Delhi District Court
Sh. Sunil Sood vs M/S. Shri Krishna Builders on 16 April, 2018
IN THE COURT OF SH. M.P. SINGH: ADJ03, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
CS No. 228/16
New CS No. 614416/16
In the matter of:
Sh. Sunil Sood
S/o Sh. Shanti Sagar Sood
Previously Resident of:
J218, Third Floor, Kalkaji
New Delhi19 ...... Plaintiff
Versus
1. M/s. Shri Krishna Builders
Through its Partner Sh. Gagan Mehta
K88, Kalkaji New Delhi19
2. Sh. Gagan Mehta
s/o Late Sh. S.P. Mehta
K88, Kalkaji, New Delhi19
3. Smt. Joginder Kaur (Since deceased, through the following LRs)
w/o Late S. Joginder Singh
i) Sh. Satnam Singh (Son)
s/o Late Sh. Joginder Singh
ii) Ms. Harbhajan Kaur @ Manjeet Kaur (Daughter)
w/o Sh. Nirmal Singh
d/o Late Sh. Joginder Singh
iii) Ms. Sheetal Kaur (Daughter)
Wife of Late Sh. Manjeet Singh
d/o Late Sh. Joginder Singh
CS No. 228/16 Page No. 1 of 42
iv) Sh. Hardev Singh (Son)
S/o Late Sh. Joginder Singh
v) Iqbal Singh (Son)
s/o Late Sh. Joginder Singh
vi) Amarjeet Singh (Son)
s/o Late Sh. Joginder Singh
vii) Late Sukhdev Singh (Predeceased son of Joginder Kaur)
s/o Late Shri Joginder Singh
Represented by:
a) Smt. Kuldeep Kaur (Daughterinlaw)
Widow of Late Sh. Sukhdev Singh
b) Gurmeet Singh (Grandson)
s/o Late Sh. Sukhdev Singh
c) Kamaljeet Kaur (Grand Daughter)
d/o Late Sh. Sukhdev Singh
d) Malkeet Singh (Grandson)
s/o Late Sh. Sukhdev Singh
All residents of K23A
Kalkaji, New Delhi. ..... Defendants
SUIT FOR SPECIFIC PERFORMANCE, RECOVERY OF
RENT/DAMAGES/PENALTY AND FOR PERMANENT AND
MANDATORY INJUNCTIONS
Suit instituted on 13.02.2007
Judgment pronounced on - 16.04.2018
JUDGMENT
1. Defendant no.3 Smt. Joginder Kaur wife of late S. Joginder Singh was the owner of property no. K23A, Kalkaji, Delhi (for CS No. 228/16 Page No. 2 of 42 short the 'suit property'). Plaintiff was a tenant and in physical possession of 1st floor of the suit property at monthly rental of Rs. 1,050/.
2. Defendant no.1 M/s Shri Krishna Builders, through defendant no.2, entered into a Collaboration Agreement dt. 12.09.2005 (Ex. PW1/DX) with defendant no.3 whereby and whereunder the former agreed to carry out development, construction and completion of a fresh building on the suit property. For this purpose, defendant no.3 agreed to place the suit property at the complete disposal of defendants no.1 and 2.
3. Thereafter a tripartite agreement styled as 'Memorandum of Understanding' (for short 'MOU') dt. 10.10.2005 (Ex. PW1/2) came to be executed between the plaintiff, defendant no.1 through defendant no.2, and defendant no.3. Simultaneously, the plaintiff and defendant no.1 through defendant no.2 also executed an Agreement to Sell and Purchase (Ex. PW1/1) dt. 10.10.2005 qua 1st floor of the suit property.
4. Relevant clause of the MOU (Ex. PW1/2) are as follows:
1. That the First Party shall construct Basement, Ground Floor, First Floor, Second Floor & Third Floor on the said premises with 'A' Class construction after obtaining the plan sanctioned from the MCD/concerned department.
2. That on the assurance of the First Party and Third Party the Second Party has agreed to CS No. 228/16 Page No. 3 of 42 handover the physical vacant possession of the entire First Floor of the said property to the First Party, for construction/development, within one month after signing this MOU and the First Party shall complete the above construction within a period of 12 months from the date of handing over the possession.
3. That the First Party has agreed to sell the Entire First Floor of the said property to the Second Party and the Second Party has agreed to purchase the Entire First Floor consisting of two bedrooms, drawing/dining, kitchen and two toilets as per Annexure "A" alongwith proportionate ownership rights of land underneath after construction, for a total sale construction of Rs. 17,00,000/ (Rupees Seventeen Lacs only) out of which the First Party has received a sum of Rs.
1,00,000/ (Rupees One Lac only) from the Second Party, as advance for purchase of Entire First Floor of the said property, and the owner/third party has also confirmed the same.
4. That the First Party shall complete the construction of the said property within a period of 12 months and till such period the construction is completed the possession of the Entire First Floor of the said property is given to the Second Party (after receiving the full amount of the Floor) the First Party shall arrange suitable accommodation for the Second Party till such period, half rent will be paid by the First Party during the construction period only.
5. That the First Party will pay half rent to the Second Party till the construction is completed. In case the First Party is not in a position to complete the construction within abovesaid stipulated period for any reason, whatsoever, CS No. 228/16 Page No. 4 of 42 then the First Party will pay the entire rent amount instead of paying half rent to the Second Party and will pay a penalty of Rs. 10,000/ per month.
6. xxxx
7. That the balance amount of Rs. 16,00,000/ (Rupees Sixteen Lac only) will be paid by the Second Party to the First Party within 15 days after completion of construction at the time of execution/registration of Sale Deed in favour of the Second Party in the office of the Sub Registrar, New Delhi.
8. The First Party and the Third Party shall not have any rights, interests or liens on the Entire First Floor of the said property henceforth. The Second Party shall be its sole owner henceforth for all intents and purposes, subject to full and final payment of the above mentioned of Rs.
16,00,000/ (Rupees Sixteen Lacs only) and the Sale Deed will be executed in his favour after receiving full and final payment if Second Party fails to make the payment as per settlement his advance money will be forfeited and deal will stand cancelled.
