SATINDER SINGH & ORS vs RAJINDER KUMAR & ORS

$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20th March, 2024
+ CS(OS) 2536/2013
SATINDER SINGH & ORS ….. Plaintiffs
Through: Mr. Rajiv Bakshi, Mr. Pranav Parak, Mr. D.K. Sharma, Ms. Pooja Das, Ms. Ayushi Mittal & Mr. Parth Sahrawat, Advocates.

versus

RAJINDER KUMAR & ORS ….. Defendants
Through: Mr. Jitender Chaudhary, Ms. Shilpa Chohan & Mr. Saatvik Khurana, Advocates for D-2.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A. 8448/2023 (u/S 5 of the Limitation Act, 1963 by plaintiffs for condonation of 1086 days’ delay in filing O.A. 48/2023

1. It is submitted in the application that on 31.05.2019, the earlier counsel of the applicants/plaintiffs filed the Original Appeal vide Diary No. 523743, but the same was returned under objections on 03.07.2019. However, the earlier counsel failed to remove the objections and re-file the Original Appeal. In the meanwhile, the applicants/plaintiffs changed their counsel but the counsel was not aware of the filing of Chamber Appeal or of the return of the Original Appeal on account of the objections.
2. During the course of hearing on 09.08.2019, the ld. counsel for the plaintiffs sought time to prefer the Chamber Appeal against the Order dated 24.04.2019. It is evident from the observations made by this Court in Paragraph-17 of the Order dated 09.08.2019, that the Order dated 24.04.2019 of the Joint Registrar is to be set aside in the light of Sections 21 and 22 of the Specific Relief Act, 1963. This Court also crystallised the scope of the Suit by observing that the Issues with respect to the relief of Recovery and Compensation are the only two issues which may be framed for expeditious trial of the matter and the matter was adjourned for 16.01.2020.
3. In the meanwhile, the defendant No. 2 filed the Application No. I.A. 14356/2019 seeking vacation of interim order dated 17.12.2013 and 23.09.2016. During the proceedings of the said application, this Court observed that once the receipt of Rs. 2,00,00,000/-(two crores) is admitted by the defendants, the Decree must follow since there is no Counter-Claim filed by the defendants and they cannot claim forfeiture in terms of law laid down by the Apex Court in the case of Kailash Nath vs. DDA. The application filed by the defendant No. 2 seeking vacation was dismissed vide Order dated 16.10.2019.
4. The defendant No. 2 impugned the Order dated 16.10.2019 before the Division Bench of this Court vide FAO(OS) 250/2019 and the Order dated 16.10.2019 was stayed by the Division Bench.
5. Due to the circumstances created by the COVID-19 Pandemic, the proceedings in the Suit could not be held and it was adjourned from time to time. The matter came up for hearing on 30.03.2022, but due to paucity of time, the same was adjourned for 02.08.2022. The matter was fixed for 27.09.2022 for framing as the same is reflected in the Order dated 02.08.2022 on which date, the counsel for the plaintiffs sought time to move an appropriate application to seek refund and earnest money.
6. It is submitted in the application that in the aforesaid circumstances, it escaped the attention of the counsel for the plaintiffs that the Order dated 24.04.2019 of Joint Registrar was to be challenged in view of the events that had taken place during the pendency of the Suit. The appropriate remedy for the applicants/plaintiffs was to seek refund of earnest money and compensation which would become possible only after setting aside the Order dated 24.04.2019 of the Joint Registrar.
7. It is stated in the application that though one Application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”), was filed but it was not appropriate remedy in lieu of the Chamber Appeal.
8. In that process, the delay of 1086 days has been caused in re-filing of the Chamber Appeal which also includes the period of COVID-19 Pandemic, when the normal functioning of this Court was disrupted. Hence, a prayer is made that the delay of 1086 days in filing the Original Appeal may be condoned.
9. The present application is contested on behalf of the defendant No. 2, who in his Reply has asserted that according to the Chapter II Rule 5 of the Delhi High Court (Original Side) Rules, 2018, whoever is aggrieved by the Order of the Registrar under Rule 3 of this Chapter, may, within 15 days of the Order, appeal against the same to the Judge in Chambers. Therefore, when there was a specific provision provided in the Delhi High Court Rules, there was no requirement for the applicants/plaintiffs to express their intent to file the Appeal against the Order of the Joint Registrar. The plaintiffs should have been filed their Chamber Appeal within 15 days from the date of the Order by which they were aggrieved. The applicants/plaintiffs failed to do so and have not been able to show sufficient cause of delay, as stated in the recent judgment rendered by the Apex Court in Ajay Dabra vs. Pyare Ram & Ors., plaintiffs are not entitled to condonation of delay as sought by them.
