Delhi District Court
Sh. Dev Raj vs Sh. Ram Pal on 18 August, 2011
IN THE COURT OF SH. HARJYOT SINGH BHALLA :
CIVIL JUDGE1 ,SOUTH DISTRICT ,NEW DELHI
Suit No. 414/2010
Case ID No.02403C0017972009.
Sh. Dev Raj,
S/o late Sh. Raghubir,
R/o Village Madanpur Khadar,
New Delhi. .................plaintiff
Versus
1 Sh. Ram Pal,
S/o late Sh. Daya Ram,
R/o Chhuria Mohalla,
Village Tekhand, New Delhi.
At present:
R/o G62, Saket,
New Delhi.
2 Sh. Hem Karan,
S/o late Sh. Daya Ram,
R/o Chhuria Mohalla,
Village Tekhand,
New Delhi.
At present:
R/o G62, Saket,
New Delhi. ...............defendants
Dev Raj Vs Ram Pal & Anr 1 of 29
Suit no. 414/2010
Date of Institution : 27.01.2009
Date of reserving the Order : 08.07.2011
Date of pronouncement : 18.08.2011
JUDGMENT:
By this judgment I shall dispose of the above suit filed by the plaintiff seeking the relief of Specific Performance of Agreement to Sell dated 29.01.2006 and Permanent Injunction. Averments Culled Out from the Pleading:
Plaintiff's case:
1 As per the plaint, the defendants represented themselves as coowners in 212 sq. yards of land situated in Khasra Numbers 194 and 1101/19, Madanpur Khadar Extension, New Delhi. As per the plaint the Defendants are coowners in 212 sq. Yards alongwith their brother Shyam Lal and nephew Devender. The total land in the aforesaid 2 khasra numbers is stated to be 3400 sq. yards and the share of the Defendants and Shyam Lal and Devender put together is stated to be 212 sq. yards.
3 That on 29.01.2006, the Defendants approached the plaintiff and represented that, they alongwith their brother Shyam Lal Dev Raj Vs Ram Pal & Anr 2 of 29 Suit no. 414/2010 and nephew Devender son of Paras are owners of 212 sq. yard of land out of 3400sq.yrds in aforesaid Khasra numbers.
4 That the defendants offered to sell the said land and plaintiff agreed to purchase the same and accordingly the plaintiff paid a sum of Rs.1,50,000/ to the Defendants as advance money. The defendants executed an agreement to sellcumreceipt with the understanding that the same would be signed by the other cosharers Shyam Lal and Devender as well. It is stated that thereafter the defendants did not turn up to fulfill their commitment.
5 As per the Plaint, every time the plaintiff would request the defendants to get the agreement executed by the other cosharers the defendants would make excuses and postpone the same. The plaintiff served the defendants with the legal notice dated 07.07.2008 however, the defendants did not reply to the same.
6 It is stated that as per the agreement the defendants are owners of 106 sq. yards of land and were entitled to Rs.1,06,000/ only as total consideration for their share and were paid 44,000/ in excess.
The plaintiff has therefore paid full consideration amount against the share of the defendants who are under the obligation to execute the sale deed in respect of the land measuring 106 sq. yards.
Dev Raj Vs Ram Pal & Anr 3 of 29
Suit no. 414/2010
7 Plaintiff has been approaching the defendants to perform
their part of the obligation but the defendants made futile attempts to avoid the same by approaching different forums. The defendants have started threatening the plaintiff that they would sell their share of land to some 3rd person. Hence, the present suit for specific performance and contract and injunction has been filed.
