Delhi District Court
Harish Bindal vs . Phoolwati & Ors. Page No. 1 Of 27 on 4 December, 2017
Suit Number : 1749/16 Dated : 04.12.2017
IN THE COURT OF MS. KIRAN GUPTA,
ADDITIONAL DISTRICT JUDGE-03
NORTH DISTRICT: ROHINI DISTRICT COURTS
NEW DELHI
Suit Number : 1749/16
Old Number : 497/16
Sh. Harish Bindal
S/o Late Sh. Nunia Mal Bindal,
R/o H. No. AE-167, Shalimar Bagh,
Delhi-110088 .......................Plaintif
Versus
1. Ms. Phoolwati (Now deceased)
Through LR
Sh. Gopal Goyal
S/o Late Sh. Jyoti Ram Goyal,
R/o H. No. B-1/48, Phase-II,
Ashok Vihar, Delhi-110052 .............Defendant no.1
2. M/s Silver Spoon Gardern Retreat Pvt. Ltd.
2009, Outram Line, Kingsway Camp,
Delhi-110009 ............Defendant no 2
HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 1 of 27
Suit Number : 1749/16 Dated : 04.12.2017
AMENDED SUIT FOR SPECIFIC PERFORMANCE OF
AGREEMENT TO SELL Dt. 24.07.1996 AND FOR
PERMANENT INJUNCTION
Date of institution of Suit : 06.12.1996
Date of reserving judgment : 25.11.2017
Date of judgment : 04.12.2017
JUDGMENT
1. Present suit is for specific performance of agreement to sell dated 24.07.1996 and for permanent injunction.
BRIEF FACTS
2. Brief facts of the case are that plaintiff and D-1 entered into agreement to sell dated 24.07.1996 with respect to sale of land measuring 4000 Sq. yard out of Khasra No. 44/1 (1-0) and 44/10 (3-0) situated in area and revenue estate of village-Khera Kalan (hereinafter referred as suit property) for consideration of Rs. 1050/- per sq. Yard, total value of Rs. 42 Lacs. Plaintif paid earnest amount of Rs. 4 Lacs at the time of execution of the agreement to sell.
HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 2 of 27 Suit Number : 1749/16 Dated : 04.12.2017 The sale deed was not executed by D-1, hence, plaintiff filed the suit for specific performance before the Hon'ble High Court of Delhi (original jurisdiction).
2.1 Vide interim order dated 06.12.1996, D-1 was restrained from creating any third party interest in the suit property. The said interim order was modified vide order dated 16.02.2000, whereby plaintiff was directed to deposit the balance amount within 4 weeks from the date of said order, failing which it was ordered that the interim order dated 06.12.1996 shall stand vacated without further reference to the court. Since plaintiff failed to deposit the said amount with the court, D-1 sold the suit property to D-2 vide registered sale deed dated 07.10.2002 during the pendency of the suit. Consequently, D-2 was impleaded as party to the suit vide order dated 29.03.2006.
CASE OF PLAINTIFF
3. Case of plaintiff is that the period for completion of sale deed was fixed upto 3 months w.e.f. 24.09.1996 and within the stipulated period D-1 had to apply and obtain NOC, Income Tax clearance certificate and fulfill all other formalities and had to execute registered sale deed in his favour. The actual physical vacant possession of the HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 3 of 27 Suit Number : 1749/16 Dated : 04.12.2017 premises was agreed to be handed over at the time of registration of the sale deed.
3.3 It is alleged that D-1 failed to fulfill the pre- requisite that is obtaining NOC, Sale permission and income tax clearance certificate in favour of plaintiff before the stipulated period i.e. 24.10.1996. He duly sent letter on 26.10.1996 to D-1 followed by the letter on 12.11.1996 asking her to fulfill the conditions of agreement to sell. He came to know from local property dealer on 29.11.1996 that D-1 has been intending to sell the property to some other prospective buyer.
3.4 It is further alleged that during the pendency of the suit, D-1 has sold the land in the suit property to D-2 for amount of Rs. 4 Lac vide sale deed dated 07.10.2002 without permission of the court.
3.5 It is stated that plaintiff is ready and willing to perform his part of agreement and it is D-1 who has failed to perform her part of agreement, hence, the present suit.
