Delhi High Court
S.K. Kochar vs Nimmi Singh And Ors.
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
(1) The plaintiff has filed the Suit seeking Specific Performance and also damages. The defendant No.1 is Mrs. Nimmi Singh. The second defendant Dr. Achhar Singh was the father-in-law of the first defendant and he died pending the suit The third defendant M/s Mahender Jain & Company was a property broker who was set ex parte. The fourth defendant, the Under Secretary, Land & Buildings Department, Delhi Administration, Delhi was deleted vide order dated 24.4.1981.
(2) The suit is against the first defendant Mrs. Nimmi Singh. The plaintiff has prayed for the following reliefs :
(A)direct/make the defendants I and 2 to fulfilll/complete the specific performance of their part of the contract i.e. in terms of the 'Agreement to sell' (Annexure 'A') enter and execute/register sale deed of the said plot of land as mentioned in the 'Agreement to Sell' as subject matter of the sale.
(B)that respondents 1 and 2 be directed to give the vacant possession of the plot in question at the time of execution of the sale deed.
(C)that in addition to the above the defendants land 2 may be further directed to pay Rs. 1 lakh or more as damages as may be assessed by the Hon'ble Court at the time of conclusion of the suit and passing of the final orders and decree in the suit for causing intentionally abnormal delay in performing his/her part of the contract and thus causing great loss in construction costs above to the plaintiff as he could construct his house earlier when all material used in construction as well as labour was almost 50% cheaper than what it is today and there same may further become much more costly by the time the suit is decreed/sale deed is executed.
(3) Before noticing the pleadings,the facts culminating in the filing of the suit have to be stated. In 1963 the first defendant Mrs. Nimmi Singh had purchased this suit property Plot No.9, Block A, Green Park, New Delhi. It is the case of the plaintiff that the first defendant Mrs. Nimmi Singh was represented by her General Power of Attorney Dr.Achhar Singh. The property is described as Plot of land bearing No. Plot No. 9, Block A, Green Park, New Delhi, measuring 601 sq. yds (502.44 sq.mt). The total consideration fixed was Rs. 3,00,000.00 . A sum of Rs. 15,000.00 was paid as an advance. Clause 3 of the agreement provides as follows: Clause 3-That the Vendor has disclosed and has informed the Purchaser that her husband Dr. Satwant Singh is the owner of half share in built up property bearing No. J-18, Hauz Khas, New Delhi, so her and her husband's property (joint) comes under the celling of Urban Land Ceiling Act and they have applied for the exemption from the Ceiling Act and are hopeful to get the clearance very soon. However, if due to any reason the said property is not released and cleared from the Urban Land Ceiling Act or unnecessary delayed even more than three months, in that case the Purchaser own claim for refund or can have the amount paid refunded at any time he likes. Clause 4 reads as under : Clause4-That the Vendor hereby undertakes that he shall within ninety days after getting the clearance of the said plot from the Urban Land Ceiling Act shall obtain income tax clearance certificate required under Section 230-A of the Income Tax Act, 1961 from the Income tax authority and also secure requisite permission for sale from the Competent Authority required under the Urban Land(Ceiling & Regulations)Act, 1976. The Vendor being the British National shall also secure the permission to sell from the Reserve Bank of India.
(4) Under Clause 5 of the agreement the Vendor undertook to intimate, after getting the income tax clearance certificate and the permission for sale, the agreement vendee and and vendor had agreed that on such intimation from the agreement vendor within 15 days the sale deed would be completed. It is stated in Clause 9 that the sale transaction was brought about by M/s Mahender Jain & Co., Property Dealer, Green Park, New Delhi. This agreement for sale is Marked C. (5) On 14.8.1978, the Under Secretary, Land and Building Department, Vikas Bhawan, New Delhi, issued a letter which appears to be a reply to the application for exemption made under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 filed by Dr. Achhar Singh which is exhibited as Mark- P-1, which reads as follows : Sir, I am directed to say that the Lt. Governor, Delhi, after consideration has been pleased to reject your request for grant of exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976.
(6) On 12.5.1975, (Exhibit Dw 1/1), Dr. Achhar Singh wrote to the Competent Authority in the following terms : Dear Sir, This is further to my earlier epistle dated 26.1.1979, received in your office on 27.1.1979 in regard to the captioned matter. As the matter involves extreme urgency, I would request your goodself to be gracious enough to expedite the same. I state hereinbelow, in extreme brevity, the fact relating to the captioned matter. No. Name Date of birth 1. Nisha 14.10.1956 Daughter They are all doing petty job 2. Monika 31.04.1959 Daughter earning not more than Rs. 600.00 p.m.each. 3. Ravinder 26.10.1961 son He will become major by construction time.
Address of all the above mentioned is J-18,HauzKhas, New Delhi. The owner of vacant plot A-9, Green Park, New Delhi, is Mrs. Nimmi wife of Dr. Satwant Singh, is living in London. The original application was submitted within time in 2nd August, 1976 with the declaration to build tenements. I may be permitted to hold the excess vacant land of A-9, Green Park, New Delhi - 110 016 to utilise for construction of flats for weaker section of society at prescribed by the Government on 19th December, 1978 with the terms and conditions within three years as allowed. Declaration is also attached herewith. According to new guidelines issued by Central Government dated 19.12.1978 and later on (Regarding Urban Land Ceiling) Act, 1976, the calculation of land held by Dr. Satwant Singh and his wife is as under:
1/2 share in J-18, 567.00 sq. mtrs. Hauz Khas, New Delhi. A-9, Green Park in the 502.1,1/2 sq. mtrs. name of Mrs. Nimmi wife of Dr. Satwant Singh. Total = 11059.1,1/2 sq.mtrs. Built up area in his share in front portion of J-18, Hauz Khas, New Delhi, which is 1114.8 sq. mtrs. Vi comes to 557.4 sq. mtrs. through 500 sq. mtrs allowed. 250.00-250 Additional land allowed for one family. 500.00 509 919 Balance = Sq.M. 140 The land being marginal and portion of the plot it is respectfully submitted that the same may kindly be exempted from the purview of the Urban Land (Ceiling and Regulation) Act, 1976.
(7) It may be noticed that Dr. Achhar Singh prays for exemption of the Land from the purview of Land Ceiling Act, 1976. No mention is made about the proceedings dated 14.8.1978. There had been two reminders by Dr. Achhar Singh which are Exhibited its Mark B and Mark DD. These documents read as follows : DEARMr. Kochhar, Enclosed herewith please find a copy of my second reminder sent to the Competent Authority, Vikas Bhawan, New Delhi. The letter is self explanatory and speaks for itself about the strenuous endeavours that I am making in pursuance of our agreement for Sale dated 11.1.1978. This is for your records, Dear Mr. Kochhar, Enclosed herewith please find a copy of my third reminder sent to the Competent Authority, Vikas Bhawan, New Delhi. The letter is self-explanatory and speaks for itself about the strenuous endeavours that I am making in pursuance of our agreement for sale dated 11.01.1978. This is for your records.
(8) According to Dr. Achhar Singh, this was the reminder sent by him to the Competent Authority reminding the authority about the application made by him for exemption.
(9) The document marked as Mark D, is a notice issued by Shri N.K. Jaggi, Advocate statedtobehavinghisofficeat6, Alipur Road, Civil Lines Delhi-110054, is the notice issued to the plaintiff and the same reads as follows : Dear Sir, I have been instructed by and on behalf of my client Dr. Achhar Singh son of Shri Lal Singh, resident of J-18, Hauz Khas, New Delhi -110016 (hereinafter to referred to as the 'Attorney',General Attorney for and on behalf of Shrimati Nimmi Singh, wife of Dr. Satwant Singh resident of 4, Glen how Wood, 'The Chase', Kingswood, Surrey, England to serve upon you the following Legal Registered acknowledgement Due Notice and to inform you as follows, which I do hereby:
1.That you entered into an Agreement to Sell, with my said client on behalf of the aforesaid Smt. Nimmi Singh, in respect of plot of land No. 9 measuring 601/2 squares yards in Block No. 'A' situated in the residential colony known as 'Green Park', New Delhi in Village Yaqatpur, Union Territory of Delhi, on the 11th day of January, of the year one thousand nine hundred and seventy eight Anno Domini.
2.That the said Smt. Nimmi Singh, had vide the aforesaid agreement to Sell categorically, stipulated to sell through her General Attorney the hereinbefore, mentioned plot of land for a total pecuniary consideration ambivalent to Rs. 3,00,000.00-(Rupees three lakhs only) upon sundry terms and conditions embodied in the said agreement.
3.That vide Para 1 of the aforesaid agreement dated 11th January, 1978, you agreed to pay a sum of Rs. 15,000.00 (Rupees fifteen thousand only) as the earnest money for the purchase of the said plot. I am further instructed to say that the sum of Rs 15,000 .00 was actually paid by you to my client for which a receipt was duly issued by my said client.
4.That my said client vide Clause 3 of the aforesaid agreement to sell agreed to the following terms and conditions, which are being reproduced hereinbelow (or your ready reference :
"THAT the Vendor has disclosed and has informed the purchaser that her husband Dr. Satwant Singh is the owner of half share in built up property bearing No. J-18, Hauz Khas, New Delhi, so her and her husband's property (joint) comes under the ceiling of Urban Land Ceiling Act and they have applied for the exemption from the Ceiling Act and are hopeful to get the clearance very soon. However, if due to any reason the said property is not released and cleared from the Urban Land Ceiling Act or unnecessarily delay even more than three months, in that case the Purchaser can claim for refund or can have amount paid refunded at any time he likes".
5.That my said client in pursuance of the aforesaid agreement to sell duly applied to the Competent Authority, Vikas Bhawan, New Delhi, on 27.1.1978, praying that the demised premises, may kindly be exempted from the purview and ambit of the Urban Land Ceiling Act. It would not be in-appropriate to mention at this juncture that my said client had made categorical submissions as to why the property in question be exempted from the scope of the said Act.
6.That thereafter my said client authorise Shri Jitender Valia, resident of J- 18, Hauz Khas, New Delhi, to diligently and industriously to pursue the matter with the concerned authorities, the said Shri Jitender Walia, visited the concerned authorities on innumerable occasions and made a strenuous endeavours to seek appropriate clearance/exemption orders from the relevant authorities.
7.That thereafter, my said client sent another written reminder on 12.5.1979 to the Competent authority, Vikas Bhawan, New Delhi, seeking the same relief.
8.That finding that no action has been taken on the said application my client sent another reminder on 28.5.1979.
9.That my said client found that no positive action was being contemplated by the concerned authorities upon the sundry representations made bv him, he was constrained to send yet another reminder to the same effect on 25.6.1979. Copies of the said last two reminders alongwith the covering letters have been also sent to you for your necessary information.
10.That inspite of all these representations my said client found that the entire endeavour in seeking the relief from the concerned authorities was nothing but an exercise in futility. It was under such circumstances that my said client was constrained to perforce to authorise Shri Jitender Walia mentioned hereinbefore to make personal enquiries and to expedite the matter.
11.That my said client has been given to understand that his sundry representations are still under consideration by the relevant authorities and the requisite clearance may take some more time, which may exceed a period of one year also.
13That since my said client has acted in extremely bonafide manner, when he entered into an agreement to sell dated 11th January, 1978, he does not want you to suffer hardships and duress for certain acts beyond his control and, therefore, returns herewith the amount of Earnest Money tantamounting to a pecuniary sum ambivalent to Rs. 15,000).00 (Rupees fifteen thousand only) vide Cheque No.HZK 115719 dated 16.7.1979 drawn on Bank of India, Hauz. Khas, New Delhi.
14.That my said client has been constrained to return the sum of Rs. 15.000.00 owing to inevitable circumstances over which he has no control. I, therefore, now call upon you through this legal notice to accept the aforesaid cheque for Rs. 15,000.00 (Rs. fifteen thousand only), issue a valid receipt thereof within a week of the receipt of this letter, and to further treat the agreement to Sell dated 11th January, 1978, as mutually rescinded and revoked, immediately on receipt of this letter. A copy of the notice has been retained in this office for further reference.
(10) In the notice no date is mentioned. It is stated in the reply by the plaintiff that it was received by the plaintiff on 28/29,7.1979. Therefore, we may take it that this notice might have been issued towards the end of July 1979. The reply to the notice is dated 10.8.1979 which reads as follows : Dear Sir, Your notice (undated), received per U.P.C. by our client on 2.8.1979 and per R.A.D. cover on 3.8.1979, sent by you on behalf of your client Dr.Achhar Singhs on of Shri Lal Singh resident of J -18, Hauz Khas, New Delhi -110016, acting as General Attorney of Smt. Nimmi Singh.wife of Dr.Satwant Singh, to our client Shri S.K. Kochhar son of Shri J.M. Kochhar, of B-4/2. Safdarjang Development Area, New Delhi - 110016, now living at F-1 /3, Hau/. Khas Enclave, New Delhi, has been placed in our hands by our said client with instructions to reply the same as follows: 1-4. Contents of paras to 4 of your notice refer to the contents of the agreement and so far as the said paragraphs of your communication are not inconsistent with or contrary to the contents of the said document, the same require no comments. Anything repugnant to the contents of the agreement dated 11.1.1978 is denied by our client.
5.In reply to para5,of your notice our client does not admit if your client made any genuine or sincere efforts to obtain necessary permission from the Competent Authority under the Urban Land (Ceiling and Regulation) Act. Had your client made sincere and genuine efforts to get the permission under the said Act, it ought to have been granted long ago.
6.Para No. 6 of your notice is denied. No sincere and genuine efforts have at all been made by your client to perform his part of the contract and to materialise the transaction, and the alleged efforts appear to be just by way of an eye wash and manipulations on the part of your client for some ulterior motive.
