Bombay High Court
Prataprai Trumbaklal Mehta vs Jayant Nemchand Shah And Another on 14 June, 1991
Equivalent citations: AIR 1992 Bom 149, 1991 (4) BomCR 89
Bench: D Dhanuka
1. This chamber summons is taken out by the defendants -- judgment-debtors -- for an order of recording "adjustment" and satisfaction of decree dated 21st September 1987 passed by this Court in this suit in terms of alleged agreement dated 21st April 1990 propounded by the defendants, copy whereof is annexed as Exhibit '3' to the affidavit of defendant No. 1 dated 15th May 1990 made in support of this chamber
summons. This chamber summons raises interesting questions of law relating to interpretation and application of O. 21, R. 2 of the Code of Civil Procedure and the role of a notary in attesting copy of a document as certified copy. The plaintiff has alleged that the alleged agreement propounded by the defendants is a forged document and it was never executed by the plaintiff. The plaintiff decree-holder is a practising advocate. The defendant No. 1 is a builder. Oral evidence led in this case consists of the evidence of defendant No. 1, the plaintiff and one Mr. Sonavane, Advocate-Notary. Mr. Sonavane has notarised xerox copy of the abovereferred alleged agreement as true copy and placed his signature and seal on last page of bunch of papers marked Exhibit '2' in the evidence. The original of Exhibit '2' is not forthcoming. The oral evidence of the three witnesses is extremely unsatisfactory as would be shown in the later part of this judgment. Parties have tried their best to suppress the truth and give most evasive answers to the material questions. In the circumstances this chamber summons is bound to fail on the ground that the defendants have failed to prove the document propounded by them and discharge the burden of proof to prove the alleged adjustment of the decree.
2. Some of the important questions arising in this proceeding are as under :--
(1)(a) What is the meaning of the expression 'adjustment' under Order 21, Rule 2 of the Code of Civil Procedure?
(b) Whether Order 21, Rule 2 of the Code of Civil Procedure is inapplicable to executory agreements prescribing new rights and obligations and providing for non-execution of the decree in the event of the judgment-debtor fulfilling the conditions stipulated under the agreement?
(c) Whether Order 21, Rule 2 of the Code of Civil Procedure is applicable only to completed agreements providing for immediate extinguishment of decretal liability in full or in part?
(d) Whether the agreement not amounting to 'adjustment' under Order 21, Rule 2 of the Code of Civil Procedure can be set up by the judgment-debtor as a bar to execution under Section 47 of the Code?
(2) Whether the chamber summons is barred by limitation?
(3)(a) Whether the judgment-debtors prove that the alleged agreement dated 21st April 1990 was executed by the plaintiff-decree-holder?
(b) Whether the alleged agreement dated 21st April 1990 is a forged document?
(c) Whether the notarised copy of the alleged agreement dated 21st April 1990 was notarised by Mr. Sonavane, Advocate, without any scrutiny as to the identity of the executant of the original agreement of which the impugned copy purports to be a copy? If so, what is the probative value of such a notarised copy?
3. It shall be obvious from bare narration of facts in subsequent paragraphs of this judgment that the original transaction continues to remain shrouded in mystery and the consideration of Rs. 1 lac for sale of land and building with vacant possession of two flats of 500 sq. feet each is far too ridiculous.
4. The facts and circumstances, in brief, giving rise to the present proceeding shall have to be set out in detail having regard to the nature of the questions required to be decided by the Court. The relevant facts are as under :--
(a) The plaintiff is a practising advocate. The plaintiff is Karta of a H.U.F. concern consisting of himself and members of his family in the name of "Pushpak Enterprise". Prior to passing of decree on admission dated 21st September 1987 in Suit No. 2434 of 1987 referred to hereinafter, the defendants were owners of a plot of land situate at village Pahadi, Goregaon, Taluka Borivli, bearing Plot No. 191, Jawahar Nagar, Goregaon (West) Bombay, bearing Survey No. 147, Chalta No. 231 to 235, C.T.S. No. 602, admeasuring 502 square metres or thereabouts and a building constructed thereon consisting of 12 tenements. In the said building, the defendants used to reside in Flats Nos. 1 and 3 on the ground floor thereof. Defendant No. 2 is the wife of defendant No. 1. Each of the said two flats admeasures about 500 square feet.
(b) By an agreement of sale dated 15th April 1985, the defendants are supposed to have agreed to sell the said entire property to M/s. Pushpak Enterprise, an H.U.F. concern (Proprietor-Karta/Manager Mr. Prataprai Trambaklal Mehta) for a lump sum consideration of Rs. 1 lac. The plaintiff decree-holder paid a sum of Rs. 25,000/- to the defendants by cheque dated 15th April 1985 drawn on Bank of India. The "said agreement" stipulates that the defendants will be liable to hand over vacant possession of Flats Nos. 1 and 3 which were in their own occupation in the said building to the plaintiff in specific performance of the said agreement. The parties thereto entered into a confirmatory agreement dated 15th November 1985 and got the same duly registered with the Sub-Registrar of Bombay. Copy of the said confirmatory agreement is annexed as Exhibit 'A' to the plaint. At the time when the original agreement dated 15th April 1985 was arrived at, the plaintiff had also obtained a declaration/affidavit on oath from the defendants confirming the said agreement. Thus under the said agreement the defendants agreed to execute a conveyance in respect of the said land and the said building including the two flats referred to hereinabove in favour of the plaintiff and also to hand over vacant possession of the said two flats for a lump sum consideration of Rs. 1 lac, out of which a sum of Rs. 25,000/- was paid at or about the time of execution of "the said agreement of sate" dated 15th April 1985.
(c) On or about 14th August 1987, the plaintiff filed the present suit against the defendants for specific performance of the said agreement dated 15th November 1985 and for vacant possession of the said flats Nos. 1 and 3 on the ground floor of the suit property in which the defendants were residing at the time of the said suit. The plaintiff offered to pay the balance of Rs. 75,000/- to the defendants towards balance of the consideration amount.
(d) Along with a praecipe dated 2nd September 1987, M/s. Shukla & Associates, Advocates, filed Vakalatnama on behalf of the defendants in this suit, stating therein that the first returnable date was 15th December 1987. A reference to this fact is being made while narrating the facts after due scrutiny from the record of the suit. It was the case of the defendants during the course of evidence of defendant No. 1 at the trial of the chamber summons that the defendants had never engaged any advocate in this suit at the stage when the decree on admission was passed. Is this Vakalatnama also a forged document? Who paid fees of M/s. Shukla & Associates? Were M/s. Shukla & Associates engaged by the plaintiff to represent the defendants? It is not possible to provide definite answers to these questions for want of data although these questions have also troubled the Court apart from the questions directly arising at the hearing of this chamber summons.
