Delhi District Court
Surender Kumar Bhardwaj vs Nand Kishor on 9 July, 2024
Suit No. 15461/2016 Page 1 of 54
IN THE COURT OF SH. DIVYANG THAKUR
DISTRICT JUDGE-03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 15461/2016
CNR No. DLSW01-000521-2015
In the matter of :
Shri Surender Kumar Bhardwaj
S/o Sh. Ram Swaroop Sharma
R/o WZ-4, Second Floor,
Prithvi Park, MBS Nagar, Tilak Nagar,
New Delhi-110018
....Plaintiff
Versus
Sh. Nand Kishor
S/o Late Shri Hari Ram
R/o Village Badusarai
Post Office Chhawla
New Delhi-110018
......Defendant
Date of institution of the suit : 19.12.2015
Final Arguments Heard on : 03.06.2024
Date of Judgment : 09.07.2024
Decision : Partly decreed
Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor
Suit No. 15461/2016 Page 2 of 54
SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT
INJUNCTION
JUDGMENT :
1. Present suit has been filed by the Plaintiff seeking (a) decree of specific performance with respect to the agreement to sell dated 19.12.2012 seeking directions to the Defendant to obtain and provide no objection certificate under Section 8 of the Delhi Land (Restriction on transfer) Act, 1972 for confirmation of non contravention of provisions of Section 33, 74(4) and 81 of the Delhi Land Reforms Act, 1954 and thereafter, execute sale deed in respect of the suit land i.e. 1/8th share in total agricultural land, 15 bighas 16 biswas, bearing mustatil no. 1, killa nos. 15(2-05), 16/2(2-12), 17(1-18), mustatil no. 5, killa nos. 11(4-05) and extended lal dora plot bearing khasra no. 72, area standard measuring 4 bighas 16 biswas and sada measuring 2 bighas and 8 biswas, situated within the revenue estate of village Badusarai, Tehsil Najafgarh (Palam), District South-I, New Delhi and deliver the possession of the said suit land to the Plaintiff; (b) in the alternative, a decree of recovery of damages of Rs. 64,58,333/- and refund of advance/earnest money of Rs. 10,00,000/- with future Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 3 of 54 interest from the date of institution of the suit till realization at the rate of 24% per annum; (c) a decree of permanent injunction against the Defendant with respect to the aforesaid suit land and (d) costs of the suit.
PLAINT
2. The brief facts of the case as mentioned in the plaint are reproduced here as under:
(i) It is averred that the present suit relates to the 1/8th share in total agricultural land, 15 bighas 16 biswas, bearing mustatil no. 1, killa nos. 15(2-05), 16/2(2-12), 17(1-18), mustatil no. 5, killa nos.
11(4-05) and extended lal dora plot bearing khasra no. 72, area standard measuring 4 bighas 16 biswas and sada measuring 2 bighas and 8 biswas, situated within the revenue estate of village Badusarai, Tehsil Najafgarh (Palam), District South-I, New Delhi which was agreed to be sold by the Defendant to the Plaintiff vide an agreement to sell and purchase dated 19.12.2012 for a total sale consideration of Rs. 1,00,00,000/- per share. It is further submitted that the Plaintiff had paid a sum of Rs. 5,00,000/- through cheque and Rs. 5,00,000/- in cash to the Defendant as advance/earnest money towards the entire Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 4 of 54 sale consideration and as per the aforesaid agreement to sell, the Defendant was required to apply for and get no objection certificate under Section 8 of the Delhi Land (Restriction on transfer) Act, 1972 at least three weeks before the last date of full and final payment.
(ii) It is submitted that the Defendant is the owner and bhumidar of 1/8th share in the said suit land and the Defendant had approached the Plaintiff to sell his entire share in the suit land and acting upon the representations of the Defendant, the Plaintiff had agreed to purchase the said share in the suit land for a total sale consideration of Rs. 1,00,00,000/- and subsequently, an agreement to sell and purchase dated 19.12.2012 was executed between the Plaintiff and Defendant and the sale deed was to be executed on or before 18.06.2013. It is further averred that the Plaintiff had, thereafter, paid a sum of Rs. 5,00,000/- through cheque bearing no. 940929 dated 19.12.2012 drawn on State Bank of India, Keshav Pur, New Delhi and Rs. 5,00,000/- in cash to the Defendant as advance / earnest money towards the entire sale consideration.
(iii) It is further submitted that the brothers of the Defendant namely Sh. Om Prakash, Sh. Rajesh Kumar and Sh. Din Dayal had also Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 5 of 54 agreed to sell their 1/8th share each to the Plaintiff with respect to the aforesaid suit land and separate agreements to sell and purchase dated 19.12.2012 were also executed between the Plaintiff and brothers of the Defendant respectively, however, they have also not performed their part of the contract and breached the terms and conditions of the said agreement. It is further submitted that Plaintiff has also filed separate civil suits for specific performance and permanent injunction against the brothers of the Defendant respectively.
