Delhi High Court
Amit Jain vs Harvinder Kaur on 6 February, 2013
Author: Manmohan
Bench: Manmohan
18
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 314/2011
AMIT JAIN ..... Plaintiff
Through: Mr. Amit Gupta, Advocate with
Mr. Sabin Rana, Advocate.
versus
HARVINDER KAUR ..... Defendant
Through: Mr. Siddhartha Tanwar, Advocate with
Ms. Priyanka Singh, Advocate.
% Date of Decision: 06th February, 2013.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
I.A. 1957/2013 (under Order 12 Rule 6 CPC) in CS(OS) 314/2011
1. Present application has been filed under Order 12 Rule 6 CPC for judgment on admission against the defendant.
2. Briefly stated the relevant facts of the present case are that plaintiff has instituted the present suit against the defendant for a decree of Specific performance of Agreement to Sell dated 16th October, 2010 executed between the parties with respect to a plot admeasuring 100 sq. yds. bearing New No.IX/312, Plot No.45, situated at Gandhi Nagar, Delhi. Out of the total agreed consideration of Rs.2,09,50,000/-, only Rs.11,00,000/- was paid CS(OS) 314/2011 Page 1 of 10 as earnest money.
3. The case of the plaintiff in the suit is that subsequently the intention of the defendant turned dishonest and, therefore, they did not execute the sale deed.
4. Learned counsel for plaintiff/applicant submits that in the written statement, not only is the factum of Agreement to Sell admitted, but also the payment of earnest money of Rs.11,00,000/- has been admitted. He refers to the written statement to contend that the defence of the defendant that plaintiff was not ready and willing to pay the balance sale consideration is unsustainable in law. In this connection, he refers to the paras 'v' and 'vii' of the Written Statement which are reproduced hereinbelow:-
"v. It is submitted that the sole purpose of the Defendant for agreeing to sell the suit property, which was duly intimated to the plaintiff at the time of the execution of the subject agreement, was to tide over the financial crunch that Defendant and her husband were facing due to various factors as detailed in the paragraph no.vi, therefore it was specifically agreed between the parties that the Plaintiff shall pay a further amount of Rs.10,00,000/- (Rupees Ten Lakh Only) within three days of the execution of the subject agreement agreegating to 10% of the agreed sale consideration of Rs.2,095,0000 (Rupees Two Crore Nine Lakh Fifty Thousand Only) as per the prevalent practice of payment of 10% of sale consideration as the earnest money. It was further agreed that the Plaintiff shall further pay an amount of Rs. 90 lacs by the first week of December 2010 and the remaining amount in any event by 05.01.2011.
xxxx xxxx xxxx xxxx vii. That for the reasons mentioned as above the Defendant through her husband, requested the Plaintiff from time to time to pay the agreed amount by first week of December 2010 however the Plaintiff failed to discharge his liability. Then CS(OS) 314/2011 Page 2 of 10 again on 18.12.2010 the Defendant, through her husband, demanded from the Plaintiff that at least an amount of Rs.19,00,000/- be paid to the Defendant by 22.12.2010 which was turned down by the Plaintiff by stating that he would strictly go by the terms and conditions as mentioned in the subject agreement and shall pay the balance consideration only on 05.01.2011.
5. Learned counsel for plaintiff also relies upon a judgment of this Court in Sunrise Construction Vs. Veena Wahi, 2009 (111) DRJ 710 wherein it has been held as under:-
"39. What remains to be now examined is whether the plaintiff has been ready and willing to complete the transaction contained in exhibit P-1 and whether relief of specific performance, which is a discretionary relief under the Specific Relief Act should be granted or only the alternative relief of damages should be awarded, in case the former issue is decided in favour of the plaintiff.
xxxx xxxx xxxx xxxx
42. Therefore, it cannot be said that the defendant has not denied the receipt of the notice stated to have been sent by the plaintiff on 17.12.2007. However, that does not raise a triable issue and in spite of the said denial, in my view, no issue arises on the said aspect. This is so because in the same paragraph of her written statement a little earlier the defendant admits that she had received "a couple of calls asking her to hand over the possession of a room and kitchen in lieu of Rs.1.60 crores, else plaintiff would file a case against the defendant". She further states that "after this also the defendant received some more allegedly threatening/pressurizing calls regarding the same".
The aforesaid admissions clearly show that so far as the plaintiff is concerned, the plaintiff was seeking to enforce the agreement contained in Ex.P-1 with the defendant. It was not necessary for the plaintiff to have got the pay order for the CS(OS) 314/2011 Page 3 of 10 balance amount prepared and to have sent a copy of the same to the defendant, as has allegedly been done by the plaintiff. Even if the averments of the plaintiff with regard to the preparation of the pay order for the balance amount and with regard to the sending of the notice dated 17.12.2007 were to be ignored, it stands admitted that the plaintiff repeatedly called upon the defendant to act in terms of the agreement contained in Ex.P1. That clearly shows that readiness and willingness of the plaintiff to complete the transaction. It is not the defence of the defendant that she offered to complete the transaction upon the plaintiff paying the balance consideration which, according to her, was Rs.6.50 Crores and that the plaintiff backed out of the alleged transaction."
