Delhi District Court
Shri Tanveer Ahmed vs Shri Babu Khan on 5 November, 2012
IN THE COURT OF MS. NEELAM SINGH, ADJ(02) SOUTH,
SAKET COURTS, NEW DELHI
Suit No. 48/11
Shri Tanveer Ahmed
S/o Shri Shakil Ahmed
R/o I-35, Moti Apartment,
Thokar no. 4, Abul Fazal Enclave-I,
Jamia Nagar, Okhla,
New Delhi-110025. ...Plaintiff
VERSUS
Shri Babu Khan
S/o Shri Iddu Khan
R/o L-59, Abul Fazal Enclave-I,
Jamia Nagar, Okhla,
New Delhi-110025. ...Defendant
Date of Institution : 28.01.2010
Date reserved for orders : 05.11.2012
Date of pronouncement of order : 05.11.2012
JUDGMENT
1. Vide this order I shall dispose off the present suit filed on behalf of plaintiff for recovery of Rs. 10,00,000/- along with interest pendente lite and future. It is submitted by the plaintiff that plaintiff Tanveer Ahmed has entered into an agreement with Shri Babu Khan to sell and purchase the property bearing no. L-59, area measuring 123 sq. yds. situated at Abul Fazal Enclave-I, Jamia Nagar, Okhla, New Delhi-25.
2. It was agreed between the plaintiff and defendant that the entire consideration amount of this deal was fixed at Rs. 41,00,000/-, out Suit No. 48/11 Page no. 1/19 of which the defendant has paid Rs. 5,00,000/- in cash on 19.09.2007 and the balance amount of Rs. 36,00,000/- was to be paid by the plaintiff on or before expiry of 6 (six) months w.e.f. 19.09.2007 to the defendant.
3. It was agreed between the plaintiff and defendant that after full and final payment, the defendant will have to execute relevant documents/ papers in favour of plaintiff and defendant has to hand over the peaceful, physical, vacant possession to the plaintiff on the date of execution of documents.
4. It is the case of the plaintiff that he requested the defendant on number of occasions to execute the relevant documents after arranging the balance amount of Rs. 36,00,000/- in the month of mid February 2008 but the defendant did not give any heed to the request of the plaintiff and tried to delay the matter on one pretext or other and has not executed any document.
5. It is averred in the plaint that even after expiry of 6 (six) months period plaintiff requested so many times to execute the relevant documents but defendant neither pay back the advance money nor the defendant executed the relevant Sale Deed in favour of the plaintiff in respect of the suit property in question as per the agreed terms and conditions of the advance receipt cum agreement to sell and purchase dated 19.09.2007.
6. It is further averred in the plaint that defendant has intentionally and deliberately avoided to execute the relevant documents of the Suit No. 48/11 Page no. 2/19 property in question with malafide intention as the market price of the property had gone higher and just to cheat and harass the plaintiff. It is further submitted that defendant is bound down to execute the relevant documents in favour of the plaintiff or to pay back advance money as agreed along with interest @ 24% p.a. from the date of agreement i.e. 19.09.2007 till date of final payment.
7. It is further submitted that plaintiff had issued a legal notice dated 08.05.2008 upon the defendant calling upon the defendant either to execute the relevant Sale Deed after receiving balance sale consideration in favour of the plaintiff or to refund the advance money as agreed i.e. double of the advance money Rs. 10,00,000/- along with interest @ 24% per annum from 19.09.2007.
8. It is averred in the plaint that notice has been served upon the defendant and defendant after receiving the said notice sent a vague and baseless reply through his counsel vide reply dated 12.05.2008 without complying with the terms of the said notice of the plaintiff. It is submitted that cause of action arose in favour of plaintiff and against the defendant firstly when the defendant entered into an agreement to sale and purchase dated 19.09.2007 and further when he did not accept the balance amount and he did not execut the relevant documents in favour of the plaintiff intentionally and deliberately and avoided to execute the relevant documents of the suit property in question with malafide intention as the market price of the properties had gone higher.
Suit No. 48/11 Page no. 3/199. It is submitted that cause of action further arose when legal notice dated 08.05.2008 was accepted by defendant. It is further submitted since property in question is within the territorial jurisdiction of this court and value of the suit for the purpose of jurisdiction is Rs. 10,00,000/- and its value is within pecuniary jurisdiction of this court and hence the suit.
