Delhi District Court
Arvinder Singh Kohli vs S. Manohar Singh (Through L.R.'S) on 6 June, 2022
IN THE COURT OF SH. SYED ZISHAN ALI WARSI:
ADDITIONAL DISTRICT JUDGE-05: WEST DISTRICT:
TIS HAZARI COURTS: DELHI
Civ DJ No. 178/18
CNR No. DLWT01-00-1350-2018
In the matter of :
Arvinder Singh Kohli
S/o Savinder Singh
R/o S-3/23, (Ist Floor)
Old Mahavir Nagar,
New Delhi-110018.
.......... Plaintiff
Vs
S. Manohar Singh (Through L.R.'s)
Rattandeep Kaur
W/o S. Gurdeep Singh
D/o Late S. Manohar Singh
R/o House No.WZL-58, Ist Floor,
Gali No.13, Krishna Park Extension,
New Delhi-110018 .......... Defendant No.1
Hardeep Singh
S/o Late S. Manohar Singh
R/o A-66, Vikas Puri,
New Delhi-110018 .......... Defendant No.2
SUIT FOR SPECIFIC PERFORMANCE, POSSESSION,
DECLARATON AND PERMANENT INJUNCTION
Date of institution : 17.07.2012
Judgement Reserved on : 02.06.2022
Date of Decision : 06.06.2022
Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 1 / 29
JUDGEMENT
1. Plaintiff namely Arvinder Singh Kohli filed the present suit for specific performance, possession, declaration and permanent injunction against defendant namely Manmohan Singh.
2. The plaintiff has filed the present suit alleging following facts :-
"That defendant who is the owner of K-58, Krishna Park Extension, IInd Floor, Gali no.13, New Delhi- 110018 with roof rights and for his requirement through Mr. Gopal Singh living in the same premises at ground floor had executed Agreement/ Bayana receipt for the sale of roof rights of second floor (hereinafter called the suit property) with the plaintiff on 24.10.2011 for a total consideration of Rs.7,50,000/- and out of which Rs.11,000/- were received by defendant as earnest/bayana money from the plaintiff towards sale of roof rights of second floor with condition that the rest of the payment shall be given by 15th January, 2012 and in furtherance the defendant will execute sale documents before Sub- Registrar, Janak Puri for the suit property in favour of the plaintiff. That the defendant accepted the above mentioned bayana money showing the photocopy of title documents with an assurance to complete the sale transaction. It is further the case of the plaintiff that Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 2 / 29 the defendant failed to hand over the photocopy of his title documents, as the same was required to the plaintiff for preparation of sale documents from deed writer, then on 13th January, 2012, plaintiff send a letter dated 12.01.2012 through registered post to defendant requesting for supplying the photocopy of the title but defendant did not handed over the same. It is further the case of the plaintiff that on 15 th January, 2012, plaintiff tried to contact the defendant for execution of title documents and to receive the balance sale consideration amount, but the defendant avoided the same on one excuse or the other. That the plaintiff is ready to make the balance payment but the defendant neither cared nor fulfilled the terms of agreement dated 24.10.2011 and the plaintiff has no other way except to file the present suit. Hence, the present suit has been filed seeking following prayer from the Court :-
a) to pass a decree of specific performance in favour of plaintiff and against defendant thereby directing the defendants to execute the sale documents in favour of plaintiff for the suit property i.e, Roof rights of Second Floor in Property No.K-58, Krishna Park Extension, Gali No.13, New Delhi-110018, as shown in site plan in red colour.Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 3 / 29
b) a decree of possession of suit property be also passed in favour of plaintiff and against the defendant.
c) to pass a decree of permanent injunction in favour of plaintiff and against the defendant thereby restraining the defendant his agents, legal heirs, successors, servants etc. to sale, transfer, alienate, mortgage, construct, demolish the suit property or part thereof and be further restrained from further creating third party interest over the suit property in any manner whatsoever till disposal of the suit,
d) Any other relief which this Hon'ble Court may deems fit and proper in favour of the plaintiff and against the defendants.
