Delhi District Court
B.S. Infrastructure Private Limited vs Sanjeev Kr. Malhotra Page 1/23 on 12 April, 2022
DLSE010103172016
Presented on : 27-05-1999
Registered on : 24-12-2016
Decided on : 12-04-2022
Duration : 22 years, 10 months, 16 days
Date of original Institution : 27.05.1999
Date reserved for judgment : 30.03.2022
Date of announcement of judgment : 12.04.2022
Decision : Decreed
IN THE COURT OF SHRI MUNISH MARKAN
ADDITIONAL DISTRICT JUDGE (ADJ02) SOUTH EAST,
DISTRICT COURTS, SAKET, NEW DELHI
CS DJ 12009/16
B.S. INFRASTRUCTURE PRIVATE LIMITED
A Company registered under the
Companies Act, 1956
Having its registered office
At 607, Rohit House,
3, Tolstoy Marg,
New Delhi110001. ....... Plaintiff
CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 1/23
Versus
SHRI SANJEEV KUMAR MALHOTRA
S/o Sh. Mulkraj Malhotra
R/o 21/24, West Patel Nagar,
New Delhi. ..... Defendant
JUDGMENT:
1. At last, there is light at the end of the tunnel, for the parties were groping in dark for about 23 years in search of justice. The agreement to sell dated 24.12.97 waiting with bated breath, not sure whether it shall be replicated in the form of a sale deed to be stacked in public records for eons or its words shall be reduced to nothingness lost into eternity, the way thoughts in the mind disappear when the light of consciousness falls on them. This is a suit for specific performance of agreement to sell dated 24.12.1997 Ex PW1/3 filed by the plaintiff in respect of the property land measuring 2175 sq. yards in Khasra No. 266, Tuglakabad, near EDPF Colony, New Delhi, now known as Govindpuri, Kalkaji, New Delhi (hereinafter called the 'suit property') filed against the defendant with a further prayer of mandatory injunction, with a further prayer to direct the defendant to obtain all requisite permissions from the appropriate authority in terms of the agreement and restraining the defendant or anybody on his behalf from creating any third party interest in the suit property, with a CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 2/23 further prayer to direct the defendant to execute and register the deed of conveyance. In the alternative, the plaintiff had prayed for a decree of Rs.4.5 lakhs for damages including refund of Rs.7 lakhs paid as part payment on 24.12.1997 towards the sale consideration, alongwith pendente lite and future interest @ 24% per annum alongwith cost of the suit.
2. The case of the plaintiff company is that the suit has been filed through its Principal Officer/Director Shri Gopal Nigam who is duly authorized by the company vide resolution dated 11.05.99 passed by its Board of Directors. The defendant represented that he is the exclusive owner of the suit property by virtue of the will dated 25.06.1993 left by late Shri Dinanath, his predecessor in interest, and the suit land is free from all encumbrances, liens, acquisitions written or verbal, from any authority and has been given on licence to M/s. Chandralok Cinema as per the terms and conditions recorded in deed dated 10.02.1983 with the partner of M/s. Chandralok Cinema. The plaintiff agreed to purchase the suit land for a total consideration of Rs.48,00,000/ and executed an agreement to sell dated 24.12.1997 with the defendant and Rs.7,00,000/ was paid by the plaintiff to the defendant vide cheque dated 24.12.1997 as part payment/earnest money leaving balance of Rs.41 Lakhs to be paid by the plaintiff to the defendant in accordance with the agreement to sell dated 24.12.1997.
3. Plaintiff further stated that the defendant had agreed to CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 3/23 'forthwith' apply for sale permission from obtaining competent authority without any delay at his own cost and expenses and agreed to obtain income tax clearance certificate from Income Tax Department and complete all the formalities for the execution and registration of the sale deed before the SubRegistrar in favour of the plaintiff when the balance consideration of Rs.41,00,000/ was agreed to be paid by the plaintiff to the defendant.
