Delhi District Court
Prakash Kaur vs Everest Construction on 6 October, 2012
Suit No. 1137/11 06.10.2012. Prakash Kaur Vs Everest Construction ORDER
1. This order shall decide an application u/o 6 rule 17 CPC dated 17.09.2010 filed on 30.09.2010 behalf of defendant.
2. The present suit has been filed for seeking the relief of declaration that the letters dated 28.01.88 and 21.12.88 are null and void and of no effect and the agreement dated 13.10.81 continues to remain and always remained operative and binding on the parties. The above said agreement dated 13.10.81 is allegedly with respect to the purchase & delivery to the plaintiff of flat no. 606 (6th floor in the building) proposed to be constructed in a building known as 'Resham Tower' at Prabha Devi, Bombay. The two letters above said are alleged to be written by the defendant to the plaintiff.
3. In the present amendment application it is stated on behalf of defendant that much water has flown since the execution of the alleged agreement dated 13.10.1981 and therefore certain amendments are required to be made in the WS. As alleged, the construction of the multi-storied building called Resham Towers was CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 1 of 11 commenced in the year 1981 which continued at a slow pace till September 1990 after which it stopped on account of dispute between the partners and therefore the building continued to exist in a state of total neglect and as a result cracks appeared in the columns, beams as well as in the suspended slabs. Fungus had grown inside a number of flats on account of humid conditions in Mumbai and with passage of time it became weak as the plaster over walls started peeling off and steel bars got rusted and seepage occurred in walls. A writ petition was filed in the High Court of Mumbai by the inhabitants of Brahm Dev Kirpa, Co-operative Houses Society, alleging the potential danger of the multi-storied building and the petitioners also annexed the opinion of consulting engineer. Vide order dated 05.11.09 passed by the Hon'ble High Court of Bombay, the entire building in question was razed down as a result the flat which is a subject matter in question has now ceased to exist and the alleged contract has become incapable of performance by the doctrine of frustration. The defendant seems to incorporate the above said facts as additional facts paras no. 1 and 2 after the para no. 6 to 15 of the reply on merits in the original WS.
4. It is further stated in the application in hand in para 10 and 11 that as the old super structure has been demolished in view of the orders of the Hon'ble High Court of Mumbai, consequently, defendant has submitted plans for raising new multi-storied building at the site for which excavation work of old piles and plinth below the ground level CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 2 of 11 has been initiated, watchman cabin and site office made and soil testing work is already in progress. The new building shall have various amenities such as swimming pool etc. which were not available in the erstwhile building. The quality of building shall be of much higher standard for which the prices which have risen steeply and have been set at around Rs. 31.05 lacs per flat and the defendant is making pre-launch booking of flat @ Rs. 22,000/- per sq. ft. The defendant seeks to incorporate the above said facts as additional facts paras no. 3 and 4.
5. Further, in the present application the defendant states that after the death of the original plaintiff her LRs have assigned all the rights, title and interest in the flat in question in favour of M/s EBEN Securities and Leasing Ltd. through a registered deed of assignment. The legal heirs of plaintiff deliberately with held from this Hon'ble Court the factum of assignment of all rights, title & interest in the flat in question. The above said facts are sought to be incorporated as para no. 5 of additional facts.
6. Further, the application states that the assignment of the interest in the flat in question by the LRs of the plaintiff in favour of M/s EBEN, the present proceedings are nothing short of a surrogate litigation, the real litigant being Rajesh Construction Company Ltd. There stands a business rivalry between the defendant and the said M/s Rajesh Construction company. The defendant seeks to incorporate the said CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 3 of 11 facts along with other relative facts as para 6 of the additional facts.
7. In reply to the present application, it is stated on behalf of the plaintiff that the case is covered by proviso to rule 17 of order 6 CPC as the issues have already been framed and the trial has begun. The defendant has not acted with due diligence in moving the present application as the facts sought to be amended in the WS have occurred/ came to the knowledge of the defendant much prior to the commencement of trial. For Instance, in 2008 itself defendant was aware about the transfer of all rights and interest in the suit property by LRs of plaintiff in favour of M/S EBEN. The defendant did not inform this Court at the time of demolishing of the building. That the party cannot be allowed to be sitting on its rights available to it for more than 2-3 years and then seek amendment of its WS specially after trial has commenced.
