Madrasdated High Court · 2009

11.M/s.Nav Bharat Marketing & Trade Ltd., Rep. By its Director Srinivas Vyas.12.M/s.Surya Traders & Inventors Ltd., Rep. By its Director P.D.Sewag.13.M/s.Zip Industries Limited Rep. By its Director A.C.Baskaran... Appellants-vs-1. M/s.Creative Foundations Pvt. Ltd., Rep. By its Executive Director, Harish Khanna.2. M/s.Fiesta Properties Pvt. Ltd. Rep. By its Executive Director, Harish Khanna.3. K.C.Daga (Learned Arbitrator)... RespondentsAppeal against the Order and Decree dated 29.9.2006 made inApplication No.1587 of 2003 in O.P.No.301 of 2001.For Appellants:Mr.Habibullah Basha, S.C.For Mr.Srinath SridevanFor Respondent:Mr.Arvind P. Datarfor M/s.Satish Parasaran.J U D G M E N TD.MURUGESAN, J.This appeal is at the instance of 13 appellants, who are groupof companies. They entered into an agreement of sale with the firstrespondent, viz. M/s.Creative Foundations Pvt. Ltd., for conveyanceof 50% of undivided share of the property situate at No.39, KasturiRanga Road, Teynampet, Chennai and was assigned a right under thedevelopment agreement dated 23.11.1994. An agreement of sale dated23.9.1995 was also entered into by the first respondent with theowners of the property. The agreement of sale was terminated by thefirst respondent and therefore, the appellants filed a suit forspecific performance in C.S.No.192 of 2000 before this Court. Byconsent of parties, the matter was referred to arbitration and anaward was passed on 31.1.2001 directing the first respondent toconvey the property in favour of the appellants. Aggrieved by the https://hcservices.ecourts.gov.in/hcservices/ said award, the first respondent along with the second respondent,viz., M/s.Fiesta Properties Pvt. Ltd., filed O.P.Nos.301 and 302 of2001 before this Court under Section 34 of the Arbitration andConciliation Act (hereinafter referred to as 'the Act').2.During the pendency of the above O.Ps., both the appellantsand the first respondent settled the dispute and the terms of thecompromise was reduced into writing by way of a Memorandum ofCompromise (in short 'MOC') dated 7.11.2002. By the said MOC, it wasagreed that the appellants should file the MOC in this Court withinten days from 7.11.2002. On the ground that the payment as agreedin the MOC was not made by the appellants within the stipulatedperiod, the said period for filing the MOC in Court was extended by 7more days, i.e. till 25.11.2002. The said period was again extendedtill 16.12.2002 and lastly, it was extended till 31.12.2002.Admittedly, the MOC was not filed before this Court on or before31.12.2002 and the same was filed only on 19.3.2003 in ApplicationNo.1587 of 2003 in O.P.No.301 of 2001. The application was opposedon the ground that the appellants herein, who are applicants, did notcome forward to make the payments as envisaged and undertook in theMOC and the application was not filed within the last date extendedperiod, i.e. 31.12.2002. It was also opposed that in terms of OrderXXIII Rule 3 CPC, an application seeking for recording the MOC cannotbe filed in a petition filed under Section 34 of the Act.3.The learned Judge though found that such an application ismaintainable, which finding is not questioned by the respondents byway of any appeal dismissed the application on the ground that "thevery Memorandum of Compromise is questioned as lapsed due to effluxof time and the same was not filed before this Court within the timestipulated and extended time as agreed between the parties". Theabove order is put in issue in this appeal by the appellantsquestioning that portion of the order rejecting the application onthe ground that the MOC is lapsed due to efflux of time and they didnot approach this Court within the time stipulated and extended inthe MOC.4.We have heard Mr.Habibullah Basha, learned senior counselappearing for the appellants and Mr.Arvind P.Datar, learned seniorcounsel appearing for the respondents.5.Mr.Habibullah Basha, learned senior counsel, would submit thatthe finding of the learned Judge that the MOC itself was lapsed iswithout analysing the factual position and is not supported by anyreason. Further, the finding of the learned Judge that theapplication cannot be entertained as it was not filed within theextended period, is also unsustainable in view of the fact that thetime is not the essence of the contract in the given facts of thecase. https://hcservices.ecourts.gov.in/hcservices/

