Delhi District Court
Chandrabhan Singla vs Smt. Asha Bhagat on 17 February, 2023
IN THE COURT OF MS. PURVA SAREEN, ADDITIONAL
DISTRICT JUDGE-01, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI
CS No. 7576/2016
ID No.DLST-01-00434-2012.
Chandrabhan Singla,
S/o Sh. Kapoor Chand Singla,
R/o 619, Sanjay Enclave, Nagla Road,
NIIT, Faridabad, Haryana. ............Plaintiff.
Vs.
1. Smt. Asha Bhagat,
W/o Sh. Parasnath Bhagat,
D/o Sh. Laxmi Prasad,
R/o H. No.B-495, Tansit Camp.,
Govindpuri, Kalkaji, New Delhi.
2. Sh. Amit Kumar,
S/o Sh. Parasnath Bhagat,
R/o H. No.B-495,
Tansit Camp.,
Govindpuri, Kalkaji, New Delhi. ......Defendants.
Date of filing the Suit : 10.02.2012.
Final arguments heard on : 12.01.2023.
Judgment pronounced on : 17.02.2023.
JUDGMENT
Suit for grant of Decree for Specific Performance and Permanent Injunction
1. Present suit has been filed for grant of specific performance by the plaintiff against defendants seeking CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 1/25 performance of Ikrarnama cum agreement of sale dated 30.01.2011 and 28.05.2011.
2. Brief facts as stated in the plaint are that defendants approached the plaintiff to sell one house/building having three floors, built on plot no.B-518, Measuring 35-40 square yards, situated at Transit Camp, Govindpuri, Kalkaji, New Delhi (hereinafter to be referred as 'the suit property') as shown in red colour in the site plan. It is stated that defendants nos.1 and 2 are mother and son and they represented themselves as the lawful and absolute owner of the suit property. Defendants many times contracted the plaintiff and expressed their desire to sell the suit property to plaintiff and visited the house of the plaintiff at Sanjay Enclave, Nagla Road, Faridabad as they were overburdened with heavy loan and wanted to pay off the outstanding loan. Defendant no.2 showed photocopies of some documents to plaintiff showing himself to be the owner of the suit property Documents showed that earlier the defendant no.1 was the owner of the property who later on sold the same to defendant no.2. Defendant no.1 stated that she would also enter the Ikrarnama cum agreement to sale alongwith defendant no.2 so that there shall remain no doubt regarding the negotiation of the property. Thus both the defendants jointly and severally entered into Ikrarnama cum agreement of sale dated 30.01.2011 and additional Ikrarnama dated 28.05.2011 to sell their property with the plaintiff for a total sale consideration of Rs.14 Lacs in the presence of marginal witnesses and they received a sum of CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 2/25 Rs.2 Lacs as advance/complementary earnest money from the plaintiff. Remaining sale consideration of Rs.12 Lacs was settled to be paid at the time of execution and registration of sale deed.
3. It is further stated that at the time of entering the Ikrarnama, defendants had assured that that the suit property was free from any sorts of charges, liens, encumbrances till that date and they have not entered into any agreement relating to the suit property with anyone. Defendants also assured that there was no civil, criminal or any execution proceedings pending in any court of law with respect to the suit property.
4. It is further stated that as per terms and conditions of the additional Ikrarnama cum agreement to sale dated 28.05.2011, defendants agree to execute and get registered the sale deed of ownership in the month of September, 2011 on receiving the balance sale consideration amount of Rs.12 Lacs. Possession and necessary original documents of the suit property were settled to be given to the plaintiff at the time of registration but possession and documents of the suit property were never handed over to the plaintiff till date despite several efforts. It is further stated that both the defendants entered into Ikrarnama cum agreement to sale dated 30.01.2011 and 28.05.2011 out of their own will without any coercion or pressure from any side as they needed money. It was also agreed that if the defendants/sellers resiled from the terms of the said Ikrarnama cum agreements to sale and would not execute and get registered CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 3/25 the sale deed in favour of the plaintiff on stipulated date i.e. September, 2011 or before that then purchaser will have right to get the sale deed executed and registered through competent court of law hence defendants are bound to execute and get the required instrument registered in favour of the plaintiff on the said stipulated time.