3.6 It is prayed as follows
(a) that a decree of specific performance be passed in favour of plaintiff and against defendants directing HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 4 of 27 Suit Number : 1749/16 Dated : 04.12.2017 them to execute the sale deed in terms of agreement to sell dated 24.07.1996.
(b) Decree of permanent injunction be passed against defendants, thereby restraining them and any person acting on their behalf to raise any construction or enter into agreement to sell in respect of the suit property.
(c) Decree for recovery of Rs. 8 Lac be passed against D-1 alongwith interest @ 24% per annum w.e.f. 01.11.1996 till realization.
(d) Decree of declaration, thereby declaring the sale deed dated 07.10.2002 in favour of D-2 as null and void.
(e) Decree for mandatory injunction, directing D-2 to hand over the physical possession of the suit to plaintiff.
CASE OF DEFENDENT No. 14. In the written statement filed on behalf of D-1, she has taken preliminary objection that suit is without any cause of action and that plaintiff has concealed material facts. It is alleged that it is the plaintiff who has not arranged balance consideration and has not deposited the same nor shown the financial capacity to make the balance consideration. She has always remained ready and willing and is still ready and willing to execute the sale deed but HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 5 of 27 Suit Number : 1749/16 Dated : 04.12.2017 now the property is owned by D-2. It is stated that she has signed the agreement without reading the same and same was got prepared by plaintiff who himself is a lawyer. It was only agreed that sale deed shall be executed for consideration of Rs. 4 lacs and for which there is no necessity for obtaining an income tax certificate.
4.1 Plaintiff has obtained her signatures on the prescribed proforma of NOC/ sale permission etc. for obtaining the same himself and agreed to pay the remaining amount at the time of execution of sale deed. It is the plaintiff who had to inform her after getting the necessary permission from the competent concerned authority for registration of sale deed. It was obligation upon the plaintiff to have NOC. She has denied other contents of the plaint except the contents of Para No. 12 of the plaint. She has admitted that she has sold the land in the suit property for an amount of Rs. 4 Lac vide registered sale deed dated 07.10.2002.
5. No WS has been filed on behalf of D-2 despite various opportunities.
HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 6 of 27 Suit Number : 1749/16 Dated : 04.12.2017
6. In the replication filed on behalf of plaintiff to the WS of D-1, he has denied the averments made by D-1 and re-iterated the facts as stated in the plaint.
ISSUES
7. On the basis of pleadings, following issues were settled vide order dated 05.02.2010:
1. Whether the suit has been properly valued for the purpose of court fees? OPD
2. Whether the plaintiff is entitled for specific performance of the Agreement to Sell dated 24.07.1996? OPP And in the alternative Whether the plaintiff is entitled to recover the sum of Rs. 8,00,000/- alongwith interest @ 24 % per annum as the defendant failed to perform her part under the agreement? OPP
3. Whether sale deed dated 07.10.2002 executed by Defendant no. 1 in favour of Defendant no. 2 null and void in accordance of Section 52 of Transfer of Property Act, 1882?
OPP
4. Whether the plaintiff is entitled to cost? OPP
5. Relief.
HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 7 of 27 Suit Number : 1749/16 Dated : 04.12.2017 PLAINTIFF EVIDENCE
8. Plaintiff in order to prove his case has examined himself as PW-1. He has tendered his evidence by way of affidavit Ex. PW1/A. He has relied upon following documents:
(1) Agreement to sell dated 24.07.1996 as Ex. P-1.
(2) Original receipt of earnest money as Ex. P-2. (3) Letter dated 12.11.1996 as Ex. P-3 and courier receipt as Ex. P-4.
(4) Postal receipt dated 12.11.1996 as Ex. P-6. (5) Ex. P-5 (Letter of proof of strike in P&T Department), Ex. P-7 (Sale deed dated 07.10.2002) and Ex. P-8 (Publication in newspapers) are marked A, C and B (Colly.).
DEFENCE EVIDENCE
9. D-1 in order to prove her case has examined her son Gopal Goyal as DW-1. He has tendered his evidence by way of affidavit Ex. DW-1/A.
