Delhi District Court
Sanjay Mongia And Another vs . Smt.Inderjeet And Ors. on 29 May, 2019
CS No. 13125/16
Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
IN THE COURT OF VIKAS DHULL: ADDITIONAL DISTRICT
JUDGE01, TIS HAZARI COURTS (WEST), DELHI
Suit No. 13125/16
In the matter of :
1. Sanjay Mongia
S/o Sh.Kanhaiya Lal Mongia
R/o 32/15, Patel Nagar
New Delhi
2. Karan Chadha
S/o Sh.Kewal Chadha
R/o Plot No. 31/2930
West Patel Nagar
New Delhi.
... Plaintiffs
VERSUS
1. Smt.Inderjeet
W/o late Sh.Mohinder Singh Chhabra
Page: 1/48
CS No. 13125/16
Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
2. Ms.Jaswinder Kaur
D/o late Sh.Mohinder Singh Chhabra
3. Ms.Gurmeet Kaur
D/o late Sh.Mohinder Singh Chhabra
4. Ms.Harpreet Kaur
D/o late Sh.Mohinder Singh Chhabra
5. Mr.Tajinder Singh
S/o late Sh.Mohinder Singh Chhabra
6. Mr.N.Ravinder Pal Singh
S/o late Sh.Mohinder Singh Chhabra
7. Mr.Charanjeet Singh
S/o late Sh.Mohinder Singh Chhabra
All resident of 28/24, West Patel Nagar
New Delhi110008. ... Defendants
Date of institution of suit : 03.09.2012
Date on which file received from
the Hon'ble High Court of Delhi : 28.07.2016
Date on which judgment reserved : 08.05.2019
Date on which judgment pronounced : 29.05.2019
Page: 2/48
CS No. 13125/16
Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
JUDGMENT
1. Plaintiffs have filed the present suit for specific performance of the contract dated 04.08.2008 whereby late Mohinder Singh Chhabra (husband of defendant no.1 and father of defendants no.2 to
7) had agreed to sell his undivided share admeasuring 100 sq.yards to the plaintiffs out of total area of 200 sq.yards in premises no. 28/24, corner side, West Patel Nagar, New Delhi with roof/terrace rights (hereinafter referred to as suit property) for a total consideration of Rs.1,35,00,000/.
2. Plaintiffs had paid Rs.5 Lacs as earnest money and the balance consideration was required to be paid on or before 04.11.2009.
3. It was further averred in the suit that at the time of entering into sale, late Mohinder Singh Chhabra Page: 3/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
and his step sister Smt.Jasbir Kaur, both were ready and willing to enter into a deal with plaintiffs.
4. It was also disclosed by both of them that a civil litigation was pending between them and both of them assured to withdraw the said litigation as they had decided to sell their respective undivided portion to the plaintiffs. However, later on Smt.Jasbir Kaur retracted from selling her portion of suit property to plaintiffs. Further, since Smt.Jasbir Kaur had never entered into a written agreement to sell nor encashed the cheque of earnest money given to her, therefore, no relief was being claimed against her in the present suit.
5. It was further averred in the suit that late Mohinder Singh Chhabra further received a part of the sale consideration of Rs.10 Lacs from plaintiffs on 12.08.2008. However, after receiving the said Page: 4/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
amount of Rs.10 Lacs, late Mohinder Singh Chhabra disclosed that a Probate case filed by him was pending adjudication in the court and having regard to the said Probate case, a subsequent Memorandum of Understanding dated 12.08.2008 was entered into between plaintiffs and late Mohinder Singh Chhabra whereby it was agreed that plaintiffs would make balance payment of the sale consideration after the said court case was settled/withdrawn/compromised.
6. However, later on , plaintiffs came to know that said Probate case was not filed by late Mohinder Singh Chhabra but was filed by his sister Smt.Jasbir Kaur claiming that she has become the sole owner of the property in question by virtue of a Will executed by her late father.
7. Thereafter, plaintiffs had filed a suit for declaration and permanent injunction against late Mohinder Page: 5/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
Singh Chhabra and Smt.Jasbir Kaur. However, said suit against Smt.Jasbir Kaur was dismissed and since during the pendency of the case, Mohinder Singh Chhabra had expired, therefore, defendants no.1 to 7 were impleaded as defendants in the suit being legal heirs of late Mohinder Singh Chhabra.
8. In the said suit, defendants no.1 to 7 have admitted about agreement to sell and Memorandum of Understanding entered into between plaintiffs and late Mohinder Singh Chhabra. Later on, plaintiffs had withdrawn the suit on 23.02.2012 with liberty to file a suit for specific performance.
