Delhi District Court
Anil Saini vs Shyam Sunder Malik on 20 November, 2024
IN THE COURT OF MS. POORVA MEHRA,
CIVIL JUDGE-02, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
In the matter of:-
CS SCJ 50747/16
ANIL SAINI VS. SHYAM SUNDER MALIK AND ANOTHER
Sh. Anil Saini
S/o. Late Sh. Rishal Singh
R/o. H. No.138, Bhagwan Nagar,
Delhi-110014. ......Plaintiff
Versus
1. Sh. Shyam Sunder Malik
2. Sh. Naresh Kumar
Both sons of Late Sh. Hukam Chand
Both residents of H. No.230, Hari Nagar,
Ashram, New Delhi-110014. ......Defendants
SUIT FOR SPECIFIC PERFORMANCE OF
COLLABORATION AGREEMENT DATED 27.04.2011 FOR
POSSESSION OF SUIT PROPERTY NO.230, HARI NAGAR,
ASHRAM, NEW DELHI-110014 (PART).
Date of institution of the suit : 26.04.2014
Judgment reserved on : 15.10.2024
Date of Judgment : 20.11.2024
CS SCJ 50747/16 Poorva Mehra
Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED
Page no. 1 of 22 Saket Court, ND/20.11.2024
AMENDED MEMO OF PARTIES
(FILED ON 23.07.2022)
In the matter of:-
CS SCJ 50747/16
ANIL SAINI (SINCE DECEASED) THROUGH LRs VS.
SHYAM SUNDER MALIK AND ANOTHER
1. Sh. Anil Saini (Since Deceased) Through LRs
1(a). Smt. Abhilasha Saini
W/o. Late Sh. Anil Saini
R/o. H. No.136, Bhagwan Nagar,
New Delhi-110014.
1(b). Ms. Anisha Saini
D/o. Late Sh. Anil Saini
R/o. 11921, Quassia Dr
Texas
USA 78739.
1(c). Sh. Akhil Saini
S/o. Late Sh. Anil Saini
R/o. H. No.136, Bhagwan Nagar,
New Delhi-110014. ......Plaintiffs
Vs.
1. Sh. Shyam Sunder Malik
S/o. Late Sh. Hukam Chand
R/o. H. No.230, Hari Nagar,
Ashram, New Delhi-110014.
2. Sh. Naresh Kumar
S/o. Late Sh. Hukam Chand
R/o. H. No.230, Hari Nagar,
Ashram, New Delhi-110014. ......Defendants
CS SCJ 50747/16 Poorva Mehra
Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED
Page no. 2 of 22 Saket Court, ND/20.11.2024
JUDGMENT
1. Vide this judgment, this court shall decide the present suit for specific performance of Collaboration Agreement dated 27.04.2011 for Possession of Suit Property No.230, Hari Nagar, Ashram, New Delhi-110014 (Part).
PLAINT: -
2. Briefly stated, suit of Plaintiff is that on 11.03.2010, the Defendants Shyam Sunder Malik and Naresh Kumar executed a registered Sale Deed in favour of Plaintiff pertaining to property bearing no.230, Hari Nagar, Ashram, New Delhi having 130 sq. yds. of land in Khasra No.1518/1095 village Kilokri who became the owner through a registered Gift Deed Document No.15680, Addl. Book No.1, Vol. No.8871, pages 184 to 187 in the Office of Sub-Registrar-V, New Delhi dated 17.10.2008.
3. Smt. Shanti Devi and Smt. Krishna Devi purchased the said property from Shri Hukam Chand vide registered Sale Deed registered as Document No. 4891, Addl. Book No.1, Vol No. 4540, pages 184 to 188 in the office of Sub- Registrar, New Delhi on 10.09.1981. Thereafter, Sh. Hukam Chand died intestate on 28.12.1986 which property stood devolved upon his wife Smt. Phoolwati, three sons namely Naresh Kumar, Bhim Singh and Shyam Sunder and two daughters namely Smt. Santosh and Smt. Roshni.
