The Hon’ble Supreme Court in the Matter of Dahiben vs Arvindbhai Kalyanji Bhanusali  held that and reffered and discussed several judgments as under:-

Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint2, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

12.4 Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under :

“Order 7 Rule 14: Production of document on which plaintiff sues or relies.– (1)Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at 2 Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I & Anr., (2004) 9 SCC 512.

 the same time deliver the document and a copy thereof, to be filed with the plaint.

(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.” (emphasis supplied) Having regard to Order VII Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

12.5 In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.

12.6 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint
 on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.3 12.7 The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr.,4 which reads as :

“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.” In Hardesh Ores (P.) Ltd. v. Hede & Co.5 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court 3 Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3 SCC 137 4 (2004) 9 SCC 512.

 cannot embark upon an enquiry whether the allegations are true in fact.6 12.8 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC. 12.9 The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra.7 The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).

12.10 The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.

6 D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC 941.

7 (2003) 1 SCC 557.

13. “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

In Swamy Atmanand v. Sri Ramakrishna Tapovanam8 this Court held :

“24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded” (emphasis supplied) In T. Arivandandam v. T.V. Satyapal & Anr.9 this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : –

“5. …The learned Munsiff must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has 8 (2005) 10 SCC 51.

 created the illusion of a cause of action, nip it in the bud at the first hearing …” (emphasis supplied) Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal,10 this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.

If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal11 held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage.

The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.

14. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation 10 (1998) 2 SCC 170.

In a recent decision in CC No. 368/2014, Shweta Kapoor & Anr. Vs. M/s. Unitech Ltd. & Anr., decided on 14.01.2016, the complainants had agreed to purchase a residential flat from the opposite party Unitech Ltd. in a project which it was developing in Sector-50 of Gurgaon and had made payment of Rs. 95.5% of the total sale consideration. The Buyers Agreement executed between the parties in that case stipulated delivery of possession by September 30, 2009. Since the possession was not delivered by the stipulated date, the complainants approached this Commission by way of a complaint. The grounds on which the aforesaid complaint was resisted were summarized as under:

 “A preliminary objection has been taken that as per the terms and conditions of the agreement between the parties, in case of delay on the part of the opposite party in delivering possession, the complainants are entitled only to compensation @ 5 per square feet per month of the super area, for the period the possession is delayed and in case the developers are not in a position to offer the property, they may offer an alternative property or refund the amount received from the flat buyers with interest @ 10% per annum. On merits, the opposite parties have admitted the agreement with the complainants as well as the receipt of the amount alleged by them.  The delay in offering possession is sought to be justified on the following grounds:-

       “Common Wealth Games during April, 2010 to March, 2011 – the Common Wealth Games were organized in the NCR region which resulted into an extreme shortage of labours in the region as most of the labour force was employed and / or was engaged by the Government to expedite the completion of the pending projects required for the Common Wealth Games.

       Active implementation of social schemes like NREGA and JNNURM – In addition to the above due to active implementation of alluring and promising schemes floated by the Central and State Government, there was a sudden shortage of labour / workforce especially in the real estate market.  The workforce / labour forces were tempted to return to their respective states due to the guaranteed employment.

       Order dated 16.7.2012 passed by the Hon’ble High Court of Punjab & Haryana (hereinafter referred to as the “Order” – The above mentioned Order strictly restrained the usage of ground water and directed to use only treated water from available Sewerage Treatment Plants (hereinafter referred to as “STP”).  As the availability of STP, basic infrastructure and availability of water from STP, was very limited in comparison to the requirement of water in the ongoing constructions activities in NCR region.