(e) On 21st September 1987, a decree on admission was passed by Guttal, J. in terms of the minutes. The said minutes were signed by the plaintiff and the defendants, advocate for the plaintiff and by Advocate Mr. Shukla for the defendants with the endorsement "identified by me". The said minutes were interpreted by the sworn interpreter of the High Court in Gujarati to both the defendants. By the said decree, the defendants submitted to the decree for specific performance in terms of the agreement as sought for by the plaintiff and also undertook to hand over vacant possession of flats Nos. 1 and 3 to the plaintiff on or before 31st December 1988. It was provided in the abovereferred minutes that upon handing over possession by the defendants of the said two flats on or before 31st December 1988, the plaintiff shall pay the balance of Rs. 75,000/- to the defendants by 8th January 1989. It was provided by clause 6 of the abovereferred minutes that in the event of the defendants failing to hand over possession of the said flats by 31st December 1988, the plaintiff decree-holder shall be entitled to take possession of the said flats in execution of the decree on or after 9th January 1989. Several other stipulations are to be found in the minutes of the decree. It appears from the record maintained by this Court that at the hearing of the suit before Guttal, J., on 21st September 1987, Mr. Shukla, Advocate, appeared for the defendants.
(f) On 16th February 1989, the plaintiff made an application to this Court for execution of the said decree by issue of warrant of possession in respect of the abovereferred flats Nos. 1 and 3 and by issue of notice against the defendants for execution of conveyance in respect of the entire land and building under Order 21, Rule 34 of the Code, with a direction that the conveyance in question be executed by the Prothonotary & Senior Master in the event of the defendants failing to execute the conveyance. It was stated in the affidavit in support of the application for execution filed by the plaintiff that the plaintiff shall pay the balance amount of Rs. 75,000/ - within one week from the date of receipt of vacant possession of flats Nos. 1 and 3.
(g) In pursuance of the abovereferred application for execution filed by the plaintiff, this Court issued notice under Order 21, Rule 34 of the Code. The said notice was made absolute by Variava, J. on 16th February 1990. Minutes of the proceed ing of that day recorded by the Court read as under:--
"Plaintiff- in-person.
Shri Sharma i/b M/s. Shukla Associates for defendants.
P.C. Notice absolute.
In case Defendants fail to execute conveyance within four months from today, Prothonotary & Senior Master is directed to do so."
It is the case of the defendant No. 1 in his evidence recorded at the trial of the chamber summons that the defendants had never engaged M/s. Shukla & Associates at any time. Either this case of the defendant No. 1 is false to his knowledge and defendant No. 1 is hoodwinking this Court or the Vakalatnama is forged.
(h) It appears from the copy of the report made by the bailiff deputed by the Sheriff of Bombay, being report dated 11th December 1989 (marked as Exhibit '3' in the notes of evidence) that on 11th December 1989 the said bailiff executed the warrant of possession dated 15th July 1989 and handed over vacant possession of flat No. 1 on the ground floor of the suit building to the plaintiff. It appears that the execution in respect of possession of flat No. 3 was deferred in view of negotiations between the plaintiff. It is recorded in the said report that the 1st defendant requested the plaintiff to defer the said execution for a period of six months and thus grant him time to vacate the said flat No. 3 till 10th June 1990. It is not stated in the said report of the bailiff that the plaintiff was agreeable to grant time to vacate flat No. 3 to the defendants as sought. In other words, the execution in respect of flat No. 3 was deferred in order to enable the parties to negotiate in the matter.
(i) On 16th December 1989, a settlement was arrived at between the parties where-under the plaintiff agreed not to execute the decree for vacant possession in respect of flat No. 3 in the said building till 30th May 1990. It was recorded in letter dated 16th December 1989 that the plaintiff shall be liable to pay the balance of Rs. 75,000/- only after getting vacant possession of flat No. 3 on the ground floor of the said building and only after completion of conveyance in respect of the suit property in accordance with the said decree. The said writing was addressed by defendant No. 1 on behalf of himself and his wife to the plaintiff and confirmed by the plaintiff at the foot thereof. The writing was interpreted and explained to defendant No. 1 by Ms Kokila Panchal, Advocate in Gujarati. The original of the said writing was marked as Exhibit '1A' at the trial of the chamber summons. The original of the said writing was produced by the plaintiff. A copy of the said writing was produced by defendant No. 1 and the same was admitted and marked as Exhibit '1' at the trial of the chamber summons.
(j) On 15th May 1990, the defendant No. 1 affirmed an affidavit in support of the chamber summons, which was later numbered Chamber Summons No. 519 of 1990. After referring to the abovereferred settlement dated 16th December 1989, the defendant No. 1 on behalf of himself and his wife -- defendant No. 2, propounded "the alleged settlement in dispute" by making certain averments in paragraphs 4 and 5 of the said affidavit. The defendant No. 1 alleged that on 21st April 1990, an agreement was arrived at between the defendants and the plaintiff, a copy whereof was Exhibit '3' to the affidavit in support. It was alleged by defendant No. 1 in paragraph 4 of the said affidavit that under the said alleged agreement the defendants agreed to give up their dispute or claim in respect of flat No. 1 and also agreed to pay a sum of Rs. 89,000/ - to the plaintiff in full and final settlement of the entire decretal claim. On behalf of both the defendants, defendant No. 1 alleged in the said affidavit that under the said alleged agreement of settlement, the defendants were required to pay a sum of Rs. 4,000/- upon signing of the said alleged agreement and balance of Rs.85,000/- on or about 31st December 1990. It was alleged that defendant No. 1 had paid a sum of Rs. 4,000/- to the plaintiff by cheque No. 059520 dated 21st April 1990 of Greater Bombay Co-operative Bank Ltd., Goregaon Branch. It was alleged that the said cheque was encashed by the plaintiff on 25th April 1990. The said cheque was drawn in favour of M/s. Pushpak Enterprise. A copy of the said alleged agreement dated 21st April 1990 was annexed as Exhibit '3' to the said affidavit. By the abovereferred affidavit dated 15th May 1990, the defendant No. 1 represented to the Court that the defendant No. 1 was in possession of "original of the agreement", copy whereof, was annexed as Exhibit '3' thereto. The said affidavit suffers from suggestio falsi and suppressio veri as the defendant No. 1 is now contending that the copy Exhibit '3' was not prepared from the original. It is strange that Exhibit '3' does not tally even with notarised copy of the alleged agreement marked as Exhibit '2' in the evidence recorded at the trial of the chamber summons. On 22nd May 1990, Cazi, J. granted ex parte ad interim stay of the execution proceedings in respect of the decree passed in the suit in relation to flat No. 3.
