Anil Kumar Srivastava vs Gurmel Singh & Ors.
2012 Latest Caselaw 3247 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of Decision: 15th May, 2012

+                       RFA(OS) 50/2012

       ANIL KUMAR SRIVASTAVA                   ..... Appellant
            Represented by: Mr.A.P.S.Ahluwalia, Sr.Advocate
                           instructed by Mr.Rajesh Saxena
                           and Mr.S.S.Ahluwalia, Advocates

                         versus

       GURMEL SINGH & ORS.                  ..... Respondents
           Represented by: Mr.Indranil Ghosh with
                           Mr.Mudit Gupta, Advocates
                           for R-2

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

PRADEEP NANDRAJOG, J.

1. The appellant is the plaintiff. Vide CS(OS) No.1064/2005, filed on August 12, 2005, he sought specific performance of an agreement to sell dated February 28, 2004 and cancellation of a sale deed April 21, 2004. The subject matter of the agreement to sell is Flat No.A-8C, DDA Flats, Munirka, New Delhi, 110067.

2. As per the written statement filed, the plaintiff mediated for sale of the flat in question to be made by defendant No.1 to defendant No.2 and to enable defendant No.2 to obtain a loan from defendant No.3 bank got typed an agreement to sell with defendant No.1 as the seller and defendant No.2 as the purchaser. He thereafter played a trick. He had received money from the husband of defendant No.2 to sell his flat to the husband of defendant No.2 and informing

that he could not sell the flat as it was mortgaged, offered to return the money by making payment to defendant No.1, to be adjusted to the account of defendant No.2. Pertaining to the sale deed executed by defendant No.1 in favour of defendant No.2 it is stated that the plaintiff was instrumental in getting the sale deed registered, evidenced by the fact that his employee Mr.Ramesh had purchased the necessary stamp papers and was also a witness to the conveyance deed. Pleading that the plaintiff is a Chartered Accountant, it is pleaded in the written statement that plaintiff got a loan sanctioned from defendant No.3 bank, when defendant No.2 purchased the property and simultaneously mortgaged the flat to the bank.

3. Similar is the written statement filed by defendant No.3, Central Bank of India.

4. On the pleadings of the parties issues were settled vide order dated September 20, 2007 and the order sheet in the suit would reveal that the appellant took adjournment for one year to file the necessary documents.

5. Till when the impugned order was passed on March 27, 2012, the appellant has not even commenced leading evidence. Appellant's suit has been dismissed as a consequence of the right to lead evidence being closed.

6. Suffice would it be to state that after issues were settled on September 20, 2007, four years and six months have gone by and commencement of leading evidence has not even begun.

7. We have troubled ourselves to note the defence and would not bring out that the defendants have filed documentary evidence to make good the defence and this appears to be the reason why the appellant was not keen to

proceed with the suit; his intention appears to be to hold the Sword of Damocles on the heads of the defendants.

8. We concur with the view taken by the learned Single Judge that no further opportunity was required to be granted to the appellant to lead evidence, for the reasons since when the issues were settled he has shown no keenness for the suit to proceed ahead.

9. It was urged that the learned Single Judge forgot that onus to Issue No.1 and Issue No.5 was on the defendants and thus urged that said issues were required to be adjudicated upon and for which the defendants should have been called upon to lead evidence.

10. Issue No.1 reads as follows: Whether the suit is not maintainable in view of the provisions of Section 17 (1) (a) of the Registration Act? OPD. Issue No.5 reads as follows: Whether the property in question is lying mortgaged with the defendant No.3? OPD-3

11. Suffice would it be to state that the main issue was whether there was an agreement to sell as asserted by the plaintiff and whether the plaintiff was ready and willing to perform his obligations thereunder.

12. As recorded in the impugned decision, the defendants did not press Issue No.1 and thus the consequence is that the suit would be maintainable. This issue is a legal issue and needs no evidence.

13. On Issue No.5 the learned Single Judge has noted that the bank has stated that it has filed proceedings before the Debt Recovery Tribunal and did not desire any decision on said issue.

14. Needless to state, no evidence being led by the plaintiff, it has been held that there is no evidence to prove the

plaintiff having entered into any agreement to sell as asserted as also his not proving being ready and willing to discharge his obligations thereunder.

15. We would only highlight that if not more, 30% suits filed in this Court are ultimately not taken to their logical conclusion and after a few years suffer a natural death; we have a feeling that these suits are filed as a pressure tactic, and knowing that due to docket explosion in this Court even dead suits are buried after a number of years, dead or nearly dead suits are being filed. Instant suit appears to be of said category.

16. Concurring with the learned Single Judge that enough time being granted to the appellant no indulgence was required to be shown to grant appellant further opportunity to lead evidence we dismiss the appeal.

17. No cost.

(PRADEEP NANDRAJOG) JUDGE

(SIDDHARTH MRIDUL) JUDGE MAY 15, 2012 KA