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4. Smt. Santosh and Smt. Roshni relinquished their right in the property vide Relinquishment Deed registered as Document No.11243, Additional Book No.1, Volume No. 5216, Pages 23 to 25 in the Office of Sub-Registrar-V, New Delhi on 26.07.2005, relegating their mother Smt. Phool Wati to be the absolute owner of the suit property. Thereafter, Smt. Phool Wati, voluntarily of her own executed a registered Gift Deed on 17.10.2008 in favour of Shyam Sunder Malik.
5. Next, Naresh Kumar and Bhim Singh, sons of late Hukam Chand became witnesses for executing the Sale Deed dated 11.03.2010 executed by Sh. Shyam Sunder Malik and confirmed by Naresh Kumar and Bhim Singh in favour of deceased Plaintiff.
6. Thereafter, Defendant no.1 Shyam Sunder Malik, for his legal needs and bonafide requirement sold the eastern side i.e. the right side, first floor and second floor flats (without terrace right) each measuring about 65 sq. yds. i.e. 54.3465 sq. mtr of the said property bearing no. 230, Hari Nagar, Ashram, New Delhi and other common facilities/ services available at the site.
7. It is averred that the Plaintiff, in pursuance of the execution of the sale deed dated 11.03.2010, paid a sum of Rs.9,00,000/- to the Defendant No.1 and by virtue of the Sale Deed, the Defendant No.1 sold, conveyed, transferred and assigned the said flats i.e. eastern side (right side), first floor and second floor flats without terrace right is CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 4 of 22 Saket Court, ND/20.11.2024 measuring about 65 square yards of the said property unto the Plaintiff. Thereafter, the Defendants and Bhim Singh delivered the vacant physical possession of the said flats to the Plaintiff who occupied the same.
8. It is also submitted that consequently, Defendants and the said Bhim Singh, after the execution of the Sale Deed left with no right, title and interest and concern of any nature in the said flats. Therefore, all the rights arisen out of the Sale Deed pertaining to the property in question bestowed upon the Plaintiff with widest possible right of being true and lawful owner of the flat in question, sold by the Defendant No.1 through registered Sale Deed.
9. It is asserted that Defendant No.1 on 11.03.2010, entered into a Collaboration Agreement with the Plaintiff for the purpose of getting developed the eastern side i.e. right side half portion of property no.230, Hari Nagar Ashram, New Delhi.
10. Thereafter, later on 27.04.2011, Defendants entered into another Collaboration Agreement with the Plaintiff in which it was stated that the Defendants are owner and in possession of terrace of the entire third floor of the property no.230, Hari Nagar Ashram, New Delhi having an area of 130 square yards. Thus, the Defendants, in pursuance of the Collaboration Agreement dated 27.04.2011, become the owner of with possession of left side Fourth Floor flat without terrace right and Plaintiff was entitled to own and in possession of Eastern Side i.e. the right side, Fourth Floor flat without terrace right, CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 5 of 22 Saket Court, ND/20.11.2024 wherein stair case, passage and other common facilities were to remain common.
11. It is averred that on 27.06.2013, the Plaintiff and one Sh.
Ashok Kumar Sharma, R/o. H. No.246, Hari Nagar, Ashram, New Delhi were stopped by the Defendant Sh. Shyam Sunder Malik and did not permit the Plaintiff to visit his own flat on the fourth floor of the said property and again on 29.06.2013, the Defendants Sh. Shyam Sunder Malik and Naresh Kumar threatened the Plaintiff to kill him by throwing from the upper flat resulting in a criminal complaint filed on 29.06.2013 to the SHO, PS Sunlight Colony, New Delhi.
12. Moreover, on 19.07.2013, the Plaintiff again lodged a complaint with the SHO, PS Sunlight Colony, New Delhi complaining about the criminal trespass made by the Defendants and for committing theft and assaulting the Plaintiff and wrongfully restraining the Plaintiff for entering his flat.
13. That, since, the Defendants have taken wrongful possession of the flat on the Fourth Floor of the said property of which the Plaintiff became the owner under the Collaboration Agreement dated 27.04.2011.