5. As would be evident, in terms of the MOU (Ex. PW1/2), defendant no.1 had to complete the construction within 12 months and till such period the construction was completed, it (defendant no.1) agreed to provide rented accommodation to the plaintiff and for which it (defendant no.1) had to bear half the rentals. Pursuant thereto, plaintiff shifted to 3 rd floor of property No. G48, Kalkaji, New Delhi at monthly rental of Rs.7,000/. As CS No. 228/16 Page No. 5 of 42 would be further evident from the MOU (Ex. PW1/2), in the event of construction not being completed within the stipulated period of 12 months, M/s Krishna Builders (defendant no.1) was under an obligation to pay the entire rentals to plaintiff in addition to penalty of Rs.10,000/ per month. Out of the total sale consideration of Rs.17 lacs for the 1 st floor, plaintiff made cheque payment of Rs.1 lac as advance/earnest money. The balance of Rs.16 lacs was agreed to be repaid within 15 days after completion of construction at the time of execution/registration of sale deed.
6. Plaintiff avers that construction on the 1st floor was to consist of two bed rooms, drawing/dining, kitchen and two toilets as per document 'Annexure A' (Mark A) which included 1 st floor site plan (Mark B) in respect of the nature and extent of construction that was to be carried out. As per the plaintiff, construction was to be completed in terms of 'Annexure A' (Mark A) on all the floors that provided for identical material, design and construction. Plaintiff alleges that defendants no.1 and 2 miserably failed to carry out the construction in terms of the MOU/Contract inclusive of 'Annexure A' (Mark A) and the 1 st floor plan which stipulated with that 1st floor would consist of two bed rooms, drawing/dining, kitchen and two toilets. Plaintiff also alleges that 1st floor construction is not in accordance with the specifications and it comprises of much inferior and substandard CS No. 228/16 Page No. 6 of 42 material, design and quality as compared to the other floors.
7. Plaintiff goes on to state that possession was required to be handed over to him latest by October 2006, which was not done. And instead in December 2006 defendants no.1 and 2 asked him to bear for another 34 months with the request that he must vacate the present tenanted premises as possession thereof had to be handed over to the landlord and that he must (plaintiff) arrange for another residential accommodation for 34 months. Plaintiff thereupon left the tenanted premises which defendants no.1 and 2 had provided him. He took another rented accommodation at J218, 3rd floor, Kalkaji, Delhi at monthly rental of Rs.5,000/ with effect from 15.12.2006. Plaintiff then approached defendants no.1 and 2 for reimbursing the rent for period from 15.12.2006 onwards together with penalty of Rs.10,000/ as agreed under the contract, but they refused to honour their commitments and instead threatened him that they would not give 1st floor to him. Plaintiff then approached defendant no.3 with the request to intervene and get the contracts honoured by defendants no.1 and 2. Defendant no.3, however, handed over photocopy of a false notice dt. 20.12.2006 (Ex. PW1/DX2) addressed to the plaintiff by defendant no.1 that was never served upon him (plaintiff).
8. Plaintiff alleges that defendants having failed to carry out the construction in accordance with the undertaking, are CS No. 228/16 Page No. 7 of 42 resorting to all sorts of illegal and undue pressure and dilatory tactics to frustrate his (plaintiff's) right qua the suit property. Plaintiff avers that he was always ready and willing to perform his part of contract. He alleges that defendants no.1 and 2 are carrying out full construction on other floors ignoring the 1 st floor. Plaintiff also alleges that defendants no.1 and 2 have failed to obtain any completion certificate from MCD and yet they made defendant no.3 occupy the ground floor in violation of MCD sanction letter. On these averments plaintiff seeks the following reliefs.
(I) A decree for specific performance of the contract 10th October 2005 and Memorandum of Understanding dated 10th October, 2005 in plaintiff's favour and against the defendants directing the defendants to complete the construction as per the above said agreements arrived at between the plaintiff and defendants in respect of contract dt. 10.10.2005 and the Memorandum of Understanding dated 10.10.2005 and hand over the possession of complete 1st floor portion comprising of two bed rooms, drawing, dining, two toilets and Kitchen in property No. K 23A, Kalkaji, New Delhi.
(II) A decree for recovery of rent at the rate of Rs.
5000/ per month with effect from 01.12.2006 to 28.02.2007 in plaintiff's favour and against the defendants, in terms of the abovesaid contract and the memorandum of understanding dt.
10.10.2005, in respect of the above said suit property.
CS No. 228/16 Page No. 8 of 42(III) A decree of damages at the rate of Rs.10,000/ per month with effect from 01.12.2006 to 28.02.2007 in plaintiff's favour and against the defendants and also directing the defendants to continue to pay the said damages at the rate of Rs. 10,000/ per month till the handing over possession of the 1st floor portion, as mentioned in prayer clause (I) above, in respect of the above mentioned suit property, (IV) A decree of mandatory injunction in plaintiff's favour and against the defendants thereby directing the defendants, their agents, servants, employees etc. to complete the entire construction on the 1st floor of property bearing No. K23A, Kalkaji, New Delhi in accordance with the contract and the MoU dt. 10.10.2005, mentioned above and hand over its possession to the plaintiff forthwith and not to further raise any construction in the said building until and unless the entire construction is completed on the 1 st floor and possession thereof is handed over to the plaintiff forthwith, and, (V) A decree for permanent injunction in plaintiff's favour and against defendants thereby restraining defendants, their agents, partners, associates, attorneys or anybody else on their behalf from in any manner from selling, alienating, handing over possession of the complete 1st floor portion in property No. K23A, Kalkaji, New Delhi, and / or from creating any sort of third party charge, lien, in any manner whatsoever, and from further raising any sort of construction in the said building in any manner whatsoever, with costs of the suit.
9. The defendants filed their joint written statement. Their CS No. 228/16 Page No. 9 of 42 stand is as follows: I) Pursuant to execution of MOU dt. 10.10.2015 (Ex.PW1/2), defendant no.3 and plaintiff handed over vacant possession of the suit property to defendants no.1 and 2 in the first week of December, 2005. Defendant no.1 complied with all the terms and conditions of MOU dt. 10.10.2005 (Ex. PW1/2) and provided a suitable and alternate accommodation to plaintiff at G48, Kalkaji, Delhi. Construction of the suit property was completed within the stipulated time, i.e. in third week of October, 2006. Defendant no.2 had given due intimation regarding completion of construction to plaintiff and defendant no.3 in the third week of October, 2006 with a request to shift to their respective portions after completion of formalities at their end in terms of MOU dt. 10.10.2005 (Ex. PW1/2) and agreement to sell dt. 10.10.2005 (Ex. PW1/1). Pursuant to the said intimation, plaintiff and defendant no.3 duly inspected the suit property in the last week of October, 2006. Defendant no.1 had offered plaintiff to take possession of the first floor portion after completion of the formalities and after making payment of balance sale consideration of Rs. 16 lakhs. The owner of the suit property, i.e. defendant no. 3, shifted in the first week of November, 2006 to ground floor portion of the suit CS No. 228/16 Page No. 10 of 42 property.