6. Admittedly, under the alleged Agreement to Sell executed between the parties, the date for paying the balance sale consideration was 05 th January, 2011.
7. In the plaint, it has been stated by the plaintiff that at the instance of the defendant, the time for making the balance sale consideration was mutually extended till 05th February, 2011. However, in the written statement, the defendant has categorically denied any extension of time to make the balance payment.
8. In the written statement, though the defendant has stated that plaintiff did not prepay the consideration amount as agreed between the parties, yet the defendant has also specifically denied that the balance consideration of Rs.1,98,50,000/- was tendered prior to the last date stipulated in the Agreement to Sell, namely, 05th January, 2011. In this connection, paragraphs C, D, E and G of the preliminary objections of the written statement are reproduced hereinbelow:-
CS(OS) 314/2011 Page 4 of 10"C. That the present suit is legally unsustainable in as much as the plaintiff has deliberately fabricated the false facts in order to suite his convenience. The Plaintiff has no right to seek specific performance of the subject agreement inasmuch as the Plaintiff, as per his own admission in the Plaint, have failed to pay the balance amount of Rs.1,98,50000/- within fixed period i.e. 05.01.2011 as stipulated by the subject agreement.
D. That in the subject agreement "time was of the essence"
which is apparent from the terms of the clauses no.1 and 3. It is also evident from the averment made in paragraph no.5 of the present Plaint. Since the Plaintiff himself has failed to perform his part within stipulated time, the present suit is not maintainable on this ground alone.
E. That the present suit is also legally unsustainable inasmuch as it is a trite that any amendment or variation in the terms of the original written agreement can only be effected by another written document duly signed by the parties to the original written agreement, however there is no document on record which evinces the alleged contention of the Plaintiff that the time for payment of balance sale consideration was mutually extended from 05.01.2011 to 05.02.2011.
xxxx xxxx xxxx xxxx
G. That even otherwise there is nothing on record which
shows the willingness and readiness of the Plaintiff to perform his part of subject agreement at any time before or on 05.01.2011 as pleaded by the Plaintiff. There is not even a single averment in the plaint that the Plaintiff at any time offered the balance sale consideration to the Defendant which the Defendant refused. There is not even a single document on record which depicts the paying capacity or readiness and willingness of the Plaintiff at any time on or before 05.01.2011."
(emphasis supplied) CS(OS) 314/2011 Page 5 of 10
9. The Supreme Court in Balraj Taneja and Another Vs. Sunil Madan and Another, AIR 1999 SC 3381 has held that under Order 12 Rule 6, the Court can at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the Court can act upon such an admission, it has to be shown that the admission is unequivocal, clear and positive.
10. The Supreme Court in Doodhnath Pandey Vs. Suresh Chand Bhattasali, AIR 1986 SC 1509 has also held that if the court had to rely upon the alleged admission in the written statement, the admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the rest.
11. In the present instance, this Court is of the opinion that there is no clear positive and unequivocal admission on the part of the defendant that plaintiff was ready and willing to pay or had offered to pay the balance sale consideration prior to the last date fixed in the agreement, namely 05 th January, 2011.
12. This Court is also of the opinion that the judgment in Sunrise Construction (supra) offers no assistance to the plaintiff as in that case the defence of the defendant that was found to be unsustainable in law and contrary to admitted documents, was that sales consideration agreed between the parties was Rs. 6.50 crores and not Rs. 1.60 crores as mentioned in the written receipt-cum-agreement. In Sunrise Construction (supra) this Court also found that the plaintiff had got the pay order prepared for the balance amount and had sent the same to the defendant prior to the last date for making payment. The relevant portion of the Sunrise Construction (supra) is reproduced hereinbelow:-
CS(OS) 314/2011 Page 6 of 10"22. The defence set up by the defendant is not that the defendant has been defrauded or that exhibit P-1 was executed under intimidation or that it is illegal. i.e. it is contract to any law. It is also not the defendant's case that she did not have the capacity to contract. The case that there was no consideration is belied on a plain reading of Ex. P-1. The contract contained in Ex.P-1 shows that the contract was for valuable consideration of Rs. 1.60 crores. It is one thing to say that there is no consideration named in the agreement and another to say that no consideration has passed thereunder. The case of the defendant falls under the latter category. It is not her case that there was a mistake in fact, or in law in as much, as, she did not understand the transaction when she executed exhibit P-1.
