Delhi District Court
M/S Maha Maya General Finance Company ... vs Sidharth Chaudhary on 21 August, 2010
IN THE COURT OF SH. AJAY GOEL, LD. SCJ CUM RC
(CENTRAL)DELHI
RCA17/07
In the Matter of :
M/s Maha Maya General Finance Company Ltd.
4/4A, Asaf Ali Road,
Delhi Stock Exchange Building
New Delhi110002. ...............Appellant.
VERSUS
1. Sidharth Chaudhary
S/o Choudhary Brahm Prakash
R/o 96 Anupam Apartments,
M.B. Road, New Delhi110068.
2. M/s Capital Land Builders Pvt. Ltd.
B49, Connaught Place, New Delhi.
3. Sh. Janardhan Rai
S/o Sh. Chandrika Rai
Director of M/s Capital Land Builders Pvt. Ltd.
B49, Connaught Place, New Delhi. .............Respondents.
Date of Institution: 21.11.2007
Date of Assignment to this court: 16.12.2008
Date of Arguments: 19.8.2010
Date of Decision: 21.8.2010
JUDGMENT
RCA17/07 Page No. 1/14
1. Vide this order I shall proceed to dispose off an appeal filed by the appellant against the order of Ld. Trial court dated 10.10.07 decreeing the suit of the respondent/plaintiff and directing the appellants/defendants to execute and get sale deed registered in favour of the plaintiff/respondent No. 1 in respect of plot No. B 11, Ram puri Colony, Ghaziabad, U.P. The brief facts leading to appeal are that the respondent No. 2 and 3 entered into compromise dated 01.6.83 with respondent No. 1 by which the plot No. B10 and 11, Ram puri Colony is sought to be transferred in the name of the respondent No. 1 and his brother Sh. Ajay Chaudhary. Respondent No. 2 and 3 wrote a letter to the appellants for transfer of the said plot in the name of three nominees Mr. Ajay and Sidharth Chaudhary and got the reply dated 30.5.83 that " plots stands transferred in the records of the Company in the name of nominees". By mutual agreement between brothers dated 30.3.84, the respondnet No. 1 Sidharth Chaudhary became the owner of plot B11 and Ajay Chaudhary became the owner of the plot No. 10. It was against the refusal of the appellants RCA17/07 Page No. 2/14 to execute the sale deed in favour of the respondent no. 1 that the suit for Specific Performance was instituted by the plaintiff/respondent No. 1 which was decreed.
2. From the pleadings of the parties, the following issues were framed:
1) Whether the suit of the plaintiff in its present form is maintainable?OPP
2) Whether this court has territorial and pecuniary jurisdiction to try the suit?OPP
3) Whether plaint does not disclose cause of action to institute the present suit?OPP
4) Whether suit of the plaintiff is barred by limitation?OPD
5) Whether plaintiff is entitled to the decree prayed for in the suit?
6) Relief.
3. Vide order dated 16.4.1993, issue No. 2 was bifurcated as under: 2A. Whether this court has territorial jurisdiction to try the suit?OPP 2B. Whether this court has pecuniary jurisdiction to try the suit?OPP RCA17/07 Page No. 3/14
4. The appellants have to assail the Ld. Trial court's order on the ground that the suit is not maintainable because of non joinder of necessary parties, Sh. Ajay Chaudhary, the brother of respondent No. 1. It is their submissions that there was no privity of contract between appellants and respondent No. 1 and so the appellants were not responsible for executing any sale deed in favour of the respondent No. 1. They have submitted that they are sponsor of Ram puri colony and by agreement executed in the year 1967 they have sold the plots No. B 10 and 11 to respondent no. 2 and 3 and since the respondent No. 2 and 3 had not asked for the execution of sale deed in their favour since then, they could not have asked at now as barred by limitation. Respondent No. 1 being the successor in interest of respondent No. 2 and 3 is also barred from asking the such relief. It is their contention that agreement between brothers Sidharth and Ajay chaudhary was in the nature of relinquishment and same being not registered was hit by section 17 of the Registration Act and could not be read for any colateral purpose of looking into the factum RCA17/07 Page No. 4/14 of any contract being made regarding such property and also could not have vested the said plot B11 in Sidharth Chaudhary. Also the judgment of Sh. P.K. Bari, regarding compromise between respondent No. 2 and 3 and brother of Respondent No. 1, was judgment in personam and had given its findings and subject beyond scope of suit and so required by law to be registered and the same being not registered, the parties could not claim any rights from such judgment. It is the case of the appellant that respondent No. 1 was never in possession of suit property as has been admitted by him in the cross examination dated 16.10.04 and so the finding of Hon'ble High Court that this court has territorial jurisdiction which was passed on the assumption that respondent No. 2 was in possession of the suit property has no application here and the suit is not maintainable. Further more the respondent have never claimed that they were ready and willing to perform their part of contract and so no relief on injunction could be granted to them in the light of section 16(c) of the Specific Relief Act. According to them the suit was also not properly RCA17/07 Page No. 5/14 valued because the respondent was not in possession and advelorum court fee should have been paid since he was not in possession of the suit property. On the other hand the respondents have relied upon Ex. P5 which is a letter from appellants to respondent No. 2 and 3 stating that in response to the request for transferring the plots No. B10 and 11, the name of the nominees respondent No. 2 and 3 have already been transferred. They relied on this statement to show that there was privity of contract between appellants and respondent No. 1 and so the appellants were liable to execute the sale deed in favour of the respondent No. 1. They have contended that there was no question of respondent being ready and willing to perform their part of the contract as appellants never specified any other formalities to be completed by respondent before execution of sale deed. They also contended that the respondent No. 1 has always been in possession of suit property and hence suit is properly valued and also the decision of the hon'ble High Court vesting the territorial jurisdiction is binding .