9. It was further averred that subsequently, the Probate case filed by Smt.Jasbir Kaur was dismissed. However, she had preferred an appeal before the Hon'ble High Court of Delhi.
10. It was further averred that despite repeated Page: 6/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
requests by plaintiffs to defendants, they have not complied with the agreement to sell and Memorandum of Understanding and accordingly, notice dated 12.04.2012 was issued but defendants failed to comply with the same. Accordingly, it was prayed in the suit that defendants be directed to receive the balance sale consideration and execute a sale deed in respect of suit property in favour of plaintiffs. In the alternative, it was prayed that in case, decree for specific performance of the contract can not be passed, then defendants be directed to return Rs.15 Lacs alongwith interest.
11. In the written statement filed by defendants, a preliminary objection was taken that the suit is bad for nonjoinder of necessary parties i.e. Smt.Jasbir Kaur and also on the ground of suit being barred by Limitation.
12. On merits, it was denied that any agreement to Page: 7/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
sell dated 04.08.2008 was entered into by late Mohinder Singh Chhabra with plaintiffs with regard to suit property. The receipt of money of Rs.5 Lacs was also denied. It was also denied that sale transaction was required to be complied with by 04.11.2009.
13. It was submitted in the written statement that present plaintiffs made a collusion with Smt.Jasbir Kaur, who had assured late Mohinder Singh Chhabra that she will withdraw her Probate case and late Mohinder Singh Chhabra is at liberty to sell the suit property and thereafter, unregistered agreement to sell was got prepared and after giving Rs.15 Lacs to late Mohinder Singh Chhabra, Smt.Jasbir Kaur did not withdraw the Probate case which was actually dismissed on 19.03.2011.
14. It was submitted that there was no possibility of late Mohinder Singh Chhabra settling the Probate Page: 8/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
case as plaintiffs were very well aware that it was Smt.Jasbir Kaur, who had filed the Probate case and not late Mohinder Singh Chhabra.
15. It was denied that plaintiffs approached defendants on number of occasions for completion of said transaction and they were ready and willing to make balance payment.
16. It was also submitted by defendants that late Mohinder Singh Chhabra had purchased a property by paying earnest money of Rs.15 Lacs to one Amar Singh Kataria R/o A Block, Paschim Vihar, New Delhi but since plaintiffs did not pay balance consideration, the earnest money of Rs.15 Lacs paid by late Mohinder Singh Chhabra for purchase of new property stood forfeited. Accordingly, a prayer was made to dismiss the suit.
17. In the replication filed by plaintiffs to the written statement of defendants, it was submitted Page: 9/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
that suit is not bad for nonjoinder of Smt.Jasbir Kaur. However, it was denied that plaintiffs were in collusion with Smt.Jasbir Kaur. It was also denied that suit is barred by law of limitation.
18. Plaintiffs had denied that late Mohinder Singh Chhabra had purchased the property by paying Rs.15 Lacs as earnest money to Amar Singh Kataria and since plaintiffs did not pay balance consideration, therefore, the earnest money was forfeited. It was reiterated that plaintiffs were ready and willing to perform their part of contract but it was the defendants, who were not willing to do so. Remaining averments of the plaint were reiterated and those stated in the written statement were denied.
19. From the pleadings, the following issues were framed vide order dated 08.10.2013 as under:
1. Whether the suit is bad for nonjoinder of Page: 10/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
necessary parties? If so, its effects. OPD
2. Whether the suit is barred by limitation? OPD
3. Whether there was any valid agreement of sell dated 12.08.2008 between the plaintiffs no.1 and 2 and late Mohinder Singh Chhabra and if so, its effects? OPP
4. Whether the plaintiff is entitled to the reliefs claimed? OPP
5. Whether the plaintiff is entitled to alternative relief of return of Rs. 15 Lacs or any other amounts with interest? If so, at what rate and for what period? OPP
6. Relief.
20. Thereafter, the matter was listed for plaintiff's evidence. In their evidence, plaintiffs had examined PW1 Sanjay Mongia and had relied upon the Agreement to Sell Ex.PW1/1, Memorandum of Page: 11/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
Understanding dated 12.08.2008 Ex.P4 and the certified copy of the previous suit filed by plaintiff against deceased defendant late Mohinder Singh Chhabra Ex.P1 and written statement filed by late Mohinder Singh Chhabra in the said suit Ex.P2.
21. The plaintiffs had also examined PW2 Sh.Kuldeep Kumar, who had produced the record of civil suit dated 671/08 filed by plaintiff against late Mohinder Singh Chhabra and the said witness proved the plaint and written statement of the said suit and the documents filed in the said suit. No other witness was examined by the plaintiffs. Accordingly, the plaintiffs evidence was closed.
