Satish Verma v. M/S Garment Craft(India) Pvt Ltd

RAJIV SAHAI ENDLAW, J. DECEMBER 11, 2017 'bs/gsr' (corrected & released on 25th January, 2018)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 11th December, 2017. + SATISH VERMA ..... Plaintiff Through: Ms. Sonia Malhotra & Mr. Shubendu Kaushik, Advs. Versus GARMENT CRAFT (INDIA) PVT. LTD. ..... Defendant Through: Mr. Sudesh Ranjan Singh, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff instituted this suit, for a) specific performance of the Agreement of Sale of July, 2008 of property No. 259, Okhla Industrial Estate, Phase-III, New Delhi; b) in the alternative, i) for recovery of damages in the sum of Rs.3 crores for breach of contract; ii) for refund of Rs.2 crores paid by the plaintiff to the defendant as advance/part sale consideration out of the total agreed price of Rs.11,31,00,000/- together with interest; and, c) for permanent injunction restraining the defendant from alienating, encumbering or parting with possession of the said property. 2. The suit was entertained and vide ex-parte ad-interim order dated 8th March, 2010, the defendant restrained from dealing with the property. The said order was made absolute on 19th November, 2010. 3. The defendant contested the suit by filing a written statement and on 13th August, 2014, the following issues were framed in the suit: "1. Whether the plaintiff is entitled for a decree of specific performance of the Agreement to Sell dated July, 2008? OPP 2. Whether the plaintiff was ready and willing to perform his part of the obligations in terms of the Agreement to Sell dated July, 2008? OPP 3. Whether the plaintiff has committed any default in performing his part of the obligation in terms of the Agreement to Sell dated July, 2008? OPD 4. Whether the plaintiff is entitled for a decree of permanent injunction restraining the defendant from in any way transferring, selling, mortgaging, alienating or creating third party interest or parting with possession of the suit property No.259, Okhla Industrial Estate, Phase-III, New Delhi-110020, built on 606 Sq. Yards? OPP 5. Relief." and the suit set down for trial. 4. The suit, on 22nd April, 2016 was dismissed under Order XVII Rule 3 of the Code of Civil Procedure, 1908 (CPC), for the failure of the plaintiff to file any affidavit by way of evidence or to lead any evidence. 5. The plaintiff filed IA No.11234/2016 for recall of the order dated 22nd April, 2016 along with IA No.11235/2016 for condonation of 102 days delay in applying therefor. The said applications came up first before this Court on 14th September, 2016 and were thereafter adjourned from time to time. 6. Hearing of the aforesaid applications was commenced on 23rd November, 2017, and (A) the following order was passed on 23rd November, 2017: "1. This Suit, inter alia, for specific performance of an agreement of sale of immovable property, was on 22nd April, 2016 dismissed for non-prosecution owing to the plaintiff, till then, inspite of issues having been framed on 13th August, 2014 and inspite of repeated opportunities, having not taken any steps to lead evidence. 2. These applications for recall of order dated 22nd April, 2016 and for condonation of delay in applying thereof also came up first before the Court thereafter only on 14th September, 2016, i.e. after five months, again showing that the plaintiff inspite of the Suit having been dismissed for non-prosecution, did not show any urgency. Since then, these applications are pending adjudication. 3. The counsel for the plaintiff, during the hearing, has contended that the plaintiff has paid a sum of Rs.2 Crores to the defendant for purchase of the property and has cited primarily the said reason for restoration of the Suit and also explaining the delay on the part of the plaintiff. 4. I have enquired from the counsel for the plaintiff, whether the plaintiff is willing to give up the relief of specific performance of agreement to sell and confine the relief in the Suit to recovery of amounts paid. Similar query has been made from the counsel for the defendant. 5. The plaintiff a