10. D-2 has not led any evidence.
HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 8 of 27 Suit Number : 1749/16 Dated : 04.12.2017 ARGUMENTS OF PLAINTIFF
11. It is argued by counsel for plaintiff that the suit property is agricultural land and NOC was required for selling the agricultural land and this was the pre-condition to be fulfilled by D-1 as per the Agreement to Sell dated 24.07.1996. It is D-1 who defaulted in compliance of the terms of the agreement despite the specific order of the Hon'ble High Court of Delhi dated 03.08.1999 and 27.10.1999. It is submitted that counsel for D-1 has sought time to place on record the NOC, however, the NOC was never filed by D-1. Further, vide order dated 27.08.2016, both defendants were directed to place on record NOC as relied by them in the sale deed duly executed by D-1 in favour of D-2, however, no such NOC has been filed by either of the defendants. D-1 in collusion with D-2 has sold the suit property to D-2 despite pendency of the present suit at a throw away price of Rs. 4 Lacs in the year 2004, while plaintiff had paid the earnest amount of Rs. 4 Lacs in 1996. It is argued that the sale deed in favour of D-2 is not a valid sale deed as it has been registered below circle rate.
11.1 It is further argued that the plaintiff was always ready and willing to perform his part as per agreement and it is the defendant who has miserably failed to fulfill her part HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 9 of 27 Suit Number : 1749/16 Dated : 04.12.2017 by not providing the NOC. The willingness of plaintiff can be derived from the fact that he has served the letter within 3 months of the agreement.
11.2 It is further argued that D-1 who has executed the agreement has not appeared as witness. DW-1 has not deposed as Attorney of defendant but as an independent witness on behalf of defendant. The son who was the witness to agreement to sell has not been examined.
11.3 It is further argued that none of the defendants have cross examined PW-1 regarding his non-willingness or readiness to perform his part. There is no cross examination regarding forfeiture of amount and cancellation of agreement. Further, there is no plea of D-2 that he had no notice of pendency of the suit. It is argued that no hardship is involved if the suit of the plaintiff for specific performance is decreed.
11.4 He in support of his arguments has relied upon following judgments:
a) Rakesh Kumar Vs. Kalawati (deceased) through LRs and other, decided on 10.12.2013 in RFA No. 521/2004, Hon'ble High Court of Delhi.
b) P. D'souza Vs. Shondrilo Naidu, IV (2004) SLT 893.
HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 10 of 27 Suit Number : 1749/16 Dated : 04.12.2017 ARGUMENTS OF DEFENDENT No. 1
12. It is argued by counsel for D-1 that suit of plaintiff is liable to be dismissed as D-1 was always ready and willing to execute the sale deed. It is the plaintiff who neither paid the balance amount nor was ever willing to get the sale deed executed. He did not pay or deposit the amount despite ample opportunities given to him for payment by D-1 as well as by the court as is evident from the various orders of the court. Since, plaintiff failed to comply with the terms of the agreement, the amount was forfeited. The property was sold to D-2 as the stay order in favour of the plaintiff stood automatically vacated on his failure to deposit the amount.
12.1 It is argued that the son who had signed the agreement could not be examined as he was not alive when the matter was at the stage of PE. Further, D-1 was very old and not in position to depose. Now, she has also expired. He has relied upon following judgments in support of his contentions:
a) Man Kaur (Dead) by Lrs Vs. Hartar Singh Sangha, JT 2010 (10) SC 565
b) N.P. Thirugnanam (D) by Lrs Vs. Dr. R. Jagan Mohan Rao and others, AIR 1996 SC 116.
HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 11 of 27 Suit Number : 1749/16 Dated : 04.12.2017 ARGUMENTS OF DEFENDENT No. 2
13. It is argued by counsel for D-2 that D-2 is a bonafide purchaser. The plaintiff did not deposit the amount as directed vide order dated 16.02.2000. This shows that he was never ready and willing to pay the amount. The property was sold to D-2 when there was no stay. Further, no document has been filed by the plaintiff to show that he had finance/money to pay the balance amount. He has relied upon following judgments in support of his contentions:
a) Rajender & Anr. Vs. S.V. Natrajan & Ors. Dated 13.02.2013 in SA No. 69/13 and MP No. 1/2013, Hon'ble High Court of Madras.
b) Dinesh Kumar Jain Vs. Sanjeev Chaudhary dated 25.10.2017, in RFA No. 882/2017 and CM No. 37360/2017, Hon'ble High Court of Delhi.
