Delhi High Court
Suresh Kumar Gera vs Syed Faiz Murtaza Ali And Others on 31 January, 2018
$~OS-7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 31.01.2018
+ CS(OS) 2457/2009
SURESH KUMAR GERA ..... Plaintiff
Through Mr.Vinay Gupta, Adv. with
Mr.Manish Dua and Ms.V.Deepti, Advs.
versus
SYED FAIZ MURTAZA ALI AND OTHERS E+..... Defendant
Through Mr.Rajesh Pathak, Mr. K.B.
Upadhyay and Mr. Abhishek Chakraborty, Advs.
for D-1.
Mr.T.N.Saxena and Mr.Nihar Berry, Advs. for D-3
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. This suit is filed by the plaintiff for recovery of Rs.3.08 crores.
2. The facts which are pleaded make a somewhat remarkable reading. It
is stated that defendant No.1 was the recorded owner of the property i.e. A-
4, Chirag Enclave, New Delhi. The plaintiff is said to have become
interested in purchasing the said property. He entered into an agreement to
sell on 28.01.2005 whereby he along with defendant No.4 agreed to
purchase the said property. A sum of Rs.30 lacs was paid in cash by the
plaintiff to defendant No.1 on 28.01.2005. It is further pleaded that there
was a delay on the part of defendant No.1 to perform his part of the
agreement causing concern and apprehension. Thereafter, a second
agreement to sell was executed on 06.10.2005 where the consideration is
CS(OS)2457/2009 Page 1
said to have been enhanced to Rs.9 crores on account of an
undertaking/assurance given by defendant No.1 to get the property vacated
from the tenant, namely, Shri Harish Reddy. A sum of Rs.20 lakhs was also
given to defendant No.1 by the plaintiff. A cheque of Rs.2 crores was issued
to defendant No. 1 by defendant No.4. Again, confusion started and it is
pleaded that defendant No.4 threatened to back out from the assurance that
the cheque of Rs.2 crores would be encashed as the plaintiff and defendant
No.4 thought that defendant No.1 was not ready to conclude the deal. A
fresh agreement to sell was executed on 08.10.2005. The plaintiff gave
another sum of Rs.50 lacs to defendant No.1.
3. It appears that despite the three agreements to sell, defendant No.4,
namely, Sh. Amar Chand Goyal decided to back out from the deal. The
plaintiff accordingly requested defendant No.1 to return his Rs.1 crores. A
fourth agreement to sell was then executed on 29.05.2006 but instead of
defendant No.4, Mr.S.C. Maheshwari became a party who was defendant
No.2 but subsequently had been deleted from the array of parties.
4. Now, a fifth agreement to sell also came about on 31.10.2006
whereby Mr.S.C. Maheshwari, the erstwhile defendant No.2 is substituted
by his daughter-in-law i.e. defendant No.3-Ms.Archana Maheshwari. As per
the said agreement to sell dated 31.10.2006, it was agreed that the
consideration amount would be Rs.8 crores. It was also noted that the
second party, namely, the plaintiff and defendant No.3 had paid an amount
of Rs.2 crores to defendant No.1. The second party undertook to pay Rs.2
crores to plaintiff for and on behalf of defendant No.1. Balance amount of
Rs.4 crores was to be paid to defendant No.1 at the time of execution of sale
deed/GPA which was to be done on or before 15.12.2006 failing which the
CS(OS)2457/2009 Page 2
agreement would stand cancelled and all advances paid shall stand forfeited.
5. This suit is based on this document, namely, the agreement to sell
dated 31.10.2006.
6. The curious manner in which the suit has proceeded does not come to
an end here. It appears that on service of summons for judgment, defendants
No.1 and 3 entered appearance and also filed their applications for leave to
defend. Defendant No.1 filed I.A. No. 2091/2010 praying for leave to
defend. Defendant No.3 filed I.A.1830/2010. Thereafter, defendant No.1 has
filed I.A.9642/2010 praying that he may be permitted to withdraw
I.A.2091/2010. The aforesaid application, namely, IA No. 9642/2010 was
allowed on 03.01.2011 and the application seeking leave to defend of
defendant No.1 i.e. IA No. 2091/2010 stood dismissed as withdrawn.
