Delhi District Court
Sh. Parveen Garg vs Sh. Satpal Singh on 27 January, 2018
In The Court of Charu Aggarwal
Additional District Judge03 (West)
Tis Hazari Courts, Delhi.
Suit No. 613804/2016
In the matter of :
Sh. Parveen Garg
S/o Sh. R. K. Garg,
R/o J23, RBI Colony,
Paschim Vihar, New Delhi. .....Plaintiff
Versus
1. Sh. Satpal Singh
S/o Sh. Charan Singh
2. Smt. Charanjit Kaur
W/o Sh. Satpal Singh
Both are R/o 2/113, Sunder Vihar,
Paschim Vihar, New Delhi. .....Defendants
Date of institution : 20.04.2006
Date of decision : 27.01.2018
JUDGMENT
1. The plaintiff has filed the present suit against 2 defendants, who both are husband and wife, for specific performance of receiptcumagreement to sell dated 01.09.2003 followed by compromise dated 24.11.2004, in respect of property bearing no. 3/153, Sunder Vihar, Paschim Vihar, New Delhi, measuring 133 Sq. Yards (hereinafter referred as to the "Suit Property").
2. The suit was originally filed by the plaintiff in the Hon'ble High Court, but due to enhancement of pecuniary jurisdiction of Delhi District Court, the suit was transferred from the Hon'ble High Court to District Court, West, vide order dated 09.11.2016 of Hon'ble High Court and was assigned to this court.
3. Briefly stated the case of the plaintiff is that he is a government contractor engaged in the business of construction. In the year 2003, he was interested in purchasing a residential property. For this, he contacted a property dealer Sh. Subhash Gupta of M/s A. S. Properties, Paschim Vihar, New Delhi.
Parveen Garg Vs. Satpal Singh & Anr. Page 1 of 16During the said period, plaintiff through Sh. Subhash Gupta, came in the contact of defendant no. 1. On 01.09.2003, defendant no. 1 in the presence of defendant no. 2 (wife of defendant no. 1) and Sh. Subhash Gupta, represented himself to be the absolute owner of the suit property and offered to sell the same to the plaintiff for total sale consideration amount of Rs. 33,25,000/. On this, receiptcumagreement to sell dated 01.09.2003 was entered between the plaintiff and defendant no. 1 in the presence of defendant no. 2, Sh. Subash Gupta and plaintiff's father Sh. R. K. Gupta, at the residence of the defendants. On 01.09.2003 itself, amount of Rs. 1 lac in cash was given by the plaintiff to the defendants as earnest money. On 02.09.2003, further Rs. 3 lacs in cash was given by the plaintiff to defendant no. 1. The receipt was executed by the defendant no. 1 about receiving of cash of Rs. 4 lacs. It was agreed between the parties that balance sale consideration amount shall be paid at the time of execution and registration of sale deed. It was also agreed that the transaction would be completed on 01.11.2003 or whenever the property will be converted from lease hold to free hold whichever would be later. The case of the plaintiff is that at the time of entering into the agreement to sell dated 01.09.2003, the defendants despite various requests of the plaintiff did not show him the title deeds of the suit property, therefore, in the month of October2003, plaintiff again requested the defendants to supply the title deeds of the property, no objection certificate from the concerned authority as well as the deed for conversion of the suit property into free hold. At that time, the defendant no. 1 informed the plaintiff that he could not do needful due to some unavoidable circumstances, however, will do the same within short period of time.
In April2004, the defendant no. 1 called the plaintiff at his residence and informed him in the presence of defendant no. 2 that both the defendants are joint owners of the suit property and defendant no. 1 is not the absolute owner of the same. Defendant no. 1 demanded Rs. 8 lacs from the plaintiff on the pretext that the sale would be confirmed by defendant no. 2 only after receiving the said amount. At that time also, defendants did not show the title documents of the suit property to the plaintiff. However, the plaintiff was always interested in completion of transaction, therefore, on 09.04.2004, he handed over cash of Rs. 5000/ to the Parveen Garg Vs. Satpal Singh & Anr. Page 2 of 16 defendants and got prepared the demand draft dated 10.04.2004 for Rs. 7,95,000/, drawn on State Bank of Bikaner & Jaipur, in the name of defendant no.
