Delhi District Court
Sh. Sanjay Gupta vs Smt. Barfo on 22 October, 2018
IN THE COURT OF MS. SHUCHI LALER, ADDITIONAL
DISTRICT JUDGE, EAST DISTRICT, KARKARDOOMA
COURTS, DELHI.
Suit No.1738/16/95
In the matter of:-
Sh. Sanjay Gupta
S/o Sh. L.R. Gupta,
R/o 6, Anand Lok,
New Delhi - 110 049 ......... Plaintiff
Versus
Smt. Barfo
W/o Sh. Hari Singh,
R/o Mohalla Chhawni
Jhajjar, District Rohtak,
Haryana ......... Defendant
Date of Institution : 17.10.1995
Date of Final Argument : 15.10.2018
Date of Pronouncement : 22.10.2018
SUIT FOR SPECIFIC PERFORMANCE,
DAMAGES AND INJUNCTION.
JUDGMENT :-
1. This suit for specific performance, damages and injunction has been filed with respect to Agreement to Sell dated 24.04.1992 qua defendant's 1/90th share in the agricultural lands bearing Khasra No.49/7/1 measuring 2 bighas 14 biswas; Khasra No. 49/8 measuring 2 bighas and 12 Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 1 of 39 biswas; Khasra No. 49/9 measuring 2 bighas; Khasra No. 49/12 measuring 2 bighas and 8 biswas; Khasra No. 49/13 measuring 4 bighas and 16 biswas; Khasra No. 49/14 measuring 4 bighas 11 biswas; Khasra No. 49/17/1 measuring 1 bigha 12 biswas; Khasra No. 49/18/1 measuring 1 bigha and 12 biswas; Khasra No. 49/19/1 measuring only 18 biswas; Khasra No. 49/26 measuring 1 bigha 7 biswas and Khasra No. 169 measuring 30 bighas 15 biswas, total measuring 55 bighas 5 biswas, to the extent of 12 biswas situated in village Bijwasan, Tehsil Mehrauli, New Delhi (hereinafter referred to as suit property).
2. BRIEF HISTORY OF LITIGATION Date Particulars 16.10.1995 Instant Suit filed before Hon'ble Delhi High Court by plaintiff Sh. Sanjay Gupta against defendant. 17.10.1995 Suit admitted. Ex parte injunction passed against defendant restraining her from transferring, alienating, parting with possession and creating any third party interest in the suit property. 23.11.1995 Local Commissioner Sh. L.B. Roy appointed to inspect the suit property and to prepare note regarding the existing position at the suit property.
27.12.1995 Hon'ble High Court restrained the parties as well as transferees from raising any further construction.
24.09.1999 Application under Order I Rule 10 CPC of Sh.
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 2 of 39 Iqbal Singh, Sh Shamsher Singh and Sh Ashok Kumar dismissed by Hon'ble Delhi High Court. 15.12.1999 FAO (OS) No. 358/99 against order dated 24.09.1999 preferred by Sh Iqbal Singh is dismissed.
19.01.2001 Order dated 24.09.1999 challenged in FAO (OS) No. 5/2000 by Sh. Shamsher Singh and Sh.
Ashok Kumar but the same was dismissed.
05.09.2003 Value of suit being less than Rs. 20 lakhs, the suit was transferred to Ld. District Judge. 03.06.2004 Application under Order 9 Rule 7 CPC of defendant was allowed and ex parte order dated 08.08.2002 was set aside.
21.07.2008 Five Issues framed on the basis of pleadings. 04.09.2013 Local Commissioner Sh. Vishwajeet Mangla, Advocate appointed to record evidence of plaintiff in court between 3 to 5 pm. 24.11.2016 Plaintiff evidence closed.
26.09.2018 Local Commissioner Ms Shivani Tyagi, Advocate appointed to record evidence of defendant. 09.10.2018 Final arguments on behalf of plaintiff heard. 15.10.2018 Final arguments on behalf of defendant heard.
PLAINT
3. In nutshell, case of the plaintiff is that defendant had agreed to sell the suit property together with tube-well installed / fitted therein, vide an Agreement to Sell dated 24.04.1992 (hereinafter "the Agreement"), for a total sale Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 3 of 39 consideration of Rs.1,15,000/-. On execution of aforesaid agreement, plaintiff paid a sum of Rs. 25,000/- in cash against receipt duly acknowledged by the defendant and the balance sale consideration of Rs. 90,000/- was to be paid within 180 days from the date of intimation to be sent by defendant through registered A/D Post regarding the grant of NOC from the competent authorities, ADM(A). The defendant undertook to handover the vacant and peaceful possession of suit property on payment of balance sale consideration as well as on execution and registration of sale deed. In terms of the said agreement, defendant was required to obtain the necessary 'No Objection Certificate' from the office of ADM (LA) and Income Tax Clearance Certificate in form 34-A from the Income Tax authority. Despite repeated request of the plaintiff, the defendant did not obtain the aforesaid 'No Objection Certificates' and was not ready to perform her part of contract. Thereafter, the plaintiff vide legal notice dated 10 th May, 1995, called upon the defendant to perform her part of contract and to get the sale deed registered on receipt of the balance sale consideration of Rs.90,000/- and handover the vacant and physical possession of the suit property, failing which the suit for specific performance would be filed, however, the defendant did not come forward to execute the sale deed, on account of rise in prices of land in village Bijwasan and the defendant became dishonest. Plaintiff was always ready and willing to Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 4 of 39 perform his part of contract by paying balance sale consideration to defendant, on execution of sale deed. But it is the defendant who was not ready and willing to execute the sale deed.
Hence, the present suit.
WRITTEN STATEMENT
4. The defendant has contested the present suit by filing written statement, wherein she has taken a preliminary objection that the instant suit is barred by time. It has been alleged that the agreement of sale was executed on 24.04.1992 whereas the suit has been filed on 09.10.1995. It is alleged that defendant has not entered into an agreement with the plaintiff, hence, the question of defendant approaching the plaintiff for sale of her property does not arise. It is averred that agreement dated 24.04.1992 is a false document and the same does not bear the thumb impressions of defendant. It is further alleged that the defendant never came to Delhi to execute the agreement and the recitals in the said agreement are also false as there is no tube-well fitting. The defendant has stated that no amount of Rs.87,000/- or Rs. 25,000/- was ever received from the plaintiff. The receipt for Rs.25,000/- is also alleged to be false and forged document. It is stated that on 24.04.1995, a memorandum of understanding was Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 5 of 39 executed between defendant and Sh. Rajesh Aggarwal with respect to the suit property and defendant received a sum of Rs.5,000/-. Thereafter, on 28.04.1995, the defendant executed an agreement of sale of suit property in favour of Sh. Rajesh Aggarwal and received Rs.15,000/- as advance and possession of suit property was handed over to Sh. Rajesh Aggarwal. A GPA was executed by defendant in favour of Sh. Balwan Singh, S/o Sh. Daleep Singh authorizing him to register the sale deed in favour of purchaser. On 18.12.1995, the defendant, through her attorney, executed a sale deed regarding the suit property in favour of Sh. Rajesh Aggarwal for a sum of Rs.1,95,000/- and received the balance consideration of Rs. 1,75,000/- by cheque. Mutation of the land has also been effected in favour of Sh. Rajesh Aggarwal and plaintiff is left with no right, title or interest in the suit property nor is in possession thereof.
