Delhi District Court
Sh. Mukesh Kumar vs Smt.Anita Vaishnav on 24 May, 2022
: IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No.736/2017 (517871/2016)
In the matter of:
Sh. Mukesh Kumar
son of Sh.Manphool Singh Tokas
R/oH.No.9, Village Amberhai
Sector19, Dwarka, New Delhi110075
........Plaintiff
VERSUS
Smt.Anita Vaishnav
W/o Sh.Surya Nath Singh
R/oMIG Flat No.259 Dwarka
New Delhi110075
........ Defendant
Date of institution of Suit : 08.04.2011
Date of reserving judgment : 24.05.2022
Date of pronouncement : 24.05.2022
Appearance:
(i) Sh. J.S.Sehrawat, Advocate, Ld. Counsel for plaintiff
(ii) Sh. Rajeshwar Kumar Gupta, Advocate, Ld. counsel for defendant.
CS No. 736/2017 (517871/2016)
Mukesh Kumar v. Anita Vaishnav
Page no.1 of 47
SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT TO SELL
DATED 09.04.2009
J U D G M E N T:
1. The present suit has been filed by the plaintiff against the defendant, seeking specific performance of the agreement to sell dated 09.04.2009 (in short, the said agreement) directing the defendant to perform their part of the terms & conditions of the said agreement by executing sale deed and conveyance deed in favour of plaintiff in respect of the flat no.181, 8th Floor, Plot No.3A, Sector22, Dwarka, PhaseI, New Delhi110045 (in short, the suit flat) and further directing defendant to do all such acts, actions and deeds as would be necessary and proper for the fulfillment and execution of the said agreement in favour of plaintiff.
2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiff for filing the present suit, are as under:
(i) It is averred that plaintiff had filed the suit for specific performance of the said agreement executed by defendant in favour of plaintiff for the sale of suit flat alloted to defendant by the Naval Technical officer Cooperative Group Housing Society Ltd. (in short, the society) for total sale consideration of ₹ 50 lakhs.
(ii) It is averred that in the month of January, 2009, defendant approached plaintiff representing that she has a membership no.564 CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.2 of 47 of the said society and she was to be allotted a 3 bedroom flat from the said society covering the area of 1400 sq.ft consisting of drawing cumdining space, 2 bathrooms and a kitchen and she has paid the requisite fees, amount and money to the said society for purchase of the suit flat to be allotted to her.
(iii) It is averred that defendant for her bonafide need and requirement offered to plaintiff to sell the suit flat to the defendant along with her membership rights in the said society for a total consideration of ₹50 lakhs. Defendant had also informed plaintiff that she had obtained loan from HDFC Bank to make the payment for the suit flat and she had been paying the equal monthly installment of the said loan and that plaintiff would not have to bear any loan incidence on the suit flat to be allotted to defendant by the said society.
(iv) Plaintiff, on representations of defendant, agreed to purchase the suit flat to be allotted to defendant from the said society along with her membership no.564 and her all rights arising out of the said membership for a total consideration of ₹50 lakhs. Pursuant thereto, defendant signed and executed an agreement to sell dated 24.01.2009 (in short, the said agreementI) for sale of her membership right along with the suit flat for total sale consideration of ₹50 lakhs. The said agreementI was also signed by Sh.Surya Nath Singh, husband of defendant as an attesting witness. Plaintiff at the time of signing the said agreementI, paid a sum of ₹5 lakhs to defendant and defendant had acknowledged the receipt of the same on the said agreementI. Plaintiff in performance of the said agreementI paid to defendant the amount towards further sale consideration for purchase of the membership rights and the suit flat, to be allotted to defendant by the said society, details of which are as under: CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.3 of 47 Date Amount (₹) 26.01.2009 40,000.00
03.02.2009 4,60,000.00
- 3,00,000.00 25.03.2009 6,00,000.00 25.03.2009 50,000.00 31.03.2009 10,50,000.00 (₹2 lakhs in cash and ₹8.50 lakhs by way of cheque bearing no.975652 dt.30.03.2009 drawn on PNB, Goyla Khurd, New Delhi) Total 30,00,000.00
(v) It is averred that plaintiff had paid a total sum of ₹30 lakhs to defendant as on 31.03.2009 and defendant had acknowledged the same by signing on the back of the said agreementI, admitting that she has received the said amount in the ways and manner as mentioned above.
(vi) It was further decided by the parties that the remaining amount of ₹20 lakhs would be paid by plaintiff after the actual allotment of the suit flat by the society to defendant and at the time of execution and registration of the sale deed of the suit flat. It was further agreed that defendant shall execute irrevocable power of attorneys and other sale documents for transfer of her membership right in the said society in favour plaintiff.
(vii) It is averred that defendant and plaintiff executed the said agreement dated 09.04.2009 for sale of membership right of defendant in the society and for sale of the suit flat to be allotted to defendant by the said society against her membership no.564. The total sale consideration of the suit flat was ₹50 lakhs. Defendant had already received an amount of ₹30 lakhs from plaintiff and defendant had acknowledged the receipt of the said amount in the said CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.4 of 47 agreement. The said agreement was also signed as an attesting witness by Sh.Surya Nath Singh, husband of defendant and he has also participated and consented for sale of the suit flat. Apart from the said agreement, defendant had also executed following documents:
(a) A notarized receipt dated 09.04.2009 acknowledging the receipt of ₹30 lakhs from plaintiff.
(b) A WILL in favour of plaintiff with respect to the flat to be allotted to defendant by the society against her membership no.564.
(c) An irrevocable notarized GPA dated 09.04.2009 in favour of plaintiff granting plaintiff all powers including power to sell and to seek the allotment and possession of the suit flat to be allotted by the society to defendant.
(d) A notarized Special Power of Attorney in favour of plaintiff granting the power to execute conveyance deed with respect to the flat to be allotted by the society.
(e) A notarized Special Power of Attorney in favour of plaintiff granting the power to seek and collect possession of the suit flat from the society.
(f) A notarized irrevocable indemnity bond dated 09.04.2009 in favour of plaintiff.
(g) A notarized possession letter dated 09.04.2009
(h) A notarized, signed and executed request letter, resignation letter and nomination all addressed to the Secretary, of the said CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.5 of 47 society. By the said letter, defendant had tendered her resignation and nominated plaintiff to be the member of the said society in place of defendant. Defendant had also given her no objection for allotment of the suit flat.
(i) A notarized affidavit of defendant acknowledging the execution of agreement to sell with respect to the flat to be allotted by the society in lieu of membership no.564 of defendant.
(viii) It is averred that plaintiff after entering into the said agreement has been making periodic inquiries as to the actual date of allotment of the suit flat to defendant, and, defendant on every occasion informed that the said society is in the final stages of completion of the construction and that the suit flat would be allotted to defendant very soon. The defendant never gave any actual date or time for the allotment of the suit flat by the said society.
(ix) It is averred that plaintiff has come to know that defendant has repeatedly defaulted in payment of the amount of the cost of the suit flat to be allotted to her and that many reminders has been sent to defendant. Plaintiff was further informed that, in case of default, the managing committee of the said society had the power to expel defendant from the membership of the said society and cancel her allotment.
(x) It is averred that plaintiff was shocked to learn that defendant has defaulted in payment of her contribution towards the cost of the suit flat. Thereafter plaintiff met defendant and informed in this regard.
