Delhi High Court
M/S Kushal Infraprojects ... vs Ram Karan & Ors on 13 March, 2015
$~5.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 801/2011
Decided on : 13.03.2015
IN THE MATTER OF:
M/S KUSHAL INFRAPROJECTS INDUSTRIES (INDIA) LIMITED
..... Plaintiff
Through: Ms. Smita Maan, Advocate with
Mr. Vishal Maan, Advocate
versus
RAM KARAN & ORS ..... Defendants
Through: None
HIMA KOHLI, J.(Oral)
I.A. 6466/2013 (by the plaintiff u/O I R 10(2) r/w O VI R 17
CPC)
1.
The present application has been filed by the plaintiff praying
inter alia for permission to amend the plaint.
2. Despite the fact that an advance copy of the application was
served on the defendants and counsel for the defendants had entered
appearance and sought time to file a reply to the application, no reply
has been filed till date. Nor has the counsel for the defendants been
appearing in the case for some time.
3. The plaintiff has instituted the accompanying suit praying inter
alia for a decree of specific performance of an Agreement to Sell dated
12.11.2009, against the defendants No.1 to 3 in respect of a tract of
agricultural land measuring 2 Bighas, 6 Biswas, comprised in Khasra
No.100/8 min., situated in village Pooth Khurd, Tehsil Alipur, Delhi.
4. The written statement was filed by the defendants on
20.05.2011. The Sub-Registrar, impleaded by the plaintiff as
defendant No.4 has already been deleted from the array of parties
vide order dated 01.04.2011. The present application came to be filed
by the plaintiff/company on 16.04.2013, seeking permission to strike
out the names of the defendants No.1 and 3 from the array of
defendants on the ground that they are neither signatories to the
Agreement to Sell, nor did they encash the cheques of earnest money
that the plaintiff had issued in their favour. The plaintiff also seeks a
series of consequential amendments as set out in para 7 of the
application.
5. Counsel for the plaintiff states that if the names of the
defendants No.1 and 3 are permitted to be deleted from the array of
defendants, no prejudice would be caused to the defendants. It has
been further averred in the application that the plaintiff seeks to
confine the relief in the suit to a decree of specific performance
only against the defendant No.2 in respect of his 1/3rd share in land
measuring 2 Bighas 6 Biswas owned by all the defendants collectively
with further leave to carry out consequential amendments in the
valuation para, by reducing the valuation for the relief of specific
performance from `62,29,600/- to `20,76,534/-.
6. It is contended by learned counsel for the plaintiff that the
amendments proposed in the original plaint will neither change the
nature or the character of the suit and the defendants cannot have
any objection to the plaintiff confining the relief in the suit to the
defendant No.2 alone and that too in respect of his 1/3 rd undivided
share in the agricultural land.
7. The Court has examined the averments made in the present
application vis-à-vis the averments made by the plaintiff in the original
plaint. In the suit as originally instituted by it, the plaintiff has made
extensive reference to all the defendants starting from para 3, where
it has been stated that the defendants No.1 to 3 had approached the
plaintiff/company claiming to be the absolute owners of the subject
land and had assured the plaintiff's officers that they were fully
competent and empowered to deal with the said land. The narrative in
the plaint continues on the same lines right till paras 9, where the
plaintiff has stated that in the month of March, 2011, it had come to
know that the defendants were in the process of disposing of the land
by entering into an agreement with a third party and when confronted
with the same, the said defendants had failed to give a satisfactory
reply to the plaintiff.
8. In view of the factual narration in the original plaint, the Court is
not inclined to entertain the request of the plaintiff for striking out the
names of the defendants No.1 and 3 as it cannot be stated that the
said defendants are neither necessary, nor proper parties in the suit
proceedings.
9. At this stage, learned counsel for the plaintiff states that she will
not insist on deletion of the defendants No.1 and 3 from the array of
parties and instead, the plaintiff may be permitted to amend the
prayer clause by seeking a decree against the defendant No.2 alone
and calling upon him to discharge his obligations under the Agreement
to Sell by executing a Sale Deed in its favour in respect of his 1/3 rd
undivided share in the subject land.
