Delhi District Court
Rising Properties Pvt. Ltd vs Mr. Mir Singh S/O. Sh. Ram Mehar Singh on 22 July, 2017
IN THE COURT OF SH. GURVINDER PAL SINGH:
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS 9049/16
Rising Properties Pvt. Ltd.
A company limited by shares and
incorporated under the provisions
of the Companies Act, 1956 and
having its Regd. Office at B4/4,
Safdarjang Enclave, New Delhi - 29
through its Director Mrs. Anjali Sehgal
........Plaintiff
VERSUS
1. Mr. Mir Singh S/o. Sh. Ram Mehar Singh
R/o. Village Kapashera
New Delhi.
2. Mr. Rajinder S/o. Sh. Nahar
R/o. Village Kapashera
New Delhi - 110037.
3. Mr. Surinder S/o. Sh. Chellu
R/o. Village Kapashera
New Delhi - 110037.
4. Mr. Virender S/o. Sh. Nahar
R/o. Village Kapashera
New Delhi - 110037.
CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 1 of 30
5. Mr. Om Prakash S/o. Sh. Chhellu
R/o. Village Kapashera
New Delhi - 110037.
6. Smt. Sunita Sareen W/o. Sh. Sudhir Sareen
R/o. B101, Greater Kailash
New Delhi.
.........Defendants
Date of Institution : 07.10.1991
Date of Arguments : 08.06.2017
Date of Judgment : 22.07.2017
JUDGMENT
1. The plaintiff filed a suit for specific performance to perform the agreement for sale dated July 4, 1991 executed between the plaintiff and the defendants.
2. Adumbrated in brief the facts of the case of plaintiff are :
The Rising Properties (P) Ltd. (hereinafter referred to as 'the plaintiff company') is a private limited company duly incoroporated under the provisions of the Companies Act, 1956 and is engaged in the business of development and promotion of real estate. Mrs. Anjali Sehgal wife of Sh. M.M. Sehgal is one of the Directors of the plaintiff company and has been authorised to institute the present case by virtue of a Board's resolution passed on August 29, 1991. It is averred that on July 4,1991, the plaintiff company entered into an agreement with CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 2 of 30 the defendants 1 to 5 for the purchase of 3/4th share of the defendant in agricultural land property admeasuring 8 Bighas and 4 Biswas situated in the revenue estate and the village Kapashera, New Delhi. The plaintiff company agreed to purchase the land in question for a total consideration of Rs. 20,48,600/ and paid an amount of Rs. 1,20,000/ towards earnest money and part sale consideration for which the defendants no. 1 to 3 signed and executed receipts in favour of the plaintiff company. An amount in the sum of Rs. 40,000/ was paid to the defendant no.1 who signed two receipts of Rs. 20,000/ each. Similarly, Rs. 20,000/ each was paid to defendants no. 2 and 3 who also signed receipts for the amount received by them. The defendants 1 to 3 represented that defendants no. 4 and 5 are also present, however they will sign the agreement subsequently. As regards the earnest money and part sale consideration, the defendants no. 2 and 3 signed the receipts for and on behalf of defendants no/ 4 and 5 respectively for the amount in the sum of Rs. 20,000/ each. After having received the amount of Rs. 1,20,000/ as earnest money and part sale consideration, the defendants executed a number of documents in favour of the plaintiff company including agreement to sale which was signed by the plaintiff company and the defendants no. 1 to 3 only as also a General Power of Attorney in favour of Mrs. Anjali Sehgal, the Director of the CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 3 of 30 plaintiff company. Since the defendants 4 and 5 were not present on July 4, 1991, the plaintiff company on the assurance and representations of defendants no. 1 to 3 agreed to the signing of the agreement by defendants 4 and 5 subsequently on July 9, 1991 at 5:30 p.m. at the farm house of Three M Properties Pvt. Ltd., a sister concern of the plaintiff company. On the appointed time and day when the plaintiff company presented the agreement to sale, already signed by the defendants no. 1 to 3 and the plaintiff and the power of attorney, the defendant no. 3 snatched the documents and ran away with the result that the plaintiff company was left with no document other than the receipts towards earnest money and part sale consideration. The plaintiff lodged a complaint with the local police, however the police also could not help the plaintiff company in retrieving the said documents. The plaintiff under the cover of letter dated July 16, 1991 sent to the defendants, while forwarding a copy of the complaint lodged with the police, called upon the said defendants to fulfill and perform their part of the contract. The defendants were duly informed that the plaintiff company was ready and willing to perform its part of the contract and pay full balance consideration.