Remaining material contents have been denied and dismissal of the suit with costs has been prayed for.
REPLICATION
5. The plaintiff has preferred to file replication to the written statement of defendant wherein he has denied the averments made in the written statement and has reiterated and reaffirmed the averments made in the plaint.
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 6 of 39 ISSUES
6. Issues were struck by Ld. Predecessor on 21.07.2008, which are as under :-
(i). Whether the suit is barred by time?OPD
(ii). Whether the plaintiff is entitled to decree for specific performance of Agreement dated 24.04.1992 and the possession of the suit property? OPP
(iii). Whether Agreement to Sell dated 24.04.1992 has not been executed by the defendant and it does not bear the thumb impression of the defendant? OPD.
(iv). Whether the plaintiff is entitled for damages in case the relief for specific performance is declined?
(v). Relief.
Parties were directed to lead evidence.
PLAINTIFF'S EVIDENCE
7. In support of his case, the plaintiff has stepped into the witness box as PW-1 and tendered his evidence by way of affidavit, which is Ex.PW1/1. He has relied upon the following documents:-
Agreement to Sell dated 24.04.1992 as Ex. P-1; Notice dated 10.05.1995 as Ex. P-2;
Registered receipt as Ex. P-3;
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 7 of 39 Sh. Jagmohan Lal was a summoned witness who appeared as PW-2 and proved that the plaintiff has NTPC Bonds of value of Rs. 1 lakh issued on 12.02.1988 and payable on 30.03.1998 as Ex.PW2/1 and Ex.PW2/2 (OSR).
Another summoned witness Sh. Lal Sahab Mishra has been examined as PW-3 who proved the investment of plaintiff in mutual funds and relied upon the documents Ex.PW3/1 to Ex.PW3/4.
Lastly, Sh. Rajesh Kumar Aggarwal, a summoned witness has been examined as PW-4 who proved that the value of bonds of plaintiff is Rs.4,74,75,000/-. He proved the documents Ex.PW4/1 to Ex.PW4/4.
The aforesaid witnesses have been duly cross examined on behalf of defendant. Thereafter, plaintiff's evidence was closed.
DEFENDANT'S EVIDENCE
8. In rebuttal, defendant has stepped into the witness box as DW1 and tendered her evidence by way of affidavit which is Ex.DW1/A. A summoned witness Sh. Krishan Veer, Halka Patwari has been examined as DW2 (inadvertently examined as DW-1) and he proved on record copy of Khasra Girdawari for the year 2016-2017 Ex.DW1/A and Register Karyawahi Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 8 of 39 Ex.DW1B with respect to suit property.
Both these witnesses have been duly cross examined on behalf of plaintiff. Thereafter, defendant evidence was closed.
FINAL ARGUMENTS
9. Rival submissions advanced at bar have been heard and record perused.
JUDICIAL RESOLUTION
10. The foundation of the present suit is the agreement to sell dated 24/04/1992 Ex P1. Therefore certain important clauses/paras of said agreement are reproduced as under:-
"THIS AGREEMENT TO SELL is made on this 24th day of April 1992 Between Smt Barfoo W/o Shri Hari Singh R/o Mohalla Chhawni, Jhajjar, Dist. Rohtak, Haryana (hereinafter called the 'INTENDING VENDOR) of the first part.
And SHRI Sanjay Gupta, son of Shri L. R. Gupta, r/o 6, Anand Lok, New Delhi-110049 (hereinafter called the INTENDING VENDEE of the other part) WHEREAS the party of the first part owns and possesses agricultural land measuring about 0 bighas and 12 biswas in village Bijwasan, Union Territory of Delhi, having 1/90th share in total land measuring 55 Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 9 of 39 bighas and 5 biswas. That the Intending vendor has become the owner by virtue of the Will dated 1/10/1983 executed by her Father Late Shri Siri Ram Saini. The copy of the aforesaid registered Will has been handed over to the Intending Vendee.
The following are the khasra nos and detail S. No. KHASRA NOS BIGHAS BISWAS 1 49/17/1 2 14 2 49/8 2 12 3 49/9 2 -4 49/12 2 8 5 49/13 4 16 6 49/14 4 11 7 49/17/1 1 12 8 49/18/1 1 12 9 49/19/1/East 0 18 10 49/26 1 7 11 169 30 15
AND WHEREAS THE INTENDING VENDOR has agreed to sell and the INTENDING VENDEE has agreed to purchase the aforesaid undivided share of 1/90th i.e. 0 bighas and 12 biswas which has not been demarcated till date.
NOW THIS DEED WITNESSETH AS UNDER:
1. That the INTENDING VENDOR agrees to sell and the INTENDING VENDEE agrees to purchase the 1/90th share of the INTENDING VENDOR in the aforesaid agricultural land for a total sale consideration of Rs 1,15,000/- (Rupees One Lakh Fifteen Thousand Only).
That the INTENDING VENDOR has received a sum of Rs 25,000/- in cash. The balance sale consideration of Rs 90,000/- (Rupees Ninety Thousand Only), shall be paid within 180 days from the date of intimation to be sent by INTENDING VENDOR through registered AD post regarding the grant of No Objection Certificate from the Competent Authorities ADM (L.A). That the INTENDING VENDOR SHALL ALSO OBTAIN Income Tax clearance certificate in form 34-A and thereafter the INTENDING VENDEE shall pay the balance sale consideration on execution and registration of sale deed in the office of the Sub-Registrar Delhi and on handing over the possession of the aforesaid agricultural land in Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 10 of 39 favour of the INTENDING VENDEE"
"5. That in case the INTENDING VENDOR after obtaining the necessary no objection certificate, as stated above, fails to transfers the aforesaid agricultural land in favour of the INTENDING VENDEE as mentioned above and also hand over the actual peaceful and vacant possession of the aforementioned land etc, hereby contracted to be sold to INTENDING VENDEE, THE INTEDING VENDEE shall be entitled and shall have a right to get this agreement of sale specifically aforesaid, though the court of law at the cost, risk and liability of the INTENDING VENDOR"
The first objection to the present suit for specific performance of the aforesaid agreement is regarding limitation and the issue in this regard was framed on 21.07.2008.
