M/S Spearhead Digital Studio Pvt. ... vs Sh. H.K. Mitroo
2013 Latest Caselaw 4656 Del

            THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: 07.10.2013

+       FAO(OS) 450/2013

M/S SPEARHEAD DIGITAL STUDIO PVT. LTD.                     ... Appellant

                                   versus

SH. H.K. MITROO                                            ... Respondents

Advocates who appeared in this case:
For the Appellant    : Mr Arvind Nayar, with Ms Anshu Bhanot,
                       Mr Prateek Kumar
For the Respondent   : Mr Ketan Madan

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE VIBHU BAKHRU

                               JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

Cav. No. 900/2013 The learned counsel for the caveator/respondent is present. The caveat stands discharged.

FAO(OS) No. 450/2013

1. This appeal filed by the plaintiff/appellant is against the order dated 13.09.2013 passed in IA No. 10304/2013 in CS(OS) No. 1280/2013. The said suit has been filed by the appellant for the specific performance of an oral agreement to sell the suit property. The said I.A. No. 10304/2013 was filed under section 24 of the Code of Civil

Procedure, 1908 seeking withdrawal and consolidation of suit no. 311/2011 (H.K. Mitroo v. M/s Spearhead Digital Studio Pvt. Ltd.) which is pending before the Additional District Judge, Saket, New Delhi. That suit was filed by the respondent seeking possession of the suit property and mesne profits. It is an admitted position that the appellant was inducted into the said property as a tenant of the respondent. It is for that reason that the respondent had sought possession of the said property and also sought mesne profits on the allegation that the appellant has over stayed in the said property beyond the tenure of the tenancy. On the other hand in CS(OS) No. 1280/2013 the present appellant claims the specific performance of an oral agreement to sell which was allegedly entered into between the appellant and the respondent in respect of the very same suit property. According to the appellant monthly payments were being made towards the sale price of the property since 2000. However, the case of the respondent is that these monthly payments were nothing but payments by way of rent for which even the TDS was being deducted and therefore there was no question of these payments being towards part payments of the suit property, inasmuch, as no such oral agreement had been entered into between the parties.

2. The learned single Judge has examined the matter in detail and has also noticed that the appellant had earlier filed a suit for injunction being suit no. 85/2010 before the civil Judge, New Delhi. Initially in that suit an ex parte injuction had been granted in favour of the appellant. However, the application under Order 39 Rule 1&2 CPC was ultimately dismissed by an order of the civil Judge on 01.12.2010. In the said order dated 01.12.2010 the learned civil Judge had observed that the appellant

herein had approached the court in the capacity of a vendee and not in the capacity of a lessee and that it had built up its case on an oral agreement for purchase of the suit property and had averred that part of the sale consideration had already been paid by him. The civil Judge also noted that the relief sought by the plaintiff therein and the appellant herein was not on the basis of the lease agreement dated 1.4.2000 and in essence the appellant herein had filed the said suit seeking protection under the doctrine of part performance under section 53A of the Transfer of Property Act, 1882. The learned civil Judge, however, observed that the appellant had an alternate remedy available to it and therefore an injunction could not be granted in its favour in view of the provision of section 41(h) of the Specific Relief Act, 1963. Consequently, the learned civil Judge was of the view that the appellant herein had not been able to establish its prima- facie case and therefore the application under Order 39 Rule 1&2 CPC was dismissed by the said order dated 01.12.2010. Shortly thereafter, the appellant herein withdrew the said suit no. 85/2010.

3. The respondent had filed the suit for possession and mesne profits in 2011. The present suit was filed by the appellant two years later in 2013. Taking into consideration these circumstances, the learned single Judge observed as under:-

" In my view, there is merit in the submissions of learned counsel for the defendant. The nature of the suit itself indicates that the plaintiff is indulging in multiple litigations. Earlier he filed a suit for injunction. When stay was not granted, the present suit has been filed claiming specific performance of an oral agreement to sell. A mere look at the nature of submissions made by

the plaintiff shows that it is make belief. It is prima facie difficult to accept that any owner of a valuable estate will enter into such an Agreement to Sell as propounded by the plaintiff. It appears prima facie that this suit is filed only as a counter blast to delay the suit of the defendant for possession and to harass the defendant.

The suit filed by the defendant earlier has already progressed and evidence of plaintiff is being recorded. The present suit is at the initial stage and consolidating two suits is bound to cause delay in disposal of prior suit filed by the defendant."

We feel that the learned single Judge was entirely correct in dismissing the application of the appellant under section 24 CPC.

4. The present appeal is dismissed. However, we make it clear that any observation made by us in this order as also in the impugned order are only prima facie observations and will not influence the courts below in coming to a conclusion in the suits which are pending before the learned single Judge as well as before the learned Additional District Judge, Saket court, New Delhi.

BADAR DURREZ AHMED, J

VIBHU BAKHRU, J

OCTOBER 07, 2013 kb