Delhi District Court
Sh. Umakant Upadhyay vs Sh. Bhagwan Dass Kalra on 31 May, 2013
IN THE COURT OF SH. JITENDRA PRATAP SINGH, CIVIL JUDGE,
TIS HAZARI COURTS, DELHI
Suit No. 617/07
Case ID No. C1027652007
1. Sh. Umakant Upadhyay,
S/o Late Sh. R.N. Upadyay,
2. Smt. Archana Upadhyay,
W/o Sh. Umakant Upadhyay,
Both R/o 135/B, Mount Kailash,
New Delhi. .... Plaintiffs.
Versus
Sh. Bhagwan Dass Kalra,
Since deceased through his LRs.
a. Smt. Pushpa Huria,
W/o Sh. Nand Lal Huria,
R/o House No. 1098, Sector 43B,
Chandigarh.
b. Smt. Saroj Bala,
W/o Sh. Bal Krishna,
R/o House No. 994, Sector 9B,
Karnal, Haryana.
Suit No. 617/07 Page No. 1 of 21
c. Smt. Savita Girdhar,
W/o Sh. Raj Girdhar,
R/o G4, South Extention Part II,
New Delhi.
d. Smt. Chander Kanta Relan,
W/o Sh. Devinder Relan,
R/o House No. 603, Plot No. 18,
Sector 10, Fakhruddin Apartments,
Dwarka, New Delhi. .... Defendants.
SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT TO SELL
DATED 12.10.2004 AND PERMANENT INJUNCTION.
Date of Institution : 12.10.2007
Date of reserving Judgment : 01.05.2013
Date of pronouncement : 31.05.2013
JUDGMENT
Vide this Judgment I shall dispose off the suit filed for specific performance of agreement to sell dated 12.10.2004 as executed by the defendant in favour of the plaintiffs as well as for perpetual injunction seeking restraining of the defendant and the Suit No. 617/07 Page No. 2 of 21 persons claiming through him from selling, transferring, alienating and / or creating third party rights in respect of shop No. 5, 32, Community Centre, East of Kailash, New Delhi and further restraining the defendant from creating any encumbrance on the said property.
2. Brief facts of the case of the plaintiff as stated in the plaint are as follows: Plaintiff's were tenants in respect of the aforesaid shop measuring 15'.9" x 10'10" with terrace right over it carrying on their business from the said shop inducted by the defendant. In pursuance to an offer of the defendant, the plaintiffs agreed to purchase the aforesaid shop for a total sale consideration of Rs. 2,87,000/ in August, 2004. It was agreed that the defendant shall get the property converted from leasehold to freehold for which the proportionate expenses shall be shared by the plaintiff. The defendant had received Rs. 60,000/ out of the total consideration amount while the balance was agreed to be paid on or before the time of execution and registration of the sale deed in favour of the purchasers or their nominee before the Subregistrar and the seller shall be handing over the actual physical proprietary, legal and symbolic possession after receiving the balance payment. The shop was agreed to be sold on as is where is basis. It was further Suit No. 617/07 Page No. 3 of 21 agreed that the defendant who was the first party shall apply and get the property converted from leasehold into freehold for which the plaintiffs shall be paying their proportionate share of the expenses and thereafter the defendant shall be executing the proper sale deeds for conveying the same in favour of the second party i.e. the plaintiffs.
3. The agreement was made irrevocable with a stipulation that upon failure of a party in completing the transaction the aggrieved party shall get the agreement enforced through the Court of law at the expenses of the defaulting party. The agreement containing the aforesaid terms was executed on 12.10.2004. As per the terms, an amount of Rs. 60,000/ (Rs. 10,000/ in cash and Rs. 50,000/ vide cheque No. 642822 dated 12.10.2004) was paid to the defendant. Since the plaintiffs were already in possession of the shop, symbolic possession was also handed over to them. To inspire confidence in the plaintiffs, the defendant demanded the proportionate share of the conversion charges as may be levied by the DDA and was given Rs. 70,000/ for the same by the plaintiffs to ensure the completion of the sale transaction. The plaintiffs were repeatedly assured that the matter was being pursued with the DDA and the sale deed would be executed Suit No. 617/07 Page No. 4 of 21 in due course.
