Delhi District Court
Sh. Sanjay Gupta vs Sh. Bal Ram (Deceased) on 7 June, 2018
IN THE COURT OF MS. SHUCHI LALER, ADDITIONAL DISTRICT
JUDGE, EAST DISTRICT, KARKARDOOMA COURTS, DELHI.
Suit No.1753/16
In the matter of:
Sh. Sanjay Gupta
S/o Sh. Lala Ram Gupta,
R/o 6, Anand Lok,
New Delhi ......... Plaintiff
Versus
Sh. Bal Ram (deceased)
S/o Late Sh. Leelu Ram
Through LRs
1(a) Sh. Raj Kumar Saini (Son)
1(b) Sh. Yogesh Saini (Son)
1(c) Sh. Sunita (daughter)
1(d) Sh. Babli (daughter)
1(e) Smt. Punam (daughter)
1(f) Smt. Anju (daughter)
1(g) Smt. Renu (daughter)
All Resident of Village & P.O. Baijwasan
Delhi ......... Defendants
Date of Institution : 17.10.1995
Date of Final Argument : 12.04.2018
Date of Pronouncement : 07.06.2018
SUIT FOR SPECIFIC PERFORMANCE,
DAMAGES AND INJUNCTION.
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 1 of 40
JUDGMENT :-
1. This suit for specific performance, damages and injunction has been filed with respect to Agreement to Sell dated 31.03.1992 qua defendant's 1/16th share to the extent of 3 bighas and 9 biswas of joint holding of agricultural land total admeasuring 55 bighas and 5 biswas comprised in Khasra Nos. 49/7/1 measuring 2 bighas 14 biswas; Khasra No. 49/8 measuring 2 bighas 12 biswas; Khasra No. 49/9 measuring 2 bighas; Khasra No. 49/12 measuring 2 bighas 8 biswas; Khasra No. 49/13 measuring 4 bighas 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 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, 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. 17.10.1995 Suit admitted. Ex parte injunction passed against defendant restraining him 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.
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 2 of 40 27.12.1995 Hon'ble High Court restrained the defendant as well as transferee Sh. Iqbal Singh and Sh. Aggarwal from raising any further construction.
24.09.1999 Application under Order I Rule 10 CPC of Sh. Iqbal Singh, Sh.
Shamsher Singh and Sh. Ashok Kumar dismissed by Hon'ble Delhi High Court.
08.08.2002 Defendant was proceeded ex parte. 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. 01.07.2008 Application under Order 22 Rule 4 CPC for impleadment of LRs of deceased defendant was allowed.
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.
01.12.2017 Defendant evidence closed.
12.04.2008 Final arguments addressed on several dates and finally concluded on 12.04.2018.
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 31.03.1992 (hereinafter "the Agreement"), for a total sale consideration of Rs.8,62,500/-. Defendant received a sum of Rs.87,000/- (Rupees Eighty Seven Thousand only) i.e. Rs.17,000/- (Rupees Seventeen Thousand Only) in cash and Rs.70,000/- (Rupees Seventy Thousand Only) vide cheque no. 678899 dated 31.03.1992 drawn on American Express Bank Limited, Connaught Place, New Delhi Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 3 of 40 towards earnest money, at the time of execution of the Agreement. In terms of the Agreement, defendant was required to obtain necessary 'No Objection Certificate' from the office of A.D.M(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'. When the plaintiff informed the defendant that he would be compelled to file a suit for specific performance against him, the defendant represented that in case plaintiff was interested in completion of sale transaction, he may pursue the matter and obtain 'No Objection Certificate' himself. Accordingly, plaintiff obtained 'No Objection Certificate' from A.D.M. (LA) office on 29th November, 1994. The defendant, on repeated request of plaintiff, obtained income tax clearance certificate on 22.12.1994. Thereafter, plaintiff repeatedly requested the defendant to execute Sale Deed and get the same registered with Sub-Registrar, after receiving balance sale consideration. He also requested the defendant to hand over vacant possession of the suit land to plaintiff, after executing the Sale Deed. However, 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. Vide legal notice dated 10 th May, 1995, defendant was called upon to perform his part of contract and to get the Sale Deed registered with Sub-Registrar's office after receiving balance sale consideration and also to hand over the vacant possession of the land to plaintiff but to no effect. Plaintiff was always ready and willing to perform his part of contract by paying balance sale consideration to defendant, on execution of Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 4 of 40 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 he has taken a preliminary objection that the instant suit is barred by time. It has been alleged that the agreement of sell was executed on 31.03.1992 whereas the suit has been filed on 09.10.1995. The defendant has not denied his signatures on the Agreement nor receipt of an amount of Rs.87,000/- as earnest money. His case is that the plaintiff alongwith his father / Sh. Lala Ram Gupta had approached defendant for purchase of the suit property and pleading shortage of time, took signatures of defendant on blank papers. The Agreement was not read over nor explained to the defendant and the signatures of attesting witness has been obtained later on. It has been alleged that the plaintiff did not approach the defendant for any compliance towards the execution of sale deed and the object of plaintiff was to bind down the defendant by obtaining his signatures on sale agreement and then to sleep over the transaction as long as possible and later transfer the land to others and make maximum profits. On 22.11.1995, the defendant through his attorney has executed a sale deed with respect to the suit property in favour of Sh. Rajesh Aggarwal for sale consideration of Rs.11,00,000/- and the defendant is left with no right, title or Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 5 of 40 interest in the suit property. Defendant has denied that the plaintiff approached him from time to time for completion of formalities as well as for execution of sale deed. Remaining material averments have been denied and dismissal of the suit with costs has been prayed for.
