Orissa High Court
A.F.R. M/S. Creative Builders And vs Prabir Kumar Dash on 27 September, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.174 of 2024
(From the judgment dated 29.2.2024 passed by learned 4th
Addl. District Judge, Bhubaneswar in RFA No.85/2023 and
the judgment dtd.23.8.2023 passed by learned Sr. Civil
Judge (L.R & L.T.V), Bhubaneswar in Civil Suit
No.1941/2021)
A.F.R. M/s. Creative Builders and
Consultants, a registered
Partnership Firm through
its Managing Partner-
Nirupama Patra
... Appellant
-versus-
Prabir Kumar Dash
and others ... Respondents
Advocates appeared in the case through hybrid mode:
For Appellant : Mr. Bidyadhar Mishra
Sr. Advocate.
Mr. T.R.Biswal,
Advocate
For Respondent
No.1 : Mr.Bansidhar Baug, Advocate
For Respondent
Nos.2 and 3 : Mr.Bhaskar Panda, Advocate
R.S.A. No.174 of 2024 Page 1 of 53
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
27.9.2024.
Sashikanta Mishra,J. This is a Defendant’s appeal against a
confirming judgment. The judgment dated 29.2.2024
followed by decree passed by the 4th Addl. District
Judge, Bhubaneswar in RFA No.85/2023 is under
challenge whereby the judgment dtd.23.8.2023
followed by decree passed by the Sr. Civil Judge
(L.R & L.T.V), Bhubaneswar in Civil Suit
No.1941/2021 was confirmed.
2. For convenience, the parties are referred to as
per their respective status in the trial Court.
Case of the Plaintiff
3. The Plaintiff-Respondent No.1, being a resident
of U.S.A. instituted the suit in question through his
authorized agent. He being the owner of the suit land
R.S.A. No.174 of 2024 Page 2 of 53
executed a Development Agreement on 07.8.2020 with
the Defendant firm represented by its Managing
Partner-Bibhuti Bhusan Patra for development of the
suit property. As per said agreement, the land owner’s
allocation was limited to 50% of the super built
up/carpet area up to 4th floor while the builder-cum-
developer’s (Defendant’s Firm) allocation was limited to
the remaining portion. It was further provided that the
land owner would have no claim in case the builder
obtained sanction of the Bhubaneswar Municipal
Corporation (BMC) beyond 4th floor and the actual
allocation of flats would be declared only after approval
of the building plan by the Odisha Real Estate
Regulatory Authority (ORERA). The Plaintiff received an
amount of Rs.2,80,00,000/- on different dates prior to
execution of the agreement. The suit property being
lease-hold land, the Plaintiff deposited a sum of
Rs.3,09,91,736/- to make it free-hold on 24.7.2020
and Rs.3,44,355/- for obtaining convenience deed
R.S.A. No.174 of 2024 Page 3 of 53
from his own source. Another agreement titled
Supplementary Agreement was executed on the very
next date i.e. on 8.8.2020 by the Plaintiff with the
Defendant. As per the said agreement, the Plaintiff
agreed to receive his 50% share by way of financial
benefits to the extent of Rs.15,15,00,000/- in lieu of
flat in the proposed housing project. Thus,
after adjustment of the security amount of
Rs.2,80,00,000/-, he is entitled to the balance amount
of Rs.12,35,00,000/- within a period of 24 months
with a grace period of 6 months from the date of
approval/registration of the project under BMC and
ORERA. Further, on 03.9.2020, the Plaintiff executed a
registered General Power of Attorney (GPA) authorizing
the Defendant firm to develop the construction work
over the suit property and to obtain permission from
the appropriate authority as and when required. He
thereafter delivered possession of the suit land to the
Defendant by demolishing the existing residential
R.S.A. No.174 of 2024 Page 4 of 53
house thereon. The Managing Partner of the Defendant
firm namely, Bibhuti Bhusan Patra died on 14.12.2021
and by letter dated 21.7.2021, his widow intimated
that she had been appointed as Managing Partner and
two ordinary partners had been incorporated under a
Deed of Reconstitution of the firm. It was further given
out that the new management had accepted in
principle to honour all the official agreements executed
by the deceased Managing Partner and committed to
develop the suit land into a multi-storied apartment
complex after obtaining required approval from the
BMC and ORERA. Nothing was however, said
regarding payment of the balance amount save and
except that they would try and pay off the share given
earlier depending on the financial situation of the firm.
The Plaintiff was surprised that the permission of the
authority had not been obtained despite lapse of one
year and there was no clear-cut indication as to when
the balance amount would be paid to him. On
R.S.A. No.174 of 2024 Page 5 of 53
09.8.2021, the Plaintiff replied to the letter of the
Defendant informing that despite direction of the BMC
no action had been taken by the Defendant for
obtaining permission and yet without obtaining
ORERA Registration Certificate, the Firm was collecting
amounts from the intending purchasers by advertising
the project, which is in violation of the rules and
regulations. The Defendant in its reply dtd.17.8.2021
intimated that delay was caused in obtaining legal heir
certificate and reconstitution of the firm as also due to
the impact of COVID-19 Pandemic. Defendant further
claimed to have paid Rs.3,20,00,000/- as against
Rs.2,80,00,000/-. The Plaintiff claims that an amount
of Rs.40,00,000/- paid by the deceased-Bibhuti
Bhusan Patra by way of a post dated cheque, on being
presented was dishonoured due to insufficient funds.
All these facts created reasonable doubt in the mind of
the Plaintiff as regards honoring of the commitment by
the Defendant firm and therefore, he filed the suit
R.S.A. No.174 of 2024 Page 6 of 53
claiming the relief of declaration that the agreement
dated 7.8.2020 and 8.8.2020 and the GPA
dtd.3.9.2020 as null and void, with recovery of
possession and permanent injunction. The Plaintiff
also expressed his readiness and willingness to return
the advance amount of Rs.2,80,00,000/- to the
defendant.
Case of the Defendant
4. The Defendant questioned the maintainability of
the suit on the ground that the same had been filed by
a person without authority. The facts relating to the
execution of the Development Agreement and the GPA
by the Plaintiff in favour of the deceased Managing
Partner was admitted. It was further stated that before
execution of the agreement with the Defendant, the
Plaintiff had executed a registered Agreement for Sale
on 4.12.2017 in favour of another firm namely, M/s.