FINDINGS
14. Heard, Ld. Counsel for the parties and perused HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 12 of 27 Suit Number : 1749/16 Dated : 04.12.2017 the complete record file. My issue was finding are as follows:
Issue No. 1: Whether the suit has been properly valued for the purposes of court fees? OPD
15. The onus to prove this issue was on defendants, however, defendants have not led any evidence to prove as to how the suit has not been valued properly for the purposes of court fees. Plaintiff has sought specific performance of the contract/agreement wherein the value of the property is stated to be Rs. 42 Lacs. He has affixed the court fees of Rs. 43360/-. In the absence of any evidence on behalf of the defendants, the issue is decided in favour of the plaintiff and against the defendants.
Issue no. 2: Whether the plaintif is entitled for specific performance of the Agreement to Sell dated 24.07.1996? OPP And in the alternative Whether the plaintif is entitled to recover the sum of Rs. 8,00,000/- alongwith interest @ 24 % per annum as the defendant failed to perform her part under the agreement? OPP HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 13 of 27 Suit Number : 1749/16 Dated : 04.12.2017
16. The onus to prove this issue is on plaintiff. Plaintiff has examined himself as PW-1. In the present matter, there is no dispute to the fact that the agreement to sell was duly executed between the plaintiff and D-1 on 24.07.1996 and out of the total sale consideration, plaintiff paid Rs. 4 lacs towards earnest money. The said agreement to sell is Ex. P-1. Further there is no dispute to the fact that the land was situated in the area of Village Khera Kalan and was an agricultural land. As per Clause 1 of the agreement Ex. P1 which is an admitted document, the seller/D-1 had agreed that from the date of the execution of the said agreement and within the stipulated period i.e. three months, she shall apply for NOC/Sale Permission, ITCC and fulfill all other formalities for completion of the sale deed and inform the second party/ plaintiff who shall get the sale deed executed and registered after payment of the balance consideration amount.
16.1 Thus, by virtue of Clause (1) of Ex. P-1, duty was also cast upon D-1 to obtain the necessary NOC/sale permission for execution of sale deed in favour of plaintiff.
16.2 D-1 in her written statement has not disputed the fact that NOC/Sale permission was required before selling the suit property. She has merely stated that plaintiff has HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 14 of 27 Suit Number : 1749/16 Dated : 04.12.2017 obtained her signatures on the prescribed proforma of NOC/Sale permission etc. for obtaining the same himself. She has further stated that it is the plaintiff who had to inform her after getting the necessary permission from the Competent concerned Authority and about the NOC.
16.3 From the averments in the agreement Ex. P-1 and the written statement of D-1, it is evident that the NOC/Sale permission was necessary before execution of the sale deed qua the suit property. The fact that the NOC was required for sale is further fortified from the recital of the sale deed executed by D-1 in favour of D-2 i.e. Ex. P-7. In Clause (4) of Ex. P-7, it is stated that the vendor and vendee both have obtained the necessary No Objection Certificate from Tehsildar vide notification, under Section 8 of the Delhi Land Restriction on Transfer Act, 1972 vide NOC No. 3671 dated 27.09.2002.
16.4 Though the specific number vide which the NOC was obtained by D-1 and D-2 is mentioned in the sale deed Ex. P-7, however, no such NOC has been placed on record by either of the defendants till date. Vide order dated 27.08.2016, both D-1 and D-2 were directed to place on record the said NOC, however, no such NOC has been placed on record. Time for producing the NOC/Sale HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 15 of 27 Suit Number : 1749/16 Dated : 04.12.2017 Permission was also sought by D-1 from the court which is evident from the order dated 03.08.1999 and 27.10.1999. Despite the same, no NOC has been filed by D-1. Thus, it is amply clear that NOC was required for execution of the sale deed in favour of the plaintiff.
