Delhi District Court
Sh. Pramod Gupta vs Smt. Minal Sanjeev Desai on 29 May, 2019
IN THE COURT OF SHRI NARESH KUMAR LAKA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST,
SAKET COURTS, NEW DELHI
CS No. 1738/17
In the matter of:
Sh. Pramod Gupta
S/o. Sh. Puran Mal Gupta
R/o. A-328, Defence Colony, New Delhi-24
....... Plaintiff
vs.
Smt. Minal Sanjeev Desai
W/o. Sh. Sanjeev Desai
R/o. 62, Sundar Nagar, New Delhi-03
........... Defendant
Date of Institution : 22.11.2017
Arguments concluded : 29.05.2019
Date of decision : 29.05.2019
Result : Decreed
SUIT FOR SPECIFIC PERFORMANCE
JUDGMENT
Suit in brief The present suit has been filed by the plaintiff seeking specific performance of an agreement to sell dated 05.01.2015 entered between the parties for sale of property bearing Unit No. 314, 3 rd floor at Elegance Tower, Jasola, New Delhi, ad-measuring 1739.28 sq. fts. (hereinafter referred to as 'suit property').
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2. The plaintiff averred that the defendant approached the plaintiff for selling the aforesaid property and on 05.01.2015 an agreement to sell was executed between the parties for total consideration of Rs. 1 crore. On the very same day, the plaintiff paid a sum of Rs.60,00,000 by way of cheque no. 010700 dated 03.01.2015 and Rs.15,00,000 in cash to the defendant and remaining amount of Rs.25,00,000 was agreed to be paid on or before 04.08.2015.
3. It is further claimed that despite repeated requests and reminders, the defendant did not execute a registered sale deed even after expiry of the stipulated period of 7 months and the plaintiff was ready and willing to perform his part of contract for making the payment of remaining amount. It is further claimed that the plaintiff made repeated efforts to persuade the defendant but she did not perform her part of contract. Therefore, on 13.05.2017, a legal notice was sent to the defendant but she did not comply the same. Consequently, present suit was filed.
Defence in brief
4. The defendant filed her written statement stating therein that the plaintiff has suppressed true and material facts and did not come to the court with clean hands. It is also averred that the time was an essence of the contract and the plaintiff has not performed his part of obligation. It is also alleged that the defendant has sold the property CS No.1738/17 Page no. 2 of 10 Pramod Gupta vs. Minal Sanjeev Desai in question to the plaintiff with the option to buy back and the said offer was subject to escalation of Rs.20,00,000. It is further alleged by defendant that the plaintiff has only paid a cheque of Rs.60,00,000 and he did not pay the alleged amount of Rs.15,00,000 and the balance amount of Rs.25,00,000 to the defendant. It is also alleged that the plaintiff wants to grab the property of the defendant with ulterior motives.
Replication, Issues & Trial
5. The plaintiff filed replication to the written statement of the defendant wherein the averments made in the plaint were reiterated/reaffirmed and the allegations of the defendant were controverted. From the pleadings of the parties, following issues emerged for determination of the court on 06.12.2018:
1. Whether the plaintiff is entitled for a decree of specific performance of the contract (agreement to sell dated 15.01.2015)? OPP
2. In the alternative, whether the plaintiff is entitled for refund of amount of Rs.75 lacs along with interest @ 24% as claimed? OPP
3. Whether the plaintiff is entitled for a decree of permanent injunction as prayed? OPP
6. In order to prove his case, plaintiff examined himself as PW-1, Sh. Puran Mal Gupta as PW-2, Sh. Vinay Kumar Singh as PW-3 and Sh. Satish Kumar as PW-4. Despite giving ample opportunities, the defendant has not led any evidence. In this case, a Local CS No.1738/17 Page no. 3 of 10 Pramod Gupta vs. Minal Sanjeev Desai Commissioner was appointed for recording of evidence and in his report, he also mentioned that despite giving various opportunities, the defendant did not lead any evidence and consequently her evidence was closed.
