J.L.Gugnani & Anr. vs Krishna Estate & Ors.
2011 Latest Caselaw 6055 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision: 12th December, 2011

+                        RFA(OS) 101/2011

        JL GUGNANI & ANR                    ..... Appellant
                 Through:     Mr.Anil K.Kher, Sr.Advocate with
                              Mr.Ankur Bansal, Advocate and
                              Mr.Kundan Lal Gugnani, Director of
                              appellant No.2

                              versus

        KRISHNA ESTATE & ORS         ..... Respondents
                 Through: Ms.Mukta Sharma and Mr.V.C.Rishi,
                          Advocates

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE S.P.GARG


PRADEEP NANDRAJOG, J. (Oral)

1. As per report of process server, R-1 could not be served. R-2 and R-3 have been served. R-1 is a partnership firm, of which R-2 and R-3 are the partners. Since both partners of R-1 firm are served, it is apparent that even R-1 is served. Be that as it may, counsel as above appear for the respondents and state that the vakalatnama filed by them in the suit on behalf of the respondents who were the defendants in the suit empowers them to appear in all appellate proceedings pertaining to any order or decree passed in the suit.

2. With consent of parties the appeal has been heard for disposal.

3. At the outset, learned senior counsel for the appellants, on instructions from Sh.Kundan Lal Gugnani, a Director of appellant No.2 and the son of appellant No.1, apologizes to this Court for the deplorable conduct of the counsel for the appellants engaged by them in the suit, which conduct being deplorable would be evidenced from the facts which we notice hereinafter; and states that to recompense the defendants for the agony caused due to the inapt, negligent and untruthful handling of the case by the counsel for the appellants in the suit, the appellant No.2 would recompense the respondents `10,00,000/- (Rupees Ten Lakhs) towards exemplary costs which would be paid by the appellants by means of a banker's cheque drawn in the name of the first respondent; and the amount would be tendered within two weeks from today to learned counsel for the respondent.

4. A suit registered as CS(OS) 2100/2002 drafted by Mr.'X' Advocate for the appellants bears the caption as under:-

'Suit for specific performance of agreement to sell dated 10.6.1999;

(in the alternative)

Suit for recovery of `1,40,00,000/- along with interest.'

5. It is pleaded in the plaint that plaintiff No.2 i.e. M/s.Gugnani Estate Pvt. Ltd. is a private limited company, of which Sh.J.L.Gugnani, plaintiff No.1 was the Director and was

duly authorized to sue on behalf of the company. It is pleaded in the plaint that defendant No.1, 'Krishna Estate' is a partnership firm, of which Chaudhary Brahm Singh and Mr.Anil Sharma are partners and thus they were impleaded as defendants No.2 and 3. It is pleaded that the partners of defendant No.1, through a property dealer Mr.Dev Kohli, contacted plaintiff No.1 and offered to sell land measuring 110 bigha situated in village Wazirabad, District Gurgaon Haryana. The deal was finalized and an agreement to sell dated 06.06.1996 was executed, pursuant whereto the plaintiff No.2 paid `1,00,00,000/- to the defendant No.1 towards earnest money-cum advance sale consideration. Pleading that the defendants failed to sell the 110 bigha land agreed to be sold under the agreement to sell dated 06.06.1996, it was pleaded that when the plaintiffs asked the defendants to either perform their obligation under the agreement to sell dated 06.06.1996 or to return the money, the defendants offered to sell 16 bigha and 8 biswa of land comprised in the revenue estate of village Dera Mandi Delhi at the same amount and for which offered that the consideration received under the agreement to sell dated 06.06.1996 be adjusted against the sale price of the said land. It was accordingly pleaded that three identically worded agreements dated 10.06.1996 were executed under which the defendants agreed to sell 16 bigha and 8 biswa land in village Dera Mandi. In the same breathe and in the same paragraph it was thereafter asserted that the date of the new agreement to sell is 06.10.1996.