2. The plaintiff asked the defendants to show him the title deeds of the suit property before handing over the demand draft to them. But at that time also, the title deeds were not shown to the plaintiff due to which the plaintiff also did not give the said demand draft to the defendants. Since April2004 till first week of October2004, the plaintiff continuously insisted the defendants to show the title deeds of the suit property to him and execute the sale documents in his favour but since the defendants were adamant in their conduct as they were neither showing the title deeds to the plaintiff nor completing the transaction, therefore, on 07.10.2004 and again on 09.11.2004, the plaintiff filed the police complaints against the defendants. The defendants applied for anticipatory bail before Ld. District & Sessions Judge. In the said bail application, the defendants admitted execution of agreement to sell dated 01.09.2013 and all the terms and conditions stipulated therein. Thereafter, on 24.11.2004, during the pendency of the police complaints in the police station, the matter was settled between the parties in the police station in which defendant no. 1 undertook to execute and register the sale deed in favour of the plaintiff on or before 16.12.2004. On 01.12.2004, plaintiff again contacted and demanded the title deeds of the suit property from the defendants but the defendants again started demanding Rs. 8 lacs in cash from him. On 07.12.2004, the plaintiff withdrew amount of Rs. 7,25,000/ from his bank account bearing no. 01190007781 in State Bank of Bikaner & Jaipur, Paschim Vihar, for giving the same to the defendants but the defendants again refused to show the title deeds of the suit property, therefore, the plaintiff did not give the said amount to the defendants. Thereafter, the plaintiff issued a legal notice dated 09.12.2004 to the defendants calling upon them to obtain all necessary permissions from the various authorities for the purpose of execution and registration of sale deed. The notice was not replied by the defendants. It is stated that plaintiff was always ready and willingness to perform his part of obligation but defendants never came forward to complete the sale transaction. Hence, the present suit for specific performance of agreement to sell dated 01.09.2003 followed by compromise dated Parveen Garg Vs. Satpal Singh & Anr. Page 3 of 16 24.11.2004.
4. In response to the summons of the suit, both the defendants filed their separate written statements. Defendant no. 1 has admitted execution of agreement to sell dated 01.09.2003 followed by compromise dated 24.11.2004. Defendant no. 2 has stated that she is the owner of the suit property, therefore, defendant no. 1 had no authority or right to enter into any agreement with anyone in respect of suit property. There is no previty of contract between the plaintiff and the defendant no. 2, who is the owner of the suit property, therefore, the agreement cannot be enforced. Both the defendants have stated that it is the plaintiff who had breached the terms and conditions of the said agreement. The photocopies of title deeds of the suit property were handed over to the plaintiff before entering into the agreement. It is alleged that the plaintiff has made interpolation in his own hand writing on the bottom of the agreement to sell mentioning therein that "the property is free hold and balance payment will be made on 01.11.2003 or whenever the property gets free hold whichever is later". The interpolation is stated to be wrong in itself as in the hand written portion, it is mentioned that property is free hold but admittedly the property was lease hold. The defendant no. 1 has admitted the compromise dated 24.11.2004 and has stated that the as per said compromise, the sale has to be completed by 06.12.2004 but since the plaintiff could not make the payment of balance sale consideration amount till 06.12.2004, therefore, the transaction was cancelled on the very said date. On 06.12.2004, the defendants reached at the Office of SubRegistrar, North, but the plaintiff did not turn over there. It is stated that as per the bank statement filed by the plaintiff on record the amount of Rs. 10,18,000/ was there in his account on 06.12.2004 and even on 16.12.2004, the balance of Rs. 18 lacs was in his account which was insufficient to complete the transaction. It is stated that in the compromise dated 24.11.2004, the plaintiff has interpolated the date of completion of sale as 16.12.2004 instead of 06.12.2004. The defendant no. 1 has specifically denied receiving of cash of Rs. 8 lacs from the plaintiff on 06.12.2004.
5. Separate replications to the written statements of defendants filed by the plaintiff reiterating and reaffirming the same facts as stated by him in his Parveen Garg Vs. Satpal Singh & Anr. Page 4 of 16 plaint.
6. After completion of pleadings, vide order dated 27.04.2009, the following issues were framed:
(i) Whether the plaintiff is entitled for specific performance of agreement dated 01.09.2003 and alleged compromise dated 24.11.2004 in respect of property bearing no. 3/153, Sunder Vihar, Paschim Vihar, New Delhi? OPP.
(ii) Whether the plaintiff has always been ready and
willing and is still ready and willing to perform his
part of agreement? OPP.
