Delhi District Court
Sh. Basant Raj Bhandari vs Swapan Biswas on 28 July, 2021
IN THE COURT OF MS. SUNENA SHARMA: ADDL. DISTRICT
JUDGE- 04: PATIALA HOUSE COURTS:
NEW DELHI
CS NO. 56377 of 2016 (old no. 1789/2008)
Date of Institution of suit : 27.08.2008
Date of final arguments: 17.07.2021
File received from Hon'ble Delhi
High Court: 30.03.2016
Date of Judgment: 28.07.2021.
Sh. Basant Raj Bhandari
S/o Late Sh. Balwant Raj Bhandari
Through
His General Power of Attorney
Sh. Shekhar Bhandari
S/o Sh. Basant Raj Bhandari.
Both Residents of :
C-127, Defence Colony,
New Delhi- 110024.
...Plaintiff.
Versus
Swapan Biswas
S/o Late Major (Retd.) Sudhir Chandra Biswas
R/o Appt. 48 C, Galaxy Appt-Tower-1
7000 Kennedy Blud East
Guttenberg, New Jersey
NJ-07093-4818, U.S.A.
...Defendant.
JUDGMENT
1. By this judgment, I shall decide the aforementioned suit for specific performance filed by plaintiff against the defendant. Before adverting to the facts of the case, I may note here that plaintiff herein has also filed another suit CS No. 56378 of 2016 Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 CS no.56377 of 2016 16:49:15 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.1 of 64 against defendant Ajay Kumar Biswas for similar relief of specific performance in respect of of second floor of the same property no. 31, Block-172, Jor Bagh, New Delhi, which is also the subject matter of present suit. Vide order dated 03.12.2012, both the suits were consolidated for the purpose of evidence and the present suit was treated as leading case.
2. This suit has been filed by plaintiff Basant Raj Bhandari against defendant Swapan Biswas for seeking specific performance of an agreement to sell dated 18.12.2002 executed between them in respect of First Floor excluding servant quarter of property bearing no. 31, Block-172, Jor Bagh, New Delhi (hereinafter referred as suit property), thereby seeking directions against defendant to execute Sale Deed in favour of plaintiff in respect of said property. In alternative, plaintiff has sought decree of damages to the tune of Rs. 25,00,000/- (twenty five lacs).
3. As set out in the plaint, the plaintiff's case in nutshell is that :-
(a) Plaintiff, being a civil servant and UN diplomat has been staying outside India most of the time and hence, he filed the present suit through his attorney Sh. Shekhar Bhandari, who is plaintiff's son and has been authorized through a registered General Power of Attorney dated 07.01.1983.
(b) Defendant approached plaintiff in first week of December, 2002 with a desire to sell his property to plaintiff.
Defendant stated that by virtue of a Perpetual Lease Deed dated 13.10.1961 (regd. as document no. 1639 in Addl. Book no. I, Vol. No. 761 on pages 76 to 78 on 07.02.1962 in office of Sub-Registrar, New Delhi), his grandmother Smt. Sarojni Biswas s/o Sh. Rajani Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:49:08 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.2 of 64 Ranjan Biswas, was the owner/lessee of the property bearing no. 31, Block no. 172, Jor Bagh, New Delhi admeasuring 375 sq. yards (hereinafter referred as demise property). She died on 02.10.1980 leaving behind her last registered Will and Testament dated 16.05.1978.
Sh. Anil Chandra Biswas, the youngest son of Smt.Sarojini Biwas died on 25.08.1986. Smt. Bimal Nandy married daughter of Smt. Sarojini Biswas died on 28.07.1987 and Major Sudhir Chandra Biswas (retd.) the eldest son of Smt. Sarojini Biswas died on 29.12.1995.
(c) After death of above persons, the demise property came to devolve upon following legal heirs of Smt. Sarojini Biswas in terms of her registered Will dated 16.051978 :-
(i) Sh. Swapan Biswas 1st floor
(excluding servant quarters)
(ii) Sh. Ajay Biswas 2nd floor
(alongwith first floor of the
servant quarter).
(iii) Sh. Dipendra Nath Nandy 1/4th share of ground
floor.
(iv) Sh. Shaminder Nath Nandy 1/4th share of ground
floor.
(v) Sh. Ranendra Nath Nandy 1/4th share of ground
floor.
(vi) Sh. Rathindra Nath Nandy 1/4th share of ground
floor.
Therefore, after death of Smt. Sarojni Biwas on
02.10.1980 defendant being son of Maj. (Retd) Sudhir Chandra Biswas and grandson of Smt. Sarojini Biswas became the owner of his aforementioned share in the demise property by virtue of Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.07.28 16:49:01 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.3 of 64 aforementioned registered Will of his grandmother.
(d) After negotiations, parties agreed to the total sale price of suit property as Rs. 25,00,000/- and entered into a formal and binding contract dated 18.12.2002, vide which defendant agreed to convey the suit property to plaintiff. Thereafter, defendant executed Agreement to Sell, GPA, Will, receipt, possession letter, affidavits, SPA etc in favour of plaintiff, wherein the suit property is referred as the share of the defendant. Alongwith the suit property, defendant was to also transfer his undivided share in land beneath, so the term 'undivided share' was used in said documents executed by defendant in plaintiff's favour.
(e) In pursuance to the said Agreement to Sell, plaintiff paid a sum of Rs. 20,00,000/- vide cheque no. 138092 dated 18.12.2002 drawn on the Bank of Maharashtra, C.P.Branch, New Delhi to the defendant against receipt. The said cheque was encashed. The remaining consideration amount of Rs.5,00,000/- was agreed to be paid by plaintiff to the defendant at the time of registration of the Sale Deed in the office of Sub-Registrar, New Delhi after effecting of mutation and conversion of suit property into freehold by the defendant. In term of the said Agreement to Sell dated 18.12.2002, defendant was to get the property converted into freehold.
(f) The defendant handed over the vacant and physical possession of the suit property to the plaintiff on very same day of execution of aforementioned documents i.e on 18.12.2002 and ever since plaintiff is in un-interrupted possession of the suit premises.
(g) Plaintiff and his attorney through personal and telephonic conversation represented the defendant to complete the remaining transaction by paying remaining sale consideration i.e. Rs.5,00,000/- but the defendant kept assuring the plaintiff that he Digitally signed by SUNENA SUNENA SHARMA SHARMA Date:
2021.07.28 CS no.56377 of 2016 16:48:51 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.4 of 64 will get necessary permission and get the property converted into freehold.
(h) Plaintiff got utter shock when he received a notice dated 29.02.2008 from defendant through his counsel whereby defendant informed plaintiff that the Will and SPA dated 28.02.2003 had stood revoked, which was in complete violation of the agreement.
The Will and SPA were executed by defendant as a part and parcel of sale transaction alongwith other customary documents and defendant had no right to unilaterally revoke the SPA.
(i) Plaintiff has already paid a substantial amount of sale transaction and has been always ready to complete the remaining transaction. However, it is defendant who is shying away to complete his part of contract and became dishonest as the prices of property in Delhi have gone enormously high in recent past.
(j) The other relatives of the defendant (defendant's cousin brothers) to whom, the other portions of demise property came to devolve vide aforementioned Will of Late Smt. Sarojini Biswas also sold out their respective shares to the plaintiff vide separate set of documents.
(k) On 17.08.2008, some property dealers visited the suit property and on inquiry by attorney of plaintiff, they informed him that Sh. Ajay Biswas, brother of defendant and the defendant himself had instructed them to sell the suit property. Thereafter, plaintiff approached Hon'ble High Court with the present suit for specific performance of Agreement to Sell dated 18.12.2002, in alternative plaintiff has claimed a decree of damages/recovery of Rs. 25 Lakh. After enhancement of pecuniary jurisdiction of district courts, the suit was transferred to this court vide order dated 12.01.2016.
(l) The cause of action arose on 18.12.2002, when parties Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:48:45 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.5 of 64
entered into the Agreement to Sell. It further arose from time to time when the plaintiff kept asking defendant to complete his part of sale transaction and to get the property converted into freehold in order to execute and register the sale deed. It further arose when plaintiff received a legal notice dated 29.02.2008 and on 17.08.2008, when two property dealers visited the suit property for its sale at the instance of defendant.
(m) Since, the suit property is situated in New Delhi, the court is stated to have territorial jurisdiction to try and decide the suit. For the purpose of pecuniary jurisdiction, the suit property was valued at Rs. 25,00,000/- on which requisite court fee has been paid.
4. Pursuant to the summons of the suit, defendant appeared in the matter and filed his written statement wherein he took various preliminary objections such as that suit is not maintainable for lack of cause of action; that it is time barred, as the alleged Agreement to Sell was executed on 18.12.2002 whereas, present suit has been filed on 22.08.2008; that the suit is not maintainable as no legal or valid agreement/contract was ever executed between the parties and that the alleged agreement to Sell dated 18.12.2002 is a forged and fabricated document which was got signed from the defendant fraudulently at the time of signing of other documents.
5. Written statement further avers that as the defendant is residing permanently in USA, plaintiff represented himself to be a property dealer dealing with properties located in South Delhi and New Delhi area and lured the defendant to execute certain documents in his favour on the promise to get a handsome deal for Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:48:37 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.6 of 64 him for sale of his share in demise property. It is further stated that plaintiff had issued a cheque in defendant's favour as a token amount for his creditworthiness. Plaintiff further represented that only defendant needed to sign certain documents i.e. GPA, Will etc in order to facilitate the deal/sale of suit property and the rest of the member would be called as and when any deal get mature. Defendant also signed certain other documents in blank in good faith on the asking of plaintiff who said that it would be required by various departments like L&DO. It is further averred that both parties were well aware that defendant could not sell his undivided portion in the suit property without permission of L&DO and as such present suit is totally vexatious.
6. It is categorically denied that the defendant had ever executed any sale documents in favour of plaintiff, hence, it is stated that there was no question of paying alleged balance consideration. It is further stated that the said Agreement of Sell dated 18.12.2002 is concocted, false, fabricated and illegal document created just to grab the suit property.
7. Without prejudice to his rights and contentions, defendant further stated in WS that if in view of plaintiff's case, (though never admitted by defendant), constructive possession of the suit property was with the plaintiff as part performance of the alleged Agreement to sell, then the present suit is even otherwise barred in view of Section 17 &49 of Registration Act and Section 53 A of the Transfer of Property Act (hereinafter called as the TPA). After amendment in the Registration Act, 1908 by way of Registration (Amendment) Act 48 of 2001, the documents containing contracts to transfer for consideration, any immovable Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:48:30 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.7 of 64 property for the purpose of Section 53 A of the Act are required to be compulsorily registered as per Section 17 of the Registration Act else they would have no effect for the purpose of Section 53A of the Act. It is further stated that the alleged agreement to sell was executed in the year 2002 and plaintiff was allegedly given constructive possession of the suit property as part performance of said agreement, therefore, the said agreement cannot be relied upon or read in evidence being an unregistered document, as the same is barred under the provisions of Section 17 and 49 of Registration Act.
8. It is further stated that defendant will suffer irreparable loss and injury if the suit is decreed as it would be against the letter and spirit of Section 20 of Specific Relief Act. Defendant by serving a legal notice revoked the documents i.e. GPA and Will and plaintiff has filed the present frivolous and vexatious suit after waiting for almost three years, therefore, present suit is blatant misuse of process of law. Defendant is stated to have also filed a separate police complaint against the plaintiff.