14. Hence, the present suit for Specific Performance.
SUMMONS: -
15. Summons were duly served upon the Defendants.
Defendant no.2 appeared through Ld. Counsel and filed WS. However, despite service, Defendant no.1 did not CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 6 of 22 Saket Court, ND/20.11.2024 appear in court, therefore, vide order dated 10.02.2020, Defendant no.1 was proceeded against Ex-Parte.
WRITTEN STATEMENT: -
16. Written Statement (WS) was filed in court followed by amended WS filed on 02.12.2019 and further amended WS on 17.10.2021, wherein, multiple preliminary objections have been raised. It is stated that present suit is frivolous, vexatious, misconceived and Plaintiff has suppressed and misrepresented the material facts and thus, is not entitled for relief.
17. Also, that the present suit is devoid of any cause of action in favour of the Plaintiff and against the Defendants and as such is liable to be dismissed on this score itself.
18. Moreover, Plaintiff has not disclosed before the court that he has not fulfilled his part of the obligation in terms of the Collaboration Agreement dated 06.11.2009, 11.03.2019 and 27.04.2011. It is also submitted that Plaintiff is not entitled for any share in the suit property. Plaintiff has discharged his liabilities/ or performed his part of the obligation of completing the development/ construction of the suit property.
19. Furthermore, present suit is not maintainable in the eyes of law as the Plaintiff has filed the suit for Specific Performance, while the nature of relief sought is that of recovery of possession. Thus, the present suit is not maintainable in the eyes of law and is liable to be rejected.
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20. Next, Defendants submit that present suit is liable to be rejected on the grounds of payment of deficient Court Fees as Plaintiff has paid only Rs.130/- on Perpetual Injunction while the suit filed is in the nature of suit for possession. Thus, the Plaintiff ought to have paid ad-valorem court fees on the value of the suit property. Thus, the present suit is liable to be rejected on this ground also.
21. It is also submitted that it has been judicially determined in another judicial proceeding between the parties i.e. Criminal Case No.3835/17 arising out of FIR No.537/13 dated 17.12.2013 with PS Sunlight Colony, South East District, Delhi by Judgment dated 30.10.2019 passed by the Ld. Court of Sh. Ashish Gupta, the Ld. MM, Saket Courts, New Delhi that construction and finishing of the property was not completed by 04.07.2016. Thus, Plaintiff had no occasion to claim that he had already performed the contractual obligation on his part under the Agreement. And now, the Plaintiff is not entitled for claiming Specific Performance of contract by the answering Defendant in the contract/ agreement as he is defaulter.
REPLICATION: -
22. Replication dated 14.11.2014 was filed by Plaintiff, wherein, Plaintiff denied the claims of Defendants entirely.
ISSUES: -
23. Based on pleadings of parties, following issues were framed:
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a) Issue no.1: Whether the Plaintiff has suppressed and
mis-represented material facts to this Court? OPD
b) Issue no.2: Whether the Plaintiff himself is guilty of non-performance of the collaboration agreement dated 27.04.2011? OPD
c) Issue no.3: Whether the present suit has been instituted without any cause of action? OPD
d) Issue no.4: Whether the suit has not been property valued for the purpose of court fees and jurisdiction? OPD
e) Issue no.5: Whether the Plaintiff is entitled to a decree of specific performance of collaboration agreement dated 27.04.2011? OPP
f) Issue no.6: Whether the Plaintiff is entitled to a decree of possession of a Flat at the terrace of third floor situated in property bearing no. 230, Hari Nagar, Ashram, New Delhi? OPP
g) Issue no.7: Relief.
PLAINTIFF EVIDENCE: -
24. PW-1: In Plaintiff evidence, Sh. Anil Saini, Plaintiff deposed as PW-1 vide affidavit of evidence exhibited as Ex.PW-1/A. He reiterated the contents of the plaint. He relied upon Original Sale Deed dated 12.03.2010 which is Ex.PW-1/1, copy of Relinquishment Deed as Ex.PW-1/3, Original Collaboration Agreement dated 11.03.2010 as CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 9 of 22 Saket Court, ND/20.11.2024 Ex.PW-1/4, Original Collaboration Agreement dated 27.04.2011 as Ex.PW-1/4A, true coy of police complaint dated 29.06.2013 & 19.07.2013 as Ex.PW-1/5 (Colly), copy of FIR dated 19.07.2013 as Mark A and Collaboration Agreement dated 06.11.2009 as Ex.PD-1. PW-1 was cross-examined extensively by the Ld. Counsel for Defendant.