Initially defendant feigned ignorance and informed that she was not in a position to pay any amount to the said society towards the cost of the suit flat to be allotted to her. The defendant further informed that CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.6 of 47 she has also not paid the monthly installments to IDBI Bank towards the loan availed by her for purchase of the suit flat.
(xi) It is averred that as per the terms of the said agreement, the suit flat would be free of all charges, liens and encumbrances and that plaintiff was able to pay the balance sum of ₹20 lakhs at the time of registration of sale deed of the suit flat to be allotted to defendant by the said society.
(xii) It is averred that plaintiff was informed by defendant that a sum of ₹4,36,000/ was due against her to the said society towards the cost of the flat. Plaintiff, on 24.12.2009, paid further sum of ₹4,36,000/ by way of demand draft bearing no.102833 directly in favour of the said society. Plaintiff has also paid an amount of ₹70,000/ in cash to defendant on 23.12.2009 as demanded by defendant for making payment towards satisfaction of the loan availed by her from IDBI Bank. Defendant had acknowledged the receiving of ₹4,36,000/ given by way of demand draft and further ₹75,000/ in cash by signing and issuing a receipt dated 24.12.2009. Plaintiff further paid a sum of ₹60,000/ to defendant on 04.03.2010 duly acknowledged by defendant on the said reciept. Later on, plaintiff paid a sum of ₹1,30,000/ directly into the bank account of defendant in order to avoid further default in the payment of monthly installment of the loan availed by defendant from bank.
(xiii) It is averred that plaintiff has time and again tried to ascertain the date of allotment of the suit flat by the said society, however, no information was provided by defendant to plaintiff.
(xiv) It is averred that on inquiry plaintiff came to know that the said society was allotting and giving the possession of the suit flat against membership no.564 on 17.02.2011. Plaintiff was informed that suit flat has been allotted to defendant against her membership and the said CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.7 of 47 society informed that it was for defendant to make necessary transfer of the suit flat to plaintiff.
(xv) It is averred that plaintiff approached defendant to seek the information with respect to the allotment of the suit flat but defendant showed ignorance and failed to provide any information with respect to the suit flat.
(xvi) Plaintiff served a legal notice dated 25.02.2011 upon defendant. After receipt of legal notice, defendant gave possession of the suit flat to plaintiff in the first week of March, 2011 without any electricity connection.
(xvii) It is averred that plaintiff received a letter dated 07.03.2011 from the side of defendant thereby cancelling the said agreement, WILL, power of attorney etc. executed by defendant in favour of plaintiff.
(xviii) It is averred that plaintiff has been informed that defendant has now offered the suit flat for sale. The defendant cannot unilaterally cancel the said agreement whereas, plaintiff has performed his part of obligation by paying a sum of ₹37,01,000/ as part sale consideration. Plaintiff has always been and is ready and willing to perform his obligations and promises arising out of the said agreement.
(xix) It is averred that after receiving letter plaintiff approached defendant, however, she refused to meet plaintiff. Plaintiff had requested defendant in good faith to comply with the said agreement but defendant flatly refused to perform the terms of said agreement, hence, the present suit is filed against defendant.
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3. After filing of the suit, summons for settlement of issues was issued to the defendant. Pursuant to service of summons, defendant appeared and filed her written statement, wherein the contents of the plaint were denied. It is submitted that suit for specific performance i.e. for discretionary relief cannot be allowed and the same is liable to be dismissed. The said proposed agreementI is not even signed by plaintiff nor he made any payment under the said agreementI. Plaintiff, at the time of signing the said agreement made no payment and as such payment details are left blank in para (1) page 4 of the said agreement as well as in the receipt dated 09.04.2009 as such suit is liable to be dismissed.
4. It is submitted that the contract alleged to be performed by defendant is also hit by the provisions of Section 17 of the Specific Relief Act 1963 as the defendant admittedly is not yet legally allotted the suit flat under the provisions of Section 77 of Delhi Cooperative Societies Act, 2003 (in short, the said Act) read with rule 89 of the Delhi Cooperative Societies Rules, 2007. It is further submitted that suit of plaintiff is barred by the provisions of Section 83 of the said Act. Plaintiff has made contradictory statements in his suit for specific performance. There is no bonafide reason to purchase the suit flat by plaintiff since he is working as a property dealer and kept the flat for speculation. Plaintiff falsely stated in his notice dated 25.02.2011 as well as in the suit that the defendant handed over the keys of the suit flat to him.
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5. It is further submitted that the said agreement was a contingent contract, signatories of which have reciprocal liability. It is an agreed term of the said agreement that plaintiff shall make the balance payment of ₹20 lakhs to defendant while there is no such readiness and willingness on his part. Plaintiff cannot be granted the relief as claimed in the suit. The suit of plaintiff seeking discretionary relief is false and baseless and is barred by law and it is prayed that same may be dismissed under Section 35A of CPC.
6. It is further submitted that the said agreement is hit by the provisions of Section 17 of the Specific Relief Act, as the defendant has yet not been alloted the suit flat under the provisions of the said Act. The plaintiff acted fraudulently and mis represented to defendant, who was made to believe, that plaintiff will abide by the terms and conditions of the said agreement, however, despite repeated requests made by defendant and notice/letter dated 03.08.2010, 18.08.2010 and 16.09.2010 sent to plaintiff, he failed to perform his part of the said agreement. The relief of specific performance of the said agreement is discretionary relief under Section 20 of the Specific Relief Act and this court is not bound to grant the said relief, therefore, the plaintiff is not entitled to said relief by way of his conduct.
7. It is further submitted that the said agreement is contingent in nature in as much as the allotment of the suit flat was an uncertain event, dependent on the act of the authority i.e. the said CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.10 of 47 society and the DDA, therefore, the said agreement could not be enforced by virtue of Section 32 and Section 52 of the Indian Contract Act.
8. It is submitted that the approximate area of the suit flat is 1400 sq. feet for which the sale consideration was fixed for ₹ 50 lakhs, however, the area of the suit flat as on date is 1581 sq. feet, therefore, there is escalation of the cost of the suit flat for the reasons being the area exceeded the earlier stipulated area as well as the cost of construction of the material, for which the plaintiff initially agreed upon, but, lateron, the plaintiff did not honour his undertaking.
9. It is further submitted that the plaintiff never made any cash payment to defendant as alleged, and the receipt was obtained by the plaintiff by misrepresentation to pay the same at the time of final binding contract. Plaintiff has not paid the amount of ₹ 50 lakhs at the time of signing of the said agreementI. The cheque of ₹ 1 lakhs drawn on ING Vysya Bank, Dwarka, New Delhi was dishonoured on 29.01.2009. There was no said agreementI in the eyes of law in as much as no payment was made on 24.01.2009 when the said agreement was allegedly executed between the parties. The said agreement has no legal consequences by virtue of Section 62 of the Indian Contract Act. The cheque no. 975652 dated 20.03.2009 was issued by the plaintiff for a sum of ₹ 2 lakhs whereas, it is claimed to be the cheque of ₹8.5 lakhs, otherwise, the said cheque was also dishonoured on 08.04.2009.
CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.11 of 47
10. It is further submitted that the plaintiff has made no cash payment either on 24.01.2009 or 31.03.2009 or any other dates, therefore, there is no binding contract between the parties. The two cheques have already been dishonoured by the bank of the plaintiff, therefore, the said agreementI is unlawful. The two cheques have been dishonored, therefore, the plaintiff cannot be stated to have given the amount of ₹ 30 lakhs to defendant in terms of said agreementI. The plaintiff has made contradictory pleadings, in as much as no reasons has been assigned as to why the said agreement was executed after entering into the said agreementI.