(iii) Whether there was no agreement between the
plaintiff and defendant no. 2, as alleged by the
defendant no. 2? If so, to what effect? OPD2.
(iv) Whether the is entitled for recovery of vacant
possession, in case a decree of specific performance
is passed in favour of the plaintiff and against the
defendants? OPP.
(v) Relief.
7. The plaintiff has examined total 4 witnesses in his evidence to prove his case whereas the defendants have examined 3 witnesses in their defence evidence.
PLAINTIFF'S EVIDENCE:
8. PW1 is the plaintiff himself and PW2 is Sh. Ram Karan Gupta, father of the plaintiff. Both these witnesses have filed their affidavits in evidence reiterating and reaffirming the same facts as stated by them in the plaint.
9. PW3 is Sh. M. K. Mondal from State Bank of Bikaner & Jaipur, who has proved the demand draft dated 10.04.2004 got issued by the plaintiff in favour of defendant no. 2. This witness has also proved the bank statement for the period w.e.f. 01.12.2004 to 31.03.2005 of the plaintiff which is Ex. PW3/1.
Parveen Garg Vs. Satpal Singh & Anr. Page 5 of 1610. PW4 is HC Jitender, who has proved the copy of office order bearing no. 194180/HAR/W dated 03.02.2012. As per order, the record pertaining to compromise dated 24.11.2004 has been weeded out.
DEFENDANTS' EVIDENCE:
11. DW1 is defendant no. 1 himself and DW2 is defendant no. 2. Both these DWs have filed their affidavits in evidence reiterating and reaffirming the same facts as stated by them in their written statements.
12. DW3 is Sh. Vijay Kohili, one of the witness of compromise dated 24.11.2004. He has deposed that the said compromise was written in the hand writing of Sh. R.K. Gupta, father of the plaintiff, in the presence of this DW. He has further stated that as per the said compromise the completion date of the sale was 06.12.2004.
Witnesses of both the parties were cross examined by each others' counsels, however, cross examination of DW2/Defendant no. 2 could not be completed due to her nonavaiability.
13. I have heard counsels for the parties and perused the record and the written submissions filed by both the parties.
14. My issuewise findings are as follows: Issue no. 3: Whether there was no agreement between the plaintiff and defendant no. 2, as alleged by the defendant no. 2? If so, to what effect? OPD
2.
15. The onus of proof to prove this issue was upon the defendant no. 2. The plaintiff has filed the present suit for specific performance of agreement to sell dated 01.09.2003 Ex. PW1/1, followed by compromise dated 24.11.2004, in respect of suit property admittedly owned by defendant no. 2. As per own case of the plaintiff, the agreement to sell dated 01.09.2003 was entered between the plaintiff and defendant no. 1 Satpal, who is husband of defendant no. 2. As per the case of the plaintiff, at the time of entering into agreement to sell dated 01.09.2003, defendant no. 1 pretended himself to be owner of the suit property and did not disclose that it is defendant no. 2 who is absolute owner of the suit property. The title deeds of the suit property were not shown by the defendants to Parveen Garg Vs. Satpal Singh & Anr. Page 6 of 16 the plaintiff. However, in April2004, defendants called plaintiff to their residence and informed that both the defendants are the joint owners of the suit property and defendant no.1 is not the only owner of the same. At that time defendant no.1 informed the plaintiff that defendant no.2 will confirm the sale only after receiving Rs. 8 lacs. On this, plaintiff got prepared the demand draft of Rs. 7,95,000/ in favour of defendant no. 2 and paid Rs. 5000/ in cash to her. As per plaintiff, the said demand draft was not given by him to the defendants since defendants were not showing him the title deeds of the suit property. Subsequently, on 24.11.2004, again a compromise was reached between the plaintiff and defendant no. 1 in the police station, which was witnessed by plaintiff's father PW2 Sh. Ram Kishan Gupta and DW3 Sh. Vijay Kohli. Undisputedly, even in the said compromise, defendant no. 2 was not the party, who is the owner of the suit property. PW2 during his cross examination has admitted that defendant no. 2 was not present in the police station at the time of entering into the compromise dated 24.11.2004. From the facts of the case, it is clear that there was no previty of contract between the plaintiff and defendant no. 2, who is the actual owner of the suit property. No agreement much less agreement to sell dated 01.09.2003 Ex. PW1/1 and compromise dated 24.11.2004 was entered between plaintiff and defendant no. 2.
