Rajasthan High Court

Shri Ridhkaran Parasrampuria S/O ... vs Chandra Prakash Agarwal S/O Late ... on 9 March, 2021

Bench: Goverdhan Bardhar

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Misc. Application No.1/2021 (Inward)
                                       In
              S.B. Civil First Appeal No. 1060/2018

  Shri Ridhkaran Parasrampuria S/o Late Shri Girdhari Lal
  Parasrampuria and Anr.
                                                  ----Appellants/Defendants
                                   Versus
Chandra Prakash Agarwal S/o Late Shri Badrinarayan Agarwal
                                                      ----Respondent/Plaintiff

For Appellant(s) : Mr. R.K. Agarwal, Sr. Adv. assisted by Mr. Rajesh Mehrishi and Ms. Sunita Pareek For Respondent(s) : Mr. R.K. Daga

HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

Order

09/03/2021

The matter has come up for orders on an application

(I.A. No.1 dated 4.1.2021) filed by the appellants/defendants

under Section 151 CPC with the following prayers:-

"(a) By issuance of a suitable direction or order the Hon'ble Court may kindly be pleased to permit the appellants/defendants to deposit the bank demand drafts in the learned Court below along with furnishing a solvent security of Rs. 1,00,00,000/- to the satisfaction of the learned Court below, condoning the delay in implementing the conditions prescribed in its previous order dated 05.11.2019 and to consequently extend the stay granted on the judgment/decree of the learned Court below dated 30.08.2018 till the final disposal of the S.B. Civil First Appeal No. 1060/2018;

(b) By issuance of the a suitable direction or order the Hon'ble Court may kindly be pleased to stay further proceedings before the learned Additional District and Sessions Judge No. 2, Jaipur Metropolitan, Jaipur in the

(2 of 5) [CFA-1060/2018]

execution petition No. 3/2020 filed by the respondent/plaintiff seeking execution of the order dated 30.08.2018 until the final disposal of the S.B. Civil First Appeal No. 1060/2018 and

(c) Pass any other appropriate order or directions as may be deemed fit and proper in the facts and circumstances of the case, in favour of the appellants/defendants and in the interest of justice."

Counsel for the appellants/defendants submitted that

appeal filed by the appellants/defendants before this Court against

the decree for specific performance passed by the Court of

Additional District Judge No.2, Jaipur Metropolitan, in Civil Suit

No.22/2013 which was admitted on 5.11.2019 and this Court on

the stay application directed the appellants/defendants to deposit

the earnest money amounting to Rs.1,85,00,000/- along-with

decreetal amount amounting to Rs.84,67,032.96/- within a period

of three months and also to furnish solvent security in the sum of

Rs.1,00,00,000/- to the satisfaction of the Court below. Senior

counsel further submitted that against the order dated 5.11.2019

passed on the stay application an SLP (C) No.4631/2020 was filed

before the Hon'ble Apex Court which was dismissed as withdrawn

vide order dated 28.5.2020. Senior counsel further submitted that

the respondent/plaintiff was not interested in execution of the

decree and also in making payment of the aforesaid amount. In

the meantime, on account of COVID-19 pandemic and complete

lock down for several months, the Hon'ble Apex Court took

cognizance and passed a suo moto order dated 27.3.2020 by

which the period of limitation was extended from time to time and

the delay was condoned, which resulted in total closure of the

business and due to the closure of business the appellants/

defendants suffered financial loss and in the interregnum period,

(3 of 5) [CFA-1060/2018]

they could not manage the fund to abide by the order dated

5.11.2019 passed by this Court. Counsel submitted that the

appellants/ defendants from all their sources made arrangement

of the aforesaid amount by way two Demand Drafts. However, the

respondent/ plaintiff contested his matter on execution before the

Court of Addl. District & Sessions Judge No.2, Jaipur Metropolitan,

in which last date was 08.01.2021. Counsel submitted that some

delay occurred in making arrangement of the aforesaid amount

which is bonafide and unintentional and same may be condoned

by this Court. Counsel further submitted that on permitting the

defendants/appellants to deposit both the Bank Drafts before the

court below they shall shall simultaneously furnish solvent security

of Rs.1,00,00,000/-.

On the other hand learned counsel appearing for the

respondent/plaintiff opposed the submissions advanced by the

learned counsel for the defendants/appellants and submitted that

the directions issued by this Court on the stay application are

specific and just & proper.

In support of his submissions, learned counsel has

placed reliance upon following judgments:-

1. Sagufa Ahmed & Ors. v. Upper Assam Plywood Products Pvt. Ltd. & Ors., reported in 2020 Supreme (SC) 551; and

2. P.R. Yelumalai v. N.M. Ravi and N.M. Ravi v. P.R. Yelumalai, reported in (2015) 9 SCC 52.

Heard learned counsel for the contesting parties,

perused the order dated 05.11.2019 passed by this Court on the

stay application and also scanned and scrutinized the entire

material made available to the Court.

Learned counsel for the non-applicant submits that vide

order dated 5.11.2019, operation of impugned judgment and

(4 of 5) [CFA-1060/2018]

decree was stayed subject to conditions but the applicants instead

of complying with the directions within the stipulated period issued

in the aforesaid order filed an application for extension of time for

depositing the amount after expiry of period originally fixed. Thus,

in the present case, the applicants were in willful default in

depositing the decreetal amount amounting to Rs.1,85,00,000/-

before the court below alongwith furnishing solvent security in the

amouint of Rs.1,00,00,000/-.

Perused the impugned order dated 5.11.2019 passed

by this Court on the stay application.

From the aforesaid order, it is crystal clear that same

has been passed by this Court so as to provide interim measure in

the interest of justice without prejudiced to the rights of any of the

party. The instant application has been filed on the ground that on

account of COVID-19 pandemic and complete lock down for

several months, which resulted in total closure of the business,

applicants having suffered financial loss during the interregnum

period as a result of which they could not manage the fund to

abide by the order passed by this Court and were rigorously

working on for arranging the funds which cumulatively comes to

Rs.2,69,67,033/-. The applicants throughout were bonafide but for

the unavoidable situation could not deposit the amount within

stipulated period before the court below. Thus, the

applicants/appellants be permitted to deposit the aforesaid two

Bank Demand Drafts before the court below by condoning the

delay, which occurred in depositing the same.

It is pertinent to note that the order dated 5.11.2019

passed by this Court is discretionary in nature. Thus, taking note

(5 of 5) [CFA-1060/2018]

of the overall facts and circumstances of the case that the instant

application for extension of time has been filed on sufficient

grounds.

The Hon'ble Apex Court in the case of Johri Singh v.

Sukh Pal Singh and others, 1989 (4) SCC 403, observed is ad-

infra:-

"18. This section empowers the court to extend the time fixed by it even after the expiry of the period originally fixed. It by implication allows the court to enlarge the time before the time originally fixed. The use of the word 'may' shows that the power is discretionary, and the court is, therefore, entitled to take into account the conduct of the party praying for such extension."

As per aforesaid judgment, the Court can grant extension

of time after seeing the conduct of the party praying for such

extension after the expiry of the period originally fixed. Here in

the present case, due to Covid-19 pandemic and the complete

lock-down, the applicants could not make arrangement of fund.

Thus, in the present scenario when the country is seeing a

resurgence of COVID-19 cases, the conduct of the applicants in

not depositing such an amount as per directions vide order dated

5.11.2019 within the period originally fixed, do not reflect willful

default.

In view of above, the application filed by the applicants

for extension of time is allowed and further ten days time is