(iv) It is alleged in the plaint that Defendant had failed to apply for and get the NOC under Section 8 of the Delhi Land (Restriction on Transfer) Act, 1972 despite repeated requests and reminders and subsequently, Plaintiff had sent a letter dated 08.06.2013 to the Defendant wherein he had informed the Defendant that he is ready with the balance sale consideration and further requested the Defendant with respect to the proposed date of registration of sale deed. It is further alleged that despite the receipt of the aforesaid letter and repeated requests and reminders of the Plaintiff, the Defendant had failed to apply for and get the requisite NOC. Thereafter, it is submitted that Defendant had requested two more months to perform Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 6 of 54 his part of the contract to which Plaintiff agreed, however, instead of performing his part, Defendant had issued a legal notice dated 06.07.2013 to the Plaintiff and forfeited the advance/earnest money paid by the Plaintiff to the Defendant. Subsequently, Plaintiff had replied to the said legal notice vide reply cum legal notice dated 05.08.2013 which was duly received by the Defendant to which a rejoinder dated 05.09.2013 was issued by the Defendant to the said reply cum legal notice. Thereafter, Plaintiff had again approached the Defendant requesting him to apply and obtain the NOC and in pursuance of the same, Defendant again sought further time to get the requisite NOC, however, till date, the Defendant has not performed his part of the contract despite repeated requests of the Plaintiff.
(v) It is further submitted that aggrieved with the Defendant, the Plaintiff had issued a legal notice dated 31.01.2015 to the Defendant which was duly served and subsequently, present suit for specific performance and permanent injunction was filed by the Plaintiff against the Defendant.
PROCEEDINGS OF THE CASE
3. Summons for settlement of issues along with notice of the Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 7 of 54 application under Order XXXIX R 1 and 2 of CPC were issued to the Defendant and thereafter, vide order dated 02.03.2016, all the parties were restrained to create any third party interest with respect to the suit land and parties were directed that no further right, title or interest would be created, changed or altered. WS was filed by the Defendant to which Replication was filed by the Plaintiff. DEFENCE TAKEN UP IN THE WRITTEN STATEMENT
4. It is alleged by the Defendant in the written statement that the Plaintiff has not approached the Court with clean hands and suppressed the material facts. It is submitted that an agreement to sell dated 19.12.2012 was executed and at the time of execution, 10% of the total sale amount was paid as part sale consideration on 19.12.2012 and remaining amount was payable on or before 18.06.2013 but Plaintiff had failed to pay the balance sale consideration on or before 18.06.2013. It is submitted that vide legal notice dated 06.07.2013, Defendant had informed the Plaintiff that the 10% amount paid by the Plaintiff was forfeited as the Plaintiff had failed to pay the remaining sale consideration within the stipulated time. It is alleged by the Defendant in his written statement that Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 8 of 54 Plaintiff is a company/group of elite persons who entangle the illiterate farmers in their net by inducing them and showing money for selling their land and also compelled to sign the agreement. It is alleged that the Plaintiff neither got the agreement to sell registered nor supplied a copy of the said agreement to sell to the Defendant.
5. It is further alleged that the present suit is not maintainable and is liable to be dismissed and that the same is also time barred. It is further alleged that the Plaintiff did not have sufficient money to pay the remaining sale consideration during the stipulated period of six months and that the Plaintiff had never approached the Defendant with the balance sale consideration. It is further alleged that the agreement to sell was unilateral and bad in law since the day of signing of the agreement to sell. It is submitted in the written statement that the Defendant is an illiterate farmer and did not know the terms and conditions laid down by the Plaintiff in the agreement to sell. It is alleged that the Plaintiff was aware that the Land Acquisition Department would not issue the NOC and that the Plaintiff has only filed the present suit before one day of expiring of limit under the Limitation Act. It is also alleged that no cause of action arises against Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 9 of 54 the Defendant.
6. In Replication filed by the Plaintiff, the Plaintiff has denied the averments of the Defendant in the written statement and reiterated the contents of the plaint.
7. Thereafter, at joint request of the parties, matter was referred to mediation for exploring the possibility of settlement, however, the same could not be settled and matter was proceeded for framing of issues.
FRAMING OF ISSUES
8. Admission-denial of documents was not recorded on behalf of the parties. On basis of the aforesaid pleadings, on 01.03.2017, the following issues were framed:
(a) Whether suit of the Plaintiff is not properly valued for the purpose of court fees and jurisdiction? (OPD)
(b) Whether Defendant was not aware of the terms and conditions of the agreement to sell dated 19.12.2012? (OPD)
(c) Whether Plaintiff proves the readiness and willingness to perform his part of contract and also consequently entitled to a decree of specific performance? (OPP) Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 10 of 54
(d) In case, Plaintiff is held disentitle to specific performance, whether he is entitled to a decree for alternative relief claimed in prayer clause (ii) of the plaint? (OPP)
(e) Whether Plaintiff is entitled to a decree of permanent injunction? (OPD)
(f) Relief.