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION  NEW DELHI          
CONSUMER CASE NO. 487 OF 2014           1.
Manoj Kumar Jha & Anr. vs M/S. Unitech Ltd
 HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
 CC No. 487/20
(1)     The complainants, who are husband and wife, booked an apartment measuring 1560 sq. feet of super area in a project namely Vistas which the opposite party is developing in Sector-70 of Gurgaon. The parties entered into a Buyers Agreement dated 15.03.2010 in this regard. As per clause 4 (a) of the said agreement, the opposite party was required to deliver possession of the flat to the complainants within 36 months from the date of the agreement i.e. by 15.03.2013. The complainants made payment of Rs. 47,62,416/- to the opposite party as against the agreed total consideration of Rs. 52,09,200/-, constituting 91% of the total sale consideration. The grievance of the complainants is that despite they having made 91% of the payment, the opposite party has not even offered possession of the flat to them. The complainants therefore, are before this Commission seeking possession of the flat booked by them or a flat of identical size in a similar locality or a sum of Rs. 1,71,60,000, that being the current market value of such flats. They have also claimed a sum of Rs. 24,157/- per month towards rental expenses, Rs. 15,87,274/- as interest calculated @ 18% per annum from the committed date of possession till October' 2014 and Rs. 1,32,600/- being the compensation as stated in the Buyers Agreement
 CC No. 13/2015
(2)     The complainant in C.C. No.13 of 2015 is a subsequent purchaser, who purchased Flat No.1001 measuring about 1629 sq. ft. of super area in the project 'FRESCO' which the opposite party is developing in Sector 50 of Gurgaon, from the original allottee Ms.Kaushal and Mr.Mukesh Kumar by way of an agreement dated 24.01.2013.  The booking by the original allottee was made on 01.11.2006 and they entered into an agreement dated 12.12.2006 with the opposite party.  Under the Buyers Agreement, the opposite party was required to deliver the possession of the apartment to the purchasers by March 2009. The transfer in favour of the complainants was allowed by the opposite party vide its letter dated 24.01.2013. The grievance of the complainant is that the possession of the flat has not been offered to him despite more than 9 years have expired from the date of execution of the Buyers Agreement and about 3 years have expired from the date he purchased the apartment from the original allottee. The aforesaid complainant is therefore, before this Commission seeking possession of the flat booked by him alongwith compensation etc.
(3)     The complainants in CC/14/2015 booked an apartment measuring 1815 sq. ft. of super area in the project 'FRESCO' which the opposite party is developing in Sector 50 of Gurgaon and parties entered into a buyers agreement dated 16.06.2008 whereby the opposite party was required to deliver possession of the apartment to the complainants within 27 months i.e. by 15.09.2010.  The grievance of the complainants is that the possession has not been offered to them though more than 5 years have already expired from the date stipulated for delivering possession of the apartment to them.  Being fed up with such abnormal delay in offering possession of the apartment to them, the complainants are seeking refund of the amount which they have paid to the opposite party along with compensation in the form of interest @ 18% p.a.  Though they have also sought damages for the loss of rental income and payment of contractual compensation besides a lump sum compensation for physical and mental torture, the prayer is now confined to a consolidated compensation in the form of simple interest from the computed date of possession till the date the amount to the complainants is refunded 
(4)     The complainants in CC/15/2015 are the subsequent purchasers who purchased the apartment no.0103 having super area of 1662 sq. ft. in the project 'FRESCO' in Sector 50 of Gurgaon from the original allottee of the said apartment on 15.12.2011. The allotment to the original allottee was made vide Buyers Agreement dated 2.8.2011 and as per clause 4 (a) of the said agreement, the possession was to be delivered within 9 months from the date of the agreement i.e. by 2.5.2012. However, the possession is yet to be offered to the complainants. The aforesaid complainant is therefore, before this Commission seeking possession of the flat booked by him alongwith compensation etc.
(5)     The complainant in CC No. 16/2015 alongwith his wife booked a residential apartment bearing no. 0302 measuring 1560 sq. feet of super area in the same complex i.e. Vistas in Sector-70 of Gurgaon for a total consideration of Rs. 5349504/-. Later, the name of the wife of the complainant was deleted from the said agreement. The complainant made payment of Rs. 4938886/- to the opposite party. As per the Buyers Agreement executed between the parties on 12.03.2010, the possession was to be delivered within 36 months from the date of the agreement i.e. by 12.03.2013. The possession however, has not been delivered. The complainant therefore, is before this Commission seeking possession of the flat, with compensation etc.
(6)     The complaints have been resisted by the opposite party on several grounds which were also taken in a number of consumer complaints filed against the said party before this Commission and were rejected. It is however, not in dispute that the opposite party is not in a position to hand over possession of the flats to the complainants and though construction of the super structure is stated to be complete, even occupancy certificate has not been applied.
(7)     The learned counsel for the complainants has pointed out that a number of complaints filed by the allottees of the project Vistas in Sector-70 of Gurgaon were allowed by this Commission vide order dated 08.06.2015. In CC No. 427/2014, Satish Kumar Pandey & Anr. Vs. M/s. Unitech Ltd. and connected matters. The order passed in the Satish Kumar Pandey & Anr. (supra) to the extent it is relevant, reads as under:
"Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants.  There is no allegation of any lock-out or strike by the labour at the site of the project.  There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project.  There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement.  It was contended by the counsel for the OP that the expression 'slow down' would include economic slow-down or recession in the Real Estate sector.  I, however, find no merit in this contention.  The word 'slow down' having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.
As regards, alleged shortage of labour, I find that no material has been placed on record by the OP that despite trying, it could not be get labourers to complete the construction of the project within the time stipulated in the Buyers Agreement.  It was submitted by the learned counsel for the complainants that ordinarily big builders such as the OP in these cases, are contracting/sub-contracting the construction work to the contractors engaged by them, instead of employing their own labourers on a regular basis, the purpose being to ensure that they are not saddled with the wage bill of those regular labourers, in case the opposite party does not have adequate work for them.  There is no evidence of the OP having been invited tenders for appointment of contractors / sub-contractors for executing the work at the site of those projects and no contractor/ sub-contractor having come forward to execute the project on the ground that adequate labour was not available in the market.  Therefore, it cannot be accepted that the opposite party could not have arranged adequate labour, either directly or through contractors/sub-contractors, for timely completion of the project.  As regards the alleged shortage of water, bricks and sand in the market, I find that there is no evidence filed by the OP, to prove that it was unable to procure water, sand and brick in adequate quantity.  This is also their case that the notification of the Government, being relied upon by the opposite party, is an old notification, which was in force even at the time the opposite party promised possession in 36 months. There is no evidence of the opposite party having invited tenders for supply of bricks and water and there being no response to such tenders.  In fact, if the work is to be executed through contractors/sub-contractors, the material such as bricks, sand and even water will be arranged by the contractor/sub-contractor and not by the opposite party.  As noted earlier, there is no evidence of the opposite party having invited tenders after awarding the work of project in question to the contractors/sub-contractors and there being no response to such tenders.  Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity.
It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms.
However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice.  It was submitted by the learned counsel for the complainants that the term providing for payment of a nominal compensation such as Rs.5/- per square foot of the super area having become the order of the day in the contracts designed by big builders, a person seeking to buy an apartment is left with no option but to sign on the dotted lines since the rejection of such term by him would mean cancellation of the allotment.  He further submitted that a person seeking to acquire a built up flat instead of purchasing a plot and then raising construction on it, therefore, is not in a position to protest resist the inclusion of such a term in the Buyer's Agreement, and has to rely upon the reputation of the builder, particularly if he is a big builder such as Unitech Ltd.  He also submitted that the format of the Buyer's Agreement is never shown to the purchasers at the time of booking the apartment and if he refuses to sign the Buyer's Agreement on the format provided by the builder, not only will he lose the booking, even the booking amount/earnest money paid by him will be forfeited by the builder.  I find merit in the above referred submissions of the learned counsel.  A person who, for one reason or the other, either cannot or does not want to buy a plot and raise construction of his own, has to necessarily go in for purchase of the built up flat.  It is only natural and logical for him to look for an apartment in a project being developed by a big builder such as the opposite party in these complaints.  Since the contracts of all the big builders contain a term for payment of a specified sum as compensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation being less than 25% of the estimated cost of construction per month, the flat buyer is left with no option but to sign the Buyer's Agreement in the format provided by the builder. No sensible person will volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment.
It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable.  The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer.  Such a term in the Buyer's Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him.  He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance.  If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc.  The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation.  In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project.  This gives credence to the allegation of the complainants that their money has been used elsewhere.   Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder.  Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word "including" before the words "any of the following practices
(8)     In Suman Nandi & Anr. Vs. Unitech Limited & Anr., CC No.277/2013 decided on 17.12.2015, a Co-ordinate Bench of this Commission rejected the identical pleas taken by the opposite parties-Unitech and Pioneer Urban Land & Infrastructure Ltd.  The aforesaid judgment to the extent it is relevant reads as under
"8.       On careful perusal of the evidence, we find that opposite parties have not led any evidence to show any new legislation, regulation or order suspending, stopping or delaying the construction of complex in which the subject apartments were agreed to be sold to the complainants.  Neither there is an allegation of strike, slow-down, civil commotion, war, enemy action, terrorist action etc. or any other act of god which might have caused delay in completion of project within time stipulated in the Buyer's Agreement nor evidence in this regard has been adduced.   Learned counsel for the opposite parties have tried to get out of the situation by arguing that expression slow-down in clause 9.b. of the Buyer's Agreement would also include economic slowdown or recession in real estate sector.  We do not find merit in this contention. The economic constraints ordinarily cannot be taken as a defence for non- compliance of the contract.  The term 'slow - down' in clause 9.b. has been used alongwith word 'strike' and it has to be read ejusdem generis with the aforesaid words and can only mean a slow down resorted by the labourers engaged in the construction of the project in support of their demands. 
9.      As regards shortage of labour, but for the bald plea of the opposite parties in their written statement and the affidavits which are more or less reproduction of the written statement, there is no material or convincing evidence on record that despite of making efforts, the opposite parties could not get labours to complete the construction of project within the stipulated time.  Therefore, it cannot be accepted that opposite party because of market conditions could not manage to arrange adequate labour for timely completion of project.  As regards the alleged shortage of water, bricks and sand in the market, no cogent evidence has been produced by the opposite party to establish that it was unable to procure water, sand and bricks in adequate quantity.  No evidence has been adduced to establish that from the date of signing of Buyer's Agreement from 2006-2010, there was shortage of those materials in the market.  The opposite parties have also taken a plea that there was a notification of government imposing restriction on the production of bricks by brick klins.  The aforesaid argument is without any force because the notification relied upon by the opposite party was in force even at the time the opposite party promised possession of the apartments within 30 -36 months.  The opposite parties having entered into an agreement knowing the aforesaid constraints because of government notification now cannot get rid of its obligation to justify the delay in construction.  As regards the scarcity of water, plea of the opposite party is without any basis because the order of High Court stopping use of ground water for construction activity came much later.  If the opposite parties actually intended to complete the construction within the stipulated time, they would have completed the super structure which does not take much time within initial 24 months of the date of Buyer's Agreement.
10.    As regards the plea of shortage of labour etc. due to common wealth game is concerned, that plea is also not acceptable for the reason that Buyer's Agreement are of the year 2006 to 2010 and if the opposite parties intended to comply with the terms of agreement, they would have raised substantial construction before common wealth games. Had there been truth in the defence taken by the opposite party, the opposite party after the completion of construction activities pertaining to commonwealth games would have completed the project within the period of five years since the common wealth  games were held.  Till  date, the possession of the apartments have not been handed over to the complainants which clearly indicate the deliberate delay and negligence on the part of the opposite party and opposite party cannot be permitted to hide behind a bogus plea of force majeure or exceptions provided in clause 9.b of the Buyer's Agreement
18.    On reading of clause 2 (r) (i) (ii) & (vi), it is clear that if a service provider in order to increase his business makes a false representation regarding the standard and quality of the proposed service or its usefulness, it would amount to the unfair trade practice. On careful reading of the Buyer's Agreement it is clear that in the said agreement, the opposite party service provider has extended a clear promise/representation to the complainants that in the event of their paying consideration amount, they would be given possession of the booked apartments complete in all respect within 30-36 months or reasonable period thereof. However, in the above-noted case, the stipulated period has expired way back and even almost five years have gone by but the possession of the apartments have not been delivered. There is no evidence from the side of the opposite party as to how and where the money paid by the complainants and the other buyers of apartments in the project has been utilised.  From this can be safely inferred that the opposite party has diverted the funds and instead of utilising the funds paid by the complainants/buyers for completing the project within the promised period. Therefore, in our considered view, this is a case of soliciting business by the opposite party service provider by making false representation. Therefore, in our view, this is a clear case of unfair trade practice. The opposite party, thus, cannot take shelter of clause 4.a of the contract to avoid its liability to pay reasonable compensation for the delay caused due to its intentional act in not making sincere efforts to complete the construction within a reasonable period.
19.    In view of the above, since the opposite party has utilised the money paid by the complainants against consideration amount, the complainants are entitled to interest on the payment made by them for the period of delay as compensation instead of meagre compensation computed on the basis of clause 4.c. of the Buyer's Agreement, which is highly unfair.  Looking into overall facts and circumstances of the case, we are of the opinion that 12% interest p.a. from the date of default in delivery of the subject apartments would meet the interest of justice.
(9)     In a recent decision in CC No. 368/2014, Shweta Kapoor & Anr. Vs. M/s. Unitech Ltd. & Anr., decided on 14.01.2016, the complainants had agreed to purchase a residential flat from the opposite party Unitech Ltd. in a project which it was developing in Sector-50 of Gurgaon and had made payment of Rs. 95.5% of the total sale consideration. The Buyers Agreement executed between the parties in that case stipulated delivery of possession by September 30, 2009. Since the possession was not delivered by the stipulated date, the complainants approached this Commission by way of a complaint. The grounds on which the aforesaid complaint was resisted were summarized as 
 "A preliminary objection has been taken that as per the terms and conditions of the agreement between the parties, in case of delay on the part of the opposite party in delivering possession, the complainants are entitled only to compensation @ 5 per square feet per month of the super area, for the period the possession is delayed and in case the developers are not in a position to offer the property, they may offer an alternative property or refund the amount received from the flat buyers with interest @ 10% per annum. On merits, the opposite parties have admitted the agreement with the complainants as well as the receipt of the amount alleged by them.  The delay in offering possession is sought to be justified on the following grounds:-
       "Common Wealth Games during April, 2010 to March, 2011 - the Common Wealth Games were organized in the NCR region which resulted into an extreme shortage of labours in the region as most of the labour force was employed and / or was engaged by the Government to expedite the completion of the pending projects required for the Common Wealth Games.
       Active implementation of social schemes like NREGA and JNNURM - In addition to the above due to active implementation of alluring and promising schemes floated by the Central and State Government, there was a sudden shortage of labour / workforce especially in the real estate market.  The workforce / labour forces were tempted to return to their respective states due to the guaranteed employment.
       Order dated 16.7.2012 passed by the Hon'ble High Court of Punjab & Haryana (hereinafter referred to as the "Order" - The above mentioned Order strictly restrained the usage of ground water and directed to use only treated water from available Sewerage Treatment Plants (hereinafter referred to as "STP").  As the availability of STP, basic infrastructure and availability of water from STP, was very limited in comparison to the requirement of water in the ongoing constructions activities in NCR region
This scarcity of an essential commodity for construction purposes made it difficult for the Opposite Parties to cope up with the pre-decided schedules as the availability of treated water became very limited and against the total requirement of water.  It is to be highlighted here that only approx. 10-15% of required quantity was available at construction sites to continue with the planned construction activities.
In addition to the above, the Opposite Parties were later completely banned to use underground water for construction purposes and were vehemently directed to use recycled water only.
        Notification dated 14.9.1999 published by Ministry of Environment and Forest -The Notification dated 14.09.1999 barred the excavation of top soil for the manufacture of bricks and further directed that no manufacturing of clay bricks or tiles or blocks be done within a radius of 50 (fifty) kilometres from coal and lignite based thermal power plants without mixing atleast 25% of ash with soil.  As a consequence of this Notification dated 14.09.1999 various brick kiln were shut creating shortage of essential commodity bricks for construction purposes.  
       Further, another raw material i.e. the sand which is used as mixture along with cement was also not available in the vicinity of the Complex due to restrictions from Mining Department imposed in the entire Aravali region and the same had to be procured from neighbouring State of Rajasthan. 
        Later in a completely unforeseeable ruling by the Hon'ble Supreme Court of India dated 08.05.2009 the Hon'ble Court suspended all the mining operations in the Aravalli Hill range falling in State of Haryana within the area of approx.. 448 sq. kms. In the district of Faridabad and Gurgaon including Mewat which directly affected the construction schedules and activities of the Respondents herein.

