Swadesh Sharma v. Vikas Sharma & Others

1. Present Chamber appeal has been preferred against the order dated 2.8.2014 passed by the learned Joint Registrar (Judicial) by which application filed by the plaintiff under Order VII Rule 14 CPC to place on record certain additional documents was dismissed. The appeal is contested by the defendant.

2. It is a matter on record that the plaintiff has instituted the instant suit 2015:DHC:1042 for specific performance of Agreement to Sell dated 13.03.2005. It is averred that a sum of `15,98,000/- was paid to the defendant as part sale consideration. The plaintiff expressed readiness and willingness to perform his part of the contract and to pay the balance consideration. Issues were settled by an order dated 15.01.2009. The plaintiff filed his evidence by way of affidavit but no cross-examination took place. Apparently, the plaintiff and his witnesses are in the process of examination.

3. IA No.10758/2014 under Order VII Rule 14 CPC was moved by the plaintiff to bring on record additional documents to prove that he had enough money at his disposal in bank accounts to pay it to the seller before the due date. These documents could not be placed on record earlier by the previous counsel. When the plaintiff engaged a new counsel, this lapse came to his knowledge.

4. Learned counsel for the defendant urged that no valid reasons have been given for not filing the documents at the relevant time. These documents do not reflect if the plaintiff was having sufficient funds to pay the balance consideration to the seller on due date.

5. In the plaint it was specifically averred that the plaintiff was always ready and willing to perform his part of the contract and to pay the balance sale consideration. He had requested the defendants to intimate the date and time for the payment of balance consideration but the defendant did not come forward. Additional documents which he intends to place on record are to prove specific issue, the burden of which has been placed upon him to show that he was financially capable to pay the balance sale consideration before the due date. These documents are primarily the bank account of the plaintiff and that of his wife in various banks and fixed deposits in their name. There is least possibility of the documents to be fabricated or manufactured subsequently. These documents, prima facie, show as to how much amount was in the credit of the plaintiff and his wife in November, 2006. In my view, all these documents are necessary and relevant for determination of the real dispute between the parties. For delay in filing the documents, the defendants can be compensated with costs.

6. In the light of the above discussion, OA filed by the plaintiff is allowed. The additional documents are ordered to be taken on record subject to cost of `10,000/-.

7. The OA stands disposed of. CS(OS) 201/2007 & IA No.10759/2011 ( u/O 6 R 17 CPC)

8. Relist before the Roster Bench on 10.02.2015.

JUDGE FEBRUARY 03, 2015 sa