Full Text
HIGH COURT OF DELHI
CS(OS)2648/2011
RAJEEV KUMAR Plaintiff
Through: Mr.Sandeep Sharma, Adv. 36.
Through:
Defendant Mr. Ajeya Bharadwaj, Adv. AND
AJIT SINGH Plaintiff
Through: Mr.Chittaianjan, Adv.
Through
06.03.2013 TA No.3544/2013 in CS(OSl No.2648/2011 (of the Advocate for the defendantfor discharge).
ORDER
1. The counsel for the defendant states that the defendant is present in the Court and he be discharged. On the asking of the counsel he is dischai-ged.Sincehestatesthatthe defendantis presentinthe Court, CS(OS)2648/2011& CS(OS)1265/2012 ^ 2013:DHC:6705 it is up to the defendantto make alternate aixangement.
2. The application is disposed of. lA No.17023/11 (of the plaintiff u/Q-39 R-1&21 & IA No.279/12(of the defendant u/Q-39 R-4 CPCl in CS(OSl 2648/11.
3. The counselfor the plaintiffin CS(OS)2648/11 states thatthe sum of Rs.83 lacs as directed on the last date ofhearing has been deposited in the Court,'fhe same be keptin an interestbeaiing fixed deposit.
4. None appears for the defendant. The defendant in person states that her Advocate has notcome today.
5. However thatis no ground to adjourn.
6. The Advocate for the defendant having not chosen to oppose the application for interim relief or to press the application for vacation ofex parte ad interim reliefalreadyin force,no further oppormnity is required to be given.
7. The order dated 24"' October, 2011 directing maintenance of status quo qua title and possession ofthe propeity subject matter ofthe Agreement of which performance is claimed, is made absolute till the decision ofthe suit and the applications are disposed of. TA No.8341/12 (for exemption for personal appearance^ in CS(OS) No.2648/2011.
8. This application wasfiled by Mr.Ratnesh Bansal, Advocate seeking exemption from appearance on May, 2012. The application is now infructuous and is disposed of. TA No.8346/12 (for modification of order dated 11*'' April. 12f in CStOSf 2648/11.
9. This application is also conceming the controversy which had arisen in the present suit as to the statement made by the counsel who had appeared on behalf of defendant on 24^'' November, 2011 and is now infmctuous and is disposed of. TA Nn.8347/12(seekinp exemption from filinp documentsf.
10. This application was filed along with lA No.8346/12 seeking exemption from filing original documents and in view of disposal oflA No.8346/12,isnow infmctuous and is disposed of. LA No.8747/12(seeking exemptionfrom filing documents).
11. This application also pertains to the same controversy as aforesaid in paraNo.9and is nowiniructuousand is disposed of. o <• TA No.12295/12(of the plaintiffin CS(QS^ 1265/12 for impleadmentin CS(QS)N0.2648/11V
12. The counsel for the plaintiff in CS(OS) 2648/11 states that this application was withdrawn videIA No.15162/12.
13. n dlie counsel for the plaintiff in CS(OS) 1265/12 and who is the applicant in this lA states that he is not aware and ifthe other counsel is saying so,itmustbe correct.The applicationis accordingly disposed of. TA No.14410/12 (of the plaintiff in CS(OSi 1265/12 for leave to file ^ documentsin CSiOSlNo.2648/2011).
14. Once the applicant has withdrawn his application for impleadmentin CS(OS)2648/11,this applicationisinfructuous and is disposed of. TA N0.14411/T[2] ffor exemption^.
15. This application was for exemption from filing certified copies in support oflA No.14410/12 which has been disposed of. This application is accordingly infructuous and is disposed of. J TA No.15162/12(ofthe plaintiffin CSTOST 1265/12forwithdrawaloflA No.12295/12.
16. This application effectively stands allowed by dismissal as aforesaid oflA No.12295/12 which stands withdrawn.
17. The application is disposed of. CS(OS)2648/2011& CS(OS)1265/2012 page4of[8] lA No.8364/12(ofthe plaintiffu/Q-39 R-1&2CPC)in CS(OS)1265/12.
18. The counselfor the plaintiffadmits that he has not complied with the order dated May,2012 directing him to deposit Rs.3,45,00,000/- in this Court and thus the interim order stands vacated.
