Allowed

Raj Kumar Tyagi v. M/S Nayas Projects Pvt. Ltd. and Ors.

Punjab & Haryana HC25 Nov 2014CR/5713/2014

Case brief

AI extract

What is this about?

This revision petition challenged the trial court's dismissal of an application to amend a plaint under Order 6 Rule 17 CPC. The High Court held that the trial had not commenced as no evidence was led, setting aside the impugned order and allowing the amendment to clarify allegations of fraud. Relief

What did the court decide?

The impugned order dismissing the application for amendment of plaint was set aside, and the application was allowed to include particulars of alleged fraud.

Raj Kumar Tyagi Vs M/S Nayas… — Contract and Commercial Disputes | Punjab & Haryana HC (2014)

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

CR No.5713 of 2014

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.5713 of 2014 Date of decision:23.12.2014

Raj Kumar Tyagi

...Petitioner

Versus

M/s Nayas Projects Pvt. Ltd. and others ...Respondents

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CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain

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Present: Ms. Sanjay Mittal, Advocate, for the petitioner.

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Mr. Ashok Aggarwal, Senior Advocate, with Mr. Mukul Aggarwal, Advocate, for respondent no.1. *****

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Rakesh Kumar Jain, J.

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The petitioner has challenged the order dated 28.07.2014, dismissing his application filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”) for amendment of the plaint.

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The brief facts of the case are that the petitioner filed the present Civil Suit No.44/2013 on 18.02.2013 for permanent injunction to restrain defendant no.1 from interfering in his peaceful possession over the land in question measuring 33 kanal 9 marlas, situated in the revenue estate of village Maidawas, Tehsil and District Gurgaon, allegedly owned and possessed by the petitioner-plaintiff and defendants no.2 to 4. Defendant

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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no.1 filed the written statement dated 22.03.2013. The application for temporary injunction filed by the petitioner was dismissed by the trial Court and issues were framed on 27.09.2013 with the following order:-

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“Present: Shri Y.K.Mangla, Advocate for plaintiff. Shri J.K.Dang, Advocate for defendant. ****

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Vide separate order of even date, interim

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stay application has been dismissed. Replication is already on the record. Heard, out of the pleadings of the parties following issues are, hereby, framed:-

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Whether plaintiff is entitled to a decree of permanent injunction against defendant no.1 on the grounds taken in the plaint? OPP

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Whether the suit is not maintainable in the present form? OPD

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Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD

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Whether the plaintiff has concealed the material facts from the court, if so its effect? OPD

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No other issue is pressed or claimed. Onus is not disputed. The case is adjourned to 08.01.2014 for evidence of the plaintiff. List of witnesses, if any, PF/DM etc. be filed within a week, failing which the parties shall loose their right of calling

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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the witnesses through process of the court.

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(Rajesh Sharma II) ACJ (SD) Gurgaon 27.09.2013”

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The petitioner filed an application on 18.12.2013 for recalling

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of the order dated 27.09.2013 on the ground that the service upon defendants no.2 to 4 was not effected. Accordingly, on 18.12.2013, the following order was passed by the trial Court:-

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“Present: Sh. Y.K.Mangla, Advocate for applicant/plaintiff. ***

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File taken up on an application for recalling of zimni order dated 27.09.2013. Heard. The application in hand shall be taken up for consideration on the date fixed i.e. 08.01.2014.

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(Rajesh Kumar) ACJ (SD), Gurgaon Dated 18.12.2013”

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Ultimately, on 08.01.2014, the following order was passed:-

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“Present: Sh. Y.K.Mangla, Advocate for plaintiff. Sh. J.K.Dang, Advocate for defendant No.1. ****

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Heard. In view of application moved by the applicant/plaintiff, let notice to the proforma defendants No.2 to 4 be issued for 11.03.2014.

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It has been pointed out by learned counsel for the plaintiff that he had also moved an application directing defendant No.1 to produce collaboration

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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agreement etc. Copy of the application has been supplied to learned counsel for the defendant No.1 who shall file its reply on the date fixed.

