Delhi District Court
Sh. Ramesh Kumar Dhingra vs Sh. Amrit Singh on 11 March, 2010
IN THE COURT OF SH. DHEERAJ MOR: CIVIL JUDGE: DELHI
Suit No. 01/03.
Sh. Ramesh Kumar Dhingra,
s/o Sh. Hakam Rai,
r/o D-49, Vikas Puri,
New Delhi-100 018. ...... Plaintiff
Versus
1. Sh. Amrit Singh,
s/o Shri Jaswant Singh,
r/o R-7/2, Ramesh Park,
Laxmi Nagar, Delhi-110 092.
2. Shri Banwari Lal,
s/o Shri Prithi,
r/o Village Nawada,
Delhi.
3. Shri Mir Singh,
s/o Sh. Daleep Singh,
r/o Village Nawada, Delhi. ....... Defendants
SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT
DATED 28.02.1996 AND REFUND OF THE AMOUNT OF
CONSIDERATION, WITH COMPENSATION.
1
Date of institution:25.08.2003.
Date of decision: 11.03.2010.
JUDGMENT
Plaintiff has filed the present suit against the defendants for specific performance of contract dated 28.02.1996 and refund of the amount of consideration with compensation.
2. Abstract of the allegations as contained in the plaint of the plaintiff is that the plaintiff purchased plot no. A-40, land measuring 150 sq. yds out of Khasra No. 935, situated at Village Nawada, in the abadi of Ram Nagar, Delhi as per the annexed site plan, (hereinafter referred to as 'the suit property') from the defendant no.1 on 28.02.1996 for a consideration of Rs. 1,00,000/- through agreement for sale, receipt, General Power of Attorney, SPA, Will and affidavit dated 28.02.1996. It is further alleged that General Power of Attorney, Special Power of Attorney and Will were registered in the Office of Sub-Registrar No.I, Delhi and that entire sale consideration was paid to the defendant no.1 on the said date who in turn delivered vacant physical possession of the said plot to the plaintiff. It is further averred by the plaintiff that the said plot remained in his possession till the first week of January, 2002 when defendants no. 2 and 3 took forcible possession of the same and also raised boundary wall over the said plot. It is averred that on the representation of defendant no.1 that he was lawful owner in possession of the said plot, plaintiff purchased the said plot from him by paying him the sale consideration and he in turn executed the 2 ownership documents pertaining to the said plot in favour of the plaintiff and also handed over the possession to him.
3. It is affirmed that with a view to have illegal gain, defendants colluded with each other and they came to take possession of the said plot on 30.06.2000 but they did not succeed in doing so and left the spot after extending threats to the plaintiff. It is asserted that on 03.07.200, plaintiff filed a suit for injunction. Defendants 2 and 3 after having knowledge of the said suit, constructed a boundary wall over the said plot some time in the first week of January, 2002 and took its possession on the ground that the said plot belonged to them and thereafter, the said suit was withdrawn by the plaintiff on 11.01.2002.
4. It is further asserted that plaintiff approached and requested the defendant no.1 time and again to perform his part of contract dated 28.02.1996 and execute sale deed of the said plot in his favour after completion of the requisite formalities but he paid no heed to it. It is pleaded that since defendant no.1 failed to perform his part of the contract and complete the sale transaction in favour of the plaintiff, execute and register the sale deed of the plot in his favour, as agreed inspite of requests and repeated visits and also refused to refund the amount of consideration received by him with compensation, the plaintiff was forced to file the present suit.
5. It is further pleaded that defendants no.2 and 3 have been impleaded as parties for determination of all questions involved in the 3 present suit as they constructed boundary wall over the suit property on the ground that the same belonged to them. It is also pleaded that no date for performance of the contract was fixed in the present case and present suit is filed within 3 years from the notice of refusal to perform the part of contract on behalf of defendant no.1. It is prayed that a decree of specific performance of contract dated 28.02.1996 be passed against the defendant no.1 to execute and register sale deed of the suit property in favour of the plaintiff together with physical delivery of the suit property or in the alternative, grant compensation and damages of Rs. 1 lac to the plaintiff in terms of the contract for breach of the same, with refund of the amount of consideration of Rs. 1 lac paid to the defendant no.1 together with interest thereon at market rate (i.e. Rs. 2 lac).