REPLICATION
5. Plaintiff has preferred to file replication wherein allegations to the contrary have been denied and plaint averments were reiterated as true and correct.
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 31.03.1992 and the possession of the suit property? OPP
(iii). Whether the defendant signed the agreement to sell without understanding the contents of the agreement to sell? 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.
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 6 of 40
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 31.03.1992 Ex. P-1; NOC dated 29.11.1994 Ex.P-2;
Notice dated 10.05.1995 Ex. P-3.
Registered receipt Ex. P-4.
Application u/s 230A of Income Tax Act Ex.P-5.
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 22.02.1988 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.
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 7 of 40 DEFENDANT'S EVIDENCE
8. In rebuttal, summoned witness Sh. Krishan Veer, Patwari has been examined as DW-1 and he has produced the photocopy of Khasra Girdwari for the year 2016-17 Ex.DW1/A and register Karyawahi E. DW-1/B in respect of the suit land (OSR).
Defendant's son Sh. Yogesh Saini, has stepped into the witness box as DW2 (inadvertently examined as DW-1) and tendered his evidence by way of affidavit which is Ex.DW1/A. Both witnesses have been cross examined by ld. counsel for the plaintiff. Thereafter, defendant's evidence was closed.
FINAL ARGUMENTS
9. Rival submissions advanced at bar have been heard and record perused.
JUDICIAL RESOLUTION
10. The present suit is based on agreement to sell dated 31/03/1992 Ex P1. Therefore certain important clauses/paras of said agreement are reproduced as under:-
"THIS AGREEMENT TO SELL is made on this 31st day of March 1992 Between Shri Balram S/o Late Shri Lilu Ram village Bijwasan P.O. Bijwasan, Tehsil Mehrauli, New Delhi (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 Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 8 of 40 (hereinafter called the INTENDING VENDEE of the other part) WHERE AS the party of the first part owns and possesses agricultural land measuring about 3 bighas and 9 biswas in village Bijwasan, Union Territory of Delhi, having 1/16th share in total land measuring 55 bighas and 5 biswas.
The following are the khasra nos and detail S. No. KHASRA NOS BIGHAS BISWAS 1 49//7/1 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 1/16th i.e. 3 bighas and 9 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 1/16th share of the INTENDING VENDOR in the aforesaid agricultural land for a total sale consideration of Rs 8,62,500/- (Rupees Eight lacs sixty two thousand five hundred only).
That the INTENDING VENDOR has received a sum of Rs 70,000/- vide cheque no. 678899 dtd 31.03.1992 drawn on American Express Bank, and a sum of Rs. 17,000/- in cash totalling to Rs. 87,000/- only. The balance sale consideration of Rs 7,75,000/- (Rupees seven lacs seventy five thousand five hundred 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. That the INTENDING Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 9 of 40 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"
"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 aforeced, though the court of law at the cost, risk and liability of the INTENDING VENDOR"
11. 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
12. The said issue has been framed in view of preliminary objection no. 1 in WS of defendant which 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 31.3.1992. The suit filed on 9.10.1995 is barred by time."
13. 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 Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 10 of 40 that this objection is referring to, is certainly three years, which the defendant is counting from the day of agreement itself.
14. 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 date contract is fixed, when the plaintiff has notice that performance is refused.
55. For Three When the contract is broken of compensation for the years (where there are successive breach of any breaches) when the breach in contract, express or respect of which the suit is implied not herein instituted occurs or (where the specially provided for. breach is continuing) when it ceases.