9. It is further averred that present suit is bad in view of principles of estoppel, res judicata and constructive res judicata on the ground that plaintiff had filed two applications both under Order 1 rule 10 CPC seeking his impleadment as petitioner in an eviction petition under Section 14(1)(d)(h) of DRC Act pending in the court of Ms. Savita Rao, ARC, Delhi but both the said application were dismissed on the ground that petitioner/applicant had no right, title or interest in said property. In view of said finding of the court rejecting the right of plaintiff in demise property, suit is barred on account of aforementioned principles of law. SUNENA Digitally signed by SUNENA SHARMA SHARMA Date: 2021.07.28 16:48:23 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.8 of 64
10. It is further the defendant's case that defendant not being the owner of the entire property, had no right or authority to dispose of his portion without having a formal partition of the property. It is stated that even the other owners of the property have already got the mutation in their favour from L&DO and the defendant alongwith other five co-owners of the property are having 1/6th equal and undivided share in the entire property and in view thereof, the alleged agreement even otherwise has no effect or legal sanctity in the eyes of law.
11. In para-wise reply, defendant denied execution of alleged GPA executed by defendant in favour of plaintiff's son and stated further that being an illegal document it does not confer any right in favour of Shekhar Bhandari/Attorney to act on behalf of defendant. Defendant denied that he approached the plaintiff in the first week of December 2002 or expressed his desire to sell the suit property or that sale consideration of the suit property was fixed at Rs.25 lakh or that parties ever agreed or bound themselves to contract dated 18.12.2002. Defendant denied that plaintiff issued a cheque of Rs.20 lakh in pursuance to said agreement or that it was agreed that sale transaction would complete after obtaining necessary permission and conversion of suit property into free hold. It is alleged that it was the plaintiff who lured defendant to execute certain documents i.e GPA, Will and also got signed some blank papers on the pretext of getting some handsome deal for the suit property and for submission of the same to L&DO Department for necessary permission with regard to suit property.
12. It is stated further that plaintiff was aware that one Mrs. Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:48:16 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.9 of 64 Pamela Singh was residing in the suit property as tenant, and a petition for eviction under Sections 14(1)(d) and (h) of DRC Act against said tenant which was filed way back in the year 1996, was pending before the court of Ld. ARC, Delhi, and plaintiff had also moved an application under Order 1 rule 10 CPC for his impleadment in the aforesaid eviction petition but the same was dismissed by the said court on ground of non-maintainability. Defendant categorically denied that plaintiff or his attorney had been contacting the defendant for showing their readiness and willingness to pay the balance amount or the defendant ever represented to them that he would get the necessary permission for conversion of property from leasehold to freehold.
13. It is denied further that the legal notice dated 29.02.2008 was unjustified. Defendant further denied that the other relatives of defendant have also sold their shares in demise property in favour of plaintiff and alleged further that plaintiff also fraudulently got signatures of defendant's other two brothers adopting same modus operandi. It is denied that on 17.08.2008, son of plaintiff went to suit property or any one visited the suit property on behalf of defendant's brother Ajay Biswas or threatened the plaintiff as alleged.
14. In replication, plaintiff reiterated his stand taken in the plaint as true and correct and categorically denied the objections taken in the written statement as bald, vague and baseless. It is further denied that no valid, legal and binding agreement/contract was entered into between the parties. It was reiterated that said documents were executed by the defendant with the intention of entering into a contract to sell the property to the plaintiff and now Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.07.28 16:48:08 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.10 of 64 defendant with ulterior motives is evading his responsibility under said agreement. It is stated further that there is no requirement in law to get the agreement registered. It is denied that present suit is without any cause of action or that the agreement is invalid. It is categorically denied that said contract/agreement falls in any of the categories as mentioned under Section 20 of Specific Relief Act. It is stated further that the letter of revocation of GPA and Will is totally illegal and the same was done in complete violation of agreement entered into between the parties. It is denied that the principle of estoppel, res judicata or constructive res judicata is applicable to the present case.
15. It is further stated that proceedings before Ld. ARC are completely separate and independent from the present proceedings and has no bearing on the present case. It is stated that dismissal of an application for impleadment in eviction petition does not bar the plaintiff from filing a suit for specific performance on the basis of agreement to sell. It is categorically denied that there is any finding of the court adjudicating rights of the plaintiff in the suit property so as to create any bar of estoppel or res judicata as alleged in the written statement.
16. Further, it is averred that in view of Will dated 16.05.1978, defendant had become owner of his share specified in the Will and since along with defendant's share in built up portion of demise property defendant was to also transfer his undivided share in the land beneath therefore, the term 'undivided share' was used in the documents. It is categorically denied that the suit is barred by the law of limitation. Digitally signed by SUNENA SUNENA SHARMA SHARMA Date:
2021.07.28 16:48:00 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.11 of 64
17. After completion of pleadings following issues were framed on 01.02.2010 :-
1. Whether the suit as framed is barred by limitation? OPD
2. Whether the plaintiff is entitled to specific performance of the agreement dated 18.12.2002, if so to what effect?
OPP.
3. If answer to issue no. 2 is in negative, whether the plaintiff is entitled to damages to the tune of Rs. 25 lacs in the alternative? OPP.
4. Relief.
18. In support of his case, plaintiff examined his son and constituted attorney Sh. Shekhar Bhandari as PW1. On 03.02.2015, PW-1 tendered his affidavit and exhibited it as Ex. PW1/A. PW1 also relied upon various documents Ex P-1 to Ex P-9 (documents admitted by defendant at the time of admission and denial) and Ex. PW1/1 to Ex. PW1/8. Sh. Deepak Kumar, Asst. Ahlmad of court of Sh. Manish Yaduvanshi, Ld. ADJ(Central)-06, Delhi was examined as PW-2, who brought the summoned record i.e. original documents of Ex. PW1/1 and Ex. PW1/4 to Ex. PW1/8. PW-2 Nitin Kumar Gupta is the Judicial Assistant, Delhi High Court examined as PW-3, he brought the summoned record and exhibited certified copy of original Will dated 16.05.1978 Ex. PW3/1 of defendant's grandmother Late Smt. Sarojini Biswas and certified copy of probate certificate as Ex. PW3/2 granted by Hon'ble Delhi High Court in respect of said Will.
19. Following are the documents relied upon by PW1Digitally in signed his SUNENA by SUNENA SHARMA CS no.56377 of 2016 SHARMA Date: 2021.07.28 16:47:53 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.12 of 64 evidentiary affidavit are following:-
S.No. Document Ex.no. 1 Power of Attorney PW1/1 2 Legal notice dated 10.12.2007 in PW1/2 CS(OS) no. 1789/2008 3 Reply to legal notice dated PW1/3 10.12.2007 in CS(OS) no. 1789/2008 4 Certified copy of original certificate PW1/4 issued by International Trade Center Geneva dated 25.07.2008 5 Certified copy of original letter of PW1/5 recommendation dated 24.07.2008 issued by UBS SA to bank of Maharashtra 6 Certified copy of certificates issued PW1/6 by UNCTAD . 7 Certified copy of document PW1/7 regarding joint staff pension fund . 8 Certified copy of certificate issued PW/18 by SBI
20. Following are the documents exhibited at the time of admission-denial of documents.
S.No. Document Ex. No.
1. Legal notice dated 29.02.2008 in P-1
CS NO. 56377 of 2016 i.e. the
present suit.
2. Agreement to Sell P-2
3. SPA in favour of plaintiff's son P-3
duly registered vide registration
no. 11876 Additional book no. IV
Vol. 790 page no. 38-39
4. Indemnity Bond P-4
5. Receipt P-5
6. Affidavits P-6 &
P-7
7. Will registered vide no. 9931 Addl. P-8 Digitally signed
by SUNENA
SHARMA
SUNENA Date:
SHARMA 2021.07.28
16:47:46
CS no.56377 of 2016 +0530
Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.13 of 64
Book no. III Vol. no. 316 pages
74-75
8. GPA in favour of Sh. Shekhar P-9
Bhandari vide registration
no.11875, Addl. Book no. IV, Vol.
790 pages 33 to 37.
9. Possession Letter P-10.
21. In the evidentiary affidavit, PW-1 has deposed more or less on the lines of averments contained in the plaint. PW-1 was duly cross examined and relevant part of his deposition shall be discussed while recording findings on the issues.
22. The evidence of Plaintiff stood closed by order dated 19.07.2018 and the matter was listed for evidence of defendant. In support of his case Defendant examined himself only as DW1 and filed his examination in chief by way of affidavit as Ex. DW1/A. Defendant did not rely upon any document in his affidavit of evidence. The evidentiary affidavit of defendant is also on the same lines of defence set out in his WS. In order to avoid repetition and for brevity sake, deposition of witnesses shall be discussed while giving findings on the issues.
23. I have given my thoughtful consideration to respective arguments raised from both the sides and also carefully perused the entire record including written submissions filed by the parties.
24. My issue-wise findings are as under:
Issue no.1 "Whether the suit as framed is barred by limitation ? OPD"
25. This issue was framed in the wake of preliminary objection taken in the WS. The onus to prove this issue was hence, Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 CS no.56377 of 2016 16:47:36 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.14 of 64 put upon the defendant.
26. It is alleged in the WS that the suit having been filed beyond three years from the date of alleged execution of agreement to sell is barred by limitation and therefore, liable to be dismissed. It is alleged further that the agreement to sell of which specific performance has been sought, was executed on 18.12.2002, whereas, the suit was instituted on 26.08.2008 i.e. much beyond three years from the date of agreement.
27. Before adverting to the evidence adduced by the parties and arguments advanced by their respective counsels on aforementioned issue, let us first have a quick glance of Article 54 of Limitation Act, which prescribes the limitation period for the suits for specific performance. As per said Article, the limitation period for seeking specific performance of an agreement shall be three years from the date fixed for performance, or if no such date if fixed, when the plaintiff has notice that performance has been refused.
28. As per plaintiff's case, no date for performance was fixed in the agreement and sale deed in favour of plaintiff was required to be executed by defendant after effecting the mutation and conversion of property into freehold. It is vehemently contended on behalf of plaintiff that since no date was fixed in the agreement to sell for execution of sale deed, the cause of action to seek legal remedies for specific performance arose only when plaintiff came to know about refusal of performance on the part of defendant. Digitally signed by SUNENA SUNENA SHARMA SHARMA Date:
2021.07.28 16:47:28 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.15 of 64
29. As per plaintiff's case, after execution of agreement to sell, plaintiff and his attorney many a times through personal and telephonic conversation represented to the defendant about plaintiff's willingness to complete his part of remaining transaction by paying balance consideration but defendant kept assuring plaintiff that he would get the necessary permission and would also get the property converted into freehold. However, to utter surprise of plaintiff, he got a completely unjustified notice dated 29.02.2008 Ex. P1 served upon him by defendant through his counsel vide which plaintiff was informed that both Will and SPA dated 28.02.2003 (date wrongly mentioned as the actual date of said documents as per record is 18.12.2002) executed by defendant in respective names of plaintiff and his son, stood revoked by the defendant. It is vehemently argued that it is only from the date of receipt of said legal notice Ex. P1, which is an admitted document, the plaintiff first time came to know about defendant's malafide intention to wriggle out of said deal of sale and to refuse performance of said agreement to sell.
30. On the other hand, in the written submission defendant's counsel refuted above arguments by submitting that although no specific date was fixed for execution of sale deed in the alleged agreement but, as per the terms of said agreement, the sale deed was to be executed only after effecting the mutation and conversion of the property to freehold and even till date suit property has not been converted into freehold and as such, the suit is premature.
