Express Towers Pvt. Ltd. & Anr. vs Mohan Singh And Ors. on 24 July, 2014

[Cites 16, Cited by 5]

Delhi High Court

Express Towers Pvt. Ltd. & Anr. vs Mohan Singh And Ors. on 24 July, 2014

1. This suit for specific performance, declaration alongwith perpetual and mandatory injunction has been filed by the Plaintiff (Express Towers Pvt. Ltd) through its Managing Director (R.C.Goyal), who has been authorised to sign and verify the plaint.

2. According to the averments made in the Plaint, Defendants No.1 and 2 (Late Shri Mohan Singh and Smt. Jeet Kaur, who were husband and wife) were the exclusive owners of Property No.B-7/118, Safdarjung Enclave Extension, New Delhi. On 21.05.1987, they entered into an Agreement to Sell in respect of the suit property with the Plaintiff CS(OS) No.1578/2002 Page 1 of 24 No.1 for a total consideration of Rs.23,50,000/-. A sum of Rs.1,00,000/- was paid by the Plaintiff to the Defendants. On 27.05.1987, the Plaintiff and Defendants No.1 and 2 made an application in Form 37-I u/s 269UC of the Income Tax Act, 1961 (the Act) to the appropriate authority for obtaining a 'No Objection Certificate' for sale of the disputed property. The appropriate authority, without giving any opportunity to show cause to the Plaintiff and Defendants No.1 and 2 as to why the suit property should not be acquired, passed an order dated 10.07.1987 for pre-emptive purchase of the suit property by the Central Government. On 06.08.1987, the Plaintiff filed a writ petition being WP (C) No.2275/1987 for quashing of the order dated 10.07.1987. By an order dated 26.08.1987, on an application moved by the Plaintiff, Delhi High Court passed an interim order directing the possession of appropriate authority not to be disturbed and asking the Income Tax Department to maintain the property in the same condition and not to create any third party interest therein.

3. It is averred that Defendant No.3 claims to have purchased the suit property by virtue of a Sale Deed dated 30.09.1988 for a consideration of Rs.2,00,000/-. Further, on 18.09.2000 and 22.09.2000, two Sale CS(OS) No.1578/2002 Page 2 of 24 Deeds were made in favour of Defendant No. 5 by Defendant No. 3 and his power of attorney holder Defendant No. 4 for a sale consideration of Rs.4,00,000/- each. It is alleged that Defendant No.5 also got the property mutated in the house tax record in his name.

4. It is alleged that on 29.07.1992, Defendants No.1 and 2 received the balance consideration of Rs.22,50,000/- from the appropriate authority. Same was recorded in the Court order and the property was directed to remain in possession of Income Tax Department only till the disposal of that Writ Petition.

5. By an order dated 01.03.1993, the Delhi High Court allowed the writ petition and the order dated 10.07.1987 regarding pre-emptive purchase of the property was set aside and the matter was remanded back to the appropriate authority for fresh decision on the basis of the Supreme Court decision in C.B. Gautam v. Union of India & Ors. (1993) 1 SCC 78, as opportunity of being heard had not been given to both the seller and the buyer before passing of pre-emptive purchase order by the appropriate authority. It is stated that in the writ petition Defendants No.1 and 2 did not ask for possession of the property but only asked for payment of interest on delayed payment. The Court CS(OS) No.1578/2002 Page 3 of 24 allowed Defendants No.1 and 2 to raise the aforesaid plea before the appropriate authority.

6. It is averred that on 28.05.1993, the appropriate authority again passed a pre-emptive purchase order. The Plaintiff challenged the order dated 28.05.1993 by virtue of a writ petition being Writ Petition (C) No. 4357/1993. It is alleged that Defendants No.1 and 2 did not contest the writ petition as they had received the entire sale consideration and were not interested in challenging the pre-emptive purchase order and hence, they were impleaded as Respondents. In the writ petition, an interim order was passed to the effect that in case the auction of the acquired property is held, the same will not be confirmed except with the permission of Delhi High Court.

7. On 07.10.1993, the auction of the suit property was held and a bid was given by the Cement Corporation of India for a sum of Rs.78,10,000/-. On CM No.7683/1993 being filed in the earlier stated writ petition by the Delhi High Court directed the possession not to be handed over to the auction purchaser. It is stated that by an order dated 12.04.1994, Writ Petition (C) No.4357/ 1993 was referred to Division Bench along with a bunch of other Writ Petitions.

