Delhi District Court
Sreelekha Manoj vs Ishakat Ali Khan on 25 November, 2021
IN THE COURT OF MS. NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURTS, NEW DELHI
CS DJ No.1351/18
Sreelekha Manoj
W/o Sh. Manoj
R/o F3/305, Southend Apartment,
Eros Garden, Charmwood village,
Surajkund - 121009. .......... Plaintiff
Versus
Ishakat Ali Khan
S/o Abdul Rafi Khan
R/o No.B-5, Second Floor,
RZ-2686/29, Karan Apartment
Tuglakabad Extension
New Delhi - 110019. .......... Defendant
Date of Institution : 10.09.2018
Date of Decision : 25.11.2021
JUDGMENT
Suit for Possession and for Recovery of Damages has been filed by Shreelekha against the defendant Ishakat Ali Khan.
1. The case of plaintiff Shreelekha is that she had purchased the property bearing No.RZ-2686 Gali No.29 (2686/29) Khasra No.422, Second Floor at Tughlakabad Extension, New Delhi - 1100019 from Smt. Dineshwari W/o Sh. Krishan Kumar vide registered Sale Deed dated 29 th November CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 1 of 19 2005 registered on 18th November 2005. The suit premises comprising of two bedrooms, Drawing room, two bathrooms, kitchen and balcony, was let out to the defendant Ishakat Ali for a period of 11 months from 01.09.2015 to 31.07.2016 on a monthly rent of Rs.9,000/- per month for residential purpose. He had been paying Rs.8,000/- through bank transfer while Rs.1,000/- was being paid in cash. Ishakat Ali defaulted to deposit one month security in terms of the Lease Agreement and has been delaying the deposit of monthly rent and at times only part rent is paid. Timely payment of electricity has also not been done by him. Since the defendant did not change his habits, the Lease Agreement was terminated vide Notice dated 16.04.2016 and the defendant was directed to vacate the premises by 15.05.2016. A reminder was sent through e-mail dated 20.04.2016. Again a notice dated 06.07.2016 and another legal notice dated 08.10.2016 were served upon the defendant but he has continued to be in possession and failed to vacate the suit premises. The Lease Agreement also expired by efflux of time on 31.07.2016 after which Ishakat Ali was in any case bound to deliver the possession but he failed to do so. The complaint dated 06.11.2016 was also made to the police.
2. On 15.12.2016, Shreelekha was served with a Legal Notice dated 01.12.2016 on behalf of Ishakat Ali through his Advocate, by the security guard of the Apartment asking her for execution of Sale Deed in respect of tenanted premises. It was CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 2 of 19 claimed that Rs.3 lakhs and Rs.6 lakhs had already been paid by the defendant to the plaintiff in cash out of the sale consideration of Rs.19 Lakhs.
3. It is submitted that the claim of Ishakat Ali was totally incorrect as she had neither entered into Agreement to Sell nor had she received Rs.9 Lakhs in cash from the defendant. After receipt of Notice dated 01.12.2016, Shreelekha made a complaint to SHO in regard to fabrication of false documents by Ishakat Ali.
4. Shreelekha filed an Eviction Petition bearing No.13/17 under section 14(1) (e) of Delhi Rent Control Act but withdrew the same as the rent was more than Rs.3,500/- and eviction petition was not maintainable. The present suit has been filed to seek possession of the suit property and also arrears of rent of Rs.2,43,000/- since June 2016 @ Rs.9,000/- per month besides compensation for mental agony in the sum of Rs.10 Lakhs. Interest @ 15% per annum has also been claimed.
5. Ishakat Ali Khan, the defendant in his written statement admitted that he started living in the suit premises as tenant since September 2015 but claimed that the rate of rent was Rs.8,000/- which he was depositing in the account of the plaintiff till June,2016. Thereafter, he made the payment in cash till September 2016. It is submitted that he entered into an CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 3 of 19 Agreement to Sell with Shreelekha and made part payment of Rs 9 lacs in cash out of the agreed Sale consideration of Rs.19,00,000/- (Nineteen Lakhs). Ishakat Ali had explained his source of Rs.9 Lakhs by asserting that he had got Rs.2 lakhs from sale of his shop situated at Islam Nagar, District Badaun, UP and had taken a loan of Rs.2 Lakhs from his friend Musayad, and Rs.1 lakh each from his friend Rakesh Gupta and Mazhar. It was submitted that he had also taken a personal loan in the sum of Rs.2.5 Lakhs from HDFC Bank. However, despite the Agreement, she declined to execute the Sale documents within 15 days of the payment of Rs.9 Lakhs as was agreed between the parties.