8 It is stated that all other coowners of 3400 sq. yards of land, except for the 212 sq. yards agreed to be sold by Defendants, have already sold their rights to the plaintiff and delivered possession of the same. It is stated that the plaintiff got the land purchased by him, from others, surrounded by a boundary wall. 9 It is stated that the cause of action arose in favour of the plaintiff firstly on 29.01.2006 when the receipt was executed. Thereafter, it arose as and when a request was made to the defendants to perform their part of the obligation as also when notice dated 07.07.2008 was sent. Cause of action further arose when the defendants threatened to create third party interest in the suit land. 10 Suit has been valued for the purposes of Court fees and jurisdiction for all the reliefs including recovery of Rs.44,000/ at Rs. 6125/, even though there is no prayer for recovery of the amount of Dev Raj Vs Ram Pal & Anr 4 of 29 Suit no. 414/2010 Rs.44,000/.
Defendants' case:
11 The defendants have filed their written statement. It is averred that this Court has no territorial jurisdiction. The suit is bad for non joinder of necessary parties as other coowners have not been impleaded.
12 The defendants have submitted that the plaintiff is guilty of concealing material facts. It is submitted that the agreement to sell was arrived at the rate of Rs.6,000/ per sq. yards for the share of defendants alone. The Area of land in share of the Defendants in the said Khasra numbers is stated to be 71 sq. yards each. The total consideration money was agreed to be Rs.8,52,000/ out of which Rs. 1,50,000/ was received as part payment. It is sated that the plaintiff was known to the defendants even before the execution of the agreement. The agreement was arrived at in the village itself and as there was not typing machine in the village the plaintiff requested the defendants to sign on blank paper with assurance that the plaintiff would get the agreement to sell typed in the market. The defendants had accordingly, put their signatures on blank papers which had 2 revenue stamps. The defendants requested for the copy of the said Dev Raj Vs Ram Pal & Anr 5 of 29 Suit no. 414/2010 receipt. Request was accepted however, the same was never provided. On merits it has been stated that the agreement to sell has been wrongly prepared as the signatures were put on blank papers in the circumstances hereinabove described. It was further assured by the plaintiff that he was not having the balance money and would pay the balance money after obtaining a loan and shall get the documents executed. As per the Defendants the aforesaid facts have been concealed by the Plaintiff.
13 It is further stated that the defendants had executed the agreement only qua their own share and not for the share of Devender or Shyam Lal. The averments that the other coowners have sold their respective shares of the property to the plaintiff and the possession has been handed over to the plaintiff have been denied. The existence of boundary wall has been denied.
14 Defendants have denied all allegations and averments made in the plaint. It has been further submitted that the agreement was oral and it was orally agreed to sell the land for sum of Rs. 8,52,000/ on the rate of Rs.6,000 per sq. yard and that the same would be paid within 6 months of the agreement. It has been submitted that the plaintiff has failed to perform his part of the Dev Raj Vs Ram Pal & Anr 6 of 29 Suit no. 414/2010 agreement by not paying the balance amount. The defendants had approached the plaintiff to pay the balance amount and get the sale deed executed but the plaintiff did not perform his part of the agreement. It has been averred that since the plaintiff failed to perform his part of the contract the money was forfeited as per oral agreement. 15 It has been further averred that the defendants had intimated the plaintiff that they would initiate legal action against the plaintiff for forging the document/agreement on the blank papers. The plaintiff brought some villagers for settling the matter peacefully and therefore the defendants did not go to PS for lodging a FIR. It is stated that the market value of the land has increased to more than Rs. 16,000 per sq. yard.
16 The averment that the agreement was qua the defendants' share of 106 sq. yard have also been denied claiming that the share of the Defendants' is 142 sq. yards.
Replication:
17 Plaintiff has filed his replication denying the allegations made in the written statement. Plaintiff has stated that the defendants have become dishonest because of the rise in price. The plaintiff relies upon the copy of Khatoni and submits that the same records the area Dev Raj Vs Ram Pal & Anr 7 of 29 Suit no. 414/2010 of land to which the defendants are entitled.
