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Himachal Pradesh High Court · body

2018 DIGILAW 2113 (HP)

Ashutosh Sharma v. Ram Lubhaya

2018-11-29

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. By way of instant application filed under Order 8 Rule 9 read with Section 151 of the Code of Civil Procedure (for short 'CPC’), leave/permission of this Court has been sought on behalf of the applicant-defendant to raise counter claim by way of subsequent pleading to the tune of Rs.50 lacs against the non-applicant-plaintiff. 2. Necessary facts for adjudication of the present application are that non-applicant- plaintiff filed a suit for specific performance of contract dated 3.6.2013 with respect to suit land as described in the plaint and for permanent perpetual prohibitory injunction restraining the non-applicant-defendant from transferring or alienating or changing the nature of the suit land or interfere with the possession of the plaintiff or from creating any encumbrances or charge on the suit land etc. In the alternative, non-applicant- plaintiff also prayed for decree for recovery of Rs.1,09,90,000/- 3. Defendant contested the suit having been filed by the plaintiff by way of written statement, wherein he has specifically taken plea that it was the plaintiff, who is not willing to perform the agreement dated 3.6.2013 and agreement being time bound was required to be executed on or before 2.12.2013 in any case. Defendant further averred in the written statement that on account of failure on the part of plaintiff, sale deed could not be executed within the stipulated time as per terms and conditions of the agreement, whereas, he always remained ready and willing to perform his part of the contract and also pleaded that on humanitarian ground, despite expiry of time as stipulated in agreement, he again issued legal notice to the plaintiff vide registered post dated 4.12.2013 calling upon him to register a sale deed on or before 27.12.2013, specifically indicating therein that, failing which earnest money received by him would be forfeited. Notice, referred hereinabove, was duly received by the plaintiff, who, instead of coming forward with the remaining sale consideration, again made excuses in his reply by referring that the title deeds have not been produced, which averments are nothing but lame excuses on the part of the plaintiff to avoid the execution and registration of sale deed and to save the remaining sale consideration. 4. 4. The applicant-defendant has further averred in the application that the applicant-defendant vide rejoinder-cum-notice dated 27.12.2013 again requested the non-applicant-plaintiff to get the title verified by referring the number of registration of the sale deed by which the applicant-defendant acquired the title of the same land and further extended the time and plaintiff was again required to execute the sale deed on or before 16.1.2014, failing which the earnest money paid by the non-applicant-plaintiff was to be forfeited. Defendant has further averred that vide order dated 9.11.2016, passed by this Court, matter was referred to the learned Mediator before whom applicant-defendant again showed his willingness to execute the sale deed. However, on 20.3.2017, matter was adjourned to 11.4.2017 to enable the plaintiff to ascertain the authenticity of the documents and thereafter further time was sought by the plaintiff to verify the documents and the matter was adjourned to 7.7.2017. On 7.7.2017, non-applicant-plaintiff was called in person by this Court and matter was again adjourned to 28.7.2017, on which date parties were directed to remain present in the Court in person on 1.9.2017. 5. Applicant-defendant has further averred that non-applicant-plaintiff took as many as nine months period for getting the sale deed executed, after institution of suit and, accordingly, this Court vide order dated 6.10.2017, passed in OMP 206/2016, vacated the interim order dated 30.6.2016, whereby applicant-defendant was restrained from alienating, encumbering or selling the suit land or changing its nature in any manner, whatsoever. 6. Applicant-defendant has further averred that from the acts and conduct of non-applicant-plaintiff, he has been put to a great loss and, as such, he is entitled to raise counter claim by way of subsequent pleadings to the tune of Rs.50 lacs on account of damages. He has averred in the application that in the written statement, having been filed by him, he has specifically pleaded that he has suffered huge loss of more than Rs.25 lacs on account of default of the non-applicant-plaintiff in making remaining sale consideration. He has further averred that applicant-defendant has suffered huge loss of more than Rs.25 lacs and hence the amount paid by the non-applicant-plaintiff is liable to be forfeited. 7. He has further averred that applicant-defendant has suffered huge loss of more than Rs.25 lacs and hence the amount paid by the non-applicant-plaintiff is liable to be forfeited. 