Delhi High Court
Sushil Kumar Chakravarty Thru ... vs M/S.Tej Properties Pvt. Ltd. on 17 October, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 17th October, 2011
+ FAO(OS) 516/2009
SUSHIL KUMAR CHAKRAVARTY
THRU LEGAL HEIRS ....Appellants
Through: Mr.Rajesh Gupta and
Mr.Harpreet Singh, Advocates
versus
M/S. TEJ PROPERTIES PVT. LTD. .....Respondent
Through: Mr.Manoj Goel and
Mr.Gopal Verma, Advocates.
FAO(OS) 517/2009
SUSHIL KUMAR CHAKRAVARTY ....Appellant
THRU LEGAL HEIRS
Through: Mr.Rajesh Gupta and
Mr.Harpreet Singh, Advocates
versus
M/S. TEJ PROPERTIES PVT. LTD. .....Respondent
Through: Mr.Manoj Goel and
Mr.Gopal Verma, Advocates.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE S.P.GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
FAO(OS) 516/09 & 517/09 Page 1 of 9
PRADEEP NANDRAJOG, J. (Oral)
1. By a common order dated 24.8.2009, the learned
Single Judge has held that no sufficient cause was shown by
the applicants of IA No.4531/2008 to have the delay
condoned in filing that application as per cause shown in IA
No.4532/2008; both applications were filed in CS(OS)
No.1348/1996. Similarly, qua the same applicants it has
been held that no sufficient cause was shown to condone
the delay in filing IA No.3391/2008 in CS(OS) No.2501/1997.
Thus neither was CS(OS) No.1348/1996, which was
dismissed in default on 14.10.2004 restored, nor was the
ex-parte decree dated 25.7.2007 passed in CS(OS)
No.2501/1997 set aside.
2. The memo of parties in the appeal is misleading
for the reason it evidences as if the legal heirs of late
Sh.Sushil K.Chakravarty are litigating on the demise of late
Sh.Sushil K.Chakravarty. We may highlight that both
appeals have been filed by Arun K.Chakravarty and Sunil
K.Chakravarty who claim to be Class-II heirs of late Sh.Sushil
K.Chakravarty.
3. Both of them claim, that they learnt about
CS(OS) No.1348/1996 which was dismissed in default on
14.10.2004, in the month of February 2008 and of CS(OS)
No.2501/1997 being decreed in the same month and thus
while seeking restoration of the former suit and setting
aside of the ex-parte decree in the latter by filing
applications under Order 9 Rule 9 CPC and Order 9 Rule 13
CPC respectively, in the 2 suits, both prayed that delay in
filing the 2 applications be condoned.
4. Declining delay to be condoned, the learned
Single Judge has opined that both of them were aware of
the 2 suits being filed against their uncle during the life time
of their uncle, when in reply to CCP No.450/1993 in Suit
No.1479A/1989 as also reply to IA No.10161/1997 in said
suit, it was disclosed by late Sh.Sushil K.Chakravarty that he
was in litigation with Tej Properties Ltd. and for which 2
cross suits i.e. CS(OS) No.1348/1996 and CS(OS)
No.2501/1997 were filed on the Original Side of the Delhi
High Court. The learned Single Judge has accordingly
opined that when reply was filed to IA No.10161/1997 on
25.8.1998 by late Sh.Sushil K.Chakravarty, it was disclosed
about the pendency of the said 2 suits and thus the claim of
the applicants that they learnt about the suits being filed
only in the month of February 2008 was incorrect.
5. Relevant facts to be noted are that late Sh.Sushil
K.Chakravarty had entered into a partnership with applicant
No.2 i.e. Arun K.Chakravarty, his wife and his brother-in-law
and pertaining to the partnership there was a dispute and
since there existed an arbitration clause in the deed of
partnership, wife of applicant No.2 i.e. Arun K.Chakravarty
and his brother-in-law filed a petition under Section 20 of
the Arbitration Act 1940 which was registered as Suit
No.1479A/1989 and needless to state Sh.Sushil
K.Chakravarty was the respondent therein.
6. We note that it was the wife of applicant No.2
and his brother-in-law and not applicant No.2 who were the
petitioners in Suit No.1479A/1989.
