S. Ravindra Bhat, J.@mdashThe plaintiff has, for a decree of specific performance of an agreement to sell, entered into with the defendant Nos. 1 and 2, contained in a "Bayana Receipt" dated 7.12.2006. The plaintiff claims to be a businessman settled in Rajasthan, wanting to purchase of commercial property in Delhi to expand his business.
2. He claims having come into contact with Defendant No. 2 thorough a real estate agent. Defendant No. 1 is the first defendant''s wife; she is the agreement purchaser of commercial plots bearing Nos. A, B, C and D, Local Shopping Centre, Madangir, Delhi (the suit property). Defendant No. 1, it is alleged is the de facto owner of the suit property and had the legal authority to deal with the same on the basis of the said documents.
3. According to the suit, the total consideration for sale of the suit property was agreed to be Rs. 6 crores 20 lacs. The defendants, according to the plaintiff, demanded part payment in advance and an amount of Rs. 20 lakhs was paid to them in cash. The remaining payment of Rs. 6 crores was agreed to be made by 15th February, 2007. It is alleged that according to the agreement, 10% of the agreed sale consideration was payable by the plaintiff at the time of the execution of the detailed version of the agreement to sell, after adjusting the amount of Rs. 20 lacs paid on 7.12.2006. The date fixed for this purpose was 14.12.2006.
4. According to the "Bayana Receipt", it is alleged, the defendants represented that defendant No. 1 was the owner of plot Nos. A, B, C and D, Local Shopping Centre, Madangir, New Delhi, that the area of each of the plot was 82.5 square metres, totally admeasuring 330 square metres. The receipt further states that ''Pragya Aggarwal'' i.e. defendant No. 1 agreed to sell to Sh. Section N. Mathur (plaintiff), for consideration of Rs. 6 crores 20 lacs, the suit property. She further acknowledged receipt of the Bayana amount i.e. the earnest money of Rs. 20 lacs and it has been agreed that the balance payment of Rs. 6 crores would be made by 15,2.2007. The document records that instalments towards part payment would be settled at the time of making complete payment of earnest money of 10%, and that the first defendant would be responsible for removal of the Tea Shop, Tyre Repair Vendor and Mechanic who were squatting in front of the suit property. The plaintiff alleges that the defendant No. 1 further recorded that "Pakka Agreement" would be executed on 14.12.2006 on receipt of the 10% of the consideration.
5. The plaintiff alleged that he arrived in Delhi on 12th December, 2006, fully prepared to perform his part of the contract, contacted the deed writer on 13.12.2006 and thereafter made repeated efforts to contact defendant No. 2 in terms of the schedule fixed in the receipt. According to him defendant No. 2 represented that he was out of town, away to Lucknow and that he would be returning only on the evening of 14th December, 2006 or alternatively on 15th December, 2007. Defendant No. 2 allegedly assured the plaintiff that defendant No. 1 would execute the agreement on returning to Delhi. The plaintiff waited for defendant No. 2 to show up on the 15th December, 2006, but to no avail. According to the plaintiff, the defendants avoided meeting the plaintiff. Defendant No. 1, wife of the defendant No. 2 refused to sign any document in the absence of defendant No. 2. Eventually, the plaintiff returned Ajmer on 17.12.2006. The plaintiff adverts to a decoy customer having been sent to the defendants, with an offer to purchase the property, who entertained him and offered to sell the property for Rs. 8 crores. The plaintiff sent a notice dated 26.12.2006 to the defendants calling upon them to act in the direction of completing the sale/transfer of the suit property. According to the suit averments, a meeting was held with defendant No. 2 on 26.12.2006, when he revealed an intention to resile from the agreement. The plaintiff then got a public notice issued in respect of the agreement with the defendants. The defendants also came out with a public notice of their own.
6. Defendant No. 1 also sent a notice through her advocate on 2.1.2007 The stand taken by defendant No. 1 was that "it was mutually agreed between you and my client that in case you did not pay" the amount of Rs. 62,00,000/- in all by 14.12.2006, and "further failed to execute relevant agreement to this effect, this understanding/Bayana Receipt shall stand terminated and the said sum of Rs. 20,00,000/- (Rupees twenty lacs only) will be forfeited by my client." It was claimed that on 14.12.2006 she waited for the whole day for the plaintiffs arrival, but the plaintiff deliberately avoided to meet the defendants and did not come forward to fulfill his obligations and avoided executing the ''earnest money agreement'' with the defendant No. 1. It was asserted that this shows the intention of the plaintiff not to proceed with "the said transaction any further". Defendants demanded an amount of Rs. 10 lacs on account of loss of reputation due to publication by the plaintiff of a public notice in the newspaper, in relation to the transactions between the parties. The plaintiff therefore, sued the defendant.
7. The defendants, in their written statement contend there was no enforceable agreement to sell executed between the parties and that the "Bayana Receipt" cannot be considered to be an agreement to sell. According to them, the document is merely an agreement to enter into a further agreement. It is averred that the essential terms of the agreement to sell were yet to be settled between the parties and that the Court cannot grant specific performance of an agreement, the terms whereof are incomplete. In support, reliance, is placed by the defendants on terms of the receipt, where it is recorded that the schedule of the instalments to be paid would be fixed under the formal agreement to be executed on 14th December, 2006. It is also contended that the transaction itself was contingent upon grant of permission by the DDA, and the various terms and conditions upon which the DDA might grant permission to sell the suit property. The terms and conditions would include financial terms and conditions i.e. the payment of "unearned increase" and this liability had neither been quantified, nor discussed and it was not agreed who would bear the said liability. According to the defendant, the Bayana receipt itself stated that a "Pucca Agreement" would be entered into on 14.12.2006, implying thereby that the Bayana receipt itself was "Kuccha". i.e. not certain or definite. Counsel also referred to the notice dated 26.12.2006 sent by the plaintiff wherein the plaintiff himself had required the defendant to execute the agreement to sell in respect of the suit property, meaning thereby, that there was no agreement to sell till then between the parties.