(11) 7-9.Contents of paras 7 to 9 of your notice as stated are not admitted. Please refer to para No. 6 above in this connection.
(12) Contents of paras No. 10 to 12 of your notice as stated are not admitted by our client, our client states that your client has been and is manipulating the things in such a manner as to find an excuse to avoid the contract of sale, but our client would not permit your client to do so.
(13) The alleged representations and the alleged visits of Shri Jatinder Walia to the concerned authorities are nothing but a camouflage and maneuvering the things by your client for an ulterior purpose.
(14) In reply to para No. 13 of your notice our client denies that your client has acted in extremely bonafide manner. It is so benevolent on the part of your client to assert that he does not want our client to suffer hardships and duress for certain acts of your client; but it is absolutely false on the part of your client to allege that his acts are beyond his control. In fact, no genuine and sincere effort has so far been made by your client to obtain the necessary permissions from the concerned authorities to transfer The property in question to our client. The cheque sent by you in the sum of Rs. 15,000.00 (Rupees fifteen thousand only) purporting to be dated 16.7.1979 drawn on Bank of India, Hauz Khas, New Delhi, has not at all been accepted by our client and the same is being returned to your client alongwith a copy of this reply/notice, and your client is hereby informed that the contract of sale is in full force virtue and it continues. My client had throughout been and even now is ready and willing to perform his part of the contract and there is no question of the acceptance of the said sum of Rs. 15,000.00 as refund from your client which was paid to your client by our client in part performance of the contract dated 11th January, 1978. It is neither being rescinded or revoked and therefore the said contract remains in full force and virtue as aforesaid. Our client states that if for any reason whatsoever the land or building belonging to Smt. Nimmi Singh and her husband Dr. Satwant Singh was to be clubbed together for the purposes of the Urban Land (Ceiling & Regulation) Act, 1976 and the rights of our client under the said Agreement to Sell cannot at all be jeopardised or adversely effected in any manner whatsoever. Your client cannot be allowed to make lame excuses in this connection.
(15) In a reply to para No.l4 of your notice please refer to the facts and circumstances mentioned above. There is absolutely no inevitable circumstances with your client for returning the sum of Rs. 15,000.00 to our client. Our client is not bound to accept the refund of the said amount and he has not at all accepted the same. The cheque in the like amount sent by you to our client is being returned to your client as mentioned above. Our client is not prepared to rescind or revoke the contract dated 11.1.78 and the same remains in full force and virtue and your client is bounded to fulfill and perform his part of the contract. We hope better sense would prevail upon your client and your client would behave property as a gentleman and perform his part of the contract to transfer the contracted property to our client in terms of the agreement of sale referred to above. Please inform and advise your client accordingly. It may be noticed that Mr. Jatinder Walia was authorised to pursue the matter before the Competent Authority, on the ground that the representation made by Dr. Achhar Singh was still under consideration for obtaining clearance may take some more time, the earnest money of Rs. 15,000.00 is returned to the plaintiff.
(16) What is stated in para 13 is relevant and it may be noted that the learned Counsel referred to the agreement dated 11.1.1978 and the learned Counsel would state that his client was extremely bonafide and owing to the delay by the authority, he did not want the plaintiff to suffer hardship. Therefore, the execution of the agreement for sale is clearly admitted even in the first notice he issued in July 1979. The plaintiff through his Counsel Mr. Sukhija Associates, having its office at 5061, Sharma Building, Sirkiwalan, Delhi, issued reply to the notice issued by Mr. N.K. Jaggi. This is marked as Mark D. Reply is dated 10.8.1979.
12.The plaintiff did not want to receive the sum of Rs. 15,000.00 . He wanted to enforce the agreement. The plaintiff's Counsel apart from sending the reply to Mr. N.K. Jaggi sent a copy to Dr. Achhar Singh being the General Power of Attorney of Mrs. Nimmi Singh.
13.On 24.8.1979, M/s Sukhija Associates, Counsel for the plaintiff, wrote to Mrs. Nimmi Singh in England. A copy of this notice was issued to Mahender Jain and Company, property dealer in the following manner: This letter is marked as Mark E Madam, Under instructions from and as Advocates for our client ShriS. Kochhar son of Shri J.M. Kochhar now residing at E-1/3, Hauz Khas Enclave, New Delhi (India), we convey you as follows : 1. As you know it full well, you entered into an Agreement of sale dated 11th - January, 1978, with our client Shri S.K. Kochhar through your General Attorney Dr. Achhar Singh son of Lal Singh for sale of plot No. 9, admeasuring 601 sq. yds in Block No. A, situated in the residential colony known as Green Park, New Delhi, in Village Yaqatpur in the Union Territory of Delhi, in favour of our client. In this connection enclosed herewith please find a copy of our communication No. SA/H/82/79 dated 10.08.1979 originally addressed to Shri Navin Kumar Jaggi, Advocate, 6, Alipur Road, Civil Lines, Delhi and a copy alongwith enclosure to your General Attorney. The said copy alongwith its enclosure has since been received by your General Attorney on 16th August, 1979. Our aforesaid communication is self explanatory and is being sent to you for your information and compliance. Yours faithfully, sd/- (Hukam Chand Sukhija) for Sukhija Associates. Copy to:
(17) (I) M/s Mahender Jain & Co., Property Dealers, D-IA, Green Park, New Delhi alongwith a copy of our communication dated 10.08.79 with reference to; for favour of information and with the request that they would see to it that the Vendor keeps up the commitment as undertaken by the Vendor, vide Agreement dated 11.1.1978.
(18) The counsel referred to the reply given by it dated 10.8.1979 to the notice given by Mr. N.K. Jaggi in July, 1979.
(19) On 25.8.1979, Mr. D.K. Kapur, learned Counsel, on behalf of Dr. Achhar Singh as attorney of Mrs. Nimmi Singh, sent a reply to the notice dated 10.8.1979 by M/s Sukhija Associates. This letter is marked as Mark -1. This letter reads as follows: Dear Sir, I have been handed over your reply dated 10.8.1979 through your Advocate, M/s Sukhija Associates in reply to the notice of my clients Dr. Achhar Singh son of Shri Lal Singh, resident of J-18, Hauz Khas, New Delhi, as attorney of Smt. Nimmi Singh wife-of Dr. Satwant Singh, and with reference to the same I have been instructed to state as under : 1. That the contents of your said reply are absolutely wrong and are denied by my client. I again reproduce Clause 3 of the agreement dated 11.1.1979, which reads as under : ."THAT the Vendor has disclosed and has informed the Purchaser that her husband Dr. Satwant Singh is the owner of half share in built up property bearing No. J-18, Hauz Khas, New Delhi, so her and her husband's property (joint) comes under the ceiling of Urban Land Ceiling Act and they have applied for the exemption from the Ceiling Act and are hopeful to get the clearance very soon. However, if due to any reason the said property is not release and cleared from the Urban Land Ceiling Act or unnecessarily delay even more than three months, in that case the Purchaser can claim for refund or can have the amount paid refunded at any time he likes".
Thus from the above it is clear that the contract was contingent upon and was subject to the grant of exemption by the Urban Land Ceiling Authority, and in case of refusal by the said authority, or even in case no exemption was granted within 3 months of the date of agreement, the agreement was to come to an end.
2. That thus the agreement virtually came to an end, and all rights and obligations under the said agreement ceased to exist all the expiry of the period of 3 months from the date of agreement, as the exemption was not granted inspite of best efforts of my clients through their Attorney, and through Jatinder Walia and also by your clients even, personally.
3.That the Competent Authority vide its letter No. F.36 (11)/865/76-L&B (ULC/30637 dated 14th August, 1978, as you know, has already refused the exemption permission. This letter was issued by the authorities, after your client also had perused the matter with the said authorities. Your client is well aware that my client has vigorously persued the matter but has not been successful in getting exemption, and the exemption/permission has been refused, as stated above.
4.My client sent the cheque for Rs. 15,000.00 in terms of clause 3 of the agreement, but the same was sent back to my client. This as stated above was in terms of agreement which came to an end at the expiry of 3 months of the date of agreement. No rights or obligations subsisted after the said date.
Your client is most welcome to collect the amount of Rs. 15,000.00 any time he likes from my clients. The contents of earlier notice sent by my client are also reiterated. In view of this, please note that the contract came to an end as stated above, my client will not enter into any correspondence whatsoever in this matter, and the chapter may be treated as closed further correspondence in this connection will be absolutely ignored, and plot utilised by my clients in any manner he likes. Here it may be noticed that mention is made about the letter dated ^4.8.1978 wherein the exemption was refused. In this rejoinder the Counsel reiterated that the plaintiff could come and collect Rs. 15,000.00 and the chapter may be treated as closed. It may be seen that reliance is placed by the learned Counsel on Clause (3) of the agreement and he stated that as the permission had been refused by authority under Land Ceiling Act, the plaintiff cannot seek any relief under the agreement.
(20) On 17.11.1979 Mr. D.K. Kapur, learned counsel issued a notice to the plaintiff on instructions from Mrs. Nimmi Singh. This letter is marked as Exhibit P-1. The notice reads as follows: Dear Sir, Under instructions from my client Smt. Nimmi Singh wife of Dr. Satwant Singh resident of 4, Glewhow Wood "The Chase" Kingswood, Surrey, England. I have to state as under :
1.That reference is invited to my previous notice dated 25th August, 1979, and notice of Shri Navin Naggi, Advocate received by you on 02.8.1979, and other correspondence and .personal discussions, in which you were requested to collect your amount of Rs. 15,000.00 from my client, you have not collected the amount so far. It may be recalled that the amount had earlier been sent to you, but you refused to accept the same and sent back the cheque.
2.Now please note that as the transaction regarding Plot No. 9, Block-A, Green Park, New Delhi had come to an end in view of authorities having declined the permission as intimated to you, and known to you, and even your efforts having failed in this regard, you are once again requested to collect your amount within 7 days of the receipt of this notice, failing which the same shall stand forefeited.
My client is however now starting the construction on the said plot immediately on approval of the construction plans by the Municipal Corporation of Delhi and other concerned authorities. Yours faithfully, sd/- D.K. Kapur Advocate (21) From this it is very clear that the first defendant was fully aware of the agreement for sale, aware of the notice dated 25.8.1979 (Mark-1) and the contents thereof and the agreement was rescinded by the first defendant only on the ground that the authority had declined permission which was intimated to the plaintiff.
(22) On 14.3.1980, Ms. Avnish Mahajan, learned Counsel for the plaintiff sent a notice to the first defendant, who resides in England. This notice is marked as Mark-J. This notice reads as follows : Dear Madam, Under instructions from my client Shri S.K. Kochhar son of Shri J.M. Kochhar resident of F-1/3, Hauz Khas, New Delhi 110 015, I serve upon you the following legal notice:
1.That you have agreed to sell your plot of land No.9 measuring 601 sq. yds. in Block No.4, situated in residential colony known as Green Park, New Delhi, in village Yaqatpur in the Union Territory of Delhi.
2.That an agreement to sell was executed by Dr. Achhar Singh, your general attorney on your behalf, with my client on 11.1.1978.
3.That you agreed to-sell the said plot for a total consideration of Rs. 3,000,00.00 (Rs. three lakhs only) out of which my client paid Rs. 15,000 / -to you as earnest money and a receipt for the same amount was issued to my client by your general attorney.
4.That according to the terms of the contract, and law you have to take permission from the Competent Authority seeking exemption from the Ceiling, under the provisions of Urban Land (Ceiling & Regulation) Act, 1976; you were also supposed to seek permission from the Competent Authority for the sale of the said land, which you have failed to do so.
5.That instead of taking any action for the fulfillment of the contract, your attorney has sent a frivolous notice undated which was received by my client through his Counsel on 2.8.1979 returning the earnest money and rescinding from the contract.
6.That the earnest money has been returned to your attorney through my client's council vide his notice dated 10.8.1979 as in a legal binding contract you have no right to rescind from the contract.
7.That your intention to rescind from the contract is also apparent from your frivolous notices dated 25.8.1979, 17.11.1979 received one after the other, you also have no right to forfeit Rs. 15,000.00 earnest money given to you in the contract as alleged by you in your notice dated 17.11.1979. In the contract you have no option to rescind from the contract.
8.That negligently, illegally, with ulterior motive you have not moved the Competent Authorities for permission to sell the said plot to my client
9.That agreement to sell has not come to an end, merely by your saying so. You cannot utilise the plot in any manner you like and construction on the plot will be contrary to law and at your cost.
10.That you are hereby asked to restrain yourself from acting in any manner contrary to the agreement to sell. You are also restrained from selling or disposing off the said plot in any manner and from raising any structure on the said land.
11.That in case any further motion is taken by you contrary to the interest of my client on the said plot, you will be liable to make good all the loss and damages which my client suffers.
12.That in case any action is taken to harass my client with delaying tactics you will be responsible for paying my client interest at the rate of 18% on earnest money from the date of payment, and also interest at the rate of 18% per annum on damages.
13.You are, therefore, asked to fulfill your part of the contract within 7 days from the date of receipt of this notice i.e. by moving the Competent Authority for permission to sell the plot and execute a sale deed in favour of my client.
14.That in case no action is taken on your behalf, to fulfill the contract between the parties, the legal consequences will follow at your expense. You are also to pay Rs.550.00 as Counsel's fee for this notice.
15.That in case the application is moved to the Competent Authority for permission to sell the plot, the same may also be communicated to my client at the earliest. A copy of this notice has been retained in my office for future reference.
