Delhi District Court
Jitender Singh And Ors. vs . Pritam Kaur And Ors. on 30 November, 2017
Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
IN THE COURT OF MS. JYOTI KLER, ADDITIONAL DISTRICT
JUDGE05, ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS,
NEW DELHI
In the matter of
Suit No. 9488/16
CNR No. DLST010072242016
1. Sh. Jitender Singh
S/o Late Sh. Hoshiar Singh,
C/o M/s Anupam Business Consultants Group,
E61, Arjun Nagar,
Safdarjung Enclave Extn.,
New Delhi - 110029.
2. Sh. Bhavesh Chaudhary
S/o Sh. G.S. Chaudhary
C/o M/s Anupam Business Consultants Group,
E61, Arjun Nagar,
Safdarjung Encalve Extn.,
New Delhi - 110029.
3. Sh. N.K. Agarwal
S/o Sh. Brij Kishore Agarwal
R/o 10, Under Hill Lane
Civil Lines, Delhi.
.............Plaintiffs
Versus
1. Smt. Pritam Kaur
Wd/o Late Sh. Sohan Singh
R/o 8, Krishna Nagar,
Near B4, Safdarjung Enclave,
New Delhi.
Suit No. 9488/16 Page 1 of 41
Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
2. Sh. Kuldip Singh,
S/o Late Sh. Sohan Singh,
R/o 8, Krishna Nagar,
Near B4, Safdarjung Encalve,
New Delhi.
3. Smt. Manjit Kaur
W/o Shri Ravinder Singh,
R/o 8, Krishna Nagar,
Near B4, Safdarjung Enclave,
New Delhi.
4. Smt. Kamaljit Kaur
W/o Sh. Harjit Singh,
R/o 8, Krishna Nagar,
Near B4, Safdarjung Enclave,
New Delhi.
5. Smt. Harjit Kaur
W/o Sh. Satender Pal Singh,
R/o 116, MIG, DDA Flats,
Hauz Khas, New Delhi
.........Defendants
Date of Institution : 16.09.1996
Date of Reserving the Judgment : 23.11.2017
Date of Pronouncement : 30.11.2017
Decision : Partly Decreed.
SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT AND
INJUNCTION
JUDGMENT
1. This judgment shall dispose off the Suit for Specific Performance and Injunction instituted by Sh. Jitender Singh, Sh.
Suit No. 9488/16 Page 2 of 41Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
Bhavesh Chaudhary and Sh. N.K. Aggarwal (hereinafter referred as "the plaintiff no.1", "the plaintiff no.2", and "the plaintiff no.3", respectively and "the plaintiffs" collectively), against Smt. Pritam Kaur, Sh. Kuldeep Singh, Smt. Manjit Kaur, Smt. Kamaljeet Kaur and Smt. Harjit Kaur (hereinafter referred as "the defendant no.1", "the defendant no.2", "the defendant no.3", "the defendant no.4"
and "the defendant no.5" respectively and "the defendants"
collectively).
Case of the Plaintiffs
2. The defendants being legal heirs of Late Sh. Ganda Singh inherited and became owners of his property bearing Municipal No. 7, 8, 9, 9A and 9B, Krishna Nagar, New Delhi - 110029, measuring 1 Bigha and 2 Biswa, bearing Khewat No. 30/70, Khasra No. 41, situated in the Revenue Estate of Village Humayunpur, Tehsil Mehrauli, New Delhi (hereinafter referred as "the Suit Property").
3. Defendants entered into an agreement to sell the suit property with plaintiffs no. 1 and 2 on 01.02.1995 for total sale consideration of Rs.1,42,00,000/ (Rs. One Crore Forty Two lakhs only). A part sale consideration of Rs.1,00,000/ (Rs. One One Lakh only) was paid under the agreement and balance amount was agreed to be paid as under:
i) Rs.13,20,000 - Within 15 days from the date of receipt of intimation regarding mutation of property in favour of the defendants in the revenue records.
Suit No. 9488/16 Page 3 of 41Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
ii) Rs.1,27,80,000 - Within 4 months thereafter on execution of transfer deeds after obtaining requisite permissions and handing over of vacant peaceful possession.
4. The agreement dated 01.02.1995 was though labelled as 'Initial Payment Receipt Cum Agreement to Sell' but it was an agreement to sell containing all the essential terms of sale. The plaintiffs no. 1 and 2 handed over Form 37I to the defendants for obtaining permission from the appropriate authority. Defendants agreed to handover vacant possession of the suit property to the plaintiffs after getting it vacated from the tenants at their own costs. It was further agreed that sale deed shall be registered by the defendants in favour of the plaintiffs no.1 and 2 or their nominees / assignee.
5. Plaintiffs no.1 and 2 entered into another agreement with plaintiff no.3 to ultimately convey the suit property in his favour on the basis of agreement to sell dated 01.02.1995. They nominated the plaintiff no. 3 as their nominee for the purpose of agreement to sell dated 01.02.1995.
6. Defendants were to get the Suit Property mutated in their favour in the Revenue Records before payment of next installment of Rs.13,20,000/. Plaintiff no.1 and 2 regularly enquired from the defendants regarding mutation in the Revenue Suit No. 9488/16 Page 4 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
Records and even extended their cooperation. Defendants assured that they shall take care of it and send written communication as and when the mutation is done. However, no intimation was received from the defendants for about 6 months.
7. Plaintiffs no. 1 & 2 again made an enquiry and defendants communicated that they had applied for mutation to the Revenue Authorities on 20.07.1995. They also handed over a copy of such application and the affidavit to the plaintiffs no. 1 and
2. Since thereafter, plaintiff no. 3 had been enquiring from plaintiff no. 1 and 2, and they had been enquiring from the defendants regarding mutation, but the defendants avoided the enquiries. Plaintiffs were always ready and willing to perform their part of contract and are still ready and willing. Defendants failed to perform their part of obligations inspite of repeated promises.
