Delhi District Court
M/S. Pienne Industrial Consultants ... vs . Rajesh on 1 February, 2017
CS No.16441/16
M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh
IN THE COURT OF SH. VIRENDER BHAT,
ADDITIONAL DISTRICT JUDGE-04, SOUTH WEST,
DWARKA COURTS, NEW DELHI
CS No.16441/16
In the matter of:-
M/s. Pienne Industrial Consultants Pvt. Ltd.
A company incorporated under the Indian Companies Act,
Having its Regd.Office at 226, II nd Floor,
Vardhaman Plus Citi Mall, LSC, Sec. 23,
Dwarka, New Delhi-110 075.
Through its authorised Director
Sh. Prem Raj Sharma s/o late Sri Chand Sharma,
R/o WZ-110, Bijwasan Najafgarh Road,
Bamnoli Village, New Delhi-110 045
Presently at :- G-108, Palam Vihar,
Gurgaon, Haryana. .....Plaintif
Versus
Sh. Rajesh s/o Sh. Mehar Singh,
R/o VPO Badu Sarai,
New Delhi. .....Defendant
Date of filing of the suit:02.05.2016.
Date of reserving judgment/Order:-25.01.2017.
Date of pronouncement :01.02.2017.
SUIT FOR SPECIFIC PERFORMANCE, DECLARATION,
MANDATORY INJUNCTION & PERMANENT INJUNCTION.
JUDGMENT
1. By this order I propose to dispose off the plaintiff's application u/o XII Rule 6 CPC and also the issue of limitation Page 1 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh which had cropped up during the course of arguments on the aforesaid application.
2. The plaintiff/applicant has filed a suit for specific performance, declaration and injunction. It is stated that vide agreement to sell dated 20.4.2011, the defendant sold his 1/8th share in the suit property i.e. agricultural land measuring 36 bighas 5 biswas situated in khasra No. 24//11(South)(1-2), 20 (South)(2-3), 21 (South)(2-3)25//15(East)(2-6), 16 (East)(4-13), 25 (East)(4-13), 26//17(South)(0-6), 18 (South)(1-12), 23 (4-14), 24(4-16), 28//4 (North)(2-1), 29//5(East)(4-5) and 13//1(1-11) within the revenue estate of Village Badu Sarai, Tehsil Kapashera, New Delhi to the plaintiff company for a total sale consideration of Rs. 1,01,35,000/-. The plaintiff company paid earnest money of Rs. 50 lakhs to the defendant at the time of the execution of the aforesaid agreement to sell, Rs. 14.5 lakhs by way of cheque and Rs. 50,000/- in cash. The defendant was required to obtain NOC/Status report u/s 8 of Delhi Land (Restrictions & Restrictions on Transfer) Act, 1972 and the requisite permission under the Provisions of Delhi Land Reforms Act before the stipulated date in the agreement i.e. 20.7.2011, upon which the plaintiff company was required to pay balance sale consideration to him at the time of registration of proper sale deed. It is further stated that since the defendant conveyed to the plaintiff company his urgent need for money to meet his bonafide family requirements, the plaintiff company paid Rs. 5 lakhs to him on 12.5.2011 and also the entire balance sale consideration by 1.6.2011. The details of the total payment made by defendant to the plaintiff company in this regard is Page 2 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh mentioned in para 6 of the plaint as under:-
(i) Rs. 14,50,000/- through cheque No.580681 dated 21.4.2011 drawn on Syndicate Bank, Bijwasan, New Delhi in favour of defendant i.e. Rajesh paid on 20.4.2011.
(ii) Rs. 50,000/- in cash to defendant on 20.04.2011.
(iii) Rs. 5,00,000/- through cheque No.874295 dated 12.5.2011 drawn on The Bank of Rajasthan, Kailash Colony, New Delhi in favour of defendant i.e. Rajesh paid on 12.05.2011.
(iv) Rs. 81,35,000/- through cheque No.005163 dated 01.06.2011 drawn on ICICI Bank Ltd., Kailash Colony, New Delhi in favour of defendant i.e. Rajesh paid on 01.06.2011.
