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    JATIN BHAGAT VS SAWAN NICHANI Notes

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    Anant Singh
    This civil revision petition seeks to quash the order dated 31.10.2023 passed by the Civil Judge, Junior Division, Gurugram which dismissed an application filed under Order 7 Rule 11 of the CPC by the petitioner. The petitioner had sought rejection of the plaint filed by the respondent seeking specific performance of an agreement to sell a property. The petitioner argued that the agreement contained clauses stipulating that any disputes would be resolved through mediation and the respondent was only entitled to refund of the paid amount with interest in case of non-performance, not specific performance. Therefore, the suit was not maintainable and the application under Order 7 Rule 11 should have been allowed.

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    JATIN BHAGAT VS SAWAN NICHANI Notes

    Uploaded by

    Anant Singh
    22 views2 pages
    This civil revision petition seeks to quash the order dated 31.10.2023 passed by the Civil Judge, Junior Division, Gurugram which dismissed an application filed under Order 7 Rule 11 of the CPC by the petitioner. The petitioner had sought rejection of the plaint filed by the respondent seeking specific performance of an agreement to sell a property. The petitioner argued that the agreement contained clauses stipulating that any disputes would be resolved through mediation and the respondent was only entitled to refund of the paid amount with interest in case of non-performance, not specific performance. Therefore, the suit was not maintainable and the application under Order 7 Rule 11 should have been allowed.

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    JATIN BHAGAT VS SAWAN NICHANI notes

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    This civil revision petition seeks to quash the order dated 31.10.2023 passed by the Civil Judge, Junior Division, Gurugram which dismissed an application filed under Order 7 Rule 11 of the CPC by the petitioner. The petitioner had sought rejection of the plaint filed by the respondent seeking specific performance of an agreement to sell a property. The petitioner argued that the agreement contained clauses stipulating that any disputes would be resolved through mediation and the respondent was only entitled to refund of the paid amount with interest in case of non-performance, not specific performance. Therefore, the suit was not maintainable and the application under Order 7 Rule 11 should have been allowed.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    22 views2 pages

    JATIN BHAGAT VS SAWAN NICHANI Notes

    Uploaded by

    Anant Singh
    This civil revision petition seeks to quash the order dated 31.10.2023 passed by the Civil Judge, Junior Division, Gurugram which dismissed an application filed under Order 7 Rule 11 of the CPC by the petitioner. The petitioner had sought rejection of the plaint filed by the respondent seeking specific performance of an agreement to sell a property. The petitioner argued that the agreement contained clauses stipulating that any disputes would be resolved through mediation and the respondent was only entitled to refund of the paid amount with interest in case of non-performance, not specific performance. Therefore, the suit was not maintainable and the application under Order 7 Rule 11 should have been allowed.

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    JATIN BHAGAT VS SAWAN NICHANI

     Civil Revision- 7806 of 2023 for quashing order dated 31.10.2023 passed by Ld. Civil
    Judge Jr. Division Gurugram which dismissed application moved by petitioner without
    considering law points and correct factual aspects.
     PRAYER: P
     Order dated 31.10.2023 (Annexure P-1) passed by Ld. Civil Judge Jr. division
    dismissed application under Order 7 Rule 11 of CPC.
    FACTUAL MATRIX OF THE CASE:
    1. Respondent had filed a suit for specific performance and declaration with
    consequential relief of permanent injunction on ground that petitioner is
    owner of plot no. 9102, measuring 247.85 sq.mts in residential colony DLF
    City phase 4, Gurugram and had to hand over ownership and possession of
    fourth floor to respondent after construction.
    2. In para 6, respondent state that he made a total of Rs. 60,00,000 before
    executing agreement to sell on namely: 25 lakhs on 21.02.2022, 15 lakhs
    22.03.2022, 12 lakhs on 04.11.2022 and 8 lakhs on 09.11.2022.
    3. Para 11 of the plaint mentioned clause 7, in case failure to hand over
    possession of floor, the respondent would be entitled to compensation from
    petitioner until possession not handed over. Agreement “p” states that in
    case petitioner refuse to get deed executed, the amount must be refunded
    along with interest. Clause added as a deterrent.
    4. Respondent sent a legal notice dated 05.08.2023, which was replied to on
    08.09.2023, mentioning clause 6 of the MOU. Respondent plaint is P-2.
    5. Application under order 39 rule 1 & 2, CPC filed (P-3) praying for ad interim
    injunction against petitioner for restraining alienation of fourth floor during
    pendency of suit.
    6. Petitioner in response moved application under Order7 rule 11 of CPC praying
    for rejection of plaint on the ground that suit filed without any cause of action
    in view of a specific condition in clause 5 and 10 of agreement to sell.
    According to clause 5, in case party refuses to get sale deed registered, it
    must refund the amt paid till date with bank interest rate. Thus, respondent
    has no right to file and seek relief of specific performance.
    7. Clause 10: Any dispute will be settled by a mediator as appointed by first
    party. If 2nd party fail to make payment as per schedule, then part payment
    made up to 1 crore will be forfeited and second party will not have any claim
    to it, 1st party will be at liberty to sell to any other party. No right to file for
    specific performance in civil court. Agreement to sell is P-4
    8. Respondent file reply to application u/ order 7 rule 11 denying averments and
    pleading that suit was maintainable, cannot be rejected. Application u/o
    order 7 rule 11 is P-4B.
    9. Petitioner made preliminary submissions:
     Respondent suppressed material facts in plaint.
     Respondent entered into agreement to sell the floor on 21.02.2022, for
    total sale consideration Rs. 1,50,00,000.
     Respondent was to pay part payment of Rs. 50 lacs by 10.04.2022, 25 lacs
    on applying for occupation certificate, Rs. 15.5 lacs at getting OC and 7.5
    lacs when sale deed executed.
     Respondent failed to make payment according to schedule, 60 lacs had
    been paid late, so respondent requested addendum on fresh T & Cs.
     On 12.11.2022 addendum executed: 20 lacs to be paid when applying for
    OC, 55 lacs when getting OC and 15 lacs on getting sale deed or before.
     Agreement to sell dated 21.02.2022 concealed by respondent.
     According to clause 5, if no sale deed registered, 2nd party can only get
    refund with bank interest, no specific performance. Clause 6 was also
    mentioned.
    10. Ld. Trial Court dismissed application under order 7 rule 11 holding that it is
    not maintainable, suit is to be tried as filed. Trial Court exceeded jurisdiction
    in dismissing, relied upon unrelated judgements, that refund was agreed to
    and mediator shall be appointed.
    11. Appointment of mediator and arbitrator is done from the same source, i.e.
    ADR mechanism. Similar weightage must be given to both by the Trial Court.
    12. It is a case of liquidated damages according to clause 5 of agreement, not
    specific performance.
    13. Reliance is placed upon apex court in Rajendra Bajoria and ors vs Hemant
    Kumar Jalan, Civil Appeal no. 5819-2021: In case relief claimed by plaintiff
    cannot be granted by trial court, there is no purpose of continuing suit and
    plaint to be rejected at threshold. Reliefs claimed in a plaint flow from and are
    culmination of cause of action pleaded in plaint.
    14. Petitioner filed application to reduce litigation and express his willingness to
    refund the amount along with interest, and that any dispute to be resolved by
    mediator.
    15. No cause of action available to respondent to constitute the suit, the first
    remedy was to appoint mediator.
    16. Thus, present petition be allowed and order dated 31.10.2023 be quashed.
    During pendency of present revision petition, proceeding before trial court be
    stayed.

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