BEFORE THE LD.

JSCC - II, KANPUR NAGAR

CIVIL SUIT NO. 1523 OF 2023

MANJINDER SINGH …PLAINTIFF

VERSUS

V.K. SOMANI ...RESPONDENTS

REJOINDER ON BEHALF OF THE PLAINTIFF TO THE WRITTEN

STATEMENT OF THE DEFENDANT.

MOST RESPECTFULLY SHOWETH:

The para-wise reply to the averments of the written statement is

provided in subsequent paragraphs. All those averments made in the
written statement may kindly be deemed to have been denied unless
not specifically admitted hereunder:

1. That the contents of paragraph no.1 of the written statement needs

no reply as the same are correct and admitted.

2. That the contents of paragraph no.2 of the written statement are

incorrect and misleading, hence vehemently denied. It is submitted
that it is immaterial whether the defendant’s need for funds were
satisfied from the plaintiff or any other source, when the defendant
had evidently executed an agreement to sell dated 08.07.2010
(hereinafter referred to as “The Agreement”) and accepted money
from the plaintiff, in exchange of which he agreed to sell the
scheduled property to the plaintiff.
It is specifically denied that the plaintiff has played any game of
fraud and cheating on the defendant, and by virtue of which, the
defendant executed the agreement to sell dated 08.07.2010. It is
submitted that the defendant is an adult, completely capable of
understanding the terms and conditions of the agreement and its
effect. It is further specifically denied that no readiness and
willingness has ever shown on the part of plaintiff which is further
evidenced by the fact that besides the numerous calls, the plaintiff
also issued the notice dated 09.07.2013 to the defendant calling
upon him to execute the sale deed in favour of the plaintiff.
 . It is specifically denied that the plaintiff has not paid
attention to the notices and not showed his readiness and
willingness in performance of aforesaid agreement to sell. It is
submitted that the plaintiff has issued the cheque in the name of
Shri Vijay Krishna Somani, which is the name of the defendant.
However, subsequently the defendant informed the plaintiff that he
does not have any account with the above-mentioned name and
returned the cheque to the plaintiff and asked for payment from any
other mode. It is submitted that the plaintiff, on becoming aware
that the payment has not been made through cheque, offered the
defendant ₹ 10,00,000/- (Rupees Ten Lakhs Only) in cash, which has
been duly acknowledged by the defendant to be for the purchase of
the scheduled property.
It is humbly submitted that despite receiving the above-
mentioned amount and utilizing the same for his own gain, the
defendant is blatantly trying to mislead this Hon’ble Court by making
false and fabricated allegations on the plaintiff. It is pertinent to
mention herein that the defendant had admitted to the existence of
the agreement to sell and in none of these notices, the defendant
had informed the plaintiff that the agreement to sell stands
cancelled. It is submitted that the defendant had issued the notices
to call upon the plaintiff to pay the above-mentioned amount
through some other means and once the defendant accepted and
acknowledged receipt of the above-mentioned amount, the
defendant cannot evade or abdicate his obligations, and allowing
defendant to do the same shall be contravention of the principles of
equity and estoppel. The plaintiff further restates and reaffirms the
content of paragraph no.2 of the plaint.

3. That the contents of paragraph no.3 of the written statement needs

no reply as the same is correct and admitted.

4. That the contents of paragraph no.4 and 5 of the written statement

are incorrect and misleading, hence vehemently denied. It is
specifically denied that the agreement to sell is not in existence. It is
submitted that the paragraph no. 4, 5, 6 and 7 of the plaint are the
terms of the aforesaid agreement which could be perused from the
list of annexures. It is further submitted that paragraph no. 8, 9, 10
and 11 of the plaint are the details of payment which the plaintiff
 paid to the defendant in furtherance of the aforesaid agreement and
its authenticity can be verified from the perusal of list of annexures.
It is further submitted that the aforesaid agreement is duly
registered as per process of law and its effect and legality cannot be
extinguished as per wishes and whims of the defendant. The plaintiff
restates and reaffirms the content of paragraph no. 4, 5 and 6 of the
plaint.