Notification dated 14.09.2006 published by the office of Director, Town and Country Planning, Haryana – This Notification dated 14.09.2006 imposed certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impact being undertaken in any part of India unless prior environmental clearances are obtained.  Therefore, due to the said Notification dated 14.09.2006, the procedure of obtaining approvals and sanctions by the opposite parties led to the delay in the present construction schedule.

Recession in the economy – That since the real estate industry is a cyclical industry that is affected by both local and national economic conditions.  While macroeconomic conditions affect the overall state of the real estate industry, local supply and demand conditions are by far more important factors affecting the real estate markets as a result of which the availability of essential resources namely the labour and various raw materials became scarce.”

(10)   Rejecting all the pleas taken by the opposite party and allowing the complaint, this Commission inter-alia observed and held as under:

4.      We find that the pleas taken in the reply filed by the opposite party are same which this Commission has already rejected in a number of complaints filed against the said opposite party.  In Swarn Talwar & Ors. vs. Unitech Ltd., C.C. No.347 of 2014 decided on 14.08.2015 wherein the opposite party had failed to construct flats in a project known as Unitech Habitat in Greater Noida, this Commission while directing the opposite party to refund of the amount deposited by the flat buyers along with interest on that amount @ 18% per annum inter-alia held as under:-

“8.      As regards the plea that in terms of Clause (c) of the allotment letter the opposite party is required to pay only the holding charges calculated at the rate of Rs.5/- per sq.ft. per month of the super area for the period the possession is delayed, such a contention was expressly rejected by us in Puneet Malhotra (supra) holding that such clause applies only in a case where construction of the flat is delayed but despite delay the buyer accepts the possession of the flat from the seller and consequently the accounts have to be settled between the parties. We observed in this regard that the buyer would have to pay the agreed holding charges to the seller and the seller to pay the agreed compensation on account of delaying the construction of the flat. The said clause, however, does not apply to a case where the buyer on account of delay on the part of the seller in constructing the flat is left with no option but to seek refund of the amount which he had paid to the seller. We further held that such a clause where the seller in case of default on the part of the buyer seeks to recover interest from him at the rate of 24% per annum will amount to an unfair trade practice since it gives an unfair advantage to the seller over the buyer. We also noted in this regard that enumeration of the unfair trade practices in Section 2(r) of the Act is inclusive and not exhaustive.

          This plea was also negatived by us in a batch of complaints CC No.427 of 2014, Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matter, decided on 08-06-2015. All those complaints were filed against none other than the opposite party in these matters, namely, Unitech Ltd.

9.      Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.

         It would also be pertinent to note here that as pointed out by the complainants the agitation of the farmers was on account of acquisition of land in Noida Extension and not on account of acquisition of land on which the project in which the flats were to be constructed for the complainants. As regards the alleged delay in obtaining environmental clearances there is no material on record to show when the opposite party applied for such clearances, where they submitted all the requisite documents etc. while applying for such clearances and how much was the time taken by the concerned authorities in granting the said clearances. In the absence of such particulars, it would be difficult for us to accept that development of the project was delayed on account of any notification imposing restrictions on new projects. In any case, the opposite party has failed to produce before us any notification imposing restriction or prohibition on development of the project in which the flats were to be constructed for the complainants.

(11)   This Commission further observed and held as under in Shweta Kapoor & Anr. (Supra):

6.      In the case before us, there is no evidence of the opposite parties having been prevented from completing the construction due to an Act of God or reasons beyond their control. There is no evidence of any Tribunal or Authority having restrained them going ahead with construction of this particular project, which could not be completed even after more than 6 years after the date stipulated for this purpose in buyers agreement.  The averments made in the reply are vague and general in nature, without even specifying when, by which order and for how much period a Tribunal or Authority had stopped the opposite parties from completing the construction.  The opposite parties ought to have obtained all the requisite approvals and clearances before coming in the market for accepting booking of the flats.  If some building material or water was not available in Gurgaon (though there is no evidence of the opposite parties having been unable to get building material and water in Gurgaon) it was for them to arrange building material and water from alternative sources, wherever it could be available.  The shortage of labour, building material or the water required for construction cannot be said to be Acts of God or reasons beyond the control of the opposite parties.  This is not the case of the opposite parties that no construction came up in Gurgaon in last 7-8 years. If others could construct buildings during this period, the opposite parties also could have done so, if they so intended.  This is not the case of the opposite parties that the entire money collected by them from the flats buyers in this project was used only for this project.  Hence, there seems to be truth in the contention of the complainants that the opposite parties have diverted the money collected from them to other projects or for other purpose, thereby financing their other business activities at the cost of the flat buyers in this project. In these circumstances, the aforesaid pleas are accordingly rejected.  

