Smt. Arti Chaudhary vs Sh. Vinod Kumar & Ors.
2011 Latest Caselaw 200 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 13.01.2011

+           CS(OS) No. 721/2008

SMT. ARTI CHAUDHARY                             .....Plaintiff

                            - versus -

SH. VINOD KUMAR & ORS.                          .....Defendant

Advocates who appeared in this case:
For the Plaintiff:      Mr. K. Sunil, Adv.
For the Defendant:      Mr. Mohit Gupta, Adv. for D-1.
                        Mr. Gagan Gupta, Adv. for D-2.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not?                   No

3. Whether the judgment should be reported                  No
   in Digest?

V.K. JAIN, J. (ORAL)

I.A. No.12863/2008

1. This is an application for deleting the name of

defendant No.2 from the array of defendants. It has been

alleged in the application that there is no privity of contract

between the plaintiff and the applicant and he has

unnecessarily been dragged into this litigation.

2. A perusal of the plaint would show that the case of

the plaintiff is that defendant No.1 represented himself to be

the absolute owner and in possession of northern side

portion measuring 475 sq. yards i.e. half portion of property

No.62 Part of Khasra No.429 situated at Village Masjid

Moth, New Delhi-110049 as per the collaboration agreement

dated 3rd December, 2003 between him and defendant Nos.

3 to 6. It is further alleged in para 3 of the plaint that it was

also represented by defendant No.1 that defendant Nos. 3 to

6 were the absolute owners and in possession of the said

property. Defendant No.1 is alleged to have agreed to sell

first floor flat having an area of 1000 sq. feet consisting of

two bedrooms with attached toilets with drawing cum

dinning, kitchen, front side balcony with one car parking to

the plaintiff. It is further alleged that pursuant to the

agreement to sell and purchase, defendant No.1 received the

amounts mentioned in para 4 of the plaint from the

plaintiff. A sum of Rs. 10 lakhs is stated to have been paid

to defendant No.1 towards the sale consideration and a sum

of Rs.1.51 lakhs towards expenditure. The only allegation

against defendant No.2 is that he was pursuing the

transaction along with defendant No.1 for selling the

property to the plaintiff, had been actively participating in

the sale and he was in collusion and connivance with

defendant No.1. It is also alleged that agreement to sell was

executed in the presence of defendant No.2 and one more

witness.

3. Thus, the plaintiff is not alleging any agreement

between him and defendant No.2. The agreement to sell in

favour of the plaintiff is alleged to have been executed only

by defendant No.1 and defendant Nos. 3 to 6 have been

impleaded as defendants since they are alleged to be the

owners of the property, who entered into a collaboration

agreement with defendant No.1. A perusal of the

collaboration agreement dated 3rd December, 2003 also

would show that this agreement was excited only between

defendant No.1 and defendants 3 to 6. Defendant No.2 is

not a party to this agreement. The agreement to sell and

purchase dated 18th April, 2005 would show that this was

executed only between the plaintiff and defendant No.1 and

defendant No.2 was only a witness and not a party to the

agreement.

4. In a suit for specific performance of an agreement

to sell, the witness to the agreement is neither a necessary

nor a proper party to the suit and no relief against him can

be granted to the plaintiff qua the agreement. In the event

of a decree for specific performance of the agreement to sell

and purchase dated 18 th April, 2005 being passed, it will not

be passed against defendant No.2, who has no right, title or

interest in the property subject matter of the agreement

and, therefore, can transfer no title therein to the plaintiff.

He is also not a proper party to the suit and his presence as

a party is not required to enable the Court to effectually and

completely adjudicate on the dispute involved in this suit. It

will always be open for the plaintiff to summon him as a

witness, if required to prove his case. But, he cannot be

compelled to defend a litigation to which he is neither a

necessary not a proper party.

5. The contention of the learned counsel for the

plaintiff is that the plaintiff has also claimed injunction

against all the defendants, restraining them from assigning,

alienating, transferring the property, subject matter of

agreement with the plaintiff, besides recovery of Rs.1.51

lakhs and damages amounting to Rs.10 lakhs. Since

defendant No.2 does not have any right, title or interest in

the suit property, he is not in a position to assign, transfer,

sell or alienate it or create any third party interest in it.

Hence, no injunction of the nature sought by the plaintiff

can be granted to the plaintiff against him. The amount of

Rs.1.51 lakhs towards expenditure is alleged to have been

paid by the plaintiff to defendant No.1 and not to defendant

No.2. Therefore, this amount cannot be claimed from him.

The damages also can be claimed only from defendant No.1

since the case of the plaintiff is that he has suffered mental

harassment on account of his failure to perform the

agreement with the plaintiff. Thus, this relief also can be

claimed only against defendant No.1 and not against

defendant No.2.

6. For the reasons given in the preceding paragraphs,

the name of defendant No.2 is struck off of the array of

defendants. Amended memo of parties after deleting

defendant No.2 will be filed by the plaintiff within one week.

The application stands disposed of.

CS(OS) No.721/2008

List on 11th May, 2011 for settlement of issues, as

prayed.

(V.K. JAIN) JUDGE

JANUARY 13, 2011 vk/bg