22. Thereafter, the matter was posted for defendant's evidence. In defence evidence, defendant had examined DW1 Mrs Inderjeet, wife of late Mohinder Singh Chhabra. No other witness was examined. Accordingly, the defence evidence Page: 12/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
was closed.
23. I have heard Sh.T.S.Ahuja, Ld.counsel for plaintiffs and Sh.H.R.Jha, Ld.counsel for defendants. I have also perused the record.
24. It was submitted by Ld.counsel for plaintiffs that although plaintiffs have proved on record that they were ready and willing to perform their part of contract as per the agreement to sell Ex.PW1/1 but due to passing of orders by the court, performance of the contract entered into vide agreement to sell dated 12.08.2008 is not possible.
25. It was submitted that after entering into the agreement to sell Ex.PW1/1, late Mohinder Singh Chhabra had entered into a Memorandum of Understanding Ex.P4 with the plaintiffs and in the said Memorandum of Understanding Ex.P4, it was specifically admitted by late Mohinder Singh Chhabra that he is not empowered to enter into Page: 13/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
any agreement to sell due to pendency of suit filed by her sister with regard to suit property.
26. It was further submitted that as per Memorandum of Understanding Ex.P4, plaintiffs were required to make balance payment only when the suit filed by late Mohinder Singh Chhabra against her sister was settled/withdrawn.
27. It was further submitted that later on, it came to the knowledge of plaintiffs that the suit was not filed by late Mohinder Singh Chhabra but it was filed by her step sister Smt.Jasbir Kaur.
28. It was further submitted that Smt.Jasbir Kaur had filed a Probate petition on the basis of Will left behind by her late father and on the basis of Will, she claimed entire suit property to be her's.
29. It was further submitted that during the pendency of the probate petition, late Mohinder Singh Chhabra was restrained from creating any Page: 14/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
third party interest and although eventually probate petition was dismissed but Smt.Jasbir Kaur had approached the Hon'ble High Court of Delhi in appeal and now, the Hon'ble High Court of Delhi has again restrained defendants from creating any third party interest.
30. It was further submitted that due to operation of stay in Probate petition granted by the Hon'ble High Court of Delhi, it is not possible for the defendants to execute any sale deed in favour of plaintiffs with regard to suit property. Therefore, it was submitted by Ld.counsel for plaintiffs that he is pressing for his alternative prayer for refund of earnest money of Rs.15 Lacs given to late Mohinder Singh Chhabra.
31. It was further submitted that execution of agreement to sell Ex.PW1/1, wherein earnest money of Rs.5 Lacs is stated to have been received Page: 15/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
by late Mohinder Singh Chhabra and payment receipt Ex.P5 regarding payment of Rs.10 Lacs to late Mohinder Singh Chhabra are not in dispute as part payment receipt Ex.P5 was duly admitted at the stage of admission/denial and agreement to sell Ex.PW1/1 stands proved on record.
32. It was further submitted that since defendants cannot execute sale deed as per agreement to sell Ex.PW1/1, therefore, plaintiffs are entitled for refund of earnest money of Rs.15 Lacs with interest.
33. It was further submitted that defence of defendants that they had given Rs.15 Lacs taken from plaintiffs to one Amar Singh Kataria for the purchase of other property and since plaintiffs did not pay the balance amount and hence, earnest money given by late Mohinder Singh Chhabra was forfeited by Amar Singh Kataria is required to be Page: 16/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
rejected as firstly, purchase of property by late Mohinder Singh Chhabra from Amar Singh Kataria has not been proved and secondly, even if it is assumed that any transaction was entered into between late Mohinder Singh Chhabra and Amar Singh Kataria, then also plaintiffs are entitled for refund of their earnest money as neither in the agreement to sell Ex.PW1/1 nor in the Memorandum of Understanding Ex.P4, it was any where mentioned that late Mohinder Singh Chhabra is required to make payment to Amar Singh Kataria after receipt of the same from plaintiffs.
34. It was further submitted that suit is also not bad for nonjoinder of Smt.Jasbir Kaur as there is no written agreement with Smt.Jasbir Kaur regarding sale of her share in the suit property.
35. It was further submitted that initially, Page: 17/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
Smt.Jasbir Kaur had agreed to sell her share in the suit property and even she has taken a cheque of Rs.5 Lacs as earnest money from plaintiffs but since said cheque was not encashed by Smt.Jasbir Kaur and no agreement to sell was executed between plaintiffs and Smt.Jasbir Kaur, therefore, no relief has been sought against her and her non joinder does not affect the suit of the plaintiff.
