Delhi High Court
Dr V B Roy & Anr vs Ravindra Kishore Sinha on 5 September, 2017
$~38&39.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.961/2017 & CM No.32286 (for stay).
DR V B ROY & ANR ..... Petitioners
Through: Mr. A.K. Verma and Mr. Vibhu
Verma, Advs.
versus
RAVINDRA KISHORE SINHA ..... Respondent
Through: Mr. Manish Mohan with Ms.
Shivangi Sinha and Ms. Manisha
Saroha, Advs.
AND
+ CM(M) No.962/2017 & CM No.32289/2017 (for stay).
DR V B ROY & ANR ..... Petitioners
Through: Mr. A.K. Verma and Mr. Vibhu
Verma, Advs.
versus
RAVINDRA KISHORE SINHA ..... Respondent
Through: Mr. Manish Mohan with Ms.
Shivangi Sinha and Ms. Manisha
Saroha, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 05.09.2017
CM No.32287/2017 and CM No.32288/2017 (both for exemption) in
CM(M) No.961/2017 and CM No.32290/2017 and CM No.32291/2017
(both for exemption) in CM(M) No.962/2017.
1. Allowed, subject to just exceptions.
2. The applications stand disposed of.
CM(M) No.961/2017 & CM No.32286 (for stay). and CM(M)
No.962/2017 & CM No.32289/2017 (for stay).
3. These petitions, both under Article 227 of the Constitution of India,
impugn the order (dated 25th May, 2017 in CS No.2995/2016 of the Court of
Additional District Judge-02 (East District), Karkardooma Courts, Delhi) of
dismissal of three applications filed by the petitioners / defendants.
4. The first application was under Order XI Rules 12&14 of the Code of
Civil Procedure, 1908 (CPC) for a direction to the respondent / plaintiff to
produce the complaint made against the petitioners / defendants to the
Police. The second application was under Order XVI Rule 6 of the CPC
seeking direction to the Commissioner of Police for production of the Action
Taken Report on the aforesaid complaint of the respondent / plaintiff. The
third application was under Order XIV Rule 5 of the CPC for framing of
additional issues.
5. These two identical petitions have been filed but the counsel for the
petitioners / defendants clarifies that the challenge in CM(M) No.961/2017
is to dismissal of the application under Order XI Rules 12&14 of the CPC
and the challenge in CM(M) No.962/2017 is to dismissal of the application
under Order XIV Rule 5 of the CPC. The counsel on further enquiry states
that he has not challenged the dismissal of application under Order XVI
Rule 6 of the CPC.
6. The respondent / plaintiff instituted the suit, from which these
petitions arise, for recovery of a sum of Rs.32,00,000/- stated to have been
advanced as loan to the petitioners / defendants. The petitioners / defendants
in their written statement do not dispute receipt of the said amount of
Rs.32,00,000/- from the respondent / plaintiff but claim the same to be as
advance sale consideration for sale of the property by the petitioners /
defendants to the respondent / plaintiff and claim to have forfeited the said
sum of Rs.32,00,000/- for failure of the respondent / plaintiff to perform the
balance part of the said Agreement.
7. The counsel for the respondent / plaintiff appears on advance notice.
8. I have enquired from the counsels whether there is any Agreement to
Sell in writing providing for such forfeiture.
9. The counsels for the parties state that there is no Agreement to Sell in
writing and the Agreement was oral but the respondent / plaintiff in the
complaint aforesaid to the Police had admitted the transaction of Agreement
to Sell.
10. I have further enquired from the counsel for the petitioners /
defendants, what was the sale consideration and whether the same is also
recorded in the complaint made by the respondent / plaintiff to the Police.
11. The counsel for the petitioners / defendants states that there is a
difference between what the respondent / plaintiff claims the sale
consideration to be and what the sale consideration was according to the
petitioners / defendants. However both counsels clarify that there is no
mention in the complaint aforesaid of any Agreement of Forfeiture by the
petitioners / defendants of the amount received of Rs.32,00,000/.
12. I have enquired from the counsel for the petitioners / defendants,
whether in the absence of any forfeiture clause in writing, any forfeiture can
be effected. Attention of the counsels is invited to the dicta of the Supreme
Court in Kailash Nath Associates Vs. Delhi Development Authority (2015)
4 SCC 136 and thereafter to the judgment of this Court dated 31st July, 2017
in CRP No.3/2017 titled Palm Art Apparels Pvt. Ltd. Vs. Enkay Builders
Pvt. Ltd. holding that forfeiture can only be of earnest money and not of part
sale consideration and only when there is a specific agreement therefor and
in the absence thereof, without proof of damage having been suffered, no
forfeiture can be effected.
13. The counsel for the petitioners / defendants admits that the petitioners
/ defendants in their written statement have not pleaded any loss or damages
having been suffered by them or given any particulars thereof and no issues
have been framed to that effect.
14. The argument of the counsel for the petitioners / defendants is that
since the respondent / plaintiff has sued for recovery of money on the basis
of a loan transaction, without proving the said transaction, cannot recover
the money.
15. Attention of the counsels has been drawn to Order VII Rule 7 of the
CPC and to the dicta of this Court in Sukho Devi Vs. Laxmi Devi 2013 SCC
OnLine Del 3125 and SRM Infracon Pvt. Ltd. Vs. AN Elegant Hospitality
2016 SCC OnLine Del 6500 which appear to suggest that if the Court
ultimately finds money to be due from the defendant to the plaintiff but on a
different account than that pleaded in the plaint, the Court can still grant
relief rather than relegating the parties to further litigation.
16. I have made all the aforesaid observations being of the view that in
exercise of powers under Article 227 of the Constitution of India, it is the
duty of this Court to ensure that the proceedings before the Trial Court are
conducted in accordance with law and the time of the Court is not unduly
wasted. It appears that if the suit can be decided on the aforesaid principles,
the time and money of the parties and time and resources of the Court
should not be unnecessarily spent on trial when the same time can be
devoted to other suits which cannot be decided without trial.
17. Be that as it may, in so far as these petitions are concerned, I have
enquired from the counsel for the respondent / plaintiff the objection of the
respondent / plaintiff to produce the copy of the complaint.
18. The counsel for the respondent / plaintiff states that the respondent /
plaintiff has on affidavit accompanying the reply to the application under
Order XI Rules 12 and 14 of the CPC already stated that the respondent /
plaintiff is not possessed of any copy of the complaint.
19. The counsel for the petitioners / defendants states that it has not been
so expressly stated.
20. The counsel for the respondent / plaintiff states that on or before the
next date of hearing, affidavit of the respondent / plaintiff categorically
stating that the respondent / plaintiff is not possessed of any copy of the
complaint made, shall be filed before the Trial Court.
21. That takes care of CM(M) No.961/2017.
22. As far as the challenge in CM(M) No.962/2017 to the dismissal of the
application under Order XIV Rule 5 of the CPC is concerned, in view of
what has been observed hereinabove, the additional issues sought, inter alia
to the effect that if the respondent / plaintiff fails in proving the loan
transaction, he will be left with no cause of action for the suit and whether
the respondent / plaintiff is estopped from taking a stand of loan in view of
the complaint earlier made, do not arise for consideration and no error can
be found in the order of dismissal of the application under Order XIV Rule 5
of the CPC.
23. Resultantly CM(M) No.962/2017 is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 05, 2017
'pp'..(Corrected and released on 6th October, 2017).
