Thursday, July 3, 2025
Latest:
delhihighcourt

M/S D PAULS TRAVEL & TOURS LIMITED vs JAMAL SIDDIQUI & ANR

Information

$~9

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:20th February, 2024
+ CS(COMM) 575/2019, I.A 14330/2019, I.A 17179/2023

M/S D PAULS TRAVEL & TOURS LIMITED
….. Plaintiff
Through: Mr. Rishi Sood and Mr. Jaypreet Singh, Advocates.

versus

JAMAL SIDDIQUI & ANR
….. Defendants
Through: Mr. Anand Shankar, Advocate.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A 4038/2024(under Section 151 CPC on behalf of the defendants for Condonation of Delay of 29 Days in filing Reply to I.A 25805/2023)
1. An application has been filed on behalf of the defendant for Condonation of Delay of 29 days’ in filing the reply to I.A.25805/2023.
2. It is submitted that the application has already been allowed by the learned Joint Registrar.
3. The application is accordingly disposed of .
I.A. 25805/2023 (under Order VI Rule 17 CPC on behalf of the plaintiff seeking Amendment in the Plaint)
4. An application has been filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) on behalf of the plaintiff to amend the plaint.
5. It is submitted in the application that the plaintiff has sought to amend the Title of the plaint to delete “Specific Performance” and to substitute it with the suit for “Recovery of Possession, Arrears of Rent, Mesne Profits and Damages”. The plaintiff has consequently sought amendment in paragraph 1(a) to delete the claim for Specific Performance.
6. The plaintiff intends to add paragraph 14(a) to incorporate events that have occurred subsequent to filing of the plaint. The plaintiff wants to include that it, in terms of Clause 9 of Agreement to Sell, has issued a Termination Notice dated 07.11.2023 thereby terminating the Agreement to Sell dated 07.04.2017 and has forfeited the entire amount advanced by the defendant. He has also sought the vacant and physical possession of the suit property. A reply dated 24.11.2023 has been received from the defendant to his Notice of Termination.
7. Paragraph 14(b) is sought to be inserted to state that it was explicitly mentioned in Clause 9 of Agreement to Sell, that in case of failure of the seller to execute the necessary documents in favour of the purchaser, the Seller shall undertake to pay double the advance money to the Purchaser and if the Purchaser failed to make payment in stipulated time period, then the advance money shall be forfeited and the Purchaser shall have to vacate the suit premises.
8. Paragraph 14(c) is sought to be inserted to state to state that before the termination of the Agreement to Sell vide Legal Notice dated 27.12.2018 and 27.06.2019, the plaintiff had called upon the defendants to pay the balance payment and execute the Sale Deed. However, the defendants have failed to perform their part of the Agreement and have not shown any willingness to perform the Agreement to Sell.
9. Similarly, paragraph 18(a) is sought to be inserted to incorporate payment of Court Fee for the relief of Possession as sought to be inserted by way of amendment.
10. Paragraph 19(a) is sought to be incorporated to add the “Cause of action” which arose on account of Termination Notice dated 17.11.2023 and reply dated 24.11.2023.
11. In the prayer paragraph, prayer (A) in respect of relief of Specific Performance is sought to be deleted and prayer (C) is sought to be made the main prayer. It is submitted that the amendments have become essential on account of the subsequent events and has sought permission to amend the plaint.
12. The application is contested by the defendants, who in their Reply have asserted that the Original Plaint itself was premature as the same was filed on 14.10.2019 despite the fact that the Agreement to Sell provided the time frame for paying the balance consideration till 06.04.2020. A preliminary objection had already been taken by the defendant of the suit being premature.
13. It is asserted that the proposed amendments are malafide as they intend to change the basic nature and structure of the original plaint by converting it from the suit for Specific Performance to suit for Recovery of Possession.
14. Further, the proposed amendments are not necessary for determination of real question in issue. The defendants had initially paid a sum of Rs.4,66,80,000/- against the total Sale consideration of Rs.7,75,00,000/- in terms of Agreement to Sell dated 07.04.2017. However, due to the subsequent oral understanding, a sum of Rs.2,47,00,000/- was adjusted towards an earlier Loan advanced to the “Al Mehmood Society” in the year 2011-12. Further, a sum of Rs.66,00,000/- was returned to defendant No.1 and a sum of Rs.49,98,000/- was returned to Mr. A.A. Siddiqui, father of the defendant. Therefore, according to the defendants the total advance payments got reduced to Rs.2,03,82,000/-. The defendants were also liable to pay interest on Home Loan which the plaintiff had taken on the suit property.
15. The defendants have thus, submitted that the real controversy in the original plaint was firstly, whether reduction of advance payments by plaintiff based on alleged oral understanding is permissible in law; secondly, whether the plaintiff has rightly demanded a sum of Rs.9,62,46,639/- as the balance consideration from the defendant; and thirdly, whether there are defects in the suit property.
16. It is further submitted that the right to terminate the ATS and to forfeit the advance amount on failure of performance of obligation by defendants within the specified time, was expressly provided in the ATS. Therefore, even if it is assumed for the sake of arguments that defendants have failed to perform their part of obligation, then the right to terminate the ATS was subsisting at the time of filing of the original suit which the plaintiff has failed to exercise initially. The proposed amendments take away the valuable defence of the defendants as there was no failure on their part.
17. The defendants have asserted that they are in possession of the suit property since it was handed over in part performance of the obligation under ATS and, therefore, the possession of the defendant is protected. If the proposed amendments are allowed, then the valuable right of possession of the defendants would be affected.
18. The defendants have thus contended that since the proposed amendments would change the nature of relief, they cannot be permitted by way of the present amendment application.
19. Submissions heard.
20. The plaintiff has filed a suit for Specific Performance, Recovery of Mesne Profits and Permanent Injunction on the basis of an Agreement to Sell dated 07.04.2017. In terms of Agreement to Sell, the defendants had agreed to purchase the suit property for the sale consideration of Rs. 7,75,00,000/- excluding the incidental expenses and the interest on the Home Loan, which was to be paid by the defendants separately. The Agreement to Sell was not implemented as according to the plaintiff, defendants had raised several baseless issues. Consequently, the suit for Specific Performance of ATS on payment of balance consideration amount along with interest, was claimed. In the alternative, the Recovery of Possession was sought, in addition, Mesne profit and Damages were also claimed from the defendants aside from Permanent Injunction.
21. The present amendments have been necessitated on account of the Notice of Termination dated 07.11.2023 in terms of Clause 9 of Agreement of Sell which has been subsequently served during the pendency of the Suit. Consequent to the Notice of Termination, the plaintiff seeks to withdraw his relief for Specific Performance, but to continue with all other reliefs making the alternative plea of Recovery of Possession to be the main relief.
22. The defendants have taken essentially the objection that the nature of the suit would be changed but as noted above, the relief of possession, Mesne profits and Damages had been claimed in the original plaint itself. The proposed amendments are on account of the subsequent event of service of Notice of Termination. Whatever be the defence, objections and challenges that the defendants may have, they can be raised by them in their Written Statement.
23. The application is, therefore, allowed and disposed of accordingly.
CS(COMM) 575/2019
24. The amended plaint filed along with the application is taken on record.
25. The defendants are at liberty to file the Written Statement to the amended plaint, within 30 days.
26. List before learned Joint Registrar for completion of pleadings on 15.03.2024.

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 20, 2024/va

CS(COMM) 575/2019 Page 6 of 6