Delhi District Court
Smt. Pushpa Hurria vs Sh. Umakant Upadhayay on 5 September, 2014
IN THE COURT OF SH. LALIT KUMAR: ADDI. DISTRICT JUDGE01:
SOUTH EAST DISTRICT: SAKET COURTS: NEW DELHI
RCA No. 04/13
1. Smt. Pushpa Hurria
W/o Sh. Nand Lal Hurria
R/o H. No. 1098, Sector 43, Chandigarh
2. Smt. Saroj Bala (since deceased)
Through LRs:
i) Sh. Bal Krishan Nangru
S/o Sh. Wazir Chand.
R/o H. No. 994, Sector 09, Karnal, Haryana
ii)Sh. Vivek Sheel
S/o Sh. Bal Krishan Nangru
R/o H. No. 994, Sector 09, Karnal, Haryana
iii)Smt. Aarti
W/o Sh. Naresh Asija
R/o C91, Inderpuri, Delhi
iv)Smt. Sumita
W/o Sh. Nitin Tandon,
R/o H. No. 994, Sector 09, Karnal, Haryana
(All through their attorney Sh. Bal Krishan Nangru)
3. Smt. Kanta Relan
W/o Sh. Davinder Relan
R/o A3, Paschim Vihar, New Delhi.
4. Smt. Savita Girdhar
W/o Sh. Raj Girdhar
R/o G4, South Extn., PartII, New Delhi ..... Appellants
Versus
1. Sh. Umakant Upadhayay
S/o Late Sh. R.N. Upadhayay
2. Smt. Archana Upadhayay
W/o Sh. Umakant Upadhayay
(Both residents of 15/B, Mount Kailash, New Delhi) .....Respondents
RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 1 of 14
Date of institution of case : 10.07.2013
Date of Reserving order : 05.09.2014
Date of judgment : 05.09.2014
JUDGMENT
1. This is an appeal under Section 96 CPC filed by the appellants against the judgment and decree dated 31.05.2013, passed in the matter by learned Trial Court. It is alleged that the respondents had filed the suit for specific performance in respect of the agreement to sell dated 12.10.2004. The original defendant Sh. Bhagwan Dass Kalra (predecessor of appellants) appeared and filed written statement. The respondents filed replication to the same. Ld. Trial Court framed the issues vide order dated 14.08.2012. The respondent examined only one witness PW1 Sh. Umakant Upadhyay and appellants have not examined any witness. On the basis of pleadings and evidence, Ld. Trial Court decreed the suit of the respondent / plaintiff which is being assailed on the grounds that Ld. Trial Court acted beyond its jurisdiction which was not vested in it by law and further is not supported by the facts on record. Learned Trial Court failed to appreciate that the property in question is leasehold and further the agreement between the parties was subject to the property being converted into freehold and as such the property itself having not been converted into freehold and being leasehold, no sale deed can be executed. Ld. Trial Court also not appreciated that it was stipulated and agreed RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 2 of 14 between the parties that the agreement is subject to conversion of property to freehold from DDA keeping in view that whatever amount of conversion would be required on any count would be shared by the parties and the amount taken in advance was only on account of the initial deposit with the DDA in proportion to the portion of the respondents and the impugned judgment and decree is based on mere surmises and conjectures which do not flow from the record of the case it is based on mere assumptions and presumptions as prayed that the said judgment and decree may be set aside and appeal may be allowed by dismissing the suit of respondents / plaintiffs.
