Suresh Kumar Gera vs Syed Faiz Murtaza Ali And Others

Jayant Nath, J

This suit is filed by the plaintiff for recovery of Rs.3.08 crores.

The facts which are pleaded make a somewhat remarkable reading. It is stated that defendant No.1 was the recorded owner of the property i.e. A-

4, Chirag Enclave, New Delhi. The plaintiff is said to have become interested in purchasing the said property. He entered into an agreement to sell on

28.01.2005 whereby he along with defendant No.4 agreed to purchase the said property. A sum of Rs.30 lacs was paid in cash by the plaintiff to

defendant No.1 on 28.01.2005. It is further pleaded that there was a delay on the part of defendant No.1 to perform his part of the agreement causing

concern and apprehension. Thereafter, a second agreement to sell was executed on 06.10.2005 where the consideration is said to have been

enhanced to Rs.9 crores on account of an undertaking/assurance given by defendant No.1 to get the property vacated from the tenant, namely, Shri

Harish Reddy. A sum of Rs.20 lakhs was also given to defendant No.1 by the plaintiff. A cheque of Rs.2 crores was issued to defendant No. 1 by

defendant No.4. Again, confusion started and it is pleaded that defendant No.4 threatened to back out from the assurance that the cheque of Rs.2

crores would be encashed as the plaintiff and defendant No.4 thought that defendant No.1 was not ready to conclude the deal. A fresh agreement to

sell was executed on 08.10.2005. The plaintiff gave another sum of Rs.50 lacs to defendant No.1.

It appears that despite the three agreements to sell, defendant No.4, namely, Sh. Amar Chand Goyal decided to back out from the deal. The

plaintiff accordingly requested defendant No.1 to return his Rs.1 crores. A fourth agreement to sell was then executed on 29.05.2006 but instead of

defendant No.4, Mr.S.C. Maheshwari became a party who was defendant No.2 but subsequently had been deleted from the array of parties.

Now, a fifth agreement to sell also came about on 31.10.2006 whereby Mr.S.C. Maheshwari, the erstwhile defendant No.2 is substituted by his

daughter-in-law i.e. defendant No.3-Ms.Archana Maheshwari. As per the said agreement to sell dated 31.10.2006, it was agreed that the

consideration amount would be Rs.8 crores. It was also noted that the second party, namely, the plaintiff and defendant No.3 had paid an amount of

Rs.2 crores to defendant No.1. The second party undertook to pay Rs.2 crores to plaintiff for and on behalf of defendant No.1. Balance amount of

Rs.4 crores was to be paid to defendant No.1 at the time of execution of sale deed/GPA which was to be done on or before 15.12.2006 failing which

the agreement would stand cancelled and all advances paid shall stand forfeited.

This suit is based on this document, namely, the agreement to sell dated 31.10.2006.

The curious manner in which the suit has proceeded does not come to an end here. It appears that on service of summons for judgment, defendants

No.1 and 3 entered appearance and also filed their applications for leave to defend. Defendant No.1 filed I.A. No. 2091/2010 praying for leave to

defend. Defendant No.3 filed I.A.1830/2010. Thereafter, defendant No.1 has filed I.A.9642/2010 praying that he may be permitted to withdraw

I.A.2091/2010. The aforesaid application, namely, IA No. 9642/2010 was allowed on 03.01.2011 and the application seeking leave to defend of

defendant No.1 i.e. IA No. 2091/2010 stood dismissed as withdrawn. However, for some unknown reason, a decree was not passed in the present

suit on that date.

As far as defendant No.3 is concerned, her application for leave to defend, namely, I.A.1830/2010 was dismissed in default on 16.02.2010. She

moved an application for restoration of the said application which was also dismissed on 06.07.2012. Again, on the said date no decree was passed

against defendant No.3 despite the fact that her application for leave to defend had been dismissed.

In the meantime, on 20.06.2013, defendant No.1 expired. His LRs have been brought on record. The LRs filed an application being IA No.

15435/2015 seeking leave to defend. This application was dismissed on 03.08.2015. Thereafter, the LRs of defendant No.1 filed an appeal being

FAO(OS) No. 543/2015. The Division Bench on 23.02.2016 dismissed the said appeal noting the confusion that has been going on in the present

proceedings compounded by various aspects including the needless applications filed by the defendants. An SLP filed against the said order was also

dismissed on 02.05.2016.

What would follow now? A summary suit has been filed. Applications for leave to defend have either been dismissed as withdrawn or dismissed in

default. Under Order XXXVII CPC, a decree has to follow.

Learned counsel appearing for defendant No.1 has vehemently opposed the passing of the decree. Firstly, he submits that on the face of it, the

plaint is barred by limitation and hence, this court should dismiss the suit in view of Section 3 of the Limitation Act. He has also pointed out that a

perusal of the plaint would show that the claim of the plaintiff is beyond the contract inasmuch as per the agreement to sell dated 31.10.2006, at best,

defendant No.1 had to pay Rs.2 crores to the plaintiff. He submits that even as per the case of the plaintiff, he had paid only Rs.1 crore to defendant

No.1. This figure is sought to jump up to more than Rs.3 crores when the present suit is filed and hence, Order XXXVII CPC is not attracted.

Defendant No. 3 has adopted the submissions of defendant No.1.

