Firstcorp International Limited vs Kuljit Singh Bhutalia
2013 Latest Caselaw 3195 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RFA 15/2013

%                           Judgment reserved on 16th May, 2013
                            Judgement delivered on 25th July, 2013

      FIRSTCORP INTERNATIONAL LIMITED ..... Appellant
                    Through :Mr. Anil Gera and Ms.
                            Parvinder Khatra, Advs.

                           Versus


      KULJIT SINGH BHUTALIA            ..... Respondent
                    Through :Mr. Daljit Singh, Sr.
                            Advocate along with Mr.
                            Saurabh Sandilya, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.

1. Appellant-defendant has filed this appeal aggrieved by the

judgment and decree of possession and mesne profits / damages

passed by the trial court against it.

2. Respondent-plaintiff filed a suit for recovery of possession

and mesne profits in respect of third floor of property bearing no.

39, Sadhna Enclave, New Delhi-110017 (for short hereinafter

referred to as "suit property") against the appellant with the

allegations that he was owner of the entire property bearing No.39,

Sadhna Enclave, New Delhi-110017. On 1st October, 2002 M/s.

Earthtech Enterprises Ltd. ("EEL", for short) through Shri

O.P.Aggarwal took second floor on rent from him. Sometime in the

month of December, 2002 Shri O.P. Aggarwal suggested that if a

temporary construction is raised on the roof of second floor, he will

take the same on rent for using it as a guesthouse of EEL.

Respondent agreed to the said proposal on the condition that some

funds may be advanced for raising such structure to be adjusted

towards the rent for the first two years. Respondent raised

construction and completed the same by March, 2004. Thereafter,

newly constructed structure was let out to appellant on the

suggestion of Sh. O.P. Aggarwal, who was the real controlling

figure in the company which was managed by him through

Directors and other employees. As agreed, with effect from 1st

April, 2006 appellant started paying rent @ `15,000/- per month

after deducting tax at source. Appellant was tenant on month to

month basis. Appellant had been paying rent to respondent after

deducting TDS. Vide notice dated 7th August, 2008, respondent

terminated the lease by serving a notice under Section 106 of the

Transfer of Property Act, 1882, („The Act‟ for short) thereby called

upon the appellant to vacate the tenanted premises on or before 31 st

August, 2008. Appellant did not vacate the suit property by 31 st

August, 2008 and became a trespasser and was entitled to pay

damages @ `75,000/- per month, which was the prevalent market

rent in the area.

3. In the written statement, appellant denied that it was a tenant

in respect of the suit property. It was denied that EEL had taken on

rent second floor on 1st October, 2002 through Sh. O.P. Aggarwal.

It was stated that sister concern of appellant, namely, M/s.

Earthtech Enterprises Ltd. (EEL) was in possession of second floor

of the suit property with effect from 3rd September, 2002. In the

month of October, 2002, respondent approached EEL and offered

to sell the roof of second floor on the ground that he was facing

some financial problems. EEL agreed to purchase the roof rights

of second floor for the appellant. It was made clear that EEL was

not in a position to pay the entire sale consideration in a lump sum

and would pay it in instalments. Thus, an oral agreement was

arrived at between EEL and respondent with regard to the roof of

the second floor for a total sale consideration of `60 lacs along

with the cost of construction. EEL was to pay `11,000/- per month

by cheque to respondent which was to be adjusted towards part

payment of total sale consideration. It was further agreed that

appellant will raise construction of third floor, that is, suit property.