7. An MOU dated 26.10.1986 pertaining to the
partnership was also a subject matter of dispute, and
seeking cancellation thereof applicant No.2 Sh.Arun
K.Chakravarty, his wife and his brother-in-law filed a suit
registered as Suit No.1275/1990. The defendant of the suit
was late Sh.Sushil K.Chakravarty.
8. Agricultural land in village Chattarpur, popularly
known as 'Maharani Rosary' was held as a bhumidar by late
Sh.Sushil K.Chakravarty. Applicant No.2 i.e. Arun
K.Chakravarty, his wife and his brother-in-law were claiming
the same to be an asset of the partnership firm and had
obtained an injunction in the suits above-mentioned filed by
them whereby Sushil K.Chakravarty was restrained from
selling or encumbering the said land.
9. Late Sh.Sushil K.Chakravarty entered into an
Agreement to Sell on 17.3.1992 with the respondent
company M/s.Tej Properties Pvt. Ltd. whereunder for a sale
consideration of `60 lakhs he agreed to sell the land
comprising Maharani Rosary to the company and received
`22 lakhs as part sale consideration.
10. A dispute ensued between late Sh.Sushil
K.Chakravarty and M/s.Tej Properties Pvt. Ltd. pertaining to
the Agreement to Sell dated 17.3.1992. Late Sh.Sushil
K.Chakravarty filed CS(OS) No.1348/1996 praying for a
decree to cancel the agreement and by way of cross-suit,
seeking specific performance of the Agreement to Sell dated
17.3.1992, M/s.Tej Properties Pvt. Ltd. sought enforcement
of the Agreement to Sell by and under CS(OS)
No.2501/1997.
11. Having filed a written statement in CS(OS)
No.1348/1996, late Sh.Sushil K.Chakravarty stopped
prosecuting CS(OS) No.1348/1996. Whereas CS(OS)
No.1348/1996 was dismissed in default on 14.10.2004, he
was proceeded against ex-parte in CS(OS) No.2501/1997.
12. As noted herein above, when applicant No.2
Sh.Arun K.Chakravarty and his wife as also his brother-in-
law learnt of the Agreement to Sell dated 17.3.1992, CCP
No.450/1993 and thereafter IA No.10161/1997 in CS(OS)
No.1479A/1989 were filed by the wife and the brother-in-law
of Sh.Arun K.Chakravarty, in which, as noted herein above,
when reply was filed to IA No.10161/1997 on 25.8.1998 by
late Sh.Sushil K.Chakravarty, he disclosed about pendency
of CS(OS) No.1348/1996 and CS(OS) No.2501/1997 between
him and M/s.Tej Properties Pvt. Ltd. as also the fact that the
subject matter of the two cross suits was the Agreement to
Sell dated 17.3.1992 pertaining to the land comprising
Maharani Rosary.
13. Now, the appellants i.e. the applicants before the
learned Single Judge urge before us that from the fact that
the wife and the brother-in-law of appellant No.2/applicant
No.2 had knowledge of CS(OS) No.1348/1996 and CS(OS)
No.2501/1997, it cannot be inferred that the applicants also
had knowledge of the 2 suits.
14. It is not disputed that the wife of applicant No.2
has cordial relations with him and resides with him. Thus,
her knowledge being passed on to her husband on an issue
of vital interest concerning her husband is a matter of fact
which we do not believe that she did not pass on to her
husband. But, we need not rest our decision on our belief
which requires an inference to be drawn based on normal
human conduct i.e. of a matter of vital interest concerning a
husband and a wife being within the knowledge of either
spouse and passed on to the other, for the reason there
exists a fact of vital importance which unequivocally shows
the knowledge of applicant No.2 qua the pendency of the
two cross suits between Late Sh.Sushil K.Chakravarty and
M/s.Tej Properties Pvt. Ltd.
15. As noted by us herein above, applicant No.2
Sh.Arun K.Chakravarty, along with his wife and brother-in-
law had filed CS(OS) No.1275/1990 seeking a declaration
that the MOU dated 26.10.1986 pertaining to the
partnership which they had entered into with late Sh.Sushil
K.Chakravarty be declared illegal and not binding on them
and this Suit was admittedly directed to be tagged on,
though not consolidated, but listed with CS(OS)
No.1479A/1989. It is not in dispute that the 2 suits were
being listed together, and thus from said fact one can safely
conclude knowledge of Arun K.Chakravarty that his uncle
late Sh.Sushil K.Chakravarty and M/s.Tej Properties Pvt. Ltd.
were in litigation as cross plaintiffs and defendants in
CS(OS) No.1348/1996 and CS(OS) No.2501/1997.