18 On the basis of the pleadings of the party the following issues were framed by my Ld. Predecessor on 10.09.2009:
1) Whether the defendants entered into an agreement to sell the suit property with the plaintiff on 20.01.2006? OPP
2) Whether the defendants failed to perform their part of obligation under the agreement dated 29.01.2006? OPP
3) Whether the suit is bad for nonjoinder of necessary parties?OPD
4) Whether the plaintiff has not approached this court with clean hands?OPD
5) Whether the plaintiff is entitled for any relief, if so, what relief?
19 The plaintiff entered the witness box and also examined one Sunil Kumar and Gajraj Singh who are witnesses to the alleged agreement to sell cum receipt, as well as the Patwari of the area Sh. Giri Raj Singh (PW4) in support of his case. The defendant no.2 entered the witness box on behalf of the defendants. My issue wise findings are as follows.
Dev Raj Vs Ram Pal & Anr 8 of 29
Suit no. 414/2010
20 Issue no. 3: Whether the suit is bad for non joinder of
necessary parties?Onus of proving this issue was on the defendants. The defendants failed to lead any evidence on this aspect. On the contrary the case of the defendants is that agreement was entered into only with the defendants for the entire share of defendants. Even the Plaintiff's case is that the Defendants had entered into the agreement and signatures of the other coowners were to be obtained by the Defendants. The Defendants having failed to so obtain the signatures of the other coowners, the suit has been filed qua the share of the Defendants alone. In view of the stand of the parties, Shyam Lal and Devender are not necessary parties. This issue is accordingly decided against the defendants.
21 Issue no.4. Whether the plaintiff has not approached the court with clean hands? Onus of proving this issue was on the Defendants. The case of the plaintiff is based on the agreement to sell cum receipt dated 26.1.2006 Ex.PW1/1. The plaint is devoid of any averments as to the existence of an oral agreement or oral terms and conditions in addition to the written agreement to sell Ex. PW1/1. The ld. Counsel for defendants has submitted that the plaintiff has failed to set up the entire agreement between the parties in the plaint Dev Raj Vs Ram Pal & Anr 9 of 29 Suit no. 414/2010 and has concealed the agreement. Counsel has relied upon the cross examination of PW1 carried out on 07.03.2011. Counsel has also submitted that the witness has concealed the fact that the suit property is agricultural land and that the entire story about the shares of Shyam Lal and Devender is also cooked up as is apparent from the cross examination.
22 I have perused the pleadings and evidence. It cannot be doubted that plaintiff has not set up any contemporaneous oral terms and conditions to Ex.PW1/1. However, in his crossexamination the Plaintiff appearing as witness PW1 states:
"On 29.01.2006 during the talk regarding sale and purchase with Hem Karan and Ram Pal it was decided regarding the price of land, extent of their share and the time period for completion of the transaction. It was decided that if the transaction is not completed within the stipulated period by the sellers the matter will be settled in court. It was also agreed that if the money is not paid within the stipulated period the advance shall be forfeited." (Emphasis Supplied)
23 On being confronted the witness states that the time period for completing the transaction and the consequences for failure on part of the Plaintiff to pay the balance amount or on part of the Dev Raj Vs Ram Pal & Anr 10 of 29 Suit no. 414/2010 defendants to register the land are not mentioned in Ex. PW1/1. On further crossexamination the witness admits that defendants had to get the sale deed registered in his favour within 2, 2 ½, 3 months and he further states that he had been visiting them for 5 to 6 months for execution of documents.
24 In my view the plaintiff has not come out clean regarding the terms and conditions of the alleged agreement to sell. 25 The deposition of the plaintiff qua the oral conditions is further belied by the two witnesses to the Ex.PW1/1 being PW2 and PW3. Both the witnesses were crossexamined on 11.02.2011. 26 The witnesses in their identical affidavits have deposed that Ex.PW1/1 was prepared then and there on 29.01.2006 after negotiations and assurances. However, in their crossexamination both the witnesses state that there were no talks between the plaintiff and defendants as to what would happen in case any of them failed to perform their part of the contract. The testimony of PW2 and PW3 is completely contrary to the statement of PW1 on the aspect of oral conditions. They have not supported the case of the plaintiff as far as the aspect of negotiations are concerned and rather contradicted his evidence.