6. On merits, Ishakat Ali has denied all the averments made in the plaint.
7. Shreelekha, the plaintiff in her replication reiterated and reaffirmed the averments made in the plaint.
8. From the pleadings of the parties and material on record, the following issues were framed on 29.11.2019 as under:
1. Whether the plaintiff is entitled to possession of suit premises bearing Flat No. B-5, 2nd Floor, Tughlakabad Extension, New Delhi? OPP
2. Whether the defendant is a tenant at a monthly rent of Rs.9,000/- per month ? OPP CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 4 of 19
3. Whether the defendant is in arrears of rent w.e.f. June, 2016? OPP
4. Relief.
9. Shreelekha in support of her case appeared as PW1 and tendered her evidence affidavit, Ex.PW1/X. The documents relied upon by her are Ex.PW1/1 to Ex.PW1/7.
10. Sh Ishakat Ali appeared as DW1 in support of his defence and tendered his evidence affidavit, Ex.DW1/A.
11. Learned counsel on behalf of plaintiff Sreelekha has argued that Ishakat Ali Khan has admitted the relationship of landlord and tenant. He has claimed an oral Agreement to Sell and payment of Rs.9 Lakhs in cash which is not corroborated or supported by any cogent evidence. Ishakat Ali Khan has relied upon his Bank statement to prove loan of Rs.2.5 Lakhs but has failed to prove the Bank statement. Even if the bank statement is considered, loan was taken in the year 2015 while the alleged Agreement was entered into in the year 2016. The loan is prior to the alleged sale transaction. Furthermore, no cogent evidence of having taken loan from his friends has been led by him. Moreover, to seek Specific Performance of an Agreement to Sell, it was mandatory for him to show his willingness to pay the balance amount which he has failed to do. It is submitted that the CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 5 of 19 Ishakat Ali Khan is liable to vacate the premises and pay arrears of rent and occupation charges.
12. Learned Counsel on behalf of the defendant Ishakat Ali Khan has argued that though he was initially inducted as a tenant but thereafter, plaintiff offered to sell the suit property and a oral Agreement for Sale of property for a consideration of Rs.19 Lakhs was arrived at between the parties. Rs.9 Lakhs have already been paid and Ishakat Alit Khan has always been willing to pay the balance amount of Rs.10 Lakhs. He is entitled to execution of Sale Deed in his favour.
13. I have heard the arguments and perused the record. My issue-wise findings are as under:
FINDINGS ON ISSUE NO. 2Whether the defendant is a tenant at a monthly rent of Rs.9,000/- per month ?
14. The first aspect which needs determination is whether the defendant is a tenant in the suit premises. It is an admitted case of the parties that Ishakat Ali Khan was inducted as a tenant in the suit property in September 2015 vide Lease Deed dated 31.08.2015 for 11 months up to 31.07.2016. Ishakat Ali Khan had claimed that the rate of rent was Rs.8,000/- while Sreelekha has claimed that the rate of rent to be Rs.9,000/- per month as mentioned in the lease Deed.
CS DJ No.1351/18Sreelekha Manoj Vs. Ishakat Ali Khan Page 6 of 19
15. Ishakat Ali Khan has deposed that while he was living as a tenant, Sreelekha expressed her willingness to sell the suit property to him since she needed money to shift to her newly purchased flat in Faridabad. He accordingly entered into an oral Agreement to Sell for Rs.19 lakhs and paid Rs.3 Lakhs in cash on 28.08.2016 and Rs.6 lakhs on 04.09.2016. Ishakat Ali Khan has admitted that there was no receipt issued of the amount paid and there was no Agreement whatsoever in writing executed between the parties. The claim of Ishakat Ali Khan is based solely on an oral Agreement to Sell and part payment which has been made in cash.