8. Plaintiff no.3 served a legal notice dated 19.01.1996 upon plaintiffs no.1 and 2 and the defendants calling upon them to perform their part of obligations. On receipt of this notice from plaintiff no.3, plaintiff no. 1 and 2 served a notice dated 30.01.1996 upon the defendants calling upon them to perform their part of obligation under agreement to sell dated 01.02.1995. Defendants answered both the notices vide reply dated 12.02.1996 to which plaintiff no. 1 and 2 sent a rejoinder dated 07.03.1996. Defendants failed to perform their part of obligations under the agreement to sell dated 01.02.1995 despite receipt of legal notice. Hence, plaintiff instituted the present suit with prayers as under: Suit No. 9488/16 Page 5 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
"a) decree the suit of the plaintiffs against the Defendants directing the Defendants to specifically perform the Agreement dated 01.02.1995 and execute the transfer deeds/documents in respect of the property bearing No. 7, 8, 9, 9A and 9B, Krishna Nagar, New Delhi - 110029 in favour of the Plaintiff No.3 being nominee of Plaintiffs No. 1 & 2 or in favour of Plaintiffs No. 1 and 2 if this court comes to the conclusion that the Plaintiff No.3 is not entitled to direct performance in his favour after obtaining all requisite permissions from the authorities concerned with delivery of vacant possession and if the Defendants in the meanwhile succeed in creating thirdparty interest, such successor in interest be also directed to join hands of the Defendants in conveying the suit property in favour of the Plaintiff No.3 or in favour of Plaintiffs No. 1 & 2 as the case may be;
b) if the Defendants fail to execute the transfer deed and obtain necessary permissions, then this Hon'ble Court may kindly be pleased to get necessary permissions and get the transfer executed through an Officer so appointed by this Hon'ble Court;
c) In the even, this Hon'ble Court comes to the conclusion that the specific performance cannot be decreed, only and only then in the alternative of specific performance, this Hon'ble Court may be pleased to grant decree of damages to the Plaintiffs No. 1 & 2 or 3, as the case may be, to the tune of Rs. 1,00,00,000/ being the difference between today's value and the agreed value / sale consideration, refund of Rs. 1,00,000/, interest accrued thereon and the other cost/expenses incurred by the Plaintiffs or such higher sum as this Hon'ble Court may deed fit and proper against the Defendants. The plaintiffs undertake to make Suit No. 9488/16 Page 6 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
deficiency in court fee if the higher sum is awarded in favour of the plaintiffs;
d) Restrain defendants by way of decree for Permanent Injunction from creating any third party interest in suit property.
e) award the cost of the suit in favour of the Plaintiffs and against the Defendants;
f) Pass any other or further order in favour of the Plaintiffs as this Hon'ble Court may deem fit and proper in the circumstances of the case."
Case of the Defendants
9. Defendants have pleaded that the present Suit is not maintainable as there was no concluded agreement between the parties. The concluded agreement was to be entered on payment of Rs. 13,20,000/. The document dated 01.02.1995 is merely a 'Memorandum of Understanding' which was terminated on 25.07.1995 due to the defaults committed by plaintiff no.1 and 2. Plaintiff no. 1 and 2 have concealed annexure to the 'Memorandum of Understanding' dated 01.02.1995 which contains details of the portion which was to be given vacant and portion which was under
the occupation of tenants. Plaintiff no.3 is not a necessary party to the present suit as there is no privity of contract between plaintiff no. 3 and the defendants.
10. It is also the case of defendants that plaintiff no.1 and 2 were never ready and willing to fulfill their obligations under the 'Memorandum of Understanding' dated 01.02.1995, as they failed Suit No. 9488/16 Page 7 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
to pay the sum of Rs.13,20,000/ within 15 days from the date of intimation regarding mutation of the suit property in the records of MCD. The mutation in the records of MCD was done in the presence of plaintiff no.1 and 2 on 23.06.1995. This fact was also intimated to plaintiffs no.1 and 2 by way of a legal notice dated 28.06.1995. Plaintiff no.1 and 2 failed to make the balance payment due to which 'Memorandum of Understanding' dated 01.02.1995 was cancelled vide notice dated 25.07.1995 and the sum of Rs.1,00,000/ paid by plaintiff no.1 and plaintiff no.2 under the said 'Memorandum of Understanding' was forfeited. Defendants denied having given Form 37I or copy of application for mutation in revenue records.
Rejoinder
11. In the replication, plaintiffs have denied having received any notices dated 28.06.1995 and 25.07.1995. It is also reiterated by the plaintiffs that mutation was to be applied by the defendants before Revenue Authorities and not before MCD which was only for the purpose of payment of tax and did not confer title in favour of any person. Plaintiffs also denied the annexures to the 'Agreement to Sell' dated 01.02.1995 stating that there were forged and fabricated. Plaintiffs further reiterated contents of their plaint in the replication.
Issues
12. On the basis of the pleadings following issues were framed vide Order dated 30.07.1998:
1. Whether there exists any concluded agreement Suit No. 9488/16 Page 8 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
to sell between the parties in respect of property No. 7, 8, 9, 9A & 9B, Krishna Nagar, Delhi?
2. Whether there is no privity of contract between plaintiff No.3 and defendants and suit is bad for misjoinder of parties?
3. Whether the defendants cancelled the agreement vide notice dated 25.07.1995? If so, its effect?
4. If issue No.3 is decided in affirmative, whether the suit for specific performance is not maintainable without seeking relief of declaration against cancellation dated 25.07.1995?
5. Whether the plaintiff has ever been ready and willing and is still ready and willing to perform his part of obligation?
6. Whether the defendants were ready and willing to perform their part of the contract as stated in Preliminary objection No.5 of the written statement? If so, its effect.
7. To what relief the plaintiff are entitled to?
Plaintiff's Evidence
13. Plaintiff no.1 and plaintiff no.3 entered in the witness box as PW1 and PW2.
14. Plaintiff no.1 reiterated contents of his pleadings in the evidence affidavit Ex.PW1/A. He relied upon the following documents in support of his case:
i) Ex.PW1/1: Initial Payment Receipt cum Suit No. 9488/16 Page 9 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
Agreement to Sell dated 01.02.1995 executed between plaintiffs no. 1 & 2 and defendants.
ii) Ex.PW1/2: Office copy of application dated nil addressed to the Tehsildar, Tehsil Mehrauli for mutation of the suit property signed by defendant no.2 (objected on the ground that it is photocopy).
iii) Ex.PW1/3: Photocopy of unattested affidavit dated nil signed by defendant no.2 (objected on the ground that it is photocopy).
iv) Ex.PW1/4: Copy of legal notice dated 19.01.1996 sent to plaintiff no. 1, 2 and defendants by the Advocate of plaintiff no. 3 (objected on the ground that it is photocopy).
v) Ex.PW1/5: Letter dated 30.01.1996 sent by the plaintiffs to the defendants enclosing copy of legal notice Ex.PW1/4.
vi) Ex.PW1/6: Letter dated 12.02.1996 sent on behalf of defendants to the Advocate of plaintiff no.3 in reply to notice dated 19.01.1996.
vii) Ex.PW1/7: Copy of letter dated 12.02.1996 sent on behalf of the defendants to plaintiff no. 1 & 2 in reply to their letter dated 30.01.1996.
viii) Ex.PW1/8: Reply dated 07.03.1996 sent on behalf of plaintiff no.1 and 2 to the Suit No. 9488/16 Page 10 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
Advocates of defendants in response to letter dated 12.02.1996.
ix) Ex.PW1/9: Public notice published in Hindustan Times dated 29.05.1996 on behalf of plaintiff no.3.