(12)  In Swarn Talwar & Ors. vs. Unitech Ltd., C.C. No.347 of 2014 and connected matters decided on 14.08.2015, the complainants had booked residential apartment in project known as Unitech Habitat, which the opposite party was to develop on plot no.9, Sector PI-II (Alistonia Estate) in Greater Noida. The opposite party however failed to deliver possession of the flats to the complainants within the time agreed between the parties and consequently the complainant sought refund along with interest @ 18% p.a. besides damages and cost of litigation.

          The complaints were resisted on the grounds identical to those on which the present complaint has been opposed.  Rejecting all the grounds taken by the opposite party and also inter alia relying upon the decision of the Hon’ble Supreme Court in K.A. Nagmani Vs. Housing Commissioner, Karnataka Housing Board, C.A. No.6730-6731, decided on 19.09.2012, this Commission directed the opposite party to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount @ 18% per annum from the date of deposit till the date the said amount was paid to the flat buyers.  The payment was directed to make within six weeks.

      Being aggrieved from the order passed by this Commission, the opposite party preferred an appeal before the Hon’ble Supreme Court being Civil Appeal (Diary No. 35562 of 2015). Vide signed order dated 11.12.2015, the Hon’ble Supreme Court dismissed the said appeal.  The order passed by the Hon’ble Supreme Court reads as under:-

“We have heard learned counsel for the appellant and perused the record.  We do not see any cogent reason to entertain the appeal. The judgment does not warrant any interference.

    The Civil Appeal is dismissed.”

(13)   The learned counsel for the opposite party submits that since the apartment in question was purchased for less than Rs.1 Crore, this Commission lacks pecuniary jurisdiction to entertain this complaint and the complainants should be relegated to the concerned State Commission for the redressal of their grievance.  We however find no merit in this contention.  This issue was raised by the opposite party in Swarn Talwar (Supra) and was rejected.  The aforesaid decision to the extent relevant to this plea reads as under:-

“5.      The first question which arises for our consideration in these cases is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain these complaints. Section 11(1) of the Consumer Protection Act read with Section 21 of the Consumer Protection Act to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceeds Rs.1,00,00,000/-. The contention of the learned counsel for the opposite party is that interest claimed by the complainants cannot be termed as compensation and if the interest component is excluded, the pecuniary value of the complaint does not exceed Rs.1,00,00,000/- except in one case. The learned counsel for the complainants on the other hand contended that the interest which they have claimed along with refund of the principal sum even if not so described specifically, is by way of compensation only, since the opposite party has been deficient in rendering services to the complainants by not delivering possession of the flats on or before the time agreed in this regard.

6.      In our view, the interest claimed by the flat buyers in such a case does not represent only the interest on the capital borrowed or contributed by them but also includes compensation on account of appreciation in the land value and increase in the cost of construction in the meanwhile. As noted by us in CC No.232 of 2014, Puneet Malhotra Vs. Parsvnath Developers Ltd. decided on 29-01-2015, there has been steep appreciation in the market value of the land and cost of construction of the residential flats in Greater Noida in last about 7-10 years and consequently the complainants cannot hope to get a comparable flat at the same price which the opposite party had agreed to charge from them. In fact it would be difficult to get a similar accommodation, even at the agreed price plus simple interest thereon at the rate of 18% per annum. Therefore, the payment of interest to the flat buyers in such a case is not only on account of loss of income by way of interest but also on account of loss of the opportunity which the complainants had to acquire a residential flat at a particular price.

7.      In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court inter alia observed and held as under:

        “However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure…

…Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.

That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.

       It would, thus, be seen that the Hon’ble Supreme Court recognized that the interest to the flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by the complainants or at least part of it should not be taken into consideration for the purpose of deciding the pecuniary jurisdiction of this Commission. If this is done, the aggregate amount claimed in each of the complaints exceeds Rs.1,00,00,000/- and, therefore, this Commission does possess the requisite pecuniary jurisdiction.

           In the cases where the complainant does not want refund and is seeking possession, alongwith compensation for the delayed possession, this Commission would have jurisdiction to entertain the complaint, if the aggregate of the value of the flat, on the date of filing of the complaint and the compensation claimed for the delay in delivering possession, exceeds Rs. 1 Crore. In terms of Section 21(a) of the Consumer Protection Act, this Commission can entertain complaints where the value of the goods or services and compensation exceeds Rs. 1 Crore. Since the buyer is seeking possession of the flat booked by him, the value of the service, in such a case in our opinion, in terms of Section 21(a) of the Consumer Protection Act means the value of the flat as on the date of filing of the complaint and not the value on the date the flats were booked.

(14)     In Satish Kumar Pandey (Supra) some of the complainants before this Commission were subsequent purchasers who had purchased the apartment from the original allottee of the opposite party.  The possession in those cases was offered to be delivered within three years. It was directed by this Commission that those who had purchased the apartment after more than one year from the initial allotment should be paid compensation in the form of simple interest @ 12% per annum w.e.f. three years from the date of repurchase till the date the possession is delivered to them, no compensation shall be payable to them from first three years from the initial allotment and for the period between three years from the date of initial agreement/allotment and three years from the date of repurchase by them compensation shall be paid to them @ Rs.5/- per sq. ft. of the super area in terms of the clause 4 (c) of the buyers agreement.  Lesser compensation to the subsequent purchaser was awarded considering the decision of the Hon’ble Supreme Court in Haryana Urban Development Authority vs. Raje Ram, AIR 2009 SC 2030.

(15)   The persons who had purchased flats within one year from the date of the agreement with/allotment to the original allottee were treated by this Commission at par with the original allottee in Satish Kumar Pandey (Supra) and therefore such complainants would be entitled to same compensation for the period the possession is delayed, as has been awarded to the original allottees.

(16)     During the pendency of this complaint, the opposite party sent a letter to the allottees in ‘FRESCO’ project conveying a revised completion schedule and offer of possession of apartment for various towers.  A higher penalty clause was also proposed by the opposite party in the said letter dated 26.05.2015.  As per the said letter dated 26.05.2015, possession in Tower-4 whereby the apartment purchased by the complainant in CC No. 13/2015 is situated, was to be offered by 31.10.2015 and in case of delay penalty @ Rs.17 per sq. ft. per month w.e.f. 1.11.2015 till the date of actual offer of possession.  Admittedly, the possession has not been offered by 31.10.2015.

(17)   In view of the forgoing discussion, the complaints are disposed of with the following directions:

      (a) In CC No. 14/2015, the opposite parties are directed to refund the amount paid to them by the complainants alongwith compensation in form of simple interest @ 18% per annum, calculated from the date of each payment till the date on which the said amount is refunded to them.

      (b) The opposite parties shall pay a sum of Rs. 5,000/- as the cost of litigation in each complaint.

      (c) The opposite parties shall deliver possession of the flats booked in the project Vistas in Sector-70 of Gurgaon, by the complainants in CC No. 487/2014 & 16/2015 to them within one year from today.

      (d) The opposite parties shall pay to the complainants in CC No. 14/2015, CC No. 15/2015 and CC No. 487/2014, compensation in the form of simple interest @ 12% per annum with effect from the expiry of the period stipulated in the Buyers Agreement/Allotment Letter for offering possession to them till the possession of the flats is actually delivered to them. The compensation in the form of interest till 29.02.2016 shall be paid by 31.03.2016. Thereafter, compensation in the form of interest in terms of this order shall be paid on monthly basis by the 10th of each succeeding month.

