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KARAN KAPOOR vs MADHURI KUMAR & ORS.

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$~5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22.01.2024
+ CS(OS) 397/2019 & I.A. 10619/2019
KARAN KAPOOR ….. Plaintiff
Through: Mr Shree Prakash Sinha, Mr Rakesh Mishra and Mr Rishabh Kumar, Advs.
versus
MADHURI KUMAR & ORS. ….. Defendants
Through: Mr Ravinder Singh, Ms Raveesha Gupta and Mr Dhruv Goel, Advs.

+ CS(OS) 638/2023
MADHURI KUMAR ….. Plaintiff
Through: Mr Ravinder Singh, Ms Raveesha Gupta and Mr Dhruv Goel, Advs.
versus

KARAN KAPOOR ….. Defendant
Through: Mr Shree Prakash Sinha, Mr Rakesh Mishra and Mr Rishabh Kumar, Advs.

CORAM:
HON’BLE MR. JUSTICE JASMEET SINGH

: JASMEET SINGH, J (ORAL)
CS(OS) 397/2019 & CS(OS) 638/2023

1. For the sake of convenience, the parties herein are referred as their status in CS (OS) 397/2019.
2. This is a suit [CS (OS) 397/2019] filed under section 10 read with 34 of the Specific Relief Act, 1963 seeking enforcement of three Agreements to Sell dated 22.04.2017, 25.05.2017 and 30.12.2017. The suit further seeks permanent prohibitory and mandatory injunction creating any third party rights/interests on the property bearing No. B-228, Ground Floor, Greater Kailash, Part – 1, New Delhi – 110048 (hereinafter referred to as “Suit Property I”).
3. It is stated that Defendant No. 1 is the absolute and lawful owner of the Suit Property I, by virtue of registered Sale Deed dated 30.07.2010. However, defendant No. 1 had executed a general power of attorney with regard to the Suit Property I in favour of her son. Defendant No. 2, who along with his associate i.e. Defendant No. 3 had been in talks with the plaintiff for selling the Suit Property I.
4. It is further stated that an Agreement to Sell dated 22.04.2017 (“ATS I”) was executed by defendant Nos. 2 and 3 in favour of the plaintiff with regard to the Suit Property I for consideration amount of Rs. 3.6 crores.
5. Thereafter, the plaintiff decided to transfer his rights, title and interest in plot of land measuring 1 bigha 10 biswas in Khata No. 24/91, Khasra No. 153/1 (0-13), 154/1 (1-11), 584/212 (0-11), 586/214 (0-14), 215/1 (2-15), 588/212 (1-4), 590/219 (0-13), 592/221 (0-12) 15/173rd hissa of total rakba 8-13, rakba 0-15 biswa (hissajagdevsingh) and Khata no. 5/70, 15/74th Hissa of Khasra No. 211/2 (3-14) rakba 0-15 biswa (hissacharanpalsingh) total rakba 1 bigha 10 biswa; barumejamabandhi 2004/05 vaka: PindGobindGarh Tehsil Amloh, Bound on the East: 201′-0″ gali 20 feet wide West: 201′-0″ land North: 68′-0″ South 66′-3″ Ashok Kumar (hereinafter referred as “Suit Property II”) to defendant Nos. 1 and 2 as partial consideration for the suit property I.
6. Plaintiff then entered into another Agreement to Sell dated 25.05.2017 (“ATS II”) with respect to the Suit Property II in favour of defendant no. 2 by the plaintiff subject to the transfer of Suit Property I in favour of plaintiff.
7. It is further stated that in continuous delay in performance of obligations of ATS I, defendant Nos. 1 and 2 informed the plaintiff that the right, title and interest in certain common portion of the Suit Property I could not be legally transferred to the plaintiff and therefore defendant Nos. 1 and 2 agreed to further reduce the consideration amount of the Suit Property I to be paid by the plaintiff. Therefore, in light of the adjustments being made to the consideration payable for the Suit Property I, the plaintiff felt it necessary that a new Agreement to sell be executed for the Suit Property -1. As a result, an Agreement to Sell dated 30.12.2017 (“ATS III”) was executed by the defendant Nos. 1 in favour of the plaintiff.
8. Due to delay tactics of the defendant Nos 1 and 2 and further refused to execute a sale deed for the Suit Property I in favour of the plaintiff and renege from performing its obligations under ATS I, ATS II and ATS III, plaintiff was constrained to file the present suit seeking enforcement of all the agreements to sell.
9. In the meanwhile, defendant no. 2 filed a suit [CS(OS) 638/2023] seeking possession of the Suit Property I and arrears of rent before the learned trial court. Vide order dated 02.06.2018, suit with regard to the arrears of rent was withdrawn and summons were issued for the rest of the prayers.
10. Vide order dated 01.12.2020, Order 12 Rule 6 application of the defendant no. 1 was disposed of and the learned trial court partly decreed the suit for possession with respect to the Suit Property I. Review against this order was filed by the plaintiff which was dismissed vide order dated 17.02.2021.
11. Plaintiff feeling aggrieved filed RFA No. 218/2021 challenging the above orders. Vide order dated 08.04.2021, the said RFA was dismissed by this court.
12. Thereafter, plaintiff filed the SLP No. 13800 of 2021 challenging the order dated 08.04.2021. Vide order dated 06.07.2022 passed by the Hon’ble Supreme Court, the orders passed by the learned trial court and this court were set aside and directed that in terms of the admitted fact by extended Lease Agreement and the increase in the percentage of rent, the Trial Court shall first decide the issue of payment of monthly rent applying the said increase on year-to-year basis and pass appropriate orders for payment of arrears as well as deposit of regular monthly rent.
13. Vide order dated 03.01.2023, learned trial court framed the issues. Thereafter plaintiff filed transfer petition seeking transfer of CS(OS) 638/2023 before this court. Vide order dated 20.09.2023, this court ordered to transfer the suit pending before the learned trial court to this court.
14. With this background, the two applications required to be adjudicated are :-
I.A. 11430/2021
15. This is an application under Order VI Rule 17 of CPC filed by the plaintiff seeking amendment to the plaint in CS (OS) 397/2019.
16. The plaintiff seeks to amend paragraph Nos. 2, 4, 5, 6, 9, 13, 14, 15, 21 and 33 of the plaint.
17. For the sake of brevity, the plaint filed by the plaintiff and the amendments as sought are highlighted in a tabulated form as under:
Proposed
Para
Original Suit

