Delhi District Court
Sh. Rajesh Kumar & Anr. vs . Harish Kataria & Ors. on 18 August, 2017
CS No.831/16
New CS No. 14241/16
Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
IN THE COURT OF SHRI SHAILENDER MALIK:
ADDITIONAL DISTRICT JUDGE03: CENTRAL:
DELHI
CS No.831/2016/1997
New CS No. 14241/2016
In the matter of
1. Sh. Rajesh Kumar
S/o Shri Mohan Kumar,
R/o C588, Greater Kailash11,
New Delhi110 048
2. Shri Rajinder Manchanda
S/o Late Shri H.L.Manchanda,
R/o A143, Lajpat Nagar1,
New Delhi110 024
Versus
1. Sh. Harish Kataria
S/o Shri Sain Das,
R/o 206B, Model Town,
Panipat,
Haryana.
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2. Sh. Deepak Singh Swamy,
S/o Late Smt. Usha Devi Swamy,
R/o A14, Swasthya Vihar,
Delhi110 092
3. Dr. Ramesh C. Aggarwal,
R/o D207, Defence Colony,
New Delhi
4. The Land & Development Officer
Ministry of Urban Development ,
Nirman Bhawan, New Delhi110 011
(Through the Land & Development Officer)
5. M/s. Ravnit Properties Pvt. Ltd.,
D207, Defence Colony,
New Delhi.
Date of institution of suit : 27.02.1997
Date when reserved for order : 16.08.2017
Date of Judgment : 18.08.2017
JUDGMENT
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Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
1. This is suit for specific performance, permanent injunction. Facts as averred in the plaint are that Sh. Dayal Singh s/o Ganda Singh was owner of property no. D 207, Defence Colony New Delhi, measuring 336 sq yds. (herein after referred as suit property), by virtue of registered perpetual lease deed dt 26.08.1982 (in suppression of previous registered lease deeds). Sh. Dayal Singh, by registered GPA dt 09.05.74, had appointed his daughter Mrs. Usha Devi Swami as his General Attorney in respect of suit property.
2 It is mentioned that Mrs. Usha Devi Swami acting as General Attorney of Sh. Dayal Singh stated to have entered into a written agreement dt 27.07.88 with defendant no. 1 to sell the suit property for sale consideration of Rs. 9 lacs , subject to other terms and conditions as mentioned in the agreement which was duly registered being document no. 5736, Additional Book No. 1 Vol. 6169, on 27.07.88. Defendant no. 1 stated to have paid CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 3/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
Rs. 3,11,000/ as part sale consideration to Sh. Dayal Singh through Mrs. Usha Devi Swami. Balance sale consideration of Rs. 5,89,000/ was agreed to be paid at the time of registration of sale deed, after obtaining all requisite permissions. Further in part performance of above said agreement, symbolic possession of suit property stated to have been handed over to defendant no. 1 who was authorized to take possession of ground floor of suit property from tenant i.e. defendant no. 3.
3 It is stated that physical vacant possession of terrace of the suit property was handed over to defendant no. 1 and it was agreed that original documents were also to be handed over, however have been retained by the owner, on the plea of requirement for conversion and later for mutation (Clause 10). It was also agreed that seller shall apply and obtain and obtain permission from L& DO ( Clause 5). Seller shall apply and obtain permission from income tax authority in Form 34A (Clause 6) Seller shall after obtaining IT clearance in Form 34 A and permission CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 4/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
from L&DO, shall send intimation to purchaser by registered AD (Clause 7). Purchaser within 30 days thereafter, shall obtain sale deed in his favour or in favour of his nominee (Clause 7).
4 It is further mentioned in the plaint that after execution of aforesaid agreement, unfortunately Sh. Dayal Singh died on 10.10.88. Though late Dayal Singh had executed a Will dated 09.05.74 bequeathing the suit property in favour of Mrs. Usha Devi Swami and Sh. Ravinder Kumar, however, property devolved upon Mrs. Usha Devi Swami alone as Sh. Ravinder Kumar had predeceased Sh. Dayal Singh and died on 12.05.77. Accordingly, defendant no. 4 (L&DO) mutated the suit property in the name of Mrs. Usha Devi Swami vide letter dt 16.07.90.
5 It is stated in plaint that while the performance of remaining part of agreement to sell dt 27.07.88 was still pending, Mrs. Usha Devi Swami could not obtain requisite CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 5/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
permissions. She also expired on 28.02.94. It is stated that to the knowledge of plaintiff, defendant no. 2 herein, is the son and legal heir of late Mrs. Usha Devi Swami who is also sole beneficiary under her Will.
6 It is stated that defendant no. 1 had assigned all his rights, titles and interests under the aforesaid agreement dt 27.07.88, in favour of plaintiffs vide deed of assignment dt 17.11.95, which was duly registered with Sub registrar New Delhi, for total sale consideration of Rs.18,89,000/ and subject to other terms and conditions as incorporated therein. Sum of Rs. 4 lacs was paid at the time of execution of above said deed of assignment and Rs.9 lacs was agreed to be paid at the time of registration of the sale deed after obtaining all the requisite permissions whereas balance amount of Rs.5,89,000 was agreed to be paid to the owner of the suit property. In terms of such deed of assignment, dt 17.11.95, plaintiffs acquired all the rights under the agreement dt 27.07.88, and plaintiffs were made CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 6/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
nominee of defendant no. 1, to which Mrs. Usha Devi Swami never objected.
7 It is further mentioned in the plaint that plaintiff have all through been ready and willing to perform their part of agreement. Though they were not under any obligation to make further payment, however, pursuant to the request of defendant no. 1 further sum of Rs. 5 lacs was paid on different dates vide five different bank draft of Rs. 1 lac each on 11.04.96, 25.07.96, 14.08.96 25.10.96 and 05.1196 respectively, on the representation of defendant no. 1 that mutation of the suit property in favour of defendant no. 2 is still pending and some finance was required for needful to be done i.e. mutation in favour of defendant no. 2. It is stated that a promise was made that as and when mutation in favour of defendant no. 2 is complete, sale deed will be executed in favour of plaintiffs or their nominee. It is stated that even after expiry of four months time, since, the above mentioned payments made by plaintiff, nothing was heard from defendant no. 1 and 2.
