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[Cites 21, Cited by 0]

Delhi District Court

M/S Sadhvi Properties Pvt. Ltd vs Randhir Singh Since Deceased Through ... on 7 June, 2022

                       In The Court of Shivali Sharma
                   Additional District Judge­03 (West)
                       Tis Hazari Courts, Delhi
Suit No.613271/2016
In the matter of :­

M/s Sadhvi Properties Pvt. Ltd
Having its registered office at:
S­19, Panchsheel Park,
New Delhi.
                                                               .....Plaintiff

                                Versus
1.    Randhir Singh since deceased through LRs.
(i) Chand Kaur
      w/o Late Shri Randhir Singh
(ii) Vedpal
      S/o Late Shri Randhir Singh
      Both R/o 25, M S Block, Old Kakrola Road,
      Roshan Garden, Najafgarh,
      Delhi.
(iii) Vijay Pal
      S/o Late Shri Randhir Singh
(iv) Vijender Singh
      S/o Late Shri Randhir Singh
      Both R/o 20A, M S Block, Old Kakrola Road,
      Roshan Garden, Najafgarh,
      Delhi.
2.    Shri Pradeep
      S/o Late Shri Nafe Singh
      R/o VPO Bakkarwala,
      Tehsil Nangloi,
      Delhi - 110041.                            ....Defendants


Date of institution                               :   25.03.2008

Civ DJ: 613271/16
M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh                    1 Of 43
 Date of Decision                                  :   07.06.2022


                                          JUDGMENT

Suit for specific performance of contract, possession and permanent injunction

1. The plaintiff filed the present suit against two defendants for specific performance of agreement to sell dated 01.09.2006, possession and permanent injunction in respect of 1/30 respective shares of each of the defendants in total land ad­measuring 90 bigha 19 biswas in khata­khatoni no. 85/19 comprising in Khasra no. 58/16 min (4­5), 25 min(5­8), 60/14/1 (0­3), 14/2 (4­14), 15 (4­15), 16 (4­16), 17 (4­16), 73/11 mi (4­5), 19 (4­

16), 20 min (4­5), 21 mi (4­5), 74/1/1 (0­5), ½ (2­13) and in khata khatoni no. 267/221 comprising in Khasra nos. 54/5 (6­8). 6(4­16), 15(4­16), 16(4­

16), 25 min (1­12), 57/1/1 (4­15), 19/2 (3­0), 20 (4­16), 21 (4­16) and 22 (5­2), situated in the Revenue Estate of village Bakkarwala, Tehsil Nangloi, Delhi­41, which is equal to total 30 shares. Out of the total 30 shares, the plaintiff has already purchased 28 shares belonging to the co­owners to the defendants, who had also entered into the said agreement to sell dated 01.09.2006 with the plaintiff and they have already executed the sale deed in favour of the plaintiff on 24.08.2007 in respect of their 28/30 shares. The defendants have not fulfilled their obligations and are trying to back out from the agreement to sell dated 01.09.2006, thus the present suit is confined to 2/30 shares belonging to the defendants (1/30th of each defendant),out of the above said land measuring 90 bigha 19 biswas Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 2 Of 43 (hereinafter referred to as the suit land.) Plaintiffs case:

2. The case of the plaintiff as per plaint is that the defendants alongwith Shri Kishan Chand, Shri Nihal Singh, Shri Chandram, Shri Dharambir, Shri Jai Prakash, Shri Dharam Prakash, Shri Rohtash, Shri Krishan and Shri Satish approached the authorized representative of the plaintiff company in the last week of August,2006 through Shri Naresh Sehrawat r/o village Kair, who has been working as a property dealer/broker and represented that the defendants and the above named persons are co­bhumidar/co­owners in the land measuring 20 acres approximately in khata­khatoni no.85/19, situated in the Revenue Estate of village Bakkarwala, Tehsil Nangloi, Delhi ­41. Out of the land comprised in khasra no. 54/5 & 6, some portion had already been acquired by the Govt. and the actual measurement of land with the defendants and above named persons was 90 bighas 19 biswas, recorded under the co­bhumidari of the defendants and above named persons and the same was/is equal to total 30 shares.

3. The defendants and the above named persons expressed their willingness to sell the suit land/their respective shares in the suit land to the plaintiff company. The plaintiff company through its authorized representative accepted the offer and agreed to purchase the above said land.

4. On 01.09.2006, the defendants and the above named persons entered into an agreement to sell with the plaintiff whereby they agreed to sell their respective shares out of the suit land to the plaintiff and the Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 3 Of 43 plaintiff also agreed to purchase the same for a sale consideration @ Rs. 80,00,000/­ per acre (i.e. 4 bigha 16 biswa). Plaintiff paid a sum of Rs. 1,65,00,000/­ to the defendants and the above named persons towards the advance/part payment in proportion to their respective shares through cheques which were duly acknowledged by the defendants and the above named persons in the agreement to sell dated 01.09.2006 and they also executed separate receipt regarding the same. It was agreed that if the actual area of the land increases or decreases then the total sale consideration amount would be calculated accordingly at the agreed rate. The plaintiff could get the GPA registered from the above named persons and the defendants in respect of the above said land in favour of the plaintiff or any nominee(s) of the plaintiff. The defendants and the above named persons being sellers were required to complete all the formalities for applying and obtaining the NOC/Sale permission from the revenue department. The permission was to be applied and obtained by the plaintiff at its own costs and expenses. The defendants and the above named persons were to get registered the sale deed in respect of their respective shares in the suit land in favour of the plaintiff or the nominee (s) of the plaintiff on issuance of the NOC by the revenue department and the plaintiff had to pay the balance sale consideration amount to them.

5. In terms of agreement to sell dated 01.09.2006, plaintiff paid a sum of Rs. 1,65,00,000/­ to the defendants and the above named persons through various cheques:­ Name of the Details of the amount paid and the cheques Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 4 Of 43 seller/defendants and their co­shares Shri Kishan Chand Rs.27,50,000/­ vide cheque no. 167552 dated 01.09.2006, drawn at ABN Amro Bank, Rajouri Garden,New Delhi.

Shri Nihal Singh Rs.27,50,000/­ vide cheque no. 167551 dated 01.09.2006, drawn at ABN Amro Bank, Rajouri Garden,New Delhi.

Shri Cxhand Ram Rs.27,50,000/­ vide cheque no. 167553 dated 01.09.2006, drawn at ABN Amro Bank, Rajouri Garden,New Delhi.

Shri Randhir Rs.5,50,000/­ vide cheque no. 167555 dated 01.09.2006, drawn at Singh/defendant no.1. ABN Amro Bank, Rajouri Garden,New Delhi. Shri Dharam Pal Rs.5,50,000/­ vide cheque no. 167562 dated 01.09.2006, drawn at ABN Amro Bank, Rajouri Garden,New Delhi.

Shri Dharamveer Rs.5,50,000/­ vide cheque no. 167557 dated 01.09.2006, drawn at ABN Amro Bank, Rajouri Garden,New Delhi.

Shri Jai Prakash Rs.9,16,667/­ vide cheque no. 167563 dated 01.09.2006, drawn at ABN Amro Bank, Rajouri Garden,New Delhi.

