Digamber Builders & Land ... vs Shri Inder Singh
2014 Latest Caselaw 1305 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Decision: March 11, 2014

+                         RFA(OS) 155/2013


      DIGAMBER BUILDERS & LAND
      DEVELOPERS PVT LTD                      ..... Appellant
                   Represented by: Mr.N.N.Aggarwal, Advocate
                                   with Mr.Varun Garg, Advocate

                          versus

      SHRI INDER SINGH                                   ..... Respondent
                    Represented by:            Mr.K.G.Chhokar, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH

PRADEEP NANDRAJOG, J. (Oral)

CM No.19549/2013 Allowed, subject to just exceptions.

RFA(OS) 155/2013

1. Heard learned counsel for the parties.

2. The facts which we would be noting hereinafter reveal the utter chaos created by property dealers in Delhi and a double whammy to the client is when their lawyers do not apply themselves meaningfully while drafting plaints or written statements.

3. Vide impugned decision dated November 06, 2013, suit seeking specific performance of an agreement to sell dated February 11, 2010 has

been rejected at the threshold observing that the Court is satisfied that the plaint does not disclose any cause of action.

4. What has weighed with the learned Single Judge to reach the conclusion is that the agreement in question, on basis whereof the suit was filed, records that it was executed on February 11, 2010 and that the subject matter of the agreement was 4 bigha and 16 biswa of land comprised in Khasra No.308 (2-8) and 309 (2-8) in the revenue estate of village Bhalaswa, Jehangirpur, Delhi. The recital to the agreement to sell records that out of the agreed sale consideration in sum of `1,47,50,000/- (Rupees One Crore Forty Seven Lakh and Fifty Thousand only), a sum of `20,00,000/- (Rupees Twenty Lakh only) has been received on February 11, 2010 and that the balance sale consideration in sum of `1,27,50,000/- (Rupees One Crore Twenty Seven Lakh Fifty Thousand only) shall be paid before the Sub-Registrar when sale documents would be executed on or before February 11, 2010.

5. The learned Single Judge has reasoned that it would be a contradiction in terms to record that the agreement to sell is dated February 11, 2010 and that `20,00,000/- (Rupees Twenty Lakh only) has been received as part sale consideration on same day and that the balance sale consideration shall be paid the same day i.e. February 11, 2010 when sale deed would be executed.

6. Clause (1) of the terms of the agreement, as scribed on the agreement to sell, records that transaction will be effective from July 31, 2010 and the transaction shall be completed on or before February 11, 2010.

7. The second hiatus found by the learned Single Judge is that if the date of coming into legal effect of the agreement to sell is July 31, 2010; where is

the question of the sale being completed on or before February 11, 2010.

8. There is a further problem. While drafting the plaint the lawyers for the appellant were equally negligent as was the scribe of the agreement to sell. After stating in paragraph 1 of the plaint that the suit sought specific performance of an agreement to sell dated February 11, 2010 which fact was reiterated in paragraph 4 of the plaint, in paragraph 17 of the plaint it was pleaded that despite repeated efforts from the side of the plaintiff the defendant failed to perform his obligation under the agreement to sell dated February 11, 2009.

9. It is apparent that there are typographic mistakes in the plaint. There are typographic errors in the agreement to sell.

10. This was conceded before the learned Single Judge, as recorded in paragraph 17 of the impugned order, by counsel for the plaintiff. But, the fault found by the learned Single Judge is that while drafting the plaint no pleadings have been made clarifying on the agreement to sell with reference to the apparent typographic errors.

11. The reasoning of the learned Single Judge would be that a bare reading of the agreement to sell and the receipt would make the agreement to sell incapable of being performed for the reason the agreement to sell categorically records that its date of effectiveness would be July 31, 2010 and yet proceeds to record that the date of performance would be February 10, 2011; making no sense. The learned Single Judge has held that it is not possible for the Court to read into the document something which has not been written therein.

12. Suffice it to state that the thoughts of parties are given ink by the draftsman. There may be disconnect between the thought of the party and

the words used by the draftsman. This is the reason why law require documents to be read meaningfully and not pedantically. It is apparent that the date for completing the transaction, which should be February 10, 2011, has inadvertently been typed in the agreement to sell as February 10, 2010. Regretfully, the counsel who drafted the plaint did not instruct himself/herself properly. The result was no clarificatory pleadings in the plaint.

13. It is trite that pleadings of parties have to be read meaningfully and not pedantically.

14. If only the learned Single Judge would have referred to the provisions of the Indian Evidence Act, 1872, or the attention of the learned Judge was drawn to the said provisions, Sections 91 and 98 of the Indian Evidence Act, 1872 would have guided that where the language used applies partly to one set existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show as to which of the two it was meant to apply. Further, where language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.

15. Under the circumstances notwithstanding the aforenoted errors which have correctly been found by the learned Single Judge, and as noted by us, the conclusion arrived at by the learned Single Judge cannot be accepted.

16. We dispose of the appeal setting aside the impugned order dated November 06, 2013 but imposing cost in sum of `50,000/- (Rupees Fifty Thousand only) against the appellant payable to the respondent. The cost has been imposed because the appellant remained negligent when the

agreement to sell was drafted. The appellant continued to remain negligent when the plaint was drafted; the appellant continued to remain negligent when attention of the learned Single Judge was not drawn to the relevant provisions of the Evidence Act pertaining to when oral evidence can be led with reference to documents which are ambiguous and have errors.

17. Cost shall be paid within six weeks from today.

18. CS(OS) 1577/2012 shall be listed for directions before the learned Single Judge on May 21, 2014.

19. We observe that if plaintiff was to file an application to amend the plaint but limited to clarifying with respect to the typographic errors, in harmony with the ethos of the present order the learned Single Judge shall consider the application seeking amendment with the attention it would warrant in the given facts and circumstances of the case. CM No.19548/2013 Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(JAYANT NATH) JUDGE MARCH 11, 2014 skb