7. Apart from above, on account of neglected conduct of the non-applicant-plaintiff, he is also liable to pay damage on account of default which he assessed to the tune of Rs.50 lacs along with future interest @ 12% per annum till the actual realization of amount. 8. Applicant-defendant has averred that necessity to file the present counter claim against the non-applicant-plaintiff has arisen during the pendency of suit and even prior to filing of the written statement, but when non-applicant-plaintiff has shown his absolute neglect/indifference to the agreement dated 3.6.2013 and refused to perform his part of the contract leading to huge loss to the applicant-defendant, which fact has otherwise been pleaded in his written statement, and as such, application may be allowed and he be permitted to raise counter claim by way of subsequent pleadings. 9. Aforesaid prayer having been made by the applicant-defendant has been opposed by the non-applicant-plaintiff by way of reply, wherein averments contained in the application have been denied in toto. It has been stated in the reply that pleas being taken in the application by the applicant-defendant are self- defeating and contradictory to the stand taken in the notices and reply to notices and the written statement. On the one hand stand of the defendant is that he had forfeited the amount of earnest money as the plaintiff allegedly failed to perform his part of the agreement and now the defendant is taking a new stand that he has allegedly suffered loss or damages on account of alleged acts of the plaintiff or alleged non performance of the agreement. It has further been averred that under the law in the matters of contract of sale of immovable property no such plea of damages is available in view of Section 74 of the Indian Contract Act. 10. I have heard learned counsel for the parties and gone through the pleadings adduced on record by the respective parties. 11. It has further been averred that under the law in the matters of contract of sale of immovable property no such plea of damages is available in view of Section 74 of the Indian Contract Act. 10. I have heard learned counsel for the parties and gone through the pleadings adduced on record by the respective parties. 11. Since by way of instant application filed under Order 8 Rule 9 read with Section 151 CPC a prayer has been made by applicant-defendant to allow him to raise counter claim by way of subsequent pleadings to the tune of Rs.50 lacs on account of damages to the applicant-defendant against non-applicant-plaintiff, in view of subsequent cause of action arisen during the pendency of the suit and, as such, question of maintainability of counter claim in the given facts and circumstances of the case cannot be seen in the present proceedings, rather in the present proceedings, this Court is only required to determine, “whether on account of subsequent development/subsequent cause of action, if any, has arisen during the pendency of the suit in favour of the applicant-defendant, entitling him to raise counter claim after filing the written statement or not”. 12. Question with regard to maintainability of counter claim would come lateron in case this Court finds/holds applicant-defendant entitled to raise counter claim on account of subsequent development/subsequent cause of action. 13. Argument, having been advanced by Shri Ajay Kumar, learned Senior Counsel representing the non-applicant-plaintiff that applicant-defendant cannot be permitted to file counter claim after filing of written statement, stands duly settled/answered by Hon’ble Apex Court in Mahendra Kumar and another vs. State of Madhya Pradesh and others, AIR 1987 SC 1395 , wherein it has been categorically held that under Order VIII, Rule 6A(1) CPC, counter claim can be filed after filing of written statement, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not. The Hon’ble Apex Court in Mahendra Kumar’s case supra has held as under:- “5. After the filing of the written statement, the appellants filed a counter-claim claiming title to the treasure. It is not necessary for us to state the basis of the claims of the parties to the treasure. The respondents Nos. The Hon’ble Apex Court in Mahendra Kumar’s case supra has held as under:- “5. After the filing of the written statement, the appellants filed a counter-claim claiming title to the treasure. It is not necessary for us to state the basis of the claims of the parties to the treasure. The respondents Nos. 2 to 5 filed an application praying that the counterclaim should be dismissed contending that it was barred by limitation as prescribed under section 14 of the Act and that it was also not maintainable under Order VIII, Rule 6A(1) of the Code of Civil Procedure. The learned District Judge came to the finding that the counter-claim was barred by section 14 of the Act and, in that view of the matter, dismissed the counter-claim. Being aggrieved by the said order of the learned District Judge, the appellants and the said respondents Nos. 6 to 8 moved the High Court in revision against the same. The High Court upheld the order of the learned District Judge that the counterclaim was barred by limitation as prescribed by section 14 of the Act. The High Court further held that the counterclaim having been filed after the filing of the written statement, it was not maintainable under Order VIII, Rule 6A(1) of the Code of Civil Procedure. Hence this appeal by special leave. 