Sanjib Kumar Jena vs Pradeep Kr. &* Ors.
2013 Latest Caselaw 4147 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of decision: 13th September, 2013

+     CS(OS) 2098/2011 and IA Nos. 13656/2011(u/O 39 R 1 & 2 CPC)
      and 17463/2011 (u/O 39 R 4 CPC)

      SANJIB KUMAR JENA                             ..... Plaintiff
                   Through               Mr.Anuj Kumar Padhy and Mr. S.R.
                                         Padhy, Advocate

                          versus

      PRADEEP KR. &* ORS.                            ..... Defendants
                    Through              Ms. Reena Gupta and Mr. Nitin Garg,
                                         Advocate for D-1.
                                         Mr. Saamdarshi Sanjay, Advocate for
                                         D-2.
                                         Mr. Rajiv Bakshi, Advocate for D-3.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

IA No. 17462/2011(u/O 7 R 11)

1. This is an application filed by defendant No. 2 under Order 7 Rule 11 CPC for dismissal of the above captioned suit. The plaintiff on 12 th April, 2011 entered into an agreement to sell with defendant No. 1 pertaining to Flat No. 268, Sector 13, MIG, Pocket A, Dwarka, New Delhi for a purchase value of Rs. 63,75,000/-. The plaintiff is stated to have paid an advance of Rs. 3,00,000/- to defendant No. 1. As defendant No. 1 has failed to proceed further, the present suit has been filed under the Specific Relief Act of the said agreement to sell.

2. On 30.08.2011 an order was passed by this Court that subject to deposit of Rs 60.75 lacs in an FDR, the defendants will maintain status quo with regard to title and possession of the said flat. It is stated that the full amount in terms of the said order dated 30.08.2011 has not been deposited.

3. In the present application, defendant No. 2 states that he is the lawful owner and in possession of the suit property. It is stated that defendant No. 2 has acquired the rights and title to the suit property pursuant to various documents executed in her favour by defendant No. 3. Further, it is stated that defendant No. 2 was in need of finances for the business of her sons for which purpose she approached defendant No. 1 to sell her rights in the suit property. Defendant No. 2 agreed to sell the suit property to defendant No. 1 for a sale consideration of Rs. 51.50 lacs and an agreement to sell dated 05.03.2011 was executed between defendant No. 2 and defendant No. 1. It is stated that pursuant to Clause 2 of the agreement, defendant No. 1 did not pay the balance sale consideration of Rs. 45.50 lacs on or before 01.06.2011. Hence, it is stated that defendant No. 2 invoked her right under Clause 7 of the agreement and terminated the agreement to sell and forfeited the earnest amount of Rs. 6 lacs vide notice dated 25.7.2011. It is stated that the agreement to sell between the plaintiff and defendant No. 1 does not concern defendant No. 2 as defendant No. 2 has not executed the said agreement to sell. It is further stated that the agreement to sell between defendants No. 2 and defendant No. 1 does not confer any right on defendant No. 1 to execute an agreement to sell in favour of the plaintiff. In view of the above, it is stated that there is no privity of contract between defendants No. 2 and the plaintiff and hence, the suit is liable to be dismissed as there is no cause of

action against defendant No. 2.

4. Learned counsel appearing for defendant No. 2 has relied upon the judgment of the Supreme Court in the case of Indu Kakkar vs. Haryana State Industrial Development Corporation Ltd. and Anr., AIR 1999 SC

296.

5. Learned counsel for the plaintiff has relied upon a judgment of the Supreme Court in the case of Shyam Singh Vs. Daryao Singh in Appeal (Civil) No. 857/1998 on 19.11.2003. Relevant portion of the said judgment reads as follows:-

"As is to be seen from the provisions of Section 15(b) of the Specific Relief Act, 1963 specific performance of the contract may be obtained by „any party thereto‟ of „their representative in interest‟. This expression clearly includes the transferees and assignees from the contracting party in whose favour the right exists. Such right of seeking specific performance would, however, be not available in terms of proviso below clause (b) where the contract provides that the „interest shall not be assigned‟.

In view of the above judgment and the provisions of Section 15 of the Specific Relief Act, the learned counsel for the plaintiff submits that he is entitled to file the present suit.