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Defendant no. 2 being legal heir of deceased owner of the suit property was bound under the agreement to sell dt 27.07.88 alongwith Deed of Assignment dt 17.11.95 in favour of plaintiffs to execute the sale deed in favour of plaintiffs.
8 While alleging that instead of performing the obligations under the above said agreement and in spite of giving symbolic possession of ground floor of the suit property and physical possession of the terrace of the same, plaintiffs have learnt that defendant no. 1 and 2 in connivance with defendant no. 3 are taking the possession of the ground floor of suit property from the defendant no.
3. Defendant no. 3 though had no legal right or authority to hand over the possession of ground floor to any person other than plaintiffs. It is further alleged that defendant no. 1 to 3 in connivance with officials of defendant no. 4 are trying to sell / dispose off the suit property to third party, in breach of aforesaid agreement despite plaintiff being always ready and willing to perform their obligations CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 8/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
under the agreement.
9 Therefore, suit was filed seeking decree of permanent injunction to restrain defendant no. 3 from handing over the possession of ground floor of suit property to any other person except plaintiff, it is further prayed that defendant no. 1 and 2 be restrained from selling, transferring the suit property to any other person except plaintiffs. It is further prayed that by injunction defendant no. 4(L & DO) be also restrained from permitting the transfer or from mutation of suit property in favour of any person except plaintiffs. Plaintiffs have also prayed for decree of specific performance for giving directions to defendant to perform the agreement dt 27.07.88, read with deed of assignment dt 17.11.95 and to execute sale deeds in respect of suit property i.e. D207, Defence Colony New Delhi, measuring 336 sq yds in favour of plaintiff after getting the mutation in favour of defendant no. 2 and also after getting requisite clearance / permission from appropriate authorities against receipt of balance sale consideration. It is prayed CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 9/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
that in case of defendants failure to obtain necessary permissions and to execute transfer deed, court may give directions for getting the sale completed through an officer so appointed by the court. It is further prayed that in the event court comes to the conclusion that specific performance cannot be decreed, only then alternatively plaintiffs pray for damages to the plaintiffs to the tune of Rs. 18,89,000 with interest @24 % pa or on such higher sum as court deem fit.
10 Defendant no. 1 / original purchaser of the suit property under agreement to sell dated 27.07.1988 filed the WS taking the objection therein that suit is without cause of action so far as against defendant no. 1. It is pleaded that on account of non performance of terms and conditions of Deed of Assignment dt 17.11.95 by plaintiffs, such deed stood cancelled and defendant no. 1 discharged from the same. As such suit is based on non existing document and therefore deserves to be dismissed. It is further pleaded that plaintiffs were never ready and willing to perform CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 10/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
their part of assignment deed, therefore, are not entitled for any relief. Further objection is taken that suit is not maintainable for want of service of any notice prior to filing the present suit. It is however, not disputed that owner of the suit property Sh. Dayal Singh through his attorney / Daughter Mrs. Usha Devi Swami, had entered into an agreement to sell with defendant no. 1 which was a registered agreement dt 27.07.88. It is also not disputed that earnest amount of Rs.3,11,000 was paid by defendant no. 1 out of total sale consideration of Rs. 9,00,000 and balance amount of Rs. 5,89,000 was payable by defendant no. 1 only when seller will obtain requisite permissions for sale and duly inform in this regard to defendant no. 1. It is also not disputed fact that ground floor of suit property was in tenancy of defendant no. 3. It is also not disputed that after the death of late Dayal Singh, suit property mutated in the name of Mrs. Usha Devi Swami by virtue of Will in her favour. It is also not disputed that even Mrs. Usha Devi Swami had expired on 28.02.94 leaving defendant no. 2 being her only legal heir.
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11 It is also not disputed in the WS of defendant no. 1 that he agreed to assign his rights under the agreement to sell dt 27.07.88 in favour of plaintiffs for consideration of Rs. 13 lacs. However, it is denied that rights acquired by defendant no. 1 under the above said agreement to sell dt 27.07.88 stood passed over in favour of plaintiffs, without complying the terms and conditions agreed by the parties under the deed of assignment. It is pleaded that plaintiffs have undertaken to defendant no. 1 that within reasonable time from the date of deed of assignment, they would complete the transaction and pay the balance amount of Rs. 9 lacs to defendant no. 1. It can well be understood from the terms of deed of assignment that only on receipt of Rs 4 lacs out of agreed amount of 13 lacs, defendant no. 1 would not assign all his rights under the agreement to sell, in favour of plaintiffs. It is pleaded that plaintiffs frivolously started making excuses to pay the balance amount. It is denied that defendant no. 1 ever promised to get the mutation of the suit property effected in favour of CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 12/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
defendant no. 2. While pleading that plaintiffs have failed in performing their part of obligations, case of the plaintiff as a whole was denied.
12 WS was also filed on behalf of defendant no. 2 taking the objection therein that suit is not maintainable, time barred. Suit filed by plaintiffs in collusion with defendant no. 1, being devoid of cause of action as plaintiffs have no locus to institute the suit. It is pleaded that neither plaintiffs nor defendant no. 1 was in possession of the suit property, in any manner. Possession of the suit property earlier remained with late mother of the defendant no. 2 and after her, its possession was with defendant no. 2. Defendant no. 3 paid rent throughout to defendant no. 2 and later surrendered the vacant possession of the same to defendant no. 2. Property in question has been mutated in the name of defendant no. 2 by defendant no. 4 way back. It is pleaded that after obtaining the sanction for construction from competent authority, Defendant no. 2 stated to have also got raised construction in suit property, CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 13/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
according to the sanctioned site plan after converting the property into freehold.
