Delhi District Court
Vijay Gupta vs Gursharan Singh Sandhu on 17 April, 2018
IN THE COURT OF MS. TWINKLE WADHWA: LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:NEW DELHI DISTRICT
CS No. 56251/16
Vijay Gupta
Son of Shri Narinder Pal Azad
R/o 497, Sector16 A,
Faridabad(Haryana). .....Plaintiff
Versus
1. Gursharan Singh Sandhu
Son of Late Shri Harcharan Singh Sandhu
R/o 173, Sector19A, Chandigarh (Haryana).
2. Har Charan Singh Sandhu (HUF)
C/o 173, Sector19A, Chandigarh (Haryana).
Represented by Ms. Tripat Kaur Sandhu
eldest member/Shri Gursharan Singh Sandhu
eldest male member of HUF.
3. Tripat Kaur Sandhu
Wife of Late Shri Harcharan Singh Sandhu
R/o 173, Sector19A, Chandigarh (Haryana).
4. Roopam Kaur Sandhu
Daughter of Late Shri Harcharan Singh Sandhu
R/o 173, Sector19A, Chandigarh (Haryana). .....Defendants
CS No.56251/16 Page 1 of 21
Date of Institution : 08.07.2004
Date of Final Arguments : 27.03.2018
Date of Decision : 17.04.2018
JUDGMENT
The Case
1. The present is a suit for specific performance, declaration, permanent and
mandatory injunction and damages filed by the plaintiff against the defendants
with respect to an agreement to sell/receipt dated 27.03.2004.
Plaintiff's Case
2. It is the case of plaintiff that he is a Chartered Accountant and practicing in
Delhi. It is further the case of plaintiff that on 27.03.2004, plaintiff entered into an
agreement to sell/receipt with the defendant no.1 in respect of flat No.113, First
Floor, New Delhi, plot No.27, Barakhamba Road admeasuring 872 Sq. ft.,
defendant No.1 being the owner of the said flat. The total sale consideration was
Rs.38,80,400/ i.e. @ Rs.4,450/ per Sq. ft. The plaintiff paid a sum of Rs. 1 lac
as advance towards the sale consideration of the said flat which was duly
acknowledged by defendant no.1 vide the receipt dated 27.03.2004. It was also
agreed that defendant shall pay all dues upto date of agreement along with
transfer charges payable to the builder of the building. Copy of the receipt cum
agreement to sell dated 27.03.2004 is duly exhibited on record. It is further the
case of plaintiff that the said receipt was duly executed by the defendant No.1 in
the presence of Pawan Kumar and Mahesh Goel, the witnesses.
CS No.56251/16 Page 2 of 21
3. It is further the case of plaintiff that on the same date itself i.e. 27.03.2004,
it was orally agreed between the plaintiff and defendant that the sale deed will be
executed by getting the same entered into the records of the builder within two
months or so soon thereafter, and after obtaining necessary permissions,
clearances required for the purpose. It was also agreed that the payment of the
balance amount of Rs.37,80,400/ would be made upon receipt of necessary
clearances permission from the builder/civil authorities.
4. It is further the case of plaintiff that on 15.05.2004, plaintiff contacted the
defendant regarding the permission and clearances from builder and civil
authorities and also informed defendant that he had already arranged the entire
sale consideration. Defendant no.1 informed the plaintiff that the
permission/clearances are yet to be received and is in process. Plaintiff
repeatedly requested the defendant to complete the formalities but defendant has
not come forward with the same. Plaintiff was always ready and is still ready and
willing to perform his part of the contract and has already arranged the balance
consideration.
5. Further plaintiff came to know from local property dealer that the defenant
is trying to sell the flat to some other person at a higher price which is against the
law. Hence, defendant no.1 be directed to execute the document in favour of the
plaintiff. Hence, the present suit is filed thereby restraining defendant no.1 from
dispossessing of the said property or else he be directed to make payment of
Rs.25 lacs towards great mental pain and agony along with interest. Hence, the
present suit was filed on 07.07.2004 before this Court.
