Delhi District Court
Ashok Kumar Kinra vs The Ishwar Industries Limited on 31 January, 2023
IN THE COURT OF DR. HARDEEP KAUR,
ADDITIONAL DISTRICT JUDGE-04, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
Old Suit No. 301/2012
New Suit No. CS DJ 6860/16
CNR No. DLST01-000271-2012
In the matter of:
Ashok Kumar Kinra
S/o Sh. G.C. Kinra
R/o Annusuya, Flat 1B, 1st Floor,
62/7, Bailygunge Circular Road,
Kolkota-700019
Presently at New Delhi
..........Plaintiff
Versus
1. The Ishwar Industries Limited
1st Floor, Block No.-6,
Tribhuvan Complex,
Ishwar Nagar, Mathura Road,
New Delhi-110065.
2. Bharat Bhaskar, Director,
The Ishwar Industries Limited
1st Floor, Block No.-6,
Tribhuvan Complex,
Ishwar Nagar, Mathura Road,
New Delhi-110065.
3. Madhu Bhaskar, Director,
The Ishwar Industries Limited
1st Floor, Block No.-6,
Tribhuvan Complex,
Ishwar Nagar, Mathura Road,
New Delhi-110065.
.........Defendants
CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 1 of 35
Date of institution of the suit : 09.07.2012
Date of final arguments : 05.01.2023
Date of pronouncement of judgment : 31.01.2023
SUIT FOR SPECIFIC PERFORMANCE AND INJUNCTION
JUDGMENT
1. The brief factual matrix of the case as stated in the plaint is that one M/s. Mars Builders (P) Ltd. applied for purchasing and acquiring of space/ flat/ unit in Tribhuvan Complex, Ishwar Nagar, 10 th Mile Stone, Delhi-Matura Road, New Delhi-110065. The said company was thus allotted a flat no.218 measuring about 635 sq. ft. in the abovesaid complex, vide letter/ agreement dated 25.08.1986. The basic rate was agreed and fixed at Rs.500/- per sq. ft. and the total agreed sale consideration of Rs.3,17,500/- was to be paid in installments. There was no time limit fixed for completion of the complex. As per the information given to the plaintiff the said complex was to be built and developed by Ishwar Industries Ltd. (owner Mr. Bharat Bhaskar) and M/s B. D. Developers (owner Mr. Acharya Arun Dev). The said M/s. Mars Builders (P) Ltd. sold and transferred its above said booking of the said flat and all rights in the above said letter/ agreement dated 25.08.1986 to the plaintiff for valuable consideration on 06.09.1986. The above said transfer in favour of the plaintiff was duly accepted and acknowledged in writing by making necessary endorsement on the above said letter/ agreement dated 25.08.1986. Plaintiff paid and the said M/s. B. D. Developers accepted and acknowledged the receipt of a sum of Rs.76,200/- on 09.09.1986, i.e. full amount due and payable up to second installment.
CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 2 of 35 The plaintiff made further payment of Rs.2,00,000/- to Mr. Acharya Arun Dev, which was confirmed in writing dated 01.07.1987. It was also agreed and confirmed in writing dated 01.07.1987 that on the said sum of Rs.2,00,000/- paid by the plaintiff the plaintiff will be paid interest @3% per month and the installment due for purchase of the above said space/ flat/ unit will be paid out of the said Rs.2,00,000/- and accordingly the interest will be paid on the balance amount. The construction of the abovesaid Tribhuvan Complex could not be completed and thus the possession of above said flat/ unit, which the plaintiff had agreed to purchase could not be handed over by the owner/ builder/ developer to the plaintiff. In fact, the plaintiff was informed that the construction of the property/ complex could not be completed as there was some litigation pending with MCD. However the plaintiff was subsequently informed by M/s. B. D. Developers vide its letter dated 17th April 1989 that the said litigation with MCD has been decided by the Hon'ble Lt. Governor of Delhi. Thus, it is clear that there was no fault or delay on the part of the plaintiff to perform his part of the abovesaid agreement, which the plaintiff was always ready and willing to perform by making balance payment. Plaintiff was subsequently informed vide letters dated 15.06.1991 and 27.06.1991 that the project development work of the above said project was taken over by M/s. Growth Techno Projects Ltd. from M/s. B. D. Developers and the construction shall be completed shortly. However, the plaintiff was informed by the said M/s. Growth Techno Projects Ltd. vide its letter no.GC-172/2129/96 dated 07 th June, 1996 that there was undue delay in construction and completion of the CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 3 of 35 abovesaid project because of objections raised by the authorities concerned and sealing of the property besides notice issued under the Urban Land (Ceiling & Regulation) Act, as a result of which all the construction activities were stopped. The plaintiff was further informed that in the mean time the validity of the sanctioned plan expired and legal recourse was taken to get the same approved/ revalidated. The plaintiff was also informed that a suit was also filed by Bank of India with whom the property was mortgaged for some previous loans taken by the owners, wherein some restrained order from selling, alienating or parting with possession was passed. The plaintiff was also informed that the said allotment of the flat of the planitiff has been changed from the flat/ unit no.218 admeasuring 635 sq. ft. to unit No.123, admeasuring about 643 sq. ft. instead of 635 ft., as originally agreed, which change was accepted by the plaintiff.