Amended Suit

2
It is submitted that Defendant No.1 is the absolute and lawful owner of the Suit Property-I, by virtue of registered Sale Deed dated 30.07.2010. However, Defendant No.1 had executed a general power of attorney with regard to the Suit Property – I in favour of her son, Defendant No 2, who along with his associate, Defendant No.3 had been in talks with the Plaintiff for selling the Suit Property-I.

It is submitted that the Defendant No.1 is the absolute and lawful owner of the Suit Property-I, by virtue of registered Sale Deed 30.07.2010. However, Defendant No.1 had executed a general power of attorney with regard to the Suit Property I in favour of her son, Defendant No.2 who along with his associate, Defendant No.3 had executed the agreements thereby effecting the sale of the suit property against payment of earnest money. Taking the Suit property-I for rent by the Plaintiff from the Defendant No.1 was always discussed, coordinated and sealed by the Defendant No.2 acting on behalf of the Defendant No.1, moreover the signatures of the Defendant No.1 used to be taker on the agreements for which the stamp papers which were purchased by the Defendant No.1 or the Defendant No.2.
4
That after the terms of the Lease Agreement stood concluded, Defendant No.1.approached the Plaintiff and offered to sell her right, title and interest in the Suit Property I. Upon repeated insistence from Defendant No.1, acting through her Attorney Holder Defendant No.2 and his associate. Defendant No.3, the Plaintiff agreed to purchase the Suit Property -I. However, it is pertinent to mention here that firstly, the Defendants kept delaying the execution of the Agreement to Sell and thereafter also delayed the execution of the Sale-deed for the Suit Property -I; secondly, the Defendants provided a frivolous reason for the said delay, however it was later discovered that the relevant papers for the Suit Property -I were already deposited in a bank 2 to procure a loan against the Suit Property-I.

That after the terms of the Lease Agreement stood concluded, Defendant No.1, approached the Plaintiff and offered to sell her right as the plaintiff had purchased the above property also, title and interest in the Suit property. Upon repeated insistence from the Defendant No.1, acting through her attorney Holder. Defendant No.2 and his associate Defendant No.3, the Plaintiff agreed to purchase the Suit Property-I. However, it is pertinent to mention here that, firstly, the Defendants kept delaying the execution of the Agreement to Sell and thereafter also delayed the execution of the Sale-Deed for the Suit property-I. Secondly, the Defendants provided a frivolous reason for the said delay however it was later discovered that the relevant papers for the Sui property I were already deposited in a bank to procure a loan against the Suit Property-I
5
That in the year 2015, the Defendant No.2 approached the Plaintiff and demanded a significant sum of money and thereafter, the Plaintiff paid the money demanded by Defendant No.1.This is evidenced from the conduct of the Defendant No.1 who for over 4 years did not make any demands of rent from the Plaintiff. The relationship between the Plaintiff and Defendant No.1 seized to be that of lessor and lessee and turned to buyer and seller of the Suit Property -I once the ATS-I was signed by both the parties.

