Delhi District Court
Sanjay Gupta vs Sh. Hazari Lal on 4 July, 2018
IN THE COURT OF MS. SHUCHI LALER, ADDITIONAL DISTRICT
JUDGE, EAST DISTRICT, KARKARDOOMA COURTS, DELHI.
Suit No.1722/16/95
In the matter of:
Sanjay Gupta
S/o Sh. Lala Ram Gupta,
R/o 6, Anand Lok,
New Delhi ......... Plaintiff
Versus
1. Sh. Hazari Lal
S/o Late Sh. Ram Kishan (deceased)
Through LRs
1 (a) Smt. Basanti, W/o Sh. Mattoo Ram (Daughter)
1 (b) Sh. Narayan, S/o Sh. Hazari Lal (Son)
1 (c) Sh. Rakesh, S/o Sh. Hazari Lal (Son)
2. Sh. Harish,
S/o Late Sh. Ram Kishan,
3. Sh. Chotte Lal,
S/o Late Sh. Ram Kishan,
4. Sh. Narain Singh,
S/o Late Sh. Ram Kishan,
All residents of
Village and P.O. Bijwasan
Tehsil Mehrauli
New Delhi-110030.
5. Iqbal Singh
S/o Sh. Karan Singh
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.1 of 45
R/o Village & Post Mundka
Delhi ......... Defendants
Date of Institution : 17.10.1995
Date of Final Argument : 12.04.2018
Date of Pronouncement : 04.07.2018
SUIT FOR SPECIFIC PERFORMANCE,
DAMAGES AND INJUNCTION.
JUDGMENT :-
1. This suit for specific performance, damages and injunction has been filed with respect to document dated 18.02.1992 qua defendant no. 1 to 4's 1/32nd share in the agricultural lands bearing Khasra No.49/7/1 measuring 2 bighas 14 biswas; Khasra No. 49/8 measuring 2 bighas and 12 biswas; Khasra No. 49/9 measuring 2 bighas; Khasra No. 49/12 measuring 2 bighas and 8 biswas; Khasra No. 49/13 measuring 4 bighas and 16 biswas; Khasra No. 49/14 measuring 4 bighas 11 biswas; Khasra No. 49/17/1 measuring 1 bigha 12 biswas; Khasra No. 49/18/1 measuring 1 bigha and 12 biswas; Khasra No. 49/19/1 measuring only 18 biswas; Khasra No. 49/26 measuring 1 bigha 7 biswas and Khasra No. 169 measuring 30 bighas 15 biswas, total measuring 55 bighas 5 biswas, to the extent of about 1 bigha 15 biswas situated in village Bijwasan, Tehsil Mehrauli, New Delhi (hereinafter referred to as suit property).
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.2 of 45
2. BRIEF HISTORY OF LITIGATION Date Particulars 16.10.1995 Instant Suit filed before Hon'ble Delhi High Court by plaintiff Sh. Sanjay Gupta against defendant no. 1 to 4.
17.10.1995 Suit admitted. Ex parte injunction passed against defendant no. 1 to 4 restraining them from transferring, alienating, parting with possession and creating any third party interest in the suit property.
23.11.1995 Local Commissioner Sh. L.B. Rai appointed to inspect the suit property and to prepare note regarding the existing position at the suit property.
27.12.1995 Hon'ble High Court restrained the parties as well as transferee Sh. Iqbal Singh from raising any further construction. 24.09.1999 Application under Order I Rule 10 CPC of Sh. Iqbal Singh, Sh.
Shamsher Singh and Sh. Ashok Kumar dismissed. 14.12.1999 By consent order, Sh. Iqbal Singh was allowed to be impleaded as defendant no. 5 by Division Bench of Honble Delhi High Court in FAO (OS) No. 361/99 against order dated 24.09.1999.
19.01.2001 Order dated 24.09.1999 challenged in FAO (OS) No. 13/2000 by Sh. Shamsher Singh and Sh. Ashok Kumar but the same was dismissed.
13.03.2000 Amended plaint filed by the plaintiff seeking same relief against defendant no. 1 to 4 and additional relief against defendant no.
5.08.08.2002 Defendant no. 1 to 4 did not file written statement to amended plaint. Right to file WS was closed and was proceeded ex parte. WS has only been filed by Sh. Iqbal Singh. 05.09.2003 Value of suit being less than Rs. 20 lakhs, the suit was transferred to Ld. District Judge.
03.06.2004 Application under Order 9 Rule 7 CPC moved by defendant no.
1 to 4 was allowed and ex parte order dated 08.08.2002 was set aside.
01.07.2008 Another application under Order 22 Rule 4 CPC was filed for impleadment of LRs of deceased Sh. Hazari Lal and was allowed on 01.07.2008.
21.07.2008 Five Issues framed on the basis of pleadings. 04.09.2013 Local Commissioner Sh. Vishwajeet Mangla, Advocate appointed to record evidence of plaintiff in court between 3 to 5 pm. Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.3 of 45 24.11.2016 Plaintiff's evidence closed.
20.03.2018 Defendant's evidence closed.
12.04.2008 Final arguments addressed on several dates and finally concluded on 12.04.2018.
PLAINT
3. In nutshell, case of the plaintiff is that late Sh. Ram Kishan (father of defendant no. 1 to 4) had agreed to sell the suit property, vide an Agreement to Sell dated 18.02.1992 (hereinafter "the Agreement"), for a total sale consideration of Rs.4,35,000/-. Late Sh. Ram Kishan received a sum of Rs.30,000/- in cash on 18.02.1992 and Rs.35,000/- vide cheque no. 677750 dated 18.02.1992 drawn on American Express Bank Ltd., New Delhi towards earnest money, at the time of execution of the Agreement. The balance sale consideration of Rs.3,90,000/- was agreed to be paid at the time of execution and registration of the sale deed before the Sub Registrar, New Delhi and after handing over the possession of the suit property. It was also agreed and / or understood that late Sh. Ram Kishan would obtain necessary 'No Objection Certificate' from the office of A.D.M(LA) and Income Tax Clearance Certificate in form 34-A from the Income Tax authority. Despite repeated requests of the plaintiff, late Sh. Ram Kishan did not obtain the aforesaid 'No Objection Certificates'. In the month of April, 1995, the plaintiff came to know that the suit property was being offered for sale so vide legal notice dated 05.05.1995 and 02.06.1995, defendant no. 1 to 4 were called upon to perform the part of contract of their father late Sh. Ram Kishan and to get the sale deed registered with Sub-Registrar Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.4 of 45 after receiving balance sale consideration and also to hand over the vacant possession of suit property to plaintiff but to no effect. Plaintiff was always ready and willing to perform his part of contract by paying balance sale consideration to defendant, on execution of sale deed. But it is the defendant no. 1 to 4 who were not ready and willing to execute the sale deed. The defendant no. 5 in collusion with defendant no. 1 is falsely alleging that defendant no. 3 and defendant no. 4 have sold their share to the extent of 15 ½ biswa each in the suit property to him.
Hence, the present suit.
WRITTEN STATEMENT
4. Defendant no. 1 to 4 have not preferred to file any written statement on record. Defendant no. 5 has contested the present suit by filing written statement, wherein he has taken a preliminary objection that the instant suit is barred by time. It has been alleged that the agreement to sell was executed on 31.03.1992 whereas the suit has been filed in October, 1995. It has also been alleged that there is no privity of contract between plaintiff and defendant no. 2. The defendant no. 1 to 4 are neither the co bhumidar nor in possession of the suit property. The defendant no. 5 has purchased the share of defendant no. 3 and 4 vide separate sale deeds. A memorandum of understanding dated 18.05.1995 was executed between defendant no. 3 and defendant no. 5 against a valid consideration of Rs.1,37,500/- for sale of 15.5 biswa of suit property. Similarly, another MOU dated 19.05.1995, was executed Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.5 of 45 between defendant no. 5 and defendant no. 4 with respect to another 15.5 biswa of the suit property. Both defendant no. 3 and 4 delivered possession of their respective share in the suit property to defendant no.5 on execution of the aforesaid MOUs. Two separate agreement to sell dated 25.05.1995 and receipts were executed by defendant no. 3 and 4, subsequently, two sale deeds were executed by defendant no. 3 and 4 on 20.11.1995 in favour of defendant no. 5 for 16 bighas each which were duly registered on 22.11.1995. The defendant no. 5 was not aware of any agreement between the plaintiff and late Sh. Ram Kishan at the time of execution of the sale deed.
Remaining material averments have been denied and dismissal of the suit with cost has been prayed for.
REPLICATION
5. Plaintiff has not preferred to file replication to WS of defendant no. 5.
ISSUES
6. Issues were struck by Ld. Predecessor on 21.07.2008, which are as under :-
(i). Whether the suit is barred by time?OPD (ii). Whether the plaintiff is entitled to decree for specific
performance of agreement dated 18.02.1992 and the possession of the suit property? OPP
(iii). Whether defendant no.1 signed the agreement to sell without Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.6 of 45 understanding the contents of the agreement to sell? OPD.