CS(OS) No.1578/2002 Page 4 of 24

8. On 01.02.1996, in spite of order dated 01.03.1993 passed by the Delhi High Court directing Defendants No.1 and 2 to raise the claim of interest before the appropriate authority, they filed CM No.830/1996 in WP (C) No.2275/1987 praying for grant of interest on delayed payment. The same was dismissed by Delhi High Court. Civil Appeal No.7371/1997 preferred by Defendants No.1 and 2 against this order was also dismissed by the Supreme Court by an order dated 17.10.1997. Thereafter, by an order dated 17.12.1997, the writ petition preferred by the Plaintiff was allowed and the Income Tax Department was directed to issue 'NOC' to the parties including the Plaintiff. The order dated 17.12.1996 was challenged by the appropriate authority before the Supreme Court in Civil Appeal No.6056/1998 titled as Deputy CIT v. M/s. Express Towers Pvt. Ltd. and Ors. By an order dated 10.05.2001, the said appeal was dismissed.

9. It is the case of the Plaintiff that thereafter, the Plaintiff made various efforts to get the possession of the property from the Income Tax Department. Ultimately, on 14.09.2001, the Plaintiff filed Writ Petition (Civil) No.5654/2001, which was allowed by an order dated 12.12.2001 and the Plaintiff was directed to deposit the balance sale consideration of Rs.22,50,000/- with the appropriate authority and the CS(OS) No.1578/2002 Page 5 of 24 appropriate authority was directed to issue 'NOC' and deliver possession of the property along with Title Deeds, if any, to the Plaintiff.

10. The Plaintiff claims that in compliance of the order, the entire amount was deposited with the appropriate authority and possession of the suit property was handed over to the Plaintiff along with keys, Title Deeds, Completion Certificate and the Sanctioned Plan. Consequently, Defendants No.1 and 2 filed an application being CM No.1404/2002 in WP (C) No.5654/2001 for modification of order dated 12.12.2001. The application preferred by Defendants No.1 and 2 was dismissed in limine. Review Application No.2299/2002 preferred by Defendants No.1 and 2 was also dismissed by an order dated 16.03.2002. Thereafter, the Plaintiff came to know about the alleged sale of the suit property to Defendants No.3 to 5.

11. On 25.08.2002, the Plaintiff's workers informed that some persons who were not disclosing their names had threatened to kill them and to forcibly evict them from the suit property. The Plaintiff made inquiries from the MCD and only then came to know about the mutation of the property in the name of Defendant No.5 in spite of the order of appropriate authority for pre-emptive purchase passed on CS(OS) No.1578/2002 Page 6 of 24 10.07.1987. Plaintiff alleges that Defendant No.3 claims title on the basis of a Sale Deed dated 19.09.1988. On inquiry from the concerned Sub-Registrar, it was revealed that no such Sale Deed was ever registered in the records of Sub-Registrar, Kashmere Gate. Moreover, the two subsequent Sale Deeds in respect of the suit property could not have been registered at the office of Sub-Registrar, Kapashera as the suit property was not within its jurisdiction.

12. The Plaintiff claims that Defendants No.1 and 2 had no right, title or authority to make sale of the suit property as the property had vested in the Central Government free from all encumbrances under Section 269 UE of the Act by virtue of order dated 10.07.1987 and the alleged Sale Deed dated 30.09.1988 is also hit by Section 230A and 269UC of the Act. It is stated that the averment in the Sale Deed dated 30.09.1988 that vacant and peaceful possession of the property was delivered by the vendors (Defendants No.1 and 2) could not be true as the possession vested with the Income Tax Department. Similarly, averments made in the two subsequent Sale Deeds dated 18.09.2000 and 22.09.2000 about handing over of the original documents to Defendant No.5 also could not be true as the original documents were in possession of the Income Tax Department.