No other issue arose or claimed by the parties and matter was proceeded for plaintiff's evidence. Thereafter, an application under Order XIV R 1 read with Section 151 of CPC was moved on behalf of the Defendant to which reply was duly filed by the Plaintiff. Thereafter, written submissions were filed on behalf of the Plaintiff to the aforesaid application of the Defendant for framing additional issue with respect to limitation and maintainability of the present suit. However, the aforesaid application of the Defendant under Order XIV R 1 read with Section 151 of CPC was dismissed vide separate order dated 04.04.2019 and matter was proceeded for PE. EVIDENCE LED BY THE PARTIES
9. On 26.04.2023, PW-1 Sh. Surender Kumar Bhardwaj had tendered his evidence by way of affidavit exhibited as Ex. PW1/A and Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 11 of 54 relied upon the following documents:
(a) Original agreement to sell and purchase dated 19.12.2012 as Ex.
PW1/1;
(b) Original receipt of Rs. 10,00,000/- dated 19.12.2012 as Ex. PW1/2;
(c) Original letter dated 08.06.2013 along with postal receipts as Ex. PW1/3 (colly);
(d) Legal notice dated 06.07.2013 as Ex. PW1/4;
(e) Reply cum legal notice dated 05.08.2013 along with postal receipts as Ex. PW1/5 (colly);
(f) Rejoinder dated 05.09.2013 as Ex. PW1/6 and
(g) Legal notice dated 31.01.2015 along with postal and courier receipts as Ex. PW1/7 (colly).
10. It was deposed by the PW-1 in his cross-examination that he did not know the Defendant before the transaction in question and knew the Defendant through his relative namely Sanjay Sharma. He further deposed that when he had reached the place near SDM office, the agreement was already prepared and draft copy of the agreement was not provided to the Defendant before signing. It is further deposed by Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 12 of 54 PW-1 that the agreement to sell is not registered nor notarized and that no other agreement to sell was executed on that day. It is further deposed that the agreement to sell was also signed by the Defendant on that day itself and that copy of the agreement to sell was given to the Defendant after execution. It is further deposed that Rs. 5,00,000/- was given in cash near the office of the SDM, Kapashera at the time of execution of the agreement to sell. It is further deposed by the Plaintiff that he had not shown the details of the transaction of Rs. 10,00,000/- in his ITR. PW-1 further deposed that he had no information that NOC was not being granted by the concerned authorities for the area in which the suit properties are comprised. It is also deposed that the Defendant had sent legal notice to the Plaintiff after six months with respect to the forfeiture of the earnest money.
11. The witness PW-1 / Plaintiff had denied the suggestion that he did not have the means or the financial capacity to pay the remaining sale consideration at the time of expiration of six months as per the agreement to sell. The witness also denied that he was never ready and willing to perform his part of the contract and that he got executed the agreement to sell without the consent of the Defendant. Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 13 of 54
12. No other witness was examined on behalf of the Plaintiff and therefore, PE was closed vide separate statement of the Plaintiff on 21.12.2023 and matter was proceeded for Defendant's evidence. On 21.12.2023, a separate statement of the Defendant was recorded under Order X of the CPC wherein he had admitted his signatures on Ex. PW1/1.
13. Thereafter, on 01.05.2024, DW-1 Sh. Nand Kishor had tendered his evidence by way of affidavit exhibited as Ex. DW1/A and during cross-examination, DW-1 had admitted that an agreement to sell dated 19.12.2012 Ex. PW1/1 was at the mutual agreement of the parties. It is deposed that he did not know whether any NOC was required before selling any agricultural land since inception. It is further admitted by him that he had not obtained the NOC from the competent authority nor provided the same to the Plaintiff in terms of the agreement to sell dated 19.12.2012. It is deposed that he had not issued any written correspondence to the Plaintiff regarding not being supplied the copy of the agreement to sell dated 19.12.2012 prior to 06.07.2013. The Defendant further admitted that he had received a sum of Rs. 10,00,000/- as earnest money from the Plaintiff. The Defendant denied Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 14 of 54 the suggestion that he was liable to obtain the NOC and that the same was to be handed over to the Plaintiff at least three weeks before the execution of the documents. The Defendant further denied that he was not entitled to forfeit the earnest money. The Defendant admitted that he had not placed on record any document to show that the Plaintiff is a company / group of elite persons who had entangled with the illiterate farmers in their net by inducing them and compelling them to sign the agreement to sell with respect to their agricultural land. The Defendant further admitted that the price of the land in question had increased manifolds. The witness further admitted that his brother Sh. Om Prakash had filed an RTI application with the office of the Land Acquisition Collector / ADM South West, New Delhi and the said Department had issued a reply dated 18.09.2013 and the same was exhibited as Ex. D-1/1.
14. No other witness was examined on behalf of the Defendant and DE was closed vide separate statement of the Defendant. Matter was thereafter, proceeded for final arguments.
