Delhi District Court
Sh. Ashok Kumar Jain vs Sh.Ram Parkash Grover on 24 December, 2014
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IN THE COURT OF SH. RAMESH KUMAR
ADDL. DISTRICT JUDGE-04: CENTRAL: DELHI
Date of institution : 16.04.1990
Arguments heard : 08.12.2014
Announced on : 24.12.2014
In re:
Suit no. 367/08
1. Sh. Ashok Kumar Jain
S/o Sh.Jagdishwar Dass Jain.
2. Smt. Usha Jain
W/o Sh. Ashok Kumar Jain.
Both R/o 8/51, South Patel Nagar,
New Delhi. ... Plaintiffs
Vs.
1. Sh.Ram Parkash Grover.
S/o Sh. Sawan Ram Grover.
R/o 3260, Ranjit Nagar,
New Delhi.
2. Sh. Harbans Lal Grover,
33/3, Punjabi Bagh Extension,
New Delhi.
3. Sh. Pankaj Roy Grover,
R/o 8/31, South Patel Nagar,
New Delhi.
At preset residing at:
6628, 44th P.I.N.
Country of Kind City of Seattle,
State of Washington (U.S.A.),
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To be served through:
Sh. Ram Prakash Grover,
Attorney of Defendant No.3,
Pankaj Roy Grover.
4. Sh. Prakash Kriplani,
S/o Late Sh. Jiwat Ram,
R/o 36, Pusa Road,
New Delhi. ... Defendants
JUDGMENT
1. This is a suit for specific performance of agreement to sell dated 25th July, 1989 and in alternative for damages for breach of contract.
2. The brief facts of the case, as pleaded in the plaint, are that the defendants No.1 to 3 are the owners, in possession of 2 storied Government built property No.8/31, South Patel Nagar, New Delhi (hereinafter referred to as the "suit property"), built on perpetual lease-hold land/plot measuring about 200 sq.yards. It is pleaded that earlier the property belonged to Sh. Sawan Ram, which has been inherited by defendants No.1 to 3 on his death and has been duly mutated by the Land and Development office in the name of defendants No.1 to 3. Further, it is pleaded that on 25.07.1989, the defendant No.1 for himself and for and on behalf of defendants No. 2 & 3, as their attorney, entered into an agreement to sell the suit property with perpetual lease hold rights on the land along with electricity, water fitting and fixtures etc. to the plaintiffs for a total consideration of Rs.16,50,000/- with the vacant and peaceful possession of complete house.
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3. Further, it is pleaded in the plaint that the plaintiffs paid Rs.1.00lacs out of which, Rs.50,000/- in cash, and Rs.50,000/-, vide cheque No.305431, dated 24.07.1989, drawn on the bank of India, as earnest money, for which defendant No.1 had executed a receipt dated 25.07.1989. Further, it is pleaded that according to the terms and conditions of the agreement, the plaintiffs were to make further payment of Rs.6.00 lakhs as part payment of sale consideration at the time of handing over the peaceful and vacant possession of the ground floor of the suit property and the balance amount of Rs.9,50,000/- was to be paid at the time of the registration of the sale deed before the Sub-registrar and also handing over the vacant and peaceful possession of the entire rest of the property to the plaintiffs.
4. It is claimed that defendants No.1 for himself and on behalf of defendants No.2 & 3 had assured that the property was free from all encumbrances, mortgages, gift exchanges, etc. and also agreed that they shall not create any charge of any nature on the property after execution of the agreement of sale and also there was no earlier agreement to sell for this property with anybody or public at large. It is claimed that defendants No.1 to 3 would be liable to make payment of all levies and demands of any authority/agency for the period upto the registration of the sale deed and thereafter, the plaintiffs would make the payments of such demands.