II) In terms of the agreement to sell dt. 10.10.2005 (Ex. PW1/1), plaintiff was required to make payment of the balance amount within 15 days of completion of the construction, which was duly intimated to him (plaintiff) in the third week of October, 2006. The plaintiff, however, approached defendant no.1 seeking extension of time to make payment of the balance amount of Rs. 16 lakhs expressing some family problems and financial constraints. Plaintiff assured that he would arrange sufficient funds to make payment of the balance amount of Rs. 16 lakhs within 2025 days. At the time of plaintiff's visit, defendant no.1 acting through defendant no.2 had explained to him that in the event of failure to make payment of the balance amount within 2025 days, defendant no.1 would be left with no option but to cancel the agreement to sell dt. 10.10.2005 (Ex. PW1/1) and that the earnest money of Rs. 1 lakh deposited by him (plaintiff) at the time of execution of agreement to sell dt. 10.10.2005 (Ex. PW1/1) would stand forfeited.
III) Plaintiff, despite being given reasonable time to make the balance payment postconstruction of the suit property, did not come forward to make the payment. Defendant no.1, acting through defendant no.2, therefore by way of legal CS No. 228/16 Page No. 11 of 42 notice dt. 20.12.2006 (Ex. PW1/DX2) cancelled the agreement to sell dt. 10.10.2005 (Ex. PW1/1) and informed him (plaintiff) thereby that the earnest money of Rs. 1 lakh deposited by him at the time of execution of agreement to sell dt. 10.10.2005 (Ex. PW1/1) had been forfeited. Plaintiff, by way of this legal notice (Ex. PW1/DX2), was also notified that pursuant to cancellation of agreement to sell dt. 10.10.2005 (Ex. PW1/1) he had been left with no right, title, interest or claim in the suit property. Plaintiff was only a speculative buyer who never had any means or resources to make good the balance sale consideration in terms of the agreement to sell dt. 10.10.2005 (Ex. PW1/1) to defendants no.1 and 2.
IV) After cancellation of the agreement to sell dt. 10.10.2005 (Ex. PW1/1), defendant no.1 leased out the first floor portion to one Ms. Navneet Sachdev vide lease agreement dt. 04.01.2007 (Ex. DW1/2). Ever since execution of the lease agreement dt. 04.01.2007 (Ex. DW1/2), the first floor portion has been in continuous and uninterrupted possession of tenant Ms. Navneet.
V) In the meantime, as the plaintiff was misleading the general public at large that he had got a valuable right in the suit property in terms of the agreement to sell dt. 10.10.2005 (Ex. PW1/1) without intimating the general CS No. 228/16 Page No. 12 of 42 public that the said agreement had been cancelled, defendant no.1 was constrained to get published caution notice in the dailies, The Hindu (Ex. DW1/3) and Veer Arjun (Hindi edition; Ex. DW1/4) on 06.02.2007 thereby informing the public at large that plaintiff had no right, title, interest or claim in the suit property. The general public, vide notices (Ex. DW1/3 and Ex. DW1/4), was also asked to be cautious in their dealings with the plaintiff qua the suit property as he was having no right, title, interest or claim in the same.
VI) Defendants do not deny that 1st floor was to consist of two bedrooms, drawing and dinning, kitchen and two toilets. They however refute plaintiff's assertion that construction was to be in accordance with document 'Annexure A' (Mark A). According to them, 'Annexure A' (Mark A) was never part and parcel of the agreement to sell dt. 10.10.2005 (Ex. PW1/1) and neither was the same appended at the time of execution of this agreement. They allege that plaintiff has forged 'Annexure A' (Mark A). Time was the essence of contract between the plaintiff and defendant no.1. Actual 'Annexure A' (Ex. PW1/DX4 : Ex. DW1/1) annexed to MOU dt. 10.10.2005 was only a specification of the material to be used in the construction which was in fact made at the time of execution of collaboration agreement dt. 12.09.2005 CS No. 228/16 Page No. 13 of 42 (Ex. PW1/DX) executed between the defendants and the same was made part of MOU dt. 10.10.2015 (Ex. PW1/2). Site plan (Mark B) filed by plaintiff on the assertion that the same was annexed with 'Annexure A' (Mark A) is also a fabricated document. Site plan (Mark B) never formed part of the actual 'Annexure A' (Ex. PW1/DX4 : Ex. DW1/1).
VII) Suit property was constructed in terms of the specifications and understanding so arrived at between the plaintiff and defendant no.1. First floor portion consists of two bedrooms, two toilets, kitchen, drawing and dining room. After completion of construction of the entire property, in the third week of October, 2006 there was no occasion for defendant no.1 to ask the plaintiff to shift to some other tenanted premises. However, since plaintiff failed to adhere to terms of the agreement to sell (Ex. PW1/1) and did not vacate the tenanted premises nor paid rent for the tenanted premises, the landlord adjusted the security amount towards the rent, which amount the plaintiff is liable to pay to defendant no.1. Plaintiff is also in arrears of rent and has also not cleared dues towards electricity and water charges qua the tenanted premises, which defendant no.1 under compelling circumstances and perforce had to pay.
VIII) It is refuted that legal notice dt. 20.12.2006 (Ex. PW1/DX2) CS No. 228/16 Page No. 14 of 42 was not been served on the plaintiff. It is submitted that defendant no.3 neither spoke to the plaintiff regarding notice dt. 20.12.2006 (Ex. PW1/DX2) nor she supplied any copy of the said notice to plaintiff.
IX) It is the plaintiff himself who did not adhere to the terms and conditions of the agreement to sell (Ex. PW1/1) and MOU (Ex. PW1/2) and acted in breach thereof with malafide intention. Plaintiff was never ready to perform his part of the obligations under the agreement to sell (Ex. PW1/1) and MOU (Ex. PW1/2) and did not make payment to defendants no.1 and 2 in terms thereof. Present suit for specific performance is not maintainable inasmuch as the agreement to sell (Ex. PW1/1) and MOU (Ex. PW1/2) stand cancelled and rescinded validly and legally and that plaintiff is thus left with no right qua the said agreement. Plaintiff instituted the instant suit merely to pressurise the defendants to meet his illegal demands.
X) Denying other averments, defendants seek dismissal of the present suit.