5. That the contents of paragraph no.6 of the written statement are

incorrect and misleading, hence vehemently denied. It is submitted
that the contents of paragraph no. 12, 13 and 14 of the plaint are
self-evident and their authenticity can be verified from the list of
annexures. The plaintiff restates and reaffirms the content of
paragraph no. 12, 13 and 14 of the plaint.

6. That the contents of paragraph no.7 of the written statement are

incorrect and misleading, hence vehemently denied. It is specifically
denied that no cause of action has ever been accrued to institute the
instant suit and further that this Hon’ble Court has got no jurisdiction
to try the instant suit. It is also specifically denied that the valuation
and court fee paid thereon is based on fiction and fantasy of the
plaintiff. It is further specifically denied that the suit has not been
incorrectly valued and court fee paid therein is deficient in the eyes
of the law. The plaintiff restates and reaffirms the content of
paragraph no. 15 to 19 of the plaint.

PARAWISE REPLY TO ADDITIONAL PLEAS:

7. That the contents of paragraph no. 8 of the written statement are

incorrect and misleading, hence vehemently denied. It is specifically
denied that the suit is not maintainable and tenable in the eyes of
the law. It is submitted that the plaintiff has genuine cause of action
against the defendant which has been specified in the plaint. The
plaintiff restates and reaffirms the content of paragraph no. 18 of the
plaint.

8. That the contents of paragraph no. 9 of the written statement are

incorrect and misleading, hence vehemently denied. It is specifically
denied that the suit for specific performance is not at all
 maintainable because there is no such agreement to sell. It is
submitted that the defendant had clearly executed an agreement to
sell in the favour of the plaintiff which has been annexed with the
plaint. It is further denied that the aforesaid agreement was
conditional agreement to sell and the terms and conditions of which
had not been complied with by the plaintiff. It is submitted that as
per the terms and conditions of the aforesaid agreement, the
obligation of plaintiff was to pay the amount stated therein to the
defendant which he has complied with and the proof of such
payment is also attached with the plaint. It is further submitted that
all the submissions of the defendant are merely an attempt to evade
his obligations under the aforesaid agreement to sell and take undue
advantage of the plaintiff.

9. That the contents of paragraph no. 10 of the written statement are

incorrect and misleading, hence vehemently denied. It is specifically
denied that notice of any kind had not been served on the
defendant. It is submitted that the plaintiff had duly served the
notice on the defendant which has been attached with the plaint as
well as the postal receipt. The plaintiff restates and reaffirms the
contents of paragraph no. 13 and 14 of the plaint.

10. That the contents of paragraph no.11 and 12 of the written

statement are incorrect and misleading, hence vehemently denied. It
is specifically denied that due to dishonour of Cheque No. 002789
dated 08.07.2010, the proposal and acceptance could not
completely take place between the plaintiff and defendant. It is
submitted that while it is correct that the above-mentioned cheque
was returned, the plaintiff fulfilled his obligation by paying the
equivalent amount of ₹ 10,00,000/- (Rupees Ten Lakhs Only) in cash
and which has been duly acknowledged by the defendant and
attested by two competent witnesses, one of whom is defendant’s
son, Shri Vikram Somani, vide a receipt which has been attached
with the plaint. It is submitted that the defendant had clearly
acknowledged accepting the above-mentioned amount in lieu of
purchase of scheduled property.
It is further submitted that it is clear from perusal of the notices
dated 01.04.2011, 04.02.2012 and 12.03.2013 sent by the
defendant that the defendant had himself in aforesaid notices
 accepted that the aforesaid agreement shall be valid upon payment
of equivalent amount by some other mode, and further the
acceptance of the cash provided by the plaintiff to the defendant,
duly acknowledged in the receipt, further signifies his acceptance
that the aforesaid agreement to sell is valid on account of due
payment of the full amount.