5. It is pleaded in the plaint that, it was represented by the defendants No.1 to 3 that they were not in possession of the original documents of the lease hold rights as the same were deposited with the concerned authorities for renewal and they assured that the original documents would be obtained from the concerned authorities and would be delivered to the plaintiffs at the time of payment of Rs.6.00 lakhs and also at the time of registration of the Suit no. 367/08 Ashok Kumar Jain Vs. Ram Prakash Grover Pg... 3 of 23 -4- sale deed. It is also claimed in the plaint that the defendants No.1 to 3 were to arrange income tax clearance certificate for sale of the property under Section 230A of the Income Tax Act. It is also claimed that the expenses such as stamp duty, registration fee and expenses of the sale deed were to be borne by the plaintiff. It is further claimed that, sometimes, in 1st week of August, 1989, Sh. R.P. Grover, defendant No.1 approached the plaintiffs and got their signatures on the forms required to be filled with the Income Tax Office for grant of permission.
6. Further, it is also pleaded in the plaint that, thereafter, plaintiffs approached defendant No.1 and offered to pay Rs.6.00lacs and asked them for giving possession of the ground floor of the suit property, in terms of agreement to sell dated 25.07.1989. It is claimed that, thereafter, plaintiffs came to know that the defendants Nos. 1 to 3 have entered into another agreement to sell with respect to the suit property with Sh. Prakash Kriplani, defendant No.4 for Rs.25.00 lakhs and got the agreement of sale dated 08.12.1989, registered for Rs.5,70,000/-.
7. Thereafter, a notice dated 18.12.1989 was sent to the defendants by the plaintiffs, informing that they were ready and willing to perform their part of agreement and the defendants Nos.1 to 3 were called upon to complete the transaction and were informed that their agreement with defendant No.4 was null and void, which was served upon the defendants and, thereafter, defendant No.2 wrote a letter for a photocopy of the agreement, which was duly sent to him. It is further pleaded that, thereafter, plaintiffs came to know that defendants No.1 to 3 had entered into an agreement to sell the property in question with defendant No.4 on 17.12.1989.
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8. Plaintiff claims that they were always ready and willing to perform their part of the contract and are still ready and willing. On these averments, a decree of specific performance is prayed. In the alternative, a decree of recovery of Rs.17,50,000/- is prayed with interest.
9. The defendants have contested the suit by filing their different written statements.
10. The defendant No.1 in his written statement have taken the preliminary objection that the agreement to sell is an incomplete documents as it was not signed by the co-owners i.e. defendants No.2 & 3. It is claimed that the answering defendant's signatures were obtained under coercion. It is claimed that the alleged agreement to sell was signed by the defendant No. 1, as a security only for the loan taken by him from the plaintiffs. The defendant No.1 had denied that he signed for an on behalf of defendants No.2 & 3. It is claimed that the words "Mr. R.P. Grover for self and on behalf of Mr. Harbans Lal Grover and Mr. Pankaj Raj Grover Vendors" have been fraudulently typed by the plaintiffs without the concurrence of answering defendants. It is claimed that the agreement was not to be acted upon and is supported by clause 16 of the said alleged agreement, which was nothing but a clause as a deterrent for assuring the return of the loan amount taken by the defendant No.1. Defendant No.1 further claimed that the plaintiff is entitled only for the refund of the loan amount of Rs.1.00 lac with reasonable interest. Defendant No.1 prayed that the suit be dismissed with costs.
11. Defendants No.2 & 3 in their contra pleadings, filed separately, have taken the preliminary objections, that there has been no privity of contract Suit no. 367/08 Ashok Kumar Jain Vs. Ram Prakash Grover Pg... 5 of 23 -6- between the plaintiffs and defendants No.2 & 3 and also the suit is bad for non-joinder and mis joinder of parties. On merits, it is specifically denied that alleged agreement to sell, dated 25.07.1989, is not binding on defendants No.2 & 3 and the defendant No.2 & 3 have neither appointed defendant No. 1 as their attorney nor they had ever executed any power of attorney in his favour. Thus, these defendants have also prayed that the suit of the plaintiffs be dismissed with costs.