5. Similarly, it was agreed between the parties that if plaintiff resiled from the Ikrarnama, then the earnest money shall be forfeited and on the default of sellers, the plaintiff will have right to extract double amount of earnest money plus compensation suffered by the plaintiff as also the plaintiff will have the right to take shelter of the court for proper remedy. It is further stated that in the month of September and thereafter also plaintiff approached the defendants to execute and get registered the sale deed in favour of the plaintiff but the defendants put off the matter on one pretext or the other. It is further stated that plaintiff is ready and willing to perform his part of both the Ikrarnamas and is having remaining sale consideration of Rs.12 Lacs and funds for stamp duty and other incidental charges for the purpose of execution and registration of sale deed in his favour.
6. Plaintiff has prayed for decree of specific performance of Ikrarnamas dated 30.01.2011 and 28.05.2011 in respect of the suit property and for permanent injunction restraining the defendants, their agents, attorneys, employees, representative etc. CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 4/25 from alienating, mortgaging or transferring or gifting or encumbering third party interest in the suit property in favour of anybody else in any manner except the plaintiff without due process of law on the basis of oral and documentary evidence. Hence, the present suit.
7. Written Statement: Defendants have filed joint written statement taking preliminary objections that the suit of the plaintiff is liable to be dismissed under Order VII Rule 11 CPC as the plaint does not disclose any cause of action and the same is also under valued. It is further submitted that the plaint is liable to be dismissed under Section 17 clause (1A) of the Registration Act, 1908 as the alleged documents i.e. Ikrarnama cum agreement of sale dated 30.01.2011 and alleged receipts dated 30.01.2011 and 28.05.2011 relied upon by the plaintiff to claim the prayed relief are not the registered documents which are compulsory registrable documents under Section 17 clause (1A) of Registration Act, 1908.
8. It is further stated that present suit is also liable to be dismissed under the provisions of Indian Stamps Act as the requisite stamp duty has not been paid by the plaintiff on the alleged Ikrarnama cum agreement of sale dated 30.01.2011 and additional Ikrarnama dated 28.05.2011 and alleged receipts dated 30.01.2011 and 28.05.2011. The suit of the plaintiff is liable to be dismissed as the defendants have never entered into alleged Ikrarnama cum agreement of sale dated 30.01.2011 and CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 5/25 additional Ikrarnama dated 28.05.2011 and alleged receipts dated 30.01.2011 and 28.05.2011. It is further stated that defendants have never agreed to sell the suit property to plaintiff and the market value of the suit property was more than Rs.50 Lacs and defendants could never agreed to sell the same for a meagre amount of Rs.14 Lacs. It is further denied that defendants had received the alleged amount of Rs.2 Lacs towards advance or part payment out of the alleged sale consideration of Rs.14 Lacs. It is further stated that alleged Ikrarnama cum agreement of sale dated 30.01.2011 and additional Ikrarnama dated 28.05.2011 and alleged receipts dated 30.01.2011 and 28.05.2011 are forged and fabricated by the plaintiff to grab the suit property of defendants.
9. It is further stated that plaintiff has concealed the material facts from the court and has not come to the court with clean hands. It is submitted that defendant no.2 had raised a loan of Rs.2 Lacs from the plaintiff and at the time of granting the said loan, plaintiff obtained the signatures of defendants on blank papers stating that the said papers shall be torn off at the time of returning the said loan by the defendant no.2 to plaintiff. It is further stated that the facts stated by the plaintiff in the previously instituted suit no.641/2011 are altogether different and contradictory from the facts of the present suit whereas the documents are same which were relied by the plaintiff and the cause of action is also different in the previous suit and the present suit and the suit of the plaintiff therefore merits dismissed.
CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 6/2510. In reply on merits, it is denied that defendants approached the plaintiff representing themselves as owners of the suit property and they were willing to sell the same. It is further denied that defendants had approached the plaintiff at his house to sell the suit property to pay off the outstanding loan. It is also denied that defendants entered into an Ikrarnama cum agreement of sale dated 30.01.2011 and additional Ikrarnama dated 28.05.2011. Alleged receipts dated 30.01.2011 and 28.05.2011 were denied and it was also denied that any agreement took place with the plaintiff or that Rs.2 Lacs were received by them as advance/earnest money.