15. The next point that remains to be considered is whether Rule 6A(1) of Order VIII of the Code of Civil Procedure bars the filing of a counterclaim after the filing of a written statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counterclaim after the filing, of the written statement, the counter-claim was not maintainable. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counterclaim after the filing, of the written statement, the counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6A(1) of the Code of Civil Procedure. As the cause of action for the counter- claim had arisen before the filing of the written statement, the counter-claim was, therefore, quite maintainable. Under Article 113 of the Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a counter-claim, which is treated as a suit under section 3(2)(b) of the Limitation Act has been filed by the appellants within three years from the date of accrual to them of the fight to sue. The learned District Judge and the High Court were wrong in dismissing the counter-claim.” 14. Placing reliance upon aforesaid judgment, Punjab and Haryana High Court in Mohinder Singh vs. Karnail Singh and others, (2013) 5 RCR (Civil) has reiterated that counter claim can be filed, even subsequent to filing of the written statement, subject to the condition that cause of action for filing the counter claim should have accrued before the filing of the written statement. In the aforesaid judgment, Punjab and Haryana High Court has held that counter claim can be entertained even if the same was not included in the written statement, subject to the aforesaid condition. The Court has held as under:- “5. Counsel for the petitioner contended that defendant No.7 was submitting his written statement by including the counter claim therein, but the trial court did not admit the counter claim of defendant No.7. Counsel for respondent No.1, however, contended that counter claim was not part of the written statement that was filed by the petitioner in the trial court. Counsel for the petitioner submitted that even if counter claim was not part of the written statement, the same can be filed even thereafter. Counsel for respondent No.1, however, contended that counter claim was not part of the written statement that was filed by the petitioner in the trial court. Counsel for the petitioner submitted that even if counter claim was not part of the written statement, the same can be filed even thereafter. Reliance in support of this contention has been placed on two judgments of this Court i.e. Raghubir Singh and others v. Tajinder Pal Singh and others reported as 2009 (4) Civ.C.C. 755 and Nini Kumar Jain v. Neena Devi and others reported as 2006 (4) R.C.R. (Civil) 770. On the other hand, counsel for respondent No.1, relying on judgment of Gujarat High Court in the case of Sidi Muslim Jamat Bilali v. Kasamsha Hasisha Sotiayara reported as 2010 (85) AIC 345 and judgment of Hon’ble Supreme Court in the case of Bollepanda P.Poonacha and another v. K.M. Madapa reported 458 as 2008 (3) R.C.R (Civil) 150, contended that counter claim cannot be filed subsequent to the filing of the written statement. 6. Having carefully considered the aforesaid contentions, I have come to the conclusion that counter claim can be filed even subsequent to the filing of the written statement, subject to the condition that cause of action for filing the counter claim should have accrued before the filing of the written statement. Consequently, counter claim fo defendant No.7-petitioner can be entertained even if the same was not included in the written statement, subject to the aforesaid condition. In this view, I am supported by judgments of this Court in the cases of Raghubir Singh (supra) and Nini Kumar Jain (supra). In those cases, judgment of Hon’ble Supreme Court namely Mahdndra Kumar v. State of M.P. reported as AIR 1987 Supreme Court 1395 (1) was also relied on. Judgment of Gujarat High Court in the case of Sidi Muslium Jamat Bilali of curse supports the contention of counsel for respondent No.1, but the same cannot be preferred over judgment of this Court referred to herein before, which also relied on judgment of Hon’ble Supreme Court in the case of Mahendra Kumar (Supra). In so far as judgment of Hon’ble Supreme Court in the case of Boilepanda P.Poonacha (supra), cited by counsel for respondent No.1 is concerned, in the said case, no such proposition of law, as sought to be canvassed by counsel for respondent No.1, has been laid down. In so far as judgment of Hon’ble Supreme Court in the case of Boilepanda P.Poonacha (supra), cited by counsel for respondent No.1 is concerned, in the said case, no such proposition of law, as sought to be canvassed by counsel for respondent No.1, has been laid down. On the contrary, in that case, counter claim was sought to be filed after the suit had already been decreed. It was held that counter claim could not be filed after the suit had been decreed. In the said judgment, it was also observed that for filing counter claim, cause of action should have accrued before filing of the written statement. However, it was not laid down that counter claim should be filed before filing of written statement. On the contrary, in view of judgment of Hon’ble Supreme Court in the case of Mahendera Kumar (supra) also, counter claim can be filed even subsequent to filing of written statement. 