7. I have heard arguments addressed by Sh. J.K. Sharma, Ld. Counsel for plaintiff. However, the counsel for the defendant did not appear for arguments. This court also observes that no one had appeared on behalf of the defendant on the last date of hearing also and even no defence evidence was led before the Ld. LC despite giving ample opportunities. It is not the duty of the court to run after the defendant when she or her counsel are adopting very casual approach towards court proceedings. Therefore, this case was heard in the absence of counsel for defendant. Record perused.
REASONS FOR DECISION Issue no. 1. Whether the plaintiff is entitled for a decree of specific performance of the contract (agreement to sell dated 15.01.2015)? OPP
8. From the pleadings on record, it is evident that the agreement to sell dated 05.01.2015 has not been disputed. The said agreement specifically finds mentioned the usual terms and conditions. The defendant admitted receiving of Rs.60 lacs but she denied receiving of Rs.15 lacs in cash. The said agreement specifically finds mentioned receiving of Rs.75,00,000 at para no. 2 at page no. 2. When the defendant did not dispute the execution of the said agreement to CS No.1738/17 Page no. 4 of 10 Pramod Gupta vs. Minal Sanjeev Desai sell, she cannot take a contrary plea to the contents of the said agreement which is not admissible as per Section 91 and 92 of the Indian Evidence Act. Moreover, no evidence has been led by the defendant. Therefore, the said plea is rejected.
9. A time period of 7 months was fixed in the said agreement for payment of remaining consideration amount of Rs.25,00,000 by the plaintiff and execution of sale deed by the defendant but it is the case of the plaintiff that the defendant did not perform her part of contract.
10. The plaintiff proved on record the statements of account of his bank account as well as the bank of his father through PW-3 and PW-4, which clearly find mentioned the availability of sufficient amount more than Rs.25 lacs i.e. the remaining consideration amount at the relevant time of the date of completion of the said agreement. In this regard, the counsel for plaintiff also relied on the case of 'BDR Builders and Developers P. Ltd. Vs. Shyam Lal Arora 2014 (213) DLT 78' Hon'ble High Court of Delhi wherein it was observed by Hon'ble Justice Mr. Jayant Nath as under:
"Specific performance of agreement to sell- Availability of adequate funds with purchase, requirement to show- Held, plaintiff was not required to have the funds actually in his account but has to demonstrate the ability to gather the funds and tender the payment- Further, documents filed on record clearly shows that plaintiffs were possessed of sufficient funds to make necessary payment to the defendant."
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11. In the written statement, Counsel for the defendant claimed that the time was an essence of the contract but since the de- fendant did not place on record any evidence, the said plea remains unproved. Moreover, there are various judgments of the Hon'ble Apex Courts as well as various High Courts to the effect that in an agreement to sell with regard to the immovable property, time is not an essence of contract (unless specifically mentioned in the said contract but no such condition has been stipulated in the agreement in question). In this re- gard, reliance can be placed on the case of E.S. Rajan vs R. Mohan, ILR 1995 KAR 492 decided by Hon'ble Justice, T. S. Thakur and S. Hakeem, Karnataka High Court as under:
"Section 55 of the Contract Act to the extent the same deals with the effect of failure to perform at the time fixed, contracts in which time is the essence, reads thus:
"Section 55:
When a party to a contract promises to do a certain thing at or before a specific time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract."
14. A plain reading of the provision, makes it amply clear that the mere fixation of a time period for the performance of a contract or the doing of a certain thing, does not by itself make time the essence of the contract. What is important is that the parties intended to make time the essence of the contract. It is only if they so intended that the non-performance of the contract, makes the same CS No.1738/17 Page no. 6 of 10 Pramod Gupta vs. Minal Sanjeev Desai voidable at the option of the promisee; and not otherwise. The intention to make time the essence of the contract has therefore to be absolutely clear and unmistakable. In other words, the language employed in the contract should be capable of leading to the only conclusion; namely, that time for the performance fixed by the parties, was not a matter of secondary importance in the bargain, and that to disregard the same would be to disregard nothing that lay at its foundation.
