Full Text
HIGH COURT OF DELHI
Date of Decision: 18.09.2024
SUNIL KUMAR KHUNTETA ....Plaintiff
Through: Mr.Ankit Gupta, Adv
Through: Mr.Durgesh Kumar Pandey, Mr.R.K.Mishra, Ms.Ritika
Davis Franklin, Advs. for D-1.
Mr.Digvijay Rai, Mr.Raj Kumar Khanagwal, Mr.Archit
Mishra, Mr.Rohit Kumar Munjal & Mr.Raghib Ali Khan, Advs for SDMC/D-4.
JUDGMENT
1. This application has been filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short, ‘CPC’), praying for amending the plaint to the limited extent that the plaintiff seeks an alternate prayer of a decree of recovery of the balance amount of the sale consideration, being Rs.1,04,50,000/-, in favour of the plaintiff in case the Agreement to Sell dated 16.11.2015 is not declared as null and void.
2. The above suit has been filed by the plaintiff claiming therein that he is the absolute owner of plot bearing no.C-117/2, measuring 250 Sq. Yds., situated in the revenue estate of Village Chhattarpur, now Colony known as JVTS Garden,Chhattarpur Extension, Tehsil Hauz Khas (Now Tehsil Saket), New Delhi-110074.
3. The plaintiff further asserts that the plaintiff entered into an Agreement to Sell and Purchase of the suit property, on 16.11.2015, with the defendant no.1. It was a term of the Agreement to Sell that the defendant no.1 shall pay a consideration of Rs.2,17,50,000/- to the plaintiff in the following manner: “(i) Rs. 50,00,000/- Lakhs as earnest money on the day of execution of the agreement to sell.
(ii) Rs. 25,00,00,000/- on or before 16th
(iii) Rs. 25,00,00,000/- on or before 16th
(iv) Remaining balance payment of
4. The plaintiff asserts that the payment of the consideration as per the above schedule was the essence of the agreement and in case the defendant no.1 failed to comply with the same, the defendant no.1 was liable to pay double the amount. The plaintiff asserts that the plaintiff has received only Rs.1,13,00,000/- from the defendant no.1, details whereof have been given in the plaint.
5. The plaintiff asserts that the defendant no.1 has raised 12/13 flats on the suit land by dividing the plot into two parts and has sold a few flats out of the same by executing, what he claims are forged documents, including to the defendant nos.[2] and 3.
6. The plaintiff asserts that he issued a legal notice dated 02.05.2018 to the defendants stating that the plaintiff has forfeited the amount paid by the defendant no.1 and demanding the possession of the flats from the defendant nos.[1] to 3. The plaintiff, therefore, filed the present suit praying for the following reliefs: “i. Pass a decree of possession in favour of the plaintiff and against the defendant no.1, 2 & 3 directing them to handover the vacant and peaceful possession of all flats raised upon the suit property i.e C-117/2, measuring 250 Sq. Yaard situated in the revenue estate of Village Chhattarpur, now colony known as JVTS Garden, Chhattarpur Extension, Tehsil Hauz Khas (now Tehsil Saket), New Delhi-110074 herewith to the plaintiff. ii. Pass a decree of Declaration, thereby declaring the agreement to sell dated 16.11.2015 as null and void Pass a decree of damages/ mesne profit of Rs, 2,00,000/- per month for the respective month i.e. April, 2016 till the date of vacation and handling over the vacant and peaceful possession of the suit property to the plaintiff by the defendant in favour of the plaintiff and against the defendant. iii. Pass a Mandatory injunction in favour of the plaintiff and against the defendant, thereby directing the defendant no.4 to demolish/remove all unauthorized construction over the suit property. iv. Costs of the suit be also awarded in favour of the plaintiff and against the defendant and.”
7. The plaintiff in the present application asserts that due to inadvertence, the plaintiff failed to make an alternate prayer that in case this Court finds that the Agreement to Sell dated 16.11.2015 cannot be declared as null and void, a decree directing the defendant no.1 to pay the balance consideration of Rs.1,04,50,000/-, be passed. The learned counsel for the plaintiff submits that this would neither change the nature of the suit nor by the same the plaintiff wishes to withdraw any admission made in the suit.
8. On the other hand, the learned counsel for the defendant no.1 submits that the prayer now sought to be added would be clearly barred by limitation.
9. He submits that by the present amendment, the nature of the suit shall also be changed from one seeking the cancellation of the Agreement to Sell to one seeking recovery of the amount thereunder.
10. The learned counsel for the defendant no.1 further submits that the entire claim of the plaintiff is false and only an amount of Rs.54 lac is due and payable by the defendant no.1 to the plaintiff under the said Agreement to Sell.
11. I have considered the submissions of the learned counsels for the parties.
12. The nature of the suit has been briefly explained hereinabove. It is the case of the plaintiff that as the defendant no.1 failed to comply with the terms of the Agreement to Sell dated 16.11.2015, inasmuch as the balance consideration was not paid, the plaintiff was entitled to seek the relief of declaration declaring the Agreement to Sell as null and void, a decree of possession, and a decree of mesne profit. The plaintiff now, in the alternate, seeks a prayer that in case this Court finds that the said Agreement to Sell is not rendered null and void only because of non-payment of the balance consideration by the defendant no.1, then an alternate relief of a decree of payment of the balance sale consideration be granted. The said amendment cannot be said to be changing the nature of the Suit. The entire factual basis of the plaintiff remains the same, that is, that the defendant had failed to pay the entire sale consideration agreed to under the agreement.
13. The plea of the defendant no.1 that the prayer made now is beyond the period of limitation also does not persuade me. The suit has been filed on the basis that the balance sale consideration has not been paid. It is only as an alternate prayer that the plaintiff now claims for the recovery of the balance sale consideration. The amendment therefore would have to relate back to the filing of the suit.
14. In LIC v. Sanjeev Builders (P) Ltd., (2022) 16 SCC 1, the Supreme Court laid the principles as would be applicable to an application under Order VI Rule 17 of the CPC, which are as under: “71. Our final conclusions may be summed up thus:
71.1. Order 2 Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2 CPC is, thus, misconceived and hence negatived.
71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order
71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and
(c) the amendment does not raise a timebarred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
71.4. A prayer for amendment is generally required to be allowed unless: 71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration. 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence.
71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hyper technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
71.6. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.” (Emphasis supplied)
15. Applying the above principles, I find that the plaintiff is entitled to amend the plaint
16. Accordingly, the application is allowed. The Amended Plaint is taken on record.
17. Let written statements to the amended plaint be filed by the defendants within a period of four weeks from today.
18. List on 10th January, 2025 before the learned Joint Registrar (Judicial). NAVIN CHAWLA, J SEPTEMBER 18, 2024/Arya/DG Click here to check corrigendum, if any