(k) The plaintiff filed his affidavit in reply dated 20th June 1990 contending that the said alleged agreement was a forged document. The plaintiff also contended that the defendant No. 1 had surreptitiously deposited a sum of Rs.4,000/- in the bank account of Pushpak Enterprise by filling up of the pay in slip in an attempt to create false evidence against the plaintiff in support of the said alleged agreement dated 21st April 1990. The plaintiff further alleged in the said affidavit-in-reply that the defendant No. 1 was playing double game in order to defeat justice inasmuch as the defendant Mo. 1 had also put up his nephew, one Mr. Paresh C. Shah, for filing a false suit bearing No. 3525 of 1990 in the Bombay City Civil Court through the same Advocate i.e. Mr. B. M. Vyas who had taken out this chamber summons by forging one more document and by making a fictitious claim to the effect that the said Paresh C. Shah had agreed to purchase flat No. 1 from the plaintiff when no such transaction was arrived at between the plaintiff and the said Paresh C. Shah. The plaintiff's son Vijay and his family members arc residing in flat No. 1 of the suit building.
(l) In his affidavit-in-rejoinder, the defendant No. 1 denied that he had surreptitiously deposited the cheque for Rs. 4,000/- in the Bank account of Pushpak Enterprise in order to create false evidence in support of the said alleged agreement. The defendant No. 1 also alleged in the said affidavit that the defendant No. 1 was not concerned with the sale of flat No. 1 by the plaintiff to his nephew Mr. Paresh C. Shah. It appears that on one hand Mr. Paresh C. Shah, the nephew of the defendant No. 1, obtained an order of injunction in respect of flat No. 1 from the Bombay Civil Court Suit No. 3525 of 1990 and on the other hand the defendant No. 1 obtained the ex parte stay of execution in respect of flat No. 3 from this Court on 22nd May 1990. Perhaps both these proceedings were planned by defendant No. 1 as a part of common strategy.
(m) It is the plaintiff's case that the plaintiff was totally shocked to read the allegations made by defendant No. 1 on going through the affidavit in support of the chamber summons as the plaintiff had never signed the said alleged agreement on 21st April 1990 or on any other date. In the original proceedings of this Court I have found Vakalatnama of Mr. B.M. Vyas, Advocate representing the defendants, which is unstamped and unaccompanied by any praecipe. By his letter dated 13th July 1990, Mr. B. M. Vyas, Advocate, representing the defendants, furnished particulars in respect of the alleged agreement in dispute i.e. the alleged agreement dated 21st April 1990 in response to requisition from M/s. Parmanand & Company, Advocates and Solicitors representing the plaintiff. A copy of the said letter is annexed as Annexure 'A' to the affidavit of the plaintiff in sur-rejoinder dated 16th August 1990. It was averred in paragraph 3 of the said letter as under:--
(i) "My client states that the meeting was held in the Bar Room of High Court Original Side on 19th April, 1990 at that time Mrs. Kokila Panchal, Advocate was present along with my client. Your client Shri P.T. Mehta and his son were present. The meeting took place at about 2.30 p.m. or so and the matter was discussed and ultimately the matter was settled."
It was stated by defendant No. 1 at the trial of the Chamber summons that the above referred averment was not true as Ms Kokila Panchal, Advocate, was not present at this meeting.
(ii) "My client states that thereafter your client Mr. P. T. Mehta, who is a practising Advocate, told my client that he will keep agreement ready recording all facts of settlement and that my client should see him on 21st near the High Court and that your client will keep agreement ready".
In the evidence at the trial of the chamber summons, the defendant No. 1 resiled from this statement also.
(iii) "Accordingly my client met Mr. P. T. Mehta, your client, near Hongkong Bank on footpath at about 12 noon or so."
In the evidence at the trial of the chamber summons, the defendant No. 1 resiled from this statement also.
(iv) "My client asked for copy of the same, when your client Mr. P. T. Mehta told my client that after 2 or 3 days he will give to my client notarised copy of agreement dated 21st April 1990. 1 say that accordingly my client received a notarised copy of agreement from your client on 25th April, 1990."
No reference is to be found to the notarised copy of the agreement in the operative part of affidavit in support of the chamber summons. Annexure 3 to the said affidavit cannot be described as true copy of document marked as Exhibit '2' in evidence.
(n) It is of some significance that the disputed document dated 21st April 1990 provides for signature of witnesses, but no names of witnesses are to be found in the copy annexed to the affidavit in support of the chamber summons or in the copy produced by defendant No. 1 in the evidence.
(o) Clause 5 of Annexure 3 to the affidavit in support of the chamber summons provides that after the said agreement was implemented, the agreement shall be destroyed. The said clause purports to provide that the plaintiff shall be entitled to keep the original of the said agreement and the defendant No. 1 shall be entitled to retain a certified copy of the said agreement with him. Provision for destruction of "the agreement" is rather strange.
5. Ultimately the document which was propounded and produced by the defendants in support of the chamber summons was marked by me as 'Y' for identification at one stage and as Exhibit '2' at subsequent stage, subject to all the contentions and disputes of the parties in respect of its genuineness. The document (Exhibit '2') consists of bunch of papers as under :--
(1) Copy of the alleged agreement in dispute dated 21st April 1990 on stamp paper of Rs. 10/- (pages 1 to 7, the 7th page being the purported receipt for sum of Rs. 4,000/-);
(2) Copy of the minutes of order, in terms whereof decree was passed by this Court on 21st September 1987;
(3) Copy of letter dated 16th December 1989 addressed by defendant No. 1 to the plaintiff and confirmed by the plaintiff at the foot thereof. The last page of the bunch of papers bears the date 24th April 1990 and the following endorsement:
"TRUE COPY
Sd/-
I. B. Sonavane
Advocate, High Court
NOTARY
24-4-90"
6. On taking inspection of the copy of the alleged agreement dated 21st April 1990, alleged to have been notarised by Mr. Sonavane, Notary, as aforesaid, M/s Purnanand & Co., Advocates & Solicitors representing the plaintiff in this suit, addressed a letter to Mr. I.E. Sonavane, Advocate, being letter dated 27th July 1990 requesting him to inform them as to who had presented the original of the said alleged agreement dated 21st April 1990 before him for certifying the xerox copy thereof as true copy. By the said letter, M/s. Purnanand & Co. requested Mr. Sonavane to give to them the xerox copy of the entry made in the Notary's register in respect of the notarial act of certifying the said copy as certified true copy and fix up an appointment for inspection thereof. By the said letter, M/s Purnanand & Co. offered to pay the necessary copying charges to Mr. Sonavane. Correspondence followed between M/s Purnanand & Co. and Mr. Sonavane. The said correspondence forms part of evidence in this case. Mr. Sonavane has taken a stand to the effect that someone had come to his office with the "original agreement" and that he in good faith had made endorsement of true copy on the said xerox copy without making any entry in the notary's register and without retaining any copy of the document or any other record with him in that respect and without making any inquiry about the identity of the executant of the original. Mr. Sonavane does not say that either the plaintiff or defendant No. 1 or any Advocate on their behalf or any authorised representative of theirs had attended his office or his certification. Subsequently Mr. Sonavane addressed a letter to the defendants, the plaintiff and Ms Kokila Panchal, Advocate, stating therein that the original document should be brought to him for verification and in the meanwhile neither of the party should act upon the said copy.