15. Following documents were additionally admitted by PW1 in his cross examination: Ex.PW1/D1 and Ex.PW1/D2: Mutation letter dated 23.06.1995 pertaining to mutation to the suit property in favour of defendants in the records of MCD.
16. During crossexamination, PW1 deposed that he was working in the business of real estate as a consultant and his income was only as much as were the expenses of his family. He owned a Janta Flat and had been not been filing Income Tax Returns since 1995 because his income was below taxable limits. He was able to save Rs.8,000/ to Rs.10,000/per annum out of his income from real estate business and ancestral agricultural land owned by him in Uttaranchal. He also deposed that he had no FDRs, and savings in his bank account was meager though he was unable to tell the exact amount of savings he had. He admitted that the revenue estate of village Humanyun Pur where Krishna Nagar was located, had been Urbanized about 20 years earlier, suit property was chargeable to House tax and Delhi Rent Control Act was also applicable over the suit property. He further deposed that Suit No. 9488/16 Page 11 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
Suit property was required to be mutated in the revenue records and denied the suggestion that no such mutation was required as property had been urbanized. He moreover deposed that he had invested in about 57 properties and got the mutation of one of those properties, located in Humayun Pur Village, bearing no B 7/20, S.J. Enclave, done in the revenue records around 1995 / 1996 but did not produce the documents to this effect despite a specific question in this regard, stating that there was no direction from the Court to produce the same. He also did not produce his bank account statement despite specific question to this effect under the same pretext. He deposed that he became aware of the mutation in the records of MCD only after filing of the present suit, but admitted that there weas a reference to mutation in the records of MCD in the notices dated 30.01.1996 and 25.03.1996, received by him from the defendants.
17. PW1 was questioned about the source of funds with which he intended to purchase the suit property. He deposed in this regard that he had done various transactions of properties worth Rs. 25 crores to Rs. 30 crores for which he used to arrange money from the prospective buyers. However, he never purchased any such property in his own name, and he dealt with the same being in the business of properties. He deposed that defendants evaded to perform their obligation under 'agreement to sell' dated 01.02.1995 as price of the suit property had risen.
18. PW1 also deposed that in June, 1995 he and plaintiff Suit No. 9488/16 Page 12 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
no. 3 had offered to pay Rs.13.20 lacs to the defendants in the office of their Advocate but the defendants demanded Rs.27 Lacs stating they were to pay some amount to their tenants. This offer of defendants was accepted by them with counter offer that property shall be mutated in revenue records and part possession of the property shall be delivered on payment, to which defendants did not agree. He denied the suggestion that he was not ready with the amount of Rs.13.20 Lacs. He admitted that there was no reference to any mutation to be done by revenue authorities in the agreement dated 01.02.1995 which is Ex.PW1/1. He denied receipt of letters dated 28.06.1995 and 25.07.1995. He also denied if there was any annexure containing details of tenants with Ex.PW1/1 and stated that they were assured by the defendants that vacant possession shall be handed over to them. He admitted the suggestion that he never visited the suit property. He denied the suggestion that agreement dated 01.05.1995 with plaintiff no.3 was a forged and fabricated document and stated that he did not show any proof regarding deposit of two cheques mentioned in agreement dated 01.05.1995, in his bank account, because he was not directed to produce the same. He admitted that his address on Ex.PW1/D3 and Ex.PW1/D4 was correct.
19. On being asked if plaintiff had arranged Rs.27 lacs in June, 1995 PW1 deposed that he went to the office of his advocate only for a meeting with defendants and to draft a tripartite agreement between plaintiff no.1 and 2, defendants and plaintiff no.3. He denied the suggestion that Rs.13.20 lacs were never Suit No. 9488/16 Page 13 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
offered to the defendants or that he never visited the office of Advocate to draft the agreement. He admitted that no further agreement in terms of clause 3 of Ex.PW1/1 was ever executed. He denied the suggestion that mutation with revenue department was never applied by the defendants. He admitted that he did not have sufficient amount with him to pay the sale consideration of the suit property but deposed that he had arranged for the same, as he had 23 potential buyers in hand, and they had left money to the tune of Rs.20 lacs with him, out of which Rs.15 lacs was in cheque and Rs. 5 lacs was in cash. When asked about these potential buyers, he said that one Lalit Madan had given him cheque of Rs. 15 lacs, details of which he did not remember, and cash in the sum of Rs. 5 lacs. He paid this amount as he was willing to purchase the suit property.
20. PW2 Sh. N.K. Aggarwal deposed by way of affidavit Ex.PW2/A and relied upon the following documents:
i) Ex.PW2/1, which is the agreement to sell between plaintiff no.1 and 2 on the one side and PW2 on the other side.
ii) Ex.PW1/1, which is the Receipt cum Agreement to Sell dated 01.02.1995.
iii) Ex.PW1/4, which is the notice dated 19.01.1996 sent by the plaintiff no.3 to plaintiff no.1 and 2 and the defendants.
iv) Ex.PW1/6 which is the reply dated 12.02.1996 to the notice dated 19.01.1996.
v) Ex.PW1/9, which is the Public Notice published in Hindustan Times at the behest of plaintiff no. 3.
Suit No. 9488/16 Page 14 of 41Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
21. In his crossexamination he was questioned about the identity of parties in the present suit. He named the plaintiffs but could not name the defendants. He stated that he had met the defendants somewhere in 1996 at their residence in Krishna Nagar and in the office of their lawyer to make the payment and get the deal finalised. He denied the suggestion that his affidavit of evidence was prepared by his lawyer and he had no personal knowledge about the facts of the case. He stated he was a property dealer and he had given advances to plaintiffs for the deals, in cheques, but could not tell details of cheques. He further deposed that he entered into a written agreement with plaintiffs which was supported by the defendants and they consented to the same as they had entertained him in their drawing room three times. He was however unable to tell the dates of such meetings. When asked to point out the written agreement, he identified Ex.PW1/1. He denied that Ex.PW2/A was a forged and fabricated document and he became a party to this suit in connivance with plaintiff no.1. When suggested that plaintiff no.1 did not perform his part of the obligation, he stated that time for performance had not arrived.
