Delhi District Court
Bijender Singh vs Sh. Prem Singh on 18 March, 2014
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-06, CENTRAL, TIS HAZARI COURT, DELHI
Suit No. 321/11
Unique ID No. 02401C0833592006
Bijender Singh
S/o Sh. Abhey Ram,
R/o Vill & P.O., Punjab Khor,
Delhi-110081.
... Plaintiff
VS.
Sh. Prem Singh
S/o Sh. Jagan Nath,
R/o Vill & P.O., Punjab Khor,
Delhi-110081.
... Defendant
Suit for specific performance, possession
and permanent injunction.
DATE OF INSTITUTION OF THE CASE :14.09.2006
DATE ON WHICH RESERVED FOR ORDER :28.02.2014
DATE OF JUDGMENT :18.03.2014
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant for specific performance of agreement, possession and permanent injunction.
2. The brief facts of the case as per the plaint are that the parties entered into an agreement to sell dated 25.07.2002 in respect of built up property bearing no. 16 mearsuring 150 sq yds in Khasra no. 1338, situated in old Abadi of Village Punjab Khor, Delhi for total consideration of Rs. 2,75,000/-. That the defendant agreed to execute sale deed as and when the plaintiff CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 1 of 14 Dated: 18.03.2014 required and also agreed to obtain NOC from competent authority, if required, for registration of sale deed. That defendant executed a separate receipt for receiving the consideration of Rs. 2,75,000/-. Defendant also executed GPA in favour of plaintiff which was registered and also issued possession letter and affidavit. That in terms of the said agreement, plaintiff receive possession of the property on 25.07.2002 and he even applied ration card and electricity connection.
3. It is alleged that defendant kept postponing the execution of sale deed despite repeated demand of the plaintiff, however, since, plaintiff was already put in possession of the property, there was no great urgency for him to have the sale deed executed from the defendant. That defendant had kept his few household goods in a portion of the property but later refused to remove the same when his intentions went wrong and he further demanded Rs. 50,000/- for vacating the said portion to which the plaintiff paid the said on 31.03.2006 in order to avoid delay and litigation and there upon the defendant executed an agreement to handover the possession about 70 sq yds to the plaintiff by the 31.08.2006, but the defendant has failed to comply. The request of the plaintiff on 01.09.2006 to execute the sale deed was also denied by the defendant. That the plaintiff has always been ready and willing to have the sale deed executed as he has already paid the entire consideration and is thus entitled to decree of specific performance in his favour.
4. In WS, it is stated that the documents of the plaintiff are forged and fabricated except the GPA and will as the defendant was in need of Rs. 50,000/-and the plaintiff was searching for an house on rent and he offered to the defendant the said amount and asked the possession of the part of CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 2 of 14 Dated: 18.03.2014 property in lieu thereof to which the defendant agreed and handed over the possession of the part of property measuring about 90 sq yds to the plaintiff as licensee, without any charge, and received Rs. 50,000/- from the plaintiff on 25.07.2002 and the GPA and the Will was executed by the defendant in favour of the plaintiff as a collateral security for Rs. 50,000/-. That defendant on many occasions tendered/offered Rs. 50,000/- to the plaintiff but he avoided to receive back the loan and refused to handover the property. That the defendant never executed the alleged agreement to sell dated 25.07.2002 for Rs. 2,75,000/- that the suit is liable to be dismiss as the license of the plaintiff has been revoked. The other averments of the plaint have been denied.
5. In replication, the averments made in the plaint are reiterated and reaffirmed and those of the WS denied.
6. Vide order-sheet dated 17.10.2007, the following issues were framed:-
i. Whether the plaintiff is entitled to decree of specific performance as prayed? OPP.
ii. Whether the plaintiff is entitled to decree of possession as prayed? OPP.
iii. Whether the plaintiff is entitled to decree of permanent injunction as prayed? OPP.
iv. Whether the plaintiff has suppressed material facts and has filed
the case on the basis of of forged documents? OPD
v. Relief.
7. To substantiate his case, plaintiff himself appeared in the witness box as PW-1 his affidavit in evidence is Ex PW-1/A. In documentary evidence, CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 3 of 14 Dated: 18.03.2014 plaintiff filed and relied upon photocopy of sale agreement dated 25.07.2002 which is mark A, photocopy of receipt is mark B, photocopy of possession letter is mark C, photocopy of affidavit is mark D, certified copy of GPA is Ex PW1/1, copy of ration card Ex PW1/2, copy of recent ration card is Ex PW1/2A, copy of electricity bill is Ex PW1/3, recent electricity bill Ex PW1/3A, site plan is Ex PW1/4, agreement dated 31.03.2006. Plaintiff also got examined Sh. Rakesh Kumar as PW-2, his affidavit in evidence is Ex PW2/A and Sh. Bhim Singh as PW-3, his affidavit in evidence is Ex PW3/A. On the other hand, defendant also appeared as DW-1 and his affidavit is evidence is Ex DW1/A. Defendant filed documents which are letter dated 23.04.2007 regarding revocation of GPA which is Ex DW1/1, registry receipt Ex DW1/2, UPC is Ex DW1/3.