2. In response to the letter dated 7th June, 1996, the plaintiff informed the said M/s. Growth Techno Projects Ltd. vide reply letter dated 13th August, 1996 that the plaintiff was still ready and willing to purchase the above said flat/ unit and was also ready and willing to perform his part of the agreement and to pay the amount, if any, legally due and payable for the same. Plaintiff was earlier informed that on the over due installment amount, if any, interest @ 18% per annum will be charged, but subsequently the plaintiff was informed that the interest rate @ 24% per annum will be charged, which was arbitrarily, unilaterally and with mala fide intention increased from 18% per annum which rate of interest was earlier informed to the plaintiff. The plaintiff never agreed and/ or consented to for the CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 4 of 35 payment of interest that too @ 24% per annum per annum. Plaintiff was never informed immediately before or at the time of booking of the above said flat/unit and/or immediately thereafter that the property of which the said flat/unit is a part and which the Defendant have agreed to sell, transfer and convey to the Plaintiff, was mortgaged with the Bank/financial institution. Even at the time of receiving and accepting part sale consideration from the Plaintiff, the Plaintiff was never informed about the alleged mortgage. The Plaintiff is neither aware nor concerned with the alleged mortgage, if any, and it is for the Defendant to pay the said Bank/financial institution and get redeemed the property and to transfer, convey and sell a marketable title of the above said flat/unit in favour of the Plaintiff. It is only in 1996 for the first time the Plaintiff was informed about the alleged loan, mortgage and/or outstanding amount, with which the Plaintiff has no concern of any kind whatsoever and the Plaintiff is not liable to pay the same or any part thereof. In fact, the Plaintiff was informed that the repayment of the said loan/ outstanding amount will be paid by selling the owner's share of the flat/unit in the above property.
3. The said M/s Growth Techno Projects Ltd. confirmed that as on 24th September 1997 a sum of Rs. 2,76,200/- was already paid by the Plaintiff towards the purchase cost of the above said flat/unit as against the total cost of Rs.3,85,000/-. The said M/s Growth Techno Projects Ltd., however, claimed and demanded certain charges and amounts which were/ are neither due nor payable nor recoverable CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 5 of 35 from the Plaintiff and the same was not the liability of the Plaintiff under any circumstances. In this regard the Plaintiff met various officials of M/s Growth Techno Projects Ltd. repeatedly and conveyed that the Plaintiff was always and is still ready and willing to perform his part of the agreement and to pay the balance amount legally due and payable in respect of the said flat/unit. The Plaintiff, however informed that the Plaintiff is not liable to pay the amounts which are neither due nor payable nor recoverable from the Plaintiff and which is not part of the agreement, including the alleged bank dues alleged to be due for some alleged previous loans taken by the owners, as the Plaintiff was neither informed, nor aware nor concerned with the alleged loan and/or the alleged outstanding, if any and the same does not form part of sale consideration. Plaintiff was again informed vide Letter dated 3rd October 1997 that the construction of the above said complex, of which the said flat/unit which the Plaintiff had agreed to purchase and acquire, will be recommencing shortly. The Plaintiff vide his letter dated 25th November 1998 confirmed that a sum of Rs.2,00,000/- was paid to Shri. Acharya Arun Dev and the installment amount, if any due has to be and should be adjusted out of the said amount and interest thereon.
4. That the said M/s Growth Techno Projects Limited again informed the Plaintiff in writing that it has compromised the matter with the Bank and has made payment to the Bank towards settlement of the dues. Further M/s Growth Techno Projects Ltd. vide its letter dated 6th March 2003 informed and confirmed that the Plaintiff had CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 6 of 35 already paid a sum of Rs. 5,74,264/- against cost of Rs. 3,85,800/- and Rs.33,436/- towards Delhi Vidyut Board charges for electrical installation and electricity meter. However, in spite of the above said admitted payments received from the Plaintiff against sale consideration of the above said flat/ unit, it was claimed that a sum of Rs. 3,37,l89.20p is due towards Bank settlement charges. It is submitted that the alleged sum of Rs. 3,37,189.20p was/ is not the liability and /or responsibility of the Plaintiff and the alleged sum or any part thereof was neither due nor payable nor recoverable from the Plaintiff as the same was never agreed to be part of the sale consideration and the Plaintiff had/has no concern whatsoever with it. It was also wrongly and falsely stated that a sum of Rs.2,55,495/- is due and payable as interest on delayed payment. In fact there was no delay in payment of the sale consideration by the Plaintiff when admittedly the construction was not in progress and some litigation was admittedly pending with MCD with regard to construction and the validity of the plans have expired. Thus the Plaintiff was not liable and/or responsible to make further payment towards sale consideration and as no amount was due and payable, the question of any delayed payment and/or payment of interest on the alleged delayed, if any, does not arise. The Plaintiff thus disputed and denied the alleged claim of interest. Thereafter the Plaintiff received a letter dated 21st April 2004 from Mr. Madhusudan Saharay, Advocate, along with a copy of an order dated 26th March 2004 stated to have been passed by the Hon'ble High Court at Calcutta whereby Mr. Madhusudan Saharay, Advocate, was appointed as Receiver in CC CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 7 of 35 No. 294 of 2003. By the said letter the Plaintiff was asked to send the money due and outstanding against in respect of the above said flat/ unit to the said Receiver, as per the order passed by the Hon'ble High Court at Calcutta. The Plaintiff vide letter dated 5th June 2004 duly informed the said Receiver, Mr. Madhusudan Saharay, Advocate, that the alleged sum of Rs. 3,37,189.20p is neither due from or payable by the Plaintiff and in fact amount more than the installment due have already been paid and deposited.