3. During the pendency of the suit, the defendant expired and written statement were filed on behalf of LRs of defendants i.e, Ratandeep Kaur and S. Hardeep Singh wherein they took preliminary objection that the plaintiff has not approached the Court with clean hands and is guilty of misleading the Court by making entirely false, frivolous and concocted averments which are even false to his own knowledge, the legal heirs of the defendant S. Manohar Singh had no whisper about any agreement being entered between the plaintiff and S. Manohar Singh with respect to the roof of second floor, ad-measuring 75 sq. meters, situated at K-58,, Second Floor, Gali No.13, Krishna Park Extn, New Delhi-18. That Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 4 / 29 S.Manohar Singh at no point of time ever raised any loans from any one or gave loan to anyone, question of entering any agreement and issuance of any receipt of S.Manohar Singh does not arise because if any agreement allegedly entered by S. Manohar Singh, he would have definitely informed the answering defendants, that plaintiff vide letter dated 12.01.2012 allegedly informed S. Manohar Singh that as per Agreement S. Manohar Singh has not provided the photocopy of the documents for Registry of the roof of the Second Floor within 24 hours from 12.01.2012, failing which he will take legal action against S. Manohar Singh. However, the plaintiff did not initiate any proceedings against S. Manohar Singh within the time limit as prescribed by law. It is averred that the case in hand was filed on 13.07.2012 and in the plaint the date was mentioned as 16.07.2012 on the Court fee which is self contradictory. That S. Manohar during his lifetime never mentioned anything to the answering defendants that he allegedly entered into any agreement with the plaintiff and executed any receipt of Rs.11,000/- in respect of the roof of second floor of property bearing no.K-58, Krishna Park Extn., New Delhi-18. That the plaintiff might have obtained the signature of S.Manohar Singh on a blank paper and shown a figure of Rs.11,000/- as token money for the sale of roof of second floor of premises i.e, K-58, Krishna Park Extn., New Delhi-18. That as per MCD rules no structure can be constructed above the roof top of second floor in the area and this fact is very well known to the plaintiff and hence, advancing any token payment to S.Manohar Singh does not arise at all. It is also stated that the amount was advanced as token money and not bayana money. That plaintiff in order to harass the legal heirs of S. Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 5 / 29 Manohar Singh made the party to the present suit and the purpose of the present suit is only to cause harassment to the defendant.
4. On merits, LRs of the defendants refuted the version of the plaintiff by referring to aforesaid preliminary objections. Same are not repeated here for the sake of brevity.
5. Plaintiff filed replication to written statements of defendant wherein contents of plaint were reiterated and version of defendants was denied. Additionally, in the replication, it has also been stated that during the pendency of the present suit a compromise dated 06.09.2013 got executed by deceased S. Manohar Singh wherein plaintiff has accepted the request, as the defendant of being an old aged person, that instead of Rs.7,50,000/- plaintiff will pay Rs.10,00,000/- as a total sale consideration in terms of agreement dated 24.10.2011.
6. After completion of pleadings, following issues were settled on 19.04.2017:-
(i) Whether the plaintiff is entitled for the decree of specific performance in respect to the agreement to sell dated 24.10.2011, as prayed for?OPP
ii) Whether the plaintiff is entitled for decree of possession in respect of the suit property as prayed for?OPP
iii) Whether the plaintiff is entitled for relief of permanent injunction as prayed for?OPP
iv) Whether Late Sh. Manohar Singh had not entered into any Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 6 / 29 agreement to sell with the plaintiff?OPD
v) Relief .
7. Plaintiff examined himself as PW1 and tendered his evidence by way of affidavit as Ex.PW1/1 in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. PW-1 relied upon following documents:-
S.No Exhibits Nature of documents
1. Ex PW1/A Site Plan.
2. Ex PW1/B Bayana Receipt /agreement dated 24.10.2011.
3. Ex PW1/C Carbon Copy of letter dated 12.01.2012
(objected to)
4. Ex PW1/D Postal Receipts dated 13.01.2012
5. Ex PW1/E Affidavit dated 06.09.2013
8. PW1 was cross-examined at length by ld. Counsel for the defendant.
No other witness was examined on behalf of the plaintiff and upon request of the plaintiff PE was closed on 26.03.2022. Accordingly, matter was fixed for defendant's evidence.
9. In their defence, Ms. Rattandeep Kaur and Sh. Karandeep Singh i.e, LRs of deceased defendant Sardar Manohar Singh have examined themselves as DW1 & DW2 .
10. During defendant's evidence, Ms. Rattandeep Kaur, i.e. LR of the Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 7 / 29 deceased defendant appeared in the witness box as DW1 and tendered her evidence by way of affidavit as Ex.DW1/1 in which she reiterated the contents of written statement which are not repeated here for the sake of brevity. Through, DW-1 the following documents exhibited:-
S. No. Exhibits Nature of documents 1. Ex DW1/P-1 MOU dated 10.12.2013. 2. Mark A Sale Deed Dated 02.02.2005
11. During defendant's evidence, Sh. Karandeep Singh, i.e. LR of the deceased defendant appeared in the witness box as DW2 and tendered his evidence by way of affidavit as Ex.DW2/1 in which he reiterated the contents of written statement which are not repeated here for the sake of brevity.
