Saroj Bala Yadav vs Ved Prakash Yadav
2009 Latest Caselaw 1548 Del

*            HIGH COURT OF DELHI : NEW DELHI

+                     I.A. Nos. 1457/2008 and 4206/2009 in CS(OS)
                      No. 1148/2005

%                     Judgment reserved on : 18th April, 2009

                      Judgment pronounced on : 21st April, 2009

SAROJ BALA YADAV                ..... Plaintiff
        Through Mr. Ramesh Saraf, Adv.

                                 versus

VED PARKASH YADAV                ..... Defendant
       Through Mr. L.S. Chaudhary with Mr. Ajay
               Chaudhary, Advs.


CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                 No

2. To be referred to Reporter or not?                              No

3. Whether the judgment should be reported                         Yes
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I shall dispose of two applications filed by the

Plaintiff under Order 6 Rule 17 read with Section 151 CPC and other

under Order 12 Rule 6 read with Section 151 CPC.

2. The case of the Plaintiff is that the Defendant who is the owner

of the property built on Plot No. 43 measuring 150 sq.yds situate at

Krishan Kunj Colony, Laxmi Nagar, Delhi entered into an agreement

dated 5th March, 2004 with the plaintiff for sale of the said property for

a total consideration of Rs.29 lakhs. The defendant duly received a sum

of Rs. 9 lakhs in cash from the plaintiff and acknowledgement of the

same was made in the Agreement. The balance consideration of Rs.20

lakhs was to be made by the Plaintiff on or before 30 th December, 2004.

The terms and conditions of the agreement are mentioned in Para 5 of

the plaint. It is the further case of the Plaintiff that the defendant with

the malafide intention to betray and grab the advance amount failed to

perform his part of the agreement and also failed to receive the balance

consideration which was offered by the plaintiff with a request to

complete the sale. Various requests were made by the Plaintiff to the

Defendant in this regard. The details of the same are mentioned in Paras

8 to 11 of the plaint.

3. In view of the above said facts and circumstances, the plaintiff

filed a suit for specific performance of the Agreement to Sell before this

court on 1st July, 2005. The said suit came up before the court with the

interim application being I.A.No.6358/05 when summons and notices

were issued to the defendant subject to deposit of the balance amount of

sale consideration and an interim order was passed restraining the

defendant from selling, transferring or alienating the property in

question.

4. The written statement was filed by the defendant raising the

main defense that the suit is false, frivolous and baseless. Another

defense raised was that the defendant never entered into an agreement

with the plaintiff for sale of the property in question. The defendant has

given various explanations for receiving the part amount in Para 1 of the

preliminary objections of the written statement.

5. At the time of admission/denial of documents the defendant

has admitted his signatures in the Agreement. However, later on, the

defendant filed an application being I.A.No.6377/07 praying for striking

out the said admission. The said application was dismissed with costs

and the interim order was also confirmed by order dated 5 th February,

2008. Prior to the said order, the plaintiff filed an application being

I.A.No.1457/08 for amendment of Para 10 of the plaint on the ground

that the Plaintiff prior to the filing of the suit served a legal notice dated

26th April, 2005 on the defendant under registered post as well as by

certificate of posting calling upon the defendant to perform his part of

the contract and accept the balance sale consideration. It is mentioned

that the said factum of notice was not mentioned in the plaint due to

oversight and bonafide mistake though the copy of the notice was

annexed with the plaint.

6. Another application being I.A.No.4206/09 has been filed by

the Plaintiff under Order 12 Rule 6 CPC stating that during the course of

admission/denial of the documents, the defendant has admitted his

signatures on the Agreement to Sell, therefore, on the basis of the said

admission, the suit deserves to be decreed under the provisions of Order

12 Rule 6 CPC.

7. Firstly, I shall deal with the application seeking amendment

under Order 6Rule 17 CPC filed by the plaintiff. It is not in dispute that

along with the plaint, the plaintiff also attached a copy of the notice

dated 26th April, 2005 and by way of the present application the Plaintiff

merely wants to add the following sub para to Para 10 of the plaint:-

"Therefore, the plaintiff got served a legal notice dated 26th April, 2005 on the defendant under registered AD post as well as by certificate of posting, through her Advocate calling upon the defendant to perform his part of the agreement dated 5th March, 2004 and accept the balance consideration within 7 days of the receipt of the said notice. The said notice was duly served on the defendant but he despite of receipt of the said notice did not perform his part of the contract. Copy of the said notice is attached to the plaint."

8. Since the factum of agreement dated 5th March, 2004 was

already disclosed in the plaint and a copy of the legal notice was also

filed with the plaint, only averments regarding sending of the notice

was not made. It is contended that since the issues in the matter are yet

to be framed, now, there is no harm to the defendant if the amendment

sought by the plaintiff is allowed by adding the sub para to Para 10 of

the plaint.

9. Counsel for the defendant has argued that the suit has been

filed in the month of July, 2005 and the present application has been

filed after the expiry of about two years. He further referred order dated

2nd December, 2008 wherein some prima facie observations have been

made in respect of amendment, therefore, the application is liable to be

dismissed. The further contention is that since copy of the notice has

already been filed with the plaint, therefore, the amendment is not

necessary.

10. I have gone through the pleadings of the parties and I feel that

the plaintiff merely wants to incorporate only the factum of issuance of

notice to the defendant. Although this court feels that there is a delay on

the part of the plaintiff in filing of the application but in the interests of

justice and equity and as per well settled law on amendment, the same is

allowed subject to costs of Rs.10,000/- to be paid by the plaintiff to the

defendant within four weeks from today.

11. As regards another application under Order 12 Rule 6 CPC

filed by the Plaintiff is concerned, no reply to the said application has

been filed by the defendant. Learned counsel for the defendant has

argued the said application orally. In view of the specific denial in the

written statement that the defendant has not entered into an agreement

with the plaintiff, merely the admission on the part of the defendant in

admitting the signatures on the agreement is of no consequence as the

defendant later on had filed an application for striking out the said

admission which, however, was dismissed.

12. Further, it appears that during the course of admission/denial

of the documents, the defendant has made the remark on the Agreement

to Sell that "only the signatures are admitted and the contents are

denied." As such the provisions of Order 12 Rule 6 CPC cannot be

invoked in the matter on the basis of the above said endorsement made

by the defendant and no decree can be passed in the facts and

circumstances explained. This court is of the opinion that it is a matter

of trial and the application filed by the Plaintiff is not maintainable.

Thus, the application filed by the Plaintiff can not be accepted and the

same is dismissed with costs of Rs.5,000/- which shall be paid by the

plaintiff to the defendant within four weeks from today. Both the

applications are disposed of accordingly.

CS(OS) 1148/2005

List this matter on 17th August, 2009 for framing of issues as

well as for giving directions for trial.

MANMOHAN SINGH, J.

April     21, 2009
SD