Delhi High Court
Virendra Sahlot vs Gurvir Inder Singh And Anr on 23 September, 2011
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI: NEW DELHI
Judgment reserved on: 14.07.2011
% Judgment pronounced on: 23.09.2011
+ I.A. No.17402/2010 in CS(OS) No.1455/2005
VIRENDRA SAHLOT ..... Plaintiff
Through Mr. Anil Airi, Adv. with
Mr. Arun Kumar, Adv.
versus
GURVIR INDER SINGH AND ANR ..... Defendants
Through Mr. P.N. Bhan, Adv. for D-1.
Mr. S.C. Rana, Adv. for D-2.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MANMOHAN SINGH, J.
1. By this order, I shall dispose of the present application filed by the plaintiff under Order VI, Rule 16 read with Section 151 CPC praying that the written statement to the amended plaint, filed by defendant No.2 be struck off from the record.
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2. The present suit is for specific performance of the Memorandum of Understanding/Agreement to Sell dated 13.09.2005 for sale of immoveable property. After the institution of this suit on 20.10.2005, the parties entered into a compromise. Thereafter, the agreement dated 13.09.2005 was amended and an agreement in continuation of the earlier agreement titled as "Amended Memorandum of Understanding" was executed on 28.03.2006.
3. It is stated by the plaintiff that as per the terms of the agreement to sell, the plaintiff had filed an application No.2775 of 2007 under Order VI, Rule 17 CPC seeking amendment of the plaint, to incorporate therein the subsequent agreement wherein the sale consideration was enhanced. The said application of the plaintiff was allowed by this Court vide order dated 21.07.2008.
4. The amended plaint was taken on record and the defendants were directed to file their written statements to the amended plaint. After some time, defendant No.2 stopped appearing before the Court and was proceeded ex-parte and the counter-claim filed by him was also dismissed in default on 11.05.2009. In April, 2010, after a lapse of almost a year, defendant No.2 filed an application under Order IX, Rule 7 CPC for setting aside the ex-parte order dated 11.05.2009 which was I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.2 of 7 allowed on 29.10.2010 with liberty to defendant No.2 to file his written statement.
5. In view of order dated 29.10.2010, written statement was filed by the defendant No.2 on 09.11.2010. It is stated by the plaintiff in the present application that in the garb of filing a written statement to the amended plaint, the defendant No.2 has changed his pleadings and has taken an entirely different stand from his earlier written statement and without the permission of the court, he has pleaded new facts and withdrawn various categorical admissions. Further, it is stated that the defendant No.2 has been given an opportunity to file a written statement to the amended plaint and not a permission to amend his written statement and doing so, amounts to misuse of the liberty granted by court. Therefore, the written statement filed by the defendant No.2 is liable to be struck off.
6. In his reply, the defendant No2 has stated that the present application is liable to be dismissed as the plaintiff neither mentioned anywhere in the application as what stand of defence has been changed or what admissions have been withdrawn nor has he mentioned defense taken earlier has been withdrawn. It is stated by the defendant No.2 that earlier to the present written statement, a reply on merit filed by the defendant No.2 along with the counter claim cannot be taken as a written I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.3 of 7 statement under the law as all the points taken in the said reply are duly mentioned in written statement to the amended plaint but not explained properly earlier as it was different and filed by the defendant No.2 himself and now the defendant No.2 has merely elaborated the points raised earlier which would not under any circumstance change the nature of suit nor any admission made earlier has been withdrawn. The defence of fraud nowhere changes the nature of suit. It had already taken by the defendant No.2 about cheating and duress in the earlier reply. Further, it is stated that as the earlier reply filed by defendant No.2 in person without any legal advice the same cannot be taken and read as a proper written statement.
7. It is stated by the defendant No.2, that at the time of dismissal of the counter claim of the defendant No.2 vide order dated 11.05.2009, the said reply on merits had not been considered as written statement. The plaintiff himself had never accepted the said reply on merits as a written statement nor pointed out that the said reply on merits by the defendant No.2 be taken as written statement to expedite the proceedings. Thus, at this stage the plaintiff cannot be allowed to raise these frivolous grounds by way of the present application which is filed only in order to delay the proceedings.
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8. I have gone through the amended plaint as well as the written statement filed thereto by defendant No.2. It appears from the record that no proper written statement was filed by defendant No.2 as per rules. Apparently, the same was drafted by defendant No.2 himself and also signed by him and not through his counsel. However, therein it was stated that the agreements were signed under coercion and duress, and in fact, he had no understanding and signed the papers because of good relationship with the plaintiff. He was in duress because his daughter was kidnapped. Therefore, it was alleged that all the contracts are null and void being signed under duress.
9. In the entire application filed by the plaintiff under Order VI, Rule 16 CPC, nowhere the plaintiff has given the detail about the inconsistencies about the stand taken by defendant No.2 in the amended written statement and also to withdraw his earlier admission made by him. After filing the reply, the plaintiff filing the rejoinder wherein the following details are given:-
a) That defendant No.2 earlier admitted the execution of the documents pertaining to the suit property and entered into the amended Memorandum of Understanding with the plaintiff on 28.03.2006. However, now the defendants are resiling from the said compromise and are trying to take the advantage of their own wrong.
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b) In the amended written statement, defendant No.2 has not denied the execution of the fresh agreement dated 28.03.2006. In fact, defendant No.2 has stated that the said Memorandum of Understanding is void and reasons for the same are given which were earlier not mentioned by defendant No.2. It was also clarified in the written statement that the advance money of ` 12,50,000/- paid by the plaintiff in terms of the Memorandum of Understanding by cheque No.511663 dated 28.03.2006 drawn on Standard Chartered Bank has been dishonoured, therefore, the said circumstances gave right to defendant No.2 to terminate the contract.
10. In case both the written statements are read together, one is not able to find any much difference except that the earlier reply-cum- counter claim was drafted and signed by defendant No.2 himself which was not as per the Rules, and the amended written statement is filed by his counsel as per the Rules and the defence taken in the written statement has been elaborated by the stand already taken by defendant No.2. The present case is not a case where one can say that defendant No.2 has changed the entire stand as alleged by the plaintiff or has withdrawn any admission except that defendant No.2 has mentioned about the ex parte order passed by this Court in suit No.3084/1991 and other proceedings which, according to defendant No.2, were within the knowledge of the plaintiff. Therefore, I am of the view that there is no I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.6 of 7 harm if the written statement filed by defendant No.2 is taken on the record.
11. In fact, it is the plaintiff who has amended the plaint after the execution of the Memorandum of Understanding and the defendant No.2 was entitled to raise his defence in the written statement thereto. As far as the present application is concerned, the same is filed on 21.12.2010 when the admission/denial of the documents was also completed and the matter was put up before the Court for further directions. I am of the view that in case the plaintiff has any grievance about the facts stated in the amended written statement, he may raise the objections in the replication. As far as the present application is concerned, the same is without any merit and is accordingly dismissed. In the interest of justice, the plaintiff is granted four weeks' time to file the replication to the amended written statement.
12. List the matter before the Joint Registrar for admission/denial of the documents, on 08.12.2011. Thereafter, the same may be listed before the Court for framing of issues when the direction for trial would also be given.
MANMOHAN SINGH, J SEPTEMBER 23, 2011 ka I.A. No.17402/2010 in CS (OS) No.1455/2005 Page No.7 of 7