7. When this matter first appeared before me, I directed issue of letter of request to Mr. Sonavane as well as to Advocate Ms Kokila Panchal as I suspected gross fraud or at any rate serious improprieties necessitating immediate recording of evidence in the matter. Mr. Sonavane filed his affidavit dated 12th September 1990 and also gave his evidence at the trial of the chamber summons. Ms Panchal, Advocate, also filed her affidavit. No entry is to be found in the notarial register as none whatsoever was made in respect of the notarial act of certifying copy of the document in dispute in this case. In paragraph 4 of the said affidavit, Mr. Sonavane had averred that some gentleman had come to his office along with the original document and a copy thereof for getting the xerox copy certified by him as true copy of the original. Mr. Sonavane has averred that he did not know the gentleman concerned and he had never met him in the past. Mr. Sonavane has averred that he did not remember the name or any other particulars of the person who had brought the original document and the copy thereof to him for certification. Mr. Sonavane has averred in the said affidavit that he returned the original document as well as the copy thereof after making the endorsement thereon as true copy and placing his seal. Mr. Sonavane has stated that he had not made any entry in respect of the notarial act in dispute in the notarial register maintained by him as it was not necessary to do so. Mr. Sonavane has produced the correspondence on the subject between him and M/s Purnanand & Co. and between him and Mr. B. M. Vyas, Advocate, representing the defendants.
8. Ms Kokila Panchal, Advocate, has filed her affidavit dated 12th September 1990. In the said affidavit Ms Panchal confirmed that the settlement of December 1989 was arrived at in her presence and she had placed her signature on the writing dated 16th December 1989. As regards the alleged settlement in dispute is concerned, Ms Panchal does not state in her affidavit that she was present at any of the negotiations/meetings or any other meeting. In paragraph 4 of her affidavit, Ms Panchal states that she did not know anything about the document in question and she did not play any part in respect thereof.
9. The original of the disputed document is not forthcoming. It is naturally suppressed. The document (Exhibit '2') is highly suspicious. Even the story of payment of Rs. 4,000/- is highly suspicious and the possibility of defendant No. 1 depositing the cheque in the Bank account of Pushpak Enterprise, H.U.F. concern of the plaintiff, cannot be ruled out. It is the case of the plaintiff that the plaintiff had never executed the document propounded by the defendants. It is the plaintiff's case that the defendants had fabricated the said document and had surreptitiously deposited a cheque for Rs. 4,000/- in the Bank account of Pushpak Enterprise without the plaintiff's knowledge or consent. I propose to refer to evidence of Mr. Sonavane in the first instance.
10. Mr. Sonavane was enrolled as an advocate by the Bar Council of Maharshlra in the year 1964 and was appointed as a Notary by the Government of Maharashtra in the year 1986. Mr. Sonavane has stated in his evidence that he did not know either the plaintiff or the defendants. Mr. Sonavane was asked to explain the procedure which he followed when true copy of a document was required to be certified by him as a notary. Mr. Sonavane stated that he compares the copy produced before him with the original and then certifies the copy as true copy after such comparison after making reasonable verification. Mr. Sonavane has stated in his evidence that sometimes office copy of the document so certified is obtained from the party concerned and kept along with his record, but the practice followed by him is not uniform. Mr. Sonavane has admitted that he had not obtained in the instant case copy of the document in dispute while making endorsement thereon as true copy or kept any record whatsoever with him in respect of his notarial act. Mr. Sonavane has admitted in his evidence that he cannot remember now as to who had come to his office for certification of the document in dispute. Mr. Sonavane was asked pointed questions in his cross-examination as to what precaution he had taken to satisfy himself as to whether the original was signed by the executant thereof. On this aspect Mr. Sonavane stated during the course of his cross-examination as under:--
"I do not verify about the identity of the party who has signed on the original document. If someone else has signed on the original document in the name of some other party, I cannot say one way or other as to what is the correct position about the identity of the executant of the document."
Mr. Sonavane also stated during the course of his cross-examination that before certifying the document as true copy, he compared the copy tendered to him with the original and found out whether the original was signed by the advocate and the party concerned and whether the copy was identical with the original. Mr. Sonavane was not in a position to throw any light on the question as to where was the original document or who in reality was the executant thereof. Mr. Sonavane admittedly did not take any care about identification of the executant of the original document. The question in these matters can always crop up as to whether the proper person had executed the original document. Law takes judicial notice of seal of a notary. In ordinary course, an initial presumption may be made about genuineness of the notarised copy of the document. The underlying idea behind such presumption is that the notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him. If the party appearing before the notary is not known to the notary, the notary must get the party identified by an Advocate known to him and take signature of both of them in token thereof. Notarised copies of power of attorney and other documents are filed with Banks, Courts and other public institutions. If documents are marked as true copy by the notary without taking due care and even making any entry in the notary register and without taking signature of an advocate identifying the executant or without taking other reasonable precaution, it cannot be said that the notary is discharging his duty in accordance with law as expected of him. "Good faith" implies due care and caution. If the evidence of Mr. Sonavane is to be considered by the Court, as it is, it reflects complete lack of due care and caution on his part. It is not correct to say that the Notaries Act, the Rules and the prescribed form do not make any provision for entry of the notarial act of certifying the document as true copy in the notary register. The provisions of the Notaries Act, 1952 and the Notaries Rules, 1956 are discussed in subsequent paragraph of this order.