10. Plaintiff filed his replication wherein he reiterated his averments as set out in the plaint. He avers that he was always ready and willing to perform his part of the contract. According to him, it was defendants no.1 and 2 who were not in fact in a position to give possession of the first floor until the date of filing CS No. 228/16 Page No. 15 of 42 of the suit. He avers that he had all the resources at his command to pay the balance money provided defendants no.1 and 2 had completed the construction within the stipulated time.
11. Issues framed on 11.03.2008 are as follows:
1. Whether the plaintiff is entitled to decree for relief of Specific Performance of the Contract/Agreement to Sell and MOU dated 10.10.05? OPP
2. Whether the plaintiff is entitled to recovery for sum of Rs.45,000/ as rent/damages/penalty? OPP
3. Whether the plaintiff is entitled to decree of mandatory and permanent injunction as claimed? OPD
4. Whether the Agreement to Sell and MOU dt.
10.10.05 had been cancelled and rescinded legally and validly as was being claimed by the defendants? OPD
5. Whether the present suit is barred under provisions of Specific Relief Act and there does not exist any cause of action in favour of plaintiff as was being claimed by the defendants? OPD
6. Relief.
12. In plaintiff's evidence, the following two witnesses were examined: (a) PW1 Sunil Sood, and (b) PW2 G.S. Chawla.
13. In defendants' evidence, two witnesses were examined, who are as follows: (a) PW1 Gagan Mehta, and (b) PW2 Amarjeet Singh.
14. Arguments heard. Record perused.
CS No. 228/16 Page No. 16 of 4215. Issue wise findings are as follows:
16. Issue no. 1 - The issue is whether plaintiff is entitled to a decree for specific performance of contract/agreement to sell and MOU dt. 10.10.2005, onus being on plaintiff to prove it. For the multiple reasons to follow, it has held that plaintiff is not entitled to the relief of specific performance.
17. Plaintiff has miserably failed to establish his readiness and willingness to perform his part of the contract. Together with the plaint, plaintiff had placed no material whatsoever on the judicial record to show that he had with him the total balance amount of Rs. 16 lacs. Plaintiff's bank statement of account from HDFC Bank, placed on the judicial record on 24.05.2007, showed a balance of five lakh odd rupees only as on 02.12.2006. But then, this would still leave a balance of Rs. 11 lacs. No pay order or any demand draft or any banker's cheque of the relevant period of the remaining amount of Rs. 11 lacs was shown or furnished to the Court. In short, plaintiff furnished no document whatsoever to show that he had with him total balance amount of Rs. 16 lacs at the relevant time. Plaintiff's selfserving ipse dixit, sans any material whatsoever on record that he had total balance amount of Rs. 16 lacs available with him, would not suffice.
18. Plaintiff in his endeavour to prove his readiness and willingness relied on the evidence of Mr. G.S. Chawla (PW2), who CS No. 228/16 Page No. 17 of 42 represented himself to be Managing Director of M/s JSG Leasing Ltd. PW2 in his examinationinchief deposed that plaintiff's request for a home loan for buying 1st floor of property no. K23A, Kalkaji, Delhi was considered and on the basis of decision of the Board, letter dt. 16.10.2006 (Ex.PW1/X) was issued. He went on to depose that loan of Rs. 15 lacs was approved and that the same was to be disbursed in December, 2006 with prior notice/intimation of 15 days for completion of paper formalities. He further deposed that sanction letter dt. 16.10.2006 (Ex. PW1/X) was valid till 31.03.2007. This Court is of the view that this evidence of PW2 does not at all advance plaintiff's case for multiple reasons. Plaintiff in his plaint, or in his replication, or for that matter in his evidence by way of affidavit (Ex. PW1/A), never made any averment that he had applied for a home loan and had been sanctioned the same by a company namely M/s JSG Leasing Ltd. The evidence on this score that is forthcoming through PW2 is clearly beyond the pleadings. It is pertinent to mention that this document (Ex. PW1/X) came to be filed on the judicial record much later on 03.09.2010. That apart, a company cannot just one fine day take a decision to start advancing loans to the public at large. The company, in order to do so, has to have such an object of advancing loans to the public at large set out in its Articles/Memorandum of Association. Further, this company is certainly not a bank. Neither any document was furnished to CS No. 228/16 Page No. 18 of 42 show that it was a NonBanking Financial Company (NBFC) as approved by Reserve Bank of India (RBI). It must also be mentioned here that a NBFC has to have RBI approval for making loans/advances to the public as its business. Nothing was brought on record to show that the company in question had the RBI approval or that it had the business of advancing loans as one of its objects. PW2 explained this away by saying that the company stood closed about two years ago (in the year 2011) and that in year 2006 it did have the certificate/authority from RBI to do business of leasing/financing. This averment, sans the requisite certificate/authority from RBI being placed on record, would not suffice. If PW2 was not in possession of the requisite certificate/authority from RBI, then copy of such certificate/authority could very well have been obtained from RBI office or a concerned official from RBI could have been summoned and examined. The best evidence in this regard was the document itself showing RBI approval. On this score, mere oral evidence of PW2 would not suffice. That apart, it is also doubtful that the company in question had in fact sanctioned Rs. 15 lacs to the plaintiff. It is not shown, much less proved, that the company in question possessed sufficient means to advance the loan. The balance sheet, statement of profit/loss account etc. of the company of the relevant period were not furnished. For that matter, even the bank statement of account of the company CS No. 228/16 Page No. 19 of 42 of the relevant period was not produced. In the absence of these documents, the bare assertion that a loan of Rs. 15 lacs had been sanctioned in terms of letter Ex. PW1/X would not hold much water. Further, the approval of Board of Directors of the company to sanction the loan was also not furnished to this Court. Next, it is somewhat difficult to believe that way back in year 2006 the company would have advanced a loan of Rs. 15 lacs without keeping anything as security. Letter Ex. PW1/X states that the property in question was being mortgaged for the loan. But this is doubtful for several reasons. It is plaintiff's own case that even in October, 2006 (when the loan was purportedly sanctioned) the suit property was still under construction. PW2 in his crossexamination concedes that copy of the agreement was not kept in record despite the fact that plaintiff had shown him the same. When asked as to what the agreement was, he (PW2) replied that he could not remember but perhaps it was an agreement with the builder for the first floor. It is thus rather very strange that the company goes about sanctioning the loan and keeping the property under mortgage without even taking on record any property documents and also without doing the necessary background checks visàvis the title etc. of an under construction building. It is highly doubtful in the backdrop of the evidence of PW2 that the company in question had done the due diligence exercise etc. before sanctioning the loan. PW2 when CS No. 228/16 Page No. 20 of 42 asked as to whether the company used to sanction loans without documents, replied that since it was the third loan application of the plaintiff and that he had good track record with the company, the loan was granted to him without going into the documents. This