11. It is further submitted that all the sale documents are void ab initio and not legal, therefore, the same are not binding upon the defendant. The plaintiff as per clause 2 of the GPA dated 09.04.2009 was liable to deposit the balance cost of the suit flat including the escalated cost on account of exceeding of the area of suit flat, however, plaintiff failed to perform his part of the contract. All the sale documents were got executed by plaintiff from defendant by way of mis representation and playing fraud upon defendant, therefore, they are void ab initio, otherwise also, defendant had already cancelled all the said documents.
12. Plaintiff filed replication to the written statement of defendant thereby, denying all the allegations and has reiterated the contents of plaint.
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13. On the basis of pleadings of the parties, following issues were framed on 06.04.2019:
(i) Whether the plaintiff is entitled to decree of specific performance in terms of agreement to sell dated 09.04.2009? OPP
(ii) Whether the suit is not maintainable in view of the provisions of Delhi Cooperative Societies Act, 2003 and rules thereunder? OPD
(iii) Whether there is no legal, binding and conclusive agreement between the parties? OPD
(iv) Whether the plaintiff is entitled to the discretionary relief under Section 18 of the Specific Relief Act? OPD
(v) Relief.
14. In terms of order dated 11.02.2021, issue no.4 was re framed which reads as under: "Whether the plaintiff is not entitled to the discretionary relief under Section 16 of the Specific Relief Act?"
15. Thereafter, matter was listed for recording of plaintiffs evidence. In support of his case, the plaintiff examined himself as PW1 and has testified through affidavit by way of evidence Ex. PW1/A. Plaintiff has relied upon the following documents:
i) Agreement to sell dated 24.01.2009 is Ex. PW1/1,
ii) Copy of the receipt is Ex. PW1/2,
iii) The documents i.e. GPA, indemnity bond, SPA, possession letter and affidavit which are Ex. PW1/3 (Colly).
iv) Photocopy of the demand draft dated 24.12.2009 is Mark A,
v) No objection certificate is Ex. PW1/4,
vi) Request letter is Ex. PW1/5,
vii) Resignation letter is Ex. PW1/6,
CS No. 736/2017 (517871/2016)
Mukesh Kumar v. Anita Vaishnav
Page no.13 of 47
viii) Affidavit dated 09.04.2009 is Ex. PW PW1/7,
ix) Resignation letter is Ex. PW1/8,
x) Receipt dated 24.12.2009 is Ex. PW1/11
xi) Deposit slip dated 11.05.2010 is Ex. PW1/13
xii) Deposit slip dated 19.06.2010 is Ex. PW1/14,
xiii) Legal notice dated 07.03.2011 is ex. PW1/15,
16. Plaintiff has examined one Sh. Deshpal, who has deposed on the lines of plaintiff and has relied on the following documents :
i) Authority letter is Ex. PW2/1, ii) Certified copy of the share certificate is Ex. PW2/2, iii) Statement of account of all the members is Ex. PW2/3,
17. Plaintiff has also examined one Sh. Arvind Kumar Singh, who has deposed on the lines of PW1 and PW2 and has deposed through affidavit by way of evidence is Ex. PW3/A. He has relied upon statement issued by IDBI Bank which is Mark B. Sh. Vishwanath Singh, Manager of the Society has been examined as PW4. Who has relied on photocopy of receipt and payment for the year ending 31.03.2011 which is Ex. PW4/A. Thereafter, plaintiffs evidence was closed and matter was listed for recording of defendants evidence.
18. However, defendant has submitted that she do not want to lead and defence evidence in the matter. Vide separate statement of the defendant recorded on 11.02.2021, the defendants evidence was closed.
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19. I have heard the counsel for the parties and with their assistance have gone through the record.
20. My issue wise findings are as under :
ISSUE NO. 1 & 4Issue no. 1 is whether the plaintiff is entitled to decree of specific performance in terms of said agreement and issue no. 4 is with regard to entitlement of the plaintiff with the discretionary relief under Section 18 of the Specific Relief Act (It is not under Section 18 but under Section 20 of the Specific Relief Act).
The onus to prove these issues is on the plaintiff and plaintiff appeared as PW1 and testified through his affidavit by way of evidence Ex. PW1/A and reiterated the contents of the plaint and, inter alia, testified that he entered into the said agreement for purchase of the suit flat in the said society for a sale consideration of ₹ 50 lakhs. The defendant, for her bona fide need and requirement offered plaintiff to sell the suit flat to be allotted to defendant along with her membership rights in the society for ₹ 50 lakhs.
21. Plaintiff further testified that defendant earlier signed the said agreementI for sale of her membership numbered 566 in the said society for the sale consideration of ₹ 50 lakhs in terms of Ex. PW1/1. The plaintiff, after execution of the said agreementI further paid an amount of ₹ 25 lakhs to defendant on various dates as mentioned in CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.15 of 47 the receipt, signed and executed by defendant on 13.03.2009 on the backside page of the said agreementI dated 24.01.2009.
22. The defendant along with the said agreement executed the other said documents namely GPA, indemnity bond, SPA, possession letter and affidavit etc. Ex. PW1/3 (colly). The remaining sale consideration of ₹ 20 lakhs was to be paid. The defendant has not given the dues of the said society, hence demand notice was issued by the said society and plaintiff further paid an amount of ₹ 11,16,000 to defendant and the said society and out of the said amount ₹ 4,36,000 was paid to the said society directly through demand draft dated 24.12.2009 and an amount of ₹ 75,000 was paid to defendant on 23.12.2009 and ₹ 60,000 was paid on 04.03.2010 in terms of the receipt Ex. PW1/11.
23. PW1 further testified that plaintiff paid an amount of ₹ 3,40,000 to the said society vide cheque no 22759 dated 29.12.2009 and, thereafter, an amount of ₹ 96,000 through cheque no 22758 dated 29.12.2009, through the account of Arvind Kumar Singh to the defendant. The plaintiff also paid the amount of ₹ 1,30,000 in cash in the account of defendant maintained with the Oriental Bank of Commerce at Mahipalpur, Delhi and the counterfoil of the same is Ex. PW1/13 and Ex. PW1/14. The plaintiff has paid an amount of ₹ 41,16,000 to the defendant and further willing to pay the remaining amount of the total sale consideration of ₹ 50 lakhs. The defendant after receipt of the said amount issued NOC, request letter and CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.16 of 47 affidavit addressed to the said society which are placed on record through Ex. PW1/4 to Ex. PW1/10.
24. PW1 further testified that plaintiff issued a legal notice dated 25.02.2011 (Ex. PW1/15) as defendant started avoiding plaintiff and was unwilling to perform her part of the agreement and the said notice was duly replied by defendant through reply dated 07.03.2011 cancelling all the legal documents executed in favour of the plaintiff.
25. During the crossexamination, PW1 testified that he filed the suit in respect of the suit flat in terms of the said agreementI. He has paid ₹ 50 lakhs in advance. When the said agreementI was executed an amount of ₹ 41,16,000 was already paid against the agreed amount of ₹ 50 lakhs. He paid ₹ 10,50,000 in cash on 09.04.2009 (₹ 8,50,000 in cash and ₹ 2,00,000 by way of cheque). He had paid the amount in the month of February March 2009, however, the details are not on record. He further testified that the receipt in respect of amount of ₹ 10,50,000 is already on record.