13 While not disputing the factum of late Dayal Singh being earlier owner of the property and thereafter mother of the defendant no. 2 became owner of the same. Execution of agreement to sell dt 27.07.88, however, is denied for want of knowledge. It is also denied that any symbolic possession of the property was handed over to defendant no. 1 with the authority to collect rent from defendant no. 3 or physical possession of terrace of the suit property was handed over to defendant no. 1. It is pleaded that prior to filing the present suit M/s. Ravnit Properties Pvt Ltd had filed a Civil Suit being Suit No. 1856/ titled as M/s. Ravnit Properties Pvt Ltd. vs. Vicky Swami and Harish Kataria (Defendant no. 1 herein) for relief of specific performance and damages in respect of suit property. Said suit was stated to be pending at that time. In that suit also plaintiffs herein had claimed that defendant no. 1 had entered into an agreement in respect CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 14/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
of property in question and also executed GPA dt 07.03.92 along with said agreement.
14 On merits the case of the plaintiff has been denied. It is specifically denied that late Smt. Usha Devi Swami, in her lifetime had promised for specific performance or to take steps in this regard. It is pleaded that in fact defendant no. 1 never come forward for specific performance or never approached to defendant no.2 or bring it in the notice of defendant no. 2 that any part of performance is required from him. It is pleaded that no such agreement is binding on defendant no. 2. it is pleaded that it would be clear from the averments of the plaint (para 6 ) that since 1988 till Feb 1994, there is nothing on the record to suggest that defendant no. 1 ever made any correspondence regarding the alleged agreement with late mother of defendant no. 2 or with defendant no. 2.
15 Defendant no. 2 has also denied about deed of assignment dated 17.11.95. It is pleaded that till date CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 15/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
there has never been any notice or information received, either from defendant no. 1 or by plaintiff regarding such agreement dated 17.11.95. In the absence of same, it can be stated that it is the manipulation between plaintiff and defendant no. 1. Moreover, before entering into any such alleged agreement dt 17.11.95, consent of defendant no. 2 was never taken. As such, such agreement is not enforceable upon defendant no. 2.
16 Suit so far as against Defendant no. 3 was dismissed for non prosecution vide order dt 27.09.2005 as plaintiff did not take steps to get the summons served upon defendant no. 3.
17 Defendant no. 4 filed the WS. However, it is matter of record that prior to filing of such WS on behalf of defendant no. 4 defence of defendant no. 4 was ordered to be struck off vide order dt 27.05.03.
18 It is matter of record that since it came in the CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 16/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
pleadings of defendant no. 2 that prior to filing the present suit, one M/s. Ravnit properties Pvt. Ltd had also filed a civil suit no. 1856/94 for relief of specific performance and damages in respect of same suit property, Interim application no. 7047/98, was allowed by the Hon'ble High Court by order dt 04.09.2000, whereby, above said M/s. Ravnit Properties Pvt Ltd was made defendant no. 5 in the suit. It is, however, also matter of record that right to file WS on behalf of defendant no. 5 was also closed by same order dt 27.05.2003. It is also matter of record that subsequently defendant no. 4 & 5 stopped appearing and thus were proceeded exparte.
19 On the basis of pleadings as come on the record following issues were framed on 07.02.2006: ISSUES I) Whether the plaintiff has not locus standi to file the suit? OPD2 II) Whether the suit is time barred? OPD2 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 17/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
III) Whether the defendant no. 1 is discharged due to deemed cancellation of deed of assignment dated 17.1195 because of non performance of its terms and conditions by plaintiff? OPD1 IV) Whether the plaintiff was always willing and ready to perform his part of assignment deed ? OPP V) Whether the plaintiff is entitled for a decree of specific performance or alternative reliefs as claimed in relief para no. (d) and (c) of plaint ? OPP VI) Whether the plaintiff is entitled for a decree of injunction as prayed in relief para no. (a) to (c) as prayed for? OPP (VII) Relief.
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20 During the course of trial four witnesses were examined on behalf of the plaintiff. PW1 is Satya Paul Record attendant, PW2 is Inder Singh from L&DO, PW3 is plaintiff no. 1 and PW4 is Ravinder Kumar from the office of SubRegistrar. On behalf of defendant no. 2, who is contesting the claim of the plaintiffs, two witnesses were examined. DW1 is defendant no. 2, Sh. Deepak Sigh Swami and DW2 is Satish Kumar Ahuja from Record Room Sessions.
21 It appears from the record that Predecessor of this court vide judgment dt 14.08.14 had earlier dismissed the suit. Ld. Predecessor of this court decided issue no. 1 & 4 against plaintiffs, primarily on the ground that plaintiffs have not been able to perform their part of agreement under deed of assignment Ex.PW3/3 by not paying the entire consideration amount of Rs. 13 lacs to defendant no. 1, prior to this suit as such the deed of assignment as relied upon by the plaintiffs was not concluded and enforceable. As such, it was held that plaintiff had no locus CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 19/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
to institute the suit and plaintiffs were also not ready and willing to perform his part of assignment deed. So far as issue no. 2, predecessor of this court in judgment dt 14.08.14 decided that issue against defendant no. 2 for want of any arguments on that issue. Issue no. 3 however, was also decided against defendant no. 1. Primarily in view of findings on issue no. 1 & 4 suit was dismissed.
22 Such findings of ld. Predecessor of this court, in judgment dt 14.08.14, was challenged in RFA no. 554/14. Such RFA No. 554/14, was disposed off whereby findings of predecessor of this court on issue no. 4 were reversed. As a consequence thereof, findings on issue no. 5 & 6 were also reversed. Hon'ble High Court, however, remanded back the matter to this court for fresh adjudication only on issue no. 4,5,6 & 7 with following observations: "9. Before I conclude, I must note that having regard to the huge lapse of time between the execution of the 1988 agreement and now, the trial court, if persuaded to grant relief to the appellants in their suit, would have regard to this aspect of the matter as well. In other CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 20/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
words, the trial court, as an alternative to specific performance, has options to grant of other reliefs as well. However, this is an aspect which falls squarely in the domain of the trial court, which I am sure it will consider.
