Smt. Gurcharan Grewal & Anr. vs Dr. (Mrs.) Adarsh Bajaj & Anr.
2012 Latest Caselaw 2395 Del

*            HIGH COURT OF DELHI: NEW DELHI

%                                            Judgment decided on: 13.04.2012

+            I.A. No.15982/2010 In C.S. (OS) No.1874/2009

Smt. Gurcharan Grewal & Anr                      .......Plaintiffs
                    Through: Mr. Sunil Malhotra, Adv. with
                             Mr. Satish Sahai, Adv.

                           Versus

Dr. (Mrs.) Adarsh Bajaj & Anr.                   .......Defendants
                      Through: Mr. B.L. Chawla, Adv.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiffs have filed the instant suit for recovery of possession and mesne profit/damages for use and occupation against the defendants in respect of the flat situated at the first floor of the property bearing No.D-33, Rajouri Garden, New Delhi-110027 (hereinafter referred to as the „suit property‟). In the suit, issues are yet to be framed and written statement filed by the defendants is already on record.

2. There was an agreement dated 14.4.2004 for sale of Portion „B‟ Flat on First Floor of property No.D-33, Rajouri Garden, New Delhi- 1100 27 in favour of the defendants for a total consideration of Rs.45,00,000/- by the plaintiffs.

3. During the pendency of the suit, the defendants filed an application under Order VI, Rule 17 read with Section 151 of Code of Civil

Procedure, 1908 for amendment of their written statement.

4. The reasons given by the defendants is that after filing their written statement on 03.02.2010, on the basis of a second opinion from another counsel, they were informed that certain legal objections to the maintainability of the suit and the counter claim have not been raised in their written statement, therefore, the present application seeking leave to amend their written statement has been filed.

5. By way of the proposed amendment, the defendants seek to add the following preliminary objections in their written statement after the existing preliminary objections:

"(g) That the suit is hit by the doctrine of part performance, as contained in Section 53-A of the Transfer of property Act, 1882, and as such the same is liable to be dismissed by this Hon‟ble Court.

(h) That the suit in the present form is not maintainable as the same is hit by the provisions of Sections 15 and 27 of the Specific Relief Act, 1963, and as such it is liable to be dismissed with cost."

6. The defendants also seek to set up the following counter claim against the claim of the plaintiffs in their written statement:

"(1) That the defendants entered into an agreement dated 04-04-2004/14-04-2004 with the plaintiffs, through their attorneys for purchase of front portion of flat on the first floor (towards service lane) comprising of four bedrooms, drawing dining, kitchen, latrine, bathroom, out of the property No.D-33, Rajouri Garden, New Delhi for a total consideration of Rs.45,00,000/- (Rupees forty five lacs only), and paid a sum of Rs.15,00,000/- (Rupees fifteen lacs only) to them as an advance/earnest money, on the terms and conditions given in the Agreement to Sell and Purchase and Receipt dated 10-04-2004.

The balance amount of sale consideration of Rs. Rs.30,00,000/- (Rupees thirty lacs only) was required to be paid by the defendants to the plaintiffs at the time of registration of the sale documents of the said property in their favour.

(2) That the defendants were given the possession of the aforesaid property by the attorneys of the plaintiffs on 14-04- 2004 in part performance of the contract dated 04-04-2004/14- 04-2004, and they continue to be in possession of the same in part performance of the contract, and the defendants have made lot of improvements in the said property at their cost and expenses after taking possession of the same in part performance of the contract, and they have paid a sum of Rs.15,00,000/- to the plaintiffs as an advance/earnest money and they are willing to perform their part of the contract and pay the balance amount of ale consideration of Rs.30,00,000/- to the plaintiffs in terms of the contract.

(3) That after receiving the possession of the above property from the plaintiffs, through their attorneys on 14-04-2004, it was revealed and known to the defendants that there was a property dispute pending between the plaintiffs and Smt. Jasbir Cheema in Court, which was not disclosed to them by the plaintiffs and their attorneys at the time of negotiations for sale of the property or at the time of contract. It was assured by the plaintiff and their attorneys that the above property was free form all kind of encumbrances such as sale, mortgage, gift, litigation, dispute etc.