4. The plaintiffs conveyed to the defendant several times their readiness and willingness to perform their part of the contract / obligation simultaneously offering the balance sale consideration but the defendant kept on avoiding the performance of his part of the contract. In the month of July, 2007 the defendant blatantly refused to perform his part of the contract / obligation committing the breach of the contract. Upon this a legal notice dated 29.9.2007 calling upon the defendant to sign and execute the sale deed and get the same registered was issued. It was replied to on 4.10.2007 stating in the reply that the sale deed cannot be executed due to pendency of a civil writ petition before the Hon'ble High Court of Delhi. It is stated that due to steep rise in the price of the property, the defendant is refusing to execute the conveyance deed despite receiving the part payment and this has compelled the plaintiffs to file the present suit.
5. In the written statement the defendant has admitted the tenancy of the plaintiffs in the suit property further admitting the execution of the agreement to sell on 12.10.2004. It is stated in the Suit No. 617/07 Page No. 5 of 21 written statement that at the time of negotiation and execution of the agreement to sell it was agreed that the said agreement was subject to conversion of the property into freehold as all the occupants of the property including the plaintiffs were under an apprehension that certain misuse charges have been levied on the property due to misuse of the same by some of the occupants. It is stated that it was agreed that all the demands of the DDA would be met in proportion of the occupation of the property by the occupants but only a sum of Rs. 70,000/ on account was taken towards the interim payment to enable the defendant for the application of conversion. It is for this reason that the price was fixed at meagre Rs. 2,87,000/.
6. It is further stated that after the application of the defendant with the DDA for conversion, a demand of approximately Rs. 27,00,000/ was raised by the DDA which was challenged by the defendant before the Hon'ble High Court vide Civil Writ Petition bearing No. 12515/05 and all the occupants including the plaintiffs were consulted for the same. As per the defendant, it was agreed that whatever liability arises, it shall be borne in proportionately to the share of the occupation and at the time of filing of the written statement the Suit No. 617/07 Page No. 6 of 21 Writ Petition is still pending disposal. It is stated that without conversion of the suit property into freehold, the sale deed could not be executed as the defendant is only a lessee in the suit property. In addition thereto, the allegations made against the defendant are denied in the written statement.
7. The plaintiffs in the replication reiterated the averments as made in the plaint while denying the averments of the written statement. It is stated that the issue of Civil Writ Petition is a matter between the defendant and the DDA which in no manner concerns the plaintiffs. The defendant himself failed to pay the ground rent for a sum of Rs. 16,553.50 upto 25.10.2004 which was demanded by the DDA including interest of Rs. 2,575/ thereupon and for this fault of the defendant, the plaintiffs cannot be made liable as it has not been alleged that the plaintiffs have been misusing the property. It is stated that since plaintiffs have already paid their share of conversion charges, there is no point in demanding the same from the plaintiffs at this stage.
8. During the pendency of the suit, upon the death of the defendant, his legal representatives were substituted in his place on an Suit No. 617/07 Page No. 7 of 21 application moved under Order 22 Rule 4 of the CPC moved on behalf of the plaintiffs. They were substituted vide order dated 2.7.2011 passed by the Ld. Predecessor. At subsequent stage, one of the legal representatives of the deceased defendant i.e. LR (b) Ms. Saroj Bala had also expired and vide order dated 26.7.2012, the Ld. Counsel for the other LRs had submitted that the legal representatives of Ms Saroj Bala shall be adopting the written statement filed by the original defendant to the suit.
9. Thereafter, on the completion of the pleadings following issues were framed on 14.8.2012 :
1. Whether the suit of the plaintiff is liable to be dismissed for the plaintiff suppressing material facts from this court? OPD.