4. Plaintiff further stated that plaintiff has always been ready and willing to comply with its part of the obligations and alway ready and willing to perform its obligations. The defendant failed and neglected to take the necessary steps and apply for the necessary permission from the proper authorities despite repeated requests made by the plaintiff and thereby has exhibited his unwillingness to perform his part of the obligations despite repeated requests made by the plaintiff. The defendant is attempting to negotiate the suit property afresh with third persons for a higher consideration and is attempting to resile from the agreement to sell dated 24.12.1997 executed with the plaintiff. Therefore, the plaintiff sent a letter dated 10.04.1999 through its Advocate to the defendant calling upon the defendant to perform his obligations but the defendant has failed to discharge his part of obligations.
5. Plaintiff further stated that the defendant is in breach of contract and therefore in case the relief of specific performance cannot be granted to CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 4/23 the plaintiff, the plaintiff prayed for a decree of damages for a sum of Rs.4.5 lakhs including refund of Rs.7 lakhs paid as part payment on 24.12.1997 towards the sale consideration alongwith interest thereon @ 24% per annum alongwith cost of the suit. Therefore, the plaintiff has filed the present suit on 27.05.1999 on the ground of equity as well in law. WRITTEN STATEMENT
6. In defence, defendant admitted the execution of the agreement to sell dated 24.12.1997 for a sum of Rs.48 lakhs in respect of the suit property and also admitted having received a sum of Rs.7 lakhs in response thereto vide cheque dated 24.12.1999 as part payment, leaving the balance consideration of Rs.41 lakhs. Further defendant stated that the suit property was acquired by DDA and award No.18/8788 was also made in respect of the suit property. Therefore, the agreement to sell is not enforceable in view of Section 17 of The Specific Relief Act. Further, the plaintiff was never ready and willing to perform its part under the agreement. The defendant had obtained the Income Tax Clearance Certificate but the plaintiff didn't pay the balance sale consideration. The defendant prayed for rejection of the suit.
REPLICATION:
7. Plaintiff filed the replication wherein it reiterated the facts stated in the plaint and controverted the stand taken by the defendant in the written statement. Further, the defendant had purposefully lodged a wrong CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 5/23 application u/s 8 instead of section 5 of The Delhi Lands (Restrictions on transfer) Act 1972for seeking permission before the Divisional Commissioner Delhi during the pendency of the suit. Plaintiff deposited the balance sale consideration in the court on its own during the pendency of the suit. Despite requests, the defendant failed to execute special power of attorney in favour of plaintiff to pursue the sale permission. Further, notification u/s 4 of The Land Acquisition Act was issued on 05.11.1980 and Notification u/s 6 was dated 06.06.1985 and award u/s 11 of the Act was passed but the possession of the suit land has not been taken over till date. The land was found to be not required for development purposes as per the order of Lt. Governer dated 24.11.86 and therefore defendant retained the ownership rights in the suit land. The Lt.. Governer vide order dated 24.11.86 inter alia observed that Officer in Charge, Land Acquisition wing, vide letter dated 1.1.81 had specifically stated that suit land was exempted on the ground of the cinema having come up on or before 05.11.80.
8. During admission denial of documents, defendant admitted agreement to sell dated 24.12.97 as Ex P-1 (Ex PW-1/3) and the letter dated 10.04.99 sent by plaintiff through his Advocate as Ex P-2(Ex PW-1/4)
9. From the pleadings of the parties, following issues were framed on 31.07.07:
ISSUES:CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 6/23
1. Whether the plaintiff was ready and willing to perform its part of the Agreement dated 24.12.1997? OPP
2. Whether the defendant has fulfilled his contractual obligations as contained in the Agreement dated 24.12.1997? OPD
3. Whether the defendant is not in breach of the terms of Agreement dated 24.12.1997, and if so, to what effect?
OPD
4. Whether the suit is liable to be rejected as alleged in Para 2 of Preliminary Submissions of the Written Statement OPD
5. Whether the plaintiff is entitled to a decree for specific performance of the Agreement dated 24.12.1997 in respect of suit property? If so, on what terms? OPP
6. Whether the plaintiff is entitled to a decree for damages, in the event a decree for specific performance is not granted? OPP
7. Relief.
10. During the plaintiff evidence plaintiff examined only one witness PW1 Sh. Bharat Bhushan Sharma who tendered his affidavit Ex PW1/A and and relied upon the following documents:
Ex.PW1/1 is resolution of Board of Directors dated 11.05.1999. Ex.PW1/2 is resolution of Board of Directors dated 11.01.2005.