12. Defendant No.4, in his contra pleadings, pleaded that the defendant No.4 is a bonafide purchaser of the suit property without any prior knowledge about the agreement to sell, dated 25.07.1989, alleged to have executed between the plaintiffs and defendant No.1, who was only the co-owner of the property and that the defendant No.4 is protected under the Transfer of Property Act, 1882. It is claimed that there is no proper and legal sale agreement. This defendant pleaded that there is no cause of action between the plaintiff and defendant No.4. This defendant has also prayed that the suit of the plaintiffs be dismissed with costs.
13. In replication, the plaintiff reiterated the averments of the plaint.
14. Following issues were framed in the suit on 21.11.2007 :-
1. Whether the agreement dated 25/07/1989 was signed by defendant No.1 under coercion as pleaded by him in the written statement. If so, its effect?
2. If issue No.1 above is answered in negative, whether defendant No. 1 had no authority to sign the agreement on behalf of defendant Nos. 2&3? OPD 1, 2 and 3.
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3. Whether defendant No.4 is a bonafide purchaser for valuable consideration without notice? If so, to what effect?
4. Whether the plaintiffs are entitled to specific performance of the contract against the defendants No.1,2 and 3?OPP.
5. If relief of specific performance is not possible whether the plaintiffs are entitled to the alternative relief of compensation? If so, to what amount and against whom? OPP.
6. Whether the plaintiffs have always ready and willing to perform their part of the contract? OPP.
7. Whether there is no cause of action against defendant No.4?
OPD-4.
8. Whether the relief sought against defendant No.4 is belated and time barred?OPD-4.
9. Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD-4.
10. Relief.
15. In support of his case the plaintiff examined himself as PW1. This witness has deposed on the lines and averments in the plaint. During his evidence, this witness has proved on record agreement to sell as Ex.PW-1/1; Carbon copy of notice as Ex.PW-1/2; Postal registration receipt as Ex.PW-1/3; UPC Suit no. 367/08 Ashok Kumar Jain Vs. Ram Prakash Grover Pg... 7 of 23 -8- as Ex.PW-1/4; letter dated 25.12.1989 as Ex.PW-1/5; the envelop and Postal receipt are Ex.1/6 & 7; the carbon copy of reply as Ex.PW-1/8; AD Card addressed to Sh. Harbans Lal as Ex.PW-1/9; returned A.D. Registered cover as Ex.PW-1/10; agreement dated 08.12.1989 which was got registered as Ex.PW-1/11.
16. This witness has been cross-examined at length by the defendants. During cross-examination, this witness has deposed that he had seen the original power of attorney executed by defendants Nos.2 & 3 in favour of defendant No.1, but he further deposed that he did not receive copy of any of the power of attorney. This witness has admitted the suggestion of ld. counsel for the defendants No. 2 & 3 that he did not make any payment to defendants No. 2 & 3. During cross-examination by defendant No.1, this witness has denied that defendant No. 1 had obtained a loan of Rs.1.00 lac from the defendants No.2 & 3 and that Ex.PW-1/1 was executed in consideration of that loan amount.
17. PW-1 had again come in evidence in rebuttal and was again cross-
examined by the defendants.
18. Defendant No.1 Ram Prakash Grover, had examined himself as D1W1.
This witness had deposed that the agreement to sell, dated 25.07.1989, was signed by him in his individual capacity as a security for the loan amount of Rs.1.00 lac obtained by him from the plaintiffs and it was never intended to be acted upon as an agreement to sell of the suit property by him. This witness further deposed that Mr. R.P. Grover for self and on behalf of Mr. Harbans Lal Grover and Mr. Pankaj Raj Grover vendors' have been fraudulently got typed by the plaintiffs, later on. Suit no. 367/08 Ashok Kumar Jain Vs. Ram Prakash Grover Pg... 8 of 23 -9-
19. During cross-examination, this witness had deposed that he had signed at point A, on the document Ex.PW-1/1, i.e. agreement to sell. He further deposed that, at the time of signing Ex.PW-1/1, he did not know the nature of document. This witness also deposed that Ex.PW-1/1 is also signed by him at point A and he was fully aware of the contents of the same.