6.Mr.Arvind P.Datar, learned senior counsel, would submit thatno appeal could be entertained as against the order passed in anapplication filed in a pending OP filed under Section 34 of the Act,in view of the provisions of Section 37 (1) (a) and (b) of the Act.The learned senior counsel would submit that only when the Courtpasses the order either granting or refusing to grant any measureunder section 9 or any order setting aside or refusing to set asidean arbitral award under section 34, an appeal shall lie to this Courtand not from any other orders. Hence, the appeal is liable to bedismissed in limine. Insofar as the failure on the part of theappellants to file the MOC within time, the learned senior counselwould submit that it was agreed that the MOC should be filed withinten days from 7.11.2002 in this Court and as the appellants failed tocomply with certain conditions of the MOC, it could not have beenfiled within the said period and therefore, it was extended to givean opportunity to the appellants to make payments finally upto31.12.2002. When the compliance of the terms of the compromise itselfwas disputed and when the MOC was not filed within the stipulatedperiod, the time must be considered to be the essence of the contractand therefore, the learned Judge had rightly rejected theapplication. He would submit that there was no concluded contractand there was lot of disputes regarding the MOC and the contractbeing the contingent contract, not complete and a complex contract,the MOC cannot be recorded by this Court. In this context, he wouldextensively rely upon sections 32, 55 and 63 of the Indian ContractAct. He would further submit that in the event the application isordered, it would amount to granting a decree in respect of aimmovable property without there being any Court fee paid for thesame and on the facts of the case and on the basis of the MOC, even asuit for specific performance cannot be entertained.7.As the issue of maintainability of appeal is raised, wepropose to deal with the said contention at first. It may berelevant to refer Section 37 of the Act, which reads thus:-"37. Appealable orders. - (1) An appeal shall lie from thefollowing orders (and from no others) to the Courtauthorised by law to hear appeals from original decrees ofthe Court passing the order, namely:-(a)granting or refusing to grant any measure under section 9;(b)setting aside or refusing to set aside an arbitral award under section 34.(2) An appeal shall also lie to a Court from an order of thearbitral tribunal-(a) accepting the plea referred to in sub-section (2)or sub-section (3) of section 16; or https://hcservices.ecourts.gov.in/hcservices/ (b) granting or refusing to grant an interim measureunder section 17.(3) No second appeal shall lie from an order passed inappeal under this section, but nothing n this section shallaffect or take away any right to appeal to the SupremeCourt."By sub-section (1) of section 37, generally an appeal will lie froman order granting or refusing to grant any measure under Section 9 oragainst an order setting aside or refusing to set aside an arbitralaward under section 34. Clause (e) of sub-section (1) of section 2defines the Court meaning the principal civil Court of originaljurisdiction in a district and also includes the High Court inexercise of its ordinary original civil jurisdiction. In case, if anorder either granting or refusing to grant any measure under section9 or setting aside or refusing to set aside an arbitral award undersection 34 is made by the principal civil Court of originaljurisdiction, an appeal will lie to the High Court. The question isas to whether the same principle would apply in the event, suchorders are made by the High Court under the very same provisions andwhether an appeal is maintainable before the Division Bench? 8.In the event a statute contemplates a provision of appeal inrespect of certain enumerated orders, there cannot be any difficultyto entertain an appeal against such enumerated orders. In the event,the statute specifically bars a provision of appeal in respect ofspecified orders, again there cannot be any difficulty that no appealcould be entertained. However, the question would be, in the event astatute does not specifically bar a provision of appeal under theLetters Patent, even then an appeal is maintainable before this Courtor not?9.The learned senior counsel appearing for the appellant reliedupon a judgment of the Full Bench of this Court in Loyal TextileMills Ltd. v. Allenberg Cotton Company Ltd. (1993-1-L.W.132) andcontended that an appeal also is maintainable in respect ofinterlocutory order passed in a pending proceeding before this Courtunder the provisions of the Act. On the other hand, the learnedsenior counsel appearing for the respondent relied upon the judgmentof the Supreme Court in P.S.Sathappan v. Andhra Bank Ltd. [(2004) 11SCC 672].10.The Full Bench of this Court in Loyal Textile Mills' case(cited supra), was considering a case where a petition was filedunder section 33 of the Arbitration Act, 1940 for declaration thatthere was no arbitration agreement between the parties and thearbitration proceedings entered into by the respondent was withoutjurisdiction, illegal, ab initio void and non est. The said petition https://hcservices.ecourts.gov.in/hcservices/ was dismissed by a learned single Judge and an appeal was filed underclause 15 of the Letters Patent of this Court. The matter wasreferred to the Full Bench as to the maintainability of the appeal.The Full Bench, after referring to section 39 of the Arbitration Act1940 relating to the provisions of appeal and clause 15 of theLetters Patent of this Court, ultimately held in paragraphs 21 and 22as follows:-"21. The decision in Umaji v. Radhikabai (AIR 1986 S.C.1272) on the nature of the appellate power of the Courtunder Clause 15 of the Letters Patent of this Court thusconcludes that an appeal will lie against the judgment ofthe single Judge of the Court to a Division Bench if theconditions prescribed by clause 15 in this behalf aresatisfied and when there is no specific bar by any statutefor filing such appeal like one under S.100-A of the Codeof Civil Procedure, a provision similar to one in S.39(2)of the Arbitration Act, 1940 and not sub-S.