8. I have heard the arguments and perused the record. My issue wise disposal of the present suit is as under:-
9. Issues no. 1 & 2 i. Whether the plaintiff is entitled to decree of specific performance as prayed? OPP.
ii. Whether the plaintiff is entitled to decree of possession as prayed? OPP.
In the facts of the case, the plaintiff has alleged that the defendant executed an agreement to sell dated 25.07.2002 and agreed to sell his house measuring 150 sq yard for a total consideration of Rs. 2.75 lakhs which was paid by the plaintiff at the time of execution of the agreement itself for which defendant executed a separate receipt and also executed GPA duly registered in favour of Plaintiff. Plaintiff also states that the Defendant executed a CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 4 of 14 Dated: 18.03.2014 possession letter and affidavit too. Plaintiff further avers that he received possession of the property from Defendant on same date i.e. 25.07.2002 except one portion in which the defendant kept his articles. The Plaintiff also states that he applied and obtained a ration card and electricity connection in his name at the address of the property.
10. It is the allegation of plaintiff that defendant kept postponing the execution of the sale deed despite repeated demands by the plaintiff. It is at the same time averred in the plaint that since plaintiff has already been put in possession of the property , there were no great urgency for plaintiff to have the sale deed executed from defendant. It is further alleged by plaintiff that he requested the defendant number of times to execute the sale deed and remove the goods lying in his possession but the defendant kept ignoring the requests. Further the plaintiff alleges that defendant demanded a further sum of Rs. 2,50,000/- for vacating the portion in his possession from where his goods were kept and the plaintiff paid this amount to avoid delay and litigation in the matter and this amount was paid to defendant on 31.03.2006 and he executed an agreement undertaking to handover the possession of about 70 sq. yards to plaintiff by 31.08.2006 but defendant has failed to comply with the terms of the said agreement. It is further noted that the plaintiff has averred that he on 01.09.2006 requested defendant to execute sale deed and handover the possession of remaining portion, but defendant refused.
11. On the other hand , defendant in his W.S. has already denied having entered into any agreement to sell his property or to have executed any agreement to sell dated 25.07.2002, although , he admits of having executed the GPA and will stating that plaintiff was inducted merely as a licensee , as CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 5 of 14 Dated: 18.03.2014 the defendant was in need of Rs. 50,000/- and plaintiff gave him this amount in lieu of which plaintiff was put in possession of the portion of the property and the GPA and will were executed as collateral security, but the plaintiff did not handover the property back to plaintiff even when he was offered the said amount of Rs. 50,000 by defendant. It is stated by defendant that he never executed the agreement dated 31.03.2006 Ex PW1/5 and never received any amount of Rs. 50,000 from plaintiff and the same is a false story of the plaintiff to extend the limitation.
12. In the evidence that is the testimony of defendant/DW-1 recorded on 27.11.2013, he has denied the agreement to sell in question (which is photocopy mark A) , and also the agreement dated 31.03.2006 Ex Pw1/5.