Shri Dharam Prakash Rs.9,16,667/­ vide cheque no. 167564 dated 01.09.2006, drawn at ABN Amro Bank, Rajouri Garden,New Delhi.

Shri Rohtash Rs.9,16,667/­vide cheque no. 167564 dated 01.09.2006, drawn at ABN Amro Bank, Rajouri Garden,New Delhi.

Shri Kishan Rs.27,50,000/- vide cheque no. 167554 dated 01.09.2006, drawn at ABN Amro Bank, Rajouri Garden,New Delhi.

Shri Satish Rs.5,50,000/­ vide cheque no. 167558 dated 01.09.2006, drawn at ABN Amro Bank, Rajouri Garden,New Delhi.

Shri Rs.5,50,000/­ vide cheque no. 167556 dated 01.09.2006, drawn at Pradeep/defendant ABN Amro Bank, Rajouri Garden,New Delhi. no.2

6. The said cheques were got encashed by the defendants and the above named persons. Plaintiff obtained certificates dated 29.02.2008 from its banker ABN Amro Bank, regarding the debit of the said amount from the account of the plaintiff and credit of the same to the accounts of the Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 5 Of 43 defendants.

7. All the co­shares of the defendants named above executed and got registered a SPA in favour of Shri Manoj Awasti S/o Shri N M Sharma on the instructions of the plaintiff in respect of their shares i.e. 28/30 shares out of the suit land total land authorizing Shri Manoj Awasthi to execute and get the sale deed registered in respect of their shares out of the said land in favour of the plaintiff. The SPA was duly registered on 13.12.2006 with the Sub Registrar, Punjabi Bagh, Delhi, as registration no. 9666 in Book no. 4, Volume no. 385, on pages 116 to 119. The defendants were also requested to receive their balance sale consideration amount qua their respective shares and execute the SPA but the defendants told that they themselves would execute the sale deed and get the same registered in respect of their shares in favour of the plaintiff and would receive the balance sale consideration amount at that time.

8. On 24.08.2007, the duly constituted attorney/SPA holder of the co­shares of the defendants executed and got registered the sale deed vide registration no. 4363, in book no. 1, volume no. 766, on pages 1 to 460, with the Sub Registrar, Punjabi Bagh, (SR­IIA, Punjabi Bagh), New Delhi, in respect of the 28/30 shares of the suit land in favour of the plaintiff. By virtue of the sale deed dated 24.08.2007, the plaintiff has become the owner/bhumidar of 28/30 shares of the suit land belonging to the co­shares of the defendants. The defendants had assured the representative of the plaintiff that they would execute the sale deed within the validity of the NOC i.e. upto 18.09.2007, but they failed to do so and did not execute and get registered the sale deed till date despite various requests made by the Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 6 Of 43 representatives of the plaintiff. The defendants failed to fulfill their part of the obligation by execution and registration of the sale deed in favour of the plaintiff in respect of the suit land intentionally and deliberately.

9. The above said conduct of the defendants makes it clear that their intentions have become dishonest due to increase in the market prices in the locality and they are trying to wriggle out of the agreement with the plaintiff and have not been fulfilling their obligations in terms of agreement to sell dated 01.09.2006. The defendants have been trying to sell the suit land to third parties, whereas, vide agreement to sell dated 01.09.2006, valuable rights and interests have accrued in favour of the plaintiff in respect of the suit land. The plaintiff has always been ready and willing to perform/fulfill its part of the obligation i.e. to make the payment of the balance sale consideration amount to the defendants. The defendants are under a legal obligation to perform their part of obligation and to complete the sale transaction in favour of the plaintiff by executing sale deed and getting the same registered and handing over the actual physical possession of the suit land to the plaintiff after obtaining the NOC from the revenue/concerned department. Feeling aggrieved, plaintiff filed the present suit seeking following reliefs:

(1) Decree of specific performance of the agreement to sell dated 01.09.2006 in favour of the plaintiff and against the defendants, directing the defendants to apply and fulfill all the requisite formalities for obtaining the NOC from the Revenue Department and to execute and get register the sale deed in favour of the plaintiff in respect of the suit land i.e. 1/30 respective shares of each of the defendant in total land measuring 90 bigha Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 7 Of 43 19 biswas in khata­khatoni no. 85/19 comprising in Khasra no. 58/16 min (4­5), 25 min(5­8), 60/14/1 (0­3), 14/2 (4­14), 15 (4­15), 16 (4­16), 17 (4­
16), 73/11 mi (4­5), 19 (4­16), 20 min (4­5), 21 mi (4­5), 74/1/1 (0­5), ½ (2­13) and in khata khatoni no. 267/221 comprising in Khasra nos. 54/5 (6­
8). 6(4­16), 15(4­16), 16(4­16), 25 min (1­12), 57/1/1 (4­15), 19/2 (3­0), 20 (4­16), 21 (4­16) and 22 (5­2), situated in the Revenue Estate of village Bakkarwala, Tehsil Nangloi, Delhi­41, as per the agreement to sell dated 01.09.2006, and to handover the actual, physical possession of the suit land to the plaintiff and to receive the balance sale consideration amount.

(2) Decree of permanent injunction restraining the defendants, their attorney/s, servant/s, representative/s, LR/s, family members etc., from selling, alienating, transferring, parting with possession and/or creating any kind of third party interest in any manner in favour of any third person in respect of the suit land i.e. 1/30th shares of each of the defendant in the suit land.

(3) In alternative to specific performance, a decree of specific performance, the Hon'ble court may pass a decree for recovery of damages to the tune of Rs. 1,00,00,000/­, for the breach committed by the defendants and the loss and damages suffered by the plaintiff.

Defendants' case:

10. Defendants no.1 & 2 filed their joint written statement, wherein the suit is preliminarily objected to on the ground that the suit is not maintainable and is liable to be dismissed/rejected u/o VII rule 11 CPC. The alleged agreement/transaction is barred by the provisions of Section 33 and Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 8 Of 43 45 of DLR Act. The suit is bad for non­joinder and mis­joinder of the necessary and proper parties. The suit is not properly valued for the purpose of court fees and jurisdiction.

11. On merits, the agreement to sell dated 01.09.2006 is admitted. However, it is alleged that defendants never backed out from the agreement. As per Clause 9 & 10 of the agreement, time was the essence of the contract and in any circumstances, if the contract was not completed due to default of any party, the contract stood rescinded. Admittedly, NOC was to be obtained by the plaintiff but it could not be done before 01.12.2006. Plaintiff never informed the defendants about the NOC as required by the agreement and did not come forward on the prescribed date to perform the agreement when the defendants asked him to do so and therefore, the contract was rescinded. Plaintiff entered into a fresh contract dated 04.12.2006 with other co­owners and thus, plaintiff is not entitled for any relief as per agreement dated 01.09.2006.