(iv). Whether the sale deed dated 20.11.1995 executed between defendant no.1 and 2 are binding on the plaintiff and whether defendant no. 2 is a bonafide purchaser? OPD.
(v). Whether the plaintiff is entitled for damages in case the relief for specific performance is declined?
(vi). Relief.
Parties were directed to lead evidence.
PLAINTIFF'S EVIDENCE
7. In support of his case, the plaintiff has stepped into the witness box as PW-1 and tendered his evidence by way of affidavit, which is Ex.PW1/1. He has relied upon the following documents:-
Agreement to Sell dated 18.02.1992 as Ex. P-1; Notice dated 05.05.1995 as Ex.P-2;
Notice dated 02.06.1995 as Ex.P-3;
UPC Receipts as Ex.P4 (colly);
Returned envelopes as Ex. P-5 (colly.) PW-2 brought the original Register pertaining to NTPC Bonds Ex. PW-2/1 and terms of conditions of the bonds certificate, Ex. PW-2/2 (OSR).
PW-3 brought the computer generated Accounts Statement Ex. PW-3/1 (colly.) and Ex.PW-3/2 (colly), photocopy of summary of investment in mutual funds Ex. PW-3/3 (colly) and cover note issued by Standard Chartered Bank as Ex. PW-3/4.
PW-4 brought the certified true copies of list of bonds Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.7 of 45 Ex.PW-4/1, certified copy of extracts from the bond transfer register Ex. PW-4/2, certified copy of interest payment register, details of warrant issued for non cumulative bonds for the period of 01.10.1994 to 31.03.1995 as Ex.PW-4/3, one sample bond certificate duly certified of the series of the certificate issued in favour of the plaintiff as Ex.PW-4/4 (colly.).
The aforesaid witnesses have been duly cross examined on behalf of defendants. Thereafter, plaintiff's evidence was closed.
DEFENDANTS' EVIDENCE
8. Defendant no. 1 to 4 did not prefer to lead any evidence in the instant suit. Defendant no. 5 has stepped into the witness box as DW2 and tendered his evidence by way of affidavit which is Ex. DW2/A. He has relied upon the following documents:-
MOU dated 18.05.1995 as Ex. DW-2/1;
Affidavit by Sh. Narain Singh and Sh. Chhote Lal dated
09.11.1999 as Ex. DW-2/2;
GPA dated 09.11.1995 as Ex. DW-2/3;
Agreement to Sell dated 25.05.1995 executed by Sh. Chotte Lal as Ex. DW-2/4;
Will dated 09.11.1995 executed by Sh. Chhote Lal as Ex. DW- 2/5;
Receipt dated 25.05.1995 as Ex. DW-2/6;
Receipt dated 09.11.1995 as Ex. DW-2/7;
MOU dated 19.05.1995 as Ex. DW-2/8;
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.8 of 45 Agreement to sell dated 25.05.1995 executed by Sh. Narain Singh as Ex. DW-2/9;
Will dated 09.11.1995 executed by Sh. Narain Singh as Ex. DW-2/10;
Receipt dated 25.05.1995 as Ex. DW-2/11;
Sale deed dated 20.11.1995 as Ex. DW-2/12;
Sale Deed dated 20.11.1995 as Ex. DW-2/13 DW-2 has been duly cross examined on behalf of plaintiff. Thereafter, defendants' evidence was closed.
FINAL ARGUMENTS
9. Rival submissions advanced at bar have been heard and record perused.
JUDICIAL RESOLUTION
10. Ex.P1 is the foundation of the present suit which reads as under:-
"I, Ram Kishan, S/o Late Sh. Tulsi Ram, R/o Village and P.O. Bijwasan, New Delhi have entered into an Agreement to Sell with Sh.
Sanjay Gupta, S/o Sh. L.R. Gupta, R/o 6, Anand Lok, New Delhi for sale of my 1/32 share (i.e. 1 bigha 15 biswa) of land (agricultural) in total land of 55 bigha 5 biswa in Khasra no.
49/7/1,8,9,12,13,14,17/1, 18/1, 19/1, East 26, 169 at Village Bijwasan Tehsil Mehrauli on this 18th day of February, 1992. I have also received today Rs.35,000/- (Thirty five thousand only) vide cheque no. 677750 on American Express Bank, New Delhi as advance as part of total Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.9 of 45 sale consideration of Rs.4,35,000/- (Four lakhs thirty five thousand only). In addition to Rs.35,000/-. I have also received Rs.10,000/- (Ten thousand only) in cash as advance.
Balance sale consideration of Rs.3,90,000/- (Three lakhs ninety thousand only) will be paid at the time of execution of registration of sale deed before Sub Registrar, Delhi and after handing over of possession".
The first objection to the present suit for specific performance of the aforesaid agreement is regarding limitation and the issue in this regard was framed on 21.07.2008.
Issue No. (i) Whether the suit is barred by time? OPD
11. The said issue has been framed in view of preliminary objection no. 1 in WS of defendant no. 5. The said para is reproduced hereinbelow:-
Preliminary Objection no. 1 in WS of defendant no. 5:-
"The suit is time barred. As per the plaint the alleged Agreement to Sell between the plaintiff and father of defendant no. 1 to 4 was executed on 31.3.1992 and the present suit was filed sometime in October, 95".
12. Though, the aforesaid preliminary objection does not refer to any particular Article of Limitation Act, 1963 as required by Part (4) of Appendix 'A' to Code of Civil Procedure relating to General Defences in Written Statement, however, the time period that this objection is referring to, is certainly three years, which the defendant no. 5 is counting from the day of agreement itself.
13. The relevant Article of Limitation Act, 1963 in this regard Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.10 of 45 is Article 54, which is reproduced as under along with the Article 55 of Limitation Act:-
54. For specific Three The date fixed for the performance of a years performance, or, if no such date contract is fixed, when the plaintiff has notice that performance is refused.
55. For compensation Three When the contract is broken of for the breach of any years (where there are successive contract, express or breaches) when the breach in implied not herein respect of which the suit is specially provided for. instituted occurs or (where the breach is continuing) when it ceases.
14. Article 54 of Limitation Act, 1963 specifically provides the limitation period for filing a suit for Specific Performance as three years, not from the date of agreement, but from the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.
15. As per the terms of contract/agreement to sell Ex.P1 as reproduced hereinabove, no date was fixed in the present case for performance of contract i.e. for execution of sale deed. The contract stipulates as under:-
"..... Balance sale consideration of Rs.3,90,000/- (Three lakhs ninety thousand only) will be paid at the time of execution & registration of sale deed before Sub Registrar, Delhi and after handing over the possession."
16. The agreement is dated 18.02.1992 and the instant suit is filed on 16/10/1995. As per para no. 5 to 8 of the plaint, the plaintiff repeatedly requested the father of defendant no. 1 to 4 / Late Sh. Ram Kishan to fulfill the statutory requirements of obtaining Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.11 of 45 NOC from office of ADM (LA) and Income Tax Clearance Certificate which he avoided and in April, 1995, the plaintiff came to know that the suit property was being offered for sale so he had sent the legal notice dated 05.05.1995 to Late Sh. Ram Kishan.
17. In the entire agreement Ex.P1, no ascertainable date is mentioned for performance of the contract. Thus, second part of Article 54 of Limitation Act, 1963 would apply. The limitation to file a suit would start running when the plaintiff had notice that the performance has been refused which is categorically stated to be April, 1995 when the plaintiff received information that late Sh. Ram Kishan was trying to sell the suit property. The limitation commenced from April, 1995 and the instant suit has been filed on 16.10.1995, therefore, it is well within limitation.
18. Hon'ble Supreme Court in Panchanan Dhara and Others v. Monmatha Nath Maity and Another, (2006) 5 SCC 340 in paragraph 16 observed as under:--
"16. A bare perusal of Article 54 of the Limitation Act would show that the period of limitation begins to run from the date on which the contract was to be specifically performed. In terms of Article 54 of the Limitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement. In this case, the First Respondent was to offer the balance amount to the Company, which would be subject to its showing that it had a perfect title over the property. We have noticed hereinbefore that the courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused. Performance of the said contract was refused by the Company Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.12 of 45 only on 21.8.1985. The suit was filed soon thereafter. The submission of Mr. Mishra that the time fixed for completion of the transaction was determinable with reference to the event of perfection of title of the Second Respondent cannot be accepted. The said plea had never been raised before the courts below. Had such a plea been raised, an appropriate issue could have been framed. The parties could have adduced evidence thereupon. Such a plea for the first time before this Court cannot be allowed to be raised. Even otherwise on a bare perusal of the agreement for sale dated 18.4.1971, it does not appear that it was intended by the parties that the limitation would begin to run from the date of perfection of title."