12. After examining the said witness, defendant closed his evidence on 13.04.2022. Matter was then fixed for final arguments.
13. Final arguments were heard on behalf of both the parties and after hearing final arguments, matter was fixed for judgment.
14. Written submissions on behalf of both the parties filed and same are perused.
15. During course of final arguments, Ld. counsel for the plaintiff submits that Ex.PW1/B i.e, Bayana Receipt /agreement dated 24.10.2011 was duly executed between the plaintiff and the defendant. The deceased Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 8 / 29 defendant S. Manohar Singh was willing to execute the sale deed even after the filing of the suit and he entered into a compromise/ settlement agreement with the plaintiff to execute the title documents in favour of the plaintiff after receiving revised full and final payment of Rs.10,00,000/- from the plaintiff instead of Rs.7.5 lacs. Pursuant thereto, deceased defendant S. Manohar Singh handed over the copies of previous titled documents as well as copy of his Aadhar Card and Voter Card for the preparation of sale deed by the plaintiff. He also submits that plaintiff was always ready and willing to perform his part of the contract and the plaint is duly supported by the site plan and relevant documents for the purpose of proving the suit.
16. Per contra, ld. Counsel for the defendant during the course of final arguments submits that the documents relied by plaintiff are not admissible in evidence. The plaintiff was never ready and willing to perform his part of the agreement. For the consideration of the agreement, token money was paid and not the bayana money. It is also submitted that the Ex.PW1/B i.e, Bayana Receipt /agreement dated 24.10.2011 was neither on stamp paper nor registered or notarized and in absence of registration, it is not a valid document and thus, not specifically enforceable as well as the same can not be read into evidence. It is further submitted that the agreement is not specifically enforceable by virtue of Sec. 18(c) of Specific Relief Act as there has been a variance in the terms of the original agreement dated 24.10.2011 as vide compromise dated 06.09.2013 being executed between deceased S. Manohar Singh and plaintiff it has been accepted that instead of Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 9 / 29 Rs.7,50,000/- plaintiff will pay Rs.10,00,000/- as a total sale consideration in terms of agreement dated 24.10.2011.
17. In addition to the aforesaid, the following citations are relied as under :-
a) for plaintiff :-
i) Devinder Singh vs. Hari Singh, in RSA No.125/2017, D.O.D 26.04.2017(Hon'ble High Court of Delhi)
ii) Mr. Raminder Singh Chadha vs Mrs. Indu Bala & Anr. In RFA No.265/2020, D.O.D. 05.11.2020 (Hon'ble High Court of Delhi)
iii) Raj Kumar Sharma vs. Smt. Pushpa Jaggi & Ors. AIR 2005 DELHI 156
b) for defendant :-
i) Vijay Kumar & ors. Vs. Om Parkash (2019) 17SCC 429
ii) Rajender Kumar Vs. Rama Bala Gupta (2019) 257 DLT 197
iii) Mangal Milan co-operative Housing Society Ltd. Vs. Sudhir Shah & ors. 2014 SCC Online Bom 1732.
iv) Devenderjeet vs. Om Prakash Arora & Ors., in CS(OS) 2303/2010, D.O.D. 01.7.2019
18. The onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on preponderance of probability against the defendant. As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 10 / 29 it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues.
19. In subsequent paragraphs, the Court shall decide issues.
ISSUE No. 1,2 3 & 4i) Whether the plaintiff is entitled for the decree of specific Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 11 / 29 performance in respect to the agreement to sell dated 24.10.2011, as prayed for?OPP and
ii) Whether the plaintiff is entitled for decree of possession in respect of the suit property as prayed for?OPP and
iii) Whether the plaintiff is entitled for relief of permanent injunction as prayed for?OPP and
iv) Whether Late Sh. Manohar Singh had not entered into any agreement to sell with the plaintiff?OPD
20. The onus to prove this issue is upon plaintiff.
21. Onus of proving first three issues rested upon plaintiff and issue no.4 is rested on the defendant. All the issues are interrelated. Therefore, they are decided by the Court by common appreciation of evidence and record of this case.