12. It is also alleged that defendants never voluntarily entered into agreement to sell dated 01.09.2006. Rather, they were forced to sign the said agreement by the plaintiff and other co­owners on the pretext that it is necessary for the plaintiff to join the defendants in the said agreement due to certain legal technicalities as the land could not be transferred even in the absence of a single co­owner as it was in joint names in the revenue records. Orally, plaintiff and other co­owners assured the defendants that other co­ owners would transfer their land equal to share of defendants in suit land before transfer of land of defendants to the plaintiff. But they never fulfilled their promise. Thus, the agreement to sell dated 01.09.2006 was void ab Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 9 Of 43 initio as it was not executed by defendants out of their free will and their consent was obtained by force and misrepresentation. With these contentions the suit is controverted.

Replication:

13. Replication was filed by the plaintiff company to the written statement of defendants no.1 & 2 wherein it reiterated and reaffirmed the averments made in the plaint and denied the averments made in the written statement except the admissions made.

Issues:

14. Vide order dated 25.11.2008, following issues were framed:­

1. Whether the agreement to sell dated 01.09.2006 entered into between the parties in respect of the suit property was rescinded?OPD.

2. Whether the defendants have committed the breach of the agreement to sell?OPP.

3. Whether the plaintiff has been ready and willing to perform its part of the contract?OPP.

4. Whether time was of the essence of contract between the parties?

5. Whether the suit is bad for mis­joinder Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 10 Of 43 of the necessary and proper parties?OPD.

6. Whether the suit is not valued properly for the purpose of jurisdiction and the court fees?OPD.

7. Whether the suit is bad under Section 33 of th Delhi Reforms Act?OPD.

8. Relief.

15. During the course of trial defendant no.1 expired and his LRs were brought on record vide order dated 14.12.2015.

Plaintiff's Evidence:­

16. Plaintiff company examined its authorized signatory Shri Harish Kapoor as PW1 who stated and reiterated on oath the averments made in the plaint in his affidavit Ex.PW1/A. He relied upon the following documents:­ (1) Ex.PW1/1: The Photocopy of Incorporation Certificate of the plaintiff company.

(2) Ex.PW1/2: Board Resolution dated 12.03.2008 authorizing PW1.

(3) Ex.PW1/3: Original agreement to sell dated 01.09.2006.

(4) Ex.PW1/4: Original receipt dated 01.09.2006. (5) Ex.PW1/5 & Ex.PW1/6: Original Certificates dated Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 11 Of 43 29.02.2008 certifying the receipt of payment by the defendants.

(6) Mark A: Copy of SPA dated 13.12.2006 executed by defendants in favour of PW2 on the instructions of the plaintiff.

(7) Mark­B: Copy of NOC report dated 18.08.2007 obtained from the Sub Division/Officials mentioning that there is no violence of Section 33 of the DLR Act.

(8) Ex.PW1/7: Sale deed dated 24.08.2007 executed by the co­sharers of the defendants in respect of their 28/30 shares of the said land in favour of the plaintiff company.

17. One Shri Manoj Awasthi was examined as PW2 vide his affidavit Ex.PW2/A. He relied upon photocopy of registered SPA in his favour dated 13.12.2006 already Mark­A and sale deed already exhibited as Ex.PW1/7 which was executed through him. He deposed in consonance with deposition of PW1.

18. Both the plaintiff's witnesses were duly cross examined on behalf of the defendants.

Defendants' evidence:

19. Defendant no.1 expired and on his behalf one of his legal Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 12 Of 43 heir/son Vijender Singh was examined as DW1 vide his affidavit Ex. DW1/A. He stated and reiterated on oath the contents of the written statement in his evidence. He relied upon photocopies of two documents that are Photocopy of Form of NOC dated 03.09.2006 (Mark X) and photocopy of Agreement to Sell dated 04.12.2006 (Mark Y). He was cross examined by ld.counsel for the plaintiff.

20. Defendant no.2 examined himself as DW2 vide his affidavit Ex. DW2/A and relied upon the documents already relied upon by DW1. He stated and reiterated on oath the contents of his written statement in his evidence.

21. However, DW2 was dropped vide order dated 28.02.2019 as his deposition was on the same lines as that of DW1.

22. Shri Satish, one of the co­owner of the suit land, was examined as DW3 vide his affidavit Ex. DW3/A. He deposed that as per para 9 & 10 of the contract dated 01.09.2006, time was the essence of the contract and in case of failure of completion of the contract due to fault of any of the party, the contract stood rescinded. Admittedly, NOC was to be obtained by the plaintiff on or before 01.12.2006 but it could not be obtained. Accordingly, plaintiff entered into a fresh contract dated 04.12.2006 with him and other co­owners except the defendants herein. Application for NOC was executed and handed over to the plaintiff by defendants on 03.0­9.2006 but the plaintiff failed to obtain the NOC. Therefore, the contract with defendants was rescinded. He relied upon the documents Mark X & Mark Y as relied upon by DW1. He also admitted his signatures at point P on contract dated 04.12.2006 (Mark Y). He categorically deposed that contract Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 13 Of 43 dated 01.09.2006 was rescinded due to non obtaining of NOC by the plaintiff and the defendants herein never executed the second contract dated 04.12.2007.

23. Shri Harish Pal, a summoned witness from the office of Govt of NCT of Delhi was examined as DW4 who proved on record sale deed dated 08.02.2008 as Ex. DW4/1.

24. All the witnesses were cross examined by ld.counsel for the plaintiff.

Final arguments:

25. Final arguments have been heard and record carefully perused. Written submissions filed on behalf of defendants are also perused. FINDINGS

26. Now I shall proceed to give my issuewise findings:­ Issue no.5: Whether the suit is bad for mis­joinder of the necessary and proper parties?OPD.

27. The onus to prove this issue was on defendants as they have alleged in preliminary objection no.5 of their WS that the suit is bad of non­ joinder/mis­joinder of necessary and proper parties and therefore liable to be dismissed. The defendants have not given any details of as to how the suit is bad for non­joinder and mis­joinder of necessary parties. Nor it is mentioned in the WS as to because of non­joinder of which of the parties the suit is bad. No arguments have been addressed on this issue and in their written submissions defendants have mentioned that they prefer not to press this issue.

Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 14 Of 43

28. The present suit has been filed by the plaintiff seeking specific performance of an agreement to sell dated 0109.2006. The said agreement is a joint agreement entered into with 12 co­owners of the suit land including the defendants herein. As per the plaint defendants herein have 1/30 share each in the suit land. The sale deed qua the remaining 28/30 share of the suit land has already been executed in favour of the plaintiff by the other 10 joint owners of the suit land. The said sale deed is already on record and is proved as Ex. PW1/7. Accordingly, in the present suit, only the defendants, being the co­owners, who had not executed the sale deed in favour of the plaintiff qua their share in the suit land have been impleaded by the plaintiff. I do not find any defect in the said impleadment. The other co­ owners who had already executed the sale deed in favour of the plaintiff are neither necessary nor a proper party to the present suit. Accordingly, I am of the opinion that there is no defect in the present suit for mis­joinder or non­ joinder of any necessary parties as alleged by the defendants in their WS.

29. This issue is, accordingly, decided in favour of the plaintiff and against the defendants.

Issue no.6. Whether the suit is not valued properly for the purpose of jurisdiction and the court fees?OPD.