However, for some unknown reason, a decree was not passed in the present
suit on that date.
7. As far as defendant No.3 is concerned, her application for leave to
defend, namely, I.A.1830/2010 was dismissed in default on 16.02.2010. She
moved an application for restoration of the said application which was also
dismissed on 06.07.2012. Again, on the said date no decree was passed
against defendant No.3 despite the fact that her application for leave to
defend had been dismissed.
8. In the meantime, on 20.06.2013, defendant No.1 expired. His LRs
have been brought on record. The LRs filed an application being IA No.
15435/2015 seeking leave to defend. This application was dismissed on
03.08.2015. Thereafter, the LRs of defendant No.1 filed an appeal being
FAO(OS) No. 543/2015. The Division Bench on 23.02.2016 dismissed the
said appeal noting the confusion that has been going on in the present
CS(OS)2457/2009 Page 3
proceedings compounded by various aspects including the needless
applications filed by the defendants. An SLP filed against the said order was
also dismissed on 02.05.2016.
9. What would follow now? A summary suit has been filed.
Applications for leave to defend have either been dismissed as withdrawn or
dismissed in default. Under Order XXXVII CPC, a decree has to follow.
10. Learned counsel appearing for defendant No.1 has vehemently
opposed the passing of the decree. Firstly, he submits that on the face of it,
the plaint is barred by limitation and hence, this court should dismiss the suit
in view of Section 3 of the Limitation Act. He has also pointed out that a
perusal of the plaint would show that the claim of the plaintiff is beyond the
contract inasmuch as per the agreement to sell dated 31.10.2006, at best,
defendant No.1 had to pay Rs.2 crores to the plaintiff. He submits that even
as per the case of the plaintiff, he had paid only Rs.1 crore to defendant
No.1. This figure is sought to jump up to more than Rs.3 crores when the
present suit is filed and hence, Order XXXVII CPC is not attracted.
11. Defendant No. 3 has adopted the submissions of defendant No.1.
12. Learned counsel for the plaintiff has pointed out that the illegal
conduct of the defendants has continued unabated. He has pointed out that
after the last agreement to sell between the parties dated 31.10.2006,
defendants No.1 and 3 entered into another agreement to sell on 16.12.2006
with Mr.Asar Raja Zaidi where defendant No.3 is also a party. Thereafter,
he has pointed out that defendant No.1 has sold the suit property to Terra
Real Estate Pvt. Ltd. on 08.01.2010 vide registered agreement to sell. He
submits that defendant No.3 is on the Board of Directors of Terra Real
Estate Pvt. Ltd. and has relied upon the relevant form of the said company
CS(OS)2457/2009 Page 4
which shows Directors as Ms.Indu Maheshwari and Ms.Archana
Maheshwari.
13. I may first see the contents of the agreement to sell dated 31.10.2006.
The same reads as follows:-
"1. That the amount of consideration agreed between the parties
for the 'property' is Rs.8.00 crores (Eight Crores) out of which
the Second Party has paid an amount of Rs. 2.00 Crore, vide
Cheque No.336270 dated 19.6.06 amounting to Rs.l2,50,000/-,
vide Cheque No.848930 dated 19.6.06 amounting to
Rs.7,50,000/-, vide Cheque No. 154372 dated 19,6.06 amounting
toRs.30,00,000/- and vide Cheque No.681388 dated 17.8.06
amounting to Rs.25,00,000/- in favour of the Vendor and plus
Rs.l.25 crore in cash.
2. That out of the balance amount, the Second Party has
undertaken to pay Rs.Two crore to Shri S.K. Ghera for and on
behalf of the First Party, and the balance amount of Rs. Four
Crore shall be paid to the Vendor at the time of the execution of
the Sale Deed/or General Power of Attoney duly registered on or
before 15.12.2006, failing which this agreement would stand
cancelled and all advances paid shall stand forfeited.
3. That all present and future litigation pertaining to the above-
referred property would be the responsibility of the Second
Party."