(23) On 26.3.1980 the same Counsel wrote to Dr. Achhar Singh in the following terms: I have served a notice dated 14th March, 1980 on Mrs. Nimmi Singh, owner of Plot No. 9, measuring 601 sq.yds. in Block A, situated in residential colony known as Green Park, New Delhi. A copy of the said notice is being enclosed herewith to take necessary action by you, you being attorney of Mrs. Nimmi Singh. This notice is marked as Mark-K. (24) On 18.4.1980, Mr. Gajanand, Advocate, 2, East Park Road, New Delhi- 110 005 issued notice to the plaintiff on instructions from Mrs. Nimmi Singh. This is marked as Exhibit, Dl/2. The notice reads as follows : Dear Sir, Under instructions from and on behalf of my client Mrs. Nimmi Singh wife of Dr. Satwant Singh, resident of 4, Glewhow Wood, The Chase', Kingswood, Surrey, England, I acknowledge the receipt of your notice dated March 14, 1980, served on your behalf by Mr. Avnish Ahlawat, Advocate, Delhi and have instructions to reply the same as under :
1.That at the time of the alleged agreement of sale dated 11.1.1978 by Dr. Achhar Singh, my then attorney was sick and was mentally and physically damaged by an attack of stroke on 1.1.1978. That Dr. Achhar Singh was not mentally fit to sign the alleged agreement dated II.1.1978 and was not fit to enter into any contract. "Dr. Achhar Singh the then attorney of my client was entered into contract to sell the property when he was mentally unfit". The said agreement is not bind upon my client. Dr. Achhar Singh got a sudden attack of stroke on 1.1.1978 which was a natural phenomena and not man made one, at the age of 82 years. It has transpired that yourself and Mr. Vijay Jain of Mohinder Jain Property Dealer or Green Park, knowing well that Dr. Achhar Singh who was sick and mentally deficient because of an attack of stroke on 1.1.1978 conspired and got his signature on the said agreement on II.1.1978 while he was not mentally fit to deal with any property transaction or enter into any agreement.
2.That Mr. Vijay Jain of Mahinder Jain & Company, taking advantage of the infirmity and weakness of the mind of Dr. Achhar Singh and taking advantage of his incapacity to understand took Rs. 5,000.00 in cash from Dr. Achhar Singh as an advance for the alleged sale of plot A-9, Green Park, New Delhi, which a normal man will never give as an advance commission for sale of any other property.
3.That my client in 1979 had appointed Mrs. Sudershan Kumari alias as Attorney in place of Dr. Achhar Singh who had two attacks of stroke, one on 1.1.1978 when he got coma and thereby his brain was damaged. He became totally blind in right eye because of clot in main artery to Retina and he also got partial paralysis of both right limbs. He also then suffered second attack on 18.3.1978 by which he got paralysis of both left limbs due to thrombosis.
4.That it is well known medical fact that such type of attack of stroke involving either right or left side of the body causing loss of intellect and memory and loss of decision making and causes damage to the brain, and Dr. Ichhar Singh was involved in two attacks, one on 1.1.1978 and second on 18.3.1978.
5.That without prejudice to the above said contentions, it is pointed out that the plot of land held by my client is in excess of the Urban Land (Ceiling) Act and Competent Authority under the Urban Land Ceiling Act, had conveyed to my client that exemption under Section 20 of the Urban Land (Ceiling & Regulation) Act, 1976 cannot be granted to my client and my client cannot get any permission for the sale of the same, and the agreement which was void is also otherwise is invalid and unenforceable and has become void.
6.That you are only entitled to Rs. 15.000.00 only and that was returned to you as you had desired, but later on you changed your mind and returned the cheque back.
7.That vide notification dated 19.12.1978 and 25.12.1978 whereby general amnesty to about 4000 vacant plots in Delhi, under Urban Land (Ceiling & Regulation) Act, 1976 was given on the condition :
(A)specified flats to be constructed for poor sector of society in vacant plots in 3 years period.
(B)one such flat should be in the name of one person and so on.
(E)According to March, 1979, Government Notification in A glomeration New Delhi the sale price of one floor area of one such flat was fixed as Rs. 50.00 per sq. meter which is far less than Rs. 3 lacs, for plot No. A-9, Green Park, New Delhi.
8.That it is pointed out that the said unenforceable and void agreement was made on 11.1.1979 while the Government notification on the subject came later on 19.12.1978, 25.12.1978 and in March 1979. The said agreement has become void and impossible for performance otherwise also.
9.That it is mentioned in the said agreement that if the Land Ceiling Authority does not give permission for sale 'for three months and a few days in more, then you can take back the advanced money. The plot No. A-9, Green Park, New Delhi could not be sold unless the flats were constructed under the Urban Land (Ceiling & Regulation) Act. The validity of the said agreement is challenged. In any case after expiry of three months when the permission was not granted, the agreement came to an end. My client is not bound by the alleged agreement and does not accept any obligation or responsibility on her.
10.That there is no question of charging any interest from my client. You can take money back as already pointed out to you. Please take notice that if inspite of this any action is taken against my client and my client is involved in any litigation, the same shall be defended at your cost and responsibility and you shall be held liable for all costs and consequences which my client may have to incur in defending the same.
Yours faithfully, sd/- (Gaja Nand) Advocate This is only a reply to the notice dated 14.3.1980. For the first time, it is stated that Dr. Achhar Singh was not medically fit to enter into an agreement and the plaintiff and the property dealer had played a fraud on Dr. Achhar Singh. The Advocate would specifically state in the notice dated 14.3.1980 that " Dr. Achhar Singh the then attorney of my client, entered into an agreement to sell the property when he was mentally unfit and the said agreement is not binding on my client".
(25) This has to be kept in mind to appreciate later on, the evidence of DW-1, the first defendant Mrs. Nimmi Singh.
(26) Then on 4.5.1980 the plaintiff's counsel issued a public notice in the Hindustan Times Weekly Sunday May 4, 1980 in the following terms : Public Notice (DO Not Buy - Plot N0.9 Block A Green PARK) To Whom IT. May Concern It is notified for general information that Dr. Achhar Singh son of Shri Lal Singh, resident J-18, Hauz Khas, New Delhi, in his capacity as general attorney has a long-standing contract with us to sell Plot No. 9, Block-A, Green Park lying on Mehrauli Road, belonging to his daughter-in-law Mrs. Nimmi Singh w/o Dr. Satwant Singh, resident of 4, Glewhow Wood, the chase, Kingswood, Surrey, England. It has come to our knowledge that now the said general attorney is negotiating with other parties also for the sale of the same plot. If any party makes any kind of transaction in relation to the above-mentioned plot either with the owner or with her general attorney or with anybody else, he will be doing so at his own risk and cost and without prejudice to our right under the contract, which please note. S.K.Kochar F-1/3, Hauz Khas Enclave, New Delhi -16. This is marked as Mark-H. (27) On 4.12.1980 Mr. N.N. Gupta learned Counsel for the plaintiff wrote to the Under Secretary, Land & Building Department, Delhi Administration, Delhi. The same is marked as Mark-0. The notice reads as follows : Sir,
1.This legal notice is for your suitable and appropriate action the facts of which are as under:
2.This legal notice is on and under instructions of my client Shri S.K. Kochher son of Shri J.M. Kochhar resident of E 1/3, Hauz Khas Enclave, New Delhi.
3.One Dr. Achhar Singh, son of Sri Lal Singh resident of J-18, Hauz Khas, New Delhi holding General Power of Attorney for and on behalf of Smt. Nimmi Singh wife of Dr. Satwant Singh, resident of 4, Gleshow Wood, "The Chase", Kingwood, Surrey, England entered into an agreement to sell, with my client Sri S.K. Kochher on behalf of the aforesaidSmt.Nimmi Singh in respect of plot of land No. 9 measuring 6015q. Yards in block No. 'A' situated in the residential colony known as 'Green Park' New Delhi, in Village Yaqatpur, Union of territory of Delhi on the 11th day of January of the year one thousand nine hundred and seventy eight A.D i.e. on Ii January, 1978.
4.That Dr. Achhar Singh claims that in pursuance of the aforesaid agreement to sell have made all conceivable effort to get exemption from purview and ambit of. the Urban Land Ceiling Act. He further asserts that he duly applied to the Competent authority, Vikas Bhawan, New Delhi on 27.1.1978, praying that the demised permission may kindly exempted from the scope of the said Act. He further states that he through one Sri Jitendra Walia made all efforts to get the above said exemption from you. "That Sri Jitendra Walia pursued the matter to seek appropriate clearance/exemption from you i.e. relevant authorities.
5.He further states that Dr. Achhar Singh sent another written reminder on 12.5.1979 to the Competent Authority, Vikas Bhawan, New Delhi, seeking the same relief. That finding that no action has been taken on the said application he sent another reminder to you for the same purpose on 28.5.1979. That he finding no positive action being contemplated by the authorities sent yet Another reminder to the same affect on 25.6.1979.
6.That the above said person Sri Jitender Walia visited the concerned authorities personally on three different occasions subsequent to the last representations dated 25..06.1979. He further states that he was made to understand by you the Competent Authority that his sundry representations were still under considerations and the requisite clearance may take some time which may exceed a period of one year also with effect from some time in the end of July, 1979.
7.That you are requested to inform the querries given as under for the information of my client so that he may knew as to what exact action Dr. Achhar Singh the first party to the Agreement to sell with my client has taken with you in this connection and what has been the progress till this date.
(A)Whether 'the contents of the above paras 4, 5 and 6 are correct, (b) Whether Dr. Achhar Singh applied seeking exemption in respect of the plot of land as described in para 3 of this notice. (e) That whether Dr. Achhar Singh asked exemption in respect of the said plot in order to sell it in fulfillling his part of the agreement to sell with the specific permission to sell die same to my client Shri S.K. Kochhar son of Shri J.M. Kochhar. (d) That it was asked for the specific purpose of selling to Shri B.K. Kochhar and no else. (e) Please let this office know the action taken at your end in this respect.
8.It is requested and expected from you that you will very kindly give the above information to the undersigned, for the sake of my client at a very early date so that he may be able to know the real facts and the matter as it stands today. You are requested to very kindly take a very early action.
9.You are hereby asked to take necessary action in this respect within 30 days of the receipt of the notice otherwise my client may be constrained to implead you as a necessary party in any legal proceed ings he takes against Dr. Achhar Singh the aforesaid general power of attorney, the first party to the sell of agreement/and in that case all responsibility of your being imp leaded in the legal proceeding and its consequences will be entirely yours.
Yours faithfully, sd/- (N.N. Gua) Copy to: (A)The Competent Authority U.L.C. Act D Block, Vikas Bhawan, New Delhi. (CAD No. 180/ULC176) (b) To the Commissioner Mcd, Town Hall, Delhi (c) To the Deputy Commissioner, Competent Authority (Tis Hazari Courts) Room No. 46, 1st Floor, New Delhi.
You are all requested to take an appropriate and a very early action being the Competent Authority/or, part of Competent authority and take the contents of this notice likewise for favour of information and compliance within 30 days of the receipt of this notice.
(28) The plaintiff not getting any response from the first defendant, has instituted the suit on the 7th of the March, 1981. The plaintiff refers to the agreement dated 11.1.1978 between him and Dr. Achhar Singh as the attorney of the first defendent. The first defendant purchased the property on 11.2.1963 from M/s Urban Improvement Company Pvt. Ltd., Connaught Place, New Delhi. The first defendant represented that she was the owner of the property. Out of the sale consideration of Rs. 3,00,000.00 a sumofRs.l5,000.00 was paid and the balance Rs. 2,85,000.00 was to be paid at the time of execution and registration of the sale deed. In the agreement the Vendor had undertaken that she would execute the sale deed within 90 days after getting the clearance under the Urban Land (Ceiling and Regulation) Act, 1976 and obtaining income tax clearance certificate under Section 230A of the Income Tax Act, 1961 and after securing the requisite permission for sale from the Competent Authority under the Urban Land (Ceiling Regulation) Act, 1976, the first defendant undertook to have permission to sell from the Reserve Bank of India, she being a British national.
(29) The plaintiff states that he has been ready and willing to perform his part of the contract and he approached the second defendant Dr. Achhar Singh, father- in-law of the first defendant to obtain necessary permissions and clearance certificate and that was not done. Referring to the correspondence and the notice that exchanged between the parties, the plaintiff would state that the first defendant did not inform the plaintiff about the steps taken by her in conformity with the terms of the contract. The first defendant did not give to the plaintiff copies of the applications for exemption or the proceedings from the Competent Authority and the plaintiff in the nature of things could not make any 'efforts because everything was to be done by the first defendant. It was with ulterior motives that the first defendant is refusing to perform her part of the contract. Seeing the attitude of the first and second defendants, the plaintiff issued a public notice on 4.5.1980. On these facts the relief is claimed by the plaintiff. The plaintiff also claimed the relief of damages to the tune of Rs. 97,200.00 with interest and in round figures Rs. l,00,000.00 is claimed towards expenditure and for putting up construction on the land.
(30) On 5.1.1982, the written statement was filed by the first defendant through her general power of attorney Smt. Sudarshan Kumari Walia, through the Advocate Mr. M.L. Lonial, Advocate.
(31) It is the case of the first defendant that the suit is barred by limitation because the agreement was dated 11.01.1978 and the plaint was presented on 05.01.1981. The suit is bad for misjoinder of defendants 2, 3 and 4. The plaintiff is guilty of breach of contract. The plaintiff has not come to the court with clean hands. The second defendant. Dr. Achhar Singh was mentally and physically incapable of entering into any agreement. The grant of exemption under Section 20 of the Urban Land (Ceiling & Regulation) Act, 1976 was a condition precedent. Since no such exemption was granted, the agreement had come to an end. In para 7 of the preliminary submissions, it is stated thus : That the answering defendant is a citizen of United Kingdom. She cannot sell the suit plot without the permission of the Reserve Bank of India. Even in January, 1978 the market value of the suit plot was over Rs. 12,00,000.00 . Now it is very much more. The plaintiff and the defendant No. 3 perpetrated fraud (particulars whereof are given below) on the defendant No. 2 and obtained his signatures on the alleged agreement of sale dated 11.1.1978 showing the sale price of the said plot as Rs.3,00,000.00 . The Reserve Bank of India is bound to reject the application of the answering defendant under Section 31(1) of the Foreign Exchange Regulations Act, 1973' if she seeks permission to sell the suit plot at Rs. 3,00,000.00 .