25. PW-2: Sh. Ashok Sharma, deposed as PW-2. He corroborated the testimony of Plaintiff/ PW-1. PW-2 also relied upon the documents already relied upon by the PW- 1 i.e. Original Sale Deed dated 12.03.2010 which is Ex.PW-1/1, Original Collaboration Agreement dated 11.03.2010 as Ex.PW-1/4, Original Collaboration Agreement dated 27.04.2011 as Ex.PW-1/4A and Collaboration Agreement dated 06.11.2009 as Ex.PD-1. He was cross-examined by the Ld. Counsel for Defendant no.2.
26. PW-3: Sh. Nikhil, deposed as PW-3. He relied upon his affidavit of evidence as Ex.PW-3/1 and corroborated the facts as mentioned in the plaint. PW-3 also relied upon the documents already exhibited by PW-1 i.e. Original Collaboration Agreement dated 27.04.2011 as Ex.PW- 1/4A. He was also cross-examined by the Ld. Counsel for Defendant no.2.
27. Thereafter, vide a separately recorded statement, Ld. Counsel for LRs of Plaintiff closed PE on 04.05.2023.
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Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED
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DEFENDANT EVIDENCE: -
28. DW-1: Sh. Naresh Kumar is the Defendant no.2, he got examined himself as DW-1. He tendered his evidence by way of affidavit exhibited as Ex.DW-1/A. He was cross- examined in detail by the Ld. Counsel for Plaintiff. DW-1 relied upon the following documents:
S. No. Documents Exhibits
1 Certified copy of file no.91/13 Ex.DW-1/1
proceeded before the Special (Colly)
Executive Magistrate, Amar Colony,
New Delhi.
2 Legal Notice Dated 19.02.2011 Ex.DW-1/2
3 Certified copy of deposition of Ex.DW-1/3
Plaintiff in aforesaid Criminal case (OSR) No.3835/2017 4 Certified copy of Judgment and Ex.DW-1/4 Final order date 30.10.2019 passed (OSR) by the court of Sh. Ashish Gupta, Ld. MM, SE, Saket Courts, New Delhi Criminal Case No.3835/17.
29. Thereafter, vide separate statement dated 15.01.2024, Defendant no.2/ DW-1 closed Defendant Evidence.
FINAL ARGUMENTS: -
30. Ld. Counsels for the Plaintiff and Defendant no.2 addressed arguments at length. I have heard the submissions advanced by the Ld. Counsels for both parties. I have also perused the entire case record meticulously.
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DISCUSSION:-
31. Before starting to engage with the factual matrix of the present suit, in the considered opinion of this court, it is prudent to understand the legal jurisprudence on the matters-in-issue. The settled position of law regarding the facts at hand is governed by the provisions of Specific Relief Act, 1963.
32. The following provisions govern the relief that has been prayed for by the Plaintiff. Regarding relief of Specific Performance, same can be understood in terms of the following provisions:
"Section 10 - Cases in which specific performance of contract enforceable--
Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced--
(a) when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.
Explanation.--Unless and until the contrary is proved, the court shall presume
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:
(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff."
33. Section 16 - "Personal bars to relief.--
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Specific performance of a contract cannot be enforced in favour of a person--
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) 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 terms the performance of which has been prevented or waived by the defendant.
Explanation.--For the purposes of clause (c),
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
34. Section 19 - "Relief against parties and persons claiming under them by subsequent title --
Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) either party thereto;
(b) any other person claiming under him by a title arising
subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;
(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
(e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company:Provided that the company has CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 13 of 22 Saket Court, ND/20.11.2024 accepted the contract and communicated such acceptance to the other party to the contract."