Ex. PW1/3 is Agreement to Sell dated 24.12.1997. CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 7/23 Ex. PW1/4 is notice dated 10.04.1999. Ex. PW1/5 is Form 34A Income Tax. Ex. PW1/6 is Notification dated 05.11.1980 u/s 4 of Land Acquisition Act. Ex. PW1/7 is Notification dated 06.06.1985 u/s 6 of Land Acquisition Act. Ex. PW1/8 is Award No.18/8788. Ex. PW1/9 Certified copy of order dated 24.11.1986 passed by
Lt. Governor of Delhi in appeal under Section 30 of DD Act. Ex. PW1/ 10 is Letter dated 01.01.1981 from o/o Deputy Commissioner, iOfficer In charge, (Land Acquisition Unit, Delhi) to Chandralok Cinema.
Ex. PW1/11 is Memorandum from Delhi Administration Land & Building Department 05.10.1972. Plaintiff tried to summon the witness from the Land & Acquisition Collector but no record was produced by the Land & Acquisition Department and Shri Satish Chander Kanungo from the Office of Land & Acquisition Branch, South Office, M.B. Road, Saket stated on 16.12.2009 that the summoned documents could not be traced in their office.
11. During defendant evidence, defendant examined himself as DW1 and tendered his affidavit as Ex.DW1/A.
12. I have heard Ld. Counsels for both the parties and have gone CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 8/23 through record carefully.
13. Issue wise findings of the court are as under:
ISSUE No.4 Whether the suit is liable to be rejected as alleged in Para 2 of Preliminary Submissions of the Written Statement OPD
14. In para 2 of the preliminary submissions in the written statement, the defendant has stated that there is no consideration of the plaintiff with the defendant and hence there is no legally subsisting agreement between the parties on the date of filing of the written statement. To appreciate this, it is important to refer to the various order sheets before the time of filing the written statement. The basis of the suit is agreement to sell dated 24.12.1997 Ex.PW1/3 as per which, the defendant agreed to sell the suit property for a total consideration of Rs.48 Lakhs and at the time of execution of the agreement to sell Ex.PW1/3, the plaintiff had already paid a sum of Rs.7 Lakh to the defendant/ seller which receipt was acknowledged in the para 1 of the agreement to sell Ex.PW1/3 (Ex.P1). On 20.11.2000 during the pendency of the case, the defendant had taken the stand by moving an application that he had applied for permission from the competent authority but the Patwari, Land Acquisition had stated on 08.05.2000 that No Objection Certificate in respect of the suit land cannot be granted as the land has already been acquired vide Award No.18/8788. On such submissions, the court had directed the defendant to deposit the CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 9/23 sum of Rs.7 Lakh which had been already received by the defendant, deposit either in the court or return it back directly to the plaintiff. In pursuance thereto, the defendant had deposited the said sum of Rs.7 Lakh in the court. The written statement was filed by the defendant later on 06.09.2005.
15. It is under this background that the defendant appeared to have made the plea that the defendant does not have any consideration from the plaintiff as on the date of filing of the written statement and therefore, there is no subsisting contract between the parties.
16. In my considered opinion, this plea of the defendant is totally fallacious and untenable in law. The plaintiff has filed the suit for specific performance of agreement to sell dated 24.12.1997 Ex.PW1/3 on the ground that despite executing agreement to sell Ex.PW1/3 and receiving the part consideration amount of Rs.7 Lakh as agreed, the defendant had failed to perform his part of the obligations under the contract as the defendant failed to 'forthwith' apply for the permission from the competent authority and obtain the income tax clearance and failed to comply with the other terms of the agreement to sell Ex.PW1/3 though the plaintiff has always been ready and willing to perform its part of the contract.
