DINESH GUPTA Vs. MADHU SUDAN GUPTA

JUDGEMENT

(1.) By this order I propose to dispose of application for amendment of plaint under Order 6 Rule 17, CPC dated 11.2.2003 filed by the plaintiff. Defendants have opposed this application. I have heard learned Counsel for the parties and perused the record.

(2.) Plaintiff has filed a suit for specific performance of agreement dated 14.6.97 whereby defendant No. 1 agreed to sell First Floor of property No. D-43, N.D.S.E., Part-1, New Delhi to the plaintiff for a total sale consideration of Rs. 36 lakhs. Accoiding to the averments contained in para 2 of the plaint, defendant No. 1 had already received a sum of Rs. 32. lakhs which includes a sum of Rs. 2 lakhs paid by cheque No. 777810 dated 14.6.97 and the defendant No. 1 also acknowledged the receipt of Rs. 32 lakhs. The balance amount was to be paid at the time of registration of the sale deed. Defendant No. 1, however, did not take any step in this direction despite service of legal notice and hence the suit.

(3.) By the proposed amendment plaintiff want to clarify how the payment of Rs. 32 lakhs was make to the defendant No. 1. In para 2 of the plaint the plaintiff wants to take up the plea that he advanced Rs. 17.5 lakhs to defendant No. 1 and his wife Smt. Prakash Gupta. Defendant No. 1 executed a promissory note in favour of the plaintiff and they also acknowledged the payment of Rs. 17.5 lakhs with interest @ 24% per annum. However, defendant No. 1 has failed to make payment in time but under a subsequent settlement, defendant No. 1 agreed to pay Rs. 30 lakhs to the plaintiff. Thus at the time of making payment of Rs. 2 lakhs on 14.6.97 vide cheque No. 777810, defendant No. 1 acknowledged receipt of Rs. 30 lakhs from the plaintiff. Actually this amount of Rs. 30 lakhs was the amount of the loan along with interest which was due against the defendant and which was adjusted towards the sale consideration of this property. This application was opposed by the defendant mainly on the ground that the proposed amendments are contrary to the pleadings of the plaint. It was contended by the defendant that as per averments contained in the plaint the entire amount of Rs. 30 lakhs was paid on 14.6.97 but now by the proposed amendments plaintiff wants to change his version by introducing the plea that amount of Rs. 30 lakhs had become due against defendant No. 1 on account of earlier loan plus interest accrued thereon. My attention was also drawn to the statement of the plaintiff recorded in the Court on 5.4.2002 wherein plaintiff had stated that he paid Rs. 30 lakhs in cash and Rs. 2 lakhs by cheque to the defendant No. 1 at the time of entering into agreement to sell dated 14.6.97. In the very next sentence in the statement dated 5.4.2002 plaintiff has further stated that the amount of Rs. 30 lakhs was not paid at the time of agreement but was paid from the year 1993 onwards from time-to-time. Thus strictly speaking the said statement or averments in the plaint though somewhat confusing cannot be said read to mean that payment of Rs. 30 lakhs was made in cash on 14.6.97 only. It also appears that during the pendency of the suit specimen signatures of the defendant were taken and those specimen signatures along with original agreement to sell dated 14.6.97 were sent to the CFSL for comparison and the report has been received to the effect that said agreement is not signed by defendant No. 1. Learned Counsel for the plaintiff, however, submits that handwriting expert's report is only an opinion and cannot be said to be conclusive of the matter. It is open to the plaintiff to prove the genuineness of the documents by producing convincing evidence in this regard at the time of the trial. Right now Court is concerned with the amendment only. Trial in the suit is yet to begin. Even issues have not been framed so far.