Dev Raj Vs Ram Pal & Anr 11 of 29
Suit no. 414/2010
27 There is yet another aspect. The case of the plaintiff is
that the defendants executed an agreement to sell cum receipt, with the understanding to get the same signed by the other cosharers Shyam Lal and Devender. It is the case of the plaintiff that the defendants never turned up with the agreement executed by the other cosharers. In his crossexamination the plaintiff has stated that on 29.06.2006 he had enquired from defendant no. 1 and 2 about Shyam Lal and Devender and was told that they were sitting behind and the defendants will get the receipts signed by Shyam Lal and Devender. He then states that he did not know them so he cannot tell whether they were personally present or not. He again said that the defendants did not tell him that Shyam Lal and Devender were sitting behind. However, PW2 in his cross examination stated that the defendants informed the plaintiff that Shyam Lal and Devender were coming. 28 In my view the story that the defendants had executed PW1/1 with the understanding to get the same signed by the other co sharers also cannot be believed for the following reasons:
a) If Ex.PW1/1 was yet to be signed by Shyam Lal and Devender then it could not have been in possession of the plaintiff herein.
Dev Raj Vs Ram Pal & Anr 12 of 29
Suit no. 414/2010
b) In case Shyam Lal and Devender were sitting
behind then there was every occasion to get the signatures of all four coowners on the receipt on the same day itself, which signatures are not there.
c) It cannot be said that a separate agreement was to be executed between the plaintiff and Shyam Lal and Devender while leaving the Ex.PW1/1 as agreement between plaintiff and defendants no. 1 and 2 as that is not the case pleaded by the plaintiff.
29 Thus, in my view the Plaintiff has not come out clean and his evidence is full of improvements and contradictions and his pleadings do not even disclose the entire contract between the parties, the oral terms and conditions whereof he was bound to plead. This issue is accordingly decided against the plaintiff and in favour of the defendant.
30 Issue no. 1: Whether the defendants entered into an agreement to sell the suit property with the plaintiff on 29.01.2006? Issue no.2: Whether the defendants failed to perform their part of obligation under the agreement dated 29.1.2006? Onus of proving both these issues was on the Plaintiff.
Dev Raj Vs Ram Pal & Anr 13 of 29
Suit no. 414/2010
31 The defendants have not disputed that an agreement was
entered into on 29.01.2006 with the plaintiff. In fact it is the case of the defendants that they had agreed to sell the land they owned in khasra no. 194 and 195. However, the question remains as to what was the agreement entered into between the plaintiff and the defendants on 29.01.2006. As already indicated in the findings recorded on the issue no. 4 hereinabove, the plaintiff has in his evidence himself admitted certain contemporaneous oral terms and conditions to the alleged contract for which no specific pleadings are found in the plaint. Therefore, as per the plaintiff himself the Ex. PW1/1 did not constitute the complete agreement between the parties. 32 There is yet another way of looking at the matter. The Ex.PW1/1 is titled as a bayana receipt. The said document records that the defendant no. 1 and 2 alongwith Shyam Lal and Devender have sold the land in Madan Pur Khadar Extn. to Dev Raj (plaintiff herein) @ Rs.1,000/ per sq. yds. The document further records that Rs.1,50,000/ has been received as bayana. The land is clear and the khasra number is 194, 1101/195. The document further records that the receipt has been drawn for the purposes of memory/record to be used at appropriate stage. The document is signed only by the Dev Raj Vs Ram Pal & Anr 14 of 29 Suit no. 414/2010 defendants and not by Shyam Lal and Devender. The document does not indicate any other terms and conditions. It does not indicate when the balance payment has to be made. It also does not indicate the outer date by when the sale is to be concluded or sale documents have to be executed. The document also does not indicate the serial order in which the parties have to perform their obligations. 