19. While relying upon the aforesaid judgment Hon'ble Delhi High Court in Ashok Kapoor Vs Vidya Shankar Sharma. (2009) 108 DRJ 505 observed as under:-
"14. Obligation to apply for permission/mutation, does not fix a date for performance. Even if the stand of the plaintiff in respect of mutation and permission from the authorities is accepted and presumed to be an agreed term, date of performance of the agreement was uncertain and not fixed. Therefore, second part of Article 54 of the Limitation Act, 1963 would apply. Cause of action accrued when notice dated 15th October, 2003 was received."
20. In judgment titled as Arun Nirula v. KN. Jain,(2013) 138 DRJ 520 the facts were almost similar and it was held that in such a case the period of limitation would start from the date on which the plaintiff has notice that the performance has been refused. Relevant portion of the judgment is reproduced as under:-
"10. The first question which thus arises is whether the Agreement to Sell of which specific performance was claimed and which is in writing, fixed a date for performance, inasmuch as if the same fixes such a date, the period of limitation would be three years from such date.
11. Both counsels agree that the relevant clause in this respect of the Agreement to Sell, in which the respondent No. 1 is described as the first party and the appellant as the second party, is Clause 6 and which is as under:
"6. That the first party shall apply for sale permission from the Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.13 of 45 office of the lessor as well as the competent authority under provision of the Urban Land (Ceiling & Regulation) of 1976 and fulfil all the formalities for the completion of the sale deed in favour of the Second Party or his nominee(s) and shall execute a proper sale deed of the above mentioned property along with the lease hold rights of the land underneath in favour of the second party or their nominee(s) and shall get the same regd. in the office of the Sub-registrar, Delhi after getting such sale permission etc. within 90 days from the date of receipt of such permission and fulfilling all the formalities.
12. The counsel for the respondent No. 4 has argued that the agreement fixes a date for performance by fixing a time period of 90 days from the date of receipt of permissions and fulfilling all formalities.
13. I have however enquired from him as to whether any time was fixed for obtaining such permissions.
14. Neither is there any provision in the Agreement to Sell in this regard nor is any answer forth coming from the counsel for the respondent No. 4. I am of the view that merely because the Agreement provides for a time within which, after receipt of permissions, the Sale Deed will be executed, does not make the Agreement to Sell fall in the first category provided in Article 54 i.e. Agreements which fix a date of performance. Once the Agreement does not fix a date for obtaining the permission, mere fixing of time for execution of Sale Deed after the permissions are obtained would not amount to fixing a time for completing the sale inasmuch as in such cases there is no identifiable date by which the agreement is to be performed. For an Agreement to Sell to fall in the first category in Article 54, either the agreement should fix a calendar date for performance or the date fixed should be ascertainable with an event certain to happen. However, in the subject Agreement, the commencement of the period of 90 days fixed for performance i.e. for execution of Sale Deed, was dependent on receipt of permissions required and formalities to be completed and for receipt/fulfilment of which, no time was fixed. Thus, merely because the agreement fixes a period of 90 days, from receipt of permissions/completion of formalities, for execution of Sale Deed, would not make the agreement fall in the category where date for performance is fixed. Reliance in this regard can be placed on Tosh Apartments Pvt. Ltd. v. Pradeep Kumar Khanna, 54 (1994) DLT 318. Thus, the Agreement in hand has to be held to be falling in the second category i.e. where no date for performance is fixed and in which case the limitation of three years commences from the date when the plaintiff has notice that performance is refused."
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.14 of 45
21. Even in the case titled as Dharam Pal Vs Shashi Kant Saini, (2011) 2 UPLJ 128 (Del) it has been observed that "So far as the argument that it is "practice" that NOC should be obtained by the buyer of the property, once again this argument is misconceived because firstly in law it is always the seller who has to make himself capable of transferring the property and which capability is achieved when the seller gets the necessary NOC from the revenue authorities. Also, there was no doubt in the present case as to who had to obtain the NOC because the agreement itself provided that the NOC will be obtained by the appellant/defendant. I, thus, do not find there is any valid basis to canvass that it was the respondent/plaintiff who should have obtained the NOC on the ground of an alleged "practice". In fact the plea as advanced is barred by Section 92 of the Evidence Act,1872 as no argument can be raised to contradict a term of a written agreement. So far as the issue of limitation is concerned, I once again find that the argument lacks any substance in view of the categorical language of Article 54 of the Limitation Act, 1963. In terms of the language of Article 54, limitation arises only in two eventualities. The first eventuality is that a specific date is fixed for performance and the second eventuality is that where there is no specific date, limitation commences when the other party refuses performance of the contract. In the present case, admittedly, no date was fixed for specific performance, and rightly so because the appellant/defendant had to obtain the NOC from the revenue authorities for executing the sale deed. This aspect of there being a fixed date therefore itself was uncertain as it was dependent on the uncertain date of obtaining of the NOC and therefore, there was no specific date fixed for performance as per the first part of Article 54 which requires the suit for specific performance to be filed within three years from a date fixed for performance. The decision in the case of Ahmmadsahab (supra) therefore relied upon has no application to the facts of the present case as there is no fixed date as per the agreement. So far as the second part of Article 54 is concerned, that the limitation commences from the date of refusal, it is an admitted fact that at no point of time appellant/defendant ever gave any notice to the respondent/plaintiff claiming forfeiture of the amount or the cancellation of the Agreement to Sell or in any other manner indicating his refusal to perform the obligations under the Agreement to Sell. Accordingly, there is no question of commencement of limitation also on this ground of alleged refusal of performance of agreement."
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.15 of 45
22. In a very recent judgment of 3 May 2018 passed by Division Bench of Hon'ble High Court, titled as ADTV Communication Pvt. Ltd. Vs Vibha Goel & Ors. 2018 SCC OnLine Del 8843, it was observed as under:-
"25. The next ground raised by the counsel for the appellant is that the Specific Performance of the Agreement to Sell dated 09.09.2009 ought not to have been granted as the said relief is barred by limitation. It is the case of the appellant company that as under the Agreement to Sell dated 09.09.2009, the possession of the flat in dispute was expected to be delivered to the respondents around end of May 2010, the limitation period for the relief of specific performance ought to have commenced immediately thereafter and the same would expire after three years. However the respondents invoked their claim for Specific Performance only in July 2013 when the Sole Arbitrator was appointed. Therefore it is argued that as the claim was raised after the expiry of 3 years commencing from June 2010, the bar under first part of Article 54 under the Schedule of the Limitation Act 1963, would be attracted.
26. The law is well settled under Article 54 of Schedule to the Limitation Act, 1963, that the limitation period for Specific Performance starts either from the date on which a period is fixed for the performance of the agreement or three years from the date when the performance is refused.
27. In the present case, it has been rightly observed by the Arbitral Tribunal in its Award dated 19.03.2016 and further upheld by the learned Single Judge vide Impugned order dated
23.08.2017, that as no time was fixed under the Agreement to Sell dated 09.09.2009 for the performance thereof, hence the limitation period was to commence from the date of refusal of the appellant company to perform the agreement. Moreover in the said agreement no period for handing over the possession of the subject flat was fixed as the same was to be transferred to the respondents upon completion of the project and it is a mere assertion made by the appellant company that the possession of the flat was expected to be delivered to the respondents by the end of May 2010 as the agreement nowhere reflects a clause to that effect. Till the possession was handed over to the respondents, the appellant company was liable to pay simple interest @ 18% per annum which the appellant company continued to pay upto July 2011. Hence it is clear that till July 2011 there was no refusal on the part of the appellant company to perform the said agreement, which also implies that till July 2011 the construction of the said flat was Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.16 of 45 not complete. Therefore there is no merit in the ground raised by the appellant company as the relief so claimed by the respondents was within the prescribed limitation period."
23. In the light of the aforesaid judgments, the limitation in the instant case would not commence from the date of agreement rather the same would begin from the date when the plaintiff had notice that performance is refused, that is April, 1995. The instant suit which has been filed on 16.10.1995 is, therefore, well within limitation.
Issue No. (i) is decided in favour of the plaintiff and against the defendants.
Issue No. (iii) Whether defendant no.1 signed the agreement to sell without understanding the contents of the agreement to sell? OPD.
24. The defendant no. 1 to 4 have not preferred to file written statement. The defendant no. 5 has nowhere, in his written statement, pleaded that the signatures of late Sh. Ram Kishan were obtained on blank papers or he had signed the agreement Ex.P1 without understanding its contents. Rather, defendant no. 5 has pleaded ignorance about any agreement executed between plaintiff and late Sh. Ram Kishan.