7. For the reasons aforesaid, it becomes manifest that impugned order of the trial court is patently perverse and illegal, and therefore, unsustainable in the eyes of law. The instant revision petition is therefore allowed. Impugned order (Annexure P-10) passed by the trial court is set aside. Application (Annexure P-9) moved by defendant No.7-petitioner in the trial court is allowed and defendant No.7- petitioner is permitted to file counter claim in the trial court subject to the condition that cause of action to file counter claim should have accrued before filing of the written statement.” 15. It is not in dispute that applicant-defendant had agreed to sell the suit land to the non-applicant-plaintiff in terms of sale agreement dated 3.6.2013 and as such, this Court, after having noticed the fact that the applicant-defendant after having received a sum of Rs.11 lacs, as part payment of sale consideration, failed to execute the sale deed within stipulated time, proceeded to pass interim order dated 30.6.2016, restraining the applicant-defendant from alienating, encumbering or selling the suit land or changing its nature in any manner, whatsoever. 16. Non-applicant-plaintiff also claimed before this Court that at the time of execution of agreement to sell dated 3.6.2013 possession of suit land was delivered, which fact was disputed by applicant-defendant by way of reply to the application. 16. Non-applicant-plaintiff also claimed before this Court that at the time of execution of agreement to sell dated 3.6.2013 possession of suit land was delivered, which fact was disputed by applicant-defendant by way of reply to the application. After passing of order dated 30.6.2016, an application bearing OMP No.206/2016 came to be filed on behalf of applicant-defendant praying therein for vacation of interim order dated 30.6.2016, wherein applicant-defendant, while acknowledging the factum with regard to receipt of sum of Rs.11 lacs, as part payment of sale consideration, contended that he is/was ready and willing to perform his part of agreement, but despite repeated opportunities, non-applicant/ plaintiff failed to perform his part of contract within the time stipulated in the terms and condition of agreement and as such, he is not entitled for the discretionary relief of Specific Performance of Contract as well as injunction. 17. This Court, after having taken note of the pleadings and documents adduced on record by the respective parties, referred the matter to the Mediator. However, record reveals that despite readiness and willingness expressed by the applicant-defendant, non-applicant/ plaintiff failed to perform his part of the agreement on one pretext or the other and as such, this Court vide order dated 6.10.2017 vacated the interim order by way of passing detailed order. In the aforesaid order, this Court has specifically recorded that despite various opportunities having been afforded by this Court, plaintiff has failed to perform his part of the agreement to sell and as such, there appears to be no justification in continuing with the order dated 30.6.2016, whereby applicant-defendant has been restrained from alienating, encumbering or selling the suit land or changing its nature in any manner, rather this Court after having carefully noticed the fair stand adopted by the applicant-defendant as well as repeated statements made by him, be it before this Court or before learned Mediator, has no hesitation to conclude that an irreparable loss would be caused to the applicant-defendant in case the interim order dated 30.6.2016 is allowed to continue. 18. At this stage, it may be noticed that applicant-defendant in his written statement has specifically stated in para-2 of reply on merits that he and his wife suffered huge loss of more than Rs.25 lacs on account of default of non-applicant/plaintiff in making the remaining sale consideration demanded by the applicant-defendant. 