explanation of PW2 does not appear convincing. Whether the loan for an immovable property is being taken for the first time or for the third time, no institution, much less a registered company, would make such an advance without even going through the document or doing the necessary background checks. This is simply unheard of. There are no documents to substantiate the assertion that plaintiff had earlier availed of two loans from the very same company. Not only this, merely adding a line in a letter addressed to the loan applicant (plaintiff herein) that his property stood mortgaged certainly does not have the effect of placing the property under mortgage. Certain legal formalities as contemplated under the law are required to be undertaken for placing a property under mortgage. What is also surprising to note is that this sanction letter Ex. PW1/X does not specify as to what EMI (Equated Monthly Installment) the plaintiff was to pay over the next 84 months. Next, plaintiff and/or PW2 Mr. G.S. Chawla did not deem it appropriate to place on record the loan application form that he (plaintiff) had filled in and submitted for availing of the loan. Lastly, a company, advancing a loan of Rs. 15 lacs would not do so merely and CS No. 228/16 Page No. 21 of 42 merely on the basis of one single letter (Ex. PW1/X). The evidence of PW2 is highly doubtful. Document Ex. PW1/X inspires no confidence whatsoever. Given the umpteen number of missing links in the evidence of PW2, possibility of this document (Ex. PW1/X) having been antedated by using an old letterhead can certainly not be ruled out. A fact is set to be 'proved' when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man, under the circumstances of the particular case, to act upon the supposition that it exists (section 3, Evidence Act). This Court is of the view that it stands 'not proved' that the company of which PW2 represented himself to be the Managing Director had sanctioned a loan of Rs. 15 lacs to the plaintiff in October, 2006. Rather, the discussion hereinabove would show that his evidence is replete with several doubts and loopholes, which remained unanswered. Consequently, plaintiff's assertions that he had the requisite funds at the relevant time (October December, 2006) is without any substance.
19. Further, there are decisions to hold that a plaintiff, in a suit for specific performance, has to establish his readiness and willingness from the date of the transaction till the hearing of the suit. In Pukhraj D. Jain and Others vs. G. Gopalakrishna, (2004)7 SCC 251 it was held, "The requirement of this provision is that the plaintiff must aver that he has always CS No. 228/16 Page No. 22 of 42 been ready and willing to perform the essential terms of the contract. Therefore, not only should there be such an averment in the plaint, but the surrounding circumstances must also indicate that the readiness and willingness continue from the date of the contract till the hearing of the suit." This was reiterated in K. Nanjappa vs. R.A. Hameed & Ors., (2016)1 SCC 762 and it was observed, "16. The principle which can be enunciated is that where the Plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing." In N. P. Thirugnanam (Dead) by LRs Vs. Dr. R. Jagan Mohan Rao & Ors. (1995) 5 SCC 115 it was held, "The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. 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." In Bal Krishna And Another vs. Bhagwan Das (Dead) By LRs and Others, (2008)12 SCC 145 it was held: "13. Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") corresponds with Section 24 of the Old Act of 1877 which lays down that CS No. 228/16 Page No. 23 of 42 the person seeking specific performance of the contract, must file a suit wherein he must allege 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 him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation (ii) to clause (c) of Section 16 further makes it clear that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The compliance with the requirement of Section 16 (c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiff's readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the Court."
20. In the case at hand, plaintiff failed to prove that he had total balance amount of Rs. 16 lacs at the relevant time i.e. in October, 2006 or thereafter. Not only this, he has also failed to prove that up to the date of hearing or up to the date of decision of the present matter, he had the total balance funds of Rs. 16 lacs.
21. The Supreme Court of India in the case of J. P. Builders vs. A. Ramdas Rao, (2011) 1 SCC 429 held as follows: "22. The CS No. 228/16 Page No. 24 of 42 words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the Plaintiffs wanting performance. Generally, readiness is backed by willingness." In N. P. Thirugnanam (supra) it has been held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of relief of specific performance. It was further held that to adjudged whether the plaintiff is ready and willing to perform his part of the contract, Court must take into consideration plaintiff's conduct prior to and subsequent to filing of the suit along with other attending circumstances.
22. To sum up the discussion so far, plaintiff has failed to establish his readiness to pay the total balance Rs. 16 lacs. He has also failed to establish his willingness to perform his part of the contract. He never had the draft sale deed ready. He never purchased any stamp paper for preparation of the sale documents. These circumstances clearly show that willingness on the part of the plaintiff to perform his part of the contract was not there. Mention may be made here to decision reported as Saradamani Kandappan vs. S. Rajalakshmi & Ors., AIR 2011 SC 3234 wherein it has been held that Courts will apply 'greater scrutiny and strictness' when considering whether the purchaser was ready and willing to perform his part of the CS No. 228/16 Page No. 25 of 42 contract. Plaintiff is not entitled to the relief of specific performance of the contract on account of the bar of section 16
(c), Specific Relief Act, 1963.
23. There are more reasons not to grant this relief. Property prices have risen phenomenally over the last 12 years and plaintiff would certainly not be oblivious of this. Today, the defendants no.1 and 2 on receiving the balance of Rs. 16 lacs, even on exorbitant rate of interest, cannot purchase any equivalent property.
24. Further, in the case at hand, only Rs. 1 lac had been paid, which is about 6% of the total consideration amount. Plaintiff was out of possession of the property in question. Rather, the evidence would show that he did not take possession of the first floor despite being asked to do so. This aspect of taking possession would be dealt with in later part of this judgment. Section 20 (3), Specific Relief Act mandates that unless 'substantial acts' are done under the agreement to sell, specific performance need not be granted. What are 'substantial acts' in the context of section 20 (3), Specific Relief Act, 1963 was adverted to in M/s Krishna Sweets vs. Shri Gurbhej Singh @ Happy and Ors., MANU/DE/2851/2012. It was held, "In certain cases where substantial consideration i.e. at least 50% of the consideration is paid, or possession of the property is delivered CS No. 228/16 Page No. 26 of 42 under the agreement to sell in addition to paying advance price, the proposed buyer is vigilant of his rights and he files the suit soon after entering into the agreement to sell, then in accordance with totality of facts and circumstances, Courts may decree specific performance...." In the case of Shri Sushil Jain V/s Shri Meharbaan Singh and Ors., MANU/DE/3870/2012, this principle was reiterated. To sum up, in the opinion of this Court, for these multiple reasons plaintiff is not entitled to the discretionary relief of specific performance.