3. During the same period i.e. first week of July 1991, plaintiff company also negotiated for the purchase of the remaining share in the said lands, 3/4th of which constitutes the suit CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 4 of 30 property, in as much as the said defendants had only 3/4th share therein, and agreement for sale in respect thereto was also signed and executed on 06.07. 1991 with Mr. Rai Singh. The plaintiff company on 04.07.1991 entered into another agreement of sale with one Mr. Chitru for the purchase of the adjoining piece of land admeasuring 8 bighas and 3 biswas. The plaintiff has placed on record a copy of the said agreement for sale executed on 06.07.1991 with Mr. Rai Singh for the purchase of his 1/4th share in the land in question whose terms were identical to terms of agreement to sell with defendants excepting for the consideration sum, area of land and name of parties.
4. It is further averred that as per the terms of the agreement for sale executed between the parties, the balance amount of consideration to the tune of Rs. 19,28,600/ was payable before the SubRegistrar at the time of the registration of the same. The defendants had agreed to handover and deliver the possession of the suit property to the plaintiff company immediately upon the receipt of the earnest money and part consideration as detailed hereinabove. It was agreed that in the event of failure on the part of the plaintiff company to pay the balance amount of consideration within 30 days, the earnest money would be forfeited and the plaintiff company would be liable to deliver back the possession without being entitled to reimbursement for CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 5 of 30 any development costs. It is further averred by the plaintiff that the defendants then overcame with the greed to extract more money from the plaintiff and have not signed the documents, deed and instruments to transfer the title of the suit property in favour of the plaintiff company. The defendants also started negotiating with other buyer and property dealers for sale of the suit property. The defendants were under contractual obligation to complete all the formalities of execution and registration of sale deed for conveying complete title of the suit property in favour of the plaintiff, however defendants failed to perform their part of the agreement to execute the requisite deeds and documents and to get the same registered in favour of the plaintiff.
5. During the pendency of the present suit, the defendants transferred the land and plaintiff moved an application under Order 1 Rule 10 CPC for impleading Smt. Sunita Sareen as a defendant. The said application was allowed and Smt. Sunita Sareen was impleaded as defendant no.6 in the present suit and she was bound by the principles of lispendence. The defendant no. 6 always had the knowledge regarding the agreement between the plaintiff and defendants no. 1 to 5 and also knew about the litigation pending between the parties but defendant no. 6 malafidely and with ulterior motives in order to defeat the claim of the plaintiff purchased the said land. It is further CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 6 of 30 averred that the entire transaction between defendants no. 1 to 5 and 6 is collusive and have been made only with a view to defeat the claim of the plaintiff. It is prayed that a decree in favour of the plaintiff be passed directing the defendants to specifically perform the agreement for sale dated July 4, 1991 executed between plaintiff and defendant, prayer to award costs of the suit in favour of the plaintiff and against the defendants is also made.
6. Defendants 1 to 3 filed written statement in which they have denied the averments made by the plaintiff and alleged that defendant no.5 was a minor. It is stated by the defendants that no agreement to sell as alleged by the plaintiff has ever been executed between the plaintiff and the defendants and that defendants no. 4 and 5 were admittedly not present at the time of the execution of the alleged agreement to sell and that no earnest money towards the alleged sale consideration has ever been received by the replying defendants. It is further averred that plaintiff had an evil eye on the land of the replying defendants and he wanted to grab the same and that he fabricated the receipts executed by the replying defendants in such a way to show that the alleged agreement to sell had been executed between the plaintiff and the defendants.