Cottage Design Private Ltd. for a consideration of
Rs.12,60,00,000/-and had received Rs.1,00,000/-. As
R.S.A. No.174 of 2024 Page 7 of 53
the Agreement could not materialize, it was cancelled
on 01.6.2020 through a registered document. As
regards the Development Agreement executed with the
Plaintiff, the terms were admitted as also the fact of
payment of Rs.2,80,00,000/- to the Plaintiff till
30.7.2020. The Defendant further claimed that a sum
of Rs.20,00,000/- was paid to the Plaintiff in the form
of cheque on 07.11.2020 and Rs.20,00,000/- also in
the form of cheque on 04.12.2020, which was
encashed by the Plaintiff but suppressed in the plaint.
It is the further case of the Defendant that there was
no delay on the part of the firm but because of
unavoidable reasons like the onset of Pandemic and
death of the Managing Partner, some delay was
caused. Nevertheless, the defendant on reconstitution
of the firm submitted building plans before the BMC,
which required compliance of several conditions which
the defendant complied and deposited the requisite
fees. The BMC thereafter approved the building plan.
R.S.A. No.174 of 2024 Page 8 of 53
The Defendant also submitted application before the
ORERA for approval of the project but because of order
of status quo by the trial Court, such application was
rejected. According to the Defendant, there is no fault
or latches on its part to perform the part of the
contract and no intention of not paying the agreed
amount within the period fixed by the agreement. As
regards dishonor of the cheque, it is the Defendant’s
case that the deceased Managing Partner had issued
three security cheques and two post dated cheques to
the Plaintiff of which the Plaintiff was to encash only
two cheques of Rs.20 lakhs each and the remaining
three cheques were to be returned to the Defendant
firm, but the Plaintiff deliberately deposited one of the
said cheques amounting to Rs.40,00,000/- on
17.8.2021, which came to be dishonoured. This,
according to the Defendant, shows the malafide
intention and oblique motive of the Plaintiff to harass
the Defendant firm. The building plan of the project
R.S.A. No.174 of 2024 Page 9 of 53
had been approved but approval of ORERA could not
be obtained because of order of status quo. On such
averments, the Defendant prayed for dismissal of the
suit.
Issues and Findings of the trial Court
5. Basing on the rival pleadings, the trial Court
framed the following issues for determination;
(i) Whether the suit is maintainable?
(ii) Whether there is cause of action for the plaintiff to
file the suit?
(iii) Whether the suit is barred by limitation?
(iv) Whether the suit is grossly undervalued ?
(v) Whether the plaintiff is entitled to a decree
declaring the development agreement dated
07.08.2020, the supplementary agreement dated
08.08.2020 and the GPA dated 03.09.2020 as null
and void?
(vi) Whether the plaintiff is entitled to a decree
directing the defendant to handover the vacant
possession of the suit land to him?
(vii) Whether the plaintiff is entitled to a decree for
permanent injunction restraining the defendant, its
men, agents, followers and assigns from interfering
in any way with his peaceful possession over the suit
land or any part thereof and from changing the
nature and character of the same after possession is
recovered on his behalf?
(viii) To what other relief(s) the parties are entitled?
R.S.A. No.174 of 2024 Page 10 of 53
6. Issue Nos.(v), (vi) and (vii) being the pivotal
issues, were taken up for consideration by the trial
Court at the outset. After analyzing the oral and
documentary evidence on record, the trial Court
observed that as there was nothing clear and specific
as to when the remaining amount would be paid by the
Defendant as per the Supplementary Agreement, the
same became the prime concern for the Plaintiff to file
the suit. It was further held that the grounds for
explaining the delay are not sufficient, when the
supposed performance of the obligations under the
Agreements are taken into consideration in the face of
the time stipulated in the supplementary agreement for
payment of plaintiff’s balance consideration.
Observing thus, the trial Court held that mere
admission of the executed agreement and power of
attorney cannot prevent the Plaintiff to repudiate the
agreements and revoke the power of attorney executed
R.S.A. No.174 of 2024 Page 11 of 53
by him. Since the Defendant failed to give any
concrete assurance as to the payment of the balance
amount, but admittedly collected money from potential
purchasers before registration of the housing complex
under the ORERA rules, the Plaintiff is justified to get
out of the agreements and the power of attorney.
Though the approval of BMC had been obtained but till
filing of the suit the Defendant had not got any project
registered under the ORERA. It was therefore held that
the Defendant willfully neglected to carry out the
proposed building plan intending to make immense
profit out of the project without giving any firm
assurance for making payment of the remaining
consideration amount to the Plaintiff for which the
Plaintiff is entitled to terminate the agreements and
revoke the power of attorney. It was also held that the
contract was indefinite and had become impossible of
performance. On such findings basically the issues
were answered in favour of the Plaintiff.
R.S.A. No.174 of 2024 Page 12 of 53
On Issue No.3 regarding limitation the trial
Court held that the suit falls under the residuary
Article 113 of the Limitation Act. Since the suit was
filed before the time stipulated in the agreement, it was
held to be in time.
As regards maintainability of the suit on the
ground of its non-presentation by the authorized
person, the trial Court held that the same is a curable
defect and cannot be fatal to the suit more so as the
defendants have themselves substantially admitted the
contentions made in the plaint. Moreover, the Plaintiff
had disclosed his intention to engage the authorized
agent for the purpose of the suit.
On Issue No.4, the trial Court held that the suit
being one for declaration along with consequential
relief, the Plaintiff valued the same at Rs.1,00,000/-
and there was no objection by the office at the initial
stage. With such findings being rendered on the main
issues, the remaining issues were answered
R.S.A. No.174 of 2024 Page 13 of 53
accordingly in favour of the Plaintiff. The suit was thus
decreed by granting the relief claimed by the Plaintiff
with further direction to him to refund Rs.3.2 crores to
the Defendant with simple interest @ 12% per annum
to be calculated from 01.5.2020 till payment.
7. Being aggrieved, the Defendant carried the
matter in appeal, which was heard and disposed of by
learned 4th Addl. District Judge.