Respondent also represented that he wanted to help his daughter,

thus, EEL should pay `11,000/- per month with effect from 14th

October, 2002 in the name of his daughter‟s firm, namely, M/s. Art

Forum and the said amount was to be treated as part payment of the

total sale consideration of `60 lacs. Accordingly, EEL started

paying `11,000/- per month with effect from 14th October, 2002

through cheques drawn in the name of M/s. Art Forum, which was

subsequently increased to `20,000/- per month with effect from

April, 2003. Appellant paid `5 lacs in cash on 29th April, 2005 to

respondent against receipt. Thereafter, respondent handed over

possession of the roof of second floor to appellant. Accordingly,

appellant started construction in the month of May, 2005. Another

sum of `10 lacs was paid on 15th September, 2005 against receipt

towards part payment of total sale consideration. Construction was

ultimately completed at the end of November, 2005 and thereafter

appellant paid another sum of `5 lacs against receipt dated 24th

November, 2005 issued by the respondent. Appellant requested the

respondent to execute a proper Agreement to Sell but he avoided to

do so on the pretext of proceedings pending before the Debt

Recovery Tribunal (DRT) between respondent and the Bank. In

the month of March, 2006 suit property was furnished by the

appellant and thereafter appellant started using the same as its

office. At the request of respondent, appellant started paying

`15,000/- per month through cheques with effect from 6th October,

2006 towards part payment of the total sale consideration.

Deduction of TDS from the instalments being paid towards part

sale consideration was made at the instance of respondent. It was

alleged that the suit had been filed by the respondent as a

counterblast to the suit bearing CS (OS) NO. 1861/2008 filed by

the appellant for specific performance as well as mandatory and

perpetual injunction against the respondent. Receipt of notice

dated 7th August, 2008 was denied. It was denied that appellant

became an unauthorized occupant after alleged termination of lease

and was liable to pay the damages as claimed in the plaint.

4. In the replication, respondent denied the allegations levelled

in the written statement and reiterated the averments made in

plaint. Oral agreement, as alleged by the appellant, was denied. It

was stated that respondent had never agreed to sell his property or

any part thereof to appellant orally or otherwise. Respondent

claimed that appellant had no right to challenge the title of

respondent in view of Section 116 of the Evidence Act, 1872. No

statutory declaration by the appellant with the Registrar of

Companies (ROC) was made with regard to purchase of the

property.

5. Following issues were framed by the trial court on 18 th

December, 2009:-

(i) Whether the defendant is not a tenant in respect of 3rd floor of 39, Sadhna Enclave, Panchsheel Park, New Delhi? OPD

(ii) If issue no. 1 is proved against the defendant, whether the tenancy has been validly terminated? OPP

(iii) Whether the plaintiff is entitled to a decree for recovery of possession in respect of the suit property? OPP

(iv) Whether the plaintiff is entitled to damage/mesne profit in respect of the suit property? If so, at what rate and for which period? OPP

(v) Relief.

6. Respondent examined himself as PW1. Respondent also

examined Shri Mahinder Pal Singh Kohli as PW2. PW1 proved

site plan Ex. PW1/A. TDS certificates for the period 1 st April,

2006 to 31st March, 2007 and 1st April, 2007 to 31st March, 2008

were proved as Ex. PW1/1 "collectively". Notice of termination of

tenancy along with postal receipts were proved as Ex. PW1/2 to

Ex.PW1/5. Order passed by the DRT dated 28th January, 2004 was

put to PW1 in his cross-examination and was proved as PW1/D1.

PW2 Shri Maninder Pal Singh Kohli proved certified copies of two

registered lease deeds as Ex. PW2/1 and Ex. PW2/2, respectively.

As against this, appellant examined five witnesses. Shri Avdhesh

Kumar Singh was examined as DW1. He proved Certificate of

Incorporation as Ex. DW1/1; Certificate of commencement of

business was proved as Ex. DW1/2; various letters were proved as

Ex.DW1/3. Another witness Shri Mahavir Prasad Mishra was

examined as DW2. He was confronted with Form 16A (TDS

certificates) for the period 1st April, 2003 to 31st March, 2004;

from 1st April, 2004 to 31st March, 2005; 1st April, 2005 to 31st

March, 2006; 1st April, 2006 to 31st March, 2007; 1st April, 2007 to

31st March, 2008 and 1st October, 2002 to 31st March, 2003 and the

same were exhibited as Ex. DW2/X1 to Ex. DW2/X6. Hire

Charges Agreement was proved as DW2/X7; vouchers of different

dates were exhibited as Ex. DW2/8 to Ex. DW2/13. One Shri

Laxman Bhatt was examined as DW3. Shri Anil Sharma was

examined as DW4. He deposed with regard to various payments

made by the appellant to respondent towards alleged purchase of

the suit property. One Shri Sanjeev Bhutani was examined as

DW5. In rebuttal respondent examined Shri Shanti Dave as PW3.