Issue No. (i) Whether the suit is barred by time? OPD
11. The said issue has been framed in view of preliminary objection no. 1 in WS of defendant. The said para is reproduced hereinbelow:-
Preliminary Objection no. 1 in WS of defendant.
"The suit is barred by time. The alleged agreement of sale was executed on 24.4.1992. The suit filed on 9.10.1995. On the basis of the allegations made (which however are denied) the suit is barred by time"
12. Though the aforesaid preliminary objection does not refer to any particular Article of Limitation Act, 1963 as required by Part (4) of Appendix 'A' to Code of Civil Procedure relating to General Defences in Written Statement, however, the time period that this objection is referring to, is certainly Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 11 of 39 three years, which the defendant is counting from the day of agreement itself.
13. The relevant Article of Limitation Act, 1963 in this regard is Article 54, which is reproduced as under along with the Article 55 of Limitation Act:-
54. For specific Three The date fixed for the performance of a years performance, or, if no such contract date is fixed, when the plaintiff has notice that performance is refused.
55. For Three When the contract is broken compensation for years of (where there are the breach of any successive breaches) when contract, express or the breach in respect of which implied not herein the suit is instituted occurs or specially provided (where the breach is for. continuing) when it ceases.
14. Article 54 of Limitation Act, 1963 specifically provides the limitation period for filing a suit for Specific Performance as three years, not from the date of agreement, but from the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.
15. As per the terms of contract/agreement to sell as reproduced hereinabove, no date was fixed in the present case for performance of contract i.e. for execution of sale deed. It does not imply that there was no time limit in the contract. Though a particular calender date was not mentioned for Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 12 of 39 execution of Sale deed, and although the date was not ascertainable initially, as soon as the seller /vendee /defendant took the necessary permissions / clearances, it became an ascertained date. The contract stipulates as under:-
"The balance sale consideration of Rs 90,000/- (Rupees Ninety Thousand Only), shall be paid within 180 days from the date of intimation to be sent by INTENDING VENDOR through registered AD post regarding the grant of No Objection Certificate from the Competent Authorities ADM (L.A). That the INTENDING VENDOR SHALL ALSO OBTAIN Income Tax clearance certificate in form 34-A and thereafter the INTENDING VENDEE shall pay the balance sale consideration on execution and registration of sale deed in the office of the Sub- Registrar Delhi and on handing over the possession of the aforesaid agricultural land in favour of the INTENDING VENDEE"
16. The agreement is dated 24.04.1992 and the instant suit is filed on 16/10/1995. As per para no. 11 to 13 of the plaint, the plaintiff repeatedly requested the defendant to fulfill the statutory requirements of obtaining NOC from office of ADM (LA) and Income Tax Clearance Certificate which she avoided so he had sent the legal notice dated 10.05.1995 to the defendant.
17. In the entire agreement Ex.P1, no ascertainable date is mentioned for performance of the contract. Thus, second part of Article 54 of Limitation Act, 1963 would apply. The limitation to file a suit would start running when the plaintiff had notice that the performance has been refused. It is not the case of the parties that the requisite permissions were ever Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 13 of 39 obtained. In these circumstances, the date of refusal has to be counted from the date of legal notice i.e. 10.05.1995. The limitation commenced from 10th May, 1995 and the instant suit has been filed on 16.10.1995, therefore, it is well within time.
18. Hon'ble Supreme Court in Panchanan Dhara and Others v. Monmatha Nath Maity and Another, (2006) 5 SCC 340 in paragraph 16 observed as under:--
"16. A bare perusal of Article 54 of the Limitation Act would show that the period of limitation begins to run from the date on which the contract was to be specifically performed. In terms of Article 54 of the Limitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement. In this case, the First Respondent was to offer the balance amount to the Company, which would be subject to its showing that it had a perfect title over the property. We have noticed hereinbefore that the courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused. Performance of the said contract was refused by the Company only on 21.8.1985. The suit was filed soon thereafter. The submission of Mr. Mishra that the time fixed for completion of the transaction was determinable with reference to the event of perfection of title of the Second Respondent cannot be accepted. The said plea had never been raised before the courts below. Had such a plea been raised, an appropriate issue could have been framed. The parties could have adduced evidence thereupon. Such a plea for the first time before this Court cannot be allowed to be raised. Even otherwise on a bare perusal of the agreement for sale dated 18.4.1971, it does not appear that it was intended by the parties that the limitation would begin to run from the date of perfection of title."
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 14 of 39
19. While relying upon the aforesaid judgment Hon'ble Delhi High Court in Ashok Kapoor Vs Vidya Shankar Sharma. (2009) 108 DRJ 505 observed as under:-
"14. Obligation to apply for permission/mutation, does not fix a date for performance. Even if the stand of the plaintiff in respect of mutation and permission from the authorities is accepted and presumed to be an agreed term, date of performance of the agreement was uncertain and not fixed. Therefore, second part of Article 54 of the Limitation Act, 1963 would apply. Cause of action accrued when notice dated 15th October, 2003 was received."
20. In judgment titled as Arun Nirula v. KN. Jain, (2013) 138 DRJ 520 the facts were almost similar and it was held that in such a case the period of limitation would start from the date on which the plaintiff has notice that the performance has been refused. Relevant portion of the judgment is reproduced as under:-
"10. The first question which thus arises is whether the Agreement to Sell of which specific performance was claimed and which is in writing, fixed a date for performance, inasmuch as if the same fixes such a date, the period of limitation would be three years from such date.
11. Both counsels agree that the relevant clause in this respect of the Agreement to Sell, in which the respondent No. 1 is described as the first party and the appellant as the second party, is Clause 6 and which is as under:
"6. That the first party shall apply for sale permission from the office of the lessor as well as the competent authority under provision of the Urban Land (Ceiling & Regulation) of 1976 and fulfil all the formalities for the completion of the sale deed in favour of the Second Party or his nominee(s) and shall execute a proper sale deed of the above mentioned property along with the lease hold rights of the land underneath in favour of the second party or their nominee(s) and shall get the same regd. in the office of the Sub-registrar, Delhi after getting such sale permission etc. within 90 days from the date of receipt of such permission and fulfilling all the formalities.
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 15 of 39
12. The counsel for the respondent No. 4 has argued that the agreement fixes a date for performance by fixing a time period of 90 days from the date of receipt of permissions and fulfilling all formalities.