CS(OS) No.1578/2002 Page 7 of 24

13. The Plaintiff claims that since the Plaintiff has already deposited the sale consideration with the appropriate authority in pursuance of the order of the Delhi High Court dated 12.12.2001, the Plaintiff is entitled to a decree of specific performance of the Agreement to Sell dated 21.05.1988 against Defendants No.1 and 2. Following further reliefs are sought by the Plaintiff against the Defendants:-

(a) A decree of specific performance of Agreement to Sell dated 21.05.1988 by asking Defendants No. 1 and 2 to execute and register a sale deed in their favour;

(b) A decree of declaration declaring Sale Deed dated 30.09.1988 by Defendants No. 1 and 2 in favour of Defendant No. 3 null, illegal and void;

(c) A decree of declaration declaring sale deeds dated 18.09.2000 and 22.09.2000 by Defendants No.3 and 4 in favour of Defendant No. 5 null, illegal and void;

(d) An order directing CBI/Vigilance Enquiry against Officials involved in the fraud and forgery; and

(e) A decree of perpetual injunction against defendants restraining them from interfering in plaintiffs' peaceful use, occupation and enjoyment of the disputed property.

CS(OS) No.1578/2002 Page 8 of 24

14. Defendants No.1 and 2 contested the suit by way of filing joint written statement. They have taken up a plea that on 29.08.1987 they left India for USA. They visited India only on 10.09.1991 after a period of more than four years and therefore, they could not have signed or executed the Sale Deed dated 30.09.1988 (as claimed by Defendants No.3 to 5). Defendants No.1 and 2 denied having any knowledge about execution of the Sale Deeds dated 18.09.2000 and 22.09.2000 by Defendant No.3 in favour of Defendants No.4 and 5. They have stated that the suit for specific performance, declaration, perpetual and mandatory injunction was not maintainable against them as the Agreement to Sell between them and the Plaintiff had already expired. It was stated that, in fact possession of the suit property which was taken by the appropriate authority along with documents ought to have been handed over back to Defendants No.1 and 2 only and not to the Plaintiff. It is stated that since the Plaintiff has taken over the property directly from the Income Tax Department without involving the Defendants, the suit for specific performance was not maintainable against Defendants No.1 and 2. The Defendants No.1 and 2 therefore, prayed for dismissal of the suit.

CS(OS) No.1578/2002 Page 9 of 24

15. Defendant No.3 who claimed a Sale Deed dated 30.09.1988 from Defendants No.1 and 2 in his favour and Defendant No.5 who claim the Sale Deeds dated 18.09.2000 and 22.09.2000 in his favour from Defendants No.3 and 4 preferred not to contest the suit. They were ordered to be proceeded ex-parte by this Court vide order dated 11.02.2004.

16. The suit for specific performance is also resisted by Defendants No.1 and 2 on the ground that the Agreement to sell was entered into way back in the year 1987 and its enforcement will cause undue hardship to the Defendants.

17. By order dated 09.10.2006, 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 21.5.1987? OPP

2. Whether the suit for specific performance of the agreement to sell is not maintainable as the agreement to sell made between the defendants and the plaintiff has already expired and there is no new agreement between the parties after the dismissal of Civil Appeal No.6056/1998 by the Hon'ble Supreme Court? OPD

3. Whether the suit is barred by the provisions of section 23 of the Contract Act? OPD

4. Whether the defendants No.1 and 2 have received the entire sale consideration in August, 1992 and if so, its effect? OPP CS(OS) No.1578/2002 Page 10 of 24

5. Whether the sale deed dated 30th September, 1988 is forged and fabricated and if so, its effect? OPP

6. Whether the sale deeds dated 18th September, 2000 and 22nd September,2000 are forged and fabricated and if so, its effect? OPP

7. Whether the plaintiff is entitled to the relief of perpetual injunction as prayed for in the plaint? OPP

8. Relief."

18. During evidence, the Plaintiff examined six witnesses. No evidence was produced by Defendants No.1 and 2. In fact, Defendant No.1 had expired on 14.05.2008. An application for bringing on record the legal heirs of deceased Defendant No.1 was moved and Defendant No.2, who is the wife of Defendant No.1, was directed to reveal the details of any other legal heirs of deceased Defendant No.1.

19. Despite repeated directions, Defendant No.2 failed and neglected to disclose the names of any other legal heirs of deceased Defendant No.1. Therefore, by an order dated 05.09.2013, Defendant No.2 was permitted to represent the estate of deceased Defendant No.1, without prejudice to the rights of other legal heirs of deceased Defendant No.1.