CONTENTIONS OF THE PARTIES
15. Final arguments were heard on behalf of the parties. Written Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 15 of 54 arguments were filed on behalf of the Defendant. A judgment of the Hon'ble Supreme Court of India in Basavaraj Vs. Padmavathi and Anr dated 05.01.2023 in civil appeal no. 8962-8963 of 2022 was filed on behalf of the Plaintiff. Ld. Counsel for Plaintiff has argued that it was the Defendant who had breached the contract by failing to even apply for the NOC and therefore, no question arose of the Plaintiff failing to fulfill his portion of the contract as the NOC was to be obtained by the Defendant in the first instance and thereafter, once the obtaining of the NOC was informed by way of registered post, the Plaintiff was to become liable for paying the remaining balance sale consideration. It was further argued that the defence taken up by the Defendant was false and fabricated as it was quite clear that the Defendant was well aware of the terms of the contract and had in a malafide manner, sent legal notice forfeiting the advance payment of Rs. 10,00,000/- even though being well aware of the obligation to obtain the NOC from the concerned authorities.
16. Per contra, Ld. Counsel for Defendant has argued that the Plaintiff was not ready to perform his portion of the contract as he was not having the sale consideration ready with him. He has further Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 16 of 54 argued that the copy of the agreement was not provided to the Defendant and the same were prepared by the Plaintiff and signatures were obtained but subsequently, the copy was not given to the Defendant who is not well versed with such matters and is a farmer. He has therefore, submitted that the suit may be dismissed. Issue Wise Findings Issue no. (a) : Whether suit of the Plaintiff is not properly valued for the purpose of court fees and jurisdiction? (OPD)
17. The onus was upon the Defendant to show that the suit has not been properly valued. The said issue was not addressed by the Defendant nor was it agitated even at the stage of final arguments. I find that the suit has been properly valued for both purposes of court fees and jurisdiction in accordance with the Suit Valuation Act and Court Fees Act. A suit for specific performance is valued and court fees paid ad valorem at the amount of sale consideration mentioned in the contract as per Section 7 (x) (a) of the Court Fees Act, 1870. Therefore, this issue is decided in favour of the Plaintiff and against the Defendant.
Issue no. (b) : Whether Defendant was not aware of the terms and Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 17 of 54 conditions of the agreement to sell dated 19.12.2012? (OPD)
18. This issue is being dealt first as the first point to be decided in a suit for specific performance is whether there is a valid and concluded contract between the parties. The Defendant has claimed that he was not aware about the terms and conditions of the contract and a copy of the agreement to sell dated 19.12.2012 was not provided to him. The following observations and inferences can be drawn from the record:
(i) The Defendant has not denied the execution of the agreement to sell dated 19.12.2012. In fact, a reading of the written statement would show that the Defendant was well aware that the property was being sold by him for a sale consideration of Rs. 1 crore and that last date for execution of the sale deed and payment of remaining sale consideration was 18.06.2013;
(ii) Interestingly enough, a perusal of the written statement would show that the Defendant has ascertained his right to forfeit the amount of Rs. 10,00,000/- which has been admitted by the Defendant to have been received by him on 19.12.2012 as earnest money;
(iii) A perusal of the record would show that the Plaintiff has proved the legal notice sent by the Defendant to Plaintiff dated 06.07.2013 as Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 18 of 54 Ex. PW1/4. The Defendant has admitted the said notice Ex. PW1/4 by virtue of his pleadings. A reading of the said legal notice Ex. PW1/4 would show that the Defendant was well aware about the terms of the agreement to sell Ex. PW1/1. The relevant extract is herein below:
"1. That my client had executed an Agreement to Sell in your favour dated 19.12.2012, regarding 1/8th share in total agricultural land 15 Bighas 16 Biswa, bearing Mustatil No. 1, Killa Nos. 11(4-05) and extended Lal Dora Plot bearing Khasra No. 72, area standard measuring 4 Bighas 16 Biswas and Sada measuring 2 Bighas and 8 Biswas, situated within the revenue estate of Village Badusarai, Tehsil Najafgarh (Palam), District South-Ist, New Delhi as the above mentioned addressee.
2. That at the time of executing the Agreement to Sell 10% of the total amount was paid as the part sale consideration amount to my client on 19/12/2012 and the remaining amount was to be paid on or before 18/06/2013.
3. That as per the Agreement to sell, if the remaining amount of the total sale consideration was not paid on or before 18/06/2013, the part sale consideration amount paid on the day of the Agreement to Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 19 of 54 Sell i.e., the 10% of the amount paid on 19/12/2012 will be forfeited........."