(1) thereof.22. In the context of the origin of the Letters Patentappellate power of this Court and the scope and ambit ofthe appeal against a judgment on the Original Side of theCourt, we have no hesitation in holding that, if all theconditions for an appeal against a judgment under clause 15of the Letters Patent are satisfied and when there is nospecific bar, merely because some other law is providingappeals against certain types of orders and says thatagainst the other orders, there shall be no appeal to aCourt, it cannot be inferred that even if it is appealableunder clause 15 of the Letters Patent, since it is notappealable under S.39(1) of the Arbitration Act, 1940,there shall be no appeal. The Letters Patent law being aspecial law, it shall prevail against any general law, solong as there is no specific abridgement, amendment orrepeal by a competent Legislature. The reference isanswered accordingly."To arrive at the above finding, the Full Bench quoted mainly thejudgment of the Apex Court in Union of India v. Mohindra Supply Co.(AIR 1962 SC 256) and Shah Babulal Khimji v. Jayaben (AIR 1981 SC1786). However, in view of the subsequent judgment of the Apex Courton the same issue rendered after elaborately discussing not only theabove two judgments of the Supreme Court as well as various otherjudgments, we would rather refer to the judgment of the Apex Court inP.S.Sathappan's case, viz., (2004) 11 SCC 672, cited supra.11.In P.S.Sathappan's case, cited supra, the first respondenttherein filed a suit against the appellant therein before theAdditional Subordinate Judge. The said suit was decreed and aexecution petition was filed by the first respondent/decree holder.The validity of auction in the said execution proceedings came to be https://hcservices.ecourts.gov.in/hcservices/ questioned by the appellant therein praying for setting aside theCourt auction sale, which was dismissed by the execution Court,against which the appellant preferred an appeal, which was alsodismissed by the learned single Judge of this Court and a LettersPatent Appeal in terms of Clause 15 of the Letters Patent of thisCourt was filed and the same was dismissed by the Division Benchholding that in terms of Section 104(2) of C.P.C., an appeal againstthe order passed by the appellate Court under Order 43 Rule 1(j)C.P.C. read with Section 104 was not maintainable. The matter wastaken on appeal to the Supreme Court. The Apex Court was consideringthe provision of Sections 100-A and 104 C.P.C. Even on facts, theSupreme Court was considering a case when appeal was filed againstthe order of District Court and further of the learned single Judgeof the High Court. Sitting in appellate jurisdiction, we mayreproduce both the sections as amended by Amendment Act, 2002, whichread thus:"100-A. No further appeal in certain cases. -Nothwithstanding anything contained in any Letters Patentfor any High Court or in any instrument having the force oflaw in any other law for the time being in force, where anyappeal from an original or appellate decree or order isheard and decided by a Single Judge of a High Court, nofurther appeal shall lie from the judgment and decree ofsuch Single Judge."104. Orders from which appeal lies. - (1) An appeal shalllie from the following orders, and save as otherwiseexpressly provided in the body of this Code or by any lawfor the time being in force, from no other orders -Provided that no appeal shall lie against any orderspecified in clause (ff) save on the ground that no order,or an order for the payment of a less amount, ought to havebeen made.(2) No appeal shall lie from any order passed inappeal under this section."Section 100-A specifically restricts an appeal from original orappellate decree or order is heard and decided by a learned SingleJudge of the High Court and no further appeal shall lie from thejudgment and decree notwithstanding anything contained in LettersPatent for any High Court. However, the provisions of Section 104C.P.C. is differently worded. There is no specific exclusion ofLetters Patent Appeals as contemplated under Section 100-A C.P.C.Though much was argued that from the word employed in Section 37,viz., "from any other orders", which should exclude Letters Patent aswell, in our opinion, by that words, the provisions of Letters Patentcannot be considered to be excluded. We may also refer the followingobservations of the Apex Court in P.Sathappan's case, referred supra:- https://hcservices.ecourts.gov.in/hcservices/ " 30. As such if an appeal is expressly saved by Section104(1), sub-section (2) cannot apply to such an appeal.Section 104 has to be read as a whole. Merely reading sub-section (2) by ignoring the