Defendant's Evidence
22. Defendant examined only one witness i.e. defendant no.2 as DW1. DW1 reiterated contents of his written statement by way of evidence affidavit which is Ex. DW1/A. He relied upon the following documents in support of the contents of his affidavit:
i) Ex.DW1/1:Copy of Annexure to Ex.PW1/1 containing list of tenants and details of possession of suit property (Objected on the Suit No. 9488/16 Page 15 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
ground that it is photocopy).
ii) Ex.DW1/2:Copy of legal notice dated 28.06.1995 sent by the defendants to plaintiff no. 1 and 2 (objected on the ground that it is photocopy).
iii) Ex.PW1/3 & Ex.DW1/4: Postal receipts (objected to mode of proof).
iv) Ex.DW1/5:Copy of legal notice dated 25.07.1995 sent by the defendants to the plaintiff no. 1 & 2 (objected on the ground that it is photocopy).
v) Ex.DW1/6 & Ex.DW1/7: Postal receipts (Objected to mode of proof).
vi) Ex.DW1/8:Already Ex.PW1/7.
vii) Ex.DW1/9:Reply dated 25.03.1996 to the letter dated 07.03.1996 sent to the plaintiffs no. 1 & 2 on behalf of defendants.
viii) Ex.PW1/D3 & Ex.PW1/D4: Postal receipts
23. In his cross examination, DW1 admitted that receipts Ex.DW1/3 and Ex.DW1/4 do not mention complete address where Ex.DW1/2 was sent, and AD card was not filed on record. He could not inform from which post office Ex.DW1/3 and Ex.DW1/4 was sent and who sent the same. He further admitted that stamp of post office on these two documents was not clear. Similar reply was given regarding Ex.DW1/6 and Ex.DW1/7. He denied the suggestion that these four documents were forged and fabricated. He admitted that property was not mutated in his favour when Ex.PW1/1 was executed. He further pointed out that Ex.PW1/1 mentioned about Annexure at point A to A1 (which refers to photocopies of chain of title documents in Urdu with English Translation) and no other annexure was mentioned there. He further stated that some tenants were, and still residing, in suit Suit No. 9488/16 Page 16 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
property, since execution of Ex.PW1/1 and denied that Ex.DW1/1 was a forged and fabricated document. He denied the suggestion that no notice of mutation was sent, or agreement was wrongly cancelled. He stated that plaintiff did not have money to pay balance sale consideration and denied the suggestion that plaintiff was ready and willing to perform his part of contact or had means to pay. He further denied the suggestion that defendants had no knowledge of mutation in favour of plaintiff.
Final Arguments
24. Final arguments were advanced orally while written submissions too were filed.
25. Ld. Counsel for the plaintiffs contended that Ex.PW1/1 is a concluded contract in the form of agreement to sell which the defendants were bound to perform. Defendants did not perform their part of obligation i.e. getting the legal mutation of the suit property done, due to which plaintiffs sent a legal notice to them. When the defendants still did not perform their part of obligation, plaintiff instituted the suit at the earliest possible. Hence, discretionary relief of the specific performance cannot be denied to the plaintiffs on account of lapse of time as every possible precautions were taken by them and equity also lies in their favour. Ld. Counsel further contended that it was specified in Ex.PW1/1 that plaintiff no.1 and 2 were entitled to assign their rights under Ex.PW1/1 to a third party. They assigned these rights to plaintiff no.3, who thus was a necessary party to the present Suit.
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26. Ld. Counsel for plaintiffs further contended that no notice of termination of Ex.PW1/1 was ever received by them and postal receipts are forged and fabricated. She contended that it was for the defendants to prove that the postal receipts were genuine once plaintiffs had taken the plea that those were forged. Ld. Counsel also contended that Clause 3 of Ex. PW1/1 was of no value as all the essentials of an agreement to sell were present in Ex.PW1/1 and it could be specifically performed.
27. In support of her contentions, Ld. Counsel for the plaintiff relied upon the following judgments:
i) Sobhag Narain Mathur Vs. Pragya Agarwal and Ors.: 227(2016) DLT 511.
ii) Harichand Mancharam Vs. Govind Luxman Gokhale, Since deceased: AIR 1923 PC 47. iii) Ram Baran Prosad and Anr. Vs. Ram Mohit Hazra and Anr.:AIR 1961 Cal. 152. iv) Umar Noor Mohammad Vs. Dayal Saran Darbari : AIR 1967 ALL. 253. v) UCO Bank Vs. Presiding Officer & Anr.: 1999 VAD (Delhi) 514. vi) D. Vinod Shivappa Vs. Nanda Belliappa:
decided on 25.05.2006 in Appeal (Crl.) 12551261 of 2004 by Hon'ble Apex Court.
v) R.C. Chandiok and Anr. Vs. Chuni Lal Suit No. 9488/16 Page 18 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
Sabharwal and Ors.: AIR 1971 SC 1238.
vi) Sh. Kanhaiyalal Motilal Talera Vs. Sarubai Narayan Mulik:2014 (2) ARB 610.
vii) Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha : decided on 05.10.2010 in civil appeal nos. 147148 of 2001 by Hon'ble Apex Court.
viii) Mst. Sugani Vs. Rameshwar Das and Anr.AIR 2006 SC 2172.
ix) India Tourism Development Corporation Vs. Anil Kumar Khanna and Ors.: decided on 22.04.2016 in RFA(OS) 124/2015, C.M. Appl. 27851/2015 by Hon'ble High Court of Delhi.
x) Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Ors.:AIR 1974 SC 471.
xi) Ranjana Nagpal Alias Ranjana Malik Vs. Devi Ram and Ors: AIR 2002 HP 166.
28. Ld. Counsel for the defendants argued that court cannot overlook clause 3 of Ex.PW1/1 which recites in clear terms that agreement to sell shall be executed after payment of Rs.13,20,000/. Ld. Counsel argued that Ex.PW1/1 is merely a receipt of payment of Rs.1,00,000/ and recites further steps to be taken by each of the party for execution of an agreement to sell and consequently the sale deed. Hence, Ex.PW1/1 is not a concluded contact and cannot be specifically enforced. Ld. Counsel further argued that he had proved the dispatch of termination notice by proving postal receipts on record and therefore a presumption Suit No. 9488/16 Page 19 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
regarding delivery of the notice arose in favour of defendants because the notice was not received back as unserved and was sent at the correct address. Onus was thus upon the plaintiff to rebut this presumption by leading cogent and reliable evidence. He contended that the termination having been proved, plaintiffs were not entitled to any relief. In support of his contentions, Ld. Counsel for the defendants relied upon the following judgments:
i) Sobhag Narain Mathur Vs. Pragya Agrawal and Ors.:227(2016) DLT 511.
ii) Shri Sushil Jain Vs. Shri Meharban Singh & Ors.:2012 (131) DRJ 421.
iii) Jinesh Kumar Jain Vs. Iris Paintal & Ors.:
ILR(2012) V Delhi 678.
iv) Laxmi Devi Vs. Mahavir Singh: 2012 LawSuit (Delhi) 1086.
v) Mrs. Saradamani Kandappan Vs. Mrs. S.