The aforesaid legal notice shows that the Defendant was well aware of his legal rights under the contract and therefore, had asserted his right to forfeit the sum of Rs. 10,00,000/-;
(iv) It is pertinent to note that the Plaintiff has been able to prove Ex. PW1/3 which is the letter dated 08.06.2013 and the proof of service of the same sent by the Plaintiff to the Defendant asking the Defendant to obtain the NOC as soon as possible. The said letter has not been denied by the Defendant, reference can be had to para 10 of the plaint and corresponding para 10 of the written statement. The Defendant has also admitted that the address on the letter and proof of service belongs to him and therefore, the general presumption would also apply. In the letter Ex. PW1/4, no reference is made to the said letter Ex. PW1/3, refuting that the Defendant was obliged to obtain an NOC;
(v) The Plaintiff has also been able to prove another letter Ex. PW1/5 which has been replied to by the Defendant vide letter Ex. PW1/6. The relevant extract of Ex. PW1/6 dated 05.09.2013 is as:
Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 20 of 54 "......(ii) Para (ii) of the reply is wrong and hence denied except that my client agreed to sell the said land for a total sale consideration of Rs. 1 crore only. No representation or assurance was made by my client. My client is a farmer. The only fact informed by my client was that he is one of the co-owners of the said land. Thereafter, you made thorough enquiry at your level in all respects and had full knowledge that NOC could not be issued for the said land due to legal bottlenecks..........."
The Defendant nowhere explicitly states that he was unaware about the requirement of NOC. Rather, it is his assertion that NOC was unobtainable. This is in direct contradiction to his assertion in his pleadings;
(vi) In his written statement, the Defendant avers that "the plaintiff a company/group who purchases the agricultural land of such farmers by way of Agreement to Sell and they know very well that NOC would never be issued by the Land Acquisition Collector of the agricultural land situated at village Badusari. However, the relevant information was obtained by way of making Application under RTI Act and the Tehsildar / PIO (Notification) denied to issue the NOC Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 21 of 54 vide letter dated 18.09.2013. Copy is annexed as ANNEXURE-
D/1...."
It is curious that the Defendant has not specified as to when he came to know that the NOC would not be granted. Moreover, it is hard to understand that if NOC was not being granted, then why the Defendant accepted the part sale consideration and also entered into a agreement to sell. The Defendant was well aware that the culmination of the agreement would be in the execution of the sale deed. Notice can be taken of the fact that in Delhi, as per the law, an NOC is required for the registration of a sale deed, the subject-matter of which is an agricultural land. It is hard to believe that the Defendant was ignorant of such facts and that he was ready to sell his property being agricultural land without knowledge of this elementary fact;
(vii) The culmination of aforesaid circumstances is that I find that the Defendant had executed the agreement to sell dated 19.12.2012 having full knowledge of the terms and conditions and that his defence that he was not provided a copy and that he was unaware of the said terms and conditions is a complete afterthought. Firstly, a man is presumed to know the natural consequences of his actions and when the Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 22 of 54 execution is admitted, there is a presumption that the executant is aware about the contents of the agreement to sell. Secondly, the Defendant has asserted his rights of forfeiture under the agreement itself and therefore, cannot be heard to deny the other clauses of the agreement to sell as a party cannot be allowed to approbate and reprobate i.e. blow hot and cold at the same time. Moreover, it is settled law that a party cannot claim benefit of one particular clause in the agreement and deny the other clauses which might be going against him. This equitable rule of estoppel would be squarely applicable to the facts and circumstances of the case. It is also unnatural that after execution of the agreement, the Defendant never sent any written notice demanding the copy of the agreement while at the same time, he had accepted the sum of Rs. 10,00,000/- and in fact, the same was accepted without any demur or protest.
Accordingly, the issue is decided against the Defendant and in favour of the Plaintiff.
Issue no. (c) :Whether Plaintiff proves the readiness and willingness to perform his part of contract and also consequently entitled to a decree of specific performance? (OPP) Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 23 of 54
19. Now it has to be considered whether the Plaintiff is entitled for specific performance. The relevant law of specific performance and the aspect of readiness and willingness has been considered in a catena of judgments and some of the relevant judgments which would guide the discretion to be exercised by this Court are discussed and extracted below:
In Kamal Kumar v. Premlata Joshi, 2019 SCC OnLine SC 12 , the Hon'ble Supreme Court of India has held as under:
"10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the appellant has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the appellant has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed an whether Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 24 of 54 such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the appellant against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the appellant; and lastly, whether the appellant is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds."
In Devenderjeet Singh Sethi v. Om Prakash Arora and Others 2023 SCC OnLine Del 2231, Hon'ble High Court of Delhi has observed as under:
"The distinction between "readiness" and "willingness" and the method of ascertaining the same has been explained by the Apex Court in J.P. Builders v. A. Ramdas Rao, (2011) 1 SCC 429. It was observed that readiness pertains to the financial capacity of the appellant while willingness is determined through the conduct of the appellant who is in turn seeking specific performance.
Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 25 of 54
43. Kerala High Court in George M. Mathews @ George v. Muhammed Haneefa Rawther RFA No. 156/2014 decided on 08.02.2023, while relying on J.P. Builders (Supra) stated that "while readiness refers to the financial capacity of the appellant/vendor to pay the sale consideration, willingness is a different component referable to the conduct of the vendor. Therefore, it is not axiomatic that one who is ready is automatically willing to perform the contract. Per contra, one who is ready with the funds can still be unwilling to perform the contract for different reasons altogether, say for example, the vendor deems the transaction not feasible/profitable for commercial reasons."