saving clause in sub-section(1) would lead to a conflict between the two sub-sections.Read as a whole and on well-established principles ofinterpretation it is clear that sub-section (2) can onlyapply to appeals not saved by sub-section (1) of Section104. The finality provided by sub-section (2) only attachesto orders passed in appeal under Section 104 i.e. thoseorders against which an appeal under “any other law for thetime being in force” is not permitted. Section 104(2) wouldnot thus bar a letters patent appeal. Effect must also begiven to legislative intent of introducing Section 4 CPCand the words “by any law for the time being in force” inSection 104(1). This was done to give effect to theCalcutta, Madras and Bombay views that Section 104 did notbar a Letters Patent. As appeals under “any other law forthe time being in force” undeniably include a letterspatent appeal, such appeals are now specifically saved.Section 104 must be read as a whole and harmoniously. Ifthe intention was to exclude what is specifically saved insub-section (1), then there had to be a specific exclusion.A general exclusion of this nature would not be sufficient.We are not saying that a general exclusion would never ousta letters patent appeal. However, when Section 104(1)specifically saves a letters patent appeal then the onlyway such an appeal could be excluded is by express mentionin Section 104(2) that a letters patent appeal is alsoprohibited. It is for this reason that Section 4 of theCivil Procedure Code provides as follows:“4. Savings.—(1) In the absence of any specific provisionto the contrary, nothing in this Code shall be deemed tolimit or otherwise affect any special or local law now inforce or any special jurisdiction or power conferred, orany special form of procedure prescribed, by or under anyother law for the time being in force.(2) In particular and without prejudice to the generalityof the proposition contained in sub-section (1), nothing inthis Code shall be deemed to limit or otherwise affect anyremedy which a landholder or landlord may have under anylaw for the time being in force for the recovery of rent ofagricultural land from the produce of such land.”As stated hereinabove, a specific exclusion may be clearfrom the words of a statute even though no specificreference is made to Letters Patent. But where there is an https://hcservices.ecourts.gov.in/hcservices/ express saving in the statute/section itself, then generalwords to the effect that “an appeal would not lie” or“order will be final” are not sufficient. In such casesi.e. where there is an express saving, there must be anexpress exclusion. Sub-section (2) of Section 104 does notprovide for any express exclusion. In this contextreference may be made to Section 100-A. The present Section100-A was amended in 2002. The earlier Section 100-A,introduced in 1976, reads as follows:“100-A. No further appeal in certain cases.—Notwithstanding anything contained in any LettersPatent for any High Court or in any other instrumenthaving the force of law or in any other law for thetime being in force, where any appeal from anappellate decree or order is heard and decided by aSingle Judge of a High Court, no further appeal shalllie from the judgment, decision or order of suchSingle Judge in such appeal or from any decree passedin such appeal.”It is thus to be seen that when the legislature wanted toexclude a letters patent appeal it specifically did so. Thewords used in Section 100-A are not by way of abundantcaution. By the Amendment Acts of 1976 and 2002 a specificexclusion is provided as the legislature knew that in theabsence of such words a letters patent appeal would not bebarred. The legislature was aware that it had incorporatedthe saving clause in Section 104(1) and incorporatedSection 4 CPC. Thus now a specific exclusion was provided.After 2002, Section 100-A reads as follows:“100-A. No further appeal in certain cases.—Notwithstanding anything contained in any LettersPatent for any High Court or in any instrument havingthe force of law or in any other law for the timebeing in force, where any appeal from an original orappellate decree or order is heard and decided by aSingle Judge of a High Court, no further appeal shalllie from the judgment and decree of such SingleJudge.”To be noted that here again the legislature has providedfor a specific exclusion. It must be stated that now byvirtue of Section 100-A no letters patent appeal would bemaintainable. However, it is an admitted position that thelaw which would prevail would be the law at the relevanttime. At the relevant time neither Section 100-A norSection 104(2) barred a letters patent appeal." https://hcservices.ecourts.gov.in/hcservices/ In Gulab Bai v. Puniya, (AIR 1966 SC 637), the Apex Court whileconsidering the provisions of Section 47 and 48 of the Guardians andWards Act, observed that the provisions of appeal under LettersPatent cannot be excluded by implication. In the same judgment,while considering the scope of Section104 (1) C.P.C., the Apex Courtfurther held that the right to appeal against judgments under theLetters Patent was not