10.In these circumstance, the impugned judgment is set aside vizaviz issue no. (iv), (v), (vi) & (vii). The matter is remanded to trial court for fresh adjudication qua the said issues. "
23 As such the matter was remanded back to this court with the above stated directions for giving findings only on issue no. 4,5, 6 & 7. I have heard counsels for the parties and has also gone through the written submissions filed on behalf of plaintiff. My findings on above mentioned issues are following: 24 ISSUE NO. 4 (Whether the plaintiff was always willing and ready to perform his part of assignment deed ?) 25 Onus to prove this issue was on plaintiff. On behalf of plaintiff four witnesses have been examined. PW1 is Satya CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 21/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
Pal, Record Attendant, Department of Delhi Archives who has proved the certified copy of GPA dt 09.05.74 registered on 13.05.74 before SubRegistrar, same is Ex.PW1/1. This is the GPA which was executed in favour of Smt. Usha Devi Swami, which is otherwise not disputed fact. PW2 is Inder Singh from L & DO who has proved mutation letter dated 16.07.90, in favour of late Smt. Usha Devi Swami, same is Ex.PW2/1. This document and the fact that Smt.Usha Devi Swami became owner of property in question after the death of Sh. Dayal Singh is also undisputed fact.
26 PW3 is plaintiff no. 1, Rajesh Kumar Jain who in his affidavit of examinationinchief has reproduced all those facts as are stated in the plaint. PW3 has referred to that Smt. Usha Devi Swami acting as attorney of Sh. Dayal Singh had entered into a registered agreement to sell dt 27.07.88, which is Ex. PW3/2(same document has been also proved by PW4 Ravinder Kumar from office of Sub Registrar.) PW3 further testifies that part of sale CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 22/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
consideration amount of Rs. 3,11,000/ was paid by defendant no. 1 to Sh. Dayal Singh through Smt. Usha Devi Swami. Balance amount of Rs. 5,89,000/ was agreed to be paid at the time of registration of sale deed. It was agreed under the above said agreement that Smt. Usha Devi Swami will obtain all the requisite permissions i.e. (i) to apply and obtain permission from L&DO as well as Income Tax Authority in Form 34A; (ii ) After obtaining such permissions to intimate defendant no. 1 by registered AD Post. After the receipt of such intimation from Smt. Usha Devi Swami, balance sale consideration was to be paid by defendant no. 1 within 30 days , at the time of execution of sale deed in favor of defendant no. 1 or his nominee.
27 PW3 further testifies that while the performance of above said agreement to sell, dated 27.07.88, was pending and before Smt. Usha Devi Swami could obtain requisite permissions and clearance, she expired on 28.02.94. PW3 further says that in the meantime on 17.11.95, defendant CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 23/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
no. 1 assigned his rights and interest under the above said agreement to sell Ex.PW3/2 in favour of plaintiffs vide a deed of assignment dated 17.11.95which is Ex.PW3/3. PW 3 says that under the terms and conditions of such deed of assignment, a sum of Rs. 4 lacs was paid by plaintiffs to defendant no. 1 and another sum of Rs. 9 lacs was agreed to be paid by plaintiffs to defendant no. 1, at the time of registration of sale deed, after obtaining all requisite permissions and clearances. Remaining amount of Rs. 5,89,000/ was agreed to be paid by plaintiffs to Smt. Usha Devi Swami. PW3 says that by such deed of assignment, all the rights of defendant no. 1 under the agreement to sell Ex.PW3/2 passed on to plaintiffs who were made nominees of defendant no. 1. It is stated that even under the agreement to sell, dt 27.07.88 Smt. Usha Devi Swami has consented for nominees of defendant no. 1 if any. PW3 further refers to GPA executed by defendant no. 1 in favour of plaintiff's no.1 father, same is Ex.PW3/4.
28 PW3 further testifies that plaintiffs have all through CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 24/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
been ready and willing to perform their part of agreement. On the request and representation of Defendant no. 1 that mutation of suit property in favour of defendant no. 2 was pending and therefore, some finance is required to get the needful. PW1 says that plaintiffs further paid sum of Rs. 5 lacs on different dates vide different demand drafts of Rs.1 lac each dt 11.04.96, 25.10.96, 05.11.96 which are Ex.PW 3/5 to Ex.PW3/7. Copies of pay orders of Rs. 1 lac each dt 25.07.96 and 14.08.96 are Mark C and D. PW3 further testifies that despite making aforesaid payments to defendant no. 1, defendant no. 1 and 2 failed to perform their part of contractual obligations. Although they had been promising to perform the same by obtaining requisite permissions and clearance.
29 While I pause here to further discuss the evidence, having considered the evidence as come on record, I find that it is not disputed in the pleadings that an agreement to sell dated 27.07.88 was executed between defendant no. 1 and Smt. Usha Devi Swami acting as attorney of Dayal CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 25/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
Singh. It is also undisputed fact that under the such agreement to sell Ex.PW3/2, which was duly registered, owner was to be paid total consideration amount of Rs. 9 lacs out of which Rs.3,11,000/ were paid at the time of execution of agreement to sell. Balance amount of consideration was to be paid at the time of execution and registration of sale deed. It is also matter of record under the agreement Ex.PW3/2, that owner of the property in question was required to obtain approval from L&DO and also to obtain clearance from Income Tax Authorities as is required under Section 230A of Income Tax Act, 1961 (as per Clause 5 & 6 of agreement Ex.PW3/2). In such facts and circumstance if for issue under consideration, defendant no. 1 has admittedly entered into a deed of assignment dt 17.11.95 with plaintiffs which is a registered document being Ex.PW3/3. Terms of such deed of assignment, are required to be read along with agreement to sell Ex.PW3/2. Under the deed of assignment, total amount of Rs. 13 lacs was agreed to be paid to defendant no. 1. out of which Rs. 4 lacs were paid by plaintiffs to CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 26/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
defendant no. 1 at the time of execution of assignment deed and thereafter another sum of Rs. 5 lacs were also paid by plaintiffs as is evident from receipts of demand drafts Ex.PW3/5 to PW3/7 as well as copies of pay orders Mark C and D. On these payments, PW3 has not been cross examined at all on behalf of the defendant no.1. As such nothing has come in the evidence of PW3 to show that plaintiffs were never willing and ready to perform their part of obligations under the deed of assignment.
