Full Text
CS(OS)1355/2009
SHRI SUBHASH CHAND JAIN Plaintiff Thiough; Mi*. Dveep Ahuja, Adv.
30.
SHRI SUBHASH CHAND JAIN Plaintiff Tlu-ough: Ml". Dveep Ahuja, Adv.
11.04.2013
ORDER
1. The counsel for the plaintiff in both the suits states that he has got prepared a Demand Draft for Rs.20,000/- and will be depositing the same with the Delhi High Court Bai" Association Lawyers' Welfare Fund today itself, in compliance ofearlier order dated 04.04.2013.
2. Accepting the said undertaldng ofthe counsel,the matter is proceeded with further.
3. Hie counsel for the plaintiffin both the suits clarifies that though both CS(OS)1355/2009& CS(OS)1369/2009 page[1] of[7] 2013:DHC:6685 the suits are for specific perfoiiiiance of Agreement of Sale ofimmovable propeity but with respect to different properties and only two of the defendants are coimnon in both the suits.
4. Tlie counsel for the plaintiff in both suits and the counsel for defendants no.2&3 in CS(OS)No.1355/2009 and for both the defendants in CS(OS) No.1369/2009 state that the two suits cannot be consolidated for tiial even though there may be some interconnection.
5. In view ofthe aforesaid statements it is deemed appropriate to frame separate issues in the two suits. CStOSl No.1355/2009.
6. The counsel for the plaintiff, inspite ofcosts having been imposed on the last date,is still not prepai'ed with the issues and seeks an adjournment.
7. The counsel for the defendants no.2&3 has handed over proposed issues which are taken on record but ai^e not found apposite and the counsel also accepts so and also seeks adjournmentto propose proper issues.
8. The defendant no.l though has filed a written statement does not appear.
9. It is not deemed appropriate to adjourn forframing ofthe issues.
10. On perusal ofthe pleadings the following issues are framed:- (i). Mdiether the defendant no.l had agi'eed to sell propeity No.A- 7/47, Kitshna Nagar, Delhi - 110 051 to the plaintiff or the plaintiff had got executed an Agreement to Sell from the defendant no.l with the name ofthe ofthe purchaser left blank with the intent of filling up the name of the buyer of the propeity to be identified by the plaintiff? GPP &D-1 CS(OS)1355/2009& CS(OS)1369/2009 page2of[7] I (ii). Whether the plaintiff, on the basis ofthe Agreement to Sell got executed by the plaintifffrom the defendant no.1,had agreed to sell propeify No. A-7/47, Krishna Nagai; Delhi - 110 051 to the defendants no.2&3? OPD (hi). Wliether the Sale Deed by the defendant no.l in favour" of defendants no.2 to 3 is at the instance ofthe plaintiff? OPD-1 & D-2&3 (iv). Whether the son ofthe plaintiffis a witness to the Sale Deed by the defendant no.l in favoru" of the defendants no.2&3 and if so, to what effect? OPD-1 & D-2&3 (v). Whether the defendants no.2&3 were in breach of the Agreement for Sale and Purchase dated lO"' Febmaiy, 2009 between the plaintiff on the one hand and the defendants no.2&3 on the other hand and for which reason the defendants no.2&3 were not entitled to any rights under the said Agreementin property No. A-7/47,Krishna Nagar,Delhi- 110 051 and have got the Sale Deed executed in their favour in collusion with defendant no.l? GPP (vi). If the above issues are decided in favour of the plaintiff, whether the plaintiffhas been ready and willing to perform his part ofthe Agreementto Sell? GPP (vii). Whether the discretion unplicit in the grant of the relief of specific performance is to be exercised in favour of the plaintiff? GPP (viii). Relief. CS(OS}1355/2009& CS(()S)1369/2009 page3of[7]
11. No other issue arises or is pressed.
12. The parties to file thertlist ofwitnesses within 15 days.
13. Tlie plaintiff to file affidavits by way ofthe examination-in-chief of all his witnesses within six weeks.
14. List before the Joint Registim on 23'^'' July, 2013 for fixing the dates ofti'ial. lA No.9463/2009 (of the plaintiff u/O-39 R-1&2 CPCl in CSfOS) No.1355/2009.
15. Vide ex parte order dated 29"' July, 2009 which continues to be in force,the defendants were restrained from selling, transfening or alienating the said propeity.
