Delhi District Court
Sh. Jugal Rakesh Kumar vs Sh. Baldev Raj Bajaj on 23 December, 2010
IN THE COURT OF SHRI B.R.KEDIA
ADDL.DISTRICT JUDGE CENTRAL10, DELHI
Suit No. 461/05
Unique Case ID No. 02401C0988262005
Sh. Jugal Rakesh Kumar
S/o Sh.Jugal Kishore Arora
R/o 1/7730, Gali No.1,
East Gorakh Park,
Shahdara, Delhi
.....PLAINTIFF
Versus
Sh. Baldev Raj Bajaj
S/o Sh.Mool Chand Bajaj
R/o 1/7769, Gali No.1,
East Gorakh Park,
Shahdara, Delhi
.....DEFENDANT
DATE OF INSTITUTION : 27.10.2005
DATE OF ARGUMENTS : 13.12.2010
DATE OF DECISION : 23.12.2010
JUDGMENT
1. By virtue of this judgment, I shall dispose of the instant suit for specific performance and in alternative for damages as filed by the plaintiff as against the defendant.
Suit No.461/05 Page No.1/19
2. The precise case of the plaintiff as per the present suit is as under:
That on 08.07.2005 the defendant had entered into an Agreement to sell with the plaintiff for the sale of the property No. 1/7769, Gali No. 1, East Gorakh Park, Shahdara, Delhi (to be referred as Suit Property) for total sale consideration of Rs. 12,55,000/ and that out of total sale consideration of Rs. 12,55,000/, the plaintiff has paid a sum of Rs. 1,50,000/ as earnest money/bayana. Out of the said Rs. 1,50,000/ Rs. 50,000/ has been paid in cash and Rs. 1,00,000/ was paid through cheque bearing no. 603040. The payment of Rs. 1,50,000/ has been realized by the defendant from the plaintiff and an Agreement to this effect was also got executed between the parties. The plaintiff further added that as per the Agreement dated 08.07.2005 the balance sale consideration of Rs. 11,05,000/ was agreed to be paid on or before 20th October, 2005. The plaintiff further added that as per the said Agreement, it was agreed between the parties that the defendant would clear the electricity, water, house tax etc. upto date and hand over the peaceful vacant possession with all rights on or before 20.10.2005 after receiving the balance amount of Rs. 11,05,000/.
3. The plaintiff further added that on 12.10.2005, the plaintiff Suit No.461/05 Page No.2/19 came to know that the intention of the defendant have become malafide and he was again intending to sell the Suit Property to some other person at the higher rate. The plaintiff further added that he immediately approached the defendant on the evening of 12.10.2005 and asked about the execution of the documents on 20.10.2005 on which the defendant flatly refused to execute any sale document in favour of the plaintiff and demanded much more amount then it had been agreed under the Agreement dated 08.07.2005. He further threatened that in case the amount so demanded by the defendant was not paid to him, he would sell the Suit Property to some other buyer. The plaintiff further added that aggrieved by the demand and threatening of the defendant, the plaintiff on 13.10.2005 got issued a Legal Notice through his Counsel by Regd.AD and UPC to the defendant thereby calling upon him that he has arranged the balance sum of Rs. 11,05,000/ and further called upon as to when and where the balance sale consideration would be paid for the completion of the deal under the terms and condition of the Agreement dated 08.07.2005. The plaintiff further added that inspite of the service of the said Legal Notice the defendant has failed to send reply to the said Legal Notice or to execute the necessary sale documents in respect of the Suit Property in his favour and defendant also did not turn up, to Suit No.461/05 Page No.3/19 the office of Sub Registrar on 20.10.2005.
4. Hence, this suit has been filed by the plaintiff against the defendant for passing a decree of specific performance and in alternative for damages in favour of the plaintiff and against the defendant.