16.5 The case of plaintiff is that he was always ready and willing to perform his part but it is D-1 who failed to perform her part by not obtaining the requisite NOC/ Sale permission and handing over possession. Now what has to be seen is whether the plaintiff was actually ready and willing to perform his part of agreement.
16.6 It has been vehemently argued by Ld. Counsel of defendants that the very fact the plaintiff did not deposit the balance amount despite the specific directions of the court vide order dated 16.02.2000, leads to the inference that he was never willing and ready to perform his part. On the contrary, Ld. Counsel for plaintiff has argued that the non-compliance of the said order does not prove the non- willingness of the plaintiff. He in support of his arguments has relied upon one judgment of Hon'ble High Court of Delhi titled as Rakesh Kumar Vs. Kalawati (deceased) through Lrs, RFA NO. 521/2004 decided on 10.12.2013. The facts of the said judgment/ appeal are HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 16 of 27 Suit Number : 1749/16 Dated : 04.12.2017 similar to the facts of the present case. In Para no. 13 and 15 of the said judgment, it has been held as follows:
" 13. I have perused the order sheet of the suit court. The condition of deposit by the appellant/plaintiff of the balance sale consideration was imposed by the suit court to balance the equities arising from restraining the respondents/defendants from dealing with their property. The appellant/plaintiff was nowhere informed that it was essential for him to deposit the said amount in the court to show his readiness and willingness within the meaning of Section 16 (c) of the Specific Relief Act, 1963 or that inference of non-readiness and willingness shall be drawn from non-deposit. Even,if the appellant/plaintiff had failed to deposit, the only consequence thereof would have been of vacation of stay and not dismissal of the suit for specific performance. Had the purport for imposing such a condition been to test the readiness and willingness of the appellant/ plaintiff, the natural corollary, of the default in deposit, would have been the appellant/ plaintiff being not ready and willing and dismissal of the suit. The same was not done.
15.Otherwise----------------------------------------------------------
------------------------------------------------------. To hold , that though as per the agreement, the appellant/ plaintiff is liable to part with the balance sale consideration only against the delivery of title and possession, but to test his readiness and willingness, he can be directed to part therewith even without delivery of title and possession would amount to the court making a new contract and which is beyond the scope of jurisdiction of specific performance. I may, however, add that in given case where the court entertains about the HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 17 of 27 Suit Number : 1749/16 Dated : 04.12.2017 readiness and willingness of the appellant/ plaintiff till the date of institution of the suit itself, the court may to test the readiness and willingness, direct such deposit. However, in the present case, finding of the Ld. ADJ is of the appellant/ plaintiff being ready and willing till coming to the court."
16.7 Now coming to the order dated 16.02.2000, whereby the plaintiff was directed to deposit the balance amount. In the said order, it is stated as follows:
(i) It is open to the plaintiff to pay the balance sum of money to the defendant within four weeks from today to enable her to execute the sale deed and such sum may be deposited in this court.
(ii) In case the plaintiff does not pay the balance sum of money to the defendant/ or deposit it in this court within the stipulated period of four weeks, the interim order dated 06.12.1996 shall stand vacated without further reference to the court.
16.8 In the said order, only the time was granted to the plaintiff to deposit the amount with the rider that the consequence shall follow in case, he fails to deposit the said amount. The consequence being that the interim order dated 06.12.1996 vide which the defendant was restrained not to create any third party interest, shall stand vacated. Further, the direction was that the plaintiff may deposit the said amount or pay the same to the defendant. No duty was HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 18 of 27 Suit Number : 1749/16 Dated : 04.12.2017 as such cast upon the plaintiff or it was made essential for him to deposit the said amount to show his readiness and willingness.
16.9 In Ansal Properties Vs. Rajender Singh 41(1990) BLT 510, the Division Bench of Hon'ble High Court of Delhi while referring to the explanation to Section 16 (c) of Specific Relief Act has held that normally no money is to be tendered and it is only in cases where the court feels that though an averment as postulated in Section 16 is made but the plaintiff may not actually have the money to pay the consideration, can the court to satisfy itself about the truthfulness of the averment, direct to deposit money in court. It was however, held that this course should be adopted rarely. It was yet further held that the question of payment would arise only after the trial of the suit and when the rights of the parties are determined and such a direction should be issued when the final decree is passed and not an earlier point of time.