16. However what has now emerged is that the plaintiff admits having agreed to sell the propeity No. A-7/47, Krishna Nagar, Delhi - 110 051 and/or to assign his rights under the Agreement to pm^chase the same fi-om the defendant no.l, to. the defendants no.2&3 and is alleging that the defendants no.2&3 were in default ofthen part ofthe agreement and thus did not become entitled to having the Sale Deed of the said propeify executed from the defendant no.l in their favom* and the defendant no.l and the defendants no.2&3 ai^e in collusion with each other.
17. The counsel for the plaintiffadmits thatthese facts were not disclosed in the plaint. It is the settled position in law(See Seema Arshad Zaheer Vs. Municipal Corporation of Greater Mumbai (2006) 5 SCC 282) that a plaintiffwho does not approach the Court with clean hands is not entitled to any discretionaiy relief. Even ifthere were to be any merit in the pleas of the plaintiffofthe defendants no.2&3 being not entitled to Sale Deed ofthe CS(OS)1355/2009& CS(OS)1369/2009 page4of[7] propeity in their favour for the reason ofbeing in breach ofthen obligations qua the plaintiff, it was for the plaintiffto infonn the said facts to this Court but which the plaintifffailed to do.
18. Tire counsel for the plaintiffnow blames the earlier Advocate for such non-disclosure.
19. Tlrat cannot be an excuse.
20. The application is accordingly dismissed and the interim order earlier in force is vacated. CS(OS)1369/2009.
21. Neither coimsel has proposed any issues and seek adjomnrnentfor the said purpose.
22. It is not deemed appropriate to adjomn the matter for finrning of issues.
23. On perusal ofthe pleadings it is found:- (a). that the present suit is for specific performance of an Agreement to Sell dated 14*'^ March,2009 by the defendants in favour of the plaintiff with respect to property no.B-10/1.5, Krishna Nagar\ Delhi-110 051 (b). the defendants in then written statement have pleaded that the said property belonged to Sh. Ajay Kumar Gupta and Sh. Sunil Kumar who had vide Agreement to Sell dated 25^'' October, 2008 agreed to sell the same to the defendants and the defendants in turn had agreed to assign then rights under the said Agreementin favour ofthe plaintiff; (c). it is further the plea ofthe defendants in their,written statement CS(OS)1355/2009& CS(OS)1369/2009 page5of[7] o r that the plaintiffhad taken away the original Agreementto Sell dated 25^''October,2008infavour ofthe defendants; (d). the plaintiff in the replication to the said written statement admits that the propeity is owned by Sh. Ajay Kumar Gupta and Sh. Sunil Kumar.
24. The counsel for the defendants states that the title to the said propeity has not been conveyed in favour' of the defendants and the defendants are not in possession ofthe said propeity and ai'e also not staking any claim to the said propeity under the Agreement dated 25"' October, 2008 in their favour or othemise;
25. The counsel for the plaintiff also admits that the defendants are not the owners or in possession ofthe propeity but contends that the defendants had not disclosed the said fact to the plaintiffat the time ofentering into the Agreement to Sell and the plaintifflearnt ofthe same for the first tune on pemsal ofthe wiitten statement ofthe defendants.
26. Even if that be so, it has been enquired fi 'om the counsel for the plaintiff that ifthe defendants on the date ofinstitution ofthe suit or now have no right, title or interest in the propeity for specific perfonnance of agreement of sale ofwhich the suit has been filed, how can the only relief of specific peifoimance claimed in this suit be granted against the defendants in as much as the defendants admittedly ai'e notin a position to convey any title to the propeity in favour ofthe plaintiff.
27. No satisfactoiy response has been forthcoming. The counselfor the plaintiffstates that he will amend the plaint.
28. The suit has been pending for the lastmorethan three yeai's. The CS(OS)1355/2009& CS(OS)1369/2009 page6of[7].J written statement also was filed on 5^'' October,2009. The plaintiffeven if were to be said to be entitled to implead Sh. Ajay Kumar Gupta and Sh. Sunil Kumar, would now not be entitled to do so after such a long lapse of time. (See VidurImpex & Traders Private Limited Vs. Tosh Apartments Private Limited(2012)8 SCC 3&4).
29. Moreover,from the conduct ofthe plaintiffofthe suit and which has already been commented upon in.the earlier order and in the order dated 4^*' April,2013,no casefor granting any indulgence to the plaintiffis made out.
30. Accordingly the suit is dismissed as not maintainable. However in the circumstances no costs.
31. The counsel for the plaintiff at this stage states that he be granted libeity to avail remedy ofrecoveiy ofmoney fi 'om the defendants.
32. All that can be obseiwed is that ifthe plaintiffis entitled in law to the same,the plaintiffshall be entitled to do so.
APRIL 11,2013 pp.. RAJIV SAHAlENDLAW,J