Manali Singhal vs Ravi Singhal & Ors.
2012 Latest Caselaw 5825 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) 2583/1997
%                                                           27th September, 2012

MANALI SINGHAL                                             ...... Plaintiff
                            Through:     Ms. Pinky Anand, Sr. Adv. with Ms. Manali
                                         Singhal, Ms. Ankita Singhal, Adv. Ms.
                                         Ankita Mishara, Adv. and Mr. Saurabh
                                         Kirpal, Advocate.

                            VERSUS

RAVI SINGHAL & ors.                                         ......Defendants
                            Through:     Mr. Y.P.Narula, Sr. Adv. with Mr. Kirti
                                         Uppal, Sr. Adv. with Mr. Anirudha
                                         Chaudhary, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

I.A.No.10697/2001 (under Order 6 Rule 17 CPC by defendant no.1)

1.

This is an application filed by the defendant no.1 seeking amendment

of his written statement. The subject suit is a suit filed by the plaintiff/wife against

the defendants, including defendant no.1/husband. The subject suit seeks relief of

specific performance of an Agreement dated 4.11.1994 which gave various rights

to the plaintiff, inter alia of maintenance. By the present amendment application,

various amendments are sought, and which I would deal with one by one

hereinafter, but it is to be noted that it is surprising that in spite of this application

remaining pending for now around 12 years, the application is being argued today.

This I say so because actually this application ought to have been argued before

issues were framed on 27.2.2006 i.e around six years back. In a way therefore, I

think the fact that issues were already framed and the application was not pressed

at that stage shows the seriousness in pursuing of the present application. I would

like at this stage to set out the issues which have been framed in this case inasmuch

as they are as many as 19 in number.

2. The issues framed on 27.2.2006 read as under:-

"1. Whether the Plaintiffs are entitled for decree of specific performance of Family Agreement dated 4.11.94, against the defendants jointly and/ or severally?

2. Whether the plaintiffs are entitled to a decree for payment of Rs.9,60,000/-(Rupees Nine Lacs and Sixty Thousand) on account of arrears of maintenance, vacation expenses and school fee?

3. Whether the plaintiffs are entitled to a decree for rendition of accounts in respect of shares, securities, deposits, dividends and income of plaintiff in partnership, companies, HUF‟s, which the defendants are managing and/or controlling and other companies and partnerships, including those detailed in Schedule II?

4. Whether the plaintiffs are entitled to a decree for disclosure against the defendants jointly and/or severally in relation to

various movable properties including accounts and also of the HUF‟s in which properties including accounts and also of the HUFs in which the defendants are co-parcenors?OPP

5. Whether plaintiffs are entitled to return all their movables as claimed in the plaint and detailed in Schedule I?OPP

6. Whether the plaintiffs is entitled to interest on the amounts due and payable in terms of prayer a, b and f?

7. Whether the plaintiffs are entitled to costs of the Suit?

8. Whether the defendants have defaulted in paying the amounts and performing their obligations under the family settlement dated 4.11.1994 after having provided maintenance upto December 1996?

9. Whether the defendants are barred from raising the plea of undue influence, coercion, family settlement being without consideration, unreasonable and uncertain after the defendants have acted upon it?

10. Whether the family settlement was acted upon and accepted by the parties till December, 1996 and the defendants are debarred by the principle of estopple and acquienance to resile from the said family settlement?OPP

11. Whether the Suit is bad for misjoinder of parties as alleged in Para (1) of the Written Statement? (OPD)

12. Whether the Suit is bad for misjoinder of cause of actions as alleged in Para (2) of the Written Statement? (OPD)

13. Whether the Plaintiff No.1 is entitled to act as guardian of the Property or person of Plaintiff No.2?(OPD)

14. Whether the counter claim is maintainable?

15. Whether the Defendants are entitled to counter claim as prayed for?

16. Whether the Counter Claim of the Defendants is only a counter blast to the legitimate claims of the Petitioner?

17. Whether the counter claim of the Defendants has any nexus to the subject matter of the Suit?

18. Whether the counter claim of the Defendants is barred under the Benami Transactions Act and the Petitioner No.1 is the exclusive owner of the said property?

19. Whether the properties claimed under the counter claim are the stridhan of the Petitioner No.1 and her absolute property?"