30. The onus to prove this issue was on the defendants who have alleged in preliminary objection no. 6 of their WS that the suit is not valued properly for the purposes of jurisdiction as well as court fees. No details of proper valuation have been given in the WS nor any evidence has been lead on the issue. The defendants have also not addressed this issue in the oral Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 15 Of 43 submissions. However, in their written submissions it is stated that as per Suit Valuation Act the suit has to be valued as per the total sale consideration of the agreement (Ex.PW1/3) of which the specific performance has been sought. The value of the agreement (Ex.PW1/3) is around Rs. 16 crore, whereas the present suit has been valued only at Rs. 1,01,05,556/­ as per para 26 of the plaint. Accordingly, the suit is highly under valued for the purposes of jurisdiction and court fees.

31. The present suit has been filed by the plaintiff seeking specific performance of an agreement to sell dated 01.09.2006 (Ex.PW1/3). The said agreement is a joint agreement entered into with 12 co­owners of the suit land including the defendants herein. As per the plaint, defendants herein have 1/30 share each in the suit land. The sale deed qua the remaining 28/30 share of the suit land has already been executed in favour of the plaintiff by the other 10 joint owners of the suit land. The said sale deed is already on record and is proved as Ex. PW1/7. Accordingly, the present suit has been filed only against the defendants being the co­owners who had not executed the sale deed in favour of the plaintiff qua their share in the suit land. Hence, the plaintiff has valued the suit on the basis of share of the agreed sale consideration qua 2/30 share of the suit land in respect of which specific performance has been sought. I find no defect in the said valuation. Since plaintiff is not seeking specific performance qua the entire suit land, he was not required to pay the court fees or value the suit on the basis of complete sale consideration of the suit land as mentioned in the agreement to sell Ex.PW1/3.

Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 16 Of 43

32. In view of the reasons given above, this issue is, decided in favour of the plaintiff and against the defendants.

Issue no.7: Whether the suit is bad for Section 33 of the Delhi Reforms Act?OPD.

33. The onus to prove this issue was on defendants as they have alleged in preliminary objection no.2 of their WS that the alleged agreement/transaction is barred by the provisions of Section 33 & 45 DLR Act and thus the suit is liable to be dismissed out rightly. No arguments have been addressed on this issue and in their written submissions defendants have mentioned that they prefer not to press this issue.

34. As per Section 33 of the Delhi Land Reforms Act 1954 (DLR Act), the Bhumidars have been restrained to transfer by sale or otherwise any land to any person where, as a result of the transfer, the transferor is left with less than 8 standard acres in the Union Territory of Delhi. Certain types of transfers like transfer to a religious or charitable institutions etc have been exempted under Section 33 DLR Act. Sub Section (2) of Section 33 provides that nothing contained in Sub Section (1) shall preclude the transfer of land by a Bhumidar who has less than 8 standard acres of land, if such transfer is of the entire land held by him. Section 45 of DLR Act provides that any transfer made in contravention of the provisions of the DLR Act is void.

35. In order to show that the agreement to sell Ex.PW1/3 entered into between the defendants and the plaintiff was bad because of the limitation/restriction contained in Section 33 of DLR Act, the onus was upon the defendants to prove that the agreement to sell Ex.PW1/3 was violating Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 17 Of 43 the provisions as contained in Section 33 discussed above. However, the defendants have miserably failed to lead any evidence on this issue and have preferred not to press this issue as categorically mentioned in their written submissions.

36. In view of failure of the defendant to lead evidence on this issue, the same is decided, in favour of the plaintiff and against the defendants.

Issue no.1 Whether the agreement to sell dated 01.09.2006 entered into between the parties in respect of the suit property was rescinded?OPD. And Issue no. 4: Whether time was of the essence of contract between the parties?OPD.

37. These two issues are being taken up together as they are interconnected and require the same discussion and appreciation of evidence. The onus to prove these issues was on the defendants.

38. The present suit has been filed by the plaintiff seeking specific performance of an agreement to sell dated 01.09.2006 (Ex.PW1/3). The said agreement is a joint agreement entered into with 12 co­owners of the suit land including the defendants herein. As per the plaint defendants herein have 1/30 share each in the suit land. The sale deed qua the remaining 28/30 share of the suit land has already been executed in favour of the plaintiff by the other 10 joint owners of the suit land. The said sale deed is already on record and is proved as Ex. PW1/7. Accordingly, the present suit has been filed only against the defendants being the co­owners who had not Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 18 Of 43 executed the sale deed in favour of the plaintiff qua their share in the suit land.

39. Per­contra the case of the defendants is that the time was the essence of the contract as specifically mentioned in Clause 9 of agreement to sell (Ex.PW1/3). As per Clause 8 of the agreement (Ex.PW1/3), the plaintiff was required to apply and obtain the necessary NOC for executing the sale deed at its own costs and expenses while the only responsibility fixed upon the defendants was to sign the necessary application forms for obtaining NOC. The defendants have performed their part of the contract by handing over the signed application form for obtaining the NOC dated 03.09.2006 (Mark­X) to the plaintiff. However, the plaintiff had failed to obtain the NOC during the time prescribed in the agreement i.e. three months from the date of execution of the agreement (Ex.PW1/3) i.e. on or before 01.12.2006. Accordingly, time being the essence of the agreement, on account of failure of the plaintiff to obtain the NOC within the scheduled time and proceed further for the completion of the other formalities that are payment of balance amount and execution of the sale deed, the agreement (Ex.PW1/3) stood rescinded.

40. It is also the case of the defendants that after failure of the plaintiff to obtain NOC within the scheduled time, plaintiff entered into a fresh agreement to sell dated 04.12.2006 with the other co­owners of the suit land except the defendants herein , copy of which is Mark ­Y. The final sale deed was executed between the plaintiff and other co­owners qua their 28/30 share in the suit land on the basis of the second agreement to sell dated 04.12.2006. Execution of the second agreement to sell dated Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 19 Of 43 04.12.2006 (Mark­Y) in itself resulted in abandonment/rescission of the initial agreement to sell dated 01.09.2006 (Ex.PW1/3) on the basis of which the present suit has been filed.

41. Counter submission is made by Ld.counsel for the plaintiff that as per Clause 9 of the agreement to sell (Ex.PW1/3) it was the responsibility of the plaintiff to pay the remaining sale consideration to the owners within the scheduled time of three months. He had offered the portion of the sale consideration to which the defendants were entitled to them on various occasions during the said period but they refused to receive the same. On the other hand, the other co­owners received the same and ultimately executed the sale deed Ex.PW1/7 qua their 28/30 share in the suit property. Accordingly, the plaintiff has not committed any default of the terms and conditions of the agreement (Ex.PW1/3) and thus it cannot be said that contract stood rescinded due to the failure of the plaintiff to perform his part of the contract within the scheduled time even if the time was the essence of the contract. As regards the second alleged agreement dated 04.12.2006 (Mark­Y), execution of the same has been categorically denied by the plaintiff.

42. Before proceeding further it would be apposite to refer to the relevant clauses of agreement to sell (Ex.PW1/3), execution of which is not in dispute. The relevant clauses are reproduced hereinunder:­ .... as an earnest money/bayana from the second party and the balance amount shall be payable by the second party to the first party on or before 3 months (three months) from Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 20 Of 43 the date of execution of this agreement to sell." xxxxxxxx "8. That the First Party takes responsibilities for completing all formalities vis.signing of the applications of NOC etc. and the second party shall apply and obtain the NOC at its own costs and expenses. The Second Party shall also inform the First Party within one week from the date of receipt of NOC. The responsibility of the first party is limited to signing the concerned documents and appearing before the concerned authorities only and all the others acts and formalities shall be done by the second party.

