Palm Art Apparels Pvt Ltd v. Enkay Builders Pvt Ltd

RAJIV SAHAI ENDLAW, J. JULY 31, 2017 'bs' (corrected & released on 27th September, 2017)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 31st July, 2017. + PALM ART APPARELS PVT. LTD. ..... Petitioner Through: Mr. Rajat Aneja and Ms. Chandrika Gupta, Advs. Versus ENKAY BUILDERS PVT. LTD. ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugns the order (dated 14th December, 2016 in CS No.57809/2016 of the Court of Additional District Judge (ADJ)-02, New Delhi District, Patiala House Courts, New Delhi) granting un-conditional leave to defend to the respondent/defendant to contest the suit filed by the petitioner/plaintiff under Order XXXVII of CPC for recovery of Rs.70,30,601/- with interest. 2. The petition was entertained and notice thereof issued. Though the notice remained unserved but on 28th April, 2017 Mr. Vishesh Wadhwa, Advocate appeared for the respondent/defendant and accepted notice and was furnished a complete set of paper book and the matter adjourned to 28th July, 2017. On 28th July, 2017, Mr. Shrey Chathly, Advocate appeared and the counsel for the petitioner/plaintiff and Mr. Shrey Chathly, Advocate for the respondent/defendant were heard. However, when I was about to commence dictating the order, Mr. Shrey Chathly, Advocate requested for opportunity to examine whether there were any judgments in support of what he had contended and finding that he is young, the matter was adjourned to today. 3. Today, none has appeared for the respondent/defendant inspite of passover. Though no Vakalatnama, either of Mr. Vishesh Wadhwa, Advocate or of Mr. Shrey Chathly, Advocate is found to have been filed in this Court but from a copy on record, of the application for leave to defend filed by the respondent/defendant before the Trial Court, it is found that the same was filed on behalf of the respondent/defendant by the same Mr. Shrey Chathly and Mr. Vishesh Wadhwa, Advocates. The respondent/defendant/its Advocates cannot by such practices defeat the process of the Courts. The need to await the respondent/defendant any further is not felt. Though Mr. Shrey Chathly, Advocate for the respondent/defendant was fully heard on 28th July, 2017 but since this petition was not disposed of on 28th July, 2017, today the respondent/defendant is proceeded against ex-parte. 4. The petitioner/plaintiff instituted the suit from which this petition arises, pleading (i) that the respondent/defendant vide Agreement to Sell and Purchase dated 16th September, 2011 agreed to sell the first floor of Plot No.42, situated at Community Centre, Naraina Industrial Area, Phase-I, New Delhi as described therein to the petitioner/plaintiff for a total consideration of Rs.1,25,00,000/- and the petitioner/plaintiff agreed to purchase the same; (ii) that the respondent/defendant in the said Agreement to Sell and Purchase itself acknowledged receipt of Rs.15 lakhs from the petitioner/plaintiff as earnest money; (iii) that in accordance with the Agreement to Sell and Purchase aforesaid, a further some of Rs.20 lakhs was paid by the petitioner/plaintiff to the respondent/defendant on 8th October, 2011; (iv) that on request, assurances and representations of the respondent/defendant, a further sum of Rs.10 lakhs towards sale consideration was paid by the petitioner/plaintiff to the respondent/defendant on 20th June, 2013; (v) that thus the petitioner/plaintiff has paid a sum of Rs.45 lakhs out of the total sale consideration of Rs.1,25,00,000/-, leaving the balance sale consideration of Rs.80 lakhs only to be paid; (vi) that the respondent/defendant did not fulfil its part of the Agreement and the petitioner/plaintiff discovered that the respondent/defendant had misrepresented about pursuing the application for conversion of leasehold rights in the land underneath the property into freehold; (vii) that the petitioner/plaintiff vide notice dated 23rd August, 2014 terminated the Agreement to Sell and Purchase aforesaid; (vi