Rajalakshmi & Ors.: AIR 2011 SC 3234.
vi) G. Jayashree Vs. Bhagwan Das: AIR 2009 SC
1749.
vii) N.P. Thirugnanam Vs. Dr. R.Jagram Mohan Rao & Ors.:(1995) 5 SCC 115.
viii) M/s Sky Land International Pvt. Ltd. Vs. Kavita P. Lalwani: RFA No. 697/2012 (Delhi High Court) decided on 25.05.2012.
viii) J.P. Builders Vs. A. Ramadas Rao: (2011) 1 SCC
429.
ix) Balakishan Vs. Bhagwan Das: AIR 2008 SC Suit No. 9488/16 Page 20 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
1786.
x) M.K. Watts Vs. Usha Sharma: AIR 2004 P&H
295.
xi) Kailash Nath Associates Vs. Delhi Development
Authority: 2015 I AD (S.C.) 409.
xii) R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Anr.: AIR 2003 SC 4548.
29. I have considered rival contentions, record has been perused accordingly. In view of the pleadings, evidence on record and considering the law, my issue wise findings are as under: Issue no.1: Whether there exists any concluded agreement to sell between the parties in respect of property No. 7, 8, 9, 9A & 9B, Krishna Nagar, Delhi?
30. It is case of plaintiff that Ex.PW1/1 is an agreement to sell while case of the defendants is that an agreement to sell was to be executed between the parties after payment of Rs.13,20,000/ by the plaintiffs. Ex.PW1/1 is an admitted document. It has been titled as "Initial Payment Receipt cum Agreement to Sell". However, clause No. 3 of Ex.PW1/1 reads as under: "After proper / legal mutation of the property in the names of the owners within 15 days from the intimation with mutation letter Rs.13,20,000/ (Rupees Thirteen lacs Twenty thousand only) shall be Suit No. 9488/16 Page 21 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
paid by the Purchaser to the Owners on signing of Proper, Legally valid agreement to sell in the name of intending purchaser or their nominee, assignee etc."
31. It is clear on reading of clause 3 of Ex.PW1/1 that parties intended to execute an agreement to sell after payment of Rs.13,20,000/. This amount was to be paid after legal mutation of the suit property had been done by the defendants and intimated with mutation letter to the plaintiffs. It is the settled law that nomenclature of a document is immaterial and contents should be read to decide its nature. It is also the settled principle of law that court shall not interfere and substitute its own interpretation to such a clause of the agreement which was valid and unambiguous. Clause 3 of Ex.PW1/1 is unambiguous as it clearly reflects intentions of the parties to execute an agreement to sell on receipt of Rs.13,20,000/.
32. An 'agreement to sell' requires four essentials to be called so i.e. identification of the property to be sold, a seller, a buyer and the consideration amount. In Ex.PW1/1 property has been described clearly and specifically, and so are the sellers as well as consideration amount. Plaintiffs no. 1 and 2 have been shown as intended buyers in Ex.PW1/1, however clause 3 states that agreement to sell was to be executed either with the plaintiffs or with their nominee/assignee. What was the intention behind such provision can be easily gathered from the cross examination of Plaintiff no.1 / PW1.
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33. It was brought on record during the cross examination of PW1 that he is a property dealer involved in sale and purchase of immovable properties; he was not filing income tax returns during the year 1995 and has not filed any such return after 1995; his annual saving was only about Rs.8,000/ to Rs.10,000/; his income was below taxable limits; and he generally had Rs.25,000/ to Rs.30,000/ at any given point of time, as cash in hand.
34. Sale consideration as per Ex.PW1/1 was about Rs.1.42 Crores. PW1 revealed in his cross examination that he would have arranged the sale consideration for buying the suit property by arranging a buyer. It is thus clear from the testimony of PW1 that he was not the ultimate buyer of the suit property, and had paid only a nominal advance of Rs.1,00,000/. It is also clear that if deal was through PW1 would have arranged a buyer who would have paid the sum of Rs.13,20,000/ for execution of agreement to sell in his favour as nominee / assignee of plaintiffs no. 1 & 2.
35. Plaintiffs have attempted to set up a case that PW2/Plaintiff no.3 was the ultimate buyer, which fact is belied from their own testimonies. PW1 deposed in his cross examination that buyer was to be one Lalit Madan and PW2 deposed that he too was a property dealer. Be that as it may, it is amply clear that buyer of the suit property was unidentified at the time of execution of Ex.PW1/1. This is also one of the reasons why execution of proper agreement to sell was deferred, apart from the reason that property did not stand mutated in favour of defendants on the date of Suit No. 9488/16 Page 23 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
execution of Ex.PW1/1, admittedly.
36. In view above, Ex.PW1/1 cannot be called a concluded agreement to sell for two reasons. First, parties to Ex.PW1/1 never intended to execute agreement to sell while signing Ex.PW1/1 as reflected in clause 3 of this agreement. Second, buyer in Ex.PW1/1 is not identifiable and thus Ex.PW1/1 does not contain all the essentials of sale. Ex.PW1/1 is thus only a contract for executing agreement to sale. Issue no. 1 is decided accordingly, in favour of the defendants and against the plaintiff.
Issue no.2: Whether there is no privity of contract between plaintiff No.3 and defendants and suit is bad for misjoinder of parties?
37. It is the case of plaintiffs that vide Ex.PW2/1 plaintiff no. 1 and 2 assigned their rights under the agreement Ex.PW1/1 to the plaintiff no.3. Ex. PW2/1 is an agreement to sell executed between plaintiffs no. 1 & 2, and plaintiff no. 3 qua the suit property, based upon Ex.PW1/1. A reading of Ex.PW2/1 reflects that the plaintiff no.1 and 2 not only assigned their right to demand execution of agreement to sell from the defendants, but their liability to pay the consideration amount as well. Hon'ble Apex Court in Khardah Company Limited vs. Raymon & Co. Pvt. Ltd. AIR 1962 SC 1810 held that as a rule, obligations under a contract cannot be assigned except with the consent of the promisee. Where such a consent is obtained, it will be considered as deemed novation, resulting in the substitution of liabilities and obligations Suit No. 9488/16 Page 24 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
to the assignee. However, rights under a contract are assignable unless the contract is personal in its nature and rights are incapable of assignment either under the law or under an agreement between the parties.