31. However, I do not find any force in the above argument of defendant's counsel. As already noted above, Article 54 of Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.07.28 16:47:21 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.16 of 64 Limitation Act, prescribes the limitation period to be three years for filing the suit for specific performance. In case where agreement stipulates a fixed date for performance, the limitation shall start from such date but, where the agreement does not disclose any such date for performance, the limitation shall start from the date when aggrieved party gets the notice that performance has been refused by the defaulting party.
32. Admittedly, the agreement to sell nowhere mentions that any specific time or date was fixed by the parties to seek permission for sale from L&DO, or for effecting the mutation or for converting the property from lease hold to freehold, upon which the execution of sale deed was contingent upon. In this regard, I find it appropriate to refer to relevant clauses of Agreement of Sell Ex. P-2 i.e. clause no. 1,4,5,6 and 14 which read as under :
"1. That in pursuance of this Agreement to Sell and in consideration of a total sum of Rs.25,00,000/- (Rupees twenty five lacs only) out of which the first party has received a sum of Rs.20,00,000/- (Rupees twenty lacs only) vide cheque no. 138092 dated 28.12.2002 drawn on Bank of Maharashtra, C.P, from the second party, as substantial part sale consideration. The remaining balance sum of Rs. 5,00,000/- (Rupees five lacs only) shall be received by the first party from the second party at the time of registration of Sale Deed in the office of the Sub-
Registrar, New Delhi, after effecting of mutation and after conversion of the aforesaid property into freehold. The first party doth hereby agree to sell, convey, transfer and assign all his rights, title and interests in the said share in the said property unto the second party, absolutely and forever.
4. That if it is required, the first party shall apply and obtain the Sale Permission from the Land & Development Office, Nirman Bhawan, New Delhi, in respect of the said share in the said property, under sale, in favour of the second party or his nomiee(s), at his own costs and expenses. But if the second party wishes to get the aforesaid property converted into freehold, then the first party will get the property converted into Freehold.
5. That after obtaining the sale permission or after the conversion of the aforesaid property into freehold, the first party will sign and execute proper Sale Deed in favour of Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:47:14 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.17 of 64 the second party or his nominee (s) and will get the 'same' registered with the Sub-Registrar, New Delhi.
6. That the first party shall be responsible to do all such acts, deeds and things which will be necessary to execute the Sale Deed and to get the said share in the said property transferred in the name of second party or his nominee(s), as the case may be.
14. That in the event of failure on the part of the first party to execute Sale Deed and transfer the said share in the said property in favour of the second party or if the first party infringes any of the terms and conditions of this Agreement, then the second party shall be entitled to get the same implemented through the court of law by filing a suit for specific performance of the contract at the costs, expenses and risks of the first party."
33. From the perusal of above clauses in the agreement to sell, it is absolutely clear that the execution of sale deed was contingent upon defendant seeking sale permission from L&DO, getting mutation and conversion of property into freehold. In such a scenario when there was no date fixed for performance of agreement, the limitation will start from the date when plaintiff was first put to notice of refusal on the part of defendant to perform the agreement.
34. In the instant case, defendant upon whom the onus was casted to prove the above issue did not lead any iota of evidence to establish his plea that suit is barred by limitation. There is nothing on record to show that either there was any date fixed for performance or that date of refusal to perform was other than the one when the plaintiff received the notice dated 29.02.2008 from defendant regarding alleged revocation of Will and Special Power of Attorney or any other document purportedly executed by defendant in favour of plaintiff or his son thereby giving them any power, authority, right, title or interest qua demise property. From the date of said notice Ex. P-1, the suit is well within the period of limitation. Accordingly, the issue is decided in favour of plaintiff and against Digitally signed by SUNENA SUNENA SHARMA CS no.56377 of 2016 SHARMA Date:
2021.07.28 16:47:05 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.18 of 64 the defendants.
35. Issue no. 2.
"Whether the plaintiff is entitled to specific performance of the agreement dated 18.12.2002, if so to what effect? OPP."
The onus of proving the above issue was upon the plaintiff. As per plaintiff's case, defendant's grandmother Late Smt. Sarojni Biswas was the leasee/owner of the demise property bearing no. 31, Jor Bagh, New Delhi by virtue of the perpetual lease deed dated 13.10.1961 registered vide registration no. 1639, Addl. Book no. I, Vol. No. 761 on pages 76 to 78 on 07.02.1962 in office of Sub- Registrar, New Delhi. Smt. Sarojni Biswas executed her last and final Will dated 16.05.1978 available on record as Ex. PW3/1 and vide said Will she bequeathed the demise property to her grandsons. As per the terms of said Will the entire first floor excluding servant quarter of the aforementioned property came to be devolved upon defendant after death of his grandmother Smt. Sarjoni Biswas (died on 02.10.1980) and his uncle Anil Chandra Biswas (died on 25.08.1986), in whose favour a lifetime interest was created in demise property by virtue to said Will.
36. On 18.12.2002, plaintiff and defendant entered into an agreement to sell Ex.P-2, whereby, defendant agreed to sell his entire share in the aforementioned property to the plaintiff for total sale consideration of Rs. 25 lakh out of which an amount of Rs. 20 lakh was paid to the defendant by cheque and the remaining balance was agreed to be paid at the time of execution and Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.07.28 CS no.56377 of 2016 16:46:57 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.19 of 64 registration of the sale deed. As per the terms of agreement to sell, the sale transaction was to be completed by the defendant after getting the property converted from lease hold to free hold from the concerned authority. Besides the agreement to sell (Ex. P-2), defendant also simultaneously executed various other documents such as SPA, Indemnity Bond, Receipt, affidavits, Will, GPA and Possession letter all dated 18.12.2002 available on record as Ex. P- 3 to Ex. P-10 respectively.
37. As per plaintiff's case the vacant and physical possession of the suit property was also handed over to him on the very same date of execution of said documents i.e. on 18.12.2002 and ever since, plaintiff is in uninterrupted possession of the suit property. It is further averred in the plaint that plaintiff and his Attorney represented to the defendant that plaintiff was ready and willing to complete his part of obligation but the defendant kept assuring that he would get the property converted into free hold and would complete the transaction at the earliest. However, to the utter surprise of the plaintiff, defendant sent a notice through his counsel on 29.02.2008 whereby plaintiff was informed that the defendant had revoked the registered Will and Power of Attorney or any other document purportedly executed in plaintiff's favour in respect of demise property.
38. On the other hand, defendant has taken a plea that there was no legal, valid or binding contract between the parties. The agreement dated 18.12.2002 is a forged and fabricated document as the same was got signed by the plaintiff from the defendant fraudulently. It is alleged that the plaintiff had claimed himself to be property dealer and lured the defendant to execute Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:46:41 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.20 of 64 certain documents in his favour on the pretext that he would get a handsome deal for the property in question for the defendant and in order to show his creditworthiness, the plaintiff also deposited an amount of Rs. 20 lakh with the defendant as a token amount. Defendant was also asked to execute a Will and GPA in favour of plaintiff on the pretext that said document would facilitate the deal with any third party and would ensure faith of third party in the plaintiff. It is further alleged that certain blank documents were also got signed from the defendant under the guise that the documents would be required to be submitted to various department including L&DO for necessary permission. It is further alleged that the plaintiff did not even let the defendant read the said documents and the defendant signed the same in good faith.
39. In the light of above pleadings of the parties, their respective deposition on the line of their pleadings and the arguments raised by their respective counsels, there are many contentious issues on which although no separate issues were framed by the court but, they are in any case covered in the aforementioned issue no.2. For proving the entitlement for the claimed relief of specific performance, plaintiff's case has to cross all the said barriers of factual and legal bars alleged against maintainability of plaintiff's claim. Plaintiff has to also prove the existence of certain facts which are precondition for grant of relief of specific performance.
40. Following are some points of adjudication which fall for consideration before this court to check the feasibility of plaintiff's claim on legal parameters :-
A. Competency of attorney to institute the plaint and depose on Digitally signed by SUNENA SUNENA SHARMA SHARMA Date:
2021.07.28 CS no.56377 of 2016 16:46:33 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.21 of 64 behalf of plaintiff.
B. The legal consequences of non-registration of agreement to sell on the present case.
C. Existence of legally binding contract between the parties. D. Readiness and Willingness of plaintiff to perform his part of contract.
E. Applicability of bar of estoppel, res judicata or constructive res judicata as alleged in the WS.
F. Bar against transfer of undivided share in the immovable property as alleged in the WS.
G. Applicability of section 20 of Specific Relief Act so as to decline the discretionary relief of specific performance.
41. Now I shall take up the above-mentioned point of consideration one by one.
A. Competency of attorney to institute the plaint and depose on behalf of plaintiff.
Before going ahead with the discussion on the merits of the case, it is first important to deliberate on the issue of competency of the attorney of plaintiff who has been examined as PW-1 and through whom the plaintiff has filed the present case. As per deposition of PW-1, he was appointed as attorney by his father Sh. Basant Raj Bhandari vide power of attorney dated 07.01.1983. During trial, record of said power of attorney was the brought by PW-2, Ahlmed from the court of Sh. Manish Yaduvanshi, ADJ-06 (Central), Delhi. The original power of attorney dated 07.01.1983 was lying in the judicial file of the case pending before said court and PW-2 had brought the original record of GPA Ex. PW1/1.
42. As already noted above the plaintiff has examined three witnesses out of whom PW-2 Sh. Deepak Kumar and PW-3 Digitally signed by SUNENA SUNENA SHARMA CS no.56377 of 2016 SHARMA Date: 2021.07.28 16:46:26 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.22 of 64 Sh. Nitin Kumar are the formal witnesses as they only brought the summoned record. PW-1 Sh. Shekhar Bhandari is the important witness examined by the plaintiff. PW-1 is the son /Attorney of plaintiff, as per whose version, he was privy to the entire transaction entered into between plaintiff and defendant, and he had personal knowledge of the entire facts of the case.
43. The affidavit of plaintiff's attorney Sh. Shekhar Bhandari is available on record as Ex. PW-1/A. As per his deposition the entire transaction had taken place in his presence and to his knowledge and since he was personally involved in the transaction therefore, he had the personal knowledge of each and every fact of case. As per PW-1, he had filed the affidavit in evidence on the basis of his personal knowledge. Except putting a bald suggestion that PW-1 was not present at the time of execution of agreement to sell, there is no rebuttal to PW-1's claim that he was privy to the whole of the transaction in question. The said suggestion put to PW-1 however, is going contrary to defendant's own plea that no such agreement was ever executed between the parties. It is an admitted position on record that plaintiff being UN diplomat had been staying initially in USA and then in Switzerland during relevant time and his son PW-1 had been looking after plaintiff's interest in all his property matters in India. Further the clinching testimony of PW-1 that he was privy to the facts of this case and also had the personal knowledge of facts of the present case and the transaction in question clearly established his competency to depose as a witness on behalf of plaintiff. Reliance placed on Janaki Vashdeo Vs. Indusind Bank Limited (2005) 2 SCC 217 & Mohinder Kaur Vs. Sant Paul Singh Civil appeal no. 2869-2870/2010 decided on 01.10.2019. Digitally signed by SUNENA SUNENA SHARMA SHARMA Date:
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44. During the course of arguments, it was vehemently argued on behalf of the defendant that power of attorney dated 07.01.1983 on the basis of which the present suit has been filed by Sh. Shekhar Bhandari i.e. PW-1 on behalf of plaintiff as his attorney was executed much prior to the alleged deal entered into between the parties. It was further argued that as per plaintiff's case, the alleged transaction of sale was entered into in the year 2002 whereas, the power of attorney in favour of PW-1 was executed on 07.01.1983. The counsel has drawn my attention to the contents of clause (2) of said power of attorney, from where the PW-1 allegedly drew authority to institute the suit on behalf of plaintiff. The counsel has argued that in the light of said clause, the attorney was authorized to institute, commence, prosecute, carry on or defend or resist all suits and other actions and proceedings or be added as a party or be non-suited or withdraw the same concerning the property of the executant i.e. properties belonging to plaintiff. It is contended that in the light of said clause in the power of attorney, the attorney holder was vested with the powers to institute the suit on behalf of the plaintiff only in respect of the properties of which plaintiff was owner at the time of execution of the said attorney and not in respect of property which he acquired or purchased subsequently. It is further contended that the property in question was never in contemplation of the plaintiff at the time when said alleged GPA was executed in favour of PW-1 hence, there is no question of plaintiff authorizing the GPA holder vide said GPA to institute the present suit in respect of the suit property. It is further argued that since the suit has not been filed through an authorized person therefore, the plaintiff is liable to be non-suited on this count only.