3. Defendant no.1 has filed a detailed written statement. There are

various pleas of facts for denying the entitlement of the plaintiff to right under the

Agreement dated 4.11.1994. Defences include the defences which show pleas of

the agreement being invalid on account of undue influence, or that plaintiff earns

sufficiently and so on. Defendant no.1 has in fact also filed a counter-claim seeking

certain assets standing in the name of the plaintiff. The golden thread which runs

through the defence is of disentitlement of the plaintiff to claim the rights under the

Agreement dated 4.11.1994 and these defences are stated in detail in the written

statement, and pursuant to which, the aforesaid issues have been framed.

4. I have heard the learned senior counsel appearing for defendant no.1

on each of the amendments as prayed for. Before taking the amendments as prayed

for, I would like to put on record that after prima facie hearing the counsel for the

defendant no.1, on this amendment application, I put to the learned senior counsel

for the defendant no.1 that the amendments are either in the nature of elaboration

of pleas already taken, which pleas are really in the nature of details or

evidence in support of the defences and surely the defendant no.1 can lead

evidence on these additional pleas which are set up in the present amendment

application, and therefore in all fairness, the amendments need not be pressed. I, in

fact, also put to the learned senior counsel for the defendant no.1 that if there is a

claim for cancellation of the Agreement dated 4.11.1994, then, such claim of

cancellation would be in fact under Section 31 of Specific Relief Act, 1963 and ad

valorem court fee would have to be paid in terms of the agreement for cancellation

of the same and which is not the case because the claim for cancellation of the

Agreement dated 4.11.1994 is only valued at ` 200 and court fee of ` 20 is paid,

and hence on this aspect appropriate application can be filed, but, the present

application was still pressed thus showing lack of bonafides. I may note that prima

facie the entitlement of the plaintiff in terms of the admitted agreement will run

into at least crores and crores of rupees as per the learned senior counsel for the

plaintiff. I need not however dwell into this aspect in detail inasmuch as, when a

prayer in the application for amendment to seek a specific amendment by properly

valuing the counter-claim for cancellation of the Agreement dated 4.11.1994 will

be filed, the same will be examined alongwith the defences of the plaintiff for

disentitlement including of limitation, for seeking such amendment.

5. The first amendment which is sought by means of the application is of

adding a preliminary objection no.10 which reads as under:-

"Para 10-The Defendant No.1 submits that without admitting the validity or enforceability of agreement in question, it is the case of the Defendant No.1 that the suit has not been properly valued for the purposes of court-fee and jurisdiction under Section 7(2) of the Court Fee Act and is liable to be dismissed. It is the case of the Defendant No.1 that the Plaintiffs are claiming future maintenance @ Rs. 40,000/- per month on the basis of the agreement dated 4.11.1994. The Plaintiffs have however, not paid appropriate court- fees as per the provisions of Section 7(2) of the Court Fees Act, for the said relief and therefore, the suit of the Plaintiff is liable to be dismissed under Order 7 Rule 11 CPC."

6. The subject suit is not a suit for maintenance and annuities under

Section 7(ii) of the Court Fees Act, 1860. The suit as already stated above, is for

enforcement of rights under the Agreement dated 4.11.1994. The suit has been

already valued and court fee is paid as per the existing plaint. Since, the suit is not

filed under Section 7(ii) of the Court Fees Act, 1870, therefore, the endeavour of

the defendant no.1 to add the aforesaid para 10 of the preliminary objection is

wholly misconceived and therefore this amendment cannot be allowed.

7. The second amendment which is sought by the defendant no.1 is to

add preliminary objection no.11 which reads as under:-

"Para 11. The Defendant No.1 further submits that without prejudice to the contention of the Defendant No.1 that the said agreement dated 4.11.1994 was signed under undue influence as mentioned in preliminary objection No.4 sub-paras (a) to (d), it is the case of the Defendant No.1that the alleged agreement dated 4.11.1994 is not a family settlement in law and it is only an agreement to pay maintenance. It is the case of the Defendant No.1 that the said agreement dated 4.11.1994 does not relate to or settles any dispute with regard to any property belonging to the HUF or to any of its members. In fact, the said Memo of Settlement has not been signed by the brother of the Defendant No.1, Mr. Saurabh Singhal, who is one of the coparceners of the HUF. In view of the said circumstances therefore, the said Memo of Settlement dated 4.11.1994 is void and is not enforceable in law."