44. Furthermore the appellant may have had the financial capacity at the time of entering into the Agreement, but to be successful in a decree for Specific performance, continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part has to be proved as held by the Apex Court in H.P. Pyarejan v. Dasappa (Dead) By L.Rs., (2006) 2 SCC 496. Failure to Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 26 of 54 make good these averment brings with it and leads to the inevitable dismissal of the Suit. In Motilal Jain v. Ramdasi Devi, (2000) 6 SCC 420, the Apex Court had expounded the same principle that the averments in the plaint must reflect the readiness and willingness on the part of the appellant." In J.P. Builders and Another Vs. A. Ramadas Rao and Another, (2011) 1 Supreme Court Cases 429, Hon'ble Supreme Court has observed as under:
"Readiness and willingness
20. Section 16 of the Specific Relief Act, 1963 provides for personal bars to relief. This provision states that:
"16. Personal bars to relief-Specific performance of a contract cannot be enforced in favour of a person-
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 27 of 54 subversion of, the relation intended to be established by the contract; or
(c) 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 waived by the defendant.
Explanation-For the purposes of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
21. Among the three clauses, we are more concerned about clause (c). "Readiness and willingness" is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later inserted with the Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 28 of 54 recommendations of the 9th Law Commission's Report. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him.
22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao at SCC para 5, this Court held: (SCC pp. 117-18) "5... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 29 of 54 been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 30 of 54 conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
24. In P.D'Souza v. Shondrilo Naidu this Court observed: (SCC p. 654, paras 19 and 21) "19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf.....
21.... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."
25. Section 16(c) of the Specific Relief Act, 1963 Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 31 of 54 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 32 of 54 other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526 wherein it was observed as under:
"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 33 of 54 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was no ready no capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bit for the time which disentitles him as time is the essence of the contract."
The Specific Relief Act, 1963 as it was before the Amending Act of 2018 gave the Court the discretion on basis of equity to grant or refuse the relief of specific performance. Here we may advert to the provisions of Section 20 of the Act as applicable to the present dispute:-
"20. Discretion as to decreeing specific performance.--(1) The jurisdiction to decree specific performance is Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 34 of 54 discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 35 of 54 performance. Explanation I.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation II.--The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff, subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 36 of 54 party."
The Hon'ble Supreme Court in the judgment of Jayakantham v. Abaykumar, (2017) 5 SCC 178, has observed as hereunder:-
"7. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is "sound and reasonable", to be "guided by judicial principles". The exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts. Sub- section (2) of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance. Sub-section (2) of Section 20 is in the following terms:
"20. (2) The following are cases in which the court may Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 37 of 54 properly exercise discretion not to decree specific performance--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance."
8. However, Explanation 1 stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 38 of 54 clause (b). Moreover, Explanation 2 requires that the issue as to whether the performance of a contract involves hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract.
9. The precedent on the subject is elucidated below:
9.1. In Parakunnan Veetill Joseph's Son Mathew v.
Nedumbara Kuruvila's Son [Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son, 1987 Supp SCC 340 : AIR 1987 SC 2328], this Court held that : (SCC p. 345, para 14) "14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 39 of 54 that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
9.2. A similar view was adopted by this Court in Sardar Singh v. Krishna Devi [Sardar Singh v. Krishna Devi, (1994) 4 SCC 18] : (SCC p. 26, para 14) "14. ... Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract."
9.3. Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd. [K. Narendra v. Riviera Apartments (P) Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 40 of 54 Ltd., (1999) 5 SCC 77], this Court held thus : (SCC p. 91, para 29) "29. ... Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy [Lourdu Mari David v. Louis Chinnaya Arogiaswamy, (1996) 5 SCC 589] by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 41 of 54 the discretion should be exercised on sound principles of law capable of correction by an appellate court." 9.4. These principles were followed by this Court in A.C. Arulappan v. Ahalya Naik [A.C. Arulappan v. Ahalya Naik, (2001) 6 SCC 600], with the following observations : (SCC pp. 604 & 606, paras 7 & 15) "7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 42 of 54 which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff. ***
15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court. ..."
9.5. A Bench of three Judges of this Court considered the position in Nirmala Anand v. Advent Corpn. (P) Ltd. [Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 8 SCC 146], and held thus : (SCC p. 150, para 6) "6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 43 of 54 well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 44 of 54 also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."