22. To prove the issues, the plaintiff has examined himself as PW1 and tendered his evidence by way of affidavit as Ex.PW1/1 in which he reiterated the contents of the plaint. To discharge the onus, he has relied upon the site plan i.e, Ex.PW1/A, bayana receipt / agreement dated 24.10.2011 i.e, Ex.PW1/B, carbon copy of letter dated 12.01.2012 i.e, Ex.PW1/C, postal receipts dated 13.01.2012 i.e, Ex.PW1/D and affidavit dated 06.09.2013 i.e, Ex.PW1/E. Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 12 / 29
23. A careful examination of the deposition of the plaintiff and the documents relied by the plaintiff is scrutinized alongwith the defence and evidence on behalf of the defendant in the subsequent paras of the judgment.
24. The first document relied by the plaintiff is site plan. The same is exhibited as Ex.PW1/A and on perusal of the said document there is no anomalies in the dimensions of the suit property as " site plan of roof of second floor of prop. no.k-58, krishna park extn., vikas puri, new delhi- 110018" is with proper dimensions and boundaries. On the part of the defendant, in cross-examination, the said document remained unrebuttable. Thus, there is no error in the site plan produced on behalf of the plaintiff.
25. Before proceeding further, it has to be seen that whether there has been an agreement for sell of the suit property between the plaintiff and the deceased defendant S. Manohar Singh. The onus to prove the agreement is on the plaintiff and to deny it is on the defendant. The plaintiff in his deposition has specifically stated that Sardar Manohar Singh being the owner and in possession of roof of second floor pertaining to house no.K-58, Krishna Park, Ext., Second floor, Gali no.13, New Delhi-110018 for his requirement executed agreement/ bayana receipt for the sale of roof rights of second floor with the plaintiff on 24.10.2011 for a total consideration of Rs.7,50,000/- and out of which Rs.11,000/- has beeDevendern received by the defendant as earnest Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 13 / 29 /bayana money towards sale of roof rights of the second floor. To corroborate his testimony, he has produced agreement and receipt as Ex.PW1/B. On careful perusal of the said document, it becomes clear that an agreement and receipt for the sale of the suit property for consideration of Rs.7,50,000/- after accepting token money of Rs.11,000/- with the mentioning of time for registry i.e. 15 th January is to be executed between the parties. In the cross-examination, the testimony of the witness remained unrebutted with regard to the said deposition concerning the agreement i.e. Ex.PW1/B. On the other hand, the defence that the signature of the deceased S. Manohar Singh was taken on blank paper remained vague and bald as no evidence produced by the defendant to substantiate the same.
26. The pivotal question in the suit for specific performance of contract is that, whether the plaintiff was always ready and willing to perform his part of contract. Thus, averments for the purpose of ready and willingness for specific performance of contract is also mandatory. Ld. Counsel for plaintiff has submitted that the plaintiff was always ready and willing to perform his part of contract while on the other hand, ld. Counsel for the defendant submits that plaintiff was never ready and willing to perform his part of contract.
27. Ld. counsel for the plaintiff for the purpose of readiness and willingness had relied on Raj Kumar Sharma v. Pushpa Jaggi, 2005 SCC OnLine Del 1244 : -
....."para no.24. Ready and willingness are to be gathered from the evidence of the parties and the capacity to pay. PW-1 has Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 14 / 29 specifically stated in his statement that he had a part of the money in his different bank accounts and the balance he would arrange within no time. PW-1 is a property dealer and thus would be fully aware of such dealings. Plaintiff claiming the relief of specific performance, is not required to exhibit the currency notes to show his ready and willingness. He should be capable and should have the capacity to pay on demand the sale consideration whether from his account or after arranging the same from reliable sources. The law does not impose an obligation on a party requiring it to exhibit its mean by physical demonstration. Suffices it to say for a party that it possess and/or is capable of gathering sufficient means to perform its part of the contract by paying the balance sale consideration. Readiness and willingness have various ingredients and one of them is that party to an agreement should be able to fulfil its obligations in regard to payment of the sale consideration. The purchaser need not establish that he had the required money with him or arrangements have been made for financing the transactions. What is required of him is to show that he was ready and willing to fulfill his terms of the agreement. A party would be well within its rights to say that he was in a position to arrange the payment of the requisite amount within the prescribed time. Demonstrable possession of means is no sine qua non to satisfy the principle of ready and willingness. Every action follows its prescribed course and so does a buyer should be able to show before the Court that he either possesses or can arrange the requisite funds for payment of the balance sale consideration within the stipulated period. Obviously the fruits of this act fall in favour of the party only on completion of the act in accordance with the directions of the Court founded on the agreement between the parties. Fieri non debuit sed factum valet would normally apply to this aspect of ready and willingness on the part of the claiming party"......Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 15 / 29
28. On the other hand, ld.counsel for the defendant has relied on :
a) Vijay Kumar & ors. Vs. Om Parkash (2019) 17SCC 429 relevant extracts :-
"6. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown throughout and has to be established by the plaintiff. In the case in hand, though the respondent-plaintiff has filed the suit for specific performance on 29-4-2008, the respondent-plaintiff has not shown his capacity to pay the balance sale consideration of Rs 22,00,000 (Rupees twenty-two lakhs). In his evidence, the respondent-plaintiff has stated that he has borrowed the amount from his friends and kept the money to pay the balance sale consideration. As rightly pointed out by the trial court, the respondent-plaintiff could not produce any document to show that he had the amount of Rs 22,00,000 (Rupees twenty-two lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Furthermore, as rightly pointed out by the trial court, the respondent-plaintiff could have placed on record his accounts book, passbook or the statement of accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the trial court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part".