Findings of the 1st Appellate Court
8. An application for permission to adduce
additional evidence was filed by the Defendant before
the 1st Appellate Court under Order 41, Rule 27 of
C.P.C. The 1st Appellate Court held in the impugned
judgment that the Defendant could not prove that it
had exhibited due diligence in obtaining and
presenting the same during trial even though said
documents were available at the relevant time. The
prayer for adducing additional evidence was thus
R.S.A. No.174 of 2024 Page 14 of 53
rejected. The 1st Appellate Court took note of the
findings of the trial Court and also considered the oral
and documentary evidence on record. It was held that
till institution of the suit, the Defendant firm had not
made any application for approval of the project before
the ORERA nor there is any explanation for non-
submission of the same prior to the institution of the
suit. This therefore, amounts to non-performance of
its contractual obligation by the Defendant within a
considerable period of more than a year of the
execution of the agreement. It was further held that as
the Agreements and the GPA had been declared void
due to the fault of the Defendant firm, it is not entitled
to any compensation for the loss sustained by it due to
its own fault. On the question of authority of the
person filing the suit on behalf of the Plaintiff, the 1st
Appellate Court also held that it was a mere procedural
defect and irregularity which is curable in nature and
that the same cannot be allowed to defeat substantive
R.S.A. No.174 of 2024 Page 15 of 53
rights of the plaintiff. On such findings, the 1st
Appellate Court did not find any reason to interfere
with the judgment and decree of the trial Court and
the appeal was thus dismissed.
9. Being further aggrieved, the Defendant has filed the
present appeal, which was admitted on the following
Substantial Questions of Law;
(i)Whether the Plaint which has been signed,
verified, sworn on oath and presented by
Plaintiff’s Agent Akshaya Kumar Parija is
maintainable when the said Agent. Akshaya
Kuamr Parija has admitted in course of his
evidence that he has no personal knowledge
about the contents of the Plaint nor he has any
personal knowledge about the tractions under the
Development Agreement dated 07.08.2020 (Ext.
A/Ext-8) and Supplementary Agreement dated
08.08.2020 (Ext.B/Ext.9) between the Plaintiff
and the Defendant Firm ?
(ii)Whether there is any cause of action for the
Plaintiff to file C.S. No 1941 of 2021 on
14.09.2021 before expiry of the stipulated
timelines for completion of construction of the
proposed building project specified under the
Development Agreement dated 07.08.2020
(Ext.A/Ext.8) which expires on 15.03.2025 ? AND
Whether there is any cause of action for the
Plaintiff to file C.S. No 1941 of 2021 on
14.09.2021 alleging inter alia non-payment of
total consideration amount of the suit property to
him, before expiry of the stipulated timelines for
completion of payment by the Defendant Firm to
the Plaintiff as specified under the
R.S.A. No.174 of 2024 Page 16 of 53
Supplementary Agreement dated 08.08.2020
(Ext.B/Ext.9) which expires on 15.03.2024,
particularly when the Plaintiff has already
received Rs.3.20 crores from the Defendant Firm?
(iii)Whether the Issue No.(iii) as framed by the
learned Trial Court to the effect, “Whether the suit
is barred by limitation? is to be re-casted as
“Whether the suit is prematurely filed?”
(iv) Whether the finding of the learned First
Appellate Court to the effect. “As per Section 55 of
the Indian Contract Act, the Defendant Firm has
not taken prompt steps for registration and
project approval, even though considerable period
of more than one year has elapsed not taken any
steps for payment of balance consideration
amount to the plaintiff”, is legally sustainable
particularly when the documents exhibited show
that there is no delay on the part of the
Defendant-Appellant Firm in this regard?
(v) Whether the findings of the learned Trial Court
under Paragraph-13 of its judgment is liable to be
set aside as the same are beyond pleadings and
materials on record and based upon surmises
and conjectures?
vi. Whether the findings of the learned First
Appellate Court to the effect that “the application
of the Defendant to admit documents under
Order 41 Rule 27 and to mark the same as
exhibits suffers from want of due diligence and
for such the same is rejected”, is legally
sustainable or the same is liable to set aside?”
Submissions on substantial questions of law and
findings.
10. Heard Mr. Bidyadhar Mishra learned Senior
counsel appearing with Mr. T. R. Biswal for the
Defendant-Appellant, Mr. Bansidhar Baug, learned
R.S.A. No.174 of 2024 Page 17 of 53
counsel for the Plaintiff-Respondent No.1 and Mr.Bhaskar Panda, learned counsel appearing for the
Respondent Nos.2 and 3.
Substantial Question No.(i).
11. Learned Senior counsel Mr. Bidyadhar Mishra
submits that the suit was filed by Prabir Kumar Das
but the plaint was presented by his purported agent
namely Akshaya Kumar Parija. As per the different
provisions of C.P.C. the plaint can only be presented by
the Plaintiff or by a person duly authorized by him,
who is acquainted with the facts of the case. In the
instant case, the plaint was signed, verified and
affirmed on oath by Akshaya Kumar Parija, who being
examined as a witness (P.W.2) during trial admitted
that he was only authorized to file the suit as the
Plaintiff was residing in USA and was prevented from
travelling to India due to COVID restrictions. He
further admitted that he did not have any personal
knowledge about the agreements. According to learned
R.S.A. No.174 of 2024 Page 18 of 53
Senior counsel this is fatal to the suit. Moreover, theauthorization letter dtd.12.9.2021 is not in proper form
nor contains the approval of the Indian Embassy at
USA nor certified by the Collector and District
Magistrate, Khurdha. The required fees were also not
paid nor the authorization letter was notarized by the
Notary Public in USA. As such, the authorization letter
appended to the plaint is no authorization in the eye of
law. The original authorization letter dtd.12.9.2021
was notarized by the Notary Public of USA on
15.9.2021, which is a day after the filing of the suit
and therefore, as on the date of filling of the suit, there
was no valid authorization. Mr. Mishra has relied upon
the following judgments in support of his contention as
above;
(A)State Bank of Travancore v.
Kingston Computers India Private
Limited; (2011) 11SCC 524.
(B)A. C. Narayanan v. State of
Maharashtra and another, (2014) 11
SCC 790.
R.S.A. No.174 of 2024 Page 19 of 53
(C)Manisha Mahendra Gala and
others Vs. Shalini Bhagwan
Avatramani and others;
(2024) 4 SCR 357.
12. Per contra, Mr. Bansidhar Baug would argue
that the authorized person of the Plaintiff not only
signed the plaint but also verified the same and
furnished an affidavit stating that he is authorized by
the Plaintiff and subsequently he filed an authorization
of the Plaintiff, which was later certified by the
embassy. Said authorization not being a power of
attorney is not required to be written on a Stamp Paper
nor any fees are required to be paid. Even otherwise,
mere defect in signing of the pleading, verification and
furnishing of affidavits are curable defects, which
cannot be used to defeat the substantive rights of the
parties. In support of his contentions Mr. Baug has
relied upon the following case laws;
R.S.A. No.174 of 2024 Page 20 of 53
(A)Uday Shankar Triyar v. Ram
Kalewar Prasad Singh and another,
(2006) 1 SCC 75.
