Delhi District Court
In Re : Parmanand Saini vs . S.K.Timber & Ors. on 3 October, 2012
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IN THE COURT OF SH. DIG VINAY SINGH
ADDL. DISTRICT JUDGE -04 : CENTRAL : DELHI
Date of institution : 9.01.1998 (Suit no. 331/08/98)
Date of institution : 17.04.2000 (Suit no.333/08/00)
Based on written arguments
Judgment Announced on : 03.10.2012
In re : Parmanand Saini Vs. S.K.Timber & Ors.
Suit no. 331/08/98
Sh. Parma Nand Saini
S/o Sh. H.S.Saini
R/o 30, Jungpura Road,
Bhogal, New Delhi. .... Plaintiff
Versus
1. M/s S.K.Timber
Through its Proprietor,
Sh. Sanjay Kumar Gupta,
S/o Sh.S.K.Gupta
R/o 9, Temple Road,
Bhogal, New Delhi.
2. Smt. Neeru Bala,
W/o Sh. Sanjay Kumar Gupta.
R/o 9, Temple Road,
Bhogal, New Delhi.
3. Sh. Rajesh Kumar Gupta
S/o Sh. Sanjay Kumar Gupta.
R/o 9, Temple Road,
Bhogal, New Delhi.
Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 1 of 39 r
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4. Sh.S.K.Gupta
Son of not known
R/o 9, Temple Road,
Bhogal, New Delhi. .... Defendants
(This suit no. 331/08/98 is for Possession, Injunction &
mesne profits.)
Neeru Bala Vs. Parmanand Saini
Suit no. 333/08/00
Smt. Neeru Bala
W/o Sh. Sanjay Gupta
R/o C-603, New Friends Colony,
New Delhi - 110065.
... Plaintiff
Versus
Sh. Parmanand Saini
S/o Sh. H.S.Saini
R/o 30, Jangpura Road,
Bhogal, New Delhi. ... Defendants
(This suit no. 333/08/00 is for Specific Performance.)
JUDGMENT
1. These are two suits, being decided by this common judgment since the suit property is same and the facts and evidence led in both the cases is common, though recorded separately in the two suits. The suit property is Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 2 of 39 r -3- Ground Floor of Property no. 30, measuring 100 Sq. Yards in undivided plot no. 13, Khasra no. 720, Jungpura Road, Bhogal, New Delhi. The first suit has been filed by Parma Nand Saini (hereinafter referred to as 'P' and as the suit filed by 'P', for the sake of convenience). The said suit is for possession, permanent injunction and mesne profits. This suit has been filed against four defendants named above, including Smt. Neeru Bala. It was filed on 8.1.1998 and, originally in this suit only possession and permanent injunction was sought. Subsequently, vide an amendment allowed in favour of 'P', the relief of mesne profits was added in the suit vide an amended plaint dated 25.07.2003.
2. Smt. Neeru Bala (hereinafter referred to as 'N' and as the suit filed by 'N', for the sake of convenience) has preferred another suit for specific performance of an agreement to sell the same property that is ground floor. The suit filed by 'N' is against 'P' only. This suit by 'N' was originally filed in April 2000. Originally, in this suit 'N' prayed a decree of specific performance with an alternative prayer of compensation of Rs. 50 Lakhs. Subsequently, even this suit was amended and the relief of compensation was restricted to Rs.5 Lakh only.
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3. Brief facts are that 'P' claims that he is owner of the entire property upto 3rd floor constructed on property no. 30, except the basement. Though the basement is not the suit property but it is important to note that, admittedly, on 13.2.1997, the basement of this property was sold by 'P' to 'N' vide a registered sale deed in which the sale consideration was shown as Rs.1 Lakh only. Admittedly, the said sale of basement was also based on an oral agreement to sell.
4. The controversy is qua the Ground Floor of this Property no. 30, measuring 100 Sq. Yards in undivided plot no. 13, Khasra no. 720, Jungpura Road, Bhogal, New Delhi (hereinafter referred to as the suit property). 'P' claims that he wanted to sell the ground floor of this property also, sometime in October 1997. The four defendants of the suit filed by 'P' approached 'P' through some common acquaintance and they told 'P' that one of their relatives was interested in purchase of suit property. 'P' claims that since he had to go out of Delhi for two months, the key of the suit property was handed over to 'N' and others for being shown to the prospective buyer. 'P' returned to Delhi in mid of December 1997 and on being enquired, defendants of his suit told him that the Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 4 of 39 r -5- deal of the property was almost on the verge of finality and only sale amount was to be settled. Prospective buyer of the property was not allowed to meet 'P'. Thereafter, 'N' was introduced to 'P' as the prospective buyer by other defendants of the suit filed by him, and she was introduced as proprietor of M/s S.K.Timbers (Defendant no. 1 in the suit filed by 'P'). Even a sign board of M/s S.K.Timbers was put on the property. The deal between 'P' & 'N' did not materialize and 'P' demanded the keys of the property but it was refused on 4.1.1998. It is the claim of 'P' that keys of the suit property were handed over to the defendants of his suit only for the purposes of showing the property to the prospective buyers and the defendants are trespassers of the property. 'P' thus seeks possession of the suit property. A decree of permanent injunction against alienation of property is also prayed. Vide subsequent amendment, as mentioned above, he also seeks decree of damages/mesne profits @ Rs.25,000/- per month w.e.f. November 2001 till the date of possession.