13. I have however enquired from him as to whether any time was fixed for obtaining such permissions.
14. Neither is there any provision in the Agreement to Sell in this regard nor is any answer forth coming from the counsel for the respondent No. 4. I am of the view that merely because the Agreement provides for a time within which, after receipt of permissions, the Sale Deed will be executed, does not make the Agreement to Sell fall in the first category provided in Article 54 i.e. Agreements which fix a date of performance. Once the Agreement does not fix a date for obtaining the permission, mere fixing of time for execution of Sale Deed after the permissions are obtained would not amount to fixing a time for completing the sale inasmuch as in such cases there is no identifiable date by which the agreement is to be performed. For an Agreement to Sell to fall in the first category in Article 54, either the agreement should fix a calendar date for performance or the date fixed should be ascertainable with an event certain to happen. However, in the subject Agreement, the commencement of the period of 90 days fixed for performance i.e. for execution of Sale Deed, was dependent on receipt of permissions required and formalities to be completed and for receipt/fulfilment of which, no time was fixed. Thus, merely because the agreement fixes a period of 90 days, from receipt of permissions/completion of formalities, for execution of Sale Deed, would not make the agreement fall in the category where date for performance is fixed. Reliance in this regard can be placed on Tosh Apartments Pvt. Ltd. v. Pradeep Kumar Khanna, 54 (1994) DLT 318. Thus, the Agreement in hand has to be held to be falling in the second category i.e. where no date for performance is fixed and in which case the limitation of three years commences from the date when the plaintiff has notice that performance is refused."
21. Even in the case titled as Dharam Pal Vs Shashi Kant Saini, (2011) 2 UPLJ 128 (Del) it has been observed that "So far as the argument that it is "practice" that NOC should be obtained by the buyer of the property, once again this argument is misconceived because firstly in law it is always the seller who has to make himself capable of transferring the Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 16 of 39 property and which capability is achieved when the seller gets the necessary NOC from the revenue authorities. Also, there was no doubt in the present case as to who had to obtain the NOC because the agreement itself provided that the NOC will be obtained by the appellant/defendant. I, thus, do not find there is any valid basis to canvass that it was the respondent/plaintiff who should have obtained the NOC on the ground of an alleged "practice". In fact the plea as advanced is barred by Section 92 of the Evidence Act,1872 as no argument can be raised to contradict a term of a written agreement. So far as the issue of limitation is concerned, I once again find that the argument lacks any substance in view of the categorical language of Article 54 of the Limitation Act, 1963. In terms of the language of Article 54, limitation arises only in two eventualities. The first eventuality is that a specific date is fixed for performance and the second eventuality is that where there is no specific date, limitation commences when the other party refuses performance of the contract. In the present case, admittedly, no date was fixed for specific performance, and rightly so because the appellant/defendant had to obtain the NOC from the revenue authorities for executing the sale deed. This aspect of there being a fixed date therefore itself was uncertain as it was dependent on the uncertain date of obtaining of the NOC and therefore, there was no specific date fixed for performance as per the first part of Article 54 which requires the suit for specific performance to be filed within three years from a date fixed for performance. The decision in the case of Ahmmadsahab (supra) therefore relied upon has no application to the facts of the present case as there is no fixed date as per the agreement. So far as the second part of Article 54 is concerned, that the limitation commences from the date of refusal, it is an admitted fact that at no point of time appellant/defendant ever gave any notice to the respondent/plaintiff claiming forfeiture of the amount or the cancellation of the Agreement to Sell or in any other manner indicating his refusal to perform the obligations under the Agreement to Sell. Accordingly, there is no question of commencement of limitation also on this ground of alleged refusal of performance of agreement."
22. In a very recent judgment of 3 May 2018 passed by Division Bench of Hon'ble High Court, titled as ADTV Communication Pvt. Ltd. Vs Vibha Goel & Ors. 2018 SCC OnLine Del 8843, it was observed as under:-
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 17 of 39 "25. The next ground raised by the counsel for the appellant is that the Specific Performance of the Agreement to Sell dated 09.09.2009 ought not to have been granted as the said relief is barred by limitation. It is the case of the appellant company that as under the Agreement to Sell dated 09.09.2009, the possession of the flat in dispute was expected to be delivered to the respondents around end of May 2010, the limitation period for the relief of specific performance ought to have commenced immediately thereafter and the same would expire after three years. However the respondents invoked their claim for Specific Performance only in July 2013 when the Sole Arbitrator was appointed. Therefore it is argued that as the claim was raised after the expiry of 3 years commencing from June 2010, the bar under first part of Article 54 under the Schedule of the Limitation Act 1963, would be attracted.
26. The law is well settled under Article 54 of Schedule to the Limitation Act, 1963, that the limitation period for Specific Performance starts either from the date on which a period is fixed for the performance of the agreement or three years from the date when the performance is refused.
27. In the present case, it has been rightly observed by the Arbitral Tribunal in its Award dated 19.03.2016 and further upheld by the learned Single Judge vide Impugned order dated 23.08.2017, that as no time was fixed under the Agreement to Sell dated 09.09.2009 for the performance thereof, hence the limitation period was to commence from the date of refusal of the appellant company to perform the agreement. Moreover in the said agreement no period for handing over the possession of the subject flat was fixed as the same was to be transferred to the respondents upon completion of the project and it is a mere assertion made by the appellant company that the possession of the flat was expected to be delivered to the respondents by the end of May 2010 as the agreement nowhere reflects a clause to that effect. Till the possession was handed over to the respondents, the appellant company was liable to pay simple interest @ 18% per annum which the appellant company continued to pay upto July 2011. Hence it is clear that till July 2011 there was no refusal on the part of the appellant company to perform the said agreement, which also implies that till July 2011 the construction of the said flat was not complete. Therefore there is no merit in the ground raised by the appellant company as the relief so claimed by the respondents was within the prescribed limitation period."
23. In the light of aforesaid judgments, the limitation in the instant case would not commence from the date of Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 18 of 39 agreement rather the same would begin from the date when the plaintiff has notice that performance is refused, which is the date of the legal notice. The limitation would start from the date of the legal notice i.e. 10.05.1995. The instant suit which has been filed on 16.10.1995 is, therefore, well within limitation.
Issue No. (i) is decided in favour of the plaintiff and against the defendant.
Issue No. (iii). Whether Agreement to Sell dated 24.04.1992 has not been executed by the defendant and it does not bear the thumb impression of the defendant? OPD.
24. The onus to prove the said issue is upon the defendant. The defendant has denied the very execution of agreement to sell Ex.P1 with the plaintiff. The relevant portion of written statement (from page no. 2) is reproduced hereinbelow:-
"The defendant has not entered into an agreement with the plaintiff to sell her holding to the defendant. Under the circumstances, the question of the defendant approaching the plaintiff for the sale of her property for any reason whatsoever does not arise. It is false to allege that the plaintiff paid Rs.25,000/-(Rupees twenty five thousand only) to the plaintiff on 24.04.1992. The photostat copy of the alleged agreement of sale deed 24.04.1992 is a false document and the alleged original does not bear the thumb impression of the defendant. The alleged photocopy also does not show that original agreement was witnessed by anyone. The defendant never came to Delhi to execute the agreement. It is a suspicious document with large number of interpolation. The recitals in the alleged agreement are also false."