9. The time of month is essence of the contract and if the Second Party fails to make the balance payment before three months from the date of execution or getting the requisite formalities completed before three months hereof,the First Party shall forefeit the entire amount of Bayana/earnest money paid to it by the Second party, if on the other had, the first party fails to full its obligation of getting the sale deed of the property mentioned above or the sale transaction could not be completed due to stay of any court, the second party shall be entitled to get the amount paid by it as bayana/earnest money from the first party without any interest.

10. If obtaining of NOC is delayed on any default on the part of the first party and the sale transaction could not be completed due to fault of first party, the second party shall be entitled to get the amount paid by it as bayana/earnest money from the first party with interest of 12% per annum.

Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 21 Of 43

43. Perusal of the abovestated clauses makes it very clear that at the time of execution of agreement to sell (Ex.PW1/3) the intention of the parties was very clear that the time was the essence of the contract and the full and final payment had to be made on or before the three months from the date of execution of the agreement to sell (Ex.PW1/3) i.e. on or before 01.12.2006 after getting the requisite formalities completed. Clause 8 makes it clear that the responsibility of completing all the formalities viz. signing of the application for NOC was on the defendants/sellers while the responsibility for applying and obtaining the NOC was on the plaintiff/buyer. Clause 9 further clarifies that time was the essence of the contract and if the plaintiff/buyer fails to make the payment before 3 months or get the requisite formalities completed before three months, the defendant/seller will be entitled to forfeit the entire bayana/earnest money received by them. It was also clarified in clause 9 of agreement to sell that in case of failure on the part of the defendants/sellers to execute the sale deed due to any reasons beyond their control like stay by any court, the agreement shall stand rescinded and the plaintiff/buyer shall be entitled to get the amount paid as bayana/earnest money without any interest. Again Clause 10 clarifies that if obtaining the NOC was delayed on any default on the part of the seller/defendant or the sale could not be completed due to willful default of the seller, the buyer/plaintiff would be entitled to return of earnest money with interest @ 12% per annum. Again, even in this situation clause 10 indicates that the agreement shall stand rescinded and provides for the remedies available with the parties.

Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 22 Of 43

44. Ld.counsel for the plaintiff has argued that as per clause 9 either of the two things, i.e. making the balance payment or getting the requisite formalities completed, was to be done before the completion of three months from the date of execution of agreement to sell (Ex.PW1/3). It is submitted that since the plaintiff was willing to pay the sale consideration to the defendants prior to the completion of three months from the date of execution of agreement to sell as is evident from the SPA executed by other co­owners dated 13.12.2006 which notes receipt of full sale consideration by all the sellers on or before 01.12.2006, the agreement to sell (Ex.PW1/3) did not stand rescinded as alleged by the defendants.

45. I have heard the submissions made and given my thoughtful considerations to the relevant clauses of agreement to sell (Ex.PW1/3). After going through the same I do not find any merit in the arguments of ld.counsel for the plaintiff that only one of the two conditions (that are making full and final payment or getting the requisite formalities completed) was required to be completed on or before completion of three months from the date of execution of the agreement to sell (Ex.PW1/3). The agreement to sell is very clear as to what were the two conditions required to be completed prior to the execution of the sale deed. First was the payment of full and final consideration and the second was getting the requisite formalities completed. The burden of both these conditions was on the plaintiff/buyer as per the agreement to sell. The agreement is also very clear on the aspect that these formalities were required to be completed on or before 01.12.2006 i.e. three months from the date of execution of the agreement to sell. Agreement to sell (Ex.PW1/3) also categorically provides Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 23 Of 43 that the time is the essence of the contract and thus the failure of either of the condition mentioned above would result in automatic rescission of the contract. The contract also provides the remedies available to the parties to the agreement in all possible situations of default by one party or the other. Having gone through the agreement to sell (Ex.PW1/3) as a whole I have no hesitation in holding that the parties intended the time to be the essence of the contract in the sense that the entire agreement to sell had to be acted upon on or before 01.12.2006 i.e. three months from the date of execution and mere offer of sale consideration by the plaintiff within the scheduled time, even if made, was not sufficient.

46. Now, the question which comes up for consideration is that who was at fault due to which the contract stood rescinded. As per plaintiff, it was the defendants who had refused to receive the sale consideration. Whereas, as per the defendants, it was the plaintiff who had failed to obtain necessary NOC from the concerned authority.

46. As per the case of the plaintiff, the defendants and other co­ owners handed over their application forms for obtaining NOC to the plaintiff in the first week of March­2007 and the NOC from the Revenue Department was received only on 18.08.2007 (Mark­B) which was valid for a period of 30 days.

47. However, as per the case of the defendants they have handed over the requisite application form duly filled up and signed to the plaintiff on 03.09.2006 itself (Mark­Y).

48. From the NOC (Mark B) there is no clarity as to on the basis of documents of which date the same has been issued. However, it is amply Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 24 Of 43 clear from the same that the application for NOC was made on 06.03.2007 and the NOC was received on 18.08.2007. Plaintiff did not produce on record the copies of the alleged NOC signed by defendants in the month of March­2007. Defendants, on the other hand have placed on record photocopy of the requisite form for NOC which was given by them to the plaintiff signed on 03.09.2006 for obtaining the NOC which is (Mark­X). Interestingly, there is no cross examination of DW1 on this aspect. Even DW3 who was a co­owner has relied upon the document Mark­X and supported the version of defendants on this aspect. Considering the fact that the plaintiff has not supported his case with a copy of the actual form for NOC received from defendants which could have been easily summoned from the concerned Revenue Department, if the copy of it was not available with the plaintiff, and comparing it with the fact that the defendants have supported their case with the copy of the application form signed by them on 03.09.2006 (Mark­X) which document has not been challenged by the plaintiff, I have no hesitation in holding that the stand of the defendants on this aspect is more probable than that of the plaintiff. Even otherwise, whatever may have been the situation it is an admitted fact that NOC was obtained only on 18.08.2007 i.e. much beyond the period of three months from the date of execution of agreement to sell (Ex.PW1/3). This delay clearly resulted in the agreement to sell being rescinded in terms with the conditions expressly laid down in agreement to sell (Ex.PW1/3).

49. Let us now consider the contention of the defendants that the sale deed (Ex.PW1/7) was actually executed by the other co­owners of the suit land pursuant to a second agreement to sell dated 04.12.2006 entered Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 25 Of 43 into between plaintiff and other co­owners except the defendants herein. DW1 has specifically deposed as regards the second agreement to sell dated 04.12.2006 and placed on record a copy of the same which is Mark ­Y. He also examined one of the co­owners Satish/DW3 who was a party to not only the first agreement dated 01.09.2006(Ex.PW1/3) but also the second agreement to sell dated 04.12.2006 (Mark­Y) as well as the sale deed Ex. PW1/7. DW3 has categorically deposed and supported the case of the defendants regarding execution of a second agreement to sell between the plaintiff and the other co­owners. Nothing material has come on record to doubt the testimony of DW3 who is an independent witness and well versed with the entire facts of the case.

