1. This petition under Article 227 of the Constitution of India is preferred being aggrieved by the order passed in Special Summary Suit No.5 of 2011 on 29.7.2011 below Exh.11 by 5th Additional Senior Civil Judge, permitting the present petitioner original defendant, to file the written statement on condition of depositing the entire amount of Rs.15,11,000/- claimed by the respondent original plaintiffs in a suit under Order 37 of the Code of Civil Procedure.
2. For briefly stating the facts, for the convenience the petitioners and the respondents shall be referred to as the defendants and the plaintiff respectively hereinafter. Father of the defendants No.1 and 2 and the husband of defendant No.3, late Bhanuprasad Pandya purchased the agricultural land from late Somabhai Patel and others. The agreement to sell was executed in 1954 for the land admeasuring 18,666 sq. meters in old Survey Nos.28,29,30,30/1 and Block No.35 situated at village: Charodi, sub-District-Ahmedabad, District: Ahmedabad. Special Civil Suit No. 395 of 1990 was preferred by late Bhanuprasad Pandya for specific performance of the contract, before learned Senior Civil Judge, Ahmedabad ( Rural).
3. During the pendency of the suit, the plaintiff approached the defendants in the year 2003, showing the readiness to purchase the rights of the defendants for consideration of Rs.46 lakhs.
4. The defendants withdrew, the Special Civil Suit No.395 of 1990 pending before the Civil Court at Ahmedabad (Rural) and Memorandum of Understanding was executed on 20.2.2003 to the above effect with a condition that the plaintiff would pay the entire sum of Rs.46 lakhs within 3 months from the date of execution of Memorandum of Understanding and if such amount is not paid within the stipulated time, the amount given by the plaintiff to the defendant would be forfeited.
5. The plaintiff paid sum of R.7,11,000/- to the defendant and thereafter paid Rs.8,00,000/- and on completion of three months on 20.5.2003 parties agreed to extend the time period by 15 days.
6. It is the say of the defendant that the defendant (petitioner) committed a breach of MOU by not paying balance amount even when the time was extended and, therefore, the sum of Rs.15,11,000/- stood forfeited.
7. On expiry of three years in the year 2006, the plaintiff raised the claim in as much as the Special Civil Suit No.395 of 1990 was dismissed with cost and the ad interim injunction was vacated by an order of decree dated 30.8.2008. A legal notice was issued by the plaintiff on 9.9.2008 claiming Rs.15,11,000/- from the defendant herein. Being aggrieved by the decree passed in Special Civil Suit No.395 of 1990, the petitioner-defendant preferred a Regular Civil Appeal before the District Court. The plaintiff (respondent herein) also filed a criminal complaint No.2684 of 2009 before the Chief Judicial Magistrate, Ahmedabad ( Rural) for the offences punishable under Section 406,420 and 114 of the Indian Penal Code and process has been issued on 9.2.2009.
The plaintiff thereafter filed Special Summary Suit No.5 of 2011 under Order 37 of Code of Civil Procedure for recovery of amount claiming sum of Rs.15,11,000/- from the defendant. It is the say of the petitioner defendant that it is wrongly stated by the plaintiff that the time period of MOU was extended by the parties. In the summons for judgment taken out on 15.3.2011, although all contentions were raised by the defendant, the Court granted leave to defend only on deposit of the entire amount of Rs.15,11,000/- within 1 (one) month from the date of order and such order dated 29.7.2011, according to the petitioner is passed on irrelevant and extraneous considerations.
8. This petition is preferred to quash and set aside the impugned order dated 29.7.2011 on the ground that the order is passed on assumption and presumption and the time since was on the essence of the contract and the plaintiff was to pay a sum of Rs.46 lakhs to the defendant within the stipulated time period and as he failed to so do it and raised the claim beyond the period of 3 years, the Court ought not to have entertained such claim. The defendant admitted the receipt of amount of Rs.15,11,000/- from the plaintiff as this was towards the total sum of Rs.46 lakhs. However, on the plaintiff not having fulfilled the condition, the earlier suit was dismissed and thus, the amount paid by the plaintiff needed to be verified as agreed upon for not having paid the entire amount within the stipulated time. According to the defendant petitioner there are triable issues and the Court ought not to have imposed the condition of deposit of the entire amount of Rs.15,11,000/-, which is hopelessly time barred.