(32) In para 2 of the written statement on the merits, it is denied that the second defendant was the general power of attorney of the first defendant. In para 3 it is stated thus: So far as the defendant No. 2 is concerned; firstly, he was not authorised to enter into any such agreement; secondly, the defendant No. 2 had a stroke of cerebral thrombosis on 1.1.1978 and was mentally incapacitated; and thirdly, the plaintiff and Shri Vijay Jain of the defendant No. 3 entered into a conspiracy and perpetrated fraud on the defendant No. 2 and obtained the signatures of the defendant No. 2 on the alleged agreement dated 11.1.1978 by perpetrating fraud on him.
(33) It is asserted that fraud was played and according to the first defendant the following are the particulars of fraud : In 1977 defendant No. 2 was 82 years old. He was senile and was suffering from all the adverse effects and weaknesses of extreme old age. On 1.1.1978 the defendant No.2 suffered a cerebral stroke. He became totally blind in the right eye because of a clot in the main artery of the retina. His right side limbs were paralysed. On account of damage to his brain, he suffered loss of memory, power of thinking and the power of taking proper decisions. He was totally incapacitated mentally and to a great extent physically. The plaintiff and Shri Vijay Jain of the defendant No. 3 conspired to take undue advantage of the said condition of the defendant No. 2. They got prepared the suit agreement, mentioning very low price for the suit plot and without reading out and explaining to the defendant No. 2 (the defendant No. 2 was incapable of reading and understanding the same himself) obtained the signatures of the defendant No. 2 on it. The said Vijay Jain took undue advantage of the said physical and mental incapacity to such an extent that though the alleged transaction was at its initial stage, he took the sum of Rs. 5000.00 as brokerage from the defendant No. 2. This kind of tiling is absolutely unheard of in the sale and purchase of immovable properties. It may be mentioned that the market value 'of the suit plot in January, 1978 was over Rs. 12,00,000.00 but the plaintiff and the said Vijay Jain taking undue advantage of the physical and mental incapacity of the defendant No. ? dishonestly and with ulterior motive mentioned the price of the said plot at Rs. 3,00,000.00 . It may be mentioned that on 18.3.1978 the defendant suffered another stroke resulting in paralysis of the left side. Thus the said agreement dated II.1.1978 is vitiated by fraud and as a result void, illegal, invalid and not binding and enforceable.
(34) In para Ii it is stated that "it may be mentioned that the answering defendant did not instruct Mr. N.K. Jaggi, Advocate and Mr. D.K. Kapur, Advocate to send the said notice". Thereafter in para 12 it is stated "notice sent by Mr. N.K. Jaggi, Advocate is perfectly valid." In para 13, it is stated " the notice issued by Mr, N.K. Jaggi, Advocate, gives the correct interpretation and effect ot the alleged agreement". In para 16, it is stated " it is denied that D.K. Kapur, Advocate sent the notice dated 25.8.1979 under the instructions of the answering defendant. He might have done so under the instructions of the defendant No. 2. However, Shri D.K. Kapur, Advocate rightly reiterated the contents of the first notice." It is asserted by the first defendant that the plaintiff was fully aware of the order dated 14.8.1978 which is marked as Mark P-1. It is further stated that in para 17, it is denied that Mr., D.K. Kapur, Advocate served the notice dated 17.11.1979 under the instructions of the answering defendant. He might have done so under the instructions of defendant No. 2. However, the said notice dated 17.11.1979 is perfectly valid. There is nothing wrong with the said notice. In para 20, it is stated " the answering defendant through Mr. Gaja Nand, Advocate, sent a reply dated 18.4.1980 to the said notice." It is stated in para 21 " the plaintiff was fully aware of the first application and its rejection on 14.8.1978. Thereafter the defendant No.2 made applications for exemption on 27.1.1979,16.5.1979,25.6.1979 and 28.8.1979 and the application was specifically informed about the said applications.
(35) It may be noticed here that if according to the defendant the agreement came to an end by the rejection order dated 14.8.1978, it is quite inexplicable as to why the defendant No. 2 should further make an application for exemption and keep the plaintiff informed about it.
(36) It is stated again in para 23 that "the plaintiff himself made efforts for the grant of the exemption but in vain, even after rejection of the said application dated 27.1.1978, the defendant No. 2 made or got made applications for exemption to the Competent Authority on various dates such as 27.1.1979, 16.5.1979, 25.6.1979 and 28.8.1979. Copies of the said applications were duly sent to the plaintiff. The plaintiff also kept on making strenuous efforts but in vain. The Competent Authority has not granted the said exemption. Now the plaintiff has dishonestly and with ulterior motive alleged complete ignorance about the said application, their progress and fate. The plaintiff appears to have served a misconceived and frivolous notice on the Under Secretary, Land & Building, Delhi Administration and if the said official has not cared to reply to the same, the answering defendant cannot be blamed for it. Each and every remaining allegation is specifically denied." This would only go to show that the first defendant was desperate in her attempt in getting out of her obligation? under the contract. The first defendant denied the right of the plaintiff to claim damages.
(37) The second defendant Dr. Achhar Singh filed his written statement on 11.01.1982. His signatures put on 04.01.1982 seem to be normal signatures and I shall revert to this aspect immediately after referring to the averments in his written statement. He would state that he was not holding any power of attorney at the time of execution of the agreement for sale. He was not in a fit state of mind. The Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 had refused exemption on 14.8.1978 and as such, the contract, if any, had become incapable to performance. The agreement to sell, if any, is void for uncertainty under Section 29 of the Indian Contract Act, 1872. In his reply on the merits he would again deny that he was the general power of attorney of the first defendant. He would state that there is a construction on the plot of Land and the same is in the occupation of the tenant. No agreement could be entered into without prior permission of the Reserve Bank of India. In the additional pleas, in para 37 onwards he would mention that he was not doing well on the relevant dates:
(38) On 7.4.1982, his statement was recorded by this court. The statement is as follows: Smt. Nimmi Singh is my daughter-in-law. Her husband Dr. Satwant Singh is my son. Both Nimmi Singh and her husband are permanently residing in London for the last 26 months. Nimmi Singh never appointed me as her attorney for selling the plot in dispute. My daughter-in-law Mrs. Nimmi Singh is the owner of plot No. 9, Block A, Green Park, New Delhi. I never entered into any agreement with the plaintiff for the sale of this plot. Again said : I do not remember if I entered into any such agreement. I never made any application to the Competent Authority for permission to sell this plot as attorney for Mrs. Nimmi Singh. I cannot identify the signatures appearing at Mark 'A' on the application dated 12.5.1979 addressed to the Competent Authority. Similarly I cannot identify if signatures at Mark 'B' on a letter purporting to have been written to Mr. Kochhar bears my signatures. Similar is my reply about the signatures at Mark 'C'. I do not remember if I ever appointed Mr. N.K. Jaggi as a counsel for giving him any notice or reply of the notice on behalf of my daughter-in-law on my instructions. I never appointed Mr. D.K. Kapur as my Counsel or for giving any reply to Mr. S.K. Kochhar. I had suffered two paralysis strokes and sun strokes the first one on 1.1.1978 and the second on 18.3.1978.
(39) I notice the signatures of the second defendant in all the pages of written statement filed by him. It appears to be very natural and it is similar to the signatures in the admitted letter marked as Exhibit Dl/I. Signatures put by him at the end of the statement looks very unnatural perhaps such a signature was put by him purposely to make this Court to believe that he was not in a position to sign properly. In the statement he would completely support his daughter-in-law the first defendant. The statement cannot be considered for the purpose of law, it was only to take note of the conduct of the second defendant and the first defendant. I had brought on record what had happened on 7.4.1982 to show how the second defendant was trying to be very smart in projecting his case of illness.
(40) On 18.12.1989 the following issues were framed for trial : "1. Whether the suit is barred by limitation ? 2. Whether the suit is bad for misjoinder and non-joinder of parties? 3. Whether the suit is barred under the provisions of Order 23, Rule 1 (4) and Order 2, Rule 2, Code of Civil Procedure? 4. Whether the suit is not properly valued for purposes of Court fees? 5. Whether the agreement dated 11th January, 1978 is invalid and not binding on defendant No. 1? 6. Whether the agreement dated 11th January, 1978 stood frustrated in view of refusal of permission to sell from Competent Authority under the Urban Land (Ceiling and Regulations) Act, 1976? 7. Whether the agreement dated 11th January, 1978 stands vitiated on account of fraud played upon defendants I and 2 by plaintiff and defendant No. 3 collectively? 8. Whether time was of the essence of the contract and if so to what effect ? 9. Whether the plaintiff has been and is ready and willing to perform his part of the agreement ? 10. Whether plaintiff is entitled to specific performance of agreement of sale dated 11th January, 1979 ? 11. Whether plaintiff is entitled to damages? if so, amount thereof? 12. Relief.
(41) The plaintiff filed replications to the written statement filed by defendants I and 2 and the averments made therein need not be reiterated because they are almost the repetition of what is stated in the plaint. I have also noted that the third defendant has also filed the written statement supporting the case of the plaintiff. The written statement was filed on 5.4.1982.
(42) The plaintiff was examined as PW-I by the Local Commissioner on 25.5.1992onwards. He would state that he is doing carpet manufacturing business, selling and have an industry of soyabean processing in Madhya Pradesh, manufacturing refund oil. He approached M/s Mahender Jain & Company for the purpose of suit plot to construct his own house. The property dealer took him to Dr. Achhar Singh and there negotiations were held. Dr. Achhar Singh gave him a copy of the power of attorney which is marked as Mark-A. He would state that a notice was issued to the second defendant's Counsel on 23.4.1986 for the production of the original power of attorney and the said notice is marked as Mark- 8. Dr. Achhar Singh demanded earnest money of Rs. 15,000.00 . Dr. Achhar Singh paid commission to the Property Dealer, who took about two and half hours for the completion of agreement for sale, and after completing negotiations the agreement for sale was drawn up and the photocopy of the same is marked as Mark-C. The original agreement to sell was lost by his brother-in-law Mr. S.K. Rakyan when his car was stolen. He met Dr. Achhar Singh in July, 1979 and requested him to expedite the matter and he was prepared to give authorisation letter to the plaintiff to pursue the matter before the Competent Authority. While so, the plaintiff received a notice from Mr. N.K. Jaggi, Advocate. He would speak to the receipt of the notice. He would state that he received notice from Mr. D.K. Kapur, Advocate on behalf of the first defendant Mrs. Nimmi Singh which is exhibited as P-l. At the time of exhibiting documents, learned Counsel for the first defendant objected to this even though it is admitted by the learned Counsel for the first defendant Mr. C.R-Iyer, Advocate on 8.10.1987. He would also speak to the notice issued by the Counsel to the Competent Authority.
(43) He was cross-examined at length and he was asked about his other properties and transactions. It was suggested to him that Mahinder Kumar Jain and Wazir Kumar Jain the partners of M/s Mahender Kumar Jain are leading property dealer in the South Delhi. Therefore, the case of the plaintiff that the transaction was brought about by the leading person in the trade cannot be disputed by the first defendant. It was suggested to him that the second defendant Dr. Achhar Singh was mentally unfit and FW-I played a fraud on him. He was also cross-examined on the facts relating the loss of the original by the brother-in-law of PW-I. It is not necessary to dilate on this aspect because the execution of the agreement to sell cannot be disputed.
(44) The plaintiff examined Mr. Vijay Kumar Jain as PW-2. He would state that he is a property dealer since 1960 doing the business in the name of the firm M/s Mahender Jain & Company. He knew Dr. Achhar Singh since 1973. He would state that the property belonged to Dr. Satwant Singh. Dr. Achhar Singh was father of Dr. Satwant Singh. Dr. Achhar Singh was holding the power of attorney of Dr. Satwant Singh. Later on in the evidence he would state that "we have seen the general power of attorney and sale deed of the property in dispute. The general power of attorney was in the name of Dr. Achhar Singh and the sale deed was in the name of Mrs. Nimmi Singh. The general power of attorney was given by Mrs. Nimmi Singh to Dr. Achhar Singh, marked as Mark-A is a photocopy of the general power of attorney which I saw during the negotiations during January, 1987. Mark-C, is the photocopy of the agreement to sell which was executed through me between the parties. The plaintiff and Dr. Achhar Singh signed the agreement to sell in his presence in each page. But the witness, would state that "I do not remember whether I had witnessed this agreement to sell but I am sure that I witnessed and signed on this. Whatever the deals or through us they are witnessed and signed by us definitely." He would also speak to t^e fact that he met Dr. Achhar Singh and asked him to get the necessary clearance from the Land Ceiling Authority in this respect, but Dr. Achhar Singh told him that he was trying t get the necessary permission.