7. It is averred that defendants 1 to 3 are the cobhoomidars with one Sh. Rai Singh and defendants no. 4 and 5. It is submitted CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 7 of 30 that the above amount was paid to the replying defendants in consideration for effecting partition and surrendering possession of 1/4th share of Sh. Rai Singh with whom the plaintiff company had decided to execute an agreement to sell and sale deed. It is further averred that plaintiff wanted to complete this deal in respect of which the defendants were invited by the plaintiff company and in respect of which the plaintiff and defendants agreed to enter into an understanding i.e. partition of share of Sh. Rai Singh. Further that agreement for sell with Sh. Chitru for the purchase of his agricultural holding is wrong and that the plaintiff never entered into any agreement with Sh. Chitru. The plaintiff had invited Sh. Mehar Singh son of Sh. Chitru on the same date i.e. 4.07.1991 to negotiate for the purchase of his father's land. Sh. Chitru had also declined the offer of purchase of the plaintiff company.
8. The plaintiff knew it well that he could not enjoy the land and could not put the same to any use profitably as long as it remained joint with the defendants. No document except the receipts were ever signed by the defendants, even the receipts have been partly fabricated by the plaintiff. The report lodged by the plaintiff with the local police is false. It also remained unexplained as to why the incident of 9th July 1991 was reported to the police on 16th July, 1991. It is submitted that after the alleged agreement of 04.07.1991, the plaintiff started talking of CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 8 of 30 agreement to sell which came to the knowledge of defendants when a constable from local police station came to the house of the defendants and informed them of the report lodged by the plaintiff. The defendants immediately tried to contact with plaintiffs but they refused to meet the defendants and conveyed through their agent that defendants will have to pay the price for declining the offer of purchase made by the plaintiff earlier.
9. It is further averred that plaintiff was to pay Rs. 1,80,000/ to the defendants in consideration for their agreeing to allow the plaintiff to obtain possession of specific portion i.e. two biggas and one biswas (1/4th of total joint area) of the joint holding of the replying defendants and Sh. Rai Singh. It is submitted that the defendants had agreed to handover possession of the 2 bighas and one biswa i.e. 1/4th share of Sh. Rai Singh which were proposed to be purchased from Sh. Rai Singh of which possession could not be obtained by the plaintiff without the consent of the replying defendants. It is denied that the defendants had agreed to handover and deliver the possession of their share of agricultural holdings. It is further denied that the plaintiff was given the liberty to level/develop and to raise construction over the suit property. It is further denied that the defendants become greedy or that they were to execute any document or instrument. It is submitted that the plaintiff cannot object to exercise the right of selling their lands to anyone to CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 9 of 30 whom they wish. It is therefore prayed that the suit of the plaintiff being false, frivolous and vexatious be dismissed with heavy cost.
10. Defendants no. 1 to 5 were proceeded against exparte on 29.08.2002.
11. Defendant no.6 also filed written statement in which she has supported the averments made by the defendants 1 to 3 stating therein that defendants 1 to 3 never executed any agreement to sell or other documents pertaining to the subject matter of the suit. It is averred by defendant no.6 that Mrs. Anjali Sehgal and Mr. M.M. Sehgal were introduced to her family by Mr. Pinaki Misra, Advocate, a common friend who had purchased land in village Kapashera at the instance of and through Mrs. Anjali Sehgal and Mr. M.M. Sehgal. Defendant no.6 and her family had purchased lands in the said area at the instance of Mrs. Anjali Sehgal and Mr. M.M. Sehgal who had themselves identified the sellers. Defendant no.6 had duly confirmed the ownership of the respective sellers from the revenue records and at no stage the pendency of the present suit was disclosed to her. Defendant no.6 further averred that the said property was purchased by her in the year 1994 and she had developed the said property which now forms part of Sareen Farms. The plaintiff is residing in the property which is adjoining the suit property and at no stage of development or construction on the CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 10 of 30 said property did the plaintiff raise any objection or inform defendant no.6 regarding the pendency of a suit. It is denied by defendant no.6 that she malafidely and with ulterior motives in order to defeat the claim of the plaintiff had purchased the suit property.