5. On the other hand, the version of 'N' and others is that just like the fact that 'P' entered into an oral agreement to sell the basement of the property in favour of 'N' in Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 5 of 39 r -6- February 1997, 'P' also entered into an oral agreement to sell the suit property to 'N'. The total sale consideration agreed was Rs.6 Lakhs out of which Rs.5 Lakh was paid to 'P' on 14.4.1997 and 'P' also executed one receipt on the same day which was witnessed by one Ram Avtar and one Raj Kumar. 'N' and others also claims that possession of the suit property was handed over on the same day as part performance of contract and thereafter 'N' is in possession of the property which she let out to S.K.Timber, a proprietorship concern of her father in law(Defendant no. 4 in the suit filed by 'P'). She claims that she is not proprietor of S.K.Timbers. It is claimed by 'N' that 'P' subsequently turned dishonest and did not execute the sale deed of the suit property. She claims that she was and is always ready and willing to perform her part of the contract. Admittedly, the suit property was subsequently sealed by the Municipal Corporation of Delhi sometime in July 2001.
6. In reply, 'P' claims that he never entered into any agreement to sell the suit property to 'N', more particularly on 14.4.1997 and that he neither executed any such receipt nor he received any amount of Rs.5 Lakh as claimed by 'N' & Ors.
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7. In the suit filed by 'P' under Suit no. 331/08/98, following issues were framed on three different dates i.e. 12.10.99, 10.1.2000 and 20.9.2004 :-
Issues framed on 12.10.99
1. Whether the suit is bad for mis-joinder of parties? OPD
2. Whether suit is valued properly for the purpose of Court Fees, jurisdiction? OPD
3. Whether plaintiff is entitled for possession of the suit premises? OPP
4. Relief.
Additional Issue framed on 10.1.2000
1. Whether plaintiff is entitled for the market value of the suit premises i.e. ground floor of the premises bearing municipal No. 130, undivided plot No. 13, Khasra No. 720, situated at Jangpura Road, Bhogal, New Delhi. OPP.
Issues framed on 20.09.2004 Issue no. 3(a)-
Whether the plaintiff is entitled to damages/mesne profit if so at what rate for which period and to what amount? OPP Issue no. 3(b)-
Whether the defendant is entitled to pendentelite and future damages if so at what rate to what amount? OPD.
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8. It would be relevant to mention here that the issue dated 10.01.2000 as to entitlement of 'P' to market value of the suit property was framed on an application filed by P U/s 151 CPC in which he prayed that since the opposite party is trespasser in the property and is using the property, it be asked to pay market value of the property for using the premises.
9. On the other hand, in the subsequent suit no. 333/08 filed by 'N' against 'P', following issues were framed on 5.2.2004 & 5.8.2004 :-
Issues on 5.02.2004
1. Whether, the suit of the plaintiff is maintainable in the present form, as prayed by the plaintiff? OPP
2. Relief Issues on 5.08.2004
1. Whether the plaintiffs entered into any agreement for sale of the property in question with the defendants, as alleged in the plaint? OPP.
2.Whether the plaintiff made any demand towards the total consideration for the purchase of the property in question, to the defendant? OPP.
3.Relief.
10.Before taking up the issues and giving findings on them, it would be appropriate to mention as to what evidence Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 8 of 39 r -9- has been recorded from both the sides in these two cases. Evidence was not recorded common in these two cases, as earlier these two suits were being tried in two different courts. Subsequently, the suits were sent to one court.
11.From the side of 'P', he has examined himself as PW1 in the suit filed by him and as DW1 in the suit filed against him. He also examined Sh. Chandrashekhar Saini as PW2 in the suit filed by him.
