Uttarakhand High Court
M/S Aragon Infratech Pvt. Ltd vs Smt. Sheetal Mund & Another on 15 March, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
FA No. 116 of 2020
M/s Aragon Infratech Pvt. Ltd .........Appellant
Vs.
Smt. Sheetal Mund & another .....Respondents
Mr. Bhupesh Kandpal, Advocate, for the appellant.
Mr. Arvind Vashistha, Senior Advocate, assisted by Mr. Vikas Bahugun, Advocate, for
the respondent.
Hon'ble Sharad Kumar Sharma, J (Oral)
The appellant, herein, i.e. M/s Aragon Infratech Pvt. Ltd.
had assailed a compromise decree dated 25.10.2018, as was rendered
in Original Suit No.142 of 2018, "Smt. Sheetal Vs. Trilok Singh"
which has been passed by the court of 5th Additional Civil Judge
(Senior Division), Dehradun, on the basis of the compromise which
was entered between the parties.
2. The first appeal, is reported to have been preferred by the
appellant by instituting the appeal before this Court on 19.08.2020.
The appeal was accompanied with the Delay Condonation Application
No. (6346 of 2020) explaining 575 days of delay which has chanced
in filing the present appeal.
3. Before dealing with the aspect of limitation, the few
things which are apparent is:
(1) In the decree, which was rendered in Original Suit No.142
of 2018, "Smt. Sheetal Vs. Trilok Singh", the appellant was
not a party and hence the decree was having a binding effect
upon the parties to the suit itself.
(2) The appeal preferred by the appellant is not accompanied
with an application for leave to appeal.
(3) The ground of delay, which has been raised by the
appellant, herein, was that he himself is not a party to the suit,
is on the pretext that he is a beneficiary of agreement for sale
which is alleged to have been executed by Late Niranjan Kaur.
Therefore, the compromise decree obtained by playing a fraud.
(4) His material rights would be prejudiced, which was flowing
him from agreement for sale dated 03.03.2018.
4. The solitary ground, which has been raised by the learned
counsel for the appellant, for seeking a condonation of delay is on the
ground of fraud, which was played upon them by the parties to the suit
which included Trilok Singh, who is allegedly to have succeeded the
assets of Late Smt. Niranjan Kaur, who had executed the Agreement
for Sale in their favour. Besides the Compromise decree being in
violation of interim injunction rendered in Original Suit No.613 of
2017, "M/s Aragon Infratech Pvt. Ltd Vs. Niranjan Kaur" on
16.12.2017.
5. On the institution of the appeal, the notices were issued
to the parties by an order of this Court dated 17.09.2020, and
respondents have filed their respective objections and it is quite
obvious that the respondent no.2 - Trilok Singh, who was the
defendant to the suit, since he himself was claiming his rights to be
flowing through late Smt. Niranjan Kaur, who has executed an
agreement for sale in favour of the appellant herein had supported the
delay condonation application. However, the delay condonation
application had been vehemently opposed by the learned Senior
Counsel for the respondent no.1 i.e. Smt. Sheetal Mund.
6. The learned Senior Counsel for the respondents, in their
objections to the delay condonation application had submitted that the
reasons for preferring of an appeal, apart from the fact that it is not
sustainable at the behest of the appellant, since they are not the parties
to the suit, nor the appeal was having an application of leave to
appeal. The plea of fraud would not be available to the appellant, for
the reason being, is that the appellant themselves had procured the
certified copy of the compromise decree dated 25.10.2018, by filing
an application before the learned trial court for procuring certified
copy of it and the same was, shown by records to have been supplied
to them on 02.11.2018. It is not only that the said certified copy of the
judgment which was procured by the appellant on the application
dated 02.11.2018, the said judgment dated 25.10.2018, itself was
made as part of the record of the Suit No.613 of 2017 "M/s Aragon
Infratech Pvt. Ltd Vs. Niranjan Kaur", by filing the same before the
learned trial court on 08.11.2018 hence knowledge was attributed to
the appellant. Hence, the learned Senior Counsel for the respondent
contended that the knowledge was attributed to the compromise dated
25.10.2018 to the appellant, which is the subject matter in the appeal,
was very well in the knowledge of the appellant, when he filed an
application on 02.11.2018 to procure the certified copy of the
compromise judgment dated 25.10.2018, and had received and relied
on it, in a suit plead by them and not only that he has placed the same
on record on 08.11.2018.
7. The ground taken in the delay condonation application
that since the compromise decree was a consequence of a fraud, which
was alleged to be played upon the appellant by the parties to the suit
i.e. O.S. No.142 of 2018, "Smt. Sheetal Vs. Trilok Singh", was also
not sustainable because the "theory of fraud", as per the argument
which has been extended by the learned Senior Counsel for the
respondent, that when during the pendency of the Original Suit
No.613 of 2017, "M/s Aragon Infratech Pvt. Ltd. Vs. Niranjan Kaur",
when Smt. Niranjan Kaur has met with the sad demise. The appellant
themselves have filed an application for substitution to bring on
record the heirs of the deceased/defendant Late Smt. Niranjan Kaur on
record of the Original Suit No.613 of 2017, "M/s Aragon Infratech
Pvt. Ltd. Vs. Niranjan Kaur" and as per the pleadings raised by them
in paragraph no.5 of the said substitution application the appellants
themselves have pleaded the concept of fraud in obtaining the
compromise decree dated 25.10.2018 which has been put to challenge
in the present first appeal i.e. on 25.10.2018. Hence, a plea of fraud,
which has been raised in the delay condonation application is also
stands refuted in view of their own admitted plea raised in the
substitution application filed by them on 18.07.2018 in Original Suit
No.613 of 2017, "M/s Aragon Infratech Pvt. Ltd. Vs. Niranjan Kaur".
Where the concept of fraud is compromise decree was a ground taken
by appellant themselves in 2018.
8. On the ground of the objection taken and the apparent
facts which are on record, it cannot be said that the appellant was not
having the knowledge of the judgment and decree dated 25.10.2018,
which was oblivions to the fact of fraud having been committed while
procuring a compromise decree dated 25.10.2018.
9. As both the facts i.e. of rendering a decree and its
knowledge and fact of fraud admitted by him, in view of the
objections and the pleadings taken therein by the appellants
themselves. Consequently, the reasons of 575 days of delay in filing
the present first appeal, is not satisfactorily explained as appellants on
their own showing had the knowledge in 2018 itself. Hence, this
Court declines to condone the delay. Consequently, the delay
condonation application stands rejected. Accordingly, the appeal
being FA No.116 of 2020 "M/s Aragon Infratech Pvt. Ltd Vs. Smt.
Sheetal Mund and another" also stands dismissed.
(Sharad Kumar Sharma, J.)
15.03.2021
NR/