16.10 In R.N. Bakshi Vs. Varun Kumar Dutt, MANU/DE/1385/2000, it has been held that the question of payment of consideration would ordinarily arise only when the court directs the purchaser to do so and such directions will be issued only after the trial of the suit and at HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 19 of 27 Suit Number : 1749/16 Dated : 04.12.2017 the time when the rights of the parties are being determined (further relied in Mohan Overseas P. Ltd.
Vs. Goyal Tin & General Industries, MANU/DE/3071/2009; R.K. Goyal Vs. Amrit Singh, 80(1999) DLT/331).
17. Thus, it is the settled position of law that the payment of consideration would ordinarily arise only after the trial of the suit and one's the rights of the parties are determined. The non-deposit of the balance amount in the present matter only lead to the consequence that the interim order was vacated. The non-deposit of money as per order dated 16.02.2000 does not in itself proves the non- willingness or non-readiness of the plaintiff.
17.1 The readiness and willingness of the plaintiff has to be seen from the date of agreement till the date of institution of the suit. Section 16(c) of the Specific Relief Act mandates readiness and willingness on the part of the plaintiff and it is the condition precedent for obtaining relief of grant of specific performance. The plaintiff must allege and prove a continuous readiness and willingness to perform the contract on his part from the date of the contract. The plaintiff must allege that he was ready and HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 20 of 27 Suit Number : 1749/16 Dated : 04.12.2017 willing to perform his part of contract from the date of agreement till the date of institution of the suit (N.P. Thirugnanam (D) by Lrs Vs. Dr. R. Jagan Mohan Rao and others, AIR 1996 SC 116).
17.2 Now, coming to the aspect as to whether the plaintiff was ready and willing to perform his part of contract from the date of agreement till the date of institution of the suit. Plaintiff has filed the letter dated 12.11.1996 Ex. P-3 and receipt Ex. P-4 and postal receipt Dated 12.11.1996 as Ex. P-6. He has also filed one letter Mark A dated 24.10.1996. There is no cross examination in the entire testimony of PW-1 that the said letters were neither issued by plaintiff nor received by D-1 at any point of time.
17.3 In P. D'souza Vs. Shondrilo Naidu, IV (2004) SLT893, it has been held as follows:
"21. It is not a case where the plaintiff had not made the requisite averments in the plaint. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale.
25. Time, having regard to the fact situation obtaining herein, cannot, thus, be said to be of the essence of the contract. In any event, the defendant consciously waived his right. He, therefore, now cannot turn round and content that time was of the essence of the contract and the plaintiff was not ready and willing to perform her part of contract in December 1978."
HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 21 of 27 Suit Number : 1749/16 Dated : 04.12.2017 17.4 As discussed above, the sale deed of the land in question could not be executed in the absence of the NOC/ Sale permission. D-1 has miserably failed to provide the necessary NOC/ Sale permission to plaintiff within the agreed period of agreement Ex. P1 and despite various orders of the court. Though in the sale deed Ex. P-7, it is specifically stated that NOC has been got issued from the concerned Tehsildar, however, D-1 has neither filed the NOC nor examined the concerned Tehsildar nor placed on record the necessary records to prove that any NOC/Sale permission was sought.
17.5 On the contrary, plaintiff before the expiry of the agreed period as per Ex. P-1, sent the letter dated 24.10.1996 Mark A to D-1 by courier receipt Ex. P-4 and postal receipt Ex. P-6 and immediately filed the suit in the court on 06.12.1996 itself.
17.6 The entire cross examination of PW-1 is merely on the aspect as to whether he has filed on record Income Tax Return or statement of account to show his solvency/ financial capability. The remedy for specific performance is the equitable remedy and the court has to take into HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 22 of 27 Suit Number : 1749/16 Dated : 04.12.2017 consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances.
17.7 In the present matter, it is D-1 who failed to fulfill the primary condition of providing the NOC. No evidence has been led by D-1 to show that plaintiff was never willing or ready to perform his part and it is she who has fulfilled her part. The terms of the contract, the conduct of the parties at the time of entering into the agreement and circumstances, demanded that NOC was the pre-condition, which D-1 failed to fulfill.