20. Since no evidence was being produced by Defendant No.2, the evidence was closed by order dated 18.02.2014.

CS(OS) No.1578/2002 Page 11 of 24

21. Issue wise findings are as under:-

ISSUE No.3

22. I shall like to take Issues No.1 and 2 a little later as the decision on Issues No.1 and 2 would be dependent on this issue and certain other issues framed by the Court.

23. PW-1 has proved an Agreement to Sell dated 21.05.1987 Ex.PW-1/2 whereby Defendants No.1 and 2 had agreed to sell the suit property in favour of the Plaintiff for a consideration of Rs. 23,50,000/-. It has not been stated by Defendants No.1 and 2 as to how the Agreement to sell is forbidden by law as would defeat the provisions of any law or is fraudulent or implies injury or is immoral or opposed to public policy. Since the Plaintiff and Defendants No.1 and 2 applied for grant of 'NOC' under Section 269UC of the Act to the Income Tax Department, the appropriate authority issued a notice for pre-emptive purchase. The pre-emptive purchase under Section 269UD of the Act is provided by the statute. Thereafter, Defendants No.1 and 2 received the amount of Rs.22,50,000/- on 29.07.1992 from the appropriate authority which in turn was paid by the Plaintiff to the appropriate authority in terms of the order dated 12.12.2001 passed by this Court. Thus, it cannot be said that the suit is barred under provisions of CS(OS) No.1578/2002 Page 12 of 24 Section 23 of the Contract Act. The issue is accordingly decided against Defendants No.1 and 2.

ISSUE No.4

24. Defendants No.1 and 2 have admitted the receipt of the balance sale consideration of Rs.22,50,000/- from the appropriate authority by order dated 29.07.1992. The said amount of Rs.22,50,000/- was deposited by the Plaintiff with the appropriate authority by an order of this Court dated 12.12.2001. Thus, it is evident that the entire sale consideration has been received by Defendants No.1 and 2. ISSUES No.5 & 6

25. The Plaintiff has examined Om Prakash Chopra (PW-6) from the office of the Sub-Registrar-II, Kashmere Gate, Delhi. On the basis of the record, this witness deposed that the Sale Deed at Serial No.16998 dated 30.09.1988 pertains to Flat No.158 in Block C-58, Pankha Road, Delhi in the name of one Makhan Lal Kaul, son of Shri Raghav Kaul. Otherwise also, Defendants No.1 and 2 in their written statement have taken up a plea that on 30.09.1988, they were abroad and therefore, could not have executed a Sale Deed in favour of Defendant No.3 on the said date. Defendants No.3 to 5 have failed to produce any CS(OS) No.1578/2002 Page 13 of 24 evidence to prove the Sale Deed dated 30.09.1988. It is therefore, established that the Sale Deed dated 30.09.1988 is a forged document. Consequently, the Sale Deeds dated 18.09.2000 and 22.09.2000 executed on the basis of the Sale Deed dated 30.09.1988 are of no consequence. The issues are accordingly decided in favour of the Plaintiff and against Defendants No.3 to 5.

ISSUES No.1,2 & 7

26. As stated earlier, Agreement to Sell dated 21.05.1987 Ex.PW-1/2 has been duly proved by virtue of which the Plaintiff had agreed to purchase and Defendants No. 1 and 2 had agreed to sell the suit property to the Plaintiff for a consideration of Rs.23,50,000/-. A sum of Rs.1,00,000/- was received as earnest money. Rest of the amount was to be paid on obtaining Income Tax Clearance Certificate from the authorities concerned. In terms of the Agreement to Sell, the Sale Deed was to be executed in favour of the vendee within a period of sixty days after obtaining the said permission, failing which the vendee was entitled to get the Sale Deed registered through the Court of law by specific performance of the Agreement to Sell. The Agreement to Sell Ex.PW-1/2 and receipt of sum of Rs.1,00,000/- towards the earnest money by receipt Ex.PW-2/3 was not even CS(OS) No.1578/2002 Page 14 of 24 disputed by Defendants No.1 and 2. The only plea raised by Defendants No.1 and 2 is that the current value of the property is much more than what was agreed in the Agreement to Sell which was entered into way back in the year 1987 and thus, enforcement of the same would cause undue hardship to Defendants No.1 and 2.