8. Learned senior counsel for the applicant/defendant no.1 stressed upon

the last six lines of this above quoted para to show that Mr. Saurabh Singhal who is

the member of the HUF has not signed the Agreement 4.11.1994, and therefore,

the agreement is void and not enforceable in law. In my opinion, if there are more

than one co-owner of a property or in this case more than one coparcener, when

with respect to rights of only such co-owners in the property, certain charge or

rights in favour of a person (and who is the plaintiff in this case) are created, and

which actions do not lead in any manner to derogation of the rights of Mr. Saurabh

Singhal, I fail to understand what this amendment seeks to achieve. This

amendment is also, therefore, declined.

9. Another amendment which is sought on behalf of the defendant no.1

is to add a preliminary objection no. 13, which reads as under:-

"Para 13- The Defendant No.1 submits that without prejudice to the contention of the Defendant No.1 that the said Memo of Settlement was signed under undue influence and that the said Memo of Settlement is not a family settlement in law it is the case of the Defendant No.1 that the Memo of Settlement dated 4.11.1994 is only an agreement to pay maintenance and cannot be specifically enforced. It is also the case of the Defendant No.1 that he is not having any income to pay monthly maintenance @ 40,000/- per month to the Plaintiff No.1 is working as a Lawyer and has been having substantial income to support herself. The Defendant No.1 submits that the Plaintiff No.1 has deliberately not disclosed her income in the plaint. It is the case of the Defendant No.1 that the Plaintiff No.1 is liable to disclose her income for the purposes of deciding the quantum of maintenance, if any, payable by the Defendant no.1 to the Plaintiff No.1. As per the information of the Defendant No.1, the Plaintiff No.1 has been earning more than Rs.1 Lakh per month for the last numbers of years. It is thus the case of the Defendant No.1 that assuming though not admitting that the Defendant No.1 is legally liable to pay for the maintenance of the Plaintiffs, the same can only be fixed by the Court under Section 18 read with Section 23 of the Hindu Adoption & Maintenance Act, 1956 and any private agreement between the parties would be opposed to Public Policy and not enforceable."

10. Again, this amendment as prayed for is wholly frivolous inasmuch as

evidence can always be led as to what is the financial capacity of the plaintiff so

that a maintenance i.e higher or lower, or ought or ought not to be granted. The

present written statement already contains a plea of the fact that the plaintiff should

not get maintenance as she is an earning person. Once this plea exists, the other

details, issues or evidence, are not required to be pleaded to deny the maintenance

as prayed for because a pleading needs only certain averment of material

propositions/averment of facts and not the details which can always be led in

evidence. I say that the amendment sought for in this application is unnecessary

inasmuch as surely the plaintiff‟s earning capacity may keep on varying as she may

rise as a lawyer in her career, and if the argument on behalf of defendant no.1 is

accepted amendments from time to time will be required in the written statement,

and which is not the legal position because repeated amendments to put on record

the changed earning capacity as a lawyer and consequential income earned by the

plaintiff are not required.

11. As already stated above, once the capacity of the plaintiff is stated in

the written statement to be such so as to deny the claim of maintenance,

amendments with respect to varying/different incomes or the varying status of the

petitioner is not a material proposition of fact which is required to be added by

means of an amendment to the written statement.

12. The next amendment which is sought is of adding preliminary

objection no. 14 to the written statement which reads as under:-

"Para No.14- Without prejudice to the contentions of the Defendant No.1 that the Memo of Settlement dated 4.11.1999 was signed under undue influence and also that the said Memo of Settlement is not a „Family Settlement‟ and that it is not a specifically enforceable contract, the Defendant No.1 submits that the said Memo of Settlement dated 4.11.1994 is liable to be altered keeping in view the change in circumstances. The Defendant No.1 submits that the Plaintiff No.1 is a Practicing Lawyer in Delhi High Court & Supreme Court of India. Plaintiff No.1 started working with M/s Amarchand & Mangal Das & Suresh A Shroff & Co. 13, Abul Fazal Road, Bengali Market, New Delhi, after she graduated in law in the year 1995. As per the information of the Defendant No.1, the Plaintiff No.1 has been earning more than Rs.1 Lac for the last number of years. The Plaintiff comes from a family of Lawyers and is well established in the profession. On the other hand, the income of the Defendant No.1 has been going down due to recession in the business market. The Defendant No.1 is filing herewith the details of his income from the time the present suit was instituted to shows that the Defendant No.1 does not and did not have the means to pay the exorbitant amounts of maintenance claimed by the Plaintiffs in the suit. The Defendant No.1 thus submits that the alleged Memo of Settlement/Agreement dated 4.11.1994 needs to be altered keeping in view the fact that the Plaintiff No.1 has a substantial income of her own after the signing of the Agreement and also keeping in view the fact that the income of the Defendant No.1 has been constantly going down due to recession in the business."

