Whether litigation should be terminated by default either of plaintiff or defendant?

 Counsel for the appellant would submit that the property is the residential property. It is much more valuable than the amount shown in the agreement. The transaction was essentially a loan transaction and opportunity must be given to contest the matter on merits.

6. Per contra, the learned Counsel for the decree holder would submit that ample opportunity was given to the appellant, and in spite of the same, he has not contested the matter. Appellant has another residential building. The building in question was let out on rent.

7. Most importantly, the learned Counsel submits that after levying execution of the decree, the property has been conveyed to the respondent by the orders of the Court. In other words, sale deed has

already been executed in her favour. It is respondent’s case that appellant was served notice by the executing court. There is no scope for interfering with the matter by this Court.

8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4507 OF 2019

ROBIN THAPA Vs  ROHIT DORA

K.M. JOSEPH, J.

Dated:July 08, 2019.

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Whether delay in filing of appeal can be condoned if preparation of decree was delayed due to delayed deposit of court fees by plaintiff?

If any period of the delay in preparing the decree was attributable to the default or negligence of the appellant, the latter shall not be entitled to the exclusion of such period under Section 12(2) of the Limitation Act, 1908.

23. Applying the law as enunciated above to the facts of the case in hand, it will be seen that the drawing up or coming into existence of the original decree, of which the copy was sought, was conditional upon the payment of court-fee by the plaintiffs within thirty days of the pronouncement of the j judgment (30-10-1956). The plaintiffs did not comply with that direction within the time originally specified in, the judgment. They deposited the court-fee only on 18-1-1957 within the extended time which was granted without notice to the defendant appellant Even after that, the; decree was not signed till 30-1-1957. Under the judgment or any rules of the court, the appellant was not required to take any step towards the preparation of the decree. No period of the delay in drawing up the decree was attributable to the fault of the appellant. The delay was mainly due to the delayed deposit of the court-fee by the plaintiffs and partly due to the laxity of the office of the court. Although the appellant prematurely filed an application for getting a copy of the non-existent decree on 26-11-1956, he could legitimately defer that action till the condition precedent on which the drawing up of the decree was dependent, was performed by the plaintiffs. It would not have been extravagant for the appellant to wait till the court-fee was deposited by the plaintiffs, for, in the event of non-deposit of the court-fee, there was a reasonable possibility of their suit being dismissed, or at any rate, of the decree against which the defendant felt aggrieved and eventually appealed, not being passed. Under the circumstances, the appellant was entitled to the exclusion of the entire time between the date of the pronouncement of the judgment and the date of signing of the decree, as the time requisite for obtaining a copy of the decree. After such exclusion--avoiding double counting-his appeal filed in the court of the Additional Civil Judge on 12-2-1957, was fully within time.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 130 of 1968

Decided On: 01.04.1975

Balmukund  Vs. Lajwanti and Ors.

Hon'ble Judges/Coram:

A.C. Gupta, R.S. Sarkaria and Y.V. Chandrachud, JJ.

Citation:(1975) 1 SCC 725; 

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Whether one party can forfeit earnest amount even though no loss is suffered by it due to default of other party to contract?

Even otherwise, it is not case of the Bank that it has suffered damages on account of the non-deposit of the balance of the bid amount by the petitioner. As stated above, it had not taken vacant possession of the property from the borrower. On the other hand, it has settled the matter with the borrower and the borrower has continued with possession of the property. The Bank has not established that it has suffered any loss. In UNION OF INDIA VS. R.D. &. CO. - AIR 1973 SC 1098, the Supreme Court has held that a party to a contract taking security deposit from the other party to ensure due performance of the contract is not entitled to forfeit the deposit on the ground of default when no loss is caused to him in consequence of such default. When no loss is caused in consequence of the breach of contract, the other party is not entitled to forfeit the deposit for the breach.

Karnataka High Court

E Ali S/O Soopy, vs The Syndicate Bank, on 1 June, 2015

Author: S.Abdul Nazeer

Citation; AIR 2015 Karnataka122

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