11. On 9th August 1952, the President of India granted assent to the Notaries Act, 1952 passed by our Parliament. The said Act came into force on 14th December 1956 on issue of necessary notification and publication thereof in the Government Gazette. Prior to the passing of the said Act, the Government of India was empowered to appoint Notary-Public under Sections 138 and 139 of the Negotiable Instruments Act for the limited purpose of functioning of Notaries under the said Act. Prior to the passing of the said Act, the Master of Faculties in England also used to appoint Notaries Public in India for performing all notarial functions. Section 3 of the said Act empowers the Central Government to appoint any legal practitioner or any other person as a notary for the whole of India or part thereof. The said Section also empowers the State Government to appoint any legal practitioner or other person who possess prescribed qualifications as a notary for functioning as such within the State. The notarial functions include "certifying copies of documents" as true copies of the original. Section 15 of the Notaries Act, 1952 empowers the Central Government to make rules to carry out the purposes of the Act including prescribing of fees payable to a notary for doing any notarial act and prescribing of form of registers required to be maintained by a notary, and particulars to be entered therein. In exercise of the powers conferred by Section 15 of the Notaries Act, 1952, the Central Government has framed the necessary rules. Rule 10(1) of the Notaries Rules, 1956 prescribes that every notary shall charge a fees for certifying copies of documents as true copies of the original at the rate prescribed therein. Rule 11(9) of the said Rules provides that every notary shall grant a receipt for the fees and charges realised by him and maintain a register showing all the fees and charges realised for every single notarial act. Rule 12 of the said Rules prescribes for use of seal of notary. Rule 11(2) of the said Rules in terms provides that every notary shall maintain notarial register in prescribed Form No. 15. The prescribed form of the register provides for entry of every notarial act in the notarial register and taking of signature of the person concerned in the register and entry in respect of fees charged. It is, therefore, not correct to state, as stated by Mr. Sonavane, that no entry need be made in the notarial register in respect of the notarial act of certifying copy of document as true copy of the original. Even if one or two column of the said form is not applicable, entries must be made in the said register filling up remaining columns as are applicable and adapting the format accordingly. It is the responsibility of a notary to satisfy himself that the original document intended to be executed before him was executed by the person concerned and not by someone else in the name of a different person. It is the responsibility of the notary to satisfy himself about the identity of the execution of the original document by making all reasonable inquiries including insistence of identification of a member of the public by a legal practitioner known to the notary. Unless the executant is known to the notary personally, the notary must insist on written identification of the executant by an advocate in order to minimise the possibility of cheating by personification. Negligence of a notary in the discharge of his notarial functions may jeopardise the interest of third parties and public interest itself. If the work of comparison of copy of the document with the original and the prima facie scrutiny of authenticating the original involves labour for too little a fee, the person concerned need not opt to become a notary. Notaries, formerly known as Notary-Public, enjoy high status throughout the couniry and the Courts take judicial notice of the seal of the notary and presume that the document in question must have been certified as true copy by the notary after taking of all possible care by the notary in comparing the copy with its original and due verification of the identity of the executant and the person appearing before the notary for the certification.
12. Having regard to the provisions of the Act and the Rules referred to hereinabove, I am satisfied in the instant case that witness Sonavane did not place his signature and seal on the copy of the document (Exhibit '2') after taking any care as expected of him and his conduct in not keeping even a copy of the document on his record or taking the signature of the person who had come to him in the notarial register is blameworthy. It was held by the High Court of Punjab in the case of Phagu Ram v. State, AIR 1965 Punjab 220, that the essential function of a notary is to bestow an interest of authenticity upon the acts performed by him. In that case the notarial act consisted of authentication of translation of a document from one language to another. It was held that the act of failure on the part of the notary to issue receipt for the fee charged and his omission to enter the particulars of the fee charged etc. in the register in terms of Rule 11(9) of the Notaries Rules, 1956 amounted to breach on the part of the notary. It is, therefore, not possible to attach any evidentiary value whatsoever to the notarised copy of the original document. In the circumstances of the case, it is not possible to hold that the plaintiff is withholding the original document. It is not the case of Mr. Sonavane that the plaintiff had approached him for notarisation of the impugned copy.
13. I shall now refer to the oral evidence of defendant No. 1. The evidence of defendant contains several contradictions and is full of lies. For want of time, I shall ignore some of the minor contradictions. In paragraph 3 of his evidence, defendant No. 1 deposed that on 19th April 1990 there was a meeting between him and the plaintiff in the High Court Bar Library in continuation with earlier negotiations. Defendant No. 1 deposed that the plaintiff and his son Vijay Mehta were present at the said meeting. In the letter of the defendants' Advocate dated 13th July 1990, it is alleged that Advocate Ms Kokila Panchat was present at the said meeting. On page 13 of his evidence, defendant No. 1 agreed that the statement appearing in paragraph 3 of the said letter to the effect that Ms Kokila Panchal, Advocate, was present at the said meeting alleged to have been held on 19th April 1990 was incorrect.
(b) In paragraph 3 of the evidence, the defendant No. 1 has alleged that at the said alleged meeting dated 19th April 1990 the dispute was settled between the defendants and the plaintiff on the basis that the defendants shall be liable to pay a sum of Rs. 89,000/- to the plaintiff and the plaintiff would return the conveyance and other documents to the defendants and would not execute the decree in respect of flat No. 3. The defendant No. 1 deposed in paragraph 3 of his deposition that the plaintiff had asked him to come near the Hongkong Bank premises for execution of the agreement. In paragraph 13 of his evidence, the defendant No. 1 deposed that in the meeting dated 19th April 1990 it was not agreed between the plaintiff and defendant No. 1 that on 21st April 1990 the agreement would be ready and the defendant No. 1 should meet the plaintiff on that day. Thus the evidence of defendant No. I reproduced in paragraph 13 of his deposition is in contradiction with his evidence in paragraph 3 referred to hereinabove. On this aspect also, the defendant No. 1 had set out his version while giving particulars of the alleged agreement in his Advocate's letter dated 13th July 1990. In paragraph 13 of his evidence, the defendant No. 1 admitted that the statement appearing in paragraph 3 of the said letter dated 13th July 1990 to the effect that in the meeting of 19th April 1990 the meeting dated 21st April 1990 was fixed was incorrect.