affected by Section 104(1) C.P.C.12.In this context, we may also refer to the observations of theApex Court in paragraph 22 of the decision in P.S.Sathappan's case,supra, as follows:-"22. Thus the unanimous view of all courts till 1996 wasthat Section 104(1) CPC specifically saved letters patentappeals and the bar under Section 104(2) did not apply toletters patent appeals. The view has been that a letterspatent appeal cannot be ousted by implication but the rightof an appeal under the Letters Patent can be taken away byan express provision in an appropriate legislation."Then, in the very same judgment in paragraph 96, the Apex Court hasheld as follows:-"96.To put it pithily, if there is a conflict between anappeal under the Code and the Letters Patent both theprovisions have to be read harmoniously so as to save anappeal which is not otherwise provided for. By way ofexample, it may be noticed that when an appeal ismaintainable under the Letters Patent by reason of its beinga "judgment" within the meaning of Letters Patent, such anappeal would be maintainable despite the fact that noprovision therefor has been made in Section 104 thereof. Ina case, however, where an appeal may be maintainable bothunder sub-section (1) of Section 104 as also the LettersPatent a difficulty may arise to the extent that where theorder sought to be appealed against is not a "judgment"whether Order 43 Rule 1 would come into play. But if boththe provisions are read together, it may be held that Order43 Rule 1 provides for an additional right. So construed, aharmonious meaning can be attributed both to Section 104 ofthe Code and to Letters Patent but we have no doubt in ourmind that if a right of appeal is availed under sub-section(1) of Section 104 of the Code, no further appeal would bemaintainable."13.Even in a case, like Section 104(1) C.P.C., which employs thewords "save as otherwise expressly provided in the body of this Codeor by any law for the time being in force", the Apex Court had foundan appeal would be maintainable under Clause 15 of the Letters Patent https://hcservices.ecourts.gov.in/hcservices/ as against orders passed under Section 104(1) C.P.C. Section 37 ofthe Act has merely stated that an appeal shall lie from the followingorders "(and from no others)", and it does not in our opinion, meanand exclude the provisions of appeal under the Letters Patent orthere cannot be an exclusion of Letters Patent appeal by implication.Hence, for all these reasons, we find no merit in the contention ofthe respondent that the appeal under Clause 15 of the Letters Patentis not maintainable.14.This takes us to the next contention whether the applicationfor recording the MOC could be entertained after the last date agreedto between the parties. It is not in dispute that the appellantought to have filed an application to record the MOC in the Court onor before 31.12.2002 and in fact, such application was not filed, asit was filed only on 19.3.2003. Incidentally, we may also refer tothe argument of Mr.Arvind P.Datar, learned senior counsel, that ifsuch is maintainable, it should have been filed with a petition forcondonation of delay. It is the contention of Mr.Habibullah Basha,learned senior counsel for the appellants that on the facts of thiscase, the time is not the essence of the contract and therefore, theapplication should have been entertained. Per contra, it is thecontention of Mr.Arvind P.Datar, learned senior counsel for therespondents that the application cannot be entertained as it wasagreed by the parties that it should be filed on or before31.12.2002. 15.To determine whether the time is the essence of the contract,the intention of the parties must be considered. The questionrequired to be considered is with regard to the factual situationobtaining in each case. In M/s.Damodar Ropeways & Constructions Co.(P) Ltd. v. Christoper Martin Desgranges Martin & Others, (JT 1989(4) SC 53), where the parties decided to file an application forcompromise before the Court pending appeal beyond the agreed time,the Apex Court observed in paragraph 6 as follows:-"6.The delay in filing the compromise petition in Court hasbeen attempted to be explained on behalf of the School andthe builder. If the compromise is genuine and lawful, thedelay in presentation in Court could at the most, if at all,be in the realm of equity and would not be otherwisematerial. The resolution of the Board of the Association of11th September, 1985, extracted above is a complete answerto the second ground as it clarifies the position that allparties had agreed to the compromise and it was intended tobe presented before this Court for permission to enter intocompromise. Mr.Anjan Dey had been authorised to associatehimself for the purpose. It is not the contention of theAssociation that the whole or any part of the agreement isunlawful nor is it the contention of any of the parties thatthe petition has not been signed by him or them. The https://hcservices.ecourts.gov.in/hcservices/ compromise is, therefore, in accordance with the provisionsof Order XXIII, rule 3 of the Code of Civil Procedure andcan be acted