16. Plaintiff's counsel during arguments has strenuously relied upon the admission of the defendants in the written statement as well as in the cross examination of defendant no.2/DW2 in order to show that agreement dated 1.9.2003 Ex. PW1/1 was entered and executed by defendant no.1 with the consent of defendant no.2 and she (defendant no.2) being owner of the suit property was well aware that defendant no.1 on her behalf has entered into the agreement dated 1.9.2003 followed by compromise dated 24.11.2004. Although, the cross examination of DW2 cannot be read in evidence as her cross examination was not completed due to her non availability, however, since the defendants have admitted in their written statement itself that defendant no. 2 was aware that her husband was selling the suit property on her behalf and she has consented to enter into the agreement dated 01.09.2003, therefore, even if, the said cross examination will be read, it will not prejudice either of the party. The defendants in their Parveen Garg Vs. Satpal Singh & Anr. Page 7 of 16 respective written statements, in evidence in chief as well as in cross examination have admitted that in the year 2003, they intended to sell the suit property for which they were approaching the property dealers of the area. During cross examination defendant no.2/DW2, has also admitted that agreement dated 1.09.2003, was entered by defendant no.1 with the plaintiff with the consent of defendant no.2. This court is of the view that merely giving consent by defendant no. 2, to defendant no.1 for selling the immovable property does not imply any privity of contract between plaintiff and defendant no.2 who is actual owner of the suit property. There was no meeting of mind between plaintiff and defendant no.2. The defendant no.2 was not the party to any of the terms and conditions of the agreement dated 1.9.2003 and also to the compromise dated 24.11.2004. Admittedly, by 24.11.2004, plaintiff was aware about the fact that defendant no.2 is the owner of the suit property despite that for the reasons best known to him, he again on 24.11.2004, entered into a compromise with defendant no.1 who had nothing to do with the suit property. From the material on record, it is evident that there was no privity of contract between the plaintiff and defendant no.2 for selling the immovable property. Hence, this issue is decided in favour of defendant no. 2 and against the plaintiff.
Issue No. 1: Whether the plaintiff is entitled for specific performance of agreement dated 01.09.2003 and alleged compromise dated 24.11.2004 in respect of property bearing no. 3/153, Sunder Vihar, Paschim Vihar, New Delhi? OPP. & Issue No. 2: Whether the plaintiff has always been ready and willing and is still ready and willing to perform his part of agreement? OPP.
17. Both these issues are interconnected, therefore, taken up together for consideration. The onus of proof to prove these issues was upon the plaintiff. The plaintiff has stated that he entered into an agreement to sell dated 01.09.2003 with defendant no. 1 for purchasing the suit property for total sale consideration amount of Rs. 33,25,000/. The amount of Rs. 4 lacs was paid by the plaintiff to the defendant no. 1 as earnest money. As per the agreement to sell, the transaction has to be completed on 01.11.2003 or when the property would be converted from Parveen Garg Vs. Satpal Singh & Anr. Page 8 of 16 lease hold to free hold whichever is later. The execution of agreement to sell dated 01.09.2003 is admitted by defendant no. 1. Defendant no. 1 has also admitted receiving of earnest money, however, he has stated that the owner of the suit property was defendant no. 2, therefore, he had no authority to enter into an agreement to sell with the plaintiff due to which the said agreement to sell is null and void. Defendant no. 2 has also taken the same defence that she is the owner of the suit property, therefore, her husband i.e. defendant no. 1, had no authority to enter into any agreement with the plaintiff, therefore, the said agreement is not enforceable. The defendants have also disputed the hand written portion on the bottom of agreement to sell, however, this contention shall be dealt in the order in the succeeding para. The plaintiff has stated that at the time of entering into agreement to sell dated 01.09.2003, defendant no. 1 did not disclose him that defendant no. 2 is the owner of the suit property but he pretended himself to be the owner of the same. Plaintiff came to know in April2004 that it is defendant no. 2 who is the owner of the suit property. At that point of time, defendant no. 1 told to the plaintiff that defendant no. 2 is demanding Rs. 8 lacs for confirming the sale. On this, the plaintiff paid cash of Rs. 5000/ to defendant no. 2 and got prepared demand draft of Rs. 7,95,000/ in favour of defendant no. 2. Admittedly, no such demand draft was given by the plaintiff to either of the defendants. The plaintiff has stated that demand draft was not handed over to the defendants as they were not showing the sale deed of the suit property to him. From the present set of facts, it is clear that it came into the knowledge of the plaintiff in the year April2004 that defendant no. 2 is the owner of the suit property and not the defendant no. 1. It is also admitted fact that on 07.10.2004 and subsequently on 09.11.2004, plaintiff filed some police complaints in the concerned police station against the defendants. On 24.11.2004, the defendants were called in the police station and there the compromise was reached between the plaintiff and defendant no. 1 which was witnessed by plaintiff's father and one Sh. Vijay Kohli. At this juncture, it is relevant to mention that even in the said compromise, defendant no. 2 was not the party. This court is unable to convince itself that when plaintiff became aware in April 2004 that defendant no. 2 is the owner of the suit property then why again in Parveen Garg Vs. Satpal Singh & Anr. Page 9 of 16 November2004, he entered into a compromise with defendant no. 1 alone who had nothing to do with the suit property. From the facts of the case, it is clear that there was no previty of contract between plaintiff and actual owner of the suit property, therefore, the relief of specific performance cannot be granted in favour of the plaintiff.