5. Defendant vide letter No. TC/UN/P.23/03 dated 7th April 2003 informed the Plaintiff that the dues of Bank of India have already been paid but the project is still to be completed. However, the said Defendant failed, neglected and/ or avoided to inform the exact extent of construction already raised, the tentative time to be taken to completion and handing over possession of the units to the respective purchasers/allottees, including the Plaintiff. The said Defendant also failed to inform the Plaintiff about the dispute with M/s Surprise Traders Ltd. and others versus the Defendant No. l filed in the Hon'ble High Court of Calcutta being CC No. 294 of 2003 in which Receiver was appointed, as aforesaid. Thereafter the Plaintiff repeatedly met concerned officials of the Defendant No.1 and asked for complete details of the amount if any, alleged to be due from the Plaintiff and offered to pay and deposit the legally payable and due amount, if any. However, till date the Defendants have not provided the complete details of the amounts, if any, alleged to be legally due and payable from the Plaintiff in respect of the above said unit/flat and have also failed to offer to hand over the actual peaceful CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 8 of 35 physical possession of the said flat/unit, free from all encumbrances, charges, lien etc. to the Plaintiff in spite of passage of considerable time and payment of sale consideration as aforesaid. Defendants failed and neglected to inform the Plaintiff about completion of the property and the date of handing over possession of the said flat/unit to the Plaintiff. During various personal visits made by the Plaintiff, it was found that instead of handing over possession of the said unit /flat to the Plaintiff. The Defendants have illegally, unauthorizedly, with mala fide intention, biased mind and ulterior motive and in order to make illegal and unlawful gain and profits for the Defendants and to cause loss and injury to the Plaintiff and/or his property, have allowed some body (tailor) to use and occupy the above said flat/unit of the Plaintiff thereby depriving the Plaintiff the possession, use and occupation of the same and benefits thereof and it appears that because of the said fact of Defendants illegally and unauthorizedly allowing some third person to use and occupy the said flat/unit thereby making illegal and unlawful gain and profit for themselves, have not offered the actual peaceful vacant physical possession of the said flat/unit to the Plaintiff, although the Plaintiff was always and is still ready and willing to perform his part of the agreement and to pay the legally due amount, if any, as the Plaintiff had admittedly already paid considerable amount towards the cost of the said flat/unit. In this regard reference can be made to letters dated 20th March 2010, 13th September 2010 and 23rd March 20l1, duly received by the Defendants. The above said acts of omission, commission and negligence of the Defendants was intentionally and deliberate and the CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 9 of 35 same also amounts to cheating, criminal breach of trust and other criminal offenses for which the Defendants and all other directors of the Defendant No. l company are jointly and severally liable.
6. Plaintiff having paid the sale consideration, as aforesaid, which was admittedly received and accepted without any objection, the Defendants are now precluded from raising any contention whatsoever and/or acting in any manner contrary to and/or in consistent with the above said agreement and/or contrary to the law of the land. The Defendants till date have failed to show and/or provide copy of the approved/sanctioned building plan in respect of the said property showing the said unit of the Plaintiff. The Defendants have further failed, neglected and/or avoided to show and/or provide the completion plan, completion certificate/ occupancy certificate in respect of the said property showing the said unit of the Plaintiff, which is the duty and obligation on the part of the Defendants as the Plaintiff, as per law and under the rules, cannot use and occupy the said unit without completion/occupancy certificate. The Plaintiff is not sure as to whether the building/property of which the said unit of the Plaintiff is a part has been raised, constructed and completed in accordance with law, rules and regulations or not.
7. Above said agreement dated 25-8-1986 is still valid subsisting and binding and the parties have acted in terms of the same as the Plaintiff had paid the sale consideration which has been duly received and accepted as aforesaid and was always and is still ready and willing to pay the balance amount, if any due and perform his CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 10 of 35 part of the agreement. M/s. Ishwar Industries Ltd., vide its letter dated 7th April 2003 informed the Plaintiff that the amount due to the bank have been paid and to complete the project a Committee has been constituted. The said lshwar Industries Ltd. vide its letter dated 14- 11-2005 asked for some documents with regard to various payments made by the Plaintiff. The Defendants failed and neglected to inform the Plaintiff about completion of the property and the date of handing over possession of the said flat/unit to the Plaintiff. In fact the Defendants have failed to show and provide sanctioned building plan, completion plan and completion certificate/occupancy certificate till date, as without occupancy certificate the Plaintiff cannot occupy the said unit/flat and thus limitation cannot start or run against the Plaintiff. During various personal visits made by the Plaintiff, it was found that instead of informing about the completion of the property and handing over possession of the said unit/ flat to the Plaintiff, the Defendants allowed some other person to use and occupy the same and failed to inform the Plaintiff the date of vacation of the said unit/flat by the said other person and the date when the possession of the said Unit/Flat will be handed over to the Plaintiff. The Plaintiff vide his letter dated 20-3- 2010, confirmed the above said fact and enquired about the exact date of handing over possession of the said Unit/flat by the Defendants to the Plaintiff, which was followed by letters/reminders dated 13-9-2010 and 23-3-2011. The Defendants now can not act or allowed to act contrary to the said agreement and/or contrary to law of the land in order to deprive the Plaintiff CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 11 of 35 his legal and legitimate right, claim and entitlement. By the aforesaid inaction and negligence and acts of omission and commission, the Defendant No.1 have now for the first time refused and/or neglected to perform its part of the agreement and the obligations there under. Prior to it the Defendants acknowledged, accepted and confirmed the fact of the above said agreement which was/is subsisting and fully operational. It is reiterated that the Plaintiff had already performed his part of the agreement by making various payments, as aforesaid. However, in case any amount was/is due and payable by the Plaintiff, the Plaintiff was always and is still ready and willing to pay the same and to perform his part of the agreement. The Plaintiff at no point of time has refused or neglected to perform his part of the agreement.