7. After hearing arguments of the parties and scrutinizing the

documentary as well as ocular evidence on record, trial court has

held that landlord tenant relationship between the parties stood

proved from the TDS certificates. The plea taken by appellant that

TDS certificates were sham documents was rejected. It was further

held that appellant had failed to establish its case for having made

the payments to plaintiff towards sale consideration in view of the

relevant provisions of the Companies Act, 1956 which mandate

incorporation of such payment made towards purchase of any

immovable property in the balance sheet of the company. It was

further held that defence raised by the appellant that it purchased

roof rights of second floor stands contradicted from TDS

certificates wherein nature of payment was specifically mentioned

as rent. Explanation rendered that the TDS certificates were drawn

at the insistence of respondent since he was having a dispute

pending in DRT wherein immovable property was involved, was

not found convincing, in view of the order of the DRT which

indicated that the matter stood compromised and entire

compromised amount in full and final settlement to the satisfaction

of the bank stood paid. It was held that though the plea of oral

Agreement to Sell would be valid in view of Alka Bose v/s

Parmatma Devi AIR 2009 SC 1525 still such a plea was not

enough for the appellant to retain possession in this case.

Argument of the appellant that an unregistered Sale Deed was

admissible in evidence in a suit for specific performance by placing

reliance on S. Kala Devi vs. V.R. Soma Sundra, AIR 2010 SC

1654 was of no help to the appellant since protection under Section

53-A of the Act was not available to appellant. Trial Court has

placed reliance on Sunil Kapoor Vs. Himmat Singh and Others,

167 (2010) DLT 806 for holding that protection under Section 53-

A of the Act was not available to appellant. Reliance has also been

placed on Ashok Goenka vs. Chandra Bhushan Singh, 2010 (1)

PLJR 3317, to conclude that appellant cannot protect his

possession in a suit for possession instituted by a landlord against

his tenant by taking plea of an agreement to sell. It has been

further held that tenancy was validly terminated by serving the

notice under Section 106 of the Act. Notice was sent at correct

address through registered post and since undelivered envelope was

not received back a presumption can be safely drawn under Section

27 of the General Clauses Act, 1897, regarding its service since

address reflected in the postal receipts or AD card was not

disputed. Bare denial of receipt of notice was not sufficient in

these circumstances. Besides this, the service of summons in the

suit itself was a sufficient compliance of requirement of Section

106 of the Act. Reliance was placed on M/s. Jeevan Diesels and

Electricals Ltd. Vs. M/s. Jasbir Singh Chadha (HUF) & Anr. 182

(2011) DLT 402 on this point. As regards damages/mesne profits,

the same have been quantified at `75,000/- (Rupees Seventy Five

Thousand Only) per month from September, 2008 till the actual

delivery of vacant possession of the suit property by placing

reliance on the registered lease deeds Ex. PW2/1 and Ex. PW2/2 in

respect of the similarly situated properties in Ex.PW2/1 and

Ex.PW2/2 wherein monthly rent was mentioned as `1.5 lacs.

8. Relevant it would be to mention at this stage that respondent

had filed a suit for recovery of possession against EEL, that is,

sister concern of appellant. In the said case respondent had alleged

that second floor of property bearing no. 39, Sadhna Enclave, New

Delhi-110017 was leased out to EEL on a monthly rent of

`75,000/- with effect from 1st October, 2002 which was,

subsequently, increased to `30,000/- per month with effect from 1st

April, 2003 in terms of the fresh lease deed. Thereafter, rent was

again increased to `25,000/- with effect from 31st October, 2006.