15. 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.
16. 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 execution of Sale deed, and although the date was not ascertainable initially, as soon as the seller /vendee /defendant took the necessary permissions / Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 11 of 40 clearances, it became an ascertained date. The contract stipulates as under:-
"The balance sale consideration of Rs.7,75,500/- (Rupees Seven Lakhs Seventy Five Thousand Five Hundred 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. 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."
17. The agreement is dated 31/3/1992 and the instant suit is filed on 16/10/1995. As per para 12 and 14 of the plaint, the NOC from official ADM (LA) was issued on 22/12/1994 and Income Tax Clearance Certificate was issued on 22/12/1994. In the WS filed by defendant, he has not pleaded that the NOC/Clearance were obtained even prior to 29/11/1994, rather, in corresponding paras of written statement i.e. para 12 and 14, he has stated he is not aware when the plaintiff applied for NOC/Clearance.
18. Thus, the fact that the last permission i.e. Income Tax Clearance Certificate was received on 22/12/1994 stands admitted in the absence of specific denial in terms of Order VIII Rule 5 CPC. As per the agreement, the sale deed was to be executed within six months from the date of sanction of permission i.e. by 22/6/1995. The sale deed was not executed, hence the limitation commenced from 22/6/1995. As the suit was filed on 16/10/1995, it is well within limitation.
19. Hon'ble Supreme Court in Panchanan Dhara and Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 12 of 40 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."
20. 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.
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 13 of 40 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."
21. 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.
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 Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 14 of 40 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."
22. 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 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 Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 15 of 40 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."
23. 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:-
"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 Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 16 of 40 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."
24. In the light of the aforesaid judgments, the limitation in the instant case would not commence from the date of agreement rather the same would begin from the date when the plaintiff has notice that performance is refused, that is after six months from the date on which the NOC/permissions were obtained. It is reiterated that the sale deed had to be executed by 22.06.1995, thus the limitation would start from 22.06.1995. 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 Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 17 of 40 against the defendant.
Issue No. (iii) Whether the defendant signed the agreement to sell without understanding the contents of the agreement to sell? OPD
25. Defendant, in his WS, admitted that there was an Agreement between the parties with respect to sale-purchase of suit property and defendant had also received Rs.17,000/- in cash and Rs.70,000/- through cheque as advance from the plaintiff. It is also admitted, in the written statement, that agreement was for total sale consideration of Rs.8,62,500/-. The relevant portion of written statement (para 2 - 3) is reproduced below:-
"The facts are that towards the end of March, 1992, the plaintiff and his father Sh. Lala Ram Gupta approached the defendant at his residence, at village and post office Bijwasan, Delhi and offered to purchase his holding for a total consideration of Rs.8,62,500/- (Rupees eight lakhs sixty two thousand five hundred only) which it was represented by them was the best prevailing market price. The plaintiff paid Rs.17,000/- (Rupees seventeen thousand only) in cash and Rs.70,000/- (Rupees seventy thousand only) vide cheque as advance, promising to pay the balance before the Sub Registrar."
26. A conjoint reading of the aforesaid paragraph and para no. 1 of the Agreement, reveals that there is categoric admission in pleadings i.e. WS of defendant that there was an Agreement to Sell between the parties, as per which defendant had agreed to sell his holding (i.e. suit property as described in plaint and the agreement) to the plaintiff for total sale consideration of Rs.8,62,500/- and defendant also received Rs.87,000/- (i.e. Rs.17,000/- in cash and Rs.70,000/- through cheque) approximately 10% of total sale consideration as earnest money. Para No 1 of Agreement is again Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 18 of 40 reproduced for comparison:-
"1. That the INTENDING VENDOR agrees to sell and the INTENDING VENDEE agrees to purchase the 1/16th share of the INTENDING VENDOR in the aforesaid agricultural land for a total sale consideration of Rs 8,62,500/- (Rupees Eight lacs sixty two thousand five hundred only).
That the INTENDING VENDOR has received a sum of Rs 70,000/- vide cheque no. 678899 dated 31.03.1992 drawn on American Express Bank, and a sum of Rs. 17,000/- in cash totaling to Rs. 87,000/- only. The balance sale consideration of Rs 7,75,000/- (Rupees seven lacs seventy five thousand five hundred 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. 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"
Thus, the parties are not at variance as to the following terms of Agreement to Sell:-
1) Property which is subject matter of sale not disputed;
2) Seller and Purchaser not disputed;
3) Total sale consideration not disputed; 4) Receipt of earnest money not disputed;
27. The question that arises for consideration is : If subject matter of Agreement to Sell is not disputed, the sale consideration is not disputed and even receipt of earnest money is not disputed, then what part of the Agreement between defendant and plaintiff is disputed?