17.8 It has been argued by counsel for D-1 and D-2 that even if it is assumed that defendant has committed breach, the primary duty is on the plaintiff to aver and proof that he was ready and willing to perform the essential terms of contract. He in this regard has relied upon the judgment of Rajenderan Vs. S.V.Natrajan (Supra). I have perused the said judgment. The facts of the said judgment are different from the facts of the present suit. No doubt, the conduct of the defendant/ seller is subsequent and the primary onus is always on the plaintiff/ purchaser to prove his readiness and willingness. However, it is also clear that the readiness to perform must be established through out HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 23 of 27 Suit Number : 1749/16 Dated : 04.12.2017 the relevant points of time. Readiness and willingness to perform the part of contract has to be determined/ ascertained from the conduct of both the parties. As discussed above, plaintiff has duly issued the notice to D-1 calling upon her to comply with the terms of the agreement and to provide him the NOC so that the sale deed could be executed. It is the defendant who failed to fulfill her part of contract which was a pre-condition for execution of the sale deed. Hence, on the basis of above discussion, issue no. 2 is decided in favour of the plaintiff and against defendants. Plaintiff is held entitled for specific performance of the contract dated 24.07.1996.
Issue No. 3: Whether sale deed dated 07.10.2002 executed by Defendant no. 1 in favour of Defendant no. 2 null and void in accordance of Section 52 of Transfer of Property Act, 1882? OPP
18. The onus to prove this issue is on plaintiff. Lis Pendens is captured under Section 52 of the Transfer of Property Act, 1882. The Section essentially prohibits alienation of immovable property when a dispute relating to the same is pending in a Competent Court of Law. It is based on the principle that the person purchasing an immovable property from the judgment debtor during the HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 24 of 27 Suit Number : 1749/16 Dated : 04.12.2017 pendency of the suit has no independent right to property to resist, obstruct or object execution of decree.
18.1 In Hardev Singh Vs. Gurnail Singh, Civil Appeal No. 6222 of 2000 the Supreme Court observed that Section 52 of the Act does not declare a pendente lite transfer by party to the suit as void and illegal but only make the pendente lite purchaser bound by the decision of the pending litigation. Thus, if during the pendency of any suit in a court of competent jurisdiction, which is not conclusive, in which any right of an immovable property is directly and specifically in question, such immovable property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit.
18.2 In Rajender Singh & Ors. Vs. Santa Singh & Ors, AIR 1973 SC 2537, it was observed by the Supreme Court that the doctraine of Lis Pendense was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of the court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the courts power to decide a pending dispute or frustrate its decree. Alienees acquiring any HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 25 of 27 Suit Number : 1749/16 Dated : 04.12.2017 immovable property during pending litigation are held to be bound by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of litigation, to the power and jurisdiction of the court so as to prevent the object of pending action from being defeated.
18.3 There is no dispute to the fact that sale deed Ex. P-7 was executed by D-1 in favour of D-2 during the pendency of the present suit. D-2 has not led any evidence to show that he had no knowledge about the pending litigation qua the suit property and is the bonafide purchaser. In the absence of any evidence on behalf of defendants on this issue and in view of findings of issue no. 2, this issue is also decided in favour of plaintiff and against defendants.
19. Relief Plaintiff is held entitled for specific performance of agreement to sell dated 24.07.1996 with respect to land measuring 4000 sq. yard out of Khasra No. 44/1(1-0) and HARISH BINDAL VS. PHOOLWATI & ORS. Page No. 26 of 27 Suit Number : 1749/16 Dated : 04.12.2017 44/10(3-0) situated in Revenue Estate of Village Khera Kalan against D-1. Plaintiff shall make the payment of balance consideration within 30 days from the date of judgment calling upon LRs of D-1 to execute sale deed in respect of suit property in question. The sale deed executed by D-1 in favour of D-2 Ex. P-7 is of no consequence and is accordingly, declared as null and void. Plaintiff shall be entitled to the possession of the suit property when the sale deed is duly executed. Defendants are further restrained from creating any third party interest or raising any further construction in the suit property. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in open Kiran Gupta
Court on 04.12.2017 Additional District Judge-03
North District, Rohini Courts
Delhi
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