5. The defendant has been contesting the suit and filed Written Statement thereby denying the allegations of the plaintiff. The defendant contended that the plaintiff has filed a false and frivolous suit and has suppressed material facts and further contended that the plaintiff has no legal right, title or interest over the suit premises. Therefore the present suit is liable to be dismissed. The defendant further contended that the present suit is not maintainable since the plaintiff has failed to fulfill his part of obligations as mentioned in the Agreement dated 08.07.2005 as the plaintiff refused to pay the balance amount to the defendant for getting the sale deed registered. Hence, the plaintiff has no right, title or interest over the suit property. The defendant further contended that he was always ready and willing to perform its part of the Agreement dated 08.07.2005. It is further contended that the plaintiff himself refused to perform his part of Agreement and played a fraud upon the defendant by extending the threats to the defendant and his sons, hence this suit deserves Suit No.461/05 Page No.4/19 dismissal.
6. The defendant further contended that at the time of Agreement it was agreed that on or before 20th October, 2005 the plaintiff would pay the balance amount to the defendant but before 20.10.2005 the plaintiff told to the defendant's son that he could not arrange the money for getting the sale deed registered in his name, so thereafter by giving this reason he flatly refused to buy the property and also threatened the defendant and his sons for giving back the amount of earnest money (Bayana) otherwise he would be implicated in a false case. The plaintiff has sent a false and baseless Legal Notice dated 13.10.2005 to the defendant without any cause of action because the intention of the defendant was neither malafide nor ever intended to sale the property to anyone except the plaintiff, hence the suit is liable to be dismissed. The defendant further contended that he had given the reply to the said Legal Notice dated 13.10.2005 vide reply dated 17.10.2005 by UPC and the defendant has stated therein that he would be available at the office of SubRegistrarIV for getting the Sale Deed registered and also stated in his reply the reason whereby the plaintiff has told the son of the defendant that he has no money for getting the sale deed and requested that the time of the sale deed be extended for two months otherwise the earnest money (Bayana) to be Suit No.461/05 Page No.5/19 returned back. On that promise the defendant alongwith his son, Sh. D.K.Bajaj, was present before the office of the SubRegistrarIV, Delhi and then the SubRegistrar IV issued a receipt bearing no. 208 and Sr. No. 142 dated 20.10.2005 to Sh. D.K.Bajaj son of the defendant and the defendant along with his son waited for the plaintiff till 3 p.m but the plaintiff or any of his representative has not come at the office of the SubRegistrarIV, Delhi. Thus the defendant in his WS has prayed for dismissal of the suit.
7. In response to the WS of the defendant, plaintiff filed Replication wherein denying the allegation of WS and reiterating the contents of the plaint.
8. On the pleadings of the parties, vide order dated 08.11.2006, following issues were framed:
1) Whether there is no cause of action in favour of the plaintiff as per PO No. 7 of WS ? OPD
2) Whether the plaintiff is entitled for decree of specific performance of agreement to sell dated 08.07.2005 ? OPP
3) Whether the plaintiff is entitled to a decree of Rs.
3,50,000/ from the defendant ? OPP
4) Relief.
9. From the perusal of the record, it is reflected that the Suit No.461/05 Page No.6/19 plaintiff in support of his case had got examined himself as PW1, his father Sh.Jugal Kishore Arora as PW2 and Sh.Brij Mohan who was the Mediator as PW3 and thereafter, PE was closed. Defendant in support of his case got examined himself as DW1, his son Sh.D.K.Bajaj as DW2 and Sh.Sanjay Makkar as DW3 and thereafter, DE was closed.
10. I have heard Final Arguments as addressed by Sh.Ravi Chawla Adv. Ld. Counsel for the plaintiff and Sh.R.K.Chandiwala Adv. Ld. Counsel for the defendant and perused the relevant record.
