1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 682 OF 2008 M/s India Electron Exchange Ltd, A company incorporated under the Provisions of the Indian Companies Act, 1956, having its registered office at 301, House of Lords, Opp. Goa Marriot Resort, Panaji Goa. Through its Director Mr. Karan Dhaul. ... Petitioner V e r s u s Mr. Vivek Jose Agnelo Araujo, Through his Power of attorney holder Mr. Raimundo Araujo, Residing at Govt. Quarters, Altinho, Panaji Goa. ... Respondent Mr. Y. V. Nadkarni, Advocate for the Petitioner. Mr. V. A. Lavande, Advocate for the Respondent. Coram :- A. H. JOSHI, J. Date :- 16 th SEPTEMBER, 2009. at* 2 JUDGMENT 1. Rule. Rule is made returnable forthwith and is heard by consent. 2. The petitioner herein is the defendant in Special Civil Suit no. 72/2005/B. It is a suit for possession on the ground that the tenure of licence based on which the premises were occupied by the defendant has come to an end. 3. Plaintiff filed an application under Order 15-A of CPC. The defendant did not file reply to this application. After hearing, learned Trial Court passed order on 29.11.2005, operative part whereof reads as follows :- “It is therefore, this Application is granted under the provision of Order 15-A of CPC and the defendant is directed to deposit the arrears of licence fees at the rate of Rs. 23,000/- per month due from October, 2004, till date of Order and further to continue to deposit the licence fee per month till the date of disposal of the suit”. (Quoted from order dated 29.11.2005 at page 89-A of paper book ) 4. It is a matter of record that the deposit of Rs. 23,000/- per month from October, 2004 was not done as directed by the Trial Court. 5. The plaintiff filed an application for striking off defence i.e. Exhibit 14. The defendant/petitioner filed an application for modification of the order under at* 3 Order 15-A, dated 29.11.2005 i.e. Exhibit 21. 6. Both these applications were heard simultaneously. The plaintiff had urged that there is willful and deliberate default, extension for deposit was not sought nor the order was stayed by the higher Court, and therefore this is a fit case for striking off the defence. Defendant urged that the defendant was ready and willing to pay however the circumstance beyond its control and due to some reasons attributed against the plaintiff, the payment was not made. The defendant also pleaded that it was necessary to deduct the Income Tax at source. 7. Learned Trial Court passed a common order and rejected the plaintiff's application for striking off the defence and allowed the defendant's application permitting it to deposit the amount in the Court after deducting the tax deductable at source by order dated 10.4.2006. Operative order reads as follows :- “O R D E R The application of the plaintiff at Exhibit 14 for striking off the defence, under Order 15-A Rule 2 of the Civil Procedure Code, is dismissed and the application of the defendant at Exhibit 21, under Section 151 of the Civil Procedure Code, for modification of the order dated 29.11.05, is partly granted in its prayer A and the order dated at* 4 29.11.05, stands modified to that effect. The defendant to deposit the amount of arrears towards monthly rent/compensation in respect of suit premises after deducting the amount payable to the Income Tax Department on account of TDS, as provided under Section 194(1) of the Income Tax Act, 1961, within a period of 30 days from the date of this order and continue to deposit per month thereafter”. (Quoted from order dated 10.4.2006 at page 112 and 113 of paper book ) 8. The defendant has thereafter made deposit of some amount from time to time in the Trial Court. According to the plaintiff the month to month deposit as ordered by Trial Court was not done, and therefore, large amount had remained in arrears. The plaintiff has therefore filed another application at Exhibit 31 under Rule 2 of Order 15-A of CPC and prayed for striking off the defence. 9. Through this application Exhibit 31, the plaintiff brought to the notice of the Court the following facts. (i) The deposit of Rs. 50,000/- on 16.5.2006 was beyond the period set out by the order dated 10.4.2006, and it did not correspond to actual dues. (ii) Further monthly deposits liable to be made from May, 2006 till the date of the application, were not made. 10. The defendant replied the application Exhibit 31 stating that the company's accounts were under audit and it had revealed during the audit that defendant had deducted 10% TDS against required rate of 30%, and therefore at* 5 the amount of rent was not deposited. 11. It is pertinent to note that any statement of amount payable month to month, deduction of tax at source actually done, and required to be done was not produced. 