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(Rajesh Sharma II) ACJ (SD) Gurgaon 08.01.2014”

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On the adjourned date, i.e. 11.03.2014, the following order was

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passed:-

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“Present: Sh. Y.K.Mangla, Advocate for plaintiff. Sh. J.K. Dang, Advocate for defendant No.1.

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Reply to application for production of collaboration agreement filed. Copy supplied. Adjourned to 12.05.2014 for consideration on the said application. Notice to proforma defendant No.2 to 4 be also issued for the date fixed.

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(Rajesh Sharma) ACJ (SD) Gurgaon 11.03.2014.”

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Meanwhile, the petitioner had also filed an application under

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Order 6 Rule 17. The file was taken up on 07.05.2014 and notice in the application was issued to the defendants for 12.05.2014. The said order dated 07.05.2014 is as under:-

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“Present: Sh. YK Mangla, counsel for the applicant/plaintiff.

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Case file taken up today as the plaintiff has filed an application for amendment of plaint under Order 6 Rule 17 CPC. Let notice of the said application be issued to

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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the respondent/defendant for 12.05.2014, the date already

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fixed.

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(Rajesh Sharma) ACJ (SD) Gurgaon 07.05.2014.”

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The defendants filed the power of attorney on 12.05.2014 and the case was adjourned to 26.05.2014. The trial Court recorded the following order on 12.05.2014:-

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“Present: Sh. YK Mangla, counsel for the applicant/plaintiff.

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Sh. Vipin Tyagi, Counsel for the respondent/defendants.

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Power of attorney on behalf of

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respondent/defendants filed. Adjourned to 26.05.2014 for further proceedings i.e. Reply to application u/o 6 R 17 CPC filed by plaintiff.

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(Rajesh Sharma) ACJ (SD) Gurgaon 12.05.2014.”

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On 26.05.2014, the following order was passed:-

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“Present: Sh. Y.K.Mangla, counsel for the applicant/plaintiff. Sh. J.K.Dang, counsel for the contesting defendant No.1. Sh. Vipin Tyagi, counsel for performa defendant Nos. 2 to 4.

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Reply to the application for amendment of

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plaint has been filed. Copy supplied to the opposite counsel. Learned counsel for the defendant nos. 2 to 4

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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has given no objection in this regard. Statement recorded separately. Heard. On the joint request, case is adjourned to 28.07.2014 for consideration on application dated 07.05.2014 filed by the applicant/plaintiff for amendment of plaint.

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(Rajesh Sharma) ACJ (SD Gurgaon) 26.05.2014”

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Finally, on 28.07.2014, the application filed under Order 6 Rule 17 of the CPC was dismissed by a separate detailed order. The zimni order recorded on 28.07.2014 is reproduced as under:-

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“Present: Sh. Y.K.Mangla, counsel for the applicant/plaintiff. Sh. J.K. Dang, counsel for the contesting defendant No.1. Sh. Vipin Tyagi, counsel for performa defendant nos. 2 to 4. ****

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Vide my separate detailed order of even

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date, the application under order VI Rule 17 CPC filed by the plaintiff is hereby dismissed. Now the case is adjourned to 12.08.2014 for plaintiff evidence.

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Civil Judge (Jr. Divn.) Gurgaon/28.07.2014”

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In the order under challenge, the learned trial Court has observed that the amendment cannot be allowed at this stage as the trial has commenced and the amendment sought to be made in the plaint was already within the knowledge of the petitioner.

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It may be pertinent to mention that the order declining the

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh [ 7 ]

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interim injunction in the Suit No.44/2013 was further challenged by way of appeal by the petitioner but the said appeal was also dismissed on 21.11.2013 and in the CR No.2442 of 2014 filed by the petitioner, the following order was passed:-

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“Counsel for the petitioner contends that the petitioner would be satisfied if some direction is given to the lower court for expeditious decision of the suit and he be given liberty to move the lower court during the course of trial if any necessity arises for a fresh application under Order 39 Rules 1 and 2 CPC which would be decided de hors the findings returned in the impugned orders.

