Ratnakar D. Patade vs Smita Pandurang Dalvi And Others on 2 August 1995

Bombay High Court
Ratnakar D. Patade vs Smita Pandurang Dalvi And Others on 2 August, 1995
Equivalent citations: AIR1996BOM69, 1996(1)BOMCR206, (1995)97BOMLR369, 1996(1)MHLJ76, AIR 1996 BOMBAY 69, (1996) 1 ALLMR 31 (BOM), (1996) 1 ICC 621, (1996) 1 MAH LJ 76, (1996) 2 CIVLJ 23, (1996) 1 BOM CR 206
JUDGMENT
1. Appeal from Order No. 196 of 1995 is preferred by the original plaintiff from the order passed on 21st December 1994 by Judge Shri P.M.Joshi of the City Civil Court at Bombay on Notice of Motion No. 5954 of 1994 taken out in Suit No. 442 of 1993 pending in the City Civil Court at Bombay. Appeal from Order No. 195 of 1995 is preferred also by the original plaintiff from the order dated 10th February 1995 passed also by Judge Shri P.M.Joshi on Notice of Motion No. 582 of 1995 taken out in the suit. Both these appeals are being disposed of by this common order.

2. The appellant has filed the suit in the City Civil Court at Bombay, inter alia for an order of perpetual injunction against the respondents herein, who are defendants in the suit, restraining them from disturbing the appellant’s use, occupation, possession and enjoyment of the suit land, including the building and / or forcibly dispossessing the appellant therefrom as also for an order of permanent injunction restraining the respondents from in any manner disturbing the appellant, his architect, contractors, engineers and workmen; from carrying on and completing the work of construction of three buildings. In the suit, the appellant took out a Notice of Motion No. 1052 of 1992 for interim reliefs in terms of perpetual injunction sought in the suit. Some of the respondents took out a Motion No. 2037 of 1992 in the suit for appointment of Court Receiver, High Court, Bombay, as Receiver and for other reliefs prayed for therin. Both these notices of motion were disposed of by Judge Shri Gangurde of that Court as per the order passed on 1st July 1992. The appellant was directed to continue the construction work in respect of the suit premises which was then left incomplete to the extent of 20% and to complete the same by 31st October 1992 and to hand over possession to each of the respondents of the respective flats for which agreements were entered into by and between the appellant and those respondents. It was ordered that if the appellant for any reason failed to complete the construction work by 31st October 1992, the respondents would be at liberty to take over completion of the then incomplete construction work on and from 1st November 1992. Further directions were also given by the learned Judge while disposing of the said notices of motion. On 7th September, 1992 the appellant entered into an agreement with one M / s. Deshmukh & Associates for completion of the balance construction work in respect of the suit premises. According to the appellant though the appellant had completed the balance construction work as per the said order dated 1st July 1992, the respondents failed and neglected to pay the balance amount payable by them to the appellant. Since according to the respondents, the appellant did not complete the balance construction work as per the said order dated 1st July 1992, the respondents took out a Notice of Motion No. 6965 of 1992 was made on behalf of the respondents, as per the order passed on 18th December 1992 by Judge Shri Gangurde, no ad interim relief was granted to the respondents. An appeal from Order No. 1366 of 1992 was therefrom preferred by the respondents wherein Shri N.N.Shrikhande was appointed Commissioner to submit report about incomplete items of construction, if any.

2A. A report dated 9th January 1993 was submitted by the said Shri N.N.Shrikhande of M /s. Shrikhande Consultant Pvt. Ltd., Engineering Management & Software Consultants, showing that construction work was practically completed and that the flats were ready for occupation. On 25th January 1993, the said appeal from Order No. 1366 of 1992 was dismissed by Patankar, J. However the hearing of the said Notice of Motion No. 6965 of 1992 was expedited.

3. The appellant also took out a Notice of Motion No. 1292 of 1993 in the suit for direction to respondents 3, 5 and 9 to quit, vacate and hand over vacant and peaceful possession of their flats bearing Nos. B-12, C-1 and C-4 to the appellant by removing themselves therefrom and for other directions as prayed for therein.