RCA17/07 Page No. 6/14
5. Heard. File perused.
6. Issue No. 1. Whether the suit of the plaintiff in its present form is maintainable?OPP and Issue No. 2. Whether this court has territorial and pecuniary jurisdiction to try the suit?OPP: The issue No. 2 was bifurcated as Issue No. 2.A. and 2. B. As far as territorial jurisdiction was concerned, the same was decided by Hon'ble High Court is binding on both the parties. I am observing the issue of pecuniary jurisdiction. The Ld. Trial court has observed under this issue that suit is maintainable. The present suit for Specific Performance and the Ld. Trial court has held that actual relief is not for performance and agreement with regard to delivery of possession and came to the conclusion that suit is properly valued at Rs. 200/. The title of the suit is itself for Specific Performance and nowhere in whole body of the plaint it has been mentioned that possession was ever delivered to them. In para No. 2 of the plaint it is mentioned that defendant No. 2 was the owner of the plot and ownership was to be transferred in the name of Sh. Ajay Chaudhary brother of the RCA17/07 Page No. 7/14 plaintiff but it was not done so. Ex. P5 talks about certain facts but nowhere deals with the possession. Sale deed was to be registered in the name of plaintiff as per his case and the prayer clause also. It has been mentioned in whole of the testimony of the witness PW1 that he was not in possession. No documents are existing with plaintiff showing the possession. Rather he stated that property is vacant and moreover he was only beneficiary with Sh. Ajay Chaudhary but Sh. Ajay Chaudhary has not appeared in the witness box. Rather he has not stated that the defendant No. 2 and 3 were ever given the possession and if the defendant No. 2 and 3 were not having possession then the plaintiff could also not get the same. The witness of the plaintiff has admitted that defendant No. 1 has not issued any letter to him and defendant No. 2 and 3 showing that he has given any possession to them. Thus, in these, circumstances the suit should have been valued properly. Mere fixing the court fees on valuation of Rs. 200/ is not sufficient. In the agreement entered into by plaintiff and defendant No. 2 and 3, no such value of the RCA17/07 Page No. 8/14 property is mentioned. The defendant No. 2 and 3 had chosen not to defend the suit and thus without asking the relief of possession the suit of the plaintiff simplicitor was not maintainable. This issue has wrongly been decided by Ld. Trial court and findings are hereby reversed on this issue and it is held that suit is not maintainable as no value has been made out and there is no evidence to show as to what was the market value at the time of entering into the agreement. Hence on the reasoning, whether this court has pecuniary jurisdiction or not, no finding can be given.
7. Issue No. 4. Whether suit of the plaintiff is barred by limitation?OPD : Issue No. 4 is taken up first. Under this issue, limitation point was to be concerned. The Ld. Trial court has rightly held that present suit is not barred by limitation on the ground that cause of action for filing the present suit has arisen on the agreement dated 01.6.83 but the question was here whether defendant No. 2 and 3 were left with any right, title and interest after they failed to get the land transferred in their favour on the agreement based in 1967, though they could not have given more than RCA17/07 Page No. 9/14 what was with them. Thus the finding of Ld. Trial court that this suit was within limitation are upheld but the effect of extinguishment of right of defendant No. 2 and 3 are discussed with other issue.