12. The deposition of 'P' is in lines to the averments contained in his plaint, replication in the suit filed by him as well as WS filed by him in the suit filed against him by 'N'. He proved site plan of the suit property as Ex.PW1/1. He admitted that he sold the basement of the same property to 'N' in February 1997, whereas, in the plaint filed by him he claimed that 'N' was introduced to him as a potential buyer of the suit property only on 2.1.1998. He admitted that qua the sale of basement, he had received entire sale consideration of Rs.1 Lakh. He also deposed that the suit property can fetch Rs.25,000/- per month as it was the market rent prevalent in the area. He denied that he ever entered into any agreement to sell with 'N' qua the suit property Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 9 of 39 r
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or he ever executed the receipt dated 14.04.1997. 'P', during cross examination by 'N', claimed that the sale consideration of basement was mentioned in the total documents as one lakh only whereas actually, it was sold for Rs.12 Lakh. He claims that it was done to evade stamp duty. He also admitted that Sh. S. K. Gupta (Defendant no. 4 in his suit) was father in law of 'N'. The fact that 'P' sold basement of the property to 'N' shows falseness of this witness to the effect that he has claimed that he did not know 'N' till January 1998 when she was introduced to him as a prospective buyer of the suit property. When he sold the basement of property to 'N' in February 1997, it is but natural that he knew 'N' as the transfer documents of basement are registered sale deed in which both parties are required to appear before Sub-Registrar at the time of registration. 'P' claimed that basement was sold to husband of 'N' whereas it was got registered in the name of 'N' but prior to his suit, he did not know 'N' to be wife of Sanjay. He also claimed that he did not read the sale deed of the basement. This fact is uninspiring and 'P' seems to be telling a lie on this aspect. In the evidence, 'P' also admitted that though he claimed the opposite party i.e. 'N' & Ors. to Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 10 of 39 r
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be property dealers but he cannot give any particulars of any property sold or purchased by them. This fact again belies the version of 'P'. Admittedly, the area of the basement and ground floor was same i.e. 840 Sq. feet, this fact is admitted by both the sides. In his evidence, 'P' specifically said that neither he executed the receipt nor he received Rs. 5 Lakhs from 'N' and also that he did not give possession of the property towards part performance of agreement to sell. He claimed that he did not know Raj Kumar Gupta one of the witnesses of this receipt. He also claimed that Ram Avtar, the another witness of the receipt, was on inimical terms with him and he is in litigation with Ram Avtar which case was pending. He admitted that he used to sign in 'Hindi' till the year 1996-97. He admitted his signatures on Ex.PW1/D2 which is the earlier sale deed with respect to the basement of the property by him in favour of 'N' dated 13.02.1997. The said signatures are also in 'Hindi' language. He also admitted that he never made any police complaint in writing about trespass in the suit property by 'N' and others. He claimed that he was married in February 1997 but he went to Nainital with his wife in October 1997. Admittedly, no proof has been Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 11 of 39 r
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filed to show that he was out of Delhi between October and December 1997. He also claimed that he changed his signatures from Hindi to English as few people had started forging his signatures. In support of his claim of mesne profits, he proved three lease agreements Ex.P1/D1 to D3, but admittedly, he was not in possession of any counterfoil of rent receipts or income tax returns to show the rate of rent of his other floors of property. Though, he claimed that he used to mention rent in his income tax returns, but he did not prove any income tax return.
13. PW2 Chandrakant Saini was examined by 'P' in his favour to prove the fact that rate of rent of similar located properties as that of the suit property was Rs. 25,000/- to Rs.30,000/- per month. This witness admitted that on the first floor of the same property, one tenant paying Rs.6000/- per month and that portion was also let out through him. He also claimed that on the second floor of his property, there was a tenant whereas third floor was in occupation of P. In cross examination, he admitted that he does not know anything about the three lease agreements Ex.P1/D1 to D3 and he claimed that the value of ground floor as on the date of his Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 12 of 39 r
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examination was Rs.35 to Rs.40 Lakhs.
14. On the other hand, 'N' and others examined Sh.S.K.Gupta and Raj Kumar as DW1 & 2, respectively, in the suit filed by 'P'. These two witnesses have also been examined as PW1 & 2, respectively, in the suit filed by 'N'.
15.As mentioned above, S.K.Gupta is father in law of 'N'. He claimed to be a Power of Attorney holder of 'N'. This witness also deposed that he has personal knowledge of the entire transaction. He claimed that the sale transaction of the basement as well as the suit property both were entered into and were executed in his presence. On these facts, he claimed to be a competent witness besides the attorney executed by 'N' in favour of him. The deposition of this witness S. K. Gupta is in lines to the averments of 'N' in her plaint and the WS filed by all the four defendants in the suit filed by 'P'. This witness claimed that just like the agreement to sell of basement of the property which was also oral in February 1997, 'P' entered into an oral agreement to sell, the suit property also in April 1997 and also executed a receipt of 14.04.1997 after receiving Rs. 5 Lakh. He also deposed that the possession of the suit Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 13 of 39 r
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property was handed over to 'N' by 'P' after receiving Rs.5 Lakh on 14.4.1997.
16.It would be pertinent to mention here that the receipt dated 14.04.1997 on which the decision of both these suit was based was claimed to be filed in original by 'N' and others in the suit filed by 'P'. It is claimed that on 4.12.1998, the receipt was filed in original in the court and even on that day, 'P' was present in the court and he admitted the said receipt. Subsequently, the said original receipt went missing from the records of the case, which is so mentioned in the order dated 1.5.2001. When the fact of loss of original receipt from the judicial record was brought to the notice of court, on 1.5.2001, my Ld. Predecessor Court called the Ahlmad concerned who on 22.05.2001 claimed that though a list of documents was filed on 4.12.1998 but the said list of documents does not mention that original receipt was filed along with it. Anyhow, subsequently permission to reconstruct the said receipt was sought from the Ld. District Judge which was granted and thereafter photocopy of receipt was filed by 'N' and others was taken on record. The said original receipt could never be traced on judicial record and therefore 'N' and others proved photocopy of the Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 14 of 39 r
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said receipt only.