(c) The next question is as to on what day, at what time and where the parties met for alleged execution of the alleged agreement dated 21st April 1990. In paragraph 3 of his evidence, the defendant No. 1 stated that the defendant No. 1 met the plaintiff at about 2 p.m. outside the premises of Hongkong Bank and they thereafter occupied the place provided by the Bank for its customers and visitors in the Bank premises for a shortwhile for the purpose of completion of signing of the agreement in question. In paragraph 3 of his evidence, the defendant No. 1 stated that accordingly between 2 p.m. and 2.30 p.m. the plaintiff and defendant No. 1 occupied the premises of the said Bank provided for its customers and visitors, that the defendant No. 1 handed over his cheque for Rs. 4,000/- to the plaintiff, being cheque dated 31st April 1990 on the Greater Bombay Co-operative Bank Ltd. at the Bank premises simultaneously with execution of the agreement. In paragraph 3 of his examination-in-chief, defendant No. 1 has further deposed that he had asked for a copy of the said agreement from the plaintiff but was told that the copy shall be handed over to him after 3 or 4 days. In paragraph 4 of his deposition, defendant No. 1 stated that the plaintiff had telephoned to him on 24th April 1990 and asked him to see the plaintiff in the High Court Bar Library premises for collecting the copy of the agreement. The defendant No. 1 says that thereafter at about 4.30 p.m. defendant No. 1 met the plaintiff on the second floor of the Bar Library premises and at that time the plaintiff handed over to him "the notarised copy of the agreement" in dispute. The defendant No. 1 has given directly contrary evidence on some of these important aspects elsewhere as indicated hereinafter. In his Advocate's letter dated 13th July 1990 giving particulars of the agreement during the pendency of the chamber summons, the defendant No. 1 alleged that he had met the plaintiff at the footpath near Hongkong Bank at about 12 noon. The defendant No. 1 admitted in paragraph 13 of his evidence that this statement made by his Advocate Mr. B. M. Vyas on his instructions was incorrect. Before the larger number of contradictions were put to defendant No. 1 in his cross-examination, the defendant No. 1 stated in his evidence that the said letter dated 13th July 1990 was prepared by his Advocate Mr. B.M. Vyas on his instructions and statements appearing therein were correct. Page 7 of the document at Exhibit '2' consists of a receipt for Rs. 4,000/-. This is an entirely typewritten document. It is not the case of defendant No. 1 that the particulars of the cheque for Rs. 4,000/- "to be handed over by him to the plaintiff" were furnished by defendant No. 1 to the plaintiff prior to the alleged meeting when the said alleged agreement is supposed to have been executed. If no such particulars were given, it is beyond the comprehension of the Court as to how the plaintiff would get the said receipt typed with particulars of the cheque in advance. It is not the case of defendant No. 1 that the said receipt was typed sometime later or that it did not form part of the bunch of papers at the time when the so-called original agreement was executed. The evidence of defendant No. 1 is full of several other contradictions and anomalies, but it does not appear to be necessary to refer to each one of them in any further detail. The learned counsel for the plaintiff has submitted with some force that the copy of the writing dated 16th December 1989 produced by defendant No. 1 was not an exact carbon copy of the original of the said writing which was produced from the custody of the plaintiff and the conduct of the defendant No. 1 in this respect was also suspicious. Criminal prosecutions charging defendant No. 1 with the offence of forgery in respect of various documents are pending before the Criminal Court. I do not wish to pronounce any definite opinion on the issue of forgery in view of pendency of criminal prosecutions. It is sufficient for my purpose to hold that the defendants have failed to prove the alleged document (Exhibit '2') or the alleged adjustment by any reliable evidence.
14. I shall now deal with evidence of the plaintiff led at the trial of the chamber summons. The plaintiff-decree holder has examined himself as a witness in support of the his case. The plaintiff was enrolled as an advocate in the year 1952. The plaintiff is a practising advocate. The plaintiff has denied execution of the alleged agreement dated 21st April 1990. The plaintiff has stated in his evidence that after 16th December 1989, there was no meeting or any other communication between the plaintiff and the defendants or either of them or anyone else on their behalf. The plaintiff has stated on oath that no meeting had taken place between the parties on 19th April 1990 or 21st April 1990. According to the plaintiff, pages 1 to 7 of Exhibit '2' are forged documents. As regards minutes of the decree dated 21st September 1987 and the recording letter dated 16th December 1989 are concerned, the plaintiff has not raised any dispute in respect thereof. The plaintiff has also stated in his evidence that even Exhibit '3' (meaning thereby Annexure 3 to the affidavit in support of the chamber summons) does not tally with the document produced in evidence marked as Exhibit 2 and the comparison of the two documents would also corroborate his case to the effect that the defendants have fabricated the alleged agreement dated 21st April 1990 and the receipt. The plaintiff has further stated that he did not receive Rs. 4,000/- or any other amount from defendant No. 1 or defendant No. 2 and defendant No. 1 had surreptitiously deposited the cheque for Rs. 4,000/-, being cheque No. 059520 dated 21st April 1990 of Greater Bombay Co-operative Bank Ltd., in the H. U. F. account of M/s. Pushpak Enterprise with Head Office of Bank of India. The plaintiff states in his evidence that he discovered this fact on making inquiry after service of the chamber summons in this case. According to the plaintiff, the defendant No. 1 was aware of the factum of Pushpak Enterprise having the said Bank account as the plaintiff had made part payment of Rs. 25,000/- towards the consideration for the transaction to defendant No. 1 by issuing a cheque on the same Bank. The plaintiff has stated in his evidence that he did not know Mr. Sonavane, Advocate and Notary, at all and the plaintiff had never gone to the office of Mr. Sonavane for getting the disputed xerox copy notarised by the said notary. The defendant No. 1 has alleged in his evidence that he had borrowed money from the plaintiff through a broker, hinting that the transaction in question was a money-lending transaction and the defendants had signed whatever documents the plaintiff wanted the defendants to sign. On this aspect of the matter, though not strictly relevant as the executing Court cannot be behind the decree, the evidence of the plaintiff has been most evasive and unsatisfactory. The plaintiff's creditworthyness is thus shaken to some extent. The plaintiff was asked as to whether the suit agreement, being the agreement for sale dated 15th April 1985, was drafted by the plaintiff. The plaintiff replied to the effect that he did not exactly remember. The plaintiff was asked in his cross-examination by the learned counsel for the defendants as to who had prepared the engrossment of the agreement for sale dated I5th April 1985 and again the answer was that the plaintiff did not remember. The plaintiff was asked as to whether the defendant No. 1 was represented by any advocate in relation to the preparation, registration etc. of these documents and if so what was his name. The plaintiff replied that he did not remember. The plaintiff was also asked in his cross-examination as to what was the market value of flat No. 1 of which the plaintiff had already taken possession. The plaintiff replied that he did not know. The plaintiff says that he had purchased the entire building with vacant possession of flats Nos. 1 and 3 for Rs. 1 lac. The plaintiff was specifically asked the following question:--
"Q : Do you agree that the price of Rs. 1 lac for the purchase of entire building with so many tenements and vacant possession of two flats is very much on the lower side and one may describe it as rather ridiculous?