12. By taking additional plea, defendant no.6 has averred that her husband Sh. Sudhir Sareen and her son Mr. Sidharth Sareen purchased approximately 9 Acres of land through persons identified as sellers by Mrs. Anjli Sehgal and her husband in village Kapashera and 22 sale deeds were executed in favour of defendant no.6, her husband and her son and Sareen Estates Pvt. Ltd. by respective sellers during the period April 1994 to November 1994. During the same period i.e. 1994, the husband of the answering defendant also advanced a loan of Rs. 4,80,000/ to Mr. M.M. Sehgal for purchase of plot belonging to one Sh. Jaidev which is also adjoining the land belonging to defendant no.6 and her immediate family. It is further averred by defendant no.6 that the suit property has been in her continued possession and is a part of Sareen Farm on which a farm house, after due sanction from the Municipal Authorities has been built. It is further averred by her that plaintiffs through whom the said lands were purchased, were always in the knowledge of the fact that the said property is in the possession of the answering defendant since 1994 and the suit property had CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 11 of 30 been purchased by her at the instance of the plaintiffs and at no stage she came to know about the pendency of the subject matter of the said suit. Similarly defendants no. 1 to 5 also at no stage brought this fact to the notice of the defendant no.6. She further states that the present suit is a collusive suit motivated for extracting money from the defendant no.6 whereas the plaintiff and the defendants no. 1 to 5 have played a fraud on defendant no.6 and are not entitled to any equitable relief from this Court. It is further averred that since 1994 defendant no.6 was in possession of the said property and as such her impleadment in the year 2001 as a party is even otherwise barred by the law of limitation and even otherwise the plaintiff is not entitled to any relief and that the said suit is liable to be dismissed with exemplary costs.
13. Plaintiff filed replication in which it reiterated the facts of the suit and denied the averment of written statement filed by the defendant no. 6.
14. When the case was in High Court of Delhi, from the pleadings of the parties, following issues were framed on May 21,1996:
1. Whether the agreement relied upon by the plaintiff is true and valid and enforceable?
2. Whether the plaintiff has been ready and willing to perform the contract?
CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 12 of 30
3. Relief.
During the pendency of the suit, the property forming subject matter of the suit was purchased by the defendant no.6 therefore additional issue being issue no.3 was framed on January 12, 2005 in High Court of Delhi, which is as under:
3. Whether the sale of the suit property in favour of defendant no.6 is hit by the rule of lis pendence. If so to what effect?
The issue no. 3 regarding Relief was renumbered as issue no.4.