20. On behalf of defendants No.2 & 3, Sh. Harbans Lal Grover had examined himself as the only witness D2W1. This witness had deposed that there is no privity of contract between the plaintiffs and the defendants No.2 & 3 and that defendants No.2 & 3 neither executed any agreement to sell either on 25.07.1989 or on any other date, for any consideration in favour of plaintiff.
21. Two witnesses had been examined on behalf of defendant No.4. He himself had come in witness box and was examined as DW4. This witness had categorically deposed that the erstwhile owners of the property, on 08.12.1989, executed transfer papers in favour of the deponent and delivered peaceful possession of the same to the defendant within the knowledge of the plaintiff as the plaintiff used to reside in the same area.
22. On behalf of defendant No.4 another witness Sh. Sunil Kamar, UDC, from the office of Sub-Registrar-I, Kashmiri Gate, had been examined as D4W2. This witness had deposed that smt. Kailash Kapoor had executed an agreement to sell, in respect of the above said property in favour of Sh.D.P. Ohri for a total sale consideration of Rs.5,50,000/- and the said documents was registered as registration No.4211, Vol. No.5124 at pages 33 to 37, in Addl. Book No.1, dated 18.07.1989, and had proved on record certified copy of the agreement to sell and purchase as Ex.D4W2/A. Suit no. 367/08 Ashok Kumar Jain Vs. Ram Prakash Grover Pg... 9 of 23
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23. During cross-examination, this witness had deposed that agreement to sell was not typed, prepared and signed in his presence.
24. I have heard arguments of ld. Counsels for the parties and have gone through the records carefully.
25. The issue wise findings are as follows.
26. Issue no. 1 & 2.
1. Whether the agreement dated 25/07/1989 was signed by defendant No.1 under coercion as pleaded by him in the written statement. If so, its effect?
&
2. If issue No.1 above is answered in negative, whether defendant No.1 had no authority to sign the agreement on behalf of defendant Nos. 2&3? OPD 1,2 and 3.
27. Both these issues are taken up together as they are interconnected.
28. In his written statement, defendant No.1 has pleaded that his signatures were obtained on the agreement to sell under coercion.
29. Defendant No.1, in his cross-examination, had deposed that he was a graduate and can understand and write English Language. This witness has further deposed that, at the time of signing, he did not know the nature Suit no. 367/08 Ashok Kumar Jain Vs. Ram Prakash Grover Pg... 10 of 23
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of document. He further deposed that, at the time of filing of the suit, he came to know about the nature of Ex.PW-1/1. As the defendant is well educated and the can understand and write English language, the plea of defendant that he does not know the nature of document, at the time of signing, has no force in the eyes of law.
30. It is admitted that agreement to sell Ex.PW-1/1 was prepared on 25.07.1989 and the present suit was filed in March 1990. Till then no complaint of coercion was filed by the defendant No.1. Even, on that very date the defendant No.1 had signed a receipt for Rs.1.00lac.
31. It is not the case of defendant No.1 that he had ever lodged any complaint with regard to the coercion.
32. On the other hand, the plaintiffs had proved on record original agreement to sell Ex.PW-1/1 and receipt Ex.PW-1/1A. Both these receipts were, admittedly, signed by the defendant No.1.
33. Thus, the plea taken by the defendant No.1, that he had signed the agreement to sell under coersion is merely a bald plea and it is not proved on record.