(B)United Bank of India v. Naresh
Kumar and others, (1996) 6 SCC 660.
(C)H.D. Revana v. G. Puttaswamy
Gowda and others; (1999) 2 SCC 217.
13. In order to appreciate the contentions advanced
by the parties, it would be apposite to first refer to the
following relevant statutory provisions governing
institution of suits and pleadings etc.
“Section 26 of C.P.C.-Institution of suits-(1) Every
suit shall be instituted by the presentation of a
plaint or in such other manner as may be
prescribed.
(2) In every plaint, facts shall be proved by affidavit.
Order 3, Rule (2) of C.P.C.- Recognized agents –
The recognized agents of parties by whom such
appearances, applications and acts may be made or
done are –
(a) persons holding power of attorney, authorizing
them to make and do such appearances,
applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in
names of parties not resident within the local limits
of the jurisdiction of the Court within which limits
the appearance, application or act is made or done,
in matters connected with such trade or business
only, where no other agent is expressly authorised
R.S.A. No.174 of 2024 Page 21 of 53
to make and do such appearances, applications and
acts.
Order 4, Rule (1) of C.P.C.- Appointment of
pleader-(1) No pleader shall act for any person in
any Court, unless he has been appointed for the
purpose by such person by a document in writing
signed by such person or by his recognised agent or
by some other person duly authorised by or under a
power-of-attorney to make such appointment.
Order 6, Rule (14) of C.P.C.- 14-A. Address for
service of notice (1) Every pleading, when filed by a
party, shall be accompanied by a statement in the
prescribed form, signed as provided in Rule 14,
regarding the address of the party.
(2)Such address may, from time to time, be changed
by lodging in the Court a form duly filled up and
stating the new address of the party and
accompanied by a verified petition.
(3)The address furnished in the statement made
under Sub-rule (1) shall be called the “registered
address” of the party, and shall, until duly changed
as aforesaid, be deemed to be the address of the
party for the purpose of service of all processes in
the suit or in any appeal from any decree or order
therein made and for the purpose of execution, and
shall hold good, subject as aforesaid, for a period of
two years after the final determination of the cause
or matter.
(4)Service of any process may be effected upon a
party at his registered address in all respects as
though such party resided thereat.
(5)Where the registered address of a party is
discovered by the Court to be incomplete, false or
fictious, the Court may, either on its own motion, or
on the application of any party, order-
(a) in the case where such registered
address was furnished by a plaintiff, stay of
the suit, or
R.S.A. No.174 of 2024 Page 22 of 53
(b) in the case where such registered
address was furnished by a defendant, his
defence be struck out and he be placed in the
same position as if he had not put up any
defence.
(6)Where a suit is stayed or a defence is struck out
under Sub- rule (5), the plaintiff or, as the case may
be, the defendant may, after furnishing his true
address, apply to the Court for an order to set aside
the order of stay or, as the case may be, the
order striking out the defence.
(7)The Court, if satisfied that the party was
prevented by any sufficient cause from filing the
true address at the proper time, shall set aside the
order of stay or order striking out the defence, on
such terms as to costs or otherwise as it thinks fit
and shall appoint a day for proceeding with the suit
or defence, as the case may be.
(8) Nothing in this rule shall prevent the Court from
directing the service of a process at any other
address, if, for any reason, it thinks fit to do so.
Order 6, Rule (15) of C.P.C.- Verification of
pleadings – (1) Save as otherwise provided by any
law for the time being in force, every pleading shall
be verified at the foot by the party or by one of the
parties pleading or by some other person proved to
the satisfaction of the Court to be acquainted with
the facts of the case.
(2) The person verifying shall specify, by reference
to the numbered paragraphs of the pleading, what
he verifies of his own knowledge and what he
verifies upon information received and believed to
be true.
(3)The verification shall be signed by the person
making it and shall state the date on which and the
place at which it was signed.
(4)The person verifying the pleading shall also
furnish an affidavit in support of his pleadings.”
R.S.A. No.174 of 2024 Page 23 of 53
14. From a conjoint reading of the afore quoted
provisions, it is clear that a plaint can be presented by
a person authorized by the plaintiff to do so. Further,
such person must be proved to the satisfaction of the
Court to be acquainted with the facts of the case. In
the instant case, objection has been raised by the
defendants to the plaint on the ground that the
authorized person namely, Akshaya Kumar Parija
being examined as a witness (P.W.2) admitted that he
had no personal knowledge about the Development
Agreement dated 7.8.2020 and Supplementary
Agreement dated 8.8.2020.
15. After going through the plaint averments and the
evidence of P.W.2, this Court is of the considered view
that the requirement of the statute as per Order 6,
Rule 15 of C.P.C. is for the authorized person to be
acquainted with the ‘facts of the case’. In his
examination-in-chief, P.W.2 stated that on 12.9.2021
R.S.A. No.174 of 2024 Page 24 of 53
the Plaintiff was in USA and by a letter of
authorization, he authorized him (P.W.2) to institute
the present case and as per his (Plaintiff) instruction,
the plaint has been drafted. In cross-examination, he
admitted that he does not have any personal
knowledge about the Development Agreement (Ext.A)
and Supplementary Agreement (Ext.B). Plainly
understood, this cannot be understood to mean that
P.W.2 was not aware of the facts of the case though he
was not aware of the agreements in questions. The
above statement cannot be stretched to definitely hold
that he was not aware of the facts leading to filing of
the suit. Therefore, merely because he lacked personal
knowledge about the agreements in question, it cannot
be definitely held that he had no knowledge about the
facts of the case on the whole.
16. Coming to the case laws cited by both parties, it
is seen that in the case of State Bank of Travancore
R.S.A. No.174 of 2024 Page 25 of 53
(supra), the suit was filed by a person without
requisite authority of the Board of Directors. Such is
obviously not the case here. In the case of A.C.