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 19 of 39
25. The said averment has been reproduced, in verbatim, in para no. 3 of affidavit of defendant Ex.DW1/A, tendered in her examination in chief, however, the defendant could not withstand the rigors of cross examination. The defendant made completely contradictory statements in her cross examination and demolished her defense in toto. The relevant extract of cross examination of DW-1 is reproduced hereinbelow:-
".....I do not know Ms. Meena Chaudhary. I never gave any attorney or vakalatnama. The name of my husband was Late Sh. Hari Singh. I am aware of the fact that a litigation is pending against me since 1995 in the courts at Delhi. I am not aware who has instituted a case against me in Delhi. Ms. Meena Chaudhary, Advocate never filed any written statement on my behalf. I never paid any fees to Ms. Meena Chaudhary, Advocate....
.... At this stage, the witness has been shown the written statement dated 27.02.1996 running into 7 pages and has been asked the following questions:-
Ques. (1) Do you identify this document?
Ans. No. I am unable to see.....
....Ques. Did you appoint any lawyer ever in this case to pursue your interest from 1995?
Ans. No. (Hamne Kabhi Nahi Rakha Na Hum Uska Ghar Gaye). Recorded in verbatim.
Ques. Did you ever authorize Mr. R.S. Verma, Advocate to cross examine Mr. Sanjay Gupta in the present matter? Ans. I do not know Sh. R.S. Verma....
....At this stage, the attention of the witness is drawn to the original Agreement Ex.P1 and is being asked the following questions:-
Ques. Do you identify your thumb impression? Ans. Yes. The thumb impression are mine.
It is wrong to suggest that I did not receive any amount from Sh. Sanjay Gupta.
Ques. I put it to you that the Hon'ble Court has decreed the other suits of the plaintiff by enhancing the consideration by at least 5 - 6 times in favour of the other land owners i.e. your relatives. Will you mind accepting Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 20 of 39 the enhance amount in the same ratio what has been granted to the other co owners? (Objected to ld counsel for the defendant).
Ans. Where is the person who has given the earnest money. I am ready to execute the sale deed in the name of the person from whom I have received the earnest money if he pays me 5 - 6 times more."
26. Following facts can be culled out from the cross examination of defendant / DW-1:-
1) The defendant failed to identify her written statement. Even she testified that she did not authorize Ms. Meena Chaudhary, Advocate to file WS on her behalf. The necessary inference is that the written statement on record cannot be read and the defense of non execution of agreement to sell incorporated therein, automatically fails.
2) The defendant was specifically shown the agreement to sell Ex.P1, during her cross examination, on which she identified her thumb impressions. This admission is in complete contrast to the pleas set forth in the written statement of denial of thumb impression on agreement to sell Ex.P1 and it being a false document. Once the defendant has admitted her thumb impression on the agreement Ex.P1, there is a presumption that she had appended her thumb impression thereon after understanding its contents.
In M/s Grasim Industries Ltd. & Anr. Vs. M/s Agarwal Steel, AIR 2010 SC (Supp) 291, Hon'ble Apex Court Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 21 of 39 observed, "When a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the documents properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people would have ordinarily read and understood a document before signing it. Hence, the presumption would be even stronger in their case. When signature of the party on document is admitted, it is difficult to accept the plea that the party has signed the document under some mistake."
There is no averment in the written statement that at the time of appending thumb impression, force or fraud was employed upon the defendant. She has neither led any evidence to prove any force or fraud. Not only this, a person is not expected to sign documents when it is blank and if he does so he does at his own risk. In Corporation Bank Vs. Sushil Enterprises, 2003 VI AD (Delhi) 467, it was observed that nobody is expected to sign documents without reading it or when it is blank and if he does so he does at his own risk. Consequently, in terms of Grasim Industries (Supra), it has to be presumed that the defendant had properly understood the contents of agreement to sell Ex.P1 and its implications.
3) Admittedly, the defendant did not lodge any complaint with any authority against the plaintiff for preparation of false document i.e. agreement to sell Ex.P1. The fact of preparation of agreement to sell Ex.P1 came within the knowledge of defendant upon service of legal notice dated 10.05.1995 and if not so, upon service of summons of present Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 22 of 39 suit. The defendant chose to remain silent and never complained to any authority regarding preparation of false agreement to sell. She even did not make any request for appointment of handwriting expert in furtherance of her defense of non affixation of thumb impression on agreement Ex.P1. This conduct highlights that the plea of non execution of agreement to sell is merely an after thought and raised to renege from the agreement Ex.P1 entered with the plaintiff.
4) The falsity in defendant's story became apparent when during her cross examination, she even admitted the receipt of earnest amount. She showed her willingness to execute the sale deed in the name of the person from whom she received the earnest amount provided he pays her 5 - 6 times more.
27. In view of above, when the defendant has admitted her thumb impression on the agreement to sell Ex.P1 and also the receipt of earnest amount, the irresistible conclusion is that the defendant had affixed her thumb impression on agreement Ex.P1 after duly understanding its contents and implications. The agreement to sell Ex.P1 is valid and enforceable.
28. In context of agreement Ex.P1, ld. counsel for defendant vehemently urged that it is not signed by the purchaser / vendee, thus, no binding contract was ever concluded between the parties.
29. The said contention is without any merits and is Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 23 of 39 liable to be rejected. In the agreement to sell Ex.P1, there is a description of the suit property which is the subject matter of sale. It records the settled bargain between the parties that the suit property would be sold for a total sum of Rs.1,15,000/-. It acknowledges receipt of payment of Rs.25,000/- in cash. It further records that the balance sale consideration of Rs.90,000/- will be paid at the time of execution and registration of sale deed before Sub Registrar, Delhi and after handing over of possession. Ex.P1, thus, contains all the essential and basic features of an agreement for sale. It has been signed by the vendor / defendant.
30. There is no requirement of law that the vendee / purchaser has to append his signatures on the agreement to sell. Reliance is placed upon the case titled as Aloka Bose Vs. Parmatma Devi & Ors. 2009 (2) SCC 582 wherein Hon'ble Supreme Court, in para no. 16 to 18, observed as under:-
"16. On the other hand, the observation in S.M. Gopal Chetty that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it...
17. Section 10 of the Act provides that all agreements are Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 24 of 39 contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the contract act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid.
18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter offers by letters or other modes recognized communication). In India, in agreement of sell signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale."
31. Thus, there was a concluded contract between the parties. The document Ex.P1 constitutes an agreement to sell, though bearing only thumb impressions of the vendor / defendant, is valid and enforceable. The agreement to sell Ex.P1 is binding upon the parties to the instant lis.
Issue no. (iii) is decided in favour of the plaintiff and against the defendant.