A : In 1985, prices were very low and the price of Rs. 1 lac mutually fixed according to the prices prevalent at the time."
The evasive answers of the plaintiff creates uneasiness in the mind of the Court as the plaintiff is an Advocate. The plaintiff has already filed criminal cases against defendant No. 1 alleging forgery of certain documents. The plaintiff wrote several letters to his bankers. Bank of India, complaining of surreptitious deposit of Rs. 4,000/- in the account of M/s. Pushpak Enterprise without his knowledge and consent on the basis of a pay in slip. I am satisfied that the defendants have failed to prove the impugned document (Exhibit '2') propounded by them. The alleged copy of the alleged agreement dated 21st April 1990 is totally unreliable. No value can be attached thereto in absence of proof of execution of the original. The said copy cannot be considered as a proper secondary evidence. Non-production of the original document is not properly accounted for. It is inexplicable as to how copy of the document produced in evidence does not completely tally with the copy annexed with the affidavit in support of the chamber summons. Why the defendants did not disclose in the affidavit in support of the chamber summons that Annexure 3 to the affidavit in support of the chamber summons was prepared from a copy of the agreement which was handed over to defendant No. 1 by the plaintiff and the original of the said agreement was in custody of the plaintiff? Why the endorsement of the notary and date of notarisation were not incorporated in the copy annexed as Exhibit '3' to the affidavit in support of the chamber summons ? The conduct of the defendants is most suspicious, to say the least. The burden of proof to prove the document propounded by the defendants is completely on the defendants. The defendants have failed to prove the said document. The defendants have thus failed to prove the alleged adjustment. There is considerable suspicion in my mind about the genuineness of the story of adjustment put forward by defendant No. 1 as well as about the nature of the original transaction in view of the evasive answers of the plaintiff and in view of the totally ridiculous consideration fixed for the transaction. Whatever may have been the price in the year 1985, no reasonable person would have agreed to sell the land and the building with vacant possession of two flats for a meagre consideration of Rs. 1 lac. On any view of the matter, the transaction appearing on paper is too ridiculous. The transaction must have been something else than what it was on paper. It is unfortunate that one comes across cases of Advocates indulging in money lending and business of a Builder etc. It is unfortunate that Advocates should enter into transaction shrouded in mystery. Advocates and other public men are expected to behave much more than ordinary citizens, as Caesar's wife i.e. above suspicion, at all times and in all circumstances, not merely in relation to their professional activities but in relation to all their dealings and transactions. Members of the legal profession are not entitled to carry on business as money-lenders or as builders or enter into transaction shrouded in mystery or behave in a suspicious manner. Circumstances of this case are such that one feels completely uneasy about the conduct of both sides. Since, however, the conduct of each of the actors in this episode is blameworthy, I say nothing more. Since the defendants have failed to discharge the burden of proof, the chamber summons shall have to be dismissed.
15. In view of the above finding regarding the alleged agreement or the alleged adjustment having not been proved at all by the judgment debtors, it is not necessary to deal with the two legal questions raised on behalf of the plaintiff, namely (i) that the chamber summons is not maintainable under Order 21 Rule 2 of the Code of Civil Procedure as the alleged agreement propounded by the judgment-debtors is executory in character and (ii) that the chamber summons is barred by law of limitation. However, for the sake of completeness of the record, I propose to deal with these questions as well.
16. The impugned agreement dated 21st April 1990 annexed as Exhibit '3' to the affidavit in support of the chamber summons provides that the unexecuted part of the decree shall stand extinguished if the judgment-debtors made payment of Rupees 85,000/- to the decree-holder on or before 31st December 1990. The said alleged agreement further provides that the plaintiff shall be entitled to execute the decree in full as it is in case the defendants fail and neglect to pay the stipulated balance of Rs. 85,000/- to the plaintiff on or before 31st December 1990, the total stipulated amount being Rs. 89,000. Mr. S. T. Tijoriwala, the learned counsel for the plaintiff, has submitted in his written submissions as well as during the course of his arguments that such an executory agreement does not amount to "adjustment" of the decree within the meaning of the said expression used under Order 21 Rule 2 of the Code as the alleged agreement is merely executory, even if it were true and it was proved. It was observed by Chief Justice Young on behalf of the Full Bench of the Lahore High Court in the case of Udham Singh v. Atma Singh, AIR 1941 Lahore, 149, as under :--
"It appears to me therefore that on a consideration of all these authorities the correct view appears to be that if there is a completed contract, which immediately extinguishes and takes the place of the decree, that contract is an adjustment within the meaning of O.21 R. 2. If, on the other hand, there is only an agreement to adjust the decree on the fulfilment of the condition, then there is no adjustment."
The said Full Bench decision was followed in some of the cases including a case decided by the High Court of Patna in Banko Das v. Oddi Arjun, AIR 1944 Patna, 279. Mr. Tijoriwala's submission is not acceptable to me for two reasons. Firstly, all the compromises pertaining to execution of the decree need not necessarily amount to adjustment of the decree and compromises not amounting to adjustment of the decree within the meaning of the said expression used in Order 21 Rule 2 of the Code can be taken into consideration under Section 47 of the Code. Secondly, the Bombay High Court appears to have taken a different view in the case of Kalyanji Dhana v. Dharamsi Dhana & Co., reported in AIR 1935 Bombay, 303. In this case, Broomfield, J. held that an agreement to accept a portion of the decretal amount to be paid in instalments was an adjustment within the meaning of Order 21 Rule 2 of the Code and if certified as required by law it could be recorded and acted upon, if proved. For the sake of brevity, I would like to refer to the following passage from the commentary of Sir D. F. Mulla on the Code of Civil Procedure, 14th Edition, page 1352, reading as under:--
"An executory contract may be an adjustment. If the decree-holder enters into a fresh contract with the judgment-debtor for the satisfaction of the decree, the contract is legally enforceable and though still executory may amount to an adjustment of the decree. An agreement to accept a portion of the decretal amount to be paid in instalments in full satisfaction is an adjustment."