17. Merely because the the defendant had deposited the part payment of Rs.7 Lakh received by him from the plaintiff back in the court, on the directions of the court, does not lead to any inference regarding the CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 10/23 frustration of the subsisting agreement, between the parties. The directions given by the court from time to time during the pendency of the suit cannot be construed in a manner totally out of context. There was no expression of any opinion or any direction by the court during the pendency of the suit particularly on 20.11.2000 from which it could be inferred that now there was no subsisting agreement between the parties. Therefore, this issue is decided against the defendant and in favour of the plaintiff. ISSUE No.1 Whether the plaintiff was ready and willing to perform its part of the Agreement dated 24.12.1997? OPP
18. Ld. Counsel for defendant at the outset had argued that the agreement to sell Ex.PW1/3 was executed by Sh.Gopal Nigam in his personal capacity and there was no agreement with the plaintiff company and the agreement does not bear any seal of the company and even Sh.Gopal Nigam who filed the suit did not enter the witness box and even his acts were not ratified by the plaintiff company at any point of time. Therefore, he argued that there was no agreement to sell Ex.PW1/3 executed with the plaintiff company and therefore, prayed for dismissal of the suit. In this regard, he relied upon the judgment of Associated Cement Company Ltd. Vs. Keshwanand (1998) 1 SCC 687. Perused.
19. He further argued that Sh.Gopal Nigam did not enter the witness box and therefore, the plaintiff withheld the best evidence and therefore, prayed for drawing adverse inference against the plaintiff. In this CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 11/23 regard he relied upon Pankaj Vs. State (Govt. of NCT) Delhi 2013 (6) AD (Delhi) 166 and Union of India Vs. Ibrahimuddin; 2012 (8) SCC
148. Perused.
20. On the other hand, Ld. Counsel for plaintiff had argued that Sh.Gopal Nigam was the authorized representative of the plaintiff company duly authorized vide board resolution dated 11.05.1999 Ex.PW1/1 and PW1 Sh.Bharat Bhushan Sharma the only plaintiff witness had placed on record copy of the Board Resolution dated 11.01.2005 Ex.PW1/2 in his favour and has deposed in favour of the plaintiff.
21. At the outset, it is noted that no specific issue was framed in this regard. However, since Ld. Counsel for defendant had raised the objections during the arguments, the same has been dealt with. The agreement to sell Ex.PW1/3 dated 24.12.1997 reflects that the same has been executed between the defendant and B. S. Infrastructure Pvt. Ltd a company. On each of its 8 pages, it bears the signatures of defendant as well as Sh.Gopal Nigam. On the last page, name of the seller i.e. defendant has been mentioned and at the place of purchaser, the name of the plaintiff company has been mentioned and it bears the signatures of Sh. Gopal Nigam. Therefore, a plain and simple reading of the document Ex.PW1/3 (Ex.P1) points to only one inference that the agreement was between the plaintiff company and the defendant. Sh.Gopal Nigam signed on behalf of the plaintiff company. Not only that, Sh.Gopal Nigam filed the suit on CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 12/23 behalf of the plaintiff company by relying upon the Board Resolution dated 11.05.1999 Ex.PW1/1. Not only that, during the cross examination of PW 1 Sh.Bharat Bhushan Sharma, it has categorically come out that agreement to sell Ex.PW1/3 was signed by Sh.Gopal Nigam on behalf of the plaintiff company and PW1 identified his signatures on Ex.PW1/3 at point A on all pages. Therefore, it is clear that it is the plaintiff company who entered into agreement to sell with defendant and notwithstanding the fact that Sh.Gopal Nigam did not enter the witness box, the authority of Sh.Gopal Nigam to execute the agreement and filing of suit by him were all ratified by PW1 Sh.Bharat Bhushan Sharma. In my considered opinion, there is no merit in the plea of the defendant that Sh.Gopal Nigam entered into the agreement in his personal capacity. The question, if the payments were made by Sh.Gopal Nigam in his personal capacity or on behalf of the company has no relevance as the agreement was with the plaintiff company and it is on account of this agreement that the defendant received the sum of Rs.7 Lakhs from Sh.Gopal Nigam/ defendant company as the case may be.