26. He admitted that he is not paid any amount to defendant on 09.04.2009. He further admitted that on 09.04.2009 and amount of ₹ 30 lakhs was paid to defendant but he did not remember as to how much amount was paid on 09.04.2009. He admitted that he is working as a property dealer and he has purchased the suit flat for investment purposes and not for the personal use. He admitted that he is working CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.17 of 47 as a partner with Arvind Kumar Singh is in property dealing business. He admitted that he has obtained a loan of ₹ 4,36,000 and further also another loan of an amount of ₹ 3,40,000 from Arvind Kumar. He admitted that on the date of agreement, since there was no allotment, it was future allotment and, therefore, it was a concluded agreement.
27. He admitted that he had issued a cheque of ₹ 1 lakh in favour of defendant on 24.01.2009 which was dishonoured and volunteered that he has paid the amount in cash in lieu of the said cheque. He did not remember the date when he paid the cash amount of ₹ 1 lakh to the defendant in lieu of the dishonoured cheque. He had paid ₹ 1 lakh in February March 2009. He admitted there is no document on record that the defendant has obtained any loan from HDFC Bank in respect of the suit flat. He cannot say whether membership in the said society is verified by the Registrar of Cooperative Societies, as yet.
28. He admitted that there is no document on record with regard to the suit flat of defendant, if any, allotted by the said society. He has filed the case with respect to the membership of the defendant in the said society. He admitted that no membership of any housing society can be transferred without prior permission of the authorities concerned. He cannot say whether there is any bar for entering into an agreement to sell of the membership of any housing society. He admitted that all the sale documents namely GPA, Will, agreement to CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.18 of 47 sell, possession letter are executed only after making the necessary payment to the seller.
29. He admitted that notice Ex. D5 was issued by his counsel under his instructions and his counsel has mentioned therein that extra payment has been made. PW1 admitted that in para no. 4 of the legal notice Ex. D5, it is written that an amount of ₹ 9,36,000 was paid to defendant in excess to the agreed amount of ₹ 50 lakhs. PW1 stated that he has never issued any instruction to his counsel for writing the same. He admitted that an amount of ₹ 3,40,000 as detailed in document MarkB is not the extra payment, but it is within the agreed amount. He admitted the document Ex. D1, Ex. D2, Ex. D3, Ex. D4, Ex. PW1/D1, Ex. PW1/D2, Ex. PW1/D3, and Ex. PW1/D4. He admitted that the balance amount is still payable by plaintiff to defendant. He admitted that he has not placed on record any document to show his readiness and willingness for making the payment of balance amount to the defendant.
30. It may be noted that plaintiff have proved the sale documents including the said agreementI as well as the said agreement dated 09.04.2009. However, defendant has admitted the said agreement but denied the contents thereof. Defendant has denied the other documents including the receipt dated 09.04.2009, however, in para no. 22 of the written statement and para 2(v) & 2 (ix) of the preliminary objections of the written statement, she has admitted that CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.19 of 47 the said agreement was a contingent contract, signatories of which have a reciprocal liabilities and alll the sale docuemtns are cancelled. It is an agreed terms of the said agreement that the plaintiff shall make the balance payment of ₹ 20 lakhs to defendant while there is no such readiness and willingness on his part.
31. A bare perusal of these paragraphs of the written statement depicts that the defendant has admitted the receipt of amount of ₹ 30 lakhs in terms of the said agreement, which fact is further fortified from the issuance of legal notice by defendant to plaintiff namely, legal notice dated 03.08.2010 Ex. PW1/D1, notice dated 18.08.2010 (Ex. PW1/D2) and notice dated 16.09.2010 (Ex. DW1/D3) whereby, she has stated that the plaintiff is not coming forward to perform his part of the contract and she is unwilling to sell out her rights of membership no. 564 detailed in the said agreement due to failure of the plaintiff to adhere to the verbal commitment made for securing of all outstanding payments within the stipulated time. The defendant through legal notice has also cancelled all the said sale documents including the said agreement meaning whereby the defendant has admitted the receipt of amount of ₹ 30 lakhs from plaintiff in terms of the said agreement.
32. It may also be noted that in the said agreementI, it was agreed that the suit flat will be purchased by the plaintiff from the defendant for an amount of ₹ 50 lakhs, out of which ₹ 5 lakhs was paid on 24.01.2009 in as much as ₹ 4 lakhs was paid in cash and ₹ 1 lakhs CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.20 of 47 was paid through cheque no. 222161 dated 24.01.2009, drawn on ING Vysya Bank Limited. The further amount of ₹ 5 lakhs was agreed be paid on or before 31.01.2009 and a sum of ₹ 20 lakhs was to be paid on or before 25.03.2009 and the balance amount of ₹ 20 lakhs was to be paid after getting physical possession of the suit flat. On the backside of the said agreementI, there are various amounts received by defendant by appending her signature thereon, therefore, it can be safely concluded prima facie, that the defendant has received an amount of ₹ 30 lakhs or before 09.04.2009. However, the plaintiff in his crossexamination has admitted that cheque bearing no. 222161 for an amount of ₹ 1 lakh which was given by plaintiff to defendant, was dishonoured in terms of the letter dated 26.07.2011 (Ex. D1) issued by Oriental Bank of Commerce. Plaintiff also admitted that cheque of ₹ 2 lakhs was dishonoured which was given by plaintiff to defendant in terms of letter issued by Oriental Bank of Commerce dated 22.07.2011 Ex. D4.
33. On the basis of admission of plaintiff/PW1 of the document Ex. D1 and D4 it is hereby concluded that this amount is to be detected from the amount of ₹ 30 lakhs allegedly paid by plaintiff to defendant, meaning thereby plaintiff has proved that on or before 09.04.2009 has paid an amount of ₹ 27 lakhs to the defendant.
34. Apart from that, plaintiff has claimed to have paid an amount of ₹ 41,16,000 to the defendant. In this regard, plaintiff has CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.21 of 47 relied upon the following documents :
i. the receipt dated 24.12.2019 Ex. PW1/11 ii. Cheque of ₹ 4,36,000 Mark A dated 24.12.2009 iii. Reciept issued by Oriental Bank of Commerce whereby an amount of ₹ 20,000 was transferred in the account of defendant on 11.05.2010 (Ex PW1/13).
iv. Receipt dated 19.06.2010 issued by Oriental Bank of Commerce, whereby an amount of ₹ 40,000 was transferred in the account of defendant by one Gopal Singh (Ex. PW1/14).
35. In this regard, it may be noted that the receipt dated 24.12.2019 Ex. PW1/11, whereby an amount of ₹ 5,71,000 was given by plaintiff to defendant i.e. 4,36,000 through pay order bearing no. 102833 dated 24.12.2009 and ₹ 75,000 paid in cash on 23.12.2009, bears the signature of defendant appended on 24.12.2009. Thereafter, defendant received an amount of ₹ 60,000 on 04.03.2010, and appended her signature on the revenue stamp affixed on Ex. PW1/11 on the same date. The defendant has not put any suggestion to the plaintiff/PW1 during his crossexamination that the receipt did not bear her signatures on the revenue stamps affixed on Ex. PW1/11. Therefore, the contents of this receipt Ex. PW1/11 are proved by plaintiff and plaintiff has proved that he has paid an amount of ₹ 4,36,000 + 75000 + 60,000= ₹ 5,71,000/ to the defendant.