23. The defence set up by the defendant also does not fall under proviso 2 to Section 92, inasmuch as, she has not set up any separate oral agreement on any matter on which the document is silent. She has, undoubtedly, set up a separate oral agreement but that oral agreement is on the same matter on which the agreement Ex.P-1 is speaking, and not silent. She has set up an oral agreement to the effect that the agreed sale consideration was Rs. 6.50 crores. This is inconsistent with the terms of Ex.P-1. Similarly, she claims that under the separate oral agreement she was to get further consideration in the shape of space of 400 sq.ft. This is also contrary to, and inconsistent with Ex.P-1 which narrates that the "total"
consideration/value agreed for sale of the suit property between the parties is Rs. 1,60 crores and nothing more. "Total" connotes final and whole. It contraindicates any other or remaining consideration of any kind. Coupled with this is the fact that the parties clearly record that the terrace is common area for all. So when it came to the defendant retaining or getting any right in any physical portion of the said property, the parties have specifically spoken about the same and not remained silent about it. By resort to proviso 2, the defendant cannot set up a separate oral agreement the terms whereof are inconsistent with the terms of exhibit P-1. She cannot add to the CS(OS) 314/2011 Page 7 of 10 terms contained in Ex.P-1. Her defence does not fall within proviso 3 to 6. Mr. Singh has not made any effort to bring the case of the defendant in any of the said provisos of Section 92. Consequently, in my view the defence set up by the defendant as extracted from para 10 of .the written statement is hit by the main provision of Section 92, and not saved by the provision to Section 92 of the Evidence Act. The defence set up by the defendant purports to contradict, vary and add to the terms of Ex. P-1.
xxxx xxxx xxxx xxxx
25. The defence that the amount of Rs. 1.60 crores was written in Ex.P-1 because the plaintiff wanted to avoid payment of stamp duty is a veiled allegation of the so-called "balance" payment i.e. the difference between Rs. 6.50 crores and Rs. 1.60 crores ie. Rs. 4.90 crores being paid separately, either in cash (accounted or unaccounted) or through cheque though not as disclosed consideration for the sale of the suit property. In either case, the purport of this defence is that the plaintiff was desirous of evading a tax viz. the Stamp Duty, to which the defendant consented. Does it lie in the mouth of the defendant to urge the same? In my view No. The defendant cannot be heard to say that she had an agreement with the plaintiff whereunder the two had agreed that the plaintiff would commit an illegality and to which the defendant had consented. Such a plea would be barred by the rule of pari delicto. The rule of pari delicto is the embodiment of the principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud. (See 135 (2006) DLT 273 Virender Singh v. Laxmi Narain).
xxxx xxxx xxxx xxxx
28. Pertinently the transaction, in question, contained in exhibit P-1, by itself, is not an illegal transaction. It cannot be said to have been entered into to commit an illegality. It is the defence set up by the defendant to avoid the contract contained in exhibit P-1, which is an illegality. If on account of the above stated illegality the defendant could not have enforced her so CS(OS) 314/2011 Page 8 of 10 called agreement to sell with the plaintiff with consideration as Rs. 6.50 crores, in my view, she is equally disentitled from setting up a defence founded upon that illegality. Accordingly, I hold that the defendant is barred from raising a defence that the agreed sale consideration was Rs. 6.50 crores but that the same was recorded in Ex. P-1 as Rs. 1.60 crores as the plaintiff desired to evade Stamp Duty.
xxxx xxxx xxxx xxxx
47. For the aforesaid reasons I am of the view that the receipt- cum-agreement Ex.P-1 being an admitted document, and the defence of the defendant being barred, inter alia, under the laws of evidence, in equity, and it, being contradictory, there is no issue arising in the present case which requires the holding of a trial. The case of the plaintiff stands established to the hilt. Accordingly, I pass a decree under Order 12 Rule 6 CPC in favour of the plaintiff and against the defendant for specific performance of the agreement contained in the receipt cum agreement dated 18.09.2007 exhibit P-1. The defendant has not encashed the cheque of Rs. 25 Lacs tendered by the plaintiff. Accordingly, the plaintiff is now bound to tender the balance consideration of Rs. 1,59,50,000/- to the defendant. I therefore, direct the defendant to perform her obligation under exhibit P-1 by executing and getting registered the sale deed in favour of the plaintiff in respect of her 1/5th undivided share, right and title in the suit property bearing No. D-8-, N.D.S.E. Part-II, New Delhi, admeasuring 764 Sq. Yds. against the receipt of balance consideration of Rs. 1,59,50,000/-, and to deliver the peaceful possession of portion under her occupation namely one room, kitchen and right to use the terrace in common in the suit property. The defendant shall execute the deed, as aforesaid, and deliver possession within three months from today. The plaintiff shall also be entitled to costs."
(emphasis supplied) CS(OS) 314/2011 Page 9 of 10
13. In the present case, the defence disclosed by the defendant in its written statement, namely, that balance sale consideration was not paid within the stipulated time, is not unsustainable as being either contrary to law or to admitted documents. Consequently, the judgment in Sunrise Construction (supra) is inapplicable to the facts of the present case.
14. Accordingly, present application is dismissed with costs of Rs.25,000/- to be paid to the defendant.
CS(OS) 314/2011 & I.A. 2147/2011 List the matter for framing of issues and consideration of application under Order 39 Rules 1 and 2 CPC on 08th May, 2013.
MANMOHAN, J FEBRUARY 06, 2013 js CS(OS) 314/2011 Page 10 of 10