"7. The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the first appellate court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. In our Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 16 / 29 considered view, the first appellate court as well as the High Court have not properly appreciated the evidence and the conduct of the parties. The first appellate court as well as the High Court, in our view were not right in reversing the judgment of the trial court and the impugned order cannot be sustained and is liable to be set aside."
b) Devenderjeet vs. Om Prakash Arora & Ors., 2019 SCC OnLine Del 8974 : (2019) 4 RCR (Civil) 248 :
...."para no.18. It is now well settled in law that readiness and willingness to perform the contract has to be in accordance with the terms therein and it is a condition precedent for the grant of decree for specific performance. This readiness and willingness has to be continuous from the date of execution of the contract, till the time the suit is decided. A person who falsely alleges that a payment has been made and attempts to prove the same at the stage of trial and is then unsuccessful, cannot be said to be ready and willing to fulfill his obligation under the contract"....
....."Para no.21. Thus, tender of amount less than what was actually due, exhibits that the Plaintiff was not ready and willing to perform his part of the agreement. Since the Plaintiff has not performed its obligation in conformity with the terms of the contract, it is manifest that the Plaintiff was not ready and willing to complete the transaction. However, the Court in the succeeding paras has also evaluated the conduct and other facets of the case to determine whether the Plaintiff was genuinely interested and ready to complete the transaction. Readiness to perform the obligations by the intending purchaser is a critical factor that needs to be proved by the party who is seeking a decree of specific performance. The intending purchaser must necessarily prove his financial capacity which is a pre-requisite for seeking specific performance as per Section 16(c) of the Specific Relief Act, 1963. Readiness has been Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 17 / 29 understood, interpreted and explained by the Supreme Court in several decisions to mean the 'financial capacity of the intending purchaser'. The intending purchaser must have the financial means and capacity to pay the balance sale consideration. The Supreme Court in N.P. Thirugnanam (D) by L.Rs. v. Dr. R. Jagan Mohan Rao (1995) 5 SCC 115 held as under: - para no.5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act 1963 (for short, 'the Act'). Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 18 / 29 the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract."
(emphasis supplied)..."
29. In the plaint, it is averred and pleaded that the agreement / bayana receipt for the sale of the suit property was entered on 24.10.2011 for a total consideration of Rs.7,50,000/- and out of which Rs.11,000/- has been received by the defendant as earnest/ bayana money and the rest of the payment shall be given by 15th January, 2012. It is further stated that inspite of repeated requests, the defendant failed to hand over the photocopy of his titled documents which were required for the preparation of the sale documents. Due to the conduct of the defendant, on 13.01.2012, the plaintiff has sent a letter dated 12.01.2012 through registered post to defendant requesting for supplying the photocopy of the titled documents but the defendant failed to do the same. Then on 15 th January, 2012, plaintiff tried to contact the defendant for execution of titled documents and to receive the balance sale consideration amount but the defendant has avoided the same. It is also stated that plaintiff is still ready and willing to make the balance payment in compliance of agreement dated 24.10.2011. The same facts are averred, reiterated as well deposed in the evidence by way of affidavit of PW-1 and to prove the agreement, the same agreement/ bayana receipt dated 24.10.2011 is exhibited as Ex.PW1/B and a letter dated 12.01.2012 sent through registered post addressing deceased defendant thereby requesting him for supply the copy of the titled documents is Ex.PW1/C and the postal Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 19 / 29 receipt dated 13.01.2012 for the same is exhibited as Ex.PW1/D.