11. Since Issue No.1 and Issue No.2 are interconnected, I will handle both issues together.
ISSUE NO.1 reads as under: "Whether there is no cause of action in favour of the plaintiff as per PO No. 7 of WS ? OPD"
ISSUE NO. 2 reads as under: "Whether the plaintiff is entitled for decree of specific performance of agreement to sell dated 08.07.2005 ? OPP"
It is submitted by Ld. Counsel for the plaintiff that the defendant had entered into an Agreement to Sell concerning the Suit Property in favour of the plaintiff by executing the Agreement to Sell dated 08.7.2005 Ex.PW1/1 for total sale consideration of Rs. Suit No.461/05 Page No.7/19 12,55,000/ out of which advance sum of Rs.1,50,000/ (Rs.50,000/ in cash and Rs. 1 Lac vide Cheque No.603040 dated 08.7.2005 and said cheque was duly encashed) was received by the defendant from the plaintiff at the time of execution of said Agreement to Sell and balance amount was to be paid by the plaintiff to the defendant by 20.10.2005 at the time of registration of the Sale Deed before the concerned Sub Registrar. It is further submitted by Ld. Counsel for the plaintiff that the defendant had agreed to clear the electricity, water and house tax bills and hand over the possession of the Suit Property by 20.10.2005 to the plaintiff on the receipt of the balance amount. It is further added by Ld. Counsel for the plaintiff that said Agreement to Sell dated 08.7.2005 has been proved as Ex.PW1/1 and the factum regarding the execution of said Agreement to Sell Ex.PW1/1 has not been disputed by the defendant. It is further submitted by Ld. Counsel for the plaintiff that on 12.10.2005 the plaintiff came to know that the defendant by turning dishonest was going to sell the Suit Property to third party at higher rate and plaintiff met the defendant on the same day and requested him to discharge his obligation as per said Agreement to Sell on which the defendant flatly refused and demanded more than the agreed amount, otherwise he would sell the Suit Property to some other person. It is further submitted by Ld. Suit No.461/05 Page No.8/19 Counsel for the plaintiff that therefore, the plaintiff was constrained to issue Legal Notice dated 13.10.2005 through his Counsel to the defendant and copy of said Legal Notice is Ex.PW1/2, registered Postal Receipt is Ex.PW1/3 and UPC is Ex.PW1/4. It is further submitted by Ld. Counsel for the plaintiff that despite service of Legal Notice, the defendant has failed to do the needful. It is further submitted by Ld. Counsel for the plaintiff that though the plaintiff was always ready and willing to perform his part of the contract but it is defendant who has malafidely evaded to discharge his part of the obligation by taking false and frivolous plea. It is further submitted by Ld. Counsel for the plaintiff that the defendant has taken the false plea of sending the reply dated 17.10.2005 which is forged and fabricated document and was never sent by the defendant to the plaintiff. It is further added by Ld. Counsel for the plaintiff that the defendant has got manipulated the UPC receipt in this respect which cannot be treated as trustworthy and reliable and referred and relied upon the judgment reported as 1994 (4) SCC 445 in support of said contention. It is further submitted by Ld. Counsel for the plaintiff that the defendant has taken the false plea that he along with his son and another person waited in the office of the Sub Registrar on 20.10.2005 but plaintiff did not turn up and said stand of the defendant is falsified Suit No.461/05 Page No.9/19 as to why he has not called the mediator Sh.Brij Mohan there nor intimated him earlier nor he got examined the third person who was stated to be present with them. It is further submitted by Ld. Counsel for the plaintiff that there are several contradictions in the deposition of DW1 Sh.Baldev Raj Bajaj, DW2 Sh.D.K.Bajaj on various material aspects and DW3 Sh.Sanjay Makker who is the relative of DW2 and therefore, deposition of DWs can be of no help for the defendant. It is further added by Ld. Counsel for the plaintiff that defendant by turning dishonest has not discharged his part of obligation as per said Agreement to Sell Ex.PW1/1 and has not cleared the outstanding electricity, water charges relating to the Suit Property. It is further added by Ld. Counsel for the plaintiff that the plaintiff has successfully proved his case by getting himself examined as PW1, his father Sh.Jugal Kishore as PW2 and Sh.Brij Mohan, the Property Dealer/Mediator as PW3 and by proving all the relevant documents in this respect. Ld. Counsel for the plaintiff thus urged for decreeing the suit in favour of the plaintiff.