38. Ex. PW1/1 provides for assignment of right to demand execution of agreement to sell on behalf of Plaintiff no. 1 and 2, however there is nothing in the said document that reflects consent of the defendants for assignment of obligations. Plaintiff no.3, to whom rights and liabilities under Ex.PW1/1 were assigned, was examined as PW2 and he deposed that Ex.PW2/1 was executed with the consent of defendants. He was questioned on the identity of defendants to which he could not answer satisfactorily. He could not disclose names of the defendants or dates when he met them, or when defendants accorded their consent to Ex.PW2/1. This is not even the case of plaintiffs in their pleadings. The statement of plaintiff no.3, regarding consent of defendants to Ex.PW2/1, is thus completely incredible, and what therefore falls is that Ex.PW2/1 is an independent contract between plaintiffs no. 1 & 2, and plaintiff no.3. Defendants are neither party to this, nor ever acknowledged their liability under Ex.PW1/1 to the plaintiff no.3.
39. Ld. Counsel for the plaintiff argued that Section 40 of the Indian Contract Act, 1872 permits the performance of contract by any person other than promisor himself, except where the contract reflects that the parties intended to have it performed by the promisor himself. She argued that a contract, in the absence of Suit No. 9488/16 Page 25 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
contrary intentions, express or implied, will be enforceable by and against the parties and/or their heirs, legal representatives including assignees or transferees. A person agreeing to purchase a property is not bound to purchase it himself and he may arrange for the purchase of the property by some other person as his nominee on the terms of the agreement entered into by him. In a contract of this nature no considerations of skill, knowledge or other things peculiar to the person stipulating to purchase are involved and the personality of the individual who fulfills the obligation to purchase the property is altogether irrelevant. It is open to the person who has agreed to purchase the property to employ a competent person to purchase it.
40. It shall be relevant to refer to Section 40 of the Indian Contract Act, 1872 before dealing with this argument: "40. Person by whom promise is to be performed - If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it."
41. It shall also be relevant to refer to Sec. 2(d) of the Indian Contract Act, 1872, which defines 'Consideration': "2. Interpretationclause. In this Act the Suit No. 9488/16 Page 26 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
following words and expressions are used in the following senses, unless a contrary intention appears from the context: ......... (d) When, at the desire of the promisor, the promissee or any other person has done or abstained from doing, or does not abstains from doing, a promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise."
42. The principle laid down in Section 40 of the Indian Contract Act, 1872 stems from Sec. 2(d) of the said Act, which provides that consideration for the contract can be given by promisee or any other person. Performance of promise by the promisor is the consideration for the promisee. This consideration can flow from the Promisor himself, or by any other person employed by the promiser, except where intention is otherwise. Hence, Indian Contract Act, 1872 does not recognize the Rule of Privity of Consideration, however there is no provision in the Indian Contract Act, 1872 that abdicates the rule of Privity of Contract or principle of locus standi. Sec 40 pertains to performance, and not enforcement, of promise. Performance can be by any person, but enforcement will be by the promisor himself. This in essence is the rule of Privity of Contract. Section 41 of the Indian Contract Act, 1872 further provides that 'when a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor'. Hence, promisor shall be discharged only when the promisee accepts performance from any other person employed by the promisor. This acceptance may be by Suit No. 9488/16 Page 27 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
prior/subsequent express consent or by conduct.
43. Plaintiffs have not been able to prove on record that the defendants had consented to the assignment of liabilities under Ex. PW1/1 to a third party i.e. Plaintiff no. 3. Rights could have been assigned to plaintiff no.3, however, plaintiff no.3, being assignee, could enforce such rights only after discharge of their obligation by plaintiff no.1 and 2 under Ex.PW1/1. The obligation of plaintiff no.1 and 2 was to pay the sum of Rs. 13,20,000/ before they could demand execution of agreement to sell. This obligation could have been performed by plaintiff no.1 & 2, or by plaintiff no.3 on behalf of plaintiff no.1 & 2 if accepted by the defendants. Plaintiff no. 3, being assignee of rights under Ex. PW1/1, was entitled to enforce his rights only upon fulfillment of obligations by the plaintiff no.1 and 2 or by plaintiff no. 3 on behalf of plaintiff no. 1 & 2 subject to its acceptance by defendants, which admittedly was not done before instituting the present suit. Hence, no right ever accrued in favour of the plaintiff no.3 to demand enforcement of Ex.PW1/1 in his own rights as assignee.
44. In view thereof, plaintiff no. 3 was improperly joined in the present suit as a party, in my considered opinion. However, the Suit is not bad for such misjoinder in view of order I Rule 9 CPC which provides that 'no suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:". Issue no. 2 is accordingly Suit No. 9488/16 Page 28 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
decided in favour of the defendants and against the plaintiffs.
Issue no. 3: Whether the defendants cancelled the agreement vide notice dated 25.07.1995? If so, its effect?
AND Issue No.4: If issue No.3 is decided in affirmative, whether the suit for specific performance is not maintainable without seeking relief of declaration against cancellation dated 25.07.1995?
45. Defendants averred that they sent the notice Ex. DW1/5 through their counsel on 25.07.2015, terminating the agreement Ex.PW1/1. They relied upon two postal receipts Ex. DW1/6 and Ex.DW1/7 to prove dispatch of notice. However, when DW1 was crossexamined, he was unable to disclose who posted the termination notice and from which post office it was posted. He admitted that the stamps over Ex.PW1/6 and Ex.PW1/7 were illegible and it was difficult to ascertain name of the post office from where the termination notice was posted.
46. Ld. Defence Counsel contended that the postal receipts having been proved, a presumption that termination notice was duly delivered, arose in favour of defendants and against the plaintiffs. Ld. Counsel for plaintiffs contended that defendants did not discharge their onus to prove the postal receipts, as it was not proved that postal receipts were not contrived. Ld. Defence Counsel Suit No. 9488/16 Page 29 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
in rebuttal argued that onus was on the plaintiffs to prove that postal receipts were contrived.
47. The contentions of Ld. Defence Counsel are fallacious in my considered opinion. A presumption of due delivery would arise in favour of the sender if it was proved that the letter was correctly addressed and duly dispatched.
48. Address on the postal receipts was not admitted by the plaintiffs stating that it only mentioned "Arjun Nagar" without further details, that there were two Arjun Nagar in Delhi, and that it was not clear from the postal receipts which Arjun Nagar the post was dispatched to because PIN CODE was not reflected therein. DW1 admitted in his cross examination that there were two Arjun Nagar in Delhi. Hence, onus that the notice Ex. DW1/5 was correctly addressed, was not discharged by the defendants on the balance of probabilities.