18. At this stage, it may be noticed that applicant-defendant in his written statement has specifically stated in para-2 of reply on merits that he and his wife suffered huge loss of more than Rs.25 lacs on account of default of non-applicant/plaintiff in making the remaining sale consideration demanded by the applicant-defendant. In the same para, applicant-defendant has further mentioned that aforesaid amount has required by him and his wife for carrying out reconstruction of their old house at Delhi, which is situate at M.P-2, Moryan Enclave, Pritampura, Delhi and due to undue delay on the part of non-applicant/ plaintiff construction work got delayed and prices have gone up i.e. more than 25% higher and the entire plan of the applicant-defendant and his wife has come to an end and as such he has suffered a loss of more than Rs.25 lacs and as such amount paid by the non-applicant-plaintiff as an earnest money is liable to be forfeited on account of the default by the non-applicant/plaintiff. Again in para-4 of the written statement applicant-defendant has reiterated that he has suffered a loss of more than Rs.25 lacs on account of default of non-applicant/plaintiff and as such there is no force in the argument of Shri Ajay Kumar, learned Senior Counsel representing the non-applicant/plaintiff that no cause of action, if any, has accrued to the applicant-defendant for raising counter claim, rather this Court is convinced and satisfied that the cause of action for filing the counter claim had actually accrued to the applicant-defendant before filing the written statement, as has been taken note hereinabove. 19. Another argument advanced by Mr.Ajay Kumar, learned Senior Counsel representing the non-applicant/plaintiff, that since earnest money paid by the non-applicant/ plaintiff at the time of execution has been forfeited by the applicant-defendant for alleged default on the part of the non-applicant/plaintiff, there is no question of raising counter claim, is also not tenable because forfeiture, if any, of earnest money is in terms of agreement and conditions contained in agreement, whereas counter claim is being raised on account of damages on account of undue delay in making balance payment as agreed by applicant-defendant vide agreement dated 3.6.2016. The question, “whether applicant-defendant is entitled to any sum of amount on account of damages, if any, suffered by him on account of non-payment of balance consideration by non-applicant-plaintiff” would be decided by this Court while disposing of counter claim on merits and not in these proceedings, where only question for determination is “whether applicant-defendant is entitled to raise counter claim for damages after filing of the written statement or not?” 20. Mr.Sood, learned Senior Counsel representing the non-applicant-plaintiff, contended that in view of the provisions contained in Section 74 of the Indian Contract Act, 1872, which is reproduced herein below, the applicant-defendant cannot be permitted to raise counter claim, as prayed for in the present petition:- “74. Compensation for breach of contract where penalty stipulated for:- [When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for. Explanation.— A stipulation for increased interest from the date of default may be a stipulation by way of penalty.] Exception — When any person enters into any bail-bond, recognizance or other instrument of the same nature or, under the provisions of any law, or under the orders of the 35 [Central Government] or of any 36 [State Government], gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein. Explanation.— A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested.” 21. Explanation.— A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested.” 21. In view of the aforesaid provisions contained in Section 74 of the Indian Contract Act, 1872, the another argument raised by Shri Ajay Kumar, learned Senior Counsel representing the non-applicant-plaintiff, that applicant-defendant cannot be allowed to claim compensation by way of counter claim, over and above the amount so agreed in the agreement, in the event of default, by way of penalty, is also not required to be considered and decided by this Court, at this stage, because in the instant proceedings this Court is only required to determine the question, “whether the applicant-defendant can be allowed to raise counter claim for damages after filing of written statement?”. 22. Otherwise also, as has been taken note hereinabove, applicant-defendant in his written statement has categorically stated that he has suffered damages on account of delay in payment by the non-applicant/plaintiff in terms of agreement to sell. The question, whether the applicant-defendant is entitled to sum, as claimed by way of counter claim, would be determined/decided by this Court on the basis of evidence, if any, led on record by the parties to the lis. 23. Hon’ble Apex Court in Mohinder Kumar’s case supra has clearly laid down that Rule 6(A)(1) of Order VIII of CPC does not, on the face of it, bar the filing of a counterclaim by the defendant after he has filed the written statement. Under Rule 6A(1) of Order 8 CPC, a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not. Cause of action to file counter claim in the case at hand had definitely arisen before filing of the written statement and as such application at hand is maintainable and deserves to be allowed. 24. Consequently, in view of the discussion made hereinabove as well as law laid down by Hon’ble Apex Court, this application is allowed and the applicant-defendant is permitted to raise the counter claim, as prayed for, subject to affixation of requisite/prescribed Court fee in accordance with law. The application is disposed of.