Narayanan (supra) referring to its earlier judgment
passed by the Supreme Court in the case of Janki
Vashdeo Bhojwani v. IndusInd Bank Ltd.;1 the
Supreme Court was dealing with the case of a power of
attorney holder and held that a complaint filed by a
power of attorney holder on behalf of the original
plaintiff is maintainable provided he has personal
knowledge of the transaction in question. Since this
Court, on facts narrated above, has held that the
authorized person cannot be treated as a person not
acquainted with the facts of the case, the judgment
cited would not be applicable. In the case of Manisha
Mahendra Gala (supra) reliance was again placed on
Janki Vashdeo Bhojwani (supra) and the question
under consideration was whether a power of attorney
1
(2005) 2 SCC 217
R.S.A. No.174 of 2024 Page 26 of 53
holder, who had no knowledge regarding transaction
would be examined as a witness. Said case would have
no application to the facts of the present case.
17. Coming to the case laws cited by Mr. Baug, in
Uday Shankar Triyar (supra), the Supreme Court
held that non-compliance with any procedural
requirement relating to a pleading should not entail
automatic dismissal or rejection unless the relevant
statute or rule so mandates. Further, procedural
defects and irregularities, which are curable, should
not be allowed to defeat substantive rights or to cause
injustice. Same view was taken in the case of United
Bank of India (supra) as also in H.D. Revanna
(supra).
18. From the foregoing narration, it is seen that
firstly, from the materials and evidence on record, this
Court is not inclined to accept the contention that the
authorized person (P.W.2) was not acquainted with the
R.S.A. No.174 of 2024 Page 27 of 53
facts of the case so as to hold that there was violation
of the provision under Order 6 Rule 15 of C.P.C.
Secondly, assuming that P.W.2’s admission of
ignorance regarding the agreements in question can be
stretched to hold that he was not acquainted with the
‘facts of the case’ and there was procedural
irregularities in the letter of authorization, the same
being curable in nature cannot be a ground to non-suit
the plaintiff. In other words even assuming there was
some defect or irregularity, the same being curable
cannot come in the way of deciding the substantive
rights of the parties.
The Substantial Question No.(i) is therefore,
answered accordingly against the defendant-appellant.
Substantial Questions Nos. (ii) & (iii).
19. Mr. Mishra learned Senior counsel has referred
to different clauses of the Development Agreement
(Ext.A), Supplementary Agreement (Ext.B) as also the
General Power of Attorney (Ext.2) in this context. He
R.S.A. No.174 of 2024 Page 28 of 53
submits, as per Clause-14 of Ext.A, the Plaintiff agreed
to receive Rs.2.80 crores from the Defendant’s Firm
and as per Clause-7 it was stipulated that the project
shall be completed within 36 months with a grace
period of 6 months from the date of final approval or
the plan. The BMC gave its approval (Ext.B) on
06.9.2021 and therefore, the stipulated period is due
to expire on 15.3.2025. Mr. Mishra further submits, as
per the Supplementary Agreement (Ext.B), the Plaintiff
agreed to receive Rs.15.15 crores in lieu of his 50%
share after adjustment of the amount of Rs.2.80 crores
already paid with the understanding that the balance
amount of Rs.12.35 crores would be paid within 24
months with the grace period of 6 months from the
date of approval/registration of the project by BMC
and ORERA. BMC accorded approval on 16.9.2021 and
therefore, the period of 30 months expired on
15.3.2024. The defendant further paid Rs.40 lakhs in
between 8.8.2020 i.e. the date of execution of the
R.S.A. No.174 of 2024 Page 29 of 53
Supplementary Agreement and 14.9.2021. Therefore,
the stipulated period was due to expire on 15.3.2024.
The Plaintiff however, filed the suit much prior to the
period stipulated for completion of the project i.e.
15.3.2025 and for payment of consideration i.e.
15.3.2024. Therefore, there was no cause of action for
the plaintiff to file the suit either before 15.3.2024 or
15.3.2025.
20. Per contra, Mr.Baug would contend that issues
are framed on the basis of pleadings. In the instant
case, there is no averment in the written statement of
the Defendant that the suit was prematurely filed.
Therefore, no issue was framed by the trial Court.
Further, whether the suit was prematurely filed is a
mixed question of fact and law, which would require
evidence for being answered. Therefore, it cannot be
treated as a substantial question of law. Mr. Baug
further submits that admittedly, the Defendant had
R.S.A. No.174 of 2024 Page 30 of 53
not obtained registration from the ORERA as per the
rules. Section 3 of the Real Estate (Regulation and
Development) Act, 2016 mandates that no promoter
shall advertise, market, book, sell or offer for sale or
invite person to purchase in manner, any plot,
apartment or building as the case may be, before
registration of the project with the ORERA. In the
instant case, however, the Defendant firm, in complete
violation of Section 3 of the Act raised funds from
intending purchasers and advertised the same. This is
also a clear breach of Clause-23 of the Agreement vide
Ext.8. The Plaintiff was therefore, constrained to file
the suit even though the period stipulated in the
agreements had not expired. In the case of Rajesh
Kumar v. Anand Kumar and others2, it was held as
follows;
“The Courts will also frown upon suits which are
not filed immediately after the breach/refusal. The
fact that the limitation is three years does not mean2
2024 (6) SCALE 450R.S.A. No.174 of 2024 Page 31 of 53
that a purchaser can wait for one or two years to
file a suit and obtain specific performance.”
21. From the materials and evidence on record, it is
evident that the Defendant firm had accepted money
from prospective purchasers at a time when the
registration of the project had not been obtained from
the ORERA. Though it is stated that the application for
registration was not considered because of an order of
status quo subsisting at the relevant time yet, fact
remains that in such a situation, the Defendant could
not have advertised the project to attract potential
customers or to accept deposits from them. Clause-23
of the Development Agreement is clear that the project
can be advertised only after obtaining registration. This
is therefore, a clear case of breach of contract. Such
being the fact, the Plaintiff was well within his right to
seek necessary declaration by filing the suit even
before expiry of the period stipulated in the Agreement
R.S.A. No.174 of 2024 Page 32 of 53
in view of the ratio decided in the case of Rajesh
Kumar (supra).
Substantial Question Nos.(ii) and (iii) are
therefore, answered accordingly against the Defendant-
Appellant.
Substantial Question No.(iv).