8. Due to inaction, acts of omission and commission and negligence on the part of the Defendants, it has now become necessary for the Plaintiff to initiate appropriate proceedings for specific performance of the above said agreement and to get the title of the above said unit/flat by execution and registration of the document of title, i.e. conveyance deed/sale deed/transfer deed, as per law. The Plaintiff was always and is still ready and willing to bear all necessary charges and expenses pertaining to the execution and registration of the title document or any other such Government dues, charges etc., if any, payable. Defendants are liable and bound to take all necessary steps and/or perform all necessary obligations as may be required for execution and registration of conveyance deed/sale deed/transfer deed, as per law CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 12 of 35 in favour of the Plaintiff and for transferring and conveying a good marketable title of the above said flat/unit in favour of the Plaintiff. The Defendants are also liable to hand over peaceful vacant possession of the said flat/unit to the Plaintiff. The Plaintiff is entitled to specific performance of the above said agreement and the Defendants are liable to perform their part of the agreement and to sell, transfer and convey a good marketable title of the said flat/unit in favour of the Plaintiff besides handing over peaceful vacant possession thereof to the Plaintiff. The Defendants and their predecessors in interest have agreed to sell and transfer the above said flat/unit to the Plaintiff and have also received the sale consideration as aforesaid. There is no reason cause or justification as to why the Defendants should not be asked and directed to perform their part of the said agreement and to sell, transfer and convey a good marketable title of the above said flat/unit in favor of the Plaintiff by executing and registering the sale deed/transfer deed /conveyance deed in favor of the Plaintiff and also by handing over peaceful vacant possession thereof to the Plaintiff. The Defendants and their predecessors in interest through out neither disputed nor denied entering into and execution of the above said agreement in respect of the said unit/flat with the Plaintiff. In fact, the Defendants and their predecessors in interest through out represented, assured and acted as per the above said agreement and always represented and made the Plaintiff belief that the above said agreement was/is binding as irrevocable and the same has never been cancelled or terminated CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 13 of 35 by either party. The Plaintiff, bona fide believing and relying on such representations and assurances given by the Defendants and their predecessor in interest, made various payments towards sale consideration which were duly received, accepted and acknowledged by them with regard to the above said flat/unit, without any objection , protest or reservation of any kind or nature whatsoever.
9. Plaintiff further stated that there is no delay or default on the part of the Plaintiff. The delay, if at all in bringing the present action for specific performance does not in any manner, prejudice the rights of the Defendant, in as such as all obligation which were required to be performed in favor of the Defendants were performed by the Plaintiff at the time of execution of the agreement to sell itself. The sale consideration was paid by the Plaintiff from time to time to the Defendants and/or their predecessor in interest, as aforesaid. The intention of the Defendants, in view of the rise in the value of the suit property, has become dishonest and is attempting to avoid and/or to pressurize the Plaintiff to satisfy the unjust and wholly illegal demands of the Defendants. The Defendants have earlier never refused to perform their part of the agreement but have failed to perform their part of the same. The conduct of the Defendants has given the Plaintiff the apprehension that the Defendants have become dishonest and are trying to wriggle out of the above said agreement and may sell, transfer or convey the above said flat/unit in favour of any third party in order to deprive or delay the CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 14 of 35 handing over possession and /or conveying title of the said flat/unit in favor of the Plaintiff. The Plaintiff bona fide believe and has reasons to believe that the Defendants are trying to rescind from the above said agreement, since the rates of the property have since arisen.
10. Defendants are liable to execute and register the sale/transfer/conveyance deed in respect of the suit property, i.e. the said unit/flat, in favor of the Plaintiff as agreed to under the said agreement. The Plaintiff has already paid considerable amount of the sale consideration to the Defendant which has been acknowledged, as aforesaid. The said agreement to sell is still valid, subsisting and binding upon the parties. The Defendants have no right, whatsoever to disregard the said agreement to sell or to do any act contrary to the terms and conditions of the said agreement and the Defendants are liable to be restrained by an injunction from doing so. Defendants have got no right whatsoever to not to act in accordance with the above said agreement after having received, accepted and acknowledge the receipt of the sale consideration, as aforesaid. The Plaintiff is having right and interest in the said flat/unit. The Plaintiff states that damages would not be an adequate compensation for the failure of the Defendants to specifically perform their part of the above said agreement nor can such damages if any can be computed in terms of money. The above said agreement is in respect of an immovable property and the same should be specifically performed.
CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 15 of 35
11. Present suit is within the period of limitation as the Defendants and/or their predecessors were always assuring and representing the Plaintiff that they will complete the building and handover the actual peaceful vacant possession of the said flat/unit to the Plaintiff and they have never denied the same. Admittedly the Defendants and/or their predecessors in interest have not raised and completed the construction as per the terms of the said agreement but they always assured and represented that the construction wilI be raised and completed and the possession of the above said flat/unit shall be handed over to the Plaintiff. The Defendants failed and neglected to inform the Plaintiff about completion of the property and the date of handing over possession of the said flat/unit to the Plaintiff. There was no cause, reason or occasion for the Plaintiff to disbelieve the Defendants and/or their predecessors in interest who had admittedly received and accepted the sale consideration, as aforesaid, but asked for some illegal and unlawful charges/ payments which were never agreed to be paid by the Plaintiff under the said agreement or otherwise. In the recent past, the Plaintiff during his various personal visits to the property found that instead of informing about the completion of the property and handing over possession of the said unit/flat to the Plaintiff, the Defendants have allowed some other person to use and occupy the same and failed to inform the Plaintiff the date of vacation of the said unit/flat by the said other person and the date when the possession of the said Unit/Flat will be handed over to the Plaintiff. The Plaintiff vide his letter dated 20-3-2010 CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 16 of 35 confirmed the above said facts and enquired about the exact date of handing over possession of the said Unit/flat by the Defendants to the Plaintiff, which was followed by letters/reminders dated 13- 9-2010 and 23-3-2011, to which no reply have been received. The Plaintiff now bona fide believe and have reasons to believe that the performance has been refused by the Defendants, as the Defendants in spite of receipt of various letters and also the legal notices dated 21-6-2011 and 30th July 2011 failed to comply with the same and/or to give any reply to the same, as no reply to the same have been received. The Defendants have failed, neglected and/or avoided to inform the date as to when the possession of the said flat/unit will be handed over to the Plaintiff.