11. It is submitted that in order to grab the property of the defendants, plaintiff with malafide intention and ulterior designs has concocted a false story. It is further submitted that plaintiff has misused those loan papers by converting them into alleged Ikrarnama cum agreement of sale dated 30.01.2011 and additional Ikrarnama dated 28.05.2011 and alleged receipts dated 30.01.2011 and 28.05.2011. It is further submitted that alleged Ikrarnama dated 30.1.2011 is a printed format consisting of two pages and first gape is not signed by any of the defendants as it was never executed between the plaintiff and defendants. The particulars have been filled by th plaintiff at the back and there are cuttings at the second page of the said Ikrarnama. It is also stated that alleged receipt of Rs.1 Lac is totally blank except the signatures thereon and nothing can be made out from the alleged CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 7/25 receipt that who had paid what amount to whom and for what purpose. It is further submitted that Ikrarnama cum agreement to sale dated 30.10.2011 does not speak anything that the defendant no.1 had put her signatures on it on behalf of defendant no.2. It is further submitted that Ikrarnama cum agreement to sale dated 28.05.2011 is not signed by any of the party and the same is a printed format which had been filled up by the plaintiff at the back and the same was never executed and signed by the defendants. All other allegations leveled by the plaintiff against the defendants are stated to wrong and denied.
12. Plaintiff filed replication to the written statement of the defendants controverting the stand taken by them in their written statement and reiterated the facts of its plaint.
13. On the pleadings of the parties, following issues were framed vide order dated 01.05.2013:
1. Whether plaintiff is entitled for a decree of specific performance on the basis of agreement to sell dated 30.01.2011 and 28.05.2011 as claimed in the plaint? OPP.
2. Whether plaintiff is entitled for a decree of permanent injunction restraining the defendants from selling, alienating, transferring and creating third party interest in the suit property? OPP.
3. Whether plaintiff has no cause of action to file the present suit? OPD.
4. Whether this suit is barred by Section 17 Clause (1A) of CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 8/25 Registration Act as claimed in preliminary objection no.1 of the WS? OPD.
5. Whether proper stamp duty has not been paid on the alleged Ikrarnama cum agreement dated 30.1.2011 and 28.5.2011 and the respective receipts if so to what effect? OPD.
6. Whether no proper Court fee has been affixed on the plaint? OPD.
7. Whether plaintiff has not come to this Court with clean hands and suppressed material facts, of so to what effect? OPD.
8. Whether this suit is liable to be dismissed as the same is in contradictory of previous suit no.641/2011? OPD.
9. Relief.
14. Plaintiff's Evidence - In support of his case, plaintiff examined himself as PW-1 and tendered his affidavit in evidence as Ex.PW1/1 and relied upon following documents:
1. Mark PW1/B (colly) are photocopies of GPA/Agreement to Sale/Will/Affidavit/Receipt notorized on 23.03.2005.
2. Mark PW1/C (colly) are photocopies of Ikrarnama dated 30.01.2011 and 28.05.2011.
3. Mark PW1/D is certified copy of WS filed in CS No.641/2011.
15. PW-1 was cross-examined by counsel for defendant. During his cross-examination, he stated that he was known to the defendants for last 5-6 years and was taken to the defendants by Bijender Bhagat, who were his relative. He could not tell the date, month and year of meeting the defendants. He admitted that CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 9/25 he had not mentioned regarding the payment of Rs.2 Lacs to the defendants for purchasing the suit property. He could also not tell the date and year of execution of Ikrarnama. He stated that he had paid Rs.2 Lacs to defendants in installments of Rs.1 Lac each. He stated that he had paid Rs.1 Lac in cash and had withdrawn the remaining amount from his bank account but he could not tell the date when he withdrew the said amount. He could not tell the approximate value of the suit property but submitted that he had obtained the signatures of the defendants on the stamp papers while payment of the installments. He further submitted that he had obtained the signatures of the defendant after getting the material typed and filled in the blanks. He admitted that while getting the stamp papers typed neither the defendants nor the witnesses were present but he denied that the signatures were obtained on the blank receipts. He also admitted that the receipt Ex.PW1/D1 was blank and it had the signatures of Bijender Kumar, Asha Bhagat, Pawan Kumar and the plaintiff. He could not tell as to said document was part of which Ikrarnama.