14. As per the above agreement, the second party has undertaken to pay
Rs.2 crores to Sh. S.K. Ghera. Second party is described as Smt. Archana
Maheshwari (defendant No.3) and Shri S.K. Ghera. It is implicit from a
reading of this document that it was Smt. Archana Maheshwari who has
undertaken to pay Rs.2 crores to the plaintiff on behalf of defendant No.1.
CS(OS)2457/2009 Page 5
15. Further, the agreement to sell also states that the transaction has to be
completed by 15.12.2006 failing which the agreement would stand cancelled
and all advances shall stand forfeited. It is the plea of defendant No.1 that
limitation period would commence w.e.f. the said date and the suit has been
filed subsequently on 14.12.2009 when the plaint was verified.
16. Learned counsel for the plaintiff has however clarified that the plaint
was actually filed on 29.10.2009. Thereafter, as there were some objections,
the plaint was returned and was re-filed after removing all the objections on
16.12.2009. He also points out that along with the plaint an application for
condonation of delay in re-filing was also moved. The application being
I.A.16579/2009 was allowed on 21.12.2009.
17. Against the said order dated 21.12.2009, defendant No.1 had filed an
appeal before the Division Bench being FAO(OS) 110/2010. The Division
Bench on 18.02.2010 did comment adversely against the plaintiff stating
that the original record shows that the plaint had been filed on 29.10.2009
but the plaint was verified on 14.12.2009. The court noted that the plaint
was returned under objections number of times. It also noted the
submissions of the learned counsel for the plaintiff that since there were
subsequent developments, amendments were made in the plaint. The
Division Bench frowned upon this procedure of adding material to the plaint
without permission of the court. However, the appeal was dismissed stating
that it was not an appealable order and liberty was granted to raise all issues
at the time of filing of application for leave to defend in accordance with the
law. As noted, the application for leave to defend was filed but was
withdrawn by defendant No.1.
18. It is quite clear that order dated 21.12.2009 stands. In view of the fact
CS(OS)2457/2009 Page 6
that the original filing is of 29.10.2009 and the delay in re-filing has been
condoned, the suit is within the period of limitation.
19. As far as the amount claimed in the plaint is concerned, learned
counsel for the plaintiff has admitted that as per the agreement to sell in
question, defendants No.1 and 3 were to pay a sum of Rs.2 crores. He
however, submits that the figure of Rs.3.08 crores has been arrived at in
view of the interest which was calculated @ 18% per annum. He admits that
to this effect, there is no clear averment in the plaint. Hence, he does not
press the issue of interest prior to filing of the suit. He, however, requests
that interest may be awarded pendente lite after filing of the suit.
20. Accordingly, in view of the above, it is quite clear that the suit is
based on the liability as stated in agreement to sell dated 31.10.2006.
21. It is quite obvious that once the applications for leave to defend of
defendants No.1 and 3 have been dismissed as withdrawn /dismissed in
default, the suit would have been decreed. In fact, the same observations
have been made by the Division Bench in FAO(OS) No.543/2015. I may
only note that the Division Bench in para 6 of its judgment dated 23.02.2016
had noted that prima-facie on a meaningful reading of the plaint, the suit
would lie against defendant No.1 and defendants No.2 to 4 were impleaded
as unnecessary party. However, the Division Bench noted that this issue
would not be expanded because it would be irrelevant.
22. I have noted the contents of the agreement to sell above. In my
opinion, a reading of the same would show that as per the said agreement to
sell dated 31.10.2006, defendant No.3 has also agreed in the capacity as a
party to agreement to sell to pay on behalf of defendant No.1 the sum of
Rs.2 crores to the plaintiff.
CS(OS)2457/2009 Page 7
23. Accordingly, I pass a decree in favour of the plaintiff and against
defendants No.1 and 3 for a sum of Rs.2 crores. Plaintiff shall also be
entitled to simple interest @ 10 % p.a. from the date of filing of the present
suit till the date of decree. Plaintiff shall also be entitled to simple interest
@10 % p.a. from the date of decree till recovery. The plaintiff shall also be
entitled to costs.
24. Suit stands disposed of. All pending applications, if any, also stand
disposed of accordingly.
JAYANT NATH, J
JANUARY 31, 2018
Rb
Corrected & signed on 23.2.2018
CS(OS)2457/2009 Page 8