That later in the year 2014, the Defendant No.2 approached the Plaintiff and demanded a significant sum of money and thereafter, the Plaintiff paid the money demanded by Defendant No.1.This is evidenced from the conduct of the defendant No. 1 who for over 4 years did not make any demands of rent from the Plaintiff. That the Plaintiff and; the Defendant no.2 and the Defendant No.3 had been in constant conversations w.r.t. the procurement of loan for paying off the amounts fixed towards the consideration against the purchase of the suit property The Defendant Nos.2 and 3 were arranging for the loan from the HDFC Bank as they represented to be dealing with numerous banks at a regular basis. Although the Defendant No.2 stated to be having a good relationship with many banks, but the Plaintiff had approached Allahabad Bank at a later stage when the Defendants kept on delaying the loan approval. The Defendant No.2 advised the Plaintiff to get in touch with one Mr.Amit, who first made the attempt to organise paperwork for securing a loan from HDFC and later from Allahabad Bank. That the Plaintiff was being persuaded by the Defendant No.2 to keep on handing over the cash amounts leading to a total of Rs 60,00,000/-(Rupees Sixty Lac Only) during that period from 07.07.2014 till 22.04.2017.The Plaintiff not being very sure of the fact if the original papers of the suit were in the custody of the Defendant No.2 or not. The Defendant No.2 although had a malicious intent in conspiracy with the other defendants won over the Plaintiff by showing the same to the Plaintiff on 19.12.2016. The relationship between the Plaintiff and Defendant No.1 seized to be that of a lessor and a lessee and sealed to be that of a buyer and a seller of the suit property I once the ATS -I was signed by both the parties, needless to state the part payments towards the earnest money that were taken in by the Defendant No.1 during the period from 07.07.2014 till 22.04.2017, had commenced the relationship between the Plaintiff and the defendant No.1 that of a buyer and a seller; the delay in executing the documents of sale and purchase of the suit property is only attributable to the lapses on part of the Defendants, as they could not arrange in time the original documents of the Suit Property -I, for verification by the Bank.
6
That after exchanging various correspondences through text messages and WhatsApp messages Defendant No.2 and his associate Defendant No.3, an agreement to sell dated 22.04.2017 (hereinafter referred to as “ATS -I”) was finally executed with regard to the Suit Property -I in favour of the Plaintiff in presence of Plaintiff’s friend Mr. Brijesh Kumar and all the Defendants. As per the said ATS-I, the Plaintiff agreed to pay Rs.3,60,00,000/-(Rupees Three Crores Sixty Lakhs Only) as sale consideration for the Suit Property -1.

That after exchanging various correspondences through text messages and WhatsApp messages Defendant No.2 and his associate Defendant No.3, an agreement to sell dated 22.04.2017 (hereinafter referred to as “ATS-I”) was finally executed with regard to the Suit Property I in favour of the Plaintiff in presence of Plaintiffs friend Mr. Brijesh Kumar and all the Defendants. The amount towards the earnest money was adjusted in the total sale consideration but the will of the Defendants was not to indicate the receipt of the same in the ATS-1.Moreover,it is also pertinent to state that the Defendant no.2 is a seasoned Charted Accountant, who was rather piloting the transaction as to how the same be conducted and the Plaintiff being a novice to the financial jugglery had reposed his trust in the Defendant No.2 as he was a professional. Therefore, as per the said ATS-I, the defendant agreed to accept Rs 3,60,00,000/-(Rupees Three Crores Sixty Lacs Only) as sale consideration for Suit Property -I, as the amount towards the earnest money already stood paid as also indicated in the receipt dated 22.04.2017 sent via email dated 26.04.2017.It is also pertinent to mention that the signed copy of the ATS-1 was sent by the Defendant No.2 through Defendant No.3 vide email dated 24.05.2017 also marked to Defendant No.2.The Defendants had sent the photo identification cards of the seller of the suit property and also the copy of original documents of the suit property-I for the purpose of verification by bank in order to procure a loan. A copy of the receipt dates 22.04.2017 and the email dated 26.04.2017 is enclosed herewith. A copy of the ATS -1 dated 22.04.2017 is enclosed herewith. A Copy of the email dated 24.05.2017 is enclosed herewith. A copy of the emails dated exchanged between Plaintiff and the Defendant No.1 are enclosed herewith.
9
It is pertinent to mention here that the Plaintiff purchased the Suit Property II for Rs.14,75,000/- (Rupees Fourteen Lakhs Seventy-Five Only) in the year 2007. However, the value of the Suit Property I has exponentially increased to approximately Rs.1,50,00,000/- (Rupees One Crore Fifty Lacs Only) and the same could be seen from the recent sale deed executed for land near the Suit Property –II.