4. Both the said notices of motion were disposed of by Judge Shri Gangurde as per the common order passed on 30th September, 1st October and 4th October, 1993. By the said order the Notice of Motion No. 6965 of 1992 taken out by the respondents was partly made absolute and partly discharged whereas the Notice of Motion No. 1292 of 1993 taken out by the appellant is discharged with no order as to costs. The Court Receiver, High Court, Bombay has been appointed as Receiver with directions to take possession of the suit building on or before 31st October 1993. The Receiver has been directed to call upon the appellant and the respondents to suggest the names of architects on or before 15th November, 1993 and to direct such architects to inspect each of the flat in the building to prepare the list of items remained to be completed. The Receiver has also been directed to direct such architects to find out the cost of 20% work which was allowed to be carried out by the appellant and which the appellant has completed including escalation cost as per the said order dated 1st July 1992 passed by Judge Smt. R.S.Dalvi while disposing of the said Notice of Motion Nos. 1052 of 1992 and 2037 of 1992. The respondents have been ordered and directed to deposit with the Receiver the sum of Rs. 30,81,615/- being costs estimated by the respondents of the work remained to be carried out on or before 30th November, 1993. The appellant has been ordered to deposit the sum of Rs. 10,000/- with the Receiver. The respondents have further been ordered and directed to deposit with the Receiver the sum of Rs. 10,000/- in addition to sum of Rs. 30,81,615/- towards the payment of professional charges of the architects and towards the expenses in perusing and obtaining the occupation certificate from the Municipal Corporation of Greater Bombay. Such amounts were also to be deposited on or before 30th November 1993. The Receiver has been directed to utilize the amounts directed to be deposited with him for getting the work of various items carried out for making each of the flats suitable for occupation as also towards the payment of professional charges of the architects. An appeal from the said order being Appeal from Order No. 47 of 1994 was filed by the respondents which has been disposed of by Variava, J. on 4th July 1994 with direction to the trial Court to hear the suit expeditiously. The appellant has deposited the sum of Rs. 10,000/- with the Receiver in compliance of the said order. However, the respondents did not obey the said order and did not deposit with the Receiver either the said sum of RS. 30,81,615/- OR THE SUM OF Rs. 10,000/-. The appellant, therefore, took out the Notice of Motion No. 5954 of 1994 in the suit for striking off the defences and dismissal of the counter-claim of the respondents. By the order dated 21st December 1994 the said Notice of Motion No. 5954 of 1994 has been dismissed. The said order has been impugned in Appeal from Order No. 196 of 1995.

5. By the order impugned in Appeal from Order No. 196 of 1995 the learned Judge wrongly interpreted the order dated 4th July, 1994 passed by Variava, J. in A.O. No. 47 of 1994 and erroneously held that while disposing of the said appeal from order this Court did not lay down that the respondents were required to make payment to the Receiver as per the order earlier passed by the trial Court on 30th September / 1st / 4th October, 1993. It was erroneously further held that the words ‘by consent’ in the order passed by Variava, J. denote that whatever has been ordered by this Court in the said appeal was agreeable to the counsel of the appellant and as such, it was agreeable to the appellant that the respondents were not required compulsorily to deposit the said amounts with the Receiver. The learned Judge interpreted the provisions of Order 39, Rule 11 of the Code of Civil Procedure, 1908 to mean that the relief therein is not mandatory but is discretionary. Since the order passed by Variava, J. on 4th July 1994 in A.O. No. 47 of 1994 was erroneously interpreted by the learned Judge as aforesaid, further order dated 23rd January 1995 was passed by Variave, J. in the said A.O. No. 47 of 1994 clarifying that when the said Appeal from Order No. 47 of 1994 was disposed of with no order, it necessarily meant that the order impugned therein i.e. the order dated 30th September / 1st/ 4th October, 1993 stood and all directions given therein remained fully operational including the directions regarding deposit of amounts. In view of the said order passed on 23rd January 1995 by Variava, J. the appellant took out the Notice of Motion No. 582 of 1995 in the suit to review the order passed by the learned Judge on 21st December 1994 on the said Notice of Motion No. 5954 of 1994 and to make the said notice of motion absolute by granting relief prayed for therein. By his order dated 10th February, 1995 the learned Judge dismissed the said Notice of Motion No.582 of 1995 of the appellant, which order has been impugned in Appeal from Order No. 195 of 1995. At the outset, it may be stated that since no appeal lies from the order passed on review application, the Appeal from Order No. 195 of 1995 filed by the appellant is not maintainable and as such, deserves to be dismissed.