12. The learned Trial Judge after hearing parties allowed the application Exhibit 31and has struck off the defence by order dated 31.10.2006. This order is challenged in present writ petition. 13. The petitioner's claim and contention as to what happened and why money was not paid after 2.6.2006 has to be seen. In the body of writ petition, the averments in this regard are seen in para 26 and 27, which read as follows :- “26. Petitioner states that it had deposited an amount of Rs. 50,000/- towards the admitted dues before the Hon'ble Civil Judge Senior Division at Panaji and a sum of Rs. 1,02,353/- was deposited by its subsidiary company M/s Global Energy Ltd to TDS vide TDS Challan No. ITNS 281 for the assessment year 2005-06. Annexed hereto and marked as Exhibit-J is the copy of the TDS Challan depositing the TDS amount. 27. Petitioner states that the said amount of Rs. 1,02,353/- was paid by M/s Global Energy Ltd. due to the reason that the petitioner company was a financial crunch and could not bear the financial burden during the relevant time period”. at* 6 All other averments before and after these averments are 'tell tale', and no crucial facts have been pleaded and no factual explanation towards actual events leading to failure to deposit monthly license fee is offered. 14. When the hearing was commenced, this Court passed order on 12.8.2009 as follows :- “1. Petitioner is directed to place on record by way of affidavit all details of amount deposited in Court, along with a statement giving break up of monthly rent, the amount of TDS, the date on which the amount was deposited in IT account etc. 2. Affidavit should also state the reasons as to why statutory certificate of deduction was not given to the respondent and if there is any lapse on the part of respondent factual basis thereof”. 15. The query posed by this Court in order dated 12.8.2009, has been replied by the petitioner by filing affidavit dated 22.8.2009. The explanation therein is in the following manner :- (a) It is explained that though TDS was effected its statutory certificate of deduction could not be issued as the Permanent Account Number of the plaintiff was not communicated by plaintiff to the defendant. (b) It has not been brought on record that the Permanent Account Number was ever asked. (c) Break up and details of amount deposited has been given in statement titled as Annexure – A thereof, which is at page 148 as accompaniment to the affidavit dated 22.8.2009. at* 7 16. There is no controversy as to the correctness or otherwise of the amount of tax deducted at source. It would be useful to refer to the details as to the dates of the payment and period for which deposit was made which are as follows :- Date of Deposit Amount of Deposited Period TDS (30%) Deducted Date of TDS Deposited. 16/05/2006 50000 12/02/07 3,70,300 April 2005 till Feb. 07 1,58,700 05/02/07 10/07/07 64400 March, 2007 till Jun -07 27600 20/07/2007 29/10/2007 48300 July, 2007 till Sept. 07 20700 20/10/2007 14/01/2008 48300 October 2007 till Dec-07 20700 14/01/2008 Jun-08 80500 January 2008 till May-08 34500 Jun-08 07/11/08 96600 June 2008 till Nov.-08 41400 17/11/2008 02/02/09 48300 December 2008 till Feb-09 20700 07/02/09 29/07/2009 82250 Mar-09 till Jul-09 35250 Jul-09 21/08/2009 96600 Oct-04 till Mar-05 41400 Aug-09 TOTAL AMOUNT DEPOSITED IN COURT Rs. 9,85,550/- TOTAL TDS DEDUCTED Rs. 4,00,950/- at* 8 17. Perusal of above quoted data discloses that :- (a) Month to month deposit though directed by the Court, it is not made. (b) First payment made on 16.5.2006 is Ad-hoc payment, and break up is not explained in the Trial Court and even before this Court. (c) Thus till date striking off defence neither arrears nor current arrears were paid. (d) The second payment is made on 12.2.2007 i.e. after nine months from first payment which is months after the order of striking off the defence was passed. (e) Subsequent payments are not made month to month but are made as per defendant's will and choice in lumpsum. (f) Last payment of arrears of Rs. 96,600/- is made on 21.8.2009 only when this Court directed filing of affidavit showing break-up of payment i.e. only a day before filing of affidavit. (g) It is not shown on record nor orally argued that any application for enlargement of time was made. (h) Till today, no explanation of whatsoever nature is offered towards reasons of irregular payment. 18. Learned Advocate for the petitioner has placed reliance on following reported judgments :- (i) 2003(4) ALL MR 249 in Bhimrao Laxmanrao Nihare V/s Natwarlal Ratansi Thakkar. (ii) AIR 1986 Bombay 423 in Sangeeta Prints V/s Hemal Prints and others. at* 9 (iii) 2004(1) ALL MR 822 in Ramavatar Surajmal Modi V/s Mulchand Surajmal Modi. (iv) AIR 2004 SC 2093 in Shipping Corporation of India Ltd., V/s Machado Brothers and others. (v) 2003 A I H C 2126 in D. Ram Mohan Rao V/s M/s Sridevi Hotels Pvt. Ltd., Nizamabad and others. (vi) 1995(4) Bom. C. R. 611 in Rambhau s/o Bapurao Deshmukh V/s Narayan s/o Sitaramji Ukande and others. 