33 The evidence of the defendant's witness that the plaintiff asked the defendants to accompany him to the market to get the agreement typed as there was no typing facility in the village and that due to urgency the plaintiff asked the defendants to sign on the receipt with the understanding that the agreement shall be typed later and that the signatures were made on blank stamped paper brought by the plaintiff has not been probed nor questioned by the plaintiff during crossexamination of DW1. Not even a single suggestion that the story about signatures being obtained on blank documents was an after thought or false was put to the witness. The defendants have also been able to show that there was an oral term that in case the balance was not paid in six months and the sale deed was not registered earned money will be forfeited. This term was not pleaded by the plaintiff but established successfully by the defendants. The Ex.PW1/1 when Dev Raj Vs Ram Pal & Anr 15 of 29 Suit no. 414/2010 viewed in the light of the above circumstances and contradictions, that too, when the same has been written in the black ink and signed by all in blue ink, casts a serious doubt as to the probability of the truth of the version of the plaintiff visavis the version of the defendants. The fact that no reply was given to the legal notice also loses significance in view of the evidence that has come on record. 34 In my view the plaintiff has failed to prove that the Ex.PW1/1 was the agreement to Sell dated 29.01.2006 entered into between the parties as pleaded by him. He has failed to set up and prove the actual Agreement to Sell between the parties. 35 The Ex.PW1/1 is even otherwise not an agreement to sell as it lacks the essential requisites of an agreement to sell. In Sobhag Narain Mathur vs Pragya Agrawal & Ors 141 (2007) DLT 356 a Ld. Single Judge of the Delhi High Court has summarised the essentials of an Agreement to Sell immovable property and I quote:
"20. In the present case, a perusal of the Bayana Reciept would show that it embodies all the essential terms necessary to constitute the agreement to sell. The said Bayana receipt:
1. Identifies the property agreed to be sold with its area.
2. Identifies the owner, who has agreed to sell.
Dev Raj Vs Ram Pal & Anr 16 of 29 Suit no. 414/2010
3. Identifies the purchaser.
4. Clearly states the total consideration for which the parties had agreed to complete the transfer of the property.
5. Clearly quantifies the total earnest money deposit to be made by the purchaser with the seller and the amount deposited at the time of execution of the Bayana receipt, and the date by which the balance earnest money deposit would be made.
6. The final date for making of payment and conclusion of the transaction."
The Ex. PW1/1 does not contain the 6th ingredient i. e. it does not specify the final date for making of payment and the conclusion of the transaction. The said document also does not specify categorically the 1st and 4th of the aforesaid ingredients. Neither the total area nor the total consideration amount has been indicated therein. Though the total consideration and the total area can always be ascertained even otherwise, one being a matter of record and the other of arithmetic calculation. However, the 6th ingredient cannot be ascertained from Ex. PW1/1 neither from the plaint but has been set up only in the evidence of the plaintiff. Therefore, in my view the 6th essential ingredient has neither been pleaded nor proved and in the absence whereof the receipt cannot be treated as an agreement to Dev Raj Vs Ram Pal & Anr 17 of 29 Suit no. 414/2010 sell.
The issue no.1 is also decided against the plaintiff and in favour of the defendants.
36 As far as issue no.2 is concerned the plaintiff has nowhere pleaded that he requested the defendants herein to execute a sale deed in respect of their share in the khasra no. 194, 1101/195 Madan Pur Khadar Extension till the legal notice dt. 7.7.2008 was sent. The averments in para 4 are that the plaintiff requested the defendants to get the agreement executed by the cosharers. The plaintiff thus never asked the defendants herein to transfer their share to the plaintiff while giving up his claim against the other coowners of the land i. e. Shyam Lal and Devender. The document Ex.PW1/1 was executed in January 2006. However, notice was sent on 7th July 2008 more than 2½ years after the alleged agreement.