22. According to Mr. Bidyadhar Mishra, learned
Senior counsel for the appellant, the finding of the 1st
Appellate Court that as per Section 55 of the Indian
Contract Act, the Defendant firm has not taken
prompt steps for registration and project approval,
even though considerable period of more than one year
has elapsed nor taken any steps for payment of
balance consideration amount to the Plaintiff is not
legally sustainable in view of the fact that the evidence
on record clearly shows the steps taken by the
Defendant firm to obtain ORERA Registration
Certificate but because of factors beyond its control
such as death of the Managing Partner and onset of
R.S.A. No.174 of 2024 Page 33 of 53
COVID-19 Pandemic, some delay was caused.
Therefore, the finding that the Defendant has not
performed its contractual obligation within a
considerable period of more than one year of the
execution of the agreements is also not legally
sustainable. In the instant case, the time period for
completion of the project was due to expire on
15.3.2025 and that for payment of the balance amount
was 15.3.2024. Both the dates not having expired,
Section 55 of the Contract Act would not be applicable.
That apart, it has not been proved that the terms of the
agreements are uncertain so as to be declared void as
per Section 29 of the Contract Act.
23. Per contra, Mr. Baug would argue that the
original agreements were executed in favour of
M/s.Creative Builders and Consultants, a registered
Partnership firm through its Managing Partner
Bibhuti Bhusan Patra. As per the definition clause of
R.S.A. No.174 of 2024 Page 34 of 53
the agreement vide Ext.8/Ext.A, the Builder-cum-
Developer shall include its legal heirs, successors in
interest or assignees. At the relevant time, the
Partnership firm was comprised of two Partners-
Bibhuti Bhusan Patra and his wife Nirupama Patra.
As per Section 7 of the Indian Partnership Act when
there is no provision in the contract between the
Partners for the duration of their Partnership firm or
the determination of the firm, it must be treated as a
Partnership-at-will. As such, on death of the one of
the Partners the Partnership firm gets automatically
dissolved. Mr. Baug further argues that the
Partnership firm cannot run with one Partner only as
in such event, it would became a proprietorship
concern. Mr. Baug has referred to the provision of
Section 201 of the Contract Act in this regard and
Section 42 (c) of the Partnership Act. Though the
Partnership was purportedly reconstituted, according
to Mr. Baug, it must be treated as a new entity
R.S.A. No.174 of 2024 Page 35 of 53
altogether having no relationship with the earlier
Partnership firm nor it can be said to have stepped into
the shoes of the earlier firm. Therefore, with the
dissolution of the original firm w.e.f. 14.12.2020, the
GPA vide Ext.2 stood automatically terminated so also
the Development and Supplementary Agreements.
Since those documents have the potential of creating
problem in future with regard to the right, title and
interest of the Plaintiff over the suit land, he was
constrained to file the suit seeking necessary
declaration in view of Section 31 of the Specific Relief
Act.
24. There is no dispute that the original Partnership
firm was comprised of two Partners one of whom
namely, Bibhuti Bhusan Patra died on 14.12.2020.
The contentions advanced by Mr. Baug, as noted
above, contradict the stand of the Plaintiff as laid in
the plaint. Firstly, the above plea was never raised in
R.S.A. No.174 of 2024 Page 36 of 53
the plaint and secondly, the Defendant firm has been
described in the following manner;
“M/s.Creative Builders and
Consultants, a registered Partnership
Firm represented through its
Managing Partner Nirupama Patra,
W/o.Late Bibhuti Bhusan Patra, hav
ing its registered office at Plot
No.209/A, Sagheed Nagar, P.O./P.S.-
Saheed Nagar, Bhubaneswar, Dist-
Khordha.”
25. If the plaint averments are read plainly, it would
be evident that the Defendant has admitted the
subsequent developments and has accepted the newly
constituted Partnership firm as well as the existence of
the agreements with the Defendant firm. In other
words, the Plaintiff himself accepts in a way that the
newly constituted firm had stepped into the shoes of
the original firm. The contentions raised before this
Court were significantly never raised either before the
trial Court or before the 1st Appellate Court and
therefore, the same are not acceptable at this stage.
R.S.A. No.174 of 2024 Page 37 of 53
26. Be that as it may, even assuming that the
Agreements and GPA still subsist, the question is, can
the Plaintiff be held entitled to the relief claimed on the
face of non-expiry of the periods for completion of the
project and payment of the balance amount in the
agreements. As has already been held hereinbefore,
apart from raising the plea of non-performance of the
terms of the contract, the Plaintiff has also taken a
specific plea that the terms of the contract were
violated. It would be proper at this stage to refer to the
relevant provisions of the contract i.e., Clause 23 of the
Agreement dated 7.8.2000 (Ext.8/Ext.A), reads as
follows;
“That both the parties hereto agreed that the
SECOND PART the Builder-cum-Developer is free to
advertise, market for the proposed
apartment/residential/commercial units in the said
project as per prescribed rules of Orissa Real
Estate Regulatory Authority (ORERA), over the land
and receive advance from intending purchasers,
execute agreements for the same at the risk of
SECOND PART the Builder-cum-Developer only and
the land owner will not bear any civil or financial
liability for the same.”
R.S.A. No.174 of 2024 Page 38 of 53
27. Chapter-II of the Real Estate (Regulation and
Development) Act, 2016 deals with registration of Real
Estate Project and registration of Real Estate Agents.
Sub-section (1) of Section 3 thereof reads as follows;
Section 3(1)- Prior registration of real estate project
with Real Estate Regulatory Authority.(1) No
promoter shall advertise, market, book, sell sale, or
invite persons to purchase in any manner any plot,
apartment or building, as the case may be, in any
real estate project or part of it in any planning area,
without registering the real estate project with the
Real Estate Regulatory Authority established under
this Act:
Provided that projects that are ongoing on the date
of commencement of this Act and for which the
completion certificate has not been issued, the
promoter shall make an application to the Authority
for registration of the said project within a period of
three months from the date of commencement of this
Act:
Provided further that if the Authority thinks
necessary, in the interest of allottees, for projects
which are developed beyond the planning area but
with the requisite permission of the local authority,
it may, by order, direct the promoter of such project
to register with the Authority, and the provisions of
this Act or the rules and regulations made
thereunder, shall apply to such projects from that
stage of registration.”
28. Chapter-VIII relates to offences, penalties and
adjudication under which Section 59 is the penal
R.S.A. No.174 of 2024 Page 39 of 53
provision for non-registration under Section 3, which
reads as follows;
“Section 59-Punishment for non-registration under
section 3- (1) If any promoter contravenes the
provisions of section 3, he shall be liable to a
penalty which may extend up to ten per cent of the
estimated cost of the real estate project as
determined by the Authority.
