Virendra Sahlot vs Gurvir Inder Singh And Anr
2011 Latest Caselaw 4711 Del

*                HIGH COURT OF DELHI: NEW DELHI

                                         Judgment reserved on:        14.07.2011

%                                        Judgment pronounced on: 23.09.2011

+            I.A. No.17402/2010 in CS(OS) No.1455/2005


VIRENDRA SAHLOT                                                ..... Plaintiff
               Through                   Mr. Anil Airi, Adv. with
                                         Mr. Arun Kumar, Adv.

                           versus


GURVIR INDER SINGH AND ANR                   ..... Defendants
                Through Mr. P.N. Bhan, Adv. for D-1.
                        Mr. S.C. Rana, Adv. for D-2.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?                                        Yes

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

MANMOHAN SINGH, J.

1. By this order, I shall dispose of the present application filed

by the plaintiff under Order VI, Rule 16 read with Section 151 CPC

praying that the written statement to the amended plaint, filed by

defendant No.2 be struck off from the record.

I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.1 of 7

2. The present suit is for specific performance of the

Memorandum of Understanding/Agreement to Sell dated 13.09.2005 for

sale of immoveable property. After the institution of this suit on

20.10.2005, the parties entered into a compromise. Thereafter, the

agreement dated 13.09.2005 was amended and an agreement in

continuation of the earlier agreement titled as "Amended Memorandum

of Understanding" was executed on 28.03.2006.

3. It is stated by the plaintiff that as per the terms of the

agreement to sell, the plaintiff had filed an application No.2775 of 2007

under Order VI, Rule 17 CPC seeking amendment of the plaint, to

incorporate therein the subsequent agreement wherein the sale

consideration was enhanced. The said application of the plaintiff was

allowed by this Court vide order dated 21.07.2008.

4. The amended plaint was taken on record and the defendants

were directed to file their written statements to the amended plaint. After

some time, defendant No.2 stopped appearing before the Court and was

proceeded ex-parte and the counter-claim filed by him was also

dismissed in default on 11.05.2009. In April, 2010, after a lapse of

almost a year, defendant No.2 filed an application under Order IX, Rule

7 CPC for setting aside the ex-parte order dated 11.05.2009 which was

I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.2 of 7 allowed on 29.10.2010 with liberty to defendant No.2 to file his written

statement.

5. In view of order dated 29.10.2010, written statement was

filed by the defendant No.2 on 09.11.2010. It is stated by the plaintiff in

the present application that in the garb of filing a written statement to the

amended plaint, the defendant No.2 has changed his pleadings and has

taken an entirely different stand from his earlier written statement and

without the permission of the court, he has pleaded new facts and

withdrawn various categorical admissions. Further, it is stated that the

defendant No.2 has been given an opportunity to file a written statement

to the amended plaint and not a permission to amend his written

statement and doing so, amounts to misuse of the liberty granted by

court. Therefore, the written statement filed by the defendant No.2 is

liable to be struck off.

6. In his reply, the defendant No2 has stated that the present

application is liable to be dismissed as the plaintiff neither mentioned

anywhere in the application as what stand of defence has been changed

or what admissions have been withdrawn nor has he mentioned defense

taken earlier has been withdrawn. It is stated by the defendant No.2 that

earlier to the present written statement, a reply on merit filed by the

defendant No.2 along with the counter claim cannot be taken as a written

I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.3 of 7 statement under the law as all the points taken in the said reply are duly

mentioned in written statement to the amended plaint but not explained

properly earlier as it was different and filed by the defendant No.2

himself and now the defendant No.2 has merely elaborated the points

raised earlier which would not under any circumstance change the

nature of suit nor any admission made earlier has been withdrawn. The

defence of fraud nowhere changes the nature of suit. It had already

taken by the defendant No.2 about cheating and duress in the earlier

reply. Further, it is stated that as the earlier reply filed by defendant No.2

in person without any legal advice the same cannot be taken and read as

a proper written statement.