(45) In the cross-examination, he would state that the plaintiff has a show room for carpet in Green Park, near Satkar Hotel on Mehrauli Road, New Delhi. He knew the plaintiff since 1975-76. He would state that " normally we are getting 2% commission as a breakage in the deal from each side that is from purchaser as well as from the seller.We are getting the commission in part at the time of agreement to sell and balance at the time execution of the sale deed. If any deal is called off at the stage of agreement to sell and whatever amount of commission we have received that is the final payment. It was suggested to him that he did not sign the agreement to sell because he did not want to involve himself in the fraud. He denied the suggestion that he is a hired witness. ' (46) The plaintiff examined PW-3, Shri Virender Kumar, Udc from Land & Building Department, New Delhi. He would speak to the fact that there was an application under Section 20 of Urban Land (Ceiling & Regulation) Act, 1976 that was made by Dr. Achhar Singh which was dated 2.8.1976. That application made by Dr. Achhar Singh was rejected by the Lt. Governor of Delhi on 14.8.1978. In the cross-examination, he would state that Section 5(3) of the Act, prohibits a person from holding excess vacant land. The ceiling limit is 500 sq. mtrs. The size of the plot in dispute is 502.44 sq. mtrs A-9, Green Park, New Delhi,. Therefore there was absolutely no excess land held by the first defendant or her.family. Learned Counsel for the first defendant put a question relating to the application for exemption and the application for sale. The questions and answers are relevant They are as under :
Q.In case an order is passed under Section 20 of the Act, rejecting the exemption application, can any application for sale be made?
A.We are dealing with the Section 20 of the Act applications and not with the applications for sale permission.
Q.These authorities which you have named which deal with sale permission referred to your office, in case any application is made, to that office for sale permission?
A.They are Competent Authorities and they are to deal such applications at their own end.
Q.Whether do you know that any case for sale permission has been granted without reference to your office?
A.I do not know.
(47) Shri Vijay Kumar Jain PW-2 was further cross-examined. He was asked about the requirement relating to the getting permission from the Reserve Bank of India and he said without that permission the sale deed cannot be registered. He was asked whether transaction in regard to the property in dispute was called off by the parties he would state that he received the sum of Rs. 5,000.00 as commission. He was further cross-examined which is relevant and extracted the same as under: I can identify the signature of Mr. Mohinder Jain but cannot identify the signature of Miss Rajni Jain, d/o of Mr. Mohinder Jain. Miss. Rajni Jain may be of 23-24 years old. I do not know whether Ms. Rajni Jain is the owner of property No. C-l, C-2 Green Park Extension, New Delhi. (At this stage the Counsel for the defendant No. 1 has produced two photostat copies of the sale deed, which have been shown to the witness and the originals of these documents are not with the Counsel for the defendant No. 1. The production of these two documents and the questions pertaining to these documents to the witness, are strongly objected to by the Counsel marked also. I am allowing these documents to be placed on the records and to be marked as R-1 and R-2 for the purpose of identification. These documents and the questions pertaining to them will be subject to final orders of the Court.) Q.Do you know that Miss. Rajni Jain is the owner of G-2, Green Park Extension, New Delhi, and give reply after going through these two photocopies which are marked as 'R-1 and R-2?
ANS.I had not seen these documents earlier and I do not know about these transactions. It is wrong to suggest that I and Mr. Kochhar, the plaintiff has conspired to play a fraud on defendant No. 1. It is incorrect to suggest that I have deposed falsely in my examination-in-chief.
(48) The proceedings dated 14.8.1978 was put to PW-2 and was marked only on that date. The receipt dated 16.1.1978 was marked as Mark-Q-l. The receipt reads as follows: Receipt Received with thanks the sum of Rs. 5000.00 (Rupees five thousand) only in cash from Dr. Achhar Singh R/o J-18, Hauz Khas, New Delhi, as commission against the sale arrangement of plot No. A-9, Green Park, New Delhi. The balance of Rs. 1,000 .00 (Rupees one thousand only) shall be received on completion of the sale deed of the said plot. In case if this transaction does not get in that case I shall refund the said amount of Rs. 5,000.00 (Rupees five thousand) only within seven days from today. This plot is agreed to be sold to Shri S.K. Kochhar R/o B4/2, S.D.A. New Delhi. sd/- 1 promise to refund this amount within three monthly equal instalments. The first defendant sought to elicit from this witness that on 30.10.1978 the witness promised to refund the amount received towards commission in monthly equal instalments. This receipt was produced by the first defendant. The receipt also mention about the agreement to sell entered with the plaintiff. If really The case of the first defendant was that on 30.10.1978, the third defendant agreed to refund the commission why it is not mentioned in the written statement and why in any of the notices this fact is not mentioned.. The original of the receipt is also not produced. Therefore, on the basis of exhibit Q-l, no inference can be drawn against the plaintiff.
(49) It was also suggested to this witness by producing two documents R-1 and R-2 with reference to some other properties that he was already a party to the fraud. The following cross-examination would show the attempt of the learned counsel for the first defendant to prove the case of the fraud : I can identify the signature of Mr. Mohinder Jain but cannot identify the signature of Miss Rajni Jam daughter of Mr. Mohinder Jain. Miss Rajni Jain may be of 23-24 years old. I do not know whether Miss Rajni is the owner of property No. C-l, C-2, Green Park Extension, New Delhi. (At this stage the Counsel for the defendant No.l has produced two photostat copies of the sale deed, which have been shown to the witness and the originals of these documents are not with the Counsel for the defendant No.l. The production of these two documents and the questions pertaining to these documents to the witness, are strongly objected to by the Counsel for the plaintiff, as well as the production thereof, and to be marked also. I am allowing these documents to be placed on the records and to be marked as R-1 and R-2 for the purpose of identification. These documents and the questions pertaining to them will be subject to final orders of the Court).
Q.Do you know that Miss Rajni Jain is the owner of C-2, Green Park Extension, New Delhi and give reply after going through these two photocopies which are marked as 'R-1 and R-2'?
A.I had not seen these documents earlier and I do not know about these transactions. It is wrong to suggest that I and Mr. Kochhar, the plaintiff has conspired to play a fraud on defendant No.l. It is incorrect to suggest that I have deposed falsely in my examination-in-chief. From this nothing could be said against the witness and no foundation has been laid in the pleadings (50) PW-3, Shri Virender Kumar, Udc from the Land & Building Department, New Delhi was examined. PW-4 Mr. Ravinder Singh, Si Kotwali, Police Station, Daryaganj, New Delhi was examined. He produced a copy of the F.I.R. lodged by Mr. Shanti Kumar which is exhibit as PW-4/1. The complainant Shri Shanti Kumar Rakyan was examined as PW-5. I do not want to deal with this any more whether the original is available or not. The agreement for sale is admitted by the first defendant.
(51) Ms. Nimmi Singh has examined herself as DW-1. A brief analysis of her evidence is necessary. First I shall take up her evidence relating to her denial of giving power of attorney to her father-in-law Dr. Achhar Singh. In the Chief Examination she would state " I owned the property No. A-9, Green Park, Main Road, New Delhi. I purchased this property in 1963. I never authorised my father-in-law Dr. Achhar Singh or anybody else to purchase this property or sell." The photocopy Mark A which is on the Court record is not executed and signed by her. In page 84 of her evidence the following questions and answers would show that how she was feigning ignorance of crucial facts :
Q.Are you aware or it is in your knowledge that certain documents were filed in the present suit on your behalf as defendant No.l by Mr. M.L. Lonial, Advocate on 15.3.1982?
A.I would like to add that I cannot answer the question put to me as I was in England and my affairs were being looked after by my attorney Smt. Sudarshan Kumari Walia, when my daughter got married about 6 years ago, my son-in-law has been handling the case since then, Mr. Sanjeev Singh. The names mentioned in Mark 'A' are correct. The mark 'A' General Power of Attorney is not executed by me. I am not aware whether my father-in-law. Dr. Achhar Singh filed an application before the Competent Authority under the U.L. (C&R) Act, 1976. She admitted that "it is in my knowledge that a sum of Rs. 15,000.00 was returned by Dr. Achhar Singh to the plaintiff.
(52) A question was asked whether she knew about the property dealer agreeing to return the money back, she would state that she did not know anything about this. She would further state "\ do not know whether all these documents were signed by Dr. Achhar Singh and Jatinder Singh Walia, power of attorney holder for me as I had never appointed Dr. Achhar Singh or Jatinder Walia, Advocate. Dr. Achhar Singh as my attorney. My relations with Dr. Achhar Singh were very good and respectful. I do not know the reasons why Dr. Achhar Singh should express himself as my attorney in so many places inspite of the fact that I never appointed him as my attorney. It may be noticed at this stage that in Exhibit Dl/2 notice issued by Mr. Gaja Nand, Advocate, on instructions from the first defendant had stated "Dr. Achhar Singh the then attorney of my client who entered into a contract to sell the property when he was mentally unfit".
(53) About the health of the second defendant on the date of execution of the agreement, this case was set up in the notice issued by Mr. Gaja Nand, Advocate, (Dl/2). Now in the evidence she would state "my father-in-law. Dr. Achhar Singh was 82 years old in the year 1978, since my father-in-law had expired in 1985, my father-in-law was not in good health in the year of 1977-78. He was blind from the right eye, he suffered from stroke in the year 1979 and then he had stroke in March, 1978, the earlier stroke he had in January, 1978 that is on first January, 1978. He was paralysed from the right side of his body. He was mentally incapacitated. My father-in-law was attended by Dr. Anjula Khanna" (who was examined as DW2) and this is not the case in the written statement. As I have noticed earlier Dr. Achhar Singh had filed the written statement, he had signed on each page of the written statement. He gave the statement on 7.4.1985 in this Court. He put the signature as if his hands were shaky. The case of Dr. Anjula Khanna that she was attending on Dr. Achhar Singh was set up one. On 22.10.1990 the first defendant had filed the list of witnesses staling the purpose for which they are to be examined. The application filed in this behalf and the list of witnesses are as follows : Ia No. 8630/90: Application for treating the witnesses filed by the defendant No.l under Part-C category as list of witnesses under Part-D category.
1.That due to inadvertence, the list of witnesses filed by the defendant No. 1 has been filed as Part C witnesses while as actually all the witnesses shown in the list at falling under the category of Part-D witnesses.
2.By way of abundant caution, a fresh list of witnesses shown as Part D witnesses is enclosed.
It is, therefore, prayed that the list of witnesses shown as Part-C witnesses may be treated as Part-D witnesses. List of Witnesses filed by the Defendant I Part-D S. Name and Facts to be Documents No. Address proved sought to be proved 1. Major General To show that (Dr.) H.S. Singh Dr. Achhar Singh 32, Panchsheel was not in sound Park, New Delhi, disposing mental faculty. 2. Dr. Prem Sobti, S-291, Panchsheel Park, New Delhi-110007. -do- 3. Mr. Sanjay Singh About the present D-934, New Friends position suit Colony, New Delhi, property. 4. Sardar Gurdial Singh That no power of attorney was 63, Friends Colony(s) executed by Smt. Nimmi Singh in New Delhi-110014. favour of Sh. Achhar Singh Defendant No. I as her own witness. 5. Mrs. Nimmi Singh, 4-Glednow Wood, The Chase, Kingshood, Surety, 6 JOKT-20 In this, the name of Dr. Anjula Khanna was not mentioned. She was examined as DW-2. She had given a certificate. Photocopy of the medical certificate was marked as Mark FF. A reading of the evidence of DW-2 would show that she had obliged the first defendant. The story of illness of Dr. Achhar Singh is really amyth.
(54) About obtaining the permission from the Competent Authority the case set up by the first defendant is that the application for permission was rejected by the Competent Authority and,thereforetheagreementhadcometoanend. lf that is so, one would expect her to say that an application was required under law that was made after the execution of the agreement with the knowledge of the plaintiff, the Competent Authority passed the order and the same was communicated to the plaintiff and then the plaintiff has informed that the first defendant could not do anything further and, therefore, the plaintiff should receive the sum of Rs. 15,000.00 . But on the other hand the case of the first defendant is that an application was made and that was rejected by the Competent Authority and therefore the contract has become frustrated. But in the evidence she would state I did not come to know at any time about any application given by Dr. Achhar Singh to the Urban Ceiling Department or any other department in respect of this property". This is quite contrary to her own case in the notice issued through Counsel. About obtaining permission from the Reserve Bank of India she had not produced any document to show that she applied for permission.
(55) About the engaging a Counsel, the first defendant comes forward with a very interesting case which only shows that she is not prepared to tell us the truth. At page 72 of the evidence she would state "\ did engage the services of Mr. D.K. Kapur, Advocate and Mr. N.K. Jaggi, Advocate to send out notices on my behalf to the plaintiff. At page 74, "Mr. Gajanand, Advocate was appointed .and later on M/s Singhania & Co., Advocates were appointed to defend the suit. I have not heard the name of Mr. M.L. Lonial, Advocate so the question does not arise about engaging him as my Counsel to defend the suit in question on my behalf".
(56) It may be noticed that it is Mr. M.L. Lonial who had signed the written statement. Ms. Nimmi Singh has got the audacity to say that she had not heard about her own Advocate. At page 83 she would admit "Mark 'X' in Vakalatnama is signed by my attorney Mrs. Sudarshan Kumari Walia in favour of Mr. M.L. Lonial, Advocate." The following questions and answers also would show the intentions of Mrs. Nimmi Singh:
Q.What you have to say regarding the documents Mark Exh. Dl /2 written by Shri Gaja Nand, Advocate to the plaintiff dated 18.4.1980 in which he states "that this is a reply acknowledging the receipt of plaintiff's notice dated March 14, 1980, served on you by Mrs. Avinash Ahlawat, Advocate, Delhi, and the same has been replied "under instruction from and on behalf of my client Mrs. Nimmi Singh w/o Dr. Satwant Singh, R/o 4-Glewhow Wood, the Chase, Eurey, England? i.e. whether these contents are correct and you gave the instructions to reply the said notice served by Mrs. Avinash Ahlawat, Advocate on your instructions?