13. Firstly, it is observed in the pleadings of the plaintiff that he has merely averred, without any specific date or time period, that he requested the defendant numbers of times to execute the sale deed and remove the goods lying in portion of defendant, but the defendant kept ignoring the request. There is no notice sent on behalf of plaintiff to the defendant with respect to asking the defendant to execute the sale deed. The averment in para 7 of the plaint is here noted wherein he states that since he was already been put in possession of the property, there was no great urgency for him to have the sale deed executed from defendant. This reflects that there was no request from the side of plaintiff to the defendant regarding the execution of sale deed. It is further pertinent to note that having averred in para 9 of the plaint that defendant kept ignoring the request of the plaintiff, it is averred in para 10 of the plaint that defendant demanded from plaintiff a further sum of Rs. 50,000/- for vacating the portion in his possession and plaintiff in order to avoid delay CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 6 of 14 Dated: 18.03.2014 and litigation, paid the said sum on 31.03.2006 upon which defendant executed an agreement Ex PW1/5. These two paras of the plaint when read together gives a picture that the requests whatever regarding execution of sale deed and removal of goods from the remaining portion were made, if at all, by plaintiff on or near about the date 31.03.2006. Thus, there is no request regarding execution of sale deed and recovery of remaining possession seen on record having been made from the side of plaintiff or the refusal of the same having been made on the part of defendant withina period of three years from 25.07.2002 i.e from the date of the agreement to sell in question Mark A. It is also relevant to reproduce the para 14 of the plaint containing the averment regarding cause of action which reads as under:
"That the cause of action arose on various dates in favour of the plaintiff as detailed herein above. The cause of action for filing the present suit firstly arose on 25.07.2002 when the defendant executed agreement and other documents in favour of the plaintiff and handed over the possession of the suit property and assured to remove his belongings form the rest of the portion. The cause of action further arose on various dates when the plaintiff requested the defendant to execute the sale deed and remove his belongings from the portion of the suit property. The cause of action lastly arose in the first week of September,2006 when the defendant refused to execute the sale deed and hand over the possession of the portion of the suit property to the plaintiff"
14. Here, it is seen that plaintiff has given the specific date i.e. 25.07.2002 when the cause of action first arose upon the execution of the agreement, but has omitted to disclose any specific date(s) or even any time period during which he allegedly made requests to defendant for execution of sale deed. Here again, it is very much pertinent to observe that the plaintiff has not CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 7 of 14 Dated: 18.03.2014 mentioned that the cause of action arose on 31.03.2006 when defendant executed another agreement Ex PW1/5, for Rs. 50,000/-. The reason appears to be obvious as even in the said document Ex PW1/5, there is no mention regarding any sale deed to be executed or any further documents to be executed with respect to the property and it only mentions about the amount of Rs. 50,000/- being given by the plaintiff to defendant in lieu of defendant vacating the remaining potion of the property by 31st August. Thus this document Ex PW1/5 cannot be seen as a document to extend the limitation with regard to filing of the present suit. Even otherwise, the date of this document falls beyond the period of three years from 25.07.2002 and the plaintiff has not been able to spell out any particular date or time period when he demanded the execution of sale deed or the defendant refused the same, as has already been observed above. Article 54 of the Limitation Act, 1963 provides for the period of limitation for a suit for specific performance of a contract which is three years from "the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused." In the agreement there was no time fixed for the execution of the sale deed and as has been observed above, the plaintiff has not been able to prove any particular date/time when the performance was refused and therefore, the period of limitation ends on 25.07.2005 i.e three years from the agreement to sell, but the present suit has been filed only on 14.09.2006, which is much beyond the period of period of limitation and hence the suit is barred by time and deserves dismissal on this ground alone.
15. Secondly, looking at the documents filed and relied upon by the plaintiff, it is observed that the documents viz. Agreement to sell mark A, CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 8 of 14 Dated: 18.03.2014 receipt Mark B, possession letter mark C and affidavit Mark D are all merely photocopies, although certified copy of GPA Ex PW1/1 was filed as the same was registered. Plaintiff also moved an application u/s 65 of the Indian Evidence Act to prove these documents by leading secondary evidence stating that the originals were lost. This application was allowed on 12.10.2012 permitting the plaintiff to lead secondary evidence but it is observed that plaintiff even did not exhibit or prove the copy of FIR (NCR u/s 155 Cr. P.C) which was allegedly lodged regarding lost of original documents. No witness was called to prove the same. It is very pertinent to note that amongst those documents there is also the photocopy of agreement to sell dated 25.07.2002 which is Mark A, the very basis of this suit, and the same is denied by defendant to be executed by him and even in his cross-examination he has specifically denied his signatures over the same, although he admits his signatures over other documents such as receipt Mark B and affidavit Mark D. But the fact remains that the agreement to sell, which is the basis of this suit for specific performance, is not admitted by defendant in any manner although he may have admitted the receipt of a loan of Rs. 50,000/- from defendant and having executed GPA as a security, but execution of these admitted documents cannot give a presumption that the agreement to sell Mark A was also executed by defendant especially in the circumstances when the other admitted documents do not mention about any such agreement to sell also executed between the parties. The said agreement to sell Mark A is unregistered and is only notorized. The plaintiff even did not call the notary public concerned in order to prove it. Thus, the said agreement to sell dated 25.07.2002 Mark A is merely a photocopy on record and remained unproved CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 9 of 14 Dated: 18.03.2014 and thus no specific performance of any agreement can be granted.
16. Further, I now come to s. 16 (c) of the Specific Relief Act which states that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract.