18. Now, even if it is assumed that there was previty of contract between the plaintiff and defendant no. 2 for execution of agreement dated 01.09.2003 followed by compromise dated 24.11.2004, then the question arises whether in that scenario, is plaintiff entitled for specific performance of the agreement and compromise? Execution of agreement dated 01.09.2003 is not disputed, however, the defendants have disputed the hand written portion of the said agreement as they have stated that the hand written portion was added by the plaintiff without their knowledge and consent, subsequent to execution of the agreement. The said hand written portion is reproduced as under: "A sum of Rs. 3,00,000/ (Rupees Three lakh only) will be paid on 02.09.2003 as earnest money. The property is freehold. The balance payment will be made on 1.11.2003 or the property gets freehold whichever is later".
19. The plaintiff is relying upon the aforesaid hand written portion in order to show that time was not the essence of the contract. The plaintiff's contention is that the defendants in para no. 5 of their anticipatory bail application have relied upon the hand written portion of the agreement dated 01.09.2003 stating therein that they could not get the suit property free hold as per the agreement dated 01.09.2003 due to some unavoidable circumstances. The plaintiff has averred that now the defendants cannot wriggle out from their own admission made by them in the bail application. During the cross examination of defendant no. 1, the certified copy of the bail application was put to him. Defendant no. 1 has admitted the contents of the said bail application and the same is Ex. P1/D1. In para no. 3 (c) of the bail application, the defendants have relied upon the hand Parveen Garg Vs. Satpal Singh & Anr. Page 10 of 16 written stipulation of the agreement to sell. I agree with the plaintiff's counsel that the admission once made by the defendants in the said application cannot be withdrawn by them in this suit.
As per the said hand written clause, the sale has to be completed till 01.11.2003 or whenever the property is converted from lease hold to free hold whichever is later. The defendants have not placed anything on record that they ever applied for converting the suit property from lease hold to free hold but similarly, the plaintiff has also not placed on record any letter, email, message or any communication between him and the defendants to show that he ever asked the defendants whether they have applied for conversion of the suit property from lease hold to free hold or any steps were taken by the defendants for the said purpose. Likewise, the plaintiff has also not placed on record his statement of account during the relevant period of September to November2003, to show his financial capacity that he was ready with the money on 01.11.2003 for paying the balance sale consideration amount to the defendants. In the cross examination of defendant no. 2, a specific question was asked from her by the plaintiff's counsel that if plaintiff would have given the balance sale consideration amount on or before 01.11.2003, then would she have executed the sale deed in favour of plaintiff. The defendant no. 2 has given the answer in affirmative to this question. This question by plaintiff's counsel itself suggests that the sale deed was not executed on or before 01.11.2003 by the defendants due to the fault of the plaintiff as he had not given the balance sale consideration amount to the defendants. The plaintiff cannot be allowed to take the plea that he did not arrange the money till 01.11.2003 since till that time the defendants had not got the property converted to free hold. The gap between date of agreement to sell and effectuation date of the said agreement i.e. 01.11.2003 was only two months and plaintiff cannot presume that since the needful would not be done by the defendants therefore he is also not required to arrange the balance consideration amount. For this, I am relying upon the judgment of Hon'ble Delhi High Court titled as "Jinesh Kumar Jain Vs. Irish Paintal & Ors", Civil suit (Original suit) 1154/1989, decided on 10.07.2012. From the material on record, it is clear that both the parties are equally responsible Parveen Garg Vs. Satpal Singh & Anr. Page 11 of 16 in committing breach of contract as the defendants could not get the property free hold and the plaintiff was also not ready and willing to perform his part of obligation. The plaintiff, equally responsible for breach of contract, does not stop here and go further by filing police complaints in October and November2004 against the defendants, which ultimately ended in the compromise on 24.11.2004. As mentioned above, by the said date plaintiff was aware that defendant no. 2 is the owner of the suit property despite that he was not made party to the said compromise. The defendants have admitted entering into the compromise on 24.11.2004, however, they have disputed the date of completion of agreement. The plaintiff has stated that the sale was to be completed on 16.12.2004 whereas, defendants have stated that the effectuation date of sale was 06.12.2004.