upon."16.A similar question came up before the Apex Court in M/s.HindConstruction Contractors v. State of Maharashtra (AIR 1979 SC 720),as to whether the time is the essence of the contract in respect ofimmovable properties and it has been held in paragraph 8 as follows:-"8.It will be clear from the aforesaid statement of lawthat even where the parties have expressly provided thattime is of the essence of the contract such a stipulationwill have to be read along with other provisions of thecontract and such other provisions may, on construction ofthe contract, exclude the inference that the completion ofthe work by a particular date was intended to befundamental; for instance, if the contract were to includeclauses providing for extension of time in certaincontingencies or for payment of fine or penalty for everyday or week the work undertaken remains unfinished on theexpiry of the time provided in the contract such clauseswould be construed as rendering ineffective the expressprovision relating to the time being of the essence of thecontract. ..."In Panchanan Dhara v. Monmatha Nath Maity, (2006) 5 SCC 340, theApex Court again considered the question as to whether the time isthe essence of the contract for sale of immovable property and heldin paragraph 21 that the time is not the essence of the contract.Similar view has been taken by a Constitution Bench in Chandrani v.Kamalrani (1993) 1 SCC 519, where the Apex Court has observed thatin a sale of immovable property, time is not the essence of thecontract unless contrary intention is expressed in unequivocallanguage. We may also refer yet another judgment of the Apex Courtin Mc.Dermolt International Inc. v. Burn Standard Co. Ltd. (2006) 11SCC 181 for the same proposition of law.17.A careful reading of the above judgments would show that thetime is not the essence of the contract as depend upon the intentionof the parties and the express provision made in the contract forcompliance within the stipulated time. On the facts of this case,though the MOC ought to have been filed in the Court on or before7.11.2002, the said date was not strictly adhered to by both theparties. The said time was extended upto 25.11.2002. Again theparties have decided to extend the time till 6.12.2002 and thereafteragain till 31.12.2002. It is not as if that the parties haveunderstood and agreed that the time prescribed in the contract shouldbe strictly adhered to, as the intention of the parties are clearthat the time could be extended by mutual consent. To determinewhether the time is the essence of the contract in such situation, https://hcservices.ecourts.gov.in/hcservices/ the intention of the parties to extend the said time is relevant.There is no agreement unequivocally stipulating the time beyond whichthe agreement could not be enforced. In the absence of suchagreement as understood by the parties, in the given set of facts, inour opinion, the time cannot be considered to be the essence of thecontract for filing MOC in the Court. 18.In this context, we may also refer that the parties have notdisputed the terms of the contract and equally the genuineness andlawfulness of the contract are also not disputed. The dispute isonly with reference to whether the terms are complied with or not.Hence, the finding of the learned Judge that by efflux of time, theMOC cannot be presented in Court is unsustainable.The finding ofthe learned Judge that the contract itself is lapsed is also notsupported by any reason. Hence, the order under appeal is liable tobe set aside.19.Though Mr.Arvind P.Datar, learned senior counsel, would argueon the merits by referring to various provisions of the IndianContract Act relating to the contingent contract, the contract is notcomplete and it is a complex contract and that there was a default onthe part of the appellants and therefore, the MOC cannot be enforcedin the eye of law, we are not inclined to go into that question asthose were neither raised nor argued before the learned single Judgefor consideration. Similarly, the contentions that in the event theapplication is ordered, it would amount to granting a decree inrespect of a immovable property without there being any Court feepaid for the same and on the facts of the case and on the basis ofthe MOC, even a suit for specific performance cannot be entertainedwere also neither raised nor considered by the learned Judge. Hence,all those issues are left open for consideration by the learned Judgeand both the parties are at liberty to canvass their respectivecontentions. 20.With the above observations, the appeal is allowed and theorder under appeal is set aside. The matter is remitted back to thelearned single Judge to entertain the application and consider thesame on its merits without reference to the fact that the applicationwas not filed in time. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarsra https://hcservices.ecourts.gov.in/hcservices/ ToThe Sub Assistant Registrar,Original Side,High Court, Madras.1 cc To Mr.Srinath Sridevan, Advocate, SR.20040.1 cc To Mr.Satishparasaran, Advocate, SR.19858.O.S.A.No.260 of 2007 CU(CO)RVL 09.06.2009