CS No.56251/16 Page 3 of 21
Case of defendant no.1
6. It is the case of defendant no.1 that the suit as framed is not maintainable.
There was no agreement to sell. There was only formal discussion. Further it is
the case of defendant no.1 that he informed the plaintiff that he is not the sole
owner of the property and he will have to take consent of other partners who are
having share in the property. The original Sale deed was seen by the plaintiff
wherein name of all the defendants is mentioned. Hence, there was no complete
agreement to sell and suit is not maintainable.
7. Defendant no.4 and defendant no.3 are coowners of the said property
along with defendant no.1 and along with defendant No. 2 who is HUF. Further it
is the case that the said property was purchased by father of defendant no.1
namely Harsharan Singh Sandhu in the name of five persons i.e. three
defendants, Harsharan Singh Sandhu himself and one HUF. On the demise of
Harsharan Singh it devolved upon other legal heirs as per law.
8. It is the further the case of defendant no.1 that he is ready and willing to
return the amount received by him with interest. Further the receipt in question
was executed in Chandigarh and not in Delhi hence this Court has no jurisdiction.
Further in the absence of agreement to sell, the plaintiff cannot file a suit for
specific performance of contract. It is further the case of defendant no.1 that
name of witness have been later on entered into the said receipt. They were not
present at Chandigarh at the time of execution of the receipt. Further it is
mentioned in para 5 of the written statement of defendant no.1 that he is ready
and willing to sell his share at the price indicated in the alleged document. Further
CS No.56251/16 Page 4 of 21
it is mentioned in para 3 of the written statement that the amount referred to in this
para of plaint i.e. Rs.38,80,400/ is towards the consideration of the share of the
answering defendant and not towards the total consideration of the price of the
property. At no stage plaintiff was in possession entire amount of consideration
pleaded by him.
Case of defendant nos. 3 and 4
9. After the written statement was filed by defendant no.1, an application was
moved by plaintiff seeking impleadment of HUF and other two legal heirs which
were allowed and thereafter defendant nos.2, 3 and 4 were impleaded in the
present suit. After getting impleaded, they filed their written statement. However,
plaintiff was not permitted to amend his plaint qua defendant nos. 2, 3 and 4.
10. It is the case of defendant no.4 Tripat Kaur Sandhu and defendant no.3
Rupan Sandhu that they are not party to the said agreement to sell/receipt and
hence are not bound by the arrangement, said to have arrived at between the
plaintiff and defendant no.1. It is further pleaded that defendant no.2 is karta for
Hindu undivided family and hence the said property could not be sold. It is further
pleaded that the said property was divided into five share holders at the time of
purchase. Only one share belongs to defendant no.1.
11. On completion of pleadings, following issues were identified on 07.03.2005
ISSUES
1. Whether the receipt dated 27th March, 2004 relied upon by the plaintiff
constitutes a valid agreement to sell qua which a decree for specific
performance may be passed? OPD.
CS No.56251/16 Page 5 of 21
2. Whether the suit property is owned by a HUF comprising the defendant
and other members of his family? OPD.
3. In case Issue No.2 is proved in the affirmative, whether the defendant had
no authority on behalf of other members of the HUF to execute the
receipt/agreement to sell?OPD.
4. In case issue No.2 is proved in the affirmative, whether there was no legal
necessity for the sale of the suit property, if so, what is its effect on the
suit? OPD.
5. Whether this court has no jurisdiction to entertain the suit?OPD.
6. Whether payment of adequate compensation/damages by way of receipt
of the amount received by the defendant with interest will be an adequate
alternative relief for the plaintiff? OPD
7. Relief.
12. To prove his case, plaintiff examined himself as PW1 and Shri
Mahesh Goel as PW2 and exhibited certain documents
S.No. No. of Exhibits Details of the documents
1 Ex. PW1/1 Receipt
13. On the contrary, defendants examined Shri Gursharan Singh as DW1,
Smt. Tripat Kaur Sandhu as DW2 and Ms. Roopam Sandhu as DW4.
