Delhi District Court
Sh. Surinder Pal vs Smt. Tej Kaur on 3 February, 2020
THE COURT OF SH. NITISH KUMAR SHARMA
CIVIL JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI
CS SCJ NO. 610430/16
Date of institution of suit : 23.12.2010
Date of reservation of Judgment : 03.02.2020
Date of passing of Judgment : 03.02.2020
Sh. Surinder Pal
S/o Sh. Sardool Singh
R/o A17, West Patel Nagar
New Delhi110008.
........Plaintiff
Vs.
1. Smt. Tej Kaur
W/o Late Sh. Charan Singh
2. Ms. Ranjeet Kaur
D/o Late Sh. Charan Singh
3. Sh. Inderjeet Singh
S/o Late Sh. Charan Singh
All residents of 1455, Garth Street
Unit 21, Hemilton, Ontario, Canada
Also at :
459, Valermo Dr
Toronto Ont M8W 2M5, Canada
.......Defendants
SUIT FOR SPECIFIC PERFORMANCE
JUDGMENT
1. Brief facts of the present case as per plaint are :
(a) That the defendant no.1 approached the plaintiff in the year 1979 and represented that the property bearing no. A17, West Patel Nagar, New Delhi CS SCJ No 610430/16 Surender Singh Marwah vs Tej Kaur & Ors. 1/7 08 ( hereinafter referred to as 'suit property') was exclusively owned by her deceased husband I.e Late Sh. Charan Singh and also represented that Sh. Charan Singh had since expired on 22.12.1971, and that defendant no.1 to 3 were only legal heirs being his wife, daughter and son respectively and they were entitled to the suit property left behind by Late Sh. Charan Singh.
(b) That the defendants claimed to be in actual physical possession of the suit property and represented that they are interested to sell the suit property and accordingly negotiations took place between the defendants and plaintiff and an agreement to sell dated 14.02.1979, was executed amongst defendant no.1 & 3 for self and as an attorney for defendant no.2 of one side and plaintiff of other side in terms whereof defendants had agreed to sell the suit property to plaintiff for the total sale consideration of Rs. 40,000/.
(c) That out of sale consideration of Rs. 40,000/, a sum of Rs. 30,000/ was paid by plaintiff vide pay orders bearing no. 207618 and 207619, for the sum of Rs. 20,000/ and Rs. 10,000/ respectively, both dated 14.02.1979 drawn on Syndicate Bank, Shadipur Depot, New Delhi against a receipt duly issued by defendants to plaintiff and since then the plaintiff has been in its actual physical possession of the suit property as the possession was handed over to plaintiff by defendants in terms of their part performance.
(d) That defendant no.2 was stationed at Canada and she promised to the plaintiff that she would thereafter visit India and would executed conveyance documents in favour of plaintiff pursuant to the said agreement to sell as also other documents were required to be executed so as to convey and effect mutation of the suit property in favour of plaintiff. Thereafter defendants had assured the plaintiff through various communications that they would execute documents of conveyance in favour of plaintiff, however failed to do so.
(e) That the legal notice dated 21.09.2010 has been sent to defendants in CS SCJ No 610430/16 Surender Singh Marwah vs Tej Kaur & Ors. 2/7 this regard however same has been returned back with the remarks "moved". Hence this suit.
2. By way of present suit the plaintiff has prayed for the following reliefs :
1. Decree for specific performance directing the defendants to specifically perform and fulfill their obligations contained in the agreement to sell dated 14.2.1979 and for that purpose to execute the deed of conveyance in favour of plaintiff or his nominee after obtaining requisite permissions for and on behalf of defendants.
2. Costs f the suit.
3. Any other relief.
3. Defendants have been served by way of publication dated 14.10.2013, however none had appeared on behalf of defendants. Hence they were proceeded exparte and the matter was listed for PE.
4. In order to prove his case, plaintiff examined himself as PW1 and has tendered in evidence his duly sworn in affidavit as Ex. PW 1/A and has relied upon following documents :
1. Agreement to sell dated 14.2.1979 Ex.PW 1/1
2. Attorney Ex. PW 1/1A
3. Receipt dated 14.2.1979 Ex. PW 1/ 2
4. Correspondence sent by MCD Ex. PW 1/3 ( colly)
5. Letters written by defendants Ex. PW 1/ 4 ( colly)
4. Legal notice dated 21.09.2010 alongwith Ex. PW 1/5 postal receipt and envelope Besides himself, plaintiff has also examined witnesses
1. Sh. Sunil Dutt, LDC, Land and Development office, Nirman Bhawan, New Delhi as PW 2.
CS SCJ No 610430/16 Surender Singh Marwah vs Tej Kaur & Ors. 3/7
2. Sh. Guru Prasad Bhagia as PW 3 who has tendered in evidence his duly sworn in affidavit as Ex. PW 3/A. PW2 has exhibited copy of lease and conveyance deed as Ex. PW 2/1.
5. Thereafter vide statement made by Ld. counsel for plaintiff, the evidence was closed on 20.08.2015 and the matter was listed for exparte final arguments.
6. I have heard the final arguments adduced by Ld. counsel for plaintiff and perused the record.
7. At the outset, it is pertinent to note that the plaintiff is seeking specific performance of an agreement to sell entered into between the plaintiff and defendant no.1 in the year 1979. The present suit has been instituted in the year 2010. At this point it is pertinent to note that Article 54 of the Limitation Act, provides for the period of limitation for instituting a suit for specific performance As per Article 54, the limitation period for filing a suit for specific performance commences either when there is a date fixed for specific performance or where no date is fixed then when the plaintiff has notice of refusal of performance by the defendant and the period of limitation is theree years from such commencement.