(e) In CC No. 13/2015, where the agreement with the original allottee is dated 12.12.2006 and the committed date of possession was March 2009, the opposite parties shall pay compensation by way of simple interest @ 12% per annum with effect from 27 months from the date of purchase of the flat by them till the possession is delivered to them. They will also be paid contractual compensation @ Rs. 5 per sq. feet of the super area of their flat for the period between 01.04.2009 and 27 months from the date of re-purchase of the flats by them.

(f) If the opposite parties fail to deliver possession of the flats to the complainants within the time stipulated in this order, they shall pay higher compensation to them in the form of interest @ 18% per annum for each day of delay beyond the time stipulated in this order for delivering possession of the flat to them. We however, hope that a situation attracting the aforesaid higher compensation will not arise.

  ………………….J V.K. JAIN PRESIDING MEMBER …………………. DR. B.C. GUPTA MEMBER

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“Whether the document Ex.P­6 required registration as by way of said document the interest in immovable property worth more than Rs.100/­ was transferred in favour of the plaintiff?”

In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

“(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well­settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.” (emphasis supplied) Again, in paragraph 24, this Court restated that a family arrangement being binding on the parties, clearly operates as an estoppel, so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. In paragraph 35, the Court noted as follows: ­ “35. … We have already pointed out that this Court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a donee. In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title. …..” And again, in paragraph 36, the Court noted as follows: ­ “36. … Yet having regard to the near relationship which the brother and the son­in­law bore to the widow the Privy Council held that the family settlement by which the properties were divided between these three parties was a valid one. In the instant case also putting the case of Respondents Nos. 4 and 5 at the highest, the position is that Lachman died leaving a grandson and two daughters. Assuming that the grandson had no legal title, so long as the daughters were there, still as the settlement was made to end the disputes and to benefit all the near relations of the family, it would be sustained as a valid and binding family settlement. …” While rejecting the argument regarding inapplicability of principle of estoppel, the Court observed as follows: ­ “38. … Assuming, however, that the said document was compulsorily registrable the courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. …..” (emphasis supplied) And in paragraph 42, the Court observed as follows: ­

In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against Respondents Nos. 4 and 5. Respondent No. 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases. …” (emphasis supplied) The view so taken is backed by the consistent exposition in previous decisions8 referred to and duly analysed in the reported judgment. The question formulated by the High Court, in our opinion, stands answered in favour of the appellants (plaintiff), in 8 Lala Khunni Lal vs. Kunwar Gobind Krishna Narain, ILR 33 All 356 Mt. Hiran Bibi vs. Mst. Sohan Bibi, AIR 1914 PC 44 Sahu Madho Das vs. Pandit Mukand Ram, AIR 1955 SC 481 Ram Charan Das vs. Girjanandini Devi, AIR 1966 SC 323 Tek Bahadur Bhujil vs. Debi Singh Bhujil, AIR 1966 SC 292 Maturi Pullaiah vs. Maturi Narasimham, AIR 1966 SC 1836 Krishna Biharilal vs. Gulabchand, (1971) 1 SCC 837 S. Shanmugam Pillai vs. K. Shanmugam Pillai, (1973) 2 SCC 312 Ramgopal vs. Tulshi Ram, AIR 1928 All 641 Sitala Baksh Singh vs. Jang Bahadur Singh, AIR 1933 Oudh 347 Mst. Kalawati vs. Sri Krishna Prasad, AIR 1944 Oudh 49 Bakhtawar vs. Sunder Lal, AIR 1926 All 173 Awadh Narain Singh vs. Narain Mishra, AIR 1962 Pat 400 Ramgouda Annagouda vs. Bhausaheb, AIR 1927 PC 227 Brahmanath Singh vs. Chandrakali Kuer, AIR 1961 Pat 79 Mst. Bibi Aziman vs. Mst. Saleha, AIR 1963 Pat 62 Kanhai Lal vs. Brij Lal, AIR 1918 PC 70 Dhiyan Singh vs. Jugal Kishore, AIR 1952 SC 145 T.V.R. Subbu Chetty’s Family Charities vs. M. Gaghava Mudaliar, AIR 1961 SC Rachbha vs. Mt. Mendha, AIR 1947 All 177 Chief Controlling Revenue Authority vs. Smt. Satyawati Sood, AIR 1972 Delhi 171 (FB) Shyam Sunder vs. Siya Ram, AIR 1973 All 382 light of exposition of this Court in Kale (supra)., it was not required to be registered and in any case, keeping in mind the settled legal position, the contesting defendants were estopped from resiling from the stated arrangement in the subject memorandum, which had recorded the settlement terms arrived at in the past and even acted upon relating to all the existing or future disputes qua the subject property amongst the (signatories) family members despite absence of antecedent title to the concerned property.

As regards the decision in Bhoop Singh (supra) and Som Dev & Ors. vs. Rati Ram & Anr. 9, the same dealt with the question of necessity to register any decree or order of a Court 9 (2006) 10 SCC 788 governed by clause (vi) of Section 17(2) of the Registration Act, 190810. In the present case, however, clause (v) of sub­Section 2 of Section 17 of the 1908 Act is attracted. Section 17 as applicable when the cause of action arose (prior to amendment of 2001) reads thus: ­ “Part III OF REGISTRABLE DOCUMENTS

  1. Documents of which registration is compulsory.­ (1) xxx xxx xxx (2) Nothing in clauses (b) and (c) of sub­section (1) applies to –

(i) xxx xxx xxx

(ii) xxx xxx xxx

(iii) xxx xxx xxx

(iv) xxx xxx xxx

(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or …..”

—————————————————————————————————————————————–

The relevant judgment : by Hon’ble Supreme court of India.

Ravinder Kaur Grewal & Ors.  Vs Manjit Kaur & Ors. CIVIL APPEAL NO. 7764 OF 2014

 

 

Constitution  of  India, 1950, Arts,  14  and  16–Selection

grade  posts in Indian Police Service–Appointment on  basis

of merit and seniority considered only when merit  equal–If

violative of the guarantee of equality.

The  All  India  Services Act,1951,  empowers    the-Central

Government  to make rules for the regulation of            recruitment

and  conditions of service of persons appointed to  an All

India  Service. In  exercise of  this            power            the  Central

Government  framed the Indian Police Service (Regulation  of

Seniority)  Rules, 1954.  Rule 6 of the said Rules  requires

that  a Gradation List of all Police Officers in  a  State

should            be   maintained  to  ascertain their             respective

seniority.   Accordingly, a Gradation List wag    prepared  by

the  respondent-State in which the petitioner was  shown  as

senior to respondents 3 and 4. In 1955, the petitioner   was

superseded by respondents 3 and 4 who were confirmed in    the

rank of Deputy Inspector General of Police, and in 1966, the

third respondent was promoted as Inspector General of Police

and  respondent 4  was appointed  as  Additional  Inspector

General  of  Police,  superseding  the petitioner.            The

petitioner  filed a writ petition in this Court        under Art.

32,  contending that: (1) he was entitled as  a  matter  of

right to big appointed as Deputy Inspector General of Police

in  1955 and as Inspector General of Police, in 1966, as  he

was shown as the senior most officer in the Gradation  List;

(2)  in the  absence  of,  any statutory  rules  governing

promotions to selection grade posts the Government could not

issue administrative instructions imposing restrict-ions not

found in the Rules already framed such as that merit and not

seniority should be considered; (3) the introduction of            the

idea  of merit into the procedure of promotion is  violative

of Arts. 14 and 16, because, it brings in an element of per-

sonal evaluation with the consequent abuses of nepotism       and

favouritism;  and (4) if the Government is held to have            the

power  to  make appointments without making  rules  in          that

behalf under the proviso to Art, 309, then the    appointments

of respondents 3 and 4 would be arbitrary, capricious and in

violation  of Arts. 14 and 16 of the Constitution,  because,

the  claims of the petitioner were not considered either  in

1955 or in 1966.

A perusal of rr. 3 and 8 of the Indian       Police

Service (Pay) Rules, 1954, read with Part B of Schedule          III

of  those  Rules  shows  that  the  three  posts  of  Deputy

Inspector  General of Police.  Additional Inspector  General

of  Police  and Inspector  General  of Po’  lice  in           the

respondent  State, are selection posts outside     the  junior’

and senior time scales of Pay.Promotion to selection grade

or selection posts is to be based primarily on merit and not

on  seniority alone and therefore, the respondent-State            was

not  bound to promote the petitioner merely because  he         was

senior in the Gradation List.  [118D-F].