30 In this regard, it must be understood that agreement to sell Ex.PW3/2 and Deed of assignment Ex.PW3/3 are required to be read in supplement to each other. In agreement to sell Ex.PW3/2, it was stipulated that sale deed can be executed in favour of defendant no. 1 or his assignee. Here, I may refer the observations given by the Hon'ble High Court while disposing off RFA No. 554/14, vide judgment dated 09.07.15. Hon'ble High Court while reversing the findings of Predecessor of this court, on Issue No. 4 had made following observations: CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 27/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
7. Therefore, having regard to the aforesaid facts, the issue which required to be addressed is : whether the trial court was right in reaching a conclusion visa vis issue no. (iv) that the appellants were neither ready nor willing to perform the obligation cast on them? According to me, conclusion reached by the trial court is erroneous for two reasons. First, the assignment deed is inextricably linked to the 1988 agreement. The appellants, upon execution of the assignment deed, acquired all rights and obligations which enured in favour of respondent no. 1 under the 1988 agreement. 7.1 Second, the 1988 agreement clearly postulated that the owner (now represented by respondent no. 2) will get the balance consideration of Rs.5.89 lacs at the time of registration of the sale deed and that eventuality would occur only upon the owner (i.e. respondent no. 2) obtaining the approval of the L&DO/ respondent no. 4. As a matter of fact, the owner was required to issue a notice to that effect to respondent no. 1, whereupon his obligation to pay the balance consideration was to arise and, that sum, was required to be paid within thirty (30) days of receipt of such a notice.
7.2 As indicated above, no such eventuality arose, and consequently, no notice was issued by the owner i.e. respondent no. 2.
7.3 The trial court, however, has overlooked this aspect of the matter and focused its attention on the fact that the appellants have not paid respondent no. 1 the balance sum of Rs. 4 lacs under the assignment deed. This observation of the trial court, in my view, obfuscates the fact that the appellants' had secured rights under the assignment deed so that they could effectively step into the shoes of respondent no. 1, and CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 28/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
thereby, secure the right, title and interest in the suit property. Therefore, the trial court's conclusion that the appellants were not ready and willing to perform their part of the obligation is, in my view, flawed.
8. Accordingly, the finding reached by the trial court in respect of issue no. (iv) is reversed. The necessary effect of the same will be that the trial court's finding visavis issue no. (v) and (vi) would also have to be reversed. Issue no. (vii), essentially, deals with relief which is to be finally accorded in the matter."
31 This court find itself bound by such observations / findings as already given by the Hon'ble High Court in judgment dated 09.07.15 in RFA No. 554/14. Beside it as it has already been noted that nothing has come in the cross examination of PW3 to show that there was any lack of ready and willingness on the part of plaintiff to perform their obligations under the deed of assignment. Here, it is also appropriate to note that defendant no. 1 has not appeared in the witness box to substantiate those facts as stated in his pleadings. Whereas, defendant no. 2 Deepak Singh Swami has appeared as DW1. His evidence so far as issue under consideration is silent. Therefore, for the reasons as discussed above, I find that plaintiff has been CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 29/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
able to establish his willingness and readiness to perform his part under the assignment deed Ex.PW3/3. Issue accordingly decided in favour of plaintiffs and against defendant no. 1.
32 ISSUE NO. 5(Whether the plaintiff is entitled for a decree of specific performance or alternative reliefs as claimed in relief para no. (d) and (c) of plaint ?) 33 Adjudication of this issue, to my mind involves the most material aspect of this matter. As it has already been noted above that Hon'ble High Court while remanding back the matter has specifically noted that there has been huge lapse of time between the execution of 1988 agreement and now. Therefore, it was left for this court to decide whether relief of specific performance in the facts and the evidence as come on the record should be given or not. Finding in favour of plaintiffs for issue no. 4 ipsofacto, does not make out a case to decree of specific performance.
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In terms of section 20 of Specific Relief Act, court has to still examine, whether equitable relief of Specific Performance should be given to plaintiffs as against defendant no. 2 (owner ). After taking note of fact that agreement to sell is of 1988, deed of assignment is of 1995 and then suit was filed in 1997. Today we are in year 2017. Beside time period, effect of deed of assignment in favour of plaintiffs visavis Defendant no. 2 as well as conduct of parties has to be taken into consideration.
34 In this regard, Ld. Senior Counsel for plaintiffs has submitted that fact that a considerable time has elapsed in between for adjudication of the matter, cannot by itself be a reason to decline the relief of specific performance. While relying upon judgments of Apex Court in Zarina Siddiqui vs. A. Ramalingam 2015 (1)SCC 705, SVR Mudaliar (Dead) Through LR's and Others vs. Rajabu F. Buhari AIR 1995, SC 1607, Prakash Chandra vs. Angad Lal and Ors. AIR 1979 SC 1249, Judgment of Delhi High Court in Raj Kumar Verma vs. Pushpa CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 31/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
Jaggi and ors. AIR 2006 DEL. 156, it is submitted that discretion to award relief of specific performance or not, is to be exercised judiciously and if the case is made out for grant of specific performance, delay or escalation of price of property, cannot be a reason to decline such relief. He further submitted while relying the observation of Supreme Court's decision in Nirmala Anand's case (2002) 8 SCC 146 that it is settled law that court in its discretion can impose reasonable condition while giving relief of specific performance including payment of additional amount, having regard to the time, and other facts. It is submitted that plaintiffs will bound by any such directions if given for payment of additional amount, beside amount of consideration to be paid under the agreement.