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As prayed, dismissed as withdrawn with liberty aforesaid. The trial Court is, however, directed to decide the suit expeditiously and preferably within one year.”

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It is also pertinent to mention that defendant no.1 has also filed a Civil Suit No.349/2012 on 16.11.2012 for specific performance of the agreement to sell in which the petitioner and the proforma respondents are arrayed as the defendants. In the said suit, the petitioner had filed his written statement on 22.03.2013, defendants no.2 to 4 (proforma defendants herein) also filed the written statement on 11.04.2014 and the trial Court has directed defendant no.1 (petitioner herein) to maintain status quo regarding alienation of the suit property.

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Counsel for the petitioner has argued that in para no.3 of the

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plaint of the present suit, it has been categorically averred that at the time of agreement dated 04.04.2009, Special Power of Attorney dated 04.04.2009 and agreement of sale dated 01.08.2010 were unregistered documents and carried no value in the eyes of law. In the application for seeking amendment, it is averred that due to some misunderstanding and communication gap between the plaintiff and his earlier counsel, the details of fraud could not be mentioned qua the aforesaid documents which are forged and fabricated ones. It is argued that in Civil Suit No.349 of 2013, filed by defendant no.1 for specific performance, a preliminary objection has been taken that the aforesaid documents are forged and fabricated and now the petitioner only wanted to give the particulars of fraud, having been played by defendant no.1, by way of amendment in the plaint by inserting paragraph 3A, 3B, 3C, 3D and 3E, which read as under:-

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“3-A. That the plaintiff and defendants No.2 to 4 are noneducated simpleton agriculturist and they are unfamiliar to English and as such they always put their signatures in Hindi only. They were never interested in making sale of their land holding of 33 Kanal 9 marla as their only source of income being derived from this agricultural land. It is submitted that few days prior to dated 04.04.2010 (and not on or about 04.04.2009), the officials of EMAAR MGF land ltd., headed by Sh. Anil Mishra appeared in the fields of the plaintiff and his said brothers and persuaded them for their betterment to enter

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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into “Collaboration Development Agreement for plots” in the manner did by their neighbors i.e. Om Parkash etc. in order to save their holdings from acquisition and earn non-refundable security amount apart from over 1000 sq. yards developed plots against per acre. To fortify this example, Mr. Anil Misra also handing over Photostat copies of said collaboration of said Om Parkash wherein the aforesaid company had agreed to provide developed plots of size of 1200 sq. yards in each acre of land in addition to payment of certain non-refundable security amount as compatible with market sale price of the land. It is further submitted that although the prevailing market sale price of the land in the vicinity of suit land was over Rs. 20 crores per acre as manifest from past rate of 14 crores per acre existing on 21.07.2006 for mauza Maidawas Viz. Vasika No.8951 executed by Shrawan Kumar etc. r/o Village Badshahpur in favour of M/s Sang Promoters Pvt. Ltd.

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3-B. That on 04.04.2010 the abovesaid Anil Mishra alongwith the said officials reappeared at the fields of the plaintiff for ascertainment of the intentions as to their readiness and willingness to enter into the deal of collaboration development agreement on the lines of said Om Parkash etc. Here the plaintiffs and defendants No.2

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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to 4 although demanded 1300 sq. yards of developed plots against each acre of land in addition to payment of amount of Rs.20 crores towards said non-refundable security but after negotiations, the plaintiff and defendants No.2 to 4 agreed orally with said Anil Misra to enter into collaboration development agreement with said developer-company would provide developed plots of size of 1100 sq. yards out of each acre i.e. 4600 sq. yards for their entire holding of 33 kanals and 9 marla apart from payment of non-refundable security amount of Rs. 20 crores. In pursuance to this oral deal, said Anil Misra handed over cash amount of Rs.4 lacs (i.e. Rs. One Lac for each of the plaintiff and defendants No. 2 to 4) as token money towards said agreed amount of nonrefundable security and took back the abovesaid Photostat copies of Collaboration development Agreement of said Om Parkash (supra) in the guise of getting drafted such collaboration development agreement inter se said company, plaintiff and defendants No.2 to 4 on the lines of aforesaid collaboration development agreement of said Om Parkash etc. i.e. LRs. of Hari Parkash Tyagi- Lamberdar of native village of the plaintiff apart from it to make payment of agreed balance non-refundable security amount.