(2)While  Government cannot amend or  supersede statutory

rules by administrative instructions, if rules are silent on

any  particular point, Government can fill up the  gaps and

supplement the rules and issue instructions not inconsistent

with the rules already framed.

The State Government has executive power in respect of State

Public Services mentioned in Entry 41, List II of  Schedule

VII of the Constitution, and, there is nothing in the  terms

of Art. 309 which abridges the power of the executive to act

under Art. 162 without a law. [119 F-G, H].

  1. Cajee v. U. Jormanik Siem, [1961] 1 S.C.R. 750 and  B.
  2. Na. garajanv. State of Mysore, [1966]  3  S.C.R.  682,

followed.

(3)  To            ensure a reasonable prospect of advancement to          all

officials  and at  the same time  to            protect            the  public

interest in having posts filled by the most able men, it  is

necessary  to evolve a proper promotion policy in  which  is

found  a correct balance between seniority and merit.  As  a

matter of  long  administrative  practice   promotion      to

selection grade or selection posts in the Indian Police Ser-

vice  had been based on merit, and seniority was taken            into

consideration only when merit of the candidates is otherwise

equal and no other criterion is available.  Such a procedure

does  not, in any way, violate the guarantee under Arts.  14

and 16 of the Constitution [112E; 123C-D].

(4)The            respondent-State  had considered the case  of  the

petitioner and taken into account the record, experience and

merit of the petitioner and of every other officer  entitled

to  be  considered  at  the time  of  the  promotion  before

promotion  of  respondents 3 and 4 to  selection  posts was

made,  and therefore, there was no breach of the  provisions

of Arts. 14 and 16. [121D-E].

In the Matter of Sant Ram Sharma vs vs State Of Rajasthan & Anr, The Ho’ble Court held that :-

The question for determination in this case is whether the petitioner was entitled, as of right, to be promoted as Deputy Inspector General of Police in 1955 or as Inspector General of Police in 1966 merely on the ground that his name stood first in the Gradation List prepared under Rule 6 of the Indian Police Service (Regulation of Seniority) Rules, 1954.

Sub-section (1) of s. 3 of the All India Services Act, 1951 (LXI of 1951) empowers the Central Government to make rules for the regulation of recruitment and conditions of service of persons appointed to an All-India Service. In exercise of this power the Central Government framed the Indian Police Service (Regulation of Seniority) Rules, 1954. Rule 2 (a) provides that “Cadre” means “an Indian Police Service Cadre constituted in accordance with rule 3 of the Indian Police Service (Cadre) Rules, 1954”. Rule 2 (d) defines “gradation list” to mean “a gradation list prepared under rule 6”. Rule 2(g) defines a “senior post” to mean “a post Included under item 1 of each Schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 or any post declared equivalent thereto by the State Government concerned”. Rule 3 deals with the assignment of year of allotment and reads as follows:-

“(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule. (2)The year of allotment of an officer in service at the commencement of these rules shall be the same as has been assigned to him or may be assigned to him by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules:

(3)The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be-

(a) where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held;

(b) where the officer is appointed to the Service by promotion in accordance with rule 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with rule 7 of those Rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former: Provided that the year of allotment of an officer appointed to the Service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those Rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned;

Rule 4 relates to seniority of officers and reads as follows: –

“4. (2) The seniority of officers in service at the commencement of these rules shall be as has been determined or may be determined by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules: Provided that where the seniority of an officer appointed in accordance with rule 9 of the Recruitment Rules has not been determined before the commencement of these rules, his seniority shall be determined in accordance with the provision in sub-rule (3).

Rule 5 deals with seniority of officers placed in List II and List III by the Special Recruitment Board and Rule 5-A deals with seniority of officers appointed under the Indian Police Service (Special Recruitment) Regulations. 1957. Rule 6 states:

“6. Gradation List.-There shall be prepared every year for each State Cadre and Joint Cadre a gradation list consisting of the names of all officers borne on that Cadre arranged in order of seniority in accordance with the provisions of rules 4, 5, 5-A and 7”.

The question is how to find a correct balance between seniority and merit in a proper promotion-policy. In this connection Leonard D. White has stated as follows:-

“The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole Organisation. The main interest to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the Promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment.

Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level. it is a dangerous guide. It does not follow that the employee longest in service in a particular trade is best suited for promotion to a higher grade; the very opposite may be true”.

 

Whether  ad hoc appointment for the purpose of seniority can be counted ?.

In the matter of  Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra & Ors.1, the High Court was of the opinion that an ad hoc appointee shall be entitled to count the entire service for seniority from the date of ad hoc appointment to the date of regularisation if he was in continuous service, without any interruption, till the  date of his regularisation. The High Court observed that although the initial appointments of the Writ Petitioners were not in accordance with the procedure prescribed for making appointment, they cannot be deprived of the benefit of the service rendered by them on ad hoc basis for the purpose of seniority and promotion. Accordingly, the High Court by its judgment dated 07.09.2011 allowed the Writ Petition Nos.187 of 2010, 188 of 2010 and 220 of 2010. Later, Writ Petition No.58 of 2011 on 30.11.2011 was disposed of in terms of the judgment in Writ Petition No187 of 2010 and other Writ Petitions.

It was contended on behalf of the promotees that the judgment of the High Court dated 07.09.2011 directing the benefit of the ad hoc service to be given to the promotees does not call for interference. They relied upon the proviso to sub-rule (4) of Rule 24 of the 2005 Rules to submit that they have a right to claim that the period of continuous officiation prior to the dates of their regular appointment should be counted for seniority. It was argued that the initial promotion on ad hoc basis in the year 2004 was after  a process of selection. They were continuously discharging their duties as Deputy Collectors till they were selected by the Public Service Commission and regularly appointed in the year 2007. If their service from 2004 is treated as regular, the direct recruits who were appointed in 2005 cannot be shown as seniors to them in the seniority list of Deputy Collectors. The grievance raised by them regarding the Office Memorandum that was issued by the Government of Uttarakhand on 21.10.2015 is that the Deputy Collectors who were allotted to the State of Uttarakhand but continued to work in the State of Uttar Pradesh were shown to have occupied the post of Deputy Collectors in the promotee quota. According to them, some of the Deputy Collectors who continued to work in the State of Uttar Pradesh have retired on attaining the age of superannuation. For all practical purposes including the payment of pension, they cannot be treated to have held a civil post in the State of Uttarakhand. Inclusion of their names in the seniority list of Deputy Collectors has been done only to deprive the promotees the legitimate seniority to which they were entitled. The implementation of the judgments dated 30.11.2011 in Writ Petition No.58 of 2011 and 07.09.2011 in Writ Petition Nos.187 of 2010, 188 of 2010, 220 of 2010 and the deletion of those Deputy Collectors who never worked in the State of Uttarakhand from the promotee quota would result in the promotees being accorded their rightful place in the seniority list.

In the matter of  State of West Bengal & Ors. v. Aghore Nath Dey & Ors. It was held as follows:

“22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ‘according to rules’. The corollary set out in conclusion (A), then is, that ‘where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority’. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.

 

In the matter of    Vinod Giri Goswami & Ors vsthe state of Uttrakhand in Civil Appeal No. 1606 of 2020, The Hon’ble Supreme Court held as under :-

 

” In view of our conclusion that the promotees are not entitled to count their ad hoc service for the purpose of computing their seniority. For the aforementioned reasons, the Civil Appeal @ S.L.P. (Civil) No.2779 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.6847- 6848 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.9885- 9886 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.9910- 9911 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.33762- 33763 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.33750- 33751 of 2012, Civil Appeal @ S.L.P. (Civil) Nos.33759- 33760 of 2012 are allowed and the Civil Appeal @ S.L.P. (Civil) No.18604 of 2019 is dismissed.”