25. It was plaintiff's argument that it was for the fault of defendants no.1 and 2 that the contract for transfer of the property could not fructify. He argued that the property in question had not been constructed in terms of Annexure A (Mark A). He further argued that construction of 1st floor was not in accordance with the agreed specifications and the material used therein was of much inferior and substandard quality than the other floors. He thus urged that defendant no.1 and 2 were therefore not in a position to hand over possession of 1 st floor by October, 2006 to him as stipulated and for this reason he had to take another rented accommodation at request of defendants no. 1 and 2 at J218, 3rd Floor, Kalkaji, Delhi at monthly rent of Rs. 5,000/. This argument of the plaintiff lacks merit. It appears highly doubtful that Annexure A (Mark A) was part of the agreement between the parties. This document Annexure A CS No. 228/16 Page No. 27 of 42 (Mark A) does not at all bear names and/or signatures of any person. It does not have the stamp/seal of defendant no.1. The property number, which was to be constructed, also finds no mention therein. Similarly, the site plan Mark B (filed by plaintiff) also does not bear signatures of any person. For the similar reasons as aforesaid, it is doubtful if site plan Mark B relate to the property and/or the transaction in question. The mere fact that document Annexure A (Mark A) has 'Shri Krishna Builders' written on top of it would not ipso facto connect it with the property/transaction in question. It may even be possible that this document related to some other project. On the contrary, I find that Annexure A (Ex. DW1/1 : Ex. DW1/DX4) filed by defendants inspires confidence. This document bears the signature of defendants no.2 and 3. Plaintiff does not in his cross examination dispute their signatures on this document Annexure A (Ex. DW1/1 : Ex. DW1/DX4). He rather in his cross examination identified signatures of defendant no.3 thereon and stated that another signature thereon appeared to be that of the builders. This Court on consideration of the material on record is not inclined to go by plaintiff's assertions that the building was to be constructed in terms of Annexure A (Mark A). This Court on consideration of material on record is instead inclined to believe that the construction was to be done in terms of the Annexure A (Ex. DW1/1 : Ex. DW1/DX4), that was filed by the CS No. 228/16 Page No. 28 of 42 defendants. This Court also holds that 'Annexure A' referred to in clauses 19 and 20 of the Collaboration Agreement dt. 12.09.2005 (Ex. PW1/DX) executed between defendants no.1 and 3 is in fact the Annexure A (Ex. DW1/1 : Ex. DW1/DX4) filed by the defendants. Further, plaintiff's averments that construction of the building was not ready by October, 2006 also does not convince this Court. This Court also does not find convincing his averments that construction on his 1st floor was of inferior quality. In the present matter a Local Commissioner (LC) had been deputed to inspect the building in question. He inspected the building on 08.04.2007. Ld. LC in his report, furnished to the Court, stated that 1st floor was entirely constructed and was in a habitable condition. Secondly, plaintiff does not at all say in his plaint or in his evidence as to what it was that was left out in the construction. He neither states as to what it is that made him believe that construction on his floor was substandard and/or that the material used therein was of inferior quality in comparison to the other floors. Plaintiff (PW1) in his cross examination conceded that he used to visit the premises while the construction was on and that he had visited the same on 34 occasions during the entire period of construction. He, however, added that he did not go inside the building. The point is that when he had been visiting the property, there was nothing that stopped him from taking photographs of the portions of the CS No. 228/16 Page No. 29 of 42 building that had not been suitably constructed or which was of inferior and substandard quality. The explanation that he had not gone inside the building hold no water. Nobody had stopped him from going inside the building to check for himself the progress of construction. This leads to another aspect. If he never went inside the under construction building, how does he say that the material used on his floor was inferior or substandard compared to the other floors or that the same was not suitably constructed? That apart, at no point of time did he ever write to any of the defendants that the construction had not been done suitably and that inferior and substandard quality had been used on his floor and further that construction was not done within the fixed time schedule. Defendant no.3 took possession of her portion of the very same building and she never had any complaint whatsoever. Rather, DW2 Amarjeet Singh (son of deceased defendant no. 3) in his evidence clearly stated that construction was completed in third week of October, 2006 and that defendant no.1 had informed his mother (defendant no.3) and the plaintiff in this regard and pursuant thereto he (Amarjeet Singh), plaintiff and defendant no.3 inspected the property in the last week of October, 2006. He also deposed that at the time of inspection of property in last week of October, 2006 defendant no.2 had asked him (plaintiff) to take possession of 1 st floor after making payment of the balance Rs. 16 lacs. He also CS No. 228/16 Page No. 30 of 42 deposed that his mother (defendant no.3) took possession of ground floor in November, 2006 and that the construction was carried out in terms of Annexure A (Ex. DW1/1 : Ex. DW1/DX4) and there were no defects therein. Nothing came in his (DW2) crossexamination to detract from this portion of his evidence. Therefore, this argument of the plaintiff does not at all seem to be convincing and is discarded.
26. Plaintiff pointed out that clause - 1 of MOU (Ex. PW1/2) stipulated that construction would be done after obtaining the plan sanctioned from the MCD/concerned department. Basing this argument on this clause, he urged that defendants no.1 and 2 could possibly not have transferred 1st floor portion to him without the requisite 'completion certificate' as contemplated in section 346, Delhi Municipal Corporation Act (for short 'DMC Act'). This argument too is meritless. There was no clause regarding completion certificate in the agreement to sell Ex.PW1/1 or MOU Ex. PW1/2. Even proceeding from the premise that completion certificate was a statutory requirement, yet the plaintiff has no case to make out. It has been observed hereinabove that plaintiff was neither ready nor willing to perform his part of the contract. Therefore, when the plaintiff himself was not ready and willing, he cannot then shift the blame to the other side for the ultimate failure of the deal. Had the plaintiff in the very first place proved his readiness and CS No. 228/16 Page No. 31 of 42 willingness, then the question of compliance or otherwise of section 346, DMC Act would have come into the picture. Plaintiff being himself at fault cannot therefore point fingers at defendants no.1 and 2 for their alleged noncompliance of section 346, Delhi Municipal Corporation Act. In other words, question of compliance or noncompliance of this provision and its effect on the outcome of the present suit would come into the picture only when the plaintiff proves in the first place that he was ready and willing to perform his part of the contract. Even assuming that there was noncompliance of this provision, yet the plaintiff cannot be held entitled to the relief of specific performance as sought for. It is the plaintiff's suit that would face an adverse outcome if he does not prove the existence of facts, which he asserts (section 101, Evidence Act). Plaintiff avers readiness and willingness on his part and therefore it is he who must prove it in terms of section 101, Evidence Act. Plaintiff cannot seek to prove his case in an indirect manner by urging that defendants' case has a certain deficiency or that there has been noncompliance of a certain legal provision on their part. Plaintiff cannot succeed on the basis of failure, if any, on the part of a defendant to prove his case and plaintiff must stand on its own legs. To put it in other words, a plaintiff must succeed on the basis and on the strength of his own case and not on the strength of deficiencies, if any, in defendant's case. He cannot raise the edifice of his case by CS No. 228/16 Page No. 32 of 42 highlighting the deficiencies / loopholes in defendants' case. In this regard, the following decisions can be referred to: Sankar Kumar & Anr. vs. Mohanlal Sharma, AIR 1998 Orissa 117;
Shiv Nandan Sachdeva (Sh.) vs. Smt. Ruby, 2009 V (Delhi) 55; Umesh Bondre vs. Wilfred Fernandes, AIR 2007 Bombay 29; M. P. Narayan vs. Sm. Sudhadevi & Ors., AIR 1986 Cal 256; State of West Bengal vs. Subimal Kumar Mondal & Anr., AIR 1982 Cal 251 and Sayed Muhammed Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas Committee and Others, (2004)7 SCC 708 : JT 2004 (6) SC 556.