8. Issue No. 3. Whether plaint does not disclose cause of action to institute the present suit?OPP and Issue No. 5. Whether plaintiff is entitled to the decree prayed for in the suit?: Under this issue the defendant No. 2 and 3 were duty bound to show that there was previty of contract between defendant No. 1 and defendant was duty bound to execute the sale deed. If the plaintiff were satisfied merely entering of the name in the record of defendant No. 1 and nothing more was required to be done then there was no need to come to the court. Sale deed was required to be executed by Capital Builders Pvt. Ltd. in their favour from defendant No. 1 which they have failed. Though the plaintiff has cause of action to institute the suit but whether he is entitled to the relief is different. The Ld. Trial court has not given any reasoning as to how the plaintiff is entitled to the decree as prayed in the suit. The respondent No. RCA17/07 Page No. 10/14 1 and his brother of Sh. Ajay Chaudhary were given the said plots B10 and 11 by respondent No. 2 and 3 vide their agreement dated 01.6.83. Ex. P3 which is a resolution No. 2 passed at Boards of Directors of meeting of respondent No. 2 clearly states that plot No. B10 and 11 in Ram puri Colony Ghaziabad U.P. sponsored by M/s Maha Maya General Finance Co. ltd., owned by the Capital Land Builders Pvt. Ltd., the respondent no. 2. This resolution authorised Sh. Janardhan Rai, respondent no. 3 to sign on papers and documents for transfer of Ram puri colony plots and to all acts and duties which are necessary for completion of the compromise. Thus it is clear that respondent No. 2 has same right on plot B10 and 11 but that right was never crystalised into ownership by registered document. No transfer in movable property is effective without registration, if it is of more than Rs. 100/ of value. The contention of respondent that appellants had admitted the privity of contract by writing to respondent that it had transferred the plots in the favour of Sh. Ajay and Sidharth Chaudhary does not itself create the RCA17/07 Page No. 11/14 obligation of appellant because Ex. P5 which the said letter dated 30.5.83 specifically mentions that "the plots stand transferred in the record of the company in the name of nominees". There is nothing on the record that transfer is contemplated by the respondent was transferred through sale deed. Even in his crossexamination of Sh. Sidharth Chaudhary, respondent no. 1 has admitted that he is not in any agreement with appellants with regard to suit property and that there was an agreement with regard to suit property with respondent No. 2. This alongwith his statement that he does not have any knowledge and agreement was entered into between appellants and respondent No. 2 and 3 with regard to property No. B10 and 11 in the year 1967 demolishes the contentions of respondent No. 1 that appellants were obliged under an agreement to execute the sale deed. The respondent No. 1 specifically contended that respondent No. 2 has showed him documents showing the ownership of property bearing No. B10 and 11 in their name. When it is his case that the owner of the property is respondent No. 2. There is no RCA17/07 Page No. 12/14 scope left for inferring in the transfer and the sale deed could not have been executed by appellants. It has come out in the cross of DW1 Sh. Balwant Singh Director of the appellants that appellants were not directly responsible for execution of the transfer deed because documents were required to be executed including tripartite agreement that main party responsible for further necessary work were respondent No. 2 and 3. The respondent No. 2 and 3 have not denied the existence of agreement between them and appellants regarding the transfer of property No. B 10 and 11 in the year 1967 and have also not denied that they had not asked the appellant to execute the sale deed. Considering this alongwith fact that they show Sh. Sidharth Chaudhary and Ajay Chaudhary to be their nominee, it becomes clear that nominees could not have asked for better title then their predecessor interest and since their predecessor had lost their right to ask for execution of the sale deed Sh. Sidharth Chaudhary could not have done so. The observation of Ld. Trial court that though the suit is title for suit for Specific Performance but it is only a suit for RCA17/07 Page No. 13/14 giving the directions to defendant to execute the sale deed also does not have any legal basis because the direct consequences of execution of the sale deed would be the asking for possession of the same prayer which could not be done here because the respondent No. 1 has not been able to show that he was in possession of the suit property in the same reference the suit cannot also be properly valued. In the light of above discussion, the observation of Ld. Trial court does not appear tenable. thus, issue No. 5 is decided in favour of the defendant No. 1 and against the plaintiff.
9. Relief: In view of the finding on issue No. 5 and 1, the suit simplicitor for Specific Performance is not maintainable without asking for relief of possession and without paying the court fee as market value as on the date of agreement. The suit stands dismissed with costs and the appeal is accordingly allowed with costs. TCR be sent back to Ld. Trial court alongwith copy of this judgment. Appeal file be consigned to record room.
Announced in the open court on AJAY GOEL
21.8.2010 SCJ CUM RC(Central)Delhi
RCA17/07 Page No. 14/14