10. It is further submitted that the applicants/plaintiffs are misleading the Court by making false statement of having changed their counsel. It is apposite to mention that there is no fresh vakalatnama filed on record by any new counsel to represent applicants/plaintiffs. In fact, the counsel who has presently filed the Appeal on 10.01.2020, had also filed the Application No. I.A. 479/2020 which implies that there has been no change in the counsel for the plaintiffs. Further, on 09.08.2019, this Court had specifically mentioned in the second paragraph of the said Order that no Chamber Appeal has come up before the Court till date. In the absence of any Appeal, the observations that Order of Joint Registrar may be sought to be set aside, were conditional and based upon the action of the applicants/plaintiffs. Since the plaintiffs have failed to file any Chamber Appeal within the prescribed time limit, the Order of the Joint Registrar has attained finality. The Appeal is, therefore, based on frivolous and baseless explanation with there being no justification for delay of 1086 days.
11. It is, therefore, submitted that the present Chamber Appeal is liable to be dismissed, as barred by limitation.
12. Submissions heard.
13. The record reflects that during the pendency of the present Suit, the defendant No. 3/The Catholic Syrian Bank Limited had succeeded to obtain a Recovery Certificate regarding the loan/mortgage against the property viz. a vis the other defendants. The suit property was, therefore, taken over by the defendant No. 3 and the applicants/plaintiffs cannot now by way of present Suit seek specific performance of the contract against the defendant Nos. 1 and 2 as it has become impossible on account of auction of some portion of the suit property during the pendency of the Suit. Therefore, the applicants/plaintiffs have submitted that since they are unable to now get the suit property, they have sought amendment of the Plaint to seek compensation of Rs. 50,00,000/-, in addition to refund of Rs. 2,00,00,000/- which had been paid by them under the Contract to the defendant Nos. 1 and 2. The said amendment application was dismissed by the Joint Registrar by observing that the relief of recovery of money paid under the Contract, could have been done within three years from the refusal on the part of other parties. Since the present Suit was filed in the year 2013, the present amendment application has been filed on 13.08.2018 and is, therefore, barred by limitation. The Application for amendment under Order VI Rule 17 of CPC, 1908 was consequently dismissed.
14. The first Chamber Appeal i.e., O.A. dated 31.05.2019 was filed but there were certain objections noted by the Registry which were not removed and the same is deemed as abandonment in accordance with Delhi High Court (Original Side) Rules, 2018.
15. The second Chamber Appeal O.A. 48/2023 which is the Appeal under consideration, has been filed on 05.04.2023. The first explanation given on behalf of the applicants/plaintiffs for filing the said Chamber Appeal i.e., O.A. 48/2023 instead of pursuing the first Chamber Appeal, was that the earlier counsel engaged by the applicants/plaintiffs had filed the first Chamber Appeal vide Diary No. 523743/2019 who failed to pursue with the Registry to remove the objections.
16. The objection taken on behalf of the defendants is that the present counsel, in fact, had been appearing since prior to filing of the first Chamber Appeal, though his vakalatnama is still not on record and the assertion of the applicants/plaintiffs that the first Chamber Appeal was filed by the erstwhile counsel, is incorrect.
17. It may be noted that apparently, the earlier counsel whose vakalatnama is on record had continued to pursue the matter on behalf of the applicants/plaintiffs, even though the present counsel who had been engaged also started appearing in this matter on behalf of the applicants/plaintiffs. It is quite evident that since the applicants/plaintiffs have engaged the present counsel, the erstwhile counsel did not pursue the first Chamber Appeal that had been filed vide Diary No. 523743/2019 by him. Therefore, the claim of the present counsel that he was not aware of the filing of first Chamber Appeal, cannot be discarded outrightly. The apparent cause of this situation is lack of communication between the earlier counsel and the new counsel who was engaged without giving intimation to the earlier counsel.
18. In this backdrop, the explanation given on behalf of the applicants/plaintiffs cannot be considered untenable, since the intervening period from March, 2020 to February, 2022 was hit by COVID-19 Pandemic on account of which, the Court proceedings were totally disrupted and parties went into a disarray. The present counsel in inadvertence had filed an FAO(OS) 250/2019 against the Order dated 16.10.2019 before the Division Bench of this Court, though the said remedy was misplaced.
19. In this backdrop, it cannot be said that the applicants/plaintiffs or their counsel have been negligent. It is quite evident that there were bona fide errors in pursuing the right remedy, though the plaintiffs in right earnestness, had been conducting the present Suit.
20. For the reasons which have been explained in the present application, it cannot be said that the fault lies with the plaintiffs; rather they had engaged the counsel and for the bona fide mistakes conducted during the trial of the present Suit, the condonation of delay of 1086 days in filing O.A. 48/2023 which includes the COVID-19 Pandemic period, cannot be denied.
21. In view of the aforesaid discussions, the delay of 1086 days in filing O.A. 48/2023 is hereby condoned and the O.A. 48/2023 is taken on record.
22. Accordingly, the present application is disposed of.
O.A. 48/2023 (u/R 5 Ch. II of Delhi High Court (Original Side) Rules, 1967 r/w Section 151 of CPC, 1908) & I.A. 11089/2019 (u/O VI Rule 17 of CPC, 1908 by plaintiffs for amendment of Plaint)