8. It is further stated in the reply that in the original WS at page -9 para-16 it is stated that all the flats were sold before the end of 1984 whereas in para-5 of the present application, it is stated that large no. of flats had been booked for sale. These statements are quite contrary.
9. Regarding the proposed additional para pertaining to the condition of the building relating to the cracks etc., it is stated in the reply that they are denying and defendant be put to strict proof of it. Regarding the CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 4 of 11 writ petition before the Hon'ble High Court of Bombay, in the reply the same is denied for want of knowledge. With regard to the averments in the application pertaining to the raising of new building, it is stated in the reply that the defendant has concealed the relevant fact regarding the development of the plot of land by which the rights of the plaintiff has been seriously affected.
10.Regarding the averments in the application relating to assignment of interest, the same are admitted on behalf of plaintiff in the reply that all the rights and interest in the suit property were transferred in favour of M/s EBEN. Further, it is stated in the reply that the copy of power of attorney dated 19.02.08 was filed in the court on 29.02.08 and the defendant was aware of the said fact. The averments in the application regarding rivalry between the defendant and M/s Rajesh Construction company have been denied by the plaintiff in the reply. The application is therefore opposed on the ground of delay & laches on the part of defendant.
11.I have heard the Ld. Counsel for both the sides and perused the record.
12.In the facts of the case, the plaintiff had alleged an agreement to be entered into between her and the defendant for the purchase and delivery of flat no. 606 (6th floor) in the building 'Resham Tower' at Prabhawati Bombay. The defendant has denied any such agreement CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 5 of 11 and states the same to be merely an offer for sale but admit of having written two letters dated 28.01.88 & 21.12.88 informing the plaintiff that no such agreement was entered into. The plaintiff is seeking the relief of declaration that the said two letters be declared as null and void and the agreement dated 13.10.81 be declared as subsisting and binding on the parties. Issues have already been framed in the present matter preeceding the date of the filing of the present application. It is in light of the above that the application needs to be decided.
13.The provision applicable in deciding the present application is order 6 rule 17 CPC which reads as follows:-
" The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining of real questions in controversy between the parties:
Provided that no application for amendment shall be allowed alter the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. "
14.There are certain additional paras which have been proposed to be added after para 6 to 15 of reply on merits in the original WS. The additional facts para 1 and 2 proposed to be added by the defendant pertains to the development that the Resham Tower ie. multi storey CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 6 of 11 building has become extinct and has been demolished by the order of the Hon'ble High Court of Mumbai. The fact of the demolition of the old building is not disputed. The objection taken by the plaintiff to the above said proposed additional paras is that the defendant did not acted with due diligence as he did not move the present application at an early stage when the said facts were in the knowledge of the defendant and now since issues have been framed, the amendments cannot be allowed in view of the proviso to order 6 rule 17 CPC.
15.Defendant has relied upon (2008) 3 SCC 717 Usha Devi Vs. Rijwan Ahmad & Ors in which the Hon'ble Supreme Court held that the ends of justice would be met by allowing the proposed amendment. In the said case, there was an error in describing the suit property in the plaint schedule. In (2007) 6 SCC 167 Andra Bank Vs ABN Amro Bank N. N. and ors., relied upon by the defendant the Hon'ble Supreme Court held that delay is no ground to refuse the prayer in amendment and further held that it was permissible in law to amend WS sought to introduce of additional ground of defence. In (2007) 5 SCC 602 Usha Bala Shaheb Swami & Ors. Vs. Kiran Apparo Swami & Ors, relied upon by the defendant it was held by the Hon'ble Supreme Court that there are difference in the principles applicable in the amendment of plaint and WS. The Hon'ble Court further held that the courts should be liberal in granting the prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafidee. In (2006) 6 SCC 498 Baldev CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 7 of 11 Singh & Ors Vs. Mano has Singh & Anr. relied upon by the defendant it was held by the Hon'ble Supreme Court that adding the new ground of defence or substituting or altering the defence does not raise the same problem as adding, altering or substituting a new cause of action and therefore inconsistent defences can be raised in the WS although the same may not be permissible in case of the plaint. In 156 (2009) DLT 218 Parsvnath Developers Ltd. Vs. Ghanshyam Das Aggarwal & Anr. relied upon the defendant is not applicable to the present case as in the said ruling the pleadings were not yet completed. In 185 (2011) DLT 564 Advance Magazine Publishers LIC & Anr. Vs Just Life Style P. Ltd. relied upon by the defendant the Hon'ble High Court of Delhi held that court should take notice of subsequent event in order to shorten litigation, to preserve and safeguard rights of both parties and to sub-serve, ends of justice. In 183 (2011) DLT 791 Rakesh Sharma Vs. Krishan Pal & Anr relied upon by the defendant it was held by the Hon'ble High Court of Delhi that trial cannot be said to have commence when issues are framed and case is listed for trial and application for amendment is maintainable.