34. With regard to the issue No.2 whether the defendant No.1 had any authority to sign the same on behalf of defendants No. 2 & 3, the plaintiff as PW-1 had deposed that in Ex.PW-1/1, under the signatures of defendant No.1, it was written "R.P. Grover for self and on behlaf of Mr. Harbans Lal Grover & Mr. Pankaj Raj Grover".
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35. The plaintiff No.1, as PW-1, had pleaded that plaintiffs had entered into agreement to sell in respect of the suit property with the defendant No.1 for himself and on behalf of defendants No.2 & 3 as their attorney. During cross-examination, the PW-1 submits that he had seen the original power of attorney, executed by Harbans Lal Grover and Pankaj Rai Grover, in favour of defendant No.1, prior to 25.07.1989, but he deposed that he did not remember the exact date. He further deposed that he did not call upon defendant No.1 in writing to handover to him copies of power of attorney. He even did not remember the names and number of the witnesses in those power of attornies.
36. On behalf of defendants No. 2 & 3, it is pleaded that they had neither executed any agreement to sell either or 25.07.1989 or any other date for any consideration nor they ever authorized defendant No.1 to negotiate for sale of the suit property or authorize anyone to execute any agreement to sell.
37. During cross-examination D2W1, had deposed that he did not remember whether he and his brother, Sh. Pankaj Rai Grover, had already given attorney to Sh. Ram Parkash Grover, the defendant No.1.
38. The defendant No.1 in his cross-examination had deposed that he had no authority or any power of attorney to sign Ex.PW-1/1 on behalf of his brothers i.e. defendant No.2 & 3. He further denied the suggestion, of ld. counsel for the plaintiff, as incorrect that at the time of entering into the agreement Ex.PW-1/1, he had shown the original power of attorney executed by defendants No.2 & 3, in his favour, to the plaintiff.
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39. It is the case of the plaintiffs that the defendant No.1 had shown them a power of attorney, executed by the defendants No.2 & 3, in his favour. No such power of attorney or copy thereto was proved on record. It is the duty of the plaintiffs that, before entering into any agreement, they should ensure the correctness of the documents or must take a copy thereto with them. It is not the case of the plaintiffs that they are illiterate persons.
40. As no authority or copy thereof, in favour of the defendant No.1, executed by defendant Nos.2 & 3 is proved on record, thus, it cannot be said that the defendants Nos.2 & 3 had executed any authority in favour of defendant No.1.
41. Thus, both these issues are decided, accordingly.
Issue No.3 & 73. Whether defendant No.4 is a bonafide purchaser for valuable consideration without notice? If so, to what effect?
&
7. Whether there is no cause of action against defendant No.4? OPD-4.
42. Both these issues are taken up together as they are interconnected.
43. It has been pleaded by the plaintiffs that defendant No.4 had alleged that he is the bonafide purchaser without any prior notice or knowledge about the agreement to sell, dated 25.07.1989, said to have been executed between defendant No.1 and the plaintiffs.
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44. The defendant No.4 in his written statement had taken a defence that he was protected under the Transfer of Property Act, 1882 and no decree for specific performance can be granted against him. The defendant as DW-4 had pleaded that the suit property was purchased by him from its lawful owners i.e. defendants No. 1 to 3, for lawful consideration and the said erstwhile owner of the property, on 08.12.1989, had executed property transfer papers like agreement to sell, will, power of attorney in his favour and also delivered peaceful vacant possession of the suit property. This witness had relied upon the document Ex.PW-1/11 i.e. agreement to sell and also proved on record Power of attorney and Will as Ex.DW-4/1 & 2.
45. It is vehemently argued by defendant No.4 that the agreement to sell with defendant No.4 was duly registered and the payments, had been accepted, by all the defendants No.1 to 3 as sale consideration of the property in question.
46. Ld. Counsel for the plaintiff has vehemently argued that the defendant No.4 claims that he had entered into an agreement of Rs.5,70,000/- whereas the plaintiffs claims that they had entered into agreement for Rs.16.50 lacs. He further argued that at no point of time the prices of the property fell down to such extent, thus, it categorically shows that the agreement to sell allegedly with defendant No.4 is camouflage and is no agreement in the eyes of law.