35 Counsel for the defendant no.2 on the other hand submits that the present suit for relief of specific performance is essentially based on agreement to sell dated 27.07.88, and suit was filed in year 1997. He submits CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 32/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
that plaintiffs are claiming right to seek relief of specific performance on the basis of Deed of Assignment dt 17.11.95. Which Defendant no. 2 has denied and has not been privity to any such deed. He submits that from the date of agreement to sell till filing of suit there was a lapse of about 10 years and there is nothing to show on the record that defendant no. 1(Purchaser), kept the contract alive. If plaintiffs claims to have stepped into shoes of defendant no. 1, it was obligatory for them also that such agreement dt 27.07.88 was alive and was not lapsed. It is further argued that from 1988 to 1995, agreement Ex.PW3/2 remained in abeyance and there is no correspondence between the parties, proved on the record. As such, even as per the provisions of Article 54 of Limitation Act, such claim for specific performance was barred by limitation. He further argues that even there is no privity of contract between defendant no. 2 and plaintiff. He submits that relief of specific performance cannot be enforced in favour of plaintiffs against defendant no. 2 when defendant no. 2 was not privity to alleged deed CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 33/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
of assignment. Counsel for the defendant no. 2 has relied upon the Suryagandhi vs. Lourduswami AIR 2004 Madras 8, K.S. Vidyanandam and ors. vs. Vairavan (1997) 3 SCC Page 1. I have also gone through written submissions filed on behalf of Defendant no. 1.
36 Having considered the submissions of ld. counsels for the parties and the evidence on the record, even if this court might have given the findings on Issue no. 4 in favour of Plaintiffs herein but it be noted that such issue is with regard to plaintiff's ready and willingness to perform their obligations under the deed of assignment between them and defendant no. 1. Now, under this issue this court is considering as to whether relief of decree of specific performance should be given to plaintiff against defendant no. 2 who is the owner of the property in question. Question whether relief of specific performance should be granted or not is a matter of discretion which of course must be judicious and based on well prescribed principles in section 20 of Specif Relief Act. After considering the CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 34/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
evidence on the record as well as the conduct of parties. Since question of giving relief of specific performance or to decline it is dependent on various aspects, therefore, there cannot be any specific proposition of law of universal application. Facts of each case and conduct of parties are to be examined in deciding this aspect. As such though judgments relied upon are binding and guiding factors but it is to be seen whether facts of the present case are similar to the judgments relied upon or not.
37 Keeping above discussed legal proposition while there may not be denial to the submissions of ld. Senior counsel for the plaintiffs that delay or escalation of price of property, cannot be a reason to decline the relief of specific performance in every case. I further accept submissions that relief of Specific Performance can be given with directions to plaintiffs for addition payment of amount beside sale consideration, having regard to priceescalation of property. But, as I have noted above, such relief and directions, can be given after examining all aspects of a CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 35/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
particular suit. While agreeing with the ratio laid down by the Apex Court in Nirmala Anand's case (SUPRA), wherein it was held that "... it is well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to other, while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay additional amount to seller or converse, would depend upon facts and circumstance of a case. Ordinarily plaintiff is not to be denied relief of specific performance only on account of phenomenal increase of price during the pendency of litigation. This may be, in a given case, one of the consideration beside many others to be taken into consideration for refusing the decree of specific performance......."
38 Thus, it is evident from the above mentioned judgment that ultimately while balancing the equities, it is to be borne in mind, whether a party is trying to take an undue advantage over the other as also hardship may be CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 36/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
caused to defendant by directing specific performance. As stated above, no legal proposition of universal application can be applied in each case. In the present case, keeping in view the provisions of Section 20 of Specific Relief Act, I find the plaintiffs are not entitled for relief of specific performance because Firstly, in the facts of the present case, admittedly agreement to sell was between defendant no. 1 and Smt. Usha Devi Swami being attorney of Sh. Dayal Singh, this agreement was of 27.07.88. It was no doubt stipulated under that agreement that owner will obtain necessary approvals / permissions from L&DO and IT Authorities and thereafter, inform to the defendant no. 1 who would make the payment of balance sale consideration within 30 days thereof to complete the entire transaction. Evidently, reading of this agreement to sell Ex.PW3/2, though shows that no specific time limit was fixed for completing the transaction but it was obligatory on both purchaser and seller to complete the transaction within reasonable time. If according to plaintiffs Smt. Usha Devi Swami in her lifetime did not obtain necessary CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 37/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
permissions / approvals, onus was not only on seller but was equally upon purchaser to ensure that transaction can come to logical end. In facts of matter, owner of property Dayal Singh died on 10.10.88 and thereafter Smt. Usha Devi Swami also expired on 28.02.94. By that time, no deed of assignment was executed. Question arises, what steps were taken by Defendant no. 1 to ensure completion of transaction or to inquire whether permission / approvals were taken or not. It not taken, what difficulties are coming in this regard. This was obvious for defendant no. 1 to inquire, to ensure whether deal was kept alive and subsisting.
39 It can never be the spirit / intention of law nor even in a private covenant to keep the things pending for perpetuity. After 27.07.88 till 17.11.95 when deed of assignment was executed by defendant no. 1, no steps were taken by defendant no. 1 to complete the transaction. By necessary implications and keeping the provisions of limitation act in mind, it appears that agreement was CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 38/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
lapsed by time. There is nothing on the judicial record to show that any effort by made even by defendant no. 1 to establish that agreement was subsisting and binding upon parties. Here, it is also important to note that defendant no. 1 filed the WS taking different objection to contest the claim of plaintiff but has not appeared in the Witness Box. This circumstance, clearly create a tilt in favour of defendant no. 2 and against plaintiff, regarding grant of relief of Specific Performance.