6. In my view, the contention of the learned counsel for defendant No. 2 are misplaced. A reference may be had to Section 15 of the Specific Relief Act relevant portion of which reads as follows:-

"15. ..... Except as otherwise provided by this Chapter, the

specific performance of a contract may be obtained by-

(a) any party thereto;

(b) the representative in interest or the principal, of any party thereto: Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest of his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party;"

7. Hence a perusal of Section 15 (b) would show that a representative in interest is entitled to seek specific performance of an agreement unless the contract provides that the interest shall not be assigned. Reference may now be had to agreement to sell between defendants No. 2 and defendant No. 1. Clause 6 of the agreement to sell dated 05.03.2011 between defendants No. 2 and 1 reads as follows:-

"6. That the Party No. 1 will deliver the vacant physical possession of the said property at the time of full and final payment and registration of concerned documents in favour of Party No. 2 or his nominee or any prospective buyer of party No. 2."

8. In view of the above Clause, defendant No. 2 has undertaken to register the concerned documents in favour of defendant No. 1 or his nominee or any prospective buyer of defendant No. 1. In view thereof, it is apparent that assignment of the contract between defendants No. 1 and defendant No.2 is permissible. Hence, in view of Section 15 of the Specific Relief Act, the plaintiff can seek specific performance against defendant No. 2 as plaintiff has been assigned rights by defendant No. 1.

9. The judgment of the Supreme Court cited by the learned counsel for the plaintiff in the case of Shyam Singh vs. Daryao Singh (supra) also shows that in terms of Section 15(b) of the Specific Relief Act, the plaintiff is entitled to file the present suit for specific performance against defendants No. 1 and 2.

10. The reliance of the learned counsel for defendant No. 2 on the judgment in the case of Indu Kakkar vs. Haryana State Industrial Development Corporation Ltd. and Anr. (supra) is misplaced inasmuch as in that case the Court held that as a matter of fact, the respondent had not agreed to assignment by the allottee. Hence, the said judgment would not be applicable to the facts of the present case.

11. In view of Section 15 of the Specific Relief Act, the plaintiff can sue defendant No. 2. In view of the above, the present application is dismissed.

IA No. 12473/2013 (u/O 7 R 11)

12. This is an application filed by defendant No. 3 under Order 7 Rule 11 CPC seeking rejection of the plaint qua defendant No. 3. In this application, defendant No. 3 submits that he entered into an agreement with defendant No. 2 on 16.09.2005 for the suit property. It is stated that pursuant to certain documents executed on 16.09.2005, right, title and interest in the suit property now vests exclusively with defendant No. 2. It is submitted that in view thereof, defendant No. 3 is neither a necessary nor a proper party to the present proceedings.

13. Learned counsel appearing for defendant No. 3 submits that his client is an old person and undertakes that in case any documentation is to be completed in favour of any of the parties on the directions of the Court, his client is ready and willing to do the needful. He further submits that a perusal of the plaint would show that there is no relief sought against defendant No. 3 nor is any averment stated against defendant No. 3.

14. Learned counsel appearing for the plaintiff has, however, stressed that certain documentation would be necessary from defendant No. 3 to complete transfer in case a decree is passed in favour of the plaintiff and that is why, defendant No. 3 is necessary and proper party.

15. Relevant portion of Order 1 Rule 10 CPC reads as follows:-

"10. Suit in name of wrong plaintiff.- (1) ...

(2) Court may strike out or add parties--The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."

16. In my view, the presence of defendant No. 3 is not necessary before the court to effectively and completely adjudicate upon and settle all question involved in the suit. Though, the application is wrongly termed as under Order 7 Rule 11 CPC, it seeks deletion of defendant No. 3 as party. In

view of the above, defendant No. 3 is deleted as party. However, he shall remain bound by the undertaking given by him in this Court.

17. The application is disposed.

IA No. 14579/2013 This is an application under Order 8 Rule 1 CPC filed by defendant No. 1 seeking time to file written statement.

In view of the averments made in the application, the application is allowed.

CS(OS) 2098/2011 Defendant No. 1 may file written statement before the next date of hearing.

For completion of pleadings and admission/denial of documents, list before the Joint Registrar on 19.11.2013.

JAYANT NATH, J SEPTEMBER 13, 2013 rb