8. By an order dated 27th April, 2007, this Court had granted ad-interim injunction to the plaintiff, against the defendants, restraining them from alienating or transferring the property. By these two applications, the defendants have sought permission to amend the written statement. Although several amendments have been sought, the defendant''s senior counsel submitted that the application is pressed only in respect of Paras 10(a)(c)(f)(g) and (j) and that the other amendments would be given up. Counsel for the plaintiff had during the hearings, submitted that there was no opposition to the amendments mentioned in paras 10(a)(c) and (g), but opposed the application so far as it proposed the amendments in Paras 10(f) and (j). Arguments were therefore, heard on those proposed amendments.
9. Para 10(f) and (j) of IA 855/2008 are as follows:
(f) That in fact no decree for specific performance directing Defendant No. 1 to execute the Sale Deed can be passed as the Defendant No. 1 has no title to the plots in suit in as much as there is no registered Sale Deed in respect of any of the plots in favour of the Defendant No. 1 and it is settled law that in the absence of registered sale deed no one acquires any title in the property It is admitted by the plaintiff in the plaint that the Defendant No. 1 has only "agreement to sell" in her favour, apart from some other documents. Nowhere has the plaintiff alleged that the Defendant No. 1 has any sale deed in her favour much less registered Sale Deed....
(j) That as the Defendant No. 1 has no title in the plots in suit, Defendant No. 1 is not competent to convey any title to the plaintiff which Defendant No. 1 herself does not have, Defendant No. 1 is therefore not competent to execute any Sale Deed of the plots in suit as prayed in the plaint and the suit is not maintainable under the provisions of the Specific Relief Act....
10. Mr. Sanjay Jain, learned senior counsel for the plaintiff, opposed the application and urged that if allowed, the defendant would be permitted to change material averments, which are admissions to the suit allegations. He relied on the averments in the defendants'' written statement, and submitted that the entire tenor indicates that according to their allegations, there was no binding agreement to sell, and that the plaintiff had not complied with the understanding. It was urged, importantly, that the defendants have clearly averred in para 30 of the written statement that after 14-12-2006, they were entitled to deal with the property in any manner, they like being absolute owners. This according to Mr. Jain, constituted admissions which the plaintiffs were entitled to use, when the question of relief would arise, during the later stage of the suit, after trial.
11. Learned Counsel relied on the judgments of the Supreme Court reported as
12. Learned Counsel for the applicant, Mr. Madan Bhatia, contended that the amendments are just and necessary to explain the pleadings of the defendants. It was submitted that the plaintiff was well aware that the defendants did not own the property; moreover without valid registration, the defendant No. 1 did not possess any title to the property, which could be conveyed in case a decree were to be passed in this suit. Learned Counsel relied on the judgments of the Supreme Court, reported as
13. The earliest decision (Ref. Modi Spinning and Weaving Mills (supra)) on the permissibility of amendments which may result in inconsistent pleas, had enunciated the true principle thus:
It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.
This observation has been universally applied in all subsequent judgments of the Supreme Court; even the decisions relied on by the defendants have noted this decision. Therefore, it is necessary to decide, first whether the averments or the tenor in the written statement amount to admissions, which cannot be retracted, so as to harm the plaintiffs case.
14. The tenor of the existing written statement is that there was no binding agreement to sell between the parties; the receipt merely envisioned execution of another agreement. According to the defendants, though they were willing to perform the understanding and enter into the agreement at the relevant, the plaintiff did not show any diligence. In para 30, the defendants aver that:
However, after lapse of 14-2-2006 the defendants are free to deal with their property in any manner, like they being the absolute owners and '' the plaintiff cannot hold the bona fide rights of the Defendant for granted by filing frivolous litigations and by creating fabricated records....
It can be immediately noticed that the defendant''s argument is that after 14-2-2006 they were free to deal with the property in any manner "Like they being the absolute ''owners''. The defendants, either by design or inadvertence do not claim to be absolute owners; they claim to be "like" absolute owners. In this view of the matter, the court is of the opinion that allowing the amendment would not result in the defendants resiling from an admission, which can be used by the plaintiff. Moreover, the amendment would also not change the basic nature of the defence; it continues be one for specific performance of an agreement. Also, applying the "real controversy" test applicable in this case, it has to be concluded that the amendments would assist the court in dealing with the issues arising in this case.
15. The above reasoning is, however, not dispositive of the question. It had been urged that the application cannot be allowed, since the trial has commenced, as issues were framed in the suit. Order VI Rule 17, which is relevant for deciding this point, may be usefully extracted at this stage. It reads as follows:
Order VI Rule 17-
AMENDMENT OF PLEADINGS.
The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after 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.
16. In the judgment reported as
17. In this case, although the plaintiff has filed his affidavit, his witnesses are yet to be formally examined. In these circumstances, though there is delay in seeking the amendment, that cannot be fatal to the grant of the application.
18. In view of the above observations, the court is of the opinion that interests of justice lie in permitting the defendant to amend the written statement, in terms of Paras 10(a), (c), (f), (g) and (j). The defendants shall therefore, file amended written statements, within four weeks. The applications, IA 855/2008 and 7941/2008 are allowed subject to payment of costs, quantified at Rs. 30,000/- to be paid to the plaintiff, within four weeks.