22. Coming to the readiness and willing of the plaintiff, it is clear that the plaintiff company had paid a sum of Rs.7 Lakhs to the defendant at the time of execution of agreement to sell Ex.PW1/3 and as per the agreement to sell Ex.PW1/3 particularly clause 3 thereof, the seller i.e. the defendant had to "forthwith" apply for sale permission from competent CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 13/23 authority, if any, required and without any delay, complete all the formalities for the execution and registration of the Sale Deed. Further, as per clause 4, the seller had to obtain at his own costs and expense, the income tax clearance certificate from the income tax department and such other requisite permissions from any authority as may be required for the purposes of registration of Sale Deed.
23. It is on record that plaintiff sent legal notice dated 10.04.1999 Ex.PW1/4 (Ex.P2) and highlighted that the defendant/ seller had not taken any steps as required. The plaintiff also reiterated his willingness and readiness all through the agreement and expressed their inability to proceed further in the matter on account of the silence of the defendant. Vide this notice Ex.P2, the plaintiff again called upon the defendant to fulfill his obligations under the agreement within one week of receipt of the notice. It is admitted by the defendant during cross examination that no reply to this notice Ex.P2 was sent by the defendant. Not only that, though the plaintiff had filed the suit on 27.05.1999 but DW1 admitted during his cross examination that he applied for income tax clearance certificate for first time on 27.07.1999 after he had received the summons of the suit on 02.06.1999.
24. Therefore, it was clear that so far as the plaintiff is concerned, the plaintiff has always been ready and willing to perform his part of the contract and even put the defendant to notice on his failure to do his part of CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 14/23 the obligations. Not only that, initially, during the month of November and December 1999, plaintiff had deposited even the remaining amount of Rs.41.00 Lakh in the court as reflected from the order sheet dated 10.12.1999. Ld. Counsel for defendant had argued that the plaintiff was reluctant to deposit this amount and as reflected from the order sheet dated 15.11.1999 and therefore, was not always ready and willing to perform his part of the contract.
25. As per order sheet dated 15.11.1999, it appears that the plaintiff had the reservation that the permission from the competent authority is required to be taken. In any case, vide order dated 15.11.1999, three weeks' time was granted to the plaintiff to deposit the amount and plaintiff complied with the same. In hindsight, the apprehensions of the plaintiff had proved to be genuine. Having paid the entire consideration amount way back in 1999, the plaintiff had to suffer the agonizing litigation for about 25 years. Though, the amount of Rs.(41+7) Lakhs is lying deposited in FDR but that is hardly a justice to the money of the plaintiff. In my considered opinion, entire evidene reflects that the plaintiff has always been ready and willing to perform his part of the contract and therefore, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE No.2 & 3Whether the defendant has fulfilled his contractual obligations as contained in the Agreement dated CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 15/23 24.12.1997? OPD Whether the defendant is not in breach of the terms of Agreement dated 24.12.1997, and if so, to what effect? OPD
26. As noted above, the defendant was required to obtain the requisite permission from the competent authority as well as from the income tax authorities but it is the own admission of the defendant DW1 during cross examination that he had applied for income tax clearance certificate for the first time on 27.07.1999 after he received the summons of the suit on 02.06.1999. This is in stark contrast to the clause 3 and 4 of the agreement to sell Ex.PW1/3. Clause 3 specifically provide that defendant shall forthwith apply for sale permission from the competent authority. In his affidavit of evidence Ex.DW1/A, the defendant had nowhere stated as to when he applied to the competent authority for sale permission. In fact, the stand of the defendant is that when he applied for the NOC for the competent authority for such permission, he came to know about the acquisition notice u/s 4 of The Land Acquisition Act 1894 in respect of the suit property and that section 6 Notification was already issued in the year 198586 and the award was passed in the year 198788 vide award no.18/8788. As per the agreement to sell Ex.PW1/3, the defendant had to 'forthwith'apply for the competent authority but the defendant maintained stoic silence until filing of the suit and even not bothered to reply to the notice dated 10.04.1999 Ex.PW1/4 issued by the plaintiff.
CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 16/2327. Record reflects that the defendant had moved an application dated 31.08.2000 IA No.8857/2000 wherein he had stated that he had applied to income tax authorities and was accorded clearance vide permission dated 02.03.1999 and further stated that he had applied for permission from the competent authority Patwari (LA) on 08.05.2000 who stated that no objection certificate in respect of the suit land cannot be granted on the ground that the said land comes within the list of 13 villages which have been allegedly acquired vide award no.18/8788. This shows that it is the defendant who did not perform his part of obligations despite receiving the amount of Rs. 7 lakhs way back in 24.12.1997.
28. Plaintiff had relied upon a notification dated 05.11.1980 Ex.PW 1/6 issued by Delhi Administration under Section 4 of the Land Acquisition Act 1894 regarding the acquisition of entire land in the revenue villages, interalia, of Tughlakabad but at the same time exempting those lands in respect of which layout plans /building plans were sanctioned by the MCD before 05.11.1980. Ex.PW1/7 is the notification dated 06.06.1985 regarding declaration under Section 6 of The Land Acquisition Act issued as a sequel to the notice u/s 4 dated 05.11.80 where under the Khasra No.266 Area 19 Bigha 01 Biswa Tughlakabad village was included as one of the areas. However, Ex.PW1/10 is the letter dated 01.01.1981 issued by officer Incharge, land Acquisition, Delhi to the partner of Chander Lok Cinema (The Licensee of the defendant in the suit property which also CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 17/23 finds mention in the agreement to sell Ex.PW1/3) whereby it has been clarified that on scrutiny of the documents, the building for the cinema was constructed on or before 12.03.1976 and the license for the cinema was granted by the District Magistrate Delhi on 12.03.1976 and considering the building was constructed before 05.11.1980 i.e. the condition laid down in the notification (u/s 4 dated 05.11.1980) hence the piece of land in Khasra No.266 being used for Chander Lok Cinema is exempted from the purview of the notification. Not only that, there is an order date 24.11.86 of Sh.H. L. Kapoor, The Lt. Governor in appeal under Section 30 of DD Act 1957 in case no.53/1975CA which has a reference at page 5 to this letter dated 01.01.1981 Ex.PW1/10 reiterating that as per notification dated 05.11.1980 Ex.PW1/6, Khasra No.266 was exempted on the ground of the cinema having come up. The said appeal also held that the suit land stands held to be outside the development area under Section 12(1) of the DD Act.
29. This itself showed that the suit land was exempt from the acquisition. Further, the plaintiff had moved application under Order 7 Rule 14 CPC which was allowed vide order dated 21.09.2019 and vide this application, the plaintiff had sought to place on record certain public documents obtained through RTI from Land and Acquisition department.
30. At this juncture, it is also worthwhile to note that said order dated 21.09.2019 was challenged by the defendant and said challenge in appeal met with a failure and vide order dated 23.12.2019, Hon'ble High Court CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 18/23 had imposed a costs of Rs.1 Lakh upon the defendant to be deposited in DLSA. Its further relevance is also discussed hereinbelow.
31. The plaintiff had placed on record the RTI application dated 25.01.2018 and the reply of the land and building department, NCT of Delhi (Land Acquisition Branch) dated 13.04.2018 which has attached the photocopy of the requisite record as per which the acquisition proceedings for award no.18/8788 were quashed by the Hon'ble High Court vide order dated 18.11.1988. Not only that, similar was the reply dated 24.05.2006 issued by the Land and Building Department Govt. of NCT of Delhi through its PIO in response to the application dated 11.05.2006 under RTI moved by the defendant. It also reiterates the position that defendant was aware way back in the year 2006 about the quashing of the acquisition proceedings by the Hon'ble High Court vide order dated 18.11.1988.
32. From the above, it appears that in the first instance, the suit land was exempted from acquisition as reflected from the letter dated 01.01.1981 Ex.PW1/10 and further the order of the Lt. Governor, Delhi dated 24.11.1986 reaffirming the same and further, the documents obtained through RTI indicated that the acquisition proceedings have been quashed by the Hon'ble High Court vide order dated 18.11.1988.
