Purva Rakesh Patel Through Poa ... vs Lalitaben Shanabhai Patel
2021 Latest Caselaw 5284 Guj

         C/AO/118/2019                                 JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/APPEAL FROM ORDER NO. 118 of 2019
                                With
              CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
                In R/APPEAL FROM ORDER NO. 118 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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1    Whether Reporters of Local Papers may be allowed              No
     to see the judgment ?

2    To be referred to the Reporter or not ?                       No

3    Whether their Lordships wish to see the fair copy             No
     of the judgment ?

4    Whether this case involves a substantial question             No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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PURVA RAKESH PATEL THROUGH POA RAKESH HARSHADBHAI PATEL
                         Versus
           LALITABEN SHANABHAI PATEL & 3 other(s)
==========================================================
Appearance:
MR MB GOHIL(2702) for the Appellant(s) No. 1
DARSHIT R BRAHMBHATT(8011) for the Respondent(s) No. 1,3,4
NOTICE SERVED(4) for the Respondent(s) No. 2
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                           Date : 27/04/2021

                          ORAL JUDGMENT

1. Heard learned Advocate Mr. M.B.Gohil for the Appellant and learned Advocate Mr. Darshit R. Brahmbhatt for the Respondents at

C/AO/118/2019 JUDGMENT

length through video conference.

2. The Appellant / Original Plaintiff has filed this Appeal from Order under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 challenging the portion of the impugned order dated 21.8.2017 opposed by the learned 15th Additional Senior Civil Judge, Vadodara, below Exh.5 in Special Civil Suit No.432 of 2015 whereby the learned Judge has been pleased to conditionally allow the stay application and directed the Appellant / Original Plaintiff to deposit an amount of Rs.35,99,000/- which is the amount of full and final consideration, within a period of 60 days.

3. The brief facts of the case are that the the Appellant herein has entered into a registered agreement to sell for captioned property, with the Opponents which is duly registered with the Sub-Registrar Office at Vadodara. Since the Opponents did not execute the sale deed, the Appellant herein has preferred Suit for specific performance of contract along with stay application at Exh.5. The learned Judge, while granting the stay application has directed the Appellant to deposit the entire sale consideration amount before the Court.

4. Learned Advocate for Appellant has contended that the order passed by the learned trial court is perverse, arbitrary, capricious, erroneous and illegal since the Appellant is not in possession of the disputed property, still however, the learned trial court has passed the order of depositing false consideration amount, and therefore, the order passed by the learned trial court is perverse and therefore the order passed by the learned trial court is required to be quashed and set aside.

5. Per contra, learned Advocate for the Opponent has opposed the

C/AO/118/2019 JUDGMENT

Appeal from Order and has submitted that the order passed by the learned trial court is in accordance with law. If the Appellant desires for specific performance in that case, the amount is required to be deposited and therefore there is no question of any interference in the order passed by the learned trial court and the Appeal from Order may be dismissed.

6. Having heard the arguments advanced by both the sides, pursuant to the order passed by the learned 15th Additional Senior Civil Judge, Vadodara, below Exh.5 in Special Civil Suit No.432 of 2015 wherein it is observed in paragraph 8.8 that the Appellant / Original Plaintiff has not given any notice to execute the document. The Appellant / Original Plaintiff has neither shown any readiness or willingness to perform the contract so far as the sale deed is concerned. Therefore, the learned trial court has rightly observed that if the Appellant / Original Plaintiff desires to carry out the so-called remaining agreement in form of sale deed, in that case, some amount is required to be deposited and to that extent, the learned trial court has passed the order that after deducting the amount of Rs.4,01,000/- the remaining amount of Rs.35,99,000/- is required to be deposited in the court.

7. In view of the facts and circumstances as stated above, in the opinion of this court the order passed by the learned 15th Additional Senior Civil Judge, Vadodara, below Exh.5 in Special Civil Suit No.432 of 2015 cannot be said to be perverse or illegal nor is said to be against the settled principles of law. Moreover, during the course of argument, both the learned Advocates have submitted that they do not invite the reasons in detail. Therefore, there is no required to interfere in the order passed by the learned 15th Additional Senior Civil Judge, Vadodara, below Exh.5 in Special Civil Suit No.432 of 2015. The Appeal from Order fails and accordingly the Appeal from Order is

C/AO/118/2019 JUDGMENT

dismissed.

However, since the Suit is of the year 2015, it would be appropriate to give some direction to the learned trial Court to conclude the Suit within six months from the date of receipt of the writ of this order. If the amount is not deposited, in that case, within four weeks, the captioned amount, which is mentioned in the order passed by the learned trial court, shall be deposited by the Appellant and thereafter the learned trial court shall commence the proceedings and shall dispose of the Suit preferably within six months from the date of receipt of the copy of this order. No order as to costs. Civil Application stands disposed of accordingly.

(A. C. JOSHI,J) J.N.W