49. The second fact of 'due dispatch' also was not proved by the defendants as they were unable to disclose from which post office the notice was dispatched. This was especially necessary because plaintiffs alleged that postal receipts were forged and fabricated, and Court & Plaintiffs were unable to ascertain from receipts, about the post office, as the receipts were illegible. The fact regarding location of post office from where Ex. DW1/5 was dispatched, being in special knowledge of defendants, it was their onus to prove the same as per Section 106 of Indian Evidence Act.
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Once defendants themselves failed to disclose and prove the facts essential to raise presumption of due delivery, onus to prove that postal receipts were forged and fabricated, did not shift to the plaintiffs.
50. Cancellation of agreement Ex. PW1/1 having not been proved, effect was that Ex. PW1/1 was a valid and subsisting agreement on the date of filing of the Suit. Issue no. 3 and 4 are accordingly decided in favour of the plaintiffs and against the defendants.
Issue no. 5: Whether the plaintiff has ever been ready and wiling and is still ready and willing to perform his part of obligation?
AND Issue No. 6: Whether the defendants were ready and willing to perform their part of the contract as stated in Preliminary Objection No.5 of the written statement? If so, its effect?
51. Plaintiffs are seeking the relief of Specific Performance in the instant Suit. Section 16 (c) of the Specific Relief Act, 1963 provides that "Specific Performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has 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 terms the performance of which has been prevented or Suit No. 9488/16 Page 31 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
waived by the defendant". It was thus necessary for the plaintiffs to aver and prove that they were ready and willing to perform their part of the obligations under the agreement Ex.PW1/1. Similarly, for defendants to succeed in their defence of forfeiture of the advance sum of Rs. 1 Lac, they were also to prove that they were not in breach of agreement Ex. PW1/1 and were ready and willing to perform their obligations, as required per Section 51 of the Contract Act, 1872 which provides that "when a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise".
52. The obligation laid on defendants was to get mutation of the suit property done in their favour, while plaintiffs were to pay consideration in the sum of Rs. 13.20 lacs with in 15 days from the date of intimation of mutation with mutation letter. Defendants averred and plaintiffs admitted that the suit property was mutated in favour of defendants in the records of MCD. This was the sufficient compliance of Ex.PW1/1 as per defendants, while plaintiffs averred that mutation was also to be carried out in the records of Revenue Authorities which was not done deliberately by the defendants, and the fact of mutation in the records of MCD was not communicated to them. Hence, there never arose an occasion to comply with the term regarding payment of Rs. 13,20,000/. Ld. Counsel for the plaintiffs referred to clause 3 of Ex. PW1/1 (reproduced in para no. 16 above) and argued that the said clause talked about legal mutation that means such mutation by virtue of Suit No. 9488/16 Page 32 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
which title shall devolve over the defendants. She further argued that mutation in the records of MCD was only for the purpose of payment of house tax and did not confer any title over the person in whose name mutation was recorded.
53. It is the case of the plaintiffs that the defendants represented to them somewhere in July, 1995 that they had applied for mutation to Revenue Authorities on 20.07.1995, and also handed over a copy of the application and affidavit, which are Ex. PW 1/2 and Ex. PW1/3 respectively. Defendants denied this fact, however, no question was put to PW1 regarding genuinity of Ex.PW1/2 and Ex.PW1/3, no suggestion was given to PW1 to the effect that Ex. PW1/2 and Ex.PW1/3 were forged and fabricated documents, and no evidence was led to prove that Ex.PW1/2 and Ex. PW1/3 were forged and fabricated. Ld. Defence Counsel raised objections over the exhibiting of Ex. PW1/2 and Ex. PW1/3 stating that these were photocopies, but record reveals that originally signed office copy of Ex. PW1/2 was produced by the plaintiffs. The objection regarding mode of proof of Ex.PW1/2 is thus not sustainable. However, Ex. PW1/3 cannot be read as it is a photocopy and original was neither produced by the defendants nor they proved any of the conditions laid down in Section 65 of the Indian Evidence Act, 1882 that provides for cases when secondary evidence of the contents of a document can be led. This suggests that the document Ex. PW1/2 which is an application for mutation of revenue records in favour of defendants, signed by defendant no.2, is a genuine document. Defendants did not Suit No. 9488/16 Page 33 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
produce any witness to prove that mutation in the record of revenue authorities was not required. No record of revenue authorities was summoned to show that mutation was done already. No explanation came forth why Ex.PW1/2 was prepared and signed by defendant no. 2 when there was no need to get the revenue records mutated.
54. Defendants have also averred that only the record of MCD was to be mutated which was done in the presence of plaintiffs. In their replication, plaintiffs did not deny that they were present in the office of MCD when record was mutated on 23.06.1995. No suggestions were given to the defendant no.2 in this regard, and crossexamination of defendant no.2/DW1 is also silent on this aspect. Hence, knowledge of plaintiffs qua mutation in the records of MCD is proved. Defendants relied upon Ex. DW1/2 which is the copy of intimation letter dated 28.06.1995, and Ex. DW1/3 & Ex. DW1/4 that are the postal receipts, to prove that written intimation regarding mutation in the records of MCD was given to the plaintiffs. However, defendants have failed to prove that Ex. DW1/2 was duly dispatched, for the same reasons as discussed with respect to Ex. DW1/5 in para number 4849 above. However, the fact that plaintiffs were aware about the mutation in the records of MCD was sufficiently proved for reasons mentioned above in this paragraph.
55. The conclusion that comes out of the discussion above is that the defendants either did not apply, or did not follow their Suit No. 9488/16 Page 34 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
application, for mutation in the records of revenue authorities which obligation was to be performed by them under Ex. PW1/1 before execution of agreement to sell. Hence, defendants were not ready and willing to perform their part of obligation under the agreement. Effect of this conclusion is that the defendants were not entitled to enforce performance of Ex. DW1/1, neither they could have retained the advance money paid to them by the plaintiffs.
56. Plaintiffs also were required to prove their readiness and willingness before they could be held entitled for the relief of Specific Performance and Compensation for breach of contract in addition or in alternative. Distinction between 'readiness' and 'willingness' is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. In a Suit for Specific Performance, the plaintiff must approach the Court with clean hands. Right from the date of execution till the date of decree he must prove that he is ready and has always been willing to perform his obligations under the contract.