Digitally signed SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.07.28
16:46:11 +0530
CS no.56377 of 2016
Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.24 of 64
45. On the other hand, plaintiff's counsel rebutted the above arguments by saying that vide said power of attorney, Sh. Shekhar Bhandari was constituted as Attorney by the plaintiff and he was authorized to institute suits or proceedings on behalf of plaintiff in respect of all the properties belonging to plaintiff either in past, present or in future and as such, there is no defect in the authorization of attorney so as to non-suit plaintiff on this count. I have carefully gone through the contents of the Ex PW1/1 and also considered the above submissions.
46. Undoubtedly, the transaction in question had taken place much after the execution of said attorney. However, defendant's argument that attorney could not have been authorized to institute suit on behalf of principal in respect of his (principal's) property acquired subsequently, is not convincing. It is pertinent to note that Ex. PW1/1 is a General Power of Attorney vide which general powers have been vested in the attorney to do certain acts and deeds in respect of any property whatsoever belonging to the defendant in past, present or future. Such powers continue to vest in attorney unless revoked in accordance with laws. Even otherwise, in the light of law Canara Bank Vs. K.L.Rajgaria CS(OS) 1669/1989 (DOD 12.02.2009), the acts of the attorney can be ratified by the principal even subsequently. I may note here that during the course of trial, in the wake of objection raised by defendant regarding defect of attorney, plaintiff as an abundant caution filed on record a new GPA dated 16.11.2019 vide which the plaintiff confirmed and ratified all the previous acts done by his attorney Sh. Shekhar Bhandari in the court of law regarding four cases including the present one, which he (PW-1) had filed on Digitally signed SUNENA by SUNENA SHARMA CS no.56377 of 2016 SHARMA Date: 2021.07.28 16:46:04 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.25 of 64 behalf of plaintiff by acting as his (plaintiff's) attorney in respect of the property in question. As per the contents of said GPA, plaintiff who was resident of Netherland, was unable to attend the court in India and therefore, he appointed his son Shekhar Bhandari as his attorney to do various acts on his behalf vide GPA dated 07.01.1983. Vide said GPA dated 16.11.2019, plaintiff further ratified all the acts done by his said attorney in the court of law in respect of said four cases including present case pending between the plaintiff and the defendant. It is further mentioned in the GPA that the original power of attorney dated 07.01.1983 had not been cancelled till that date and shall continue to operate. However, it is argued that no cognizance can be taken of said new GPA dated 16.11.2019 because, it was never taken on record by the court's order. It is submitted that said GPA was filed on 18.11.2019 when the court was on leave and thereafter, there is no order of the court taking said documents on court record nor the same was ever made part of evidence.
47. However, in my considered view, the defect of attorney is merely a technical defect which can be cured even post institution and therefore, lack of formal order of court in taking said new GPA on record cannot be fatal to plaintiff's case. As per record, on 18.11.2019, when said GPA was filed on record, plaintiff himself had appeared with his son/attorney and his counsel Sh. Deepak Chauhan, Advocate. The record shows that on said date defendant's counsel Sh. Samrat Nigam and Sh. Sumant De had also appeared. Even otherwise, this court does not find any defect even in the old GPA as court is of the view that unless revoked, said GPA shall continue to vest the attorney with powers to institute suits or proceedings on behalf of plaintiff in respect of all the properties Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:45:57 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.26 of 64 belonging to plaintiff in past, present or future. Hence, the objection regarding defective attorney does not hold any water.
B. The legal consequences of non registration of agreement to sell on the present case.
48. Now let us come to another legal objection taken by the defendant regarding bar of Section 17 and 49 of Registration Act read with 53A of Transfer of Property Act. It is contended on behalf of the defendant that as per the plaintiff's case the constructive possession of the property was handed over to him in part performance of agreement to sell dated 18.12.2002. In said scenario, in the light of Amendment Act of 2001, any document containing contract to transfer for consideration any immovable property for the purpose of Section 53 A of Transfer of Property Act shall be registered and if they are not registered they shall have no effect for the purpose of Section 53 A. Counsel argued that even in the instant case, the alleged agreement to sell was executed on 18.12.2002 and in part performance of said agreement the constructive possession of the suit property was allegedly handed over to the plaintiff, therefore, said document i.e. agreement to sell dated 18.12.2002 was compulsorily registerable and since the same is not a registered document it cannot be relied upon ore read in evidence.
49. The aforementioned argument raised by the defence counsel is totally misconceived and bereft of any merits for the reason that the proviso to Section 49 of the Registration Act makes it very clear that an unregistered document affecting immovable property and required by Registration Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence of a Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.07.28 16:45:50 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.27 of 64 contract in a suit for specific performance under Chapter 2 of Specific Relief Act 1877. The instant case has also been filed only for relief of specific performance and in view of said proviso, the agreement to sell despite being an unregistered document can be taken into evidence and there is no bar of Section 17 or 49 of Registration Act or Section 53A of Transfer of Property Act in admitting said document in evidence for the purposes of this suit.
C. Existence of legally binding contract between the parties.
50. As already noted above, in the WS defendant has come up with the plea that the alleged agreement to sell dated 18.12.2002 is a forged and fabricated document as no such document was ever executed or intended to be executed by the defendant. It is further alleged that all the said documents were got signed fraudulently. As per WS, defendant was permanent resident of USA and plaintiff approached him and represented himself to be a property dealer who was dealing in properties located at South Delhi and New Delhi area. Plaintiff lured the defendant to execute certain documents in favour of the plaintiff on the pretext that he would get handsome deal for the property in question and in order to show his creditworthiness, plaintiff also issued a cheque of Rs. 20 lakh as a token amount in favour of defendant. It is only on the representation of the plaintiff, the defendant signed the GPA and the Will as the same were stated to be required to facilitate the deal. Defendant signatures were also taken on many blank papers on the pretext that said document would be required for submissions in various department for seeking necessary permission in respect of the property in question. Plaintiff did not even let the defendant to read any of the said documents. Further that defendant signed on Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 CS no.56377 of 2016 16:45:43 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.28 of 64 the documents merely on the representation of the plaintiff in good faith.
51. From above noted contents of written statement, defendant appears to have taken different pleas to deny the legality and validity of agreement to sell dated 18.12.2002 as well as that of other alleged documents of sale relied upon by plaintiff. On the one hand, defendant alleged that said documents were forged and fabricated as at no point of time any such document was ever executed or intended to be executed by the defendant and said documents were got signed from the defendant fraudulently. On the other hand, defendant came up with the plea that he was not allowed to read said documents. But, in any case defendant has not denied his signatures either on the agreement to sell or other documents of sale relied upon by plaintiff though he (defendant) conveniently denied the contents of the same except that of the registered documents i.e. SPA, Will and GPA as Ex. P-3, P-8 and P-9 respectively.
52. Let us now advert to the evidence adduced by the parties for proving their respective case. As per the cross examination of PW-1, he is a graduate who studied in Delhi and Kolkata and dealing in Logistic ever since 1983. His father had joined International Trade Centre, Geneva on deputation in the year 1977 and he remained there till 1983. Prior to joining the International Trade Centre his father was posted in State Trading Corporation. His father retired in the year 1993 and after retirement he started working in NGO in Geneva where he worked even after 2002. His father did not have any residential property. After year 2002, his father did not purchase or acquire any property except Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.07.28 CS no.56377 of 2016 16:45:36 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.29 of 64 the suit property. In the year 1983 monthly income of his father was USD 12000 to 14000 (tax free) and during the year 2003-2004, the monthly pension of his father was Rs.1,70,000 to 1,80,000. PW1 denied the suggestion that he had not filed any document to show the financial capacity of his father to purchase the suit property during the relevant time. He deposed voluntarily that he had filed on record his (plaintiff's) pension documents. He denied the suggestion that Income Tax Return was not filed on record as it would have revealed plaintiff's incapacity. He denied the suggestion that his father was not present in India either on 18.12.2002 or 23.12.2003 or that was the reason that the documents executed before Sub-Registrar did not suggest his presence. He denied the suggestion that the document before the Sub-Registrar was executed in his (PW1) favour due to the reason that his father i.e. plaintiff was not available in the country nor any document was given to the defendant to show his readiness and willingness to purchase the property in question. He further denied the suggestion that he or his father lured defendant to execute GPA and Will on the pretext of helping the defendant in getting the property converted into freehold or that it was never supposed to be sold by the defendant. PW-1 denied the suggestion that the documents including GPA were executed only for getting the property mutated and thereafter to get it converted into freehold. He further denied that the document relied upon by the plaintiff were got signed in blank or that the contents were inserted thereafter. PW-1 further denied that the several photographs of plaintiff and his father as well as that of defendant were used only to give authenticity to the documents in question. PW-1 further denied the suggestion that defendant had never shown or conveyed his intention to sell the property to plaintiff. He further denied that the amount of Rs. 20 Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:45:29 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.30 of 64 lakh was paid to defendant in order to show creditability of plaintiff as broker. He denied the suggestion that the agreement to sell did not show correct value of the property or that the market value of the suit property was actually about 30-40 corers.
53. What is required to be ascertained is the actual nature of alleged transaction entered into between the parties. In order to judge the nature of transaction, it must be viewed in the light of circumstances exiting before and after the transaction, ordinary course of human affairs and human probabilities. In the instant case, defendant in his evidentiary affidavit has deposed that the plaintiff was a property dealer who had helped him in getting his (defendant's) property C-131, Defence Colony, New Delhi vacated from the tenants and converted it into freehold and due to that plaintiff gained defendant's trust and lured him to execute certain documents in favour of plaintiff on the pretext that he (plaintiff) could get a handsome deal for defendant's property i.e the property in question. As a gesture of his credit worthiness, plaintiff issued a cheque of Rs. 20,00,000/- to the defendant and got the GPA and Will signed from the defendant by saying that execution of said documents would facilitate the deal with any third party in respect of the property in question. The defendant has further deposed that several other documents in blank were also got signed from defendant/DW-1 on the pretext that they were required to be submitted to various departments including L&DO for taking necessary permission regarding property in question.
54. Although, the defendant neither in written statement nor in his evidentiary affidavit mentioned the date of alleged GPA or the Will which he allegedly executed on the asking of plaintiff's son Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.07.28 16:45:22 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.31 of 64 for the purpose of facilitating the deal with the third party but in the legal notice dated 29.02.2008 Ex P-1 issued by defendant through his counsel upon the plaintiff and his son, defendant sought to revoke Will and SPA dated 24.12.2002 (date wrongly mentioned as 24.12.2002 instead of 18.12.2002) executed by him in respective name of plaintiff and his son.