2. Whether the plaintiff has no cause of action to file the present suit? OPD.
3. Whether the plaintiff is entitled to the direction to be given to the defendant to specifically perform the contract dated 12.10.2004 as prayed for? OPP.
4. Whether the plaintiff is entitled to the decree of Suit No. 617/07 Page No. 8 of 21 perpetual injunction as prayed for? OPP.
5. Relief.
Thereafter, the matter was listed for plaintiff evidence.
10. In plaintiff evidence, plaintiff no. 1 examined himself as PW1 who has tendered his evidence by way of affidavit. In his examination in chief, PW1 mostly reiterated the averments as made in the plaint and relied upon and produced the following documents on record :
1. Site plan as Ex. PW1/1.
2. Agreement to sell dated 12.10.2004 as Ex.
PW1/2.
3. Receipt dated 18.10.2004 as Ex. PW1/3.
4. Telegram dated 12.6.2007 as Ex. PW1/4.
5. Copy of legal notice dated 29.9.2007 as Ex.
PW1/5.
6. Application under RTI Act as Ex. PW1/6.
7. Reply letter dated 2.12.2008 issued by the office of DDA as Ex. PW1/7.
8. Certified copy of the Judgment dated 3.10.2011 passed by the Hon'ble High Court Suit No. 617/07 Page No. 9 of 21 as Ex. PW1/8.
The said PW1 was cross examined by the counsel for the defendants.
11. Despite been given several opportunities the defendants have failed to lead their evidence and the defendant evidence was closed vide order dated 4.4.2013. The matter was then listed for final arguments.
12. I have heard the arguments advanced by the Ld. Counsel for the plaintiff and have carefully gone through the case file. My issuewise findings are as follows :
13. ISSUE NO. 1.
Whether the suit of the plaintiff is liable to be dismissed for the plaintiff suppressing material facts from this court? OPD.
The onus of proof of the present issue has been placed upon the defendant. In the present matter, the defendant has not led any evidence and as such it cannot be said that he has been able to Suit No. 617/07 Page No. 10 of 21 prove the aforesaid issue before this court. In the written statement, the aforesaid objection as to the concealment of material facts by the plaintiffs has been raised by the defendant. The defendant has not brought on record any material from which it can be deduced that the plaintiffs have concealed any fact which is material for the decision of the present suit. Per contra, the plaintiffs have filed in support of their submissions the original agreement to sell dated 12.10.2004 executed by the defendant in favour of the plaintiffs, Ex. PW1/2; the cheque receipt dated 18.10.2004, Ex. PW1/3; the telegram dated 12.6.2007, Ex. PW1/4; copy of the RTI Application sent to the DDA and its reply dated 2.12.2008, Ex. PW1/6 and Ex. PW1/7 respectively as well as the legal notice dated 29.9.2007 as Ex. PW1/5. In light of these documents which are considered in view of the defendant not proving on record any material, the present issue stands decided against the defendant and in favour of the plaintiffs.
14. ISSUE NO. 2.
Whether the plaintiffs have no cause of action to file the present suit? OPD.
The onus of proof of the present issue is upon the Suit No. 617/07 Page No. 11 of 21 defendant. In the written statement, a vague allegation has been made that the suit filed is without any cause of action. The defendant during the trial has not brought on record any material in support of said objection. On the other hand, the plaintiffs who have filed the present suit for specific performance of contract i.e. agreement to sell dated 12.10.2004 and permanent injunction have filed and proved on record the aforesaid agreement to sell, Ex. PW1/2. Moreover, they have also filed and proved on record the legal notice dated 29.9.2007 asking the defendant to perform his part of the contract. It is not in dispute that the defendant has not performed his part of contract. This non performance on the part of the defendant of the obligations as set out in the aforesaid Ex. PW1/2 has necessarily given the plaintiffs the opportunity and the right to institute the present suit. Hence, in view of this it cannot be said that the suit is without any cause of action. The issue accordingly stands decided against the defendant.