Since lease agreements were unregistered tenancy was on month to

month basis ending on the last day of same month. In the said case

also EEL had taken the same defences which have been taken by

the appellant in this case. Plea of oral Agreement to Sell was set

up, inasmuch as it was contended that suit for specific

performance, based on the oral agreement, was pending, thus,

decree of possession could not have been passed. Respondent had

placed reliance on TDS certificates in the said case as well. On an

application under Order 12 Rule 6 CPC filed by the respondent a

decree of possession was passed against EEL in the said case. It

was held that admissions made in TDS certificates were

categorical, unambiguous and unequivocal about the landlord-

tenant relationship between the respondent and EEL. Aggrieved by

the decree passed by the Trial Court EEL approached this Court

vide an appeal which was dismissed vide the judgment Earthtech

Enterprises Ltd. vs. Kuljit Singh Butalia, 199 (2013) Delhi Law

Times 194. Similar arguments, which have been advanced in this

case, were advanced in the said case and were negated as regards to

the correctness and acceptance of TDS certificates to infer

Landlord-tenant relationship between the parties. It was held that

any oral plea was barred by Sections 91 and 92 of the Indian

Evidence Act on the face of TDS certificates. It was held that

appellant had come in possession of the second floor as a tenant.

EEL preferred Special Leave Petition in the Supreme Court against

the judgment passed by this court which has been dismissed.

9. Learned counsel has vehemently contended that TDS

certificates could have only been relied upon, if these were part of

the lease agreement or a tenancy agreement. In this case no written

lease agreement was executed between the parties, whether

registered or unregistered, thus, TDS certificates do not fall within

the ambit and scope of Sections 91 and 92 of the Evidence Act,

1872. Sections 91 and 92 of the Evidence Act, 1872 can

supplement each other. Section 91 would be frustrated without the

aid of Section 92. Similarly, Section 92 would be inoperative

without the aid of Section 91. In absence of any written agreement

executed between the respondent and appellant, the provisions of

Section 92 of the Evidence Act, 1872 would not be attracted in this

case since the case is based on oral agreement. Reliance has been

placed on S. Saktivel (Dead) by LRs vs. M. Venugopal Pillai and

Ors. (2000) 7 Supreme Court Cases 104; Sudesh Madhok Vs.

Paam Antibiotics Ltd. and Another, 174 (2010) DLT 594; Smt.

Gangabai vs. Smt. Chhabubai, AIR 1982 Supreme Court 20-Head

note (B); Ishwar Das Jain (Dead) by LRs. Vs. Sohan Lal (Dead) by

LRs. AIR 2000 SC 426 Head Note (E) and R. Jankiraman vs. State

AIR 2006 SC 1106.

10. Similar arguments were advanced in Earthtech (Supra) and

have been answered thus:

"7.......TDS certificates were also not disputed by the appellant, inasmuch as, same being statutory documents have rightly been read against the appellant so as to draw an inference about existence of landlord-tenant relationship between the parties. Part B of Chapter XVII of the Income Tax Act, 1968 provides for "deduction of tax at source" by the payer in respect of certain specified payments. Section 194-I of the Income Tax Act, deals with "deduction of tax at source" in respect of rent paid by the tenant to landlord. It mandates a tenant to deduct tax @ 10% from the rent paid to landlord for the use of land or building or land appurtenant to a building. Section 200 of the Income Tax Act further envisages that the amount of tax so deducted shall be deposited with the Central Government against Permanent

Account Number of the payee. Section 203 of the Income Tax Act casts a duty on the person to deduct tax at source and deposit the same with the Central Government and also to provide a certificate to the payee (landlord in this case) in a prescribed format. Rule 31 (1) (b) of the Income Tax Rules, 1962 provides that the certificate of deduction of tax at source under Section 194 I shall be in the shape of Form No.16- A. TDS certificate in the shape of Form 16-A, in this case, relates to the period 1st October 2002 to 31st March 2008 wherein nature of tax deducted has been shown from the rent paid to respondent. It is thus, clear that the appellant continued to pay rent to the respondent uptill the end of March, 2008 and landlord-tenant relationship can be inferred from the admitted TDS certificates. Order 12 Rule 6 CPC is wide enough to afford relief not only in case of admission in pleadings but also in the case of admission dehors pleadings. Thus, admission made in TDS certificates cannot be ignored and will be sufficient to infer categorical admission about the landlord-tenant relationship by the appellant".