16. He denied that defendants had never agreed to sell the suit property to him and he never paid Rs.2 Lacs to them. He further denied that the value of the suit property was Rs.50 Lacs. He also denied that the defendant had taken a loan of Rs.2 Lacs and at that time, signatures had been obtained from the defendants on blank papers which were forged and fabricated as Ikrarnama. He admitted that no notice was served upon the CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 10/25 defendants to execute sale documents and received balance sale consideration. He admitted that the Ikrarnama was registered with the Sub-Registrar and he also did not remember the value of the stamp papers.
17. Plaintiff also examined Sh. Bijender Bhagat as PW-2, who tendered his affidavit in evidence as Ex.PW2/1 and relied upon documents Mark PW2/A which is Ikrarnama dated 30.01.2011, receipt of Ikrarnama already Ex.PW1/D1 and Mark PW1/C i.e. Ikrarnama dated 28.05.2011. He also admitted his signatures on all those documents.
18. PW-2 was also cross-examined by counsel for defendant. He stated that he was residing at District Rudrapur. PW-2 knew the plaintiff being his neighbour. He submitted that the Ikrarnama dated 28.05.2011 was typed at the office of the plaintiff at Faridabad and the Ikrarnama dated 30.01.2011 was typed at the residence of defendant no.1 at Govindpuri. He stated that the Ikrarnama was probably typed on a stamp paper and nothing was filled in the Ikrarnamas dated 30.01.2011 and 28.05.2011 in writing and the entire documents were typed. He stated that both the Ikrarnamas were prepared in his presence. Plaintiff and defendants were also present in the first Ikrarnama and plaintiff and defendant no.2 were present at the time of second Ikrarnama. He could not tell the address of property which was sold vide Ikrarnamas. He stated that the total sale consideration was Rs.14 Lacs but no receipt of payment was CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 11/25 executed at both the times. On being specifically asked with respect to the Ikrarnamas being typed or handwritten, he stated that both the Ikrarnamas were typed and not handwritten. He denied that a loan had been taken by the defendants or that their signatures were obtained on the blank papers. He admitted that the entire payment was made in cash.
19. No other witness was examined by the plaintiff in support of her case and thereafter plaintiff closed the evidence.
20. Defendants' Evidence: In support of her case, defendant no.1 examined herself as DW-1 and tendered her affidavit in evidence as Ex.DW1/A. DW-1 was cross-examined by counsel for defendant. During her cross-examination she stated that the suit property bearing no. B-518, Measuring 35-40 square yards, situated at Transit Camp, Govindpuri, Kalkaji, New Delhi was owned by her which she had transferred in her son's name in the year 2005 by GPA. She did not identify her signature on the alleged agreement dated 30.01.2011. She admitted that she knew Bijender Bhagat was dealer in her village and she had not filed any complaint against him. She further stated that she had handed over all the original documents of the property to her son at the time of executing GPA. She denied that she entered into any agreement with the plaintiff to sell her house. She also denied ever taking Rs.2 Lacs from the plaintiff.
21. Defendants also examined Sh. Amit Kumar Bhagat as CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 12/25 DW-2, who tendered his affidavit in evidence as Ex.DW2/A. During his cross-examination, he stated that he was aged around 32 years and the suit property was in his name. He could not identify his signatures on the photocopy of the documents in the absence of the original documents. He admitted that he had taken a loan of Rs.2 Lacs from the plaintiff, which was arranged by Bijender Bhagat as loan for him for his studies but he had not mentioned this fact in his affidavit. He denied giving any photocopy of GPA to the plaintiff after crossing the same. He submitted that he had met the plaintiff second time in the court. He had met the plaintiff for the first time in his previous house when his mother had purchased the suit property. He denied that he ever entered into an agreement to sell with the plaintiff or had ever taken Rs.2 Lacs as advance from the plaintiff.