10.Summons in the suit were issued to the defendant and on appearance defendant filed WS. It is not disputed by the defendant that the plaintiff had executed an agreement dated 19.09.2007 for sale and purchase of property bearing no. L-59, Abul Fazal Enclave-I, New Delhi for consideration of Rs. 41,00,000/-.
11.It is submitted that plaintiff has failed to comply with his part of the said transaction i.e. to pay the balance amount to the defendant and hence agreement to sale and purchase stands terminated by the efflux of time as the time was the essence of the said agreement.
12.It is further submitted in the WS that plaintiff had paid advance of Rs. 5,00,000/- towards the total consideration of Rs. 41,00,000/- and balance of Rs. 36,00,000/- was to be paid within six months of the agreement failing with the agreement automatically would stand terminated and advance amount paid by the plaintiff would be forfeited as per forfeiture clause no. 7 of the agreement.
13.It is further submitted that plaintiff has failed to comply with his part of said agreement by not paying the balance amount of Rs. 36,00,000/- and therefore the agreement in question has no binding Suit No. 48/11 Page no. 4/19 upon the defendant. It is submitted by the defendant in his WS that plaintiff never approached the defendant to pay the balance of amount hence there is no liability of the defendant to execute the documents or to give possession of the property in question to the plaintiff.
14.It is further submitted that plaintiff has neither arranged the balance amount nor he approached the defendant for complying his part of the said agreement. It is submitted that plaintiff has never mentioned any of the date on which he approached the defendant and further submitted that infact it is the defendant who had made several requests to the plaintiff to comply his part of the agreement by making payment of balance sale consideration as the defendant after entering into the said agreement with the plaintiff and having assured to get the balance payment in time the defendant entered into another agreement with some seller for purchasing another property and thereby obligated to pay the money to the seller and consequently defendant was in need of money so that he could fulfill its obligation flowing from other agreement. It is submitted that defendant made numerous requests to the plaintiff personally to make the balance payment so that money in turn could be paid by the defendant to other seller. However, the plaintiff deliberately avoided to make the payment of balance sale consideration and thus as per terms of the agreement the defendant forfeited the said advance money paid by the plaintiff and the agreement stands terminated by efflux of time.
15.It is further submitted in the WS that once an agreement is entered Suit No. 48/11 Page no. 5/19 upon between the parties, all the parties are duty bound to comply the same by fulfilling each and every obligation cast upon them vide the terms of agreement in question. It is further submitted that question of increasing of market price of the property would not come in the way of fulfilling the said agreement as there was no such demand from the defendant rather plaintiff willfully avoided in making the payment for his own interest best known to him.
16.It is further submitted that even assuming but not admitting the fact that the plaintiff would have requested the defendant for refund of advance money with the stipulated time of 6 (six) months of the agreement i.e. by 18.03.2008 but the plaintiff sent legal notice dated 08.05.2008, it is hopelessly barred by limitation and does not sustainable in the eye of law.
17.Replication filed on behalf of plaintiff reiterating and reaffirming the averments made in his plaint and denying the contents of the WS of the defendant. It is specifically denied that defendant had made numerous personal requests to the plaintiff to make the payment so that the money in turn be paid to the other seller. It is submitted that defendant did not execute the documents in question. The sole motive of the defendant to grab the earnest money and further sell the property at a higher price.
18.From the pleadings of the parties following issues have arise:
(i) Whether the plaintiff is entitled for a recovery of Rs. 10 lacs along with interest pendentelite in future @ 18%? (OPP) Suit No. 48/11 Page no. 6/19
(ii) Relief.
19.Plaintiff has led his evidence by way of affidavit and reiterated the facts of the case and examined 3 (three) witnesses i.e. plaintiff namely Tanveer Ahmed (PW-1), Arif Khan (PW-2) and Irfan Malik (PW-3).
20.PW-1, Tanveer Ahmed was examined by way of affidavit which is Exhibit PW-1/A. In order to prove his case plaintiff placed on record copy of advance receipt cum agreement to sell and purchase dated 19.09.2007 is Exhibit PW-1/1, legal notice dated 08.05.2008 is Exhibit PW-1/2, UPC and receipt dated 08.05.2008 is Exhibit PW-1/3, Registered A/D slip dated 08.05.2008 is Exhibit PW-1/4, reply dated 12.05.2008 to the legal notice dated 08.05.2008 along with envelope is Exhibit PW-1/5.