37 There is yet another aspect. The plaintiff has claimed that the defendants were owners of only 106 sq. yards of land i.e. 53 sq. yards each. He examined PW4 the Patwari of the area to prove his claim. The Patwari deposed in his examination in chief that Ram Pal and Hem Karan were only having ownership of 1/48th share in khasra no. 194 (116) and 1101/195 (112) village Madan Pur Khadar.
Dev Raj Vs Ram Pal & Anr 18 of 29
Suit no. 414/2010
38 During his cross examination PW4 stated that the suit
property is not part of village Abadi but unauthorised colony. The witness on further cross examination states that Devla had 2/8th share in the 3400 sq. yards plot which comes to 850 sq. yards which was inherited equally by his two sons and son of a predeceased son being 1/3rd share each. The defendants were also able to show that though the enteries in the khatoni PW4/A show the share of Daya Ram, Kannad both sons of Devla as one part and the share of Prakash grand son of Devla as one part the same were later on amended. The defendants have proved that the entry no.7 of the change in the record of rights shows that the share of Daya Ram, Kannad and Prakash was to be together read as two parts. Since all three would get 1/3 rd share out of 850 sq. yards the share of all three would be 283 sq. yards. Since Daya Ram had four sons the share of defendants herein would be 1/4th of 283 sq. yards i. e. 71 sq. yards. Thus the defendants were able to show that their share was not 106 sq. yards as alleged but 142 sq. yards.
39 Counsel for the plaintiff being faced with this situation submitted that the agreement referred to the entire share of the defendants and not 106 sq. yards specifically. He submitted that the Dev Raj Vs Ram Pal & Anr 19 of 29 Suit no. 414/2010 amount already paid was sufficient to cover even 142 sq. yards and the suit ought to be decreed in favour of the plaintiff. 40 It is a matter of record that the plaintiff's legal notice dated 7.7.2008 Ex. PW1/3 specifically referred to the defendants' share as 106 sq. yards. The notice also called upon the defendants to execute sale deed for 106 sq. yards only simultaneously calling upon the defendants to refund the amount of Rs.44,000/. In my view, the defendants were therefore never called upon to execute sale deed for 142 sq. yards. Therefore, no proper notice was served upon the defendants to execute the sale deed in respect of the entire share held by them in the land and on the contrary there was also a demand for refund of Rs.44,000/. It cannot be said that the defendants failed to perform their part of the contract.
41 This issue is also decided against the plaintiff and in favour of the defendants.
42 Issue no.5: Whether the plaintiff is entitled to any relief, if so, what relief? At this juncture it will be pertinent to note some of the settled legal propositions with regard to the relief of specific performance of contract.
43 It is a settled proposition on law that in a suit for specific
Dev Raj Vs Ram Pal & Anr 20 of 29
Suit no. 414/2010
performance a plaintiff cannot be allowed to depart from the case as set up in the plaint and therefore if one contract is set up, but another contract is established the suit is liable to be dismissed. Reference may be made to the decision in Hawkins vs Maltby (1867) 3 Ch. A. 188 cited with approval by the Delhi High Court in Raj Rani Bhasin vs. S. Kartar Singh AIR 1975 Del 137.
44 As I have already concluded that:
(a)the Plaintiff has failed to plead the real contract between the parties and, on the basis of evidence recorded, a different Agreement has been established; and
(b)the plaintiff had been insisting on execution of Sale deed qua 106 sq. yards of land whereas the entire share of the Defendants alleged to be the subject matter of agreement to Sell comes out to 142 sq. yards;
in my view Plaintiff has not only failed to prove that Defendants failed to perform their part of the contract, but on the other hand it has been proved on preponderance of probabilities that the Plaintiff has failed to aver and prove that he was always ready and willing to perform his Dev Raj Vs Ram Pal & Anr 21 of 29 Suit no. 414/2010 part of the contract.
