Delhi District Court
All R/O 449 vs Smt. Madhuri Gupta on 31 October, 2019
IN THE COURT OF Ms. NEHA MITTAL: CIVIL JUDGE10, CENTRAL, TIS
HAZARI COURTS : DELHI
No. 2096/18
In reference:
Shri A.R. Singh (since deceased), through LRs:
i. Smt. Archana Singh Wife
ii. Shri Prashant Singh, Advocate Son
iii. Smt. Nidhi Singh Daugther
All R/o 4490, 7/21, Ansari Road, Daryaganj, New Delhi,
...........Plaintiffs
VERSUS
Smt. Madhuri Gupta, W/o Late Sat Prakash
R/o 2672, Gali Anar, Kinari Bazar, Dariba, Delhi110006.
.......... Defendant
Date of Institution : 13.12.1995
Date of reservation of Judgment : 31.10.2019
Date of Judgment : 31.10.2019
SUIT FOR DAMAGES / MESNE PROFITS
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned suit filed by the plaintiff against the defendant.
PLAINT:
2. As per the averments made in the plaint, the brief facts are that the plaintiff is the owner / landlord of the premises no.4483, Kashyap Lane, Makhan Lal Street, Ansari Road, Daryaganj, New Delhi2 by virtue of sale deed dt. 07.1.1971; that deceased Sat Prakash S/o Subedar R/o 2672, Gali Anar, Delhi6 agreed to purchase the said premises in terms of No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.1/30 receipt dt. 15.04.1986, as such the sale was to be effected within a week w.e.f. 15.4.1986 without any right to land beneath the said premises and deceased was liable to pay the ground rent @ Rs.200/ p.m. from the date of registration of sale deed; that deceased Sat Prakash Gupta @ Satta Pehalwan agreed to purchase the said premises for a sum of Rs.5000/; that a sum of Rs.2000/ were paid as earnest money by the deceased Sat Prakash to the plaintiff rest of the sum was to be paid by the deceased at the time of registration of sale deed which was to be done within a week from 15.04.1986; that late Sat Prakash failed to do the needful, hence, plaintiff was obliged to cancel the said deal and served a notice dt. 03.11.1986; that aforesaid premises was previously occupied by a tenant Mr. Manak Chand Gaur and after the death of said tenant the brother of Sh. Manak Chand Gaur occupied the same illegally; that however deceased Sat Prakash negotiated with said person Mr. Kahan Chand Sharma and after having certain settlement of payment of money to them which is not known to the plaintiff nor the same was disclosed to the plaintiff and got the possession of the said premises; that deceased Sat Prakash Gupta did not make any effort to get the sale deed registered in his favour despite various reminders from the side of the plaintiff in terms of the receipt dt. 15.4.1986; hence the plaintiff was obliged to cancel the said deal by way of serving the notice dt. 03.11.1986; that however, deceased Sat Prakash sent a reply dt. 19.2.1987 of the said notice i.e. after a lapse of three months, in the reply all the contents of notice dt. 03.11.1986 were denied; that deceased Sat Prakash as well as his wife agreed to purchase the said premises after seeing the title deeds dt. 07.01.1971 as such a copy thereof was delivered to them; that aforesaid deal / bargain was cancelled / repudiated by the plaintiff as per notice dt. 03.11.1986, hence, earnest money of Rs.2000/ stands forfeited, as such deceased Sat Prakash and the present defendants are in occupation of the demised premises illegally and unlawfully as trespassers as such defendants are liable to pay the damages / mesne profit for their illegal use and occupation of the premises in question w.e.f. 22.12.1992 to 21.12.1995 @ Rs.50/ per month i.e. for 36 months. Hence, the present suit.
No. 2096/16A.R. SINGH vs. MADHURI GUPTA Page No.2/30 WRITTEN STATEMENT:
3. In written statement, it is stated that the suit is hit by order 2 rule 2 CPC; that the suit is also hit by Suppessio Veri and Suggessio Falsi; that it is not admitted that the plaintiff is the owner of the property in suit; that ground rent @ Rs.200/ was not agreed to be paid between the parties; that the original of the said agreement dt. 15.04.1986 is also in possession of the plaintiff and the defendants are not in possession of even any copy thereof; that the plaintiff is guilty of adopting delaying tactics in execution of the agreement and hence, he cannot be allowed to take advantage of his own wrongs. All other averments of plaint have been denied.
REPLICATION:
4. Replication was filed by the plaintiffs to the written statement of defendant, wherein it has been stated that the defendants have failed to give them details of previous suits due to which the present suit can be sent to be hit by order 2 rule 2 CPC; rest of the averments made in the written statement have been denied and the averments made in the plaint have been reiterated.
ISSUES:
5. Vide order dt. 27.09.2005 passed in old suit no. 127/89 (new no. 595197/16), the present suit and old suits no. 127/89 (new no. 595197/16), 325/94 (new no. 2097/18), 139/98 (new no. 2095/18) and 345/89 (new no. 2094/18) were consolidated and following issues were framed on 27.09.2005:
1. Whether this court does not have jurisdiction to try suit no. RBT 26/04 (original suit no.345/89) as alleged? OPD
2. Whether suit no.127/89 is hit by Order 6 rule 14A CPC? OPD No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.3/30
3. Whether suit no.127/89 is hit by order 2 rule 2 CPC as alleged? OPD
4. Whether suit no. RBT 26/04 (original suit no.345/89) is barred by time? OPD
5. Whether plaintiff Sh. A.R. Singh is the ownercumlandlord of property no.4483 at 7/21, Daryaganj, New Delhi by virtue of sale deed dated 07.01.1971?