6. This is the first callousness, inaptitude and inefficiency of the lawyer concerned, who has not even bothered to proof-read paragraph 8 of the plaint and has ignored that the date of the three agreements to sell is 10.06.1999. There is no agreement to sell dated 06.10.1996.

7. Pleading further that the defendants have failed to execute the relevant sale deeds, pertaining to the three agreements dated 10.06.1999, and alleging that the plaintiffs were ready and willing to perform their part of the obligation under the three agreements to sell dated 10.06.1999 specific performance was prayed for; but in the prayer clause it is specifically stated that the agreement to sell, specific performance whereof is claimed, is dated 06.10.1996.

8. However, reference is made in the prayer clause to 16 bigha and 18 biswa land comprised in the revenue estate of village Dera Mandi. This is the second instance of the callousness with which the plaint was drafted.

9. In the prayer clause specific performance sought is of a non-existent agreement to sell dated 06.10.1996. It ignores that in the main body of the plaint case pleaded is that the original agreement dated 06.06.1996 merged into the three subsequent agreements dated 10.06.1999.

10. The documents filed with the plaint would show that the plaintiffs were relying upon, for purposes of specific performance, on the agreements to sell dated 10.06.1999 and had filed the agreement to sell dated 06.06.1996 to show the consideration paid thereunder, which as per the averments in

the plaint, was to be adjusted towards the sale consideration pertaining to the agreements to sell dated 10.06.1999.

11. The plaint was obviously drafted in December 2001, for the reason in the verification clause, the month December is clearly decipherable. After putting fluid thereon, in hand, the month 'June' is written. The date put, in hand, on the plaint is 10.06.2002.

12. The memo of parties along with the plaint would evidence that the plaint was filed in the Registry on 6.7.2002. The stamp of the filing counter put on the memo of parties evidences so.

13. When the suit was filed, court fee paid was only in sum of `6/- and hence an application, under Section 149 read with Section 151 CPC was filed along with the plaint, which was registered as I.A.No.12010/2002. In paragraph 2 of the application it is stated that the plaintiff had applied for to obtain the court fees. Prayer made in the application is to exempt the plaintiff from filing the court fee.

14. This is the next stupid, casual and inapt act of the counsel concerned. Rather than praying that time be suitably extended to pay the court fee, prayer made is that the plaintiff be exempted from filing the court fees.

15. That apart, a false plea, in paragraph two of the application has been made, in that, it is pleaded that the plaintiff had already applied for the court fees to be issued; a fact which is patently false for the reason when the court fees was obtained and filed, the date of application and deposit of the requisite

money with the Collector of Stamps to issue the court fees was 16.11.2002 and the stamp papers were issued on 30.12.2010.

16. The Registry notified various objections, requiring the plaint to be taken back by learned counsel (unlearned counsel) and for being re-filed within the time granted by the Registry, which we note as per Rules of the Delhi High Court is one week.

17. The plaint was re-filed on 19th December 2002. The delay in re-filing the plaint is five months.

18. Since in the plaint it was pleaded that the cause of action accrued to the plaintiffs to sue on 10.06.1999 and there were no averments with respect to the time when the limitation commenced, an objection was taken by the defendants that the suit is barred by limitation inasmuch as the plaint would be deemed to have been properly filed only on 19.12.2002 when the objections were removed and not the date of its original filing i.e. 06.07.2002.

19. There was yet another problem to be faced by the plaintiff due to the continued inapt handling of the plaint by the counsel concerned. I.A.No.12010/2002 filed by the plaintiff seeking exemption from filing the court fee, a prayer which no sane person could have sought for and obviously could not be granted, resulted in the learned Single Judge passing an order on 20.12.2002 requiring the plaintiff to deposit the deficient court fee within two days, which order was complied with only on 03.01.2003. The mischief by the counsel continued since the plaint was re-filed much beyond the time granted by the Registry, the learned counsel filed an application which was