50. On the other hand, PW1, when questioned about the execution of the second agreement to sell dated 04.12.2006, did not deny the same and merely stated that he was not aware about the same.

51. Moreover, the sale deed dated 24.08.2007 (Ex.PW1/7) as well as the SPA dated 13.12.2006 (Mark­A) are clearly executed after the alleged second agreement to sell dated 04.12.2006 (Mark Y) making the stand of the defendants in this regard quite probable. On comparison, it is also found that while agreement to sell dated 01.09.2006 (Ex.PW1/3) do not record the entire sale consideration but merely sale price of Rs. 80 lacs per acre. However, both the sale deed Ex.PW1/7 and agreement to sell dated 04.12.2006 (Mark­Y) record the exact sale consideration giving an impression that they have been prepared after due measurement of the land. This further gives probability to the contention of the defendants that before execution of the sale deed (Ex.PW1/7) a second agreement to sell dated Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 26 Of 43 04.12.2006 (Mark­Y) was executed between the plaintiff and the other co­ owners of the suit land except the defendants herein. This execution of the second agreement to sell clearly resulted in rescission of the earlier agreement to sell (Ex.PW1/3) .

52. An objection has been raised by the plaintiff that second agreement to sell dated 04.12.2006 (Mark­Y) is not signed by the plaintiff and is thus, clearly a manipulated document. I do not find any merit in this argument of Ld.counsel for the plaintiff as even the agreement to sell dated 01.09.2006 (Ex.PW1/3) does not bear the signatures on behalf of the plaintiff company.

53. It is a well settled law that mere form or manner of drafting of an agreement would not be a decisive factor and the real intention and conduct of the parties in proceeding in terms of the same would decide whether a concluded contract came into existence or not. When, even an oral agreement to sell is valid, then a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid.

54. The Apex Court while considering the form and requisite of an agreement to sell has held in Alka Bose vs Parmatma Devi and ors. 2009 AIR (SC) 1527 as under:­ "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 an 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 the parties. It Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 27 Of 43 can also be by a document in two parts, each party signing one copy and then exchanging the singed 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 and a vendor has a copy signed by the purchaser. Or it can be a by the vendor 3executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are 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. 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 the parties or the vendor alone (unless it is by a series of offers and counter ­offers by letters or other modes of recognized communication).

In India, an agreement of sale signed by the vendor alone and delivered to the purchase, and accepted by the purchaser, has always Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 28 Of 43 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."

55. In view of the discussion and reasons given above both these issues are decided in favour of the defendants and against the plaintiff holding that the agreement to sell dated 01.09.2006 (Ex.PW1/3) entered into between the parties in respect of the suit land was rescinded on account of failure of the defendants to obtain requisite permission/NOC within the schedule time and the time was the essence of the contract between the parties.

Issue no.2. Whether the defendants have committed the breach of the agreement to sell?OPP.

56. The onus to prove this issue was on the plaintiff. As per the case of the plaintiff the defendants had committed breach of the agreement to sell (Ex.PW1/3) as they failed to receive the balance sale consideration amount from the plaintiff.

57. As per the discussion on issues no. 1 & 4 above, it has already been held that the failure to perform the contract was on account of the plaintiff as it had failed to obtain requisite permission/NOC from the concerned department within the scheduled time. Accordingly, mere offer of sale consideration, even if made by the plaintiff and refusal thereof by the defendants as alleged is of no consequence.

58. Even otherwise, the plaintiff has miserably failed to plead and Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 29 Of 43 prove as to in what form, on which date and of exactly what amount the balance sale consideration was offered to the defendants by the plaintiff. Agreement to sell(Ex.PW1/3) is clear on the aspect that the sale consideration was fixed per acre and was to be calculated on the basis of the actual measurement of the suit land. There is no averment in the plaint that when such measurement of suit land was made, what was the final sale consideration amount calculated after measurement of the suit land and what was the proportionate sale consideration offered to the defendants qua their 1/30 share each in the suit land. In the absence of such pleadings and evidence there is nothing on record on the basis of which it can be held that the defendants had committed breach of agreement to sell by not accepting the payment offered to them as alleged by the plaintiff.

59. In view of the reasons given above and considering the overall evidence on record I have no hesitation in holding that the plaintiff has miserably failed to prove that the defendants had committed a breach of agreement to sell (Ex.PW1/3).

60. This issue is, accordingly, decided in favour of the defendants and against the plaintiff.

Issue no.3. Whether the plaintiff has been ready and willing to perform its part of the contract?OPP.

61. The onus to prove this issue was on the plaintiff. In view of my issuewise findings given in issues no.1,4 and 2 above, this issue has become redundant as the defendants have been successful in proving that the agreement to sell stood rescinded as the necessary permission/NOC was not Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 30 Of 43 obtained by the plaintiff in the scheduled time and the plaintiff has failed to prove that the defendants had caused breach of agreement (Ex.PW1/3). Still, I deem it appropriate to discuss the law and evidence on this issue.

62. For deciding the issue of readiness and willingness of the plaintiff to perform his part of the contract, I am guided by the decision of our own Hon' ble High Court of Delhi in Om Prakash Aggarwal Vs. Rajkumar Mittal order dated 28.02.1019 CS (OS) 1284/11 wherein the legal position on this aspect has been summed up in following words:­ "Section 16(C) of the Specific Relief Act, 1963

13. In a suit for specific performance, the plaintiff has to prove a valid sale agreement; the breach of the contract by the defendant; and readiness and willingness of the plaintiff to perform his part of the contract.

14. Section 16(c) of the Specific Relief Act mandates "readiness" and "willingness" on the part of the plaintiff as a condition precedent to seek specific performance. Section 16 (c) is reproduced herein under:­ Section 16 - Personal bars to relief:­ Specific performance of a contract can not be enforced in favour of a person­ xxx xxx xxx

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendants.

Explanation­ for the purposes of clause (c)­

(i) Where a contract involves the payment of money, it is not Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 31 Of 43 essential for the plaintiff to actually tender to the defendants or to deposit in court any money except when so directed by the court.

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

15. The "readiness" and "willingness" are two separate issues. The former depends on the availability of requisite funds whereas the letter depends on the intention of the purchaser.

(emphasis supplied)

16. The "readiness" has to be shown by the purchaser by documents relating to the availability of the funds whereas the intention has to be inferred from his conduct and circumstances.

17. If there is no availability of funds with the purchaser, he can be non­suited on the ground of non­readiness alone.

18. If the plaintiff is able to prove the availability of the balance sale consideration with him at the time fixed for performance in the agreement, it is an indication of his readiness but his willingness/intention to perform can not be inferred from readiness alone.

19. When the parties enter into an agreement relating to an immovable property, they amicably agree on the sale consideration, earnest money as well as the payment of the balance sale consideration. If both the parties are ready and willing, they usually complete the transaction within the stipulated time in the following manner:­ 19.1 The purchaser makes arrangement for the balance sale consideration within the stipulated time.