33. It is the defendant who had taken the stand that the suit land was part of the acquired land and the onus was upon the defendant to prove this fact and disprove anything which goes contrary to this fact. DW1 during CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 19/23 his cross examination had admitted that he is still in possession of the suit property. The defendant feigned ignorance if any compensation or any intimation of compensation was received by him. Therefore, it is clear that despite being an award of the year 1988, the defendant is still in possession of the suit property and defendant had not received any compensation for the suit land so far. Therefore, last but not the least, the suit land might have been covered under Section 24(2) of The Right to Fair Compensation and transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013. Apparently, under the circumstance, it appears that there was no requirement of seeking any permission as required under Section 4 of The Delhi Lands (Restrictions on Transfer) Act 1972. Be that as it may, from the above, it is clear that it was the defendant who was at fault and failed to fulfil his part of the contract. Further, the record shows that the litigation lingered on for about 25 years and the defendant had moved 9 applications, apart from two applications moved on behalf of Chander Lok Cinema and other application for impleadment moved by other claimants in the suit property. All this had contributed in delaying the disposal of the suit.
34. Therefore, from the above, it is held that defendant had failed to perform his part of the obligations and therefore, both these issues are decided against the defendant and in favour of the plaintiff.
5. Whether the plaintiff is entitled to a decree for specific performance of the Agreement dated 24.12.1997 in respect of suit property? If so, on what terms? OPP CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 20/23
35. The plaintiff had parted with the complete sale consideration for more than two decades but had not been able to get anything in return except to face a prolonged uncertain litigation. Therefore, in my considered opinion, this is a fit case where in law as well in equity, the plaintiff is entitled to the relief of specific performance. Ordinarily, the defendant would have been entitled to higher the consideration amount on account of passage of long period of time since the execution of agreement to sell dated 24.12.97 Ex PW1/3 but perusal of the whole proceedings reflect that there was no fault on the part of the plaintiff and in fact the trial lingered on account of the conduct of the defendant. Granting of market value of the property to the defendant in the present case shall tantamount to giving premium to entangle the property in a long drawn uncertain legal battle.
36. Therefore, in my considered opinion, notwithstanding the fact that the property rates have jumped significantly over the period of 25years, significantly faster than the returns on fixed deposits in which the sale consideration was kept during the pendency of the suit, since it was the fault on the part of the defendant to let the case hang on for so long as possible, the defendant deserves to tread the path of "fixed deposits". Besides, awarding any higher amounts to be paid by the plaintiff shall be tantamount to adding salt to injury of the plaintiff. In my considered opinion, the defendant become entitled only to the sale consideration which was deposited by the plaintiff with uptodate cumulative interests, accrued CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kr. Malhotra Page 21/23 on the two FDRs so far till date of their release.
37. However, it is clarified that in case, the plaintiff requires any permission from any authority for the purpose of getting the Sale Deed registered in its name, the plaintiff company can apply in its own name without reference to the defendant in respect of the suit property and for that purpose, any application moved by the plaintiff to any authority shall be treated as being moved by the defendant. After getting the necessary permissions, if any required, the plaintiff shall notify the defendant giving a time of four weeks and on receiving such notice, the defendant shall get the sale deed registered in favour of the plaintiff. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
6. Whether the plaintiff is entitled to a decree for damages, in the event a decree for specific performance is not granted? OPP
38. In view of the findings given in above issues, this issue is disposed off.
RELIEF:
39. The suit of the plaintiff for specific performance of agreement to sell dated 24.12.1997 Ex.PW1/10 is accordingly decreed in favour of the plaintiff and against the defendant. It is further directed that the entire sale consideration which has been deposited with the court along with interest accrued thereon till date shall be released to the defendant only after the execution of the Sale Deed in favour of the plaintiff. Decree sheet be CS DJ 12009/16 B.S. Infrastructure Pvt. Ltd. Vs. Sanjeev Kumar Malhotra Page 22/23 prepared.
File be consigned to Record Room.
Digitally signed by MUNISH MUNISH MARKAN
Announced and dictated in the MARKAN Date:
2022.04.13
open court on 12.04.2022 05:17:52 +0530
(Munish Markan)
Additional District Judge02 (SE),
District Courts, Saket, New Delhi
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