45 Reference may be made to a decision of the Division Bench of the Bombay High Court in Bharat B. and D. Mfg. Co. Pvt. Ltd., M/s. v. H. P. Corpn. Ltd. reported as AIR 1989 Bom 1701, wherein an earlier decision of the Calcutta High Court has been cited with approval. The relevant portion is as follows:
"5. At this stage it is convenient to refer to the judgment of a learned Single Judge of Calcutta High Court in Md. Ziaul Haque v. Calcutta Vyaper Pratisthan, AIR 1966 Cal 605. The learned Single Judge, it must be noted, was dealing with the provisions of the Specific Relief Act, 1877. Even so, he observed :
"Readiness and willingness to perform the agreement must be readiness and willingness to perform not as the plaintiff wished it nor in the way that the plaintiff evidenced it prior to the institution of the suit, nor in the way the plaintiff wanted to fashion it at the trial but whether the plaintiff was really ready and willing to perform the real agreement between the parties. The words "real agreement" would mean either the agreement that the plaintiff and the defendant had between the parties or it would mean the real agreement which Dev Raj Vs Ram Pal & Anr 22 of 29 Suit no. 414/2010 the Court finds it to be real agreement. The question of readiness and willingness however would assume different aspects in relation to the real agreement. If at the trial it transpires that the real agreement is not what the plaintiff alleges and the readiness and willingness which the plaintiff displayed was in relation to a different agreement, the plaintiff would be within the mischief of the doctrine of readiness and willingness .............".(Emphasis Supplied)
46 I am also not in agreement with the contention that there was nothing left for the Plaintiff to perform under the contract. Plaintiff has neither pleaded nor proved that the plaintiff was ready and willing to get the sale deed executed by the defendants as per the agreement as the balance of sale consideration was not paid, stamps were not purchased and draft sale deed was never prepared or sent to the Defendants. These are relevant facts and ought to have been pleaded. Reference may be made to the decision in P. Prabhakar Rao v. Y. Venkata Mohan Rao AIR 2006 AP 405.
47 There is yet another aspect which requires consideration. The agreement is stated to be of 29.1.2006. Even as per the Plaintiff's Dev Raj Vs Ram Pal & Anr 23 of 29 Suit no. 414/2010 own admission in the cross examination the agreement was to be performed in its entirety within a period of six months. Yet the legal notice demanding performance was sent on 7.7.2008 and the suit was filed only on 27.1.09. In my view the Plaintiff has not acted promptly and has slept over the matter and is guilty of delay and laches. This conduct of the Plaintiff also has to be kept in contemplation and, coupled with the findings already recorded, disentitles the plaintiff to the equitable relief of Specific Performance of contract. Reference may be made to the decision of the Patna High Court in Badru Nisha v. Yogendra Prasad Sinha AIR 2006 PATNA 71 as well as the decision of the Apex Court in K. S. Vidyanadam and others v. Vairavan (1997) 3 SCC 1 : (AIR 1997 SC 1751).
48 In K. S. Vidyanadam (supra) the Apex Court has laid down that in the case of agreement of sale relating to immovable property time is not essence of the contract, however, Court is required to look into all the relevant circumstances in order to find out whether it is proper to decree the specific performance. Though Article 54 of Limitation Act provides limitation of three years from the date of refusal to execute the sale deed, but it should be performed within reasonable time having regard to terms of contract prescribing Dev Raj Vs Ram Pal & Anr 24 of 29 Suit no. 414/2010 a time limit. Steep rise in the price of the property would be relevant factor for the Court to decide whether delay or laches on part of the plaintiff to perform his part of contract would disentitled him the relief of specific performance. The Apex Court observed and I quote : "10. It has been consistently held by the Courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement ( which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the timelimits stipulated in the agreement for doing one or the other things by one or the other party. That would amount to saying that the time limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the timelimit (s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean Dev Raj Vs Ram Pal & Anr 25 of 29 Suit no. 414/2010 denying the discretion vested in the Court by both sections 10 and 20.