Learned counsel for the plaintiff has pointed out that the illegal conduct of the defendants has continued unabated. He has pointed out that after

the last agreement to sell between the parties dated 31.10.2006, defendants No.1 and 3 entered into another agreement to sell on 16.12.2006 with

Mr.Asar Raja Zaidi where defendant No.3 is also a party. Thereafter, he has pointed out that defendant No.1 has sold the suit property to Terra Real

Estate Pvt. Ltd. on 08.01.2010 vide registered agreement to sell. He submits that defendant No.3 is on the Board of Directors of Terra Real Estate

Pvt. Ltd. and has relied upon the relevant form of the said company which shows Directors as Ms.Indu Maheshwari and Ms.Archana Maheshwari.

I may first see the contents of the agreement to sell dated 31.10.2006. The same reads as follows:-

“1. That the amount of consideration agreed between the parties for the 'property' is Rs.8.00 crores (Eight Crores) out of which the

Second Party has paid an amount of Rs. 2.00 Crore, vide Cheque No.336270 dated 19.6.06 amounting to Rs.l2,50,000/-, vide Cheque

No.848930 dated 19.6.06 amounting to Rs.7,50,000/-, vide Cheque No. 154372 dated 19,6.06 amounting toRs.30,00,000/- and vide Cheque

No.681388 dated 17.8.06 amounting to Rs.25,00,000/- in favour of the Vendor and plus Rs.l.25 crore in cash.

That out of the balance amount, the Second Party has undertaken to pay Rs.Two crore to Shri S.K. Ghera for and on behalf of the First

Party, and the balance amount of Rs. Four Crore shall be paid to the Vendor at the time of the execution of the Sale Deed/or General Power

of Attoney duly registered on or before 15.12.2006, failing which this agreement would stand cancelled and all advances paid shall stand

forfeited.

That all present and future litigation pertaining to the above-referred property would be the responsibility of the Second Party.â€​

As per the above agreement, the second party has undertaken to pay Rs.2 crores to Sh. S.K. Ghera. Second party is described as Smt. Archana

Maheshwari (defendant No.3) and Shri S.K. Ghera. It is implicit from a reading of this document that it was Smt. Archana Maheshwari who has

undertaken to pay Rs.2 crores to the plaintiff on behalf of defendant No.1.

Further, the agreement to sell also states that the transaction has to be completed by 15.12.2006 failing which the agreement would stand

cancelled and all advances shall stand forfeited. It is the plea of defendant No.1 that limitation period would commence w.e.f. the said date and the

suit has been filed subsequently on 14.12.2009 when the plaint was verified.

Learned counsel for the plaintiff has however clarified that the plaint was actually filed on 29.10.2009. Thereafter, as there were some objections,

the plaint was returned and was re-filed after removing all the objections on 16.12.2009. He also points out that along with the plaint an application for

condonation of delay in re-filing was also moved. The application being I.A.16579/2009 was allowed on 21.12.2009.

Against the said order dated 21.12.2009, defendant No.1 had filed an appeal before the Division Bench being FAO(OS) 110/2010. The Division

Bench on 18.02.2010 did comment adversely against the plaintiff stating that the original record shows that the plaint had been filed on 29.10.2009 but

the plaint was verified on 14.12.2009. The court noted that the plaint was returned under objections number of times. It also noted the submissions of

the learned counsel for the plaintiff that since there were subsequent developments, amendments were made in the plaint. The Division Bench

frowned upon this procedure of adding material to the plaint without permission of the court. However, the appeal was dismissed stating that it was

not an appealable order and liberty was granted to raise all issues at the time of filing of application for leave to defend in accordance with the law. As

noted, the application for leave to defend was filed but was withdrawn by defendant No.1.

It is quite clear that order dated 21.12.2009 stands. In view of the fact that the original filing is of 29.10.2009 and the delay in re-filing has been

condoned, the suit is within the period of limitation.

As far as the amount claimed in the plaint is concerned, learned counsel for the plaintiff has admitted that as per the agreement to sell in question,

defendants No.1 and 3 were to pay a sum of Rs.2 crores. He however, submits that the figure of Rs.3.08 crores has been arrived at in view of the

interest which was calculated @ 18% per annum. He admits that to this effect, there is no clear averment in the plaint. Hence, he does not press the

issue of interest prior to filing of the suit. He, however, requests that interest may be awarded pendente lite after filing of the suit.

Accordingly, in view of the above, it is quite clear that the suit is based on the liability as stated in agreement to sell dated 31.10.2006.

It is quite obvious that once the applications for leave to defend of defendants No.1 and 3 have been dismissed as withdrawn /dismissed in default,

the suit would have been decreed. In fact, the same observations have been made by the Division Bench in FAO(OS) No.543/2015. I may only note

that the Division Bench in para 6 of its judgment dated 23.02.2016 had noted that prima-facie on a meaningful reading of the plaint, the suit would lie

against defendant No.1 and defendants No.2 to 4 were impleaded as unnecessary party. However, the Division Bench noted that this issue would not

be expanded because it would be irrelevant.

I have noted the contents of the agreement to sell above. In my opinion, a reading of the same would show that as per the said agreement to sell

dated 31.10.2006, defendant No.3 has also agreed in the capacity as a party to agreement to sell to pay on behalf of defendant No.1 the sum of Rs.2

crores to the plaintiff.

Accordingly, I pass a decree in favour of the plaintiff and against defendants No.1 and 3 for a sum of Rs.2 crores. Plaintiff shall also be entitled to

simple interest @ 10 % p.a. from the date of filing of the present suit till the date of decree. Plaintiff shall also be entitled to simple interest @10 %

p.a. from the date of decree till recovery. The plaintiff shall also be entitled to costs.

Suit stands disposed of. All pending applications, if any, also stand disposed of accordingly.