3. The plaintiff further states that upon receipt of the entire sale consideration in the manner stated herein above, the defendant executed a fresh agreement to sell, possession letter, affidavit/declaration and indemnity bond all dated 1.6.2011 in its favour and also executed one special power of attorney of even date in favour of Sh. Vidhu Sharma s/o Prem Raj Sharma (Director of plaintiff company) which was got registered duly on 02.06.2011. It is further stated that the defendant's attorney Sh. Vidhu Sharma, vide his writing dated 8.5.2014 undertook to fulfil the terms of the agreement by executing/registering a sale deed in favour of plaintiff company and also getting the suit property mutated in the revenue records in the name of plaintiff company on or before 30.4.2016. It is further stated that the Director of the plaintiff company came to know on 14.1.2015 that the Page 3 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh intentions of the defendant have turned dishonest and he wants to back out from the sale transaction by revoking/cancelling the registered special power of attorney dated 1.6.2011 executed by him in favour of Sh. Vidhu Sharma. Accordingly, the Director of the plaintiff company submitted written objections in this regard in the office of sub-registrar, Kapashera on 15.1.2015. Meanwhile, upon legal advice, the plaintiff company got prepared a sale deed and presented the same for registration through the defendant's special attorney Vidhu Sharma on 23.1.2015 vide proofing No.1083. However, the defendant's attorney informed the director of the plaintiff company in Ist week of April, 2015 that the aforesaid registered special power of attorney has been cancelled by the defendant and consequently the registration of the sale deed presented on 23.1.2015 has been refused by the Sub-registrar vide his order dated 20.3.2015. The plaintiff company has filed an appeal u/s 72 of the Registration Act, 1908 against the said refusal order before the Registrar S/W, Kapashera, which appeal is still pending disposal.
4. According to the plaintiff company, the defendant had no legal right at all to cancel or revoke the registered special power of attorney dated 1.6.2011 executed by him in favour of Vidhu Sharma and he is bound by the declaration/affidavit dated 1.6.2011 and other documents executed by him in favour of the plaintiff company to execute and register a sale deed in favour of the plaintiff company as he has already received the entire sale consideration. It is stated that on account of malafide intentions, the defendant has Page 4 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh started to interfere with peaceful and actual possession of the plaintiff company over the suit land by putting building material over part of it during the night intervening between 5.5.2015 and 6.5.2015. The plaintiff company has lodged a complaint in this regard with the Police and also filed a suit u/s 83 of Delhi Land Reforms Act before the competent revenue court, Kapashera which has already been decreed in its favour vide order dated 16.11.2015. It is in these circumstances that the instant suit has been filed by the plaintiff company.
5. The defendant, in his written statement, has not denied execution of the agreement to sell dated 20.4.2011 in favour of plaintiff company regarding the suit land or the execution of fresh agreement to sell alongwith the related documents including registered special power of attorney in favour of plaintiff company on 1.6.2011. He has also not denied the receipt of Rs. 1,01,35,000/- from the plaintiff company in the manner as stated herein above. The dispute raised by defendant is with regards to the total sale consideration of the suit land fixed between the parties. It is his contention that the sale consideration in the suit land was finalised between the parties at Rs. 3,20,00,000/- out of which the plaintiff company has paid him only a sum of Rs. 1,01,35,000/- and the balance amount was to be paid by it at the time of execution of registered sale deed in its favour. It is stated by him that according to the plaintiff company, it could not make the payment of entire sale consideration on notorised documents and therefore, it paid to him only part sale consideration of Rs. 1,01,35,000/- at the time of execution of the notorised documents with the assurance that Page 5 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh the remaining amount of Rs. 2,18,65,000/- would be paid to him at the time of execution of registered sale deed in favour of plaintiff company as well as handing over of physical possession of the suit land to it. He contends that he was within his right to sale/revoke registered special power of attorney dated 1.6.2011 executed by him in favour of Vidhu Sharma as plaintiff company avoided the payment of balance sale consideration to him. According to him, plaintiff company was having knowledge of the cancellation of the special power of attorney and it did not appear before the Sub-Registrar deliberately despite two letters dated 20.1.2015 and 26.2.2106 sent to him by the Sub-Registrar in this regard.