35. Section 20 - "Discretion as to decreeing specific performance--
(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause;
(a) or hardship within the meaning of clause (b). Explanation 2.--The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause
(b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(i) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(ii) The court shall not refuse to any party specific performance of a contract merely on the ground that the CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 14 of 22 Saket Court, ND/20.11.2024 contract is not enforceable at the instance of the party."
36. Section 22 - "Power to grant relief for possession, partition, refund of earnest money, etc.-- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-- (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief."
37. Accordingly to the considered opinion of this court, it is necessary that a Plaintiff's conduct in performance of the contract or attempting to fulfill the same shows an unwavering intention of wanting to perform. The Supreme Court has in para 12 of its judgment in "Aniglase Yohannan v. Ramlatha" (2005) 7 SCC 534 held that:
"12. 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 blemishless 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. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."
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38. In case titled as "I. S. Sikandar v. K. Subramani" (2013) 15 SCC 27, the Hon'ble Supreme Court held that on failure to pray for and seek to declare that a termination was wrongful the further relief to perform the terminated agreement could not be granted:
"37. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit scheduled property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law."
39. In "Adcon Electronics (P) Ltd. v. Daulat" (2001) 7 SCC 698 , the Hon'ble Supreme Court held that:
"16. In a suit for specific performance of contract for sale of immovable property containing a stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963.
17. It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 16 of 22 Saket Court, ND/20.11.2024 unless the possession of the immovable property is specifically prayed for."
40. Also, the Hon'ble Supreme Court in case titled " Kasturi v.
Iyyamperumal" (2005) 6 SCC 733 has succinctly laid down the principles to consider:
"7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are -- (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.
10. That apart, from a plain reading of Section 19 of the Act we are also of the view that this section is exhaustive on the question as to who are the parties against whom a contract for specific performance may be enforced.
15. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character."
41. Section 16(c) of the Act makes it mandatory for the plaintiff to prove that he has already performed or was always ready and willing to perform the essential terms of the contract which were to be performed by him. This cannot be done unless the plaintiff seeking performance CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 17 of 22 Saket Court, ND/20.11.2024 also makes necessary averments in the plaint showing and disclosing facts which disclose the readiness and willingness and or performance. It is settled law that evidence cannot be contrary to pleadings and therefore it would still be necessary to have sufficient pleadings which would enable the Court to infer the ingredients of the amended Section 16 i.e. proof of readiness and willingness or performance. The obligation cast by Section 16(c) of the Act upon the plaintiff to prove that he has already performed or was always ready and willing to perform essential terms of the contract which were to be performed by him have been emphasized by the Supreme Court in the judgment titled as "Mehboob-ur-Rehman v. Ahsanul Ghani" 2019 SCC OnLine SC 203 :
"14. Though, with the amendment of the Specific Relief Act, 1963 by Act 18 of 2018, the expression "who fails to aver and prove" is substituted by the expression "who fails to prove" and the expression "must aver" stands substituted by the expression "must prove" but then, the position on all the material aspects remains the same that, specific performance of a contract cannot be enforced in favor to the person who fails to prove that he has already 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 of which, the performance has been prevented or waived by the other party."
42. A plaintiff in order to succeed must prove facts which would show his readiness and willingness at all times. It is not enough to show the readiness until the time of the plaint but the conduct must be such as discloses readiness and willingness at all times from the time of the contract CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 18 of 22 Saket Court, ND/20.11.2024 till the suit and up to the decree. This court finds support for her views from following judgments:
43. In case "Gomathinayagam Pillai v. Palaniswami Nadar"
(1967) 1 SCR 227:
"6. But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the Judicial Committee of the Privy Council in "Ardeshir Mama v. Flora Sassoon" 1928 SCC OnLine PC 43: "In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit." The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit."
44. Also, in case titled"Vijay Kumar v. Om Parkash" 2018 SCC Online SC 1913, it is held that:
"7. In order to obtain a decree for specific performance, the plaintiff has to prove his readiness and willingness to perform his part of the contract and the readiness and willingness has to be shown through out and has to be established by the plaintiff."
