Delhi District Court
M/S Jagdish Chander Vij (Huf) vs M/S Rawal Apartments Pvt. Ltd on 21 December, 2022
IN THE COURT OF SH. GAURAV RAO, ADJ-03/ NEW
DELHI DISTRICT, PATIALA HOUSE COURTS, NEW
DELHI.
CS No. 56441/16 ( Old No. 92/16 & CS (OS) 2774/15)
CNR No. DLND01-001318-2015
M/s Jagdish Chander Vij (HUF)
Through its Karta
M/s Jagdish Chander Vij (HUF)
R/o A-5/1 Rana Pratap Bagh,
Delhi -110007.
........Plaintiff
Vs.
M/s Rawal Apartments Pvt. Ltd.
119, Competent House,
F-14 Connaught Place,
New Delhi -110001.
..........Defendant
Date of institution : 11.09.2015
Date on which reserved for judgment : 17.12.2022
Date of decision : 21.12.2022
Decision : Decreed
JUDGMENT
1. The present suit for specific performance has been filed by the plaintiff against the defendant.
1.1 The suit was filed before Hon'ble High Court of Delhi on 11.09.2015 and in view of the notification No. 27187/DHC/Orgl. dated 24.11.2015, the same was transferred to Ld. District & Sessions Judge, New Delhi District, Patiala House CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 1/86 Courts vide order dated 30.11.2015 and thereupon assigned to this Court.
Plaint/plaintiff's version
2. It is the case of the plaintiff that it is a Hindu Undivided Family and the present suit is being filed by/through its Karta Sh. Jagdish Chander Vij and that the defendant is a private limited company under the companies Act 1956.
2.1 It is further the plaintiff's case that vide an agreement dated 25.07.1985 the defendant/builder had contracted with one Sh. Shiv Darshan Singh, owner of property bearing Plot no. 3A, Block No. 124, known as 14, Janpath Lane, New Delhi to build and develop the same and by virtue of said agreement & General Power of Attorney, the defendant was empowered to sell the spaces on ownership basis in the proposed Multi-storey building known as N.S. House at 14, Janpath Lane, New Delhi (hereinafter referred to as the Project).
2.2 It is the plaintiff's case that it through its karta applied for allotment of office/showroom/storage space in the proposed project, which application was accepted by the defendant vide letter dated 27.03.1987 and it was allotted a commercial space/Flat no. 12 denoted by No.412 on the 4 th floor in the Project having approximate super covered area of 485 sq. CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 2/86 feet at the rate of Rs. 1145 per sq. feet (hereinafter referred to as the suit flat).
2.3 It is further it's case that a flat buyer agreement dated 27.03.1987 was entered into between it and the defendant and as per the said agreement installments towards the payment of the price of the suit flat were to be paid by the plaintiff as per the payment schedule as provided in the agreement. It is further it's case that in flat buyer agreement it is also stated that the building plans/scheme were yet to be approved by various sanctioning authorities namely NDMC, Urban Art Commission and Land & Development office, however, the construction of the building/Project was assured to be completed in 2 and ½ years from the date of start of construction after all the sanctions and permissions are/were duly obtained and the conveyance of each flat was to be executed directly in favour of the plaintiff/flat buyer as directed by the authority concerned.
2.4 It is further it's case that a sum of Rs. 1,11,065/- was paid by it to the defendant as the first installment at the time of execution of the flat buyer agreement and similarly another sum of Rs. 55,532/-, was paid by it to the defendant as part payment towards the allotted suit flat on 20.04.1987. It is further it's case that since the defendant had yet to seek the necessary sanction from the various authorities including Land & Building Department, NDMC, DDA, Urban Arts Commission, Delhi CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 3/86 Traffic Police, Chief Fire Officer, the commencement of the construction was delayed.
2.5 It is further it's case that however a letter dated 05.08.1987 was received by it from the defendant informing about the clearance to the said project issued by the Land & Development as well as approval of the building plans by NDMC and similarly, another letter dated 07.10.1987 was received from the defendant informing about the payment of a sum of Rs. 58,66,260/- as the first installment of the conversion charges as well as payment of another sum of Rs. 1,35,16,131/- as security for the balance payment of the conversion charges to the Land & Building Office in respect to the project in question.
2.6 It is further it's case that thereafter it received a letter dated 15.04.1989 from the defendant informing about the status of the approvals from various authorities and assuring that the construction on the said project shall start sometime in the month of June 1989. It is further it's case that it was stated that the comprehensive redevelopment scheme of the Janpath Lane, New Delhi has been approved by the NDMC on 06.04.1989 subject to certain clarifications viz. Traffic Police/Circulation and Fire safety.
2.7 It is further it's case that it was also stated that owning to the guidelines issued by the Ministry of Urban CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 4/86 Development, the defendant will have to provide 3 basements to cope with the statutory requirements and the building is bound to be 10 stories to achieve the permissible FAR of 250. It is further it's case that it was further assured that the construction of the proposed multi-storied is expected to commence sometime in the month of June 1989 and it was therefore asked to remit the installment equivalent to 10% of the total cost of suit flat on the commencement of the construction.
2.8 It is further it's case that another letter on 27.04.1992 was received from the defendant changing the name of the proposed project to Classic House at the project site, i.e. 14, Janpath Lane, New Delhi and informing about the clearance of various hurdles in the commencement of the construction of the building at the project site and it was specifically mentioned that necessary clearance from Chief Fire Officer, Urban Arts Commissioner, Traffic Department has been obtained. It is it's case that it also informed that Land & Building Department has permitted the demolition of the existing structure and for reconstruction of the building.
2.9 It is further it's case that on 30.04.1996 the defendant issued another letter explaining the delay in the completion of the proposed project and offered a 5% special rebate on the list price of the property. It is further it's case that another letter dated 05.07.1999 was received from the defendant assuring the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 5/86 sanction of the building plans and the requisite approval before 15th August 1999 and that the construction of the proposed project would commence by August-September 1999.
2.10 It is further it's case that finally a letter dated 21.10.2000 was received from the defendant informing about the sanction of the building plans by the NDMC and at the same time it was informed that owing to the reduction of the FAR of the Janpath Lane the provisional allotment for 485 sq. feet has been proportionately reduced to 291 sq. feet and it's approval was sought in writing. It is further it's case that vide letter dated 25.10.2000 it gave its consent in writing to the allotment of the suit flat with reduced area, however, submitted that in case the defendant is able to enhance the FAR more than 1.50, then in that case the suit flat area allotted to it be restored to that extent.
2.11 It is further it's case that immediately thereafter the it received a demand letter dated 01.11.2000 from the defendant asking it to pay a sum of Rs. 3,50,000/- as cost of one parking space on pro-rata basis, in two equal installments of Rs. 1,75,000/- each to be paid by 15.11.2000 and 15.12.2000 and accordingly it paid a sum of Rs. 1,25,000/- towards car parking space on 15.11.2000. It is further it's case that demand for the cost of car parking space was reiterated vide letter dated 06.03.2001 instructing it to pay sum of Rs. 3,50,000/- by 20.03.2001, however, another letter dated 28.03.2001 was CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 6/86 received from the defendant revising the cost of the suit flat provisionally allotted to it to Rs. 3000/- per sq. feet on account of the escalation in the cost and at the same time it was stated that a sum of Rs 3,50,000/- to be paid by it as the cost of the car parking space shall be recovered in installments along with the installments of the suit flat booked by it.
2.12 It is further it's case that thus the total cost of the suit flat along with cost of car parking was calculated at Rs. 12,23,000/- as on 28.03.2001. It is further it's case that vide letter dated 28.03.2001 it was asked to pay an amount of Rs. 1,97,602.50 at the commencement of the construction of the said building and in compliance to the said letter dated 28.03.2001 it paid another sum of Rs. 1,00,000/- to the defendant. It is further it's case that another letter dated 22.06.2002 was received from the defendant raising the demand for the next installment of a sum of Rs. 1,25,000/- due on the completion of the lower basement roof slab and it made the payment of a sum of Rs. 50,000/- on 22.07.2002 to the defendant. It is further it's case that similarly on 02.08.2002 payment of further sum of Rs. 65,000/- was made by it to the defendant.
2.13 It is further it's case that another letter dated 07.11.2002 was received from the defendant informing that the roof slab of the lower basement has been completed, that of the upper basement is also nearing completion and consequently CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 7/86 asked it to make arrangement for the next two installments of a sum of Rs. 1,25,000/- each to be paid by 15.11.2002 and on 30.11.2002 respectively.
2.14 It is further it's case that it accordingly paid a sum of Rs. 60,000/- to the defendant on 15.11.2002 and another sum of Rs. 60,000/- was paid by it to the defendant on 29.11.2002. It is further it's case that it made further two payments of Rs. 50,000/- each on 16.12.2002 to the defendant.
2.15 It is further it's case that subsequently vide letter dated 31.12.2002 demand for another sum of Rs. 62,500/- was made by the defendant on account of completion of the roof slab of the ground floor of the building and it thus made payment of Rs. 50,000/- to the defendant towards the various amounts demanded by the defendant.
2.16 It is further it's case that again vide letter dated 31.01.2003 the defendant informed it about the completion of the first floor slab of the building and thus made the demand for another installment of Rs. 62,500/- and similarly vide letter date 15.02.2003 it was informed by the defendant about the completion of the roof slab of the second floor of the building and a further demand of Rs. 62,500/- was made and in compliance of various demand letters, it made further payments of sums of Rs. 70,000/-, Rs. 52,000/- on 20.02.2003 and of Rs.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 8/86 60,000/- was made on 10.04.2003.
2.17 It is further it's case that vide another letter dated 28.04.2003 defendant informed it that the fourth floor roof slab of the building has been completed and hence it was required to make the payment of another installment of Rs. 62,500/- by 10.05.2003 and it thus made the payments of the sums of Rs. 60,000/- on 14.05.2003, Rs. 50,000/- on 20.06.2003, Rs. 50,000/- on 19.07.2003 and Rs. 50,000/- on 27.08.2003.
2.18 It is further it's case that by 27.08.2003 it had made the total payment of Rs. 11,77,000/- (Approx) which was more than 95% of Rs. 12,23,000/- which was the total cost of the suit flat including the car parking as per letter, of defendant, dated 28.03.2001. It is further it's case that all the payments were duly accepted by the defendant at all times without protest about the delay in the payments and the receipts were duly issued by the defendant in its favour.
2.19 It is further the it's case that vide another letter dated 05.09.2003 it was informed that it has now been alloted the suit flat/shop/commercial area having the super area of 300 sq. feet in the project.
2.20 It is further it's case that thereafter the construction of the said project was suddenly stalled/stopped and it made CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 9/86 several enquiries about the status of the project, however, it was informed that owing to certain objections raised by various authorities to the said project on account of its proximity to the heritage monument of Jantar Mantar it was not possible for the defendant to recommence the construction of the said project. It is further the it's case that it had no alternative except to wait for the commencement of the said project on which it had already invested huge amount, paid more than 95% of the total cost.
2.21 It is further it's case that it waited for almost 11 years for the said project to start and its completion & for allotment of suit flat by the defendant. It is further it's case that finally in the month of May 2014 it was again informed about the start of the said project by the defendant as well as about the escalation in the cost of the construction of the same and it was informed that the suit flat along with cost of car parking space will now cost @ Rs. 10,000/- per sq. feet and thus the total cost of the suit flat admeasuring 300 sq. feet (along with car parking space) was calculated at Rs. 30 lakhs and it was asked to make further payment accordingly. It is further it's case that it willingly made the payment of Rs. 12,00,000/- to the defendant on 01.07.2014 as well as another sum of Rs. 4,73,000/- on 10.07.2014.
2.22 It is further it's case that thus the total payment of 95% was made by it to the defendant as per the payment schedule of the said agreement and the balance of 5% only CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 10/86 remains to be paid at the time of handing over the possession of the suit flat.
2.23 It is further it's case that when even after payment of 95% of the total cost of the suit flat as demanded by the defendant in the year 2014 and even after completion of construction at the project site, it did not hear from the defendant about the final possession of the suit flat, it was constrained to send the legal notice dated 19.12.2014 to the defendant seeking defendant to deliver the physical possession of the same to the plaintiff. It is further it's case that no response to the same was received from the defendant and similarly another/final notice dated 13.08.2015 was sent to the defendant reiterating the demand to deliver the physical possession of the suit flat to it without any further delay however it failed to evince any response from the defendant in this regard.
2.24 It is further it's case that it made all the payment diligently as demanded by the defendant from time to time and not only this it had paid more than 95% of the total cost of the suit flat along with cost of parking space in the year 2003 itself, however, waited for another 11 years before hearing any news about the re-start of the project. It is further it's case that not only this it readily & willingly made the further payment of Rs. 16,73,000/- as demanded by the defendant in the year 2014 on account of escalation in the cost, however, the defendant till date CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 11/86 has neither sent any letter of possession of the suit flat nor even cared to reply to the letters and notices sent by it.
2.25 It is further it's case that it has come to know that the defendant is in the process of selling off the units/shops at a much higher price and thereby creating third party interest in the suit flat and it is clearly evident of the dishonest intention of the defendant who owing to increase in prices of the properties during this period wishes to wriggle out of the flat buyer agreement dated 27.03.1987.
2.26 It is further it's case that defendant is liable to honour its obligation under the said agreement and to execute the necessary conveyance deed in respect of the suit flat or any other suitable alternative accommodation in the said project. It is further it's case that physical possession of the suit flat is also liable to be handed over by the defendant to it on receipt of balance sale consideration of Rs. 1,50,000/-.
2.27 It is further it's case that it has always been ready and willing to perform its part of the contract and is still ready and willing to perform its obligation under the agreement dated 27.03.1987, however, the defendant is not coming forward to perform its obligation under the said agreement.
2.28 Hence the present suit.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 12/86 Written Statement/defendant's version
3. In its written statement defendant pleaded that on 27.03.1987 plaintiff had applied for allotment of 485 sq. feet office space in the said Project and accordingly plaintiff was provisionally allotted suit flat with an approximate super covered area of 485 sq. feet vide provisional allotment letter dated 27.03.1987 and all terms and conditions were mentioned in the said provisional allotment letter dated 27.03.1987.
3.1 It was pleaded that agreement dated 27.03.1987, relied upon by the plaintiff for specific performance, is a provisional allotment letter dated 27.03.1987 and the same is not a concluded contract & enforceable in law and no discretion could be exercised u/s 20 of the Specific Relief Act 1963. It was pleaded that thus the suit is not maintainable and the plaintiff is not entitled to specific performance of the said provisional letter of allotment dated 27.03.1987 especially in view of the fact that plans for the proposed building had not been sanctioned by that date.
3.2 It was pleaded that there could have been increase or reduction in the space booked by the plaintiff and further the rate per sq. feet of salable space fixed was based on the cost of CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 13/86 construction as on 01.03.1986 which was to hold good uptil 31.12.1986 and therefore the price of area which was provisionally allotted was not fixed and subject to escalation. Furthermore the cost of electric connections, electric cables, electric sub station, generator, fire fighting equipment, water supply installation, air conditioning plants and charges of such other amenities and facilities were not included in the cost of the suit flat and all these costs required to be worked out once the project is/was complete. It was pleaded that as neither the area is finalized nor the price is finalized, therefore there is no concluded contract and hence not capable of being specifically performed.
3.3 It was pleaded that allotment was provisional and the plans then were yet to be sanctioned by various authorities and if for any reason the project would get delayed or abandoned, no claim could be preferred against the defendant except that the money received would be refunded in full without any interest. It was pleaded that thus no specific performance can be sought where it is agreed between the parties that the money advanced would be refunded in full without any interest.
