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2012 Supreme(Del) 1012
High Court of Delhi
MANMOHAN SINGH, J.
Smt. Gurcharan Grewal & Another
Versus
Dr. Adarsh Bajaj & Another
I.A. No. 15982 of 2010 In C.S. (OS) No. 1874 of 2009
Decided On : 13-04-2012
For the Appellants:Sunil Malhotra with Satish Sahai Advocates.
For the Respondent:B.L. Chawla Advocate.
The court emphasized the importance of the rules of limitation and the policy behind limitation acts, stating that those who sleep upon their claims should not be assisted by the courts.
Headnote:
Amendment of Written Statement - Limitation Act - Sections 15, 27 of the Specific Relief Act, 1963 - Section 53-A of the Transfer of Property Act, 1882
Fact of the Case:
The plaintiffs filed a suit for recovery of possession and mesne profit/damages for use and occupation against the defendants in respect of a flat. The defendants sought to amend their written statement to add preliminary objections and a counter claim for specific performance of a contract dated 04.04.2004/14.04.2004.
Finding of the Court:
The court allowed the amendment of the written statement by adding paras (g) and (h) but rejected the amendment sought for the counter claim as it was found to be ex facie barred by limitation.
Issues: The main issue was whether the proposed amendment for the counter claim was barred by limitation.
Ratio Decidendi: The court held that the proposed counter claim was ex facie barred by limitation without further enquiry, and therefore, rejected the amendment sought for the counter claim.
Final Decision: The court partly accepted the application for amendment of the written statement and disposed of the application. Replication to the amended written statement was to be filed by the plaintiffs within four weeks, and additional documents were to be filed by the parties within six weeks.
MANMOHAN SINGH, J
1. The plaintiffs have filed the instant suit for recovery of possession and mesne profit/damages for use and occupation against the defendants in respect of the flat situated at the first floor of the property bearing No.D-33, Rajouri Garden, New Delhi110027 (hereinafter referred to as the „suit property?). In the suit, issues are yet to be framed and written statement filed by the defendants is already on record.
2. There was an agreement dated 14.4.2004 for sale of Portion „B?Flat on First Floor of property No.D-33, Rajouri Garden, New Delhi-1100 27 in favour of the defendants for a total consideration of Rs.45,00,000/-by the plaintiffs.
3. During the pendency of the suit, the defendants filed an application under Order VI, Rule 17 read with Section 151 of Code of Civil Procedure, 1908 for amendment of their written statement.
4. The reasons given by the defendants is that after filing their written statement on 03.02.2010, on the basis of a second opinion from another counsel, they were informed that certain legal objections to the maintainability of the suit and the counter claim have not been raised in their written statement, therefore, the present application seeking leave to amend their written statement has been filed.
5. By way of the proposed amendment, the defendants seek to add the following preliminary objections in their written statement after the existing preliminary objections:
“(g) That the suit is hit by the doctrine of part performance, as contained in Section 53-A of the Transfer of property Act, 1882, and as such the same is liable to be dismissed by this Hon?ble Court.
(h) That the suit in the present form is not maintainable as the same is hit by the provisions of Sections 15 and 27 of the Specific Relief Act, 1963, and as such it is liable to be dismissed with cost.”
6. The defendants also seek to set up the following counter claim against the claim of the plaintiffs in their written statement:
“(1) That the defendants entered into an agreement dated 04-04-2004/14-04-2004 with the plaintiffs, through their attorneys for purchase of front portion of flat on the first floor (towards service lane) comprising of four bedrooms, drawing dining, kitchen, latrine, bathroom, out of the property No.D-33, Rajouri Garden, New Delhi for a total consideration of Rs.45,00,000/-(Rupees forty five lacs only), and paid a sum of Rs.15,00,000/-(Rupees fifteen lacs only) to them as an advance/earnest money, on the terms and conditions given in the Agreement to Sell and Purchase and Receipt dated 10-04-2004. I.A. No.15982/2010 in The balance amount of sale consideration of Rs. Rs.30,00,000/-(Rupees thirty lacs only) was required to be paid by the defendants to the plaintiffs at the time of registration of the sale documents of the said property in their favour.
(2) That the defendants were given the possession of the aforesaid property by the attorneys of the plaintiffs on 14-04-2004 in part performance of the contract dated 04-04-2004/14-04-2004, and they continue to be in possession of the same in part performance of the contract, and the defendants have made lot of improvements in the said property at their cost and expenses after taking possession of the same in part performance of the contract, and they have paid a sum of Rs.15,00,000/-to the plaintiffs as an advance/earnest money and they are willing to perform their part of the contract and pay the balance amount of ale consideration of Rs.30,00,000/-to the plaintiffs in terms of the contract.
(3) That after receiving the possession of the above property from the plaintiffs, through their attorneys on 14-04-2004, it was revealed and known to the defendants that there was a property dispute pending between the plaintiffs and Smt. Jasbir Cheema in Court, which was not disclosed to them by the plaintiffs and their attorneys at the time of negotiations for sale of the property or at the time of contract. It was assured by the plaintiff and t