22. Defendants also relied upon one document i.e. receipt of Ikrarnama Ex.PW1/D1 during the cross-examination of PW-1.
23. No other witness was examined by the defendants in support of their case and thereafter defendants closed the evidence.
24. I have heard final arguments on behalf of both the parties and have gone through the record carefully.
My Issuewise findings are as follows:
CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 13/25Issue No.1. Whether plaintiff is entitled for a decree of specific performance on the basis of agreement to sell dated 30.01.2011 and 28.05.2011 as claimed in the plaint? OPP.
AND Issue No.2. Whether plaintiff is entitled for a decree of permanent injunction restraining the defendants from selling, alienating, transferring and creating third party interest in the suit property? OPP.
25. Both the issues are taken up together as they are inter connected. Onus to prove these issues was on the plaitniff. Plaintiff has filed the instant suit for specific performance of Ikrarnamas/agreememnts to sale dated 30.01.2011 and 28.05.2011. In a suit for specific performance, the plaintiff has to prove the following:
a. A valid sale agreement.
b. His or her readiness or willingness to perform his or her part of the contract.
c. The breach of contract by the defendant.
26. In the case at hand, the execution of agreement to sale/Ikrarnama is itself denied by the defendants. The defendants have submitted that they never entered into any agreement to sale with the plaintiff.
27. The onus of proving the said Ikrarnama is on the plaintiff and in order to prove the same, the plaitniff examined himself and the builder Bijender Bhagat, who was known to both CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 14/25 the parties and also was also witness to alleged Ikrarnamas.
There are several contradictions in the statements of the witnesses of the plaintiff. The plaintiff did not remember the date, month and year of the execution of the Ikrarnamas. It is improbable that a person would forget the date of execution of a document on which he had purchased a property and also filed the suit. Even if it is presumed that the plaintiff did not remember the date and the month, there was no reason to forget the year of execution of the said Ikrarnama.
28. The plaintiff also did not produce any proof of withdrawl of Rs.1 Lac from his bank account and neither has been able to show any proof of payment of Rs.1 Lac in cash. The receipt Ex.PW1/D1 which has been produced by the defendant in the cross-examination of the plaintiff is merely a blank receipt bearing the signatures of the two witnesses alongwith plaintiff and defendant. The plaintiff has admitted the said receipt but has not been able to tell the date when the said receipt was signed.
29. PW-2 Bijender Bhagat has stated in his cross- examination that both the Ikrarnamas were typed whereas the Ikrarnamas which had been produced by the plaintiff himself are majorly handwritten. There are several contradictions in the statements of PW-1 and PW-2 with respect to their own statements and with respect to the documents placed on record. The execution of documents itself, which is not an admitted document, has not been proved and therefore the plaintiff cannot CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 15/25 seek the specific performance of the same.
30. Section 16 (c) of the Specific Relief Act, 1963 mandates readiness and willingness on the part of the plaintiff as a condition precedent to seek specific performance. As per Section 16 (c) of the Specific Relief Act, 1963 bars personal relieves and inemurate the contract which cannot be specifically enforced in favour of a person.
"(c) who failed to aver and prove that he has performed or has always ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms be performance which have been prevented or waived by the defendant. Explanation for the purpose 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."
31. The 'readiness' and 'willingness' are two separate issues. The 'readiness' depends upon the availability of requisite funds whereas the 'willingness' depends upon the intention of the purchaser. The readiness has to be proved by the purchaser by leading evidence relating to the availability of funds whereas the intention has to be inferred from the various circumstances on record.
CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 16/2532. The crucial question to be decided in the present issue is that whether the plaintiff is entitled to specific performance of the contract or not. The readiness and willing to performance his part of the contract is co requirement of Section (c) of the Specific Relief Act. It is not sufficient for the plaintiff to merely aver that he has been ready and willing to perform his part of the contract, he required to prove a continuous readiness and willingness from the date of contract to the time of filing of the suit. Irrespective of whatever the case of the defendant, the onus to prove the readiness and willingness to pay the stipulated amount lies on the plaintiff and he has to prove:
a. that he is ready and willing to prove his part of contract.
b. according to Section 29 of the Stamp Act, if there is no contract to the contrary, the expenses of stamp duty and registration charges are to be borne by the vendee and further to show his willingness that he had purchased the stamp for execution of the sale deed.