3.4 It was pleaded that it is not suggested from the contents of the provisional allotment letter dated 27.03.1987 that the same was a concluded contract/agreement as regards the material ingredients like the consideration, time for the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 14/86 respective obligations to be discharged, certainty as to area/property to be sold and certainly as to other terms relating to probable cost of conveyance to be borne by the parties and if these ingredients are lacking in the agreement, the obligations contemplated u/s 16 of the Specific Relief Act 1963 for specific performance of immovable property would not arise. It was pleaded that no flat buyer agreement dated 27.03.1987 was executed between the plaintiff and the defendant.
3.5 It was pleaded that the project is yet not complete, concerned authorities have not given the completion/occupancy certificate and National Monuments Authority has by way of letter dated 29.10.2016 again suspended the NOC of the building.
3.6 It was pleaded that the plaintiff has not valued the suit property and has not paid appropriate court fees and thus the plaint is liable to be returned on this ground alone. It was pleaded that suit ought to have been valued at Rs. 37,55,000/- being tentative cost of the suit flat as on 15.01.2016 which amount does not include the cost and charges towards amenities in the building.
3.7 It was pleaded that in view of the terms and conditions of the provisional allotment letter plaintiff is/was obliged to pay the certain additional charges over & above the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 15/86 sale consideration at which the suit flat was booked, however, the amounts due towards maintenance, upkeep and other services as well as installation of services & necessary facilities like water filter, electric sub station, 3 lifts, air conditioning plants etc., cost of maintenance, proportionate share/cost payable by the plaintiff is/are yet to be worked out and liable to be recovered from the plaintiff towards additional costs and the valuation of said amount can only be calculated once the building is finished and ready for occupation with the necessary occupancy certificate and thus in terms of clause 13 the final price is yet to be determined.
3.8 It was pleaded that owner of the plot Sh. Darhsan Singh had revoked the General Power of Attorney dated 25.07.1985 as was executed in favour of Sh. Narender Anand which act on the part of Sh. Darshan Singh is illegal & malafide. It was pleaded that National Monuments Authority has suspended the NOC for building on the representation of Darshan Singh and there is no occupancy/completion certificate by the concerned authorities for the said building/project and thus in such circumstances no specific performance would be warranted.
3.9 It was pleaded that in the meanwhile Archaeological Survey of India (ASI) vide its letter dated 10.05.2001 informed the NDMC that the sanction given for the said project was in fact CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 16/86 contrary to notification dated 16.06.1992 under the Ancient Monuments and Archaeological Sites and Remains Act 1958 and should not have been given as the property is located within the prohibited area of Jantar Mantar, New Delhi.
3.10 It was further pleaded that NDMC on receipt of said letter from ASI, issued a letter/notice dated 23.05.2001 to the defendant directing them to stop the construction and obtain necessary permission from ASI.
3.11 It was pleaded that in view of the said notice, the defendant preferred a suit bearing no. 645/02 for injunction against NDMC, the Hon'ble Lieutenant Governer as well ASI before the Hon'ble High Court of Delhi praying for restraining the defendants therein from interfering with the construction being made in accordance with the sanctioned building plans and the Hon'ble High Court vide its order dated 22.03.2002 restrained the NDMC from giving effect to letter dated 23.05.2001 and further the Hon'ble High Court of Delhi vide orders dated 30.10.2002 allowed IA No. 2912/2002 and made order dated 22.03.2002 absolute thereby restraining NDMC from giving effect to its letter dated 23.05.2001 and permitted the defendant to raise construction on the said property/project in accordance with the sanctioned building plans.
3.12 It was pleaded that accordingly the defendant in terms CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 17/86 of collaboration agreement dated 25.07.1985 constructed multi- storied building over the said property/project consisting of two basements, ground and four floors over and above the ground floor.
3.13 It was pleaded that against order dated 30.10.2002 ASI preferred an appeal bearing FAO (OS) No. 414/2002 and the Division Bench of the Hon'ble High Court by way of its judgment dated 23.07.2004 set aside the injunction order dated 30.10.2002 and further the Division Bench directed the Central Government to review its notification dated 16.06.1992 in light of the discussion made in the judgment within a period of six months.
3.14 It was pleaded that ASI as well as defendant preferred their respective appeals before the Hon'ble Supreme court of India challenging order dated 23.07.2004, however, the Hon'ble Supreme Court of India vide its judgment dated 16.01.2012 upheld AMASR Act 2012 and rejected the appeal of the defendant.
3.15 It was pleaded that during the pendency of the appeals before the Hon'ble Supreme Court of India, the AMASR Act 1958 was amended in 2010 and Section 20A and 20B were inserted w.e.f. 16.06.1992 and section 20C to 20Q were inserted w.e.f. 29.03.2010. It was further pleaded that in view of the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 18/86 amended provisions of AMASR Act 1958, defendant applied to competent authority seeking permission for repair/renovation (completion of the flooring, plaster inside and outside, electric, sanitary fittings and lifts (as per plan) of existing building at the property and submitted requisite form-I. 3.16 It was pleaded that competent authority on 18.05.2012 considering the facts and circumstances of the case of defendant to be falling within the ambit of section 20D (7) of AMASR Act and Rules framed there under, recommended finishing of the building over the property but without any extension vertically or horizontally.
3.17 It was pleaded that plot owner of the property namely Shiv Darshan Singh on learning about the above
recommendation dated 18.05.2012, turned dishonest and by way of his letters dated 22.09.2012 and 25.09.2012 addressed to Member Secretary, National Monuments Authority and ASI requested that no application/representation of defendant regarding regularization be considered or entertained on the basis of Collaboration agreement or power of attorney. It was pleaded that in view of above two letters of owner Sh. Darshan Singh, The National Monuments Authority by way of letter dated 04.12.2012 informed the defendant that matter considering NOC application was kept on hold till such time the matter is resolved with the owner.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 19/86 3.18 It was pleaded that defendant by way of letter dated 10.12.2012 responded to letter dated 04.12.2012 and clarified the actual position that the defendant is the major 75% share holder viz-a-viz the plot owner who holds only a meager share of 25% in the said property where upon the building was constructed and considering the representation of defendant on 28.11.2013 the National Monuments Authority granted permission for repair & renovation of the building. It was further pleaded that Competent Authority on 16.12.2013 granted permission to the defendant for completion of building over the property.
3.19 It was further pleaded that in view of the Competent authority granting requisite permissions, NDMC on 05.06.2014 also granted permission to the defendant for furnishing/ completing the existing structure as per approved drawings of NMA/ASI i.e. two basements, ground floor and four floors over and above the ground floor and in such circumstances the original plan of constructing two basements, ground floor and six floors over and above on the ground floor came to be altered thereby reducing the covered area of the building by 22%.
3.20 It was pleaded that since plot owner Sh. Shiv Darshan Singh could not succeed in his illegal designs & ulterior motives, on 12.01.2015 he proceeded to execute a Cancellation deed of CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 20/86 registered General power of attorney dated 25.07.1985 which was executed in favour of Mr. Narender Anand simultaneous to the Collaboration agreement dated 25.07.1985.
3.21 It was pleaded that to further compound the situation for the defendant, on 16.02.2015 the plot owner addressed another letter to NDMC informing them that he has cancelled the registered general power of attorney in favour of Mr. Narender Anand and further requested them not to entertain the defendant or deal with any document/letter/representation made by them and a similar letter was written to competent authority, ASI and Member Secretary on 18.03.2015. It was further pleaded that in view of the aforesaid letters by the plot owner, the Competent authority, ASI vide letter dated 06.04.2015 cancelled its recommendation/permission as regards completion of the superstructure having been constructed over the property till the resolution of ownership dispute.
3.22 It was pleaded that defendant on 07.05.2015 made a representation before the Competent Authority as well as NDMC seeking revival of permissions and personal hearing was taken on 23.06.2015 whereby defendant placed its position before the Competent authority. It was further pleaded that plot owner again on 20.05.2015 approached the NDMC seeking to obstruct the permissions so accorded by NDMC.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 21/86 3.23 It was pleaded that Mr. Narender Anand further addressed a communication dated 21.05.2015 to Dy. Chief Architect, NDMC seeking completion of the building, however, NDMC rejected the sanction granted to the defendant as regards the superstructure over the property on 26.05.2015.
3.24 It was pleaded that defendant thereafter made serious efforts and also made requisite representations to the authorities concerned thereby explaining the factual aspects as well as their position in law and fortunately on 03.06.2015 Law Department of NDMC opined that General Power of Attorney in favour of Mr. Narender Anand was irrevocable.
3.25 It was pleaded that considering the representation made by the defendant & settled legal propositions, ASI by way of its order dated 01.07.2015 revived its permission, however, on 23.07.2015 the plot owner of the property again approached ASI seeking withdrawal of permission granted to the defendant.
3.26 It was pleaded that on 30.07.2015, L&DO issued NOC in favour of defendant as regards the said property and in view thereof on 17.08.2015 the NDMC also issued a letter to the defendant to finish the building so as to be entitled for completion certificate.
3.27 It was pleaded that however tyranny for the defendant CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 22/86 would not end here and the plot owner since had malafide intentions, thereafter approached L&DO and misled the authorities vide letters dated 01.09.2015 and 03.09.2015. It was pleaded that L&DO on 10.09.2015 revoked its NOC accorded on 30.07.2015 and asked NDMC to withhold issuance of occupancy certificate and completion certificate till further instructions in view of the cancelled GPA.
3.28 It was pleaded that on the representation of Shiv Darshan Singh the National Monuments Authority again by way of its letter dated 29.01.2016 suspended the NOC accorded for completing the said building. It was pleaded that in view of the conduct of Sh. Shiv Darshan Singh and the concerned authorities not granting requisite occupancy/completion certificate and it is impossible for the defendant to execute any conveyance deed as desired by the plaintiff.
3.29 It was pleaded that thus it is apparent that defendant cannot be faulted with for the delay caused in completing the building. It was pleaded that the circumstances beyond the control of defendant as well as the conduct of the owner of the plot who intends to frustrate the contract, is constraining the defendant from completing the building. It was pleaded that though there are no supervening circumstances or extraneous change in situation which would frustrate the contract between the plot owner and defendant, however, the plot owner has now CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 23/86 filed a suit seeking declaration that the Collaboration agreement be declared to be frustrated in terms of Section 56 of the Contract Act consequent to the judgment dated 16.01.2012 by the Hon'ble Supreme Court of India. It was pleaded that therefore in the present scenario the obligations under the Provisional Allotment letter even otherwise cannot be performed as there have arisen the circumstances which are beyond the control of the defendant.
3.30 It was pleaded that it was further provided in the Provisional Letter dated 27.03.1987 that in the event the area of the flat differs at the time of possession which could be less or more the cost would be adjusted on the applicable rates. It was pleaded that the sanctioning authorities on 05.06.2014 had permitted the defendant to finish/complete the existing building as per approved drawings of NMA/ASI. It was pleaded that on account thereof the defendant could construct basements, ground and four floors over and above the ground floor instead of the original sanctioned plans dated 18.09.2000 of two basements, ground and six floors over and above the ground floor and therefore the entire area of the building has been reduced by 22%. It was pleaded that accordingly the plaintiff's area which got reduced from 485 sq feet to 291 sq. feet, is/was further reduced by 22% and thus plaintiff is eligible for only 227 sq. ft. including share of the proportionate area engaged and utilized for common services and necessary/desirable facilities and CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 24/86 installations of AC, DG, Sub-Stations etc. and all that is mentioned above to be shared by every flat buyer in ratio to the area occupied by them and though the above facts were in the knowledge of the plaintiff, however the plaintiff has deliberately chosen to conceal and suppress the above vital facts.
Replication
4. In its replication, the plaintiff denied the averments of the written statement while simultaneously reiterating and reaffirming the contents of the plaint.
Issues
5. On the basis of pleadings of the parties, following issues were framed, by the Ld. Predecessor of this court, vide proceedings dated 22.01.2016:-
1. Whether the plaintiff is entitled to specific performance?
OPP
2. Relief.
5.1 Following additional issues were also framed vide orders dated 01.06.2016 passed by Ld. Predecessor of this court:-
3. Whether the agreement dated 27.03.87 was not a concluded contract qua it no relief of Specific Performance can be sought? OPD CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 25/86
4. Whether plaintiff has not valued the suit properly for the purpose of Court fees? OPD Plaintiff's evidence
6. To prove its case, plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents:-
A. Letter dated 27.03.1987 along with Flat Buyer Agreement as Ex. PW1/1.
B. Receipt issued by the defendant for a sum of Rs.
1,11,065/- as Ex. PW1/2.
C. Receipt issued by the defendant for a sum of Rs. 55,532/-
as Ex. PW1/3.
D. Letter dated 05.08.1987 as Ex. PW1/4.
E. Letter dated 07.10.1987 along with letter dated 25.08.1987
as Ex. PW1/5.
F. Letter dated 15.04.1989 along with letter dated 25.08.1987
as Ex. PW1/6.
G. Letter dated 27.04.1992 as Ex. PW1/7.
H. Letter dated 30.04.1996 as Ex. PW1/8.
I. Letter dated 05.07.1999 as Ex. PW1/9.
J. Letter dated 21.10.2000 as Ex. PW1/10.
K. Letter dated 25.10.2000 as Ex. PW1/11.
L. Letter dated 01.11.2000 as Ex. PW1/12.
M. Receipt issued by the defendant for payment of Rs.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 26/86 1,25,000/- as Ex. PW1/13.
N. Letter dated 06.03.2001 as Ex. PW1/14.
O. Letter dated 28.03.2001 as Ex. PW1/15.
P. Receipt dated 31.03.2001 issued by the defendant for
payment of Rs. 1,00,000/- as Ex. PW1/16.
Q. Certificate of confirmation for the FY 2000-01 as Ex.
PW1/17.
R. Letter dated 11.06.2002 as Ex. PW1/18.
S. Letter dated 22.06.2002 as Ex. PW1/19.
T. Receipt issued by the defendant for payment of Rs.
50,000/- as Ex. PW1/20.
U. Receipt issued by the defendant for payment of R.
58,402.50/- as Ex. PW1/21.
V. Letter dated 07.11.2002 as Ex. PW1/22.
W. Receipt issued by the defendant for payment of Rs.
60,000/- as Ex. PW1/23.
X. Receipt issued by the defendant for payment of Rs.
65,000/- as Ex. PW1/24.
Y. Receipt issued by the defendant for payment of Rs.
50,000/- as Ex. PW1/25.
Z. Receipt issued by the defendant for payment of Rs.
60,000/- as Ex. PW1/26.
AA. Letter dated 05.12.2002 as Ex. PW1/27.
AB. Letter dated 31.12.2002 as Ex. PW1/28
AC. Receipt issued by the defendant for payment of Rs.
50,000/- as Ex. PW1/29.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 27/86 AD. Letter dated 31.01.2003 as Ex. PW1/30.
AE. Letter dated 15.02.2003 as Ex. PW1/31.
AF. Receipts issued by the defendant for payment of Rs.
70,000/-, Rs. 52,000/- and Rs. 60,000/- as Ex. PW1/32, Ex. PW1/33 and Ex. PW1/34 respectively.
AG. Letter dated 28.04.2003 as Ex. PW1/35.
AH. Receipts issued by the defendant for payment of Rs. 60,000/-, Rs. 50,000/-, Rs. 50,000/- and Rs. 50,000/- as Ex. PW1/36 to Ex.PW1/39 respectively.
AI. Letter dated 05.09.2003 as Ex. PW1/40. AJ. Certificate of confirmation for FY 2002-03 & 2003-04 as Ex. PW1/41.
AK. Receipts of payment of Rs. 12,00,000/- and Rs. 4,73,000/-
as Ex. PW1/42 and Ex. PW1/43.
AL. Letter dated 19.12.2004 as Ex. PW1/44.
AM. Letter dated 13.08.2015 as Ex. PW1/45.