(2) If any promoter does not comply with the orders,
directions issued under sub-section (1) or continues
to violate the provisions of section 3, he shall be
punishable with imprisonment for a term extend up
to three years or with fine which may extend up to a
further ten per cent of the estimated cost of the real
estate project, or with both.
This clause relates to the punishment for non-
registration under clause 3.
Sub-clause (1) provides that if any promoter
contravenes the provisions of clause 3, he shall be
liable to a penalty which may extend up to ten per
cent of the estimated cost of the real estate project
as determined by the Authority.
Sub-clause (2) provides that if any promoter does
not comply with the orders, decisions or directions
issued under sub-section (1) or continues to violate
the provisions of clause 3, he shall be punishable
with imprisonment for a term which may extend up
to three years or with fine which may extend up to a
further ten per cent of the estimated cost of the real
estate project, or with both. (Notes on Clauses).”
29. Coming to the facts of the case, it is the specific
case of the Plaintiff that the Defendant firm without
obtaining ORERA Registration Certificate collected
money from the intending purchasers by advertising
R.S.A. No.174 of 2024 Page 40 of 53
the project in violation of the rules and regulations
prescribed by ORERA. It would be profitable to refer to
the specific pleadings of the parties in this regard.
Paragraph-8 of the plaint is relevant and is extracted
herein below;
“That, after receiving the letter from the
defendant the plaintiff became great shocked
that even after lapse of almost one (1) year the
defendant has not able to obtain permission from
the authority and there is no clear specific as to
when the defendant is going to pay the balance
amount which he is entitled to get. Soon after
receiving the letter the plaintiff on dtd.09.08.2021
through email tendered reply to the defendant
stating therein that ‘the BMC Vide its letter no
2217 dated 13.01.21 has directed you to comply
all necessary requirements as per the decision
taken in 2nd DP and BP Committee meeting but,
till date no action has been taken from your side
for obtaining permission. Besides that it is learnt
that without obtaining ORERA registration
certificate, the defendant Firm are collecting
amount from the intending purchasers by
advertising the project which is complete violation
of the rule & regulation prescribed by ORERA. All
the acts done by the defendant’s amounts to
implied refusal to perform the promise under the
agreements and entitling the plaintiff to rescind
the contract. Even such questionable, illegal and
unconscious mechanism of the defendant act will
not only put the project into litigation but the
Plaintiff will be dragged without any fault to such
litigation which will cause immense hardship for
him. This action of the defendant is done in a
calculated manner to siphon off the whopping
amount putting the plaintiff to irreparable loss
and to grab the suit land without giving anything
to the plaintiff. It is hereby stated that the
Defendant Firm is under a lawful obligation payR.S.A. No.174 of 2024 Page 41 of 53
the rest amount of Rs.12,35,00,000/- within a
period of 24 months with a grace period of six
months from the date of approval/registration of
the project by the competent authority i.e BMC
and ORERA. It does not mean for an indefinite
period that the defendant at its own will & wish
will obtain the required permission and thereafter
the Plaintiff will be counting the date for getting
the money as per the agreement.”
30. In the written statement filed by the Defendant,
the above referred plaint averments have been
answered in the following manner;
“That, the averment made in paragrpah-8 is
absolutely false and baseless designed for the
purpose of the case, hence denied. There is
nothing to shock after receipt of the letter of the
Defendant Firm rather he will happy that the
Defendant Firm trying to pay off the share of the
owner even before the contractual date.
That, be it stated that the Defendant Firm never
delayed the matter rather during the pandemic
period and demise of the managing partner on
14.12.2020 trying desperately to reconstituted
the Firm and there after submitted the building
plan before the BMC with immediate effect.
That, BMC vide letter No.2217, dt.13.01.2021
directed to comply about 6 conditions and this
defendant firm with much difficulties due to
Covid-19 restriction collected NOC and
compliances as required by the BMC and
deposited the same along with requisite fees of
Rs.64,72,556/- on 25.08.2021 and thereafter the
BMC approved the building plan.
That, after obtaining the building plan the
defendant firm deposited the necessity
application for project approval before the ORERA
but unfortunately the plaintiff submitted an order
of status quo passed by this Court before theR.S.A. No.174 of 2024 Page 42 of 53
ORERA authority and according the application
for approval of project has been rejected.”
31. Thus, the specific allegation that the Defendant
firm had advertised the project and had collected
money from the intending purchasers has not been
specifically denied. Rather, it is admitted that there
was no registration obtained from the ORERA. Further,
Defendant No.1, being examined as D.W.1, apart from
admitting in her evidence that the project was not
registered with ORERA also clearly admitted of having
received Rs.35 lakhs from her nephew (husband’s
brother) and also described him as ‘prospective buyer’.
Of course, she also said that said Rs.35 lakhs was paid
as part of Rs.2.8 crores paid to the plaintiff but, as
held by both the Courts below, there is no evidence in
support of such stand. Further, both the Courts below
have taken note of the above admission of D.W.1 to
hold that there was violation of the contractual
obligations by the defendant firm. This Court, after
R.S.A. No.174 of 2024 Page 43 of 53
considering the evidence independently, finds no
reason to differ.
32. That apart, the plea that non-registration of the
project with ORERA was because of an order of status
quo passed by the trial Court is hardly acceptable in
the absence of any order or communication made by
the ORERA with the defendant firm indicating non-
grant of the registration and more so, for the reason
cited above. Even otherwise, accepting for a moment
that non-registration of the project by ORERA was
because of reasons beyond control of the defendant, it
is immaterial in the present context because the same
cannot justify collection of amount from the
prospective buyer as mentioned above. This is a clear
violation of Section 3 read with Section 59 of the RERA
Act. There was specific contract between the parties as
reflected in Clause-23 that the Defendant Firm was
free to advertise and market for the proposed project
‘as per prescribed rules of ORERA’ and receive advance
R.S.A. No.174 of 2024 Page 44 of 53
from intending purchasers, execute agreements for the
same at its own risk and the land owner would not
bear any civil or financial liability for the same.
Therefore, this amounts to a clear breach of the
contract. As has already been held hereinbefore,
despite non-expiry of the period stipulated in the
contract for its performance, the Plaintiff was justified
in filing the suit in view of the breach of the contract.
Though the 1st Appellate Court has not approached the
issue from the above perspective yet, this Court
concurs with its findings for the reasons indicated
above.