16. The assertions of the defendant raises following issues:
i) the legality of oral Agreement to Sell and whether the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
ii) whether the transferee has in part performance of the contract taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and
iii) whether he has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract.CS DJ No.1351/18
Sreelekha Manoj Vs. Ishakat Ali Khan Page 7 of 19
i) Validity of Oral Agreement to Sell:
17. The first aspect for consideration is whether there can be an oral Agreement to Sell. Hon'ble Supreme Court in K. Nanjappa (Dead) by Legal Representatives vs R.A. Hameed Alias Ameersab (Dead) by Legal Representatives and Another (2016)1 SCC 762 observed that there is no dispute that even a decree for specific performance can be granted on the basis of oral contract. A reference was made to the observations of Lord Du Parcq in Shankarlal Narayandas Mundade v. New Mofussil Co. Ltd., 1946 SCC OnLine PC 7 wherein he observed that while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by Apex Court in Kollipara Sriramulu v. T. Aswatha Narayana AIR 1968 SC 1028.
18. In Brij Mohan and Ors vs Smt. Sugra Begum And Ors. 1990 SCC (4) 147 it was held that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 8 of 19 there was consensus adidem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal Agreement incorporating such terms which had already been settled and concluded in the oral agreement.
19. Now coming to the present facts, though, the defendant had claimed to have entered into an oral Agreement to Sell in respect of the suit premises but he has failed to lead any tenable evidence in this regard. He has also admitted that there was no document executed in respect of payment and symbolic handing over of possession pursuant to the alleged oral Agreement to Sell. Interestingly, the defendant had claimed that the occasion for sale of property by the plaintiff arose as she needed money to shift to her house purchased in Faridabad. Strangely, money is generally required for purchase of property and if the claim of defendant that money was required for shifting then a heavy onus rested on the defendant to explain this unique requirement and special circumstances compelling the plaintiff to take this step of agreeing to sell the property. The CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 9 of 19 defendant except making a wild claim has not been able to explain the circumstances. This becomes more significant as the defendant has failed to give the date of this alleged Agreement to sell except that payment of three lacs was made on 28.08.2016 and six lacs on 04.09.2016. Moreover, if this Agreement was genuinely entered sometime in August, 2016 there was no occasion to pay the rent till September, 2016 as asserted by the defendant. His own vague and contradictory pleas completely defeat his claim of ever having entered into an Agreement to Sell.
20. The other incidence of great significance could have been the proof of part payment of Rs.9 lacs in cash by the defendant. Ishakat Ali Khan had tried to explain that he had arranged Rs.9 Lakhs from his friends and through personal loan. In his cross examination, he has explained that he has sold a shop to his Bhabhi in the year 2015 in his Hometown for an amount of Rs.2.50 Lakhs. However, there is no proof whatsoever of sale of the property or having received Rs.2.50 Lakhs on account of sale of his shop. He has further explained that he had taken Rs.2 Lakhs as loan from his friend Musayad and Rs.1 lakh each from Rakesh Gupta and Mazhar. However, except his oral assertions, there is no evidence whatsoever in support of this alleged loan taken by him from his friends.
21. Further, he has alleged to have taken Rs.2.50 Lakhs as personal loan from HDFC Bank but he has failed to prove CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 10 of 19 Statement of Account but it has been marked as Mark A which reflects that there is an amount of Rs.2,43,584 credited to his account on 21.02.2014. However, the alleged deal has been entered into in the year 2016 while this amount had been taken in 2014. It is difficult to comprehend that Ishakat Ali Khan would withdraw the money from the Bank and keep this amount in cash for about two years and thereafter use this amount for payment of consideration towards the alleged sale Agreement especially when the offer was made in 2016 and was not in his contemplation in 2014. It may also be noted that from his own Statement of Account Mark A, he has been regularly withdrawing the amount in the year 2014 and it does not reflect any corpus at all reflecting his capacity to pay.
22. The defendant has miserably failed to lead any cogent evidence in regard to alleged part payment of Rs.9 Lacs towards sale consideration. Again his conduct reinforces that no Agreement to Sell as alleged was ever entered into by the defendant with the plaintiff.
ii) Whether the defendant ever acquired possession pursuant to Agreement to Sell:
23. The defendant has miserably failed to prove that he ever acquired any kind of ownership right by way of Agreement to Sell in respect of the suit premises. Even if for the sake of CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 11 of 19 arguments it is accepted that the defendant had entered into any Agreement to Sell, the next question that arises is whether his status in respect of the suit premises ever changed to that of an owner. This aspect was considered by Delhi High Court in Dalip Kumar Gupta vs Kushal Chand Garg & Ors in RFA 569/2019 & C.M. No.28037/2019 decided on 14 August, 2019 wherein it was observed that merely because a plea of Agreement to Sell is raised in respect of which a suit for Specific Performance is pending, a tenant cannot be allowed to continue in suit premises. This, in itself, shows that the plea of an oral Agreement to Sell raised by the appellant (tenant) is sham and wholly dishonest.