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 19 of 40
28. To bring forth the said controversy regarding agreement to sell, the court would like to reproduce para 4 - 10, on page no. 4 and 5 of WS of defendant as under:-
"4-B Para no. 4 to 8 of the plaint are not admitted and are denied. No lawful agreement of sale came into existence between the parties. Even the alleged agreement of sale dated 31.03.1992 does not incorporate any of terms alleged by the plaintiff. It is false to allege that the plaintiff has any right to enforce the contract of sale by specific performance. The plaintiff has failed to produce any document to defendant to obtain the required NOC. No Income Tax Clearance Certificate was required as the sale was to be for a consideration less than Rs. 10 lakhs. The plaintiff is not entitled to specific performance of the alleged agreement. The facts are that the plaintiff represented to defendant that he and his father had acquired large tracts of land from agriculturists and they were very much familiar with the process and practice of obtaining NOC from ADM (LA) and therefore they on their own would get the NOC in his favour for execution / registration of sale deed. They obtained signatures on blank stamp papers and other documents Special Power of Attorney from him and also his signatures on blank forms for the above purpose. The sale deed was to be executed and registered within six months. Time was the essence of the contract.
9-10. Para no. 9 and 10 of the plaint are not admitted and are denied. The facts are that after getting the signatures of defendant and payment of Rs.87,000/- (Rupees eighty seven thousand only) to him, the plaintiff did not approach defendant for any compliance towards the execution of the sale deed. The object of the plaintiff was to bind down defendant by obtaining his signatures on the sale agreement and then to sleep over the transaction as long as possible and later transfer the land to others and make the maximum profit."
29. As per the paragraph of WS, reproduced above, the only dispute is regarding time fixed for performance of the contract. As per WS of defendant, the sale deed was to be executed within six months and all the formalities i.e. obtaining NOC from ADM (LA) were to be completed by plaintiff for which the plaintiff had already obtained signature on blank stamp papers and other documents of Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 20 of 40 the defendant.
30. Thus, the agreement to sell between defendant and plaintiff is not under challenge. The plea of signatures on blank documents is only restricted to the clause of the time fixed for performance of the agreement Ex.P1.
31. Now adverting to the evidence on this score, the only witness examined by LRs of defendant is Sh. Yogesh Saini, S/o Late Sh. Balram, as DW-1 who in his affidavit, testified on the same lines as in written statement filed by defendant. Though the said witness testified about the agreement between defendant and plaintiff, but he failed to disclose, in his affidavit, whether he had personal knowledge about the transaction or he had gained knowledge from his father or any other family member. The relevant extract of cross examination of DW-1, is reproduced as under:-
"I was around 3 to 4 years old in the year March 1992. I did not meet the plaintiff in the year March, 1992. I did not meet Sh. Lala Ram Gupta ever. It is correct to say that I was around 7 years of age during October, 1995. I can not tell in which bank account my father had deposited cheque of Rs. 70,000/- which was given to him by the plaintiff. I can not tell where did my father spent Rs. 17000/- which he received with plaintiff in the month of March 1992. I did not ask my father in the year 1992 as to why he had entered into agreement to sell with the plaintiff when there was no necessity to the family. My father did not tell me immediately after putting his signature on the agreement that he had signed the same without understanding the contents thereof .Vol. No agreement was signed by my father so the question of informing me does not arise.
Q. Do you recognize the signatures of your father ? A. Yes I do.
The witness has been asked to identify the signature at point A and at point B of WS dated 6th May 1996, to which after seeing the signature at point A and B the witness answers that he does not recognize the signatures of his father at point A and B. My father told me orally that he had stated in the written statement that he had entered into a verbal agreement with the plaintiff. He told me in the year 2008 about the same. Again said in fact he did not tell me about the same in 2008 but told me earlier Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 21 of 40 somewhere in the year 2000. My father had told me then that he had entered into an agreement with Sh. Lala Ram Gupta who then took signature of my father on blank papers and paid Rs.10,000/- (again said Rs.17,000/-) to my father and told that he would get the sale deed executed after the payment of the entire amount within six months.