 

 

 

 

This Court has laid down in the case of Chiranjilal Shrilal Goenka vs. Jasjit Singh and Others (1993) 2 SCC 507 the primacy of the Probate Court on the question of validity of a Will. On behalf of the respondents, a decision of this court in the case of Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon & Others (2007) 11 SCC 357 has been cited. This case is an authority on the point that the Probate Court is not competent to determine the question of title of the properties forming subject-matter of a Will. In another decision, Binapani Kar Chowdhury vs. Sri Satyabrata Basu and Another (2006) 10 SCC 442 the question involved was as to whether a legal representative could prosecute a civil suit filed by the Testator during his lifetime for recovery of possession against third party. The legal representative in that case wanted to be substituted as plaintiff in the civil suit in the capacity of executor and legatee of the will of the Testator, who was plaintiff in the suit. Such a course was found to be permissible. This opinion of the Court was qualified with the direction that if the suit was ultimately decreed, the Trial Court should make it clear that the judgment and decree would come into effect only on such legal representative obtaining and producing the probate of the Will. Till such time the decree was to be kept provisional and not to be given effect. But ratio of this judgment does not apply in the facts of this case. The Delhi High Court, in the case of Praveer Chandra vs. Aprajita & Others (2019 SCC Online Delhi 10820) has followed the course directed in the case of Binapani Kar Chowdhury (supra) and has held that a partition suit and Probate Proceeding could proceed simultaneously, but if the Partition suit was decreed, the decree would come into effect after the decision in the Probate proceeding. This view was taken, however, in an application filed under Section 10 of the Code of Civil Procedure, 1908, in which the partition suit was sought to be stayed.

The Testamentary proceeding would have direct bearing or impact on the pending suit for partition. If the Letters of Administration is granted to the petitioner in the Testamentary proceeding, then the assets of the deceased may not remain available as the partible estate of Pawan Kumar Singha (deceased). In the plaint of the suit for partition, a copy of which has been annexed to this Transfer Petition, the properties of Pawan Kumar Singha (deceased) have been listed in paragraph 2 thereof, referring these assets as that of the deceased. The character of these assets as joint property of Rashmi Ahluwalia and the deceased, however, has been only hinted in the affidavit taken out in support of the Chamber Summons in the Testamentary petition. The respondents are contesting the petition for grant of Letters of Administration. If the partition suit proceeds independently and plaintiffs therein succeed, then there would be a possibility of inconsistent findings by two High Courts, provided the petitioners succeed in the Testamentary proceeding. In situations of this nature, this Court in the cases of Balbir Singh Wasu vs. Lakhbir Singh And Others [(2005) 12 SCC 503], Nirmala Devi (supra) and Chitivalasa Jute Mills (supra), has directed clubbing together of both proceedings for hearing. I am satisfied that certain common issues would arise for adjudication of both these proceedings. In the written statement of the first and second defendants in the partition suit, the point of execution of the Will by Pawan Kumar Singha (deceased) has been raised.

­­­­­­­­­­­­­­­­­­­­­­­­­_____________________________________________________________________________________

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO. 1531 OF 2018

SHAMITA SINGHA & ANR.                       ..PETITIONERS

VERSUS

RASHMI AHLUWALIA & ANR.                     ..RESPONDENTS

J U D G M E N T

ANIRUDDHA BOSE, J.

The petitioners in this proceeding are both daughters of Late Pawan Kumar Singha(deceased). They seek transfer of a suit for partition and Signature Not Verified certain other ancillary reliefs instituted in Digitally signed by DEEPAK SINGH Date: 2020.06.19 17:42:28 IST Reason:

the Delhi High Court. The said suit has been registered as CS(OS)No.2888 of 2014. The plaintiff in that suit is Rashmi Ahluwalia, who is the widow of the deceased. She was the second wife of the deceased. The petitioners in this proceeding, Shamita Singha and Masoom Singha are daughters of Pawan Kumar Singha, deceased, from his first marriage, which was later dissolved. Both of them have been impleaded as defendants in that suit for partition. The third defendant in that suit is Ms.Sanjana, who is the daughter of Rashmi Ahluwalia, from her first marriage. It has been pleaded in the plaint that after her marriage to the deceased, Sanjana was “accepted/adopted” by the deceased Pawan Kumar Singha as his own daughter. Sanjana is the second respondent in this petition. The first petitioner, Shamita Singha has applied for grant of Letters of Administrations to the estate of the deceased Pawan Kumar Singha on the basis of his Will dated 15th January, 2014. A petition to that effect has been filed in the Testamentary and Intestate jurisdiction of the Bombay High Court. That petition, filed on 22nd April 2016, has been registered as “T. Petition No. 821 of 2016”. Rashmi Ahluwalia and said Ms. Sanjana Ahluwalia, have put in appearance in the Testamentary Petition. They question, inter-alia, the legality of the Will and contend that it is forged.