30. On perusal of carbon copy of letter dated 12.01.2012 Ex.PW1/C and postal receipt dated 13.01.2012 and considering the cross- examination of the PW-1 on behalf of the defendant and the same has been remained unrebutted it becomes clear that photocopy of floor registry was not provided by deceased defendant Sardar Manohar Singh to the plaintiff despite several reminders due to which the plaintiff was not able to take further action for preparation of registry and the intention of the documents seems to be in the nature of legal notice and the forwarding document is further supported by Ex.PW1/D i.e, postal receipt of registered R.D. dated 13.01.2012. Further of the aforesaid deposition of the plaintiff, nothing has been brought in cross- examination to rebutt the same. Although, it has been submitted on behalf of the defendant that no tracking report / proof of service with regard to the delivery of legal notice dated 12.01.2012 i.e, Ex.PW1/C. However, even if it is presumed that there is no delivery of the said notice then also, it does not cast a doubt on the intention of the plaintiff for proceeding of the execution of the agreement as legal notice was addressed to the right address and the same was duly supported by postal receipt dated 13.01.2012 i.e. Ex.PW1/D. Thus, the submission of ld. Counsel for defendant that the legal notice is not supported by any tracking or delivery report is of no consequence on the intention of plaintiff for the purpose of execution /performance of the agreement.
31. It is also necessary to examine that, the plaintiff was ready with Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 20 / 29 the sale consideration for execution of the sale agreement to see whether the plaintiff has intention to perform his part of contract. In the plaint as well as deposition of the plaintiff /PW1, the fact has been specifically stated that Rs.11,000/- were received by defendant as earnest/ bayana money and the same fact is corroborated by bayana receipt /agreement dated 24.10.2011 i.e. Ex.PW1/B. The fact that on 13.01.2012 the plaintiff sent a letter dated 12.01.2012 thereby requesting defendant to supply the photocopy of the titled documents of the suit property for the purpose of registration and the same is corroborated by letter dated 12.01.2012 i.e. Ex.PW1/C and postal receipt dated 13.01.2012 i.e. Ex.PW1/D. It has also been specifically stated that the plaintiff is still ready to make the balance payment. The same facts remain unrebutted in the cross- examination.
32. Ld. counsel for defendant submitted that the plaintiff was not ready or had means for the payment of consideration of the agreement for which the specific performance is sought. It is correct that one of the paramount condition for the specific relief of performance of agreement is to examine whether the party was ready to perform his part of agreement or coming with only with moonshine excuses. Ld. Counsel for defendant has relied on the following citations which are hereby reproduced with the relevant extracts as follows :-
i) Vijay Kumar & ors. Vs. Om Parkash (2019) 17SCC 429, the same has been discussed in foregoing para i.e. para no.28 of this judgment and the same is not repeated here for the sake of avoiding the repetition.
ii) Rajender Kumar Vs. Rama Bala Gupta (2019) 257 DLT 197 Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 21 / 29 ....."para no.10. I, therefore, hold that the trial court has rightly held that the appellant/plaintiff failed to prove his financial capacity, and therefore there was lack of readiness to go ahead with the subject Agreement to Sell.
......"para no.11. In my opinion, there is another reason why the appellant/plaintiff is not entitled to the relief of specific performance because the relief of specific performance is a discretionary relief. Where a buyer has only paid a very small amount of the total sale consideration as advance payment under the agreement to sell, in such a scenario, the discretionary relief of specific performance should not be granted. This is the ratio of the judgment of the Hon'ble Supreme Court in the case of Saradamani Kandappan (supra) and this judgment has been referred to by this Court in the case of Hotz Industries Pvt. Ltd. (supra). In the present case, it is seen that the appellant/plaintiff has only paid a sum of Rs. 4.50 lakhs out of the total sale consideration of Rs. 27 lakhs, and therefore, the appellant/plaintiff has only paid approximately about 17% of the total sale consideration as advance and therefore, the discretionary relief of specific performance cannot be granted in such a case".....
33. On the other hand, ld. Counsel for plaintiff relied on Raj Kumar Sharma v. Pushpa Jaggi, 2005 SCC OnLine Del 1244 which is already discussed in para no.28 of this judgment and not reproduced here to avoid repetition.