55. Record has revealed that at the time of admission and denial of documents, defendant had admitted his signatures on all the documents of alleged sale relied upon by the plaintiff i.e. the Agreement to Sell, SPA, indemnity bond, receipt, two affidavits, Will, possession letter and General Power of Attorney all dated 18.12.2002 and same were accordingly exhibited as Ex. P-1 to P-9 respectively. But defendant denied the content of all the aforementioned documents except that of SPA Ex. P-3, Will Ex. P-8 and GPA Ex.P-9. As such, said three documents have been admitted in toto that is to say defendant admitted both his signatures on said documents as well as their contents.
56. All the aforementioned three documents i.e. GPA, SPA and Will dated 18.12.2002 are registered documents. The plea taken by defendant that said GPA and Will were got signed on the pretext to facilitate a deal to be effected with third party is not convincing. No doubt the GPA/SPA was executed in favour of plaintiff's son Shekhar Bhandari for carrying out various formalities for getting the property in question mutated in revenue record, for seeking necessary permission for sale from L&DO and further for conversion of said property from leasehold to freehold. But, it is not understandable what was the reason for the defendant to execute a Will bequeathing his share in demise property in favour of plaintiff.
Digitally signed by SUNENASUNENA SHARMA SHARMA Date:
2021.07.28 CS no.56377 of 2016 16:45:15 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.32 of 64 Defendant failed to furnish any plausible reason as to how the execution of Will in favour of plaintiff was going to facilitate any deal to be entered into with any third party. Furthermore, there is absolutely no reason for making said GPA and SPA irrevocable, if the same were not executed as a part of other sale documents, executed on the same date. Furthermore, there is a legal presumption regarding due execution of registered document. In the instant case, the defendant has not denied the execution of said documents but has taken the plea that same were not executed with the intention to sell the suit property.
57. It is pertinent to note that all the aforementioned documents i.e. agreement to sell, GPA, SPA, Will, indemnity bond, receipt, two affidavits, possession letter relied upon by the plaintiff are contemporaneous documents signed by the defendant at the same time. But, in respect of all other documents except GPA, SPA and Will, the defendant has taken the plea that all said documents including the agreement to sell were got signed in blank. Whereas, no such case was set up by the defendant in the legal notice dated 29.02.2008 vide which defendant sought to revoke all the documents in possession of addressees i.e plaintiff and his son, vide which they were given power, authority, right, title or interest in demise property.
58. I have carefully scrutinized the agreement to sell and all other contemporary documents viz. affidavits, indemnity bond, possession letter and receipt. The positioning and placement of defendant's signature on said documents nowhere indicate that the same were prepared on already signed papers or to say that written content thereon was typed later on. The signatures on all Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.07.28 16:45:07 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.33 of 64 the pages of documents are appearing in perfect alignment with the written contents of the documents. The said documents including agreement to sell, which were allegedly got signed in blank are running into more than 15 pages and had the same been fabricated on blank signed papers as alleged by the defendant, the signatures would not have been placed so accurately with perfect alignment with written content on the documents. There is neither any overlapping of signature with written contents nor there is unusual gaps between written content and the signatures.
59. Defendant in his cross examination has admitted that he neither had business relationship nor any family or social relationship with the plaintiff or his son. In said eventuality, it is highly improbable that defendant would sign blank papers and would have handed over the same to a person not so closely related to him especially when the defendant himself was not residing in India and was permanently settled in USA. Though the defendant has alleged that he came in contact with the plaintiff's son Sh. Shekhar Bhandari after he helped him (defendant) in getting his property C-131, Defence Colony vacated from the tenants and getting it freehold but, not even a single document has been placed on record in support of said claim.
60. The averment in the written statement to the effect that plaintiff did not even let the defendant read the documents also belies defendant's own plea that papers were got signed in blank and were later misused for fabricating the alleged sale documents. Had it been so, there would not have been any occasion for the defendant to even aver so, indeed it goes to show that documents were already typed when the same were signed by the defendant.
Digitally signed SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.07.28
CS no.56377 of 2016 16:44:58 +0530
Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.34 of 64
61. Moreover, defendant/DW-1 is a well-placed person. As per his deposition, he was working as technical director with some Shipping Company in USA. An educated person like defendant cannot be expected to sign on blank papers or to sign any document without reading the contents of the same. A prudent person cannot be expected to have acted in such manner merely on the asking of some person with whom he did not even have any close relationship. It is further worth noticing that in cross examination of PW1, a suggestion was put to him to the effect that he was not present at the time of execution of agreement to sell which is sufficient to demolish defendant's plea that agreement to sell was never executed or that the same was fabricated by misusing the papers which were allegedly got signed in blank from defendant.
62. Furthermore, in the WS the defendant also seems to have taken the plea that the document other than the registered documents were got signed fraudulently. But surprisingly, defendant has not disclosed either in the written statement or in his evidentiary affidavit as to how and when did he first come to know about the alleged fraud played upon him by the plaintiff i.e regarding misuse of said documents allegedly got signed from him fraudulently. As already noted above even in the legal notice dated 29.02.2008, available on record a Ex.P-1 sent by the defendant through his counsel, there is no mention that the plaintiff or his son had ever got signed any blank papers from the defendant or ever misused the same. Instead, defendant conveniently sought to revoke all the documents whatsoever in possession of plaintiff or his father vide which they were given any power, right, interest or title Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:44:52 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.35 of 64 in the suit property. The pleadings of the defendant are highly vague as to which documents are sought to be referred by the defendant which were got signed from him fraudulently. In the WS, it is averred, that documents were got signed by the plaintiff from the defendant fraudulently at the time of signing of other documents. Here it is not clear as to what other documents defendant is referring to. Even the pleadings related to fraud are vague and evasive.
63. During his cross examination, DW1 was confronted with averment contained in the written statement wherein the agreement to sell was alleged to be not legal, valid or binding contract, to which DW-1 responded that because the agreement was not a registered document therefore, he had stated that the said document was not legal, valid or binding. Surprisingly, here DW-1 has nowhere alleged that the agreement to sell was forged or fabricated or for that reason that it was not legal or valid. Even at the cost of repetition, I may mention again that an agreement to sell does not require registration under Section 17 of Indian Registration Act and here the reliance placed by defendant upon Section 17 (1) (a) of Registration Act is totally misplaced for the reason that said section applies only where transferee is claiming benefit of Section 53A of Transfer of Property Act and not otherwise. Same is also evident from the proviso to Section 49 of Registration Act. Bare perusal of said proviso is sufficient to clarify that the agreement is not required to be registered for admitting the same in evidence for the purpose of suit for specific performance.
64. In the light of aforementioned facts and circumstances, it is apparently clear that the defendant has taken a sham plea to Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 CS no.56377 of 2016 16:44:44 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.36 of 64 wriggle out of the obligations arising out of the agreement to sell which he entered into with the plaintiff consciously with clear intention to sell out his share in the demise property. The various contradictory stands taken by the defendant at different points of time are indicative of the fact that the defendant turned dishonest after steep hike in property rates subsequent to his entering into said deal with the plaintiff.
65. Admittedly, defendant had accepted payment of Rs. 20 lakh by way of cheque from the plaintiff and same was never returned back to plaintiff till date. The plea taken by the defendant that said payment was made by the plaintiff merely to show his creditworthiness as a property dealer is beyond comprehension. If said theory of defendant is believed to be true then plaintiff who was to only earn meager commission of 1% or 2% on the sale consideration that too on a successful deal, had paid such huge sum of money of Rs. 20,00,000/- just to show his creditworthiness as a property dealer. Here, I fully endorse plaintiff's arguments that said practice of paying money to prove creditworthiness as a property dealer is weird, unusual and unheard. As a market practice property dealers always receive/earn commission from the sale of property of their clients as consideration for their services but it is new to hear that a property dealer deposits/pays any amount to the owner/client for proving his creditworthiness to effect a future deal.
66. In the back drop of aforementioned uneven stand taken by the defendant, defendant has miserably failed to establish that the payment of Rs. 20,00,000/- was paid as security and not as part of sale consideration for the purchase of defendant's share in demise property. In view of Section 91 and 92 of Evidence Act, Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.07.28 16:44:38 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.37 of 64 verbal evidence even otherwise, cannot be admitted to contradict the contents of a written document especially when the document has been duly proved on record.
67. Having regard to aforementioned discussion, plaintiff has successfully proved on record that agreement to sell dated 18.12.2003 Ex.P-2 is a legally binding contract which was executed by defendant in plaintiff's favour with clear intention to sell out his (defendant's) share in demise property against consideration. On the other hand, defendant has miserably failed to prove any of the pleas taken in the WS to challenge the legality or validity of said agreement.
D. Readiness and Willingness of plaintiff to perform his part of contract.
68. It is a settled law that the plaintiff who seeks the relief of specific performance of an agreement has to plead and prove that he was ready and willing to perform his a part of contract as per the mandate of Section 16(c) of Specific Relief Act. It is also importance to note that readiness and willingness are quite distinct and distinguishable in the context of Section 16(c). While the readiness connotes financial capacity of the one who seeks to enforce specific performance, the willingness distinctively refers to his personal and mental inclination to see performance of covenant.
69. The law in this regard has been recapitulated by the Hon'ble Apex Court in "Jagjit Singh versus Amarjit Singh" Civil Appeal no. 9124/2018 decided on 13.09.2018 where in the Hon'ble apex court in para 4 of the judgment observed as under :
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"4. It is settled law that a plaintiff who seeks specific performance of contract is required to plead and prove that he was always ready and willing to perform his part of the contract ["16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person--(a)-(b) ***(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."] . Section 16(c) of the Specific Relief Act mandates that the plaintiff should plead and prove his readiness and willingness as a condition precedent for obtaining relief of grant of specific performance. As far back as in 1967, this Court in Gomathinayagam Pillai v. Palaniswami Nadar [Gomathinayagam Pillai v. Palaniswami Nadar, (1967) 1 SCR 227 : AIR 1967 SC 868] held that in a suit for specific performance the plaintiff must plead and prove that he was ready and willing to perform his part of the contract right from the date of the contract up to the date of the filing of the suit. This law continues to hold the field and it has been reiterated in J.P. Builders v. A. Ramadas Rao [J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429 : (2011) 1 SCC (Civ) 227] and P. Meenakshisundaram v. P. Vijayakumar [P. Meenakshisundaram v. P. Vijayakumar, (2018) 15 SCC 80 : (2018) 5 Scale 229] . It is the duty of the plaintiff to plead and then lead evidence to show that the plaintiff from the date he entered into an agreement till the stage of filing of the suit always had the capacity and willingness to perform the contract."
70. It is sufficient for the plaintiff to establish that he always had the capacity to pay the sale consideration and it is not necessary that he always carries the money with him from the date of the suit till the date of decree. It is also necessary to mention here that omission of the word willingness in the plaint does no dis- service to plaintiff's case, as the principle is that the pleading should be construed substantial for what it is, that is to say, to understand its spirit and not merely its form. In construing a plea in any pleading courts must keep in mind that a plea is not an expression Digitally signed SUNENA by SUNENA SHARMA CS no.56377 of 2016 SHARMA Date: 2021.07.28 16:44:20 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.39 of 64 of art and science but an expression through words to place fact and law of one's case for a relief. Therefore, to gather the true spirit behind, it should be read as a whole and to test whether the plaintiff has performed his obligation, one has to see pith and substance of the plea. Unless a statue specifically required a plea to be taken in any particular form, it can be in any form. No specific phraseology or language is required to take such plea, therefore, I may conclude here that readiness and willingness has to be in spirit and substance and not in any letter and form. Reliance placed on Sukhbir Singh v. Brij Pal Singh AIR 1996 SC 2510; Syed Dastagir Vs. T.R.Gopalkrishna Shetty, 1999 SCC 337.