19.2 If the purchaser has to take loan from a bank or other financial institution, the purchaser has to complete all the formalities and obtain the loan before the stipulated date.

19.3 The purchaser informs the seller about the arrangement Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 32 Of 43 having been made.

19.4 The purchaser drafts the sale deed and sends the draft sale deed to the seller for approval.

19.5 The seller approves the draft sale deed and returns it back to the purchaser.

19.6 The purchaser purchases the requisite stamp duty for the sale deed.

19.7 The purchaser prepares the sale deed on the requisite stamp parpers.

19.8 Both the parties fix the date, time and place for payment of balance sale consideration, execution of sale deed, registration of the sale deed and handing over of the possession.

19.9 The parties complete the sale transaction on the agreed date, time and place.

19.10 In normal parlance, both the parties remain in touch either personally or through the property dealer.

20. The problem arises when one of the parties turns dishonest. However, the party in breach purports to be ready and willing and creates false evidence to that effect. At times, both the parties visit the office of Sub­Registrar on the last day of performance for obtaining a receipt of having attended the office of the Sub­ Registrar to later on contend that they were ready and willing to perform and were waiting for other party. If the seller is in breach, he creates false evidence of readiness to avoid specific performance by the purchaser and to illegally forfeit the earnest money. On the other hand, if the purchaser is in breach, he creates false evidence of readiness and willingness to file a case of specific performance.

21. It is the duty of the court to find out which party has not performed and is trying to wriggle out of the contract.

22. The court has to take into consideration the ordinary course of human conduct and common sense to draw necessary inference.

Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 33 Of 43 Drawing presumption is the backbone of the judicial process.

23. The silence or absence of correspondence by any party may be indicative of his dishonest intention. The dishonest intention of the seller can be inferred where the purchaser repeatedly contacts the seller for providing copies of the title documents or approval of the draft sale deed or fixing time for payment of balance sale consideration or execution/registration of the sale deed but the seller does not respond or avoids contact. On the other hand, the dishonest intention of the purchaser can be inferred where the purchaser does not contact the seller for approval of the sale deed and fixing the date, time and place for payment of balance sale consideration and execution/registration of the sale deed and unilaterally visits the office of the Sub­Registrar to prepare a false ground that he was ready and willing to complete the sale. At times, the dishonest purchaser relies on an application for loan to the bank or financial institutions without completing the necessary formalities for taking the loan in order to create a false ground of readiness. By the time the suit is finally decreed, the purchaser would get the property at the price fixed in the agreement although the prices would have increased manifold. The court has to minutely examine the conduct of the parties in order to ascertain the truth. The purchaser would not be entitled to a decree merely because he had the sale consideration with him and had visited the office of the Sub­Registrar before the time fixed in the agreement.

24. Upon refusal of the seller to complete the sale in terms of the agreement, the purchaser is expected to issue a notice to place on record the refusal on the part of the seller to furnish copies of the documents or giving a response to the draft sale deed or fixing the schedule for execution and registration of sale deed. The purchaser can also notify the date and time for visiting the office of the Sub­Registrar along with proof of the balance sale consideration to the seller. The purchaser is also expected to immediately file a suit for specific performance. Any delay in this regard may indicate his intention that he was not ready and willing and the court may refuse to grant specific performance.

25. In a rising market, the purchaser makes a profit by the delay.

Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 34 Of 43 He may tie down a seller by creating false excuses and use the money for buying some other property. If the purchaser is in a property trade, he may tie down several properties and then decide on which one he can make more profit on. These factors have to be taken into consideration by the Court for deciding the "readiness" and "willingness"

26. Once a seller has entered into an agreement to sell an immovable property, he is looking for the sale consideration within the period stipulated in the agreement. If he does not get the money within the stipulated period, his plan to use the money for whatever purpose he has intended would get frustrated. He may have a plan to buy some other property or for some other purpose. Secondly, the delay in completion of sale also causes injustice to the seller as the property prices keep on increasing in normal parlance. As such, more the delay, the seller may suffer loss due to rise in property price and greater is the profit which the purchaser would derive by trying down a property and not paying the sale consideration within the stipulated period."

63. The Apex court has also held in N.P. Thirugnanam Vs. Dr. R. Jagan Mohan Rao (1995) 5SCC 115 that the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances to adjudge the readiness and willingness of the plaintiff. The amount of balance sale consideration must be proved to be available with the purchaser right from the date of execution till the date of decree. The continuous readiness and the willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance.

64. Coming to the facts of the present case, I have no hesitation in holding that the plaintiff was not ready to perform the contract within the scheduled time as he has not applied for or obtained the necessary Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 35 Of 43 permission/NOC from the concerned department. As regards its readiness and willingness to pay the balance sale consideration to the defendants, although it is correct that it had executed the sale deed with the other co­ owners of the suit land in August­2007 showing its ability to make the payment on the said date but fact remains that it had not specifically stated as to what was the sale consideration qua the 1/30 share each of the defendants which it was and is willing to pay to them. As discussed above, the agreement to sell Ex.PW1/3 merely mentions sale consideration as Rs. 80 lacs per acre for an area of about 20 acres and records that the sale consideration has to be calculated and has to be paid as per the actual measurement of the land. There are no pleadings of the plaintiff as to what was the exact measurement of the land and what was the portion of the sale consideration payable or offered to the defendants. Accordingly, mere pleadings of the plaintiff to the effect that it was ready and willing to perform its part of the contract without clearly defining the terms is of no benefit to the plaintiff.

65. In view of the reasons given above, this issue is decided in favour of the defendants and against the plaintiff. DAMAGES:

66. Although, separate issue regarding damages has not been framed but since the plaintiff has claimed the relief of damages of Rs. 1,00,00,000/­ in alternative of specific performance, the same is discussed hereinunder:­

67. Before giving my findings on the relief of damages, as prayed, it is necessary to discuss the relevant provisions of law and their Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 36 Of 43 interpretations as given by the Superior Courts in respect of claim of parties to damages in such like agreements for sale of immovable properties.

68. The relevant provision is contained in Section 74 of The Indian Contract Act 1872 which is reproduced herein under for the sake of clarity:­ 74: ''Compensation for breach of contract where penalty stipulated for­ when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for''.

69. Even at the cost of repetition it is stated that as per Section 74 of the Indian Contract Act 1872, the party complaining the breach is entitled to receive from the party who has broken the contract a reasonable compensation and in the case in hand, the plaintiff/buyer has been held to be the party who is responsible for breach of the contract/its rescission as per my findings given in Issues no.1,4 & 2 above.

70. Section 74 of the Indian Contract Act,1872 has been interpreted by our Superior Courts in respect of the property transactions as is the case in hand in various decisions.

