Delhi High Court
Vikesh Majithia & Anr. vs Smt. Asha Rani on 28 September, 2021
$~1 [2021]
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 28.09.2021
+ FAO (COMM) 137/2021 & CM No.31707/2021
VIKESH MAJITHIA & ANR. ..... Appellants
Through: Mr. S.K. Sharma with Mr. Tejas
Singh, Advs.
versus
SMT. ASHA RANI ..... Respondent
Through: Mr. Shivansh Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE TALWANT SINGH
[Court hearing convened via video-conferencing on account of COVID-19]
RAJIV SHAKDHER, J. (ORAL):
1. On the previous date i.e., 15.09.2021, when the appeal was listed for
the first time before us, we recorded the following:
"2. Mr. S.K. Sharma, who appears on behalf of the
appellants/plaintiffs, says that, there is a possibility of the
parties arriving at a settlement, and therefore, limited notice
may be issued, for this purpose, in the matter.
3. To be noted, this appeal is directed against the order dated
3.9.2021, passed by the Learned District Judge in an
application filed under Order XXXIX Rules 1 and 2 of the Code
of Civil Procedure, 1908.
3.1. A perusal of the record shows that, the appellants, who are
the original plaintiffs, have filed a suit for specific performance
of the collaboration agreement dated 7.1.2014, executed by
them with the respondent/defendant.
3.2. Mr. Sharma does not dispute the fact that, the subject
superstructure had to be built in 16 months. It is, however, his
contention that, the date for commencement of that period
would get triggered only, after the building plan was
sanctioned by the concerned municipal authorities.
Signature Not Verified 3.3. It appears from the record that, the respondent/defendant
By:VIPIN KUMAR RAI
Signing Date:03.10.2021
21:23:03
has taken the position that, since the appellants/plaintiffs were
at fault, and delayed performance obligations undertaken by
them, the collaboration agreement
was terminated by her, via a legal notice dated 24.2.2018.
3.4. It appears that, thereafter, the respondent/defendant
entered into a fresh collaboration agreement with another
person/entity, in August 2020. On being queried, Mr. Sharma
does concede that, after the execution of the fresh collaboration
agreement, the new collaborator has constructed, at subject
site, two storeys.
3.5. It is on account of these broad facts that, the Learned
District Judge did not deem it fit to grant any injunction to the
appellants/plaintiffs.
4. However, since Mr. Sharma says that, there is a possibility of
a settlement being arrived at between the parties, albeit
through mediation, notice shall issue on this limited aspect to
the respondent/defendant, via all permissible modes including
e-mail.
5. List the matter on 28.9.2021."
2. Today, Mr. Shivanshu Kumar, Advocate has entered appearance on
behalf of the respondent [i.e., the original defendant].
2.1. Mr. Kumar says that, he will file his vakalatnama with the Registry of
this Court, within the next two days.
2.2. Mr. Kumar says that, while the respondent would have no objection,
if the parties are referred to a mediator, however, since the respondent is
approximately 86 years old, the trial in the matter should be expedited.
3. Mr. A.K. Sharma, who appears on behalf of the appellants [i.e., the
original plaintiffs], says that, the appeal can be disposed of with an
appropriate direction, for expediting the completion of pleadings, and
hastening the trial, even while the parties attempt to settle the matter with
intercession of the court appointed mediator.
4. We may also record that, Mr. Sharma says that, the appellants wish to
amend their plaint.
Signature Not Verified
By:VIPIN KUMAR RAI
Signing Date:03.10.2021
21:23:03
4.1. Mr. Kumar says that, he would have no objection, if an application is
moved for amendment of the plaint before the trial court.
5. Accordingly, the appeal is disposed of with the following directions:
(i) The appellant will have leave to move the trial court for
amending the plaint, by filing an appropriate application, in that
behalf. The application will be moved within the next 10 days.
(ii) If such an application is moved, the respondent will file a reply,
whereupon the trial court will pass an appropriate order on the
amendment application.
(iii) If amendment is allowed, the trial court will also grant leave to
the respondent, to file a written statement in the matter.
(iv) The appellants, if they so desire, will be granted leave to file a
replication in the matter.
(v) The exercise of completing pleadings in the matter will be
carried out, at the earliest, though not later than four weeks from the
date, when order is passed qua the amendment application.
(vi) Since, at this juncture, the respondent's written statement to the
unamended plaint stands filed, in case, the amendment application [if
so, moved by the appellants] is not allowed, the appellants will file
their replication, within two weeks of such a decision being taken on
the amendment application.
(vii) The appellants will file their affidavit concerning admission and
denial to the respondent's documents, within two weeks from today.
(viii) To be noted, we are told that the respondent has already filed its
affidavit concerning admission/denial of documents filed by the
appellants.
(ix) The trial court will frame the issue in the matter, within the next
Signature Not Verified six weeks.
By:VIPIN KUMAR RAI
Signing Date:03.10.2021
21:23:03
(x) The trial court will endeavour to dispose of the suit at the
earliest, though not later than six months of the evidence being
recorded.
(xi) De hors the aforesaid directions, the parties and/or their
counsel will present themselves before the Delhi High Court
Mediation and Conciliation Centre on 11.10.2021, at 3.00 p.m.
6. Consequently, pending application shall also stand closed. The case
papers shall stand consigned to the record.
RAJIV SHAKDHER, J.
TALWANT SINGH, J.
SEPTEMBER 28, 2021/pmc
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Signature Not Verified
By:VIPIN KUMAR RAI
Signing Date:03.10.2021
21:23:03