registered as I.A.No.12012/2002 praying that delay in re-filing the appeal be condoned and in which application patently false averments were made by Mr.'X' the counsel under whose signatures the application was filed, that the suit was filed through Mr.S.K.Sahijpal Advocate and was received back with objections but due to renovation work in the office of the said clerk, the file got misplaced. An affidavit of one Tejpal stated to be the clerk of Mr.S.K.Sahijpal Advocate in support of the averments in the application has been filed. Mr.'X' the counsel concerned cannot plead justification that he was wrongly instructed by the client for the reason it is under his signatures that the plaint has been filed and not under the signatures of Mr.S.K.Sahijpal. We are appalled at the pedestrian pleadings by the counsel concerned who is completely unworthy of being called a learned counsel and this is the reason why in the preceding paragraph we have referred to him as the unlearned counsel.

20. The learned Single Judge has held that no law empowers the Court to condone delay in filing a suit and that a suit is properly instituted when objections raised by the Registry are met and that in the instant case, within the week's time granted, since after removing the objections the plaint was not re-instituted, it has to be treated that the suit was instituted as on the date when it was re-filed. With respect to the order dated 20.12.2002 whereunder three days' time was extended to deposit the court fee papers and the same being filed on 03.01.2003 it has been held that the suit would be deemed to

be validly instituted on said date. With respect to the pleadings in the plaint, it has been held that the suit would be barred by limitation. The suit has accordingly been dismissed.

21. It is a most unfortunate state of affairs and the callousness of the counsel is writ large. The sweet ignorance of law of the counsel concerned oozes like a festering puss from a wound. The counsel concerned knows nothing about pleadings or the law of limitation. The counsel does not even realize the necessity to proof-read a plaint. He just thinks that having pocketed the fee and having made the client deposit court fee treating the value of the suit at `1,40,00,000/-, he would be free to let the suit meander.

22. It is settled law that averments in a plaint have to be read meaningfully and not pedantically. If the foundation of a suit is an agreement, the pleadings in the suit take colour from the agreement. The three agreements to sell dated 10.06.1999 clearly envisage, vide clause 5 thereof, that the sellers i.e. the defendants would be responsible to do all acts, deeds and things necessary to execute the sale deeds and relevant would it be to highlight that this would include the necessary no objection certificates from the revenue authorities and thus for purposes of limitation within which the suit had to be filed, the same would reckon when default took place and not from the date of the agreement.

23. A word is needed to be spoken of the pleadings in every plaint which we have come across in the past few days on the subject of limitation. In each and every plaint it is pleaded

that the cause of action to file the suit commenced when an agreement was entered into. If a suit is based on an agreement, the proof of the agreement and its terms would be the cause of action but would not be the point wherefrom limitation has to be computed. The junior members of the bar must understand that the schedule to the Limitation Act, while providing for Periods of Limitation firstly refers to the 'Description of suit' followed thereafter by 'Period of Limitation' followed thereafter by the 'Time from which period begins to run' i.e. for purposes of limitation it is not the bundle of facts i.e. the cause of action which is relevant but the date wherefrom time from which the period of limitation begins to run has to be pleaded.

24. If this would have been clearly pleaded in the plaint, it would have dawned upon the learned Single Judge that time from which period of limitation began to run in the instant case is not the date of the agreements to sell. The same would be a reasonable time after the agreements to sell were executed within which the defendants had to obtain the necessary sale permissions, the period of limitation would commence only after a reasonable period of time and in the absence of any specific pleading on the issue, the reasonable time would become a mix question of fact and law and thus the suit not being liable to be thrown out at the threshold.

25. Accordingly, the appeal is allowed but upon the term as agreed to by learned senior counsel for the plaintiffs, upon payment of cost in sum of `10,00,000/- (Rupees Ten Lakhs only) to be paid within two weeks, the suit stand shall restored for

fresh adjudication and the impugned judgment and decree dated 21.07.2011 is set aside.

PRADEEP NANDRAJOG, J.

S.P.GARG, J.

DECEMBER 12, 2011 mm