Sh. Lala Ram Gupta is not related to us. It is correct that my father never engaged Mr. Lala Ram Gupta in any court litigation. Sh. Sanjay Gupta is also not related to us. No marriage or any ceremony in our family ever took place with the family of Lala Ram Gupta and Sanjay Gupta. I did not advise my father to file a police complaint against Lala Ram Gupta or Sanjay Gupta for having obtained signatures of my father on blank papers.
My father had agreed to sell the property to the plaintiff for an amount of Rs.8,62,500/-. My father did not file any application before the court in the present case with a prayer that plaintiff and his father be directed to deposit and deliver the blank papers which were got signed by him. My father did not deposit in court the amount of Rs.70,000/- which he received from the plaintiff through cheque. My father also did not deposit the amount of Rs.17,000/- in the court which he had received from the plaintiff. My father had not applied for obtaining NOC any application before the ADM(LA).
I am not aware if my father had replied to the legal notice dated 10.05.1995 which he had received on behalf of the plaintiff. My father did not tell me as to when the Hon'ble High Court had issued an injunction order in the present case. My father did not write to the plaintiff either in May 1995 or prior thereto that he had not get the Sale Deed executed qua the suit property.
It is correct to say that I was not present with my father when he had first meeting to sell the property to Mr. Sanjay Gupta.
Contents of Ex.DW1/A were told by my father in and around year 2000. The witness has been asked if his father had issued any notice or letter to the plaintiff asking him to return the signed blank papers to which the witness expressed his inability to understand the meaning of the word plaintiff. He has been told that plaintiff means the person who has filed the case and Sanjay Gupta is the plaintiff in the present case. Thereafter, the witness has answered that no such letter was issued by my father.
It is correct that prior to filing of present affidavit Ex.DW1/A, I did not inspect Ex.P1, Ex.P2 and Ex.P5.
During 1992-95 my age was between 4-7 years. My father did not execute any Will during his life time. My father did not have any written communication with the plaintiff during 31.03.1992 till 17.10.1995 asking him as to why he is not coming forward to get the sale deed executed.
I do not know whether my father had got published any public notice declaring therein that he is cancelling the agreement to sale with Sh. Sanjay Gupta and executing a sale deed with Sh.
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 22 of 40 Rajesh Aggarwal. My mother is alive. She stays with me at the address given herein above. She is around 55 years old. We are 7 brothers and sister ie five sisters and two brothers. All of them are elder to me. Mrs. Sunita Devi is my eldest sister and she is elder to me by at least 10-12 years. My brother Sh. Raju is elder to me by around 9-10 years. In the year 1992, we all used to reside together. Even in the year 2000, we all used to reside together.
It is further wrong to suggest that I am not aware about the facts of the case. It is further wrong to suggest that my testimony is hearsay."
32. Following facts can be culled out from the cross examination of sole witness of LRs of defendant / DW-1:-
1) DW-1 was not personally present when the agreement between plaintiff and defendant regarding sale-purchase of suit property took place.
2) DW1 was of tender age i.e. 3-4 years when the agreement was executed. Any legal representative of defendant, elder to DW1, who might have attained majority, at the time of execution of agreement and was capable to understand the terms of said agreement could have been examined. Same has not been done.
3) DW-1 failed to identify signatures of his father Balram on written statement from which inference can be drawn regarding the credibility / veracity of this witness.
4) When DW1 was questioned about the terms of agreement, he testified that his father told him that he has entered into an agreement with Sh. Lala Ram Gupta who took signature on blank papers and paid Rs.10,000/- / (again said Rs.17,000/-) to his father. This deposition is contrary to the admitted position that the agreement was with plaintiff and not with his father / Sh. Lala Ram.
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 23 of 40 Moreover, earnest amount of Rs.87,000/- was paid rather than Rs.17,000/-. It suggests that DW1 did not have personal and complete knowledge regarding the transaction.
5. DW-1 was specifically questioned about the source of his knowledge regarding the transaction between his father and plaintiff and he testified that his father told him that Sh. Lala Ram Gupta had obtained his signatures on blank papers in the year 2000. DW-1, during his cross examination, admitted that his father did not issue any notice or letter to plaintiff asking him to return the signed blank papers. DW1 further admitted that he did not advise his father to file police complaint against Sh. Lala Ram Gupta or plaintiff for obtaining signatures on blank papers. A prudent and caring son, upon coming to know of such fact from his father, would not only advise his father to take action against misuse of blank signed papers, but would also assist his father in doing so. The present is a strange case where defendant as well as DW-1, choose to remain silent about procurement of signatures on blank papers, till the filing of the suit. This belies the story of blank signed papers and raises a logical inference that deceased defendant actually signed the agreement to sell after understanding its contents and for this reason, there is no dispute with respect to the subject matter of sale, total sale consideration and earnest money received.