24. Delhi High Court in Abbot India Ltd. vs Rajinder Mohindra & Anr. RFA No. 207/2013 decided on 17 January, 2014 observed that for Section 53A of the Transfer of Property Act to be invoked, the transferee should have in part performance of the contract of transfer taken possession of the property or if already in possession of the property should after the contract of transfer continue in possession in part performance of the contract of transfer.
25. Coming to the present facts, the defendant was already in possession of the suit property as a tenant and there is not an iota of evidence that the nature and character of his possession changed to that of an owner. The defendant had instituted the suit for specific performance on 26.08.2017 i.e. CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 12 of 19 prior to this suit, but it was after the petition for eviction was erroneously filed by the plaintiff which was subsequently withdrawn and present suit for possession was filed on 10.08.2018.
26. The Supreme Court also in Williams Vs. Lourdusamy (2008) 5 SCC 647 held that it is one thing to say that a person is in possession of the property and it is another thing to say that he has a right to possess pursuant to or in furtherance of an Agreement for Sale.
27. It is the admitted case of the defendant that he was already in occupation of the suit premises on the date of alleged Agreement to Sell and there is no document of symbolic possession in the capacity of an owner being given to him. The defendant is proved to be a tenant in the suit premises.
iii) Readiness and willingness to perform his part of the Agreement to Sell by the Tenant:
28. To raise a plea of Agreement to Sell to protect the possession it is mandatorily required by Section 16 of the Specific Relief Act to plead readiness and willingness of the party to perform his part of the contract which is a condition precedent to the plea of specific performance. Mere oral evidence and self-serving depositions cannot be a substitute for categorical evidence on the specific statutory requirement of Section 16(c) CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 13 of 19 as observed by Delhi high Court in Baldev Behl & Ors. v. Bhule & Ors., 2012 SCC OnLine Del 4730.
29. Hon'ble Supreme Court in the case of N. P. Thirungnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115 defined the guiding principles for Section 16(c) of the Act. It envisages that Plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the owner. The continuous readiness and willingness on the part of the alleged transferee is a condition precedent to grant the relief of specific performance. If the Plaintiff fails to either aver or prove the same, he must fail. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract.
30. ShreeAadhiya Build Well Pvt. Ltd. Vs. Kartar Singh & Ors, 228 (2016) DLT 10 it was observed that it is settled law that the expressions 'readiness' and 'willingness' refer to the capacity to pay so far as the expression 'readiness' is concerned and the intention to go through with the transaction as reflected in the expression 'willingness'. Reference may also be made to the observations of the Supreme Court in J.P. Builders CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 14 of 19 and Another v. A. Ramadas Rao and Another, (2011) 1 SCC
429.
31. In the present case, the defendant while setting up a plea of Agreement to Sell has conspicuously remained silent about payment of balance sale consideration or performance of his part of the contract. Neither has he pleaded his readiness and willingness nor has he shown his financial resources to pay the balance amount. According to the defendant, the sale documents were to be executed after 15 days of payment of initial consideration of 9 lacs on 04.09.2016 but no steps were taken till the plaintiff served the Legal notice ExPW1/6 dated 08.10.2016 for eviction. A suit for Specific Performance was also filed by the defendant on 26.08.2017 after the eviction petition was filed by the plaintiff.
32. The defendant has miserably failed to establish his possession in suit premises in the capacity of the owner pursuant to the Agreement to Sell. It is thus, established that defendant was a tenant in the suit premises and his occupation continues to be so.
Rate of Rent:
33. Having concluded that the defendant is a tenant in the suit premises what further needs to be determined is the rate of rent. The plaintiff has been consistent in claiming that the rate CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 15 of 19 of rent was Rs.9,000/ p.m. She had explained that while Rs.8,000/- was being paid in her bank account, Rs.1,000/- was being paid in cash. Ishakat Ali Khan had taken a bald defence throughout that the agreed rate of rent was Rs.8,000/-. But in his cross examination for the first time he had admitted that initially the rent was Rs.9,000/- per month but due to parking issues, it was reduced to Rs.8,000/- within one month of commencement of tenancy. It was further deposed by him that the parking dispute continues till date between the builder and the flat owners.