12. It is submitted by Ld. Counsel for the defendant that it is the plaintiff who has failed to discharge his part of the contract as per said Agreement to Sell Ex. PW 1/1 and could not arrange for balance sale consideration by stipulated period, as before 20.10.2005 plaintiff had Suit No.461/05 Page No.10/19 met Sh. D.K. Bajaj son of defendant and requested for extension of two months time, which was declined. It is further submitted by Ld. Counsel for the defendant that in response to the Legal Notice dated 13.10.2005 as issued on behalf of the plaintiff, the defendant has sent the suitable Reply dated 17.10.2005 through UPC and copy of said Reply is Ex. DW 1/1 and UPC receipt is Ex. DW 1/2. It is further submitted by Ld. Counsel for the defendant that defendant along with his son Sh. D.K. Bajaj were present before the office of SubRegistrar, Seelam Pur, Delhi and waited for the plaintiff up to 03:00 pm and obtained Receipt, copy of which is Ex. DW 1/3 from the office of SubRegistrar but the plaintiff did not reach the office of the concerned SubRegistrar to discharge his obligation as per said Agreement to Sell Ex. PW 1/1. It is further submitted by Ld. Counsel for the defendant that even otherwise, since said Agreement to Sell Ex. PW 1/1 is not a registered document, the same cannot be looked into by this court. It is further submitted by Ld. Counsel for the defendant that the defendant was always ready and willing to perform his part of the Agreement to Sell dated 08.07.2005 but it is the plaintiff who has failed to do the needful and is not entitled for any relief from this court. It is further submitted by Ld. Counsel for the defendant that the plaintiff has failed to prove that he was always Suit No.461/05 Page No.11/19 ready and willing to perform his part of the contract and was having sufficient amount with him to discharge his obligation as per said Agreement to Sell Ex. PW 1/1 and therefore, in view of Section 16 (C) of Specific Relief Act the plaintiff is not entitled for decree of Specific Performance of said Agreement to Sell Ex. PW 1/1. Ld. Counsel for the defendant referred and relied upon the following judgments: (1) AIR 1993 SC 1742 (2) AIR 2003 SC 1391 (3) AIR 2006 Patna 183 (4) AIR 2004 Madras 457 (5) AIR 2007 Punjab & Haryana 83 and (6) AIR 2005 Andhra Pradesh 260 It is further submitted by Ld. Counsel for the defendant that the defendant has successfully proved his case by getting examining himself as DW 1, his son Sh. D.K. Bajaj as DW 2 and Sh. Sanjay Makker as DW 3. Ld. Counsel for the defendant thus urged for dismissal of the suit.
13. From the perusal of the record, it is revealed that the plaintiff in support of his case got examined himself as PW 1, his father Sh. Jugal Kishore Arora as PW 2 and Sh. Brij Mohan who is Property Dealer/Mediator and an attesting witness to the said Agreement to Sell dated 08.07.2005 as PW 3. It is further revealed from the record that during the course of the deposition of the Suit No.461/05 Page No.12/19 plaintiff, he has duly proved his evidence affidavit as precise substance of his plaint as Ex. PW 1/A and the Agreement to Sell dated 08.07.2005 as Ex. PW 1/1, copy of the Legal Notice dated 13.10.2005 as issued by the plaintiff's Counsel to the defendant as Ex.PW1/2 and registered Postal Receipt as Ex.PW1/3 and UPC receipt in this respect as Ex.PW1/4. The factum regarding the execution of the Agreement to Sell dated 08.07.2005 whereby the defendant had agreed to sell the Suit Property to the plaintiff for total sale consideration of Rs. 12,55,000/ and the factum regarding the receipt of advance amount of Rs.1,50,000/ by the defendant from the plaintiff are not disputed by the defendant. Defendant as DW1 in his evidence affidavit Ex.DW1/A at Para 2 stated as under : " I say that on 08.07.2005 the plaintiff had entered into an Agreement to Sell with the deponent for the purchase of the property bearing No.1/7769, Gali No.1, East Gorakh Park, Shahdara, Delhi, of the total sale consideration of Rs.12,55,000/ (Rs. Twelve lacs fifty five thousand only). That it was agreed between both the parties under the said agreement that the payment of balance amount i.e. Rs.11,05,000/ and registration of Sale Deed to be executed on or before 20.10.2005 and to be handed over the peaceful, vacant physical possession after payment of Suit No.461/05 Page No.13/19 total consideration amount and execution of the sale deed."