6. Whether defendant Sh. Satya Prakash (through Lrs) had performed their part of contract? OPD
7. Whether Sh. A.R. Singh adopted delaying tactics to avoid execution of sale deed as alleged? OPP
8. Whether the defendants have been always and are still ready to perform their part of the contract ? OPD
9. Whether the defendant Sh. Satya Prakash is entitled to relief of specific performance of contract and injunction as prayed for in suit no. RBT 26/04? OPD
10. If the defendants failed in proving the issue no.9 in their favour then whether the plaintiff is entitled for the recovery of possession of the premises in dispute? OPP
11. Whether the plaintiff would be also entitled to claim damages / mesne profits as claimed in suit no.127/89, 325/94 and 443/95 ? OPP
12. Relief.
6. Vide order dt. 07.08.2007, following additional issue no.1 was framed: "Whether the suit of the plaintiff has been valued for the purposes of court fees and jurisdiction as per order of the Delhi High Court and No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.4/30 the value declared in the suit no.1592/1988? OPP"
7. To avoid any confusion, parties shall be referred by their names hereinafter instead of plaintiff and defendant. Vide order dt. 30.07.18, LRs of deceased A.R. Singh were impleaded as party in the present suit.
EVIDENCE:
8. To substantiate its case, the plaintiff has examined six witnesses.
Sh. A.R. Singh, plaintiff was examined as PW1 prior to framing of consolidated issues and proved the certified copies of orders of High Court from 15.07.88 to 10.05.90 as ExPW1/1 (collectively), certified copy of plaint as ExPW1/2, certified copies of documents as ExPW1/3 (18 pages), certified true copies of applications as ExPW1/4 and ExPW1/5. However, he expired before his cross examination could be complete and his LRs were impleaded vide order dt. 30.07.18. Hence, his evidence will not be taken into consideration.
Thereafter, PW1 Sh. Prashant Singh, Advocate tendered his affidavit as ExPW1/A in evidence and has relied upon the document i.e. Mark G (later on marked as ExPW2/A)copy of sale deed dt. 01.07.1971, Mark A copy of eviction petition no.33/84, Mark B copy of leave to defend, Mark C copy of affidavit in eviction petition, ExPW1/5 (colly) UPC receipt, registered a/d and money order receipts, Mark D is legal notice, Mark E is copy of application u/o 23 rule 1 CPC in eviction petition no.33/84, ExPW1/7 is electricity bill dt. 10.04.1991, ExPW1/8 (colly) is legal notice dt. 03.11.1986 alongwith a/d card and envelope, ExPW1/10 is site plan, Mark F is copy of two police complaints, ExPW1/13 (colly) is certified copy of order in suit no.1592/88, ExPW1/14 is certified copy of plaint in suit no.1592/88, No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.5/30 ExPW1/15 is certified copy of I.A. No.8545/88 in suit no.1592/88, ExPW1/16 is certified copy of I.A. No.1458/89 in suit no.1592/88. PW2 Sh. Sevajit, Record Attendant, Department of Delhi Archives is a summoned witness who filed the copy of sale deed dt. 07.01.1971 as ExPW2/A which is already Mark G. PW3 Sh. Ashok Kumar, Record Incharge BSES Yamuna Power Ltd. Kamla Nagar is a summoned witness and proved the photocopy of K.No.2218100 as ExPW3/A (colly running into 7 pages).
PW4 Sh. Sushil Kumar Kala, Judicial Assistant from RKD (Original) Branch, High Court of Delhi, New Delhi is a summoned witness and proved the record of case bearing no.1592/88 as ExPW1/13 (colly) to ExPW1/16. PW5 Sh. Dinesh Kumar, JJA, Record Room, THC, Delhi is a summoned witness who has stated that the record pertaining to eviction petition titled A.R. Singh vs. Manak Chand Gaur bearing no.33/84 decided on 20.5.86 has been weeded out in April / May, 2005.
PW6 Sh. Rajesh Mishra, Head Clerk, Jal Sadan, Lajpat Nagar, New Delhi is a summoned witness and proved the photocopy of water connection in the name of Sh. Manak Chand Goyal as ExPW6/A (colly running into 4 pages).
Vide separate statement, PE was closed.
DEFENDANT EVIDENCE
9. Defendants have examined Ms. Madhuri Gupta(one of the LRs of deceased defendant) as DW1 who tendered her affidavit as ExDW1/A in evidence and has relied upon the documents:
(i) ExDW1/1 is copy of power of attorney.
(ii) ExDW1/2 is copy of receipt dt. 15.04.1986.
(iii) ExDW1/3 is site plan which has already been exhibited as ExPW1/10.No. 2096/16
A.R. SINGH vs. MADHURI GUPTA Page No.6/30
(iv) ExDW1/4 is copy of legal notice dt. 04.03.1987 FINAL ARGUMENTS:
10. I have heard the final arguments and perused the written submissions filed by the parties. In support of the case, plaintiff has placed reliance placed upon:
a) Kamal Kukmar vs. Premlata Joshi & Ors. 2010 (3) SCC 704;
b) Kalawati vs. Rakesh Kumar & Ors. 2018 (3) SCC 658;
c) Pramod Building & Developers Pvt. Ltd. vs. Shanta Chopra 2011(4) SCC 741;
d) Man Kaur vs. Hartar Singh Sangha 2010 (10) SCC 512;
e) Umabai vs. Nilkanth Dhondiba Chavan 2005(6) SCC 243;
f) Manjunath Anandappa URF Shivappa vs. Tammansa & Ors. 2003 (10) SCC 390;
g) Jayakantham & Ors. vs. Abhay Kumar 2017 (5) SCC 178;
h) Satish Kumar vs. Karan Singh & Anr. 2016 (4) SCC 352;
i) K. Prakash vs. B.R. Sampath Kumar 2015 (1) SCC 597;
j) K. Nanjappa vs. R.A. Hameed 2016 (1) SCC 762;
k) Jaswinder Kaur vs. Gurmeet Singh & Ors. 2017 (12) SCC 810;
l) Surjit Kaur vs. Naurata Singh & Anr. 2000 (7) SCC 379;
m) Bachhaj Nahar vs. Nilima Mandal & Anr. (2008) 17 SCC 491;
n) Hindustan Petroleum Corporation Ltd. vs. Mohanjit Singh RFA No.20/2016;
o) Vimlesh Kkumar Kulshrestha vs. Sambhajirao & Anr. (2008) 5 SCC 58;
p) Mehbooba Ur Rehman vs. Ahsanul Ghani Civil Appeal No. 8199 of 2009.