AN. Bank Statement showing the payment of Rs. 12,00,000/-
on 01.07.2014 and Rs. 4,73,000/- on 10.07.2014 as Ex. PW1/46.
Defendant's evidence
7. Defendant examined Sh. Narender Anand as DW1 who tendered his evidence by way of affidavit Ex. DW1/X and relied upon the following documents:-
A. Board Resolution dated 10.02.2016 as Ex. DW1/1.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 28/86 B. Written statement as Ex. DW1/2.
C. Copy of order dated 27.06.2016 as Ex. DW1/3.
D. Letter dated 04.12.2012 of National Monuments Authority
as Ex. DW1/4.
E. Letter dated 28.11.2013 of National Monuments Authority
as Ex. DW1/5.
F. Letter dated 16.12.2013 of ASI as Ex. DW1/6.
G. Letter dated 05.06.2014 issued by NDMC as Ex. DW1/7.
H. Letter dated 06.04.2015 as Ex. DW1/8.
I. Letter dated 21.05.2015 as Ex. DW1/9.
J. Letter dated 26.05.2015 issued by NDMC as Ex.
DW1/10.
K. Letter dated 01.07.2015 issued by ASI as Ex. DW1/11.
L. Letter dated 29.01.2016 issued by National Monuments
Authority as Ex. PW1/12.
M. Copy of letters dated 22.09.2012 and 25.09.2012 as Mark
DW1/B and Mark DW1/C.
N. Relevant extract of recommendation of competent
authority dated 18.05.2012 as Ex. PW1/13.
7.1 Defendant also examined Sh. Sudesh Kumar Sharma,
System Analyst, National Monuments Authority as DW2 who tendered his evidence by way of affidavit Ex. DW2/A and he relied upon the following documents:-
A. Copy of letter dated 04.12.2012 issued by NMA as Ex.
DW2/1.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 29/86 B. Copy of letter dated 28.11.2013 issued by NMA as Ex.
DW2/2.
C. Copy of letter dated 19.01.2016 issued by NMA as Ex.
DW2/3.
D. Copy of letter dated 27.06.2016 issued by NMA as Ex.
DW2/4.
7.2 Defendant also examined Sh. Md. Iftikhar Ahmed, Website and Data Manager, Competent Authority of NCT of Delhi as DW3 who produced letters dated 16.12.2013, 06.04.2015, 01.07.2015 and 18.05.2012 and proved the same as Ex. DW3/1 to Ex. DW3/4 respectively.
7.3 Defendant examined Sh. M.S. Negi, Junior Engineer, NDMC as DW4 who produced the letter dated 05.06.2014 and 26.05.2015 and proved the same as Ex. DW4/1 and Ex. DW4/3.
Findings
8. I have heard the Ld. counsels for the parties, given due consideration to the rival contentions raised at bar, carefully gone through the record and also considered the case laws relied by the parties. Plaintiff has relied upon the following case laws in support of his case:
(a) R.N. Grover and ors Vs. Rawal Apartments (P) Ltd.
and ors MANU/TA/0034/2015.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 30/86
(b) Anil Kumar Vs. Ajith MANU/KE/1991/2012.
(c) Srinivas Ram Kumar Vs. Mahabir Prasad and ors MANU/SC/0021/1951.
(d) Uma Kapoor Vs. Kapil Aggarwal
MANU/DE/2028/2014.
(e) Najmudin I. Bharmal and ors Vs. Charotar
Gramoddhar Sahakari Mandali Ltd. and ors
MANU/GJ/0327/1995.
(f) Nandkishore Lalbhai Mehta Vs. New Era Fabrics
Pvt. Ltd and ors MANU/SC/0739/2015.
(g) K Narendra Vs. Riviera Apartments (P) Ltd.
MANU/SC/0392/1999.
(h) Ganesh Shet Vs. Dr. C.S.G.K. Setty and ors (1998) 5
SCC 381.
8.1 Ld. Counsel for the defendant has relied upon
Universal Petro-Chemicals Limited Vs. B.P. PLC & ors (2022) 6 SCC 157 and Bachhaj Nahar Vs. Nilima Mandal and anr Civil Appeal Nos. 5798-5799 of 2008 arising out of SLP @ Nos. 23766-67 of 2005.
8.2 My issue-wise finding is as under:-
Issue No. 1:Whether the plaintiff is entitled to specific performance? OPP Issue no. 3: Whether the agreement dated 27.03.87 was CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 31/86 not a concluded contract qua it no relief of Specific Performance can be sought? OPD 8.3 Both these issues being interconnected, interrelated are taken up together.
8.4 There is no dispute between the parties and it is the admitted position that the defendant had allotted the suit flat in the said project/building i.e. known as N.S. House at 14, Janpath Lane, New Delhi-110001 vide allotment letter dated 27.03.1987 to the plaintiff. The said allotment letter is on record as Ex.
PW1/1. The relevant portion of Ex. PW1/1 is reproduced hereunder:-
"The allotment is 'Provisional.' The plans are yet to be sanctioned by various authorities. If for any reason any changes are made by the sanctioning authority or by the Architects or by the Builders resulting in the reduction or increase, not exceeding 10% in the above mentioned area or its location no claim, monetary or otherwise will be raised or accepted except that the above mentioned per sq. ft rate will be applicable on the changed area. In case the flat is changed to a different floor, the rate of the floor as applicable will be charged. In case of absolute deletion of the Flat from the sanctioned plans, no claim, monetary or otherwise will be raised or accepted but the amount received will be refunded by the Builders in full without any interest.
3. If for any reason whatsoever whether within or outside the Builder's control, the whole or part of the project is abandoned, no claim will be preferred against the Builders except that money received will be refund in full without any interest"
8.5 Though the construction was to be completed within 2 and ½ years from the date of commencement but neither there was any time limit for the construction to begin nor any tentative date for completion of construction was provided in the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 32/86 allotment letter. In fact the construction was subject to necessary sanctions and permission from the concerned authorities. Clause 11 of Ex. PW1/1 in this regard is reproduced hereunder:-
"11. The building plans/scheme have got to be approved from various sanctioning authorities namely NDMC, Urban Art Commission and L&DO. The construction of the building will be completed in 2-1/2 years (subject to force majeures circumstances) from the date of start of construction after all the sanctions and permissions have been obtained.
For any delay beyond the control of the Builders no responsibility of any nature whatsoever shall be cast on the Builders".
8.6 Though the plaintiff was allotted the suit flat ad- measuring 485 sq. feet @ Rs. 1145/- per sq. feet, however, neither the area was fixed and same could be adjusted at the time of possession but even the rate could differ on account of escalation in the construction cost. Clause 7 and Clause 13 of the allotment letter Ex. PW1/1 in this regard read as under:-
"7. If the area differs at the time of possession, which may be less or more the cost would be adjusted on the basis of the aforesaid rate.
13. The rate per sq. ft. of the saleable space fixed above has been based on the cost of construction as on 01.03.1986 which will hold good uptil 31.12.1986. However, if the cost of construction increases after 31.12.1986 due to increase in rate of cement, steel, wood and other building material and the labour wages or due to any statutory obligations, the rate of saleable space will stand enhanced. The cost of construction being a part of the sale price, it is hereby specifically agreed that the final payable sale price will be determined after taking into consideration the increase in cost of construction. The increase in cost of construction shall be calculated on the basis of the proportionate increase in the building cost indices for Delhi as followed by the CPWD from time to time. The cost index will be as applicable to the plinth area rates for Delhi and as followed/laid down by CPWD from time to time. The decision of the Builders on the increased cost of construction shall be binding and final"
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 33/86 8.7 The payment schedule was also provided in the allotment letter and the same is as under:-
"Payment schedule
1. 20% at the time of booking
2. 10% within three months from the date of booking.
3. 10% on commencement of construction.
4. 10% on completion of Basement roof slab.
5. 10% on completion of First Floor roof slab.
6. 10% on completion of Third Floor roof slab.
7. 10% on completion of Fifth Floor roof slab.
8. 10% on completion of Seventh Floor roof slab.
9. 05% on completion of structure.
10. 05% on handing over the possession"
8.8 There is also no dispute that the plaintiff had made payment of Rs. 1,11,065/- on 27.03.1987 at the time of allotment and Rs. 55,532/- on 20.04.1987 vide Ex. PW1/2 and Ex. PW1/3. Thus he had paid 30% of the total amount which was to be paid by him within 3 months of the booking/allotment as per the payment schedule.
8.9 The construction of the building could not commence, for want of necessary sanctions/permissions from different departments/ authorities including L&DO, NDMC etc., for the next more than a decade. Nonetheless, plaintiff was kept update about the delay in commencement of construction vide letters dated 05.08.1987, 07.10.1987, 15.04.1989, 27.04.1992, 30.04.1996, 05.07.1999 i.e. Ex. PW1/4 to Ex. PW1/9 respectively. All this while there was no objection from the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 34/86 plaintiff's side as regards the delay in commencement of the construction.
8.10 The construction commenced somewhere in the year 2000 and the plaintiff was accordingly informed about the same vide letter dated 21.10.2000 i.e. Ex. PW1/10. He was also informed that the FAR was reduced from 250 to 150 and accordingly the alloted place was reduced from 485 sq. feet to 291 sq. feet. The relevant portion of Ex. PW1/10 in this regard read as under:-
"Subject:Commencement of construction of CLASSIC HOUSE at 14, Janpath Lane, New Delhi.
Dear Sir/Madam, We have immense pleasure to inform you that with our untiring continued efforts and with the grace of Almighty God, the plans for the captioned building have been approved by N.D.M.C. On this occasion we most heartily congratulate you and thank you for your co-operation.
You had offered to secure a provisional allotment of 500 sq.ft. in our proposed project at 14, Janpath Lane, New Delhi. The provisional allotment made to you is subject to other terms and conditions of Flat Buyer Agreement to be signed by you. We have to inform you that the provisional allotment was made to you on the basis of 250 FAR and was subject to increase or decrease in the area as per final sanction by the Government. You are aware that under the Delhi Master Plan 2001, the FAR of the Janpath Lane has been reduced to 150 FAR. The plans have been accordingly sanctioned by the N.D.M.C. The provisional allotment made to you for 485 sft. has been reduced to 291 sft. proportionately. You are requested to give your consent in writing for the area now sanctioned by New Delhi Municipal Council within seven days hereof. In case you do not reply, the payment made by you shall be sent to you"
8.11 In terms of the said communication, the plaintiff gave his confirmation vide letter dated 25.10.2000 i.e. Ex. PW1/11.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 35/86 Relevant portion of same is reproduced hereunder:-
"With reference to your letter dated 21.10.2000 we hereby confirm that the area of my flat is stated to have been reduced to 291 sq.ft. is acceptable to me. In case you are able to enhanced F.A.R. more than 1.50 than you will be pleased restored my flat area to that extent"
8.12 The relevant portion of the cross examination of the plaintiff/PW1 in this regard read as under:-
"It is correct that after sanction of the plan area measuring 291 sq. feet was alloted to me. (vol. It was situated on the fourth floor and there is a letter from the defendant which was issued in the year 2003 by the defendant showing that the covered area of 300 sq. feet had been alloted to me).
It is correct that I had written a letter to the defendant wherein I had stated that the reduced area of 291 sq. feet was acceptable to me. I do not know if the figure of 300 sq. feet mentioned in defendant's communication to me, was an account of a typographical error. I did not write any letter either to Mr. Narender Anand or M/s Rawal Apartment giving my consent for acceptance of the area measuring 300 sq. feet (Vol. the said letter of giving of consent regarding acceptance of area measuring 291 sq. feet, had been got typed by Mr. Narender anand and it was got signed from me). It is a matter of record that I had made payment to the defendant for an area measuring 300 sq. feet. I have seen certified copies of various documents available with me and the money mentioned in the two documents along Rs. 1,50,000/- which already stand deposited in the Hon'ble Court, show that payment relating to 300 sq. feet had been made by me. The said two documents have been collectively marked as Ex PW-1/X-1 (colly). .............I can neither deny nor affirm that my entitlement is only with respect to 291 sq. feet and not to 300 sq. feet. (Vol. it is a matter of record)"
8.13 Relevant portion of cross examination of DW1 is reproduced hereunder:-
"Q. 3 Is it correct that you issued a letter Ex. PW1/10 to plaintiff in which you have given the total area of the premises allotted to the plaintiff as 291 sq. ft.?
A. Yes, I had issued this letter Ex. PW1/10."
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 36/86 8.14 Vide letter dated 01.11.2000 i.e. Ex. PW1/12 plaintiff was called upon to make payment of 50% of the parking cost i.e. Rs. 1,75,000/- by 15.11.2000 and the balance by 15.12.2000. Plaintiff made a payment of Rs. 1,25,000/- only vide receipt Ex. PW1/13 and vide letter dated 06.03.2001 i.e. Ex. PW1/14 he was called upon to make the balance payment by 20.03.2001. Plaintiff did not make the payment by 20.03.2001 and the defendant wrote another letter to him i.e. Ex. PW1/15 whereby he was informed that the rate/cost of the suit flat has been increase tentatively to Rs. 3000/- per sq. feet and he was called upon to make payment of Rs. 1,97,602.50. Plaintiff made the payment of Rs. 1,00,000/- to the defendant vide receipt Ex. PW1/16.
8.15 Vide letter dated 11.06.2002 i.e. Ex. PW1/18 plaintiff was informed that a sum of Rs. 1,08,402.50 was due from him and he was called upon to make the payment within one week. This was followed by another letter dated 22.06.2002 i.e. Ex. PW1/19. Though there was a delay, but the plaintiff did make the payment of Rs. 50,000/- on 22.07.2002 and Rs. 58,402.50 on 02.08.2002 vide receipts Ex. PW1/20 and Ex. PW1/21. Similarly plaintiff was called upon to make payment of Rs. 1,25,000/- by 30.11.2002, vide letter Ex. PW1/22 dated 07.11.2002 and the plaintiff made the payment of the said amount vide receipts Ex. PW1/23 and Ex. PW1/24 dated 15.11.2002 and 29.11.2002. Vide letter dated 05.12.2002 i.e. Ex. PW1/27 plaintiff was called upon CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 37/86 to make the payment for a sum of Rs. 1,25,000/- and he made the payment of Rs. 50,000/- and Rs. 60,000/- vide receipts Ex. PW1/25 and Ex. PW1/26 both dated 16.12.2002.
8.16 Vide letter dated 31.12.2002 i.e. Ex. PW1/28 plaintiff was called upon to make the payment for a sum of Rs. 77,500/- by 07.01.2003 and he made the payment of Rs. 50,000/- vide receipt Ex. PW1/29 dated 15.01.2003.
8.17 Vide letter dated 31.01.2003 i.e. Ex. PW1/30 plaintiff was called upon to make the payment for a sum of Rs. 90,000/- by 07.02.2003. He did not make the payment and defendant issued another letter dated 15.02.2003 i.e. Ex. PW1/31 calling upon him to make the said payment and also payment of Rs. 62,500/- by 01.03.2003. Plaintiff made a payment of Rs. 70,000/- on 20.02.2003, Rs. 52,000/- on 20.03.2003 and Rs. 60,000/- on 10.04.2003 vide receipts Ex. PW1/32 to Ex. PW1/34.
8.18 Vide letter dated 28.04.2003 i.e. Ex. PW1/35 plaintiff was called upon to make the payment for a sum of Rs. 95,500/- which included the due amount of Rs. 62,500/- and balance of Rs. 33,000/- by 10.05.2003 and he made the payment of Rs. 60,000/- on 14.05.2003, Rs. 50,000/- on 20.06.2003, Rs. 50,000/- on 19.07.2003 and Rs. 50,000/- on 27.08.2003 vide receipts Ex. PW1/36 to Ex. PW1/39. Ex. PW1/40 is the acknowledgement of receipt of payment.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 38/86 8.19 Thus by 27/29.08.2003 plaintiff had made payment of Rs. 11,76,999.50/- as also stands confirmed vide confirmation of account letter dated 30.11.2005 written by defendant to him i.e. Ex. PW1/41. Though some of the payments were made belatedly, there was delay in payment by the plaintiff but there was never any serious default and therefore never any serious objection by the defendant. Similarly plaintiff never objected to the demand at the increased rate by the defendant and kept on making the payment as and when demanded.