17. During deposition, Sh.S.K.Gupta proved the original list of documents as Ex.DW1/1 and the photocopy of receipt dated 14.4.1997 as Ex.PW1/2. These documents were firstly exhibited on 4.12.2005 before the Local Commissioner who was appointed to record evidence. On that day although 'P' objected to mode of proof of other four documents i.e. Ex.DW1/3 to 1/6 but no objection as to the mode of proof of this receipt was raised. Documents Ex.DW1/3 to 1/6 are certified copy of suit filed by 'N' against MCD for demolition of unauthorised construction, written statement of MCD & Ors, copy of income tax returns of 'N' for the year ending 31.03.1998. On that day, Ld. Local Commissioner recorded that in view of the objection taken as to document Ex.DW1/3 to 6, further evidence cannot be recorded by him and the matter was referred back to the court. Subsequently, on 9.4.2007 the affidavit in evidence of Sh.S.K.Gupta was again tendered as Ex.DW1/A and on that day again these documents, including the receipt, were exhibited from Ex.DW1/1 to 1/6, respectively. On that day again, 'P' did not object to exhibiting all these documents and Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 15 of 39 r
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cross examination was deferred for another day. On the next date before cross examination 'P' raised the objection as to exhibiting all these documents including the receipt Ex.DW1/2. The said objection was kept open for arguments till final orders.
18. During cross examination Sh. S.K.Gupta admitted that in the receipt, the total sale consideration of Rs. 6 Lakh was not mentioned and that the suit for specific performance was filed by 'N' more than two years after the suit filed by 'P'. He denied the suggestion that the basement was sold for Rs.12 lakh and Rs.1 Lakh was mentioned to evade duty. He also denied the suggestion that the suit property was costing approximately Rs.30 Lakh in 1997. He denied the suggestion that the receipt was fabricated in collusion with Ram Avtar or Raj Kumar. One thing important to be mentioned here is that this witness admitted that he cannot show from the judicial files of these two cases as to the fact that 'P' ever admitted execution of the receipt dated 14.04.1997 during admission/denial of documents. It is the case of 'N' and others right from the beginning that the original receipt was filed by them and that 'P' on 4.12.1998 admitted his signatures but subsequently the receipt Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 16 of 39 r
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went missing from judicial records. In the list of documents filed on that day which is proved as Ex.DW1/1, it is not mentioned that original receipt was filed on that day. Anyhow, it is mentioned in the ordersheet of that date that admission/denial was conducted and normally, admission/denial is conducted with original documents only. Also, on the judicial file there is no photocopy of the said receipt which bears filing stamp dated 4.12.1998 which shows that the document which was filed along with this list of document was indeed missing from the judicial record. Had photocopy only been filed on that day, at least that photocopy should have been on record bearing filing stamp of the same date. Anyhow, after permission of reconstruction was received, the matter proceeded further on the reconstructed document. The question however, would be whether 'N' and others have been able to prove the said receipt or not? The ordersheet dated 4.12.1998 does not clearly mention that 'P' admitted signatures on this document.
19. Raj Kumar who was examined by 'N' and others, in their favour is one of the signatory of the receipt in question and he specifically deposed that he knew 'P', Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 17 of 39 r
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'N' as well as Sh. S.K.Gupta. He deposed that 'P' had sold basement of the property to 'N' which transaction was done through S.K.Gupta i.e. father in law of 'N'. Similarly, 'P' agreed to sell the suit property to 'N' and the talks were held in his presence on 14.4.1997. This transaction was also done through S.K.Gupta. The total sale consideration of the suit property was agreed at Rs. 6 Lakh out of which Rs.5 Lakh was paid in his presence to 'P' by S.K.Gupta on behalf of 'N'. 'P' also executed the receipt in question and handed over possession of the suit property to 'N'. He identified his signatures as well as signatures of Ram Avtar on the receipt. Nothing material could be brought out in the cross examination of this witness in either of the two cases, except the fact that this witness admitted to having business relations with S.K.Gupta i.e. father in law of 'N'. The witness in both the cases specifically deposed and stood his ground that the sale talks of the suit property were held in his presence, amount of Rs.5 Lakh was received by 'P' from S.K.Gupta and possession of the property was also handed over to 'N'. He also stood his ground that Ex.DW1/2 was executed by 'P' in his presence.
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20.With this background of facts and the evidence lead by both the sides, my issue wise finding are as under.