36. It was further submitted that although previous suit Ex.P1 was filed by plaintiffs against late Mohinder Singh Chhabra and Smt.Jasbir Kaur but relief sought in the said suit Ex.P1 was regarding declaration and regarding permanent injunction to restrain defendants from disposing of the suit property.
37. It was further submitted that said suit qua Smt.Jasbir Kaur was rejected on an application filed by Smt.Jasbir Kaur under Order VII Rule 11 Page: 18/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
CPC and suit had only continued against late Mohinder Singh Chhabra.
38. It was further submitted that even in the previous suit Ex.P1, plaintiffs had mentioned the fact that only late Mohinder Singh Chhabra had executed the agreement to sell Ex.PW1/1 and Memorandum of Understanding Ex.P4 and Smt.Jasbir Kaur had not executed any agreement to sell in favour of plaintiffs. Therefore., Smt.Jasbir Kaur was not a necessary party in the present suit and her nonjoinder does not affect the suit of the plaintiffs.
39. It was further submitted that suit filed by plaintiffs is not barred by limitation as due date of performance of the agreement was 04.11.2009 and suit for specific performance filed on 03.09.2012 is within the period of limitation of three years. Accordingly, it was concluded by submitting that Page: 19/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
the decree for recovery of earnest money of Rs.15 Lacs with interest be passed against defendants.
40. On the other hand, Ld.counsel for defendants submitted that plaintiffs are not entitled for relief as suit is barred by limitation.
41. It was submitted that due date for execution of sale deed was 04.11.2008 and not 04.11.2009 as claimed by the plaintiffs.
42. It was further submitted that in the agreement to sell Ex.PW1/1, there has been a manipulation in the date of execution of sale deed by cutting the date 04.11.2008 and by manipulating the same as 04.11.2009 by plaintiffs. Therefore, the suit filed by plaintiffs on 03.09.2012 is beyond the period of limitation. Accordingly, it was prayed that suit be dismissed on the short point of it being barred by limitation.
43. It was further submitted that suit is bad for non Page: 20/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
joinder of Smt.Jasbir Kaur as she was a necessary party in the present suit.
44. It was submitted in this regard that in the previous suit filed by plaintiffs against late Mohinder Singh Chhabra, Smt.Jasbir Kaur was joined as a defendant but in the present case, she had intentionally been omitted as plaintiffs and Smt.Jasbir Kaur were in connivance with each other.
45. With regard to relief of specific performance, it was submitted that plaintiffs were never ready and willing to perform their part of contract and they did not pay the balance amount within time and, therefore, earnest money given by plaintiffs was forfeited.
46. It was submitted that late Mohinder Singh Chhabra had invested Rs.15 Lacs in purchase of property from Amar Singh Kataria and since Page: 21/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
plaintiffs failed to pay amount in time, therefore, payment made by late Mohinder Singh Chhabra to Amar Singh Kataria got forfeited and suit filed by late Mohinder Singh Chhabra against Amar Singh Kataria was also dismissed. Therefore, plaintiffs are not entitled for any refund of money from defendants.
47. It was further submitted that plaintiffs have heavily relied upon Memorandum of Understanding Ex.P4 to show that it was defendants, who had not complied with the terms of contract by withdrawing the Probate Petition. However, the said Memorandum of Understanding Ex.P4 cannot be looked into as it was obtained by fraud by plaintiffs in connivance with late Smt.Jasbir Kaur.
48. It was submitted that in Memorandum of Understanding Ex.P4, name of the court where the Page: 22/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
case is pending has been left in blank and even name of Smt.Jasbir Kaur is not mentioned.
49. It was further submitted that late Mohinder Singh Chhabra had not filed any Probate Petition/ suit and it was Smt.Jasbir Kaur, who had filed the same but the said Memorandum of Understanding Ex.P4 was got fraudulently prepared from late Mohinder Singh Chhabra wherein it was incorrectly mentioned that he wish to withdraw the suit whereas the fact was that he had not filed any suit in any court of law. Therefore, Memorandum of Understanding Ex.P4 cannot be relied upon by plaintiffs to claim relief.
50. It was further submitted that even agreement to sell Ex.PW1/1 and Memorandum of Understanding Ex.P4 cannot be relied upon as both are unregistered documents and on the basis of unregistered documents, no decree for specific Page: 23/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
performance can be passed. Accordingly, a prayer was made to dismiss the suit.