25. It appears that issue no. (iii) has been inadvertently framed in the instant suit. Order XIV Rule 1 CPC specifically provides that issues arise when material proposition of fact or law is affirmed by the one party and denied by the other. The defendant no. 1 to 4 have not filed their WS and their right to file WS was closed vide order dated 08.08.2002. The defendant no. 1 to 4 have nowhere denied the execution of the agreement Ex.P1 nor Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.17 of 45 they have set up the defence that their father late Sh. Ram Kishan had signed the document Ex.P1 without understanding its contents, so there was no reason to frame this issue.
26. Defendant no. 1 to 4 did not even prefer to enter the witness box to dispute the agreement Ex.P1. It is only during the cross examination of PW-1 that several questions and suggestions have been put to him thereby challenging the genuineness of the agreement Ex.P1. The relevant extract of cross-examination of PW- 1 is reproduced hereinbelow:-
".......It is correct that in regard the suit property except Ex.P1 no other document was executed between me and late Sh. Ram Kishan. I do not know in whose handwriting document Ex.P1 was written.....
...... At this stage witness is shown document Ex.P1 from "A to A1". Please answer, whether you can produce the said agreement to sell....
Ans. There is no other agreement except to Ex.P1 and it is a poor English expression between points "A to A1"..... ......It is incorrect to suggest that as per document Ex.P1 there was a separate agreement to sell which I have not produced intentionally or deliberately. It is incorrect to suggest that late Sh. Ram Kishan was illiterate. Vol. He was not illiterate as he has also signed the document Ex.P1. It is wrong to suggest that I obtained only the thumb impressions of late Sh. Ram Kishan on blank paper. It is further incorrect to suggest that on the said stamp paper I drafted the agreement cum receipt thereafter..... .....It is further incorrect to suggest that in the document Ex.P-1 the signatures of Sh. Dayachand as witness was obtained later on in the absence of Sh. Ram Kishan. It is wrong to suggest that the document Ex.P1 was blank when the Ram Kishan put his thumb impression upon the said document and all the writing work over the said document were done later on. It is wrong to suggest that the revenue stamp was also affixed later on and as such there is no thumb impression mark upon the revenue stamp....."
27. Though, PW-1 has been subjected to lengthy and searching cross examination on the aspect of validity of agreement Ex.P1, however, it does not lend any support to defendants' case in the absence of pleading in this regard. As the defendants have Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.18 of 45 nowhere pleaded that the document Ex.P1 was signed in blank nor have challenged the genuineness / validity of the agreement Ex.P1 in any manner, no amount of evidence on this score can be looked into. No party can be permitted to travel beyond pleadings. It is trite that a party cannot try and establish a case not set up in the pleadings. It is reiterated that the defendant no. 1 to 4 have not filed any WS on record, consequently, there is no pleading challenging the validity of agreement Ex.P1. Thus, the defendants are precluded from questioning the genuineness / validity of the agreement Ex.P1. Moreover, it is inconceivable that late Sh. Ram Kishan would append his signatures on blank paper. Further, no complaint or protest about the same has been lodged by late Sh. Ram Kishan nor by defendant no. 1 to 4 till the filing of the present suit. Thus, the agreement Ex.P1 is held to be valid and was duly executed between the plaintiff and late Sh. Ram Kishan.
28. In context of agreement Ex.P1, ld. Counsel for defendants further contended that it is merely a receipt which acknowledges the receipt of payment of earnest amount / part sale consideration and it does not contain essential ingredients of an agreement to sell, nor, it is signed by the purchaser / vendee, thus, he contended that no binding contract was ever concluded between the parties.
29. The said contention is without any merits and is liable to be rejected. It is the substance of the document and not the form which is to be taken into consideration to determine its real nature. Though, the document Ex.P1, in form, appears to be a receipt but a reading of the contents in toto reveals that it contains the terms Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.19 of 45 agreed upon by the parties. Before any document in writing is executed, discussions / negotiations take place between the parties regarding the terms. After the terms are settled, the document is prepared and signed. In the instant case, the settled bargain / the terms agreed upon are incorporated in the document Ex.P1.
30. In the document Ex.P1, there is a description of the suit property which is the subject matter of sale. It records the settled bargain between the parties that the suit property would be sold for a total sum of Rs.4,35,000/-. It acknowledges receipt of payment of Rs.35,000/- by way of cheque and Rs.10,000/- in cash. It further records that the balance sale consideration of Rs.3,90,000/- will be paid at the time of execution and registration of sale deed before Sub Registrar, Delhi and after handing over of possession. Ex.P1, thus, contains all the essential and basic features of an agreement for sale. It has been signed by the vendor / late Sh. Ram Kishan. There is no requirement of law that the vendee / purchaser has to append his signatures on the agreement to sell.
31. Reliance is placed upon the case titled as Aloka Bose Vs. Parmatma Devi & Ors. 2009 (2) SCC 582 wherein Hon'ble Supreme Court, in para no. 16 to 18, observed as under:-
"16. On the other hand, the observation in S.M. Gopal Chetty that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it...
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.20 of 45
17. Section 10 of the Act provides that all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the contract act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid.
18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter offers by letters or other modes recognized communication). In India, in agreement of sell signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale."
32. Thus, there was a concluded contract between the plaintiff and late Sh. Ram Kishan. The document Ex.P1 constitutes an agreement to sell, though signed only by the vendor, is valid enforceable. The agreement to sell Ex.P1 is binding upon the plaintiff as well as upon the legal heirs of late Sh. Ram Kishan.
Issue no. (iii) is decided in favour of plaintiff and against the defendants.
Issue no. (iv). Whether the sale deed dated 20.11.1995 executed between defendant no. 1 and 2 are binding on the plaintiff and defendant no. 2 is bona fide purchaser of the suit property?
OPD.
33. There has been a typographical error in this issue.
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.21 of 45 The sale deeds have been executed by defendant no. 3 and 4 in favour of defendant no. 5. Thus, the court needs to determine whether the sale deeds dated 20.11.1998 executed by defendant no. 3 and 4 in favour of defendant no. 5 are binding upon the plaintiff and defendant no. 5 is bona fide purchaser of the suit property.
34. Defendant no. 5, in his written statement, has claimed himself to be a bona fide purchaser of the suit property for consideration. Relevant portion from para no. 1 of written statement is reproduced below:-
"......However, it is correct that the father of the defendant no. 1 to 4 had 1/32nd undivided share in the total disputed land measuring 55 bighas & 5 biswas. Upon his death the share devolved upon his sons i.e. respondent no. 1 to 4. Answering respondent purchased respondent no. 3 and 4's share vide separate sale deeds. A memorandum of understanding (MOU) dated 18.05.1995 was executed between defendant no. 3 as the vendor and answering defendant as vendee against a valid consideration of Rs 1,37,500/- for sale of 15.5 Biswas of his share in the land in dispute. Likewise an MOU was entered into on 19.5.95 with defendant No 4 and answering defendant with respect to 15.5 Biswas in the said land. Answering Defendant was delivered possession of the land in question with the execution of the above MOU. MOU was followed by two seperate Agreement to Sell dated 25.5.95executed jointly by defendant No 3 and 4 in favour answering defendant. Two receipts were also issued by Defendant No 3 and 4 in acknowledgement o the part payments received by them from the answering defendant. Subsequently two Sale Deeds were jointly executed by Defendant No 3 and 4 on 20.11.95 in favour of the answering defendant for 16 Biswas each which were later got duly registered by the executing parties on 22.11.95. Thus defendant No 3 and 4 had already sold off their shares to answering Defendant before the filing of the present suit."
36. From the said paragraph, following facts emerge:-
1) Two MOUs dated 18.05.1995 and 19.05.1995 were executed by defendant no. 3 and by defendant no. 4 respectively in favour of defendant no. 5. At that time, only a payment of Rs.500/-
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.22 of 45 was made, though, total sale consideration was Rs.1,37,500/-.
2) Surprisingly, after receiving only Rs.500/- only (i.e. just 0.36% of the total sale consideration), the possession of their entire share was delivered by defendant no. 3 and defendant no. 4 to defendant no. 5.
3) Seven - Eight days later i.e. on 25.05.1995, Agreements to Sell were entered into and Rs.12,000/- was paid by defendant no. 5 to each defendant no. 3 and 4. Receipts Ex. DW-2/6 and Ex. DW- 2/7 were issued by defendant no. 3 and 4.
4) Six months later, sale deeds were executed on 20.11.1995 by defendant no. 3 and defendant no. 4 in favour of defendant no. 5 with respect to their share of 16 biswas each.
37. On the basis of said sale deeds, defendant no. 5 claims that "defendant no. 3 and 4 had sold off their shares to him before the filing of the present suit"1 and the suit land is "in possession of the defendant no. 5 since 19.05.1995 against a valid consideration paid to defendant no. 3 and 4".2
38. As stated earlier, the question before the court is whether defendant no. 5 is bona fide purchaser of the suit property?