49 There is yet another way of looking at the matter. Since the case of the plaintiff is that the agreement was for sale of shares of the defendants as well as two other share holders, by claiming relief of specific performance qua share of only two of the coowners i.e. the defendants herein out of the four, the case is one falling u/S12 of the Specific Relief Act. A suit for only half of the land out of the total land agreed to be sold cannot be said to be one falling under sub section (2) of Section 12 but would fall under Sub Section (3) of Section 12. Delay on part of the Plaintiff to approach a court in such a case is material and cannot be ignored.
50 The decision in Rachakonda Narayana v. Ponthala Parvathamma and another (2001) 8 SCC 173 : (AIR 2001 SC 3353) is relevant in which the Apex Court has laid down that in case other party is ready to pay or had paid full of the agreed amount, the defaulting party should be asked to fulfill the promise unless there is delay or laches or any other disability on part of the other party. The Apex Court observed and I quote:
"8. A perusal of subsection (3) of Section 12 Dev Raj Vs Ram Pal & Anr 26 of 29 Suit no. 414/2010 shows that the first part of the said provisions mandates refusal of specific performance of a contract on certain conditions. However, the latter part of the provisions permits a Court to direct the party in default to perform specifically so much of his part of the contract as he can perform if the other party pays or has paid the agreed consideration for the whole of the contract and relinquishes all claims to the performance of the remaining part of the contract and all the rights to compensation for the loss sustained by him. If a suit is laid by the other party, the Court may direct the defaulting party to perform that part of the contract which is performable on satisfying two preconditions i.e. (i) the plaintiff pays or has already paid the whole of the consideration amount under the agreement, and that (ii) the plaintiff relinquishes all claims to the performance of the other part of the contract which the defaulting party is incapable to perform and all rights to compensation for loss sustained by him. Thus, the ingredients which would attract specific performance of the part of the contract, are : (i) if a party to an agreement is unable to perform a part of the contract, he is to be treated as defaulting party to that extent, and (ii) the other party to an agreement must, in a suit for such specific performance, either pay or has paid the whole of the agreed amount, for that part of the Dev Raj Vs Ram Pal & Anr 27 of 29 Suit no. 414/2010 contract which is capable of being performed by the defaulting party and also relinquish his claim in respect of the other part of the contract which the defaulting party is not capable to perform and relinquishes the claim of compensation in respect of loss sustained by him. If such ingredients are satisfied, the discretionary relief of specific performance is ordinarily granted unless there is delay or laches or any other disability on the part of the other party."(Emphasis Supplied)
51 In my view the Plaintiff cannot succeed in his prayer for grant of decree of Specific Performance of the Agreement to Sell dated 29.1.2006 in view of the aforesaid findings of fact and principles of law. For the same reason the prayer for injunction is also liable to be rejected. Accordingly, both the prayers in the suit are rejected. 52 However, there is one aspect which cannot be lost sight of. The case of the Defendants has been that price of the suit land has increased and in para 8 of the reply on merits of the WS the Defendants have averred that the price of the suit land has increased to Rs.16,000/ per sq. yards and the Plaintiff ought to pay the consideration amount at Rs.16,000/ per sq. yards in case he wants to get a sale deed executed. Thus, as per the Defendants, they never Dev Raj Vs Ram Pal & Anr 28 of 29 Suit no. 414/2010 suffered any loss and have in fact profiteered from the escalation of land price. However, as the plaintiff has not prayed for a refund of earnest money, no relief of refund can be granted. However, the defendants shall not be entitled to costs of the suit for this very reason.
53 Suit is dismissed. Parties are left to bear their own costs. 54 Decree sheet be prepared.
File be consigned to record room.
Announced in the open Court Harjyot Singh Bhalla, dated 18.08.2011 Civil Judge1, South District, New Delhi.
Dev Raj Vs Ram Pal & Anr 29 of 29
Suit no. 414/2010