57. Plaintiff no.1/PW1 admitted, in sufficient terms, during the recording of his crossexamination that he had no capacity to pay the sale consideration of the suit property. He was a property dealer having income only sufficient to meet his family expenses and his savings were meager. He never purchased any property for consideration running into Crores of Rupees. His income was below taxable limits. Plaintiff no.2 never appeared in the witness box and his capacity to pay the consideration of Rs. 1.42 Crores was not Suit No. 9488/16 Page 35 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
proved either. Plaintiff no.3 (held to be wrongly impleaded) sought to prove his financial capacity to pay, by placing on record the balance sheets reflecting income of himself, his wife and son as on 01.03.1996, however, his application under Order VII Rule 14(3) CPC for placing on record these documents at the stage of final arguments was dismissed by my Ld. Predecessor vide order dated 16.10.2017.
58. PW1 deposed during the recording of his testimony that he would have arranged the consideration amount by finding a prospective buyer as he was in the business of property dealing. When questioned further on this, PW1 stated that he had a prospective buyer, namely Lalit Madan, who had given consideration amount of Rs. 20 Lacs, out of which Rs. 5 Lacs was given in cash and Rs. 15 Lacs was given in cheque. He deposed that he returned this money to the prospective buyer because defendants did not get the revenue records mutated. He did not explain why money was taken from Lalit Madan when according to his own case, he had assigned his rights under Ex.PW1/1 to plaintiff no.3 on 01.05.1995 itself, that is much before the period when dispute arose between the parties. This suggests that either plaintiff no.3 was also not capable of performing obligation on behalf of plaintiff no.1 and 2 under the agreement Ex. PW1/1 or plaintiffs introduced him later on in order to strengthen their case. This inference is strengthened from the revelation that Plaintiff no.3 also was a property dealer who frequently entered in transactions pertaining to sale and purchase of immovable Suit No. 9488/16 Page 36 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
property. PW1 further did not prove that he had consideration ready in the form of cheque or cash, as said Lalit Madan was never called in the witness box to prove his capacity to pay on behalf of plaintiff no.1 and 2.
59. The conclusion of above discussion is that plaintiff too was not ready and willing to perform his obligation under the agreement Ex.PW1/1.
60. Issue no. 5 is accordingly decided against the plaintiffs and issue no.6 is decided against the defendants.
Issue No.6: Relief
61. Plaintiff has sought the relief of specific performance of agreement Ex. PW1/1, damages to the tune of Rs. 1 Crore in alternative, refund of Rs. 1 Lakh with interest and permanent injunction directing the defendants to not create any third party interest in the suit property.
62. It is the settled law that relief of specific performance is a discretionary relief. This discretion as per Section 20(3) of Specific Relief Act, 1963, may properly be exercised in such cases where plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. It is also the legal position emerging from the case laws relied upon by Ld. Counsel for defendants that 'substantial act' would mean and Suit No. 9488/16 Page 37 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
include payment of substantial amount of money like 50% of the consideration amount or where plaintiff is in possession of the suit property. Payment of 5% or 10% of amount cannot be said substantial.
63. Defendants relied upon Ex. DW1/1 to state that the suit property was under the possession of some tenants who were enjoying protection of Delhi Rent Control Act, 1958. It is the case of defendants that this document was executed with Ex PW1/1. The document was denied by the plaintiffs. Defendants did not produce original of Ex. DW1/1 and hence this document was not proved as per Indian Evidence Act, 1872. Be that as it may, plaintiff no.1/PW1 admitted in his crossexamination that a portion of the suit property was occupied by the tenants, and Delhi Rent Control Act, 1958 was applicable over the suit property. Ex. PW1/1, specific performance of which has been sought in this case, also provides that defendants were to deliver vacant possession of the suit property to the plaintiffs. Similarly, other things to be done as per Ex. PW1/1, before execution of sale deed could be claimed, were applying for mutations, payment of Rs. 13,20,000/, execution of agreement to sell, and payment of entire remaining consideration.
64. It is thus clear on a reading of Ex.PW1/1 that it laid down many reciprocal obligations to be performed by respective parties before execution of sale deed in favour of the plaintiffs or their nominee/assignee. The agreement is therefore of such nature which runs into numerous details, and the performance of which Suit No. 9488/16 Page 38 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
involves the performance of a continuous duty which the Court cannot supervise. Defendants will be required to evict the tenants as per Delhi Rent Control Act, 1958, and get the revenue records mutated, while plaintiffs will have to pay almost the entire sale consideration. The filing of eviction petition and application for mutation are such acts which involve other independent authorities who would decide the petition/application as per law/rules applicable, and the petition/application may not succeed, in which case the relief of specific performance shall be incapable of execution.
65. Section 14(1) (b) and Section 14 (1) (d) specifically bar specific performance of such a contract which runs into numerous details or performance of which involves the performance of a continuous duty which the court cannot supervise. The relevant section reads as under: "14. Contracts not specifically enforceable. (1) The following contracts cannot be specifically enforced, namely:
(a) .........
(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;
(c) ..........
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(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise."
66. The specific performance of Ex.PW1/1 cannot be granted for aforesaid reasons as also for the reason that the plaintiff has not been able to prove his "readiness" and "willingness" to perform his obligation under the agreement. Plaintiff is not entitled for damages too, for the reason that he himself was not ready and willing to perform his part of agreement and hence, defendants too were under no obligation to perform their part of agreement. Injunction also cannot be granted in favour of plaintiffs for the same reasons, as no rights accrued to them qua the suit property.
67. Plaintiffs have further sought refund of Rs. 1 Lac with interest. It has been held already that defendants too were not ready and willing to perform their part of agreement Ex. PW1/1, and were not able to prove termination notice dated 25.07.1995. Defendants thus cannot complain of any breach by the plaintiffs, and cannot retain the amount paid to them for performance of the agreement Ex. PW1/1. Hence, plaintiffs are entitled to the refund of Rs. 1 Lakh with interest.
68. Accordingly the suit is partly decreed in favour of the plaintiff no.1 and plaintiff no.2 and against defendants, who shall be liable jointly and severally, in the sum of Rs.1,00,000/ along with pendente lite and future interest @ 12% per annum. Parties Suit No. 9488/16 Page 40 of 41 Jitender Singh and Ors. Vs. Pritam Kaur and Ors.
are left to bear their own costs.
69. Decree sheet be prepared accordingly.
70. File be consigned to Record Room.
Announced in the open (JYOTI KLER)
Court on 30.11.2017 ADJ05 (SOUTH DISTRICT)
(Judgment contains 41 pages) SAKET COURTS, NEW DELHI
Suit No. 9488/16 Page 41 of 41