47. On behalf of defendant No.4, D4W2 Sh. Sunil Kumar, UDC, Office of Sub-
Registrar-I, had also deposed that, as per the records, Smt. Kailash Kapoor had executed, an agreement to sell in respect of the property bearing No. 8/37, South Patel Nagar, Delhi, in favour of Sh. D.P. Ohri for a total consideration of Rs.5,50,000/-.
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48. The defendant No. 4 has deposed that he is in possession of the suit property, by virtue of sale documents Ex.PW-1/11, Ex.DW-4/1 & 2. The documents Ex.PW-1/11 and DW-4/1 & 2 were duly proved on record.
49. Thus, it is proved on record that the defendant No.4 is a bonafide purchaser and in view of this, there is no cause of action between the plaintiffs and defendant No.4.
50. Thus, in view of the aforesaid facts, both these issues are decided in favour of the defendant No. 4 and against the plaintiffs.
51. Issues No.4 & 54. Whether the plaintiffs are entitled to specific performance of the contract against the defendants No.1,2 and 3?OPP.
&
5. If relief of specific performance is not possible whether the plaintiffs are entitled to the alternative relief of compensation? If so, to what amount and against whom? OPP.
52. The onus to prove both these issues was on the plaintiffs.
53. To prove issue No.4, the plaintiffs have proved on record agreement to sell Ex.PW-1/1 and receipt of the earnest money. It is claimed that as per the terms and conditions of the agreement, it was agreed between the plaintiff and the defendant, that the further payment of Rs.6.00 lacs, as part Suit no. 367/08 Ashok Kumar Jain Vs. Ram Prakash Grover Pg... 15 of 23
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payment of the sale consideration, would be made, at the time of handling over the vacant possession of the ground floor. It is claimed that the plaintiffs were ready and willing to pay Rs.6.00lakhs and balance sale consideration. It is further claimed that the defendants No.1 to 3 were to inform the plaintiff after the receipt of the Income Tax Clearance Certificate and permission to sell, and on receipt of the documents of the lease hold rights by a registered letter intimating therein the receipt and the possession of the said documents along with copies of the these documents and the plaintiffs were to get the sale deed registered within 30 days of the receipt of the notice from the defendant Nos.1 to 3. It is further claimed that, in the first week of August, 1989, defendant No.1 approached the plaintiffs and obtained their signatures on the forms required to be filled with the Income Tax Office for grant of permission under Section 20-C of the Income Tax Act.
54. As per the plaintiff's own case, the agreement was executed on 25.07.1989.
The time limit for execution of sale documents was three month i.e. 25.10.1989. The plaintiff send the notice to all the defendants on 18.12.1989. It is clear from the record that the plaintiffs did not sent any written communication to the defendants, in between, asking them to accept the balance payment. Though, the plaintiffs claimed that they were always ready and willing to perform their part of the contract but this conduct reveals otherwise. Up till the legal notice, dated 18.12.1989, Ex.PW1/2, no communication was sent by the plaintiffs to the defendants asking them to perform their part of the contract. Though, the plaintiffs claimed that oral communications took place between the plaintiffs and the defendants but the defendants categorically denied it.
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55. It is also clear that with regard to the present transaction, plaintiffs claim that he had seen the General Power of Attorney in favour of the defendant No.1 at the time of execution of Ex.PW1/1, but the said attorney was not proved on record. Even the copy thereof was not placed on record. During cross- examination D2W1, the defendant No.2 Sh. Harbans Lal Grover, has deposed that "I have never given any attorney to sell the property in that GPA to the best of my knowledge and belief."
56. Thus, it is not proved on record that the defendants No.2 & 3 had ever given any attorney to sell the property to the defendant No.1.