(4) That the threats extended to the defendants by the plaintiffs (Smt. Gurcharan Grewal) and their attorneys made them to send a legal notice to the plaintiffs on 17th April, 2006, to which reply dated 01-05-2006 was also received on their behalf. After the exchange of the said notice and its reply also, the defendants offered to pay the balance amount of consideration to the plaintiffs, subject to completion of the requirements of the contract and clearance/outcome of the pending litigation, and they are still ready and willing to do the same and pay the balance amount to the plaintiffs or deposit the same in Court if so directed by this Hon‟ble Court for performance of the

contract by the plaintiffs and execution and registration of the sale deed of the property in their favour with clear title of the property.

(5) That the defendants have always been willing to perform the essential terms of the contract and pay the balance amount of sale consideration to the plaintiffs, which are to be performed by them, subject to execution and registration of the sale deed of the property in their favour and transfer of the property by the plaintiffs to the defendants with its clear title, and they are still ready and willing to do the same, which the plaintiffs avoided to do after the fact of pending litigation was known to the defendants on 14.04.2004 after taking possession of the property in part performance of the contract.

(6) That the defendants respectfully submit that there exists no standard for ascertaining the actual damage likely to be caused to them by non-performance of the acts agreed to be done by the plaintiffs in the contract, and breach of the contract to transfer the property cannot be adequately relieved by compensation in money.

(7) That the defendants respectfully submit that the contract does not run into such minute or numerous details, and it does not depend on personal volition of the parties, and its performance also does not involve the performance of a continuous duty of the Court to supervise. The defendants have obtained, in pursuance of the contract, possession of the property and have made lot of improvements in the same at their cost and expenses, and now, they have substantial interest in the performance of the contract by the plaintiffs in their favour. The defendants have not acted in fraud of the contract or have willfully acted at variance with, or in subversion of, the relation intended to be established by the contract, and they are willing to deposit the balance amount of sale consideration in Court, if directed to do so by this Hon‟ble Court.

(8) That the defendants respectfully submit that in case this Hon‟ble Court comes to the conclusion that the contract is not ought to be performed in their favour, the defendants are entitled

to the refund of advance/earnest money of Rs.15,00,000/- paid by them to the plaintiffs, with equal amount of compensation of Rs.15,00,000/-, i.e. total amount of Rs.30,00,000/-.

(9) That there is no date fixed in the contract for its performance, and the defendants had notice for refusal of its performance by the plaintiffs on receipt of summons of the suit from this Hon‟ble Court, and accordingly the suit is being filed within time from the date of arising of cause of action to the defendants.

(10) That the counter-claim is valued at Rs.45,00,000/- for the purpose of Court fee and jurisdiction and accordingly, an ad- varlorem court fee of Rs.40,200/- has been affixed.

(11) That the cause of action arose to the defendants against the plaintiffs on receipt of summons of the suit, when they had notice of refusal of contract by them, hence the counter-claim is being filed within time.

(12) That the suit property is situated at Delhi, where also the contract for its purchase and sale came into effect and the defendants had notice of its refusal by the plaintiffs, and the plaintiffs/their attorneys have been residing, hence this Hon‟ble Court has jurisdiction to entertain the counter-claim."

It is, therefore, respectfully prayed that this Hon‟ble Court may be pleased to pass a decree in favour of the defendants and against the plaintiffs/their attorneys, with cost, by way of counter-claim, thereby:

(i) Pass a decree for specific performance of the contract dated 04.04.2004/14.04.2004 in respect of front portion flat on first floor (towards service lane) comprising of four bedrooms, drawing, dining, kitchen, latrine, bathroom, out of property No.D-33, Rajouri Garden, New Delhi-110027, and direct the plaintiffs/their attorneys to execute and register its sale deed, with clear title of the same, in favour of the defendants;

(ii) grant compensation of Rs.15,00,000/- (Rupees fifteen lacs only), in addition to the refund of advance/earnest money of Rs.15,00,000/- paid by them to the plaintiffs, i.e. total amount of Rs.30,00,000/- (Rupees thirty lacs only) to the defendants, in case this Hon‟ble Court concludes that the contract ought not to be performed in their favour, in the alternative."

7. The plaintiffs in their reply strongly opposed the prayer and have stated that the amendment which the defendants are seeking by way of counter claim is barred by time and if allowed, it is going to cause prejudice to the plaintiffs and take away the valuable right accrued in their favour by lapse of time.

8. It is also stated that Article 54 of the Limitation Act, 1963 provides a period of three years for filing the suit for specific performance of a contract, which begins to run from the dated fixed for performance or if no such date is fixed, then from the date when the party has notice that performance is refused .

