Nalin Khanna vs Vijay Kumar Bhatia and Others

Rajiv Sahai Endlaw, J.—The plaintiff has filed both the suits. Pleading:

(i) that the defendant No. 1 as sole proprietor of defendant No. 2 M/s. Vijay Cable Industries (the defendants No. 1 & 2 in both the suits are same) vide Transfer Deed cum Sale Deed, sold/transferred property hearing No. 31, Sector 8 Noida. U.P. to plaintiff for a sale consideration of Rs. 48,50,000/- paid by the plaintiff to/on behalf of, the defendants No. 1 & 2 and the defendants No. 1 & 2, delivered vacant. Peaceful and physical possession thereof to the plaintiff and the plaintiff is in possession thereof;

(ii) that the defendants No. 1 & 2 in the Transfer Deed cum Sale Deed had assured the plaintiff that the said property was free from all encumbrances and had also agreed to keep the plaintiff indemnified against the losses/damages. If any suffered by the plaintiff;

(iii) that however it subsequently transpired that the said property. Prior to its sale/transfer in favour of the plaintiff, was also attached in execution filed by the defendant No. 3 M/s. Dolf Leasing Ltd. in CS (OS) 1582/2009 and in another execution filed by defendant No. 3 Rubicon Securities Pvt. Ltd. in CS (OS) 1583/2009, of decrees against the defendants No. 1 & 2;

The plaintiff accordingly filed these two suits, for the reliefs of:

(a) directing the defendants No. 1 & 2 to indemnify the plaintiff with respect the plaintiff with respect to the purchase consideration paid by the plaintiff to the defendants No. 1 & 2 and with respect to the expenses incurred by the plaintiff in defending the aforesaid execution proceedings;

(b) for direction to the defendants No. 1 & 2 to provide appropriate security for such indemnification;

(c) for declaration that the decrees obtained by the defendants No. 3 each suit and in execution whereof the property aforesaid was attached, was void and non est; and

(d) for permanent injunction restraining the defendants No. 3 in each suit from proceeding with the executions.

The plaintiff in the applications being I.A. No. 8400/2013 and I.A. No. 4228/2014, both in CS(OS) 1582/2009, for consolidation of the two suits, has now disclosed that the plaintiff, after filling these suits, has settled with the defendant No. 3 in each of the suit, with the defendants No. 3 in CS(OS) 1583/2009 for Rs. 25 lakhs.

The counsel for the plaintiff admits that with the settlement aforesaid, the suits, insofar as for the reliefs impugning the decrees and for permanent injunction restraining sale of the property in execution proceedings, have become infractions.

It has in the circumstances been enquired from the counsel for the plaintiff, as to how the suits for the remaining refracts survive and whether not, after the settlement aforesaid, the remedy, if any of the plaintiff against the defendants No. 1 & 2, is only for recovery of the amounts paid/incurred by the plaintiff in settling with defendant No. 3 in each suit and in defending the execution proceedings.

The counsel for the plaintiff agrees.

The plaintiff admittedly has not claimed the said relief in the suits.

The counsel for the defendants No. 1 & 2 points out that in the fact the suits are being listed since 22nd October, 2013, for the plaintiff to move an application for amendment of the point but no such application has been filed by the plaintiff till now.

The counsel for the plaintiff today does not even seek any time for making an application for amendment and states that no amendment is to be sought.

The plaintiff cannot be compelled to file an application for amendment. The plaintiff having not filed the application for amendment in spite of several opportunities, the suits have to be adjudged on their maintainability, as existing today.

As the plaint in two suits exists, there is no claim for recovery of monies, as the cause of action for recovery of monies had not accrued to the plaintiff on the date the suits were instituted. The reliefs for which the suits were filed, have become infructuous owing to the subsequent events aforesaid.

The suits are accordingly dismissed as infructuous with liberty however to the plaintiff to, in accordance with law, make monetary claim against the defendants No. 1 & 2.

In view of the above, all pending applications also stand disposed of. No costs. Decree sheet be drawn up.