VIVEK AHUJA Vs. SHYAM SUNDER

JUDGEMENT

(1.) BY this suit the plaintiff sought relief of specific performance of the agreement dated 7th June 2004 in respect of the property bearing number 61, Block V-I, Rajouri Garden, New Delhi. It is stated by the plaintiff that the total consideration agreed between the parties was Rs. 66 lac. The plaintiff, at the time of execution of the agreement dated 7th June, 2004 had paid a sum of Rs. 10 lac, Rs. 5 lac in cash and Rs. 5 lac through cheque. The time of execution of the sale deed was extended by mutual consent of parties up to 25th November 2004 It is alleged that defendant did not turn up at the Sub Registrar's office for registration of the sale deed on 25/11/2004 In terms of the agreement, in case the defendant backed out, the defendant was to pay double the amount of earnest money and in case the plaintiff backed out, the earnest money was to be forfeited. The plaintiff sent a legal notice to the defendant on 2nd December 2004 asking for payment of Rs. 20 lac i. e. double the earnest money along with 12% interest. Since the amount was not paid, the plaintiff filed a suit for recovery of Rs. 20 lac alleging a breach of agreement to sell on part of defendant, before the learned District Judge being Suit No. 45 of 2005. The plaintiff did not claim the relief of specific performance of the agreement to sell in that suit.

(2.) THE defendant in the written statement took a stand that initially 9th September 2004 was the date fixed for execution of the sale deed before the Sub Registar's office but the plaintiff was not able to arrange the balance money and he approached the defendant for extension of time. The defendant accommodated the plaintiff and extended the time up to 25th September 2004 i. e. up to 25th October 2004, still the plaintiff could not arrange money and again defendant agreed to extend the time lastly up to 25th November 2004 but the plaintiff could not make arrangement for paying the balance payment and avoided the deal.

(3.) DURING the pendency of the suit filed before the learned District Judge, the plaintiff made an application on 26th May 2006 under Order 6 Rule 17 CPC seeking leave to amend the suit so as to include the relief of specific performance of the agreement. The plaintiff also sought amendment of the plaint so as to take the plea that the plaintiff has always been ready and willing to perform his part of the contract. This application was contested by the defendant and vide order dated 5th August 2006, the application was dismissed by the learned District Judge holding that relief of specific performance was available to the plaintiff when he filed the suit, but he omitted to include that relief. Even after filing of the suit, he did not move an application till trial started which shows that he was not diligent enough and he moved the application only when the case was fixed for plaintiff's evidence. Against this order, the plaintiff preferred a Civil Misc. Petition being No. 1929 of 2006, before this Court. The plaintiff thereafter filed an application under Order 23 Rule 1 CPC before the learned District Court on 1st August 2007 seeking leave of the Court to withdraw the suit with permission to file a fresh suit. This application was dismissed by the learned trial court vide a detailed order dated 12th July 2007 with cost of Rs. 1000/ -. The plaintiff preferred a Civil Misc. Petition before this Court being number 1047 of 2007 against this order which is stated to be pending. It is further submitted by the plaintiff that he withdrew Civil Misc 1929 of 2006, the one by which he challenged the order dated 5th August 2007 passed by learned trial court declining the leave to amend the suit. Thus, the order, declining the leave to amend the suit has become final.