Delhi High Court
Pradip Ghosh vs State Govt. Of Nct on 4 January, 2016
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 366/2015
PRADIP GHOSH ..... Appellant
Through: Mr. Santosh K. Sethi, Adv.
versus
STATE GOVT OF NCT ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 04.01.2016
CM No.149/2016
1. This is an application seeking in effect correction in paragraph 2 of the
order dated 10.12.2015. The correction sought is to the effect that instead of
what is mentioned in the said paragraph, which is, that Mr. Deepak Ghosh had
passed away, the said name should be replaced with Mr. Ranjeet Ghosh.
2. The applicant/appellant avers that the testator had three sons, namely,
Mr. Deepak Ghosh, Mr. Ranjeet Ghosh and Mr. Pradip Ghosh.
3. As noticed in the order dated 10.12.2015, Mr. Deepak Ghosh had filed
the probate action. To this probate action, Mr. Pradip Ghosh was arrayed as
respondent No.1 and the wife of the other brother, Mr. Ranjeet Ghosh, namely
one Ms. Abha Ghosh was arrayed as respondent No.4.
4. I am informed that since Mr. Ranjeet Ghosh had passed away and Ms.
Abha Ghosh, his wife, who was arrayed as respondent No.4 to the probate
action, was proceeded ex parte vide order dated 15.9.1998.
5. The record shows that Mr. Pradip Ghosh and Ranjeet Ghosh had been
appointed as executors to the Will; a fact which stands recorded in paragraph
10 of the judgment dated 20.11.2002. This very judgment also records that
Deepak Ghosh who had filed the probate action had given his no objection to
grant of probate in favour of Pradip Ghosh, i.e. the appellant herein.
6. Having regard to the above, it appears that the corrections would have
to be carried out not only paragraph 2 but also in paragraph 1.3. Besides this
since a typographical error has crept in paragraph 9, the said paragraph would
also have to be corrected.
7. Accordingly, the entire order dated 10.12.2015 along with corrected
portions which are duly underlined is extracted herein below:-
"1. This is an appeal directed against the order dated 17.08.2015,
passed by the learned Additional District Judge.
1.1 By virtue of this order, the appellant's application for
condonation of delay in furnishing the administration bond and the
surety bond was dismissed.
1.2 The appellant herein (i.e. Mr. Pradip Ghosh) was granted probate
by a judgment dated 20.11.2002, passed in Probate petition no.312/2001.
1.3 To be noted, the initial probate action was filed by the brother of
the appellant herein. The probate petition was therefore, titled as:
Deepak Ghosh Vs. State and Ors. The appellant herein, was arrayed as
respondent No.1 in that petition. The appellant along with his other
sibling i.e. Ranjeet Ghosh was appointed as the executor to the Will
dated 17.9.1967 (Exh. PW1/1). Along with the appellant and Ranjeet
Ghosh, Deepak Ghosh was the other progeny of the testator, Mr.Harashit
Chandra Ghosh. Mr. Deepak Ghosh, as noted above, who had filed the
probate action, had given his no-objection in favour of the appellant (i.e.
Pradip Ghosh).
2. It appears that during the pendency of the proceedings, Mr.
Ranjeet Ghosh passed away and ultimately, the probate was granted in
favour of the appellant herein, vide the aforementioned judgment.
2.1 This probate was granted as is usually the case subject to
valuation report obtained from the Collector, with respect to the
immovable property involved in the matter. The immovable property
involved in the probate action is described as : 14-A/15, W.E.A. Karol
Bagh, New Delhi.
2.2 The appellant herein, was also, required to furnish an
administration bond and a surety bond.
3. The record shows that valuation report was generated on
28.04.2014. By virtue of this report, the aforementioned property was
valued at Rs.1,53,55,385/-. The appellant herein, also, filed an
administration bond, which is dated 25.09.2014, a copy of which is
appended at page 29 of the paper book. A surety bond of even date i.e.
25.09.2014 was executed by one Mr. Biman Mukherjee; a copy of the
same is appended at page 27 of the paper book.
3.1 The appellant herein, paid the court fee in the first instance,
amounting to Rs.6,14, 240/- on 09.09.2014, followed by deposit of
additional court fee amounting to Rs.1500/-. The said court fee was
deposited on 06.02.2015.
3.2 The steps with regard to the deposit of court fee were taken by
the appellant herein pursuant to proceedings held before the ADJ on
23.08.2014.
3.3 Since, there had been a considerable delay in filing the
administration bond, the surety bond and in the deposit of requisite court
fee, an application for condonation of delay was preferred by the
appellant herein.
3.4 The learned ADJ, however, rejected the application for
condonation of delay and therefore, the appellant, has preferred the
instant appeal.
4. Notice in this appeal was issued on 20.10.2015 when, the State,
was represented by Mr. Sachin Nahar, advocate. Today, Mr. Premsagar
Pal appears for the State.
5. Based on the record, counsel for the parties have addressed
arguments in the matter.
6. The learned counsel for the appellant says that once an order was
passed on 23.08.2014 by the learned ADJ directing the appellant herein
to deposit the requisite court fee within a given time frame, that is, four
weeks, the subsequent order is both unfair and unreasonable.
6.1 The learned counsel for the appellant says that though there is a
delay in taking requisite steps, the State, has not lost in terms of revenue
as the requisite court fee has been deposited.
7. On the other hand, the learned counsel for the State says that the
order dated 23.08.2014 only directed deposit of court fee, and that there
was no direction to the effect that the administration bond and the surety
bond will be accepted.
8. I have considered the submissions of the counsel for the parties.
9. There is no doubt that the appellant herein showed lack of
alacrity in taking requisite consequential steps in the matter, after he had
obtained a probate in his favour.
9.1 However, notwithstanding the aforesaid, the record as placed
before me, shows that the appellant has deposited the entire court fee.
In that sense, the State, has not lost anything, on account of revenue.
Since, probate was granted in favour of the appellant, according to me,
the trial court could have condoned the delay as no prejudice was caused
to the State. While condoning the delay, one of the aspects, which is
required to be examined, by the court is, as to whether or not the delay
has prejudiced the opposite party. As indicated above, the State, does
not stand to lose if, the delay is condoned.
10. Accordingly, the impugned judgment is set aside. The delay is
condoned. The administration bond and the surety bond shall stand
accepted. The appellant will be issued a certificate in terms of Schedule
VI of the Indian Succession Act, 1925, within four weeks from today,
upon fulfilment of requisite formalities, if any.
10.1 The appeal be consigned to record.
11. Dasti to parties."
8. Accordingly, the order dated 10.12.2015 shall stand corrected. All
other directions will remain unaltered.
9. The application is disposed of in the aforesaid terms.
10. Dasti.
RAJIV SHAKDHER, J
JANUARY 04, 2016
s.pal