39. The answer is in negative. Despite execution of sale deeds, there is no valid transfer of title in favour of defendant no. 5 qua the suit land for the following reasons:-
39.1 The delivery of possession merely on receipt of meager amount of Rs.500/- out of total sale consideration renders defendant no. 5's story improbable.
1 Para no. 1 of reply of merits of written statement of defendant no. 5. 2 Para no. 1 of reply of merits of written statement of defendant no. 5.
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.23 of 45 As per defendant no. 5, he came into possession of the suit property on 19.05.1995 when MOUs Ex.DW2/1 were executed by defendant no. 3 and 4 and Rs.500/- was paid by defendant no. 5 each to defendant no. 3 and 4. It is unbelievable that defendant no. 3 and 4 after having received Rs.500/- only (i.e. just 0.36% of total sale consideration), handed over the possession of their entire share to defendant no. 5. Such transfer of possession itself shows that defendants were hand in gloves with each other so as to defeat the claim of plaintiff. It may be noted that first legal notice sent by the plaintiff is dated 05.05.1995 and it was subsequent to said notice that the MOU and Agreement to Sell were prepared in anticipation of a suit by plaintiff. It is for this reason only that in the Agreement dated 25.05.1995 it is shown that possession was delivered on that day, though defendant no. 5 has pleaded that possession was delivered on 19.05.1995 itself.
39.2 Execution of Second Agreement to Sell with defendant no. 5 in haste creates doubt and suspicion.
The deceased father of defendant no. 1 to 4 did enter into the agreement to sell dated 18.02.1992 Ex.P1 with the plaintiff. The defendant no. 1 to 4 did not prefer to file any written statement on record and have not disclosed any reason for non compliance / failure of agreement to sell Ex.P1. It is not the case of defendant no. 1 to 4 that the contract failed due to any fault of the plaintiff. The first legal notice dated 05.05.1995 Ex.P2 and second legal notice dated 02.06.1995 Ex.P3 was served by the plaintiff upon defendant no. 1 Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.24 of 45 to 4 thereby calling upon them to perform their part of the contract. The defendant no. 3 to 4, subsequent to service of the first notice dated 05.05.1995, executed not only an agreement to sell but also delivered possession of their respective share to defendant no. 5 on receipt of less than 10% of the total sale consideration amount. Such conduct of defendant no. 3 and 4 is unbelievable, when tested from the point of view of a prudent man. It is beyond the realm of reality. The haste with which defendant no. 3 and 4 proceeded to terminate the agreement Ex.P1 and executed subsequent agreement with defendant no. 5 is indicative of defendant no. 1 to 4 having changed their mind and their clear intention to renege from the agreement to sell Ex.P1 entered with the plaintiff. 39.3 No sale document has been proved in accordance with law.
In his evidence, defendant no. 5 has relied upon thirteen documents i.e. MOU dated 18.05.1995 Ex. DW-2/1; Affidavit by Sh. Narain Singh and Sh. Chhote Lal dated 09.11.1999 Ex. DW-2/2; GPA dated 09.11.1995 Ex. DW-2/3; Agreement to Sell dated 25.05.1995 Ex. DW-2/4; Will dated 09.11.1995 Ex. DW-2/5; Receipt dated 25.05.1995 Ex. DW-2/6; Receipt dated 09.11.1995 Ex. DW- 2/7; MOU dated 19.05.1995 Ex. DW-2/8; Agreement to sell dated 25.05.1995 Ex. DW-2/9; Will dated 09.11.1995 Ex. DW-2/10; Receipt dated 25.05.1995 Ex. DW-2/11; Sale deed dated 20.11.1995 Ex. DW-2/12 and Sale Deed dated 20.11.1995 Ex. DW- 2/13. None of the said document except the Agreements to Sell Ex.DW2/4 and Ex.DW2/9 bear the signature of defendant no. 5 as party or witness. When DW-2/defendant no. 5 exhibited the said Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.25 of 45 documents in his testimony dated 12/03/2018, objection regarding mode of proof was taken with respect to all the documents. Despite specific objection, defendant no. 5 did not examine any witness to the said documents to prove its due execution. Mere marking of a document as an exhibit does not dispense with its proof and it has to be proved in accordance with law. In absence of testimony of any witness or executant to the said documents, the documents Ex.DW2/1 to Ex.DW2/13 could not be proved by defendant no. 5 in his testimony and in absence of proof of said documents, defendant no. 5 has no right at all in the suit property. He cannot protect his possession by claiming himself to be a bonafide purchaser. 39.4 Sale Deeds not signed by the Vendee.
Perusal of sale deeds Ex DW2/12 and Ex.DW2/13, reveals that the said sale deeds do not bear the signatures of vendee i.e. signature of defendant no. 5.
39.5 Sale Deeds not signed by the Vendor.
The sale deeds Ex.DW2/12 and Ex.DW2/13 are not even signed by defendant no.3 and 4, rather, the said sale deeds are signed by one Sh. Sachin, S/o Sh. Narain Singh who claim to be the GPA holder of defendant no. 3 and 4, but the said GPA, though filed on record, has not been proved in accordance with law so as to complete the chain of documents.
39.6 Sale Deeds not registered at Delhi.
These sale deeds Ex.DW2/12 and Ex.DW2/13, though with respect to suit property situated in Delhi, are registered at Mumbai. Defendant no. 5 was questioned in this regard & he testified as under:-
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.26 of 45 "The execution of the sale deeds in my favour, Shamsher and Ashok Kumar Ex. DW2/6, Ex.DW2/7 and Ex.DW2/8 in the case of Surte were executed at New Delhi and also registered at Mumbai as we were told that chakbandi in the village was going on and no NOC would be granted before the execution of the sale deeds"
" I have not filed on record any document to show that the NOC was not being issued qua the suit property as Chakbandi was going on in the village."
Thus, the reason i.e. chakbandi for non registration of sale deeds with respect to suit property at Delhi has not been proved. The very fact that the sale deed had to be registered at Mumbai, though none of the parties was resident of Mumbai, show that the transaction between defendant no. 3 and 4 and defendant no. 5 was not genuine. Had the transaction been bona fide, defendant no. 5, as a prudent purchaser, would have refused to purchase a property in Delhi of which sale deed could not be registered at Delhi. The very fact that the sale deed is registered at Mumbai is sufficient to establish the connivance and malafide of defendant no. 3 and 4 with defendant no. 5, to somehow or the other, defeat the claim of plaintiff.
39.7 Registration of Sale Deed at Mumbai is in violation of mandate of Section 28 of Regitration Act.
The registration of sale deed at Mumbai, has its own consequences. As per Section 28 of the Registration Act, 1908, a sale deed (which is compulsory required to be registered under Section 17(1)(b)) shall be presented for registration in the office of a Sub Registrar within whose sub district the whole or some portion of the property is situated. Thus, the sale deed had to be registered at Delhi and registration of sale deed at Mumbai is a clear violation of the mandatory provision contained in Section 28 of the Registration Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.27 of 45 Act.
In view of judgments titled as Harendra Lal V/S Haridasi Debi ILR (1914) 41 Cal 972 and, Jagat Narain Thakur V/s Birandra Hati Baruh (1992) 1 GauLR R317, such sale deed of a property situated at Delhi, registered at Mumbai is not a valid registration and such sale deed does not convey title.
It is pertinent to mention that prior to year 2001, Section 30(2) of Registration Act permitted registration of documents pertaining to property situated anywhere in India, with the Registrar of district in which a presidency town is included. The said section, before it was omitted by Act 48 of 2001, read as under:-
" (2) The Registrar of a district in which a presidency town is included and the Registrar of the Delhi district may receive and register any document referred to in Section 28 without regard to the situation in any part of India of the property to which the document relates"
In order to take benefit of Section 30 (2) of the Registration Act, it was incumbent upon defendant no. 2 to plead and prove the fact that the Registrar at Mumbai (where the sale deed was registered) is also Registrar of a Presidency Town. There can be no presumption of the fact that the said Registrar had territorial jurisdiction over Presidency Town also and in absence of such presumption, defendant no. 5 was required to prove the said fact so as to bring the registration of document within the scope of Section 30 (2) of Registration Act 1908. Neither the said fact has been pleaded nor any evidence has been adduced on this score. 39.8 Payment of Sale Consideration amount not proved.
On the aspect of consideration, it is interesting to note Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.28 of 45 that in the sale deeds, it is mentioned that the payment is made through the cheques bearing number 613173 and 613174 both dated 09/11/1995 drawn on Oriental Bank of Commerce, Mahipalpur Branch, New Delhi.
Firstly, it is hard to believe that a prudent seller would execute sale deed on 20/11/1995, upon receiving balance sale consideration through cheque and not through pay order/bank draft. No prudent seller would take such a risk, unless the purchaser is known and trusted, which is not the case herein. This implies that in the present case, the sale deed was executed merely on the basis of cheque because defendants were hand in gloves with each other and the entire transaction has been orchestrated only to defeat the claim of plaintiff.