6. The notice of the suit was served upon defendants. Defendant no.1 was proceeded against ex-parte vide order dated 21.08.2006 as no one had appeared on his behalf despite being duly served. The suit against defendant no.3 was abated vide order dated 21.12.2005 as defendant no.3 was dead at the time of filing of suit and moreover no steps were taken by the plaintiff to implead LRs of defendant no.3. Defendant no.2 contested the present suit by filing written statement. Defendant no.2 in the preliminary objection has pleaded that the present suit is not maintainable because of the malafide move of the plaintiff to black mail the defendant no.2 and to dole out money illegally from the successor owners of the suit property or to grab the property in question. The defendant no.2 further contended that the present suit is bad for mis-joinder and non-joinder of the parties, and that the plaintiff has no locus standi to file the present suit 4 against the defendant no.2 as there is no privity of contract between him and the plaintiff. The defendant no.2 has no connection or concern with the suit property or the sale transaction allegedly arrived on 28.02.1996 between the defendant no.1 and the plaintiff. On merits, defendant no.2 has pleaded that in the year 1975 he sold the suit property and as such there was no question of having any transaction between the plaintiff and defendant no.1 at that point of time. Defendant no.2 has averred that the alleged documents agreement to sell, General Power of Attorney, receipt, Will and affidavit dated 28.02.1996 are fake, bogus, manipulated and forged and he has no connection with any of them. He has further averred that defendant no.3 Shri Mir Singh expired in April, 2001 after long illness and as such there was no question of taking forcible possession of the plot in question in January, 2002 by the defendants. It is pleaded by defendant no.2 that in the year 1975 he sold the plot in question and thereafter he had no connection with the said plot or purchasers. He has refuted all other allegations of the plaintiff including the incident of 30th June, 2000. It is prayed by him that the suit of the plaintiff be dismissed with heavy costs in favour of the defendant no.2 and against the plaintiff.
7. On the pleadings of the parties, following issues were framed by my learned predecessor vide order dated: 24.05.2007:
(i) Whether the suit is bad for mis-joinder and non-joinder of parties? OPD.
(ii) Whether the suit is not maintainable in its present form?
OPD.
5(iii) Whether the plaintiff is entitled to seek specific performance of the contract dated 28.02.1996, as prayed for? OPP.
(iv) Whether the plaintiff is entitled for the alternative relief as prayed for as per prayer clause B? If so, from whom?
OPP.
(v) Relief. 8. Thereafter, the suit proceeded for plaintiff's evidence. To
substantiate the allegations of the plaint, plaintiff himself stepped in the witness box and tendered in evidence his affidavit Ex. P-1 and also proved the other relevant documents. In his affidavit, PW1 has reaffirmed and reiterated the allegations of plaint and for the sake of brevity the same are not being reproduced here once again. The plaintiff has produced on record the documents Ex. PW1/1 to Ex. PW1/14 to prove the chain of documents in respect of suit property from defendant no.2 to defendant no.1. Ex. PW1/15 to Ex. PW1/20 are the documents executed by the defendant no.1 in favour of the plaintiff in respect of the suit property which includes GPA (Ex.PW1/15), SPA (Ex.PW1/16), Agreement for Sale dated 28.02.1996 (Ex. PW1/17), receipt of Rs. 1 lac dated 28.2.1996 (Ex.PW1/18), Will dated 28.02.1996 (Ex.PW1/19), Affidavit dated 28.02.1996 (Ex.PW1/20). The PW1 has identified the signature of defendant no.1 on documents Ex. PW1/15 to Ex. PW1/20 and therefore duly proved the said documents. Mark P-1 is the copy of front page of the ration card of defendant no.1. Thereafter, the plaintiff's evidence was closed on 24.03.2008 on the basis of statement of the counsel for the plaintiff. Thereafter, the case proceeded to defendant's evidence.
69. Defendant no.2 examined himself as DW1. In his affidavit Ex. DW1/1 tendered in Court he reiterated and reaffirmed the facts of his written statement. The same are not being reproduced here once again in order to avoid repetition. Defendant's evidence on 25.08.2009 on the basis of statement given by the counsel for the defendant. Thereafter, matter was listed for final arguments.
10. I have heard the arguments of both the parties and have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and have minutely gone through the case file.