Next, section 346, DMC Act does not bar transfer of a property/execution of any sale deed. Subsection (1) of this provision mandates that within one month of completion of erection of the building, a notice shall be sent to the Commissioner. Subsection (2) of this provision prohibits any person from 'occupying or permitting to be occupied' any such building in the absence of permission of the Commissioner. Therefore, this provision does not at all prohibit transfer of a property/execution of sale deed. It also appears from a bare reading of this provision that it does not prohibit one from taking symbolic possession of the property. All that it prohibits is 'occupying or permitting to be occupied a property'. Further, the plaintiff who takes the plea of not taking possession of the first floor portion of the suit property, ought to explain whether he CS No. 228/16 Page No. 33 of 42 had insisted and demanded 'compliance certificate' earlier qua the properties that he had earlier occupied. In other words, whether in the past before occupying properties K23A, Kalkaji, G48, Kalkaji, J218, 3rd floor, Kalkaji and 52/114, 3rd Floor, Chitranjan Park did he insist on the 'compliance certificate'. Lastly, the issue of compliance certificate could very well have gone into once the sale deed as executed and symbolic possession of the first floor was taken. It appears that plaintiff took this plea merely to cover up his own shortfalls.
27. Before parting with the discussion on this issue, there is one argument of the defendants that is required to be addressed. It was argued that the suit was not in tune with forms 47 and 48 of Appendix 'A' of CPC. In this regard, Ld. Counsel for defendants relied upon judgments reported as Church of Christ Charitable Trust vs. Porriamman Educational Trust, 2012 (8) SCC 706 and Ouseph Varghese vs. Joseph Aley & Ors., (1969) 2 SCC 539. This argument of the defendants is turned down. Plaintiff in his plaint very much averred that he was ready and willing to perform his part of the agreement. He had also averred that after taking up the accommodation at J218, 3 rd Floor, Kalkaji, Delhi on 15.12.2006 he had approached defendants no. 1 and 2 for reimbursement of the rentals and it was then that they refused to honour their commitments. Plaintiff has reiterated this in his replication. That apart, CS No. 228/16 Page No. 34 of 42 plaintiff has in his plaint set out the details of the agreement on which he sued.
28. Bottom line of the discussion so far is that plaintiff is not entitled to the relief of specific performance of contract. However, in order to do broad justice and work out the equities, it is fit and apposite that money paid by plaintiff to the defendants no. 1 and 2 be refunded. The argument that the plaintiff, being guilty of breach of contract, is not entitled to refund of earnest amount/advance and that the same stood forfeited would not be tenable. The amount of Rs. 1 lac can be forfeited only if defendants no.1 and 2 prove that they had suffered a loss or legal injury of Rs.1 lac and not otherwise. The fact that Agreement to Sell Ex. PW1/1 contained a clause (clause7) for forfeiture of the earnest amount would not enable defendants no.1 and 2, under the extant law, to retain the same. Sections 73 and 74, Contract Act, would hit such a clause being in the nature of 'penalty'. Two relevant judgments in this regard are a Constitution Bench judgment of Apex Court in Fateh Chand vs. Balkishan Dass, AIR 1963 SC 1405 and Kailash Nath Associates vs. Delhi Development Authority and Another, (2015) 4 SCC 136.
However, from this amount of Rs. 1 lac, defendants no.1 and 2 may deduct only a reasonable sum. Under the given circumstances in the opinion of this Court deduction of 5% of the advance money of Rs. 1 lac would be reasonable. Plaintiff shall CS No. 228/16 Page No. 35 of 42 thus be refunded an amount of Rs. 95,000/. On this amount of Rs. 95,000/, plaintiff shall be entitled to pendente lite and future interest of 4% per annum only.
29. This issue is answered in the following terms. Plaintiff is not entitled to the relief of specific performance of contract. However, defendants no.1 and 2 shall refund an amount of Rs. 95,000/ to plaintiff. On this amount of Rs. 95,000/ plaintiff shall be entitled to pendente lite and future interest of 4% per annum only.
30. Issue no. 2 - The issue is whether the plaintiff is entitled to recovery for sum of Rs.45,000/ as rent/damages/penalty, onus being on plaintiff to prove it. Plaintiff claims this amount in the following manner.
For recovery of rent at the rate of Rs. 5,000/ per Rs. month with effect from 01.12.2006 to 28.02.2007 for 15,000/ the premises J218, 3rd floor, Kalkaji, Delhi. Damages at the rate of Rs. 10,000/ per month with Rs. effect from 01.12.2006 to 28.02.2007 as per agreement 30,000/ dt. 10.10.2005 (clause 5 of MOU Ex. PW1/2).
31. On both these counts, plaintiff is not entitled for recovery of money from defendants no.1 and 2 for the very simple reason that it is he (plaintiff) who failed to prove his readiness and willingness to perform his part of the contract. In short, plaintiff himself is guilty of breach of the contract. This issue is CS No. 228/16 Page No. 36 of 42 accordingly answered against the plaintiff and in defendants' favour.