11. In support of its case, defendant has relied upon AIR 2019 SC 3013 Beemaneni Maha Lakshmi vs. Gangumalla Appa Rao.
FINDINGS OF THE COURT: ISSUE NO.1: Whether the court does not have jurisdiction to try suit no.
RBT 26/04 (original suit no.345/89) as alleged? OPD No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.7/30
12. The burden to prove this issue was on Shri A.R. Singh.
13. The general law is that the court has jurisdiction to entertain and try any civil suit unless the jurisdiction of the court is expressly or impliedly barred. However, neither any evidence has been led on behalf of A.R. Singh nor arguments have been advanced on this issue to discharge the burden as to how the jurisdiction of this court is barred.
Hence, this issue is decided in favour of Sh. Sat Prakash Gupta and against Shri A.R. Singh.
ISSUE NO.2: Whether suit no.127/89 is hit by Order 6 rule 14A CPC? OPD
14. The burden to prove this issue was on Sh. Sat Prakash Gupta.
15. However, there are no averments in the written statement filed in suit no.127/89 qua this issue. Rather perusal of record shows that Sh. A.R. Singh had taken the objection w.r.t. Order 6 Rule 14A CPC in Suit No. 345/89. Hence, the question to be determined is whether suit no.345/89 is hit by Order 6 Rule 14A CPC and the burden to prove the same is upon Sh. A.R. Singh.
16. It has been submitted that Sh. Sat Prakash Gupta has intentionally furnished his wrong address as in suit no.1592/88, he has given his address as 4483, 7/21, Daryaganj whereas in RBT No.26/04 (345/89), the plaintiff i.e. Sat Prakash has given his address as 2672, Gali Anar, Kinari Bazar, Delhi.
17. However, no evidence has been led on this issue on behalf of Shri A.R. Singh and merely stating different addresses in different proceedings cannot lead to the conclusion that a person is deliberately furnishing false addresses. It may be possible that a person may have more than one addresses. To discharge its burden, evidence to the fact that all the addresses except one did not belong to Shri Sat Prakash was to be led which has not been done. Hence, this issue is decided accordingly.
No. 2096/16A.R. SINGH vs. MADHURI GUPTA Page No.8/30 ISSUE NO.4: Whether suit no.RBT 26/04 (original suit no.345/89) is barred by time? OPD
18. The burden to prove this issue was on A.R. Singh.
19. It is submitted on behalf of Shri A.R. Singh that suit for Specific Performance filed by Shri Sat Prakash is barred by time as in his notice dt. 04.03.1987 ExDW1/4 it had been stated that if no reply is received to this notice within seven days, appropriate remedy will be sought through the court and hence, the suit filed after 7 days is barred by time.
20. As per Article 54 of Limitation Act, period of limitation for filing the suit for specific performance is three years. Merely stating in the notice that a person will approach the court after seven days of non receipt of any reply does not mean that the limitation period as prescribed by statute is curtailed. Such a provision can be construed as curtailing the normal period of limitation provided for filing of the suit. If it is so construed it may run a risk of being violative of Section 28 of Contract Act. Further, it is undisputed that the suit for specific performance is based on receipt dt. 15.04.86 ExDW1/2 and the suit bearing no. RBT 26/2004 (345/89) was filed on 11.04.89. It is well within the limitation period. Hence, this issue is decided against the defendant A.R. Singh and in favour of plaintiff Sat Prakash Gupta.
ISSUE No.5: Whether plaintiff Sh. A.R. Singh is the ownercumlandlord of property no.4483 at 7/21, Daryaganj, New Delhi by virtue of sale deed dated 07.01.1971?
21. The onus to prove this issue has not been placed on any of the party inadvertently. However, the same lies on A.R. Singh.
22. Sh. A.R. Singh is relying upon sale deed dt. 07.01.1971 ExPW2/A to prove his ownership over the suit property. The same has been proved on record by PW2. Even No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.9/30 otherwise, the ownership of A.R. Singh has not been denied on behalf of Sat Prakash. This can be inferred from the facts that Sat Prakash has filed suit for specific performance w.r.t. the same property. In para no. 8 of affidavit ExDW1/A, it has been stated that A.R. Singh was the owner of suit property. Further, DW1 Madhuri Gupta has deposed in her cross examination dt. 06.5.19 that Sh. A.R. Singh was the owner on the basis of sale deed dt. 07.01.1971. Perusal of the evidence of both the parties shows that both the parties are relying upon the said sale deed and have not disputed it anywhere. Though, it has been stated in para no.1 of reply on merits in WS filed in Suit No.127/89 by Madhuri Gupta (LR of Sat Prakash Gupta) that the alleged ownership of plaintiff is defective and he be put to strict proof of execution of sale deed dt. 07.01.1971, the fact that the sale deed has been admitted throughout in the evidence makes the aforesaid objection irrelevant. Hence, this issue is decided accordingly in favour of plaintiff A.R. Singh.