6. The plaintiff company, in its replication, has denied the contents of the written statement and has reaffirmed the contents of the plaint.
7. It needs note here that the plaintiff has field the original agreement to sell dated 20.4.2011 as well as all the original documents executed on 01.06.2011 between the parties. He has also filed original writing dated 08.05.2014 executed by Sh. Vidhu Sharma as Special Attorney of the defendant. Admission/denial of documents was conducted on 30.07.2016. The defendant has admitted all the aforesaid documents which have been executed between the parties.
8. I have heard ld. Counsel for the plaintiff, ld. Counsel for the defendant and have perused the entire record.
Page 6 of 15 CS No.16441/16M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh I shall first deal with the issue of limitation.
9. It was submitted by ld. counsel for the defendant that the plaintiff company is seeking specific performance of agreement to sell dated 1.6.2011 and therefore, the suit having been filed on 2.5.2016 is patently barred by limitation. According to him, the plaintiff company was required to file the suit for specific performance within three years from the execution of the agreement to sell and since the instant suit has been filed almost after five years of the execution of the agreement to sell dated 01.6.2011, the same is clearly time barred.
10. The limitation for filing the suit for specific performance of the agreement to sell is governed by Article 54 of The Limitation Act which is reproduced herein below:-
Description of suit Period of limitation Time from which period begins to run.
54. The date fixed for the For specific performance Three years performance, or, if no of a contract. such date is fixed, when the plaintiff has notice that performance is refused.
11. It is thus evident from the bare reading of the aforesaid provision of law that in case, any time is fixed in the agreement to sell for its performance, the period of limitation for filing the suit for specific performance shall start running from that date and the period of three years has to be reckoned from that date, whereas, in case, no such date is fixed in the agreement, the period of limitation has to be reckoned from the Page 7 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh date, on which the plaintiff/purchaser has noticed that the performance was refused by the seller.
12. Therefore, enquqiry has to be made as to when the plaintiff had notice that the defendant has refused to perform the contract. It has specifically been stated in the plaint that everything was going on smoothly till Jan. 2015 and it was on 14.1.2015 that the director of the plaintiff company came to know that the defendant has become dishonest and intends to back out from the sale transaction. It is further stated that the defendant's attorney then informed the director of the plaintiff company in first week of April, 2015 that the defendant had cancelled the special power of attorney dated 01.06.2011. There is nothing in the written statement of the defendant to show that the plaintiff company had notice of his refusal to perform the contract on any date prior to 14.1.2015. It is, therefore, manifest that the plaintiff came to know for the first time on 14.1.2015 that the defendant has no intention to perform his part of the agreement to sell. Thus the period of three years for filing the suit for specific performance, as per the Article 54 of the Limitation Act, has to be reckoned from the said date i.e. 14.1.2015. Thus the suit having been filed on 2.5.2016 is well within the period of limitation.
13. This issue is, therefore, answered accordingly.
14. Now I shall take the application of the plaintiff u/o XII Rule 6 CPC for disposal. It was submitted by the ld. Counsel for the plaintiff that by admitting all the documents executed Page 8 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh between the parties, the defendant has infact admitted the whole case of the plaintiff and therefore, nothing survives for trial. He argued that the defence raised by the defendant that total sale consideration for the suit property was fixed at Rs. 3,20,00,000/- and not 1,03,35,000/- is contrary to the admitted documents executed between the parties and therefore, does not merit any consideration. In this regard he relied upon the judgment of Delhi High Court reported as Parivar Sewa Sansthan Vs. Veena Kalra AIR 2000 Delhi 349 and judgment of Rajasthan High Court reported as Neta vs. New Pink City Grah Nirman Sahkari Samiti Ltd. AIR 1997 Raj,
28.