7. It is stated by the defendant No.2, that at the time of dismissal

of the counter claim of the defendant No.2 vide order dated 11.05.2009,

the said reply on merits had not been considered as written statement.

The plaintiff himself had never accepted the said reply on merits as a

written statement nor pointed out that the said reply on merits by the

defendant No.2 be taken as written statement to expedite the

proceedings. Thus, at this stage the plaintiff cannot be allowed to raise

these frivolous grounds by way of the present application which is filed

only in order to delay the proceedings.

I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.4 of 7

8. I have gone through the amended plaint as well as the written

statement filed thereto by defendant No.2. It appears from the record that

no proper written statement was filed by defendant No.2 as per rules.

Apparently, the same was drafted by defendant No.2 himself and also

signed by him and not through his counsel. However, therein it was

stated that the agreements were signed under coercion and duress, and in

fact, he had no understanding and signed the papers because of good

relationship with the plaintiff. He was in duress because his daughter

was kidnapped. Therefore, it was alleged that all the contracts are null

and void being signed under duress.

9. In the entire application filed by the plaintiff under Order VI,

Rule 16 CPC, nowhere the plaintiff has given the detail about the

inconsistencies about the stand taken by defendant No.2 in the amended

written statement and also to withdraw his earlier admission made by

him. After filing the reply, the plaintiff filing the rejoinder wherein the

following details are given:-

a) That defendant No.2 earlier admitted the execution of the documents pertaining to the suit property and entered into the amended Memorandum of Understanding with the plaintiff on 28.03.2006. However, now the defendants are resiling from the said compromise and are trying to take the advantage of their own wrong.

I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.5 of 7

b) In the amended written statement, defendant No.2 has not denied the execution of the fresh agreement dated 28.03.2006. In fact, defendant No.2 has stated that the said Memorandum of Understanding is void and reasons for the same are given which were earlier not mentioned by defendant No.2. It was also clarified in the written statement that the advance money of ` 12,50,000/- paid by the plaintiff in terms of the Memorandum of Understanding by cheque No.511663 dated 28.03.2006 drawn on Standard Chartered Bank has been dishonoured, therefore, the said circumstances gave right to defendant No.2 to terminate the contract.

10. In case both the written statements are read together, one is

not able to find any much difference except that the earlier reply-cum-

counter claim was drafted and signed by defendant No.2 himself which

was not as per the Rules, and the amended written statement is filed by

his counsel as per the Rules and the defence taken in the written

statement has been elaborated by the stand already taken by defendant

No.2. The present case is not a case where one can say that defendant

No.2 has changed the entire stand as alleged by the plaintiff or has

withdrawn any admission except that defendant No.2 has mentioned

about the ex parte order passed by this Court in suit No.3084/1991 and

other proceedings which, according to defendant No.2, were within the

knowledge of the plaintiff. Therefore, I am of the view that there is no

I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.6 of 7 harm if the written statement filed by defendant No.2 is taken on the

record.

11. In fact, it is the plaintiff who has amended the plaint after the

execution of the Memorandum of Understanding and the defendant No.2

was entitled to raise his defence in the written statement thereto. As far

as the present application is concerned, the same is filed on 21.12.2010

when the admission/denial of the documents was also completed and the

matter was put up before the Court for further directions. I am of the

view that in case the plaintiff has any grievance about the facts stated in

the amended written statement, he may raise the objections in the

replication. As far as the present application is concerned, the same is

without any merit and is accordingly dismissed. In the interest of justice,

the plaintiff is granted four weeks' time to file the replication to the

amended written statement.

12. List the matter before the Joint Registrar for admission/denial

of the documents, on 08.12.2011. Thereafter, the same may be listed

before the Court for framing of issues when the direction for trial would

also be given.

MANMOHAN SINGH, J SEPTEMBER 23, 2011 ka

I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.7 of 7