71. In a contract, contract usually embodies mutual obligations. Undoubtedly, the order of performance of obligations by the parties to the contract would have an impact on the aspect relating to readiness and willingness. In the instant case, readiness and willingness on the part of plaintiff makes its appearance right from the time when he and his son started approaching defendant for knowing the status of requisite permission and kept defendant informing that plaintiff was ready to pay the balance sale consideration and it continued in his pleadings. In this regard except the bald denial that too in the wake of defence that no agreement to sell was at all executed which the defendant miserably failed to prove, there is no other rebuttal from the side of defendant.
72. As per the agreement to sell, out of total sale consideration of Rs. 25,00,000/-, a substantial amount of Rs. 20,00,000/- which is equivalent to 80% of total sale consideration was paid by the plaintiff to the defendant at the time of execution of the agreement to sell. The said payment has not been denied by the Digitally signed by SUNENA SUNENA SHARMA SHARMA Date:
2021.07.28 CS no.56377 of 2016 16:44:12 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.40 of 64 defendant though he took a plea that the same was given as a security for creditworthiness of the plaintiff, which again the defendant has miserably failed to prove. As per Clause (1) of the agreement to sell the remaining sum of Rs.5,00,000/- was payable at the time of registration of the sale deed in the office of Sub Registrar after affecting the mutation and after conversion of the aforesaid property into freehold.
73. Clause (4) of the agreement to sell stipulates that if it is required the first party shall apply and obtain the sale permission from the office of L&DO in respect of said share in the said property under sale in favour of second party or his nominee at his own cost and expenses but if the second party wishes to get the aforementioned property converted into freehold then first party will get the property converted into free hold. Clause (5) of the agreement to sell stipulates after obtaining sale permission or after conversion of the property into freehold the first party shall sign and execute proper sale deed in favour of the second party or his nominee and will get the same registered with the Sub Registrar.
74. Considering the aforementioned terms and conditions of the agreement to sell, it is clear that the remaining sale consideration of Rs. 5,00,000/- was payable only at the time of registration of sale deed which the first party i.e the defendant herein was under obligation to execute only after taking necessary permission for sale from L&DO or after conversion of the property from leasehold to freehold as the case may be. Undoubtedly, the sale deed could not have been executed by the defendant without either taking permission from the L&DO to sell the property or Digitally signed by SUNENA SHARMA SUNENA Date:
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without getting the property converted from leasehold to freehold. As per the agreement to sell, both the said obligations were casted upon the first party i.e. defendant. No particular date was fixed by the parties for the execution of sale or for seeking the aforementioned permission from the L&DO or for getting the property converted from leasehold to freehold.
75. Counsel for the defendant has vehemently argued that in the plaintiff's own document i.e. agreement to sell, it was further stipulated in Clause(13) that plaintiff's son Sh. Shekhar Bhandari was appointed as general as well as special attorney in respect of their property in question and as per the terms contained in the GPA Ex.P-9, plaintiff's son i.e. PW-1 was authorized to apply and obtain sale permission from L&DO office in favour of intending purchaser and sign, submit affidavit, applications, NOC, undertaking, declaration, indemnity bond, request form etc to concerned office depositing dues and payments before L&DO and get sale permission letter under his own signatures. Under clause (15) of said GPA, the Attorney was further authorized to get the said property converted from leasehold to freehold and to take all necessary steps for that purposes. Counsel for defendant has argued that in view of the said authorization in favour of plaintiff's son vide said documents, the obligation was upon PW1 to take appropriate steps for seeking permission from L&DO and for getting property converted into freehold whereas, no such steps were taken either by the plaintiff or his son, which clearly goes to prove that the plaintiff never had any inclination for getting the sale deed executed or to seek the performance of the agreement to sell. It is submitted that in the wake of said inaction on the part of the plaintiff and his son no breach can be imputed upon defendant.
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76. Ld. plaintiff's counsel refuted the above argument by submitting that the suit property devolved upon the defendant by virtue of Will Ex. PW3/1 of his grandmother in respect of which a probate petition was also granted by Hon'ble High Court on 09.0.5.1988 but, the mutation on the basis of said probate was recorded in the record of L&DO only on 13.04.2005. Therefore, on account of pendency of defendant's application with the L&DO for mutation of property in his name and in the name of other beneficiaries of the Will, the defendant, whenever he was approached by plaintiff and his father for knowing the status of permission from L&DO, kept assuring that necessary permission shall be soon applied after the property get mutated in their name. It is further submitted that as per written statement, the Hon'ble High Court was pleased to issue probate certificate in respect of aforementioned Will only on 29.04.2004, and only subsequent thereto, L&DO recorded mutation in the name of the joint owners of property on 13.04.2005. It is further argued that even thereafter, the defendant kept avoiding to perform his part of contract by saying that on account of some family dispute some more time will be required.
77. The Counsel has drawn my attention to the averments contained in the plaint and plaintiff's deposition on same lines in his evidentiary affidavit to the effect that plaintiff and his attorney through personally and telephonic conversation represented the defendant about plaintiff's readiness and willingness to complete his part of remaining transaction by paying the balance sale consideration of Rs.5,00,000/- but the defendant kept assuring that he would get the necessary permission and also get the property converted from leasehold to freehold. It has been argued that even Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 CS no.56377 of 2016 16:43:52 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.43 of 64 after the property got mutated in the name of the defendant in the record of L&DO, the defendant failed to take any steps for seeking necessary permission and kept assuring the plaintiff that he would soon take necessary steps for the same and it is only upon receipt of notice dated 29.02.2008 from defendant's counsel, the plaintiff to his utter shock and surprise came to know about dishonest intention of the defendant to wriggle out of said deal.
78. The counsel further submitted that as per the policy of the L&DO for conversion of property from leasehold rights to freehold rights current leasees/ owners jointly have to apply for the conversion and have to deposit various documents viz. original lease deed, sanction building plan, occupancy certificate, mutation certificate, death certificate of previous owners/lessees etc. No application for conversion is even entertained without the aforesaid requisite documents and since the first party i.e. defendant herein failed to submit such application with the L&DO for conversion, there was no question of grant of any permission for the sale by L&DO or for the conversion of suit property from leasehold to freehold.
79. It is further submitted that the only obligation on the part of the plaintiff was to pay the balance sale consideration which the plaintiff always kept ready with him and also kept defendant informed about the same. However, it is the defendant either himself or through his attorney, who was to take appropriate steps for necessary permission and conversion and since the defendant failed to take any such steps there is a clear case of breach of agreement on the part of the defendant thereby entitling the plaintiff to get a decree of specific performance in terms of Clause Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 CS no.56377 of 2016 16:43:44 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.44 of 64 (14) of the agreement to sell.
80. It won't be out of place to mention here that defendant throughout this legal battle of more than a decade kept trying to avoid said documents GPA/SPA by taking the plea that they were never executed with an intention to enter into any deal with the plaintiff for the sale of suit property rather, the same were got executed from the defendant on the pretext that plaintiff would arrange a deal for sale of suit property and said documents would facilitate said deal with the third party. But now, the defendant wants to take advantage of said documents by saying that said contemporary documents created an obligation on plaintiff's son to complete the formalities for requisite permission and conversion.
81. However, in my considered view defendant cannot be allowed to blow hot and cold at the same time. On one hand, defendant categorically denied to have executed said attorneys in respect of any deal with the plaintiff for sale of his property and has instead taken the plea that attorneys were executed to facilitate the deal to be struck with some third party. On the other hand, defendant now wants the court to treat said documents GPA/SPA to be part of same transaction by saying that vide said contemporary documents, an obligation was casted upon plaintiff's son to complete formalities for requisite permission and conversion of suit property. Even otherwise, an attorney is supposed to act only on behalf of principal. Whereas, in the instant case, under agreement to sell, the obligation was created upon defendant to bear all the costs and expenses for seeking sale permission from L&DO and for getting the property converted into freehold. Further, for said purposes, the necessary documents such as original lease deed, Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 CS no.56377 of 2016 16:43:36 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.45 of 64 copy of mutation letter in the name of current owners, death certificate of previous owner etc., were required to be submitted with L&DO alongwith the application signed by the leasees/current owners. Hence, without the availability of said documents, the plaintiff or his son could not have even applied for the permission or conversation from L&DO. In view of the fact that mutation in the name of beneficiaries of the Will of Smt Sarojini Biswas, who was recorded owner/lessee of demise property, was effected in the L&DO's record only in the year 2005, subsequent to grant of probate certificate by the Hon'ble High Court, no permission could have been even otherwise applied for without said necessary documents. Whereas as per the deposition of PW-1, the defendant kept assuring the plaintiff and his son whenever they approached him for completion of formalities, that he would soon take necessary steps for said purpose. In the cross examination of PW-1, there appears to be no sincere contest to said deposition as no suggestion was put to PW-1 to deny that he or his father ever approached defendant for said purpose. The only suggestion put to PW-1 in this regard is that the plaintiff himself was neither ready nor willing to complete the transaction as it was never an understanding between the parties and defendant was never interested to sell his share. Though of course said suggestion was categorically denied by PW-1 as incorrect.
82. As regard to the capacity to pay, it may be noted here that plaintiff was a retired Civil Servant who also remained posted as UN diplomat in Geneva, Switzerland. As per examination in chief of PW-1, plaintiff was always ready and willing to perform his part of contract and always had the liquid balance of more than Rs. 10 lakh with him since December 2002 till date. PW1 further deposed that Digitally signed by SUNENA SUNENA SHARMA SHARMA Date:
2021.07.28 CS no.56377 of 2016 16:43:30 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.46 of 64 plaintiff was a person of high status having held senior position as member of Industrial Management pool in Govt. of India, Principal Advisory with international Trade Center, UNCTAD WTO, UN organization Geneva during period 1978 to November 1993, certified copy of the certificate issued by International Trade Centre in this regard has been placed on record as Ex.PW1/4. Plaintiff has also placed on record certain more documents in support of his financial capacity to pay the balance sale consideration as Ex. PW1/5 to PW1/8. PW1/7 is the copy of the document regarding joint staff pension fund. Furthermore, in his cross examination PW-1 further deposed that in 1983 monthly income of his father was USD 12000 to 14000 (tax free). Further that during the year 2003- 2004, the monthly pension of his father was Rs. 1,70,000/- to Rs. 1,80,000/-. The said deposition with regard to plaintiff's financial status has gone unrebutted and uncontroverted. Only a bald suggestion was however, given to PW-1 to the effect that he had not filed any document to show his financial capacity to purchase the property. This suggestion was denied by the witness and PW1 stated further that he had placed pension documents in this regard. I have carefully perused the record which shows that plaintiff has placed on record the aforementioned documents including the copy of the letter from the SBI, Janpath Branch, certifying therein that plaintiff was holding a pension account with said branch of SBI and had been paid pension of Rs. 1,18,177/- during financial year of April 2007 to March 2008.
83. The abovementioned ample evidence on record leaves no room for doubt that plaintiff is a person of high stature having worked at high positions for Government of India with various international organization and during relevant time, he had Digitally signed SUNENA by SUNENA SHARMA CS no.56377 of 2016 SHARMA Date: 2021.07.28 16:43:23 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.47 of 64 sufficient financial capacity to pay the balance consideration amount to the defendant.