23. By way of present Chamber Appeal, the applicants/plaintiffs impugn the Order dated 24.04.2019 passed by the Joint Registrar vide which the Application No. I.A. 11089/2018 under Order VI Rule 17 of CPC, 1908 was dismissed.
24. It is submitted in the present Appeal that on 23.10.2017, the counsel for defendant No. 3/The Catholic Syrian Bank Limited provided a copy of the Order dated 18.10.2016 passed in Original Application No. 149/2012 filed by the defendant No. 3/The Catholic Syrian Bank Limited against the defendant Nos. 1 and 2 before the Debt Recovery Tribunal-1, New Delhi which had been allowed vide Order dated 18.10.2016 against the defendant Nos. 1(a) to 1(d), legal heirs of Late Shri Rajinder Kumar as well as defendant No. 2 herein and a Recovery Certificate for a sum of Rs. 4,04,50,601.11/- with interest @ 15.25% per annum with monthly rests and penal interest @ 1% from 30.09.2010 was issued in favour of the defendant No. 1. The counsel for the defendant No. 3/The Catholic Syrian Bank Limited also stated that the recovery proceedings are continuing before the Recovery Officer. In view of these subsequent events, the counsel has sought leave of the Court to amend the Plaint.
25. It is submitted that now the defendant No. 3/The Catholic Syrian Bank Limited is claiming the right and interest in the suit property on the strength of Mortgage Deeds and the Sale Deeds that defendant No. 3/The Catholic Syrian Bank Limited is claiming to be in its custody, allegedly having been delivered to it by the defendant Nos. 1 and 2.
26. It is asserted that because the defendants committed breach of Contract, the applicants/plaintiffs were entitled to compensation for breach of Contract by defendant No.1 through his legal heirs and defendant No. 2, aside from Specific Performance or any substitution of such performance of the Contract, by the defendants No.1&2. Hence, the Application under Order VI Rule 17 of CPC, 1908 was filed to amend the plaint to include these facts and claim compensation in view of the Section 21 of the Specific Relief Act, 1963 by amendment in the Prayer clause.
27. The Joint Registrar, however, dismissed the amendment application by holding it to be time barred.
28. It was claimed that the Order of the Joint Registrar was incorrect as it was contrary to the provisions of Sections 21 and 22 of the Specific Relief Act, 1963. Hence, the present Chamber Appeal has been filed on behalf of the applicants/plaintiffs.
29. The present Appeal has been contested on behalf of the defendant No. 2 vide his Reply wherein he has refuted all the averments made in the present Chamber Appeal, the grounds essentially being that once the first Chamber Appeal has been abandoned, the second Chamber Appeal i.e., the present Appeal cannot be held to be maintainable.
30. It is asserted that the plaintiffs were well aware of the litigation pending between the defendant No. 1 and the defendant No. 3/The Catholic Syrian Bank Limited and they have wrongly claimed that they came to know about it for the first time on 23.10.2017 that the Debt Recovery Tribunal-1, New Delhi has passed an Order against the defendant No. 1 and other legal heirs i.e., defendant No. 1(a) to (d) in respect of the portion of the suit property that was mortgaged by the defendant No. 1 in favour of the defendant No. 3/The Catholic Syrian Bank Limited.