16. His claim that he learnt about the Suits only in
the month of February 2008 is patently false.
17. We may highlight that late Sh.Sushil
K.Chakravarty was proceeded ex-parte vide order dated
1.8.2000 in CS(OS) No.2501/1997. We also note that he
died on 3.6.2003 and M/s.Tej Properties Pvt. Ltd. filed IA
No.9676/2003 under Order 22 Rule 4(4) of the Code of Civil
Procedure informing the Court that the company had no
knowledge about the deceased having left any legal heir
and in any case prayed to the Court that since the
defendant i.e. Sh.Sushil K.Chakravarty having filed written
statement but had failed to appear and contest the suit,
judgment be pronounced against him without bringing on
record anybody as the legal heir.
18. Though the said application was not decided
when the suit was decreed, but as held by the learned
Single Judge, a reasoning with which we concur, the Court
proceeded in the suit by treating there being no necessity to
bring on record anybody as the legal heir of the deceased.
19. We may note that the subject property i.e.
Maharani Rosary was mortgaged with New Bank of India,
which right was vested in Punjab National Bank and to
enforce the mortgage OA No.797/1995 was filed by the bank
in which applicant No.2 Sunil K.Chakravarty was impleaded
as respondent No.3. We note that the mortgage pertained
to a debt taken by the partnership firm and on the death of
late Sh.Sushil K.Chakravarty the fact of the deceased having
executed a will in which he had specifically barred any
brother or nephew of his to inherent his property was
disclosed. Though not relevant for the purposes of the
present decision, we would only highlight that both
appellants are fully aware that they have no right and are
litigating to trouble M/s.Tej Properties Pvt. Ltd.
20. We also need to highlight that though under the
Agreement to Sell, it was the obligation of late Sh.Sushil
K.Chakravarty to clear the mortgage, the company M/s.Tej
Properties Pvt. Ltd. paid `1.28 crores to Punjab National
Bank and got the mortgage redeemed. Apart from paying
`22 lakhs to late Sh.Sushil K.Chakravarty the company has
also paid `1.28 crores to Punjab National Bank.
21. Facts noted herein above would show that if not
earlier, at least when late Sh.Sushil K.Chakravarty filed reply
to IA No.10161/1997 in CS(OS) No.1479A/1989, reply being
filed on 25.8.1998, the appellants acquired knowledge of
the fact that pertaining to the Agreement to Sell dated
17.3.1992 their uncle, late Sh.Sushil K.Chakravarty and
M/s.Tej Properties Pvt. Ltd. were in litigation and cross suits
being CS(OS) No.1348/1996 and CS(OS) No.2501/1997 were
pending. The 2 have not denied knowledge of their uncle
having died on 3.6.2003. Thus, as Class-II heirs, a claim
which they stake to inherit the properties of their uncle,
they ought to have taken steps to seek substitution to
prosecute, as plaintiffs CS(OS) No.1348/1996, and defend as
defendants CS(OS) NO.2501/1997, within the limitation
period prescribed to do so. Having knowledge of the
pendency of the 2 suits, the former being dismissed in
default on 14.10.2004 and in the latter their uncle being
proceeded ex-parte on 1.8.2000 and the suit being decreed
on 25.7.2007, it was too late in the day for the two to seek
restoration of the former and setting aside of the ex-parte
decree in the latter by filing applications in February 2008.
Their claim that they had no knowledge of the two suits
prior to first week of February 2008 is a false stand and thus
we agree with the view taken by the learned Single Judge
that both of them failed to show sufficient cause entitling
them to have the delay condoned in preferring IA
No.4531/2008 in CS(OS) No.1348/1996 and IA No.3391/2008
in CS(OS) No.2501/1997, and thus we dismiss both appeals
imposing costs (one set) in sum of `20,000/- against the
appellants and in favour of the respondent.
(PRADEEP NANDRAJOG)
JUDGE
(S.P.GARG)
JUDGE
OCTOBER 17, 2011
dk