4. On being served, the respondent filed written submissions. Ld. Counsel for respondent strongly opposed the appeal.
5. It is averred by respondents in written submission that the appellants, who are the legal heirs of original defendant, Sh. Bhagwan Dass Kalra, had died during the pendency of the suit and thereafter the above named appellants had been impleaded as a parties to the suit. It is further alleged that one of the legal heirs of late Sh. Bhagwan Dass Kalra, Smt. Saroj Bala, had also expired during the pendency of the suit, her legal heirs have also been impleaded as a parties to the suit. Hence, the appellants are the legal heirs of late Sh. Bhagwan Dass Kalra, against whom the learned Trial Court had passed a decree of specific performances vide its judgment and decree RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 3 of 14 dated 31.5.2013. It is further alleged that the appellants had mentioned the name of all the legal heirs of late Sh. Bhagwan Dass Kalra, against whom the decree has been passed by learned Trial Court. However, the instant appeal has not been signed or supported by the affidavits of all other legal heirs except the appellant no.4, namely Smt. Savita Girdhar, nor any power of attorney has been filed contending that the said Smt. Savita Girdhar, has been representing all the appellants and has signed the appeal for and on behalf of all other appellants also. Therefore, merely giving the name in the memo of parties does not constitute to be the appellants challenging the said judgment and decree. It is well settled principle of law, since all other appellants have not challenged the said judgment and decree, the said judgment and decreed has attained its finality against the said appellants.
6. It is further alleged that the decree dated 31.05.2013 as has been passed by learned Trial Court is a well reasoned detailed judgment and has dealt with each and every aspect of the matter in issue. Therefore, the appellants have failed to raise any question of law or facts or grounds which needs kind consideration of this court and the appeal is liable to be dismissed with exemplary cost in favour of the respondent.
7. It is further alleged that though the original defendant, late Sh. Bhawan Dass Kalara, had admitted the execution of the agreement to sell on RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 4 of 14 12.10.2004, admitted the sale consideration as had been entered into between the parties, admitted the receipt of payments either towards the sale consideration or towards the proportionate share of the conversion charges for getting the property converted from leasehold to free hold. The sole contention which the defendants / appellants herein had raised in their written statement that it was agreed between the parties that all the demands of the DDA for converting the property into freehold would be met in proportion to the occupation of the property by the plaintiffs / respondents herein and the sum of Rs. 70,000/ on account was taken towards the interim payment to enable the appellants to make an application for conversion. Since the respondents backed out from their obligations, the appellants are not interested in dealing with them and the deal stands cancelled. The execution and registration of the sale deed in terms of the agreement to sell dated 12.10.2004 was conditional upon the conversion of the property from leasehold to freehold which could not be converted upon the failure of the respondents to pay the proportionate conversion charges, the respondents were not entitled for specific performance of the said agreement to sell. It is alleged that the terms and condition of the agreement to sell dated 12.10.2004 are free from any ambiguity, vagueness and doubt as is evident from the terms of the agreement that it was the duty cast upon the defendants / respondents to clear all taxes, dues, and demands of DDA/MCD/BSES Rajdhani Power Ltd. or any other competent authority, if any, relating to the shop for and upto RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 5 of 14 the date of handing over the vacant physical possession of the said shop. The defendants / appellants will apply and get the said property converted from leasehold to freehold from DDA and all the expenses relating to freehold shall be paid and borne by the plaintiffs near Rs. 70,000/ and the defendants will execute the proper sale deed for conveying the same in favour of the plaintiffs / respondents or their nominee. It is further alleged that since the terms of the agreement to sell are very specific and clear and unambiguous, it was the liability of the appellants to clear the dues whatsoever imposed by the DDA or any other concerned authority. In so far as the penalty as had been raised by the DDA, it is stated that the respondents had sought information under RTI Act seeking details of the actual conversion fee levied, any penalty charges along with interest etc, penalty if any, the cause of penalty including the portion of building where the cause arose and any other relevant information in this case. The DDA vide its reply had informed that the applicant had deposited a sum of Rs. 4,07,814/ on account of free hold conversion fee, Rs. 24,12,452 on account of misuse charges w.e.f 15.03.1984 to 31.08.1999, Rs. 16,553.50 P on account of Ground Rent upto 25.10.2004, Rs. 2,575 on account of interest on belated payment of Ground rent upto 14.08.2005. Therefore, once the plaintiffs / respondents had paid their share of the conversion charges of Rs. 70,000/ out of Rs. 4,07,814/ the liability to pay the penalty and other charges cannot be fastened upon the respondents which the respondents have not committed.
RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 6 of 14
8. It is further submitted that the appeal is not maintainable as there is no infirmity, whatsoever, in the judgment and decree dated 31.05.2013 passed by learned Trial Court. The appellants have miserably failed to raise any question of law arising out of the said judgment and decree. Further the present appeal filed by the appellants is a gross abuse of the process of law in as much as the appeal is misconceived and is an afterthought, vague and baseless, nonetheless no ground has been made which required kind consideration of this court and hence it is liable to be dismissed on this ground only.
9. I have heard the arguments from both sides and perused the record.
10. The main ground of the appeal are that since the property in question is leasehold and agreement between the parties was subject to the property being converted into freehold, as such the property itself having not been converted into freehold, therefore, no sale deed of leasehold property can be executed and it was stipulated and agreed between the parties that the agreement is subject to conversion of property to freehold from DDA keeping in view that whatever amount of conversion would be required on any count would be shared by the parties and the amount taken in advance was only on account of the initial deposit with the DDA in proportion to the portion of the respondents. It is averred that the impugned judgment and RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 7 of 14 decree is based on mere surmises and conjectures which do not flow from the record of the case it is based on mere assumptions and presumptions as prayed that the said judgment and decree may be set aside and appeal may be allowed by dismissing the suit of respondents / plaintiffs.
11. It is seen that it was agreed between the parties that all the demands of the DDA for converting the property into freehold would be met in proportion to the occupation of the property by the respondents, however, only aforesaid sum of Rs. 70,000/ on account was taken towards the interim payment to enable the appellants to make an application for conversion on which an amount of Rs. 27 lacs was raised by the DDA for the said conversion and the said demand was challenged after consultation with the respondent s before the Hon'ble High Court in WP(C) No. 12515/05 and since the respondents had backed out from their obligations, the respondents are not interested in dealing with them and the deal stands cancelled. The respondents might have taken their money back in terms of the agreement. Since the execution and registration of sale deed in terms of the agreement to sell dated 12.01.2004 was conditional upon the conversion of the property from leasehold to freehold which could not be converted upon the failure of the respondents to pay the proportionate conversion charges, the respondents are not entitled for specific performance of the aforesaid agreement to sell.
RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 8 of 14
12. It is settled proposition of law, that in a suit for specific performance the contract as sought must be clear, definite, certain and complete and it should be free from doubt, vagueness and ambiguity so as to leave nothing to conjecture or to be supplied by the court. It is pertinent to mention here that the whole controversy between the parties revolves around the agreement to sell dated 12.10.2004 and particularly terms and conditions mentioned in para 2, 5, 6 & 7. Therefore, in order to solve the controversy, it would be better that these relevant paras be reproduced herein:
"2. that the balance sale consideration of Rs. 2,27,000/ will be paid by the second party to the first party positively at the time of execution and registration of Sale Deed in favour of the second party or his nominee before the Sub Registrar, New Delhi.
5. that the first party covenants with the second party that the said shop hereby agreed to be sold is in his absolute ownership and the same is free from all sorts of encumbrances like prior sale, mortgages, gifts, exchanges, charges, disputes, wills, court injunctions, attachments, etc., and if it is proved otherwise, the first party will be liable and responsible for all the damages thus suffered / sustained by the second party and will make good of the same to the second party.
RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 9 of 14
6. that first party is also liable to clear all taxes, dues and demands of DDA/MCD/BSES Rajdhani Power Ltd. or any other competent authority, if any relating to this shop for and upto the date of handing over of the vacant physical possession of the said shop.
7. that the first party will apply and get the said property converted from leasehold into freehold from DDA and all the expenses relating to freehold shall be paid and borne by the second party near Rs. 70,000/ and the first party shall execute the proper sale deed for conveying the same in favour of the second party or his nominee before the Sub Registrar, New Delhi.