6. DW-1 was also questioned that whether his father took any steps after six months with respect to the agreement to sell to which DW-1 replied that his father did not have any written communication with the plaintiff during 31.03.1992 till 17.10.1995 asking him as to why he is not coming forward to execute the sale Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 24 of 40 deed. Even WS is bereft of an averment that after completion of six months from date of agreement or near that time, any steps were taken by defendant to call upon the plaintiff to perform his part of the contract. Interestingly, without issuing any notice to plaintiff or calling upon the plaintiff to perform his part of contract or without issuing any notice regarding forfeiture of the earnest money, defendant entered into a fresh agreement to sell with respect to the suit property and also executed a sale deed. This highlights fraudulent conduct of defendant and establishes that the plea of agreement to sell being signed in blank is an after thought and a false defence raised merely to avoid the plaintiff's contract.
33. Moreover , no person is expected to sign documents when it is blank and if he does so he does at his own peril. 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. In M/s Grasim Industries Ltd. & Anr. Vs. M/s Agarwal Steel, AIR 2010 SC (Supp) 291, Hon'ble Apex Court 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."
There is no cogent averment in the written statement to the effect that at the time of appending signatures, force or fraud was employed upon the defendant. LRs of defendant have neither led any Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 25 of 40 evidence to prove any force or fraud. Consequently, in terms of Grasim Industries (Supra) it has to be presumed that the defendant had read the agreement Ex P1 properly and understood it before signing the same.
34. In view of above, the irresistible conclusion is that the LRs of defendant have miserably failed to prove that the signatures on agreement to sell were obtained by plaintiff from defendant in blank. Consequently, the agreement to sell was signed by defendant after duly understanding its contents and implications. The plea of the defendant that the time period for performance was fixed at six months from the date of agreement is liable to be rejected for the reason that no oral evidence contrary to the terms of agreement Ex.P1 can be read. The rigors of Section 91 and 92 of Indian Evidence Act bind LR's of defendant with full force. Even otherwise, oral evidence on this aspect is lacking. The agreement to sell Ex.P1 is valid and was duly executed between the parties.
Issue no. (iii) is decided in favour of plaintiff and against the defendant.
Issue No. (ii). Whether the plaintiff is entitled to decree for specific performance of Agreement dated 02.04.1992 and the possession of the suit property? OPP
35. 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 Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 26 of 40 agreement dated 31.03.1992 Ex P-1. It has already been held that the agreement Ex P-1 is genuine and is validly executed. Both plaintiff and LR's of defendant are governed by the terms of agreement Ex P-1.
36. 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.
37. The willingness of plaintiff to go ahead with the transaction has been categorically pleaded in para no. 12 to 16 of the plaint, which are reproduced hereinbelow:-
"12. That when the plaintiff pressed the defendant to obtain the No Objection Certificate and required him to obtain the same at the earliest, and perform his contractual obligation, failing which he (the plaintiff) would file a suit against the defendant for the specific performance of the contract at his cost, risk and liability, the defendant then told the plaintiff that it was not possible for him to obtain the NOC and if the plaintiff was interested in the purchase of the land, the plaintiff should obtain the NOC for him and on his behalf. Though there was no obigation on the part of the plaintiff to obtain the NOC from the ADM's office, yet the plaintiff being very anxious and keen to get the sale deed of the aforesaid land executed in his favour, he made efforts to obtain the same (NOC) and ultimately succeeded and got the NOC on behalf of defendant. The NOC was, thus, issued by ADM (LA)'s office on 29.11.94.
13. That on obtaining the NOC from the ADM (LA), the plaintiff required the defendant to obtain the Income Tax Clearance Certificate at the earliest so that he could execute the sale deed.
14. That the defendant on repeated requests of the plaintiff, with his help and efforts, obtained the Income Tax Clerance Certificate on 22.12.1994.
15. That on the grant of NOC from the ADM (LA) and the ITCC, as stated above, the plaintiff required / called upon the defendant to obtain Income Tax Clearance Certificate from the Income Tax Authorities and after obtaining the same to execute the sale deed in respect of his aforesaid 1/16th undivided share in the said agricultural land and get the same registered in the office of the Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 27 of 40 Sub Registrar, Delhi, on receipt of the balance sale consideration of Rs. 7,75,500/- at the time of execution and registration of the sale deed and delivery of actual vacant possession of the said area of 3 bighas and 9 biswas to the plaintiff.