19. Based on these judgments what is sought to be urged is that :- (i) Provisions contained in Rule 2 of Order 15-A of CPC is of enabling nature and hence directory and not mandatory. (ii) The power thereunder is to be exercised with discretion and latitude to enforce the order and not to debar the party from fair trial. (iii) The Doctrine under Order 39 Rule 10 of CPC of striking off defence which is analogous to Rule 2 of Order 15-A of CPC and this rule will have to be construed alike meaning thereby whenever non compliance is purged liberal view has to be taken. 20. In order to test and analyze the submissions, this Court has perused, appreciated and analyzed the record. 21. What was urged before Trial Court as noted by the learned Trial Court is as follows :- “It is stated that the entire amount could not be deposited, since the company's accounts were under audit and during the audit it was revealed that the defendant had erroneously deducted 10% TDS instead of 30% as a result of which, the Directors of defendant's company decided not release any payment without taking proper advice from the Chartered Accountant”. at* 10 While what is now pleaded before this Court is quoted in aforesaid para no.13. 22. Be it that, the petitioner company was really lacking in liquidity, yet wanted to retain the premises, it could have come forward, explaining with financial documents and showing that it was beyond its economic means for the present or for contemporary days/months to comply with the order and could have supplicated for latitude or relaxation. 23. At the time of filing of present petition there was a default as noted earlier. This Writ Petition was filed on 13.11.2008 and even on that date payment for six months since October, 2004 to March, 2005 was still unpaid. During pendency of petition for two years payments were not made which were made only in lumpsum. 24. It is quite likely that the defendant was really not in a position to make the compliance of the order of Court. Be that it is reality, in that event such a party can always come to the Court and file an application under Section 148 of CPC seeking enlargement of time fixed by the Court or otherwise place on record its practical difficulties and seek minor or major modification of the order. Nothing of this sort is shown to have been done and totally self contrary at* 11 pleas are raised. 25. During pendency, the petitioner could have very well asked for concession by filing application for interim order from this Court. Nothing of this sort is done. 26. The approach of the petitioner is of total indifference to the orders of Court and no remorse or apology is shown for its sharp practices, and a legal plea is raised that upon purging, a liberal view should be taken. 27. This Court is satisfied that the petitioner has been playing tricks with the Trial Court and is, repeating the same thing before this Court. 28. A party who is already in gross failure to comply with the orders of Court, when comes with a petition in the mercy or claiming discretion should have followed fairness and could have come out disclosing honestly, the fact which precluded it from compliance of order. 29. Thus here is the petitioner before this Court who cares the least towards orders of Court, and yet laments for justice without qualification to receive it. Compassion is inevitable ingredient of justice, but compassion cannot be available to those who keep on trampling the law and orders of Court and whose taste and sense of justice is limited to their own selfish motives. Balance of law at* 12 and justice which has already tilted in adverse direction cannot be stopped or reversed by compassion. 30. The facts of the case as noted by this Court are so gross that it is a case of supine indifference and rank negligence as to obedience of the order of the Court. 31. It is pertinent to note that order impugned is dated 31.10.2006 while present Writ Petition is filed on 13.11.2008 i.e. nearly two years after the impugned order is passed. 32. In these premises, this Court is satisfied that present petition is an exercise to abuse the process of law and course. 33. The petition is totally lacking bonafides. The order of Trial Court though brief, has been passed upon due consideration of all questions and issue involved, and does not call for interference, and petition therefore deserves to be dismissed and is dismissed with costs. Rule is accordingly discharged. A. H. JOSHI, J. at* at*