8. Perusal of agreement to sell shows that no time was fixed for performance of the agreement, thus the relevant date for the purpose of limitation in the present case would be the date when the plaintiff has notice of refusal by defendant no.1.
9. The plaintiff avers that communications were made to the defendant no.1 for specific performance of the agreement to sell but the defendant no.1 kept assuring that the agreement would be performed. The communication put on records is in the form of letters and are Ex. PW 1/ 4 (colly.). Perusal CS SCJ No 610430/16 Surender Singh Marwah vs Tej Kaur & Ors. 4/7 of said letters show that communication pertains to the year 1979 wherein the defendant no.1 had asked to make the payment of balance consideration before executing the necessary documents. It has been contended that the said communication does not amount to 'refusal' but to only 'modification' of the terms. For the abovesaid, the plaintiff has relied upon the judgments as under :
1. Dharam Pal vs Shashi Kant Saini 2011 (122) DRJ 334
2. Lov Raj Kumar vs Dr. Major Daya Shanker and Ors.
E.A. Nos. 68,71,98 , 134 and 135 of 1985
3. Madina Begum & Ar. Vs Shiv Murti Prasad Pandey & Ors.CA NO. 6687/2016
4. Ahmadsahab Abdul Mulla (2) ( Dead) vs . Bibijan and Others CA No. 4190 of 2000
5. PTC India Limited vs Central Electricity Regulatory CA No. 3902 of 2006
10. Even considering the said averment to be correct, there is nothing on record to show that the said modification has been accepted by the plaintiff or that a notice for the performance with amended stipulation was sent to the defendant until the year 2010. The legal notice sent to the defendant in the year 2010 was received back with the report of "left".
11. Though the plaintiff's assertion has been that he has been in possession of suit property since 1979 as "partperformance" was done by defendants, yet the notice for specific performance was given in the year 2010 only. There is no explanation to offer qua delay of this much time. The plaintiff's possession of suit property might be protected under Section 53 A of Transfer CS SCJ No 610430/16 Surender Singh Marwah vs Tej Kaur & Ors. 5/7 of Property Act, yet for the specific performance of agreement, the plaintiff is required to prove his bonafide. Assuming the suit of the plaintiff to be within limitation, the element of readiness and willingness of the plaintiff has also to be ascertained right from the day of entering into agreement of sell. The present agreement to sell was entered into in the year 1979 for a sale consideration of Rs. 40,000/ of which Rs. 30,000/ had been paid then. In the year 2010, the plaintiff sent a legal notice to pay the remaining Rs. 10,000/ and asking the defendants to execute sale deed in his favour. It is common knowledge that the prices of real estate have undergone a drastic change and it is only in the year 2010, that the plaintiff has shown his willingness and readiness to pay the balance amount. No evidence has been led on behalf of plaintiff to show that he was ready or had the financial capacity right from the date of entering into agreement to sell. 12 Financial capacity in terms of Judgment of the Hon'ble Supreme Court in N.P. Thirungnanam Vs. R.Jagan Mohan Rao (1995) 5 SCC 115 has to be proved to be existing right from the date of entering into agreement to sell till the date of disposal of the suit and in this regard, the plaintiff has failed. No income tax returns, bank account details etc. have been placed on record to show the financial capacity of the plaintiff at the time of entering into the agreement to sell and till the year 2010.
Another important aspect that requires consideration is the stipulation number 3 of the agreement to sell which is reproduced as hereunder :
" That the first party has executed a Power of Attorney in favour of Shri Kuldip Singh brother of the second party in order to facilitate the completion of this transaction and undertake to send a general power of attorney in favour of Sh. Kuldip Singh in order to facilitate the completion of the transaction and to do all acts CS SCJ No 610430/16 Surender Singh Marwah vs Tej Kaur & Ors. 6/7 deeds and things in matters relating to this property. "
13. The said Kuldeep Singh is brother of the plaintiff and neither he has been made a party nor examined as a witness even despite the fact that he had signed the agreement to sell as a witness. The other witness to the said agreement to sell I.e Sh. Guru Prasad Bhagia, PW3 had been examined. It is settled that relief of specific performance is a discretionary relief and as observed by the Hon'ble High Court of Delhi in M.K. Chhabra vs Damanjit Kaur RFA No. 2/2019 that the courts ought to apply greater scrutiny and strictness when considering whether the purchaser was "ready and willing" to perform his part of contract and the courts will also frown upon suit which are not filed immediately after the breach/refusal.
14. In the instant case, no substantial steps were taken by the plaintiff after entering into agreement to sell till the year 2010 and also the plaintiff has not made the attorney of defendant no.1 a party to the suit and has not served a legal notice upon him, which aspect gains prominence as the defendants are stationed in Canada and the attorney of defendant is none other than the brother of the plaintiff and presumably a resident of India only. The plaintiff, thus, could not persuade this court to grant the relief of specific performance. Accordingly the suit stands dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
NITISH Digitally signed
by NITISH
KUMAR KUMAR SHARMA
Date: 2020.02.03
SHARMA 17:07:48 +0530
Pronounced in the open court (Nitish Kumar Sharma)
today i.e on 03.2.2020 Civil Judge01(West)/Delhi
CS SCJ No 610430/16 Surender Singh Marwah vs Tej Kaur & Ors. 7/7