Issue No. (ii). Whether the plaintiff is entitled to decree for specific performance of Agreement dated 24.04.1992 and the possession of the suit property? OPP Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 25 of 39
32. A cumulative issue has been framed regarding the entitlement of plaintiff to a decree of specific performance as well as to possession of the suit property. The court would take up these two aspects one by one. Firstly, the court would determine whether the plaintiff is entitled to a decree of specific performance of agreement dated 24.04.1992 Ex P-1. It has already been held that the agreement Ex P-1 is genuine and is validly executed. Both parties are governed by the terms of agreement Ex P-1.
33. Section 16 (c) of the Specific Relief Act, 1963 requires every plaintiff in a suit for specific performance to aver and prove readiness and willingness to perform his part of the contract. Readiness means existence of financial capacity and willingness means intention to go ahead with the transaction.
34. The willingness of plaintiff to go ahead with the transaction has been categorically pleaded in para no. 11 to 13 and 16 of the plaint, which are reproduced hereinbelow:-
"11. That the plaintiff repeatedly approached the defendant for obtaining the required NOC from A.D.M. (LA) and Income Tax Clearance Certificate so that the sale deed in respect of the aforesaid agricultural land could be executed by the defendant in favour of the plaintiff on receipt of the balance consideration of Rs. 90,000/- but every time the defendant went on assuring the plaintiff that she was taking all steps and making efforts to obtain the required NOC and Income Tax Clearance Certificate and that as soon as the same were obtained, she would inform the plaintiff about the same and would call him (the plaintiff) to get the sale deed executed and registered on payment of balance sale consideration and would deliver the vacant possession at the time of execution and registration of sale deed.
12. The despite repeated requests made by the Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 26 of 39 plaintiff, the defendant has neither obtained the NOC from the ADM (A) and nor ITCC from the Income Tax Authorities for oblique motives and purposes as the prices of land have gone up quite high and is intending to wriggle out of the contract on that account (of high rise in prices of the lands) and is clandestinely making efforts to sell the land in question to third parties at a very high price.
13. That since the defendant, despite the repeated requests of the plaintiff as stated above, was not ready and willing to perform her part of the contract and to execute the sale deed of the aforesaid land in suit after obtaining requisite NOC and ITCC, the plaintiff, vide his registered notice dated 10.05.1995 through his counsel, Shri Gaurav Duggal, Advocate, called upon the defendant to perform her part of the contract, execute the sale deed in respect of her 1/90th undivided share in the aforesaid land measuring 55 bighas 5 biswas, to the extent of 12 biswas, situated in village Bijwasan, in the Union Territory of Delhi as per the Khasra Nos. mentioned above and get the same registered and hand over the vacant possession of the land and receive balance sale consideration before the Sub Registrar, New Delhi at the time of execution and registration of the sale deed, within fifteen days from the receipt of the notice, failing which the plaintiff would be constructed to file a suit for specific performance of the aforesaid agreement to sell dated 24.04.1992 and for the recovery of damages suffered by the plaintiff on account of the breach of the contract by her (the defendant) but the defendant despite the service of the above registered notice on him, has not executed the sale deed.
16. That the plaintiff has always been ready and willing and is still ready and willing to perform his part to the contract and to pay the balance sale consideration to the plaintiff on the execution and registration of the sale deed but the defendant is not ready and willing to perform her part of the contract and obtain the requisite NOC and ITCC and after obtaining the same, to execute the sale deed in favour of the plaintiff for illegal and wrongful gains; hence this suit."
35. It is not in dispute that the plaintiff did perform his part when he paid advance money of Rs 25,000/- to defendant in terms of agreement Ex P-1. The plaintiff has repeatedly pleaded that he requested the defendant to obtain NOCs which Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 27 of 39 defendant avoided. Ultimately, the plaintiff had to issue a legal notice dated 10.05.1995 thereby calling upon defendant to execute sale deed in his favour but it was not adhered to by the defendant. Nothing more was expected to be done on the part of the plaintiff. The breach on the part of the defendant is apparent as she had executed the MOU dated 24.04.1995 in favour of Sh. Rajesh Aggarwal much prior to the time fixed for execution of sale deed in favour of plaintiff under the agreement Ex P-1. Therefore, it is the defendant who prevaricated and defaulted. There has been a palpable failure on the part of the defendant. The plaintiff has aways been willing to perform his part of the agreement.
36. Now, adverting to the "readiness" of plaintiff. The expression "readiness" refers to financial capacity of plaintiff to pay balance sale consideration at all points of time after the agreement to sell was entered into.
37. In case titled as Shree Aadhiya Builwell Pvt. Ltd. Vs Kartar Singh 228 (2016) DLT 10, Hon'ble Delhi High Court observed, while referring to Section 16(c) of Specific Relief Act, that plaintiff has to prove to the satisfaction of the court his readiness i.e capacity to pay at all point of time. Para no. 10 to 12 of the judgment are reproduced as under:-
"10. Therefore, even after deciding the issue as to whether the defendants are guilty of breach of contract in not taking NOC as required of the defendants in para 10 of the agreement to sell, yet, plaintiff cannot claim specific performance unless and until plaintiff has proved its capacity to pay right from the time of entering into an agreement to sell till the time Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 28 of 39 of the present final arguments.
11. So far as the fact of breach of contract is concerned, undoubtedly, para 10 of the agreement to sell does state that it is the obligation of the defendants to obtain the necessary NOC and thus as per Sections 91 and 92 of the Indian Evidence Act, 1872 once the agreement to sell is proved; and it has been proved in this case; defendants cannot in any manner argue anything to the contrary or in violation of the terms contained in the written agreement to sell being para 10 which requires the defendants to obtain the NOC. It is not the case of the defendants that after entering into the agreement to sell there was a subsequent oral agreement to shift the obligation of obtaining the NOC upon the plaintiff. Therefore, it is held that since the defendants did not obtain the necessary NOC under the Act of 1972, hence the defendants are guilty of breach of contract.
12. As already stated above, however, the issue of breach of contract by the defendants is not determinative of the entitlement of the plaintiff to the grant of specific performance in its favour because grant of specific performance is not an automatic consequence on proving that the defendants / proposed sellers are guilty of breach of contract. As already stated above, plaintiff has to prove to the satisfaction of the court his readiness i.e. capacity to pay at all points of time and which is implicit in the expression "has always been ready and willing" as found in Section 16(c) of the Specific Relief Act and, therefore, plaintiff has to prove his capacity from 04.11.2006 till date in the year 2016. Has the plaintiff proved so? The answer to this has to be in an emphatic no, and the reason for the same are given hereinafter."
38. In the light of aforesaid judgment, in the instant case, the court needs to determine whether the plaintiff had the availability of balance sale consideration from the date of Agreement Ex.P1 i.e. April, 1992 till 2018.