20. Before proceeding further, few facts, though for the sake of repetition, are relevant to be mentioned here. It is a matter of record that on 03.12.2004, the defendants filed their anticipatory bail application before Ld. District & Sessions Judge. The defendants have stated in their affidavit of evidence that despite settlement, they had to file the anticipatory bail application prior to 06.12.2004 since they were continuously getting threats from SI Randhir Singh of their arrest if the defendants did not get the property converted to free hold or in the alternate to enter into a collaboration agreement with the plaintiff. The court is also convinced with the contention of the defendants that despite settlement between the parties, the defendants had to move for their anticipatory bail under the compelling circumstances, otherwise, there was no reason for the defendants to go for the bail once the matter was settled between the parties and effectuation date of sale, be it 06.12.2004 or 16.12.2004, had not reached. As per own case of the plaintiff, the original compromise dated 24.11.2004 was kept by SI Randhir in the police station and photocopies were handed over to both the parties. Both the parties have placed on record their respective photocopies of the compromise dated 24.11.2004. The photocopy placed on record by the plaintiff is Ex. PW1/5 bearing the effectuation date of sale as 16.12.2004, however, the photocopy placed on record by the defendants is bearing the effectuation date as 06.12.2004. The photocopy of the defendants has not been given any exhibit or mark, but has been duly proved by Parveen Garg Vs. Satpal Singh & Anr. Page 12 of 16 DW3 Sh. Vijay Kohli, who was witness to the said compromise. DW3 has categorically stated that the date of completion of sale was fixed as 06.12.2004 since on the said date Monday was falling and this DW keeps his shop closed on the said day i.e. Monday, therefore, he was available to go for registration of the sale deed being witness on the compromise dated 24.11.2004. This court has carefully perused both the photocopies of the compromise dated 24.11.2004 relied upon by the parties. Both the photocopies are found to be replica of each other except the dates, as the photocopy of the plaintiff bears the date of 16.12.2004 and photocopy of the defendants bears the date of 06.12.2004. Both these photocopies bear the signatures of plaintiff, his father, defendant no. 1 and DW3 Vijay Kohli. The said photocopies also bear one mobile number at the bottom. The manner and tenor of the signatures, mobile number, the gap in the words, sentences everything is same on both the photocopies. Keeping in mind the background that the police particularly SI Randhir Singh, on behalf of plaintiff, was continuously pressuring the defendants and also that SI Randhir Singh kept the original of compromise dated 24.11.2004, this court is of the considered opinion that the plaintiff added 1(one) just prior to 6 (six) subsequently with the connivance of SI Randhir Singh. The court can take notice of the fact that when defendant no.1 was handed over photocopy of document having date of 06.12.2004 then how could he replace the date by adding numerical 1(one) in the photocopy of the said compromise. But it was easy for the plaintiff to add numerical 1(one) prior to numerical 6(six) and to obtain another photocopy from SI Randhir Singh, who was having the original of the same. Now going further, even if, the contention of the plaintiff is taken as it is that effectuation date for completion of sale was 16.12.2004, then there was no need for him to send a notice dated 09.12.2004 to the defendants calling upon them to furnish the title deeds. Furthermore, the plaintiff has proved on record his statement of account Ex. PW3/1 for the period w.e.f. 06.12.2004 till 30.03.2015 in order to show that he was having sufficient money in his account to pay balance sale consideration amount. The said statement of account shows that the plaintiff was having amount of Rs. 10 lacs approximately in his account on 06.12.2004 and Rs. 18,43,000/ (inclusive of Rs. 10 lacs shown on 06.12.2004) on 16.12.2004.