15. Per contra ld. Counsel for the defendant has vehemently opposed the application. He denied that any admissions have been made by the defendant in the written statement which would entitle the plaintiff for a judgment u/o XII Rule 6 CPC. According to the ld. Counsel, there is no clear cut, unambiguous and unconditional admission on the part of the defendant in his written statement, which kind of admission is essential for invoking the provisions of Order XII Rule 6 CPC. According to the ld. Counsel, the defendant has only admitted his signatures on the documents filed by the plaintiff and not the contents of those documents. He argued that the defendant has specifically disputed the contentions of the plaintiff that the sale consideration fixed by the parties was Rs. 1,01,35,000/- and it is his specific contention that the parties had decided the sale consideration to be Rs. 3,20,00,000/-. He submitted that in view of clear and specific dispute raised by the defendant, no Page 9 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh judgment can be passed in favour of plaintiff company at this stage and it should be put to proof of the averments made by it. He relied upon two judgments of Delhi High Court reported as Mr. Vijay Gupta & Ors. vs. Mr. Ashok Kumar AIR 2007 Delhi 166 and judgment dated 10.11.2014 passed in RSA NO.160/13 titled Indel Singh & Ors. vs. Sube Singh.
16. The scope and ambit of order XII Rule 6 CPC has been succinctly explained by the Supreme Court in Uttam Singh Duggal vs. Union Bank of India, AIR 2000 SC 2740 as under:-
"Where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain a speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed."
17. The tests to be applied at the time of deciding the application u/o XII Rule 6 CPC, have been explained by the High Court in Delhi Jal Board Vs. Surendra P. Malik104 (2003) DLT 151 (DB) as under:-
Page 10 of 15 CS No.16441/16M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh "The test, therefore, is (I) whether admission of fact arise in the suit; (ii) whether such admissions are plaint, unambiguous and unequivocal; (iii) whether the defence set up is such that it requires evidence for determination of the issues; and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment."
18. Similar is the ratio of the two judgment referred to by the ld. Counsel for the defendant in his arguments. It has been observed therein that the written statement has to be read and construed as a composite document and the court cannot pick up a single line to treat it as an admission out of the context in which the said line is written and the court essentially should look into the fact that all the essential ingredients of an admission are satisfied before such decree is passed in favour of any of the parties to the suit. It has also been observed that there is a fine distinction between unambiguous and specific admission on the one hand and vague averments of facts on the other hand, which, if proved, could even tentamount to an admission on the part of a party to the suit and the Court should consider the need for passing a decree only in the case of first category and normally should decline in the case of latter category.
Page 11 of 15 CS No.16441/16M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh
19. As already noted herein above, the only dispute raised by the defendant in his written statement is with regards to the amount of sale consideration fixed by the parties for the suit property. It is his contention that the total sale consideration was arrived at Rs. 2,20,00,000/- and not Rs. 1,01,35,000/- as stated by the plaintiff. At the same time, he has admitted the execution of the agreement to sell dated 1.6.2011, receipt in the sum of Rs. 1,01,35,000/- dated 1.6.2011, possession letter dated 1.6.2011, affidavit/declaration dated 1.6.2011 and special power of attorney dated 1.6.2011. It has been specifically stated in the agreement to sell that the defendant has agreed to sell the suit property to the plaintiff company for a total sale consideration of Rs. 1,01,35,000/- and he has received the entire sale consideration from the plaintiff company. It is nowhere mentioned in the entire agreement that any part of sale consideration has remained to be paid by the plaintiff company to the defendant. Similarly, the receipt also mentions that the defendant has received a sum of Rs. 1,01,35,000/- in full and final payment towards the sale price of the suit property. In the affidavit/declaration as well as the Special Power of Attorney also, the defendant has clearly mentioned that he has received the entire sale consideration of Rs. 1,01,35,000/- from the plaintiff company.