39. In order to prove his financial capacity, the plaintiff has examined three witnesses i.e:-
PW2- Sh. Jagmohan Lal from NTPC Ltd.
PW3- Sh. Lal Sahib Mishra from Standard Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 29 of 39 Chartered Bank PW4- Sh. Rajesh Kumar Aggarwal from NHPC Ltd.
40. PW2 Sh. Jagmohan Lal from NTPC Ltd. (Govt. of India Company) produced record of hundred bonds of Rs 1000/- each (total Rs 1lakh) issued on 12.02.1988 in the name of Sh. Sanjay Gupta (plaintiff) and Sh. Rajiv Gupta. The witness, in cross examination, admitted that the bonds were transferred on 29/06/1995 by plaintiff and Sh. Rajiv Gupta, but, from his testimony it stands proved that during the relevant period plaintiff jointly with Sh. Rajiv Gupta, owned transferable bonds of Rs 1,00,000/- of a Govt. of India Company.
41. PW3 Sh. Lal Sahib Mishra from Standard Chartered Bank also produced record to show that the plaintiff had huge deposits in the bank from 2003 till 2015. These documents do not reflect financial capacity of plaintiff prior to the year 2003.
42. PW4 Sh. Rajesh Kumar Aggarwal, Assistant Manager (Finance) came from NHPC LTD. (a Govt of India Enterprise) and proved that 47475 bonds were allotted to plaintiff in 1987 of Rs. 1,000/- each, hence plaintiff had bonds worth Rs 4.75 crores (approx) much prior to the relevant time (in 1992), which is way beyond the sale consideration in the present case i.e Rs. 1,15,000/-. The sole testimony of PW-4 is sufficient to prove the fact that the plaintiff had financial Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 30 of 39 capacity (i.e. readiness) to pay the balance sale consideration.
43. It is worthwhile to mention that during the pendency of instant lis, the plaintiff moved an application under Section 151 CPC for placing on record the electronic receipt of FDR of balance sale consideration which was allowed by Ld. Predecessor vide order dated 09.07.2013. Ld. Predecessor while allowing the application, also observed that this receipt proves that the plaintiff had balance sale consideration on 08.10.2012. The said order has not been assailed. It proves that since October,2012 till date, the plaintiff has availability of balance sale consideration amount and for the period prior to October, 2012, the testimony of PW-4 would suffice.
44. There is no iota of doubt that the plaintiff had the financial capacity to make the payment of balance sale consideration. Thus, the plaintiff was always ready and willing to perform his part of agreement. Rather, the defendant did not comply with the obligations imposed upon her vide agreement Ex.P1. There is no reason to decline the relief of specific performance of agreement Ex.P1 to the plaintiff.
45. The second aspect which requires adjudication is the entitlement of plaintiff to the relief of possession qua the suit property.
46. Generally, sale of property is accompanied with transfer of possession and in a suit for specific performance of an agreement to sell, the seller upon execution of the sale Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 31 of 39 deed is also liable to handover the possession of the property to the purchaser. However, when undivided share in the property is purchased and there is no specific agreement with respect to possession of any particular portion of the property like in the present case, then merely symbolic possession of the property is given by mentioning in the sale deed itself that the possession of the undivided share has been delivered. The purchaser, thereafter, has the right to seek partition of that undivided share purchased by him as per law and convert that symbolic possession into actual physical possession.
47. In the present case, the subject matter of the suit and the agreement to Sell is stated in para (1) of the plaint, reproduced as under:-
"1. That the defendant is the absolute co-owner/co-bhumidar in possession of about 12 biswas of agricultural lands situated in Village Bijwasan, Union Territory of Delhi which is 1/90th undivided share in the joint holding of agricultural land total measuring 55 bighas and 5 biswas comprised in Khasra No.49/7/1 measuring 2 bighas 14 biswas; Khasra No. 49/8 measuring 2 bighas and 12 biswas; Khasra No. 49/9 measuring 2 bighas; Khasra No. 49/12 measuring 2 bighas and 8 biswas; Khasra No. 49/13 measuring 4 bighas and 16 biswas; Khasra No. 49/14 measuring 4 bighas 11 biswas; Khasra No. 49/17/1 measuring 1 bigha 12 biswas; Khasra No. 49/18/1 measuring 1 bigha and 12 biswas; Khasra No. 49/19/1 measuring only 18 biswas; Khasra No. 49/26 measuring 1 bigha 7 biswas and Khasra No. 169 measuring 30 bighas 15 biswas."
48. In the said paragraph, the property is described as 1/90th share in several khasra numbers. Neither in the plaint nor in the testimony of plaintiff, it is stated that which 1/90th portion of the said khasra numbers was in possession of the Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 32 of 39 defendant. In absence of disclosure of specific portion, the plaintiff cannot claim physical possession of 1/90th portion, though after execution of sale deed, he may apply for partition of his share before the concerned authority as per law and obtain physical possession upon such partition.
49. Reliance is placed upon the judgment M.V.S. Manikayala Rao v. M. Narasimhaswami, AIR 1966 SC 470 (Full Bench), wherein Hon'ble Apex Court, while dealing with the issue of possession upon auction sale 1 of undivided share in property, observed as under:-
"5. As earlier stated the High Court held that Article 144 applied. The application of this article seems to us to present great difficulties to some of which we like to refer. That article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. Now, it is well settled that the purchaser of a coparcerner's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession "would date from the period when a specific allotment was made in his favour": Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain [(1954) SCR 177, 188] . It would, therefore, appear that Sivayya was not entitled to possession till a partition had been made. That being so, it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person 1 "In execution of that decree the shares of the four sons in the joint family properties, described altogether as 4/5th share, were put up to auction on December 21, 1936 and purchased by one Sivayya whose successorsininterest are the appellants" from para 1 of the judgment.
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 33 of 39 only when he was entitled to possession. Support for this view may be found in some of the observations in the Madras Full Bench case of Vyapuri v. Sonamma Boi Ammani [(1916) ILR Mad 811]."
50. Similarly, Hon'ble Supreme Court in case titled as A. Abdul Rashid Khan (Dead) & Ors. Vs. P.A.K.A Shahul Hamid & Ors. (2000) 10 SCC 636, observed in para no. 14 and 15 as under:-
".....14 Thus we have no hesitation to hold, even where any property is held jointly, and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, he is bound to execute the sale deed. However, in the absence of the other co-sharer, there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the appellants in such property to other such contracting party. In the present case, it is not in dispute that the appellants have 5/6 th share in the property. So, the plaintiff's suit for specific performance to the extent of this 5/6th share was rightly decreed by the High Court' which requires no interference.