15. In evidence, plaintiff examined herself as PW1 vide affidavit Ex PW1/A . PW1 relied upon documents marked as Ex. PW1/1 to Ex. PW1/21 viz. (i) Board Resolution dated 29.08.1991 as Ex. PW1/1; (ii) Six receipts as Ex. PW1/2 to PW1/7; (iii) Copy of Aks Shajra, Fard, Khasra Girdawari as Ex. PW1/8, Ex. PW1/9 and Ex. PW1/10 respectively; (iv) copy of complaint dt. 16.07.1991 lodged by the plaintiff with local police as Ex. PW1/11; (v) copy of letter dated 16.07.1991 written by plaintiff to defendants 1 to 5 as Ex. PW1/12; (vi) copy of postal receipts as Ex. PW1/13; (vii) copy of receipt of UPC as Ex. PW1/14;
(viii) certified copy of Order dated 09.10.91 of Hon'ble High Court thereby restraining defendants 1,2 and 3 as Ex. PW1/15;
(ix) copy of letter dated 12.10.1991 from Sh. K.K. Lahiri Adv. To defendants 1,2, and 3 as Ex. PW1/16, (x) Copy of agreement to sell executed by Sh. Rai Singh in favour of the plaintiff dated CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 13 of 30 06.07.1991 as Ex. PW1/17; (xi) Copy of General Power of Attorney executed by Sh. Rai Singh in favour of Ms. Anjali Sehgal dated 06.07.1991 as Ex. PW1/18; (xii) copy of General Power of Attorney executed by Sh. Rai Singh in favour of Smt. Anjali Sehgal dated 06.07.1991 as Ex. PW1/19; (xiii) statement of current account of the plaintiff as Ex. PW1/20; (xiv) Demand deposit receipt issued by Bank of America as Ex. PW1/21. Ld. Counsel for the defendant no.6 objected on the exhibit of documents Ex. PW1/8, PW1/9, PW1/16 and Ex. PW1/18 being photocopies. PW1 was crossexamined.
16. Plaintiff also got examined Sh.Sanjay Lal as PW2 vide affidavit Ex. PW2/A. PW2 was also crossexamined.
17. Plaintiff also got examined Sh. Bhaskar Venkataraman, Operations Manager, Bank of America as PW3 who brought the record which was statement of account of Phoenix Properties Pvt. Ltd. having bank account no. 013/10/19569 pertaining to the period January 1992 and submitted that the record for more than 10 years could not be maintained as per the RBI guidelines. PW3 was also crossexamined.
18. Plaintiff also got examined Sh. Raj Singh, Assistant Manager, State Bank of India, Kapashera Branch and stated that the plaintiff company was maintaining a current bank account having no. 2/2008 in the year 199091 with their bank and proved the copy of the ledger as Ex. PW4/1 and further stated CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 14 of 30 that the said account was closed on 20.03.1997. He further submitted that the original statement of account of Imperial Properties Pvt. Ltd. was not available. PW4 was also cross examined.
19. Defendants no. 1 to 5 were proceeded exparte on 29.08.2002.
20. Defendant no.6 got examined herself as DW1 vide affidavit Ex. DW1/A. DW1 was crossexamined.
21. I have heard arguments addressed by Sh. Deepak Dhingra , Ld. Counsel for plaintiff; Sh. Anil Sharma, Ld. Counsel for defendant no.6; and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence and have also examined the record of the case.
22. Ld. Counsel for plaintiff has relied upon :
(i) Zarina Siddiqui Vs. A. Ramalingam @ R. Amarnathan 2015(1) SCC 705;
(ii) Narinderjit Singh Vs. North Star Estate Promoters Ltd., 2012(5) SCC 712;
(iii) Syscon Consultants P. Ltd. Vs. M/s. Primella Sanitary Prod. P. Ltd. & Ors. (2016) 10 SCC 353;
(iv) Aniglase Yohannan Vs. Ramlatha & Ors., 2005(7) SCC 534;
(v) Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha, 2010(10) SCC 512;
(vi) Alka Bose Vs. Parmatma Devi & Ors., 2009(2) SCC 582;
CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 15 of 30
(vii) Mohd. Abdul Hakeem (D) by LRs Vs. Naiyaz Ahmed & Ors., AIR 2004 AP 299;
(viii) Veeramareddy Nagabhushana Rao Vs. Jyothula Venkateswara Rao, 2010 (41) RCR (Civil) 316 and
(ix) Gurmeet Singh & Ors. Vs. Jaswinder Kaur (since deceased) through LRs & Ors., 2016 (2) 1CC 360.
23. (i) In case of Zarina Siddiqui (Supra), it was inter alia held that it was well settled that remedy for specific performance is an equitable remedy. The Court while granting decree of specific performances exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act, specifically provides that Court's jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles.