It is pertinent to mention here that the Plaintiff purchased the Suit Property II for Rs.14,75,000/-(Rupees Fourteen Lacs Seventy Five Thousand Only) in the year 2007. However, the value of the Suit Property -II has exponentially increased to approximately Rs. 1,50,00,000/- (Rupees One Crore Fifty Lacs Only) and the same could be seen from the recent sale deed executed for land near the Suit Property-II. Therefore, the earlier amounts of Rs.60,00,000/-(Rupees Sixty Lacs Only) paid to the Defendant no.1 and a further amount of Rs.1,50,00,000/-(Rupees One Crore Fifty Lacs Only) towards the sale of the Suit Property -II in favour of the son of the Defendant No.1, had dropped the balance towards the sale consideration for the suit property for Rs.4,27,00,000/-(Rupees Four Crores Twenty Seven Lacs Only) to Rs.2,17,00,000/-(Rupees Two Crores Seventeen Lacs Only),wherein the amount of Rs.7,00,000/-(Rupees Seven Lacs was to be paid to the Defendant No.1 in cash, as demanded by her, at the time of execution of the sale deed. It is pertinent to mention that the original documents of the Suit Property -II were sent to the Defendants numerous times and due diligence of the same was adequately done in order to affect the transaction, to the satisfaction of the defendants. A copy of the ATS-2 dated 25.05.2017 is enclosed herewith.
13
Consequently, the Plaintiff and Defendant No. I executed a final agreement to sell the Suit Property-I on 30.12.2017 (hereinafter referred to as “ATS -II”). However, Defendant No.1 and Defendant No.2 continued their dilatory tactics and failed to mention the final consideration for the Suit Property -I on the pretext of requiring time to calculate the exact value of the common portion. It is also pertinent to mention here that the Defendants herein never provided the Plaintiff an entire copy of ATS-III.

Consequently, the Plaintiff and Defendant No.1 executed a final agreement to sell the Suit property-I on 30.12.2017 (hereinafter referred to as “ATS-III”). However, Defendant No.1 and Defendant No.2 continued their dilatory tactics and failed to mention the final consideration for the Suit Property-I on the pretext of requiring time to calculate the exact value of the common portion, although the same stood concluded by way of executing the ATS-III. It is also pertinent to mention here that the Defendants herein never provided the Plaintiff an entire copy of the ATS-III which clearly states the amount of the sale consideration after all the adjustments which is Rs.2,17,00,000/ (Rupees Two Crores Seventeen Lacs Only) although the amounts towards the cash Rs.7,00,000/-(Rupees Seven Lacs Only) as settled before was now agreed to be made part of the ATS-III. It is also a matter of fact that the transaction of sale was under process as the verification agents/advocate of the Allahabad Bank had visited the defendants and verified the true documents of the Suit Property-I and details of the owner i.e. the Defendant No.1 as also indicative in the messages exchanged between the Plaintiff and the Defendant No.2.It is also pertinent to mention that the Agreements to Sell were being amended so as to accommodate the adjustments towards the already made payments in cash and also through the sale of Suit Property-II. Although the area of the Stilt along with the Suit Property-I, is completely illegal, which was numerous times flagged before the Defendants, but since substantial amounts were already paid by the Plaintiff, he was put in a hostile condition and forced to buy an illegal area as well, which is adequately reflected in the conversations exchanged between the Plaintiff and the Defendant No.2 of 27.03.2018.A copy of the ATS-III dated 30.12.2017 is enclosed herewith. A copy of the messages exchanged between the Plaintiff and the Defendant No.2 are enclosed herewith. A copy of the message dated 27.03.2018 exchanged between the Plaintiff and Defendant No.2 is enclosed herewith.
14
That it is humbly submitted that there was a minor delay with regard to the execution of the sale deed for the Suit Property -1 on part of the Plaintiff. The said delay happened due to unfortunate and untimely death of the father of the Plaintiff. Thereafter, as soon as the Plaintiff performed last rites and rituals for his late father, the Plaintiff started approaching various banks to procure loan to buy the Suit Property 1. Further, the Defendants herein kept insisting the Plaintiff to procure the loan from HDFC bank as Defendant No.2’s associate, Defendant No.3 claimed to know the officials in HDFC Bank who would help in procuring the loan. However, the Plaintiff approached the Allahabad Bank to procure a loan amount of Rs.1,70,00,000/-(Rupees One Crore Seventy Lakhs Only)(hereinafter referred to as “Loan Amount”) to execute the Sale Deed for the Suit Property –I.