21.On 17.02.2012, plaintiff (PW-1) was cross-examined by counsel for defendant. His cross-examination is reproduced herein below:
"It is correct that I entered into an agreement with the defendant on 19.09.2007 for Rs. 41,00,000/-. It is correct that I have only paid an amount of Rs. 5,00,000/- towards the agreement. I have not produced or placed on record any document to show that I have balance amount of Rs. 36,00,000/- in my account. I have the balance amount with me Suit No. 48/11 Page no. 7/19 to effect the sale consideration. It is wrong to suggest that I do not have the sufficient balance amount and for this reason I could not placed on record the statement of account. It is correct that I have served the defendant with the legal notice dated 08.05.2008 (Exhibit PW-1/4). It is wrong to suggest that I am deposing falsely in this case."
22.On 14.05.2012, PW-2 (Mohd. Arif Khan) cross-examined by counsel for defendant. Relevant extract of his cross-examination is reproduced herein below:
"I do embroidery work. I am not literate but can write my name. I know plaintiff as he lives in the same vicinity. I was present at the time of drafting of document Ex.PW1/1. I have no knowledge if the plaintiff has made any written communication to the defendant stating that rest of consideration of Rs. 36.00 lacs is ready for payment. I do not remember the exact date of payment, however, it might be in the month of March, 2008. It is incorrect to suggest that plaintiff was not interested in paying the remaining amount of Rs.36.00 lacs. It is incorrect to Suit No. 48/11 Page no. 8/19 suggest that I am deposing falsely as I am friend of plaintiff."
23.On 14.05.2012, PW-3 (Irfan Malik) was also cross-examined by counsel for defendant. Relevant extract of his cross-examination is reproduced herein below:
"I am doing business of scraps. I am studied upto 5th class. I know plaintiff as he is my neighbour. I have seen the document Ex.PW1/1. The deal between the plaintiff and defendant was of Rs.41.00 lacs, out of which Rs.5.00 was given in advance and Rs.36.00 lacs was left to be paid. The plaintiff promised to pay the remaining amount of Rs.36.00 lacs to the defendant within six months. Plaintiff approached the defendant with balance amount before the expiry of agreement. I have no knowledge if the plaintiff has made any written communication to the defendant stating that rest of consideration of Rs.36.00 lacs is ready for payment. It is incorrect to suggest that I am deposing falsely as I am friend of plaintiff."
Thereafter PE was closed.
Suit No. 48/11 Page no. 9/1924.Defendant has led his evidence by way of affidavit and reiterated the facts of the case and examined 3 (three) witnesses i.e. defendant namely Babu Khan (DW-1), Naseem (DW-2) and Yaseen Malik (DW-3).
25.DW-1, Babu Khan was examined by way of affidavit which is Exhibit DW-1/A. On 18.10.2012, DW-1 was cross-examined by counsel for plaintiff. Relevant extract of cross-examination of DW-1 is reproduced herein below:
"My affidavit Ex.DW1/A was got prepared at Saket Courts by my son. I do not know the meaning of "attestation". My affidavit was prepared in High Court. [Again said, it was prepared and attested at Saket Courts.] I am a kabadiwala. It is incorrect that the rate of the properties, where the suit property is situated, are increasing day-by-day. I am not aware what the rates of property there as on date. I am living at Abul Fazal Enclave-I from about last 20 years. It is wrong to suggest that I know what are the current rates of property at Abul Fazal Enclave-I. I did not send any legal notice to the plaintiff for forfeiture of amount of Rs.5.00 lacs (i.e. advance money) after expiry of six months, Suit No. 48/11 Page no. 10/19 however, I personally approached him on a number of times. It is wrong to suggest that the rates of property got increased upto 50% within six months from the date of agreement.