(ii) In case of Narinderjit Singh (supra), it had been inter alia held that when later to agreement to sell there is escalation in the price of land, then by itself it is of no ground for denying relief of specific performance. Whereas it is for the seller to plead hardship and prove that it will be inequitable to order specific performance of the agreement.
(iii) In the case of Syscon Consultants Pvt.Ltd. (Supra), it had been inter alia held that even if the undivided share of one of the other heirs of the property cannot be transferred, the remaining share of other heirs certainly can be transferred and the Vendee CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 16 of 30 has a right to apply for the partition of the property and get the share demarcated.
(iv) In the case of Aniglase Yohannan (Supra), it had been inter alia held that the suit for specific performance cannot be dismissed, if an inference from the pleadings can be drawn that plaintiff was ready and willing to perform the contract.
(v) In the case of Man Kaur (Supra), it had been inter alia held that wherein the agreement to sell though does not provide for specific performance but provide for payment of damages in the event of breach by either party then also plaintiff will be entitled to seek specific performance even in the absence of a specific provision for specific performance as it does not bar specific performance.
(vi) In the case of Alka Bose (Supra), it had been inter alia held that even an oral contract of sale of property is valid and when an agreement is not signed by purchaser, then agreement signed by vendor alone and delivered to the purchaser and accepted by the purchaser is a valid contract.
(vii) In the case of Mohd. Abdul Hakeem (Supra), it had been inter alia held by Andhra Pradesh High Court that agreement signed only be vendor and not by Vendee is enforceable as it is consensus ad idem between the parties which has been established for parties of enforcing a contract or agreement to sell.
CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 17 of 30
(viii) In the case of Veeramareddy Nagabhushana Rao (Supra), it had been inter alia held by the Andhra Pradesh High Court that in a suit for specific performance when once the defendant fails to prove the sale agreement to be fabricated, then all other defences such as readiness and willingness of the plaintiff and no requirement to sell the suit property are supplementary and on the basis of which equitable relief of decreeing the suit cannot be refused to plaintiff.
(ix) In the case of Gurmeet Singh (Supra), it had been inter alia held that mere inadequate sale consideration cannot be a ground for declining discretionary relief.
24. My issue wise findings are as under :
Findings on Issue no.1
1. Whether the agreement relied upon by the plaintiff is true and valid and enforceable ?
25. The case of the plaintiff rests upon the premise of the plaintiff company having entered into an agreement with defendants 1 to 5 for the purchase of 3/4th share of the said defendants in agricultural land/property, admeasruing 8 Bighas and 4 Biswas situated in the revenue estate and the village Kapashera, New Delhi. The total consideration was for a sum of Rs. 20,48,600/ out of which an amount of Rs. 1,20,000/ was paid as earnest money and part sale consideration for which the defendants no. 1 to 3 signed and executed receipts in favour of the plaintiff CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 18 of 30 company. A sum of Rs. 40,000/ was paid to the defendant no.1 who appended his thumb impressions on two receipts Ex. PW1/2 and Ex. PW1/3. A sum of Rs. 20,000/ each was paid to defendants no. 2 and 3 who also signed receipts Ex. PW1/4 and Ex. PW1/5 for the amount received by them. Also, it is the case of the plaintiff that the defendants 1 to 3 represented that the agreement will be signed by the defendants no. 4 and 5 later. Both defendants 2 and 3 also signed one receipt each i.e. Ex. PW1/6 and Ex. PW1/7 for a sum of Rs. 20,000/ each; for and on behalf of defendants 4 and 5 respectively.