"8. Learned counsel for the appellant has vehemently contended that TDS certificates were issued on the insistence of the respondent in view of the pendency of DRT litigation. He submits that this defence is required to be proved in evidence, thus, it cannot be said that the appellant had admitted landlord-tenant relationship after the year 2003. He has

placed reliance on Smt. Gangabai v/s Smt. Chhububai AIR 1982 SC 20, Ishwar Dass Jain v/s Sohan Lal AIR 2000 SC 426 and Krishnabai Ganpatrao Deshmukh v/s Appasaheb Tuljaramrao Nimbalkar AIR 1979 SC 1880. I have perused the judgments and find them in the context of different facts. In Gangabai (supra), plea taken was that the sale deed was a sham document and never intended to be acted upon between the parties. In the said case, it was held that bar imposed by Sub Section 1 of Section 92 of the Indian Evidence Act would not be attracted. In Ishwar Dass (supra) also, a plea was taken that the mortgage deed was a sham document and in this context, it was observed that evidence to prove that the mortgage is a sham document was admissible. In Krishnabai (supra), nomenclature of a document was in issue. In this case, Income Tax Act mandated deduction of tax, its deposit with Central Government and the said fact to be reduced in the form of a document, that is, TDS certificate, thus, Sections 91 and 92 of the Indian Evidence Act will be attracted and no oral contradictory evidence would be admissible."

11. I do not find any force in the contention of learned counsel

for the appellant that TDS certificates without being part of a

written lease between the appellant and respondent cannot be taken

as a proof of landlord - tenant relationship or that same do not fall

within the ambit and scope of Sections 91 and 92 of the Evidence

Act, 1872. TDS is to be deducted and deposited with the Income

Tax Authority and certificates have to be drawn as mandated by the

Income Tax Act, thus, same would attract the provisions of Section

92 of the Evidence Act. Sections 91 and 92 of the Evidence Act

also takes in its sweep such matter which is required to be reduced

in the form of a document. Thus, the TDS certificates which are

required to be reduced in writing in the form of a document under

the Income Tax Act would fall within the ambit and scope of

Section 92 of the Act and no evidence contrary to the contents of

such document would be admissible. That apart, plea taken by the

appellant that TDS certificates were issued on the insistence of

respondent in view of pendency of DRT litigation have not been

found correct by the trial court rightly so in view of the DRT order

which indicated that the matter had already been compromised by

respondent with the bank

12. Accordingly, I am of the view that TDS certificates proved

on record have rightly been accepted as proof of landlord-tenant

relationship between the parties.

13. Even otherwise, the plea of oral Agreement to Sell taken by

the appellant is of no consequence in the present suit for

possession. The plea of oral agreement has been dealt with in

Earthtech Enterprises Ltd.‟s case (supra) in the following manner:

"11. In P.P.A. Impex (supra), the decree of possession passed by the Single Judge, on an application under Order 12 Rule 6 of the Code, has been upheld by the Division Bench of this Court. In the said case, defendant had claimed an independent right in the suit property pursuant to an agreement to sell. As per the defendant his defence could have been substantiated only during the trial and no decree on admission could have been passed. Division Bench found the defence of defendant to be moonshine. Division Bench observed thus "the courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial". In Om Wati (supra) also, a decree of possession was passed in favour of the landlord on admission of tenant in the written statement- cum-counter claim that she came in possession of the suit premise as a tenant, however, she set up a defence of agreement to sell. In this context, Division Bench of this Court held as under:-

The defence of possession being protected under Section 53A of the Transfer of Property Act, 1882 in the context of the alleged oral agreement was negated by the

learned Single Judge holding that Section 53A of the Transfer of Property Act would come into play only when there was a written agreement to sell under which possession was handed over and sale consideration paid. With respect of the defence taken, we must hold the same to be a sham and of a kind which no Court of justice or equity would countenance. If these kinds of defences are to be permitted to be set up, it would create havoc in the society. Every tenant would start claiming that some relative of his or hers of he himself rendered some services of effected delivery of certain goods which was to be re-compensated by way of sale consideration for the sale of the tenanted property.

12. Section 17 (1)(A) of the Registration Act which has come into force with effect from 24th September, 2001 reads as under :-

Documents containing contracts to transfer for consideration, any immoveable property for purpose of Section 53-A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, they shall have no effect for the purpose of the said Section 53-A.