36. So far as the amount detailed in Ex. PW13 and Ex. PW1/14 i.e. for an amount of ₹ 20,000 and ₹ 40,000 through which the said amounts was transferred in the account of defendant by plaintiff is concerned, suffice is to say that the said receipt did not depict that the CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.22 of 47 said amount has been deposited by plaintiff in the account of defendant in as much as the said amount is got deposited by one Gopal Singh and plaintiff failed to lead any evidence as to how said Gopal Singh was authorised by him to deposit said amount in the account of defendant.
37. So far as the payment of ₹ 3,40,000 through cheque no. 22759 dated 29.12.2009 and the payment for an amount of ₹ 96,000 made by Arvind Kumar to defendant for and on behalf of plaintiff is concerned, suffice is to say that plaintiff has failed to provestatement of account issued by IDBI Bank, Dwarka (Ex. PW1/12) in as much as the same was marked as Mark A and even PW2 Arvind Kumar Singh who appeared for and on behalf of plaintiff has failed to prove that the said amount had been transferred from his account or the amount of plaintiff to the account of defendant or the said society.
38. PW3 A.K. Singh has testified that he has paid an amount of ₹ 1,30,000 to plaintiff and the same was deposited in the account of defendant. PW3 further testified that apart from this, the amount of ₹ 3,40,000 and ₹ 96,000 was transferred by him through cheques in the account of defendant maintained in the said society. He admitted that he has paid an amount of ₹ 4,36,000 to defendant for and on behalf of plaintiff from his account and the said amount was paid to the plaintiff by him as a loan. He has also paid an amount of ₹ 1,30,000 as loan to plaintiff. The plaintiff even sought an opportunity for leading additional CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.23 of 47 evidence and despite getting the opportunity to lead additional evidence, no evidence has been led to prove that the amount of ₹ 4,36,000 i.e. 3,40,000 paid through cheque and ₹ 96,000 also paid through cheque was transferred into the account of defendant for and on behalf of plaintiff by PW3 A.K. Singh, therefore, the plaintiff has proved on record that he has paid the amount to the defendant in the following manner:
i) ₹ 27 lakhs through the said agreement/receipt,
ii) ₹ 4,36,000 paid by draft/PO on 24.12.2009 (Ex. PW1/11)
iii) ₹ 75,000 cash on 23.12.2009 (Ex. PW1/11)
iv) ₹ 60,000 cash on 04.03.2010 (Ex. PW1/11) The total amount comes to ₹ 32,71,000/
39. Now the question arises as to whether the plaintiff was ever ready and willing to perform his part of the agreement in as much as apart from having capacity to pay the remaining sale consideration, he was willing to get the sale executed in his favour from the defendant.
40. In this regard learned counsel for the defendant has argued that plaintiff was having no capacity to pay the sale consideration and, therefore, defendant had already issued notices/letter and proved that defendant has cancelled the sale documents allegedly executed by defendant in favour of plaintiff. In support of his contention the ld. counsel for the defendant has relied upon the case law Vimlesh Kumari Kulshrestha v. Sambhaji Rao (2000) 5 SCC 58, N.P. Thirugnanam v.
CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.24 of 47 Dr. R. Jagan Mohan Rao & Ors 1995 (5) SCC 115, Asha Verma & Anr. v. Monika Singla, AIR 2019 Del 109, Saradamani Kandappan vs S. Rajalakshmi & Ors, 2011(12) SCC 18, Shri Baldev Behl vs Bhule, 2012(132) DRJ 247.
41. Ld. Counsel for the defendant has further contended that The plaintiff has failed to lead any evidence as to how he was having the capacity to pay the remaining sale consideration to defendant. Apart from that, the agreement to sell is uncertain, therefore, specific performance cannot be granted on account of uncertainty of the said agreement. The plaintiff was supposed to show that he was having the capacity to pay the remaining sale consideration from date of entering into the said agreementI till passing of the decree. The plaintiff was supposed to prove his financial capacity by way of strictly proved, meaning thereby, there must be clinching documentary evidence in this regard that buyer was having the capacity to pay the remaining sale consideration to the seller.
42. It is further contended that if no defence has been laid by the defendant, even then the aspect of readiness and willingness has to be specifically proved by the plaintiff under section 16 of Specific Relief Act, so that the court may be empowered to exercise a decree of specific performance in favour of the plaintiff and against the defendant passing the decree of specific performance of the said agreement by virtue of the provision of Section 20 of the Specific Relief Act.
CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.25 of 47
43. Before proceeding further, I would like to note down the ratio of law laid down by Hon'ble Superior Courts with regard to the legal requirements as provided under Section 16 of Specific Relief Act as to whether the plaintiff was ever ready and willing to perform his part of the contract. In this regard the observations made by Hon'ble Supreme Court in N.P. Thirugnanam (supra) in para no. 5 are relevant, which are reproduced as under :
"It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under s.20 of the Specific Relief Act 1963 (for short, 'the Act'). Under s.20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be 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 alongwith 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 CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.26 of 47 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 ready and was always ready and willing to perform his part of contract."
44. So far as the ratio of Saradamani Kandappan(supra) is concerned. Though not quoted, reliance is placed upon judgment passed by Hon'ble High Court of Delhi in Sarabjeet Singh v. Anup Sharma 2016(231) DLT 414 wherein, the ratio of judgment passed by Hon'ble Supreme Court in Saradamani Kandappan(supra) was reiterated and the relevant para no. 12 is reproduced as under :
"12.
...........
43. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam (supra):
(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.
(ii) The courts will apply greater scrutiny and strictness when considering whether the purchaser was "ready and willing" to perform his part of the contract.
CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.27 of 47
(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the timelimits stipulated in the agreement. Courts will also 'frown' upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.
......"
45. So is the ratio of the judgment Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy (Dead) Thr. LRs and Ors, (2019) 14 SCC 220, wherein, it was observed by Hon'ble Supreme Court that not only the averment in the plaint regarding readiness and willingness is sufficient for grant of decree of specific performance, otherwise the plaintiff is bound to prove that he was having capacity to pay the balance in consideration for purchase of the suit property.
46. So far as the issue of readiness and willingness is concerned, the proof of readiness necessarily means demonstration of financial capacity or ability to pay balance sale consideration and take the sale deed. When a person on oath states in the witness box that he is ready with the requisite fund he must produce some evidence to prove his possession of the required funds. The explanation appended CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.28 of 47 to Section 16 of Specific Relief Act makes it clear that the proof of requisite funds did not mean he should produce the currency before the court or should deposit the money in court. But at the same time, mere a statement on oath that he is having the requisite funds would also do not prove possession of funds. The said proof has to be necessarily proved by way of evidence. The reason being, if, the payment is to be made in cash i.e. by handing over currency, the currency is a documentary evidence. The explanation makes it clear that to prove readiness the plaintiff need not produce the currency before the court or either the balance consideration is to be deposited in the court such the position is also evidenced by documentary evidence which is not necessary by virtue of the explanation appended to Section 16 of the Specific Relief Act.