20. After having considered the aforesaid law, the following observations would be pertinent:
(i) A reading of the agreement Ex. PW1/1 would show that clause 2 required that the remaining balance sale consideration was to be paid within six months from 19.12.2012 which date, admittedly, would fall on 18.06.2013. Here, the relevant clause is extracted for convenience:
".....2. That the remaining balances sale consideration will be paid by the second party to the First Party within Six months from the date of this Agreement to sell and purchase execution and registration of the sale deed in favour of the second party or their nominee. However the first party shall apply for and get the No Objection Certificate under Section 8 of the Delhi Land (Restriction on transfer) Act, 1972 for confirmation of non-contravention of provisions of Section 33, 74(4) & 81 of the Delhi Land Reforms Act, 1954, at least three weeks before the last date of full and final payment and will Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 45 of 54 inform the second party for the confirmation of obtaining the said N.O.C. through the registered post.
........"
A reading of the aforesaid clause would make it apparent that the obligation of the Plaintiff to tender the remaining balance sale consideration only arises upon the obtaining of NOC and informing the Plaintiff about the same through registered post by the Defendant. Therefore, the Defendants claim that it was the Plaintiff who was in breach of contract is not tenable and rather it was the Defendant who was in breach. The Defendant's conduct would show that the Defendant never intended to perform the contract. No evidence has been led to show that the Defendant lifted a single finger to start the process of obtaining the NOC from the concerned authorities. The clause of the agreement is quite clear in as much as it requires the Defendant and the Defendant only to obtain the NOC under the Delhi Land (Restriction on transfer) Act, 1972 and Delhi Land Reforms Act, 1954. The Defendant has only tried to wriggle out of his obligations by making excuses which have not been proved such as stating that he was not having copy of the agreement and on the other hand, stating Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 46 of 54 that the NOC was not granted by the authorities. None of the aforesaid averments stand close scrutiny;
(ii) However, the fact that it was the Defendant and not the Plaintiff who breached the contract would not ipso facto mean that the Plaintiff would be entitled to specific performance. The Plaintiff was still under a burden placed upon him to show his readiness and willingness. The aspect of readiness would refer to his financial capacity and the aspect of willingness would refer to the Plaintiff's actions for coming forth and seeking performance of the contract. In Surinder Kumar Vs. Brahm Prakash (2011) SCC OnLine DEL 5331, it was observed by Hon'ble High Court of Delhi that:
"4. Section 16(C) of Specific Relief Act 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 waived by the defendant. Explanation (i) provides that where the contract involves payment of money it is not essential for the Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 47 of 54 plaintiff to actually tender the money to the defendant or to deposit it in the Court unless so directed by the Court. The philosophy behind the aforesaid statutory provision is that a person who comes to the Court seeking specific performance of a contract to which he is a party must show and satisfy the Court that his conduct having been blemishless he is entitled to grant of specific performance of the contract. There is a distinction between readiness to perform the contract and willingness to perform the same. By readiness is meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. Willingness signifies the desire of the plaintiff to complete the transaction by performing his part of the contract.
In Ardeshir Mama v. Flora Sassoon (1928) LR 55 IA.360, Privy Council held that in a suit for specific performance of a contract, the plaintiff has to allege and if the fact is traversed also to prove a continuous readiness and willingness from the date of the contract to the time of hearing, to perform the contract on his part and failure to make good that averment Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 48 of 54 brings with it and leads to inevitable dismissal of the suit. The view taken by the Privy Council was approved by Supreme Court in Premraj v. DLF Housing and Constriction Pvt. Ltd. AIR 1968 SC 1355.
In P.D'Souza v. Shondrilo Naidu (2004) 6 SCC 649 Supreme Court referred to its earlier decision in R.C. Chandiok v. Chuni Lal Sabharwal (197) 3 SCC 140 observed as under:
"It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the fact and circumstance of each case. No straitjacket formula can be laid down in this behalf...The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."
In R.C. Chandiok v. Chuni Lal Sabharwal (supra), Supreme Court observed that "readiness and willingness" cannot be Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 49 of 54 treated as a straight jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned."
(iii) In so far as the aspect of readiness is concerned, certain facts have to be taken into consideration. Notice can be taken of the fact that the Plaintiff has filed, apart from the present suit, three other suits based on the same facts and against parties who are related to each other and based upon agreement to sell, which contains the same wordings as the present suit. All the suits were instituted on the same day. In all four suits, the sale consideration was Rs. 1 crore out of which the Plaintiff had paid Rs. 10,00,000/- to the Defendant and remaining sum of Rs. 90,00,000/- was to be paid by 18.06.2013. Therefore, the Plaintiff had to furnish the sum of Rs. 3,60,00,000/- which sum is not inconsiderable. During cross-examination of PW-1, he deposed that "Presently, I am working as Head of Operations in Delhi Cargo Service Centre. I am earning Rs. 35,00,000/- per annum which is CTC as Head of Operations and I am also having pension of Rs. 41,000/- per month from BSF. In hand, I am getting Rs. 1,67,000/- per month from my current salary. In 2012, I was getting pension Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 50 of 54 from BSF but I can not tell the exact amount of my pension which was lesser than Rs. 41,000/- which I am getting currently as pension. I was also in a private job where I was getting a monthly salary of Rs. 50,000/- in hand.