8.20 Plaintiff made further payment of Rs. 12,00,000/- on 01.07.2014 vide Ex. PW1/42 and Rs. 4,73,000/- on 10.04.2014 vide receipts Ex. PW1/42 and Ex. PW1/43. It will be worthwhile to highlight the plaintiff has not placed on record any letter/demand/notice issued by the defendant pursuant to which the payment was made by him. Why he had made the payments as above has not been explained by the plaintiff. Nonetheless the defendant did receive the payment and did not object even once when the payment was so made by the plaintiff. Plaintiff on his own would not have made the payment to the defendant amounting to Rs. 16,73,000/- without any demand from the defendant that too after 11 years of the last payment and 27 years since the execution of PW1/1.
8.21 The relevant portion of cross examination of DW1 in CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 39/86 this regard is reproduced hereunder:-
"Q29 Is it correct that the Plaintiff had made the payment of Rs. 16,73,000/- in July 2014 to the defendant?
Ans. It is correct.
Q30 What was the basis of this payment?
Ans. I have not demanded the payment but the Plaintiff voluntarily made it. Again said the Plaintiff has an office in another building in Connaught Place constructed by me in which I have also my office. He has rented out the said premises to a tenant and comes once or twice a month and to receive rent and meets me also. He requested me to allot an office in the building in question and promise to make the payment installments from time to time as per availability of funds with him.
Q32 Is it correct that the last payment demanded by you was in the year 2003 and that thereafter no payment was demanded from the Plaintiff since the construction on the project had stopped? Ans. It is correct. Vol. Because the Hon'ble Division Bench of Delhi High Court had stayed the construction. Q. 51 Is it correct that after 2003 you did not demand any payment in writing from the Plaintiff on account of the office/unit in question?
Ans. It is correct.
Q.52 Why you did not make any demand in writing from the Plaintiff after 2003 in respect of office/unit in question? Ans. Because our engineer said that the building construction was still in progress and was not completed.
Q54 I put it to you that a sum of Rs. 16,73,000/- was demanded by you in 2014 from the Plaintiff by representing to the Plaintiff that the total cost of the office/unit in question will cost Rs. 10,000/- per sq. ft. and thus the total cost of the suit property would be now Rs. 30 lakhs only. What do you have to say?
Ans. In answer to my earlier question I had stated that no demand was made by the plaintiff after 2003 from the defendant so there is no question of demanding the further amount as stated in the question"
8.22 In fact though DW1 claimed that no payment was demanded from the plaintiff after 2003, because the construction was stayed by the Hon'ble High Court of Delhi, nonetheless the defendant accepted a sum of Rs. 16,73,000/- in 2014 from the plaintiff, as discussed above. Relevant portion of the cross CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 40/86 examination of DW1 in this regard reproduced hereunder:-
"Q54 I put it to you that a sum of Rs. 16,73,000/- was demanded by you in 2014 from the Plaintiff by representing to the Plaintiff that the total cost of the office/unit in question will cost Rs. 10,000/- per sq. ft. and thus the total cost of the suit property wold be now Rs. 30 lakhs only. What do you have to say? Ans. In answer to my earlier question I had stated that no demand was made by the plaintiff after 2003 from the defendant so there is no question of demanding the further amount as stated in the question.
Q55 I put it to you that you have kept the Plaintiff in dark and despite all the objections by the authorities to the completion of the project in question you demanded the amount of Rs. 16,73,000/- in 2014.
Ans. It is incorrect."
8.23 It has been the defendant's case that the area allotted to the plaintiff was further reduced by 22% and plaintiff is/was now entitled to 227 sq. feet of the super covered area instead of 291 sq. feet. However the defendant has failed to bring on record any document whereby it was communicated to the plaintiff that the area has been further reduced as above or the consent of the plaintiff thereupon. The relevant portion of the cross examination of PW1 is reproduced hereunder:-
"It is wrong to suggest that the defendant in the year 2014 had informed me that the defendant had been permitted only to finish the existing structure of the building in question which comprised of two basements, ground floor and four floors over and above ground floor and thereby reducing the covered area by 22%. It is wrong to suggest that I made payments to the defendant on 01.07.2014 and 10.07.2014 only after the communication referred to in my previous answer had been given by the defendant to me. (Vol. No such communication by the defendant was sent to me). Q6. I put it to you that in view of the permission granted in the year 2013 and in view of the reduction of the covered area by 22%, you would therefore be entitled to only 227 sq. feet (super covered area) in the building in question.
Ans. I have already made payment for 291 sq. feet. I have not been informed by the defendant about the said reduced area.........
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 41/86 Que. I put it to you that as per the sanction granted on 28.11.2013 for completing the building as it was, the covered area further reduced by 22% and as such your entitlement got reduced from 291 sq. ft. to 227 sq. ft.
Ans. I received a letter relating to reduced area of 291 sq. ft. I have not received any communication regrading further reduction of the area to 227 sq. ft. and therefore I have no information in this regard."
8.24 In fact though the defendant that the rate was increased, however, defendant has not placed on record any communication which it had sent to the plaintiff whereby the plaintiff was informed as regards the rate per sq. feet of the suit flat as per the reduced area. Nonetheless it does emerge from the cross examination of the plaintiff that he was informed that the rate would be Rs. 30,000/- per sq. feet. However at the same time plaintiff had also claimed that the defendant charged him @ Rs. 10,000/- per sq. feet, though he failed to show any document whereby the defendant had charged him at the said rate. The relevant portion of the cross examination of the plaintiff/PW1 in this regard is reproduced hereunder:-
"Q2. You had made one payment on 27.08.2003 and thereafter, made the next payment on 01.07.2014. Can you give any reason as to why you did not make any payment during the intervening period?
Ans. Neither they asked for the payment nor I made the same. On 01.7.2014 when I had paid a sum of Rs. 12,00,000/-, I was told that the rate per sq. foot was Rs. 30,000/-. Again said I do not remember the said rate.
Q.3. I put it to you that you do not know the rate since till date neither the occupancy certificate for the said building has been given nor the final rate per sq. foot has been computed at which the flat buyers are required to pay towards the purchase of their respective flats.
Ans. It is incorrect. (Vol. Why did the defendants charge at the rate of Rs. 10,000/- per sq. foot and why did it take money from me).
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 42/86 There is no document to show that the defendant had charged @ of Rs. 10,000/- per sq. foot towards the cost of the flat."
8.25 Though the defendant contended that the tentative cost of the suit flat as on 15.01.2016 is/was Rs. 43,65,000/-, however, defendant has failed to explain as to on what basis the defendant had arrived at the said calculation. Defendant could not prove as to what was the final area to be alloted and at what rate. As already discussed above defendant could not prove that the reduction of area further to 227 sq. feet as against 291 sq. feet was intimated to the plaintiff. Relevant portion of cross examination of DW1 in this regard is reproduced hereunder:-
"Q47 In para 5 of your affidavit in evidence you stated the tentative cost of the flat as on 15.1.2016 to be Rs. 43,65,000/-. What is the basis of this valuation?
Ans. In our agreement it was specified that upto 31.12.1986 the indicted amount shall be the cost of the flat and after that the valuation shall be on the basis of CPWD rate. So this valuation is indicated by me in para 5 of my affidavit in evidence tentatively on the basis of CPWD rate.
Q48 Is it correct that you have not placed on record any CPWD rates to justify the aforesaid valuation?
Ans. No, because the building has not yet been completed. Q49 I put it to that you have not deliberately placed on record CPWD rates as the same would show that tentative valuation given by you in para 5 of your affidavit in evidence is incorrect. Ans. It is incorrect."
8.26 As no possession was handed over to the plaintiff, plaintiff issued notice dated 19.12.2014 i.e. Ex. PW1/44 calling upon the defendant to intimate to him the time and date when the possession of the suit flat can be taken by the plaintiff. This was followed by another notice dated 13.08.2015 i.e. Ex. PW1/45 asking the defendant to hand over the possession to him within CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 43/86 15 days of the receipt of the notice. Thereafter the present suit was filed on 11.09.2015.
8.27 The project as on date is not completed and in fact cannot be completed. Only a structure exists which was completed in 2003 as was admitted by defendant/DW1 but that structure is an incomplete structure and the possession of the suit flat cannot be handover to the plaintiff as on account of lack of basic facilities, amenities like electric supply, water supply, lift, power backup etc. most importantly the NOC, completion certificate, the plaintiff will not be able to obtain the possession, get the conveyance deed executed in his favour or enjoy the property. Furthermore and most importantly the building has been sealed and the defendant has been restrained from parting with the possession of the same.
8.28 As already discussed above the construction started somewhere in 2000 as the plaintiff was informed vide Ex. PW1/10. However according to DW1 the construction commenced in 2002 but the same was stayed by the Hon'ble High Court of Delhi. The construction was repeatedly stopped for one reason or the another which were absolutely beyond the control of the defendant as though the construction was started after seeking permission from NDMC, who had sanctioned the building plan, but subsequently there were certain objections by the ASI and NDMC asked the defendant to stop the construction.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 44/86 The relevant portion of cross examination of DW1 in this regard is reproduced hereunder:-
"Q32 Is it correct that the last payment demanded by you was in the year 2003 and that thereafter no payment was demanded from the Plaintiff since the construction on the project had stopped? Ans. It is correct. Vol. Because the Hon'ble Division Bench of Delhi High Court had stayed the construction. Q38 When the construction of building in question started? Ans. 2002.
Q39 Is it correct that you had not sought the permission of ASI before started the construction of the building in question in the year 2002?
Ans. Yes. Vol. The defendant was never asked by NDMC to obtain permission from ASI. Defendant started construction in 2002 after sanction of the building plan by NDMC and the NDMC before sanctioning the building plan asked the defendant to obtain No Objection/Clearance from different departments but not from ASI. After the said clearance was obtained the plans were sanctioned by NDMC and we started construction. Thereafter the persons from Archaeological Survey of India objected that their clearance is also needed and ASI wrote a letter to NDMC for stopping the construction work of the building in question. NDMC asked the defendant to stop the construction work. Then the defendant approached the Hon'ble High Court and obtained stay order against stoppage of work and the construction work continued. Q46 Do you know what is the consideration stated by you in your evidence affidavit for office allotted to the Plaintiff as on date? Ans. No consideration is stated in my affidavit. Vol. Building is lying sealed and completion certificate is not yet obtained because the ASI had withdrawn the permission due to which the building is sealed and we could not get the completion certificate and Hon'ble High Court also stayed the defendant from parting with possession of the building"
8.29 Defendant did not even once inform the plaintiff about the fact that the construction has been stopped on account of objection raised by ASI, NDMC etc. Defendant could not prove any communication to the plaintiff in this regard. The claim that the plaintiff was orally informed does not inspire confidence. When entire communication between the parties had CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 45/86 been in writing all this while why this crucial fact would be informed to the plaintiff orally has not been satisfactorily explained by the defendant and appears to be an afterthought and nothing else. The relevant portion of cross examination of DW1 in this regard read as under:-
"Q39. Has the defendant ever informed the Plaintiff about the facts stated in your above vol. Statement?
Ans. Yes. Vol. The Plaintiff used to come to me and we had very good relations and he is a nice person.
Q40 Have you given these facts in writing to the Plaintiff? Ans. It is the job of staff of the defendant to inform the parties. Even if anything writing is given about it to the plaintiff, I do not remember.
Q41 What is your position in the defendant company? Ans I am Managing Director of the defendant company. Q42 Is it correct that the staff has to work under the instructions of Managing Director?
Ans. Yes. It is correct.
Q43 Is it correct that the defendant has not placed on record any such communication by its staff to the Plaintiff? Ans. Ours company is not a big company and instructions are issue verbally.
Q44 I put it to you that no such facts were communicated to the Plaintiff by the defendant either orally or in writing? Ans. It is incorrect."
8.30 The relevant portion of cross examination of DW1 highlighting the status of the project/building where the suit flat is situated is reproduced hereunder:-
"Q57 I put it to you that since the price of the particular unit had increased manifold since the issuance of the original allotment letter you do not want to honour the same and want the Plaintiff to go out of the Project. What do you have to say?
Ans. As the no objection given by National Monuments Authority had been withdrawn, the NDMC had withdrawn the sanctioning of the building plan and sealing and demolition order was passed so where is the question of increase in the value of the office/unit in question or honouring the provisional allotment letter".
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 46/86 8.31 The National Monuments Authority (NMA) had vide its letter dated 04.12.2012 i.e. Ex. DW2/1 (also Ex. DW1/4), as was proved by DW2 Sh. Sudesh Kumar Sharma informed the defendant that the request for No Objection Certificate has been put on hold till the time representation made by Sh. Darshan Singh is resolved. Vide letter dated 28.11.2013 i.e. Ex. DW2/2 (also Ex DW1/5) the Under Secretary, Government of India, NMA had written to the Additional Director, ASI recommending grant of permission for completion of flooring, plaster inside and outside, electric, sanitary fittings and lifts in the project/building and the said permission was communicated to the defendant vide letter Ex. DW3/1 (also Ex. DW1/6) dated 16.12.2013. A fresh representation was, however, given by Sh. Darshan Singh to ASI informing ASI that he has revoked/canceled the GPA dated 25.07.1985 in favour of Sh. Narender Anand vide deed dated 12.01.2015 and vide letter dated 06.04.2015 i.e. Ex. DW3/2 (also Ex. DW1/8), ASI revoked the above permission. Nonetheless the defendant was yet again allowed to carry on the repair/renovation in terms of permission Ex DW3/1 vide Ex. DW3/3 (also Ex. DW1/11) dated 01.07.2015. However, in view of fresh representation of Sh. Darshan Singh, the NMA had written another letter to the defendant i.e. Ex. DW2/3 (also Ex. DW1/12) dated 29.01.2016 giving an opportunity to the defendant to put its stand as NMA was of the opinion that the application for NOC should not have been entertained in view of the provisions of ASASR Act 1958 and vide order dated CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 47/86 27.06.2016 Ex. DW2/4 (colly) (also Ex. DW1/3) the NOC granted vide Ex. DW2/2 dated 28.11.2013 was recalled/cancelled.
8.32 In fact after the filing of the suit show cause notice was issued by Executive Engineer NDMC i.e. Ex. DW1/14 on 07.09.2017 and the sealing order was passed by the Director, NDMC on 09.09.2017 i.e. Ex. DW1/5. The defendant approached the Hon'ble High Court of Delhi in WP (C) No. 7018/2016 i.e. Ex. DW1/16 and the Hon'ble High Court of Delhi passed orders dated 11.09.2017 i.e. Ex. DW1/17 vide which NDMC was restrained from taking any coercive action against the property/project though at the same time it was observed that the property has been sealed by NDMC.
8.33 Things as they stand today, NDMC has revoked the sanctioned plan in the year 2017 as was proved by DW4 and therefore the building/project cannot be completed and no possession can be handed over to the plaintiff. The agreement has thus become frustrated, same cannot be performed. However, neither the plaintiff nor the defendant can be blamed for it. When the agreement was entered into, the sanction plans were not obtained and the agreement makes it specifically clear that the provisional allotment is subject to the sanctioned plan and in case of deletion of the flat from the sanction plan, which is now the case, the allottee shall be entitled only to refund of the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 48/86 amount that too without interest and that no other claim could be raised against the defendant.