That it is humbly submitted that there was a minor delay with regard to the execution of the sale deed for the Suit Property-I on part of the Plaintiff. The said delay happened due to unfortunate and untimely death of the father of the Plaintiff. Thereafter, as soon as the Plaintiff performed last rites and rituals for his late father, the Plaintiff started approaching various banks to procure loan to buy the Suit Property I Further, the Defendants herein kept insisting the Plaintiff to procure the loan from HDFC bank as Defendant No.2’s associate, Defendant No.3 claimed to know the officials in HDFC Bank as Defendant No.2’s associate, Defendant No.3 claimed to know the officials in HDFC Bank who would help in procuring the loan. However, the Plaintiff approached the Allahabad Bank to procure a loan amount of Rs 1,70,00,000/- (Rupees One Crore Seventy Lacs Only) (hereinafter referred to as “Loan Amount”) to execute the Sale Deed for the Suit Property-I. The Plaintiff had sent an email to the Defendant No.2 in order to procure the documents required from the HDFC Bank, the Defendant No.2 sent an email dated 28.12.2017 along with a copy of all the documents requisite for the procurement of the loan. It is also pertinent to mention that all the documents w.r.t. the Suit Property-I such the rent deeds and the ATSs and Suit Property-II were always prepared by the Defendant No.2, on whom the Plaintiff had reposed his absolute faith and trust. The negotiations which had to be reflected in the amended deeds were also drafted by the Defendant No.2. A copy of the email dated 28.12.2017 is enclosed herewith.
15
It must be pointed out that the Plaintiff willingly and diligently took necessary steps and even received provisional sanction of the Loan worth Rs.1,70,00,000/- (Rupees One Crore Seventy Lakhs Only) (hereinafter referred to as “Loan Amount”) for the Suit Property 1. However, the Defendants to defraud the Plaintiff continued their dilatory
tactics and never enforced the Agreement to Sell in favour of the Plaintiff.

It must be pointed out that the Plaintiff willingly and diligently took necessary steps and even received provisional sanction of the Loan worth Rs.1,70,00,000/- (Rupees One Crore Seventy Lacs Only (hereinafter referred to as “Loan Amount”) for Suit Property-I However, the Defendants to defraud the Plaintiff continued their dilatory tactics and never enforced the Agreement to Sell in favour of the Plaintiff. A copy of the Loan sanction letter dated 27.03.2018 of the Allahabad Bank is enclosed herewith.
21
That the Plaintiff initiated steps to buy the Suit Property -I on the repeated pursuance of the Defendants. Further, it is evident that the Defendants had a fraudulent and deceptive intention to cheat the Plaintiff out of his hard-earned money and that the Defendants herein have hatched a well-planned conspiracy in a completely systematic manner carrying a deceptive intention from the very beginning.

That the Plaintiff initiated steps to buy the Suit Property-I on the repeated pursuance of the Defendants. Further, it is evident that the Defendants had a fraudulent and deceptive intention to cheat the Plaintiff out of his hard-earned money and that the Defendants herein have hatched a well-planned conspiracy in 11 completely systematic manner, carrying a deceptive intention from the very beginning. Which is well evident from the conduct of the defendants by hopelessly delaying the registration of the sale deeds for both the Suit Properties. Infact, the registration of sale deed for the Suit Property-II should have been done at the very instance when the Plaintiff had proposed the same to be executed numerous times. Although the registration of the sale deed of the Suit Property-I was also to be done immediately after the approval of the loan for the purchase of the same, but the intents of the defendants were malicious from the very beginning and therefore, their tactics to delay was rather a vicious plan to frustrate the transaction for which huge amounts were already paid by the Plaintiff to the Defendant No.1.
33
For the purpose of Court Fees and jurisdiction, the present suit is valued at Rs.2,00,05,000/–(Rupees Two Crores Five Thousand Only) since the ATS -I of the Suit Property-I is to be regarded as partial consideration for the Suit Property -H. Further, the Plaintiff seeks enlargement of time to pay the maximum court fees of Rs,1,97,592/- (Rupees One Lakh Ninety Seven Thousand and Five Hundred and Ninety Two Only)
For the purpose of Court Fees and jurisdiction, the present suit is valued at Rs.3,67,00,000/- (Rupees Two Crores Seventeen Lacs only) since the ATS-II of the Suit Property-II is to be regarded as partial consideration for the Suit Property II. The court fees of Rs.3,60,536/- (Rupees Three Lacs Sixty Thousand Five Hundred and Thirty Six Only) is already affixed alongwith Plaint.