My issue wise findings are as under:
11. ISSUE NO.1 Onus of proving the present issue lies on the defendant. DW1 in his deposition has testified that he is not the owner of the suit property and moreover he had sold the suit property to one Shri Mir Singh in the year 1975 and since thereafter he has no interest in the suit property. The plaintiff has placed on record, sale deed between defendant no.2 and the on Shri Man Singh Punia whereby the defendant no.2 sold the suit property to Sh. Man Singh Punia in the year 1975 and the same is Ex. PW1/1. Plaintiff has claimed that defendant no.1 has derived rights in the suit property on the basis of an agreement to sell Ex. PW1/11 executed by one Smt. Prakashwanti, who herself had acquired rights on the basis of an agreement to sell Ex. PW1/7 executed by one Shri Ram Kishan in her 7 favour. The plaintiff has further argued that said Sh. Ram Kishan had derived rights in the suit property on the basis of agreement to sell Ex. PW1/3 executed by Shri Man Singh Punia in favour of Sh. Ram Kishan. Plaintiff has claimed that he has exhibited/proved the complete chain of documents from defendant no.2 to defendant no. 1. However, Ex. PW1/3, Ex. PW1/7 and Ex. PW1/11 are only agreements to sell and vide the said documents ownership is not transferred to the subsequent promisees. Therefore, as on today in the light of the documents produced by the plaintiff, Shri Man Singh Punia is the owner of the suit property.
12. In the present case, the plaintiff has filed the suit against defendant no.1 for seeking specific performance of the agreement Ex. PW1/17. The said agreement was executed by defendant no.1 in favour of the plaintiff. In the testimony of PW1, the plaintiff has successfully proved the execution of the said document dtd. 28.2.1996. However, the defendant no.1 has no capacity to transfer the ownership in the suit property because he himself is not the owner of the suit property. It is a settled principle of law that no one can transfer the rights which he himself does not possess. The said proposition of law is based on the legal maxim nemo debit quod non habet . The plaintiff cannot get relief of specific performance of the agreement dated 28.02.1996 Ex. PW1/7 from defendants as none of the defendants is the owner of the suit property and hence lacks capacity to pass on the title. The plaintiff has failed to implead the owner of the suit property as one of the defendants. The said owner i.e. Shri Man Singh Punia is a necessary party and therefore non-impleading of necessary party is itself a ground for dismissal of the suit. A necessary party is one 8 whose presence is indispensable to the constitution of the suit, against whom the relief is sought and without whom no effective order can be passed.
13. Therefore, in the light of above discussion, it is evident that decree for specific performance of agreement to sell (Ex. PW1/17)cannot be passed in absence of the owner of the suit property. Hence it can be cogently concluded that the present suit is bad for non-joinder of necessary party. Hence, the present issue is decided in favour of the defendants and against the plaintiff.
14. ISSUE NO.2.
The onus of proving the present issue lies with the defendant. The defendant has failed to lead any evidence to prove the present issue. However, the agreement to sell Ex. PW1/17 cannot be specifically enforced against the defendants herein as the said agreement was executed by the defendant no.1, who himself is not the owner of the suit property. The plaintiff at the most could have filed a suit for recovery of the amount given in consideration of the agreement Ex. PW1/17 by the plaintiff to the defendant no.1 or for the compensation against the defendant no.1. The documents produced on record by plaintiff himself, demonstrates that defendant no.1 is not the owner of the suit property and hence the plaintiff has failed to establish that defendants are the owners of the suit property. Therefore, the plaintiff cannot claim specific performance of the said agreement from the defendants. Hence, the present suit is mis-conceived 9 and mis-placed and should not have been filed in the present form. Therefore, the present issue is also decided in favour of the defendants and against the plaintiff.
15. ISSUE NO.3 The onus of proving the present issue lies with the plaintiff. The relief of specific performance is an equitable relief which can be granted only in the cases when the provisions of Specific Relief Act, 1963 governing specific performance of contract, are satisfied. Further, in exercising the discretion of grant of this equitable relief the Court will take into account the circumstances of the case, the conduct of the parties and their respective interests under the contract. The discretion is thus not arbitrary but is controlled by certain rules of certainty, fairness and justice between the parties. In the instant case the plaintiff has claimed specific performance on the basis of agreement to sell dated 28.2.1996 Ex. PW1/17 executed by the defendant no.1 in his favour. PW1 in his deposition has testified that the said agreement was executed in his presence by the defendant no.1. The PW1 has also identified the signatures of defendant no.1 on the said Ex. PW1/17. Therefore, the document Ex. PW1/17 is duly and convincingly proved.