84. In the light of aforementioned discussion, the evidence on record is sufficient for the court to conclude that plaintiff has successfully proved it that he was ready and willing to perform his part of agreement.
E. Applicability of bar of estoppel, res judicata or constructive res judicata as alleged in the WS.
85. In the WS defendant has also taken the plea that the suit is bad in view of principles of estoppel, res judicata and constructive res judicata on the ground that plaintiff had filed two applications both under Order 1 rule 10 CPC seeking his impleadment as petitioner in the eviction petition under Section 14(1)(d)(h) of DRC Act pending in the court of Ms. Savita Rao, ARC, Delhi but, both the said application were dismissed on the ground that petitioner/applicant had no right/title or interest in said property. In view of said finding of the court rejecting the right of plaintiff in demise property, suit is barred on account of aforementioned principles of law. However, careful perusal of the cross examination of DW-1 shows that said eviction proceedings referred in his evidentiary affidavit were pending in respect of ground floor of the demise property which came to devolve on cousin brothers of the plaintiff (Nandy brothers) by virtue of Will of their grandmother Late Smt. Sarojni Biswas. Considering the fact that said legal proceedings were under Delhi Rent Control Act for seeking eviction of tenants who were in possession of ground floor of the demise property and were not pertaining to the portion belonging to defendant herein, the dismissal of plaintiff's application Digitally signed SUNENA by SUNENA SHARMA SHARMA CS no.56377 of 2016 Date: 2021.07.28 16:43:16 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.48 of 64 for seeking his impleadment in said petition has no bearing to the claim of the plaintiff in present case and as such, there is no question of applicability of said principles. Even otherwise, no such order of Ld ARC has been placed on record for perusal of this court. Hence, the above contention raised on behalf of defendant is totally fallacious and stands rejected.
F. Bar against transfer of undivided share in the immovable property as alleged in the WS.
86. It is further contended on behalf of defendant that the plaintiff and the defendant both were aware that the property in question has yet not being partitioned and hence, parties could not have entered into deal of sale for selling out or purchasing the undivided share in the property.
87. It is further the defendant's case that defendant not being the owner of the entire property, had no right or authority to dispose of his portion without having a formal partition of the property. It is stated that even the other owners of the property have already got the mutation in their favour from L&DO and the defendant alongwith other five co-owners of the property are having 1/6th equal and undivided share in the entire property and in view thereof, the alleged agreement even otherwise has no effect or legal sanctity in the eyes of law.
88. It is pertinent to note that the suit property has devolved upon the defendant not by way of succession but by virtue of the Will of his grandmother who bequeathed the demise property in favour of her grandsons. As per said Will, the first floor of demise property excluding the servant quarter came to the share of Digitally signed by SUNENA SUNENA SHARMA SHARMA Date:
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defendant. It is also pertinent to note here that a probate was also granted in respect of said Will by the Hon'ble High Court subsequent to which mutation was also recorded in favour of the beneficiaries of the Will in the record of L&DO. However, considering the fact that under the Will only the built up portion of property was bequeathed, the land beneath remained undivided, therefore, the same shall fall to the share of each beneficiary and it is in the light of said fact only, in the agreement to sell the term 'undivided share' in the demise property was used. Furthermore, there is no legal impediment for transfer of even undivided share in the immovable property. Where the property is owned by more than one person, the joint owners can also very well transfer their respective undivided share in the property. In view of said factual and legal position even said plea taken by the defendant that he could not have transferred his undivided share in the demise property is without any substance and accordingly, rejected.
G. Applicability of Section 20 of Specific Relief Act so as to decline the discretionary relief of specific performance.
89. Learned counsel for the defendant has urged that in view of Section 20(2)(a)(b) of the Specific Relief Act, it would be imperative for the court to look into carefully if the performance of the contract would put defendant to disadvantageous position over the plaintiff or it would involve some hardship to the defendant that he did not foresee, whereas its non-performance would involve no such hardship to the plaintiffs. In this connection, it would be apposite to refer to the provisions of Section 20 of the Specific Relief Act, 1963 (as it stood prior to the Amendment of 2018).
Section 20 (supra) is quoted in extenso: Digitally signed by SUNENA SHARMA SUNENA Date: SHARMA 2021.07.28 16:43:00 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.50 of 64
"20. Discretion as to decreeing specific performance.--(1) 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.
(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;
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.--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 2.--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 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 party.
90. In the WS, though a plea of Section 20 of Specific Relief Act, 1963 has been taken by defendant for opposing the grant of relief of specific performance in plaintiff's favour but, nothing has been pleaded or proved on record as to how the instant case is falling in the category of circumstances enumerated in said provision so as to entail its application in favour of defendant. Even the written arguments are silent on this aspect as except to say that grant of specific relief in favour of plaintiff would cause irreparable Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:40:56 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.51 of 64 loss to defendant, nothing is stated as to how benefit of said provision has been claimed.
91. It has been strongly argued by plaintiff's counsel that no benefit of said provision can be made available to defendant as the provision of Section 20 has been repealed by the Amendment Act of 2018, vide which the discretion vested in the court by virtue to said section to grant or decline the relief of specific performance, has been taken away by the legislature. In support of his argument, Ld. Counsel has placed reliance on the judgment of Allahabad High Court in Mukesh Singh and ors. Vs. Saurabh Chaudhary and ors MANU/UP/1813/2019. Counsel further argued that even otherwise, Section 20(2) deals with the situation in which the plaintiff will have an unfair advantage over the defendant. Whereas, in the instant case, defendant has already received substantial amount of consideration and also handed over the possession of the suit property to the plaintiff at the time of execution of agreement to sell and ever since, plaintiff is in possession of suit property. Therefore, in said circumstances, plaintiff shall be at far more disadvantageous position if relief of specific performance is declined to him and defendant would have unfair advantage as he would get unjustly enriched despite committing a blatant breach of contract.
92. Ld. counsel for defendant opposed the above argument by submitting that amendment brought by the Amended Act of 2018, would apply only on cases instituted subsequent to the amendments came into force and since amendments are not having any retrospective effect, the defendant can very well claim benefit of said Section 20, which empowered courts to exercise discretion to decline relief of specific performance in suitable cases as Digitally signed enumerated therein.
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93. It has been alleged that plaintiff if allowed relief of specific performance would be at unfair advantage for the reason that the consideration amount at which the suit property was allegedly sold under the agreement to sell is much less than the market price of said property which was prevalent at the relevant time. Furthermore, due to time gap of more than 15 years from the date of alleged deal, the prices have increased manifold. Counsel has further argued that property being a leasehold property to the knowledge of both the parties, could not have been sold out in violation of terms of perpetual lease and for this reason too plaintiff is not entitled to discretionary relief of specific performance. Counsel further argued that since no sale deed can be executed in favour of plaintiff without the property being converted into freehold, therefore, performance of said agreement would involve lot of hardship to the defendant.
94. The above argument regarding agreement to sell being in violation of terms of perpetual lease deed, has been repelled by plaintiff's counsel, who has vehemently argued that agreement to sell does not amount to transfer in terms of Section 5 of TPA and as such, agreement to sell is neither in violation of terms of lease nor any permission was required before entering into such agreement. To buttress his arguments, counsel has also placed reliance on the judgment of Hon'ble Delhi High Court in Kuldeep Singh Suri Vs. Surinder Singh Kalra 76 (1998) DLT 232. On the lines of law laid down in said judgment, Ld counsel further contended that permission from L&DO is not a condition precedent for grant of decree for specific performance. It was further argued that having regard to all the documents contemporaneously executed and Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.07.28 16:40:35 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.53 of 64 surrounding circumstances, it is established that parties had entered into a power of attorney sale by executing registered SPA, Will, GPA and other documents like agreement to sell, possession letter, receipt, affidavits and indemnity bond.
95. Thus, not only there was an agreement to sell between the parties but, there was part performance of same which was signified by delivery of possession of the suit property in favour of plaintiff. It was further argued that if the instant transaction is held to be illegal then a colossal loss and misery would be caused to vendee i.e. the plaintiff herein because by denying the relief to plaintiff, vendor i.e. defendant would be making capital out of the breach by getting back his property after having enjoyed the money for more than 15 years.
96. I have given my thoughtful consideration to the above arguments and also carefully perused the judgments relied upon by the parties.
97. As regard the availability of benefit of Section 20 of Specific Relief Act, I may note here that this provision never created any substantive right either in favour of aggrieved party or in favour of defaulting party. Rather, said provision vested the court with a discretion to grant or decline relief of specific performance after checking the suitability of each case in the light of parameters laid down in sub section (2)(3) and (4). Hence, availability of benefit of said section cannot relate back to the time when suit was instituted or agreement to sell was executed. Indeed it would be considered only at the time of final adjudication of the matter i.e. at the time of final decision of the case. In view of the fact that as onDigitally date,signed by SUNENA SHARMA SUNENA Date:
SHARMA 2021.07.28 CS no.56377 of 2016 16:40:29 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.54 of 64 Section 20 of Specific Relief Act is no more on statute book and stands already repealed, the benefit of said section cannot be made available to defendant in the instant case. After Amendment Act of 2018, the discretion earlier vested in the court has been done away. In the amended Specific Relief Act, 1963, there is no provision akin to said provision of Section 20. For holding said opinion, I also draw support from the aforementioned judgment of Mukesh Singh (Supra) relied upon by plaintiff's counsel, wherein it was held as under :
"37. The scheme of the Act as amended by the amendment Act 2018 (No. 18 of 2018) that the wider discretion of Courts to grant specific performance and to make specific performance of contract a General Rule than exception subject to certain limited ground has been done away. The discretionary jurisdiction to decree specific performance as provided in the old Section 20 of the Act has been omitted. After the amendment there is no provision under the present Act like the repealed provision of Section 20(1) that the "jurisdiction of Court 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. Similarly, after the amendment there is no provision similar to the repealed provision of sub-section 2 of Section 20 providing for cases in which Court may exercise discretion not to decree specific performance. Thus, the amending Act clearly expressed a different intention than the repealed provisions of Section 20. Therefore, the provisions of Section 6 of the General Clauses Act would not be attracted. After amendment, the jurisdiction of the Court is not discretionary to decree specific performance. Consequently, the repealed provisions of Section 20 of the Act would not be available for decision in the present appeal. Question Nos. 3 and 4 are answered accordingly. The benefit of repealed Section 20 of the Act is not available to the defendant- appellant."
98. Assuming for the sake of argument that benefit of said Section is extendable to parties even today, then also I do not find the case fit for according benefit of discretion in favour of defendant for following reasons : Digitally signed by SUNENA SUNENA SHARMA SHARMA Date:
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1). In the light of Explanation 1 to Section 20(2) Specific Performance Act, mere inadequacy of consideration shall not be deemed to constitute unfair advantage within the meaning of clause (a) or hardship within meaning of clause (b).
Especially in the instant case, when defendant has not led any trace of evidence to show inadequacy of consideration, there is absolutely no reason for extending benefit of said clause to the defendant on this ground.
2) There is no bar to enter into an agreement to sell even in respect of lease hold properties provided the transfer of title is made conditional to grant of permission for sale by the lessor, as has been done in the instant case. In the case of Motilal Vs. Nanehelal AIR 1930 PC 287, the privy council laid down that if vendor had agreed to sell the property which can be transferred only with the sanction of some government authority, the Court has jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanction is forthcoming to convey to the purchaser within certain time. It was further held that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he has agreed to sell the same to the vendee.