51. I have considered the rival submissions of respective parties and have carefully perused the record.
52. My findings on issues are as under: Issue No. 1
1. Whether the suit is bad for nonjoinder of necessary parties? If so, its effects. OPD The onus to prove this issue was upon the defendants. Defendants had relied upon the previous suit filed by plaintiffs against late Mohinder Singh Chhabra and Smt.Jasbir Kaur Ex.P1 to support their submission that Smt.Jasbir Kaur was a necessary party in the present case.
53. It was further submitted that in the evidence by Page: 24/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
way of affidavit, PW1 deposed on oath that an oral agreement to sell was also entered into between plaintiffs and Smt.Jasbir Kaur and even cheque Ex.P13 was given to her. Therefore, she was a necessary party but since she was not impleaded, the suit is bad.
54. The said contention of defendants is not acceptable as firstly, Smt.Jasbir Kaur has not been examined in this case to prove the oral agreement entered into between her and plaintiffs with regard to sale of her share in the suit property.
55. It is also not proved on record that cheque Ex.P13 was ever encashed by Smt.Jasbir Kaur.
56. Further, there is no written agreement on record between plaintiffs and Smt.Jasbir Kaur to show that any agreement was entered into between plaintiffs and Smt.Jasbir Kaur.
57. Therefore, in absence of any evidence on record Page: 25/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
to show existence of contract of sale, joining of Smt.Jasbir Kaur was not required in this case as no relief could have been granted against her.
58. The joining of Smt.Jasbir Kaur as defendant in the previous suit Ex.P1 makes no difference as the previous suit filed by plaintiffs against Smt.Jasbir Kaur and late Mohinder Singh Chhabra was only with regard to relief of declaration and permanent injunction and no relief was sought against Smt.Jasbir Kaur with regard to specific performance based upon any contract.
59. Therefore, the present suit filed by plaintiffs without impleading Smt.Jasbir Kaur is not bad for nonjoinder of necessary party i.e. Smt.Jasbir Kaur. Accordingly, this issue is decided in favour of plaintiffs and against defendants.
60. Issue No.2 Whether the suit is barred by limitation? OPD Page: 26/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
The onus to prove this issue was upon defendants that the suit filed by plaintiff is beyond the period of limitation.
61. The maximum period for filing a suit for specific performance is three years and three years are to be counted from the date fixed for the performance of the contract as per Article 54 of the Limitation Act, 1963.
62. As per the agreement to sell Ex.PW1/1, date of making balance payment by plaintiffs and for execution of sale deed was 04.11.2009. Although defendants have disputed that the date of performance of the agreement to sell Ex.PW1/1 was 04.11.2009 but the evidence which has come on record show that date of performance of the agreement was not 04.11.2008 as claimed by defendants but it was 04.11.2009.
Page: 27/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
63. I have carefully perused the agreement to sell Ex.PW1/1 and no doubt it is true that on the first page there is a cutting on 04.11.2008 which has been replaced by 04.11.2009 but on the second page, the date is specifically mentioned as 04.11.2009 without there being any cutting. Therefore, from second page, it can be inferred that both parties intended the contract to be performed on or before 04.11.2009 because if the date of performance of the agreement was 04.11.2008, then the same should have been mentioned at page 2 also of the agreement to sell Ex.PW1/1.
64. Further, prior to filing the suit, plaintiffs had issued a legal notice to defendants which is Ex.P8 dated 12.04.2012 and in the said notice also, it was mentioned that the balance amount was required to be paid by plaintiffs on or before Page: 28/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
04.11.2009. The said document was duly admitted by defendants at the stage of admission/denial.
65. Further, in the cross examination of PW1, no suggestion was given by defendants that date of performance of the agreement was not 04.11.2009 but it was 04.11.2008. Therefore, defendants admitted that date of execution of the contract was 04.11.2009.
66. Further, in the cross examination of DW1, she admitted that in the previous suit filed by plaintiffs Ex.P1, no objection was taken by late Mohinder Singh Chhabra and Smt.Jasbir Kaur that date of 04.11.2009 had been written later on or the document was got signed in blank. Therefore, this plea was taken in the present suit as an after thought.
67. Hence, in the light of aforesaid discussion, it is proved on record that the date of payment by Page: 29/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
plaintiffs was on or before 04.11.2009 and not 04.11.2008 as claimed by defendants. Therefore, the suit filed by plaintiffs on 03.09.2012 was within three years of 04.11.2009 and hence was filed within the period of limitation. Accordingly, this issue is decided in favour of plaintiffs and against defendants.
