Delhi High Court
Manjeet Singh vs Rakesh Billa on 25 February, 2019
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 26/2016
MANJEET SINGH ..... Plaintiff
Through: Mr. M.P. Sharma, Adv.
Versus
RAKESH BILLA ..... Defendant
Through: Mr. Anubhav Mehrotra, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 25.02.2019
1. The counsel for the defendant states that he has filed an application
for setting aside of the order dated 31st January, 2019 proceeding ex parte
against the defendant but which application has not been listed.
2. Nothing substantial transpired on 31st January, 2019 when the
defendant was proceeded against ex parte or thereafter and thus there is no
need for the defendant to apply for setting aside of the order proceedings ex
parte against the defendant and the defendant, in law is entitled to join the
proceedings. The defendant so joins the proceedings.
3. The suit otherwise, prior to the defendant being proceeded against ex
parte, was ripe for framing of issues.
4. The pleadings have been perused.
5. The plaintiff has instituted this suit for recovery of Rs.2.50 crores
with interest, pleading that Rs.1 crore was paid to the defendant as advance
under an Agreement to Sell and since the defendant has failed to perform his
part of the Agreement to Sell, the plaintiff in accordance with the
Agreement is entitled to double the amount i.e. of Rs.2 crores and to interest
thereon at 24% thereon of Rs.1.36 crores till the institution of the suit i.e. to
a total sum of Rs.3.36 crores but the suit is confined to recovery of Rs.2.50
crores only and the plaintiff waives interest of Rs.86 lacs.
6. The defendant, in his written statement though admits the signatures
on the Agreement to Sell but claims the said signatures to have been
obtained by the plaintiff on blank papers on account of relationship and also
denies payment of Rs.1 crore in cash by the plaintiff under the Agreement to
Sell as claimed by the plaintiff.
7. There is not an iota of plea in the plaint, of the loss if any suffered by
the plaintiff on account of alleged breach of the Agreement to Sell by the
defendant. The sole basis for the claim for principal amount of Rs.2 crores is
the clause in the alleged Agreement to Sell, entitling the plaintiff to double
the amount.
8. It is the settled position in law that the plaintiff, without pleading any
loss, cannot claim any amount by way of damage or penalty, as the claim for
the balance Rs.1 crore besides Rs.1 crore claimed to have been paid is.
Reference if any, required in this respect, can be made to Ram Mehar Vs.
Murari Lal (2011) 183 DLT 769, Praveen Talwar Vs. Naresh Kumar
Mittal 2018 SCC OnLine Del 12642, Praveen Oberoi Vs. Raj Kumari
(2014) 207 DLT 116, Kailash Nath Associates Vs. DDA (2015) 4 SCC 136,
Palm Art Apparels Pvt. Ltd. Vs. Enkay Builders Pvt. Ltd.
MANU/DE/3533/2017, Klintoz Pharmaceuticals Pvt. Ltd. Vs. Ravinder
Shankar Mathur 2018 SCC OnLine Del 11954, Satish Verma Vs. Garment
Craft (India) Pvt. Ltd. 2018 SCC OnLine Del 6829, UBI Vs. CG Ajay Babu
(2018) 9 SCC 529, Jaswant Singh Gill Vs. Bharat Coking Coal Ltd. (2017)
1 SCC 663 and Mera Baba Pvt. Ltd. Vs. Ram Luchaya Puri 2018 SCC
OnLine Del 9502.
9. The counsel for the plaintiff also agrees that such judgments exist but
is unable to explain as to how, notwithstanding the said judgments and
notwithstanding there being no plea in the plaint of any loss or damage, the
plaintiff is entitled to maintain the claim for Rs.1 crore besides the amount
of Rs.1 crore claimed to be paid. Thus, no issue in this respect is required to
be framed inasmuch as parties cannot be permitted trial on pleas which have
no basis in law.
10. Finding no particulars in the plaint as to how the plaintiff was
possessed of a sum of Rs.1 crore in cash and further finding the defendant,
in the written statement having expressly raised the said aspect and
notwithstanding the same, plaintiff in the replication also having not given
any particulars, the statement on oath of the plaintiff has been recorded.
11. What the plaintiff has deposed today does not form part of any
pleading and no documents have been filed by the plaintiff of having
borrowed the amounts claimed to have been borrowed from friends and
relatives.
12. On the pleadings of the parties, the following issues are framed:
(i) Whether the plaintiff, on 7th November, 2013 was possessed of
a sum of Rs.1 crore in cash and paid the same to the defendant?
OPP
(ii) Whether the signatures of the defendant on the Agreement to
Sell and Receipt relied upon by the plaintiff were obtained on
blank paper and if so, to what effect? OPD
(iii) If the above issues are decided in favour of the plaintiff,
whether the plaintiff is entitled to any interest and if so, at what
rate and for what period? OPP
(iv) Relief.
13. No other issue arises or is pressed.
14. The parties to file their list of witnesses within 15 days.
15. List for further consideration on 9th April, 2019.
RAJIV SAHAI ENDLAW, J
FEBRUARY 25, 2019
'gsr'..