21. Issue no. 1, as framed on 12.10.1999, was as to whether the suit of 'P' is bad for misjoinder of parties. This issue was framed since 'N' and others in the suit filed by 'P' claimed that besides 'N', all other three defendants were misjoined. The 'P' as a plaintiff in his wisdom included these defendants claiming that M/s S.K.Timber was proprietorship of 'N' and there was involvement of other defendants in the trespass in the suit property. As per 'P' all the four defendants were trespassers and thus he joined them. Whether 'P' succeeds in proving this fact or not is a different matter. Joinder of proper parties has to be seen as on the date of filing of suit and not from ultimate success of case. Even assuming that the other three defendants were not necessary or proper parties in the suit filed by 'P', a suit cannot be dismissed for misjoinder of parties.
22.Order I of CPC deals with parties to a suit and provides who may be joined as plaintiffs and who may be joined as defendants. It also deals with the power of the Court to direct the plaintiffs either to elect with reference to a particular plaintiff or a particular Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 19 of 39 r
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defendant or to order separate trials in respect of the parties misjoined as plaintiffs or defendants. It gives power to the Court to pronounce judgment for or against one of the parties from among the parties who have been joined together or who are sued together. The order also specifies that a suit shall not be defeated by reason of the misjoinder or non-joinder of parties, so long as in the case of non-joinder, the non-joinder is not of a necessary party. This issue is accordingly decided against 'N' and others and in favour of 'P'.
22. Issue no. 2 framed on 12.10.99 as to whether the suit of 'P' is valued properly for the purposes of Court Fee and jurisdiction.
23.Onus of proving this issue was on 'P' who had valued his original suit for possession to be Rs.1,20,000/- only and for the relief of permanent injunction as Rs.130/-. After amendment of the plaint seeking damages/mesne profit @ Rs.25,000/- per month w.e.f. November 2001, the plaint was valued at Rs.4 Lakh for this relief for the period till the plaint was amended in July 2003. It would be pertinent to mention here that originally, this suit was filed before Ld. Civil Judge as the pecuniary jurisdiction upto Rs.3 Lakh was with Ld. Civil Judge only.
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Subsequently, both these suit were consolidated in one court and obviously since the suit filed by 'N' which was pending in the court of ADJ because of pecuniary jurisdiction of more than Rs.3 Lakh could not have been transferred to Ld. Civil Judge, therefore, the suit filed by 'P' was received in the Predecessor Court of ADJ from Ld. Civil Judge.
24. It is the claim of 'N' and others that the relief of possession was undervalued to Rs.1.2 Lakh by 'P' whereas he had agreed to sell the suit property for Rs. 6 Lakhs. Since the very agreement to sell is challenged by 'P' and he never agreed to have entered into any agreement to sell the suit property for Rs.6 Lakh, there is no other material available on record to show that the valuation for possession by 'P' was in any manner wrong. Admittedly, the suit was filed in January 1998 and the basement of the same property was sold by 'P' to 'N' and others in February 1997 for Rs.1 Lakh, therefore the valuation of Rs.1.2 Lakh done by 'P' cannot be called as grossly undervalued. It is the case of 'N' & others that the basement of the same property was sold by 'P' to 'N' in February 1997 for Rs.1 Lakh. It is an admitted case of both the sides that the entire Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 21 of 39 r
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property no. 30 was purchased in January 1996 by 'P' for a total amount of Rs.3 Lakhs only and therefore also the valuation cannot be said to be undervalued. Therefore, this issue is decided in favour of 'P' and against 'N' and others.
25. Turning to the issue no. 3 framed on 12.10.99 as to whether 'P' is entitled to possession of the suit premises; the issue framed on 10.1.2000 as to whether in the alternative of possession, 'P' was entitled to market value of said premises from 'N' and others; the issue as to whether 'N' is entitled to specific performance of the alleged agreement to sell ; Issues framed on 5.08.2004 as to whether the 'N' entered into any agreement for sale of the property in question with 'P' and whether any demand towards the total consideration for the purchase of the property in question was made and the Issue framed on 5.02.2004 as to whether, the suit of 'N' is maintainable in the present form.
26.All these issues are taken up together since they are inter-connected. It would be relevant to mention here that in the suit filed by 'N', though issues were framed on 5.2.2004 and 5.8.2004, specific issue as to whether 'N' was entitled to specific performance of the Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 22 of 39 r
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agreement was never framed. What was framed was whether 'N' entered into any agreement to sell with 'P' and whether 'N' made any demand to receive total consideration of sale.
27. All these issues are based on the fact that 'N' claims an oral agreement to sell. It is the case of 'P' that there cannot be any oral agreement to sell an immovable property. The claim of 'P' that there can never be any oral agreement to sell is legally unsustainable. In the case of M/s Julian Educational Trust Vs. Sarvender Kumar Roy & Ors. 2010 (1) Civil Court Cases 312, Hon'ble Supreme Court held that an oral agreement to sell can indeed be entered into. 'N' has also relied upon the case of Ram Sarup Gupta Vs. Bishun Narain Inter College & Ors (1987) 2 SCC 555 to raise point that oral agreement to sell can indeed be there.