Secondly, defendant no. 5, failed to produce any document to prove that the consideration amount was actually paid, despite the following specific questions in his cross examination:-
"I have not filed the bank statement on record to show the payment of sale consideration amount to the defendants in all the four cases....
..... I do not remember whether I have filed the bank statement of the bank account mentioned at point B on Ex.DW2/12 to show that the said bank account is mine...."
The defendant no. 5 had opportunity to prove the payment of sale consideration, but he failed to avail that opportunity.
Thus, there is no proof of payment of sale consideration amount by defendant no. 5 which render the sale deeds invalid. These sale deed were created with the sole intention to scuttle the execution of plaintiff's agreement Ex.P1.
39.9 No permission taken by defendant no. 5 prior to execution of sale deed.
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.29 of 45 Defendant no. 5, who is a property dealer (as admitted by him in his testimony), never took any permission for purchase of the suit property from ADM (LA) or Income Tax Authorities. This raises an inference of lack of due diligence and sole motive of defendants being to some how prepare title documents at the earliest, after receiving legal notice of plaintiff. Relevant extract of cross examination of DW-2 is as under:-
"As per me, no permission was taken from the office of ADM (LA) prior to the purchase of suit property in all the four cases in favor of all of us i.e me, Shamsher and Ashok.....
The execution of sale deeds in my favor, Shamsher and Ashok Kumar Ex DW2/6, Ex DW2/7 and Ex DW2/8 in the case of Surte were executed at New Delhi and also registered at Mumbai as we were told that chakbandi in the village was going on and no NOC would be granted before execution of the sale deeds.
Prior to the execution of the sale deeds, I did not visit the office of ADM(LA)....."
Even if the story of defendant no. 5, as put-forth by him in the aforesaid examination is presumed to be true, still it is not clear as to why he entered into an agreement to sell the suit property, when consolidation proceedings were going on in the village, in which it was probable that the suit land might change and what was the hurry for execution of sale deed at Mumbai, when he was aware that sale of land was closed due to consolidation proceedings. No prudent purchaser would purchase a land which is under consolidation and of which sale deed cannot be registered in the district where the land is situated. The execution of the sale deed & its registration in this manner can be planned and executed only when the seller and buyer are hand in glove with each other, the real intention being not to sell the property, but to bring it out of the scope Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.30 of 45 of agreement to sell executed between father of defendant no. 1 to 4 and plaintiff.
39.10 The Sale Deeds in favour of defendant no. 5 are hit by the doctrine of lis pendens.
There is another facet. The sale deeds Ex.DW2/12 and Ex.DW2/13 are registered in favour of defendant no. 5 on 20.11.1995. The instant suit has been filed on 17.10.1995. Thus, the sale deeds Ex.DW2/12 and Ex.DW2/13 are registered during the pendency of the suit and would, thus, be hit by the principle of lis pendens.
Though, the MOUs Ex.DW2/1 and Ex.DW2/8 and Agreements to Sell Ex.DW2/4 and Ex.DW2/9 have been entered into on 18.05.1995 and 25.05.1995 respectively, i.e. before the institution of the instant suit, but the principle of lis pendens would squarely apply. The protection of Section 19 (d) of Specific Relief Act is not available to defendant no. 5. Reliance in this regard is placed on Rajinder Singh Vs Santa Singh, (1973) 2 SCC 705, Jayaram Mudaliar Ayyaswami, (1972) 2 SCC 200 and Sushil Kumar Bagga Vs Dewan Chandra Batra and Anr 207(2014) DLT 346 wherein it has been observed that the sale during the pendency of a suit, even if in pursuance to an earlier Agreement to Sell, will be hit by the said doctrine.
Similarly, in Har Narain Vs Mam Chand, VII (2010) SLT 337 the Hon'ble Supreme Court has observed that the sale is not complete even on the execution of the Sale Deed and until the registration thereof is complete and that the registration does not relate back to the date of execution of the Sale Deed and where the Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.31 of 45 Sale Deed, though executed prior to the Institution of the suit is registered after the institution of the suit, the principle of lis pendens would apply.
In the instant case, sale deeds Ex.DW2/12 and Ex.DW2/13 are registered during the pendency of the suit and would certainly be hit by the doctrine of lis pendens.
40. For the manifold reasons recorded hereinabove, the defendant no. 5 cannot be termed to be a bond fide purchaser for valid consideration. The documents Ex.DW2/12 and Ex.DW2/13 were created with the sole motive to scuttle the execution of plaintiff's agreement Ex.P1. Consequently, these sale deeds are not binding upon the plaintiff.
Issue no. (iii) is decided in favour of plaintiff and against the defendants.
Issue No. (ii). Whether the plaintiff is entitled to decree for specific performance of Agreement dated 02.04.1992 and the possession of the suit property? OPP
41. A cumulative issue has been framed regarding the entitlement of plaintiff to a decree of specific performance as well as to possession of the suit property. The court would take up these two aspects one by one. Firstly, the court would determine whether the plaintiff is entitled to a decree of specific performance of agreement dated 18.02.1992 Ex P-1. It has already been held that the agreement Ex. P-1 is genuine and is validly executed. Both plaintiff and defendant no. 1 to 4 are governed by the terms of agreement Ex .P-1.
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.32 of 45
42. Section 16 (c) of the Specific Relief Act, 1963 requires every plaintiff in a suit for specific performance to aver and prove readiness and willingness to perform his part of the contract. Readiness means existence of financial capacity and willingness means intention to go ahead with the transaction.
43. The willingness of plaintiff to go ahead with the transaction has been categorically pleaded in para no. 7 to 11 of the plaint, which are reproduced hereinbelow:-
"7. That the plaintiff repeatedly approached the defendant Sh. Ram Kishan requiring him to obtain the required NOC from ADM (LA) and Income Tax Clearance Certificate and, after obtaining the same, to execute the sale deed on the payment of the balance consideration of Rs.3,90,000/- but every time the defendant Sh.
Ram Kishan went on assuring the plaintiff that he had applied for the same (i.e. the NOC and Income Tax Clearance Certificate) and that as soon as the same were obtained, he would give intimation to the plaintiff about it and would call upon him (the plaintiff) to get the sale deed executed and registered on payment of balance sale consideration.
8. That in the month of April, 1995, the plaintiff learnt that the aforesaid land was being offered for sale clandestinely at a very high price to third parties. The plaintiff vide his registered notice dated 5th May, 1995 through his counsel, Sh. Gaurav Duggal, Advocate, called upon Sh. Ram Kishan to obtain the necessary NOC from the Office of ADM (LA) and ITCC from the Income Tax Authorities and after obtaining the same, to execute the sale deed in respect of his 1/32nd undivided share in the aforesaid land and get the same registered in the Office of Sub Registrar, Delhi and hand over the vacant possession of the aforesaid land to him (plaintiff) on the receipt of the balance consideration, within a period of fifteen days from the receipt of the notice, failing which a suit for specific performance of the aforesaid agreement and damages would be filed against him.
9. That the said notice was received by one Sh. Chotey Lal, his son, as Sh. Ram Kishan had already died. Therefore, the plaintiff again vide his registered notice dated 2 nd June, 1995 through his counsel, called upon the legal heirs of Sh. Ram Kishan, namely, defendants 1 to 4 herein, to obtain the NOC and ITCC and execute the sale deed in respect of the land contracted to be sold by their predecessor in interest, namely, their father Sh. Ram Kishan and perform all the contractual obligations undertaken by him (Sh. Ram Kishan) and execute the sale deed and deliver Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.33 of 45 possession of the land contracted to be sold by their predecessor- in-interest on the payment of the balance sale consideration of Rs.3,90,000/-. The said notices were sent both by registered post as well as through certificate of posting. The defendants, however, refused to receive the said notices sent through registered post. However, the notices sent through certificate of posting were duly served upon the defendants.
10. That despite the aforesaid registered notices dated 2 nd June, 1995, the defendants have neither obtained the NOC from the ADM (LA) and nor the ITCC from the Income Tax Authorities and nor are ready and willing to execute the sale deed of the land in favour of the plaintiff on the payment of the balance sale consideration of Rs.3,90,000/-
11. That the plaintiff has always been ready and willing and is still ready and willing to perform his part of the contract and to pay the balance sale consideration of Rs.3,90,000/- to the defendants on the execution and registration of the sale deed of the land contracted to be sold after the defendants have obtained the requisite NOC and ITCC from the authorities concerned."