40 Secondly, after about 7 years of agreement to sell Ex.PW3/2 dated 27.07.88, a deed of assignment was executed between plaintiffs and defendant no. 1 on 17.11.95 which is Ex.PW3/3. Even if I may do not go in details of the terms of such deed of assignment, one obvious question which immediately arises in mind is as to whether prior or after execution of such deed of assignment dt 17.11.95 whether defendant no. 2 being owner of the property in question was kept in loop or was made aware about execution of any such deed of assignment in favour CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 39/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
of plaintiff. Even if there may not be any requirement of law to give any notice to the owner of the property in respect of any inter se arrangement between proposed purchaser of the property and the assignee under the Deed of Assignment, however, this aspect assume importance to at least consider whether such deed of assignment which is so belatedly executed will cause any undue hardship to the owner or not.
41 In the facts of the present case, I find that owner will certainly suffer undue hardship if equitable relief of specific performance is granted to plaintiff on the basis of such deed of assignment Ex.PW3/3. Here, it is important to refer the evidence of PW3, Rajesh Kumar Jain who in his cross examination has admitted that no notice was issued to defendant no. 2 after 1995. That witness has also admitted that he is not aware about the present status of the construction of property in question as he lastly visited the property only in year 2000. Thus, when the owner of the property from whom the relief of specific performance CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 40/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
has been sought has not been given either prior or previous notice after execution of any deed of assignment dt 17.11.95 between plaintiff and defendant no. 1, I find that filing of suit in year 1997 by plaintiffs on the basis of such deed of assignment dt 17.11.95 would certainly caused undue hardships upon defendant no. 2 keeping in view the conduct of plaintiff and even for that matter also of defendant no. 1. In this context, it is important to note that plaintiffs, though seeking relief of specific performance against Defendant no. 2, but never even bothered to send any letter or notice, to Defendant no. 2, prior to filing present suit, informing about deed of assignment. Such conduct certainly speaks volumes.
42 Thirdly, even if Issue No. (iv) has been decided in favour of plaintiff and this court found itself to be bound by fining already given by Hon'ble High Court in reversing the finding of predecessor of this court. It is to be noted that in entire evidence of PW3, there is no proof of plaintiffs having availability of money and communicated CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 41/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
to Defendant no. 2 that they are waiting for clearance / approval and ready to pay balance sale consideration to Defendant no. 2.
43 Fourthly, the claim of the plaintiff as stated in the plaint as well as in the evidence of PW3 is that at the time of execution of agreement to sell dt 27.07.88, symbolic possession of first floor of the suit property stated to have been handed over to defendant no. 1/ proposed purchaser along with physical possession of terrace of suit property. It was also stated in the agreement Ex.PW3/2 itself that defendant no. 1 shall be entitled to receive / recover the rent from the tenant (defendant no. 3) and to issue receipt and to deal with the tenant in all respects to get tenant evicted through process of law. However nothing has come on the record to establish such symbolic possession of first floor of the property and physical possession of terrace of the property was with defendant no. 1. here it is important to refer the pleadings of defendant no. 2 who has appeared in the witness box as DW1 and has testified that suit CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 42/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
property remained in possession / control of his mother in her lifetime and she had been collecting rent from the tenant. After her death, DW1 says that he has been collecting rent from the tenant / defendant no. 3 and no one had possession of the suit property,till date.
44 In view of such fact as stated above, it was all the more necessary for the plaintiff to explain as to how constructive possession of first floor and physical possession of terrace of the suit property as claimed to have given to defendant no. 1 at the time of execution of agreement to sell Ex.PW3/2 was not with defendant no. 1 at the time of execution of deed of assignment in favour of plaintiffs. PW3 has admitted in cross examination that Ramesh Aggarwal / Defendant no. 3 had never given any rent to him after 1995. PW3 further admitted that he is not in possession of ground floor of property in question. PW3 further stated that he is not aware whether defendant no. 1 had not taken possession of the property from defendant no. 2. These facts also to my mind CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 43/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
certainly create doubt as to the claim of plaintiffs visavis defendant no. 2 for relief of specific performance.
45 Fifthly, another important aspect to be highlighted here is that defendant no. 2 has specifically pleaded in the pleadings and testified in the evidence as DW3 that prior to filing of the present suit, M/s. Ravnit Properties Pvt. Ltd. (defendant no. 5) had filed a civil suit no. 1856/94 against defendant no. 2 and defendant no. 1 herein for relief of specific performance in respect of same suit property. In that suit also plaintiff / defendant no. 5 herein had claimed that defendant no. 1 had entered into an agreement in respect of same suit property and also executed GPA dt 07.03.92. Even if the copy of plaint of suit no. 1856/94, alleged GPA dt 07.03.92 in favour of defendant no. 5 and other notice and reply as relied upon by DW1 in his evidence have not been proved but these facts being otherwise matter of record, certainly create doubt as to the claim of plaintiff as well as of defendant no.
1. Thus for the reasons discussed above I find the CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 44/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
discretionary relief of specific performance cannot be granted to the plaintiff as it would cause undue hardship upon defendant no. 2 herein.
46 So far as judgments as relied upon, in Zarina Siddiqui's case (SUPRA), in that case though Hon'ble Supreme Court has discussed the scope and extent of "discretion" to be exercised by the court of law for grant of relief of specific performance. However, in peculiar facts of that case, first defendant was owner of onethird undivided share in the property in question and had given a power of attorney in favour of his brother / defendant no. 2. It is on the basis of such attorney second defendant had entered into an agreement to sell with plaintiff in respect of one third share of defendant no. 1 in the property for total consideration of Rs. 40000/ out of which Rs. 5000/ was paid at the time of agreement to sell. Trial court had decreed the suit, however, in High Court decree was set aside and suit was partly decreed by refusing to grant specific performance and to award repayment of CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 45/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
consideration amount with interest. Such findings were set aside by the Hon'ble Supreme Court by holding that even if a copy of Power of Attorney was shown to DW1 in cross examination who admitted his signatures, therefore, it was held that adverse inference was required to be drawn against defendants for not producing the original power of attorney which was in their possession.