27. In this connection, it would be important to note that Defendants No.1 and 2 were under an obligation to execute the Sale Deed within a period of sixty days after the grant of permission by the appropriate authority. On 27.05.1987, Plaintiff and Defendants No.1 and 2 made an application in Form 37-I under Section 269 UC of the Act for obtaining NOC from the appropriate authority.

28. The NOC was refused by the appropriate authority by an order dated 10.07.1987 and an order for pre-emptive purchase of property by the Central Government was passed. Defendants No.1 and 2 did not take any step to challenge the order. It was only the Plaintiff who was conscious of his right and filed a series of writ petitions to enforce his right. On acquisition of the property under pre-emptive purchase, Defendants No.1 and 2 were only entitled to receive the balance consideration, which in fact was duly received by Defendants No.1 and 2 on 29.07.1992. Also, Defendants No.1 and 2 only claimed CS(OS) No.1578/2002 Page 15 of 24 interest on delayed payment by virtue of CM No.830/1996 filed in WP (C) No.2275/1987 and not possession of the suit property, which was rejected.

29. In Nirmala Anand v. Advent Corporation (Pvt.) Ltd. & Ors, (2002) 5 SCC 481 while referring to Gobind Ram v. Gian Chand, (2000) 7 SCC 548, and M.L. Devender Singh & Ors. v. Syed Khaja, (1973) 2 SCC 515, the Supreme Court laid down that the Courts are not bound to grant specific performance merely because it is lawful to do so unmindful of equities to be balanced and despite serious inequities that may necessarily result by granting the same. In Paras 17 to 22 in Nirmala Anand, the Supreme Court held as under:-

"17. On a careful consideration of the decisions brought to our notice, it can safely be recorded that it is too late in the day to deny a claim for specific performance of an agreement to sell an immovable property in existence or to be brought into existence according to the specification agreed to merely because the vendor had to make applications or move the concerned and competent authorities to obtain permission/sanction or consent of such authorities to make the sale agreed to be made an effective and full-fledged one. The principles laid down in the above decisions clearly indicate that unless the competent authorities have been moved and the application for consent/permission/sanction has been rejected once and for all and such rejection made finally became irresolutely binding and rendered impossible the performance of the contract resulting in frustration as envisaged under Section 56 of the Contract Act, the relief cannot be refused for the CS(OS) No.1578/2002 Page 16 of 24 mere pointing out of some obstacles. Since the agreement to sell, in this case, relates to an immovable property, which indisputably is of special value, having regard to its location and special importance of the area, it cannot be readily assumed or taken for granted that the respondents opposing the claim of the appellant have discharged their burden to displace the initial statutory presumption engrafted in Explanation (i) to Section 10 of the Specific Relief Act. Even the so-called imponderables noticed both by the learned Single Judge and by the Division Bench of the High Court, if could not stand in the way of or did not impede the assignment of the rights in the building and the interests in the land in favour of the seventh respondent under the deed of assignment dated 14-10-1994, it is beyond comprehension as to what could legitimately be pleaded against for a similar or identical relief being granted in the suit by compelling transfer of such and similar rights to and in favour of the appellant in respect of Flat No. 71 on the 7th floor, agreed to be sold which she is prepared to receive and take upon herself at her risk and responsibility even in the complete (sic incomplete) shape as it stands unless it is that Respondents 1 and 2 are trying to avoid their obligations and liabilities to suit their own convenience, wishes and welfare taking advantage of the steep appreciation in the value of real estate in the locality in question. The competent courts of justice, which exercise not only statutory powers, but jurisdiction in equity, should not be mere onlookers of an attempt by one of the parties to unreasonably, unjustifiably and unethically try to evade specific performance in order to make profit at the expense of the other party to the contract, who, as concurrently found by the learned Single Judge as well as the Division Bench of the High Court, was always ready and willing to perform the remaining part of her contract.