Additional Issue No. 1: Whether the suit of the plaintiff has been valued for the purposes of court fees and jurisdiction as per order of the Delhi High Court and the value declared in the suit no.1592/1988 ? OPP
23. The burden to prove that the suit has been properly valued is upon A.R. Singh.
24. No specific evidence has been led on this on his behalf. However, perusal of the record shows that vide order dt. 05.1.1994, it has been observed that it is the prerogative of the plaintiff to value his suit. Further, in any suit for specific performance, the suit has to be valued as per the consideration amount, in view of Section 7(X)(a) of the Court Fees Act, 1870. However, in a connected suit for possession filed by A.R. Singh with respect to the same property, the suit has been valued at Rs.5000/ being the value of the suit property. In these circumstances, A.R. Singh cannot be allowed to blow hot and cold and value his suit on lower side in his own plaint and challenge the valuation of Sat Prakash. Also, it is not disputed that the receipt dt. 15.04.86 ExDW1/2 is for a sum of Rs.5000/ only. Hence, in No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.10/30 these circumstances, this issue is decided in favour of Sat Prakash and against A.R. Singh.
ISSUE No.3: Whether suit no.127/89 is hit by order 2 rule 2 CPC as alleged? OPD & ISSUE NO.11: Whether the plaintiff would be also entitled to claim damages / mesne profits as claimed in suit no.127/89, 325/94 and 443/95 ? OPP
25. The burden to prove that suit no. 127/89 is hit by order 2 rule 2 CPC is on Sat Prakash Gupta. However, no evidence has been led on his behalf and no arguments have been advanced on this issue.
26. The bar under Order 2 Rule 2 CPC cannot be applied at the mere asking of the defendants. The defendants have to plead and prove that the suit is based on identical cause of action as the previous suit. In Gurbux Singh v. Bhooralal, the scope of the abovementioned provision was further explained as under: (SCC p. 1812, para 6) "6. In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out; (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2)that in respect of that cause of action the plaintiff was entitled to more than one relief; (3)that being thus entitled to more than one relief the plaintiff, without leave obtained from the court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.11/30 for the application of the bar."
27. In Ram Karan Singh and Others vs. Nakchhad Ahir & Others AIR 1931 Allahabad 429, a Full Bench of the Allahabad High Court while examining the issue of maintainability of second suit for pendente lite and future mesne profits where earlier suit for possession and past mesne profits has already been decided has held as follows:
"It seems to us that the cause of action for recovery of possession is not necessarily identical with the cause of action for recovery of mesne profits. The provisions of order II rule 4, indicate that the legislature thought it necessary to provide specially for joining a claim for mesne profits with one for recovery of possession of immovable property, and that but for such an express provision, such a combination might well have been disallowed. A suit for possession can be brought within twelve years of the date when the original dispossession took place and the cause of action for recovery of possession accrued. The claim for mesne profits can only be brought in respect of profits within three years of the institution of the suit and the date of the cause of action for mesne profits would in many cases be not identical with the original date of the cause of action for the recovery of possession. Mesne profits accrue from day to day and the cause of action is a continuing one, and arises out of the continued misappropriation of the profits to which the plaintiff is entitled. In many cases the plaintiff may not be in a position to anticipate the exact amount of mesne profits to which he may become entitled after the institution of the suit. The object of order II, rule 2, is the prevention of the splitting up of one cause of action and not to compel the plaintiff to seek all the remedies which he can claim against the same defendants on account of several causes of action in one and the same suit. In one No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.12/30 case, the multiplicity of suits is to be avoided and, in the other, multifariousness of the causes of action. It is also clear that the bundle of facts which would constitute the cause of action in favour of the plaintiff would not necessarily be identical in a suit for recovery of possession and in a suit for mesne profits. In a suit for possession the plaintiff need only prove his possession within twelve years and the defendant's occupation of the property without right. In a suit for mesne profits he has, in addition, to prove the duration of the whole period during which the dispossession continued, including the date on which it terminated, as well as the amount to which he is entitled by way of damages. Evidence to prove these latter facts would undoubtedly be different from that which would be required to prove the first set of facts. Again, if there are a number of defendants who are in possession of different portions of the property, there may be considerable difficulty in ascertaining the amount which, each is liable to pay and the plaintiff may think it convenient to postpone an inquiry of such a complicated nature to a suit after his right to possession has been fully established."
28. For easy analysis of the time period for which different suits for mesne profits have been filed, the relevant information has been compiled in a tabular form:
Sr. No. Suit Number Period for which mesne profit Date of Filing claimed
1. 127/89 22.03.1986 to 21.06.1987 04.03.1989
2. 2097/18 21.12.1989 to 22.12.1992 04.01.1993
3. 2096/18 22.12.1992 to 21.12.1995 13.12.1995
4. 2095/18 22.12.1995 to 21.01.1998 04.02.1998
29. Perusal of the filing date of the aforementioned suits and the period for which the No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.13/30 mesne profit is claimed shows that A.R. Singh did not relinquish his claim for mesne profit on date of filing of any of the suits except for period between 22.06.1987 to 04.03.1989 which has been relinquished while filing suit no.127/89. In every suit filed, mesne profit accrued till that date have been claimed and any mesne profit accruing thereafter is a fresh cause of action for which a separate suit is maintainable and bar u/o 2 rule 2 CPC does not apply. If it is said that the suits are barred by order 2 rule 2 CPC a very peculiar situation would arise whereby a person will be debarred from filing the suit as long as the cause of action continues. In the present case, it would imply that A.R. Singh will not be able to file suit for mesne profit till mesne profit, if any, keep on accruing in his favour. Said interpretation is definitely not the intention of legislature. Hence, the bar u/o 2 rule 2 CPC does not apply except for the period running from 22.12.1992 to 04.01.1993 as mesne profits for this period could have been claimed in suit no. 2097/18 but have not been claimed and period between 22.06.1987 to 04.03.1989 which has been relinquished while filing suit no.127/89.