16. That the plaintiff repeatedly requested the defendant to execute the sale deed and get the same duly registered on receipt of the balance sale consideration and hand over the vacate possession of the said land to the plaintiff but the defendant wrongly, illegally and for ulterior motives avoided to execute the sale deed on one pretext or the other as the price of the lands have gone up quite high."
38. It is not in dispute that the plaintiff did perform his part when he paid advance money of Rs 87,000/- to defendant in terms of agreement Ex P-1. The plaintiff has repeatedly pleaded that he requested the defendant to obtain NOCs which defendant avoided and finally NOCs were obtained due to the efforts of plaintiff on 22/12/1994. The sale deed had to be executed within 6 months from the date of obtaining requisite NOCs i.e. by 22/06/1994. The plaintiff had issued a legal notice on 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 he had executed the MOU dated 28.04.1995 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.
39. Now, adverting to the "readiness" of plaintiff. The expression "readiness" refers to financial capacity of plaintiff to pay Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 28 of 40 balance sale consideration at all points of time after the agreement to sell was entered into.
40. 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 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.
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 29 of 40
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."
41. 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. March, 1992 till 2018.
42. 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 Chartered Bank PW4- Sh. Rajesh Kumar Aggarwal from NHPC Ltd.
43. 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 Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 30 of 40 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.
44. 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.
45. 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 Rs7,75,500/-. The sole testimony of PW-4 is sufficient to prove the fact that the plaintiff had financial capacity (i.e. readiness) to pay the balance sale consideration.
46. It is worthwhile to mention that during the pendency of instant lis, the plaintiff moved an application under Setion 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 Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 31 of 40 availability of balance sale consideration amount and for the period prior to October, 2012, the testimony of PW-4 would suffice.
47. 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 him vide agreement Ex.P1. There is no reason to decline the relief of specific performance of agreement Ex.P1 to the plaintiff.
48. The second aspect which requires adjudication is the entitlement of plaintiff to the relief of possession qua the suit property.
49. 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 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.
50. 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:-
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 32 of 40 "1. That the defendant is the absolute co-owner/co-bhumidar in possession of 3 bighas and 9 biswas of agricultural lands situated in Village Bijwasan, Union Territory of Delhi which is 1/16th 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."
51. In the said paragraph, the property is described as 1/16 share in several khasra numbers. Neither in the plaint nor in the testimony of plaintiff, it is stated that which 1/16th portion of the said khasra numbers was in possession of the defendant. In absence of disclosure / identification of such specific portion, the plaintiff cannot claim physical possession of the 1/16th 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.
52. Reliance is placed upon the judgment M.V.S. Manikayala Rao v. M. Narasimhaswami, AIR 1966 SC 470 (Full Bench), Hon'ble Apex Court while dealing with the issue of possession upon auction sale1 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 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. 1753/16/95 Sanjay Gupta v Balram Page No. 33 of 40 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 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]."
53. Thus, 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.
54. 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 in respect of the suit property by the defendant in favour of Sh. Rajesh Aggarwal, when a decree of specific performance of agreement Ex.P1 has been passed against the defendant directing him to Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 34 of 40 transfer the suit property in favour of plaintiff?
55. The agreement to sell is dated 31/03/1992 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, he executed sale deed in favour of Sh. Rajesh Aggarwal that too at Bombay, without issuing any notice to plaintiff.
56. 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.40 lakhs to LRs of defendant in addition to balance of sale consideration of Rs.7,75,500/- as offered by plaintiff himself on 12/04/2018. Reliance is placed upon the 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.
57. Now adverting, to the second question i.e. execution of sale deed by the defendant in favour of Sh. Rajesh Aggarwal. The fact of transfer of suit property in favour of Sh. Rajesh Aggarwal has been incorporated in para no. 13 - 19 of reply on merits of WS. The same is reproduced hereinbelow:-
"The fact is that on 28.04.1995 a memorandum of understanding was executed by the defendant to transfer the land in question to Sh. Rajesh Aggarwal, S/o Sh. Pyare Lal, R/o AH-34, Shalimar Bagh, Delhi and received a sum of Rs.10,000/- (Rupees ten thousand only) on 28.04.1995. Later on 02.05.1995, the defendant executed an agreement to sale of the land in question in favour of the aforesaid Sh. Rajesh Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 35 of 40 Aggarwal and received Rs.90,000/- (Rupees Ninety Thousand Only) as advance and possession of the land was handed over to the intending purchaser. A General Power of Attorney was executed on 06.11.1995 by the defendant in favour of Sh.