18. Not only Respondents 1 and 2, who have agreed to sell, but also the seventh respondent and others, particularly the State Government as well as the Municipal Corporation, were heard. During the course of listing of the appeal for hearing on several earlier occasions, it appears that representations have been made that there is every CS(OS) No.1578/2002 Page 17 of 24 possibility of the Government as well as the Municipality respectively, renewing the lease and revalidating the building plans in question. Apparently, having regard to such positive hopes and constructive moves as also the possibility of such renewal of lease and revalidation of the plans, already transfer of the entire building and the rights in the same as it stands as well as the interests and rights in the land, except Flat No. 71 agreed to be sold to the appellant, has been made to the seventh respondent, subject to the terms and conditions as are stipulated in the deed of assignment dated 14-10-1994. The claim of the appellant could not, therefore, be unceremoniously rejected merely because in this case it is the Court, which has to order the specific performance. What the parties themselves could do or perform, if they wish or so desire, may be compelled to be performed by the mandate of the competent court also and the court cannot be held to be disabled or disentitled in law to direct the parties to perform their obligations, express and implied by adhering to the solemn undertaking under the contract between the parties. While granting such a decree for specific performance, it can always be made conditional and dependent upon the renewal of the lease and revalidation of the building plans. In my view, there is no justification whatsoever in law or on facts on record to deny the relief to the appellant when it could possibly and legitimately be directed and rendered executable, subject to the competent authorities so according or making the required orders in this regard, denying the right of execution of the decree at the same time, if the competent and concerned authorities refused or declined to grant renewal of the lease and/or revalidate the building plan rendering it wholly impossible of performance of the contract by Respondents 1 and 2. So much, on the position of law as to the powers of the competent court to grant even a conditional decree by way of specific performance. But, at the same time, this Court has also repeatedly reiterated the position of law that courts are not bound to grant specific performance merely because it is lawful to do unmindful of equities to be balanced and despite serious inequities that may necessarily result by granting the same. These aspects have been highlighted even in the judgments noticed supra.

CS(OS) No.1578/2002 Page 18 of 24

19. In Sardar Singh v. Krishna Devi [(1994) 4 SCC 18] this Court held that Section 20(1) declaring the jurisdiction of courts to decree specific performance being discretionary, the court is not bound to grant such relief merely because it is lawful to do so and that the discretion of the court is to be exercised guided by sound and reasonable judicial principles, not arbitrarily. It was also cautioned that the court has to also take into account the circumstances of each case keeping in view the fact that the circumstances specified in Section 20 are illustrative and not exhaustive and that the plaintiff cannot succeed in obtaining an order of specific performance unless he is able to show sufficiently and clearly the existence of a contract that is valid and enforceable at law at the time when the order is sought.

20. In K. Narendra v. Riviera Apartments (P) Ltd. [(1999) 5 SCC 77] this Court reiterated that severe hardship may be a ground for refusing specific performance, even though it results from circumstances, which arise after the conclusion of this contract, which affect the person of the defendant and for which the plaintiff is in no way responsible. Adverting to inflationary increase in the value of properties and the relevance of the same in denying or granting the relief at paragraph 35 of the Report, it was observed as hereunder:

(SCC pp. 93-94) "Added to all this is the factum of astronomical rise in the value of the land which none of the parties would have forecontemplated at the time of entering into the agreement. We are not in the least holding that the consideration agreed upon between the parties was inadequate on the date of the agreement. We are only noticing the subsequent event. ... Upon an evaluation of the totality of the circumstances, we are of the opinion.... The contract though valid at the time when it was entered, is engrossed in such circumstances that the performance thereof cannot be secured with precision. The present one is a case where the discretionary jurisdiction to decree CS(OS) No.1578/2002 Page 19 of 24 the specific performance ought not to be exercised in favour of the respondents."

21. In K.S. Vidyanadam v. Vairavan [(1997) 3 SCC 1] B.P. Jeevan Reddy, J., speaking for this Court, observed at para 11 as hereunder: (SCC p. 9) "11. Shri Sivasubramaniam cited the decision of the Madras High Court in S.V. Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar [AIR 1952 Mad 389 : (1952) 1 MLJ 44] holding that mere rise in prices is no ground for denying the specific performance. With great respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the court by law. We cannot be oblivious to the reality -- and the reality is constant and continuous rise in the values of urban properties

-- fuelled by large-scale migration of people from rural areas to urban centres and by inflation."