9. It is argued by the plaintiffs that despite having knowledge at least since 01.05.2006, about the refusal of the plaintiffs and performance of the agreement, the defendants did not file a suit for specific performance till the period more than five years expired. Even otherwise, the counter claim has to be filed by a party alongwith their defence/written statement. In the present case, the defendants proposed to file the counter claim by adding the prayer of relief of specific performance in 2010.

10. It is also stated by the plaintiffs in their reply that by way of the proposed amendment, the defendants want to withdraw certain admissions made by them in the written statement whereby, they have stated that they

have been cheated by the attorneys of the plaintiffs and that they are not ready to pay the balance amount and perform their part of the agreement.

The proposed amendments, according to the plaintiffs are neither necessary nor relevant for deciding the present suit. It is also stated by the counsel for the plaintiffs that the defendants have not disclosed the name of the previous counsel who gave them the alleged advice. Further, the defendants got the notice dated 17.04.2006 issued through their counsel Mr. S. Shahai, Advocate, and the said notice clearly shows that the defendants were advised to seek specific performance of the agreement at that time itself.

11. Mr. Malhotra, learned counsel appearing on behalf of plaintiffs has referred the following decisions in support of his submissions :

(a) In the case of Ashutosh Chaturvedi Vs. Prano Devi @ Parani Devi and Ors. V (2008) SLT 169 the Apex Court held as under: "15. The only remedy which was, thus, available to the appellant might be to file a suit. But as the same itself being barred by limitation, we are of the opinion that the Court would not exercise its discretionary jurisdiction to allow the amendment of the plaint."

(b) In the case of Mrs. Janet Anne Woolqar James & Ors. Vs. Jaypee Hotel Ltd. 83 (2000) DLT 277 (DB) the Court held as under:

"10. It is equally well settled that an amendment can be allowed if the same does not cause any injustice to the other party. In the absence of special circumstances a plaintiff cannot be allowed to amend his plaint by introducing a cause of action, which since the date of the presentation of plaint has become barred by the limitation. Reference can be made to law laid down in Pirgonda Hongonda Patil Vs Kalgonda Shidgonda Patil & Ors. AIR 1957

SC 363 wherein Supreme Court, after examining several earlier decisions, quoted with approval the observation of Batchelor, J in Kisandas Rupchand Vs. Rachappa Vithoba, 33 Bom. 644 as the correct position of law which are as under:-

"All amendments ought to be allowed which satisfy the two conditions: (a) not working injustice to the other side, and

(b) of being necessary for the purpose of determining the real questions in controversy between the parties.... but I refrain from citing further authorities, as, in my opinion they all lay down precisely the same doctrine.

That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defense to the claim. The ultimate test Therefore, still remains the same can the amendment be allowed without injustice to the other side, or can it not?"

(c) In the case of M/s. International Building & Furnishing Company (Cal) Private Limited Vs. Indian Oil Corporation Limited; 84 (2000) DLT 483 the Court held as under:

"13. As already mentioned above, under Section 3 of the Limitation Act, any claim by way of a set off or a counter claim has to be treated as a separate suit and will be deemed to have been instituted, in the case of a counter claim on the date on which a counter claim was made in Court. It is, Therefore, clear that the counter claim is treated as a suit. A suit if filed on the date when a counter claim was made, as in the present case, will be clearly barred by time. There is no provision in law which

could condone the delay in filing a suit which has become barred by time. In case, delay in filing a suit cannot be condoned, in my opinion, by way of amendment, the Court cannot make a counter claim within time in case a suit if filed would have been beyond the period of limitation. It is not a case where a suit had already been filed by the plaintiff and he wanted to add an additional or alternate prayer in that suit. It is a case where for the first time a decree is being claimed by way of a counter claim for an amount recovery of which has clearly become barred by time."

12. Mr. B.L. Chawla, learned counsel for the defendants has pointed out that there is no date fixed in the agreement for performance of the contract, and so the limitation has to start when the defendants had notice that the performance is refused by the plaintiffs, as per Article 54 of the Schedule providing period of Limitation in the Limitation Act, 1963 as defendants had notice of refusal for performance of the contract on receipt of summons of the suit, which was filed on 18.9.2009, to which written statement dated 3.2.2010 was filed by the defendants.