47 It is in such factual background, Hon'ble Apex Court discussed about the judicial discretion and scope and extent of the same, while referring to different judgments on that aspect and finally concluded that plaintiff in the facts of that case was entitled for relief of specific performance. It was specifically held that equitable discretion to grant or not to grant relief of specific performance also depends on the conduct of parties. It is evident from the above discussion of facts of that case that circumstance in that case were altogether different. However, there can hardly be any dispute regarding the basic proposition of law as laid down in that judgment.
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48 Another judgment as relied SVR Mudaliar (Dead) Through LR's and Others (SUPRA), even facts of that case were also altogether different. No doubt in para 27 of that judgment, it was laid down that specific performance cannot be refused merely on the ground that price of the property in question has risen during pendency of litigation. Again there can hardly be any denial to such proposition as propounded in that judgment. However, in the present case, relief of specific performance is not being denied only because that price of the property in question have escalated till the pendency of the present suit.
49 Another judgment is Prakash Chandra's case (SUPRA), in that case Hon'ble Apex Court had again discussed the scope of discretion to be exercised in grant / refusal of relief of specific performance, in the light of section 20 of SR Act. It was laid down in that case " the ordinary rule is that specific performance should be granted. It aught to be denied only when the equitable CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 47/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
consideration point to its refusal and circumstances show that damages would constitute an adequate relief. " Facts of that case were that after entering into an agreement to sale, proposed purchaser was informed about pendency of suit already pending in respect of same property, thereafter another document was executed which resulted in settlement of confirming ownership of one of the seller. Despite such compromise, sale document was not executed and therefore suit for specific performance was filed. In such circumstance it was held by the Apex court that plaintiff / appellant was entitled for specific performance. In the present case, however, factual situation is different and therefore, even if the legal proposition as laid down in that judgment is applied, still relief of specific performance, to my mind cannot be given to plaintiffs in this case.
50 In view of my above said discussions of the fact, I am of the considered view that plaintiffs who have derived the right to seek specific performance from defendant no. 1 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 48/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
under the deed of assignment, are not entitled for relief of specific performance. Plaintiffs to my mind is entitled for alternate relief as sought for refund of amount of Rs.9 lacs as paid by them to defendant no. 1 under the deed of assignment. As such plaintiffs are entitled for refund of such amount of Rs. 9 lacs with interest @ 12 % from 17.11.95 till realization, from defendant no. 1 only. I do not find that plaintiffs can claim any relief of damages etc from defendant no. 2 because essentially the agreement to sell was between owner and defendant no. 1. Defendant no. 1 has already left that agreement and did not seek enforce that agreement. So far as Plaintiffs, even if they claim to have stepped into the shoes of Defendant no. 1, but they cannot even be given alternative relief of damages against Defendant no. 2, because of similar reasons as discussed above. As well as noting that Defendant no. 2 has denied about deed of assignment Ex.PW3/3. Nothing came in cross examination of DW1, to establish any legal right against Defendant no. 2. Plaintiffs, therefore, cannot claim any monetary relief from defendant no. 2 on the basis of the CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 49/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
Deed of Assignment as under that deed, defendant no. 2 cannot be made liable as he was not party to that document. Therefore, plaintiffs to my mind have failed to establish any legal right to claim any amount from defendant no. 2. Issue Accordingly decided partly in favour of plaintiffs.
51 ISSUE NO. 6(Whether the plaintiff is entitled for a decree of injunction as prayed in relief para no. (a) to (c) as prayed for?) 52 Plaintiffs have sought relief of injunction against defendant no. 3 to restrain him from handing over of possession of ground floor of the suit property to any other person except plaintiff. Such relief of injunction against defendant no. 3 cannot be granted to plaintiff because it has come on the record that defendant no. 3 has already handed over the possession and presently the possession of the suit property is with defendant no. 2. considering the CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 50/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
evidence of PW3 even otherwise such relief cannot be granted only on the basis of deed of assignment.
53 Plaintiffs have also sought relief of injunction against defendant no. 1 and 2 to restrain them from selling, or alienating the property in question. In view of my findings on issue no. 5 as it has already been held that plaintiffs are not entitled for relief of specific performance, I find the plaintiffs are also not entitled for relief of injunction for same reason.
54 Another relief of injunction was sought by the plaintiff against defendant no. 4 / L&DO. Such relief is also being declined on account of findings on issue noi. 5. accordingly, this issue stands decided agaisnt the plaintiffs.
ISSUE NO. VII / RELIEF In view of my findings on the issue no. 4, 5 and 6, suit of the plaintiff stands decreed partly to the extent that CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 51/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
plaintiffs are entitled for recovery of Rs. 9 lacs from defendant no. 1 with interest @12% pa. However, plaintiff is not entitled for relief of decree specific performance and permanent injunction, suit so far as those reliefs stands dismissed. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open court:
Today i.e. 18.08.2017 (SHAILENDER MALIK) ADJ3 (CENTRAL) TIS HAZARI COURTS DELHI CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 52/52 CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.CS No.831/16 New CS No. 14241/16
Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors.
18.08.2017 Present: None Vide separate order of even date dictated and announced in the open court, suit of the plaintiff stands decreed partly to the extent that plaintiffs are entitled for recovery of Rs. 9 lacs from defendant no. 1 with interest @12% pa. However, plaintiff is not entitled for relief of decree specific performance and permanent injunction, suit so far as those reliefs stands dismissed. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
(SHAILENDER MALIK) ADJ3 (CENTRAL) TIS HAZARI COURTS DELHI CS No.831/16 New CS No. 14241/16 Sh. Rajesh Kumar & Anr. vs. Harish Kataria & Ors. Page 53/52