.......
I was filing ITR in the relevant period of 2012-13. I had not shown the details of transaction of Rs. 10,00,000/- in my ITR. ........"
Though it is not required of the Plaintiff to show that he was ready with the entire cash amount, he has to plead and prove that he had the means and the capacity to be ready with the balance sale consideration. The Plaintiff has not pleaded any specifics in this regard in his plaint nor led any evidence for the same. He has neither stated that he was having the balance sale consideration in cash with him, nor has he pleaded any specifics as to how he intended to raise the huge sum of the remaining balance sale consideration. As per his cross-examination, he was earning Rs. 35,00,000/- per annum but this was during the pendency of the suit. Qua the year 2012, the Plaintiff has only stated that he was getting pension of Rs. 41,000/- from BSF Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 51 of 54 and another monthly salary of Rs. 50,000/-. The Plaintiff has not filed the ITR of the relevant period to show his income. It is not stated by the Plaintiff that he intended or had secured the financial assistance from any bank or financial institution or that he had secured private loans from family or friends. Though, a civil case has to be decided on a preponderance of probabilities, there must be some material on record to show that the Plaintiff was in readiness to perform his part of the contract at all relevant times and even prior to and after the institution of the suit. In absence of such material, it would become difficult to find that the Plaintiff was ready to perform his part of the contract. Consequently, though the Plaintiff was not in breach of the contract, since he fails to satisfy the provision of Section 16(c) of the Specific Relief Act, he cannot be granted the said remedy which is discretionary in nature. Therefore, I find that the Plaintiff has not been able to show his readiness to perform the contract;
(iv) The Plaintiff was well aware of the intention of the Defendant since 06.07.2013 but for reasons best known to the Plaintiff, he kept corresponding with the Defendant who had made his stand to avoid the contract amply clear. The present suit only came to be filed on Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 52 of 54 19.12.2015. No explanation has been given by the Plaintiff as to why he did not take any positive steps for the better part of more than two years after the last date of performance had passed and the Defendant had made it clear that he was going to avoid the contract and in fact, had also averred that he would forfeit the amount of Rs. 10,00,000/-. Though, the present suit is within limitation, however, I find that the Plaintiff's unexplained delay in pursuing his legal remedies tilts the balance against specific performance and moreover, it also doubly casts a doubt on the readiness of the Plaintiff to perform the contract by having the financial capacity to do so.
(v) The Plaintiff has not pleaded that he had any special interest in the suit property or that he could not have purchased a similar property in the area in which the suit properties are situated for a similar sale consideration.
The culmination of the aforesaid circumstances means that this Court finds that the Plaintiff is not entitled to specific performance, even though, it was the Defendant who was in clear breach of the contract and who tried to wriggle out of his obligations without any just cause.
Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 53 of 54 Issue no. (d) : In case, Plaintiff is held disentitle to specific performance, whether he is entitled to a decree for alternative relief claimed in prayer clause (ii) of the plaint? (OPP)
21. As I have found that the Plaintiff was not in readiness to perform the contract, I find that the Plaintiff cannot be awarded damages of Rs. 64,58,333/- as claimed by him. However, the Plaintiff is entitled to the refund of earnest money of Rs. 10,00,000/- along with interest. The Plaintiff has claimed interest at the rate of 24% per annum. The Defendant, on his part, has acted in an inequitable manner and has tried to avoid the contract by adopting all kinds of excuses. On one hand, he claims that no NOC was being granted for the suit properties and on the other hand, he claims to forfeit the earnest money knowing fully well that without NOC, the sale deed could not be executed. The Defendant has not even claimed that on coming to know about such information, he attempted to return the sum of Rs. 10,00,000/- to the Plaintiff. Considering the conduct of the Defendant, the Plaintiff is entitled to higher pre litigation, pendente lite and future interest @15% per annum on the sum of Rs. 10,00,000/- from 18.06.2013 till the date of realization.
Sh. Surender Kumar Bhardwaj Vs. Sh. Nand Kishor Suit No. 15461/2016 Page 54 of 54 Issue no. (e) : Whether Plaintiff is entitled to a decree of permanent injunction? (OPP)
22. In light of the above, the Plaintiff is consequentially not entitled to the decree of permanent injunction qua the suit property. RELIEF
23. In view of the aforesaid discussion, the suit of the Plaintiff is partially decreed for the sum of Rs. 10,00,000/- along with pre litigation, pendente lite and future interest @15% per annum from 18.06.2013 till the date of realization. The suit qua the remaining reliefs is dismissed. The Defendant shall also be liable for the costs of the suit.
24. Decree sheet be prepared accordingly.
25. File be consigned to Record Room after due compliance.
Digitally
signed by
DIVYANG
DIVYANG THAKUR
THAKUR Date:
2024.07.09
16:47:49
+0530
Announced in the open court (Sh. Divyang Thakur)
On 09.07.2024 DJ-03/South West
Dwarka / New Delhi