47. It may also be noted that the money does not exist in vacuum. The money has to be necessarily in the form of physical object. It is in the nature of document, money deposited in the bank, money is in the nature of security and money being capable of being raised from borrowing. The money could be raised by sale of property movable or immovable. When a person claiming that he possessed the sufficient funds he has to produce so much documents in evidence which proved his capacity to raise the funds or he possesses the funds. But the documents which the plaintiff can produce to prove his capacity may be a passbook issued by the bank where he has The balance sale consideration ready for payment. If he has invested for CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.29 of 47 money by way of securities, he has to produce those security before the court to show that any point he could encash the same and pay the balance sale consideration. Similarly, if he has the money in the fixed deposit, in a bank, deposit receipt is a proof of ability to pay the balance sale consideration. The plaintiff intends to borrow money from a nationalised bank or from his employer or from any other financial institution, it has to be demonstrated by producing a request to such financial assistance in writing, sanctioning of the said loan which has to be necessarily in writing. These are only illustrative. There may be several other modes by which the requested funds could be raised but all of these instances are evidenced by documentary evidence. The Hon'ble Apex court had an occasion to consider the contention that where there is no denial of readiness and willingness by the defendant either in the written statement or in the evidence there is obligation on the part of plaintiff to produce documentary evidence to prove his readiness and willingness.
48. It may be noted that section 16(c) of the Specific Relief Act is an exception to the general rules that each material proposition as per order 14 rule 1(3) must be affirmed by one party and denied by the other party which shall form the subject matter of the issue in as much as unless a person avers and proves that he has performed and was always ready and willing to perform the essential terms of the contract, which are to be performed by him, he is not entitled to enforce the specific performance of the contract. In other words before CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.30 of 47 a court grant a decree of specific performance, this mandatory recommendation of the statute has to be complied with by the plaintiff irrespective of the defence taken by defendant. Only if this mandatory requirement is complied with, the civil court has jurisdiction to grant a decree of specific performance. If this requirement is not met, the civil court has no jurisdiction to give a decree of specific performance.
49. Therefore, it is obligatory on the part of the court, that, in every suit for specific performance to frame an issue regarding readiness and willingness to perform the essential terms of the contract by the plaintiff irrespective of the fact whether defendant has specifically denied the allegations in the plaint regarding readiness and willingness to perform or not. Therefore, what follows is that plaintiff who comes to the court seeking decree of specific performance must aver and prove that he has performed or is always ready and willing to perform the essential terms of the contract which are to be performed by him. Whether the defendant denies those allegations or not in his written statement, the court is under an obligation to frame an issue regarding readiness and willingness on the part of the plaintiff to perform the terms of the contract. Unless the plaintiff proves or satisfy the court that he was ready and willing to perform his part of the contract, the court have no jurisdiction to pass a decree of specific performance. Though not quoted, reliance is placed upon judgment passed by Hon'ble Delhi High Court in Jinesh Kumar Jain v. Smt. Iris Paintal (2012) ILR 5 Delhi 678 and in para no. 12 & 13 it has CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.31 of 47 been observed as under :
"12. The undisputed position which emerges on record is that the plaintiff has miserably failed to prove his readiness and willingness i.e. his financial capacity with respect to making available the balance sale consideration of 44,00,000/. No Income Tax Returns of the plaintiff have been filed for any of the years including post the filing of the suit. The plaintiff has similarly failed to file his bank accounts to show availability with him of amounts to pay balance consideration of ₹ 44,00,000/. The plaintiff has in fact not even filed details of his assets in any form to show his financial capacity to pay the balance consideration of ₹44,00,000/. In my opinion, merely stating in legal notices or replies that the plaintiff is ready to perform his part of the contract is neither here nor there in as much as the issue of readiness is a crucial aspect which requires that by clearcut evidence, which can be believed by the Court, the plaintiff proves his financial capacity. The plaintiff has wholly failed to do so in the present case. I therefore hold that the plaintiff has totally failed to prove the financial capacity to pay the balance consideration and, hence it cannot be said that the plaintiff was and continued to be ready and willing to perform his part of the obligation under the agreement to sell at all points of time i.e. for the period of 45 days after entering into the agreement to sell, after the period of 45 days till the filing of the suit, and even thereafter when evidence was led. I therefore hold that the plaintiff has failed to comply with the requirement of Section 16(c) of the Specific Relief Act, 1963, and therefore, the plaintiff is not entitled to the relief of specific performance.
13. Now let us assume that the agreement to sell dated 26.9.1988 was not hit by the 1972 Act; the defendants were guilty of breach of their obligation to perform their CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.32 of 47 part of contract; and that the plaintiff was ready and willing to perform his part; even then, can it be said that the plaintiff is yet entitled to the discretionary relief of specific performance...... "
50. With the above said principles of law, I would like to advert to the facts of the present case. It may be noted that as discussed in the foregoing paras of this judgment the plaintiff has paid an amount of ₹ 32,71,000, however, the amount of about ₹ 17,29,000 is yet to be paid by plaintiff to defendant. Apart from that the question whether the suit flat had not allotted to the defendant and whether the only membership allotted in favour of the defendant would be subject matter of the said agreement, for which the specific performance can be sought is to be decided under Issue no. (ii) and (iii). However, at this stage, for adjudication of Issue no. (i) this court presumes that the said agreement is valid and legal one and the suit flat could be subject matter of the sale.
51. Admittedly, the plaintiff has pleaded that he was ever ready and willing to perform his part of the contract but he has admittedly not placed any document in this regard on record that at the time of entering into the said agreementI or the said agreement or at subsequent stage till filing of the suit or, recording of his evidence or till passing of the decree in his favour, he is having the remaining sale consideration to the tune of ₹ 17,29,000 to be paid to defendant so that defendants may be asked to execute the sale deed in respect of CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.33 of 47 the suit flat in his favour.
52. PW1 has candidly admitted that he has not placed on record any document to show that he was having ready money to show his readiness and willingness to perform his part of the agreement. In the absence thereof, the statement of PW1 is nothing more than bald averment having no weight. Such selfserving statement without proof of any financial resources cannot be relied upon to write a finding that plaintiff was ever ready and willing to perform his part of the contract.
53. The plaintiff has also not produced any income tax record or the bank statement to support his plea of financial capacity to show his readiness and willingness to perform his part of the agreement, therefore, mere fact that the plaintiff has pleaded that he is having the balance amount to be paid to defendant as remaining consideration of the suit flat is not sufficient to discharge or prove his financial capacity in the facts of the present case to hold that plaintiff was ever ready and willing to perform his part of the agreement.
54. So far as the remaining payment of sale consideration to the tune of (₹ 50,00,000 ₹ 32,71,000) i.e. the amount of ₹ 17,29,000 is concerned, suffice is to say that plaintiff has not placed on record any document to prove that he was having the capacity to pay the said amount right from the day of entering into the said agreementI and CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.34 of 47 thereafter, subsequent agreement i.e. the said agreement till the date of filing of this suit and thereafter, till the recording of his testimony in as much as PW1/plaintiff has admitted in his crossexamination that he has not placed on record any document to show his capacity to pay the remaining sale amount.
55. It is also relevant to note that the plaintiff is not entitled for the decree of specific performance of the agreement against the defendant for the additional reason that the plaintiff had to prove in terms of Section 16(c) of the Specific Relief Act that plaintiff was always ready and willing to perform his part of the agreement. The expression 'readiness' reference to the financial capacity of the plaintiff at relevant time including pendentelite, and "willingness" means the continued intention at all point of time of the plaintiff to seek specific performance and not warranted to get the alternative relief of recovery of money of damages assuming that the defendant is guilty of the breach of contract. In this regard, the issue is clinched in favour of defendant because the plaintiff admittedly has not placed on record any correspondence that he has sought specific performance of the agreement, however, defendant time and again asked plaintiff to collect his money as he failed to perform his part of the contract.