26. Since inception of this matter, the alleged entered into agreement between the plaintiff and defendants 1 to 5 has not seen the light of the day. It is the case of the plaintiff company that on representations of defendants 1 to 3, it was agreed to the signing of the agreement by defendants 4 and 5 subsequently on 09.07.1991 at 5.30 PM at the farm house of Three M Properties Pvt. Ltd, a sister concern of the plaintiff company. On the aforesaid date, time and place when the plaintiff presented the agreement to sale, already signed by the defendants 1 to 3 and the plaintiff and the power of attorney, then the defendant no.3 snatched the documents and ran away with the result that plaintiff company was left only with the receipts Ex. PW1/2 to Ex. PW1/7.
27. In the fact of the matter, it is own set up case of the plaintiff CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 19 of 30 that defendants 4 and 5 had never signed the alleged agreement to sell dated 04.07.1991 aforesaid. When plaintiff company had parted with a sum of Rs. 1.2 lakhs as earnest money and part sale consideration, then also on 04.07.1991, the defendants 4 and 5 were not present at the place of such agreement. It is not the case of the plaintiff company that either defendant 4 or 5 ever gave any duly enforceable power of attorney in favour of defendant 2 and/or 3 who received the part consideration price of suit property for entering into agreement to sell on their behalf as an agent. Written statement of defendants no. 1 to 3 inter alia embodies in preliminary objection no. 1 that defendant no.5 Sh. Om Prakash is a minor. Though no material has been placed on record to reflect said defendant no.5 to be minor for non compliance of provisions of Order 32 Rule 3 of the Code of Civil Procedure by plaintiff and not obtaining permission to prosecute defendant no.5; but even in the course of the Trial, no evidence had been led by defendants 1 to 3 to substantiate and prove said fact. Even it is not the case of the plaintiff company that defendant no.5 was a major and competent to contract.
28. In the case of Man Kaur (supra) it had been inter alia held that to succeed in a suit for specific performance, the plaintiff has to prove : (a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof; (b) that the defendant committed breach of the contract; and (c) that he was CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 20 of 30 always ready and willing to perform his part of the obligations in terms of the contract.
29. A contract unlike a tort is not unilateral If there be no "meeting of minds" no contract may result. There should therefore be an offer by one party, express or implied, and acceptance of that offer by the other in the same sense in which it was made by the other. But, an agreement does not result from a mere state of mind : intent to accept an offer or even a mental resolve to accept an offer does not give rise to a contract. There must be intent to accept and some external manifestation of that intent by speech, writing or other act, and acceptance must be communicated to the offerer, unless he has waived such intimation. The offerer cannot impose upon the offeree an obligation to accept, nor proclaim that silence of the offeree shall be deemed consent. A contract being the result of an offer made by one party and acceptance of that very offer by the other, acceptance of the offer and intimation of acceptance by some external manifestation which the law regards as sufficient is necessary. Reliance placed upon Bhagwandas Goverdhandas Kedia Vs. Girdharilal Parshottamdas & Co. & Ors., (1966) 1 SCR 656. The principle afore elicited was again followed by the Apex Court in the case of Uttar Pradesh Avas Evam Vikas Parishad & Ors. Vs. Om Prakash Sharma, (2013) 5 SCC 182, whereby, it was interalia held that the unaccepted CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 21 of 30 offer of the plaintiff does not create any right or any obligation on the part of the defendant to execute the lease deed. Mere making of an offer does not form part of the cause of action for even claiming damages for breach of contract.
30. Section 4 of The Contract Act, 1872 embodies interalia that the communication of an acceptance is complete as against the proposer, when it is put in a course of transmission to him so as to be out of the power of the acceptor and; as against the acceptor, when it comes to the knowledge of the proposer.
31. In the case of Visweswardas Gokuldas Vs. B.K. Narayan Singh & Anr., 1969 (1) SCC 547, it had been interalia held that even a plaint in a suit for specific performance should allege a concluded contract and that there being no acceptance made or communicated before the offer was withdrawn, there could not be a concluded contract.
