Saroj Bala Yadav vs Ved Parkash Yadav

Manmohan Singh, J.—By this order, I shall dispose of two applications filed by the plaintiff under Order 6 Rule 17 read with Section 151 CPC and other under Order 12 Rule 6 read with Section 151 CPC.

The case of the plaintiff is that the Defendant who is the owner of the property built on Plot No. 43 measuring 150 sq.yds situate at Krishan Kunj Colony, Laxmi Nagar, Delhi entered into an agreement dated 5th March, 2004 with the plaintiff for sale of the said property for a total consideration of Rs. 29 lakhs. The defendant duly received a sum of Rs. 9 lakhs in cash from the plaintiff and acknowledgement of the same was made in the Agreement. The balance consideration of Rs. 20 lakhs was to be made by the plaintiff on or before 30th December, 2004. The terms and conditions of the agreement are mentioned in Para 5 of the plaint. It is the further case of the plaintiff that the defendant with the malafide intention to betray and grab the advance amount failed to perform his part of the agreement and also failed to receive the balance consideration which was offered by the plaintiff with a request to complete the sale. Various requests were made by the plaintiff to the Defendant in this regard. The details of the same are mentioned in Paras 8 to 11 of the plaint.

In view of the above said facts and circumstances, the plaintiff filed a suit for specific performance of the Agreement to Sell before this Court on 1st July, 2005. The said suit came up before the court with the interim application being I.A. No. 6358/05 when summons and notices were issued to the defendant subject to deposit of the balance amount of sale consideration and an interim order was passed restraining the defendant from selling, transferring or alienating the property in question.

The written statement was filed by the defendant raising the main defense that the suit is false, frivolous and baseless. Another defense raised was that the defendant never entered into an agreement with the plaintiff for sale of the property in question. The defendant has given various explanations for receiving the part amount in Para 1 of the preliminary objections of the written statement.

At the time of admission/denial of documents the defendant has admitted his signatures in the Agreement. However, later on, the defendant filed an application being I.A. No. 6377/07 praying for striking out the said admission. The said application was dismissed with costs and the interim order was also confirmed by order dated 5th February, 2008. Prior to the said order, the plaintiff filed an application being I.A. No. 1457/08 for amendment of Para 10 of the plaint on the ground that the plaintiff prior to the filing of the suit served a legal notice dated 26th April, 2005 on the defendant under registered post as well as by certificate of posting calling upon the defendant to perform his part of the contract and accept the balance sale consideration. It is mentioned that the said factum of notice was not mentioned in the plaint due to oversight and bonafide mistake though the copy of the notice was annexed with the plaint.

Another application being I.A. No. 4206/09 has been filed by the plaintiff under Order 12 Rule 6 CPC stating that during the course of admission/denial of the documents, the defendant has admitted his signatures on the Agreement to Sell, therefore, on the basis of the said admission, the suit deserves to be decreed under the provisions of Order 12 Rule 6 CPC.

Firstly, I shall deal with the application seeking amendment under Order 6 Rule 17 CPC filed by the plaintiff. It is not in dispute that along with the plaint, the plaintiff also attached a copy of the notice dated 26th April, 2005 and by way of the present application the plaintiff merely wants to add the following sub para to Para 10 of the plaint:

Therefore, the plaintiff got served a legal notice dated 26th April, 2005 on the defendant under registered AD post as well as by certificate of posting, through her Advocate calling upon the defendant to perform his part of the agreement dated 5th March, 2004 and accept the balance consideration within 7 days of the receipt of the said notice. The said notice was duly served on the defendant but he despite of receipt of the said notice did not perform his part of the contract. Copy of the said notice is attached to the plaint.

Since the factum of agreement dated 5th March, 2004 was already disclosed in the plaint and a copy of the legal notice was also filed with the plaint, only averments regarding sending of the notice was not made. It is contended that since the issues in the matter are yet to be framed, now, there is no harm to the defendant if the amendment sought by the plaintiff is allowed by adding the sub para to Para 10 of the plaint.

Counsel for the defendant has argued that the suit has been filed in the month of July, 2005 and the present application has been filed after the expiry of about two years. He further referred order dated 2nd December, 2008 wherein some prima facie observations have been made in respect of amendment, therefore, the application is liable to be dismissed. The further contention is that since copy of the notice has already been filed with the plaint, therefore, the amendment is not necessary.

I have gone through the pleadings of the parties and I feel that the plaintiff merely wants to incorporate only the factum of issuance of notice to the defendant. Although this Court feels that there is a delay on the part of the plaintiff in filing of the application but in the interests of justice and equity and as per well settled law on amendment, the same is allowed subject to costs of Rs. 10,000/- to be paid by the plaintiff to the defendant within four weeks from today.

As regards another application under Order 12 Rule 6 CPC filed by the plaintiff is concerned, no reply to the said application has been filed by the defendant. Learned Counsel for the defendant has argued the said application orally. In view of the specific denial in the written statement that the defendant has not entered into an agreement with the plaintiff, merely the admission on the part of the defendant in admitting the signatures on the agreement is of no consequence as the defendant later on had filed an application for striking out the said admission which, however, was dismissed.

Further, it appears that during the course of admission/denial of the documents, the defendant has made the remark on the Agreement to Sell that "only the signatures are admitted and the contents are denied." As such the provisions of Order 12 Rule 6 CPC cannot be invoked in the matter on the basis of the above said endorsement made by the defendant and no decree can be passed in the facts and circumstances explained. This Court is of the opinion that it is a matter of trial and the application filed by the plaintiff is not maintainable. Thus, the application filed by the plaintiff can not be accepted and the same is dismissed with costs of Rs. 5,000/- which shall be paid by the plaintiff to the defendant within four weeks from today. Both the applications are disposed of accordingly.

CS(OS) 1148/2005

List this matter on 17th August, 2009 for framing of issues as well as for giving directions for trial.