CS No.56251/16 Page 6 of 21
Reasons for decision
14. I have heard both the sides and gone through the record.
15. In case titled Ganpati Infrabuild Pvt. Ltd. Vs. Sudarshana Duggal &
Anr., Manu/DE/2795/2012 by the Hon'ble High Court, it was observed that
"6. There is no gainsaying that specific performance of a receipt
relating to an immovable property can be granted, provided it fulfills
the ingredients of an "Agreement". A document to constitute
"Agreement" is required to be signed by both the parties to such a
contract. One of the essential attributes of an agreement between
the parties is that it should be signed by both the parties. That
apart, terms of the agreement shall indicate, in no uncertain terms,
the rights as well as obligations of the parties among and/or to be
performed by them under the agreement. Further that the parties
shall be at ad idem in respect of all the terms and conditions of the
contract relating to a transaction involved in the agreement.
Indubitably, nomenclature of a document makes no difference and it
is from the contents thereof including the terms and conditions as
envisaged therein, the nature of such a document has to be
inferred."
16. In case titled M/s. Shri Neelpadmaya Consumer Products Pvt. Ltd. Vs.
Sh Satyabir @ Satbir & Ors., 227 (2016) DLT 654 by the Hon'ble Court it was
held observed
"11.As per the Indian Contract Act, for a contract being an
agreement to sell to be complete, who is the buyer and seller must
be known, the land in question which is to be transferred has to be
known, the price has to be known and if any balance is payable
what is that balance due. On such aspects existing then such a
document will be a contract under the Indian Contract Act in view of
Section 10 of the Indian Contract Act which states that all
agreements are contracts if they are entered into with free consent
of the parties who are competent of the contract, for a lawful
consideration and which are not declared by law to be void. An
agreement to sell to be certain and for there being consensus ad
CS No.56251/16 Page 7 of 21
idem between the parties if it was required clearly to be known as to
who are the buyers and sellers, what is the price at which land has
to be sold, the land in question and the time of payment of the price,
and since all of these aspects are found in the two documents
dated 25.09.2006 Ex.P1 and Ex.P2, hence I hold that these
documents are complete contracts under the Indian Contract Act."
17. In case titled Sobhag Narain Mathur Vs. Pragya Agarwal & Ors., 227
(2016) DLT 511, Hon'ble Court has observed
"8. In a contract for sale of an immovable property i.e. an agreement
to sell entered into i.e. te sale deed of an immovable property to be
entered into in future, four essential ingredients have to exist and
they are: who are the parties to the agreement has to be clear, what
is the subject matter of the agreement to sell has to be clear, and
what is the total price has to be clear including fourthly as to how the
total price is payable i.e. whether in lumpsum in advance partly in
advance and partly at the time of execution and registration of the
sale deed, etc. Besides these aspects, it is also relevant to note that
the document in question cannot be said to be an agreement as per
the intention of the parties because the parties had intended a
formal document to be entered into which only would be the actual
contract between the parties. In such circumstances, a Court has to
examine whether the document which is relied upon was intended
by the parties to be a final contract in itself. This is being stated
because in some cases an agreement may be complete in itself as
required by law and still the parties may state that a formal
agreement has to be entered into and in such a case even if a
formal agreement is not later on entered into, Courts have still held
that the original document which is complete in itself is an
agreement to sell which can be enforced in law by filing a suit for
specific performance. However, where the facts and circumstances
of the case as reflected from the document itself and/or the
surrounding circumstances or actions of the parties show that the
original agreement which talks of entering later into an agreement is
not a complete contract in the eyes of law, then, Courts will have to
hold that contract between the parties has not been concluded
because there is no consensus ad idem including on the aspects as
to the minimum requisite terms for competing an agreement to sell.