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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3-C That on 08.04.2009 abovesaid Anil Misra again represented before the plaintiff in his fields and handed over 4 number of cheques of Rs.67,94,550/- each payable to each of the plaintiff and defendants No.2 to 4 but with promise to pay the balance amount nonrefundable security after 3-4 months as during the said period would be required not only for getting the suit land released from acquisition from Haryana Government but also for obtaining colonization license from Director, Town and Country Planning, Haryana which was told to be a very short period for the said job as said DeveloperEMAAR MGF has already got colonizer license of 26 acres of land of mauza Maidawas from said Director, Town and Country Planning of Haryana. Upon payment of such part payments and their said solemn promise and representations, the officials of said developer headed by Anil Misra, succeeded in obtaining the signatures and thumb impressions of the plaintiff and defendants No.2 to 4 on various blank stamp and unstamped papers despite initial protests was duly shown to them by the plaintiff and defendants No.2 to 4 thereto but keeping in view also; the good reputation of said EMAAR MGF, the said blank papers were signed and said oral representation was acceded to by the plaintiff the

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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defendants No.2 to 4. Thus there existed no privity of contract between the present defendant No.1 Nayas Projects on one hand and the plaintiff and defendants No. 2 to 4 on the other hands.

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3-D. That as promised, said Anil Misra re-approached in the field on 30.07.2010 and handed over another four cheques of Rs.2,05,33,575/- each in the name of plaintiff and defendants No. 2 to 4. However, handing over of the Photostat copies of the documents prepared after utilizing those blank stamp and unstamped papers having signatures and thumb impressions were avoided on the pretext that the same would be supplied soon i.e. within few days. However, no such copies were ever supplied rather all of the sudden in the Ist week of December 2012, the officials of the present defendant No.1 tried to forcible dispossess the plaintiff and defendant No. 2 to 4 from the suit land by falsely asserting that they had already sold away their holding to the company and there existed no collaboration development agreement, which was duly protested by the plaintiff and defendants No. 2 to 4. Subsequently, the defendant No.1 company filed its suit for specific performance, whereupon the plaintiff engaged his abovesaid previous counsel at Chandigarh for their redressal against the said new developer

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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company.

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3-E. That for the reasons stated above in para Nos.3-A to 3-D the aforesaid documents Annexure IV to VI are result thereto and thus are forged and fabricated besides there existed no such privity to contract between the present defendant No.1and the plaintiff and defendants No. 2 to 4. Even otherwise also, it is quite illogical and untenable that the landowner at first would execute antedated development agreement in question almost one year before taking the cheques dated 08.04.2010 and thereafter on 30.07.2010 while accepting second time cheques would abandon their claim of having developed plots of 1100 sq. yards against each acre of land for paltry additional amount of Rs.6 lacks for total plotted area of 4600 sq. yards particularly when their sole source of income is from agricultural land, despite the fact that the prevailing market sale price was more than Rs.20 crores per acre for undeveloped agricultural land. Therefore, the alleged agreement to sell is quite fraudulent, unconscionable vague and void and the same is hit by provisions of law as contained in provisions of illustration (F) to S.29, Proviso to S.23 read with S. 16 (3) of Indian Contract Act and also as laid in the provisions of S. 16 (B) of specific Relief Act. Even

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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otherwise also, such type of alleged part performed agreement, wherein the delivery of possession of the property duly recited, is inadmissible in evidence u/S 35 of Stamp Act.”