15. ISSUE NO. 3.
Whether the plaintiffs are entitled to the direction to be given to the defendant to specifically perform the contract dated 12.10.2004 as prayed for? OPP.
Suit No. 617/07 Page No. 12 of 21
The onus of proof of the present issue has been placed upon the plaintiffs. In the present suit, the plaintiffs have sought a decree against the defendant seeking directions to the defendant to specifically perform the contract dated 12.10.2004 by executing the sale deed to sell, transfer and convey the shop No. 5, 32, Community Centre, East of Kailash, New Delhi on receipt of the balance sale consideration or in alternative to get the compliance of the decree through any officer of the court at the cost of the defendant. The plaintiffs have based their present suit on the agreement to sell dated 12.10.2004 executed by the defendant in favour of the plaintiffs, Ex. PW1/2. The defendant has not disputed the execution of the aforesaid agreement to sell. The defendant has further not disputed receiving Rs. 70,000/ vide cheque receipt dated 18.10.2004 i.e. Ex. PW1/3.
16. The plaintiffs have further filed the transcript of the telegram sent to the defendant asking him to receive the balance sale consideration, Ex. PW1/4 and they have also filed their application under Right to Information Act (RTI) and its reply Ex. PW1/6 and Ex. PW1/7 respectively. The copy of the Judgment dated 3.10.2011 passed by the Hon'ble High Court in WP(C) No. 12515/2005 (Ex. PW1/8) has Suit No. 617/07 Page No. 13 of 21 also been relied upon and filed.
17. The sole contention of the defendant as stated out in his written statement is 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 however, only aforesaid sum of Rs. 70,000/ on account was taken towards the interim payment to enable the defendant to make an application for conversion. It is stated that upon the application of the defendant for conversion with the DDA 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 plaintiffs before the Hon'ble High Court in the aforesaid WP(C) No. 12515/05. It is stated that since the plaintiffs have backed out from their obligations, the defendant is not interested in dealing with them and the deal stands cancelled. The plaintiffs may take their money back in terms of the agreement. Since the execution and registration of sale deed in terms of the agreement to sell dated 12.10.2004 was conditional upon the conversion of the property from leasehold to freehold which could not be converted upon the failure of the plaintiffs to pay the proportionate conversion charges, Suit No. 617/07 Page No. 14 of 21 the plaintiffs are not entitled for specific performance of the aforesaid agreement to sell.
18. In a suit for specific performance the contract of which the specific performance is 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. The agreement to sell dated 12.10.2001, 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/ shall be paid by the plaintiff to the defendant on or before positively at the time of execution and registration of sale deed in favour of the plaintiff. Clause 6 thereof records that the defendant is 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 that the defendant 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 plaintiff near Rs. 70,000/ and Suit No. 617/07 Page No. 15 of 21 the defendant shall execute the proper sale deed for conveying the same in favour of the plaintiffs or their nominee. It is admitted that the said amount of Rs. 70,000/ was paid to the defendant 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. Thus, as is evident from the bare reading of the aforesaid agreement it was the duty of the defendant under the agreement to get the property converted into freehold from the DDA. The contention of the defendant 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 plaintiffs 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 plaintiff by the Delhi Development Authority in reply to their application under RTI Act wherein an amount of Rs. 24,12,452/ has been levied on account of misuse charges of the property w.e.f. 15.3.1984 to 31.8.1999. 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 defendant. Thus, it can be assumed that this was the actual amount required to be paid for conversion. Suit No. 617/07 Page No. 16 of 21
19. At this stage, it is also pertinent to refer to the observation made by the Hon'ble High Court in the Judgment dated 3.10.2011 passed in WP(C) No. 12515/05. The Hon'ble Court observed that the petitioner therein (the defendant in the present suit) had entered into a compromise with the tenant who was misusing the property as per which the tenant vacated the basement handing 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 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 this observation of the Hon'ble High Court the plaintiff cannot be blamed for aforesaid misuse charges amounting to Rs. 24 lacs and odd amount.