Ans. I have not instructed Mr. Gaja Nand to reply Ex. Dl/2 probably my Attorney Smt. Sudarshan Kumari Walia may have instructed in this behalf.
Q.Is the Advocate Gaja Nand further reply in the said documents Ex. DI/ 2 correct that'at the time of the alleged agreement of sale dated ll-1.1978 by Dr. Achhar Singh my then attorney was sick etc. etc. and then the said Mr. Gaja Nand also wrote on your instructions?
Ans. I did not instruct Mr. Gaja Nand, Advocate to write the above and the allegations stated in the questions above and/or Ex. Dl/2 are incorrect. Volunteer - as Dr. Achhar Singh was never my attorney as stated above.
Q.Can you tell any reason why Mr. Gaja Nand, Advocate, on his own write these facts put in the above question.
Ans. The question can be best answered by Mr. Gaja Nand or Mrs. Sudarshan Kumari Walia, who was my attorney.
Q.Are you producing Mr. Gaja Nand, Advocate and Mrs. Walia as your material witnesses?
Ans. I do not know. Mrs. Sudarshan Kumar Walia is at present in California, U.S.A. She would further state that "I have not given any instructions to Mr. D.K. Kapur, Advocate to issue Ex. P/l dated 17th of November, 1979". It is mentioned in the notice Ex. P/l that under instructions from Mrs. Nimmi Singh of England is sent to Mrs. S.K. Kochhar, which is wrong and denied. Address given on Ex. P/l is correct. I cannot remember whether I came to India in the year, 1980. A written statement may have been filed by my attorney Smt. Sudarshan Kumari Walia. The written statement shown to me today is signed by Mrs. Sudarshan Kumari Walia, my constituted attorney and probably under my instructions."
(57) In the written statement para 17 she would state 'it is wrong and denied that Mr. D.K. Kapur, advocate, served the notice 17.11.1979 under the instructions of answering defendant. He may have done so under the instructions of the defendant No. 2.' However, the said notice dated 17.11.1979 is perfectly valid. There is nothing wrong with the said notices.
(58) 1 have already adverted to this aspect earlier, but, for connecting the links I am referring to what Mrs. Nimmi Singh had stated in her written statement. The evidence recorded at page 90 is also of some interest in assessing the veracity of Mrs. Nimmi Singh. The same is as under :
Q.As you have repeatedly said that you have not entered into an agreement to sell for the disputed property and that you did not apply to the Competent Authority under the Land Ceiling Act permission to sell and you have got no knowledge if any application to this effect was ever given, how you have mentioned in the written statement filed on your behalf in para 9 on page 10 or any mention of the written statement "as the Competent Authority has refused to grant the said exemption the alleged agreement dated 11.1.1978 has come an end and failed etc?
Ans. All I can say that Mrs. Sudarshan Kumari Walia. I have never seen notice Mark 'D' sent to the plaintiff by Mr. Navin Kumar Jaggi, Advocate except it was shown to me during cross-examination. Mrs. Sudarshan Kumari Walia my constituted attorney has signed and verified the written statement and, therefore, I cannot answer as to how the word in para No. 12, page 11 of the written statement "Notice sent by Mr. N.K. Jaggi, advocate is perfectly valid......" have been incorporated in the Written Statement and on para 13 page 12 of Written Statement "the notice issued by Mr. N.K. Jaggi, Advocate gives the correct interpretation of the alleged agreement.....". The notice sent by Mr.D.K. Kapur, Advocate Mark 'I' and Mark Exh. P/l have been seen by me during my cross-examination.
Q.Can you state how in para 16 page 14 of the Written Statement filed on your behalf in the present suit words to the effect " Mr. D.K. Kapur, Advocate rightly reiterated the contents of the first notice. It is misconceived, wrong and denied that Mr. D.K. Kapur placed wrong and untenable interpretation on the agreement dated 11.1.1978....... come to an end"?
Ans. All I can say that Mrs. Sudarshan Kumari Walia is only person who can answer as the Written Statement is signed by Mrs. Sudarshan Kumari Walia.
Q.Can you state how in para 16 pages 16 and 17 of the Written Statement again regarding Mr. D.K. Kapur, Advocate "The said notice dated 17.11.1979 is perfectly valid and there is nothing wrong with the said notice...."?
Ans. My reply to this question is the same as to the previous question.
Q.That you have stated that you did not give any instructions to Mr. Gaja Nand,Advocatetosendhis reply vide his letter dated 18.4.1980 Ex. DI/ 2 then how in para No. 19 on page No. 19 of the Written Statement the words to the effect "The notice dated 14.3.1980 is misconceived, false and baseless. The answering defendant through her Advocate Mr. Gaja Nand, Advocate sent a reply dated 18.4.1980 to the said notice in the said reply, the learned Advocate of the answering defendant set out all the true facts....." are incorporated?
Ans. The answer is the same as to the previous question.
(59) Again she would state thus :
Q.That wherever the names of Mr. Navin Kumar Jaggi, Advocate M/ s Sukhija, Advocate, Mr- D.K. Kapur, Mrs. Avinash Ahlawat & Mr. Gaja Nand, Advocates are referred in your written statement if any further question is asked to you, will your reply be the same that it can be only Mrs. Walia, your Power of Attorney who can answer?
Ans. This suggestion and all other suggestions to the written statement that have been made are in reply to the plaint and the said written statement had been got prepared by my attorney Mrs. Sudarshan Kumari Walia.' Q.That in your cross-examination you have stated that you do not know a person name as Mr. Jitender Singh Walia then kindly tell how his name comes or is referred to in Written Statement on page 24 and elsewhere? Ans. Written Statement' was prepared by. my attorney Mrs. Sudarshan Kumari Walia and I repeat that I do not know Mr. J.S. Walia & presumably it is my attorney who knew Mr. J.S. Walia.
(60) Even about her visit to India she has not been very consistent and she had been trying to withhold facts from Court. In the chief examination she would state "I am residing in Surrey England. I am residing at present in Delhi in D-939, New Friends Colony. I am residing in England for the last 20 years. In the crossexamination she would state in 1979 I came to India and Smt. Sudarshan Kumari was appointed my attorney, who informed me about the filing of the present suit against me by the plaintiff. Therefore, she would make it appear as if the suit was instituted in 1979 itself. She had to candidly admit " I do not remember exactly , which date I learnt about the agreement to sell allegedly entered into by my father- in-law with the plaintiff regarding the property in dispute. She would further state in the cross-examination, I do not remember whether I was in India in the year 1982. The written statement is dated 4.1.1982. She would admit that "it is correct that my father-in-law Dr. Achhar Singh appeared as a witness before this Court on April 7, 1982". This shows that she must have been present in Court when Dr. Achhar Singh gave statement before this Court having come to India a few months earlier. She would pretend that she would not remember whether she was in India in the year 1982. Therefore, she must have been in India from 1981 upto at least April, 1982.
(61) About the receipt of the notice dated 14.3.1980 marked as Mark J Mrs. Nimmi Singh gave a very funny answer. This Mark J dated 14.3.1980 was a notice issued by Ms. Avinash learned Counsel of the first defendant. In the crossexamination this witness would state that " notice dated 14.3.1980 marked as Mark J was not received by me. The original postal acknowledgement receipt received back from England was filed in this Court and it was missing from the file of this Court. The plaintiff filed IANo. 11296/92 to mark the photocopies of the two sides of the acknowledgement. They were marked as Marks V and W. The witness states thus: The Mark 'V' and Mark 'W' are both sides of the acknowledgement receipt. On the Mark 'W', there is a signature of my son R. Singh, which I identify. And Mark 'V' is dated 14th of March, 1980 which is sent by Mrs. Avinish Ahlawat, Advocate. My son Ravi Singh was 18 years of age in the year, 1980 and he was living with me. I don't remember whether the papers containing in the envelop which was sent vide acknowledgement receipts 'V' & 'W' was given to me by my son. My son who is residing with me was receiving the communication mail while he was in the house.
(62) According to this witness that she was not aware of the notice. Exhibit Dl / 2 dated 18.4.1980 was the reply sent by the first defendant through her Counsel in reply to the notice dated 14.3.1980. Therefore, it is very clear that the first defendant Mrs. Nimmi Singh apparently feels that she can say anything to the Court whether false or incorrect and she can get away with it.
(63) I gather the impression that Mrs. Nimmi Singh though educated living in England and leading a comfortable life being under the protective umbrella of her husband Dr. Satwant Singh has no qualms of conscience and had no hesitation to utter falsehood before this Court. In all material particulars relating to every aspect of the case she has deliberately decided to tell which is absolutely false and false to her knowledge. One would expect a person like the first defendant to come forward with truth and project the hardship that she might suffer if the plaintiff's case is accepted but that is a different matter. But coming forward with a case founded on falsehood cannot at all be countenanced. The Court is not helpless and it can always find out the truth by analysing the facts of the case. I am not able to believe the evidence of DW-1. The first defendant has been totally far away from truth in her approach to the whole case.
(64) The first defendant examined DW-3 Sardar Gurdyal Singh to disprove the power of attorney which is marked as Mark-A. In the light of the categoric admission in Exhibit Dl/2 it is not at all necessary to discuss the evidence of DW3. He is also a person just like Dr. Anjula Khanna DW-2 who had come forward to give evidence just for the purpose of helping the first defendant in her attempt to prove a totally false case.
(65) On a consideration of the entire conspectus of the materials placed before me it is clear that the plaintiff has proved his case and he has always been ready and willing to perform his part of the contract. I am satisfied that the plaintiff has got sufficient means to purchase the property.
(66) It is absolutely crystal clear that the first defendant has come forward with a false case and she should be directed to execute the sale deed in favour of the plaintiff on receiving the balance consideration.
(67) The case about obtaining permission from the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 is again a bogey of defense. The first defendant relied upon Clause 3 of the agreement which has already been extracted. Apparently the parties intended obtaining permission from the Central Government for the sale of the property because while selling land the seller has to pay unearned income to the Central Government, if the land held by the seller is not a free hold land. Therefore, the reliance on the proceedings dated 14.8.1978 marked as Mark-Pi, cannot help the first defendant at all. Here also it has not been explained by the first defendant that if the order had been passed by the Competent Authority refusing permission what was the need for Dr. Achhar Singh to send reminders to the Competent Authority and inform the plaintiff about it. Therefore, the first defendant relies upon something which was absolutely irrelevant for the parties under the terms of contract. The first defendant cannot project Clause 3 of the agreement to defeat the rights of the ^ plaintiff. Section 3 of the Urban Land (Ceiling and Regulation) Act, 1976 reads as ' under: Section 3 Persons not entitled to hold vacant land in excess of the ceiling limit - Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit, in the territories to which this Act applies under Sub-section (2) of Section 1. Therefore, if a person hold urban land within the ceiling limit of the Act does apply the Supreme Court had to deal with this aspect in the case reported in Maharao Saheb Shri Bhim Singhji, Anantalakhshmi Pathabi Ramasharma Yeturi and Others; Jodhan Real Estate Development Co. (P) Ltd. and Another; Rajendra Garg Etc; Shamshal Islam Etc. v. Union of India and Others, wherein the Supreme Court observed in the following terms : If vacant land owned by a person falls within the ceiling limits for an urban agglomeration, he is outside the purview of Section 3 of the Act. That being so, such a person is not governed by any of the provisions of the Act. When this was pointed out to the learned Attorney General he was unable to justify the imposition of the restriction imposed by sub-section (1) of Section 27 in case of land falling within the ceiling limits as a reasonable restriction. It must, accordingly, be held that the provision of Sub-section (1) of Section 27 of the impugned Act is invalid insofar as it seeks to affect a citizen's right to dispose of his urban property in an urban agglomeration within the ceiling limits. The Supreme Court delivered the judgment on 13.11.1980, the position is clear now. Now the question of obtaining permission under the Urban Land (Ceiling and Regulation) Act, 1976 would arise because the holding of the first defendant is within the ceiling limit.
(68) The first defendant did not make any attempt to comply with the letter by the plaintiff and, therefore, it is not open for her to say that the plaintiff is not entitled to the specific relief on the ground that she could not get exemption under the Urban Land (Ceiling and Regulation) Act, 1976.
(69) Under Section 20 of the Specific Relief Act, 1963 it is purely a discretion of the Court either to grant or reject the relief of specific performance and it depends on the facts of each case. Learned Counsel for the plaintiff relied upon the judgment of the Supreme Court in Ramesh Chandra Chandiok and Another v. Chuni Lal Sabharwal (dead) by his Legal Representatives and Ors., , the Supreme Court has laid down "this relief is discretionary but not arbitrary and discretionary must be exercised in accordance with the sound and reasonable judicial principle. We are unable to hold that the conduct of the appellants which is always an important element for consideration was such that it precluded them, for obtaining a decree for specific performance".
(70) In M.L. Devender Singh and Ors. v. Syed Khaja, 1973 Sc 2457 the Supreme Court laid down "the jurisdiction of the Court to decree specific relief is discretionary and must be exercised on sound and reasonable grounds, guided by judicial principle and capable of correction by a Court of appeal. This jurisdiction cannot be curtailed or taken away by merely fixing a sum even as liquidated damages. It is made perfectly clear by the provisions of Section 20 of the Old Act (corresponding to Section 23 of the Act of 1963) so that the Court has to determine, on the facts and circumstances of each case before it, whether specific performance of a contract to convey a property ought to be granted".