68. Issues no.3, 4 and 5
3. Whether there was any valid agreement of sell dated 12.08.2008 between the plaintiffs no.1 and 2 and late Mohinder Singh Chhabra and if so, its effects? OPP
4. Whether the plaintiff is entitled to the reliefs claimed? OPP
5. Whether the plaintiff is entitled to alternative relief of return of Rs. 15 Lacs or any other amount with interest? If so, at what rate and for what period? OPP Issues no.3,4 and 5 are being taken up together Page: 30/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
for disposal as they are interconnected.
69. The onus to prove these issues was upon the plaintiffs to have proved that valid agreement to sell Ex.PW1/1 was executed between plaintiffs and late Mohinder Singh Chhabra.
70. The plaintiffs have filed on record the agreement to sell which is Ex.PW1/1. In the entire cross examination of PW1, the execution of agreement to sell Ex.PW1/1 by late Mohinder Singh Chhabra was never disputed.
71. Only challenge to the agreement to sell was that it was executed at the behest of Smt.Jasbir Kaur and also on the ground that handwritten portion on Ex.PW1/1 has been manipulated later on as it does not bear the initials of deceased defendant.
72. I have carefully perused the contents of agreement to sell Ex.PW1/1. Vide this agreement to sell Ex.PW1/1, late Mohinder Singh Chhabra Page: 31/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
had agreed to sell 50% of the share of the suit property to the plaintiffs and it is specifically mentioned in para 3 of the agreement that late Mohinder Singh Chhabra and his sister Smt.Jasbir Kaur have agreed to settle their dispute and give clear undisputed title of the property in favour of second party i.e. plaintiffs. There is no evidence led on record as to why late Mohinder Singh Chhabra will execute an agreement to sell at the behest of Smt.Jasbir Kaur when she herself was a coowner of the property.
73. The onus was upon the defendants to have proved on record that there was connivance between plaintiffs and Smt.Jasbir Kaur due to which late Mohinder Singh Chhabra had executed agreement to sell Ex.PW1/1 with the plaintiffs. However, no evidence has been led on record in this regard by defendants. Therefore, this fact has Page: 32/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
not been proved on record.
74. Further, the handwriting portion in the agreement to sell Ex.PW1/1 provides date of 04.11.2009 by which balance payment was required to be cleared by plaintiffs.
75. If defence of defendants is to be believed that 04.11.2009 was manipulated by plaintiffs, then defendants had to prove on record as to what was the due date for performance of the agreement.
76. In the entire cross examination of PW1, there is no suggestion given by defendants that date of performance of the agreement was not 04.11.2009 but it was 04.11.2008. Therefore, defendants had admitted that date 04.11.2009 was the due date by which plaintiffs had to make the balance payment.
77. Further, DW1 in her cross examination has also admitted that in the previous suit filed by plaintiffs Ex.P1, no objection was taken with regard to Page: 33/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
manipulation of date of 04.11.2009 or documents were got signed in blank from late Mohinder Singh Chhabra.
78. Therefore, if in the previous suit filed by plaintiffs Ex.P1 wherein fact of agreement to sell Ex.PW1/1 was disclosed and even then no objection was taken with regard to manipulation of date of 04.11.2009, then taking of this objection in the present suit is nothing but an after thought and is required to be disbelieved.
79. Another facts which proves that date of agreement to sell Ex.PW1/1 was 04.11.2009 is the legal notice dated 12.04.2012 Ex.P9 wherein also the date of performance of the agreement and paying balance consideration by plaintiffs is mentioned as 04.11.2009 and this document was duly admitted by defendants at the stage of admission/denial. Therefore, the aforesaid Page: 34/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
evidence which has come on record proves that agreement to sell Ex.PW1/1 was indeed executed by late Mohinder Singh Chhabra and there is no manipulation in the date of performance of the agreement of 04.11.2009.
80. The validity of the agreement to sell Ex.PW1/1 is also proved from the fact that receipt of payment of Rs.5 Lacs at the time of execution of agreement to sell Ex.PW1/1 and further payment of Rs.10 Lacs vide payment receipt dated 12.08.2008 has not been disputed by defendants.
81. The payment receipt Ex.P5 dated 12.08.2008 was duly admitted by defendants at the stage of admission/denial of documents and the said receipt specifically mentions that Rs.15 Lacs have been received by late Mohinder Singh Chhabra from plaintiffs.
82. Further, receipt of payment of Rs.15 Lacs has Page: 35/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
not been disputed by defendants as in the written statement filed in the previous suit Ex.P3, this fact has been duly admitted in para 1 of reply on merits. Therefore, the factum of receipt of payment of Rs.15 Lacs also stands proved on record by plaintiffs which further shows that agreement to sell Ex.PW1/1 was duly entered into between the parties.