13. Mr. Chawla has also referred the following judgments in support of his submissions:

(a) CRP No.318/2003 decided on 16.02.2004 by this court, the issue of counter-claim was involved :

Para 2: It is trite to state that while allowing the amendments to pleadings a liberal approach should be adopted by the courts. It cannot also be gainsaid that while considering an amendment the question of whether it is likely to succeed at the conclusion of the trial, would also not be sufficient reason for rejecting it. This has been so stated in A.K. Gupta and Sons Ltd. Vs. Damodar Valley Corporation, AIR 1967 SC 96.

(b) III (2008) SLT 647:

Amendment of written statement-counter claim-Discretion of Court- To enable defendant to elaborate his defence or to take additional pleas in support of his case-Discretion of court must be exercised to sub-serve ends of justice-Civil Procedure Code, 1908 - Order 6 Rule 17, Order 8 Rule 6A: paras-8, 12, 13 and

15.

(c) Chet Ram Gupta thr. LRs. vs. Motian Devi Lamba & Ors., reported in 148 (2008) DLT 477 (DB), the relevant para reads as under:

(iv) Amendment of plaint - If in substance, the pleadings already exist, law of limitation may not be a hindrance in the way of the plaintiff to make a prayer of amendment as long as there is no fundamental change, which be categorized as a new cause of action or a new case - para 16.

(d) Ragu Tilak D. John vs. S. Rayappan and others, reported in (2001) 2 SCC 472, the relevant para reads as under:-

8. Civil Procedure Code, 1908 - Order 6 R 17 - Amendment of plaint - Relief sought barred by limitation - Where it is arguable that relief sought by way of amendment should still be allowed and the disputed matter made the subject matter of an issue.

(e) Oriental Ceramic Products Pvt. Ltd. v. Calcutta Municipal Corporation, reported in AIR 2000 Calcutta 17 : Order 8 R 6A.

14. Lastly, it is submitted by Mr. Chawla that as the defendants had notice of refusal of performance of the agreement by the plaintiffs on receipt of summons of the suit, the amendment of written statement is within time and it is not barred by time, which is otherwise a disputed question and has to be decided on merits after trial.

15. It is settled law that court should take liberal approach while

considering the application for amendment because this ensures that substantial justice is done. Parties are not made to suffer for want of proper drafting and advice if basic structure of suit and dispute between the parties is not altered but at the same time, court should also see that law of limitation may not be a hindrance in the way of making a prayer for amendment.

16. In the instant case, admittedly, a notice dated 17.04.2006 was issued by the defendants asking the plaintiffs to enforce the contract within 15 days and in reply dated 01.05.2006 also sent by the plaintiffs, wherein it was stated that as the defendants have failed to fulfill their part of the agreement by committing breach, therefore, the agreement has come to an end and the defendants are not entitled to claim specific performance of the receipt dated 4.4.2004. The amount of Rs.15 lac has already been forfeited and the defendants have been left with no right or interest in the suit property. The defendants were also called upon to vacate the suit property and also pay damages @ Rs.25000/- per month for its use and occupation.

17. The application for amendment of written statement was filed on 25.10.2010. It is not in dispute that as per Order 8, Rule 6A(4) C.P.C., the counter claim shall be treated as a plaint and governed by the rules applicable to plaints.

18. Let me now discuss the main objection raised by the plaintiffs on limitation. According to plaintiffs they have refused the performance in their reply dated 11.5.2006 to the notice dated 17.4.2006 issued by the defendants, thus, the suit could have been filed by the defendants by 30.4.2009. The defendants in the present case has filed the amendment

application on 25.10.2010 and by that time, the suit or counter claim on the fact of it is barred by limitation.

19. The suit for specific performance of contract no doubt, has to be filed as per Article 54 of the Limitation Act which states that "the suit for specific performance has to be filed within three years from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that the performance is refused.

20. Admittedly in the present case, no date fixed in the agreement for performance of the contract. So that the limitation has to start when the defendants had notice that the performance is refused by the plaintiffs within the meaning of Article 54 of the Limitation Act.

21. In the present case, by letter/notice dated 17.4.2006 issued by the defendants to the plaintiffs, the defendants in para-10 stated that they are ready to settle the deal by paying the difference at a very short notice. In para 11 of the notice the defendants also stated that a false statement regarding pending litigation as well as breaches of certain clauses mentioned in the agreements. The same are reproduced as under:

(a) No space or structure has been provided as Servant‟s quarter as agreed to vide one of the clauses.

(b) The clearance of property tax, other govt. dues, if any, has not been provided till date.