32. Issue no. 3 - The issue is whether plaintiff is entitled to a decree for mandatory and permanent injunctions as claimed. Plaintiff sought to mandatorily injunct the defendants to complete the entire construction on the first floor portion in accordance with the contract and MOU dt. 10.10.2015 and to hand over its possession to him forthwith and not to raise any further construction until and unless the entire construction is complete on the first floor and possession thereof is handed to him. He also sought to permanently injunct the defendants from selling, alienating or handing over possession of 1st floor portion of suit property to anyone or from raising any construction or creating any third party interest or lien therein. In view of the outcome of issue no.1 holding that plaintiff is not entitled to the relief of specific performance, plaintiff can certainly not be entitled to the twin reliefs of injunction as sought for. This issue is accordingly answered against the plaintiff and in defendants' favour.
33. Issue no. 4 - The issue is whether the Agreement to Sell and MOU dt. 10.10.05 had been cancelled and rescinded legally and validly as being claimed by the defendants, onus to prove being on the defendants. It has been held hereinabove that plaintiff failed to establish his readiness and willingness to CS No. 228/16 Page No. 37 of 42 perform his part of the contract. It has also been held hereinabove that plaintiff's stand that the property was not constructed suitably or that the first floor portion consisted of inferior and substandard material is not established. On the contrary, it has been established on record that the construction had been completed within the time schedule and that the deal could not fructify due to lack of readiness and willingness on plaintiff's part to perform his part of the contract. Clause 8 of MOU Ex. PW1/2, inter alia, stipulated that if the second party (plaintiff Sunil Sood) 'failed to make payment as per settlement his advance money will be forfeited and deal will stand cancelled.' In view of this clause 8, I do not find anything improper on the part of defendants no.1 and 2 to cancel the agreement to sell dt. 10.10.2005. It is therefore held that Agreement to Sell and MOU dt. 10.10.05 had been cancelled and rescinded legally and validly by defendants no.1 and 2. This issue is accordingly answered against the plaintiff and in defendants' favour.
34. Issue no. 5 - The issue is whether the present suit is barred under provisions of Specific Relief Act and there does not exist any cause of action in plaintiff's favour as being claimed by the defendants, onus to prove being on the defendants. This issue has two limbs, firstly whether the suit is barred under the provisions of Specific Relief Act, and secondly, whether cause of action existed in plaintiff's favour. Both the limbs shall be taken CS No. 228/16 Page No. 38 of 42 separately.
35. Coming to the first limb of this issue. It is already been held hereinabove that plaintiff cannot be entitled to the relief of specific performance in view of the bars of sections 16 (c) and 20 (3), Specific Relief Act, 1963. He is also not entitled to relief of specific performance for reasons indicated in paragraphs 23 and 24 of this judgment. There is another reason. Plaintiff filed this suit without seeking the relief of declaration that the cancellation of the agreement in question by defendants no. 1 & 2 was not tenable or that the same was null and void. In the legal notice Ex. PW1/DX2 dispatched to the plaintiff, defendant no.1, through its partner defendant no.2, had brought it to plaintiff's knowledge that the agreement stood canceled. It was stated in paragraph 11 thereof, "Therefore, by this notice you are hereby notified that for the default committed by you and for the reasons stated herein above the agreed transaction under agreement to sell dated 10.10.2005 stands cancelled and your earnest money paid to our client pursuant to the said agreement stands forfeited. You have been left with no right, title and/or any interest under the said agreement and/or the memorandum of understanding dated 10.10.2005." Plaintiff claims that he did not receive this notice Ex. PW1/DX2. This notice was dispatched through registered post to the address J218, 3rd Floor, Kalkaji, Delhi where the plaintiff started to reside with effect from 01.12.2006.
CS No. 228/16 Page No. 39 of 42This notice was also dispatched to the plaintiff at the address 52/114, 3rd Floor, Chitranjan Park, Delhi. Plaintiff (PW1) in his crossexamination admits that this address (52/114, 3rd Floor, Chitranjan Park, Delhi) was his and that he had purchased the same, albeit for his sister. The postal receipts by which it was dispatched to the plaintiff at both the addresses are on record. In ordinary course of business, in terms of section 27, General Clauses Act, this legal notice is presumed to have been served upon the plaintiff. This legal notice Ex. PW1/DX2 was also dispatched to defendant no.3 Ms. Joginder Kaur. However, it is plaintiff's own case that when he approached defendant no.3 in order to ask her to intervene and get the contract honoured by defendants no.1 and 2, she (defendant no.3) handed over photocopy of 'false' notice dt. 20.10.2006 (Ex. PW1/DX2) to him. The point therefore is that even as per his own averment, the plaintiff had knowledge of the legal notice dt. 20.10.2006 (Ex. PW1/DX2). He thus had the knowledge that defendants no.1 and 2 had proceeded to treat the contract as cancelled. In the case of I. S. Sikandar (D) by LRs. Vs. K. Subramani and Ors., 2014 (1) SCALE 1, it has been held that in the absence of declaration to declare the agreement to sell as bad in law, the suit for grant of specific performance on the basis of agreement to sell and the consequential relief of relief of permanent injunction is not maintainable in law. In view thereof it is held that this suit was CS No. 228/16 Page No. 40 of 42 not maintainable in the absence the relief of declaration to the effect that the termination of agreement to sell by defendants no. 1 and 2 was bad in law. First limb of this issue is accordingly answered against the plaintiff and in defendants' favour.
36. The second limb of this issue is whether there does not exist any cause of action in plaintiff's favour. The term cause of action is that which gives occasion for and forms the foundation of the suit. It is well settled that cause of action comprises every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the court. Cause of action has been held not to comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. It is thus held that though plaintiff may have had cause of action but he failed to prove the same and his evidence in support thereof was inadequate.
37. Relief - Plaintiff is not entitled to the discretionary relief of specific performance. He is also not entitled to the discretionary reliefs of permanent inunction and mandatory injunction. He is neither entitled to recovery of rent / damages/penalty of Rs. 45,000/ as claimed. However, defendants no. 1 and 2 shall refund Rs. 95,000/ to the plaintiff. On this amount of Rs. 95,000/ plaintiff shall be entitled to pendente lite and future interest of 4% per annum only. Parties are left to bear their own costs. Decree sheet be drawn up. File be consigned to CS No. 228/16 Page No. 41 of 42 record room.
Digitally signed MURARI by MURARI
ANNOUNCED IN THE OPEN
PRASAD SINGH
PRASAD Date:
SINGH 2018.04.16
COURT ON 16.04.2008
15:38:48 +0530
M. P. SINGH
ADJ03 (CENTRAL)
TIS HAZARI COURTS
DELHI
CS No. 228/16 Page No. 42 of 42