12. Aforesaid agreement is still valid subsisting and is in existence. The performance of the said agreement is not barred under any law and therefore the present suit for specific performance of the same has been filed. The Defendant no.1 being the Company and the Defendants 2 and 3 being its directors and principal officers, are jointly and severally liable to the Plaintiff.
13. Written Statement was filed on behalf of the defendants in which the defendants denied and disputed all the averments in the plaint. In the Written Statement, it is stated that present suit filed by the plaintiff is frivolous and faulty on its face itself. This is apparent from the documents filed by the plaintiff regarding allotment of the unit and any payment made thereof the correspondence is only from CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 17 of 35 1986 till 2004. The plaintiff maintained thereafter complete silence on this subject till 2011. The plaintiff in order to avoid his liabilities towards the outstanding dues responded to the Court Receiver's letter dated 21.04.2004 negatively and asked for the calculation providing basis of such demand in the matter "Surprise Trader's Ltd. & Ors. vs. Ishwar Industries & Anr." and never took any initiative to pay the same.
14. It is further stated that the suit filed by the plaintiff is time barred by virtue of Article 54 of the Limitation Act, according to which suit for specific performance should have been filed within three years from the date of cause of action. The present suit rather stands nowhere for manifold reasons viz. It is time barred and is exhausted beyond the limits, it is filed on the whims and fancies of the plaintiff by suddenly having realized that the prices of property have gone up manifold. As a consequence of that demanded possession of the unit No. 123 in Tribhuvan Complex, Ishwar Nagar, 10th Mile Stone, Delhi Mathura Road, New Delhi-110065 after maintaining silence for six years. It is further stated that the plaintiff responded to the letter dated 21.04.2004 of the Court Receiver negatively vide his letter dated 05.06.2004 refusing to pay the outstanding dues clearly stating that "The interest on itself on loan of Mr. Acharya Arun Dev was always more than the amount of installment to be paid. The plaintiff asked for the details of the calculation of such a demand letter of the Court Receiver. Thereafter, the plaintiff remained silent and did not approach the Court Receiver in this respect. It is further evident that any amount paid by the plaintiff to Sh. Acharya Arun Dev was CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 18 of 35 purely of personal nature and had no nexus to the payments due under the agreement of allotment dated 25.08.1986 and the plaintiff is trying to mislead this Court. By responding negatively to the court receiver's demand and avoidance to pay the dues as per the court's order for the said unit No. 123 at Tribhuvan Complex, the Plaintiff immediately lost his right to claim for its possession. Despite that the defendant No.1 sent series of reminder letters in this respect and taking over the peaceful possession of the said unit. It is apparent that the plaintiff actually had no interest in the unit allotted to him, since the plaintiff remained silent for the period from 2004 till 2010 i.e six effective years and the allotment of the said unit stood cancelled after the last and final reminding letter dated 10.08.2004 for paying the outstanding due else the allotment shall stand cancelled was sent by the defendant no.1 to the plaintiff. According to the letter dated 01.07.1987 from one Shri Acharya Arun Dev the number of Unit allotted to the plaintiff is 218 measuring 635 square feet, which was changed to Unit No. 123, measuring 643 square feet as per para 3 of the plaint. The plaintiff claims that this change was accepted by him, however, when and in what manner it was accepted is not mentioned in the plaint.
15. It is further stated in the Written Statement that the plaintiff made initial payment to the Developer. No amount was ever received by the defendant No.1 and 2 whether from the plaintiff or from the Developer. The statement of accounts was also maintained by the Developer. Furthermore, as per the documents annexed by the plaintiff, it is evident he was interacting in all manners with the Developer. However, with the malafide intentions for filing the CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 19 of 35 present suit, the plaintiff wrote for the first time to the defendant No.1 & 2 in 2010, after more than two decades of entering into an Agreement with the Developer.
16. In the Replication, the plaintiff has denied the contents of the Written Statement. Plaintiff has reiterated & reaffirmed the contents of the plaint.
17. From the pleadings of the parties, the following issues were framed on 22.04.2015 by the Ld. Predecessor of this Court:-
ISSUES
1. Whether the plaintiff is entitled to decree of specific performance, as prayed for? OPP
2. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for ? OPP
3. Relief.
18. In support of his evidence, the plaintiff examined himself as PW-1. PW-1 Sh. Ashok Kumar Kinra tendered his evidence by way of affidavit Ex.PW1/A and reiterated and reaffirmed the contents of the plaint. PW-1 has relied upon following documents:
1. Ex. PW1/1 is the letter/agreement dated 25.08.1986.
2. Ex. PW1/2 is the copy of the conformation letter dated 01.07.1987.
3. Ex. PW1/3 is the letter dated 17.04.1989.
4. Ex. PW1/4 is the letter dated 15.06.1991.
5. Ex. PW1/5 is the letter dated 27.06.1991.
6. Ex. PW1/6 is the letter dated 07.06.1996.
7. Ex. PW1/7 is the reply dated 13.08.1996. CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 20 of 35
8. Ex. PW1/8 is the letter dated 24.09.1997.
9. Ex. PW1/9 is the copy of letter dated 03.10.1997.
10. Ex. PW1/10 is the copy of letter dated 25.11.1998.
11. Ex. PW1/11 is the copy of letter dated 06.03.2003.
12. Ex. PW1/12 (Colly) is the copy of letter dated 21.04.2004 alongwith the copy of the order dated 26.03.2004.
13. Ex. PW1/13 (Colly) is the reply dated 05.06.2004.
14. Ex. PW1/14 is the copy of letter dated 07.04.2003.
15. Ex. PW1/15 is the copy of letter dated 20.03.2010.
16. Ex. PW1/16 is the copy of letter dated 13.09.2010.
17. Ex. PW1/17 is the copy of letter dated 23.03.2011.
18. Ex. PW1/18 is the legal notice dated 21.06.2011.
19. Ex. PW1/19 is the postal receipt.
20. Ex. PW1/20 is the another legal notice dated 30.07.2011.
21. Ex. PW1/21 to Ex. PW1/23 are three original postal receipts.
22. Ex. PW1/24 & Ex. PW1/25 are two original AD cards.
23. Ex. PW1/26 is the envelope.
19. No other witness was examined by the plaintiff and PE was closed vide order dated 04.03.2016.
20. In support of its evidence, defendant company was examined Sh. Bharat Bhaskar as DW-1, who has tendered his evidence by way CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 21 of 35 of affidavit Ex. DW1/A. DW-1 has relied upon the following documents:
1. Ex. DW-1/1 is the letter dated 20.05.2004.
2. Ex. DW-1/2 is the letter dated 30.06.2004.
3. Ex. DW-1/3 is the letter dated 20.07.2004.
4. Ex. DW-1/4 is the letter dated 10.08.2004.
21. No other DW was examined and DE was closed vide order dated 04.07.2017.
22. This Court has heard arguments advanced by Ld. Counsels for the parties and perused the record carefully.
23. Plaintiff has filed instant suit for Specific Performance of letter/ Agreement dated 25.08.1986 Ex.PW1/1. In a suit for Specific Performance, the plaintiff has to prove:-
(a) a valid sale agreement
(b) his/her readiness and willingness to perform his/her part of the contract; and
(c) the breach of the contract by the defendant.
The execution of letter/ agreement dated 25.08.1986 Ex.PW1/1 is admitted and there is no dispute regarding its validity. Now, it is to be seen whether plaintiff was ready and willing to perform his part of contract or not.
Section 16 (c) of Specific Relief Act, 1963 mandates 'readiness' and 'willingness' on the part of plaintiff as a condition precedent to seek specific performance. Section 16 (c) is reproduced as under:-
Section 16. Personal bars to relief.
CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 22 of 35 Specific performance of a contract cannot been forced in favour of a person XXXXXXX..
(c) who failed 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 purpose of clause(c),
(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court.
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
The 'readiness' and 'willingness' are two separate issues. The readiness depends on the availability of requisite funds whereas the willingness depends on the intention of the purchaser. The "readiness" has to be proved by the purchaser by leading evidence relating to the availability of funds whereas the intention has to be inferred from the various circumstances on record.
24. The crucial question for the relief claimed by the plaintiff is whether the plaintiff is entitled to the relief claimed which is specific performance of the letter/ agreement in question. The sine qua non requirement getting the relief claimed is that the plaintiff has always been ready and willing to perform his part of the contract. This is the core requirement of Section 16(c) of Specific Relief Act.
25. This Court has relied on the judgment of Hon'ble High Court of Delhi titled as "Om Prakash Aggarwal Vs. Raj Kumar Mittal, CS (OS) 1284/2011" , relevant paragraphs of the judgment are as under:
15. The "readiness" and "willingness" are two separate CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 23 of 35 issues. The former depends on the availability of requisite funds whereas the latter depends on the intention of the purchaser.
16. The "readiness" has to be shown by the purchaser by documents relating to the availability of the funds whereas the intention has to be inferred from his conduct and circumstances.
17. If there is no availability of funds with the purchaser, he can be non- suited on the ground of non-readiness alone.
18. If the plaintiff is able to prove the availability of the balance sale consideration with him at the time fixed for performance in the agreement, it is an indication of his readiness but his willingness/intention to perform cannot be inferred from readiness alone.
27. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115, Hon'ble Supreme Court held that 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 to adjudge the "readiness" and "willingness" of the plaintiff. The amount of balance sale consideration must be proved to be available with the purchaser right from the date of execution till the date of decree. The Court upheld the dismissal of the suit for specific performance on various grounds inter alia that the plaintiff was dabbling in real estate business without means to purchase the suit property and the very contract was speculative in nature. The relevant findings are reproduced hereunder:-
"5. ...Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 24 of 35 same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract."
(Emphasis supplied)
28. In J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429, the Supreme Court explained the distinction between "readiness" and "willingness". The former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance.
18. In Acharya Swami Ganesh Dassji v. Sita Ram Thapar , (1996) 4 SCC 526] this Court drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. As far as the willingness to perform the contract is concerned, the conduct of the plaintiff has to be properly scrutinised along with the attendant circumstances. On the facts available, the Court may infer whether or not the plaintiff was always ready and willing to perform his part of the contract. It was held in para 2 of the Report: (SCC p. 528) "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 determining his willingness to perform his part of the CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 25 of 35 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. ... The factum of readiness and willingness to perform the plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the 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 bide for the time which disentitles him as time is of the essence of the contract."
The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. The principles were recently elaborated in Aniglase Yohannan v. Ramlatha and Ors. (2005 (7) SCC
534).
45. In K.S. Vidyanadam v. Vairavan, (1997) 3 SCC 1, the Supreme Court held that in case of delay/inaction on the part of the plaintiff for two and a half years, it would be inequitable to give a relief of specific performance to the plaintiff. The finding of the Supreme Court is reproduced hereunder:
"13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2½ years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 26 of 35 ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices
- according to the defendantss, three times - between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff."