8.34 No doubt as per the allotment letter Ex. PW1/1 the allotment to the plaintiff was a provisional allotment, however, it does not imply that it was not an agreement which did not entitle the plaintiff to seek a specific performance of the same. Though he was allotted an area of 485 sq. feet, however, same could be reduced in terms of Ex. PW1/1. Though there was a limit and the area could not be reduced more than 10%, however, the plaintiff agreed to the reduction vide his consent Ex. PW1/11. Similarly though the initial rate was Rs. 1145/- per sq. feet, however, the said rate was not final rate and the same could be enhanced in terms of clause 13. The relevant portion of the cross examination of the plaintiff/PW1 is reproduced hereunder:-
"Que. I put it to you that the cost of the space falling to your share could only be worked out once occupancy certificate and completion certification are obtain.
Ans. I do not know.
Que. I put it to you that till the final cost of all the units of building is worked out, you can not unilaterally claim to have paid 95% of the sale consideration relating to your proposed unit. Ans. Money from me has already been taken and it is matter of record.
Que. I put it to you that the final of cost of the suit property has neither been worked nor has it ever been informed to you. Ans. I have already paid Rs. 30 Lakhs towards full payment of flat on 4th floor.
Que. I put it to you that approximate cost for your unit is coming to Rs. 43,65,000/- and you have paid only Rs. 28,50,000/- so far. Ans. Apart from that money of Rs. 28,50,000/-, a sum of Rs. 1.50 lakhs is lying deposited in the court."
8.35 What is material for the purpose of adjudication of CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 49/86 the present dispute is that suit flat was allotted to the plaintiff and he made payment as per demand raised by the defendant. Though there were slight delays in payment but these delays were not objected to by the defendant nor these delays had the effect of frustrating the contract. The delays did not prejudice the defendant in any manner and I am of the considered opinion that the plaintiff was always ready and willing to perform his part of the contractual obligation as per Ex. PW1/1. Defendant could not bring on record anything to challenge, contradict the plaintiff's case of readiness and willingness to perform his part of the obligation as per Ex. PW1/1.
8.36 Though neither the final area to be allotted was finally determined nor the final rate was and unfortunately that stage could not come for the reasons beyond the control of the parties, however, that does not mean that Ex. PW1/1 was not a contract, agreement between the parties of which specific performance cannot be sought by the plaintiff, as was vehemently argued by Ld. Counsel for the defendant who argued that Ex. PW1/1 is only a provisional allotment and not a concluded contract and that present suit for specific performance is not maintainable on the basis of Ex. PW1/1.
8.37 Vide Ex. PW1/1 plaintiff was allotted a commercial space/suit flat in the said property i.e. NS House, 14 Janpath Lane, New Delhi-110001. The area was agreed/determined, the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 50/86 floor on which the suit flat was situated was agreed, the flat number was given and the rate at which the suit flat was allotted was also agreed by the parties who had duly signed the agreement. The plaintiff i.e. allottee was referred as the "Flat Buyer" and was entitled to get the conveyance deed executed in his favour as per clause 18 of Ex. PW1/1. The relevant portion of Ex. PW1/1 reads as under:-
"In response to your application we (hereinafter called the Builders) have allotted you flat no. 12 (which will hereinafter be referred as "FLAT" and the allottee as "Flat Buyer" of an approximate super covered area of 485 sq. ft. on 4 th floor denoted by No. 412 in the proposed building on the said plot no. 14, Janpath Lane, New Delhi, at the rate of Rs. 1,145/- (Rs. One Thousand One Hundred Forty Five Only) per sq. ft. of super covered area."
Clause 18 "18. THE conveyance of each flat will be executed directly in favour of the flat buyer or a corporate body/Co-operative society as directed by the Authority concerned and the conveyance will be executed only after all the Buyers of the flats have paid their respective share of the flat in full and after the completion of the entire building."
8.38 The allotment was subject to certain terms & conditions and most importantly subject to acceptance by the allottee/plaintiff and the plaintiff had duly accepted the terms & conditions and only thereupon signed Ex. PW1/1. Ex. PW1/1 also made the plaintiff eligible to sign the Flat Buyer Agreement with the defendant, which agreement was to be signed by the parties before the possession. Clause 8 of Ex. PW1/1 is reproduced hereunder in this regard:-
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 51/86 "THE allotment is subject to your accepting the terms of the Builders standard, FLAT BUYER AGREEMENT which you agree to sign before possession is given to you"
8.39 Merely because Flat Buyer Agreement was to be signed by the parties just before the possession that does not mean that Ex. PW1/1 was not a concluded contract between the parties. Nothing remained to be decided between the parties except for the final rate, final area (after reduction if any as per Ex. PW1/1) if all went well with the construction. Defendant had agreed to sell the suit flat to the plaintiff which the plaintiff had agreed to buy and accordingly it was allotted to him vide Ex. PW1/1. Had NDMC, ASI etc. not come into picture, not raised objection as regards the construction/project, the only thing that would have remained to be determined between the parties would have been the final rate, which escalation was also agreed by the parties. The area was subject to reduction and was reduced only on account of initial objection raised by the NDMC. Had there been no such objection plaintiff would have been allotted the area as specified in Ex. PW1/1 itself.
8.40 It is trite that a mere heading or a title of a document cannot deprive the document of its real nature and that it is the substance which is to be seen and not the form Reliance may be placed upon the law laid down in C.I.T.Punjab, Haryana, J & K, H.P. and Union Territory of Chandigarh Vs. M/s Panipat Woollen and General Mills Co.Ltd., Chandigarh, AIR 1976 SC 640 and M/s Nanak Builders and Investors Pvt. Ltd. Vs. Vinod CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 52/86 Kumar Alag, AIR 1991 DELHI 315.
8.41 In Nanak Builders (supra) it has been held as under:-
(7) The original of the document dated 16th October, 1985 is Ex P-
l on the record. The same is titled as 'RECHIPT'. A perusal of the said document- will show that all the essential and basic ingredients required for an agreement to sell are contained therein. The same is signed by both the parties and is also witnessed by an attesting witness. Besides acknowledging the receipt of rupees one lac in cash, the document contains the following terms :- "(A)The sum of Rs. I lac has been received by the vendor as token money for sale of my plot No. E-554, Greater Kailash Part-II, New Delhi, measuring 275 Sq. Yds". (.b) Total sale price has been fixed for Rs. 11 lacs. (c) "The amount of Rs. 3,40,000 (Rupees three lacs forty thousand only) shall be paid within a period of 30 days from today and I shall hand over the physical vacant possession of the plot to the purchaser on payment of the said amount of Rs. 3.40,000." (d) "The balance amount of Rs. 6,60,000 (Rupees six lacs sixty thousand only) shall be paid within 45 days from the date I get income-tax clearance and accordingly inform the purchaser in writing by letter under registered post). (e) "I shall execute the document for sale of the property as per advice of the purchaser"
(f) "In case the buyer fails to pay the balance amount of Rs.
3,40,000 within a period of 30 days from today, the deal stands cancelled." (g) The deal has been brought about through M/s. Thapar Associates, Real Estate Consultants. A-78, Malviya Nagar, New Delhi. M/s. Thapar Associates shall be paid their professional charges equivalent to 2 per cent of the total sale price separately and respectively by both the parties.-; (h) The purchaser will not construct any building on the said plot till full payment of Topes eleven lacs is made.
(8) Existence of a contract is sine qua non or the grant of relief of specific performance. The entire provisions of Specific Relief Act contained in Chapter Ii refer to contracts which can be specifically enforced or otherwise. As per the provisions of Section 2(h) of the Contract Act, "an agreement enforceable by law is a contract". Even in oral agreement can be a valid and enforcement contract "Therefore, in the strict sense, it is not essential that a contract must be in writing. Where the parties contemplate a writing to complete the contract or where the contract is required by law or otherwise to be in writing, it will be necessary that the contract is reduced to writing. Further, where all the specific terms have been agreed upon and reduced into writing, the mere fact that it CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 53/86 is stated that a formal contract will be executed, does not render the writing, in the first instance, to be of no avail. These are certain general principles regarding formation of contracts. (9) Now coming to the "receipt", Ex. P.1, as already noticed above the essential/substantial terms have been agreed upon and reduced into writing therein. It does not contain any mention that a formal Agreement Safe will be executed. Therefore, it is not possible to hold that the same does not amount to a contrail. Looting at it from a different angle one may ask as to when the stage for payment of earnest money or token money arises ? The answer is that the occasion for payment of earnest money arises only in pursuance of an agreement, i.e., when the essential tern's-and conditions are finalised The fact that the vendee parts with a substantial amount in favor of the vendor shows that the parties have reached a consensus on the various terms of the arrangement between them meaning there- by that a contract has been arrived at. It is also worth noting that The defendant never brought out or averred that a formal contract had to be executed between the parties after the receipt dated 16th October, 1985. In view of this conduct of the defendant. the defendant is also estopped from alleging that there is no contract between the parties and the document Ex. P-l is a mere receipt not amounting to a contract.
(10) Mere heading or title of a document cannot deprive the document of its real nature. Law is well settled in such matters that it is the substance which has to be seen and not the form. It may be sufficient to refer to Md. Akbar Khan Vs. Attar Singh Air 1936 Privy Council page 171(1) and Commissioner of Income Tax . Punjab Vs. Panipat W. & G. Mills Air 1976 Sc page 640(2) in this behalf. As already noticed above, the document Ex. P-l though titled as a receipt contain all the essential ingredients of a contract and therefore, I have no hesitation in holding that this is a contract and the plaintiff can seek specific performance thereof. The counsel for defendant has also submitted that Ex. P-l does not bear the plaintiff's stamp, though it is conceded that Shri Nanak Ram, who has signed the plaint and the power of attorney in the present suit, has signed this document on behalf of the plaintiff. The mere absence of the rubber stamp of the plaintiff company does not render the document as a mere receipt. I have noticed this argument of the counsel for the defendant, though I need not have done so in view of absence of any plea in the written Statement in this behalf. The further argument of the counsel for defendant that there is no acceptance of the offer of the defendant /vendor by the plaintiff is also factually incorrect because Ex. P-l has been signed on behalf of the plaintiff with the following endorsement :-- "I confirm the above."
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 54/86 (11) In view of the above discussion, I hold that Ex. P-l is a contract on the basis whereof the plaintiff can seek specific performance as per the provisions of Chapter Ii of the Specific Relief Act."
8.42 Section 10 of the Contract Act 1872 provides that all agreements are contract. The said section reads as under:-
"10. What agreements are contracts.- All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void."
8.43 According to the Contract Act, 1872 section 2 (h) an agreement enforceable by law is a contract. What is required is that the same should be entered into with the free consent of the parties, who agreed to the terms, to do or abstain from doing something for a lawful consideration and one which is enforceable by law, is not void.
8.44 Ex. PW1/1 was signed by the parties with their free consent. They were competent to contract. The lawful consideration was agreed and paid too, as and when demanded. Parties had agreed to bind themselves as per the terms & conditions of Ex. PW1/1 and to fulfill, carry forward their agreed, contractual obligations. Defendant has not claimed that the agreement was void. What are void agreement is contained in section 24 to 30 of the Contract Act. Ex. PW1/1 does not fall in any of the categories of void agreements.
8.45 In Nandkishore Lalbhai Mehta (supra) it has been CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 55/86 held as under:-
"In support of his contention, learned senior counsel relied upon a decision of this Court in Chandnee Widya Vati Maden vs. Dr. C.L. Katial and Others (1964) 2 SCR 495 wherein it was held that where all the terms are crystallized between the parties, the execution of a formal agreement is not a pre-requisite for the grant of specific relief.
30).........The agreement for sale is a contingent agreement depending upon obtaining permission under Section 22 and Section 27 of the ULC Act, property being converted from industrial zone to residential use and settlement with the labour and the labour agreeing to the sale contemplated therein. If any of the conditions are not fulfilled, the respondents were not bound to complete the sale and the appellant was only entitled for return of the money with interest @ 18% per annum from the date of refusal of any of the permission or consent or agreement mentioned above.
As in the present case we find that the Mill Mazdoor Sabha has not given its consent to the proposed sale, agreement for sale could not have been performed and had ceased. The appellant is only entitled to refund of the amount along with interest @ 18% per annum stipulated therein."
8.46 In Chandnee Widya Vati Maden vs. Dr. C.L. Katial and ors (1964) 2 SCR 495 the plaintiff had entered into a contract of sale in respect of a house property belonging to the defendant. The deed of agreement provided that the vendor shall obtain the permission of the Chief Commissioner to the transaction of sale within two months of the agreement and if the said permission was not forthcoming, within that time, it was open to the purchasers to extend the date or to treat the agreement as cancelled. As the necessary permission was not forthcoming within the Stipulated time, the purchasers extended the time by another month. The appellant withdrew her application for the necessary permission. The defendant having CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 56/86 failed to perform her part of the contract, the plaintiffs brought a suit for specific performance of contract for sale or in the alternative for damages. The trial court, although it found that the plaintiffs had been throughout ready and willing, indeed anxious, to perform their part of the contract and that it was the defendant who had backed out of it, refused the main relief of specific performance of the contract on the ground that the agreement was inchoate, as the previous sanction of the Chief Commissioner to the proposed transfer had not been obtained. The High Court came to the conclusion that there was a completed contract between the parties and that the condition in the agreement that the vendor would obtain the sanction of the Chief Commissioner to the transaction of sale did not render the contract incomplete and the trial court was in error in holding that the agreement was inchoate. The Hon'ble Apex Court held as under: "The main ground of attack on his appeal is that the contract is not enforceable being of a contingent nature and the contingency not having been fulfilled. In our opinion, there is no substance in this contention. So far as the parties to the contract are concerned, they had agreed to bind themselves by the terms of the document executed between them. Under that document it was for the defendant- vendor to make the necessary application for the permission to the Chief Commissioner. She had as a matter of fact made such an application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part Of the contract, and that it was the defendant who wilfully refused to perform her part of the contract, and that the time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant appellant to make the necessary CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 57/86 application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction. In this view of the matter, the High Court was entirely correct in decreeing the suit for specific performance of the contract."
8.47 The following observations of the Hon'ble High Court of Delhi in Sanjay Yadav vs North Delhi Municipal dated 29.04.2022 passed in W.P.(C) 6454/2022, CM APPL. 19522/2022 and CM APPL. 19523/2022 may be noted:-
"23. The petitioner's legal remedy against the respondent's alleged illegal action of not being able to handover the tendered site to the petitioner despite accepting deposits from him, is by way of seeking specific performance of the LOI or Provisional Allotment letter dated 11.11.2021, if at all the same is still made out in law on the facts of the case, and not by way of a writ petition."
8.48 Therefore issue no. 3 is decided against the defendant and in favour of the plaintiff.
8.49 As discussed above, specific performance of the contract/Ex. PW1/1 in the given facts and circumstances of the case is not possible. Performance under Ex. PW1/1 has been rendered frustrated. Reason is, as discussed above, that the NDMC has revoked the sanctioned plan and the construction cannot be completed nor possession can be handed over to the plaintiff. In these circumstances neither possession can be handed over to the plaintiff nor any Flat Buyer Agreement or conveyance deed can be executed in favour of the plaintiff. There is no dispute between the parties as regards the above factual position. However, merely because the specific CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 58/86 performance cannot be enforced, that by itself cannot render the plaintiff remedyless.