83. The contention of ld.counsel for defendants that agreement to sell Ex.PW1/1 is not valid as it was not registered is required to be rejected as requirement of registering of agreement to sell arises whereby possession is transferred to the purchaser, at the time of agreement to sell as per Section 17(1)(a) of the Registration Act, 1908.
84. Further, as per explanation of Section 17(2) of the Registration Act, 1908, any contract for sale of immoveable property does not require registration Page: 36/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
if it only contains recital of receipt of earnest money.
85. In the present case, agreement to sell Ex.PW1/1 only records the factum of receipt of earnest money and there is no recital that even possession has been transferred to the plaintiffs at the time of its execution. Therefore, it was not required to be registered as per Section 17(1)(a) of the Registration Act. 1908.
86. Therefore, agreement to sell Ex.PW1/1 was validly executed between plaintiffs and late Mohinder Singh Chhabra.
87. Another fact which is required to be proved is whether plaintiffs are entitled for decree of specific performance with regard to agreement to sell Ex.PW1/1 or not?
88. In the present case, plaintiffs were required to prove on record that they were ready and willing Page: 37/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
to perform their part of contract by paying balance consideration on or before 04.11.2009.
89. The plaintiff/PW1 has deposed in his affidavit that he was always ready and willing to perform his part of contract but it was the defendants, who were not ready to execute the sale deed.
90. In his cross examination. PW1 had deposed that he was having sufficient funds in his Overdraft Account in 20082009 to the tune of Rs. 1.4 crores to make balance payment to defendants.
91. Said deposition was never doubted by defendants as they had never asked plaintiffs to produce bank documents to show the existence of funds to the tune of Rs. 1.4 crores in 20082009.
92. Further, legal notices dated 12.04.2012 sent by plaintiffs Ex.P8 and P9 also contains an offer made by plaintiffs to defendants to receive balance amount and to execute the sale deed.
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93. The said legal notices Ex.P8 and Ex.P9 are not in dispute as said documents were duly admitted by defendants at the stage of admission/denial.
94. Therefore, evidence which has come on record show that plaintiffs were always ready and willing to perform their part of contract by paying balance consideration.
95. Plaintiffs have also filed on record Memorandum of Understanding Ex.P4 which was duly admitted by defendants at the stage of admission/denial of documents.
96. Even during cross examination of DW1, said document Ex.P4 was put to her and she identified her signature at points A and B.
97. Further, DW1 was confronted with the admission/denial regarding Memorandum of Understanding Ex.P4 made by her and her son Charanjit Singh and daughter Jasvinder Kaur Page: 39/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
regarding Memorandum of Understanding Ex.P4 wherein they admitted their signatures and that of late Mohinder Singh Chhabra vide Ex.DW1/P1 and DW1 admitted her signatures at point C and at point D of her son and at point E of daughter Jasvinder Kaur but further deposed that these signatures have been obtained by playing fraud.
98. DW1 has not specified in her evidence as to who had played fraud with her and her children with regard to admission/denial of Ex.DW1/P1.
99. Further, since statement was recorded before Ld.SCJ (West) on 15.11.2011 and signatures were obtained before the court, therefore, this plea of signatures having been taken by playing fraud is not tenable and is required to be rejected.
100. Therefore, execution of Memorandum of Understanding Ex.P4 by late Mohinder Singh Chhabra and duly witnessed by DW1, has been Page: 40/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
duly proved on record.
101. In the Memorandum of Understanding Ex.P4, Late Mohinder Singh Chhabra had specifically mentioned that he is not competent to enter into any agreement with respect to suit property due to the pending matter in the court and it was further stated in the said Memorandum of Understanding Ex.P4 that late Mohinder Singh Chhabra had filed a suit against her sister in respect of suit property and plaintiffs are required to make the balance payment only after matter is being settled/withdrawn.
102. Although it is true that in Memorandum of Understanding Ex.P4, the name of the court in which the case was pending has been left in blank but it was not the case of defendants that no case was pending with regard to suit property.
103. Although it is true that late Mohinder Singh Page: 41/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
Chhabra had not filed any suit with regard to suit property and it was Smt.Jasbir Kaur, who had filed a probate petition claiming herself to be the owner of entire suit property on the basis of Will left by her father, but this fact will not affect the validity of Memorandum of Understanding Ex.P4 as it was a fact that a dispute was pending between late Mohinder Singh Chhabra and Smt.Jasbir Kaur and it does not matter whether it was filed by late Mohinder Singh Chhabra or by Smt.Jasbir Kaur.
104. Therefore, as per Memorandum of Understanding Ex.P4, plaintiffs were required to make further payment after the settlement/withdrawal of suit by late Mohinder Singh Chhabra. However, since suit filed by Smt.Jasbir Kaur was never settled or withdrawn, therefore, no occasion arose for the plaintiffs to have made the balance payment.