16.On the other hand, the plaintiff has relied upon (2005) 4 SCC Kailash Vs Nanhku Vs Anrs. wherein the Hon'ble Supreme Court in para-13 held that in a civil suit the trial commences when issues are framed and the case is set down for recording of evidence. In (2006) 12 SCC Ajendraprasadji N. Pandey Vs. Swami Keshavprakeshdasji N relied upon by the plaintiff it was held by the Hon'ble Supreme Court CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 8 of 11 that the proposed amendments were hit by the proviso to order 6 rule 17 as no ground were raised in the amendment application to contend that despite due diligence the said matters could not be raised by the applicants. Further the Hon'ble Court held that trial is deemed to commence when issues are settled and case is set down for recording of evidence. In another ruling (2008) 5 SCC 117 Chander Kanta Bansal Vs. Rajinder Singh Anand, relied upon by the plaintiff it was held by the Hon'ble Supreme Court the delayed amendment which appears to be after thought must be delayed, however in deserving cases, the court can allow delayed amendment by compensating the other side by awarding costs.
17.Here, in the facts and circumstance of the present case it is seen that the present application was moved immediately after framing of the issues and no affidavit has yet been filed in evidence. Although, it is true that the trial commences with the framing of issues but in the given facts and circumstances of the case, it is important that the facts relating to the demolition of the old building be brought on record as these facts are necessary for the purpose of determining the real questions in controversy between the parties as the finding on the relief of declaration sought by the plaintiff will have an impact on the suit property ie. the flat in question. The delay which is alleged on behalf of plaintiff cannot be taken to be the delay fatal to the case of defendant and thus this amendment may be allowed subject to cost upon the defendant as no rights of the plaintiff will be prejudiced by allowing the amendments with respect to the additional para 1 and CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 9 of 11
2.
18.Vide additional facts paras 3 and 4 the defendant seeks to amend the WS by adding the facts pertaining to the construction, amenities and price of the new multi storey building being constructed in place of the old one. The said amendments also needs to be incorporated in view of the reasons discussed in the para above.
19.The defendant further seeks to add the additional facts para 5 which states that after the death of original plaintiff the LRs have assigned all rights title and interest in the flat in question in favour of M/s EBEN Securities and Leasing Ltd. Similarly, additional facts para-6 proposed to be added states that the present proceedings are nothing short of surrogate litigation and the real litigant is M/s Rajesh Construction company Ltd and M/s EBEN is a front man and there stands a business rivalry between the defendant and M/s Rajesh Construction company. Regarding this proposed amendment, it is observed that the said averments are not necessary for the purpose of determining the real question in controversy between the parties. The core issue in the present matter is whether there is an agreement between the parties and whether the two letters written by the defendant be declared as null and void. Thus, testing the proposed facts to be added via additional facts paras 5 and 6 on the touch stone of the real question to be determined in the present suit, the proposed additional paras 5 and 6 are not relevant and therefore cannot be allowed to be added by way of amendment in the WS. Although, the assignment of interest has been admitted by the CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 10 of 11 plaintiff but the same need not be incorporated in the WS as the same is covered under different provision i.e. under order 22 rule 10 CPC which may be dealt separately.
20.Thus, in accordance with the above discussion, the additional facts in paras 1, 2, 3 and 4 are allowed to be added by way of amendment in the WS subject to a cost of Rs. 5,000/- to be paid to the plaintiff.
(PRANJAL ANEJA) CIVIL JUDGE-06, NORTH THC/DELHI/06.10.2012 CS No. 1137/11 Prakash Kaur Vs. Everest Construction Page No. 11 of 11