CS No.56251/16 Page 8 of 21
To complete the narration, it may be stated that there are various
other terms which are agreed between a prospective purchaser and
a prospective seller of an immovable property; in addition to the four
main aspects which are stated above; but even if the other terms are
not stated, law steps in and presumes that parties have agreed to
those terms and which terms are specified in various subsections of
Section 55 of the Indian Contract Act."
18. The first issue to be decided is whether the receipt dated 27.03.2004
constitute a valid agreement between the parties or not. The contents of the
receipt are reproduced herein below as follows
RECEIPT
Received Rs.1,00,000/ (Rupees one lac only) by cash as part
payment from Mr. Vijay Gupta S/O Sh. Narinder Pal Azad R/O 497,
Sector 16A, Faridabad against the sale of our flat No.113, situated
at Ist Floor, New Delhi House, 27, Barakhamba Road, New Delhi
110001 admeasuring 872 sq.ft. For total consideration of
Rs.28,80,400/ (@ Rs.4,450/ per sq.ft.). Sellers shall pay all
dues upto the date of agreement along with transfer charges
payable to builder.
Witnesses:
Date: 27th March, 2004
1.
1.Pawan Kumar
807 A, Rohit House,
3 Tolstoy Marg,
New Delhi.
2. Mahesh Goel S/o Shri R N Goel
369/16 A
Faridabad.
(GURSHARAN SINGH SANDHU)
S/o Late Sh. Harcharan Singh Sandhu
R/O. 173,19A, Chandigarh
CS No.56251/16 Page 9 of 21
19. In the above mentioned receipt, words "our flat" and "sellers" are not
explained by plaintiff. It is the specific plea of defendants taken during final
arguments that the words 'our' and sellers" imply that it was in knowledge of the
plaintiff that there were more than one sellers regarding the said flat.
20. Vide order dated 07.03.2012, a Division Bench of Hon'ble High Court of
Delhi in the present matter while dismissing the application of plaintiff thereby
seeking amendment in the plaint observed as follows
"3. It may be noticed that the index of the suit referred to "Shri
Gursharan Singh Sandhu & Ors.," as "defendants" but only one
defendant "Gursharan Singh Sandhu" was impleaded. The plaint
also in some places referred to "defendants" despite there being
one defendant. The significance of this came to light when the
written statement was filed by GSS. GSS pleaded that he was not
the sole owner of the property and that respondent No.1 had been
informed that he would have to take consent of other coowners and the FlatBuyers' Agreement dated 27.10.1976 was shown to respondent no.1 which recorded the names of all the coowners, being Lt. Col. Harcharan Singh Sandhu, Harcharan Singh Sandhu (HUF), Tripat Kaur Sandhu, Master Gursharan Singh (Minor) and Kumari Roopam Sandhu (Minor)."
"9. A perusal of the receipt shows that it was executed by GSS/respondent No.1 alone and it is not executed on behalf of other coowners. However, the last sentence of the receipt uses the words "the sellers" qua payment of all dues up to the date of agreement along with transfer charges to the builder."
21. In view of the above observation and also pleaded by counsel for defendants during final arguments and also mentioned in written submissions, a bare perusal of the receipt shows that it was within the knowledge of plaintiff that there was more than one seller/owner of the said property.
CS No.56251/16 Page 10 of 2122. Further plaintiff is not a layman who has been befooled by the defendant no.1. In the very first paragraph of the plaint, it is mentioned that plaintiff is a Chartered Accountant practicing in Delhi. It is difficult to presume that an educated person as plaintiff, he would enter into any agreement to sell with defendant no.1 without even going through the original papers of ownership. It is the specific case of defendant no.1 as is mentioned repeatedly in his written statement that he brought it to the knowledge of plaintiff regarding the other co owners and original papers were shown to him. There is no crossexamination of defendant no.1 on this aspect. This further shows that the case of plaintiff does not inspire any confidence.
23. A party who is himself negligent cannot come to the Court on the basis of his own ignorance. No one can be permitted to take benefit of their own ignorance. The argument of the plaintiff that he was made to believe that the property stands only in the name of defendant no.1 does not inspire any confidence. Hence it is not believable that he has not seen copy of the sale deed himself.
