24/11/15
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This order relates to hearing on the petition for condonation of delay of 913 days.
It has been stated in the petition for condonation of delay that the Appellant is the Land Owner and he received notice from the Learned District Forum in connection with CC 272 of 2012. The Appellant is aged about 62 years and has been suffering from various ailments. After receipt of the notice he informed the OP No.1 (Developer) to look into the matter who assured the Appellant that he will take care of the same. The OP No.1 assured the Appellant that he shall take necessary steps in the matter. After disposal of the case the Appellant was not communicated as to the final order passed in the complaint case and in connection with EA 195 of 2014 he received one notice. Under such circumstances, the Appeal was filed with the petition for condonation of delay of 913 days.
The Learned Counsel for the Appellant has submitted that the Appellant is the Land Owner and the dispute was between the Developer and the Purchaser. It is contended that the Land Owner cannot be directed to execute and register the deed of conveyance as it was an agreement between the Purchaser and the Developer. The Learned Counsel for the Appellant has referred to the decisions reported in 2014 (1) ICC 71 (SC) [Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors.]; 2015 (2) ICC 950 (SC) [Chandan Singh vs. National Insurance Co. Ltd. & Anr.]; 2015 (2) ICC 429 (Punjab and Haryana High Court) [Smt. Sharda Arora vs. Jasbir Singh & Ors.].
The Respondent has filed written objection. It is submitted by the Learned Counsel for the Respondent that the Appellant being the Land Owner appeared in the execution case bearing no.195 of 2014 before the Learned District Forum, Alipore, South 24-Parganas and it has been recorded by the Learned District Forum on 24/09/15 that the Jdr No.2 Biswajit Biswas filed an application stating that he was ready and willing to comply with the order, that is, to take part at the time of registration in favour of the Dhr and was ready and willing to deliver possession on “as is where is” basis to the Dhr at the 1st floor in the front side of the building. Under such circumstances, the Learned District Forum released the Jdr No.2, that is, the Appellant herein on bail.
We have heard the submission made by both sides and perused the papers on record. It appears from the impugned judgment passed by the Learned District Forum that OP No.2 appeared, but did not contest the case. It has also been admitted in paragraph 3 of the petition for condonation of delay that the Appellant received the notice in connection with CC 272 of 2012. The fact, therefore, remains that the present Appellant (OP No.2 of the complaint) even after appearing before the Learned District Forum did not choose to contest the case. It has been stated in paragraph 15 of the petition for condonation of delay that there was collusion and conspiracy between the Respondent Nos.1 and 2 herein to grab the disputed flat by playing fraud which is a matter of record. On the one hand the Appellant herein has stated that he depended on the Developer and on being assured by him did not contest the case and on the other he has stated that there was conspiracy between the Developer and the Purchaser. Moreover, there was development agreement between the Land Owner (Appellant herein) and the Developer for the development of the land by raising construction and on the strength of general power of attorney the Developer entered into an agreement with the Purchaser as per clause no.16 of the power of attorney. Moreover, the Appellant herein being the Land Owner filed a petition before the Learned District Forum in the execution case stating that he was willing and ready to comply with the order of the Learned District Forum and undertook to deliver possession and register the deed of conveyance and on such undertaking the Learned District Forum released the Land Owner on bail. It is, therefore, clear that the Appellant herein was all along aware of the proceedings in the complaint case and also in the execution case and in spite of the disclosure of willingness and readiness to comply with the order of the Learned District Forum, has filed this Appeal. Having heard the Learned Counsel and on perusal of the papers on record, we are of the considered view that the inordinate delay of 913 days in filing this Appeal has not been sufficiently explained.
The petition for condonation of delay is rejected. Consequently, the Appeal being time barred also stands dismissed.