71. The Constitution Bench Judgment of the Apex Court reported as ''Fateh Chand vs Balkishan Dass,(1964) 1 SCR 515'' has dealt with Section 74 of the Indian Contract Act, 1872, at length. Para 10 of the judgment is relevant and read as under:­ ''10. Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases (i) where the Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 37 Of 43 contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a contract containing a convenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by Section 74 reasonable compensation not exceeding the penalty stipulated for. In assessing damages the court has, subject to the limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of the case. Jurisdiction of the court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated; but compensation has to be reasonable, and that imposes upon the court duty to award compensation according to the settled principles. The Section undoubtedly says that the aggrieved is entitled to receive compensation from the party who has broken the contract, whether or not actual damages or loss is proved to have been caused by the breach. Thereby it merely dispenses with the proof of "actual loss or damage", it does not justify the award of compensation when in consequence of the breach of contract no legal injury at all has resulted, because compensation for breach can be awarded to make good loss or damages which naturally arose in the usual course of things, or which the parties knew when they made the contact, to be likely to result from the breach".

72. Relying upon the judgment of Fateh Chand (Supra), our own High Court in ''Anand Singh Vs. Anurag Bareja RFA No. 480/2011 dated 28.11.2011 held as under:­ ''3. It is therefore, clear that a seller under an agreement to sell, when he has received monies under the agreement to sell, can not forfeit such amount, unless loss is pleaded and Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 38 Of 43 proved by him. It is the respondents/defendants who have to plead and prove entitlement to forfeiture on account of loss having been caused on account of breach of contract by the appellant/proposed buyer. Thus even assuming the appellant/plaintiff/proposed buyer is guilty of breach of contract, yet, the respondents/defendants will have to raise appropriate pleadings with respect to loss, get an issue framed, and thereafter lead evidence on such issue to show that losses have been caused to them on account of breach of agreement to sell by the appellant/plaintiff/proposed buyer, entitling the forfeiture of the amount.

73. In Anand Singh's case (Supra) the buyer was held guilty of breach of contract, still the seller was not permitted to forfeit the entire advance amount paid to him and suit of the plaintiff/ buyer for refund of advance money of Rs.10,00,000/­ was decreed for a sum of Rs. 9,50,000/­ alongwith interest @ 12% per annum simple.

74. Similarly, in Vandana Jain Vs. Rita Mathur & Ors. RFA No. 38/2018 decided on 20.04.2018; it has been held that forfeiture of the advance amount paid to the seller is allowed only to the extent of loss caused to the seller on account of the breach of contract by the buyer.

75. Law has been well settled in the above referred decisions that the plaintiff has to specifically plead and prove the loss suffered by him on account of breach of contract by the defendant. Issue is required to be framed on this aspect and evidence led by the parties. Only thereafter, the court has to decide if the seller is entitled to forfeit any amount of the advance paid or the buyer is entitled to receive any compensation.

76. In the present case, indubitable position which has emerged from record is that there is no pleading of the plaintiff of any loss having Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 39 Of 43 been caused to him on account of non­execution the contract (Ex.PW1/3). There is also no issue framed on this aspect and obviously no evidence led on behalf of the plaintiff to show how breach of contract has caused loss to it entitling it to receive the compensation/damages, as prayed. Mere bald arguments addressed in this regard are insufficient to give any relief to the plaintiff in the absence of pleadings and evidence.

77. Moreover, in the present case, in my findings on issues no.1,4 & 2 above, it has been clearly held that it was the plaintiff who was guilty of breach of contract and not vice versa. The agreement (Ex.PW1/3) automatically stood rescinded on failure of the plaintiff to comply with the terms within the stipulated period. So, mere submission that plaintiff should be awarded damages on account of non­performance of the contract does not inspire the confidence of the court.

78. In view of the discussion and reasons given above, I have no hesitation in holding that the plaintiff has miserably failed to prove his right to receive any sum towards the damages, as prayed.

79. The counter argument of ld. Counsel for the defendants is that it was in fact defendants who had suffered losses because of non­execution of the agreement to sale. The time was the essence of the contract as per Clause­9 of the agreement (Ex.PW1/3). The plaintiff did not perform his part of the contract with the stipulated time. It is submitted that as per section 75 of Indian Contract Act, 1872, the party rightfully rescinding the contract is entitled to compensation. Accordingly, it is prayed that substantial justice requires that compensation be awarded in favour of the defendant and as per Clause­9 of the agreement to sell (Ex.PW1/3), Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 40 Of 43 defendants have a right to forfeit the amount of bayana received by them i.e. Rs. 5,50,000/­ each.

80. It is needless to state that there are no such pleading of the defendant, nor any issue has been framed on this aspect nor there is any evidence led by the parties on the same. No counter claim has been filed by the defendant. Admittedly, plaintiff had paid an earnest money of Rs. 5,50,000/­ to each of the defendant on 01.09.2006 and the defendants must have earned interest on the said amount which is sufficient to compensate them for loss, if any, suffered by them. Defendants are also, thus, not entitled to receive any further compensation from the plaintiff. Even otherwise, they have alleged that they were never willing to sell their portion of the suit land to the plaintiff from the very beginning. Thus, rescission of contract for whatever reason was in their interest.

81. Having held that none of the parties is entitled to receive any compensation from the other for non­execution/breach of agreement (Ex.PW1/3), this court is still required to balance the interest of both the parties as a sum of Rs. 5,50,000/­ has been admittedly given by plaintiff to each of the defendant for purchase of a property, which transaction could not fructify. Equity demands that no one should be unjustly enriched at the cost of the other. Retaining the advance amount paid by the plaintiff to the defendant would amount to unjust enrichment of the defendants at the cost of the plaintiff.

82. In view of the law laid down in the decisions cited above, merely because the plaintiff/buyer has been at fault, it would not be lawful for the defendant/seller to forfeit the entire amount of the earnest money as Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 41 Of 43 it would amount to a penalty.

83. Considering the overall facts of the case, I am of the opinion that justice requires that each of the defendant refunds the earnest money of Rs. 5,50,000/­ to the plaintiff without any interest within three months from today. However, this amount will carry a future interest @ 10% p.a. (simple), if the payment is delayed beyond a period of three months i.e. w.e.f. 07.09.2022 till its realization. The issue of damages is accordingly, decided in favour of the plaintiff and against the defendants holding that the plaintiff is entitled to a money decree for a sum of Rs. 5,50,000/­ against each of the defendant payable within three months from today with future interest @ 10% p.a. (simple), if the payment is delayed beyond a period of three months i.e. w.e.f. 07.09.2022 till its realization.

RELIEF:

84. In view of my issue wise findings given above, the suit of the plaintiff qua the relief of specific performance, possession and permanent injunction is dismissed and following relief is granted in his favour and against each of the defendants:­

1. A money decree for a sum of Rs.

5,50,000/­ each (Rs. Five lacs fifty thousand only).

2. Future interest @ 10% per annum (simple), if the payment is delayed beyond a period of three Civ DJ: 613271/16 M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh 42 Of 43 months i.e. w.e.f. 07.09.2022 till its realization.

3. No order as to costs.

85. Decree sheet be prepared accordingly.

86. File be consigned to record room after due compliance. 

                                                     SHIVALI             Digitally signed by
                                                                         SHIVALI SHARMA

                                                     SHARMA              Date: 2022.06.07
                                                                         14:47:56 +0530
Announced in the open court                          (SHIVALI SHARMA)
on: 07.06.2022                                    ADJ­03/WEST/THC/DELHI




Civ DJ: 613271/16
M/s Sadhvi Properties Pvt. Ltd vs Randhir Singh               43 Of 43