Defendant during the course of his cross examination as DW1 has deposed in this respect as under: "I know the plaintiff since the date of bayana/agreement dated 08.7.2005. Agreement Ex.PW1/1 was executed at my house. It is correct that the copy of the agreement Ex.PW1/1 was handed over to me".
14. From the perusal of the said Agreement to Sell dated 08.07.2005 Ex.PW1/1, it is clearly reflected that the balance sale consideration was to be paid to the defendant by the plaintiff by 20.10.2005 at the time of execution of the Sale Deed. It is further revealed from the record that plaintiff has taken the stand that he was ready for discharging his part of the contract but on coming to know that the defendant by turning dishonest was going to sell the Suit Property at higher price to third party, he met the defendant on 12.10.2005 and requested him but the defendant flatly refused to discharge his obligation as per said Agreement to Sell dated 08.07.2005, as a result of which the plaintiff got issued Legal Notice dated 13.10.2005 through his Counsel to the defendant wherein intimating defendant that he has arranged the balance sum of Rs. 11,05,000/ and calling upon the defendant as to when and where Suit No.461/05 Page No.14/19 balance sale consideration would be paid for completion of the deal as per said Agreement to Sell dated 08.07.2005 and plaintiff has got proved copy of said Legal Notice dated 13.10.2005 as Ex.PW1/2 and registered Postal Receipt as Ex.PW1/3 and UPC receipt as Ex.PW1/4. Though the defendant is found to have taken the stand that he has sent the Reply dated 17.10.2005 through UPC vide UPC receipt Ex.DW1/2 in response to the said Legal Notice dated 13.10.2005 of the plaintiff, I am of the considered view that said stand of the defendant cannot be treated as trustworthy and reliable as there is no explanation as to why the same was not sent by registered AD and also by taking the cue from the judgment as rendered by Hon'ble Supreme Court of India in the case reported as (1994) 4 SCC 445 Shiv Kumar and Others vs. State of Haryana and Others. Though the defendant is found to have taken the stand that it is the plaintiff who could not arrange for the balance sale consideration and had requested for grant of 2 months more time which was declined but the defendant has failed to produce any cogent evidence in this respect to establish the said stand. Furthermore, said stand of the defendant is also found negated from the deposition of the plaintiff as PW1 and the content of the copy of Legal Notice dated 13.10.2005 Ex.PW1/2 as got issued by the plaintiff through his Counsel to the defendant.
Suit No.461/05 Page No.15/19
15. Furthermore, though the defendant has taken the stand that on 20.10.2005 he along with his son Sh.D.K.Bajaj had gone to the office of the concerned Sub Registrar and waited up to 3:00 p.m. but the plaintiff did not turn up, but it can be of no help to the defendant as I do not see any reason as to why the defendant had not intimated regarding this aspect earlier to PW3 Sh.Brij Mohan who was the Mediator to the said Agreement to Sell executed between the plaintiff and the defendant.
16. Furthermore, the plaintiff as PW1, PW2 Sh.Jugal Kishore Arora and PW3 Brij Mohan have deposed that on 20.10.2005 they have gone to the office of Sub Registrar, Seelampur and waited for the defendant but he did not turn up, to discharge his obligation as per said Agreement to Sell.