8.50 As discussed above, plaintiff had been and in fact is willing to perform its part of the obligation under Ex. PW1/1. The plaintiff has pleaded and proved that he had performed and has always been ready and willing to perform the essential terms of the contract which are to be performed by him. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance which is there in the present case. Right from the date of Ex. PW1/1 till date he is ready and has always been willing to perform his part of the contract/obligation. In fact even the defendant had done everything which defendant could do to conclude the contract, fulfill the obligation under Ex. PW1/1. But for the circumstances beyond their control the performance has been frustrated. At the same time it will be worthwhile to point out that till the written statement was filed by the defendant, the plaintiff was not aware or informed by the defendant regarding the developments i.e. revocation of GPA by Sh. Darshan Singh and cancellation/revocation of the sanctioned plan by NDMC. Defendant has miserably failed to prove that the plaintiff was duly informed in this regard or otherwise had due knowledge of these developments. It was only after the written statement was filed that the plaintiff became aware of the same.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 59/86 8.51 Undoubtedly plaintiff has not claimed any alternate relief in addition to the decree of specific performance and possession, but simply because the plaintiff has failed to claim such relief that by itself does not mean that the plaintiff cannot be granted those reliefs. I find no merits in the arguments of Ld. Counsel for the defendant that when the plaintiff has not claimed any relief in the nature of damages and/or compensation, in the present case then the court cannot grant him any alternate relief. The case relied upon by Ld. Counsel for the defendant i.e. Universal Petro-Chemicals Ltd (supra) does not come to the rescue of the defendant. In the said judgment it has been held as under:-
"21. The scope of Section 21 (4) and (5) was examined by this Court in Shamsu Suhara Beevi v. G. Alex and Another (supra). This Court referred to the Law Commission of India's recommendation that in no case the compensation should be decreed, unless it is claimed by a proper pleading. However, the Law Commission was of the opinion that it should be open to the plaintiff to seek an amendment to the plaint, at any stage of the proceedings in order to introduce a prayer for compensation, whether in lieu or in addition to specific performance. In the said case no claim for compensation for breach of agreement of sale was claimed either in addition to or in substitution of the performance of the agreement. Admittedly, there was no amendment to the plaint asking for compensation either in addition or in substitution of the performance of an agreement of sale. In such background, this Court held as follows:
"In our view, the High Court has clearly erred in granting the compensation under Section 21 in addition to the relief of specific performance in the absence of prayer made to that effect either in the plaint or by amending the same at any later stage of the proceedings to include the relief of compensation in addition to the relief of specific performance. Grant of such a relief is in the teeth of express provisions of the statute to the contrary is not permissible. On equitable consideration court cannot ignore or overlook the provisions of the statute. Equity must yield to law."....."
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 60/86 8.52 To begin with the said case law is in respect of damages/compensation. Section 22 of the Specific Relief Act provides as under:-
"22. Power to grant relief for possession, partition, refund of earnest money, etc.--
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief 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 relief.
(3) The power of the court to grant relief under clause (b) of sub-
section (1) shall be without prejudice to its powers to award compensation under section 21."
8.53 The prayer clause of the plaint reads as under:-
"That, therefore, in view of the submissions made herein above, it is most respectfully prayed that this Hon'ble Court be pleased to pass:
(i) a decree of specific performance of the Flat Buyer Agreement dated 27.03.1987 in favour of the Plaintiff and against the Defendant directing the Defendant to execute the registered Conveyance Deed in favour of the Plaintiff in respect of the Suit property bearing No. Commercial Space/Flat no. 12 denoted by No. 412, on the 4th floor having super area of 300 sq. ft., or any other alternative suitable accommodation in the said project, that is, "N.S. House/Classic House" at 14, Janpath Lane, New Delhi;
(ii) a decree of possession in favour of the Plaintiff and against the Defendant directing the Defendant to handover the physical vacant possession of the aforementioned Suit property to the Plaintiff;
(iii) any other or further order(s) that this Hon'ble Court may deem CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 61/86 fit in the facts & circumstances of the case.
8.54 The Ld. Predecessor of this court had framed the following issues vide proceedings dated 22.01.2016:-
1. Whether the plaintiff is entitled to specific performance?
OPP
2. Relief.
8.55 In Smt. Dhiraj Bala Karia vs Jethia Estate Pvt. Ltd.AIR 1983 Cal 166 it has been held as under:-
"8. Mr. Bhabra, learned advocate for M/s. Jethi Estate Pvt. Ltd., the defendant-petitioner in Civil Order No. 2842 of 1981, has contended that the Court trying a suit for Specific Performance can grant also reliefs for possession, partition etc., only in the manner laid down in Section 22(1)(a) of the Specific Relief Act, 1963. The plaintiff in a suit for Specific Performance under Sub-section (1) of Section 22 of the Specific Relief Act, 1963 has an option to ask for the reliefs mentioned in Section 22(1)(a) in addition to Specific Performance of the contract to sell or to grant lease of an immovable property. But unless the said reliefs by way of delivery of possession, partition etc. have been specifically claimed, the Court cannot grant the said reliefs while decreeing a suit for Specific Performance (vide Section 22(2) of the Specific Relief Act, 1963). Mr. Bhabra has submitted that the said relief by way of delivery of possession is no longer covered by prayer for specific performance of a contract to sell or to grant lease of an immovable property. But the said relief is an additional one and when the plaintiff prays for delivery of possession in a suit for specific performance, he is bound to pay separate court-fees under Section 7 (v) of the West Bengal Court-fees Act, 1970 upon the said additional relief. Therefore, court-fees upon the said relief ought to be com-puted according to the market value of the subject-matter of the dispute. According to Mr. Bhabra, the court-fee payable upon the said prayer for putting the plaintiff in possession of the suit property would be much higher than the court-fee payable upon the other prayer for specific performance contained in the plaint of the suit brought by Sm. Dhiraj Bala Karia. Therefore, Sub-section (2) of Section 21 of the West Bengal Court-fees Act, 1970 would be applicable and the court-fees ought to be paid according to the value of the said relief in respect of which the largest fee is payable. Mr. Bhabra lastly has submitted that the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 62/86 value of the subject matter of dispute would exceed the pecuniary jurisdiction of the City Civil Court at Calcutta.
9. Mr. Chatterjee, learned advocate for the plaintiff (who is the petitioner in Civil Order No. 2567 of 1981 and the opposite party in Civil Order No. 2842 of 1981), on the other hand, has submitted that the instant suit for Specific Performance of the Agreement for lease with prayer for possession would still be governed by Clause
(xii) (c) of Section 7 of the West Bengal Court-fees Act, 1970 and such a suit cannot be classified as one for possession and separate court-fees cannot be demanded in respect of the prayer for putting the plaintiff in possession of the suit property. According to Mr. Chatterjee, the said relief for possession is not an independent one, and, therefore, Sub-section (2) of Section 21 of the West Bengal Court-fees Act, 1970 does not apply in the instant case.
10. The Specific Relief Act, 1877 did not contain any express provision pari materia with Section 22 of the Specific Relief Act, 1963. In order to answer this Reference we have to consider the changes, if any, in the substantive and the procedural laws relating to grant of relief of delivery of possession by reason of enactment of the Specific Relief Act, 1963 and the West Bengal Court-fees Act, 1970.
11. While it is true that the intention of the legislature is to be gathered primarily from the words used, in interpreting a statute, the Court may consider : (i) what was the law before making of the Act, (ii) what was the mischief or defect for which the common law did not provide, (in) what remedy the Parliament has resolved and appointed to cure the diseases, and (iv) the true reason of the remedy (vide Bengal Immunity Co. Ltd. v. State of Bihar ).
12. In support of their respective submissions, the learned advocate for both parties placed before us the report of the Sixth Law Commission relating to their recommendations for enacting Section 22 of the Specific Relief Act, 1963. The Sixth Law Commission had observed that before the enactment of the Specific Relief Act, 1963 on the question of granting relief by way of delivery of possession in favour of a successful plaintiff in a suit for specific performance, there were broadly four lines of reported cases.
13. Mr. Bhabra himself did not seriously dispute that prior to the repeal of the Specific Relief Act, 1877, although there was some divergence of judicial views, there was preponderance of judicial authority that obligation to deliver possession was an integral part of a contract to sell or lease an immovable property. Such obligation of the vendor to put the vendee in possession flowed from the agreement to sell or to grant lease. Even in the absence of CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 63/86 any express provision in the agreement, the vendor had such obligation under Section 55(i)(f) and under Section 108(b) of the Transfer of Property Act, 1882.
14. The Sixth Law Commission, inter alia, had observed "It would be simpler to make a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the section itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession". The Law Commission had concluded "In the circumstances, we consider it advisable to provide that the plaintiff in a suit for specific performance may also claim the ancillary reliefs of partition or possession either initially or by amendment at a later stage without prejudice to the right of compensation under Section 19."
15. It has become easier for us to answer this Reference in view of the pronouncements made by the Supreme Court in their recent decision in the case of Babu Lal v. Hazari Lal Kishori Lal . R. B. Misra, J. who had delivered the judgment of the Court in Babu Lal's case (supra), had referred to the state of law as it existed prior to the enactment of Section 22 of the Specific Relief Act, 1963, and had mentioned the extreme view taken in Hakim Enayat Ullah v. Khalil Ullah Khan, AIR 1938 All 432, that the decree- holder does not enquire title or right to recover possession unless a sale deed is executed in execution of the decree for specific performance. Thereafter the learned Judge in Babu Lal's case (supra), had with approval quoted a long passage from the Division Bench decision of this Court in Kartick Chandra Pal v. Dibakar Bhattacharjee, , which, had reviewed a number of reported cases including Madan Mohan Singh v. Gajaprosad Singh, (1911) 14 Cal LJ 159. Ramaprasad Mookerjee and J. P. Mitter, JJ. in Kartick Chandra Pal's case (supra), in the passage quoted had, inter alia, held "When a contract is to be specifically enforced, it means simply this that when the parties do not agree to perform the contract mutually the intervention of the Court will do ail such things as the parties would have been bound to do had this been done without the intervention of the Court. A sale of a property after payment of the consideration and upon due execution of the deed of sale presupposes and requires the vendor to put the purchaser in possession of the property.....The Court when allowing the prayer for specific performance vests the executing Court with all the powers which are required to give full effect to the decree for specific performance". R. B. Misra, J. in the judgment in Babu Lal's case (supra) had referred to several other reported decisions which had also taken similar views with regard CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 64/86 to the power of the Court to deliver possession to the plaintiff whose suit for specific performance has been decreed (vide Balmukand v. Veer Chand), Janardan Kishore v. Girdhari Lal, Subodh Kumar v. Hiramoni Dasi. The Supreme Court in Babu Lal's case (supra), had expressed complete agreement with the view taken by the learned single Judge of Delhi Court in Ex-Servicemen Enterprises (P.)Ltd. v. Sumey Singh AIR 1976 Delhi 56, with regard to the Court's power to put the plaintiff in a suit for specific performance in possession of the suit property.
16. The Supreme Court in their said decision in Babu Lal's case (supra), after pointing out the previous state of law on the above subject, have laid down that Section 22 of the Specific Relief Act, 1963 "enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings, the plaintiff may claim a decree for possession in a suit for specific performance even though strictly speaking, the right to possession accrues only when the suit for specific performance is decreed.....".
The learned Judge in Babu Lal's case (supra), proceeded to observe that Sub-section (2) of Section 22 has, however, specifically provided that reliefs by way of possession or for partition etc. cannot be granted by the Court unless they have been expressly claimed by the plaintiff. Where the plaintiff has not initially claimed these reliefs in his plaint, the Court under the proviso to Sub-section (2) of Section 22 of the Act can permit the plaintiff at any stage of the proceedings to include any one of the said reliefs by means of an amendment of the plaint on such terms as it might deem proper. In Babu Lal's case (supra), the plaintiff in his plaint did not pray for possession and the Additional Civil Judge had only passed a decree for specific performance of contract against the respondents 6 to 9, who had agreed to sell the suit plots to the plaintiffs. The High Court at Allahabad had modified the said decree to the extent that the sale deed was to be executed not only by the respondents 6 to 9 but also by their subsequent transferees including the petitioner of the special leave petition later on filed in the Supreme Court. The said petitioner who was a subsequent transferee had filed objection to the execution of the said decree on the ground that Section 22(2) of the Specific Relief Act, 1963 and also the Urban Land Ceiling Act stood as bar. The executing Court had allowed the objection to the judgment-debtor in part by only directing execution of the sale deed but had refused the prayer of the decree-holders for recovery of possession. The matter ultimately came before the Allahabad High Court which had dismissed the appeal and also the revision filed by the judgment-debtor but had allowed the appeal of the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 65/86 decree-holders by directing that the decree-holders shall be also entitled to recover possession. The special leave petition of the transferee judgment-debtor was dismissed by the aforesaid reported decision of the Supreme Court. The Supreme Court had rejected the contention of the judgment-debtor petitioner that the plaintiff decree-holder not having claimed any relief for possession in the suit, they could not obtain the said relief at the execution stage because Section 22(2) of the Specific Relief Act, 1963 was a bar to granting the said relief of possession at the execution stage. The further argument on behalf of the petitioner was that in any case before granting such possessory relief the Court ought to have insisted upon filing of an application for an amendment of the plaint and that opportunity should have been afforded to the petitioner to file an objection to the same.
17. The ratio of the decision in Babu Lal's case (supra), is that Section 22 of the Specific Relief Act, 1963 has not brought about any material charge in the substantive law relating to grant of possessory relief in a suit for specific performance of an agreement to transfer immovable property. The section only enacts a rule of pleading with the object of avoiding 'multiplicity of proceedings' and also 'to enable the plaintiff to obtain appropriate relief without being hampered by procedural complications'. Thus, the procedure has been simplified to enable the plaintiff in a suit for specific performance to either initially or at any subsequent stage of the proceedings to pray for possession or for other reliefs specified in Clauses (a) and (b) of subsection (1) of Section 22 of the Specific Relief Act, 1963. In this connection, the learned Judges of the Supreme Court in Babu Lal's case (supra), had also referred to different sub-sections of Section 28 of the Specific Relief Act, 1963 which recognise that where a decree for specific performance of a contract for sale or lease of immovable property is made and the purchaser does not pay the purchase money or other sum ordered to be paid within the period allowed, the Court retains jurisdiction, inter alia, to have the contract rescinded under Sub- section (i) read with Sub-section (2) of Section 28 of the Specific Relief Act, 1963. Again in case the purchase money or other sums ordered to be paid is put in lime on application made in the same suit, the Court may also grant under Section 28(3)(b) of the Specific Relief Act, 1963, in appropriate cases further reliefs by way of delivery of possession etc. on execution of such conveyance or lease.
18. We, accordingly hold that Section 22(1) of the Specific Relief Act, 1963 is procedural in nature and the use of the expression "further relief in Sub-section (3) of Section 28 of the said Act is a clear pointer that reliefs by way of delivery of possession or CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 66/86 partition and separate possession of property mentioned in Section 22(1)(a) and in Clause (b) of Sub-section (3) of Section 28 of the Specific Relief Act, 1963 are ancillary or consequential to the passing of a decree for specific performance of a contract to transfer immovable property. In other words, Sub-section s (1) and (2) of Section 22 of the Specific Relief Act, 1963 prescribe the procedure or the manner in which the Court may grant such further relief by way of delivery of possession or partition and separate possession of the property on execution of such convey- ance. Till the execution and registration of the conveyance, the vendee does not acquire title, but he is granted reliefs under Section 22(1)(a) of the Specific Relief Act, 1963 by enforcing the vendor's agreement to sell or to grant lease to him. In other words, at this stage, when he has not yet acquired title, the vendee's claim for possession etc. is derived from and founded upon the agreement which is specifically enforced. Thus, possessory reliefs mentioned in Clause (a) of Sub-section (I) of Section 22 of the Specific Relief Act are dependent upon and flows from passing of a decree for specific performance of an agreement to transfer an immovable property. Even before the enactment of the said Section 22(1), it was almost settled by judicial decisions that the Court could grant such possessory reliefs in favour of a successful plaintiff in a suit for specific performance. The legislature by enacting Section 22 of the Specific Relief Act, 1963 has given statutory recognition to the said, power of the Court to grant delivery of possession and has also prescribed the procedure for obtaining such relief.