(Emphasis supplied)
46. In Saradamani Kandappan v. S. Rajalakshmi, (2011) 12 SCC 18, Hon'ble Supreme Court declined to grant the discretionary relief of specific performance to the purchaser who had made payment of nominal advance to the seller. The finding of the Supreme Court is reproduced hereunder:-
"25. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and `non-readiness'. The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 27 of 35 Rs.One lakh and received Rs.Ten Thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining Rs.Ninety Thousand, when the property value has risen to a crore of rupees.
43. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam [(1997) 3 SCC 1]:
(i) The courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.
(ii) The courts will apply greater scrutiny and strictness when considering whether the purchaser was "ready and willing" to perform his part of the contract.
(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. The courts will also "frown" upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three-year period is intended to assist the purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part-performance, where equity shifts in favour of the purchaser."
(Emphasis supplied)
47. In B. Vijaya Bharathi v. P. Savitri, 2017 (4) Civil Court Cases 291 (S.C.), the Supreme Court declined the specific performance to the purchaser who stayed quiet for one year and eleven months after the repudiation of the agreement by the seller. The Supreme Court held that no prudent person would stay quiet for such a long period if he was interested in completing the sale. The Supreme Court drew the inference from the plaintiff‟s conduct that he cannot CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 28 of 35 possibly be said to be ready and willing to perform the agreement. The relevant portion of the Supreme Court judgment is reproduced hereunder:
"12. One crucial fact that stares us in the face is that on 13.03.1992 the first defendant ran away from the Registering Authority making it clear that she did not want to act in furtherance of the Agreement in executing a General Power of Attorney in favour of the plaintiff's husband. The High Court was right in stating that no prudent person would stay quiet for a period of one year and eleven months after such an unequivocal repudiation of the agreement if they were really interested in going ahead with the sale transaction. The only inference, therefore, from this is that the plaintiff cannot possibly be said to be ready and willing throughout to perform their part of the agreement."
26. This Court further relied upon judgment titled Umabai & Anr. Vs. Nilkanth Dhondiba Chavan & Anr., (2005)6 SCC 243 , Hon'ble Supreme Court of India in para 30 held as under:
"It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondent were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or statement made in the examination in chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidence brought on records."
27. Plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. He deposed in consonance with the plaint. He deposed during his cross-examination that he does not know any detail that it was not the responsibility of defendant no.1 to build and develop the Tribhuvan Complex. He admitted that M/s B. D. CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 29 of 35 Developers was responsible for construction and development of Tribhuvan Complex. He further deposed that he was not aware that M/s Ishwar Industries Ltd. was only the confirming authority to transfer the allotment of land from M/s. Mars Builder Pvt. Ltd. in capacity as owner of the land. He voluntarily deposed that he was only dealing with M/s B. D. Developers through Acharaya Arun Dev. He admitted that transfer of unit was in accordance with the terms and conditions mentioned in the letter dated 25.08.1986 and he had made payment of Rs.38,100/- around the time of allotment in respect of allotment of the unit. He further deposed that he did not remember if he made any payment with respect to the said transaction to defendant no.1 or Mr. Bharat Bhaskar. He voluntarily deposed that he did not remember to whom he made the payment of Rs.38,100/-. He further admitted that receipt of Rs.2 lacs dated 01.07.1987 Ex.PW1/2 was issued by Acharaya Arun Dev on his personal letter head not on the letter head of M/s B. D. Developers. He further deposed that he did not remember the date on which he made the payment of Rs.2 lacs to Acharya Arun Dev however, he made the payment in the year 1987. Record shows that plaintiff neither placed on record receipt of Rs.2 lacs paid to Acharaya Arun Dev nor he examined him to prove letter issued by him dated 01.07.1987 Ex.PW1/2. He admitted that he has not filed any suit or complaint against M/s B. D. Developers, M/s Mars Builders Pvt. Ltd. and Mr. Acharaya Arun Dev. He admitted that there is no signature of defendant no.1 & 2 on documents i.e. Ex.PW1/4 to Ex.PW1/6.
28. Record shows that Ex.PW1/4 i.e. letter dated 15.06.1991 issued CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 30 of 35 by M/s Growth Techno Project Ltd. to plaintiff regarding development and payment of installment for Growth Centre, Ex.PW1/5 issued by M/s Growth Techno Projects Ltd. to plaintiff regarding details of M/s Growth Techno Projects taking over assets and liability of M/s B. D. Developers and reminder for payment of installments are signed by Ajay Khanna, Senior Vice President and Ex.PW1/6 letter dated 07.06.1986 issued by M/s Growth Techno Project Ltd. to plaintiff was signed by Acharaya Arun Dev which among other things talks about payment schedule of Unit no.123 of Tribhuvan Complex. He admitted that he had contacted defendant no.1 from 07.06.1986 to 07.04.2003 to enquire as to whether the suit property was mortgaged or not. He further deposed that he did not try to meet defendant no.2 Director of defendant no.1 for the payment of said allotment. In response to a question asked by Ld. Counsel for defendants that who informed him that he is not liable to pay any dues regarding suit property, plaintiff/PW1 replied that no one informed him that he is not liable to pay any kind of dues regarding the suit property. He admitted that after receiving letter Ex.PW1/14 he did not provide the requested information to defendant no.1 & 2. He further admitted that he has received letter dated 06.04.2004 from defendant no.1 & 2 i.e. Mark PW1/ DX1. Record shows that this letter is regarding outstanding payment against unit no.123 in Tribhuvan complex, Ishwar Nagar to the plaintiff by the defendant no.2/ Bharat Bhaskar, director of defendant no.1 requesting plaintiff to issue Demand Draft favouring Mr. Madhusudan Sharay, the receiver appointed by the Court, for entire outstanding amount along with interest at the earliest and CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 31 of 35 plaintiff did not reply to abovesaid letter. Record further shows that letter issued by Director of Defendant no.1 i.e. Ishwar Industries Ltd. to plaintiff dated 07.04.2003, by way of this letter it is informed to the plaintiff that agreement with the previous builder M/s Growth Techno Projects Ltd./ Acharaya Arun Dev has been terminated and plaintiff was asked to complete his documentation and to provide details of payments made by him to M/s Growth Techno Projects Ltd. and earlier to M/s. B. D. Developers along with receipts for the same.