15. So far as the other part of the High Court's order by which it decreed the alternative relief of Respondent 1 for partition of the suit property in six equal shares by metes and bounds and delivering separate possession over these such shares is concerned, on the face of it it is erroneous and cannot be sustained, in a suit for specific performance. The vendee on the date of filing this suit has not yet become the owner of this property, as he merely seeks right in the said property through the decree of specific performance. When the sale deed itself has yet to be executed, his right in the property has not yet matured, how can he claim partition and possession over it? Even after decree is passed, his right will only mature when he deposits the balance consideration and the sale deed is actually executed. This apart, how could there be any partition in the property, without the other co-shares joining, who are not part of the disputed agreement? No issue is framed between them. No evidence led. Hence, we find that the High Court was not right in decreeing this alternative prayer of partition in this suit....."
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 34 of 39
51. In view of the aforesaid judgments, a decree of physical possession cannot be passed in favour of plaintiff. The plaintiff is only entitled to symbolic possession of the suit property and he is at liberty to pursue his remedy of partition.
52. Before parting, there are two more questions which need determination: (1) Whether defendant is entitled to amount more than the balance sale consideration because of the fact that more than 25 years have lapsed since the date of agreement? (2) What is the effect / consequence of execution of sale deed dated 18.12.1995 by the defendant in favour of Sh. Rajesh Aggarwal with respect to suit property?
53. The agreement to sell is dated 24/04/1992 and the suit is pending since 1995. Since 1992, the value of the suit property, which is located in South Delhi, has increased manifold and as per the circle rate of residential property in that area, the property is worth crores. However, at the same time, as stated earlier, the conduct of defendant is also fraudulent, as despite receiving earnest money from plaintiff, she has executed sale deed in favour of Sh. Rajesh Aggarwal at Bombay, without issuing any notice to plaintiff.
54. Accordingly, in order to balance the right of parties, the court is of the opinion that the plaintiff is entitled to specific performance after paying Rs.7 lakhs to defendant in addition to balance of sale consideration of Rs.90,000/- as offered by plaintiff himself on 18/10/2018. Reference may be made to the Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 35 of 39 judgment titled as K. Prakash Vs. B.R. Sampath Kumar 2015 (2) SCC 597 wherein Hon'ble Apex Court because of 10 years delay had granted specific performance for Rs 25 lakhs, instead of original consideration of Rs 16 lakhs.
55. Lastly, it needs to be determined as to what is the consequence / effect of execution of sale deed dated 18.12.1995 by the defendant in favour of Sh. Rajesh Aggarwal. The said sale deed has not been produced before the court. The defendant / DW-1, during her cross examination stated that she does not know Sh. Rajesh Aggarwal and she had not agreed to sell the suit property in 1995 to anyone after filing of the suit. The sale deed, if any, executed by the defendant in favour of Sh. Rajesh Aggarwal has not been proved in accordance with law. There is nothing on record to suggest that Sh. Rajesh Aggarwal was a bona fide purchaser for consideration. Moreover, the said sale deed which is allegedly registered on 18.12.1995 i.e. subsequent to filing of the present suit on 16.10.1995, would be hit by the doctrine of lis pendens. (Reliance is placed upon the judgments titled as Rajinder Singh Vs Santa Singh, (1973) 2 SCC 705, Jayaram Mudaliar Ayyaswami, (1972) 2 SCC 200, Sushil Kumar Bagga Vs Dewan Chandra Batra and Anr 207(2014) DLT 346 and Har Narain Vs Mam Chand, VII (2010) SLT 337) The plea of execution of sale deed in favour of Sh. Rajesh Aggarwal has been taken with the sole motive to scuttle the execution of plaintiff's agreement.
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 36 of 39 Consequently, the sale deed dated 18.12.1995, if any, in existence, is not binding upon the plaintiff.
Issue no. (ii) is decided in favour of the plaintiff and against the defendant.
Issue no.(iv) Whether the plaintiff is entitled for damages in case the relief for specific performance is declined?
56. The plaintiff, in alternative, has made a prayer for award of damages to the tune of Rs 5,05,000/- including refund of Rs 25,000/- which was paid as earnest money to defendant.
57. As specific performance has been decreed in favour of the plaintiff, the alternative prayer of award of damages is declined. Moreover, merely because the plaintiff has asked for alternative relief, he cannot be refused the principal relief of specific performance. It has been held in Ram Dass v. Ram Lubhaya, 1998(2) PLR 32 that an alternative prayer by a plaintiff in a suit cannot be construed as a waiver or abandonment of the main relief in the suit. An alternative prayer is a relief which is claimed by the party if the party is found to be not entitled to the main relief claimed in the suit.
58. Even in the case titled as Gurmail Singh and others V. Amrit Singh and others, 2000 (1) RCR (Civil) 70 it was held that merely because agreement indicated that the Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 37 of 39 plaintiff would claim double the amount in case of breach, would not exclude the right of the plaintiff to enforce the agreement.
59. The jurisdiction vested in the Court to decline specific performance and grant alternative relief is a jurisdiction of equity and good conscience and must be exercised in consonance of the settled principles of law. A lawful agreement being proved and judicial conscience of the Court being satisfied, the equity would demand enforcement of an agreement rather than granting an alternative relief of damages to the plaintiff. It need not be reiterated that equity must give relief where equity demands.
60. Still further it may be mentioned that in case of immovable property time is never the essence of the contract unless so is recited in the contract. Reference may be made to the authorities reported as Mohammad Nadir v. Chaudhari Jahangiri Mal and others, AIR (36) 1949 Lahore 72 and Bhagwan Singh v. Teja Singh alias Teja Ram, 1996(3) LLR 487 (P&H).
61. Thus, plea of learned counsel for the defendant that sufficient time having elapsed, the specific performance should be refused, cannot be accepted. The default lies with the defendant and refusing specific performance would be amounting to undue enrichment of wrong- doers. Moreover, the plaintiff has been fair enough to offer additional amount of Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 38 of 39 Rs.7,00,000/- to defendant on account of delay in proceedings for which plaintiff is not responsible.
Issue no. (iv) is accordingly disposed off. Relief In view of findings and discussion on the aforesaid issues, a decree for specific performance of Agreement to Sell dated 24.04.1992 Ex.P1 is passed in favour of the plaintiff and against the defendant. Defendant shall execute the sale deed in favour of the plaintiff within one month from the date of obtaining the requisite permissions, (to be obtained within 2 months from today) by the defendant as per rules subject to payment of Rs.7,90,000/- to defendant by the plaintiff at the time of the registration of sale deed in his favour. Parties shall bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally signed by SHUCHI LALER
SHUCHI LALER Date: 2018.10.22 16:31:53 +0530
Announced in the open court (SHUCHI LALER)
on this 22nd day of ADJ-04, EAST DISTRICT
October, 2018 KKD Courts, Delhi.
Suit No. 1738/16/95 Sanjay Gupta v Barfo Page No. 39 of 39