Delhi High Court
Tarun Kapoor & Ors vs Surya Vinder Obhrai & Ors on 12 December, 2017
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 256/2012
TARUN KAPOOR & ORS ..... Plaintiffs
Through: Mr. Vikas Dhawan, Mr. S.P. Das, Mr.
Satyabrata Panda, Ms. Vanya Khanna
& Ms. Sukriti Gandhi, Advs.
Versus
SURYA VINDER OBHRAI & ORS ..... Defendants
Through: Mr. Arjun S. Bawa, Ms. Sonali
Chopra & Ms. Vishakha Gupta,
Advs. for D-1.
Mr. P.P. Malhotra, Sr. Adv. with Mr.
K. Singhal & Ms. Sana, Advs. for D-
2&3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 12.12.2017
IA No.11373/2017 (of the plaintiffs under Order VI Rule 17 CPC)
1. The three plaintiffs in this suit, (a) for specific performance of an
Agreement of Sale of immovable property; (b) for permanent injunction;
and, (c) for damages, at the stage of final arguments, seek amendment of the
plaint in terms of Sections 21 and 22 of the Specific Relief Act, 1963 to, in
the alternative to the relief of specific performance, claim the reliefs of
recovery of damages for breach of contract and refund of the monies already
paid.
2. I have enquired from the counsel for the plaintiffs, whether the
plaintiffs would require to lead any additional evidence pursuant to the
amendment or are willing to argue on the basis of existing evidence.
3. The counsel for the plaintiffs states that the plaintiffs will have to lead
additional evidence.
4. The senior counsel for the defendants no.2&3 viz. Mr. Narippen
Obhrai and Mr. Hari Gautam Obhrai, on enquiry states that defendants no.2
and 3 have been admitted by the plaintiffs, in the plaint also, to be ready and
willing to sell their share in the Agreement to Sell to the plaintiffs and have
stated so in their written statement before this Court also but the plaintiffs,
instead of purchasing the share of the defendants no.2&3, have been
delaying the disposal of the suit by filing this application.
5. I have enquired from the counsel for the plaintiffs.
6. The counsel for the plaintiffs states that the Agreement to Sell, of
which specific performance is claimed, is with respect to property No.60,
Sunder Nagar, New Delhi and was executed by the four defendants in
favour of the three plaintiffs; that the three plaintiffs have already acquired
the share of the defendant no.4 Ms. Meera Obhrai Raichand; that the
plaintiffs have to pay the sale consideration of the share to the defendants
no.2&3 through bank financing and the bank is refusing to lend monies to
the plaintiffs till the entire property is sold and that the bank is unable to
finance till the possession of specific portion of the property is handed over;
that the defendant no.4 was suffering from cancer and needed monies and
for which purpose the plaintiffs paid the purchase consideration of her share
and got the documents executed from her.
7. I have enquired from the counsel for the plaintiffs, whether it was a
term of the Agreement to Sell of which specific performance is claimed that
the plaintiffs will get the purchase financed from the bank and if it is not so,
then the difficulties if any of the plaintiffs, in paying the sale consideration
of the share of the defendants no.2&3, who are ready and willing for the last
five years to sell their share in the property to the plaintiffs, are the concern
of the plaintiffs and the plaintiffs cannot delay the payment of sale
consideration of the share of the defendants no.2&3 and the said refusal of
the plaintiffs to buy the shares of the defendants no.2&3 may ultimately
have repercussion on the claim of the plaintiffs of specific performance not
only against the defendants no.2&3 but also against the other defendant and
which may disentitle the plaintiffs to the alternative relief of damages and
recovery of monies paid also.
8. The counsel for the plaintiffs states that since the plaintiffs are free to
get the purchase financed from the bank and there is no prohibition
thereagainst, the plaintiffs are fully entitled to take such a stand.
9. Be that as it may, cautioning the plaintiffs that their said conduct may
ultimately disentitle them to any reliefs, the senior counsel for the
defendants no.2&3 has been asked whether he has any other objection to the
application.