16. However, plaintiff has failed to establish that defendant no.1 is the owner of the suit property, rather it has been cogently and convincingly established that the actual owner of the suit property is Sh. Man Singh Punia, who has not been impleaded as party. Therefore, defendant no.1 10 does not have capacity to transfer the title of the suit property and hence he cannot specifically perform the agreement Ex. PW1/17.
17. Further, the present suit was filed on 25th August, 2003. The counsel for the plaintiff has argued that defendant no.1 refused to perform the said agreement Ex. PW1/17 in January, 2003 and therefore in view of Articles 54 and 55 of the Limitation Act, the present suit is filed within limitation period. The said Articles 54 and 55 of the Limitation Act provides that limitation period starts running from the date fixed for the performance of the contract, or if no such date is fixed, when the plaintiff has notice that the performance is refused. The plaintiff has claimed that he has received the notice of refusal of the performance of the contract in January, 2003 and therefore, the limitation period started running from the said time and hence the suit is within limitation. In the agreement Ex. PW1/17, admittedly there is no date fixed for the performance of the contract. The plaintiff/PW1 has deposed that the possession of the suit property was delivered to him by the defendant no.1 on 28.02.1996. Further, PW1 in his examination-in-chief has testified that defendants colluded with each other and went to the spot/suit property on 30.06.2000 and made attempts to take forcible possession of the suit property. Therefore, on the said date i.e. 30.06.2000, the plaintiff had acquired sufficient knowledge that the defendant no.1 is not inclined to specifically perform the agreement Ex. PW1/17. The attempt of defendants to dis-possess plaintiff from the suit property on 30.06.2000 manifests that the defendants do not have intention to honour the agreement Ex. PW1/17. In these circumstances, a reasonable man is presumed to have acquired sufficient notice of intention 11 of the defendants not to perform the agreement on the said date. Therefore, the aforesaid contentions of the plaintiff are not sustainable. Hence, it can be convincingly deduced that the plaintiff had received the notice of refusal of the performance of the agreement Ex. PW1/17 on 30.06.2000. Hence, taking the advantage of Article 54 and 55 of Limitation Act, 1963, the plaintiff must have filed the present suit on or before 30.06.2003. However, the present suit is filed on 25th August, 2003. Therefore, the present suit is barred under Section 3 of Limitation Act, 1963. Hence, in view of the said Section, the present suit is liable to be dismissed.
In view of the above discussions, the plaintiff is not entitled to claim relief of specific performance of agreement Ex. PW1/17. Therefore, the present issue is decided in favour of the defendants and against the plaintiff.
18. ISSUE NO.4 The onus of proving the present issue lies on the plaintiff. The plaintiff has claimed recovery of consideration amount paid to the defendant no.1 at the time of execution of agreement to sell Ex. PW1/17 dated 28.02.1996. The plaintiff has identified the signatures of defendant no.1 on receipt dated 28.02.1996, therefore, he has duly proved receipt of Rs. 1 lac executed by the defendant no.1 as Ex. PW1/18. In view of the findings given above in issue no.3, it is can be safely concluded that plaintiff had notice of refusal of non-performance of agreement Ex. Pw1/17 12 on 30.06.2000 and despite that the plaintiff kept on sleeping on his rights of recovery of the consideration amount given at the time of agreement. Article 55 of Limitation Act, 1963 provides limitation period for the recovery of earnest money/compensation as three years from the date of execution of the agreement to sell or from the date of receipt of the notice of the refusal for the performance of the said agreement. Therefore, the claim of the plaintiff for recovery of the amount paid vide receipt Ex. PW1/18 in respect of the suit property is time barred. Hence, in view of Section 3 of Limitation Act, 1963 the present suit is liable to be dismissed.
In view of the above discussions, this issue is also decided against the plaintiff and in favour of the defendant.
19. RELIEF In view of my findings given on the issues above, the suit of the plaintiff is dismissed being devoid of any merits. Parties are left to bear their own costs. File be consigned to record room.
Announced in open Court on 11.03.2010. (Dheeraj Mor) Civil Judge, Delhi.
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