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It is further submitted that the finding recorded by the learned trial Court while dismissing the application for amendment that the petitioner should have given these particulars when the original plaint was filed because these particulars were within his knowledge and cannot now be added in the plaint by way of amendment after the commencement of the trial, is totally wrong because no evidence has been led so far and notice has been issued by the Court to the other defendants no.2 to 4. It is further submitted that the nature of the suit is not going to be changed as the amendment in the plaint is only elucidatory in nature. In support of his submissions, he has relied upon three judgments of this Court in the cases of Jagsir Singh v. Harnek Singh, 1995(2) PLR 43, Balbir Singh v. Rakesh Kumar, 2013(2) PLR 177 and Neetu Goel v. Yogesh Goel, 2013(1) R.C.R. (Civil) 667.

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It is also pertinent to mention that the order in this case was reserved by this Court on 25.11.2014 and the learned counsel for the petitioner, provided to the Court, a zimni order passed by the trial Court on 26.11.2014 as per which defendants no.2 to 4 have been permitted to file the written statement. The said order dated 26.11.2014 is also reproduced as under:-

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Present: Sh. D.N. Mangla, counsel for the plaintiff.

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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Sh. J.K. Dang, counsel for the defendant No.1. Sh. J.P. Bhardwaj, counsel for proforma defendant nos.2 to 4.

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Fresh power of attorney on behalf of the proforma defendant nos.2 to 4 filed. Arguments heard on an application dated 12.8.2014 filed by applicant/plaintiff. Order sheet perused. Keeping in view the facts and circumstances mentioned in the application same stands allowed with the observation that let written statement of proforma defendant nos.2 to 4 be filed first before posting the case for evidence of the plaintiff. Accordingly, case is now adjourned to 28.11.2014 for filing of written statement on behalf of the proforma defendant nos.2 to 4.

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Sd/-

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(Rajesh Sharma) ACJ/(SD)/Gurgaon 26.11.2014.”

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On the other hand, learned counsel for the respondents has vehemently argued that there is no error in the order of the Court below because the suit filed by defendant no.1 on 16.11.2012 is prior in time and before the written statement could have been filed in the said suit, the suit for permanent injunction was filed on 18.02.2013 by the present petitioner and being very well aware of his case, he should have taken the plea which is now sought to be taken by way of amendment, at the time of filing of the

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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suit. It is further submitted that there is a complete misreading of the order passed by the trial Court on the part of the petitioner because on 27.09.2013, the case was adjourned for the evidence of the petitioner for 08.01.2014 and in the order dated 08.01.2014, the said order dated 27.09.2014 was not set aside rather the notice to proforma defendants no.2 to 4 was ordered to be issued, meaning thereby the case was listed for evidence of the petitioner and as such, the trial had started for all intents and purposes and in view of the proviso to Order 6 Rule 17 of the CPC, until and unless reasons are recorded by the trial Court, the amendment application could not have been allowed.

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I have heard learned counsel for the parties and examined the record with their able assistance.

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Order 6 Rule 17 of the CPC provides that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings 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.

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In the present case, the learned Court below has dismissed the application for amendment only on the ground that since the issues were framed on 27.09.2013, therefore, the amendment could not have been allowed because the trial has commenced but actually the trial has not

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VINOD KUMAR 2015.01.06 11:55 I attest to the accuracy and authenticity of this document Chandigarh

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commenced as no evidence has been led by any of the parties so far and as per order dated 26.11.2014, the case was adjourned to 28.11.2014 for the purpose of filing of written statement on behalf of defendants no.2 to 4.

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Thus, in this view of the matter, the order passed by the learned

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Court below is not sustainable and the petitioner is entitled to amend the plaint as he only wanted to give particulars of the fraud alleged to have been played by defendant no.1 upon him and the proforma defendants at the time of execution of the agreement etc.

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Consequently, the present revision petition is found to be meritorious and hence, the same is hereby allowed and the impugned order is set aside.

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December 23, 2014 ( Rakesh Kumar Jain) vinod* Judge

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Note: Whether the judgment should be reported in the Digest? Yes / No

Raj Kumar Tyagi v. M/S Nayas Projects Pvt. Ltd. and Ors.

Case brief

What is this about?

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Raj Kumar Tyagi v. M/S Nayas Projects Pvt. Ltd. and Ors.

Case brief

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