11. That the contents of paragraph no. 13 of the written statement

are incorrect and misleading, hence vehemently denied. That the
defendant had drawn attention to paragraph no. 8 at page 10 of the
aforesaid agreement as per which if the defendant fail to whole
amount received from plaintiff within three years of aforesaid
agreement, then the defendant shall be bound to execute sale deed
for the scheduled property in the favour of the plaintiff. It is
specifically denied that since the plaintiff had not paid the entire
amount, the defendant is not bound to comply with the agreement.
It is submitted that the plaintiff fulfilled his obligation by paying the
equivalent amount of ₹ 10,00,000/- (Rupees Ten Lakhs Only) in cash
and which has been duly acknowledged by the defendant and
attested by two competent witnesses, one of whom is defendant’s
son, Shri Vikram Somani, vide a receipt which has been attached
with the plaint. It is submitted that the defendant had clearly
acknowledged accepting the above-mentioned amount in lieu of
purchase of scheduled property. It is further specifically denied that
the agreement to sell is not in existence due to above-mentioned
reason and therefore, the present suit is not maintainable. It is
submitted that the defendant, by accepting the cash payment of ₹
10,00,000/- (Rupees Ten Lakhs Only) in cash, had implicitly accepted
and consented to the terms of the aforesaid agreement and
therefore cannot evade his obligation to execute the sale deed in
favour of the plaintiff.

12. That the contents of paragraph no.14 of the written statement are
incorrect and misleading, hence vehemently denied. It is specifically
denied that the plaintiff has not paid attention to the notices and not
showed his readiness and willingness in performance of aforesaid
agreement to sell. It is submitted that the plaintiff, on becoming
aware that the payment has not been made through cheque, offered
the defendant ₹ 10,00,000/- (Rupees Ten Lakhs Only) in cash, which
 has been duly acknowledged by the defendant to be for the
purchase of the scheduled property. It is humbly submitted that
despite receiving the above-mentioned amount and utilizing the
same for his own gain, the defendant is blatantly trying to mislead
this Hon’ble Court by making false and fabricated allegations on the
plaintiff. It is pertinent to mention herein that the defendant had
admitted to the existence of the agreement to sell and in none of
these notices, the defendant had informed the plaintiff that the
agreement to sell stands cancelled. It is submitted that the
defendant had issued the notices to call upon the plaintiff to pay the
above-mentioned amount through some other means and once the
defendant accepted and acknowledged receipt of the above-
mentioned amount, the defendant cannot evade or abdicate his
obligations, and allowing defendant to do the same shall be
contravention of the principles of equity and estoppel.

13. That the contents of paragraph no.15 of the written statement are
incorrect and misleading, hence vehemently denied. It is specifically
denied that the plaint is not maintainable in the eyes of law because
it is not in compliance of mandatory provision of Order 6 Rule 2(3) of
the Code of Civil Procedure, 1908. It is submitted that the Plaintiff
has duly complied with all provisions of the Code of Civil Procedure,
1908, and further there is no provision for questioning
maintainability of the suit on the basis of above-mentioned provision.
That the defendant must be put to strict proof for the same.

14. That the contents of paragraph no.16 of the written statement are
incorrect and misleading, hence vehemently denied. It is specifically
denied that the relief claimed are based on agreement to sell and
are not liable to be granted due to aforesaid agreement being not in
existence due to non-compliance of its terms and conditions. It is
submitted that the aforesaid agreement to sell had been duly
executed and registered by the plaintiff and the defendant and
consequently binding on both the parties. It is further submitted that
defendant cannot wish away the existence of the aforesaid
agreement to sell because he does not want to fulfil his obligations
under the agreement despite taking advantage of his privileges and
accepting and utilizing money paid by the plaintiff for his personal
use. The plaintiff restates and reaffirms the contents of the plaint.
15. That the contents of paragraph no.16A of the written statement
are incorrect and misleading, hence vehemently denied. It is
specifically denied that since the time is of the essence of the
contract and the suit filed by the plaintiff is not within time, hence
the suit filed by the plaintiff is barred by time and is liable to be
dismissed. It is submitted that while it is true that the aforesaid
agreement was executed on 08.07.2010 and the plaintiff has filed
this suit on 14.08.2013, the cause of action in favour of the plaintiff
arose only first on 09.07.2013, when the plaintiff called upon the
defendant to be present in the registry office to get the sale deed
executed, and further on 15.07.2013, which was agreed date for
execution of sale deed and when the defendant was to be present at
registry office to execute the sale deed, which defendant failed to
comply with and due to such non-compliance and breach of
aforesaid agreement, the cause of action finally arose in favour of
the plaintiff. Clause 54 of the Schedule of the Limitation Act, 1963,
clearly specifies that the period of limitation for filing suit for specific
performance of contract is three years from “the date fixed for the
performance, or, if no such date is fixed, when the plaintiff has
notice that performance is refused.” It is submitted that on perusal
of the aforesaid section and facts and circumstances of the case, it is
clear that the cause of action accrued in the favour of plaintiff on
15.07.2013 and upon the notice of refusal of the defendant, by his
absence, the plaintiff filed the present suit on 14.08.2013, which is
within the limitation period prescribed by law.

