Atul Saxena And Another vs M/S. Mount Everest Cghs Limited & ...
2014 Latest Caselaw 4431 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Order announced on : 15th September, 2014

+                       CS (OS) No.1484/2009

      ATUL SAXENA AND ANOTHER                    ..... Plaintiffs
                   Through Mr.Jitender Kr. Jha, Adv.

                        versus

      M/S MOUNT EVEREST CGHS LIMITED & ORS. ... Defendants
                   Through Mr.Rahul Arora, Adv. with
                           Mr.Sidharth Joshi, Adv. for D-1.
                           Mr.Ashish Garg, Adv. for D-2.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

I.A. No.15584/2013 (u/S. 151 CPC), I.A. No.15585/2013 (u/s. 151 CPC for delay in refiling the written statement) and I.A. No14809/2010 (u/O VII R 11 CPC)

1. The brief facts of the case are that the plaintiff filed the suit for recovery of Rs.48,41,000/- along with pendentelite and future interest and damages against the four defendants. The defendant No.1 is a cooperative society. The defendants No.2 to 4 are stated to be the managing committee members of the defendant No.1.

2. The plaintiffs (Non-Resident Indians) who are husband and wife. It has been stated that the plaintiffs had an intention to settle down permanently in India. The defendant No.3 introduced himself to the plaintiffs as Honorary Secretary of the defendant No.1 and informed the plaintiffs that a four-bedroom flat was available in the

defendant No.1 society being M/s Mount Everest Co-operative Group Housing Society Ltd. bearing Plot No.17, Sector-9, Pappan Kalan, Dwarka, New-Delhi-110045 which can be allotted to the plaintiffs. The plaintiffs were given the impression that 98% of the construction has been completed and the plaintiffs were shown a four-bedroom single unit flat with one entrance in the Block-C of the Deluxe Group on the site of the society. The plaintiffs made various payments from time to time against whom the defendant No.1 society issued the receipts. The details of the payments made by the plaintiffs are mentioned in para 16 of the plaint. The plaintiffs received letter dated 2nd February, 2002 from the defendant No.1 issued under the signature of the defendant No.3 apologizing for inability to hand over the possession of the flat due to unavoidable circumstances and gave two options to the plaintiffs i.e. refund of deposited money or allotment of another flat.

3. Another letter dated 2nd April, 2002 was received by the plaintiffs informing them that the society has decided to hand over the possession of the deluxe flat on or before 30th June, 2002. However, the defendants failed to hand over the possession of the flat. In letter dated 3rd July, 2002 written by defendant No.1 it was stated that under certain alleged policy, it will be difficult to allot the flat and transfer the same in the name of the plaintiffs. However, they were assured that a flat may be allotted on power of attorney basis and get transferred in the name of the plaintiffs by the DDA. Even the same was not done by the defendant No.1. The plaintiffs thereafter issued a legal notice dated 14th December, 2002. However, the plaintiffs did not get any positive reply except vague response from the

defendants. The case of the plaintiffs is that the defendants have played a fraud upon the plaintiffs in connivance with certain members of the society in order to usurp the hard earned money of the plaintiffs.

4. The plaintiffs filed a writ petition before this Court that gave the direction to the plaintiffs to bring their grievances before the Registrar of Co-operative Society, Delhi and further directed the Registry to examine the grievances of the plaintiffs and pass the appropriate order within a time frame. By order dated 13th March, 2009 the Registrar of Co-operative Society disposed of the claim of the plaintiffs admitting the rights of the plaintiffs but still no possession was assured by the defendants. The plaintiffs thereafter were left with no option but to file the present suit.

5. The defendant No.1 was served in the matter but no written statement was filed by it. Rather the defendant No.1 filed an application under Order VII Rule 11 CPC for rejection of the plaint. The statement was made before the Court on 23rd November, 2012 that the application filed by the defendant No.1 under Order VII Rule 11 CPC for rejection of plaint be decided first and till the same is decided, the defendant No.1 may not be called upon to file the written statement. The request of the defendant No.1 was strongly opposed by the plaintiffs before Court who stated that the proceedings in the suit should not be stalled merely because the defendant No.1 has filed an application under Order VII Rule 11 CPC. However, the written statement was not filed within 30 days or within extended period of 90 days from the date of service. The time expired on 1st December, 2010. The said order apparently was not challenged by

the defendant No.1 by filing of an appeal before this Court who also failed to file the review petition against the said order dated 23rd November, 2012. After expiry of more than about 10 months, the application, being I.A. No.15584/2013, is filed by the defendant No.1 for recall of order dated 23rd November, 2013 whereby the right of the defendant No.1 to file the written statement was closed. The application, being I.A. No.15585/2013, for condonation of delay of 223 days in refiling of the written statement is also filed.

6. Learned counsel appearing on behalf of the defendant No.1 has not denied the fact that the order dated 23rd November, 2012 was passed in the presence of the learned counsel for the defendant No.1. He has also not denied the fact that the time to file the written statement expired on 1st December, 2010 and there was no application for condonation of delay. It was merely mentioned by the defendant No.1 from time to time that since the application under Order VII Rule 11 CPC is pending, therefore, he has a right not to file the written statement. The other important fact of the matter is that by virtue of the application for recalling of the order dated 23rd November, 2012, the case of the defendant No.1 is that as this Court is sitting in appeal the order was not challenged before the appellate Court by the defendant No.1.

7. A party cannot be allowed to file an application for recalling of order as per its own choice. There are two remedies which were available to the defendant No.1 after passing of the order dated 23rd November, 2012; one is to challenge the said order before the appellate court, other is to file the review petition.

8. The filing of the application after the expiry of 10 months has no consequence as there is no provision in the Code of Civil Procedure that a party at any time can file an application under Section 151 CPC for recalling of order which was passed in the presence of the party.

9. As far as proposition of law is concerned, no doubt it is admitted position that the Court can extend the time for filing the written statement if the application under Order VII Rule 11 CPC is pending. However, in the present case, no such directions were passed by the Court for extension of time. The defendant No.1 was supposed to file the written statement by 1st September, 2010 and it ought to have done the same within the prescribed time. There is no ground or justification given by the defendant No.1 for not filing the same. The application for recalling the order dated 23rd November, 2012 is highly misconceived and the same is hereby dismissed.

10. In view of the above, the application for condonation of delay in refiling the written statement is also dismissed.

11. Consequently, since the right to file the written statement is closed, the application under Order VII Rule 11 CPC has become infructuous and the same is dismissed.

CS (OS) No.1484/2009 As per order dated 19th August, 2013, the admission/denial of the documents has been concluded on 16th January, 2012. List for framing of issues on 22nd January, 2015.

(MANMOHAN SINGH) JUDGE SEPTEMBER 15, 2014