19. Therefore, in our view, relief for possession in favour of the successful plaintiff in a suit for specific performance cannot be considered as a separate and distinct one. The same is only an ancillary or consequential one."
8.56 Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. Procedural law should not be tyrant but a servant and not an obstruction but an aid to justice. They should be implemented to achieve the ends of justice and not to defeat it and they should atleast not be allowed to come to the advantage or rescue of one party at the cost of the legitimate CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 67/86 right of other.
8.57 It is equally well settled law that in suits for specific performance court can grant any relief which is consistent with the pleadings and evidence led by the parties and most importantly which is essential to meet the ends of justice. In Ganesh Shet (Supra) it has been held as under:-
"7. Four points arise for consideration :
.........(3) What are the legal principles applicable to suits for specific performance under section 20 of the Specific Relief Act, 1963 where there is variation between pleadings and evidence in regard to the date or other terms of the contract? To what extent can relief be given under the heading 'general relief' in suits for specific performance under Order 7 Rule 7 CPC?
(4) Alternatively, whether, on the plaint as it stands, and the prayer made therein without seeking amendment, the plaintiff can get a decree for specific performance of an agreement dated 28.4.84 said to have been concluded at Bangalore?
Point 3..........
22. Yet another aspect of the matter is whether in a suit for specific performance the plaintiff can be given relief under the general prayer "such other relief as this Hon'ble Court may deem fit to grant in the circumstances of the case", in the light of Order 7 Rule 7 CPC. order 7 Rule 7 CPC reads as follows:-
"Relief to be specifically stated:-Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
Mulla(CPC) Vol.2 (15th Ed.p.1224) says that such relief may always be given to the same extent as if it had been asked for, provided it is not inconsistent with that specifically claimed, and with the case raised in the pleading. (See Cargil vs. Bower [1878 Ch. D.502, 508]; Kidar Lall Seal & Another vs. Hari Lall Seal [1952 SCR 179]).
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 68/86
23. It is stated in Corpus Juris Secundum (Vol. 81A, Specific Performance) (Para 189) as follows:
"In accordance with general rules, the relief awarded in a suit for specific performance would be based on the issues raised by the pleadings and supported by the proof. More specifically, relief awarded for the plaintiff must be authorised by or be in conformity with his pleading in respect of the contract to be enforced and the parties thereto".
24. As to the 'general relief' in suits for specific performance it is stated:
"In accordance with the general rules and its qualifications and limitations where the bill or complaint in a suit for specific performance contains a prayer for general relief, the court may grant relief consistent with the facts pleaded and proved and the court may in some cases grant or award partial relief."
In other words, other relief to be granted must be consistent with both pleading and proof, in suits for specific performance. The principles stated above under (a) and (b) appear to us to be the broad principles which are to be borne in mind while dealing with exercise of discretion in cases of specific performance. We decide Point 3 accordingly.
8.58 In M/s Kiri Associates (P) Ltd. vs Pramod Kumar Mittal & Anr. Dated 03.06.2016 O.M.P. (COMM) 203/2016 & I.A. No.3279/2015 the Hon'ble High Court of Delhi held as under:-
"15. On the issue of Section 21(5) of Specific Relief Act, it is settled law that once the relief of Specific Performance is denied, the Court can grant the relief of refund of earnest money and compensation under Section 21 and 22 of Specific Relief Act as it is discretionary relief and no specific prayer is required as the Court under Order 7 Rule 7 CPC can modulate its relief as per the facts of the case. Reliance is placed on the following judgments:-
a) The Supreme Court in Jai Narain Parasrampuria (Dead) and Others v. Pushpa Devi Saraf and Others (2006)7 SCC 756 has held that taking into account escalation in value of property, respondents were directed to refund to appellants the advance money of Rs.10 lakhs with interest @ 12% per annum. Since the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 69/86 respondents were responsible for bringing out such a situation, they were directed to pay Rs.50 lakhs as compensation to appellants in addition to the aforesaid amount.
b) This Court in Uma Kapoor & Anr v. Kapil Aggarwal, in OMP no.3/2011, decided on 2nd May, 2013, dealt with the petition under Section 34 of the Act, in which refund along with interest had been awarded in favor of the claimant. The Court, while deciding the said petition, had therein referred to B.R. Mulani v. A.B. Asawathanarayana, AIR 1993 SC 1318. In the said judgment, the Supreme Court, on coming to the conclusion held that the specific performance of an agreement cannot be ordered as it was not agreement of sale purely, however decreed suit for repayment of monies paid.
While disposing of the said OMP No. 3/2011, this Court held as under:
"It is evident from the finding of the Learned Arbitrator that he has exercised his jurisdiction and in order to render complete justice he directed the petitioner to refund the amount even though the respondent has not specially asked for in the statement of case. The learned Arbitrator, in fact, while exercising his discretion has given the benefit to the respondent who prayed that the Tribunal may pass any other orders as deemed fit in the circumstances of the case and in the interest of justice, equity and fair play".
c) In Mack and Krishnaswami Nayudu AIR 1995 Madras 591, it was held that "in a suit for specific performance the wide discretion a Court has in granting relief to the two parties to the contract is incapable of strict definition and must depend on facts of each case". In the said case, suit for specific performance brought by the vendee was dismissed but Court ordered the vendor to return the amount deposited with him by the vendee, even though refund of earnest money was not claimed in the suit.
d) Again this Court in, Ashok Kumar Arora v. D.S. Sodhi & Anr. 199 (2013) DLT 627 has held that "Decline of relief- Earnest money ordered to be refunded by way of money decree not barred- damages and compensation as envisaged under section 21 of Act cannot be equated with earnest money while determining rights of purchaser seeks for its return - In cases where specific performance is refused, in order to render complete justice Court may direct refund even though plaintiff has not specifically asked for it in plaint".
e) In Balwant Singh v. Ram Charan 190 (2012) DLT 589 the Court held that "Forfeiture of amount on account of breach of contract-
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 70/86 Justification- As per provisions of Order VII Rule 7 CPC, Court can modulate the relief which can be given, though relief is not specifically asked for- As specific performance was not granted to appellant/ plaintiff, respondent/ defendant cannot have unjust enrichment by retaining the amount."
f) In Janardhan Prasad v. Ramdas (2007) 15 SCC 174 it was held that "Performance of contract may be dependent upon several factors -Conduct of the parties in this behalf is also relevant - Parties by their conduct or otherwise may also extend the time for performance of contract from time to time. Specific Relief Act, 1963
- Ss. 20 and 21. In the case of Specific performance for balancing the equities in a given case, compensation can be awarded in lieu of grant of decree of specific performance of contract. It was held that it was a fit case where discretionary jurisdiction of the Court under S. 20 should not have been exercised and, instead monetary compensation could be granted."
8.59 In Uma Kapoor (supra) it has been held as under:-
"11. The contention before the learned Single Judge was that in his claim petition, Kapil Aggarwal never claim an alternative relief of being entitled to refund of the earnest money or deposit made in case the claim for specific performance is refused. It was urged that sub-Section (2) of Section 22 of the Specific Relief Act, 1963 prohibited any refund to be made in the absence of a specific relief.
12. The learned Single Judge has noted various decisions as to the power of the Arbitrator to interpret an agreement and apply the law. The learned Single Judge has noted the law declared by the Supreme Court in the decision reported as AIR 1993 SC 1318 B.R.Mulani vs. A.B.Asawathanarayana to hold that law declared therein was that upon a Court reaching the conclusion that specific performance of an agreement could not be granted, suit could be decreed for repayment of the money paid. The learned Single Judge has noted two decisions, one of the Karnataka High Court and the other of the Madras High Court reported as ILR 2003 Karnataka 4535 Smt.Khamarunnisa vs. Mudalappa and AIR 1955 Madres 591 Mack vs.Krishnaswami Nayudu to hold that notwithstanding it not being prayed in the relief in a suit seeking specific performance that in case main relief is not granted money paid under the agreement be refunded, it was permissible to decree refund of the amount paid.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 71/86
13. Contention urged in appeal is that the Andhra Pradesh High Court in the decision reported as 2002 (4) ALD 178 Koneru Syam Sundara Rao & Anr. vs. Pendurti Kanaka Durga, the Madhya Pradesh High Court in the decision reported as AIR 1990 Madhya Pradesh 323 Suraj Singh vs. Smt.Nathi Bai & Ors., and the Patna High Court in the decision reported as 1997 (1) BLJR 592 Bhagwati Prasad Jalan vs.Smt.Prem Lata Devi Kedia have held that in view of the bar imposed by sub-Section(2) of Section 22 of the Specific Relief Act, 1963, in the absence of a specific prayer for refund of the earnest money/security deposit a Court could not pass a money decree in a suit seeking specific performance of an agreement to sell.
14. Thus, we have three High Courts taking a view which supports the case of the appellant and three High Courts, including a Single Judge of this Court, taking a view to the contrary.
15. As regards the decision of the Supreme Court in B.R.Mulani's case (supra), the decision would be a pronouncement of the law that if a Court finds from the evidence that the plaintiff who seeks specific performance of an agreement has established a right, relief of specific performance may be denied and in view compensation could be paid. This is evident from paragraph 8 of the decision.
16. The learned Single Judge has overlooked the said distinctive feature on facts in B.R.Mulani's case (supra), which is not an authority on the legal issue which was debated before the learned Single Judge.
17. The view of the Karnataka High Court and Madras High Court is rooted in equity and holds that where specific performance is denied but equities demand adjusting or moulding the relief, it is permissible to do so.
18. In our view the legal position would be that sub Section (2) of Section 22 of the Specific Relief Act recognizes a rule of procedure that Courts should not grant a relief unless it has been specifically prayed for. It is trite that a rule of procedure cannot defeat a right which may flow from a statute or even in equity. Law draws a distinction between a relief which requires additional pleadings and some more facts to be proved vis-a-vis a relief which is subsumed or can be granted without proof of any other fact. Law recognizes that though not specifically asked for, a lesser relief would be included in a main relief prayed for. Thus, in a suit seeking specific performance, it would be open for a Court to order refund of earnest money if equity demands so even in the absence of a specific prayer made. In this context we would only refer to a decision of the Supreme Court reported as 1982 (1) SCC 525 Babu CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 72/86 Lal vs.M/s Hazari Lal Kishore Lal & Ors . wherein the Supreme Court referred to sub Section (2) of Section 22 of the Specific Relief Act and interpreted the same concerning a suit for specific performance where there was no prayer made for the defendant to put the plaintiff in possession of the suit property. The Supreme Court held that notwithstanding a prayer made for possession to be granted, it was permissible to direct possession to be handed over.
19. In the facts of the instant case, the issue can be looked at very differently. The words used in clause (b) of sub Section (1) of Section 22 are 'earnest money or deposit paid'. The prohibition under sub Section (2) to the reliefs under clauses (a) or (b) of sub Section (1) of Section 22 would obviously relate to earnest money or deposit paid.
20. As we have noted above, the agreement in question has not made a reference to any sum as earnest money or deposit paid. The learned Arbitrator has treated `25,00,000/- (Rupees Twenty Five Lacs only) paid at the time of execution as earnest money and has directed forfeiture thereof. `75,00,000/- (Rupees Seventy Five Lacs only) paid in instalments thereafter which has been directed to be refunded is ex-facie neither earnest money or deposit paid. We draw a distinction between a deposit paid and money tendered in part payment of an amount payable under an agreement to sell. The later would not be deposit paid. Thus, the bar of sub-Section (2) of Section 22 of the Specific Relief Act, 1963 in the facts of the instant case would not come into play.
8.60 In Anil Kumar (supra) it has been held as under:-
"8. Thus the question that arises for consideration is whether the relief which is neither pleaded nor prayed for can be granted, when the defendants admit the claim.
Order VII Rule 7 reads as follows:
7. Relief to be specifically stated : Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.
9. On a close analysis of the section, it could be seen that the general principle is that every relief shall be stated specifically. But the second part of the section further states that, it shall not be CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 73/86 necessary to ask for general or other relief which may always be given as the court may think just to the same extent as if it had been asked for. The power of the court to grant just and proper relief to a party without his asking is also recognized by the second part of Order VII Rule 7. So a discretionary power is vested under the second part. In short, the second part operates as an exception to the general principles to a limited extent. Thus a procedural flexibility is granted under Order VII Rule 7 in the matter of certain general reliefs. As per third part, the same rule shall apply to reliefs claimed by the defendant in his written statement.
10. With regard to Order VII Rule 7 C.P.C., in page 1827 of Mulla's Book on the Code of Civil Procedure, 18th Edition, it is stated that:- Under the system of pleadings hitherto followed in India, it was usual to add in the plaint a prayer for general relief called general prayer which ran thus: 'The plaintiff claims such further or other relief as the nature of the case may require'. Under the present rule it is no longer necessary specifically to ask for such relief. Such relief may now always be given to the same extent as if it had been asked for, provided it is not inconsistent with that specifically claimed, and with the case raised by the pleading.
11. Let us examine judicial precedents. In the decision reported in Sriniwas Ram Kumar v. Mahabir Prasad and others (AIR 1951 SC
177) the Supreme Court held that:
'There would be nothing improper in giving the plaintiff a decree upon the case which the defendant, himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to file a separate suit.'
14. But the Supreme Court cautioned the limits of discretion also.
In the decision reported in Thankamma Mathew v. Azamathulla and others (AIR 1993 SC 1120) the Supreme Court held that the power under Order VII Rule 7 conferred on the court does not enable it to override a statutory limitation. In the decision reported in Sheikh Abdul Kayum and others v. Mulla Alibhai and others (AIR 1963 SC 309) it has been held by this Court that it does not lie which the jurisdiction of a Court to grant relief against a defendant against whom no reliefs have been claimed. In the decision reported in Ganesh Shet v. C.S.G.K. Setty and others (1998 (5) SCC 381) the Supreme Court held that the general or other reliefs as court may deem fit sought by the plaintiff can be granted only when it is consistent with the pleading as well as CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 74/86 proof. In the decision reported in Pratap Rai Tanwani v. Uttam Chand (2004 (8) SCC 490) the Supreme Court held that subsequent development can be taken into consideration to afford relief to the parties and to shorten litigation provided only when such developments had a material impact on those rights and obligations.
15. In the decision reported in Kerulan Pillai Narayana Pillai v. Narayana Pillai Raghavan Pillai (1953 KLT 566) this Court held that it is competent for a court to decide a case and adjust the rights of the parties according to the truth which clearly emerged out of evidence in the case though that may not be strictly in accordance with the case set up by either of the parties. But this jurisdiction should be exercised in exceptional cases, very cautiously and without occasioning embarrassment or prejudice to any of the parties. In the decision reported in Michael Thankiah v. Ponnan Nadar (1954 KLT 501), the suit was one for redemption of mortgage but recovery of possession was not sought for. This Court granted recovery of possession, invoking jurisdiction under Order VII Rule 7 of the C.P.C. In the decision reported in Veevi Ummal Maimoonummal v. Salma Ummal (1957 KLT 1211) (Trivandrum Bench) suit was one for partition. Claim was for one-third of one- forth. But later found that the plaintiff is entitled to one third of whole item and passed decree accordingly. This was confirmed and held that in a suit for partition a larger relief than that claimed is allowable. In the decision reported in Chief Secretary v. Mathai Kuriakose (1988 (2) KLT 221), this Court held that plaintiff is entitled to reliefs not pleaded, in exceptional circumstances. An exceptional circumstance would arise if among others, the following conditions are satisfied: (1) when the claim had been admitted by the defendant (2) no injustice could possibly result to the defendant by granting such relief (3) the relief was one which the plaintiff could have made."