(71) The statement of the law in Story of Specific Performance is instructive and it has to be extracted to appreciate the view of the author which is as follows: In truth, the exercise of this whole branch of equity jurisprudence, respecting the recission and specific performance of contracts, is a matter of discretion in the Court; nor indeed, of arbitrary and capricious discretion, dependent upon the mere pleasure of the fudge, but of that sound and reasonable discretion which governs itself, as far as it may be, by general rules and principles; but at the same time which withholds or grants relief according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between the parties. "IT is not possible to lay down any rules and principles which are of absolute obligation and authority to all cases, and therefore, it would be a waste of time to attempt to limit to principles, or the exceptions which the complicated transactions of the parties, and the ever-changing habits of society may at different times, require the Court to recognise and consider. But from decided cases the following circumstances, conditions and incidents may be deduced to the factors to be taken into consideration 'the contract must be certain, unambiguous, mutual and upon a valuable consideration; it must be perfectly fair in all its parts; free from any misrepresentation, imposition or surprise; not an unconscionable or hard bargain; and its performance not oppressive upon the defendant; finally it must be capable of specific execution through a decree of the Court".
(72) The Supreme Court in Smt. Mayawanti v. Smt. Kaushalya Devi, held that it is open for the defendant to plead that there was no concluded contract and the defendant must establish the plea. In the case reported in jagdish Singh v. Nathu Singh, 1991 (5) Sc 400 in a suit for specific performance plea taken by the defendant was that land had been acquired by the Government. The Supreme Court held that the plaintiff was entitled to the decree and directed the payment of compensation to the plaintiff. In Mis. P.R. Deb and Associates v. Sunanda Roy, the Supreme Court reiterated the principle that agreement/vendee not paying the consideration within the time allowed in the agreement would not be deemed to be ready and willing. The Supreme Court in Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son and Others, , had laid down that the Court should meticulously consider all the facts , circumstances before granting specific performance. In the case reported in Sukhbir Singh & Ors. v. Brij Pal Singh & Ors., the Supreme Court had held that it will be sufficient for the agreement/vendee to establish that he has the capacity to pay the sale consideration and it is not necessary to produce the money before the grant of specific performance.
(73) About obtaining permission from the Reserve Bank under the Foreign Exchange Regulation Act, 1973 it is the duty of the first defendant to have applied for the permission. She did not apply. Therefore, the first defendant cannot be heard to contend that inasmuch as the permission had not been obtained from the Reserve Bank of India, the relief of specific performance should be denied to the plaintiff. Much water has flown under the bridge. Now in the light of the policy of the Government of India, the non-resident Indian can get permission if relevant facts are stated. The general policy of the Government is, if the non-residents are allowed to buy and purchase the property in India there will be free flow of business and other activities. Therefore, the defense that the first defendant did not obtain permission from the Reserve Bank for the sale of the property is no defense at all. The well-known principle is one cannot take advantage of one's own wrong. In this connection, the decision of this Court reported in Ajit Prashad Jain v. N.K. Widhani and Others, has to be noticed while dealing with the plea by the defendant agreement/vendor that the prohibition under Section 31 of the Foreign Exchange Regulation Act, 1973 would operate in case the agreement/ vendor had not obtained permission from the concerned authority under that act, the Court held: In support of the objection under this issue defendants have relied upon Section 31 of the Foreign Exchange Regulation Act,-1973. The contention of defendants is that defendant No. 2 is not a- citizen of India and as such he could not transfer or dispose of by sale settlement or otherwise any immovable property situate in India without prior permission of the Reserve Bank of India and as such the agreement to sell is void. In support of the contention that defendant 2 has acquired citizenship of German Democratic Republic, reliance is placed on citizenship certificate dated 17.7.1970 (Ex. D6/1). It does appear from the said certificate that defendant No. 2 had acquired citizenship of German Democratic Republic but in my view that has no effect on the validity of the agreement in question. Section 31 of the Foreign Exchange Regulation Act on which reliance has been placed by the defendants only places a restriction on a foreign citizen on transfer or sale, mortgage lease, gift, settlement or otherwise of any immovable property situate in India except with the previous general or special permission of the Reserve Bank of India. The said provisions do not place any restriction on entering into agreement like Ex. Public Witness 2/1. The said provisions also do not place an absolute bar to the transfer or sale of any property at as such it cannot be said that the agreement itself will become void. It is well-settled that a contract for sale by itself does not create any interest in or charge on such property (see Section 54 of the Transfer of Property Act). Thus it cannot be held that the agreement is void on the objection raised in preliminary objection No. 4 based on Section 31 of the Foreign Exchange Regulation Act. The said provisions do not bar grant of relief of specific performance to the plaintiff and the question of permission of the Reserve Bank of India will arise, if at all at the stage of execution of the sale deed. Consequently, issue No. 5A is also answered against the defendants. Section 31 of the Foreign Exchange Regulation Act, 1973 reads as under : Restriction on acquisition, holding etc. of immoveable property in India-
(1)No person who is not a citizen of India and no Company (other than a banking company) which is not incorporated under any law in force in India shall, except with the previous general or special permission of the Reserve Bank, acquire or hold or transfer or dispose of by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate in India: Provided that nothing in this sub-section shall apply to the acquisition or transfer of any such immovable property by way of lease for a period not exceeding five years.
(2)Any person or company referred to in Sub-section (1) and requiring a special permission under that sub-section for acquiring, or holding, or transfering, or disposing of, by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate in India may make an application to the Reserve Bank in such form and containing such particulars as may be specified by the Reserve Bank.
(3)On receipt of an application under Sub-section (2), the Reserve Bank may, after making such inquiry as it deems fit, either grant or refuse to grant the permission applied for: Provided that no permission shall be refused unless the applicant has been given a reasonable opportunity for making a representation in the matter:
Provided further that if before the expiry of a period of ninety days from the date on which the application was received by the Reserve Bank, the Reserve Bank does not communicate to the applicant that the permission applied for has been refused, it shall be presumed that the Reserve Bank has granted such permission. Explanation-In computing the period of ninety days for the purposes of the second proviso, the period, if any, taken by the Reserve Bank for giving an opportunity to the applicant for making a representation under the first proviso shall be excluded. (4)Every person and company referred to in Sub-section (1) holding at the commencement of this Act any immovable property situate in India shall, before the expiry of a period of ninety days from such commencement or such further period as the Reserve Bank may allow in this behalf, make a declaration in such form as may be specified by the Reserve Bank regarding the immovable property or properties held by such person or company.
(74) This view has been dissented from by the Madras High Court in the case reported in Mrs. Shoba Viswanathan v. D.P. Kingsley, 1996 (2) Madras Law Journal 96. The Madras High Court took the view that the prohibition under Section 31 is absolute and, therefore, no relief of specific performance could be granted if permission had not been obtained before even the agreement for sale. In the case before the Madras High Court from the narration of facts it can be seen that the agreement/vendor did not apply at all for permission to the Reserve Bank of India. In the light of factual position the learned Judges of the Madras High Court took the view that on a correct interpretation of Section 31 of the Foreign Exchange Regulation Act, 1973 that could be put as defense by the agreement/vendor in a suit for specific performance by the agreement/vendee. With great respects the view taken by learned Judges of the Madras High Court does not appear to me, to be in consonance with the established principles of law relating to interpretation of statute. The provision in the Foreign Exchange Regulation Act, 1973 does not deal with an agreement for sale. If the Parliament intended that there should be permission even before the agreement for sale then one can appreciate the position. We can compare the position by reading the provisions, of Chapter XX-C of the Income Tax Act, 1961. Section 269Uc specifically refers to the agreement for sale and the said section reads as under : Section 269Uc (1)Not with standing anything contained in the Transfer ofPropertyAct,1882 (4 of 1882), or in any other law for the time being in force, no transfer of any immovable property in such area and of such value exceeding five lakh rupees, as may be prescribed, shall be effected except after an agreement for transfer is entered into between the person who intends transferring the immovable property (hereinafter referred to as the transferor) and the person to whom it is proposed to be transferred (hereinafter referred to as the transferee) in accordance with the provisions of Sub-section (2) at least four months before the intended date of transfer.
(2)The agreement referred to in Sub-section (1) shall be reduced to writing in the form of a statement by each of the parties to such transfer o.r by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties.
(3)Every statement referred to in Sub-section (2) shall - (i) be in the prescribed form; (ii) set forth such particulars as may be prescribed; and (iii) be verified in the prescribed manner. and shall be furnished to the appropriate authority in such manner and within such time as may be prescribed, by each of the parties to such transaction or by any of the parties to such transaction acting on behalf of himself and on behalf of the other parties.
(4)Where it is found that the statement referred to in Sub-section (2) is defective, the appropriate authority may intimate the defect to the parties concerned and give them an opportunity to rectify -the defect within a period of fifteen days from the date of such intimation or within such further period which, on an application made in this behalf, the appropriate authority may, in its discretion, allow and if the defect is not rectified within the said period of fifteen days, or as the case may be, the further period so allowed, then, notwithstanding anything contained in any other provision of this Chapter, the statement shall be deemed never to have been furnished. Therefore, it is clear that under the Foreign Exchange Regulation Act, 1973 the question of getting permission from the Reserve Bank of India would arise only at the time of execution of the sale. Therefore, I am not able to agree with the view taken by the Division Bench of the Madras High Court and I respectfully follow the view taken by this Court. The Madras High Court having noticed Section 47 (1) and (2) had rested its decision on Section 50 of the Foreign Exchange Regulation Act, 1973. Section 47(1) and (2) reads (r)s under : Contracts in evasion of the Act--(1) No person shall enter into any contract or agreement which would directly or indirectly evade or avoid in any way the operation of any provision of this Act or of any rule, direction or order made thereunder.
(2)Any provision of, or having effect under this Act that a thing shall not be done without the permission of the Central Government or the Reserve Bank, shall not render invalid any agreement by any person to do that thing, if it is a term of the agreement that thing shall not be done unless permission is granted by the Central Government or the Reserve Bank, as the case may be; and it shall be an implied term of every contract governed by the law of any part of India that anything agreed to be done by any term of that contract which is prohibited to be done by or under any of the provisions of this Act except with the permission of the Central Government or the Reserve Bank, shall not be done unless such permission is granted.
(75) In the agreement in this case the parties had not intended to do anything without the permission of the Reserve Bank of India. It is the case of the first defendant that she had not applied for the permission. It is the case of the plaintiff that the defendant should get the permission from the Reserve Bank of India. Therefore, unlike under Chapter XX-C of the Income Tax Act, 1961, obtaining of permission from the Reserve Bank of India is not a condition precedent under the Foreign Exchange Regulation Act, 1973.
(76) Therefore, in any event there is no impediment for the plaintiff in getting the relief to specific performance. The plaintiff can apply to the Reserve Bank of India staling all the facts for permission and the Reserve Bank of India shall grant the necessary permission.
(77) Learned Counsel for the first defendant Mr. Vashisht, submitted relying on the power of attorney which is marked as Mark-A stating that assuming the power of attorney is proved, that would entitle the attorney to deal with the property only in Punjab and the power of attorney did not authorise Dr. Achhar Singh to deal with the property in Delhi. Though the argument is seemingly attractive it is factually not correct. Further it was never pleaded. It was never the case of the first defendant. It is well-known principle of law that a party cannot blow hot and cold, approbate and reapprobate. It is also well settled that a party cannot try to put forth the case which was never pleaded, which was never even spoken to by the party in the witness box. In this case there is neither pleading nor evidence and therefore, I have no hesitation in rejecting this argument of the learned Counsel for the first defendant. "The construction placed on the Power of Attorney by the first defendant is not correct. The Power of Attorney did authorise Dr. Achhar Singh to deal with the property in Delhi.
(78) The learned Counsel Mr. Vashisht on the scope of the general power of attorney relied upon the following cases : (U.P. Govt. in Nazul Department, Lucknow v. Church Missionary Trust Association Ltd., London and Allahabad, Air (35) 1948 Oudh 54; Poboodan Goolabchand v. M.J.V. Miller and Another, Air 1938 Madras 966; .,Kamal Singh Dugar v. Corporated Engineers (India) Pvt. Ltd ; Syndicate Bank Bangalore v. I.K. Amitha and Ors., Air 1985 Karnataka 213; and P.K. Banerjee v. L. J Simonds and Another . In the light of the facts and circumstances of this case, principles laid down in these cases are not at all applicable and I do not want to deal with each of the cases separately because that will be only lengthening the judgment.
(79) Learned Counsel for the first defendant on the question of readiness and willingness relied upon the following decisions: Shamsher Bahadur Sinha (deceased by L.Rs.) and Another v. Raghu Nath Prasad Saxena (deceased by L.Rs) and Another, 1982 AII. Law Journal 948; Pandurang Ganpat Tanawade v. Ganpat Bhairu Kadam & Ors., 1996(6) Supreme Court Today 627; Prem Raj v. D.L.F. Housing and Construction Pvt. Ltd and Anr., ; N.P. Thirugnanam (dead) by L.Rs. v. Dr. R.Jagan Mohan Rao and Ors., ; Kommisethi Venkatasubbayya v. Karamsetti Venkateswarluand Ors., , Madduri Venkataratnam v.Mangu Ramadas and Ors., ; Md. Ziaul Haque v. Calcutta Vyasper Pratistham, ; Bhorey Nirottam Das v. Moot Chand (deceased by L.Rs) and Ors., 1982 All. Law Journal 1049; Mst. Sahida Bibi v. Sk. Golam Muhammad, Mr 1983 Calcutta 216; Rahat Jan v. Hafiz Mohammad Usman (deceased by L.Rs) and Others, Air 1983 Allahabad 343; Saral Kumar Chatterjee v. Madhusudan Auddy and Another, ; Rajendra Prasad Rai and Another v. Rajdeva Rai and Another, ; Gurupadayya Shivayya Hiremath v. Shivappa Basappa Gurammanavar, ; Gomathinayagam Pillai and Ors. v. Pallaniswami Nadar, ; Bishwanath Mahto v. Srimati fanki Devi, ; International Contractors. Ltd. v. Prasanta Kumar Suri, ; Dhanna Singh and Another v. Malkiat Singh and Another, 1983 Punjab Law Reporter 275; Ahammed v. Mammad Kunhi and Ors., Air 1987 Kerala 228 and P.G. Sinha (Panchu Gopal Sinha) v. Commodore K.C. Chatterjee and Ors., .