30. For the reasons to be discussed herein after while giving finding on issue no.9, plaintiff A.R. Singh is held entitled to mesne profit. However, no evidence has been led on the part of A.R. Singh to show how he is entitled to mesne profit @ Rs.50/ per month as claimed. In this regard, this court would like to refer to the law laid down in Bakshi Sachdev (D) by L.Rs. v. Concord (I), 1993 RLR 563, and in P. S. Bedi v. Project & Equipment Corpn. of India Ltd. reported as AIR 1994 Delhi 255 wherein it was held that the while granting damages and mesne profits judicial notice of the factum of phenomenal rise in rents in Delhi can be taken. In the judgment titled as Shriram Pistons & Rings Ltd v. Basant Khatri reported as (2012) 190 DLT 769 it was observed by the Hon'ble High Court of Delhi: "......In every case for determining mesne profits some amount of honest guesswork is always called in. As long as the guesswork is based within legal parameters, and is supported by relevant evidence, such a conclusion can be adopted by the No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.14/30 Courts for determining the mense profits...."
31. Hence, in view of the aforesaid legal proposition and keeping in view the phenomenal rise in the rate of rent, claim of mesne profit @ Rs.500/ per month cannot be doubted. Hence, this issue is decided accordingly.
ISSUE NO.7: Whether Sh. A.R. Singh adopted delaying tactics to avoid execution of sale deed as alleged? OPP
32. The burden to prove this issue is upon Sat Prakash.
33. It is submitted on behalf of Sh. Sat Prakash that delaying tactics have been adopted by A.R. Singh to avoid execution and registration of sale deed on one pretext or the other. In this regard, averments have been made in para no.13 and para no.25 of affidavit ExDW1/A. Apart from this bare averment, there is nothing on record to discharge the burden placed upon Sat Prakash.
34. It is further submitted that Sh. A.R. Singh had been delaying the execution of sale deed on the pretext of obtaining NOC. However, perusal of receipt dt. 15.4.86 ExDW1/2 shows that it nowhere mentions about any such NOC to be taken from any authority. DW1 also deposed in her cross examination dated 30.07.19 that there is no document to show that A.R. Singh had told her husband that he had to take permission of some competent authority to sell kothari. Rather, notice dt. 03.11.86 ExPW1/8 sent on behalf of A.R. Singh to Sat Prakash mentions for the first time that NOC had been got signed twice on 23.4.86 and 31.7.86 from A.R. Singh by Sat Prakash Gupta. It is only in reply dt. 24.2.87 to the said legal notice it has been stated that the necessary formalities related to procuring of NOC were to be completed by A.R. Singh. In the absence of any condition related to NOC in receipt ExDW1/2 such a condition cannot be assumed to exist on the basis of oral averments especially in view of the law laid down in Section 91 & 92 of Evidence Act. It is also to be noted that receipt dt. 15.4.86 ExDW1/2 specifically mentions that the sale shall No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.15/30 be without any right in land beneath. In such circumstances, the theory of NOC as propounded on behalf of Sh. Sat Prakash Gupta becomes doubtful. Further, it has nowhere been stated in the entire pleadings or the evidence as to from what authority NOC was required to be taken to execute the agreement in question. Also, other than the requirement of NOC, there is no other formality that has been imputed upon A.R. Singh to be done by him for the execution of sale deed. In the absence of any responsibility / formality, A.R. Singh did not even have a chance to delay the execution of agreement. Hence, it cannot be said that A.R. Singh was adopting delaying tactics. It is also pertinent to note that it was A.R. Singh who had sent the first legal notice terminating the agreement between the parties and till then, no notice was sent on behalf of Sat Prakash. Rather, Sat Prakash took time of three months in replying to the notice sent by A.R. Singh. Also, it has never been pleaded on behalf of Sat Prakash that there was any attempt on his part to tender the balance agreement amount or there was any refusal on the part of A.R. Singh to accept the same.
35. Hence, it cannot be said that delaying tactics are being adopted by A.R. Singh. Hence, this issue is decided accordingly.
ISSUE NO.6: Whether defendant Sh. Satya Prakash (through Lrs) had performed their part of contract? OPD ISSUE NO.8: Whether the defendants have been always and are still ready to perform their part of the contract ? OPD ISSUE NO.9: Whether the defendant Sh. Satya Prakash is entitled to relief of specific performance of contract and injunction as prayed for in suit no. RBT 26/04? OPD
36. These issues are taken up together as they involve common question of law and facts.
37. The burden to prove that Sat Prakash had performed his part of the contract and has always been ready and willing to perform his part, is upon him. It is undisputed that the payment of Rs.2000/ was made by Sat Prakash Gupta by way of cheque at the time of No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.16/30 execution of receipt ExDW1/2. Hence, the question that remains is whether Sat Prakash Gupta was ready and willing to make the remaining payment of Rs.3000/ and to take steps for the execution of the sale deed and if yes, whether he is entitled to relief of specific performance.
38. Before going into this question, it is necessary to discuss the law related to specific performance. The well established proposition of law is that relief of specific performance is essentially an equitable relief and court has discretion to grant such relief or may decline the same. However, such discretion for grant or decline of relief of specific performance, has to be exercised judiciously having regard to the terms of agreement, conduct of the parties, ready and willingness of the parties as well as enforceability of the contract and most importantly to examine that whether terms of the contract are such that it is only grant of relief of specific performance which would be the just and appropriate remedy or not. In other words, court may decline to grant relief of specific performance if there is any unjust or arbitrary term between the parties giving undue advantage in favour of one party at the cost of other or plaintiff by his conduct has rendered himself to be not entitled to such equitable relief. Obviously provisions of Section 14 to 20 of Specific Relief Act are to be kept in mind to examine this issue. In Kumar v. Premlata Joshi, (2019) 3 SCC 704, it has been laid down as follows :
"7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are:
7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property. 7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.