57. It is proved on record that defendant No.4 is bonafide purchaser of the property in question. Thus, as the suit property was already sold to another purchaser, the plaintiffs are not entitled to relief of specific performance, even there is no valid agreement to sell between the plaintiffs and defendants No.2 &3.
58. The plaintiffs have prayed that, if the relief of specific performance is not possible, then a decree for recovery of Rs.17,50,000/- along with future interest @18% per annum, in his favour, be passed. It is the case of the plaintiffs that they had only paid Rs.1.00 lacs as earnest money. It is not the case of the plaintiffs that they had ever paid any further amount to the defendant No.1. Only a receipt Ex.PW-1/2 of Rs.1.00 lac was proved on record.
59. Even in the para 16 of the agreement to sell Ex.PW-1/1, it is mentioned that :
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"16. That in case Vendors infringes the terms and conditions of this agreement, then the Vendees shall be entitled and are free to get completion of the same of the property and its registration through Court of law at the cost of the Vendors. However, if under any circumstances, it becomes impossible to complete the sale of whole of the property and registration thereof, then the Vendees will be entitled for the refund of the above said earnest money plus equivalent amount as liquidating damages i.e. Rs.2.00 lacs, till such time this amount is paid to the Vendees. Till such time this amount is paid to the Vendees. Mr. R.P. Grover will not be authorized to enter into any agreement for sale of his share in the said property and the said amount of Rs. Two Lacs can be recovered from him through any of his assets....."
60. Thus, it is clear, from this clause of agreement to sell, Ex.PW-1/1 in this case, if, under any circumstances, it becomes impossible to complete the sale of whole of the property and registration thereof, then the Vendees will be entitled for the refund of the above said earnest money plus equivalent amount as liquidating damages i.e. Rs.2.00 lacs.
61. It is clear from the record that the agreement to sell was executed between the plaintiffs and defendant No.1 only. No GPA on behalf of defendants No. 2 & 3 for selling the property was given to the defendant No.1. Thus, the plaintiffs are only entitled for compensation of Rs.2.00 lacs from defendant No. 1 only.
62. Thus, both these issues are disposed of, accordingly.
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63. Issue No.6.
Whether the plaintiffs have always ready and willing to perform their part of the contract? OPP.
64. The onus to prove this issue was also on the plaintiffs. To prove this issue, plaintiff No.1, as PW-1, deposed that he was always ready and willing to perform their part of contract. The plaintiffs submitted that defendants No.1 to 3 were to inform the plaintiffs after the receipt of Income Tax Clearance Certificate and permission to sell and on receipt of the documents of the lease-hold rights by the registered letter intimating therein the receipt and possession of the said documents along with copies of these documents and the plaintiff were to get the sale deed registered within 30 days of the receipt of notice from the defendants No.1 to 3. PW-1 had further deposed that plaintiffs have been approaching the defendant No.1 for completing the transaction and offered to pay Rs.6.00 lakhs and asked for giving possession of the ground floor in terms of Ex.PW-1/1.
65. Ld. Counsel for the plaintiff had argued that plaintiffs have served a legal notice to the defendants and informed the defendants, number of times, to execute the sale deed in respect of the premises.
66. The agreement Ex.PW-1/1 was executed on 25.07.1989 and the notice was sent to the defendants on 19.12.1989. As per clause 13 of Agreement to sell Ex.PW-1/1, it is agreed that "all the formalities required to be completed by the vendors will be completed within the period of three months". As per this clause, the three month's time was completed on 25.10.1989, but the notice was issued by the plaintiffs only on 19.12.1989. No other written Suit no. 367/08 Ashok Kumar Jain Vs. Ram Prakash Grover Pg... 19 of 23
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communication was proved on record.