33. In Umabai & Anr vs Nilkanth Dhondiba Chavan (Dead), (2005) 6 SCC 243, it is held that:
"It is now well-settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-Respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 17/25 conduct of the plaintiff-Respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records.
34. In another judgment of the Supreme Court of India passed in N.P. Thirugnanam (D) By LRs vs Dr. R. Jagan Mohan Rao & Ors, 1995 (4) SCALE 465, it is further held that :
"It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under s.20 of the Specific Relief Act 1963 (for short, 'the Act'). Under s.20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 18/25 other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract.
35. In view of the above discussion, there is nothing on record to show that the plaintiff was ready and willing to perform his part of contract or that he was in a position to pay the balance sale consideration. Moreover, the plaintiff could not even show the proof of payments made by him to the defendants. He submitted that he had payment of Rs.1 Lac by cash and another Rs.1 Lac by way of cheque but no bank record or statement of account placed on record to prove the payment made by cheque. In fact, the Ikrarnama itself could not be proved by the plaintiff.
36. Further the plaintiff merely averred that he was ready and willing to pay without proving that he was in a position to pay the balance consideration. No notice was ever sent to the defendants for sale of the suit property as the plaintiff was ready and willing to perform his part of the contract.
CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 19/2537. A bare perusal of the plaint as well as evidence shows an utter failure on part of the plaintiff to prove his readiness and willingness to perform his part of the contract.
38. There is neither any averment in the plaint nor in the evidence regarding the purchase of any stamp duty as a step towards execution of the sale deed.
39. Hence, the plaintiff has not been able to prove a valid Ikrarnama and neither his readiness and willing to perform his part of the contract, therefore, he is not entitled to the decree of specific performance. The first issue therefore stands decided against the plaintiff. In view of the first issue being decided against the plaintiff and in favour of the defendant, issue no.2 is also decided against the plaintiff and in favour of the defendants and therefore no order for permanent injunction can be passed against the defendants qua the suit property.
Issue No.3. Whether plaintiff has no cause of action to file the present suit? OPD.
40. Burden of proving the present issue was upon the defendant. It is submitted by the plaintiff in his plaint that the defendants entered into an Ikrarnama cum agreement to sale with the plaintiff qua the suit property and defendants received the sum of Rs.2 Lacs, Rs. 1 Lac by way of cash and another Rs.1 Lac by way of cheque and agreed to execute registered sale deed in favour of the plaintiff. It is alleged that the defendants despite CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 20/25 several requests, refused to perform their part of the contract and failed to get the sale deed registered in favour of the plaintiff and even threatened to sell the suit property to a third person. The cause of action arose as per the alleged documents when the same were executed hence, it cannot be said that there is no cause of action against the defendants. Henceforth, this issue is decided in favour of the plaintiff, however, the plaintiff has not been able to prove that documents and the relief claimed by him.
Issue No. 4. Whether this suit is barred by Section 17 Clause (1A) of Registration Act as claimed in preliminary objection no.1 of the WS? OPD.
41. Burden of proving the present issue was upon the defendants. As per Section 17 Clause (1A) of Registration Act, the documents containing contracts to transfer for consideration any immovable property for the purpose of Section 53A of Transfer of Property Act shall be registered if they have been executed on or after the commencement of Registration and Other Related Laws (Amendment) Act, 2001 and his such documents are not registered on or after such commencement, then they shall have no effect for the purpose of said Section 53A of the Transfer of Property Act. The alleged Ikrarnamas dated 30.01.0211 and 28.05.2011 and alleged receipt dated 28.05.2011 are compulsorily registerable documents and admittedly the alleged documents are not registered which is also admitted by PW-1 in his cross-examination. In fact, the originals of the said documents have also not been produced in the court. It is also CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 21/25 evident that the same were blank when the signatures were obtained on them by the plaintiff. They are also partly handwritten and partly typed which also casts a doubt on their authenticity. Hence, these documents which are being relied upon by the plaintiff are inadmissible in the suit. Therefore, the present issue stands decided in favour of the defendants and against the plaintiff.