7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.17/30 terms of the contract;
7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff;
7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds."
39. The first question is whether there was a valid and legal contract between the parties which can form the basis of suit for Specific Performance.
40. The case of Sat Prakash is that receipt dated 15.04.1986 Ex.DW1/2 was executed between the parties for the sale of suit property. It has further been submitted that another agreement apart from the receipt was also executed but the same is in possession of the A.R. Singh. It has further been submitted that in the alternative, oral agreement for sale can be inferred from the conduct and pleadings and hence, Sat Prakash is entitled to the relief of specific performance. Per contra, the counsel for A.R. Singh has submitted that the receipt is not equivalent of agreement to sell and that even otherwise the same is not duly stamped to qualify for agreement to sell. It is further submitted that Sat Prakash is responsible for delay and laches in the performance of agreement and hence, he is not entitled to the relief of specific performance.
41. The question to be examined is whether specific performance can be ordered on the basis of receipt dated 15.04.1986. It is well settled that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will not be there even though the contract is otherwise valid and enforceable. Reliance is placed upon Mayawanti v. Kaushalya Devi (1990) 3 SCC 1] wherein it has been held as No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.18/30 under:
"8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation."
42. In the present case, Sat Prakash is seeking specific performance on the basis of receipt dated 15.04.1986. Perusal of the said receipt shows that it has been executed on insufficiently stamped paper and objection regarding the same has been taken by A.R. Singh at the time filing written statement itself. Hence, by virtue of Section 35 of Stamp Act, 1860, it cannot be looked into for evidence. It is also to be noted that it does not, even otherwise, qualify as an enforceable agreement in law for passing a decree for specific performance of contract. Reliance in this regard is being placed upon Satish Kumar v. Karan Singh, (2016) 4 SCC 352 wherein a suit for specific performance on the basis of No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.19/30 similar receipt was dismissed holding that the trial court erroneously held that the receipt cumagreement is an enforceable contract. The receipt that was under consideration in Satish Kumar's case is being reproduced as under:
"Receipt + Agreement dated 611995 Received a sum of amount Rs 2,30,000 (Rupees two lakhs thirty thousand) from Karan Singh, S/o Shri Basti Ram, R/o Village and PO Mahipalpur, New Delhi110037 on 611995 against our DDA alternative Plot F.No. 32(5)113/87/L&B/Alt./2511 dated 1181989 in the name of Shri Jaishi, S/o Shri Ram Saran, R/o V&PO Mahipalpur, New Delhi. The total area of the abovesaid plot is 400 sq yd. The total premium settled for the abovesaid plot is Rs 4,60,000 (Rupees four lakhs sixty thousand) and will be given at the time of receiving the lease after execution at the Registrar Office. No payment will be given in between.
Sd/ Jaishi Ram, s/o Ram Saran Village Mahipalpur In the presence of J.N. Sehrawat V & PO Mahipalpur New Delhi110037."
The receipt in the present case is as under:
"Received a sum of Rs.2000/ by cheque No.57535, Sydicate Bank, dt. 15.4.1985 from sat Prakash s/o Shri Subedar, r/o 2672, Gali Anar, Kinari Bazar, Delhi6 as earnest money and total bargain has been settled at Rs.5000/ and balance amount of Rs.3000/ shall be paid at the time of Registration. The total sale has been settled at Rs.5000/ No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.20/30 Five thousand only for sale of Kothri No. 4483,7/21, Darya Ganj, New Delhi and sale shall be without any right in land beneath. The possession delivered on 15.4.1986. However, Shri Sat Prakash shall be entitled to carry out the repairs and additions etc. according to law and rules of MCD etc. The sale shall be completed within a week.
Receipt shall be valid subject to the realization of cheque."
43. Thus, comparison of both the receipts shows that they are very much similar. Hence, receipt dated 15.04.1986 cannot be called as a valid agreement. There is no evidence on record to point towards the existence of separate agreement to sell apart from receipt Ex.PW1/1. The plaintiff has merely made bald averments that the agreement to sell is in the possession of the defendant. In cross examination dated 24.05.19, DW1 has deposed that "It is correct that no document other than receipt dated 15.04.86 was prepared with respect to suit property." Hence, it is clear from the above quoted admission that there is no separate agreement to sell between the parties.
44. However, there is no dispute that a decree for specific performance can be granted even on the basis of oral contract. Lord Du Parcq in a case [Shankarlal Narayandas Mundade v. New Mofussil Co. Ltd., 1946 SCC OnLine PC 7 : (194546) 73 IA 98 : AIR 1946 PC 97] observed, while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by this Court in Kollipara Sriramulu v. T. Aswatha Narayana [AIR 1968 SC 1028] and held that an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties.
45. In a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement or No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.21/30 a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immovable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiff that vital and fundamental terms for sale of immovable property were concluded between the parties. Thus, the next question to be examined is whether there was any oral agreement between the parties.
46. In the present case, A.R. Singh has admitted the existence of agreement to sell/purchase the suit property in notice dated 03.11.1986 Ex PW1/8 which was issued on his behalf to Sat Prakash Gupta thereby forfeiting the earnest money in the following words:
"That you entered to an agreement to purchase the premises no. 4483, Kashyap Lane, darya Ganj, New Delhi which was previously occupied by........and a sum of Rs. 2,000/ was paid by you."