Cases noted in foot-notes (u) and (v) appended to the above paragraph appear to take a different view than the view which was taken by the Lahore and Patna High Courts.
17. It is of some relevance to refer to the judgment of the Supreme Court in the case of Moti Lal v. Md. Hasan Khan, . In this case, a compromise was arrived at between the judgment-debtor and the decree-holder whereunder the judgment-debtor agreed to pay higher rate of interest in lieu of postponement of the execution of the decree. The High Court of Allahabad held, in the same case when it was before the Full Bench of the High Court , that the decree could not
be varied and the provision made in the compromise for enhanced rate of interest was not executable in execution of the same decree. The Hon'ble Supreme Court overruled the Full Bench decision of the High Court of Allahabad and held that the decree could be compromised by and between the parties and Order 21 Rule 2 and S. 47 of the Code taken together provided a complete code for recognition of compromises relating to execution of decree. It is extremely doubtful, to say the least, as to whether the above referred judgments of the Lahore and Patna High Courts lay down the law correctly. Broadly speaking, a compromise between the judgment-debtor and decree-holder pertaining to the decree can be divided into at least two categories viz.
(i) Compromise amounting to adjustment of the decree. Such a compromise must necessarily be got certified on the decree by making of an application to the Court entitled to execute the decree, which application, if made by the judgment-debtor, must be made within the prescribed period of limitation. If the compromise amounting to adjustment was not so recorded in the manner prescribed, the executing Court shall not be entitled to recognise or give any effect to the adjustment, even if true.
(ii) Compromise of the decree not amounting to adjustment within the parametres of S. 47 of the Code of Civil Procedure. Such compromise can be pleaded as a bar to execution or can be enforced and given effect to by the executing Court u/S. 47 of the Code.
Reference may be made to some such classification approved also by the High Court of Nagpur in the case reported in Meghraj v. Kesarimal, AIR 1948 Nagpur 35. The decided cases referred to in the commentaries indicate another line of thought i.e. fixing the parametres within which the decree can be varied by a compromise. In certain situations, the varied terms can be enforced in the execution of the same decree and in some other situations, the same are liable to be enforced by a separate suit.
18. Mr. Tijoriwala also invited my attention to the judgment of the Supreme Court in the case of M.P. Srivastava v. Mrs Veena, . It was held by the apex Court in this case that the Court executing the decree has plenary powers to determine all questions u/S.47 and O.21, R. 2 of the Code prescribes a special procedure for recording adjustment of a decree or for recording payment of money paid out of Court under any decree in certain situations only. In that case a decree for restitution of conjugal rights was passed by the District Court, Delhi. The wife who was the judgment-debtor under the said decree applied to the District Court for an order that the decree be recorded as satisfied as the husband had refused to receive her in spite of attempts made through friends of the family. It was held by the Court that the application made by the wife was maintainable u/S. 47 of the Code and there was no antithesis between S. 47 and O.21, R. 2 of the Code. This judgment, with respect, does not appear to be relevant for the purpose of considering the question as to whether the defendants could invoke Order 21 Rule 2 of the Code or not and whether relief could be granted to the defendants or not even if the alleged agreement propounded by the defendants i.e. the agreement dated 21st April 1990 was duly proved. It is, therefore, not possible to hold that the chamber summons is misconceived and is not maintainable in law. The chamber summons is maintainable under Order 21 Rule 2 or at any rate u/S. 47 of the Code of Civil Procedure. Since, however, the alleged agreement dated 21st April 1990 is not proved as a fact, the chamber summons is liable to be dismissed on merits.
19. The learned counsel for the plaintiff has contended that this chamber summons is barred by law of limitation and it was not taken out by the defendants within a period of 30 days from the date of the alleged adjustment as required under Art. 125 of the Limitation Act, 1963. The chamber summons in question was registered by the Prothonotary & Senior Master on 25th May 1990. The alleged agreement is dated 21st April 1990. It is an admitted fact that the defendants made an application to this Court for an ex parte ad interim stay on 22nd May 1990 and an ex parte stay was granted by this Court in relation to the execution of decree pertaining to flat No. 3 on that day. It follows that the application was made by the defendants at least on 22nd May, 1990. The limitation must stop running once an application is made to Court. It appears to be the practice of the Court that the chamber summons or notice of motion are registered or got registered with the original side office after the application for ad interim relief is disposed of and not earlier. Thus there is a time lag between the date when the chamber summons or notice of motion is handed over by the party or his Advocate to the Associate in charge for placing the same before the learned Judge entitled to consider the application for ad interim relief and the actual registration of the chamber summons or notice of motion. The question of limitation cannot therefore be decided with reference to the date of registration of the chamber summons when it is proved that the Court was moved for ad-interim relief on basis of the same chamber summons or notice of motion on an earlier date. The date when that application is filed in Court alone is relevant for purpose of limitation. The defendants may have presented the application in the form of unregistered chamber summons and the affidavit in support thereof to the associate concerned on the previous day. The affidavit in support of the chamber summons was affirmed by defendant No. 1 on 15th May, 1990. If the above-referred papers were presented to the proper officer of the Court on 21st May, 1990, the application would be in time even if the same was required to be filed within a period of 30 days from the date of the alleged agreement. It is desirable that the date of presentation of unregistered chamber summons of notice of motion be recorded on the original simultaneously on such presentation. As a matter of fact, it would be still better if the chamber summons or notice of motion is first registered by the party with the office of the prothonotary and Senior Master and then an application is made for ad interim relief on basis of a chamber summons or notice of motion duly registered. The practice prevailing at present is that the Court is moved for ad interim relief on the basis of draft chamber summons or draft notice of motion without endorsement of date of presentation thereof. The practice and procedure followed in this behalf is defective. At any rate, the Prothonotary and Senior Master or some other authorised officer must record the date of presentation of the application immediately on presentation of application to him or her. Having regard to the ordinary course of events and in order not to penalise the defendants in absence of a clear proof, I raise a presumption under S. 114 of Evidence Act that the defendants must have presented" the said application on 21st May 1990 for being considered on 22nd May 1990. Accordingly it is held that on any view of the matter, this chamber summons is not barred by limitation.
20. In light of the above discussion, I pass the following order:--
21. The chamber summons is dismissed with costs. The plaintiff decree-holder shall maintain status quo by not executing the decree in respect of flat No. 3 and by not obtaining conveyance in respect of the suit property for a period of eight weeks from today. Liberty to the parties to apply for directions to withdraw and/or appropriate amounts deposited by them under interim orders passed by this Court after expiry of eight weeks.
Chamber Summons dismissed.
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