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105. However, in the present case, no decree for specific performance of agreement to sell Ex.PW1/1 can be granted to plaintiffs even though plaintiffs have proved on record that they were ready and willing to perform their part of the contract and it was defendants, who committed breach of contract as it has come in the evidence of DW1 that in the probate petition filed by Smt.Jasbir Kaur, there was a stay with regard to sale of suit property and she also admitted that after dismissal of probate petition, Smt.Jasbir Kaur preferred an appeal before the Hon'ble High Court of Delhi.
106. Further, during the course of arguments, it was admitted by Ld.counsel for defendants that even in the appeal filed by Smt.Jasbir Kaur, stay has been granted against defendants with regard to sale of suit property and the matter has been admitted by Page: 43/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
the Hon'ble High Court of Delhi.
107. In the light of evidence which has come on record, since there was stay granted during the pendency of probate petition and even stay is operating against defendants with regard to sale of suit property in the appeal filed by Smt.Jasbir Kaur and since appeal is going to take a considerable time for disposal, therefore, plaintiffs cannot be made to wait in perpetuity for execution of the sale deed. Therefore, by operation of the order of stay initially granted by Probate court and now by the Hon'ble High Court of Delhi in appeal, decree of specific performance of agreement to sell Ex.PW1/1 by directing defendants to execute sale deed cannot be made. Therefore, this court while exercising its power under Section 22 of the Specific Relief Act, 1963 directs defendants to refund the earnest money of Rs.15 Lacs received Page: 44/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
by them from the plaintiffs pursuant to agreement to sell Ex.PW1/1.
108. The contention of ld.counsel for defendants that amount of Rs.15 Lacs received from plaintiffs was used by defendants in purchasing of property from Amar Singh Kataria at Paschim Vihar, New Delhi and since plaintiffs did not pay the balance amount therefore, amount was forfeited and therefore, they cannot refund the earnest money to plaintiffs, is required to be rejected.
109. The reason for the same is that firstly, defendants have no where proved on record that any sale transaction was entered into between defendants and Amar Singh Kataria for purchase of property at Paschim Vihar, New Delhi whereby he was given Rs.15 Lacs as earnest money.
110. Defendants have not placed on record any agreement showing purchase of property from Page: 45/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
Amar Singh kataria or receipt of payment of Rs.15 Lacs by Amar Singh Kataria.
111. Even assuming that any such sale transaction was entered into between defendants and Amar Singh Kataria and the earnest money was forfeited due to nonpayment by defendants, then also defendants cannot refuse to return the earnest money of Rs.15 Lacs taken from plaintiffs as in the agreement to sell Ex.PW1/1 and Memorandum of Understanding Ex.P4, there was no condition that earnest money being received from plaintiffs was being used by defendants for purchase of property at Paschim Vihar, New Delhi and from the money received from plaintiffs, they would be making balance payment to Amar Singh Kataria. Therefore, if the earnest money of defendants was forfeited by Amar Singh kataria, then that is no ground not to return earnest money of Rs.15 Lacs Page: 46/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
taken by defendants from plaintiffs as they had committed the breach of contract by nonexecuting the sale deed in favour of plaintiffs.
112. In the light of aforesaid discussion, issues nos.3 and 5 are decided in favour of plaintiffs and against defendants. With regard to issue no.4, relief of specific performance of agreement to sell Ex.PW1/1 cannot be granted in favour of plaintiffs as such relief has become unenforceable at this stage due to grant of stay by the Hon'ble High Court of Delhi with regard to sale of suit property.
113. Relief.
In the light of my findings given to issues no.3 and 5, suit of the plaintiffs is decreed and defendants are directed to refund earnest money to the plaintiffs of Rs.15 Lacs with interest @ 6% per annum from the date the amount of Rs.15 Lacs was received by the defendants i.e. 6% interest per Page: 47/48 CS No. 13125/16 Sanjay Mongia and another Vs. Smt.Inderjeet and ors.
annum upon the amount of Rs.5 Lacs from 04.08.2008 and on the balance amount of Rs.10 Lacs from 12.08.2008 till the date of its payment. Cost of the suit is also awarded in favour of plaintiffs. Decree sheet be prepared accordingly.
114. File be consigned to record room.
VIKAS Digitally signed
by VIKAS DHULL
DHULL Date: 2019.06.03
14:45:41 +0530
Announced in the Open Court (Vikas Dhull)
Dated: 29.05.2019 Additional District Judge 01
THC/West/Delhi
Page: 48/48