34. Ishakat Ali Khan had nowhere pleaded this defence in his written statement or suggested the same to the plaintiff. It was for the first time volunteered in his cross examination by Ishakat Ali Khan that he had reduced payment of Rs.1,000/- per month on account of car parking issue. The defence put forth by Ishakat Ali Khan of the rent being Rs.8,000/- is therefore, not proved. It is held that the rate of rent of the suit property is Rs.9,000/- per month.
In view of the above findings, issue no.2 is decided in favour of plaintiff Sreelekha.
FINDINGS ON ISSUE NO. 3Whether the defendant is in arrears of rent w.e.f. June, 2016?
35. It is an admitted case of the parties that the rent upto June 2016 had been deposited in the bank account of the plaintiff.
CS DJ No.1351/18Sreelekha Manoj Vs. Ishakat Ali Khan Page 16 of 19 Ishakat Ali Khan had asserted that rent from July 2016 to September 2016 was given in cash but no explanation has been given whatsoever as to why the rent was given in cash when throughout it was being deposited in the Bank account. Ishakat Ali Khan has not been able to show that the rent after June 2016 had paid by him in cash to the plaintiff. It is thus, held that Ishakat Ali Khan is in arrears of rent @ Rs.9,000/- per month since July 2016, which he is liable to pay till he handed over the possession of the suit property.
36. It may also be noted that in Lease agreement, Ex.PW1/2 it has been specifically mentioned that Rs.50,000/- had been paid vide pay order as security. Though Sreelekha has denied having received any money but from the terms of Lease Agreement, it is evident that Rs.50,000/- had been paid as security, which is liable to be adjusted in recovery of arrears of rent from Ishakat Ali Khan.
37. The plaintiff has also claimed Rs 10 lacs towards mental agony. However, no cogent reason has been given by her for the same. Hence, Sreelekha is not entitled to any damages towards mental agony.
38. Further, Sreelekha has also claimed interest @ 15%. However, there is no cogent reason for grant of interest at the said rate. Hence, Sreelekha is held entitled to interest @ 5% per CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 17 of 19 annum on the arrears of rent / user occupation charges from July 2016 till the date of possession.
Issue no.3 is decided in favour of plaintiff Sreelekha.
FINDINGS ON ISSUES NO. 1Whether the plaintiff is entitled to possession of suit premises bearing Flat No. B-5, 2nd Floor, Tughlakabad Extension, New Delhi?
39. Plaintiff has proved the Lease Agreement dated 31.08.2015, Ex.PW1/2. Ishakat Ali Khan also admitted having entered into the suit premises as a tenant vide this lease agreement. It is proved that he is the tenant in the suit premises and Lease Agreement expired on 31.07.2016. No cogent evidence has been put forth by Ishakat Ali Khan to prove that the suit property was ever sold to him or he is entitled to possession of the same in the capacity of an owner.
40. Smt. Sreelekha as PW1 has deposed that the service of legal notice dated 08.10.2016, Ex.PW1/6 was effected on defendant Ishakat Ali Khan vide speed post but the same was refused. There is no challenge to the testimony of the plaintiff by the defendant. The service of legal notice is therefore, proved.
In view of the same, it is held that plaintiff is entitled to recovery of suit premises.
CS DJ No.1351/18Sreelekha Manoj Vs. Ishakat Ali Khan Page 18 of 19 Issue no.1 is decided in favour of plaintiff Sreelekha and against defendant Ishakat Ali Khan.
RELIEF:
41. In view of the above findings on Issues no.1, 2 and 3, it is held that plaintiff is entitled to recovery of possession of suit property bearing No.RZ-2686 Gali No.29 (2686/29) Khasra No.422, Second Floor at Tughlakabad Extension, New Delhi - 1100019. The plaintiff is also entitled to recovery of arrears of rent/occupation charges @ Rs.9,000/- p.m. after adjusting Rs.50,000/- paid as security along with interest @ 5% p.a. from July 2016 till the date of delivery of possession.
42. Sreelekha is directed to pay deficit court fee on the arrears of rent / user occupation charges since the date of filing of suit till recovery of possession. The suit is accordingly decreed.
43. Parties to bear their costs. Decree Sheet be prepared accordingly.
44. File be consigned to Record Room.
Announced in the open (NEENA BANSAL KRISHNA) Court on 25.11.2021 Principal District & Sessions Judge, South East: Saket Courts, New Delhi CS DJ No.1351/18 Sreelekha Manoj Vs. Ishakat Ali Khan Page 19 of 19