28.Law nowhere prohibits an oral agreement to sell. What law requires is that the sale documents of any immovable property worth Rs.100/- or more has to be by a registered document. It is not necessary that an agreement to sell has to be in writing. An agreement to sell may be oral.
29.Entire case of 'N' and others is based on the receipt Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 23 of 39 r
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Ex.DW1/2. As mentioned above the original of this document seems to have been lost from judicial record. Thereafter, permission for reconstruction of this document was granted and thereafter this document was proved in evidence of S.K.Gupta. Originally, when this agreement was exhibited as Ex.DW1/2 before Local Commissioner on 14.12.2005, no objection was raised. Objection was also not raised when this document was exhibited again on 9.4.2007 before the court. Objection was raised subsequently only. Admittedly, 'N' and others never took any formal permission to prove this document by way of secondary evidence. When the original document was lost, necessary permission was required by 'N' and others for proving this document by way of secondary evidence. In this case, though formal permission of secondary evidence was not obtained but indeed 'N' and others proceeded to bring this document as secondary evidence only after permission of reconstruction of this document after the original was lost. Therefore, merely because formal permission to prove this document was not obtained cannot be read against 'N' and others.
30. 'P' relied upon the case of Oriental Fire & General Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 24 of 39 r
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Insurance Company Ltd. Vs. Smt. Chander Bari AIR 1989 Punjab & Haryana 300. The said case is distinguishable since in that case before proving photocopy of policy, even notice was not given to owner to produce original policy and no steps were taken for its production. Similarly, the case of Sital Dass Vs. Sant Ram & Ors. AIR 1954 Supreme Court 606 is distinguishable as in that case also foundation for laying secondary evidence was not put forth and photocopy was relied upon as a thirty year old document without applying for secondary evidence. In the present case admittedly, original was lost from judicial record and therefore foundation for laying secondary evidence existed in favour of 'N' and others. Similarly, reliance placed upon the case of Smt. J. Yashoda Vs. Smt. K. Shobharani 2007 (1) RCR 466, does not help the case of P.
31.The question still would be whether this document in any way help 'N' and others. The question however is that even if we consider this receipt dated 14.4.1997 to be proved whether it helps the case of 'N' and others in obtaining specific performance.
32. The said receipt reads as "Received Five Lakh Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 25 of 39 r
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(5,00000/-) against token money of ground floor of 30, Jangpura, Bhogal, New Delhi-110014".
33.Assuming that this receipt was executed by 'P', this does not help the case of 'N' and others as it does not fulfill all the necessary requirements of an agreement to sell.
34. In the case of P, Saravanam & Ors. Vs. V.L.Thiyagraj AIR 1988 NOC 40 (Karnatak) and in the case of M/s Aggarwal Hotels Pvt. Ltd. Vs. M/s Focus Properties Pvt. Ltd. 63 (1996) DLT 52, it was held that in an agreement to sell an immovable property, four necessary ingredients must exist :-
a. particulars of consideration;
b. certainty as to parties i.e. vendor and the vendee; c. certainty as to the property to be sold; d. certainty as to other terms & conditions.
35. It was held that if these ingredients are lacking, the obligations contemplated U/s 16 of Specific Performance would not arise. In the present case, though the suit property is described in this receipt, total sale consideration of Rs.6 Lakh is nowhere mentioned. The vendor and the vendee of this sale transaction is also not mentioned in this receipt and also other terms Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 26 of 39 r
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and conditions of the agreement are not mentioned. These facts alone disentitles 'N' and others from the relief of specific performance of any agreement to sell the suit property.
36.Not only this, the fact that agreement to sell was claimed to be entered into in April 1997 but 'N' filed the suit for specific performance as late as in April 2000 shows that even other necessary ingredients for grant of specific performance as to the readiness and willingness of 'N' is lacking in the present case. 'P' first filed the suit for possession in January 1998, thereafter sometime in March 2000 'N' sent a notice to 'P' and the suit was filed in April 2000. Thus, even discretion of grant of specific performance as per Sec. 16 & Sec. 20 of Specific Relief Act does not arise in favour of 'N' and others. Though 'N' claimed readiness and willingness to perform her part of the contract, the facts and circumstances suggest otherwise.
37.The relief of specific performance is a discretionary relief, at the discretion of court. The discretion has to be a judicious discretion. It is now well settled that while invoking this discretionary relief, the court would look at the facts and circumstances of each case as also the Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 27 of 39 r
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conduct of parties to decide whether the discretion should be exercised in favour of the plaintiff or not.