56. In fact, the defendant has issued the legal notice to plaintiff, as detailed in the foregoing paras, for the payment of balance sale consideration, and plaintiff has admitted these letters in his cross CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.35 of 47 examination. Therefore, the plaintiff not only failed to tender the balance amount of the consideration but also failed to respond to the legal notices sent by defendant requesting to make the balance payment, which was not complied with by the plaintiff. The plaintiff, as such is guilty of breach of contract and once plaintiff is guilty of breach of contract, it has to be held that plaintiff is not entitled for the specific performance as the specific performance is relief arises on the breach committed by defendant under an agreement to sell and when plaintiff himself is guilty of breach of contract, plaintiff cannot succeed in the suit for specific performance, which is necessarily predictated on the breach of the seller/defendant. Admittedly, plaintiff has not lead any evidence to show his financial capacity from the date of entering into the agreement till filing of the suit, therefore, this court can safely hold that plaintiff was not always ready to enter into the sale deed because plaintiff has failed to prove his financial capacity for a substantial period w.e.f 2009 till the filing of the suit.
57. Therefore, it is seen that plaintiff is guilty of breach of agreement, plaintiff has not been found to be always not willing to perform his part of the contract. The plaintiff has not been found always ready to perform his part of the contract and thus, for all these reasons the suit of the plaintiff is liable to be dismissed by deciding the issues under discussion in favour of defendant and against the plaintiff. In view of the above said facts, as discussed above, the plaintiff is not found entitled for a decree of specific performance. Accordingly, I hold CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.36 of 47 that plaintiff is guilty of breach of contract and is not entitled to decree of specific performance.
58. During the course of arguments, the contention of ld. counsel for the plaintiff is that, even if, plaintiff is not entitled for specific performance of the said agreement, the plaintiff is entitled for the return of the money paid in terms of the said agreement. On the other hand, ld. counsel for defendant no. 1 has argued that there is no pleading in this regard, therefore, without any pleadings in this regard, therefore, without pleadings no such relief can be granted as per section 22 of the Specific Relief Act.
59. Before proceeding further, I would like to reproduce Section 22 of the Specific Relief Act, reads 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 CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.37 of 47 refused.
(2) No relief under clause
(a) or clause (b) of subsection (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 subsection (1) shall be without prejudice to its powers to award compensation under section 21."
60. Admittedly, there is no prayer either in the pleadings or prayer clause that benefit of Section 22 of the Specific Relief Act may be given to the plaintiff and the amount paid in terms of the said agreement be returned along with interest. However, defendant was having knowledge that plaintiff is seeking specific performance of the said agreement through which the defendant allegedly was given an amount of ₹ 32,71,000 as the sale consideration of the suit plot, therefore, this part of the pleadings, was very much known to defendant, that if, plaintiff found entitled in proving the said agreement, plaintiff will be, at least, entitled to the said amount. In this regard, though not quoted, reliance is placed in Anuja Sharma vs Memo Devi & Ors, in RFA No. 157/2019, wherein in para no. 5,6,9,11 & 12 it has been observed as under :
"5. No doubt, the provision of Section 22 of the Specific Relief Act does provide that where a relief is not claimed with respect to refund of earnest money or advance CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.38 of 47 price/deposit, the courts will not grant such a relief. The provision of Section 22 of the Specific Relief Act however allows amendment of the plaint at any stage of the proceedings to seek refund of the amount paid under an agreement to sell. In the facts of the present case, there was no specific prayer in the plaint with respect to the refund of the price. The issue is that whether nonmention in the plaint by writing and seeking refund of the advance price paid results in a complete prohibition for the courts to refund the price received by a seller under an agreement to sell, once it is found that the agreement to sell does not have to go through and the suit for specific performance is being dismissed.
6. In order to interpret the provision of Section 22, it is necessary to note as to what is the object and requirement of a pleading to be filed by a party. Pleading is defined under Order VI CPC. A pleading will include a plaint and a written statement. What is a plaint is specified under Order VII CPC, and what is a written statement is specified under Order VIII CPC. It is now a settled law by virtue of a catena of decisions of the Hon'ble Supreme Court that object of a pleading is to give notice of a case to the other party. The object of giving notice of a case to the other party is to ensure that the other party can meet the case. On this principle, the appellate courts have allowed issues which are pure questions of law even at the appellate stage, even in cases till the Hon'ble Supreme Court, if the issue of law goes to the root of the matter, and even if there is no specific pleading, but the issue does arise from the admitted facts and the pleadings on record. Thus, the trial court as also the appellate courts can, depending on facts of a particular case, allow a pure issue of law to be raised, at any stage of the legal proceedings. This is being stated by this Court because when the object of Section 22 of the Specific Relief Act is seen, and of the CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.39 of 47 requirement of seeking a relief with respect to the advance price paid under an agreement to sell to be included in the plaint, it is found that the object of stating/praying in a pleading for refund of the advance price and/or earnest moneys paid is to allow a defendant/seller to take up a defence as to why the advance price and/or earnest money should not be repaid. Obviously, defence of a defendant/seller would be that the advance price and/or earnest money is not to be repaid because it is forfeited or liable to be forfeited either because of a specific term of the agreement to sell or because the defendant/seller has suffered a loss and consequently for the loss suffered by the defendant/seller, the advance price and/or earnest money paid under the agreement to sell has to be forfeited by applying the provision of Section 74 of the Indian Contract Act, 1872.
XXXX
9. Therefore in my opinion the word 'pleading' in Section 22 cannot be strictly interpreted in the sense that the requirement being only of a written pleading and nothing else, and in law the expression pleading under Section 22 of the Specific Relief Act should be read only and essentially to mean notice of a party‟s case to the other side.
11. Therefore, in my opinion the expression 'pleading' which has to be interpreted with respect to Section 22 of the Specific Relief Act, has to be interpreted only to mean that whether the opposite party had notice of the case of the other side, and in the present case, the appellant/defendant no. 1 did have notice of the case of the respondent/plaintiff for seeking the refund of the advance price and/or earnest money, inasmuch as, the appellant/defendant no. 1 took up a specific defence of CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.40 of 47 being entitled to forfeit the amount received under the subject Agreement to Sell.
12. Therefore, I may note that the trial court, in the facts of the present case, has rightly applied the provision of Order VII Rule 7 CPC, as this provision entitles every court, depending on the facts of each case, to give reliefs which otherwise arise from the position of the facts as found on record in terms of the pleadings and evidence in the case."
61. A bare perusal of the ratio of the law laid down in the above said judgment is that even if the averments regarding the relief as provided under Section 22 of the Specific Relief Act are conspicuous by its absence but if, pleadings of plaintiff are in very much knowledge of the defendant it will be a due compliance of the provisions of Section 22 of the said Act. However, the defendant has notice of the sum and substance of the pleadings of the plaintiff that plaintiff is seeking performance of the said agreement. The defendant has also notice of the case of the plaintiff for seeking recovery of the money paid in terms of the said agreement. Therefore, plaintiff's case was very much in the knowledge of defendant and as such there was due compliance of the provisions of Section 22 of the Act.