Sachin, S/o Sh. Narain, R/o Delhi Cantt. Authorising the attorney to register the sale deed in favour of the purchaser. On 22.11.1995, the defendant through the said attorney executed a sale deed regarding the land in question in favour of Sh. Rajesh Aggarwal for a sum of Rs.11,00,000/- (Rupees eleven lakhs only) and received the balance consideration of Rs. Ten lakhs before the Registrar, Bombay. As per information available to the defendant, mutation of the land has been effected in favour of Sh. Rajesh Aggarwal. The defendant is left with no right, title and interest in the land in question, nor is in possession thereof."
58. From the said paragraph, following facts emerge:-
1) MOU dated 28.04.1995 was executed and at that time only Rs.10,000/- was paid, though total sale consideration was Rs.11 lakhs.
2) Four days thereafter i.e. on 02.05.1995 an Agreement to Sell was executed and on receipt of Rs.90,000/-, surprisingly, the possession of the entire suit property was delivered by defendant to Sh. Rajesh Aggarwal.
3) On 22.11.1995, defendant through his attorney executed sale deed in favour of Sh. Rajesh Aggarwal and received Rs.10 lakhs before the Registrar, Bombay.
59. The copy of said sale deed has not been filed on record. Sale deed, if any, has been executed by defendant in favour of Sh. Rajesh Aggarwal, the same has been registered during the pendency of the instant suit. The sale deed, admittedly, has been registered on 22.11.1995, whereas, the instant suit was filed on 16.10.1995. Thus, the doctrine of lis pendens would apply.
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 36 of 40
60. Though, the MOU and Agreement to Sell have been entered into on 28.04.1995 and 02.05.1995 respectively, i.e. before the institution of the instant suit, but the principle of lis pendens would squarely apply. Reliance in this regard is placed on Rajinder Singh Vs Santa Singh, (1973) 2 SCC 705, Jayaram Mudaliar Ayyaswami, (1972) 2 SCC 200 and Sushil Kumar Bagga Vs Dewan Chandra Batra and Anr 207(2014) DLT 346 wherein it has been observed that the sale during the pendency of a suit, even if in pursuance to an earlier Agreement to Sell, will be hit by the said doctrine.
61. Similarly, in Har Narain Vs Mam Chand, VII (2010) SLT 337 the Hon'ble Supreme Court has observed that the sale is not complete even on the execution of the Sale Deed and until the registration thereof is complete and that the registration does not relate back to the date of execution of the Sale Deed and where the Sale Deed, though executed prior to the Institution of the suit is registered after the institution of the suit, the principle of lis pendens would apply.
62. In the instant case, sale deed, if any, executed by defendant in favour of Sh. Rajesh Aggarwal, the same has been registered during the pendency of the suit and would certainly be hit by the doctrine of lis pendens as enshrined in Section 52 of Transfer of Property Act. Consequently, the sale deed, if any, in favour of Sh. Rajesh Aggarwal is not binding upon the plaintiff.
Issue no. (ii) is decided in favour of the plaintiff and against the defendant.
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 37 of 40 Issue no. (iv). Whether the plaintiff is entitled for damages in case the relief for specific performance is declined? OPP
63. The plaintiff, in alternative, has made a prayer for award of damages to the tune of Rs 8,50,000/- including refund of Rs 87,000/- which was paid as earnest money to defendant.
64. 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.
65. 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 plaintiff would claim double the amount in case of breach, would not exclude the right of the plaintiff to enforce the agreement.
66. 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 Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 38 of 40 alternative relief of damages to the plaintiff. It need not be reiterated that equity must give relief where equity demands.
67. 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).
68. 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 Rs 40,00,000/- to LR s of 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 31.03.1992 Ex.P1 is passed in favour of the plaintiff and against the defendant. The LRs of defendant are directed to obtain NOC from ADM(LA) and Income Tax Clearance Certificate from the competent authority within a period of 8 weeks from today. LRs of defendant shall execute the sale deed in favour of the Plaintiff within one month from the date of obtaining the permission subject to payment of Rs 47,75,500/-
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 39 of 40 to LRs of 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.
Announced in the open court (SHUCHI LALER)
on this 7th day of June, 2018 ADJ-04, EAST DISTRICT
KKD Courts, Delhi.
SHUCHI Digitally signed by SHUCHI
LALER
LALER Date: 2018.06.02 15:43:05
+0530
Suit No. 1753/16/95 Sanjay Gupta v Balram Page No. 40 of 40