44. It is not in dispute that the plaintiff did perform his part when he paid advance money of Rs. 45,000/- to father of defendant no. 1 to 4 / late Sh. Ram Kishan in terms of agreement Ex. P-1. The plaintiff repeatedly requested late Sh. Ram Kishan to obtain NOCs which he avoided. The plaintiff had issued a legal notice on 05/05/1995 and again on 02.06.1995 thereby calling upon legal heirs of late Sh. Ram Kishan to execute sale deed in his favour but it was not adhered to by him. Nothing more was expected to be done on the part of the plaintiff. The breach on the part of defendant no. 1 to 4 is apparent as defendant no. 3 and 4 had executed MOUs dated 18.05.1995 and 19.05.1995 Ex.DW-2/1 and Ex.DW2/8 respectively in favour of defendant no. 5 despite the agreement Ex.P1 with the plaintiff being in operation. Therefore, it is the defendant no. 1 to 4 who have prevaricated and defaulted. There has been a palpable failure on the part of the defendant no. 1 to 4. The plaintiff has aways been willing to perform his part of the agreement.
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.34 of 45
45. Now, adverting to the "readiness" of plaintiff. The expression "readiness" refers to financial capacity of plaintiff to pay balance sale consideration at all points of time after the agreement to sell was entered into.
46. In case titled as Shree Aadhiya Builwell Pvt. Ltd. Vs Kartar Singh 228 (2016) DLT 10 Hon'ble Delhi High Court observed, while referring to Section 16(c) of Specific Relief Act, that plaintiff has to prove to the satisfaction of the court his readiness i.e capacity to pay at all point of time. Para no. 10 to 12 of the judgment are reproduced as under:-
"10. Therefore, even after deciding the issue as to whether the defendants are guilty of breach of contract in not taking NOC as required of the defendants in para 10 of the agreement to sell, yet, plaintiff cannot claim specific performance unless and until plaintiff has proved its capacity to pay right from the time of entering into an agreement to sell till the time of the present final arguments.
11. So far as the fact of breach of contract is concerned, undoubtedly, para 10 of the agreement to sell does state that it is the obligation of the defendants to obtain the necessary NOC and thus as per Sections 91 and 92 of the Indian Evidence Act, 1872 once the agreement to sell is proved; and it has been proved in this case; defendants cannot in any manner argue anything to the contrary or in violation of the terms contained in the written agreement to sell being para 10 which requires the defendants to obtain the NOC. It is not the case of the defendants that after entering into the agreement to sell there was a subsequent oral agreement to shift the obligation of obtaining the NOC upon the plaintiff. Therefore, it is held that since the defendants did not obtain the necessary NOC under the Act of 1972, hence the defendants are guilty of breach of contract.
12. As already stated above, however, the issue of breach of contract by the defendants is not determinative of the entitlement of the plaintiff to the grant of specific performance in its favour because grant of specific performance is not an automatic consequence on proving that the defendants / proposed sellers are guilty of breach of contract. As already stated above, plaintiff has to prove to the satisfaction of the court his readiness i.e. capacity to pay at all points of time Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.35 of 45 and which is implicit in the expression "has always been ready and willing" as found in Section 16(c) of the Specific Relief Act and, therefore, plaintiff has to prove his capacity from 04.11.2006 till date in the year 2016. Has the plaintiff proved so? The answer to this has to be in an emphatic no, and the reason for the same are given hereinafter."
47. In the light of aforesaid judgment, in the instant case, the court needs to determine whether the plaintiff had the availability of balance sale consideration from the date of Agreement Ex.P1 i.e. February, 1992 till 2018.
48. In order to prove his financial capacity, the plaintiff has examined three witnesses i.e:-
PW2- Sh. Jagmohan Lal from NTPC Ltd.
PW3- Sh. Lal Sahib Mishra from Standard Chartered Bank PW4- Sh. Rajesh Kumar Aggarwal from NHPC Ltd.
49. PW2 Sh. Jagmohan Lal from NTPC Ltd. (Govt. of India Company) produced record of hundred bonds of Rs.1,000/- each (total Rs 1 lakh) issued on 12.02.1988 in the name of Sh. Sanjay Gupta (plaintiff) and Sh. Rajiv Gupta. The witness, in cross examination, admitted that the bonds were transferred on 29/06/1995 by plaintiff and Sh. Rajiv Gupta, but, from his testimony it stands proved that during the relevant period plaintiff jointly with Sh. Rajiv Gupta, owned transferable bonds of Rs. 1,00,000/- of a Govt. of India Company.
50. PW3 Sh. Lal Sahib Mishra from Standard Chartered Bank also produced record to show that the plaintiff had huge deposits in the bank from 2003 till 2015. These documents do not reflect financial capacity of plaintiff prior to the year 2003.
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51. PW4 Sh. Rajesh Kumar Aggarwal, Assistant Manager (Finance) came from NHPC LTD. (a Govt of India Enterprise) and proved that 47475 bonds were allotted to plaintiff in 1987 of Rs. 1,000/- each, hence plaintiff had bonds worth Rs 4.75 crores (approx) much prior to the relevant time (in 1992), which is way beyond the sale consideration in the present case i.e Rs. 4,35,000/- . The sole testimony of PW-4 is sufficient to prove the fact that the plaintiff had financial capacity (i.e. readiness) to pay the balance sale consideration.
52. It is worthwhile to mention that during the pendency of instant lis, the plaintiff moved an application under Section 151 CPC for placing on record the electronic receipt of FDR of balance sale consideration which was allowed by Ld. Predecessor vide order dated 09.07.2013. Ld. Predecessor while allowing the application, also observed that this receipt proves that the plaintiff had balance sale consideration on 08.10.2012. The said order has not been assailed. It proves that since October,2012 till date, the plaintiff has availability of balance sale consideration amount and for the period prior to October, 2012, the testimony of PW-4 would suffice.
53. There is no iota of doubt that the plaintiff had the financial capacity to make the payment of balance sale consideration. Thus, the plaintiff was always ready and willing to perform his part of agreement. Rather, the legal heirs of late Sh. Ram Kishan / defendant no. 1 to 4 did not comply with the obligations imposed upon Sh. Ram Kishan vide agreement Ex.P1. There is no reason to decline the relief of specific performance of agreement Ex.P1 to the plaintiff.
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54. The second aspect which requires adjudication is the entitlement of plaintiff to the relief of possession qua the suit property.
55. Generally, sale of property is accompanied with transfer of possession and in a suit for specific performance of an agreement to sell, the seller upon execution of the sale deed is also liable to handover the possession of the property to the purchaser. However, when undivided share in the property is purchased and there is no specific agreement with respect to possession of any particular portion of the property like in the present case, then merely symbolic possession of the property is given by mentioning in the sale deed itself that the possession of the undivided share has been delivered. The purchaser, thereafter, has the right to seek partition of that undivided share purchased by him as per law and convert that symbolic possession into actual physical possession.
56. In the present case, the subject matter of the suit and the agreement to Sell is stated in para (1) of the plaint, reproduced as under:-
"1. That the defendants no. 1 to 4 are the sons and legal heirs of late Sh. Ram Kishan who was the absolute co-owner / co- bhumidar in possession of 1 bigha and 15 biswas of agricultural lands situated in Village Bijwasan, Union Territory of Delhi which is 1/32nd undivided share in the joint holding of agricultural land total measuring 55 bighas and 5 biswas comprised in Khasra No.49/7/1 measuring 2 bighas 14 biswas; Khasra No. 49/8 measuring 2 bighas and 12 biswas; Khasra No. 49/9 measuring 2 bighas; Khasra No. 49/12 measuring 2 bighas and 8 biswas; Khasra No. 49/13 measuring 4 bighas and 16 biswas; Khasra No. 49/14 measuring 4 bighas 11 biswas; Khasra No. 49/17/1 measuring 1 bigha 12 biswas; Khasra No. 49/18/1 measuring 1 bigha and 12 biswas; Khasra No. 49/19/1 measuring only 18 biswas; Khasra No. 49/26 measuring 1 bigha 7 biswas and Khasra No. 169 measuring 30 bighas 15 biswas. Since Sh. Ram Kishan has died, his sons Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.38 of 45 who are the legal heirs of the deceased, are being impleaded in this suit."
57. In the said paragraph, the property is described as 1/32nd share in several khasra numbers. Neither in the plaint nor in the testimony of plaintiff, it is stated that which 1/32nd portion of the said khasra numbers was in possession of Late Sh. Ram Kishan or defendant no. 5. Despite amendment of plaint, the said specific portion was never mentioned in plaint and in absence of such specific portion, the plaintiff cannot claim physical possession of the 1/32nd portion, though after execution of sale deed, he may apply for partition of his share before the concerned authority as per law and obtain physical possession upon such partition.
58. Reliance is placed upon the judgment M.V.S. Manikayala Rao v. M. Narasimhaswami, AIR 1966 SC 470 (Full Bench), Hon'ble Apex Court while dealing with the issue of possession upon auction sale1 of undivided share in property observed as under:-
"5. As earlier stated the High Court held that Article 144 applied. The application of this article seems to us to present great difficulties to some of which we like to refer. That article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. Now, it is well settled that the purchaser of a coparcerner's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the 1 "In execution of that decree the shares of the four sons in the joint family properties, described altogether as 4/5th share, were put up to auction on December 21, 1936 and purchased by one Sivayya whose successorsininterest are the appellants" from para 1 of the judgment.
Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.39 of 45 share of the coparcener whose share he had purchased. His right to possession "would date from the period when a specific allotment was made in his favour": Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain [(1954) SCR 177, 188] . It would, therefore, appear that Sivayya was not entitled to possession till a partition had been made. That being so, it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession. Support for this view may be found in some of the observations in the Madras Full Bench case of Vyapuri v. Sonamma Boi Ammani [(1916) ILR Mad 811]."
59. Similarly, Hon'ble Supreme Court in case titled as A. Abdul Rashid Khan (Dead) & Ors. Vs. P.A.K.A Shahul Hamid & Ors. (2000) 10 SCC 636, observed in para no. 14 and 15 as under:-
.....14 Thus we have no hesitation to hold, even where any property is held jointly, and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, he is bound to execute the sale deed. However, in the absence of the other co-sharer, there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the appellants in such property to other such contracting party. In the present case, it is not in dispute that the appellants have 5/6 th share in the property. So, the plaintiff's suit for specific performance to the extent of this 5/6th share was rightly decreed by the High Court' which requires no interference.
15. So far as the other part of the High Court's order by which it decreed the alternative relief of Respondent 1 for partition of the suit property in six equal shares by metes and bounds and delivering separate possession over these such shares is concerned, on the face of it it is erroneous and cannot be sustained, in a suit for specific performance. The vendee on the date of filing this suit has not yet become the owner of this property, as he merely seeks right in the said property through the decree of specific performance. When the sale deed itself has yet to be executed, his right in the property has not yet matured, how can he claim partition and possession over it?
Even after decree is passed, his right will only mature when he deposits the balance consideration and the sale deed is actually executed. This apart, how could there be any partition in the property, without the other co-shares joining, who are not Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.40 of 45 part of the disputed agreement? No issue is framed between them. No evidence led. Hence, we find that the High Court was not right in decreeing this alternative prayer of partition in this suit....."
60. In view of the aforesaid judgments, a decree of physical possession cannot be passed in favour of plaintiff. The plaintiff is only entitled to symbolic possession of the suit property and he is at liberty to pursue his remedy of partition.
61. Before parting there are two more questions which need determination: (1) Whether defendant no. 1 to 4 are entitled to amount more than the balance sale consideration because of the fact that more than 25 years have lapsed since the date of agreement ? (2) Whether defendant no. 5 shall also join in execution of sale deed in favour of plaintiff?
62. The agreement to sell is dated 18/02/1992 and the suit is pending since 1995. Since 1992, the value of the suit property, which is located in South Delhi, has increased manifold and as per the circle rate of residential property in that area, the property is worth crores. However, at the same time, as stated earlier, the conduct of defendants is also fraudulent, as despite receiving earnest money from plaintiff, defendant no. 3 and 4 executed sale deed in favour of defendant no. 5, that too at Bombay, without issuing any notice to plaintiff.
63. Accordingly, in order to balance the right of parties, the court is of the opinion that the plaintiff is entitled to specific performance after paying Rs.25 lakhs to LRs of Late Sh Ram Kishan / defendant no. 1 to 4 in addition to balance of sale consideration of Rs.3,90,000/- as offered by plaintiff himself on 12/04/2018. Reliance Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.41 of 45 is placed upon the judgment titled as K. Prakash Vs. B.R. Sampath Kumar 2015 (2) SCC 597 wherein Hon'ble Apex Court because of 10 years delay had granted specific performance for Rs 25 lakhs, instead of original consideration of Rs 16 lakhs.
64. Lastly, it needs to be determined whether defendant no. 5 shall join in execution of sale deed in favour of plaintiff.
65. In the case of Sushil Kumar Bagga Vs. Dewan Chander Batra & Anr. 207 (2014) DLT 346, the question arose before Hon'ble Delhi High Court as to what shall be the form of decree in the case of specific performance where suit property is sold by defendant to another person and later he suffers a decree of specific performance. Hon'ble Delhi High Court, observed in para no. 29, as under:-
"29. The question in this case, arises this way. The effect of the decree now is that the plaintiff is required to pay the balance sale consideration to defendants no. 1 to 5 in terms of agreement dated 18.01.1983 and, in turn, defendants no. 1 to 5 have to execute the sale deed of the suit house in the plaintiff's favour and give possession of the suit house to the plaintiff. Since, in the meantime, defendants 1 to 5 have sold the suit house to defendant no. 6, vide sale deed dated 09.02.1983 for Rs.45,000/- such sale would not bind the plaintiff. Indeed the sale deed dated 09.02.1983 now has become bad in law and the transaction of sale between defendants no. 1 to 5 and defendant no. 6 has failed. In such circumstances, the seller (i.e. defendants 1 to 5) has no right to retain the sale consideration of Rs.45,000/- which they received from defendant no. 6 or any part thereof, as the case may be, and has to, therefore, refund the same to the buyer (defendant no. 6). In other words, whatever amount which defendant no. 1 to 5 received from defendant no. 6 (whether Rs.45,000/- or any part thereof), the same has to be refunded by defendants no. 1 to 5 to defendant no. 6 (see Section 65 of the Contract Act). Nevertheless, defendant no. 6 would be join in execution of sale deed in the plaintiff's favour along with defendant no. 1 to 5 as held by this court in Durga Prasad for conveying the valid title of the suit house to the plaintiff."
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66. Relying upon the aforesaid judgment, it is directed that defendant no. 5 shall join in execution of sale deed in the plaintiff's favour along with defendant no. 1 to 4.
Issue no. (ii) is decided in favour of the plaintiff and against the defendants.
Issue no. (v). Whether the plaintiff is entitled for damages in case the relief for specific performance is declined? OPP
67. The plaintiff, in alternative, has made a prayer for award of damages to the tune of Rs 5,05,000/- including refund of Rs 45,000/- which was paid as earnest money to defendant no 1 to
4.
68. As specific performance has been decreed in favour of the plaintiff, the alternative prayer of award of damages is declined. Moreover, merely because the plaintiff has asked for alternative relief, he cannot be refused the principal relief of specific performance. It has been held in Ram Dass v. Ram Lubhaya, 1998(2) PLR 32 that an alternative prayer by a plaintiff in a suit cannot be construed as a waiver or abandonment of the main relief in the suit. An alternative prayer is a relief which is claimed by the party if the party is found to be not entitled to the main relief claimed in the suit.
69. Even in the case titled as Gurmail Singh and others V. Amrit Singh and others, 2000 (1) RCR (Civil) 70 it was held that merely because agreement indicated that the plaintiff would claim double the amount in case of breach, would not exclude the right of the plaintiff to enforce the agreement.
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70. The jurisdiction vested in the Court to decline specific performance and grant alternative relief is a jurisdiction of equity and good conscience and must be exercised in consonance of the settled principles of law. A lawful agreement being proved and judicial conscience of the Court being satisfied, the equity would demand enforcement of an agreement rather than granting an alternative relief of damages to the plaintiff. It need not be reiterated that equity must give relief where equity demands.
71. Still further it may be mentioned that in case of immovable property time is never the essence of the contract unless so is recited in the contract. Reference may be made to the authorities reported as Mohammad Nadir v. Chaudhari Jahangiri Mal and others, AIR (36) 1949 Lahore 72 and Bhagwan Singh v. Teja Singh alias Teja Ram, 1996(3) LLR 487 (P&H).
72. Thus, plea of learned counsel for the defendants that sufficient time having elapsed, the specific performance should be refused, cannot be accepted. The default lies with the defendants and refusing specific performance would be amounting to undue enrichment of wrong- doers. Moreover, the plaintiff has been fair enough to offer additional amount of Rs.25 lakhs to defendant no. 1 to 4 on account of delay in proceedings for which plaintiff is not responsible.
Issue no. (v) is accordingly disposed off.
Relief In view of findings and discussion on the aforesaid issues, a decree for specific performance of Agreement to Sell dated 02.04.1992 Ex.P1 is passed in favour of the plaintiff and Suit No.1722/16/95 Sanjay Gupta Vs. Sh. Hazari Lal & Anr. Page No.44 of 45 against the defendants. Defendants shall execute the sale deed in favour of the Plaintiff within one month from the date of obtaining the requisite permissions, if required, (to be obtained within 2 months from today) by the concerned person as per rules subject to payment of Rs.28,90,000/- to defendant no. 1 to 4 by the plaintiff at the time of the registration of sale deed in his favour. Parties shall bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (SHUCHI LALER)
on this 4th day of ADJ-04, EAST DISTRICT
July, 2018 KKD Courts, Delhi.
Digitally signed by
SHUCHI SHUCHI LALER
LALER Date: 2018.07.03
16:32:16 +0530
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