MAGMA LEASING LTD Vs. DEVELOPMENT CONSULTANTS PVT LTD

JUDGEMENT

(1.) This is an application for variation and/or modification of my order dated 14th March, 2005. The entire judgment and order is not sought to be modified, only the portion thereof which speaks of payment of admitted amount by instalment is sought to be modified.

(2.) Mr. A. K. Chatterjee, learned Senior Advocate appearing in support of the application, submits that his client is in tremendous hardship to make any arrangement whatsoever for squaring off the dues in terms of my aforesaid order. The initial payment of 50% of admitted dues has not been paid fully within the time. Only a sum of Rs. 10 lacs out of the 50% amount has been paid, not to speak of payment of instalment of the balance 50% with interest. He contends that enough power has been given to the Court under Section 148 of the Code of Civil Procedure to enlarge the time for making payment. In order to show bona fide his client has already paid a sum of Rs. 10 lacs and further reasonable time should be given to liquidate the entire amount. The grounds for which modification is asked for stated in paragraph 5 are that due to global economic recession the petitioner had very little job in the field of consulting engineering services for the last 4 or 5 years and as such, the petitioner had to face severe cash crunch.

(3.) Mr. A. Mitra, learned Senior Advocate while opposing the application, submits factually that there has been no ground for extending sympathy to this defaulting person. This admitted amount has fallen due on account of non-payment of arrears of rent. The aforesaid order of payment should have been made. By not granting instalment the petitioner has taken fullest advantage of the sympathy extended by the Court and further leniency should not be shown to them. He submits further that the story made out in paragraph 5 has no relevance, rather the petitioner has sufficient means to pay off the debts but they will not do so taking advantage of the indulgence granted by the Court. In the affidavit he has shown materials wherefrom it appears that the petitioner is diverting the fund for other purpose instead of paying the aforesaid admitted amount. So, the conduct of the petitioner does not deserve any leniency or indulgence any more, as after expiry of the time granted by the Court the petitioner has filed this application. He further contends that the Court has no jurisdictional power to grant any instalment further without the consent of the respondent namely the plaintiff and this position of the law will appear from Order 20, Rule 11, sub-rule (2). The aforesaid provision of law is set out hereunder :