38. In 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. The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be entitled to take into consideration as to whether the suit had been filed within a reasonable time. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. No hard and fast law can be laid down therefor. Even the conduct of the parties in this behalf would also assume significance. In that case even the subsequent conduct of plaintiff in delay in Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 28 of 39 r
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impleading third party purchaser of suit property was considered to judge Readiness and willingness on the part of the plaintiff, in Para 17, as follows:-
"It may be true that the name of the purchaser was not disclosed but then it was open to the plaintiff to ask for other and better particulars of the said statements. Why she had to wait for a period of more than three years for impleading the subsequent purchasers as parties has not been explained. Even an application for injunction was filed only in September 1985. According to her husband, she came to learn about the sale of property in the name of defendant No. 5 only on 29.9.1986. Why an inquiry was not made in the Registration Office although the deed of sale was a registered one again defies anybody's comprehension. Readiness and willingness on the part of the plaintiff, therefore, is required to be considered from the aforementioned backdrop of events."
39. In AIR 2010 SUPREME COURT 577 A. K. Lakshmipathy (D) and Ors. v. Rai Saheb Pannalal H. Lahoti Charitable Trust and Ors., it was held that it is well settled that in a suit for specific performance of a contract for sale, it has to be proved that the plaintiff Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 29 of 39 r
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who is seeking for a decree for specific performance of the contract for sale must always be ready and willing to complete the terms of the agreement for sale.
40. In AIR 2008 SUPREME COURT 1786 Bal Krishna v.
Bhagwan Das, it was held as follows:
"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 Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 30 of 39 r
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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 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. ..........................."
41. In N. P. Thirugnanam v. R. Jagan Mohan Rao AIR 1996 SUPREME COURT 116, it was held, "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. .................................."
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42. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemish less throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief.
43.Thus, even U/s 16(c) of the Specific Relief Act, 1963, the present relief of specific performance of contract cannot be granted to 'N'. There is no proof led to show on which dates after the date of agreement to sell, 'N' asked 'P' to perform his part of contract. No written communication was sent to 'P', till as late as March 2000, though the agreement is claimed to be of April 1997. Though in the present case 'N' has averred in the plaint and in evidence that she was always ready and willing to perform her part of contract, we need to see whether this averment is a hollow statement or actually she was ever ready and willing to perform her part of the contract. We need to look upon the circumstances of this case, in order to be satisfied whether she was actually ready and willing to perform her part of the contract.
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Thus, conduct of 'N' in this behalf assumes significance. In the present case though the agreement to sell is claimed to be entered way back on 14-04-1997, but the suit was filed by 'N' in April 2000 and the written communication to 'P' was in March 2000 after two years of the suit of 'P'. There is a long gap of 3 long years in filing of the present suit. Whether time was an essence of contract in the present case or not, is certainly a question of fact and when there was no time claimed in the agreement to Sell, it would certainly mean that in the present agreement between the parties, time was not essence of the contract. But, does that mean that parties could have waited perpetually till eternity without seeking its execution. When there is no time limit provided in an agreement to sell an immovable property, even in such cases a party would be required to approach the court of law, within a reasonable time. Even if, time is not the essence of contract, still the court may infer that it is to be performed in a reasonable time.
44. What is a reasonable time has to be ascertained from all the facts and circumstances of the case. (Veerayee Ammal Vs. Seeni Ammal, (2002) 1 SCC 134).
45.Relief of Specific Performance of the suit property is Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 33 of 39 r
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therefore declined. The moment this relief is declined, 'P' becomes entitled to the relief of possession. All these issues are accordingly decided.
46. 'N' as an alternative prayer also prayed refund of Rs.5 Lakh to her. Though, no specific issue to this effect was framed in the suit of 'N' but it is an implied issue under the issue of relief. 'P' vehemently contested that once the receipt Ex. DW1/2 is not proved in favour of 'N', she is not entitled to refund of Rs.5 Lakhs. Even if we ignore the receipt Ex.DW1/2 altogether the oral testimony of Sh. S.K.Gupta and Raj Kumar clinches the issue that on 14.4.1997 a sum of Rs.5 Lakh was paid on behalf of 'N' by S.K.Gupta to 'P'. Raj Kumar is an independent and trust worthy witness and simply because he had business relations with S.K.Gupta does not mean that the testimony of this witness is to be ignored all together. Raj Kumar has no reason to falsely depose against P. Admittedly, he has no enmity with 'P'. 'P' did not examine other witness of this transaction namely Ram Avtar to disprove the transaction of Rs.5 Lakh on the ground that Ram Avtar was in litigation with 'P'. In view of the testimony of S.K.Gupta and Raj Kumar, this court is convinced that a sum of Rs.5 Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 34 of 39 r
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Lakh was received by 'P' on 14.4.1997.
47. 'P' argued that Ex.DW1/2 is inadmissible since one of the revenue stamps on this document was not properly cancelled and in this regard he has placed reliance upon the case of R.B.Surajbhan Vs. Dr. Diwan Singh 1974 (2) ILR Delhi 581 and also the case of R.S.Nalwa Vs. Applied Metal Engineering Works 1980 RLR 715.
48. 'P' also contended that testimony of S.K.Gupta has to be ignored altogether as he was merely an attorney holder and 'N' did not step into the witness box. In this regard, reliance is placed upon the case of Janki Vasdev Bhojwani AIR 2005 SC 439.