I have mentioned in my WS regarding the mental illness of my grand daughter namely Ms. Saniya, D/o Md. Intezar. I entered into an agreement for sale of the suit property in question with the plaintiff as I was in need of money for the treatment of my grand daughter. Presently, I am the owner and in possession of the suit property. I could not got treated my grand daughter since I had no money. It is correct that plaintiff had given me Rs. 5.00 lacs but the same was spent by me on some other work other than the treatment of my grand daughter. It is wrong to suggest that I spent the entire amount of Rs.5.00 lacs on the treatment of my grand daughter and it is further wrong to suggest that I intentionally did not sold the property in the name of the plaintiff thereafter. Plaintiff did not offered me with any money or suggestion for getting Suit No. 48/11 Page no. 11/19 the sale deed executed in his name before and after the expiry of the time mentioned in the Agreement to Sell. It is wrong to suggest that I was offered Rs. 70.00 lacs by some other person for the suit property in question. I entered into an agreement with a person for purchase of property in the same locality where the suit property is situated. I could not purchased it as I did not receive any payment from the plaintiff. I am not aware whether the rates of suit property are Rs.1.00 crores or not as on date. It is wrong to suggest that I am deposing falsely in this case."
26.On 18.10.2012, DW-2 (Naseem) was cross-examined by counsel for defendant. Relevant extract of his cross-examination is reproduced herein below:
"My affidavit Ex.DW2/A was got prepared in my presence at Saket Courts and was attested in the Saket Courts itself. I am dealing in the business of waste bottles. I have seen the suit property in question and the same is about 115-125 sq. yards. I am residing in the vicinity of suit property since Suit No. 48/11 Page no. 12/19 1995. The rates of the suit property are not increasing presently, however, presently the rates of property there are Rs.50-60,000/- sq. yards. The defendant had told me about the mental illness of his grand daughter at the time of entering the Agreement to Sell of the suit property. The defendant is in my distant relation. It is wrong to suggest that I have come to depose here as the defendant is my relative. [Vol. The Ex.PW1/1 was executed in presence and I also signed on the same.] It is wrong to suggest that plaintiff requested the defendant on a number of occasions for execution of Sale Deed but defendant refused. It is wrong to suggest that as the rates of suit property increased, defendant did not get the documents executed. [Vol. Defendant approached the plaintiff on a number of occasion for the balance amount.] Defendant did not give any notice to the plaintiff for forfeiture of advance amount of Rs.5.00 lacs. It is wrong to suggest that I am deposing falsely.
Suit No. 48/11 Page no. 13/19
27.On 18.10.2012, DW-3 (Yaseen Malik) was also cross-examined by counsel for defendant. Relevant extract of his cross-examination is reproduced herein below:
"My affidavit Ex.DW3/A was got prepared in my presence at Saket Courts. I deal in paper scrapes etc. I have seen the suit property in question. I am also residing in the same vicinity. Presently, the rates of land in the suit property in question is approximately Rs.50-60,000/- per sq. yards. It is correct that the rates of land, where the suit property is situated, are increasing day by day. The defendant had told me about the mental illness of his grand daughter at the time of entering the Agreement to Sell of the suit property. I was not present at the time of execution of Ex.PW1/1. It is wrong to suggest that the defendant did not execute the Sale Deed despite repeated request of plaintiff. [Vol: Defendant asked about balanced amount from plaintiff but plaintiff refused.] The defendant is my neighbour. It is wrong to suggest that I have no knowledge about this case and I have come to depose here as defendant is my neighbour. The suit Suit No. 48/11 Page no. 14/19 property is about 127-130 sq. yards. It is wrong to suggest that I am deposing falsely."
Thereafter DE was closed.
28.Arguments heard. My issuewise finding is as under:
ISSUE NO. 1Whether the plaintiff is entitled for a recovery of Rs. 10 lacs along with interest pendentelite in (and) future @ 18%? (OPP)
29.Plaintiff has filed this suit for revoery of Rs. 10,00,000/- on the basis of agreement to sell with regard to property bearing no. L-59, Abdul Fazal Enclave-I, Jamia Nagar, Okhla, New Delhi. The agreement to sell in question is not a registered document and admittedly the plaintiff has not filed this suit for specific performance rather has filed a suit for recovery of double the amount of the earnest money.
30.In Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana, (JT 2011 (12) SC 564) : Scope of transaction through SA/GPA/ Will was discussed by Hon'ble Apex Court and it was held that any contract of sale, agreement to sell which is not a registered deed of conveyance, would fall short of the requirement of Section 54 & 55 of Transfer of property Act and thus does not conferred any title or interest in immovable property except limited rights under section 53 (A) of Transfer of property Act.