62. In view of the above, the plaintiff is entitled for return of the amount of ₹ 32,71,000. So far as interest is concerned, the said amount is pending with the deceased since 2009, therefore, interest of justice would be met, if the plaintiff is granted interest @ 9% per CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.41 of 47 annum from the date of execution of the said agreement 09.04.2009.
ISSUE NO. 2 & 363. These issues are overlapping each other and are disposed off by this common order. The contention of ld. counsel for the defendant is that the suit is barred by the provisions of the said Act in as much as the sale of the suit flat is prohibited under the provision of the said Act, therefore, the suit is not maintainable by virtue of the provisions of the said Act. It is further contended that there is no legally binding contract between the parties in as much as the defendant was allotted a membership in the said society and the suit flat was yet to be allotted to the defendant and this fact has already been to be incorporated in the said agreementI and the said agreement. The suit flat is unidentifiable as per the policy of the DDA, therefore, there is no bounding of said agreement between the parties in respect of the suit flat.
64. It may be noted that restrictions on transfer of share or interest or member of a cooperative society are imposed by virtue of section 79 of the said Act which is reproduced as under :
"79. Restriction on transfer of share or interest of a member Subject to the provisions of this Act, in the case of a cooperative housing society, no transfer of share or interest of a member or the occupancy right, except the transfer to his heir or a nominee, shall be effective, unless
(a) the previous permission of the cooperative housing society has been obtained * by the transferor;
CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.42 of 47
(b) the dues of the cooperative housing society are paid or transferred to the transferee with the consent of the co operative housing society;
(c) the transferor vacates and gives possession of the premises to the transferee; and
(d) the transferee applies and acquires membership of the cooperative society :
Provided that the transfer of share or interest in respect of lease hold properties shall be governed by the terms of the lease."
A bare perusal of this provision depicts that no transfer of share or interest or a member or the occupancy right until and unless the conditions therein, are satisfied and plaintiff has not placed on record any material to show that the prohibition imposed by Section 79 of the said Act is not applicable to the facts and circumstances of the said agreement whereby the suit plot was sought to be transferred. Therefore, the said agreement is barred by the provisions of the said Act and as such the said agreement is not a binding legal agreement.
65. It may further be relevant to observe here that the suit plot was not identifiable property, therefore, could not be the subject matter of the said agreement by virtue of the mandate of law laid down by Superior Courts. Though not quoted reliance is placed upon Braham Singh v. Sumitra (2011) 182 DLT 350, wherein in para no. 6 it has been observed as under:
"6.The agreement, alleged to have been executed by defendant No. 1 in favour of the plaintiff on 20.09.2006, CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.43 of 47 does not identify and in fact could not have identified the property subject matter of the agreement for the simple reason that no plot of land had been allotted to the defendants by that time. At the time this agreement is alleged to have been executed in favour of the plaintiff, it was not known in which colony plot would be allotted to the defendants, when the allotment would take place what would be the size of the plot and which particular plot would be allotted to the defendants. Therefore, the property, subject matter of the agreement, was incapable of identification at the time the agreement is alleged to have been executed. It is, therefore, difficult to deny that the agreement dated 20.09.2006, does not constitute a valid and concluded contract for sale of an immovable property to the plaintiff."
To the same effect is the ratio of Satish Kumar v. Karan Singh, 2016 (4) SCC 352, wherein in it has been observed as under :
"4. The plaintiff's case in the plaint is that a decision was taken by the Delhi Development Authority for allotment of a plot of land measuring 400 Sq.yds. in favour of the defendantrespondent. It was pleaded that in the year 1995 the defendant had desired to sell his right in the said recommendation letter which was to be allotted by the DDA in favour of the defendant. It was further pleaded that the defendant agreed to sell his right in the aforesaid recommendation letter and the plot to be allotted at a price of ₹4,60,000/.
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6. During the pendency of the suit in the trial court the original defendant who was an old person died and his legal representative was substituted. The original CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.44 of 47 defendant as also the legal representative contested the suit denying and disputing the alleged receiptcum agreement and stated that no decree for specific performance can be passed. The trial court held that the receiptcumagreement is a legal and valid agreement to sell and shall be enforced by passing a decree for specific performance. The High Court on the basis of evidence adduced by the parties affirmed the finding recorded by the trial court.
7. Prima facie, we are of the view that both the trial court and the High Court have completely failed to consider the provisions of Specific Relief Act and the principles laid down by this Court in catena of decisions as to the requirement of law for passing a decree for specific performance.
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11. In the instant case both the Trial Court and the High Court have completely overlooked and failed to appreciate the following facts:
(a) The receipt + agreement dated 6.1.1995 is a document by which the defendant alleged to have received a sum of ₹2,30,000/ against the alternative plot in question which the DDA recommended to give to the defendant. The said plot will in turn will be given by the defendant to the plaintiff after a lease was executed in favour of the defendant by the DDA;
(b) The total premium amount settled by the said agreement in respect of the plot was ₹4,60,000/ whereas the defendant deposited a sum of ₹8,13,389/ with the DDA for the allotment of the said plot;
CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.45 of 47
(c) The plaintiff pleaded in his plaint that the defendant had agreed to sell his rights in the recommendation letter and the plot to be allotted thereunder to the plaintiff for a consideration of ₹4,60,000/;
(d) Although the right to get the plot was agreed to be sold to the plaintiff by the defendant for ₹4,60,000/ but the suit was valued at ₹ 6,77,262.75p. being the rate fixed by the DDA.
12. On the basis of these admitted facts the Trial Court erroneously held that the receiptcumagreement is an enforceable contract and on that finding decreed the suit which was affirmed by the High Court.
13. It is interesting to note that the High Court has noticed the fact mentioned in para 24 of trial court judgment that during the pendency of the lis DDA allotted the plot in question in favour of the deceased father of the defendant (original plaintiff) by executing a lease deed putting a condition that the plot in question will remain non transferable for a period of ten year Para 24 of the trial court judgment is quoted herein below: "It is stated on oath by Umed Singh (DW1) that the DDA allotted plot in dispute to his deceased father on certain terms and conditions, which were embodied in the lease deed. One of such conditions was that suit will remain non transferable for a period of ten years.
14. In spite of the aforesaid fact noticed by the High Court, that the land so allotted to the defendant is not transferable for a period of 10 years, the High Court failed to hold that a decree for specific performance cannot be passed."
CS No. 736/2017 (517871/2016) Mukesh Kumar v. Anita Vaishnav Page no.46 of 47 In view thereof, these issues are also decided in favour of the defendant and against the plaintiff.
Relief :
66. In view thereof, the suit of the plaintiff is "decreed" as follows :
(a) Decree in the sum of ₹32,71,000/ (Rupees Thirty Two Lakhs Seventy One Thousand Only) along with pendentelite and future interest @ 9% p.a. w.e.f. 09.04.2009 till its realization, is passed in favour of plaintiff and against defendant.
(b) Plaintiffs is also entitled to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
signed by
VIJAY
Announced in the open court VIJAY KUMAR
on 24th day of May 2022. KUMAR DAHIYA
Date:
DAHIYA 2022.06.06
16:50:27
+0530
(V.K. DAHIYA)
ADDL. DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
CS No. 736/2017 (517871/2016)
Mukesh Kumar v. Anita Vaishnav
Page no.47 of 47