(c) The clearance from various Govt. Departments including DDA, MCD, Income Tax etc. for smooth transfer of ownership of property have not been provided.

xxx xxx xxx xxx

Lastly, it is, inter alia, stated in the notice as follows:

"In case you fail to comply with the conditions laid down in the aforesaid Agreement dated 4th April, 2004 within 15 days of receipt of this notice, my clients reserve the right to approach appropriate court of law for ensuring specific performance under this agreement. For that matter, my clients may deposit the difference with the appropriate court, if so directed."

22. In reply dated 1.5.2006 to the notice, the plaintiffs denied all the allegations made by the defendants. It is stated that the allegations are baseless and false and the same were made with ulterior motives. Actually, the defendants were never ready and willing to finalize the deal and have failed to the balance consideration of Rs.30 lac since the time they took physical possession of the said flat and on the other hand they kept on assuring that they would vacate the flat as they have built up their own property provided they are refunded the advance amount payment of Rs.15,00,000/- with interest. In the fourth page of the reply dated 01.05.2006 it was specifically mentioned as under:

"as already mentioned above your clients were never ready and willing to perform their part of the agreement and wanted to cancel the agreement by first claiming the refund of Rs.15 lac and thereafter making another unjustified claim of interest thereon at the rate of 18% p.a. and were never ready and willing to fulfill the terms of the agreement which is apparent from the fact that the balance sale consideration amount was never offered or paid by your clients to my clients.

Your client has been left with no lien or charge with the flat in question or any other property of my client and is not entitled to claim specific performance of the receipt dated 04.04.2004 for the reasons mentioned herein above."

23. Mr. Chawla, learned counsel appearing on behalf of defendants has not disputed the law that the limitation in the matter has to start when the defendants had notice that the performance is refused by the plaintiffs as per Article 54 of the Limitation Act. Incase reply to the notice is read in meaningful manner which clearly indicates that the plaintiffs refused to perform the agreement as per details mentioned in earlier para. It was also specifically informed the defendants that they are not entitled to claim specific performance. Therefore, on the face of said denial, only remedy available with the defendants was to take appropriate ready in accordance with law. However, in the present case having specific denial on the part of plaintiffs, on 1.5.2006 no suit for enforcement of agreement was filed by the defendant even after the expiry of four and half years. In October, 2010 the present application for amendment of written statement and proposed counter claim has been filed.

24. It is well settled principle of law that when the bare reading of the plaint reveals that the suit is ex facie barred by limitation without any further enquiry, then the court can invoke the powers so as to arrive at the conclusion that the suit is barred by limitation. However, the same very issue of limited if required a fact finding enquiry alongside perusal of the plaint, then the same very question becomes a mixed question of facts and law which may require enquiry during the course of trial, but where it is clear that from the perusal of the plaint itself that the suit is ex facie barred by limitation, then the court will not be hesitant in rejecting the plaint.

25. In the case of Satya Prakash Gupta & Anr. Vs. Vikas Gupta & Ors, passed in R.F.A. (OS) No.23/2010 dated 24.11.2011 by Division Bench of this Court, the Bench in para 13 held as under :

"13. Rules of Limitation are meant to see that parties do not resort to dilatory tactics but to seek their remedy promptly. It is a policy of Limitation Acts that those who sleep upon their claims should not be assisted by the courts and equal policy behind those acts, in that there shall be an end of litigation and protection shall be offered against stale demands. It is well settled that question of limitation can be raised at any time in the course of proceedings. Court can dismiss the suit on the ground of limitation even if the defence has not raised that plea, where on the face of the pleadings, the court comes to the conclusion that the suit is barred by limitation."

26. In view of the well settled proposition of law if the present case is tested and averments are seen/perused in the proposed counter claim, it is sufficient that the same is ex facie barred by limitation without any further enquiry, therefore, the amendment sought by defendants in this regard is rejected by invoking the powers. As far as amendment of written statement by adding paras (g) and (h) are concerned, the same is allowed.

27. Thus, the prayer made in the application is partly accepted and the application being I.A. No.15982/2010 is disposed of. No costs.

C.S. (OS) No.1874/2009

Replication to the amended written statement be filed by the plaintiffs within four weeks. Additional documents be filed by the parties within six weeks. List this matter before the Joint Registrar for admission/denial of documents on 02.07.2012. Thereafter, the matter shall be listed before Court for framing of issues and direction for trial on 03.09.2012.

MANMOHAN SINGH, J.

APRIL 13, 2012