49. The said contention is without force since S.K.Gupta as well as Raj Kumar both deposed that the transaction took place in the personal presence of S.K.Gupta including oral agreement to sell and the exchange of money. In such circumstances, S.K.Gupta was competent to depose based on his personal knowledge.
50.Even if Ex.DW1/2 is treated inadmissible document because of non-obtaining of permission of secondary evidence and because of non-cancellation of the stamps, still from the oral evidence of S.K.Gupta and Raj Kumar it stands proved that Rs.5 Lakh was paid to 'P' which 'P' Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 35 of 39 r
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must return.
51.It is also argued by 'P' that in absence of proof of payment of Rs.5 Lakh by 'N' from her income tax returns or any other mode of proof, particularly when she was admittedly a house wife, the fact of payment of Rs.5 Lakh is not proved. It is established in oral evidence of S.K.Gupta and Raj Kumar that this amount of Rs.5 Lakh was paid by S.K.Gupta on behalf of N.
52.The fact of exchange of money is further enforced from the fact that possession of the property was given to 'N'. Though 'P' claimed that keys were only given to show the property to prospective buyer but this story of 'P' does not inspire confidence. Admittedly that the sale of basement was also on oral agreement to sell and also 'P' failed to prove that he went out of Delhi between October to December 1997 to give rise to an occasion to hand over keys of the property. It seems to be an afterthought of 'P' and the evidence on record suggests that after receiving Rs. 5 Lakh, possession of the property was given to 'N'. Therefore, 'P' must return Rs.5 Lakh to 'N' with interest.
53. 'N' claimed and argued that the possession of the property was given to her in part performance of Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 36 of 39 r
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contract for sale of immovable property and therefore she cannot be asked to return the possession. This argument is fallacious.
54. U/s 53 A of the Transfer of Property Act, a written contract duly signed, from which necessary terms could be ascertained with reasonable certainty is required. It was so held in AIR 2009 MP 159 in the case of Govind Prasad Dubey Vs. Chandramohan Agnihotri. Thus, Section 53 of Transfer of Property Act does not come to the rescue of 'N' and others.
55. P has placed reliance upon the case of AIR 1991 Supreme Court page 955 titled as Sohan Lal Vs. Union of India & Anr. wherein it was held that proof of a valid and enforceable contract between parties is essential for suit for specific performance. I have already observed that 'N' is not entitled to suit for specific performance in her favour, for the reasons mentioned above.
56.In view of the above evidence, 'N' is entitled to recover an amount of Rs.5 Lakh from 'P' and she is also entitled to interest @ 6% per annum on the said amount from 14.4.1997 till the date of refund of this amount of Rs.5 Lakh.
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57. Turning to the issue whether 'P' is entitled to damages or mesne profit from 'N' and others, as framed on 20.09.2004, it is an admitted case of both sides that the property was sealed by MCD and it is lying sealed since then, therefore 'N' and others cannot be held responsible for any kind of damages or mesne profit in favour of 'P'. It is also established from the oral evidence as discussed above that 'P' put 'N' in possession of the property after receiving Rs. 5 Lakh on 14.4.1997. The suit of 'N' for specific performance has failed because of certain legal requirements lacking in her favour. The said fact alone is enough to disentitle 'P' from receiving any damages/mesne profits. Both issues framed on 20.09.2004 are decided against 'P' and in favour of 'N' and others.
58. Relief.
The suit for specific performance of 'N'(Neeru Bala) is dismissed qua the prayer of Specific Performance and it is ordered that Parma Nand Saini 'P' is liable to return a sum of Rs.5 Lakh with interest @ 6%, per annum from 14.04.1997 till the date the amount is returned. The prayer by 'P' qua the relief of possession in his favour is allowed. 'P' is entitled to the Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 38 of 39 r
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possession of the suit premises but is not entitled for any damages/mesne profit from 'N' & others.
It would be worth mentioning here that vide order dated 30.03.2011 Hon'ble Delhi High Court in CM no. 369/2011 held that if the relief of possession in favour of 'P' succeeds, then the MCD will de-seal the property in favour of P. Accordingly, it is ordered that it is 'P' is entitled for possession of this property, whenever the property is de-sealed by MCD. It is specifically mentioned here that this judgment is not any direction to the MCD to de-seal the property as it was never an issue before this court but whenever MCD de-seals the property under the proceedings which might have been under taken by MCD, the property would be de-sealed in favour of Parma Nand Saini.
The decree sheet be prepared accordingly. Both sides to bear their own respective costs. Copy of this judgment be placed in both the files and the files be consigned to the record room.
Announced in the open court on 3rd day of October, 2012. Dig Vinay Singh ADJ -04 (Central) Delhi Judgment in Suit no. 331/08/98 & 333/08/00 dtd... 3.10.2012 Pg.. 39 of 39 r