setting aside the ex parte decree. In other words, was
the learned Judge right in coming to the conclusion that the
respondent/defendant had sufficient cause to be absent from court
when the ex parte decree was passed ? The learned judge seems to have
ascribed the blame to the former advocate acting for the
respondent/defendant and set aside the ex parte decree.
Without a full scale adjudication on facts we think it is not proper
to interfere with this discretion exercised by the learned judge. At the
same time, we are deeply conscious that this suit of 2016 arising out of
a transaction for sale of property five or six years earlier should be
disposed of at the earliest on merits.
In those circumstances, we expedite the trial of the suit and also
pass some interim orders, as follows :
a. The respondent/defendant is to file their written statement by
12th August, 2024, subject to the conditions below;
b. Order for cross discovery of documents by the parties by 23rd
August, 2024;
c. Inspection forthwith;
d. Judge's brief of documents to be prepared and filed in court
by 6th September, 2024;
e. The suit is to be listed before the learned Judge trying suits on
9th September, 2024, subject to the convenience of the bench.
The learned judge trying suits is requested to proceed with the
trial of the suit as expeditiously as possible and dispose of the same by
24th December, 2024, preferably.
Leave is given to the respondent/defendant to file their written
statement, on the condition that he would furnish Rs. 75 lakhs cash or
a bank guarantee from a nationalized bank in favour of the Registrar,
High Court, Original Side for Rs.75 lakhs by 16th August, 2024. If it is
bank guarantee, it should be automatically renewable every year with a
10% increase in its value. If the deposit is made in cash, the Registrar,
High Court, Original Side shall invest the same in a short term deposit
with State Bank of India, Kolkata High Court Special Branch upon
intimation to the parties.
If there is failure on the part of the respondent/defendant to
comply with this condition his defence would automatically be struck
off on a certificate being obtained from the Registrar that no such
deposit has been made within the stipulated time. The
appellant/plaintiff would be entitled to proceed with the suit ex parte,
once again.
In the facts and circumstances of the case, the order for cost is
set aside.
The rest of the impugned judgment and order is modified to the
above extent.
The appeal and the application are disposed of accordingly.
(I. P. MUKERJI, J.)
(BISWAROOP CHOWDHURY, J.)
Pkd.