47. The prerequisite of cancellation of any document/agreement/deal is its existence.
48. Further, in connected suits between the parties bearing old suits no. 325/94, 139/88 and 443/95, it has been pleaded on behalf of A.R. Singh that Sat Prakash Gupta agreed to purchase the suit property. This also implies that there was an agreement to sell. In para no. 11 of affidavit Ex PW1/A, Sh. Prashant Singh (LR of deceased A.R. Singh) admits having received the earnest amount of Rs. 2,000/. This also implies the existence of agreement to sell as no consideration would have been received without the existence of any agreement. These admissions on the part of A.R. Singh discharge the burden of proof placed upon Sat Prakash Gupta to show the existence of oral agreement to sell. Thus, an agreement to sell existed between the parties but burden still lies upon Sat Prakash Gupta to prove its terms and conditions.
49. It has been vehemently submitted on behalf of A.R. Singh that the possession of No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.22/30 the suit property was taken by Sat Prakash Gupta from the erstwhile tenants of A.R. Singh. This argument can, at the most, be relevant only for the purpose of deciding the validity of agreement between the parties with respect to the question of free consent. PW1 has relied upon the documents of electricity connection ExPW3/A, water connection ExPW6/A, suit for eviction filed against Manak Chand ExPW1/13 to ExPW1/16 and sale deed ExPW2/A to show that the suit property was previously occupied by Manak Chand. However, perusal of notice dt. 03.11.86 ExPW1/8 sent to Sat Prakash on behalf of A.R. Singh mentions that the possession of the suit property has been delivered by A.R. Singh in terms of Section 53A of Transfer of Property Act. Similarly, the receipt dt. 15.4.86 ExDW1/2 also mentions that the possession has been delivered. Even, in the receipt there is no averment that the possession has been taken from the tenant. Further, showing previous possession of Manak Chand does not by itself lead to the conclusion that he handed over the possession of the suit property to Sat Prakash Gupta. Hence, this argument on behalf of A.R. Singh that possession was taken from the tenant does not hold any water. Similarly, it has been repeatedly asserted on behalf of A.R. Singh that illegal pagri money was paid by Sat Prakash to the erstwhile tenant in the suit property and A.R. Singh wanted to get rid of the dispute and therefore agreed towards the price settled. However, A.R. Singh has nowhere stated the amount of alleged pagri paid by Sat Prakash. Further, during his cross examination, PW1 has deposed that he does not remember when the said pagri was paid by Sat Prakash and Madhuri Gupta to the earlier occupants of the suit property and that he does not remember the amount of pagri. Further, it is to be noted that nothing is mentioned in notice ExPW1/8 about the payment of alleged pagri. It has also been admitted by PW1 that such illegal pagri was not paid in his presence but he has derived some knowledge of same from his deceased father. In his cross examination in suit no. 95141/16, PW1 has stated that he cannot tell when Madhuri Gupta or her husband met the earlier tenant, he has not even seen them together. Rather, in his crossexamination dt. 23.1.19 in the aforementioned suit, he has deposed that he has never seen Sat Prakash meeting the earlier occupant of the suit No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.23/30 premises. Hence, the story of illegal pagri as advanced on behalf of A.R. Singh cannot be believed.
50. Another question that has been raised by the parties is whether time was the essence of contract or not. It has been submitted on behalf of A.R. Singh that time was essence as period of seven days has been specifically mentioned in receipt ExDW1/2 whereas counsel on behalf of Sat Prakash has submitted that it was not the case. However, as per notice dated 03.11.1986 ExPW1/8 sent by A.R. Singh, NOC form was signed by him twice on 23.4.86 and 31.7.86 i.e. much beyond the stipulated period of seven days. Hence, it cannot be said that time was the essence of contract.
51. It has further been submitted on behalf of A.R. Singh that reliance has been placed on behalf of Sat Prakash on site plan ExPW1/10 which shows Sat Prakash as trespasser and hence, by his own admission he is entitled to the relief of specific performance. However, as per proviso to Section 58 Evidence Act, court may require admitted facts to be proved and this admission, in the opinion of this court, is one such admission which requires corroborative evidence.
52. Now, the second question to be examined is whether Sat Prakash Gupta was ready and willing to perform his part of contract.
53. It has been stated in para no.25 of affidavit ExDW1/A that Sh. Sat Prakash Gupta was always ready and willing to buy the suit property and made all efforts to complete the said deal and had even brought stamp papers of Rs.400/ on 17.4.1986 and handed over the same to Sh. A.R. Singh at his asking.
54. Per contra it is submitted on behalf of Sh. A.R. Singh that no efforts were made by Sh. Sat Prakash Gupta to get the sale deed registered in his favour within the stipulated time and that is why he was constrained to send the forfeiture notice ExPW1/8.
55. It would be apposite to discuss the law related to readiness and willingness before delving into the facts of the present case. In a suit for seeking relief of specific performance, No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.24/30 plaintiff is required to state and prove his readiness and willingness to perform his part of obligations under the agreement. Section 16 of the Specific Relief Act, 1963 lays down that the person seeking specific performance of the contract must file the suit wherein he must aver and prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by them. The specific performance of the contract can not be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform the essential terms of the contract. Explanation [ii] clause C of Section 16 further makes it clear that plaintiff must aver performance of, readiness and willingness to perform, the contract according to its true construction. The compliance of the requirement of Section 16 (C) is mandatory, in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract, suit can not succeed. The first requirement is that the plaintiff must aver and thereafter prove those averments.
56. The idea behind Section 16(C) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. Since the relief sought is equitable and discretionary, the court can grant the relief on the basis of the person who seeks it. Section 16(C) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence that he has always been ready and willing to perform his part of the contract. While examining the requirement of Section 16 (C), Hon'ble Supreme Court of India in Syed Dastagir vs T. R. Gopalakrishna Setty, 1999 (3) RCR (Civil) 643 : (1996 (6) SCC 337) noted as follows :
"So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16 (c) an what are the obligations which the plaintiff has to comply with in reference to his plea and whether the plea of the plaintiff could not be construed to conform to No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.25/30 the requirement of the aforesaid section, or does this section require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In constructing a plea is not an expression of art and science but an expression through words to place fact and law of one's case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16 (c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.26/30 pleaded."
57. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao & Ors., (1995) 5 SCC 115, Supreme Court held:
".....Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract."No. 2096/16
A.R. SINGH vs. MADHURI GUPTA Page No.27/30
58. Thus in a suit for specific performance, the continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief.
59. In the present case, DW1 has deposed, in her cross examination dt. 24.5.19, that neither any communication was done nor any suit was filed after the expiry of period of one week as stipulated by receipt ExDW1/2 and before the legal notice ExPW1/8 forfeiting earnest money was given by Sh. A.R. Singh. It has further been deposed that Sat Prakash Gupta had not paid the balance payment of Rs.3000/ to A.R. Singh during the period of one week as stipulated by receipt ExDW1/2 and even prior to sending legal notice ExPW1/8. It is pertinent to note that in crossexamination dt. 30.7.19, DW1 has stated that Sh. Sat Prakash Gupta personally went to give Rs.3000/ but the same were returned by A.R. Singh. Due to this apparent contradictions in her testimony with regard to the tendering of balance payment of Rs.3000/, the same cannot be relied upon and the only conclusion that can be inferred is that the balance amount of Rs.3000/ was never tendered. However, this would not imply that the entire testimony of DW1 is unbelievable as the principle of falsus in uno, falsus in omnibus is not applicable in India.
60. It is further deposed by DW1 that she does not remember about any bank account of Sat Prakash Gupta other than his account with Syndicate Bank, Chandni Chowk, Delhi and that she does not remember about the balance amount in the said account during the period of AprilMay 1986. No document has been placed on record to show the account balance during the relevant period. It is also pertinent to note that no draft or cheque has been placed on record to show the readiness and willingness of Sat Prakash to tender the remaining amount. With respect to stamp papers, it has been submitted that though the same were purchased but they cannot be placed on record as they were handed over to A.R. Singh. However, there is nothing on record to show that any stamp papers were ever purchased by Sat Prakash Gupta nor any witness has been examined in this regard. No No. 2096/16 A.R. SINGH vs. MADHURI GUPTA Page No.28/30 notice of discovery has ever been sent on behalf of Sat Prakash for production of alleged stamp papers. There is no receipt showing the handing over of the stamp papers to A.R. Singh. It is also pertinent to note that requisite stamp papers have been placed on record in connected suit between the parties bearing no. 95141/16 titled as 'Madhuri Gupta v A.R. Singh' which is suit for specific performance of agreement to sell Flat no. 9. Qua this, DW1 has deposed in her cross examination dated 30.07.19 that she has no reason to say why stamp papers with respect to flat no. 9 were filed in aforementioned suit but not filed in present suit. Hence, even this theory cannot be believed.
61. The counsel for Sat Prakash has relied upon Beemaneni's case (supra) to substantiate his argument that when vendor (i.e A.R. Singh in the present case) did not perform his part of the contract, then failure on the part of vendee (i.e Sat Prakash in the present case) to demonstrate that he was having sufficient money with him to pay balance sale consideration is not much of consequence. However, the said judgment is not applicable in the facts of the present case as in view of finding on issue no. 7, Sat Prakash has failed to show that delaying tactics were being adopted by A.R. Singh and hence, it cannot be said that he failed to perform any part of his contract. Rather, there is failure on part of Sat Prakash to show what part of contract was to be performed by A.R. Singh. In view of the above facts, it can be concluded that Sat Prakash was not ready and willing to perform his part of the contract.
62. In the absence of readiness and willingness, relief of specific performance cannot be granted to Sat Prakash Gupta.
63. Sat Prakash Gupta has also claimed the relief of permanent injunction for restraining A.R. Singh from transferring or alienating the suit property in any manner.
64. Reliance has been placed upon Sucha Singh Sodi vs. Baldev Raj Walia 2018 (5) Scale 615 on behalf of A.R. Singh to deny this relief on the ground that relief of injunction cannot be claimed alongwith the relief of Specific Performance.
No. 2096/16A.R. SINGH vs. MADHURI GUPTA Page No.29/30
65. Though, the citation relied upon on behalf of A.R. Singh is not applicable in the present case as in the said citation the Hon'ble Supreme Court was concerned with the question whether a subsequent suit for specific performance is maintainable in view of previously instituted suit for permanent injunction, however, in view of finding on the question of specific performance Sat Prakash has no locus to be entitled to the relief of injunction.
Issue No.10: If the defendants failed in proving the issue no.9 in their favour then whether the plaintiff is entitled for the recovery of possession of the premises in dispute? OPP
66. The burden to prove this issue is upon A.R. Singh.
67. In view of finding on issue no.6,8 &9, this issue is decided in favour of A.R. Singh and against Sat Prakash.
RELIEF:
68. In view of the foregoing discussion, the plaintiffs have been able to prove that they are entitled for the reliefs claimed. The suit of the plaintiffs is accordingly decreed and plaintiff is entitled to relief of mesne profit @ Rs.50 per month w.e.f. 22.12.92 to 21.12.95.
69. No order as to costs.
70. Decree sheet be prepared accordingly.
71. File be consigned to the record room after necessary compliance.
Digitally
signed by
NEHA NEHA MITTAL
Date:
MITTAL 2019.11.01
15:47:48
+0530
Announced in the open
Court on 31.10.2019 (Neha Mittal)
Civil Judge10 (Central)
THC/Delhi
No. 2096/16
A.R. SINGH vs. MADHURI GUPTA
Page No.30/30