8.61 In Sriniwas Ram Kumar (Supra) it has been held as under:-
9. As regards the other point, however, we are of the opinion that the decision of the trial court was right and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decree of the Subordinate Judge. It is true that it was no part of the plaintiff's case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defendants second party. But it was certainly open to the plaintiff to make an CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 75/86 alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is noth- ing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The ques- tion, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. As an illustration of this principle, reference may be made to the pronounce- ment of the Judicial Committee in Babu Raja Mohan Manucha v. Babu Manzoor (1). This appeal arose out of a suit commenced by the plaintiff appellant to enforce a mortgage security. The plea of the defendant was that the mortgage was void. This plea was given effect to by both the lower 'courts as well as by the Privy Council. But the Privy Council held that it was open in such circumstances to the plaintiff to repudiate the transaction altogether and claim a relief outside it in the form of restitution under section 65 'of the Indian Contract Act. Although no such alternative claim was made in the plaint, the Privy Council allowed it to be advanced and gave a decree on the ground that the respondent could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the appellant even though the appeal was heard ex parte in the absence of the respondent.
8.62 In the case at hand the defendant has not once but repeatedly admitted that the plaintiff is only entitled to refund of CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 76/86 the amount paid by it. The said admission are founded in the written statement especially para 4 and the affidavit including para 7. Furthermore during cross examination DW1 stated as under:-
"Q58 If the project has been abandoned is the defendant company ready to refund the amount received from the Plaintiff along with interest?
Ans. As per our provisional letter if the project is abandoned then amount paid shall be refunded by the defendant company but without interest."
8.63 Once there is categoric admission by the defendant there is no reason to deny the plaintiff the said relief.
8.64 As discussed above there has been frustration of contract and specific performance cannot be granted. Section 56 of the Contract Act which deals with the frustration of the contract reads as under:-
"56. Agreement to do impossible act.--An agreement to do an act impossible in itself is void. --
Contract to do act afterwards becoming impossible or unlawful.
--A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful."
8.65 Once there is a frustration of a contract and specific performance cannot be granted, the court in its discretion can award such equitable relief as the facts and circumstances demand. The following observations made in Najmudin I. Bharmal (supra) may be noted:-
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 77/86 "19. The following conditions are essential before Section 56 of the Contract Act becomes applicable:
(1) A valid and subsisting contract to meet the purpose. (2) There must be some part of the contract yet to be completed after it is entered into becomes impossible to be performed.
The doctrine of frustration comes into play when a contract becomes impossible after it is made on account of circumstances beyond the control of the parties, or change in circumstances makes performance of the contract impossible. As such, an impossibility and frustration are often used with inter-changeable expression, the changed circumstance makes the performance of the contract impossible.
20. The rule in Section 56, exhaustively, deals with frustration of the contract. Once the Court finds that the contract has become impossible to be performed, there cannot be a decree for specific performance of such act or action to be impossible or the performance of which is beyond the control of the party. There is a definite policy, philosophy and purpose behind the doctrine of frustration. The trial Court, in the circumstances emerging from the evidence, has, rightly, observed that, on account of the denial or refusal of the permission for conversion of suit land into non- agricultural land, would result into frustration of contract and, therefore, there cannot be a decree for specific performance, thereof.
27. ........Section 20 of the Specific Relief Act empowers the Court with a discretion as to decreeing specific performance. It cannot be said that in every case wherever there is a valid contract or subsisting agreement, a decree for specific performance ought to be passed. It is a discretionary relief. The learned Advocate appearing for the respondents-original defendant Nos. 1 to 4 has, rightly, pointed out the latest case law on this point enunciated by the Apex Court. The provision of Section 20 of the Specific Relief Act, 1963, is examined by the Supreme Court. The Apex Court, in the judgment rendered in the case of N.P. Thirugnanam (Dead) by LRs. v. Dr. R. Jagan Mohan Rao and Ors. , has observed that, remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to the settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963. This Court is not bound to grant specific performance decree because there is a valid agreement of sale. Discretion is with the Court. The Court can exercise such discretion equitably depending upon the facts and circumstances of each case. Therefore, relying upon the aforesaid Full Bench decision and the decision of the Apex Court, it cannot be contended that, irrespective of the provision of Section 20 in the facts of the case, a CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 78/86 conditional decree for specific performance ought to be granted.
28. It may also be noted that, specific performance is compelling a person to perform his contract or statutory obligation. The word "specific" requires careful scrutiny. It is settled proposition of law that, the expression "specific" means, it must be specific enough to avoid being vague and general. What is precise, exact, definite and explicit is specific. Again, a contract is an agreement which is enforceable at law. If any agreement is incomplete, inconclusive, incoherent and impossible, how could there be a specific performance thereof? There was frustration of contract as permission for conversion into N.A. land was refused by the competent authority. Therefore, the question of conditional decree of specific performance does not assume any survival value, in the present case.
.........30. As regards cross-objections, it may be mentioned that, the directions of the Court in decreeing an amount to Rs. 25,000/- against defendant No. 1-Society could not be said to be unjust or unreasonable. It is a settled proposition of law that the amount of earnest money must be returned to the party who has paid, who fails to get decree for specific performance on the promise that no unjust enrichment can be allowed. There is no dispute about the fact that defendant No. 1-Society was paid by the plaintiffs an amount of Rs. 15,000/- by way of earnest money, while entering into the suit contract, Exh. 71. It is true that, the trial Court has assessed and awarded damages of a sum of Rs. 10,000/- to the plaintiff. Considering the facts and circumstances and the smallness of the amount awarded by the trial Court towards the damages, we do not deem it necessary and expedient to interfere with the same."
8.66 It will be worthwhile to go through section 65 of the Contract Act which reads as follows :
"When an agreement is discovered to Be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it".
8.67 As per second limb of section 65 where an agreement which was originally enforceable and was, therefore, a contract becomes void due to subsequent happenings then any person CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 79/86 who has received any advantage under such agreement or contract is bound to restore such advantage, or to make compensation for it to the person from whom he received it. It has been held in Kuju Collieries Ltd Vs. Jharkhand Mines Ltd AIR 1974 SC 1892 as under:-
The section makes a distinction between an agreement and a contract. According to s. 2 of the Contract Act an agreement which is enforceable by law is a contract and an agreement which is not enforceable by law is said to be void. Therefore, when the earlier part of the section speaks of an agreement being discovered to be void it means that the agreement is not enforceable and is, therefore, not a contract. It means that it was void. It may- be that the parties or one of the parties to the agreement may not have, when they entered into the agreement, known that the agreement was in law not enforceable. They might have come to know later that the agreement was not enforceable. The second part of the section refers to a contract becoming void. That refers to a case where an agreement which was originally enforceable and was, therefore, a contract,. becomes void due to subsequent happenings. In both these cases any person who has received any advantage under such agreement or contract is bound to restore such advantage, or to make compensation for it to the person from whom he received it. But where even at the time when the agreement is entered into both the parties knew that it was not lawful and, therefore, void, there was no contract but only an agreement and it is not a case where it is discovered to be void subsequently. Nor is it a case Of the contract becoming void due to subsequent happenings. Therefore, s. 65 of the Contract Act did not apply."
8.68 The agreement Ex. PW1/1 having now become unenforceable/void, specific performance cannot be granted in favour of the plaintiff. However the defendant is bound to return the amount to the plaintiff which it had received under the agreement. The defendant cannot be allowed to unjustly enrich itself at the cost of the plaintiff.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 80/86 8.69 In Mr. Antony Moses vs Mrs.Roselin A.S.No. 107 of 2014 dated 03.02.2020 the Hon'ble Madras High Court held as under:-
"30. The alternate relief of return of advance in a suit for specific performance is a consequential relief and therefore, the same need not be construed as a different relief. Once the relief of specific performance is rejected, then the refund of advance amount shall be consequential as no parties to the suit can be allowed to have an unjust enrichment. In other words, the dismissal of the relief of suit for specific performance, cannot stand in the way of granting the alternate relief to refund the advance amount with reasonable interest. The question arises in the absence of any such relief sought for in the plaint, whether the Court can grant the relief or not. This Court is of the considered opinion that the alternate relief to refund the advance amount is to be construed as a general relief, as such a relief is consequential to the rejection of the relief of specific performance. In the event of not considering the alternate relief under the umbrella of general relief, then one of the party to the civil suit would be prejudiced and the other party will get an unjust enrichment.
31. Keeping in mind the prejudice likely to be caused to one of the parties in the event of not granting the alternate relief of refund of advance amount, this Court has to adopt a pragmatic approach and constructive interpretation with reference to the Code of Civil Procedure and shall have a pragmatic approach.
32. Order VII, Rule 7 of the Code of Civil Procedure enumerates that "every Plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent a if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement".
33. The spirit of Order VII, Rule 7 of the Code of Civil Procedure is to be considered in the general format of the plaint. In the relief column, the plaintiffs used to pray for "grant such other relief or reliefs as the Hon'ble Court may deem fit and proper in the circumstances and thus render justice". Such a relief is to be construed as a general relief sought for in the plaint, the facts and circumstances and the equity to be considered in the interest of justice and the general relief is to be moulded, so as to grant the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 81/86 alternate relief of refund of advance amount in the event of rejecting the relief of specific performance by the Courts."
8.70 In Raj Sarogi vs American Express (I) Pvt. Ltd. dated 02.11.2000 the Hon'ble High Court of Delhi held as under:-
"8. Law with regard unjust enrichment and restitution is well settled by several authoritative pronouncements of the Apex Court. Section 70 of Contract Act, 1872 (for short the Act) deals with the obligation of the person enjoying benefit of non-gratuitous act and Section 72 of the Act mandates that a person to whom money has been paid or anything delivered under mistake or coercion must repay or return it. If the plaintiff succeeds in proving conditions embodied in Sections 70 and 72 of the Act namely that the payment was made lawfully and not gratuitously and that the defendants had enjoyed benefit thereof the plaintiff may succeed. The doctrine of restitution prevents unjust enrichment. It envisages restitution of any such payment. It requires that the party must return such things which does not belong to him to the person from whom he had received. In Mulamchand v. State of M.P., it was held:-
"In other words if the conditions imposed by Section 70 of the Indian Contract Act are satisfied then the provisions of that section can be invoked by the aggrieved party to the void contract. The first condition is that a person should lawfully do something for another person or deliver something to him; the second condition is that in doing the said thing or delivering the said thing he must not intend to act gratuitously; and the third condition is that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. If these conditions are satisfied, Section 70 imposes upon the latter person the liability to make compensation to the former in respect of, or to restore, the thing so done or delivered. The important point to notice is that in a case filling under Section 70 the person doing something for another or delivering something to another cannot sue for the specific performance of the contract, nor ask for damages for the breach of the contract, for the simple reason that there is no contract between him and the other person for whom he does something or to whom he delivers something. So where a claim for compensation is made by one person against another under Section 70 it is not on the basis of any subsisting contract between the parties but on a different kind of obligation. The juristic basis of the obligation in such a case is not founded upon any contract or CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 82/86 tort but upon a third category of law, namely, quasi-contract or restitution."
9. In the above decision Supreme Court had also quoted with approval following two English Court decisions..
1) In Fibrosa y. Fairbairn, (1942) 2 All ER 122, wherein it was hold:-
'...any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or resolution'.
2) In Nelson v. Larholt, (1948) 1 KB 339 it was held:-
"It is no longer appropriate to draw distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old form of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular framework. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires."
8.71 Therefore though specific performance of Ex PW1/1 cannot be now enforced, however, plaintiff is entitled to refund of amount paid to/deposited with the defendant. Issue no. 1 is accordingly decided in favour of the plaintiff and against the defendant.
Issue no 4: Whether plaintiff has not valued the suit properly for the purpose of Court fees? OPD
9. The onus to prove the present issue was upon the CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 83/86 defendant, however, the defendant has failed to explain, prove as to how the suit has not been valued properly, by the plaintiff, for the purpose of court fees.
9.1 It has been discussed above that neither the exact area to be allotted or the exact price per sq. feet of the area to be allotted has been finalized till date nor the same has been communicated to the plaintiff. Whether it was @ Rs. 10,000/- per sq. feet or Rs. 30,000/- per sq. feet could not be proved by the defendant. As per the last communication the area allotted to the plaintiff is 291 sq. feet. Though the defendant claimed that area was further reduced by 22% to 227 sq. feet, however, defendant could not prove that he had communicated the same to the plaintiff much least the plaintiff had consented for the same. Plaintiff has valued the suit at Rs. 30,00,000/- which according to him is the total consideration agreed upon as per agreement dated 27.03.1987. Plaintiff has arrived at the said calculation @ Rs. 10,000/- per sq. feet for the area of 291 sq. feet in terms of Ex. PW1/10 and Ex. PW1/11. I find no reasons to not agree with the calculations of the plaintiff.
9.2 Though in the written statement the defendant had claimed that the suit should have been valued at Rs. 37,55,000/- for super area of 227 sq. feet @ Rs. 15,000/- plus the cost of the car parking which is Rs. 3.5 lacs, however, in the affidavit, the defendant averred that the total cost of the suit flat is Rs.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 84/86 43,65,000/- @ Rs. 15,000/- per sq. feet for 291 sq. feet. Hence the defendant is itself not sure about the exact area or the cost or the court fees to be paid accordingly. Therefore this issue is decided against the defendant.
Issue no. 2 : Relief
10. In view of the findings of issue no. 1 and 3, it is held that the plaintiff is entitled to recovery of Rs. 28,50,000/- (rounded off from 28,49,999.50) along with pendent lite and future interest @ 12% per annum till its realization. Interest @ 12% is being awarded considering the fact that no interest has been awarded to the plaintiff for any period prior to filing of the present suit on the amounts deposited by the plaintiff with the defendant from 1987 till 2014. This is so because vide Ex. PW1/1 plaintiff had agreed to not to claim any interest but only the refund of principal amount. Nonetheless I have also considered the observations made in R.N. Grover (supra) which was a case filed against the present defendant for carrying on restrictive/unfair trade practice and wherein it has been held as under:-
"xviii) However, I am of the view that the complainants should be compensated by award of adequate interest because the respondents had retained Rs. 1,71,000/- for more than 10 to 13 years counted from the date of deposit knowing fully well that the building plans submitted by them had been thrice rejected. For the first time, the respondent sent communication in 2000 asking the complainants to seek refund of the money by depositing the relevant papers. Undisputedly, as on that date, the complainants did not have any material documents with them. Therefore, it was CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 85/86 the duty of the respondents to have returned the money as sequel to cancellation of the provisional allotment. Their failure to do so warrants award of adequate interest to the claimants. The claimants also deserves to be compensated for the harassment suffered by them at the hands of the respondents for more than 14 years.
D. The respondents shall refund Rs. 1,71,000/- to the complainants with compound interest @ 12% per annum from the date of deposit till the date of actual refund. This direction is being given keeping in view of the judgment of the Supreme Court in Ghaziabad Development Authority versus Hardev Kumar Sehgal (Supra); Ghaziabad Development Authority versus Soma Devi (Supra) and Miss Sunita Saini and another versus M/s. Octogone Builders and Promoters (P) Ltd. (Supra).
E. The aforesaid payments shall be made by the respondents within a period of three months from today failing which they shall have to pay compound interest at the rate of 18% per annum from the date of deposit till the date of actual payment."
10.1 Plaintiff is also entitled to refund of amount of Rs. 1.5 lacs deposited in the court in terms of orders dated 07.10.2015 after due verification of the deposit.
11. Suit of the plaintiff stands decreed accordingly. Decree sheet be prepared. I order accordingly.
12. File be consigned to record room after necessary compliance.
Announced in the open court on 21st December 2022 (Gaurav Rao) ADJ-03/ New Delhi District, Patiala House Courts, Delhi.
CS No. 56441/16 M/s Jagdish Chander Vij (HUF) Vs. M/s Rawal Apartments Pvt. Ltd. 86/86