10. None else has been argued.
11. The counsel for the defendant no.1 opposes the application, drawing
attention to the prayer paragraph (d) of the plaint dated 31 st January, 2012
where the plaintiffs, in addition to the relief of specific performance, have
claimed the relief of recovery of Rs.2,15,29,643/- towards interest @ 24%
per annum on Rs.10,27,50,000/- being the amount already paid towards
purchase consideration. It is contended that the plaintiffs having already
claimed the relief of damages, cannot be said to be covered by the
proviso to Section 21(5) of the Specific Relief Act which commences with
the words "where the plaintiff has not claimed any such compensation in the
plaint......". It is contended that the plaintiffs in the present case have
claimed compensation. Reliance is also placed on Ram Mohan Vs. Anil
Kumar MANU/DE/3550/2017 and attention is drawn to para no.11 thereof.
12. I am unable to agree with the contention aforesaid.
13. The compensation claimed by the plaintiffs in prayer para (d) of the
plaint is for the delay caused in performance and is not for breach of
contract within the meaning of Section 21(3) of the Act.
14. The purport of Section 21 is to allow the plaintiffs, even at the stage
of execution of the decree, (see Babu Lal Vs. Hazari Lal Kishori Lal
(1982) 1 SCC 525 and Ex-Service enterprises (P) Ltd. Vs. Shri Samey
Singh ILR (1975) 11 Delhi 539) to in alternative to the relief of specific
performance, claim the relief of compensation for breach of contract and for
refund of the monies already paid by the plaintiffs to the defendants. The
plaintiffs, by way of amendment, are not giving up or abandoning the relief
of specific performance and substituting the same with the relief of
damages.
15. As far as reference to Ram Mohan supra is concerned all that has
been held therein is that a plaintiff who has by his own conduct made
specific performance impossible, cannot claim damages inasmuch as
damages in lieu of specific performance are in a case where the plaintiff
though ought to be granted a decree for specific performance is not granted
the same for any other reasons not attributable to the plaintiffs.
16. I have recently in Ram Mohan Vs. Anil Kumar 2017 SCC OnLine
Del 10922 dealt with the aspect in detail.
17. There is thus no merit in the opposition of the defendant no.1.
18. The application is allowed and disposed of.
IA No.14759/2017 (of the defendant no.1 u/O VIII R-1A CPC for filing
additional documents)
19. The counsel for the plaintiffs states that he has no objection and the
documents filed along with the application can be read at the time of final
arguments, without the plaintiff insisting on proof thereof.
20. Recording the aforesaid, the application is allowed and disposed of.
IA No.24275/2014 (of the defendant no.1 for production of documents
by plaintiffs)
21. The counsel for the defendant no.1 states that the documents of which
production was sought are the same, copies whereof have been filed with IA
No.14759/2017 aforesaid and in view of the order aforesaid, this application
has become infructuous.
22. The application is disposed of as infructuous.
IA No.22180/2014 (of the defendant no.1 under Order XVIII Rule 17
CPC)
23. The counsel for the defendant no.1 states that this application was
filed for recall of PW1 for further cross-examination by defendant no.1 on
the aspect of ability to pay the balance sale consideration.
24. On enquiry, as to why the defendant no.1 did not cross-examine PW1
on the said vital aspect when he had appeared in evidence, the counsel for
the defendant no.1 / applicant states "because the documents filed along
with IA No.14759/2017 were then not available with the defendant no.1".
25. Now that the counsel for the plaintiffs has admitted to the documents
being read at the time of final arguments, in my view the defendant no.1
cannot be permitted to reopen the cross-examination of PW1.
26. The application is dismissed.
IA No.22882/2014 (of the defendants no.2&3 for directions)
27. The counsels state that this application, vide order dated 11 th
February, 2016, has been ordered to be taken up at the time of final
arguments.
CS(OS) No.256/2012
28. The amended plaint filed along with IA No.11373/2017 is taken on
record.
29. Written statements, if any, thereto be filed on or before 12 th January,
2018.
30. Replications thereto on or before 12th February, 2018.
31. List for framing of additional issues if any on 26th February, 2018.
RAJIV SAHAI ENDLAW, J.
DECEMBER 12, 2017
„gsr‟..