Issue No. 5. Whether proper stamp duty has not been paid on the alleged Ikrarnama cum agreement dated 30.1.2011 and 28.5.2011 and the respective receipts if so to what effect? OPD.
42. Burden of proving the present issue was upon the defendants. The Ikrarnama dated 30.01.2011 was typed on a stamp paper of Rs.20/- and the Ikrarnama dated 28.05.2011 was typed on a stamp paper of Rs.10/-. Defendants have not been able to prove how the documents are under stamped and what should have been the correct stamp duty on the Ikrarnana cum agreement to sale. Therefore, the defendants have not been able to prove the present issue. Hence, this issue stands decided accordingly.
Issue No. 6. Whether no proper Court fee has been affixed on the plaint? OPD.
43. Burden of proving the present issue was upon the defendants. The suit has been filed for specific performance and permanent injunction and the suit property has been valued by CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 22/25 the plaintiff at Rs.14 Lacs, upon which a fixed court fee of Rs.16,008/- has been paid by the plaintiff and for relief of permanent injunction additional fee of Rs.13/- has been paid by the plaintiff. Although the defendants have averred that the property has a value of around Rs.50 Lacs but they have not produced any evidence or have not been able to bring any witness to prove the circle rate or actual value of the suit property. Hence, the valuation done by the plaintiff is presumed to be correct by the court as the defendants have not been able to discharge the onus of proving the value stated by them and hence, the court fee/ valuation done by the plaintiff is presumed to be correct. Hence, this issue is decided in favour of the plaintiff and against the defendants.
Issue No.7. Whether plaintiff has not come to this Court with clean hands and suppressed material facts, if so to what effect? OPD.
44. Burden of proving the present issue was upon the defendants. The documents filed by the defendants are all photocopies and original documents were never produced by the plaintiff in the court. The receipts PW1/D1 annexed with the Ikrarnamas was blank document which did not even contain the names of the parties and neither the amount tendered. It cannot be ascertained from receipt Ex.PW1/D1 as to how much amount was tendered to whom and by whom. Similar issue arises with the receipt Mark PW2/B annexed with Mark PW1/C which also does not bear the names of the parties. Site plan has been CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 23/25 mentioned in the list of document but the same has not been annexed with the plaint by the plaintiff. The case has been filed by the plaintiff on the basis of photocopies and documents which are partially blank. They have not even been admitted by the defendants in their pleadings. Hence, it cannot be said that the plaintiff has come to the court with clean hands and the relief prayed by him cannot be granted. This issue is decided in favour of the defendants and against the plaintiff.
Issue No. 8. Whether this suit is liable to be dismissed as the same is in contradictory of previous suit no.641/2011? OPD.
45. Burden of proving the present issue was upon the defendants. The previous suit filed by the plaintiff was filed on 03.09.2011 and was withdrawn on 11.01.2012. The said suit bearing no.641/2011 was withdrawn vide a separate statement recorded in the court in which it was stated that due to some inadvertent typographical mistake, plaintiff was not in a position to pursue the said case and he was permitted to withdraw the said suit and was given liberty to file a fresh one. The contents of the said suit cannot read in the present suit. Hence, the contention of the defendants that the previous suit was contradictory cannot be entertained. Therefore, present issue stands decided in favour of the plaintiff and against the defendants.
Relief :
46. The case of the plaintiff has to stand on its own legs CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 24/25 and in the facts and circumstances of the present case, the plaintiff has not been able to prove his case. Hence, in view of above findings, the suit of the plaintiff is hereby dismissed.
Considering the facts, no order is passed as to cost. Decree sheet be prepared accordingly. File be consigned to record room Digitally after due compliance. signed by Purva Purva Sareen Date:
Sareen 2023.02.17
16:52:33
Announced in the open court +0530
On 17th February, 2023. (Purva Sareen)
Additional District Judge-01,
(South) Saket District Courts,
New Delhi.
CS No.7576/2016, Chanderbhan Singla v. Asha Bhagat & Anr. Page No. 25/25