16. That the contents of paragraph no.16B of the written statement

are incorrect and misleading, hence vehemently denied. It is
specifically denied that the suit is also barred under Order 7 Rule 11
of the Code of Civil Procedure, 1908, because no cause of action has
accrued in favour of the plaintiff and that the plaintiff has not shown
the readiness and willingness to perform the part of the contract,
hence the suit is liable to be dismissed.
It is submitted that the aforesaid agreement was executed on
08.07.2010 and the plaintiff has filed this suit on 14.08.2013, the
cause of action in favour of the plaintiff arose only first on
09.07.2013, when the plaintiff called upon the defendant to be
present in the registry office to get the sale deed executed, and
 further on 15.07.2013, which was agreed date for execution of sale
deed and when the defendant was to be present at registry office to
execute the sale deed, which defendant failed to comply with and
due to such non-compliance and breach of aforesaid agreement, the
cause of action finally arose in favour of the plaintiff. It is submitted
that above-mentioned facts and circumstances clearly specified the
grounds of cause of action.
It is further submitted that the plaintiff was always ready and
willing to perform his obligations under the aforesaid agreement
which is evident by his payment to the defendant in advance, the
details of which the plaintiff has specified in the plaint. The plaintiff
restates and reaffirms the contents of the plaint.

17. That the contents of paragraph no.17 of the written statement are
incorrect and misleading, hence vehemently denied. It is specifically
denied that the plaint does not disclose full details of aforesaid
agreement to sell or what performance is prayed to be decreed. It is
submitted that the paragraph no. 4 to 7 clearly outlines the terms of
the agreement and furthermore the aforesaid agreement to sell has
been attached with the plaint. It is humbly submitted that when the
aforesaid agreement has been provided as evidence then there is no
need to reproduce all the terms of the agreement in the plaint and
furthermore there is no provision in any law specifying such
requirement. The plaintiff restates and reaffirms the contents of the
plaint.

18. That the contents of paragraph no.18 of the written statement are
incorrect and misleading, hence vehemently denied. It is specifically
denied that the plaint is not maintainable in the eyes of law because
it is not in compliance of mandatory provision of Order 7 Rule 3 of
the Code of Civil Procedure, 1908 and is liable to be dismissed. It is
submitted that the Plaintiff has duly complied with all provisions of
the Code of Civil Procedure, 1908, including the above-mentioned
provision and further there is no provision for dismissing the suit on
the basis of above-mentioned provision. That the defendant must be
put to strict proof for the same.

19. That the contents of paragraph no.19 and 20 of the written

statement are incorrect and misleading, hence vehemently denied. It
 is specifically denied that the relief does not disclose what document
is to be specifically performed, no detail or description of document
under specific performance is mentioned and therefore the relief
should not be granted. It is further specifically denied that the relief
has not been claimed specifically and thus the suit is not
maintainable. It is submitted that the plaint has to be read in its
entirety and the contents of the plaint cannot be reiterated in the
relief and furthermore there is no provision for dismissing the suit or
not granting relief on the basis of above-mentioned grounds.

20. That the contents of paragraph no. 21 of the written statement

are incorrect and misleading, hence vehemently denied. It is
submitted that the above-mentioned paragraph of the written
statement is in the nature of prayers before this Hon’ble Court,
which is wrong, incorrect, frivolous and hence, specifically denied in
toto and strongly opposed in view of the facts and circumstances
stated herein.

In view of the aforesaid submissions, facts and circumstances of the

present case, it is most respectfully prayed that this Hon’ble Court may
graciously be pleased to reject the defence of the defendant and to
decree the suit in favour of the plaintiff by allowing the reliefs sought in
the plaint.
PLAINTIFF

FILED THROUGH COUNSEL

PLACE: KANPUR
DATED: 05.01.2024