The substantial question No.(iv) is therefore,
answered against the Defendant.
Substantial Question No.(v).
33. In this context, in assailing the findings of the
trial Court in paragraph-13 of its judgment, Mr.
Mishra, learned Senior counsel would argue that the
Defendant firm has spent huge amount of money for
R.S.A. No.174 of 2024 Page 45 of 53
obtaining necessary NOCs and permissions from
different authorities as also paid Rs.3.20 crores to the
Plaintiff. As such, a substantial and subsisting interest
was created in its favour for which no action
prejudicial to its interest can be taken under Sections
202 to 205 of the Contract Act. In this regard, Mr.
Mishra has relied upon a judgment of Supreme Court
rendered in the case of T. Seshareddy (D) Rep. by his
LR.-cum-Irrevocable GPA holder and Assignee
Kotamreddy Kodandarami v. State of Karnataka
and others (S.L.P (C) Nos.6354 and 6356 of 2020
decided on 9.11.2022).
34. Per contra, Mr. Baug would argue that the
judgment of the trial Court having merged with the
judgment of confirmation passed by the 1st Appellate
Court, the findings in question of the trial Court under
Paragraph-13 have lost its importance. Since the
Second Appeal has been filed challenging the
R.S.A. No.174 of 2024 Page 46 of 53
confirming judgment, the finding of the trial Court
rendered under Paragraph-13 of the judgment cannot
be considered as a substantial question of law.
35. After considering the rival submissions as above,
this Court finds that the findings rendered by the trial
Court have in fact merged in the judgment passed by
1st Appellate Court and the decree has been drawn up
accordingly. Nevertheless, this Court having already
held that the Plaintiff was justified to step out of the
contract because of its breach, the said question
automatically pales into insignificance not warranting
any further attention of this Court much less as a
substantial question of law.
The question so formulated is therefore,
answered accordingly against the Defendant.
Substantial Question No.(vi).
36. It has been argued by Mr. Mishra, learned
Senior counsel that the finding of the 1st Appellate
Court that the Defendant-Appellant had not proved
R.S.A. No.174 of 2024 Page 47 of 53
any material to show that it had made due diligence for
obtaining and presenting the evidence before the trial
Court even though the same are of prior to the
institution of the suit cannot be sustained because the
documents in question could not be marked as
exhibits as their presence could not be known at the
relevant time which is a plausible plea having regard to
the fact that the Managing Partner late Bibhuti
Bhusan Patra was dealing with the records and had
kept the same in his custody.
37. Per contra, Mr. Baug contends that the
Defendant has not been able to prove that the
documents in question were not within its possession
during pendency of the suit being kept under lock and
key. When it is the case of the Defendant that the same
firm was reconstituted with one of the earlier Partners
becoming the Managing Partner of the new firm, it is
hardly believable that she would not have had access
R.S.A. No.174 of 2024 Page 48 of 53
to all documents particularly when she has made all
correspondence relating to the agreement repeatedly
with the Plaintiff. Even otherwise, according to
Mr. Baug, these documents would not improve the
case of the Defendant in any manner nor are of such
nature as are essentially required by the Court to give
judgment in the case.
38. After considering the rival submissions as noted
above, this Court holds that even if the requirement of
exhibiting due diligence as contemplated under Order
41, Rule 27 of C.P.C. can be dispensed with, it is still
necessary for the Defendant to prove that the
documents in question are germane to the case and
are essentially required for a just decision of the case.
Even before this Court, the Defendant-Appellant has
not been able to demonstrate that but for the
documents sought to be adduced as additional
evidence, the judgment would have been otherwise.
R.S.A. No.174 of 2024 Page 49 of 53
This Court therefore, finds nothing wrong in the
impugned judgment in so far as it relates to rejection
of the application for adducing additional evidence.
The substantial question of law is answered
accordingly.
39. Apart from the aforementioned substantial
questions of law, an additional question was raised by
the Appellant, i.e. valuation of the suit. According to
the Defendant, the suit was grossly undervalued being
valued at Rs.1,00,000/- only. The suit was filed on the
pleading that the Plaintiff had received Rs.3.20 crores
out of total consideration of Rs.15.15 crores. The trial
Court brushed aside the objection relating to under
valuation on the ground that no objection had been
raised by the office and the 1st Appellate Court also
erroneously held that there was no irregularity in this
regard.
R.S.A. No.174 of 2024 Page 50 of 53
40. Per contra, Mr. Baug would argue that the
question of valuation of a suit is a matter between the
State and the Plaintiff over which the Defendant has
no say. Even otherwise, the Plaintiff has valued the
suit at Rs.1,00,000/- as per Section 7(iv) (c) of the
Court Fees Act and accordingly paid ad valorem court
fee of Rs.4185/-. Mr. Baug further argues that if the
arguments of the Defendant were to be accepted then
in order to prove its bonafides, the Second Appeal
should have been valued accordingly on the valuation
of Rs.15.15 crores and appropriate court fee should
have been paid.
41. Without entering into the merits of the rival
contentions as noted above, this Court finds that the
suit was one for declaration. As such, the Plaintiff was
within his right to value the suit as provided under
Section 7 (iv) (c) of the Court Fees Act. This Court
therefore, rejects the plea of undervaluation of the suit.
R.S.A. No.174 of 2024 Page 51 of 53
Conclusion.
42. Thus, from a conspectus of the analysis of facts,
evidence and law as discussed before, this Court finds
that none of the questions raised in the appeal can be
treated as substantial questions of law requiring
adjudication by this Court as the 2nd Appellate Court.
Moreover, the appeal being against a confirming
judgment, it is the settled position of law that the 2nd
Appellate Court would be slow to interfere unless it can
be demonstrated that there was any patent illegality or
perversity or finding against the weight of evidence on
record so as to be persuaded to interfere. Reference in
this regard may be had to the judgment of the
Supreme Court in the case of S. Appadurai Nadar &
another v. A. Chokalinga Nadar and another3;
43. For the foregoing reasons therefore, this Court
finds no justified reason to interfere with the
3
(2007) 12 SCC 774
R.S.A. No.174 of 2024 Page 52 of 53
concurrent findings of facts rendered by both the
courts below.
44. Resultantly, the appeal is found to be devoid of
merit and is therefore, dismissed, but in the
circumstances, without any cost.
…………………………….
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 30-Sep-2024 11:02:04
R.S.A. No.174 of 2024 Page 53 of 53