24. Further it is mentioned by plaintiff in his crossexamination that he met defendant no.1 for the first time regarding the present deal. Defendant no.1 and plaintiffs are not friends nor were they acquainted to each other before entering into present receipt. Hence, there was no occasion for plaintiff to have blind folded faith on defendant no.1. Hence, the argument that he was not shown sale deeds and gave Rs. 1 lac to the defendant no.1 without even going through the ownership papers does not inspire any confidence.
CS No.56251/16 Page 11 of 2125. Further PW2 stated in his crossexamination that the receipt was prepared in the chamber of plaintiff i.e. Vijay Gupta. Hence the receipt is prepared in the chamber of Vijay Gupta which explains all the more using words 'our' and 'sellers' in the receipt.
26. In view of above, it cannot be said that the said receipt constitutes a valid agreement to sell as all the owners to the said flat have not been made a party to this agreement to sell.
27. As far as the argument regarding 'ready and willingness' of his part of the contract is concerned, it was incumbent on the plaintiff to show that he had an amount of Rs.38 lacs ready and handy with him in the year 2004 when this contract was executed. In the year 2004, an amount of Rs. 38 lacs was not a small amount. Considering the peculiar facts of this case, it cannot be presumed that plaintiff was infact possession of such an amount. No document is filed by plaintiff to show what is his business profession, extent of profession, any other income source from which would he could have arranged the same. Only on the basis of argument that opposite party has not challenged his ready and willing in crossexamination and he was not asked to furnish any document, cannot be any ground to assume that he was ready and willing to perform his part of the contract. Plaintiff has to stand on his own feet to prove his own case.
28. Plaintiff has made a general averment in his pleading or plaint that he is ready and willing to perform his party contract. However, he has failed to make any specific averment that on that particular time he was having Rs.38 lacs in cash or in his bank account or had arranged from some friends or family CS No.56251/16 Page 12 of 21 members. Further it is not mentioned how payment was to be made, was it in installment, in lumpsum, how much cash, how much through cheque. The receipt is absolutely silent on this aspect also.
29. In case titled N P Thirugnanam Vs. Dr. R. Jagan Mohan Rao & Ors, (1995) 5 SC 115 by the Hon'ble Supreme Court it was held observed "5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short "the Act"). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale, Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granted or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, 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. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
CS No.56251/16 Page 13 of 2130. In case titled Bal Krishna and Anr. Vs. Bhagwan Das & Ors., (2008) 12 SCC 145, Hon'ble Court observed that Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as the Act) corresponds with Section 24 of the old Act of 1877 which lays down that the person seeking specific performance of the contract, must file a suit wherein he must allege and prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation
(ii) to clause (c) of Section 16 further makes it clear that plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The compliance of the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiffs readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the courts discretion to grant specific performance is not exercised if the CS No.56251/16 Page 14 of 21 contract is not equal and fair, although the contract is not void."
31. Further plaintiff has not suffered any loss or hardship pursuant to said contract. He has not filed any document to show that he had done anything pursuant to said 'agreement to sell' in furtherance of the said contract. Rather it is mentioned by defendant no.1 in his written statement that he is willing to hand over Rs.1 lac and cheque was annexed. Hence no hardship is caused to the plaintiff or is going to be caused to the plaintiff.
32. Further specific performance of this contract would entail undue hardship on defendant nos. 4 and 3 who are ladies while if specific performance is not granted, no loss is going to be caused to the plaintiff except financial loss. Defendant nos. 2 and 3 being women cannot be asked to vacate the flat purchased by their husband and father respectively at this age. Equity also demands that in view of the above discussion wherein it is observed that plaintiff was in knowledge that the property had other coowners, specific performance should be denied.
33. It is not prudent to permit specific performance of contracts of immovable properties based on such contracts/receipts where even time frame is not mentioned. In cases involving sale and purchase of immovable property, it is generally expected of the parties that a time frame would be mentioned within which parties have to perform their part of contract i.e. purchaser to arrange money and seller to obtain necessary permissions. The present receipt is absolutely silent about the same.