29. On the other hand, DW1 deposed that defendant no.1 and he himself came to know about the existence of plaintiff when the developer or builder gave a list of allottees from whom the installments were to be received to the Ld. Receiver appointed by the Hon'ble High Court of Calcutta. He deposed that he did not remember the exact date and month but it was somewhere in 2004. He deposed that amount of Rs.3,37,189.20 as mentioned in Ex.DW1/1 was informed to defendant no.1 by the builder/ developer to be due against unit No.123. He further deposed that the builder/ developer has not been given them any specific letter/ details about the amount due against unit no.123 but the same was mentioned in the list of receivable provided by the builder/ developer and by the Ld. Receiver. He deposed that defendant no.1 and he himself have informed the plaintiff that building is complete and he take the possession after making the balance payment. This information has been given to plaintiff by them vide letter Ex.DW1/1 to Ex.DW1/4. He deposed that defendants have mentioned about termination of agreement to the plaintiff in their letters DW1/2 to Ex.DW1/4. No separate termination CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 32 of 35 letter was sent to the plaintiff. He further deposed that he cannot tell the exact date of termination but as per the letter Ex.DW1/4 there was an automatic termination on the expiry of period as mentioned in it.
30. To succeed in a Suit for Specific Performance, the plaintiff has to prove :(a) that a valid agreement of sale was entered into by the defendant in his favour and the terms thereof; (b) that defendant committed breach of contract; and (c) that plaintiff was always ready and willing to perform his part of obligations in the terms of the contract.
31. Ld. Counsel for the defendants has vehemently argued that in the present case, the plaintiff though pleaded his readiness and willingness to perform the contract but failed to prove the same and, therefore, the plaintiff herein is not entitled to relief of specific performance under Section 16 (c) of the Specific Relief Act, 1963. On the other hand, Ld. Counsel for the plaintiff has argued that plaintiff was always ready and willing to perform his part of obligation as mentioned in plaint and deposed by him in his evidence.
32. Record shows that in the present case, the plaintiff has only made a bare pleading of readiness and willingness to perform his part of contract. However, plaintiff after receiving letter dated 07.04.2003 Ex.PW1/14 did not provide the requisite information to defendant no.1 & 2 regarding the payments made by him to M/s B. D. Developers and M/s Growth Techno Projects Ltd. Even he did not respond to letter dated 06.04.2004 Ex.DW1/X2 written by Mr. Bharat CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 33 of 35 Bhaskar (Director of defendant no.1). He remained silent for six years i.e. after sending reply (dated 05.06.2004 Ex.PW1/13) to the letter of Ld. Receiver (dated 21.04.2004 Ex.PW1/12) till 2010. After a long gap of 6 years plaintiff wrote letter dated 20.03.2010 Ex.PW1/15 to defendant no.1 wherein he stated that Mr. Ashok Chopra at Tribhuvan Complex has explained him that as on January, 2004 a sum of Rs.3,37,189/- was due from him and asked when should he visit defendant no.1's office at Delhi to clear all his dues and take over unit no.123. No evidence has been led by the plaintiff to prove his readiness and willingness to pay the remaining sale consideration to the defendants. Pertinently, not even on a single occasion, any communication was sent by the plaintiff to the defendants between 2004 to 2010 intimating about his readiness and willingness to pay the remaining consideration on obtaining requisite permission by the defendants. The plaintiff being the purchaser is expected to pursue the matter with the defendants and his conduct in not sending a single communication for six years raises doubt on his readiness and willingness to pay the balance sale consideration. Therefore, from the conduct of the plaintiff, it is clear that he was not willing to perform his part of agreement.
33. In view of abovesaid discussions, issue wise findings are as under:
ISSUE No.1:
This Court is of the considered opinion that plaintiff has failed to prove his readiness and willingness to perform his part of letter/ agreement. Hence, plaintiff is not entitled for specific performance of CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 34 of 35 letter/ agreement 25.08.1986. Accordingly, Issue no. 1 is decided against the plaintiff.
Issue No.2 :
In view of the finding on the Issue No.1, the plaintiff is not legally entitled to restrain the defendants from dealing with their property and, therefore, not entitled to any permanent injunction restraining the defendants from alienating, transferring, disposing of or creating third party interest in the suit property. This issue is decided in favour of the defendants and against the plaintiff.
Relief:
In view of the above findings, present suit is hereby dismissed. No order as to cost.
Decree-sheet be prepared accordingly.
File be consigned to record room, after due compliance.Digitally signed
Typed to the dictation directly, DR by DR
HARDEEP
corrected and pronounced in the HARDEEP KAUR
open Court on 31.01.2023. KAUR Date:
2023.01.31
16:42:37 +0530
(Dr. Hardeep Kaur)
Additional District Judge-04
South District, Saket Courts, New Delhi
CS DJ 6860/16 Ashok Kumar Kinra Vs. The Ishwar Industries Ltd. & Ors. Page no. 35 of 35