31. It is submitted that there is no merit in the present Appeal as the Joint Registrar has rightly passed the Order rejecting the amendment application of the applicants/plaintiffs. Therefore, the present Appeal is liable to be dismissed.
32. Submissions heard.
33. Section 21 of the Specific Relief Act, 1963 deals with the power to award compensation in certain cases and provides that in a Suit for Specific Performance of the Contract, the plaintiff may also claim compensation for its breach, in addition to its performance.
34. Clause 5 of Section 21 of the Specific Relief Act, 1963 provides that no compensation shall be awarded unless the plaintiff claims such compensation in his Plaint and has a proviso that where such a claim has not been made, the Court at any stage of the proceedings, shall allow the plaintiff to amend the Plaint on such terms as may be justified.
35. The Explanation to Clause 5 to Section 21 of the Specific Relief Act, 1963 further provides that where the Contract becomes incapable of specific performance, it does not preclude the Court from exercising the jurisdiction conferred by this Section.
36. Likewise, Section 22 of the Specific Relief Act, 1963 deals with the power of the Court to grant relief of possession, partition, refund of earnest money etc. It also contains a similar Clause i.e., Clause 2 which provides that no relief be granted unless specifically claimed and in case, such relief is not claimed, the Court may allow the same by way of amendment of the Plaint at any stage of the proceedings.
37. From the reading of the aforesaid two Sections, it is quite evident that the Act itself recognises the right of the plaintiff to be entitled to seek recovery in appropriate circumstances where the Contract itself becomes incapable of specific performance and also permits amendment to the plaint to include this Relief where it is not earlier claimed.
38. In the present case, the circumstances as have transpired during the pendency of the Suit, where the suit property has become unavailable for specific performance, serious prejudice would be caused to the plaintiffs if because of the circumstances beyond their control, they are denied the equitable relief of seeking refund of their earnest money/compensation. The technical procedures of law cannot be invoked to defeat the substantive bona fide claims of the applicants/plaintiffs, especially in a case like the present one where the payment of Rs. 2,00,00,000/- to the defendant Nos. 1 and 2 is not denied. Also, the Section 21 & 22 of the Specific Relief Act, 1963 are the enabling sections, which permit amendment at any stage.
39. Accordingly, the present Appeal is allowed and the impugned Order dated 24.04.2019 of Joint Registrar is set aside and the Application No. 11089/2018 under Order VI Rule 17 of CPC, 1908 by plaintiffs for amendment of Plaint is allowed.
40. The amended Plaint be filed within 30 days.
41. The Written Statement to the amended Plaint be filed within 15 days thereafter.
42. Accordingly, the present Chamber Appeal is disposed of.
CS(OS) 2536/2013 & 479/2020
43. List before the Joint Registrar on 08.05.2024 for completion of pleadings.
44. List before this Court for framing of additional issues on 09.07.2024.

NEENA BANSAL KRISHNA, J
MARCH 20, 2024
S.Sharma

CS(OS) 2536/2013 Page 11 of 11