  1. So far as the suit in the Delhi High Court is concerned, this has been instituted prior in time, on 18th September, 2014. In the CS(OS) No. 2888 of 2014, Rashmi Ahluwalia has claimed partition of the estate of the deceased and has sought declaration to the effect that she is entitled to 1/4th share of the estate. The schedule of assets forming part of the petition for Letters of Administration and the table of assets given in the suit for partition have several common movable and immovable properties. Thus, the assets which the petitioners claim to have been bequeathed to them by the testator also forms subject-matter of the suit for partition.
  2. The petitioners’ case argued by Ms. Arora, learned counsel, is that the Probate Court has exclusive jurisdiction in matters relating to legality of a will and for that reason, her plea is that it would be expedient that the suit instituted in the Delhi High Court should be transferred to the Probate Court. Ms. Arora has relied on a decision of this Court in the case of Nirmala Devi vs. Arun Kumar Gupta and Others (2005) 12 SCC 505 in support of her submission that the suit for partition can be clubbed together with a Testamentary proceeding. This argument is founded on the reasoning that the decision in the Testamentary proceeding on the question of validity of the Will shall have direct impact on the partition suit. Ms. Mishra, learned counsel for the respondents, on the other hand has pressed for continuance of the suit in the Delhi High Court. It is her submission that both the proceedings can simultaneously run in the respective fora in which they have been instituted. Her alternative plea is that the Suit for partition having been instituted before the Probate Proceeding, the latter ought to be transferred to the Delhi High Court, if clubbing together of the two proceedings is at all warranted. She has drawn my attention to Section 270 of the Indian Succession Act, 1925 to contend that the Delhi High Court also has jurisdiction to try the Probate Proceeding.
  3. This Court has laid down in the case of Chiranjilal Shrilal Goenka vs. Jasjit Singh and Others (1993) 2 SCC 507 the primacy of the Probate Court on the question of validity of a Will. On behalf of the respondents, a decision of this court in the case of Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon & Others (2007) 11 SCC 357 has been cited. This case is an authority on the point that the Probate Court is not competent to determine the question of title of the properties forming subject-matter of a Will. In another decision, Binapani Kar Chowdhury vs. Sri Satyabrata Basu and Another (2006) 10 SCC 442 the question involved was as to whether a legal representative could prosecute a civil suit filed by the Testator during his lifetime for recovery of possession against third party. The legal representative in that case wanted to be substituted as plaintiff in the civil suit in the capacity of executor and legatee of the will of the Testator, who was plaintiff in the suit. Such a course was found to be permissible. This opinion of the Court was qualified with the direction that if the suit was ultimately decreed, the Trial Court should make it clear that the judgment and decree would come into effect only on such legal representative obtaining and producing the probate of the Will. Till such time the decree was to be kept provisional and not to be given effect. But ratio of this judgment does not apply in the facts of this case. The Delhi High Court, in the case of Praveer Chandra vs. Aprajita & Others (2019 SCC Online Delhi 10820) has followed the course directed in the case of Binapani Kar Chowdhury (supra) and has held that a partition suit and Probate Proceeding could proceed simultaneously, but if the Partition suit was decreed, the decree would come into effect after the decision in the Probate proceeding. This view was taken, however, in an application filed under Section 10 of the Code of Civil Procedure, 1908, in which the partition suit was sought to be stayed.
  4. In Chitivalasa Jute Mills vs. Jaypee Rewa Cement [(2004) 3 SCC 85], this Court has broadly laid down the guideline to be followed while dealing with the question of transfer of suit under Section 25 of the Code. In that case, parties were substantially the same in two suits. The disputes arose out of same set of transactions. The cause of action of the suit alleged by one party was its ground of defence in the other suit. This Court found that the same set of evidence would be needed in both the suits. In such circumstances, this Court opined that the two suits ought not to be tried separately.
  5. In the facts of this case, the outcome of the Probate proceeding in my opinion would have impact on the suit for partition pending before the Delhi High Court. Majority of the assets in respect of which Letters of Administration has been sought for are common to those in respect of which partition is asked for. Of course, grant of Letters of Administration, if ordered, per se would not determine the title of the testator in the assets scheduled to the Testamentary Petition. I find from the joint affidavit of the respondents herein filed in support of the Chamber Summons taken out by them in the aforesaid Testamentary Petition that they are contending the Will to be a forged one. In the same affidavit, the deponent of which is Rashmi Ahluwalia, it has also been pleaded that during the period of her marriage with the deceased, they had purchased various properties together.
  6. I have already observed that the Testamentary proceeding would have direct bearing or impact on the pending suit for partition. If the Letters of Administration is granted to the petitioner in the Testamentary proceeding, then the assets of the deceased may not remain available as the partible estate of Pawan Kumar Singha (deceased). In the plaint of the suit for partition, a copy of which has been annexed to this Transfer Petition, the properties of Pawan Kumar Singha (deceased) have been listed in paragraph 2 thereof, referring these assets as that of the deceased. The character of these assets as joint property of Rashmi Ahluwalia and the deceased, however, has been only hinted in the affidavit taken out in support of the Chamber Summons in the Testamentary petition. The respondents are contesting the petition for grant of Letters of Administration. If the partition suit proceeds independently and plaintiffs therein succeed, then there would be a possibility of inconsistent findings by two High Courts, provided the petitioners succeed in the Testamentary proceeding. In situations of this nature, this Court in the cases of Balbir Singh Wasu vs. Lakhbir Singh And Others [(2005) 12 SCC 503], Nirmala Devi (supra) and Chitivalasa Jute Mills (supra), has directed clubbing together of both proceedings for hearing. I am satisfied that certain common issues would arise for adjudication of both these proceedings. In the written statement of the first and second defendants in the partition suit, the point of execution of the Will by Pawan Kumar Singha (deceased) has been raised.
  7. Ms. Mishra has argued that the suit for partition having been instituted before the Testamentary Petition, her client’s suit must be allowed to proceed first and the Testamentary Petition could be transferred to Delhi High Court, if necessary. It is also her submission that major portion of the assets of the deceased lie in Delhi. A petition for transfer under Section 25 of the Code, however, is decided on consideration of the ends of justice. The “First past the post” is not the principle that can be applied in proceedings of this nature. Thus, the view taken by the Delhi High Court in the case of Praveer Chandra (supra) would not aid the respondents here, as that proceeding was founded on a different principle embodied in Section 10 of the Code. I am of the opinion that the Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well. The plaintiffs in the suit for partition are also contesting the Testamentary Petition and they would not be greatly inconvenienced in prosecuting the suit before the Bombay High Court. The petitioners claim that the Will has been executed in Mumbai and the two attesting witnesses who have affirmed affidavits to support the Will are also from Mumbai. Copies of these affidavits appear at pages 39 and 41 of the paper book filed in connection with the Transfer Petition. These are also factors which I have considered in forming my opinion in favour of transfer of the suit.
  8. I accordingly direct that the suit filed in the Delhi High Court by Rashmi Ahluwalia registered as C.S.(O.S.) No.2888 of 2014 be transferred from the said High Court to the Bombay High Court. On transfer, the said suit is to be listed before the Hon’ble Judge before whom Testamentary Petition No.821 of 2016 is pending adjudication. The Hon’ble Judge may hear both the proceedings simultaneously, clubbing them together, if necessary. In the event the Hon’ble Judge before whom the said Testamentary Petition is listed or pending listing does not have the determination to hear the suit for partition as per the roster of the Bombay High Court, then the file may be placed before the Hon’ble Chief Justice, Bombay High Court, for appropriate order of assignment so that both the Suit and the Testamentary petition can be heard together.
  9. The Transfer Petition is allowed in the above terms. Interim order, if any, shall stand dissolved.
  10. There shall be no order as to costs.

The High Court does not have the power to convert the writ Petition to Appeal.

The Hon’ble Supreme Court in the matter of :   MOHD. INAM   vs SANJAY KUMAR SINGHAL & ORS.   in  CIVIL APPEAL NO._2697 OF 2020 held and relied on earlier judgments that:-

In the present case, we are of the considered view, that the approach of the High Court in exercising the jurisdiction under Article 227 of the Constitution of India was 11 (1975) 1 SCC 858 12 (1977) 4 SCC 587 13 (1978) 2 SCC 573 14 (1982) 3 SCC 514 15 (1986) 4 SCC 447 16 (1987) 3 SCC558 17 (2001) 1 SCC 4 18 (2003) 6 SCC 641 19 (2004) 3 SCC 682 20 (2008) 9 SCC 1 21 (2010) 1 SCC 217 totally erroneous. The learned District Judge while exercising his power under Section 18 of the U.P. Act, 1972 and after finding that the order passed by the Rent Controller and Eviction Officer was totally contrary to the law laid down by this Court in Harish Tandon (supra), while interpreting clause (b) of sub­section (1) of Section 12 of the U.P. Act, 1972 and also that the order passed was totally on a perverse reading of the evidence, had interfered with the said order and reversed the same. The High Court totally misinterpreting the order passed by the earlier learned judge in Writ Petition No.7(MS) of 2003 dated 23.8.2006, on an erroneous premise, held that the vacancy order could not have been challenged along with the final order. The finding is totally contrary to the law laid down by the bench of three learned judges of this Court in Achal Misra (supra), a relevant part of which was reproduced by the High Court in its earlier order dated 23.8.2006. The learned judge ignoring Achal Misra (supra), which is a binding precedent, relies on an order of one paragraph of the two learned judges of this Court while holding that the revision was not maintainable. We, therefore, are of the considered view, that the exercise of jurisdiction by the High Court under Article 227 in the present case was patently unwarranted and unjustified.

It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde & Ors. vs. Millikarjun Bhavanappa Tirumale10, Bathutmal Raichand Oswal vs. Laxmibai R. 10 (1960) 1 SCR 890 Tarta & Anr.11, M/s India Pipe Fitting Co. vs. Fakruddin M. A. Baker & Anr.12, Ganpat Ladha v. Sashikant Vishnu Shinde13, Mrs. Labhkuwar Bhagwani Shaha & Ors. vs. Janardhan Mahadeo Kalan & Anr.14, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram15, Venkatlal G. Pittie and another vs. Bright Bros (Pvt.) Ltd.16, State of Maharashtra vs. Milind & Ors.17, State Through Special Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and others18, Ranjeet Singh vs. Ravi Prakash19, Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through LRs. and others20, Celina Coelho Pereira (Ms.) and others vs. Ulhas Mahabaleshwar Kholkar and others21.

I the matter of University of Delhi   vs   Union of India & Ors                          

Held that:

From a consideration of the view taken by this Court through the decisions cited supra the position is clear that, by and large, a liberal approach is to be taken in the matter of condonation of delay. The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even­ handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation. In the case of Katiji (Supra) the entire conspectus relating to condonation of delay has been kept in focus. However, what cannot also be lost sight is that the consideration therein was in the background of dismissal of the application seeking condonation of delay in a case where there was delay of four days pitted against the consideration that was required to be made on merits regarding the upward revision of compensation amounting to 800 per cent.

in the case of Collector, Land Acquisition, Anantnag & Anr.vs. Katiji & Ors., 1987(2) SCC 107 wherein it is held as hereunder:

“3. The legislature has conferred the power to condone delay by enacting Section 5 [ Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be
admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on ”merits”. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice — that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

“1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

  1. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
  2. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common-sense pragmatic manner.
  3. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
  4. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
  5. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is
    capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the “State” which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the “State” is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file- pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non- grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression “sufficient cause”. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides.”

in the case of Postmaster General & Ors. vs. Living Media India Limited & Anr. 1992 (3) SCC 563 wherein it is held as hereunder:

“28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.