13. This para 14 again effectively brings in the issue of financial capacity

of the plaintiff and altered circumstances. This amendment is declined for the

same reason that amendment for adding preliminary objection no. 13 is denied.

14. The next set of amendments which are sought, are for the counter-

claim seeking cancellation of the agreement dated 4.11.1994 and which reads as

under:-

"The Defendant No.1 further submits that the Agreement/Memo of Settlement dated 4.11.1994 is void and is not enforceable in law. The said memo of Settlement has not been signed by all the coparceners. Even otherwise the Memo of Settlement was signed and executed under undue influence as stated in the Written Statement. The Defendant No.1 therefore, seeks relief of the production of the said document and the cancellation thereof by this Hon‟ble Court.

In the alternative, it is also the case of the Defendant No.1 that the Defendant No.1 is not in a position to pay the huge amount of maintenance mentioned in the alleged Memorandum of Settlement dated 4.11.1994. The Defendant No.1 is filing herewith his income details with effect from 1993 and his Income-Tax returns etc. so as to show that at no given time, the Defendant No.1 had income to pay and provide for maintenance of the Plaintiff as mentioned in the said Agreement. The said Agreement is thus reasonable and is void and is also liable to be altered keeping in view the change in circumstances, relating to the parties concerned. The Defendant No.1 submits that the Plaintiffs have a right to claim maintenance from the Defendant No.1 as per his means. The quantum of maintenance has to be decided by the Court under the Hindu Adoption and Maintenance Act. For the purpose of deciding quantum of maintenance, the Plaintiff No.1 is liable to disclose her income before this Hon‟ble Court. It is the case of the Defendant No.1 that since 1995, the Plaintiff No.1 has been working as a Lawyer with M/s. Amarchand & Mangal Das & Suresh A Shroff & Co.13, Abdul Fazal Road, Bengali Market, New Delhi. As per the information of Defendant No.1, the Plaintiff No.1 is having an income of Rs. 1 Lakh per month from her law practice. The Defendant No.1 submits that the Plaintiff No.1 comes from the family of lawyers and has substantial law practice in the Delhi High Court as well as in the Supreme Court of India. In view of the said change in

circumstances and also keeping in view the fact that the income of the Defendant No.1 has been going down on account of recession in the business for the last number of years, it is a fit case that the alleged Agreement dated 4.11.1994 may be cancelled/altered keeping in view the provisions of Section 25 of the Hindu Adoption and Maintenance Act and the quantum of maintenance, including interim maintenance, if any, may be fixed keeping in view the provisions of Section 23 of the said Act."

.....

For the relief of production and cancellation of the Memorandum of Settlement dated 4.11.1994, the counter-claim is valued at Rs. 200.00 and a court-fee of Rs. 20.00 has been paid. As regards the relief of fixing of the maintenance amount keeping in view the change in circumstance and also keeping in view the provisions of Section 25 of the Hindu Adoption and Maintenance Act, the subject matter of the suit with regard to the said relief is valued at Rs. 5,00,001/- and a court-fee of Rs. 7,275.00 has been paid. The Defendant No.1 shall pay further court-fee if required for the relief claimed in the counter claim."

15. As I have already stated on the commencement of dictating this

judgment, amendment prayed seeking cancellation of a document, is really for

cancellation of entitlement of the plaintiff under the document dated 4.11.1994

which will run into crores and crores of rupees. Defendant no.1 cannot seek to add

the issue of cancellation of the agreement by paying only a court fee of ` 20 and

valuing the jurisdiction at ` 200. Counsel for the defendant no.1 declines the

observations made by the Court that the application for amendment to this aspect

can be withdrawn with liberty to file appropriate application by valuing the

counter-claim accordingly. The amendment as prayed for are thus not bonafide,

and when amendments sought are not bonafide, it is settled law that such

amendments cannot be allowed. In this regard, I must also state that if as per this

amendment, which is now sought to be added, the case of the defendant no.1 is that

he does not have the financial capacity to pay maintenance as sought, the said

aspect will be the issue in execution proceedings, but not in the main suit where the

rights arise or do not arise from the Agreement dated 4.11.1994.

