$~ 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: September 9, 2014 + CS(OS) 1536/2010 PARVEEN BHARGAVA ..... Plaintiff Through: Mr. R. M. Bagai and Ms. Damini Khaira, Advocates versus JAGDISH CHANDER ..... Defendant Through: Mr. Prasoon Kumar and Mr. Kshitij Kumar, Advocates CORAM: HON'BLE MR. JUSTICE G.S.SISTANI G.S.Sistani, J., (Oral) IA No.1851/2014 1. Plaintiff has filed the present suit for specific performance of an agreement to sell dated 17.9.2007. By the present application under Order 6 Rule 17 CPC, the plaintiff seeks amendment of the plaint. The plaintiff wishes to add paragraph 10-A.
2. Mr.Bagai, counsel for the plaintiff submits that inadvertently a specific averment could not be made in the plaint that the plaintiff is ready and willing to perform his part of the agreement by paying the balance amount. The following amendment is sought “That in the said reply dated 27.3.2009, the plaintiff had specifically stated that he is ready and willing to perform his part of the contract by paying the balance amount. In the said reply-cumnotice dated 27.03.2009, the plaintiff also demanded the defendant to execute the sale deed within a period of 15 days from the receipt of the same as the plaintiff failed to perform his part of the contract. Hence this suit.”
3. Elaborating his argument further, Mr. Bagai, Advocate, submits that the plaintiff was all along ready and willing to perform his part of the agreement, however, inadvertently a specific averment to this effect that the plaintiff was ready and willing to perform his part of the agreement has been omitted.
4. It is further contended that the suit is at the initial stage and issues are yet to be framed and there is no delay in moving the present application. The amendment sought is opposed by learned counsel for the defendant. He submits that no specific averment has been made in the plaint and in the absence thereof the suit of the plaintiff is liable to fail and thus, by the amendment the defect in the plaint cannot be cured.
5. I have heard the learned counsel for the parties. It is a mandatory requirement as per explanation (ii) of Section 16 of the Specific Relief Act to make an averment in the plaint that the plaintiff has been ready and willing to perform his part of the agreement.
6. In the present case upon careful reading of the plaint, it would show that the plaintiff has paid 50% of the sale consideration to the defendant, which is not disputed. The plaintiff has averred in para 6 of the plaint that lastly Rs.13 lacs was paid to the defendant and thereafter plaintiff had been requesting the defendant to accept the balance amount and get the formalities completed for execution of the instrument of transfer in the name of the plaintiff.
7. In para 7 of the plaint the plaintiff has again reiterated that the plaintiff has been requesting the defendant from time to time and as also his son Shri Kapil for execution of the sale consideration and for which the defendant was bound to take the No Objection Certificate from the office of Tehsildar but the defendant failed to do so. In the same paragraph it has been averred that „The plaintiff has been ready and willing to make the balance payment. From the conduct of the plaintiff it is clear that he made half the payment in less than one month from the execution of the Agreement to Sell.
8. In para 8 of the plaint another averment has been made that the plaintiff had been more than considerate towards the defendant as even though he was liable to pay the amount of Rs.38,60,000/- within three months agreement to sell dated 17th September, 2007, but of the on the request of the defendant claiming to be in urgent need of money, the plaintiff preponed the payment and gave a sum of Rs.5,00,000/- in cash and another sum of Rs.13,00,000/- by cheque on 13.10.2007, which would show the commitment of the plaintiff in completing the transaction.
9. In the case of ‘Motilal Jain versus Ramdasi Devi (Smt.) And Others’ reported in (2000) 6 Supreme Court Cases 420, it was held as under:
“9. That decision was relied upon by a three-Judge Bench of this Court in Syed Dastagir case wherein it was held that in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one‟s case for a relief. It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other; thus, to gather the true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed (SCC Headnote)” “Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16 © of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of „readiness and willingness‟ has to be in spirit and substance and not in letter and form.”
10. Having regard to the law laid down by the Supreme Court in the case of Motilal Jain (Supra) and upon reading of the plaint as a whole would show that the plaintiff had repeatedly called upon the defendant and his son for execution of the sale deed which would show that the plaintiff was all along ready and willing to perform his part of the agreement. Moreover the conduct of the plaintiff also shows that he paid more than 50% of the sale consideration and part payment was made ever prior to the appointed day at the request of the defendant, as he was in urgent need of money. In fact in paragraph 7 of the plaint, the plaintiff has made an averment that the plaintiff has been ready and willing to make the balance payment. The amendment sought clarifies and adds to the averments already made in the plaint and thus no prejudice would be caused to the defendant. Further the amendment sought is necessary for the purpose of determining the real questions in controversy between the parties. Accordingly, the application is allowed. The amended plaint is taken on record. CS(OS) 1536/2013 11. Written statement to the amended plaint be filed within four weeks. Replication, if any, to be filed within two weeks thereafter.
12. List this matter before Court for framing of issues on 10.11.2014, when parties shall bring suggested issues to Court. G.S.SISTANI, J SEPTEMBER09 2014 An