18. As per the proposed amendment, the plaintiff in para 5 of the plaint is seeking to add that the plaintiff has paid cash amount totalling to Rs. 60 lakhs from 07.07.2014 till 22.04.2017 with respect to the suit property I. Amongst other things, the plaintiff also seeks to add that there is a receipt dated 22.04.2017 evidencing the amount of Rs. 60 lakhs. Further in paragraph 9 of the plaint, the plaintiff seeks to add that in addition to amount of Rs. 60 lakhs, another amount of Rs. 1.5 crores has also been set off towards the suit property II to the defendant No.1 by the plaintiff.
19. Mr. Singh, learned counsel for the defendant objects to the application and states that the proposed amendments, if allowed, will change the basic character of the suit. Further he states that agreements to sell are neither registered nor witnessed as per the Registration Act, 1908.
20. I have heard learned counsel for the parties.
21. The law with regard to the amendment of plaint has been enunciated in detail by the Hon’ble Supreme Court in Ganesh Prasad v. Rajeshwar Prasad & Ors., 2023 SCC OnLine SC 256, wherein paragraphs 33 to 38 read as under:
“33. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das reported in (2008) 8 SCC 511, the law has been laid down by this Court in the following terms: (SCC p. 517, para 16)
“16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar [(1990) 1 SCC 166].)”
34. In the case of P.A. Jayalakshmi v. H. Saradha reported in (2009) 14 SCC 525, the above observations were reiterated by this Court and in the light of the same, this Court in para 9 held as under:
“9. By reason of the Code of Civil Procedure (Amendment) Act, 1976, measures have been taken for early disposal of the suits. In furtherance of the aforementioned parliamentary object, further amendments were carried out in the years 1999 and 2002. With a view to put an end to the practice of filing applications for amendments of pleadings belatedly, a proviso was added to Order 6 Rule 17 which reads as under:
“17. Amendment of pleadings.—The court may at any stage of the proceedings allow either party to alter or amend his pleading 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.””
35. In B.K. Narayana Pillai v. Parameswaran Pillai reported in (2000) 1 SCC 712, this Court referred to the following passage from A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation reported in AIR 1967 SC 96 wherein, it was held as follows:—
“4. This Court in A.K. Gupta & Sons Ltd. v. Damodar Valley Corpn. [AIR 1967 SC 96: (1966) 1 SCR 796] held:
“The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal [[L.R.] 19 Q.B. 394: 56 LJ QB 621]. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amir Khan [AIR 1921 PC 50 : ILR 48 Cal 110] and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357 : 1957 SCR 438]
The principal reasons that have led to the rule last mentioned are, first, that the object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith [[L.R.] 26 Ch. 700 : 53 LJ Ch 891 : 51 LT 729]) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba Shilwant [ILR (1909) 33 Bom 644 : 11 Bom LR 1042] approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363 : 1957 SCR 595]).
The expression ‘cause of action’ in the present context does not mean ‘every fact which it is material to be proved to entitle the plaintiff to succeed’ as was said in Cooke v. Gill [[L.R.] 8 C.P. 107 : 42 LJCP 98 : 28 LT 32] in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corpn. Ltd. [[1962] 2 All ER 24 (CA)] and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words ‘new case’ have been understood to mean ‘new set of ideas’ : Dornan v. J.W. Ellis and Co. Ltd. [[1962] 1 All ER 303 (CA)] This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.”
Again in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] this Court held : (SCC p. 399, para 22)
“The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court.”
In Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91] it was held : (SCC p. 93, para 4)
“4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.”……”
36. In one of the recent pronouncements of this Court, in the case of Life Insurance Corporation of India v. Sanjeev Builders Private Limited, Civil Appeal No. 5909 of 2022 dated 01.09.2022, the position of law has been explained as under:
“70. ….. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)”
37. Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement. It is, however, subject to an exception that by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not but wrong. All amendments of the pleadings should be allowed liberally which are necessary for determination of the real controversies in the suit provided that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.
38. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings.”
22. In the original plaint as filed, the plaintiff has omitted the above noted basic averments with regards to payment of Rs. 60 lakhs and Rs. 1.5 crores which according to me is the foundation in a suit for specific performance.
23. The suit for specific performance has to state the most basic averments like the concluded contract i.e. Agreement to Sell, the amounts paid pursuant to the Agreement to Sell, the balance consideration and readiness and willingness. In the plaint that has been originally filed, there is no mention that the plaintiff has made payment of Rs. 60 lakhs to the defendant no. 1 or the set off of Rs. 1.5 crores with regard to the suit property II.
24. Para 12 of the original plaint reads as under:-
“12. That in addition to the continuous delay in the execution of ATS-1, Defendant No. 1 and Defendant No. 2 informed the Plaintiff that the right, title and interest in certain common portion of the Suit Property -1 could not be legally transferred to the Plaintiff and therefore Defendant No. 1 and Defendant No. 2 agreed to further reduce the Consideration amount of the Suit Property-1 to be paid by the Plaintiff. However, in light of the adjustments being made to the consideration payable for the Suit Property -1 the Plaintiff felt it necessary that a new Agreement to sell be executed for the Suit Property -1.”
