Delhi High Court
Nand Kishore Arora And Anr. vs Adarsh Kumar Jain on 3 January, 1997
Equivalent citations: 1997IIAD(DELHI)625, 65(1997)DLT212
Author: S.N. Kapoor
Bench: S.N. Kapoor
JUDGMENT S.N. Kapoor, J.
(1) This Revision Petition is directed against an order of refusing to reject the plaint under Order 7 Rule 11, Civil Procedure Code on the ground that the plaint did not show any cause of action.
(2) The cause of action is mentioned in para 9 of the plaint. It reads as under: That the cause of action in favour of the plaintiff arose on 5 April, 1982 against the defendants, upon defendants receiving from plaintiff the said sum of Rs. 20,000.00 for which receipt dated 5 April, 1982 was duly executed by defendants & delivered to plaintiff on 5 April, 1982. The cause of action thereafter arose in favour of the plaintiff on 7 April, 1982 by way of debit to the bank account of plaintiff; on 15 April 1982 when defendants failed to make available requisite documents to the plaintiff on June 5,1982 when defendants failed to execute and get registered the sale deed in favour of the plaintiff; on 5 July, 1982 when defendants failed to refund to plaintiff with interest the said sum of Rs. 20,000.00 (Rupees twenty thousand) only; on 27 May, 1983 when the notice of demand dated 19 May, 1983 was served upon defendants, on 15 June, 1983 when the notice of demand dated 19 May, 1983 was served upon defendants, on 15 June, 1983 of the Counsel for the defendants was served upon Counsel for the plaintiff and on various other dates when the plaintiff called upon defendants to perform their part of the contract. The cause of action is continuing one and continues to subsist in favour of the plaintiff and against the defendants."
(3) The plaintiff filed a suit for recovery of Rs. 26,120.00. The amendment in the plaint had already been allowed in para 6 of the plaint to indicate that the plaintiffs were always ready and willing to perform the part of the contract. This amendment would obviously relate back to the date of institution of the suit.
(4) On an application for rejection of the plaint, the learned Additional District Judge rejected the contention of the learned Counsel for the revision by holding that , Gomathinayagam Pillai v. Palaniswami Nadar, and Rai Rani Bhasin v. Kartar Singh, related to suit for specific performance and not a suit for recovery of the amount given as advance.
(5) Section 22 of the Specific Relief Act permitted recovery of earnest money in alternative paid by any one of the parties in case his claim for specific performance was refused. Section 22 of the Specific Relief Act reads as under : 22. Power to grant relief for possession, partition, refund of earnest money, etc.-(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for - (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case his claim for specific performance is refused. (2) No relief under Clause (a) or Clause (b) of Sub-section (1) shall be granted by the Court unless it has been specifically claimed: Provided that where the plaintiff has not-claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the Court to grant relief under Clause (b) of Sub-section (1) shall be without prejudice to its powers to award compensation under Section 21."
(6) While in a suit for specific performance, it is essential to make an averment that the plaintiff was and has always been ready and willing to perform part of the contract in terms of Section 16(c) it does not appear to be so essential for seeking just recovery of earnest money that the plaint is bound to be rejected under Order 7 Rule 11, Civil Procedure Code for Section 16(c) does not refer to simple suits for refund of earnest money while Section 22 refers to a composite suit for specific performance of the contract, as well as for reliefs of possession and partition, and in the alternative relief of refund of earnest money where relief of specific performance has been refused. Section 16(c) of Specific Relief Act reads as under : 16: Personal bars of relief.-Specific performance of a contract cannot be enforced in favour of a person - (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in frayed of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (e) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him,otherthan terms the performance of which has been prevented or waived by the defendant."
(7) In view of the aforesaid, "Is it a suit for specific performance? is a question. One must note the averments in the plaint in this regard. It has been alleged in the plaint that when defendant failed to make available requisite document of the plaintiff (on 15th April, 1982) and when the defendants failed to execute and get registered the sale deed in favour of the plaintiff (on June 5, 1982), the defendant's thinking that the plaintiffs are incapable of performing their part filed the suit for recovery of the amount of earnest money. In the light of these averments, it further appears that the plaintiffs were not left with any alternative but to presume that the defendants themselves were not in possession of the said built up property since they failed to obtain a certificate under Section 230 of the Income Tax Act, 1961 within the stipulated period and consequently the sale deed could not be registered. It may also be mentioned that now amended para 6 of this plaint reads : "That the plaintiff in the circumstances has no alternative but to presume that the defendants are not duly registered owners in possession of the said built- up property. Inasmuch as the defendants have failed to duly obtain within stipulated period of the certificate u/Section 230-A of Income Tax Act, 1961; the sale deed could not & would not have been registered under provisions of Section 17(1) of Indian Registration Act, 1908. The plaintiff has always willing to perform his part of contract provided the defendants by way of documentary evidence established their clean un-encumbered marketable & registered title to the said property. It is only on account of the breaches by way of various acts of commission and commission of defendants that the defendants have failed to execute & get registered requisite sale deed in favour of the plaintiff and to put the plaintiff in actual physical possession of the said premises."
(8) From the averments made by the plaintiff/respondent it is apparent clear that they have presumed and accepted that the defendants/petitioners cannot perform their part of contract. Moreover, this kind of averments make out a case covered under 17(l)(a)&(b) both and as such not specifically enforceable. Thinking that it would be futile exercise filed only a suit for recovery of earnest money, and not of specific performance. In view of the aforesaid reasons, it is not possible to accept that no cause of action could be made out on the basis of averments in the plaint at least now after the amendment for the amendment would relate back to the date of filing of the suit itself.
Therefore I do not find any force in this Revision Petition and it is dismissed accordingly.
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Copy of this order be sent to the learned Trial Court through learned District Judge for information and to proceed in the matter in accordance with law.