3) In the light of law laid down in Kuldip Singh (supra), permission from L&DO is not a condition precedent for grant of decree of specific performance.
4) The claim of plaintiff regarding handing over of vacant physical possession of suit property at the time of execution of agreement to sell and plaintiff's uninterrupted possession ever since, has though been denied by the defendant but on a Digitally signed by SUNENA SUNENA SHARMA CS no.56377 of 2016 SHARMA Date: 2021.07.28 16:40:11 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.56 of 64 vague plea that tenant Mrs. Pamela Singh was in possession of ground floor of property to the knowledge of plaintiff. Here, I may note that in the instant case plaintiff is not claiming any relief in respect of the ground floor of the property nor he has claimed that he was handed over physical possession of ground floor portion. As per the plaint as well as the evidentiary affidavit of PW-1, plaintiff has asserted his possession in respect of first floor excluding servant quarter of property no. 31, Jorbagh, New Delhi by deposing that plaintiff was handed over vacant physical possession of defendant's share i.e. the first floor of the property at the time of execution of agreement to sell.
During the course of argument, it was however vehemently argued on behalf of defendant that it was defendant, who was in possession of suit property. But, it is pertinent to note that no such claim that defendant himself is in possession of suit property was raised by defendant either in his WS or in his evidentiary affidavit. Rather in his cross- examination, on being confronted with the suggestion that plaintiff was in possession of first floor of property i.e suit property, DW-1 feigned his ignorance by saying that he did not know if plaintiff was in possession of first floor of property in question. In view thereof, there is no clear denial on the part of defendant regarding plaintiff's possession in respect of suit property, nor the defendant even claimed himself to be in possession or anybody else other than the plaintiff to be in possession of suit property.
5) Furthermore, possession letter dated 18.12.2002 Ex.P-10 whereupon defendant has admitted his signatures records handing over of vacant physical possession of suit Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 CS no.56377 of 2016 16:40:04 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.57 of 64 property from plaintiff to defendant. Whereas, the plea taken by defendant that said document or for that matter all other contemporary documents were got signed in blank or that the same were forged and fabricated by the plaintiff, has remained unsubstantiated and unproved as already discussed above. In the light of said circumstances, when defendant has already received substantial amount to the extent of 80% of the total sale consideration and also already put the plaintiff in physical possession of the suit property way back in the year 2002, there is no question of defendant being put to any hardship or unfair advantage over the plaintiff due to performance of contract. Rather the situation would be vice- versa in case the performance of agreement is denied to the plaintiff.
6) Furthermore, the conduct of defendant is not worth exercising discretion in his favour. At the cost of repetition, I may again note here that conduct of defendant in outrightly denying the very execution of the agreement to sell and all other contemporary documents except that of GPA and Will, which on account of being registered documents, he could not have conveniently denied; then after keeping silence for more than 5 years, unilaterally revoking all said documents by serving a legal notice upon the plaintiff that too without disclosing any reason therein for doing so; then taking sham pleas to challenge the validity and legality of said documents, is not appreciable and therefore, even otherwise it does not call for the exercise of discretion in his favour. Such pleas taken by defendant led to lengthy trial and took more than 12 years for the court to decide this case. Digitally signed by SUNENA SUNENA SHARMA SHARMA Date:
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99. Here, I may again refer to the above referred judgment of Hon'ble Delhi High Court in Canara Bank vs. K.L. Rajgarhia (supra) wherein, in a suit for specific performance, the conduct of defendant in taking sham pleas was deprecated and it was observed as under :
"37. Even otherwise, in modern, orderly society, specific performance of agreement ought not to be interfered with and ought to be encouraged. The modern trend of law is squarely in favour of extension of Specific Relief at the expense of traditional primacy of damages. A man should honour his word and should be bound by his agreement. If he does not do so, the court shall enforce. The conduct of the defendant even otherwise in this case does not call for the exercise of any discretion in favour of the defendant. The suit has been pending for 20 years in the court of first instance. The defendant took elaborate pleas denying the agreement of transfer of immovable property itself and claiming it to be a sham and pleading the real transaction to be of a loan. Such pleas by the defendant insisted framing of issues and a lengthy trial. The defendant in my opinion did not even make any attempt to establish the case pleaded. The pleas of loan transaction, undue influence and coercion exercised by the bank officials appear to have been taken only to delay the disposal of the suit. Had the said pleas not been taken and had the defence been what has been finally argued, no trial even may have been necessary and the suit could have been disposed of on submissions/arguments only. The endeavor of the defendant appears to be to, by involving the plaintiff in lengthy litigation, prevail upon the plaintiff and its officials to settle with the defendant and to the advantage of the defendant. Having ultimately failed in the said endeavour, there was nothing worth arguing also on the pleas taken. Time has come that the litigants indulging in such practices are severely dealt with. Discretion in the grant of relief even if exercisable in favour of such litigants ought not to be exercised. If in spite of indulging in such practices they become entitled to exercise of discretion and indulgence in their favour, it will only encourage such practices and to the detriment of the legal system and the society. As aforesaid, pleas were taken to show that the costs of land and the cost of construction were higher than what was agreed. No witness whatsoever was examined in this regard. Obviously, the defendant knew that the said pleas could not withstand the test of cross examination."
100. The above referred judgment of Canara bank(supra) was passed in the year 2009. Whereas, the amendments in the Specific Relief Act, vide which the discretion vested in the court for grant of relief of specific performance was done away came into Digitally signed by SUNENA SHARMA SUNENA Date:
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force in the year 2018. But, it is interesting to note that even 10 years prior to said amendments were brought on the statue books by the legislature, our Hon'ble Delhi High Court had noted the concern and emphasised on the necessity to bring a shift in favour of extension of specific relief at the expense of primacy of damages and observed that in an orderly society, specific performance of agreement ought to be encouraged as the men should honour his words and should be bound by his agreement.
101. From the aforementioned facts and circumstances of the instant case, it is quite clear that defendant entered into a power of attorney sale with the plaintiff in the year 2002 by executing all customary documents of agreement of sell, GPA, SPA, Will, possession letter, indemnity bond, affidavits and except that instead of paying whole of the consideration, 20% of the consideration was left to be paid at the time of execution of sale deed subject to defendant either getting permission for sale from L&DO or getting property converted from leasehold to freehold. However, within next five years of the deal, property rates enormously increased and intention of defendant became dishonest. By taking advantage of the situation that no sale deed which is a legally recognized mode of transfer of immovable property, had yet been executed in favour of plaintiff, the defendant with an ill intention to extract more money from the plaintiff, unilaterally revoked all the said documents by serving a legal notice Ex P-1 upon plaintiff and his son, that too without disclosing any reason whatsoever to revoke said documents. This perhaps was done by the defendant with the hope that either the plaintiff won't prefer to take any legal recourse against his illegal action and would approach him to settle for more money or even if he (plaintiff) does Digitally signed by SUNENA SUNENA SHARMA CS no.56377 of 2016 SHARMA Date:
2021.07.28 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.60 of 64 +0530 16:39:36 so and choses to approach court for legal remedies, then also owing to mounting cost of litigation and court delays, he (plaintiff) would enroute surrender and succumb to illegal demand of defendant to put end to his ordeal. It is a hard reality that maximum court time and resources especially in civil courts get consumed in attending uncalled for litigation, which are created only because our current procedures and practices hold out an incentive for wrong doers. In such a situation, asking an aggrieved person who is able to successfully prove his case after a long trial of more than a decade, to stay contented with damages would be nothing but an injustice to him.
102. In the written submissions filed on record by the defendant one more argument has been raised that if at all specific performance is granted in favour of plaintiff, that ought to be granted at current prevailing market rate because on account of enormous delay, the property rates have increased manifold. In this regard, reliance has been placed on the judgments Sardamani Kandappam Vs. S. Rajlakshmi (2011) 12 SCC 2018 and K.S.Vidyanandan Vs. Vairavan AIR 1997 SC. After having gone through both the judgments carefully, I am of the view that both said judgments are distinguishable on facts. In K.S.Vidyanandan (supra) out of total sale consideration of Rs. 60,000/-, only Rs.5,000/- which was barely 8% of the total sale consideration was paid as a earnest money at the time of agreement to sell. Furthermore, the time of 6 months was fixed in the agreement for performance of the contract. Whereas, in the instant case, admittedly the defendant has already received a substantial amount of Rs.20,00,000/- i.e 80% of the total sale consideration and only 20% is left to be paid. Further, there was no time fixed for Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:39:28 +0530 CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.61 of 64 performance of the contract in the agreement to sell and even the delay in performance can not be attributed to plaintiff in this matter. Even another judgment Sardamani Kandappam (Supra) is not applicable for same reason that only a small amount was paid as earnest money and it was plaintiff who was responsible for the delay. Since the fact situation of the said cases is totally different from fact situation of the present case, I am of the view that none of said judgments is of any help to the defendant.
103. Another argument raised by the defendant's counsel is that plaintiff had also filed two more cases on similar pleas against defendant's cousin brothers Shaminder Nath Nandi and Dipender Nath Nandi and in both the said cases vide judgment dated 20.09.2017, specific performance was declined to plaintiff by the court of Ld. ADJ Ms. Barkha Gupta. Counsel submitted that in said two cases also plaintiff had been seeking specific performance of the agreement to sell allegedly executed in his favour by defendants in respect of ground floor of the same very property i.e. property no. 31, Block 172, Jor Bagh, New Delhi. It was further submitted that in view of rejection of relief of specific performance in said cases, the plaintiff does not deserve to be granted said relief even in present case.
104. However, I do not agree with the above contention for the reason that said cases, which were filed by the plaintiff for specific performance with other reliefs of permanent and mandatory injunction, physical possession of the ground floor was admittedly with some tenants and only constructive possession was allegedly handed over to the plaintiff. Even otherwise, said judgment has yet not attained finality as appeals against them are stated to be Digitally signed by SUNENA SUNENA SHARMA CS no.56377 of 2016 SHARMA Date: 2021.07.28 16:39:21 +0530 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.62 of 64 pending before Hon'ble Delhi High Court. Furthermore, the judgment being passed by the court of co-ordinate jurisdiction, is not binding on this court.
105. Having considered and decided all the aforementioned contentions and pleas taken by the defendant to oppose plaintiff's claim for the relief of specific performance and having considered the above discussed facts and circumstances of the case, I feel no hesitation in holding that plaintiff has successfully proved his entitlement for said relief of specific performance. The issue no. 2 is accordingly, decided in favour of the plaintiff and against the defendant.
106. Issue no. 3.
"If answer to issue no. 2 is in negative, whether the plaintiff is entitled to damages to the tune of Rs. 25 lacs in the alternative? OPP."
In the light of the fact that issue no.2 has been decided in affirmative, issue no. 3 does not survive anymore.
107. Relief.
In the light of above findings on the aforementioned issues, suit is decreed for the relief of specific performance with directions to defendant to execute sale deed in favour of the plaintiff within six months, in respect of suit property after getting it converted from leasehold to freehold by taking all necessary steps. In terms of agreement to sell Ex P-2, for execution of sale deed, the plaintiff shall pay the stamp duty and registration charges after CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.63 of 64 being notified by the defendant regarding conversion of suit property into freehold. Parties are left to bear their on costs.
Decree sheet be prepared accordingly. File be consigned to record room. Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.07.28 16:39:13 +0530 (Sunena Sharma) Additional District Judge-04 Judge Code DL00222 Patiala House Courts : New Delhi (Announced on 28.07.2021) CS no.56377 of 2016 Sh. Basant Raj Bhandari Vs. Swapan Biswas Page no.64 of 64