20. The argument of the ld. Counsel for the defendant that the defendant had admitted only his signatures on these documents and not their contents, does not have any merit at all. It was not stated by the defendant at the time of admission/denial of these documents that he is admitting only Page 12 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh his signatures on these documents and not their contents. It is for this reason that no such endorsement was made on these documents. Further even if it be assumed that the defendant admits only his signatures on the documents, then also it has nowhere been explained by the defendant as to why did he sign these documents when, according to him, the sale transaction had not been mentioned correctly therein. The defendant has signed in English upon these documents and has also written his name in English in his own handwriting below his signatures at the time of admission/denial of these documents which implies that he understands English language. Therefore, it would not lie in his mouth to say that he had signed these documents without understanding their contents. It may be noted here that the sale consideration of Rs. 1,01,35,000/- has been stated boldly in all these documents which could not have escaped the attention of the defendant at the time of signing these documents.
21. I am in agreement with the contentions of the ld. Counsel for the plaintiff that the defence of the defendant that the sale consideration was fixed at Rs, 3,20,00,000/- does not merit any consideration for the reason that it is contrary to the contents of the admitted documents executed between the parties. Once the defendant has admitted the execution of agreement to sell, receipt, possession letter, affidavit/undertaking and special power of attorney with regards to the suit property in favour of the plaintiff company wherein the sale consideration is mentioned as Rs.1,01,35,000/- only and he has also admitted his signatures on all these documents, it is not open to him to controvert the contents of these documents Page 13 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh and to take a contrary stand. It has been held by the High Court in the case of Parivar Sewa Sansthan (Supra) that any plea raised against the contents of documents, only for delaying the trial, being barred by Section 91 and 92 of Evidence Act or other statutory provisions, can be ignored. Therefore, the aforesaid plea raised by the defendant being contrary to the contents of the admitted documents executed between the parties, is clearly barred by Section 91 & 92 of the Evidence Act and hence has to be ignored. Moreover, no material has been placed on record by the defendant to show that the sale consideration was actually arrived at Rs. 3,20,00,000/- and not Rs. 1,01,35,000/- as stated by the plaintiff.
22. Therefore, in view of the admitted documents executed between the parties as mentioned herein above, the case of the plaintiff company stands admitted in its entirety by the defendant and the plaintiff company has become entitled to judgment u/O XII Rule 6 CPC.
23. It is limpid from the admitted documents filed on record, which have been executed between the parties, that the entire sale consideration of Rs. 1,01,35,000/- (One Crore One Lakh Thirty Five Thousand) stands paid by the plaintiff company to the defendant and the defendant has also handed over the possession of the suit property to the plaintiff. Only a regular sale deed remains to be executed between the parties. Considering the admitted facts on record, no dispute survives for adjudication and there does not appear to be any impediment in passing a decree in favour of the plaintiff company on the basis Page 14 of 15 CS No.16441/16 M/s. Pienne Industrial Consultants Pvt. Ltd. vs. Rajesh of these admitted facts.
24. Hence I allow the application u/o XII Rule 6 CPC.
25. A decree for specific performance of the agreement to sell dated 1.6.2011 is hereby passed in favour of plaintiff company and against the defendant thereby directing the defendant to execute and register a regular sale deed in favour of plaintiff company with regards to the suit property i.e. agricultural land measuring 36 bighas 5 biswas situated in khasra No. 24//11 (South) (1-2), 20 (South) (2-3), 21 (South)(2-3) 25//15 (East) (2-6), 16 (East) (4-13), 25 (East) (4-13), 26//17 (South) (0-6), 18 (South) (1-12), 23 (4-14), 24 (4-16), 28//4 (North)(2-1), 29//5 (East)(4-5) and 13//1(1-11) within the revenue estate of Village Badu Sarai, Tehsil Kapashera, New Delhi. A decree of permanent injunction is also passed in favour of plaintiff company thereby restraining the defendant from interfering with the actual possession and enjoyment of the plaintiff company over the aforementioned suit land.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open Court (VIRENDER BHAT)
on 01.02.2017. ADDL. DISTRICT JUDGE-04
DWARKA COURTS: NEW DELHI.
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