19. The application is accordingly dismissed. CStOSl 1265/12.
20. The plaintiff instead of paying the requisite Court Fees of J Rs.3,43,957/- on the plaint has paid Couit Fees of Rs.20/- only. The deficiency in CourtFees has not been made up inspite oftune oftwo weeks having been granted asfar back ason 8^''May,2012.
21. The counsel for the plaintiffpleadsignorance stating that he has been engaged subsequently and will takeinstructions.
22. Merely because a counsel has been engaged at a subsequent stage in the suit, is no ground for the counsel to be not aware ofthe proceedings in the suit of prior to his engagement. No case for granting any fuilher indulgence to the plaintiff is made out. The plaint in CS(OS) 1265/12 is rejected for the reason ofthe deficiency in payment of Court Fees having not been made up within the time given for the said purpose. The other pending applicationsin the suit are also accordingly dismissed. CS(OS)2648/2011& CS(OS)1265/2012 page5of[8] CSrOS)2648/11.
23. Though the counsel for the defendant has not appeared and only the defendant is present but that does not come in the way offraming ofissues and for whieh purpose the suit is ripe today.
24. On the pleadings ofthe parties,thefollowing issues are framed;- (i). Whether the defendant had agreed to sell the property no.D- 677, Saraswati Vihar, Delhi — 110 034 to the plaintiff and ^ entered into the Agreement dated 15"^ September,2011 with the plaintiff? GPP (ii). Whether the plaintiff has paid eamest money/advance sale consideration ofRs.14,10,000/- to the defendant? GPP (iii). If the above issues are decided in favour of the plaintiff, whether the plaintiffhas been ready and willing to perfonn his part ofthe Agreement? GPP ^ (iv). Whetherthe plaintiffisin conspiracy with Mr.Ratnesh13ansal, Mr. Pradeep Jain & Ms. Minakshi Jain as pleaded in para 2 of the preliminary objections of the written statement of the defendant and ifso to what effect? GPD CS(OS)2648/2011& CS(OS)1265/2012 page6of[8] J (v). Whether the terms ofthe contract and the conduct ofthe parties at the time of entering into the contract and/or the other circumstances under which the contract was entered into were such as to give the plaintiff an unfair advantage over the defendants and ifso to what effect? OPD (vi). Whether the perfonnance of the contract would involve hardship to the defendant which the defendant did not foresee, and its non-performance would not involve any such hardship to the plaintiff? OPD (vii). Whether the discretion implicit in the grant of the relief of specific performance is to be exercised in favour of the plaintiff? OPPr (viii). Relief.
25. No other issue arises or is pressed.
26. ITie partiesto file their list ofwitness within 15 days.
27. The plaintiff to file affidavits by way of examination-in-chief of all his witnesses within six weeks. CS(OS)2648/2011& CS(OS)1265/2012 page 7of[8]
28. List before the Joint Registrar on 20^'' May,2013 for fixing the dates J oftrial.
MARCH 06,2013 PP RAJIV SAHAIENDLAW,J;ll£ > CS^OS;)2648/2011 & CS(OS)1265/2012 page[8] of[8] % r $-27. * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS)1265/2012 AJIT SINGH Plaintiff Through: Mr.Pratap Sahani & Mr.Rajiv,Advs.
VERSUS
VINOD KUMARI GARG Defendant Through: None. CORAM: HON'BLE MR.JUSTICE RAHV SAHAIENDLAW ORDER % 17.05.2013 lA No.8269/2013 (of the plaintiff for revival of the suit), lA No.8273/2013 (u/O-39 R-1&2)& lA No.8274/2013(for exemption).
1. The plaintiff/applicant seeks revival ofthe suit, plaint wherein was rejected vide order dated 6^'' March,2013 for the reason of plaintiff/applicant having not made up deficiency in CourtFees inspite ofopportunity.
2. Though the counsel for the plaintiff/applicant also agrees that the CPC does not provide for such revival and the remedy ofthe plaintiff/applicant is by way of a fresh suit but contends that the revival be ordered in equity, considering that the neglect was on the partofthe counsel earlier engaged by the plaintiff/applicant.
3. Once the law has provides a remedy against rejection, the principles of equity cannot be invoked. Moreover there is no question of sufferance by the plaintiff/applicant since the plaintiff/applicant has remedy offiling a fresh suit.
4. The application for revival is thus not maintainable in law and is dismissed. Consequently, other applications are also dismissed.
RAJIV SAHAIENDLAW,J MAY 17,2013 pp..