13. It is seen that the agreement to sell dated 12.10.2004 Ex. PW1/2 is in no manner ambiguous. Clause 2 of the said agreement categorically provides that the balance sale consideration of Rs. 2,27,000/ should be paid by the respondents to the appellants on or before positively at the time of execution and registration of sale deed in favour of the respondents. Clause 6 thereof records that the appellants are liable to clear all taxes, dues and demands of DDA / MCD/BSES Rajdhani Power Limited or any other competent authority, if any relating to the suit shop for and upto the date of handing over of the vacant physical possession of the said shop. Clause 7 of the said agreement is of special importance in the circumstances. It records RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 10 of 14 that the appellant will apply and get the said property converted from leasehold into freehold from DDA and all the expenses relating to freehold shall be paid and borne by the respondents near Rs. 70,000/ and the appellants shall execute the proper sale deed for conveying the same in favour of the respondents or their nominee. It is admitted that the said amount of Rs. 70,000/ was paid to the appellants vide cheque receipt, Ex. PW1/3. Clause 8 of the agreement provides that this agreement will be subject to conversion of this property into freehold from the DDA. Further from bare reading of the agreement, it can easily be understood that it was the duty of the appellants under the agreement to get the property converted into freehold from the DDA.
14. The contention of the appellants that the demand of Rs. 27 lacs raised by the DDA for the conversion of the said property into freehold has to be met proportionally by the respondents amongst all the other occupants of the other parts of the property fails to find an appeal with this court in view of the information supplied to the plaintiffs by the DDA. It is further seen that in reply to the application of appellants filed under RTI Act which shows that DDA has levied an amount of Rs. 24,12,452/ on account of misuse charges of the property w.e.f. 15.03.1984 to 31.08.1999 and in response to the query about the actual freehold conversion fee levied, the DDA has stated that a sum of Rs. 4,07,814/ on this account has been deposited by the appellants and RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 11 of 14 which required to be paid for conversion.
15. I have also gone through the observation taken by Hon'ble High Court in the judgment dated 3.10.2011 passed in W.P.(C) No. 12515/05, that "the petitioner therein (the defendant in the suit) had entered into a compromise with the tenant who was misusing the property as per which the tenant vacated the basement and handed over the possession thereof to the petitioner and the petitioner fully and finally settled accounts with the tenant giving discharge to him. The Hon'ble High Court observed that the petitioner had not controverted the claim of the property being misused rather he had admitted the said claim by initiating proceedings against the tenant misusing the premises with whom he chose to settle absolving him of the misuse and taking all the responsibility thereof on himself. In view of the observation of the Hon'ble High Court, the plaintiff cannot be blamed for aforesaid misuse charges amounting to Rs. 24 lacs and odd amount.
16. It is seen that learned Trial Court has correctly dealt with this aspect at length in para 18 and 19 of the judgment and had rightly observed in para 20 at page 18 that, "the defendant in support of his contentions has not led any evidence and as such it cannot be said that the agreement cannot be performed either due to the fault of the respondents / plaintiffs or due to some circumstances which are beyond the control of the defendants, rather, RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 12 of 14 in the present matter, the defendants have not acted over the board as he had neither deposited the misuse and other charges with the DDA so as to get the property converted from leasehold to freehold nor had he recovered those charges from the tenant who had infact misused the property". Rather, it was the appellants / defendants themselves had absolved the tenant who had misused the property in question of liability to pay the misuse charges and taken all the responsibility upon themselves. Thus the appellants are under bounden duty to pay the charges whatsoever has been levied by the DDA.
17. In view of the above backdrop, this court is of the view that there is no infirmity either on facts or in law in the judgment and decree dated 31.05.2013 passed by the learned Trial Court. The judgment and decree dated 31.05.2013 passed by the learned Trial Court is upheld and the appeal file is dismissed.
18. Copy of the judgment be sent to the Ld. Trial Court / Successor Court. Trial Court Record be sent back. Parties to bear costs. File be consigned to record room.
Announced in the open (LALI T KUMAR)
Court on 05.09.2014 ADJ01: South East District
This judgment contains thirteen pages Saket , New Delhi
and each page bears my signatures.
RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 13 of 14
RCA No. 04/13
Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr.
05.09.2014
Present: Ld. Counsel for the parties.
Vide separate judgment of the date, the appeal filed is dismissed. Copy of the judgment be sent to the Ld. Trial Court/ Successor Court. Trial Court Record be sent back. File be consigned to record room.
(LALIT KUMAR) ADJ01 (SE), Saket Courts, New Delhi /05.09.2014 RCA No. 04/13 Pushpa Hurria & Ors. Vs. Umakant Upadhayay & Anr page 14 of 14