16. The other set of amendments is basically in the nature of

consequential amendments to the relief clauses in view of the amendments, as have

been detailed above. Since the amendments are declined, there is no need to go

into the aspect of the amendments sought to the relief clauses.

17. Some suits may be highly contested. There cannot be an issue that

every litigant is entitled to fully contest his case, however, the Supreme Court has

now made it clear in the case of Ramrameshwari Devi and Others v. Nirmala

Devi and Others, (2011) 8 SCC 249 that it is high time that actual costs are

awarded. The Supreme Court has observed that imposition of actual costs is

necessary with respect to certain litigations which really do not have substance. In

my opinion, these observations will even apply to interim proceedings for

amendment of the written statement as the present one, more so considering that

this application has been argued after about 12 years when it was filed, and issues

were also allowed to be framed in spite of the pendency of the application and the

application is argued about six years after the issues have been framed.

18. Considering the facts and circumstances of the present case, I

exercise my discretion under Rule 14 of the Delhi High Court (Original Side)

Rules, 1967 to exempt the applicability of rules on the aspect of costs so far as this

application is concerned and award actual costs.

19. Though there have been many hearings which have taken place over

12 years with respect to this application, however, on many of the dates other

aspects in this suit have also been looked into and therefore, it would suffice if the

costs of the lawyers engaged by the plaintiff for five dates of hearings should be

the costs for dismissing the present application. I order accordingly.

20. I may also state that there are interim orders with respect to the

maintenance which the defendant no.1 has failed to comply with and execution

proceedings are going on. The attention of this Court on behalf of the plaintiff has

been drawn to the orders passed by different learned Single Judges of this Court,

and in spite of which, the interim maintenance order which has become final, has

not been complied with.

21. In view of the above, let the plaintiff file her affidavit alongwith the

certificates of her lawyers with respect to hearings conducted in the present suit

when the application came up and the fees paid to the lawyers by the plaintiff. The

necessary affidavit with certificates be filed within two weeks from today and

which costs shall be the costs for dismissing the present application.

I.A.No.12366/2010 (U/s 151 CPC by the defendant)

22. This application is dismissed as not pressed with liberty to the

applicant/defendant no.1 to raise all objections as permissible in law and fact, in

the execution proceedings which have already been filed by the plaintiff with

respect to the interim orders of this Court.

I.A stands disposed of.

CS(OS) No. 2583/2010 & I.A.No. 5383/2007 (for enhancement of maintenance)

23. Issues in this suit have been framed way back on 27.2.2006. Evidence

has however not commenced because there were various interim proceedings

besides that for some reason or the other the main suit has been put on the side

track. It is time that the main suit is again put back on the main line. In view of

the above, learned counsels for both the parties very fairly agree that in view of the

overburdened board of the Joint Registrar of this Court, a retired judicial officer be

appointed as a Local Commissioner to record evidence of this case. Counsel for

the parties suggest and agree to the name of Sh. Dinesh Dayal (retired Additional

District Judge), 9, Upper Bella Road, Civil Lines, Delhi, Ph. Nos. 23955012,

23983404 to be appointed as a Local Commissioner to record the evidence in this

case. Ordered accoridnlgy. It is also agreed that the Local Commissioner will be

paid a fee of ` 7500/- per hearing and which shall be shared equally by the plaintiff

and the defendants. The Local Commissioner will be initially paid a consolidated

fee of Rs.75,000/- for 10 hearings. Counsel for the parties also agree that they will

make space available in the High Court premises for recording of evidence so that

the judicial file does not go out of the High Court premises. Counsel for the parties

also agree that in case any of the parties seek unnecessary adjournments, the Local

Commissioner will be entitled to impose costs on such party which seeks

unnecessary adjournments.

24. Although, in law, list of witnesses should be filed within a period of

four weeks after framing of issues, however, at the request of the parties, plaintiff

is granted 4 weeks and defendants are granted 6 weeks to file their lists of

witnesses and which opportunity is given as the last opportunity.

25. List before the Local Commissioner for fixing the date for recording

of evidence on 12th October, 2012 at 3.00 PM.

26. List in Court for directions on 11th February, 2013.

SEPTEMBER 27, 2012                                 VALMIKI J. MEHTA, J.
Ib