67. In the case of Azhar Sultana v. B. Rajamani, AIR 2009 SUPREME COURT 2157, it is held, that in view of Section 16(c) of the Specific Relief Act, 1963, the plaintiff was required to make requisite averments that she had all along been and still is ready and willing to perform her part of the contract and also establish the same. In that case, it was held that section 16(c) of the Specific Relief Act, 1963 postulates continuous readiness and willingness on the part of the plaintiff. It is a condition precedent for obtaining a relief of grant of specific performance of contract.
68. Thus, in the facts and circumstances, it is not proved on record that the plaintiffs were ready and willing to perform their part of contract. This issue is decided, accordingly, against the plaintiff.
Issue No. 8.
Whether the relief sought against defendant No.4 is belated and time barred?OPD-4..
69. The onus to prove this issue was on the defendant no.4.
70. The defendant No.4 had deposed that the present suit was filed in March 1990. It is claimed that plaintiff, after 6 years, had sought amendment of plaint for seeking relief of possession, which is beyond the period of limitation.
71. The defendant No.4, as DW-4 had deposed that the suit of the plaintiff for relief of possession against the deponent is hopelessly time barred. Mere taking this bald plea, no documentary evidence was lead on behalf of defendant No.4, to prove on record, how the suit of the plaintiff is belated Suit no. 367/08 Ashok Kumar Jain Vs. Ram Prakash Grover Pg... 20 of 23
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and time barred against him. The plaintiffs had filed this suit in the year 1990, whereas the agreement to sell Ex.PW-1/1 was dated 25.07.1989. Thus, by no stretch of imagination, it can be said that the suit is time barred.
72. Thus, this issue is decided in favour of the plaintiff and against the defendant.
73. Issue No.9.
Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD-4.
74. The onus to prove this issue was on the defendant No.4.
75. The plaintiff in para 35 of its plaint had pleaded that the value of the suit for the purposes of Court fee is Rs.17,50,000/- on which a court fee of Rs. 19,424/- was affixed, as damages are claimed as alternate relief, no court fee is payable on that.
76. In reply to this para, in his written statement, the defendant No.4, in his two written statements dated 31.10.1991 and 22.02.2002, had deposed that "Para 35 needs no reply except, that the plaintiffs are not entitled to seek any damages against the answering defendant No.4". But in his written statement dated 21.06.1999, had pleaded that "Para 35 is wrong and is denied. As stated in the Preliminary Objection the value of the suit is incorrect and there is deficit court fee. Hence, the suit is liable to be dismissed. That the plaintiffs are not entitled to seek any damages against the answering defendant No.4".
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77. After going through these shifting stands of the defendant, it is clear on record that this plea of the defendant is merely a bald plea and afterthought. This plea has no force in the eyes of law.
78. The issue of court fee is a legal issue and the court has to look into this issue at its own. In the office noting dated 20.03.1990, it is noted that "value of the case is Rs.17,50,000/- and the court fee of Rs.19,424/- has been paid which is sufficient".
79. Thus, this issue is decided against the defendant No.4 and in favour of plaintiffs.
Relief
80. In view of the facts and circumstances of the case, the suit of the plaintiff is partly decreed for an amount of Rs.2.00lakhs against the defendant No.1 only.
81. Plaintiff has prayed interest @18%p.a. The rate of interest claimed by the plaintiff is on higher side. Thus, this court is inclined that the interest @6%p.a. would suffice the claim of the plaintiff.
82. Thus, the suit of the plaintiffs is decreed for an amount of Rs.2.00lakhs along with interest @6% p.a., from the date of filing the suit, till its recovery, against the defendant No.1 only.
83. The suit of plaintiffs qua specific performance is dismissed.
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84. The suit of the plaintiffs is dismissed qua defendants No.2,3 & 4.
85. Plaintiffs shall also be entitled to the cost of suit from the defendant No.1, only. Decree sheet be prepared, accordingly. File be consigned to the record room.
Announced in the open court RAMESH KUMAR
on 24th Day of December, 2014. ADJ-04 (Central)
Delhi
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