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Delhi HC allows recall of consent order after appellant complains of connectivity issues; but meritless appeal costs him, literally

Aditi Singh

The Delhi High Court has imposed costs of Rs 1 lakh on an appellant who sought to recall a consent order passed in his appeal on the ground that connectivity issues during the video conference hearing prevented him from hearing the complete order (Sanjay Saxena v. Vikram Vasudev).

The order was passed by a Single Judge Bench of justice Rekha Palli.

The appellant, one Sanjay Saxena, had preferred an appeal against a judgment and decree passed by the trial court against him.

The dispute pertained to the payment of arrears of rent by the appellant to his landlord, Vikram Vasudev.

The appeal was disposed of by the High Court by a consent order.

As per the consent order, after a lengthy hearing, the appellant had undertaken to vacate the premises subject to payment of arrears of rent of Rs 30 lakh.

However, soon after, the appellant moved an application to recall the consent order on the ground that the order had wrongly recorded that he was giving up his plea of having made a cash payment of Rs 30 lakh to the respondent.

This discrepancy, the appellant claimed, was owing to a network connectivity issue in the last few minutes of the hearing. It was claimed that when this part of the order was being dictated, the appellant and his counsel were unable to hear the same.

The appellant also stated that despite his undertaking to pay a sum of Rs 10 lakh to the respondent, he was not in a position to honour the same till June 30, 2020.

The Court, at the outset, stated that the recall application was “wholly misconceived and frivolous” and deserved to be rejected with exemplary costs.

However, in view of the appellant’s plea that connectivity issues during the video conference hearing prevented him from hearing the complete order, the Court deemed it appropriate to recall the consent order.

It, nonethless, proceeded to pass an order on merits in the main appeal “to discourage unscrupulous litigants like the appellant from circumventing judicial orders by abusing the process of law”.

The Court noted that it was an admitted position that the appellant had defaulted in paying rent with effect from March 2019, on account of huge financial losses suffered by him in his business and the heavy expenditure incurred by him while unsuccessfully contesting the Lok Sabha elections.

The Court added that before the trial court, after failing to appear initially, the appellant offered to pay the arrears of rent of Rs 30 lakh in three monthly instalments of Rs 10 lakh each.

However, the cheques that were furnished towards the first installemnt were dishonoured.

“Such was the conduct of the appellant before the Trial Court..the appellant despite being given opportunities to pay the arrears of rent as agreed by him, had neither paid the arrears nor filed a written statement within the stipulated time...”

The Court further observed that in spite of the decree, the appellant did not vacate the premises and the respondent had to institute execution proceedings.

During the execution proceedings, the appellant once again prayed for time to clear the rent arrears and handed over a cheque of Rs 10 lakh, but this was also dishonoured, the Court said.

Thereafter, the appellant moved the High Court in appeal against the decree, with an application seeking condonation of 43 days' delay.

The Court pointed out that in his appeal filed before the Court, the appellant took a vague plea that he had paid a sum of Rs 30 lakh to the respondent in cash.

After the same was vehemently denied by the respondent, it was revealed that no such cash payment was ever made and the appellant himself gave up the plea.

The same was recorded in the consent order, the Court clarified.

After examining the judgment of the trial court and all the circumstances leading up to the application for recall, the Court opined that the appeal was meritless, both in law and facts.

Observing that the appellant was an admitted and continued defaulter, who not only owed a huge sum to the respondent but also continued to occupy the suit premises, the Court stated that the trial court was fully justified in decreeing the suit in favour of the respondent.

"The appellant has already stalled execution proceedings instituted by the respondent on one pretext or the other, for the last many months, and does not deserve to be shown any further indulgence."

"I would be remiss not to mention that when this application was listed before this court for the first time on 18.05.2020, the learned counsel for the appellant failed to join the proceedings being granted repeated pass overs and specific telephonic messages from the court master. In the interest of justice, the matter was adjourned for today...Today, after lengthy arguments were addressed by the learned counsel for the appellant, when this judgment was being dictated in the presence of both counsel through video conferencing, learned counsel for the appellant was curiously found missing in the last few minutes. As a result, the dictation was deferred for a few minutes, in wait for the learned counsel for the appellant to reconnect with the proceedings. However, the counsel failed to do so, despite repeated telephonic conversations with the Court Master and the learned counsel for the respondent."
Delhi High Court

Accoridngly, while the recall application was allowed, the appeal was dismissed with costs of Rs 1 lakh.

Read the Order:

Sanjay Saxena vs Vikram Vasudev.pdf
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