17. I do not find any force in the submission of Ld. Counsel for the defendant to the effect that said Agreement to Sell dated 08.07.2005 Ex.PW1/1 cannot be looked into as it is nonregistered document being not registered under Section 17 of the Registration Act. I am of the considered view that nonregistered Agreement to Sell of immovable property can validly form the basis for Specific Performance of Agreement to Sell even though not registered, by virtue of explanation to Section 17 (2) and Provisio to Section 49 of Suit No.461/05 Page No.16/19 the Registration Act.
18. From the perusal of said Agreement to Sell Ex.PW1/1, it is clearly reflected that in case of failure on part of the defendant to execute the required Sale Deed, the plaintiff would be entitled for recovery of the double amount of the earnest money. In view of the said terms of the Agreement to Sell Ex.PW1/1, I am of the considered view that in such eventuality, the plaintiff would not be entitled for relief of specific performance relating to the suit property and my said view is found supported from the judgment as rendered by the Hon'ble Supreme Court of India, while dealing with the similar case reported as JT 1999 (8) SC 608 titled as ''Dada Rao Vs. Ram Rao'' : in which it was observed as under: "If the agreement had not stipulated as to what is to happen in the event of the sale not going through, then perhaps the plaintiff could have asked the court for a decree of specific performance but here the parties to the agreement had agreed that even if the seller did not want to execute the sale deed, he would only be required to refund the amount of Rs. 1000/ plus pay Rs. 500/ in addition thereto. There was thus no obligation on Balwantrao to complete the sale transaction.''
19. By taking cue from the aforesaid observation in the Suit No.461/05 Page No.17/19 Judgment as rendered by Hon'ble Supreme Court of India and applying the same to the facts and circumstances of the present case, I am of the considered view, that the plaintiff is not entitled for the relief of specific performance relating to the suit property.
20. In view of aforesaid discussion, I am of the considered view that there is valid cause of action for filing the present suit but the plaintiff is not entitled for the relief of specific performance of said Agreement to Sell dated 08.07.2005 relating to the Suit Property and hence, the Issue No.1 stands decided in favour of the plaintiff and against the defendant and Issue No.2 stands decided as against the plaintiff and in favour of the defendant.
21. ISSUE NO.3 reads as under: "Whether the plaintiff is entitled to decree of Rs.3,50,000/ from the defendant?OPP"
Since from the perusal of the said Agreement to Sell dated 08.07.2005 Ex.PW1/1, it is clearly reflected that out of the total sale consideration of Rs.12,55,000/, the defendant had received earnest amount of Rs.1,50,000/ from the plaintiff and the balance sale consideration was to be payable by the plaintiff to the defendant by 20.10.2005 at the time of the execution of the sale document by the defendant but since the defendant had failed to comply the same, as Suit No.461/05 Page No.18/19 per the default Clause in the said Agreement to Sell Ex.PW1/1, the plaintiff is entitled for recovery of Rs.3 Lacs which is the double of the said earnest amount of Rs.1,50,000/ as paid by the plaintiff to the defendant in view of the content of said Agreement to Sell Ex.PW1/1 as executed by the defendant in favour of the plaintiff. Thus, the Issue No.3 stands decided to the said extent in favour of the plaintiff and as against the defendant.
Relief.
22. The net result of the aforesaid discussion is that the plaintiff is held entitled for recovery of sum of Rs.3 Lacs besides interest @ 12% p.a. from the date of filing the suit till its realisation besides the cost of the suit as against the defendant. Decree sheet be prepared accordingly. After doing the needful by Ahlmad of the court, this case file be consigned to Record Room.
Announced in the open court today i.e, 23th December 2010 (B.R.KEDIA) ADDL.DISTRICT.JUDGE CENTRAL10, DELHI Suit No.461/05 Page No.19/19