Delhi High Court
Jai Bhagwan vs Rakesh & Anr on 9 March, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 9th March, 2018.
+ CS(COMM) 129/2016 & IA No. 2365/2016 (u/O XXXIX R 1 & 2
CPC), IA No.3741/2017 (u/S 151 CPC)
JAI BHAGWAN ..... Plaintiff
Through: Mr. Badal Dayal, Adv.
Versus
RAKESH & ANR ..... Defendants
Through: Mr. Durgesh Kumar Pandey, Adv.
for D-1.
Mr. Sudeep Yadav, Adv. for D-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
The plaintiff has instituted this suit for specific performance of
Agreement to Sell dated 30th January, 2013 with respect to 2 bigha 2 biswas
of Khasra No. 86/2 situated in the revenue estate of village Pooth Khurd,
Delhi and in the alternative for recovery of Rs. 26 lacs with interest and for
permanent injunction.
2. The suit was entertained and summons thereof issued, though no ex
parte relief sought of restraining the two defendants, namely, Rakesh and
Jitender Singh against whom the suit was filed, from dealing with the
property, granted.
3. Pleadings in the suit have been completed and the suit is ripe for
framing of issues and for hearing of the application for interim relief.
4. The counsel for the plaintiff on enquiry states; (i) that the Agreement
of the plaintiff is with the defendant No.1; (ii) that the defendant No.1 after
the Agreement to Sell with the plaintiff, has sold a part of the property to the
defendant No.2 Jitender Singh; (iii) that the total sale consideration of the
Agreement to Sell was Rs.1,16,82,083/- and the plaintiff at the time of
Agreement to Sell paid a sum of Rs. 13 lacs in cash as advance; (iv) that no
date for performance of the said Agreement was fixed; (v) that the defendant
No.1 is denying having entered into any Agreement to Sell or having
received any amount of Rs. 13 lacs from the plaintiff.
5. A perusal of the Agreement to Sell, of which specific performance is
claimed and of which only a photocopy has been filed before this Court
shows the defendant No.1 to have entered into the Agreement to Sell with
the plaintiff 'on behalf of Isshu, Tusar ss/o late Sh. Narender' and the
Agreement further recites that the said Isshu and Tusar are the owners in
absolute possession of land agreed to be sold and the time for completion of
the bargain as having been fixed 'up to one month from the date of issue of
guardian certificate in favour of Smt. Rakesh'.
6. The plaintiff has not impleaded the said Isshu and Tusar as defendants
in the suit.
7. The counsel for the plaintiff, on enquiry states that the said Isshu and
Tusar were/are minor sons of defendant No.1 Rakesh and since the plaintiff
had entered into an agreement with the defendant No.1 only and not with the
said Isshu and Tusar, the plaintiff has sued the defendant No.1 only and need
to sue the said Isshu and Tusar is not felt.
8. Aforesaid stand of the plaintiff is totally contrary to law. Even if the
defendant No.1, as the mother and guardian of the minors had entered into an
agreement to sell with the plaintiff, it was incumbent upon the plaintiff,
seeking specific performance of the said Agreement, to sue the said Isshu
and Tusar for specific performance and to file an application seeking
appointment of their mother or anyone else as their guardian for the purposes
of suit. The provisions of Order XXXII Rule 3(2) of the Code of Civil
Procedure, 1908 (CPC) are clear in this regard and a suit against a guardian,
for specific performance of an agreement to sell entered into by the guardian
on behalf of the minor wards, would not lie and the decree if any therein
would not bind the minors. For a decree binding the minors to be passed, the
minors have to be a party to the suit and the suit has to be accompanied with
an application for appointment of their guardian. If the minors are not
impleaded as defendants, the question of this Court appointing their guardian
for purposes of the suit, or satisfying itself that the interest of the guardian is
not adverse to the minors, will not arise. Moreover, once the property
belongs to minors, a decree for specific performance against mother of the
minors, even if had entered into agreement to sell on behalf of minors,
cannot be executed by transfer of property, admittedly of minors. Without
the minors being parties, other safeguards provided in Order XXXII of CPC,
to safeguard the interest of minors, would also not come into play.
Moreover, if it was possible or permissible in law to sue the guardian for
relief against minor, without impleading the minor, the occasion for
incorporating Order XXXII in CPC would also not have arisen.
9. The counsel for the plaintiff at this stage states that the defendant No.1
is also owning 1/3rd share.
10. All that can be observed is that it is not so spelled out in the
Agreement to Sell which describes the defendant No.1 to have entered into
the Agreement on behalf of the minors and there is no recital of the
defendant No.1 having any share in the property.
11. Not only so, the present suit is found to have been instituted first on
29th January, 2016 but with defects and to have been re-filed successively on
12th February, 2016 and 16th February, 2016. The valuation of the suit for
the purposes of court fees and jurisdiction, in para 21 of the plaint is
Rs.1,16,82,083/-. Vide Delhi High Court Amendment Act which came into
force on 11th August, 2015, that is prior to the institution of the present suit,
the minimum pecuniary jurisdiction of this Court stood enhanced to above
Rs. 2 crores. The suit is below the same and ought not to have been
instituted in this Court.
12. However, it appears that the suit was entertained owing to the plaintiff
having labelled the same as a 'Commercial Suit'.
13. I have enquired from the counsel for the plaintiff as to how the present
suit qualifies as a Commercial Suit.
14. The counsel for the plaintiff states that since the dispute subject matter
of the suit has arisen out of an Agreement, the suit would be a commercial
suit.
15. The same is a layman's interpretation of law. The counsel for the
plaintiff has been handed over the Commercial Courts, Commercial Division
and Commercial Appellate Division of High Courts Act, 2015 to show
therefrom the Clause of Section 2(1)(c) thereof under which the suit would
qualify as a commercial suit.
16. The counsel for the plaintiff has fairly stated that it does not fall in any
of the said Clauses.
17. The suit thus is not a commercial suit and as an ordinary suit is below
the minimum pecuniary jurisdiction of this Court.
18. The plaint in the suit along with original documents if any and the
court fees is thus ordered to be returned to the plaintiff in accordance with
law, for institution, if the plaintiff so desires, in the court of appropriate
pecuniary jurisdiction.
19. The counsel for the plaintiff being raw, I refrain from imposing any
costs.
RAJIV SAHAI ENDLAW, J
MARCH 09, 2018
SRwt..