9. On issuance of notice, learned advocate Mr. Mehta appeared for the original plaintiff respondent and urged that this entire version has been placed before the trial Court and the Court was of the opinion that unless the amount admitted to have been received is deposited, no leave to defend can be granted. He further urged that the petitioner herein knew that such a document was non-est and, therefore, the Court should not exercise its supervisory jurisdiction under Article 227 of the Constitution of India for the person like this. He further pointed out that the criminal complaint needed to be lodged. As can be noted from the legal notice issued by the plaintiffs to the defendant present petitioners, it is alleged that when the petitioner defendant entered into agreement forgoing his rights of agreement to sell in favour of the plaintiffs, he had suppressed the fact that he was possessing only 50% of such right and the remaining 50% of such rights were with Shri Chimanbhai Patel. Moreover, the plaintiff was also aggrieved by the fact that the Special Civil Suit No. 395 of 1990 resulted against the present petitioner and agreement to sell which was based on limitation was sent to hand writing expert for examining the signature of the original owner and his thumb impression and it was declared by the hand-writing expert that neither the signature nor the thumb impression matched those of the original owner, the Court, therefore, concluded that misusing the Court process with the help of concocted documents, such attempt was made and, therefore, the suit was rejected. The plaintiff respondent was aggrieved by the fact that from the beginning there was an attempt to act dishonestly and, therefore, the suit under Order 37 of the Code of Civil Procedure.
10. On having thus considered the entire gamut of facts as also on closely examining the order impugned, there does appear to be reason for this Court to interfere in the supervisory jurisdiction in the direction of depositing Rs.15,11,000/- for the reasons to be followed hereinafter.
11. The order impugned if examined the trial Court has noted that the respondent plaintiff paid the sum of Rs.15,11,000/- in the year 2003. No interest has been claimed up to 2011. However, subsequent to the filing of the suit, the interest at the rate of 10% has been requested for. It is a simple suit of recovery of the amount. The Court also noted, the fact that out of the sum of Rs.46 lakhs, the plaintiff respondent had paid the sum of Rs.15,11,000/-, which was based on the outcome of Regular Civil Suit No.395 of 1990. While dismissing such a suit, the Court concluded that the agreement to sell which was made the base was concocted even when sent to Forensic Science Laboratory and the petitioner herein had not approached the Court with clean hands and the Court noted that there are many triable issues and amount of Rs.15,11,000/- otherwise was required to be forfeited as the total payment was not made by the plaintiff in time. What further weighed with the Court is the fact that the said amount was needed to be deposited with the Court and the respondent had agreed not to withdraw the same. Accordingly, it had directed to deposit this amount considering the fact that there are many triable issues, though the petitioner herein agreed and admitted to have received the sum of Rs.15,11,000/- in the opinion of this Court.
12. As is very apparent from the record that there are many triable issues and, therefore, instead of directing the entire amount to be deposited, even though the same was not to be withdrawn by the petitioner herein, in a suit which is though couched under Order 37 of the Code of Civil Procedure, the same requires trial and in such circumstances, the order impugned requires to be interfered with. As is appearing prima facie from the record in the earlier suit, the conduct of the present petitioner is noted by the Court and the agreement to sell depended upon by the petitioner is held to be forged and, therefore, he may not be permitted to defend unconditionally. The petitioner herein is directed to pay 60% of the amount of Rs.15,11,000/- for defending the suit. Accordingly, the petition succeeds partly. Petition is disposed of in above terms.
(Ms. Sonia Gokani, J. ) sudhir