6. In the facts of the case, it is crystal clear that by the order passed on 30th September / 1st/4th October 1993 on Notice of Motion No. 6965 of 1992 taken out by the respondents in the suit, the respondents have been ordered and directed to deposit with the Receiver the amounts of Rs. 30,81,615/- and Rs. 10,000/- on or before 30th November 1993 and that the said order has been confirmed and uphold by the Court in the said A.O. No. 47 of 1994. It is an admitted position that the respondents have not obeyed the said order and have not deposited either of the said sums with the Receiver even till today. To give further opportunity to the respondents to deposit the said amounts with the Receiver, I did enquire from Mr. Dalvi, learned counsel appearing for the respondents as to whether the respondents are still ready and willing to deposit the said amounts with the Receiver. The respondents have however, declined to do so. The respondents have thus neither obeyed the said order dated 30th September /1st/4th October 1993 nor have any intention to obey the same. The respondents have committed default or contravened the said order dated 30th September /1st /4th October 1993. In the circumstances the question which arises for consideration is whether the defences of the respondents in the suit are liable to be struck off and counter-claim of the respondents is liable to be dismissed.

7. This Court, by Notification No. 0102/77 dated 5th September 1983, has added Rule 11 to the provisions of O. 39 of the Code of Civil Procedure, 1908 which reads as under:–

“11. (1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the default or contravention or breach is committed by the defendant or the opponent.
(2) The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes, amends for the default or contravention or breach to the satisfaction of the Court:
Provided that before passing any order under this sub-rule notice shall be given to the parties likely to be affected by the order to be passed”.
No doubt in sub-rule (1) of Rule 11, while empowering the Court to take action of dismissal of the suit or proceeding, the word used is ‘may’, it is to be considered as to whether by use of the word ‘may’, any discretion is vested in the Court while taking contemplated action against the defaulting party. In other words, whether in the setting and context the word ‘may’ is to be construed as ‘shall’ or ‘must’ making it mandatory for the Court to take action against the defaulting party as provided therein.

8. Mr. Jahagirdhar, learned counsel for the appellant has submitted that in the context, keeping in mind the general object intended to be secured, the word ‘may’ used in sub-rule (1) is required to be construed and interpreted as ‘shall’ or ‘must’. Mr. Dalvi has submitted that the word ‘may’ has been deliberately used with intent to give discretion to the Court while taking action against the defaulting party and that there is no warrant to construe or interpreter the same as ‘shall’ or ‘must’ making it mandatory for the Court to take action as provided therein.

9. It is correct that the word ‘may’ generally does not mean ‘must’ or ‘shall’. But it is well settled that the word ‘may’ is capable of meaning ‘must’ or ‘shall’ in the light of the context. As held by the Supreme Court in the case of State of Uttar Pradesh v. Jogendra Singh on which reliance has been placed by Mr. Jahagirdhar, where a discretion is conferred upon a public authority coupled with an obligation, the word ‘may’ which denotes discretion should be construed to mean a command. In determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. As held by the Supreme Court in re : Presidential Election, 1974 reported in AIR 1974 SC 1682, it is the duty of the Courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed.

10. The difference between a mandatory rule and a directory rule is that while former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. As held by the Supreme Court in the case of Sharif-ud-Din v. Abdul Gani Lone , whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequences should not follow. Rule 11(1) lays down that failure to comply with Court’s order leads to a specified consequence and on fair construction thereof, it is clear that if a party commits default in complying Court’s order or contravenes it then the consequence as provided therein has to follow. The whole purpose of Rule 11(1) would be frustrated if the word ‘may’ in sub-section (1) would receive construction to mean ‘discretionary’ or ‘directory’. In my view keeping in mind the general object intended to be secured and carefully attending to the scope of the provisions, Rule 11(1) of the Code of Civil Procedure is ‘mandatory’ in nature and the trial Court has erred in construing it as ‘discretionary’ in nature.

11. In the result, the Appeal from Order No. 196 of 1995 is allowed and the order impugned therein is set aside. The Notice of Motion No. 5956 of 1994 taken out by the appellant in the suit is made absolute in terms of prayer (a) and (b) thereof. The respondents are directed to pay the costs of the Appeal from Order No. 196 of 1995 to the Appellant.

Appeal from Order No. 195 of 1995 is dismissed as not maintainable with no order as to costs.

12. Order accordingly.