S C NAGAVENIKAR Vs. T G NAGESH

JUDGEMENT

(1.) The defendants 1 and 2 have filed the present writ petitions against the order dated 23.11.2017, passed on I.A.No.5 made in O.S.No.9863/2015, rejecting the application filed under Section 151 of the Code of Civil Procedure, by the defendants 1 and 2, to file the written statement by condoning the delay.

(2.) The respondent No.1, who is the plaintiff before the Trial Court, filed O.S.No.9863/2015 for specific performance to enforce the agreement dated 8.7.2013, contending that the defendants 1 to 4 are the owners and defendant No.5 is the builder, who in a joint venture, have developed the property bearing BBMP Katha No.97/104/2A situated at Hennur Village, Hennur Bagalur Main Road, Bengaluru. The defendants have executed an agreement to sell a flat in favour of the plaintiff for a sale consideration of Rs. 56 lakhs and have received a sum of Rs. 30 lakh as advance on the date of the agreement. In spite of repeated requests made, the defendants have failed to execute the sale deed. Hence, the plaintiff has filed suit for specific performance of the agreement or in the alternate to refund the advance amount with 24% interest.

(3.) The defendants 5 and 6 filed written statement. The defendants 1 to 4 have not filed written statement. When the matter was posted for cross-examination of PW1, at that stage, the defendants 1 and 2 filed an application under Section 151 of the Code of Civil Procedure, to permit them to file written statement by condoning the delay, contending that believing the developer's words they could not follow the case regularly and when they enquired about the status of the case from the developer, it was informed that the case is not settled for the reasons best known to him. The defendant No.2 being a senior citizen, due to his age factor and believing the assurance made by the developer, could not file written statement within the time stipulated. Since the developer is not protecting and safeguarding their interest, the defendant No.1 and 2 decided to take their defense. Therefore, in the first week of October, 2017 they obtained no-objection from the previous advocate on record and engaged the present advocate. Thereafter, the written statement was prepared and filed along with the application.