17. In Hira Lal Sharma Vs. Davinder Singh Lamba CS(OS) 173/2008 decided by the Hon'ble High Court of Delhi on 30/5/2012 distinction was made with respect to the words "readiness" and "willingness". In the said ruling the case of J.P. Builders Vs. A. Ramadas Rao (2011) 1 SCC 429 has been discussed in which it was held that the distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally readiness is backed by willingness. In Man Kaur (dead) by LRs Vs. Hartar Singh Sangha (2010) 10 SCC 512 it was held that in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. The case of Man Kaur also discussed and relied upon N.P. Thirugnanam (D) By Lrs vs Dr. R. Jagan Mohan Rao & Ors. AIR 1996 SC 116 wherein it was held that:
"The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 10 of 14 Dated: 18.03.2014 of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract."
18. It was also observed in Man Kaur that readiness and willingness refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. In para 24 of the judgment their Lordships further observed that:
"There are two distinct issues. The first issue is the breach by the defendant - vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 11 of 14 Dated: 18.03.2014 performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of plaintiff is something which need not be proved, if the plaintiff is able to establish that defendant refused to execute the sale deed and thereby committed breach, is not correct."
19. In light of the above principles, it is observed in the case in hand that there is no continuous willingness on the part of the plaintiff to get the sale deed registered and this continuous willingness is a condition precedent to grant the relief of specific performance.
20. The plaintiff has simply averred in the plaint that he requested the defendant number of times to execute the sale deed and handover remaining possession of the property. This unsubstantiated averment is not sufficient for seeking the relief of specific performance. As has already been observed, there is no particular date or even time period disclosed by the plaintiff when he allegedly made such requests. Even no legal notice was sent by plaintiff to defendant for getting the sale deed executed. It is not expected of a prudent man, who has paid the entire sale consideration and has also taken possession of a portion, not to press upon the execution of sale deed since the agreement to sell does not itself confer any right, or title in the property but merely gives a right to get sale deed executed which would, when executed, only give right/title in the property. The plaint para 7 avers that there was no great urgency for the plaintiff to have sale deed executed since he was already in possession. This averment itself shows the lack of readiness and willingness on the part of plaintiff to get the sale deed executed form defendant. Thus the bar of s. 16 of the Act is applicable. Even s. 20 of the Act provides that the jurisdiction to decree specific performance is CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 12 of 14 Dated: 18.03.2014 discretionary and the Court is not bound to grant such relief merely because it is lawful to do so, but the discretion is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. The facts and circumstances noted in the foregoing paras do not warrant the grant of discretionary relief of specific performance to the plaintiff. Consequently plaintiff cannot also be entitled to any decree for possession with respect to any remaining portion of the property. These issues no. 1 & 2 are thus decided against the plaintiff.
21. Issue no.3.
iii. Whether the plaintiff is entitled to decree of permanent injunction as prayed? OPP.
The permanent injunction is sought to restrain the defendant from interfering in the peaceful use and enjoyment and possession the plaintiff in the suit property, but it is observed that there is no averment in the plaint that defendant is interfering in the use and enjoyment or possession of the plaintiff. There is only one sentence in para 11 of plaint where the plaintiff simply states that defendant told the plaintiff to vacate the suit property as he intended to sell the same to third person. This averment is also not substantiated as no details whatsoever has been provided for the same. There is no evidence filed on record by the plaintiff to prove this issue. Here the amendment of 24.09.2001 in s. 53 A Transfer of Property Act and s. 17 (1A) Registration Act, 1908 (newly introduced sub-section) creates a bar upon the plaintiff to claim the relief of permanent injunction as the alleged agreement dated 25.07.2002 Mark A is unregistered. Thus, plaintiff is not entitled to the discretionary relief of permanent injunction, as prayed. This issue no. 3 is accordingly, denied CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 13 of 14 Dated: 18.03.2014 against the plaintiff.
22. Issue no. 4.
iv. Whether the plaintiff has suppressed material facts and has filed the case on the basis of of forged documents? OPD The onus of this issue was upon the defendant, but defendant has not been able to prove this issue and hence the same is decided in favour of the plaintiff and against the defendant.
Relief In light of the findings on all the issues above, the present suit is dismissed. In the circumstances of the case, no order as to costs. Decree sheet be prepared.
File be consigned to Record Room.
Announced in open Court (PRANJAL ANEJA)
on 18.03.2014) CIVIL JUDGE-06, CENTRAL
TIS HAZARI COURT
CS no. 321/11 Bijender Singh Vs. Prem Singh Page no. 14 of 14
Dated: 18.03.2014