34. On the other hand, in the cross-examination, it has been deposed by PW1 that he has arranged the amount of Rs.7.39 lacs from his brother Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 22 / 29 in law, wife and friends. Further, it has also been deposed that he took a sum of Rs.1 lacs from Depender Walia in cash who is plaintiff's brother in law, he took Rs.2,50,000/- from his wife and Rs.50,000/- each from Ajay Chaurasiya and Deepak and the remaining balance was already with the plaintiff. Thus, the plaintiff seems to be ready with the consideration amount. It is also necessary that the conduct of the plaintiff has also to be considered and the letter dated 12.01.2012 i.e, Ex.PW1/C along with other facts substantiate the intention of the plaintiff that he was ready to make the balance payment. Thus, on careful and minute examination of the facts of this case, this court is of the view that the submission of the ld. Counsel for the defendant is not sustainable as it is not required for the purpose of ready and willingness that the plaintiff will exhibit the currency notes. The only thing which is required that he should be capable and should have the capacity to pay or demand the sale consideration whether from his account or after arranging the same from reliable sources. It is also correct that law does not impose any obligation on the party to exhibit the amount but only his competency together the amount has to be looked into and the intention of the party to fulfill the obligation in regard to payment of the sale consideration and in the present case, the actions of the plaintiff are indicative of the fact that he was ready and willing to perform his part of contract. Due to different facts and circumstances of the present case, the case laws relied upon by the defendants is not applicable to the present case.
35. The defendant has took the objection that as the plaintiff in the rejoinder / replication to the written statement has stated the fact that the Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 23 / 29 agreement dated 24.01.2011 was entered into with the plaintiff by deceased and during pendency of the suit and the same was within the knowledge of the defendants as an affidavit dated 06.09.2013 as a compromise executed by deceased S. Manohar Singh accepting his request and being an old aged person the plaintiff agreed to pay Rs.10,00,000/- as a total sale consideration price of the suit property instead of Rs.7,50,000/- which were already agreed in terms of agreement dated 24.10.2011 and the said fact was also in the notice and knowledge of both the defendants. Thus, the terms of the original agreement dated 24.10.2011 are varied /variance by subsequent agreement dated 06.09.2013 and by virtue of Sec.18(c) of the Specific Relief Act, 1963 the plaintiff can not obtain the performance sought except the variations for set up.
36. Before proceeding further, it is relevant here to consider the provision of Sec. 18 of the Specific Relief Act, 1963 which is reproduced as follows :-
Sec.18. Non-enforcement except with variation.--Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought, with the variation so set up, in the following cases, namely--
(a) where by fraud, mistake of fact or misrepresentation, the written contract of which performance is sought is in its terms or effect different from what the parties agreed to, or does not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contract;
(b) where the object of the parties was to produce a certain Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 24 / 29 legal result which the contract as framed is not calculated to produce;
(c) where the parties have, subsequently to the execution of the contract, varied its terms.
37. Ld. Counsel for the defendant to substantiate his defence has relied upon the judgment of Mangal Milan co-operative Housing Society Ltd. Vs. Sudhir Shah & ors. 2014 SCC Online Bom 1732 with relevant para is reproduced as follows :-
...."33. Section 18 of the Specific Relief Act, 1963 provides that if the parties have subsequent to the execution of the contract, varied its terms, the plaintiff cannot obtain the performance sought except with variation. It is one of the submissions made by the learned senior counsel for the plaintiff that if the defendants are not in a position to contribute the amount for redevelopment of the building, the society would contribute on their behalf and can adjust their contribution by sale of additional flat proposed to be constructed and allotted to the defendants. In my view, the Court cannot compel the parties to accept the alternate proposal made by the plaintiff in a suit for specific performance. Neither any such alternate proposal is forming part of the resolution nor it is supported by the members of the society. On this ground itself, in my prima facie view, the plaintiff would not able to succeed in the suit for specific performance. Sub-section 2(b) and 2(c) of Section 20 of the Specific Relief Act, 1963 makes it clear that the Court may not exercise discretion to pass a decree for specific performance if the performance of the contract would involve some hardship on the defendant which he did not foresee. The Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 25 / 29 Court would not exercise the discretion also in the situation when the defendants had entered into the contract under the circumstances which though not rendering the contract voidable, makes it inequitable to enforce the specific performance.