(80) 1 have analysed the evidence of the first defendant and also the pleadings and the inference is irresistible that the plaintiff has always ready and willing to perform his part of the contract. As pointed out by the Supreme Court the question of readiness and willingness has to be considered on the evidence adduced by the parties and in each of the cases referred to by the learned Counsel for the first defendant the High Courts and the Supreme Court had come to the conclusion on the facts of each case and the common thread that runs through all the cases is that the Court must be guided by the judicial principles and the exercise and discretion should not be arbitrary and whimsical. I have considered all the materials placed before me and when the first defendant has chosen to come forward with a false case she cannot now say that the plaintiff was not ready and willing to perform his part of the contract.
(81) Learned Counsel for the first defendant relied upon. Section 20 of the Specific Relief Act, 1963, and submitted that this Court should not exercise the discretion to grant the specific relief to the plaintiff. The Section 20 reads as under: Section 20 Discretion as to decreeing Specific Performance-(1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to.grant such relief merely because it is lawful to do so: but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of apapeal.
(2)The following are cases in which the Court may properly exercise discretion not to decree specific performance -
(A)where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract; though not voidable, gives the plaintiff an unfair advantage over the defendant; or (B)where the performances of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;
(C)where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation I-Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b). Explanation 2-The question whether the performance of a contract would involve hardship on the defendant within the meaning of Clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3)The Court may properly, exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4)The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.
Learned Counsel for the first defendant relied upon a few decisions on the scope of Section 20 of the Specific Relief Act, 1963. They are as under :
(82) Ajit Prashad Jain v. N.K. Widhani and Ors., ; Lourdu Man David & Ors. v. Louis Chinnaya Arogiaswamy & Ors., 1996 Vi Ad S.C.708; Madamsetty Satyanarayana v. G. Yellogi Rao and Two Others, ; M. Veera Raghaviah v. M. China Veeriah and Another, ; Jethalal Nanshah Modi v. Bachu and Another Air (32) 1946 Bombay 481; Nathu and Another v. State of U.P., (which I have already discussed) and Rajendraktlinar Bhandari v. Poosammal and Ors., .
(83) I shall now give findings on each of the issues.
(I)On Issue No. 1 about the suit being barred by limitation, I fail to see how it could be said that the suit is out of time. The agreement is dated ll.1.1978. The agreement provides for certain obligation, on the parties before the sale deed could be executed. 90 days time is fixed within which the first defendant should obtain permission and then inform the plaintiff. No specific time is fixed for the execution of the sale deed. The first defendant did not inform the plaintiff about obtaining the permission and therefore, the terminus a qua for the purpose of determining the starting point of limitation in this case is the date on which the first defendant informed about her refusal to perform her part of the contract. After the exchange of notices when the plaintiff came to know that the first defendant refused performance, the plaintiff had instituted the suit. The notice dated July, 1979 which is marked as Mark-D, which is not dated was received by the plaintiff on 2.8.1979 and the plaintiff gave his reply on 10.8.1979 which is marked as Mark-D. The plaint was presented on 6.3.1981. Therefore, the suit is well in time. This issue is answered in favour of the plaintiff and against the 1st defendant.
(II)On issue No. 2 about the suit being bad for mis-joinder and non-joinder of parties, the position as on date is that the second defendant is dead. Third defendant was set ex parte who is a property dealer and no relief is claimed against defendant No. 3 and the 4th defendant, that is. Land and Development Authority was deleted from the array of the parties. The suit is only against the first defendant. Therefore, there is no question of suit being bad for mis-joinder and non-joinder of parties.
(III)On issue No. 3, whether the suit is barred under the provisions of Order 23 Rule 1 (4) and Order 2 Rule 2, CPC. I had not referred to the pleadings about this aspect of the matter earlier because I thought expedient to refer to the pleadings at this stage . I discuss the issue. In para 36 of the plaint it is stated:
The plaintiff had filed, in the first instance, a declaratory suit for declaration by this Hon'ble Court that the contract, according to its terms, could not be waived at the sweet Will of the vendor and that the contract stands in full force which declaration would have alerted the defendants to their full civil liabilities. The declaratory suit came up for hearing before the Hon'ble Mr. Justice O.N. Vohra. But as the Hon'ble Court felt that the matter was quite clear and a suit for specific performance lay in the matter, the plaintiff's Advocate withdrew that suit on 23,1.1981 and is now submitting this suit for specific performance reserving her right to ask for damages and compensation due at the time when the defendants are in a position to execute the sale deed and to hand over vacant possession. In the written statement in para 36 the first defendant took the following plea: Regarding para No. 36 of the plaint, it is submitted that on account of the withdrawal of the said suit for declaration without any permission to withdraw from the said suit and without liberty to institute a fresh suit in respect of the subject matter of the said suit, the plaintiff has no right to file the present suit in respect of the alleged agreement dated 11.01.1978 or in respect of the suit plot. The present suit is barred under Order 2 Rule 2 and under Order 23 Rule 1 (4) CPC. Mr. Vashisht learned Counsel for the first defendant relied upon the judgment of the Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Others, and submitted that under the provisions of Order 23 Rule I, the present suit filed by the plaintiff is barred. According to learned Counsel Mr. Vashisht the plaintiff filed the Suit No. 26/81 and I that was dismissed on 23.1.1981 and the plaintiff had not obtained any leave to institute a fresh suit and therefore, this suit is barred. The plaintiff in this plaint had stated that on 23.1.1981 Mr. Justice Vohra passed the following order : Suit No. 26/81 and Ia No. 110/81 This is a suit for declaration concerning an agreement of sale entered into between the parties. What is sought is that the agreement subsists and cannot be rescinded. On being asked why the plaintiff has not sued for specific performance or for damages. Counsel expresses his readiness to withdraw the suit so that he may file a suit for specific performance or for damages, if so advised. The suit is accordingly dismissed as withdrawn as also the application. sd/- 23.1.1981 Judge The argument that the suit is barred under Order 23 Rule 1(4) and Order 2 Rule 2, Civil Procedure Code cannot at all be sustained in law. Therefore, this issue is found against the first defendant and in favour of the plaintiff.
(IV)On Issue No. 4 whether the suit is property valued for the purposes of the Court fees, no arguments were advanced and even on the material placed before me I do not think that there is any defect in the frame of the suit or proper Court fees had not been paid. Therefore, this issue is answered in favour of the plaintiff and against the 1st defendant and the suit is properly valued and proper Court fees has been paid.
(V)On Issue No. 5 whether the agreement dated 11.1.1978 is invalid or not binding on defendant No. 1, I had already adverted to the evidence adduced and the documents filed by the parties and the agreement dated 11.1.1978 cannot at all be said to be invalid. It is binding on the first defendant. She has admitted the agreement executed by her power of attorney on her behalf.
(VI)On Issue No. 6, whether the agreement dated 11.1.1978 stood frustrated in view of refusal of permission of sale from the Competent Authority under the Urban Land and Ceiling Act, 1976, I find that there is no question of frustration and the agreement is enforceable. This issue is answered in favour of the plaintiff and against the first defendant.
(VII)On Issue No. 7 that the agreement dated 11.1.1978 stands vitiated on account of fraud played upon defendants I and 2 by plaintiff and defendant No. 3 collectively, I find no difficulty in rejecting the case of the first defendant. I had already adverted to the cross-examination by learned Counsel for the first defendant of PW-2 by producing Exhibits R-1 and R-2 some sale deeds to show that the property dealer had played a fraud. Neither in the written statement of the defendants I and 2 nor in the evidence of DW-1 any particulars of fraud had been given as required under Order 6 Rule 4, CPC. Therefore, having taken up a false case, as I have mentioned earlier, the first defendant has also set up a case of fraud as against the plaintiff. I am not able to lay my hands on any material placed by the first defendant to come to a finding of fraud by the plaintiff. The first defendant thought that by putting forth this case the plaintiff could be defeated. It was only a vain attempt by the first defendant. This issue accordingly, is answered in favour of the plaintiff and against the 1st defendant.
(VIII)On Issue No. 8 whether time was of the essence of the contract and if so to what effect, the first defendant has never pleaded as to how the time was the essence of the contract. It is well-known that in a contract relating to the sale and purchase of immovable property time is never the essence unless the parties by specific agreement had made it so. The Constitution Bench of the Supreme Court laid down in paras 22, 23 and 24 in the case reported as Smt. Chand Rani (dead) by LRs. v. Smt. Kamal Rani (dead) by LRs., that:
(22) In Smt. Indira Kaur and Others v. Shri Sheo Lal Kapoor, it was held as under : "THE law is well-settled that in transactions of sale of immovable properties, time is not the essence of the Contract".
(23) For this proposition reliance was placed on Govind Prasad Chaturvedi's case (supra) quoted above.
(24) From an analysis of the above case law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract, even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: (1)from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example; the object of making the contract.
This issue does not arise for consideration at all.
(IX)On Issue No. 9 whether the plaintiff has been ready and willing to perform his part of the agreement, I have already discussed and I am very clear in my mind that the plaintiff has been ready and willing to perform his part of the agreement. Therefore, this issue is answered against the 1st defendant and in favour of the plaintiff.
(XI)On Issue No.10 whether the plaintiff is entitled to specific performance of agreement of sale dated 11.1.1978. I find that the plaintiff is entitled to the relief of specific performance.
(XI)OnlssueNo.ll,whethertheplaintiffis entitled to damages? lf so,amount thereof. There is absolutely no material produced by the plaintiff as to how he is entitled to damage. No doubt the first defendant is guilty of breach and guilty of putting forth a false case but that would not enable the plaintiff to claim damages or compensation. The claim made by the plaintiff is that if the sale deed has been executed in 1978 he would have put up construction by buying material at cheap rates and now the costs had increased and therefore therefore the first defendant is bound to compensate the plaintiff. The learned Counsel for the plaintiff has not been able to say as to how apart from claiming the relief of specific performance the plaintiff could claim damages in this case. No doubt, Section 21 of the Specific Relief Act, 1963 provides for payment of compensation. Section 21 of the Specific Relief Act, 1963 reads as under:
Section 21- (1)In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.
(2)If, in any such suit, the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.
(3)If, in any such suit, the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.
(4)In determining the amount of any compensation awarded under this section, the Court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872 (9 of 1872);
(5)No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint. Provided that where the plaintiff has not claimed any such compensation in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.
Explanation-The circumstances that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section. This only empowers the Court to -give compensation in a given case but the question is whether the plaintiff in this case is entitled to compensation. I am unable to persuade myself to hold that the plaintiff would be entitled to any compensation. Therefore, this issue is answered in favour of the first defendant and against the plaintiff.
(84) Learned Counsel for the first defendant Mr. Vashisht submitted that the suit has abated inasmuch as the second defendant died during the pendency of the suit and the plaintiff though was informed about the death did not bring the Legal asked Representatives of the deceased defendant on record This aspect was discussed by this Court and Hon'ble Mr. Justice Mahinder Narain passed the following order: Suit No 220/SI It is stated that Dr. Achhar Singh has died. He was general attorney of defendant No. 1. The agreement which is sought to be specifically performed was executed by Dr. Achhar Singh. No steps have been taken by Counsel for plaintiff for bringing the L.Rs. on record. I would like to be satisfied that in these circumstances, abatement has taken place. Mr. Vashisht to bring precedent to the effect that in such circumstances, abatement does take place. Re-notify on 28.2.1994.
(85) Under Order 22 Rule 2 provides as follows : Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against tile surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall 'proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.
(86) The case of the plaintiff is that the second defendant acted as agent of the first defendant in executing the agreement for sale and that is denied by the first defendant. The second defendant was made a party to the suit by the plaintiff. His death does not affect the right of the plaintiff against the first defendant who is the principal. Therefore,thesuit does not abate on the death of the second defendant.
(87) In the written statement and in the evidence of the first defendant as DW-1, reference is made to the fact that there is a construction on the property and there are tenants living therein and therefore, the plaintiff is not entitled to the relief of specific performance.
(88) The first defendant has not produced any evidence to show about the nature of the construction and when construction was put up and how the plaintiff was aware of the construction. In the absence of any evidence it is not open to the first defendant to plead that there is a construction on the property and therefore, the plaintiff is not entitled to the relief of specific performance. The construction, assuming it is made on. the property is at the risk of the first defendant. Now when the plaintiff is granted relief of specific performance the first defendant has to demolish the building if there is any, she has to remove the building and if she does not do it, the plaintiff would be entitled to get it done through the process of law at his costs.
(89) Accordingly, there shall be a decree directing :
(1)the plaintiff to deposit a sum of Rs. 2,85,000.00 being the balance of sale consideration on or before 13.8.1997; (2)directing the first defendant to execute the sale deed with in two weeks on the plaintiff's depositing the balance amount in this Court. If the first defendant fails to do so within the stipulated period an officer of this Court shall be appointed to execute the sale deed in favour of the plaintiff in respect of the suit property in accordance with law;
(3)directing the first defendant to demolish the building put up by her in the suit land within eight weeks from today. If the 1st defendant does not demolish the building, the plaintiff shall be entitled to get the building demolished through the process of Court at his costs.
(4)directing the first defendant to pay the plaintiff the costs of the suit;
(5)directing the dismissal of the suit relating to the claim for damages by the plaintiff.