10. It is pertinent to note that the suit was original instituted by the
plaintiff against all the defendants and the plaintiff has claimed that all
the defendants had represented to it that they are the absolute
owners and Bhumidars in possession of the subject land and they had
agreed to sell the said land to the company for a total sale
consideration of `62,29,600/-. Further, the plaintiff has averred that it
had issued cheques in favour of each of the defendants separately and
it has furnished the particulars of the cheques issued by it in favour of
each of the defendants towards earnest money, totalling to
`6,22,960/-.
11. For the counsel for the plaintiff to state today that the plaintiff
should be permitted to pursue the relief of specific performance
against the defendant No.2 alone and not against the defendants No.1
& 3, is untenable in the light of the averments made in the original
plaint. The contention of the counsel for the plaintiff that the relief
against the defendant No.2 can be granted by segregating the
cheques issued by the plaintiff in favour of each of the defendants
towards the earnest money in proportion to their respective
shareholdings in the subject land, is not borne out from averments
made in the plaint where the plaintiff has repeatedly stated that it had
entered into the transaction with all the defendants in respect of the
entire parcel of land measuring 2 bighas, 6 biswas.
12. In the course of arguments, learned counsel for the plaintiff goes
on to state that an error has crept in the plaint in respect of the date
of the Agreement to Sell which has been typed out as 12.11.2009,
whereas the correct date is 13.11.2009. Upon examining the
documents filed by the plaintiff, it transpires that at the time of
instituting the suit, the plaintiff had filed a list of documents under
index dated 24.07.2011 and had enclosed therewith a photocopy of
the subject Agreement to Sell. The date of the Agreement to Sell
mentioned at Sr. No.3 of the list of documents is 12.11.2009, whereas
the date on the face of the first page of the Agreement to Sell, is
mentioned as "11" in long hand and the month and the year have
been typed out as "November, 2009". Subsequently, when the plaintiff
had filed the original Agreement to Sell under index dated 11.01.2014,
the said index mentions the date of the Agreement to Sell as
12.11.2009, however, the face of the non-judicial stamp paper used
as the first page for executing the said document does not bear any
date which is left blank and the month and the year that has been
typed out as "November, 2009". Curiously, the reverse of the said
stamp paper bears a seal showing the date of purchase as
13.11.2009. It has been enquired from learned counsel that when
the stamp paper mentions the date of purchase as 13.11.2009,
how could the plaintiff have mentioned the date of execution of the
Agreement to Sell as 12.11.2009 in the plaint and in the originally filed
list of documents. There is no satisfactory explanation forthcoming
for the said mismatch.
13. On a bare reading of the original Agreement to Sell, it appears
that there has been an interpolation/tampering in the photocopy of the
Agreement to Sell filed along with the documents submitted with the
plaint. The correct position is that the Agreement to Sell does not
bear any date. The non-judicial stamp paper used as the first page for
typing out the Agreement to Sell, was purchased on 13.11.2009 and
therefore, the question of executing the document prior thereto, on
12.11.2009, does not arise. Apparently, the plaintiff company
realised this folly at the stage of filing the original documents in March,
2013. Immediately thereafter, the present application came to be
filed by the plaintiff in April 2013, and the differing dates have sought
to be glossed over as an "inadvertence". Learned counsel has not
been able to dispel the cloud looming large on the aforesaid document.
14. The Court is conscious of the fact that the law on permission to
amend the plaint is fairly liberal. However having regard to the nature
of the amendments sought by the plaintiff, which run contrary to the
documents originally and subsequently filed by it and in the light of
the observations made hereinabove with respect to the date of
execution of the Agreement to Sell, a document on which the
foundation of present suit has been laid, the Court is of the opinion
that the amendments sought by the plaintiff are an attempt to turn
the pleadings in the suit on its head and radically change the contours
of the averments made in the original plaint, only to overcome the
grave pitfalls highlighted above. As a result, the court is not
persuaded by the explanation sought to be offered by the plaintiff for
permission to amend the plaint and is of the opinion that the
amendments as proposed are in bad faith.
15. For the present, the court is refraining from making any further
observations in respect of the date of execution of the Agreement to
Sell but the said aspect has been taken note of and shall be kept in
mind at the stage of final arguments, after the evidence is concluded
in the suit.
16. The application is dismissed with costs of `10,000/- imposed on
the plaintiff, which shall be deposited with the Delhi High Court
Lawyers Welfare Fund, within two weeks from today. Proof of deposit
shall be placed on record within one week thereafter.
(HIMA KOHLI)
MARCH 13, 2015 JUDGE
rkb/mk/sk
