Anant Raj Agencies Pvt. Ltd. vs Sudershan Soni & Ors.
2017 Latest Caselaw 6731 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) No.980/2004

%                                                  27th November, 2017

ANANT RAJ AGENCIES PVT. LTD.                 ..... Plaintiff
                 Through: Ms. Biji Rajesh, Advocate with
                            Mr. Anivesh Bhardwaj,
                            Advocate.
                 versus
SUDERSHAN SONI & ORS.                                   ..... Defendants
                 Through:                Mr. Ravi Krishan Chandna,
                                         Advocate with Ms. Sukanya
                                         Lal, Advocate and Ms. Bindiya
                                         Logawney, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

I.A. No.13912/2017 (condonation of delay)

1.

For the reasons stated in the application, delay of 14 days

in filing the appeal is condoned.

I.A. stands disposed of.

O.A.No.153/2017(filed by the plaintiff against order dated 26.9.2017)

2. This chamber appeal is filed by the plaintiff in the suit

impugning the order of the Joint Registrar dated 26.9.2017 by which

the Joint Registrar has dismissed the I.A. No.13949/2016 filed by the

plaintiff under Order VII Rule 14 of Code of Civil Procedure, 1908

(CPC). By the application, the plaintiff wants to place on record

audited balance sheets and income tax returns of the plaintiff-company

from the year 2004 to 2016 in order to prove the financial capacity of

the plaintiff. Obviously this financial capacity is required to be proved

in order to prove readiness and willingness under Section 16(c) of the

Specific Relief Act, 1963.

3. The Joint Registrar has dismissed the application by

observing that issues in this case were framed way back on 13.3.2006

and parties had already concluded their evidence by the time the

application for filing the additional documents came up for hearing.

The Joint Registrar has also observed that surely the type of

documents which are sought to be got placed on record and proved

were always in the knowledge of the plaintiff-company being its

audited balance sheets and the income tax returns, and therefore, the

application cannot be allowed for bringing on record additional

documents in the year 2016 i.e after around a period of 12 years. Joint

Registrar has finally concluded that at the stage of final arguments if

additional evidence being additional documentary evidence is allowed

the same will result in de novo trial because even the defendants will

have to be given opportunity to lead fresh evidence to rebut the

evidence and the case which is then put forth on behalf of the plaintiff.

4. In my opinion the Joint Registrar has made the following

relevant observations to dismiss the application under Order VII Rule

14 CPC filed by the plaintiff and which read as under:-

"In order to appreciate, the rival contentions of the parties, it is expedient to reproduce the relevant provisions as contained Under Order 7 Rule 14 CPC. The same is reproduced here under for ready reference:

"Production of document on which plaintiff sues or relies

- (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) where any such document is not in the possession or power of the plaintiff , he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing, in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."

In the present case, record reveals that issues in the case were framed on 13.03.2006. The parties have already concluded their evidence. The additional documents which are sought to be filed and brought on record by plaintiff at this stage were already in the knowledge of the plaintiff and the plaintiff was in power and possession of the same. The plaintiff filed the present suit in the year 2004. He moved the application for bringing the additional documents on record in the year 2016 i.e. after a period of around 12 years.

Plaintiff has not shown any just and reasonable grounds which precluded it from bringing the additional documents on record either at the stage of

pleadings or at the stage of admission/denial of documents or even during the course of evidence in the matter. Plaintiff has further failed to show on record that the additional documents which are sought to be filed at this stage were not within the knowledge of plaintiff or the plaintiff despite due diligence could not procure them at earlier stage. The parties have already concluded their evidence. Matter is at the stage of final arguments. If the additional documents of plaintiff are taken on record at this stage, it will result in de-novo trial as the opposite party will also have to be given chance to file additional documents in rebuttal and this will lead to fresh trial.

The defendants cannot be permitted to be taken by surprise by filing additional documents at this stage when the parties have already concluded their evidence.

Plaintiff has failed to furnish any cogent and sufficient grounds as to why the additional documents were not earlier filed, despite, they were in the knowledge and possession of the plaintiff.

For the reasons discussed above, no justification or reasons for taking the additional documents of plaintiff on record at this stage is made out, hence the application of plaintiff is hereby dismissed.

IA stands disposed of accordingly."

5. De hors what is held in the impugned order of the Joint

Registrar dated 26.9.2017, I have gone through the audited balance

sheets and the income tax returns which are sought to be brought on

record and proved by the plaintiff. Before examining these documents

it is relevant to note that the subject suit for specific performance is

based on an oral agreement to sell and admittedly the plaintiff had

paid only a sum of Rs.10 lacs out of the alleged total sale

consideration of Rs.6,76,50,400/- i.e the balance due and payable by

the plaintiff to the defendants would be a sum of Rs.6,66,50,400/-.

Therefore, it is this balance amount or capacity to pay the balance

amount which must be reflected in the audited balance sheets and the

income tax returns which are now sought to be filed.

6. A reading of the audited balance sheets and the income

tax returns show that so far as bank balances of the plaintiff are

concerned, the same were barely in the region of about Rs.3 lacs as on

31.3.2004 and on 31.3.2005 the bank balances became about

Rs.9,50,000/-. Even the subsequent balance sheets do not show the

availability of cash balance of Rs.6,66,50,400/-. In law besides actual

liquid amount, Courts also have to see for determining the financial

capacity of a buyer/plaintiff the financial assets in a suit for specific

performance and in this regard counsel for the plaintiff has taken me

through the fact that in the balance sheets fixed assets are shown of the

plaintiff running into about Rs.8crores as on 31.3.2004 and

approximately Rs.15.89 crores as on 31.3.2005 and so on, however, in

my opinion even if this evidence is considered it will be a very vague

evidence because what are the fixed assets in the sense that what are

the immovable properties, what are the details of these immovable

properties, where are the title deeds of these immovable properties,

whether these immovable properties are encumbered with any

financial institution or not, what is the otherwise status of these

properties etc etc will have to be exactly known as all these aspects

will be required to decide the issue of readiness and willingness under

Section 16(c) of the Specific Relief Act. Such vague evidence by

simple categorization in the balance sheets of fixed assets and other

assets will not help the plaintiff more so because it is seen that

plaintiff as per these very documents also is liable to its creditors on

account of its liabilities running into Rs.14 crores as on 31.3.2004 and

running into over Rs.46 crores on 31.3.2005 onwards. The balance

sheets etc will thus not exactly reflect the exact financial capacity

required to be proved in a suit for specific performance. Such

evidences which are now sought to be brought do not reflect exaction

so far as the financial capacity, and that such documents being

therefore only vague evidence the same cannot be looked into as being

evidence to decide the issue of readiness and willingness under

Section 16(c) of the Specific Relief Act.

7. The aforesaid observations made by this Court are in

addition to the correct reasoning given by the Joint Registrar for

dismissing the application vide the Joint Registrar's order dated

26.9.2017.

8. Considering the facts of the present case, and the

reasoning given by the Joint Registrar and as supplemented by this

Court, I do not find any merit in the appeal.

9. O.A. is accordingly dismissed.

NOVEMBER 27, 2017                               VALMIKI J. MEHTA, J
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