45. In case titled"J.P.Builders v. A. Ramadas Rao" (2011) 1 SCC 429, it is held that:
"27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 19 of 22 Saket Court, ND/20.11.2024 the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
46. Now, coming to the facts of this matter, present suit has been filed seeking Specific Performance of the Collaboration Agreement dated 27.04.2011 and seeking directions to be given to the Defendants to execute a proper document of title in favour of the Plaintiff pertaining to the flat constructed by him on the terrace of the third floor and a decree of possession of the suit property.
47. On the contrary, Defendants have filed Written Statement, wherein, have taken the defence that the Plaintiff has not fulfilled his obligations in terms of the Collaboration Agreement dated 06.11.2009, 11.03.2010 and 27.04.2011. Since, the Plaintiff has not performed his part of obligations of completing the development/ construction, he cannot seek performance from the Defendants.
48. From the bare perusal of the court record, it is evident that the Plaintiff has not included his "readiness and willingness" anywhere as part of the pleadings or as part of the evidence submitted before the court. Interestingly, it is the settled position of law that such "readiness" and "willingness" of Plaintiff has to mandatorily be part of the CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 20 of 22 Saket Court, ND/20.11.2024 Cause of Action by the Plaintiff. Section 16(c) of the Specific Relief Act, 1963 is absolutely clear in terms of the reference of Cause of Action being inclusive of the said facts and circumstances. Plaintiff has failed to even bring an iota of submission or any substantive evidence in this context.
49. Further, in the considered opinion of this court, the Cause of Action itself is incomplete. The terms "readiness" and "willingness" in their meaning and implication are very different terms. Plaintiff was duty bound to plead and prove that he is ready to perform his part of the obligation under said contract and also willing to do so voluntarily. But, the Plaintiff has clearly failed to discharge the said burden.
50. There are multiple claims made by the Defendant that the Plaintiff has deliberately not valued the suit properly, which in the considered opinion of this court, looking at the evidence available as well as the jurisprudence on the issue, this court finds merits in. The relief claimed by Plaintiff has not been valued as per law. Thus, the prayer itself becomes infructuous.
ISSUE-WISE FINDINGS:
51. Issue no.5 & 6:
Coming to issues no.5 & 6, they are being taken up together as they are based on similar facts. In light of the afore-said discussion, issues no. 5 & 6 are decided against the Plaintiff and in favour of the Defendants for want of CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 21 of 22 Saket Court, ND/20.11.2024 cause of action itself. Therefore, issues no.5 & 6 stand dismissed.
52. Issue no.1, 2, 3 & 4:
Coming to issues no.1, 2, 3 & 4, they are being taken up together as they are based on similar facts. Again, in light of foregoing discussion, it is held that the Plaintiff has actually suppressed material facts from the court. It is also held that the Plaintiff himself could not perform the obligations under the Collaboration Agreement dated 27.04.2011. Moreover, the cause of action is incomplete and the valuation of the suit is also not proper. Hence, issues no.1, 2, 3 & 4 are decided in favour of the Defendants.
RELIEF:-
53. Consequently, suit of the Plaintiff is dismissed.
54. Parties to bear their own cost.
55. Decree sheet be prepared accordingly.
56. File be consigned to Record Room after due compliance.
Digitally signed by POORVAPOORVA MEHRA Date: MEHRA 2024.11.28 17:07:05 +0530 Pronounced in the open court (Poorva Mehra) today on 20.11.2024 Civil Judge-02, South-East, Saket Court, New Delhi It is certified that this judgment contains 22 pages and each page bears my signatures. Digitally signed by POORVA POORVA MEHRA Date:
MEHRA 2024.11.28 17:07:12 +0530 (Poorva Mehra) Civil Judge-02, South East, Saket Courts, New Delhi CS SCJ 50747/16 Poorva Mehra Anil Saini Vs. Shyam Sunder Malik & Anr. Civil Judge-02/SED Page no. 22 of 22 Saket Court, ND/20.11.2024