13. A bare perusal of aforesaid provision makes it clear that a person can protect his possession under Section 53-A of the Transfer of Property Act, 1882 on the plea

of part performance only if it is armed with a registered document. Even on the basis of a written agreement he cannot protect his possession. In this case, plea of existing oral agreement has been set. In any event, in this case, appellant cannot protect his possession under the shield of Section 53-A of the Transfer of Property Act. Even otherwise, mere agreement to sell of an immovable property, even if the plea of oral agreement is accepted for the sake of argument, would not create any right in favour of the tenant- appellant to hold over the possession of the suit property.

14. In Sunil Kapoor (supra), a Single Judge of this Court has held thus "a mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as an agreement purchaser. This Court in Jiwan Das v/s Narain Das, AIR 1981 Delhi 291 has held that in fact no right inure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed. Thus in law, the petitioner has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour." In the said case also, tenant had filed a suit for specific performance of agreement to sell.

Subsequently, landlord filed a suit for ejectment and mesne profit. In the case filed by the landlord, tenant set up a defence that landlord had agreed to sell the suit property to him. Tenant filed an application under Section 10 of the Code before the trial court for staying the ejectment suit which was dismissed. High Court declined to stay the suit for ejectment till adjudication of the suit for specific performance. It was further observed that plea of part performance in absence of unregistered document cannot be taken by the tenant for protecting his possession. In para 14 it was held as under :- "Even otherwise, the Stamp Act and the Registration Act as applicable to Delhi were amended w.e.f. 24th September, 2001. After the said amendment an agreement to sell of immovable property whereunder the possession of the premises is delivered in part performance, can only be by a registered document bearing the prescribed stamp duty i.e. on 90% of the total agreed sale consideration. Section 49 of the Registration Act was also amended. A plea of part performance in the absence of a registered document cannot thus be taken. The petitioner/defendant cannot thus protect his possession in part performance of the agreement to sell."

14. Appellant is a company registered under the Companies Act,

1956 and responsible to follow the requirements as laid down

under Section 209 of Companies Act, 1956, inasmuch as has to

maintain books of account and record all the transactions regarding

assets and liabilities of the Company in balance sheet and submit

with the Registrar of Companies. No such account books and

balance sheets produced which also creates a serious doubt about

the whole transactions.

15. I do not find any force in the contentions of learned counsel

for the appellant that respondent had failed to prove tenancy by any

cogent evidence, inasmuch as no question was put to appellant‟s

witness about the tenancy. Evidence adduced by the appellant was

sufficient to prove landlord-tenant relationship. There was no need

to produce his daughter by the respondent in view of the

overwhelming evidence on record.

16. Reliance has also been placed on Narayan Bhagwantrao

Gosavi Balajiwale vs. Gopal Vinayak Gosavi and Ors. AIR 1960

SC 100 - Head Note (b); Raghunathi and Anr. Vs. Raju Ramappa

Shetty AIR 1991 SC 1040 and NTPC Thermal Power Station vs.

Umesh Kumar Mishra (2010) III LLJ 663 Delhi but I find these

judgments in the context of different facts. I also do not find any

force in the contention of the appellant‟s counsel that respondent is

guilty of suppression of material facts and relevant documents.

17. Even otherwise appellant does not appear to be truthful in

making the statements regarding the manner and circumstances in

which it came in possession of the second floor. In the written

statement it was stated that respondent handed over the possession

of the roof of second floor to the appellant who raised construction

thereon. DW5 Sanjeev Bhutani has been produced by the appellant

to support the contention that construction was raised by it.

However, in his cross-examination the whole story stands

demolished in view of the answer given by him to the effect "the

material for constructing the roof of the 3rd floor was purchased by

Mr.Kuljeet Singh. It is correct that the work was started by

Mr.Kuljeet Singh and I only completed the job. I do not remember

what percentage of work was completed by me". This is yet

another circumstance which goes in favour of respondent and

demolishes the defence of the appellant.

18. As regards quantum of damages/mesne profits as fixed by

the trial court, same is on the basis of registered lease deeds and

same also does not require any interference.

19. For the foregoing reasons, I do not find any perversity,

irregularity or impropriety in the impugned judgment and decree.

Consequently, appeal is dismissed. No order as to costs.

A.K. PATHAK, J.

JULY 25, 2013 rb