22. In a recent pronouncement reported in V. Pechimuthu v. Gowrammal [(2001) 7 SCC 617] this Court observed that where the court is considering whether or not to grant a decree for specific performance for the first time the rise in the price of the land agreed to be conveyed may be a relevant factor in denying the relief of specific performance. Reference has also been made above to a decision of this Court in Gobind Ram v. Gian Chand [(2000) 7 SCC 548] wherein, in order to mitigate the hardship resulting to the vendor due to lapse of time and escalation of prices of urban property, further compensatory amount was ordered to be paid, even though in that case the trial court granted a decree for specific performance for consideration recited in the document and the balance of consideration was also deposited by the purchaser in full, thereon." CS(OS) No.1578/2002 Page 20 of 24

30. In the instant case, as noticed above, Defendants No.1 and 2 did not challenge the compulsory acquisition on the basis of the order dated 10.07.1987 passed by the appropriate authority. Defendants No.1 and 2 did not even take steps for recovery of the amount in pursuance of the acquisition order. It was only on the direction of this Court dated 26.08.1987 in pursuance of the Writ Petition (C) No.2275/1987 filed by the Plaintiff that the appropriate authority was directed to release the amount of Rs.22,50,000/-, i.e., the balance sale consideration in favour of Defendants No.1 and 2.

31. As stated earlier, Defendants No.1 and 2 only claimed interest for delayed payment initially. Therefore, in equity, at the most the Plaintiff can be directed to pay interest at the appropriate rate from the date of Agreement to Sell dated 21.05.1987 till the amount of Rs.22,50,000/- was released in favour of Defendants No.1 and 2 on 29.07.1992. Although, there is a great delay in the execution of the Sale Deed in favour of Plaintiff, yet the Plaintiff has already been handed over the Title Deeds and possession of the suit property by the appropriate authority in pursuance of the order dated 12.12.2001 passed by this Court in W.P. (C) No. 5654/2001. The conduct of the Plaintiff shows that the equities are highly balanced in its favour and CS(OS) No.1578/2002 Page 21 of 24 in favour and in view of his vociferous contest of the pre-emptive purchase and ultimate success in the writ petition, it is very much entitled to a decree for specific performance of the Agreement to Sell dated 21.08.1987 (Ex.PW-1/2). Issues No.1, 2 and 7 are hence decided in favour of the Plaintiff and against the Defendants. RELIEF

32. In view of my findings on the issues above, the suit of the Plaintiff is decreed:-

(a) by a decree of specific performance of Agreement to Sell dated 21.05.1987 directing Defendant No.2 to execute and register a Sale Deed in favour of the Plaintiff, subject to the Plaintiff paying interest @ 15% per annum from the date of execution of the Agreement to Sell i.e. 21.05.1987 till the payment of the balance consideration to Defendants No.1 and 2 by the appropriate authority i.e. 29.07.1992. The amount of interest as stated above, shall be deposited with the Registrar General of this Court within a period of two months and shall be released in favour of Defendant No.2 immediately. On deposit of the earlier said amount of interest, Defendant No.2 shall execute a Sale Deed in respect of the suit property i.e. B-7/118, CS(OS) No.1578/2002 Page 22 of 24 Safdarjung Enclave Extension, New Delhi, within a period of eight weeks, failing which the concerned Joint Registrar shall execute a Sale Deed for and on behalf of Defendant No.2 (Defendant No.1 being dead);

(b) by a decree of declaration declaring Sale Deed dated 30.09.1988 allegedly executed by Defendants No.1 and 2 in favour of Defendant No. 3 to be forged and hence, null and void;

(c) by a decree of declaration declaring Sale Deeds dated 18.09.2000 and 22.09.2000 by Defendants No.3 and 4 in favour of Defendant No.5 to be illegal, null and void and hence, of no consequence; and

(d) by a decree of perpetual injunction against Defendants restraining them from interfering in Plaintiff's peaceful use, occupation and enjoyment of the suit property.

33. The Plaintiff shall be entitled to costs of the suit from Defendants No.3 to 5.

34. This Court further directs the Commissioner of Police to register an FIR in respect of the forged Sale Deed dated 30.09.1988 and subsequent Sale Deeds dated 18.09.2000 and 22.09.2000 and to take appropriate action against the persons who may be found guilty. CS(OS) No.1578/2002 Page 23 of 24

35. The suit of the Plaintiff is decreed accordingly.

36. Pending applications also stand disposed of.

37. A copy of the order shall be sent to the Commissioner of Police for taking action as stated earlier.

38. The status report in respect of same shall be filed by the Commissioner of Police/DCP concerned, within a period of 12 weeks.

(G.P. MITTAL) JUDGE JULY 24, 2014 vk CS(OS) No.1578/2002 Page 24 of 24

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