38. Now, reverting back to the present case, the present case was filed on 17.07.2012 and after filing of the present suit, the subsequent developments with regard to the agreement dated 06.09.2013 took place. As, the relief sought in the present suit is for the specific performance of the main agreement dated 24.10.2011 for which the suit was filed. However, the developments with regard to subsequent change of consideration vide agreement dated 06.09.2013 was only a means of compromise. The same is visible from the contents of the replication as in para no.4 of the replication to refer the affidavit dated 06.09.2013 Ex.PW1/E specific use of the word compromise has been made and relevant contents of the document Ex.PW1/E i.e. agreement dated 06.09.2013, is reproduced as follows :-
...." of Rs.7,50,000/- (Rs. Seven Lac Fifty Thousand Only) but I did not entertained so, than S. Arvinder Singh Kohli went to court and legal case is going on at Tis Hazari Court Case No._______, but I compromise with S. Arvinder Singh Kohli to take legal case back and get registry of same property which we did Agreement previously of Rs.10,00,000/- ( Rs.Ten Lac Only), by paying full and final payment."....
39. Thus, the provisions of Sec. 18(c) of The Specific Relief Act, 1963 and the aforesaid case law is not applicable to the facts and Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 26 / 29 circumstances of the present case as there is no variance in the original terms of the agreement but the purpose of affidavit dated 06.09.2013 Ex.PW1/E is only to settle/compromise the on going litigation. Thus, the submissions of ld. Counsel for defendant are unsustainable and at the same time the submission of the ld. Counsel for the plaintiff seems to be probable that there was no variation in the terms of the original agreement but only to end the dispute of litigation the said compromise was made.
40. The pleadings on behalf of plaintiff is fully corroborated by affidavit of evidence filed on behalf.
It is also one of the defence on behalf of defendant that the bayana / sale agreement had never been executed between the plaintiff and the defendant and the LRs of the defendant does not have any knowledge with regard to the execution of the same. On careful scrutiny of cross-examination of DW1 namely Rattandeep Kaur with MOU dated 10.12.2013, Ex.PW1/P1 on being confronted with the same, she has admitted her signature at point A. Thus, the credibility of witness DW1 Rattandeep Kaur is impeached. Accordingly, the defence of defendant that bayana/ sale agreement was never executed is not sustainable as in the MOU plaintiff was also a party.
41. The objection of the defendant regarding the consideration amount of Rs.11,000/- is with respect to token money and not bayana money.
Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 27 / 29The same on careful scrutiny of the contents of the language of agreement dated 24.10.2011 i.e, Ex.PW1/B and then the subsequent acts of the plaintiff I.e, carbon copy of letter dated 12.01.2012, Ex.PW1/C and the conduct of the defendant being subsequently entering into affidavit/ compromise dated 06.09.2013, Ex.PW1/E makes it clear that the intention is to pay a part of consideration amount and Rs.11,000/- is paid as part of consideration amount of Rs.7.5 lacs. Thus, the objection of defendant is not sustainable.
42. The objection of defendant that, agreement dated 24.10.2011 not being on stamp papers and not being registered or notarized is an invalid document and can not be read into evidence and the same is not specifically enforceable. However, it is settled law that in case a for specific performance of agreement the document can be read into evidence for collateral purposes. Thus, the objection of defendant is not sustainable.
43. Thus, the plaintiff has discharge its onus of Issue no.1,2 & 3 on preponderance of probabilities and the issue no.1,2 & 3 are decided in affirmative i.e, in favour of the plaintiff and against defendants. However, the defendant has failed to discharge their onus of issue no.4 & the issue not 4 is decided against defendant and in favour of the plaintiff.
44. In the light of aforesaid discussion, the suit of the plaintiff stands decreed as under :-
a) a decree of specific performance is passed in favour of plaintiff Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 28 / 29 and against defendant thereby directing the defendants to execute the sale documents in favour of plaintiff for the suit property i.e, Roof rights of Second Floor in Property No.K-58, Krishna Park Extension, Gali No.13, New Delhi-110018.
b) a decree of possession of suit property is passed in favour of plaintiff and against the defendant.
c) a decree of permanent injunction is passed in favour of plaintiff and against the defendant thereby restraining the defendant his agents, legal heirs, successors, servants etc. to sale, transfer, alienate, mortgage, construct, demolish the suit property or part thereof and defendants are further restrained from creating any third party interest over the suit property in any manner over the suit property.
45. Cost of the suit is also awarded to the plaintiff.
46. Decree sheet be prepared accordingly subject to payment of deficient court fees, if any.
47. File be consigned to the record room after due compliance.
Announced in the open Court
[SYED ZISHAN ALI WARSI]
Dated : 06.06.2022 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
Arvinder Singh Kohli vs. Sardar Manohar Singh Page No. 29 / 29