Parveen Garg Vs. Satpal Singh & Anr. Page 13 of 16Admittedly, the sale consideration amount was Rs. 33,25,000/, Out of which the plaintiff had only given Rs. 4 lacs as earnest money. The plaintiff neither on 06.12.2004 nor on 16.12.2004 was having sufficient amount in his account to pay balance sale consideration amount to the defendants.
21. Otherwise also, the entire conduct of the plaintiff is beyond the normal course in which the things happen in the society. The plaintiff is a government contractor so is his father. Both, father and son, were part of each and every transaction entered between the parties. It is unbelievable for the court that despite being government contractor, plaintiff entered into the agreement to sell dated 01.09.2003 with the defendant no. 1 without seeing title documents of the property. Even when in April2004, he was informed that both the defendants were joint owners then also the plaintiff did not take any action nor sent any notice to the defendants calling upon them to show the title deeds instead he got prepared the demand draft in favour of defendant no. 2 without seeing the title documents in her favour. Again, without seeing title documents on 24.11.2004 and without taking defendant no. 2 into confidence, he entered into a compromise with defendant no. 1.
22. As per Section 20 of Specific Relief Act, the relief of specific performance is a discretionary relief and as per subclause 3 of Section 20, the court can exercise discretion to decree the suit for specific performance where the plaintiff has done substantial act or has suffered losses due to the agreement of which specific performance is sought. In "Jinesh Kumar Jain" (Supra), the Hon'ble High Court has held that substantial act would obviously mean and include payment of substantial amount of money and the substantial amount is approximately 50% or more of the consideration amount and in case of less payment the plaintiff should have been put into the possession of the property. In the said judgment, it has also been held that in cases where substantial act has not been done, the plaintiff will not be entitled for the decree of specific performance. In the case in hand, admittedly the plaintiff has paid only Rs. 4 lacs as earnest money out of total sale consideration amount of Rs. 33,25,000/, hence, in view of the judgment of "Jinesh Kumar Jain" (Supra), plaintiff is not entitled for the Parveen Garg Vs. Satpal Singh & Anr. Page 14 of 16 decree of specific performance of receiptcumagreement to sell dated 01.09.2004 followed by compromise dated 24.11.2004, on this count also.
In view of my aforesaid discussion, issues no. 1 & 2 are decided in favour of the defendants and against the plaintiff.
Issue no. 4: Whether the plaintiff is entitled for recovery of vacant possession, in case a decree of specific performance is passed in favour of the plaintiff and against the defendants? OPP.
23. In view of my findings on issues no. 1, 2 and 3, the plaintiff is held not entitled for recovery of possession of the suit property. This issue is accordingly decided in favour of the defendants and against the plaintiff. RELIEF:
24. In the present set of facts and circumstances, this court is of the view that plaintiff is entitled for equitable relief of return of his earnest money. Although, there is clause in the agreement to sell Ex. PW1/1 that if the purchaser i.e. plaintiff herein, will be guilty of breaching the contract then the earnest money shall be forfeited in favour of seller. The earnest money can be forfeited only if the seller proves that he has suffered a loss or legal injury to the tune of amount of earnest money and not otherwise. The defendants have not proved anything on record that they have suffered a loss or legal injury to the tune of Rs. 4 lacs. Only the fact that the agreement Ex. PW1/1 contains a clause for forfeiture of earnest money would not enable the defendants, under the extant law, to retain the same. For this, reliance can be placed on the two judgments of Hon'ble Apex Court (i) "Fateh Chand Vs. Bal Kishan Dass" AIR 1963 Supreme Court 1405 and (ii) "Kailash Nath Associates Vs. DDA & Ors." (2015) 4 SCC 136. Otherwise also, in this case the defendants in their respective written statements as well as in the evidence have stated that they were always ready to return the earnest money to the plaintiff.
In view of my findings on the above issues, the suit of the plaintiff for specific performance of agreement to sell dated 01.09.2003 is hereby dismissed, however, the suit of the plaintiff is decreed for Rs. 4 lacs being the earnest money admittedly received by the defendants alongwith the interest @ 12% from the date Parveen Garg Vs. Satpal Singh & Anr. Page 15 of 16 of receiving the said amount i.e. 02.09.2004 till realization. Parties shall bear their respective costs of the suit.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (CHARU AGGARWAL)
27th January, 2018 ADJ03/WEST/THC/DELHI
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