20. The plaintiffs have shown their readiness and willingness to perform their part of the contract firstly by paying their proportionate share of conversion charges amounting to Rs. 70,000/ vide cheque receipt dated 18.10.2004, Ex. PW1/3 and secondly by issuing a Suit No. 617/07 Page No. 17 of 21 telegram to the defendant on 12.6.2007, Ex. PW1/4 and the said readiness and willingness has not been challenged in the trial. 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 plaintiffs or due to some circumstances which are beyond the control of the defendant rather in the present matter the defendant has 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 into freehold nor had he recovered those charges from the tenant who had in fact misused the property. The averments made in defence by the defendant have not been substantiated by any document and in view of Section 91 of the Indian Evidence Act, 1872 no evidence against the terms of the aforesaid agreement to sell can be given once the term of the agreement are reduced into writing. The non performance of the aforesaid agreement to sell in no way can be attributed to the plaintiffs. The agreement in question categorically falls under the explanation provided to Section 10 of the Specific Relief Act, 1963 and as such the plaintiffs are entitled to the relief of specific performance of the contract dated 12.10.2004. The issue stands decided in favour of the plaintiff and against the defendant. Suit No. 617/07 Page No. 18 of 21
21. ISSUE NO. 4.
Whether the plaintiff is entitled to the decree of perpetual injunction as prayed for? OPP.
The onus of proof of the present issue has been placed upon the plaintiff. The plaintiffs have been able to prove before this court their entitlement to the specific performance of the agreement to sell dated 12.10.2004 and as such it shall be causing an irreparable loss to the plaintiffs in case the defendant or the person claiming through him succeeds in selling, transferring, alienating and / or creating third party rights in the suit property or in creating any encumbrance on the suit property. Accordingly, the plaintiffs are held entitled to the decree of perpetual injunction restraining the defendant and the persons claiming through him from creating any third party interest / encumbrance / charge in or over the suit property. Issue stands decided in favour of the plaintiffs and against the defendant.
22. RELIEF.
In view of the aforesaid discussion and decision of the issues, the plaintiffs have been successful in establishing their case and as such they are held entitled to a decree of specific performance of the Suit No. 617/07 Page No. 19 of 21 agreement to sell dated 12.10.2004 and the legal representatives (LRs) of the deceased defendant are directed to execute the sale deed to sell, transfer and convey the ownership and right in respect of shop No. 5, 32, Community Centre, East of Kailash, New Delhi after receiving the balance sale consideration of Rs. 2,27,000/ from the plaintiffs. Eight weeks time from today is granted to the LRs of the deceased defendant to complete all the necessary formalities for getting the property converted from leasehold to freehold from the Delhi Development Authority (DDA) whereafter the plaintiffs shall be making the payment of the balance sale consideration of Rs. 2,27,000/ within four weeks of the said conversion to the LRs and the plaintiffs then shall be entitled for the execution and registration of the sale deed transferring the ownership and rights of the property in favour of the plaintiffs. In failure of the LRs of the deceased defendant in complying with the aforesaid directions, the plaintiffs shall be entitled to get the property converted into freehold from the DDA and thereafter for the execution and registration of the sale deed of the said property through the process of this court and the plaintiffs in that case shall be entitled to recover all the expenses incurred by them for the aforesaid purpose out of the estate of the deceased defendant. Plaintiffs are also held entitled to the costs of the Suit No. 617/07 Page No. 20 of 21 suit. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court (Jitendra Pratap Singh) on 31.05.2013. Civil Judge15, Central Tis Hazari Courts, Delhi 31.05.2013.
This Judgment consists of 21 pages and all the pages are duly signed by me.
Suit No. 617/07 Page No. 21 of 21 Suit No. 617/07 31.05.2013 Present: None.
Vide separate order of even date suit of the plaintiff is decreed along with the costs of the suit. Decree sheet be prepared accordingly. File be consigned to record room.
(Jitendra Pratap Singh) CJ/C/Delhi/31.05.2013 Suit No. 617/07 Page No. 22 of 21