25. In contradistinction to the above averments, in the proposed amendment in para 9, the plaintiff has sought to aver that on account of increase in the price of suit property II, the sale consideration of suit property I has come down. Further in proposed amendment to para 13, it is again pleaded that the sale consideration after adjustments for suit property I came down to Rs. 2.17 crores. As per the proposed amendments, the adjustment was towards the increase in sale price of suit property II which is totally opposite to the averments made in para 12 of the original plaint.
26. In addition, in the suit filed by the defendant no. 1 against the plaintiff, the learned trial court vide order dated 27.07.2023 has observed as under:-:
“53. Alleged advance receipt cum agreement to sell and purchase dated 22.04.2017 which was taken on record pursuant to application of defendant under Order VIII Rule 1 A(3) CPC shows that the same has not been executed between anyone (it does not bear signatures of any executing party). The said agreement to sell is stated to have been sent by defendant to son of plaintiff via e-mail regarding which as no response was purportedly given by son of plaintiff, it was argued on behalf of defendant that amount of Rs. 60,00,000/- has been received by plaintiff as earnest money towards sale consideration of suit property is to be presumed by this Court in these circumstances.
54. As mentioned above, advance receipt cum agreement to sell and purchase dated 22.04.2017 has not been executed between anyone as it does not bear signatures of anyone. Further, the said receipt cum agreement to sell and purchase dated 22.04.2017 does not contain description of any property in order to able to presume that the same pertains to suit property. Further, it contains recital to the effect that son of plaintiff i.e. second party/purchaser has paid advance money of Rs. 60,00,000/- to defendant herein which is diametrically opposite to stand of defendant.
55. In view of contents of advance receipt cum agreement to sell and purchase dated 22.04.2017 brought on record by defendant which has been discussed in last paragraph on basis of which, defendant has sought reduction of his arrears liability from Rs. 1,77,94,731/- to Rs. 1,10,94,731/- towards arrears of rent/usage charges qua suit property cannot be taken into account for the purpose of any liability reduction of defendant prima-facie. Counsels for defendant during course of arguments when pointed so on behalf of plaintiff submitted that the same is result of typographical mistake and that defendant shall prove the same during course of trial but as said earlier in view of contents of the said receipt cum agreement, at present, the same cannot be taken into account for liability reduction of defendant. Hence, the plea of defendant is outrightly rejected.”
27. A perusal of the above paragraphs shows that the plaintiff had sought adjustment of this very Rs. 60 lakhs based on the receipt and Agreement to Sell which was not accepted by the learned ADJ. The learned ADJ in fact has given a finding that the ATS I does not contain any description of the property and is between defendant No. 2 i.e. son of defendant No.1 and the plaintiff.
28. Once there is a finding of fact that the advance receipt cum ATS I has not been executed by anyone as it does not bear anyone’s signature, the same cannot be permitted to be pleaded by way of an amendment application. If the same is permitted, the same would be contrary to the observations made by the Hon’ble Supreme Court in Ganesh Prasad (supra) wherein it has been categorically stated that the amendment should not be permitted which causes injustice and are inconsistent and contradictory.
29. Hence, I am of the view that the proposed amendments as noted above with regard to Rs. 60 lakhs, Rs. 1.5 crores and adjustments in the sale consideration are inconsistent and contradictory to the original plaint. If the proposed amendments are allowed, then the defendants will be subject to injustice and will permit the plaintiff to alter/substitute a new cause of action.
30. The fact that the order passed by the learned ADJ has been challenged in CM (M) No. 1786 of 2023 is not of assistance to the plaintiff as there is no stay. Even though the amendment to proposed paragraph Nos. 2 and 4 are clarificatory but the material proposed amendments as noted above are according to me are inconsistent, contradictory, mutually destructive and if allowed would cause grave injustice to the defendants.
31. In view of the reasons noted above, the application stands dismissed.
I.A. 16499/2022
32. This is an application filed by the defendant No. 1 under Order VII Rule 11 of CPC seeking rejection of the plaint filed by the plaintiff in CS (OS) 397/2019.
33. Mr Singh, learned counsel appearing for defendant No.1 has substantially placed reliance on Section 16(c) of the Specific Relief Act, 1963 to state that the plaintiff has not averred or proved his readiness and willingness to make the payment.
34. In addition, Mr Singh further states that the Agreements to Sell is barred by efflux of time and the case of the plaintiff is based upon the unenforceable agreements as none of the agreements i.e. ATS-1, ATS-2 and ATS-3 were registered. Lastly, he states that the suit has been incorrectly valued for the purposes of court fees and jurisdiction and the suit is based on the malafide intention of the plaintiff.
35. In the present case, a perusal of the plaint shows that the plaintiff has averred three Agreements to Sell as noted above.