Although there is no dispute about the factum of agreement to sell Suit No. 48/11 Page no. 15/19 entered into between the parties yet the court has to independently examine whether the material placed on record entitles the plaintiff to the decree sought off. Two important consideration are required to be seen while adjudicating the claim of specific performance of the contract of sale of immovable property. (i) whether the plaintiff has pleaded and proved his readiness and willingness to perform his part of the contract and (ii) Whether the equities of the case demand that such a decree be made in favour of the plaintiff.
31.In the instant case apart from making bald and general allegations about plaintiff's willingness and readiness to perform his part of the contract. No evidence in the shape of bank account, bank statement for the relevant period has been placed on record by the plaintiff. The plaintiff has placed on record no material which can show or suggest as to from whom he had arranged the amount and how much amount he has arranged from his own sources. No evidence of the means as claimed in the plaint for establishing the readiness and willingness of the plaintiff has been placed on record. Issuance of legal notice to the defendant shows that plaintiff was not interested in performing his part of the contract. He demanded his earnest money from the defendant by issuing a legal notice and even, in the prayer clause only recovery of earnest money is prayed for and not the specific performance of the contract. Since the agreement is not a registered document and on the basis of this document plaintiff cannot claim any right and interest of this kind.
32.Even otherwise the Stamp Act and the Registration Act as Suit No. 48/11 Page no. 16/19 applicable to Delhi were amended w.e.f 24.09.2001 and after the said amendment the agreement to sell of immovable property be taken into consideration after it is a registered document. Section 49 of the Registration Act is also amended corresponding and hence agreement to sell which is not registered does not create any right and interest for the parties.
33.On the other hand, Ld. counsel for defendant has placed reliance on a judgment in Satish Batra vs. Sudhir Rawal, 2012 (10) SCALE 393 it is held by hon'ble Court:
18.When we examine the clauses in the instant case, it is amply clear that the clause extracted hereinabove was included in the contract at the moment at which the contract was entered into It represents the guarantee that the contract would be fulfilled. In other words, 'earnest' is given to bind the contract which is a part of the purchase price when the transaction is carried out and it will be forfeited when the transaction falls through by reason of the default or failure of the purchaser. There is no other clause militates against the clauses extracted in the agreement dated 29.11.2011.
19.We are, therefore, of the view that the seller was Suit No. 48/11 Page no. 17/19 justified in forfeiting the amount of Rs. 7,00,000/- as per the relevant clause, since the earnest money was primarily a security for the due performance of the agreement and consequently, the seller is entitled to forfeit the entire deposit. The High Court has, therefore, committed an error in reversing the judgment of the trial court.
34.In view of the above facts and circumstances, I am of this considered opinion that plaintiff has failed to prove that he intended to pay the balance sale consideration which was the condition for execution of sale documents with respect to suit property in question. Coupled with the contract on the basis of which plaintiff is coming to the court is not a registered document and as per the directions of Apex Court in Suraj Lamp and Industries Pvt. Ltd., such documents cannot be read in evidence in order to create any right and liability of the parties and hence plaintiff is not entitled for recovery of an amount of Rs.
10,00,000/- from the defendant. However, as per law of equity I direct the defendant to return half of the amount of earnest money i.e. Rs. 2,50,000/- to the plaintiff within a month from the date of this judgmen.
RELIEF:
35.The suit of the plaintiff is dismissed with a direction to the Suit No. 48/11 Page no. 18/19 defendant to pay an amount of Rs. 2,50,000/- towards return of half of the earnest money. No order as to cost. Decree sheet be drawn accordingly.
36.File be consigned to record room after necessary compliance.
Announced in open court.
(NEELAM SINGH) ADJ-02, SOUTH, SAKET, NEW DELHI 05.11.2012/ MC Suit No. 48/11 Page no. 19/19 Tanveer Ahmed vs. Babu Khan Suit No. 48/11 05.11.2012 Present: Counsel for plaintiff Counsel for defendant Vide my separate Judgment, suit of the plaintiff is dismissed with a direction to the defendant to pay Rs. 2,50,000/- to the plaintiff within a month from the date of this judgment. File be consigned to record room after necessary compliance.
(NEELAM SINGH) ADJ-02, SOUTH, SAKET, NEW DELHI 05.11.2012/ MC Suit No. 48/11 Page no. 20/19