CS No.56251/16 Page 15 of 2134. Further it is not mentioned in the agreement what permissions were to be obtained by seller and from which authorities. The agreement is silent on this aspect also. In view of above, defendant no.1 has been able to prove that the said receipt does not constitute a valid agreement between the parties.
35. Though it is correct that in all the cases it is not required that an agreement to sell has to be signed by both the parties but if the receipt is considered in the present case, it was signed by defendant no.1. One of the essential requirement of the contract is that it must bind both the parties. The effect of non signing of the receipt on the part of the plaintiff is that it does not bind plaintiff. On the basis of this receipt, it was not obligatory on the part of plaintiff to go ahead with the contract as he himself had not signed it. Hence it does not bind plaintiff. Hence, equity demands that specific performance should not be granted in favour of the plaintiff as this receipt/agreement does not bind plaintiff.
36. Further specific performance is discretionary relief. It may not be granted only because it is lawful to do so. It may be refused in those cases where damages is adequate remedy. In my opinion, in the present case, damages to the plaintiff would be an adequate remedy.
37. Though it is correct that it is mentioned by defendant no.1 in his written statement that he is willing to perform his part of the contract but in the Court in his testimony he stated that he is not willing to perform his part of the contract as he had informed plaintiff about the coowners and that their consent was required before going ahead with the relief sought.
CS No.56251/16 Page 16 of 2138. Further it is deposed by PW2 that when he sign the receipt as a witness it was already having signatures of Mr. Pawan Sharma and defendant no.1. He had left the meeting in between and came back when he was called upon to sign the receipt. Hence, receipt was not signed in his presence. He also stated in his crossexamination that he did not see anyone else signing the receipt and the receipt was already signed when he was called upon to sign the same.
39. It is the argument of plaintiff that said receipt is a valid agreement to sell between the parties for the following reasons I. There is no requirement for a concluded contract to be signed by both the parties and Court to presume that it is a valid contract. II. A 'specific averment' that plaintiff was ready and willing to perform his part of the contract was sufficient and no need to 'prove' the same. III. Even if time is not specifically mentioned in the agreement, Court is to presume that there was an oral agreement between the parties that it was to be executed within two months or such other reasonable time, as per the plaint. IV. Court to presume that plaintiff was not informed about the coowners. V. Defendant no.1 was to obtain permission of concerned authorities and Court to presume that it was defendant no.1 who failed to obtain permission and hence frustrated the contract.
VI. Intention of the parties was to treat receipt as agreement to sell and rather it is agreement to sell.
40. In view of above, if the case of plaintiff is to be assumed to be true, there are too many assumptions and presumptions which are to be adopted for the CS No.56251/16 Page 17 of 21 specific performance of this receipt. Specific performance of such a contract cannot be granted where Court has to interpret the contract between the parties. Contract cannot be based on assumptions and presumptions for being able to be specifically performed.
Issue No.1 Whether the receipt dated 27th March, 2004 relied upon by the plaintiff constitutes a valid agreement to sell qua which a decree for specific performance may be passed? OPD.
41. In view of above discussion, it is hereby held that the said receipt does not constitute a valid agreement to sell qua which a decree for specific performance may be asked. Hence, the onus of issue no.1 is duly discharged by defendants and the said issue is answered in favour of defendants and hereby held that receipt is not a valid agreement to sell.
Issue No.2Whether the suit property is owned by a HUF comprising the defendant and other members of his family? OPD.
42. As far as ownership regarding this property is concerned, orignal property papers have been exhibited on record by the defendants. As per the property papers, the property stands in the name of HUF comprising of defendant no.1, 3 and 4 and defendant no.2 being HUF itself.
Issue No.3 In case Issue No.2 is proved in the affirmative, whether the defendant had no authority on behalf of other members of the HUF to execute the receipt/agreement to sell?OPD.