36. The law with regard to Order VII Rule 11 CPC is clear as while deciding an application under Order VII Rule 11 CPC, only the plaint and the contents of the plaint are to be seen.
37. Mr Singh’s reliance on the judgment of Mann Kaur (Dead) by Lrs. v. Hartar Singh Sangha, (2010) 10 SCC 512 and particularly paragraph 12 and 13 are concerned, are misconceived. Paragraph 12 and 13 reads as under:-
“Re: Contention (i)
12. Section 16(c) of the Specific Relief Act, 1963 (“the Act”, for short) bars the specific performance of a contract in favour of a plaintiff
“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, other than terms of the performance of which has been prevented or waived by the defendant”.
Explanation (ii) to Section 16 provides that for purposes of clause (c) of Section 16,
“the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.”
Thus, in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. (See N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115 : AIR 1996 SC 116] ; Pushparani S. Sundaram v. Pauline Manomani James [(2002) 9 SCC 582] and Manjunath Anandappa v. Tammanasa [(2003) 10 SCC 390] .)
13. In the first case, this Court held: (N.P. Thirugnanam case [(1995) 5 SCC 115 : AIR 1996 SC 116] , SCC p. 118, para 5)
“5. … The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.”
38. The above quoted paras suggest that in a suit for specific performance, the plaintiff is required to prove his readiness and willingness. The fact of averring that the plaintiff is ready and willing has been clearly established on perusing the plaint wherein it is stated that the plaintiff received provisional sanction of loan worth Rs. 1.7 crores from the Allahabad Bank for the suit property I. Further, the readiness and willingness to purchase the Suit property I has been stated in para 20 of the plaint which reads as under:-
“20. That since the beginning the Plaintiff had been ready and willing to purchase the Suit Property from the Defendants however, utter shock and disbelief of the Plaintiff, Defendant No. 1 and Defendant No. 2 flatly refused to execute a sale deed for the Suit Property – I and instead unilaterally decided to renege from performing its obligations under the ATS – I, ATS – II, ATS -III and executing a sale deed in favour of the Plaintiff”
39. Also with regard to proving his readiness and willingness, the stage has yet not arrived as the issues are yet to be framed in CS (OS) 397/2019 and the parties are yet to enter into witness box. The objection with regard to the Agreements being barred by efflux of time and unenforceable agreements will only arise once the issues are framed.
40. Further with regards the valuation of the suit is concerned, as per the plaintiff’s own showing the value of the property is Rs. 3.60 crores. In suit for specific performance, Section 7 (x)(a) of the Court Fees Act, 1870 mandates that the suit is to be valued at the amount of consideration. Since the amount of consideration is Rs. 3.60 crores, the plaintiff is therefore required to pay court fees on Rs. 3.60 crores and shall do the needful within a period of four weeks from today.
41. In the ATS II, the plaintiff is the seller of the suit property and is only seeking specific performance for the purposes of setting off the sale consideration amount of the Suit Property I.
42. As regards the ATS III is concerned, there is no figure or description of the property and hence, for the time being the plaintiff is only required to pay Court Fees on Rs. 3.60 crores i.e. the value of the property mentioned in the ATS I. As and when the Court adjudicates on the other two Agreements to Sell, if there is any deficiency of Court Fees, the same shall be directed to be made at that point in time.
43. With these directions, the application is disposed of.
CS(OS) 397/2019 & CS(OS) 638/2023
44. Both parties contend that the issues framed in the suit filed by the defendant No. 1 would also be read as issues in the suit filed by the plaintiff. It is ordered accordingly.
45. With consent of parties, additional issue is also framed which reads as under:-
(i) Whether the Agreement to Sell dated 25.05.2017 and 30.12.2017 are enforceable Agreements to Sell and if so whether the defendants (i.e. Ms Madhuri Kumar, Manu Kumar and Vipul Arora) have not been ready and willing to perform their obligation in terms of Agreement to Sell dated 25.07.2017 and 30.12.2017? OPP.
46. Since the issues are overlapping, the CS(OS) 638/2023 shall be the leading case and the evidence recorded in CS(OS) 638/2023 shall also be read as evidence in CS(OS) 397/2019.
47. As the amendment application under Order VI Rule 17 CPC has been dismissed, in that view, learned counsel for the defendants is not opposed to the consolidation. Hence, both the suits are consolidated.
48. As CS(OS) 397/2019 and CS(OS) 638/2023 have been consolidated today, defendant No. 1 i.e. Ms Madhuri Kumar is granted another period of two weeks to file any other additional evidence by way of affidavit.
49. Since there are orders directing conclusion of trial within six months, with consent of parties, Mr. Pradeep Gahalot (Adv.) (Mobile No: 9810004838) is appointed as Local Commissioner to record evidence between the parties. The Local Commissioner shall be paid a fees of Rs. 10,000/- per effective date of evidence and Rs. 2,500/- for non-effective hearing which shall be paid equally by parties plus Rs. 1,000/- as Clerkage. The Local Commissioner shall be entitled to book the Consultation Room at Delhi High Court Bar Association Consultation Room for which the cost will be shared equally.
50. The Local Commissioner is requested to conclude the entire evidence within a period of five months from today.
51. List on 09.07.2024 for final arguments.

JASMEET SINGH, J
JANUARY 22, 2024/sr
(corrected and released on 01st February, 2024)
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CS(OS) 397/2019 & connected. Page 1 of 29