In GOMATHINAYAGAM PILLAI AND ORS. v.
PALANISWAMY NADAR, Their Lordships of the Supreme Court, while dealing with the import of the term "time as the essence of the contract" summed up the true legal position thus:
"It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable; it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence."
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15. To the same effect is the view expressed by the Apex Court in GOVIND PRASAD CHATURVEDI v. HARI DUTT SHASTRI AND ORS, where their Lordships, observed as under;
"It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immoveable property it will normally be presumed that the time is not the essence of the contract."
12. Accordingly, in view of aforesaid position of law and evidence produced on record, the aforesaid contention is also rejected being merit-less.
13. Before filing the present suit, the plaintiff has also sent a legal notice dated 13.05.2017 asking the defendant to perform her part of contract. A reply dated 25.05.2017 was sent by the defendant herself stating therein that his Advocate is not available and he will send a reply but thereafter, no reply was sent. From the said facts, it is clear that no specific protest was raised by the defendant disputing the claim of the plaintiff. Nothing contrary evidence came on record to disbelieve the testimony of all the PWs. This court does not find other impediment for grant of the relief as prayed in this case.
14. Accordingly, this court hold that the plaintiff is entitled for the relief of specific performance of the contract in question. This issue CS No.1738/17 Page no. 8 of 10 Pramod Gupta vs. Minal Sanjeev Desai is decided accordingly in favour of the plaintiff and against the defendant.
Issue no. 2. In the alternative, whether the plaintiff is entitled for refund of amount of Rs.75 lacs along with interest @ 24% as claimed? OPP
15. In view of my positive findings in the issue no. 1 granting the relief of specific performance of agreement in question, this issue need no discussion.
Issue no. 3. Whether the plaintiff is entitled for a decree of permanent injunction as prayed? OPP
16. In view of my positive findings in favour of the plaintiff in the issue no. 1, this issue is also decided in favour of the plaintiff and against the defendant.
RELIEF/CONCLUSION
17. In view of the aforesaid facts, the suit of the plaintiff is decreed for the following reliefs:
(1) A decree of specific performance of the agreement to sell dated 15.01.2015 is passed in favour of plaintiff and against the defendant. The defendant is directed to present herself for registration of the sale deed of the suit property before the Sub-Registrar as and when intimated by the plaintiff within 30 days or ;
(2) In the alternative if the defendant does not present herself or not interested to appear before the Sub-Registrar CS No.1738/17 Page no. 9 of 10 Pramod Gupta vs. Minal Sanjeev Desai for registration of the sale deed, the specific performance of the agreement to sell can be done through Ahlmad (Sh.
Mahesh Kumar) on behalf of the defendant for completing the formalities before the concerned Sub-Registrar and for that purpose the plaintiff will pay a cost of Rs. 4,000 to him.
(3) The concerned Sub-Registrar will be within his power to accept the stamp duty already paid, if any, by the plaintiff or to charge new stamp duty as per law.
(4) The plaintiff is also directed to pay the remaining sale consideration i.e. Rs.25,00,000 to the defendant at the time of registration of sale deed or send her by way of demand draft.
(5) A decree is also passed for permanent injunction restraining the defendant and her agents to sell, transfer and execute any document with regard to suit property in favour of anyone else.
(6) The defendant is also directed to hand over the peaceful vacant possession of the suit property to the plaintiff immediately after registration of the sale deed.
18. Cost of suit is also awarded to plaintiff as per rules. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Announced & dictated in the Open Court on 29.05.2019 (Naresh Kumar Laka) Additional District Judge-03 South East District, Saket Courts, New Delhi.
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