43. As far as argument of counsel for plaintiff that defendant no.1 is Karta of the HUF after the death of his father. He argued to sell on behalf of HUF and CS No.56251/16 Page 18 of 21 other members. Further the judgment filed on record by the defendants wherein defendant no.3 had filed case against defendant no.1 for declaring herself as karta is illegal. It is against the settled law as a Hindu widow of a coparcner cannot be karta of HUF. Further defendant no.1 admitted in his written statement that he is willing to perform his part of contract. Hence, decree may be passed against defendant no.1 for executing the sale deed of the said property on behalf of HUF, defendant no.1 being karta. It is also pleaded in the alternative that defendant no.1 may be directed to execute sale deed qua his share.
44. I do not agree with the contention of the counsel for the plaintiff. It is not a pleading of the plaintiff that defendant no.1 had entered into agreement that plaintiff on behalf of HUF. Hence, it is the own case of plaintiff that defendant no.1 entered into receipt thereby portraying himself as exclusive owner, now plaintiff cannot plead and argue that he executed the receipt/agreement to sell on behalf of HUF. The said argument is beyond pleadings and is rejected.
45. As far as argument that defendant no.1 has written in his written statement that he is willing to execute his part of the contract, it is denied by defendant no.1 in his crossexamination thereby saying that he is not willing to perform his part of the contract. It is further the argument of ld. Counsel for defendant no.1 that as the receipt dated 27.03.2004 was never intended to be agreement to sell and rather it was mere receipt, hence defendant no.1 is not willing to perform his part of the contract. As has already been held that the said receipt is not a valid 'agreement to sell', defendant no.1 cannot be compelled to enter into a specific performance of the said contract.
CS No.56251/16 Page 19 of 2146. Needless to say the specific performance is a discretionary relief. When defendant no.1 is not willing to perform his part of the contract on the ground that it was a mere receipt and not an agreement to sell, and in the peculiar circumstances of this case where damages would be an adequate relief, defendant no.1 cannot be directed to execute the sale deed on behalf of HUF or on his own behalf.
Issue No.4In case issue No.2 is proved in the affirmative, whether there was no legal necessity for the sale of the suit property, if so, what is its effect on the suit? OPD.
47. As it is already held that the said property belongs to HUF but defendant did not execute the receipt on behalf of HUF, there is no need to answer on the issue whether there is a legal necessity for the sale of suit property or not, as receipt was never executed by defendant no.1 as Karta of HUF, nor it is the pleading of plaintiff. Hence it is not necessary and rather beyond pleadings to decide whether there was legal necessity for sale or not. Issue No.5 Whether this court has no jurisdiction to entertain the suit?OPD.
48. As a immovable property in the present case is situated within the jurisdiction of New Delhi District, hence present Court has territorial jurisdiction to decide the present case.
Issue No.6 Whether payment of adequate compensation/damages by way of receipt of the amount received by the defendant with interest will be an adequate alternative relief for the plaintiff? OPD
49. As has already been discussed above, specific performance is on discretionary relief. In the present case the said receipt was not a valid CS No.56251/16 Page 20 of 21 agreement to sell between the parties. Moreover, defendant no.1 refused to give consent to perform his part of the contract in crossexamination. Further as this is HUF property undue hardship is going to be caused to the family by granting specific performance of the contract against defendant no.1. While no undue hardship is pleaded by plaintiff, which is going to be caused to him, in case specific performance is denied. In the plaint, alternative damages have been claimed. But no ground for granting any damages is made out, as already discussed above. Plaintiff has not proved how he has suffered for which he is claiming damages. Hence damages are denied.
Issue No.7Relief
50. In view of above, it is hereby directed that defendant no.1 is directed to the return the amount of Rs.1 lac along with interest @ 7% from the date of filing of present suit till actual payment to the plaintiff.
File be consigned to record room.
Announced in an open Court
On 17th day of April, 2018 (TWINKLE WADHWA)
ADJ03/ PHC/NEW DELHI
17.04.2018
CS No.56251/16 Page 21 of 21