32. Section 7 of The Contract Act provides that in order to convert a proposal into a promise the acceptance must be absolute and unqualified and be in express and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. Section 9 of The Contract Act lays down that in so far as the proposal or acceptance of any promise is made in words, the promise is said to be express and when such proposal or acceptance is made otherwise than in words, the promise is said to be implied.
CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 22 of 30
33. As per own averments of the plaintiff, it was the plaintiff company on one part, whereas the defendants 1 to 5 were on the other part, the alleged parties to the agreement. Amongst them, defendants 4 and 5 and/or guardian of defendant no.5 were not signatory to the agreement allegedly entered into on 04.07.1991 nor defendants 4 and 5 nor guardian of defendant no.5 were present at the time of alleged entering into the agreement of dated 04.07.1991. No meetings of minds was there between the plaintiff on one part and defendants 4 and 5 and or guardian of defendant no.5 on the other part. There was no acceptance of any offer by defendants 4 and 5 and or guardian of defendant 5; so as to construe of there having come into existence, a valid agreement of sale entered into by plaintiff on one part and defendants 1 to 5 on the other part. Unaccepted offer of plaintiff company does not create any right or any obligation on part of defendants 4 and 5 and/or guardian of defendant 5 to execute the sale deed. There was no concluded contract between plaintiff company on one part and defendants 1 to 5 and/or guardian of defendant no.5 or even solely for defendants 4 and 5 and /or guardian of defendant 5 on the other part. In the absence of a concluded contract, the alleged agreement to sale dated 04.07.1991 is not enforceable, cannot be acted upon nor can it be made a promise/foundation by plaintiff company to seek specific performance of the same.
CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 23 of 30
34. It had been the argument of the Ld. Plaintiff counsel that the agreement Ex. PW1/17 of date 06.07.1991 entered into between one Sh. Rai Singh as first party and plaintiff company as second party, contained the terms similar to agreement of date 04.07.1991 allegedly entered between the plaintiff company and defendants 1 to 5. It is own case of the plaintiff company that the consideration sum and the subject property of agreement to sale Ex. PW1/17 was not the same as to what was the consideration sum and subject property of sale, mentioned in the alleged agreement of dated 04.07.1991 between plaintiff on one part and defendants 1 to 5 on the other part. With regard to said consideration and subject property of agreement of date 04.07.1991, only the averments are laid in the plaint for which there is no document, original or copy, carbon or photocopy, on record. All receipts Ex. PW1/3 to Ex. PW1/7, simply embody, the sum mentioned therein as to what was paid as earnest money and part sale consideration towards the agricultural land comprised in kila nos. 18/9, 12 Min (019) East and 18/8, 13, 18 and 26 (MIN) (75) West situated in Village Kapashera, New Delhi - 110037, but nowhere they specify what was the total consideration sum of the agreement or what portion (3/4th or otherwise) of the described property was subject to sale. These receipts Ex. PW1/3 to Ex. PW1/7are typed receipts having the filled up blanks purportedly in ball point ink, with respect to the CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 24 of 30 amounts and the description of the property, date of agreement to sale, date of receipt, particulars of the signatories and witnesses. It is the averment of PW2 that immediately after the snatching of the documents by defendant no.3 on 09.07.1991, he had approached the police authorities but such averment finds no mention in the complaint Ex. PW1/11 dated 16.07.1991 signed by PW2 addressed to Officer Incharge Kapashera Police Post, New Delhi and delivered there on 17.07.1991. Even in Ex. PW1/11, there is mention of alleged snatching of only alleged agreement to sale dated 04.07.1991 by defendant no. 3 on 09.07.1991. Ex. PW1/11 finds mention of only execution of receipts and agreement to sell of date 04.07.1991 by defendants 1 to 3 and nowhere it finds mentions of defendants 1 to 3 having executed any power of attorney or Will or any other document with respect to suit property. In the evidence, there is improvement in the case of plaintiff when it is alleged when defendants 1 to 3 executed other documents viz. Power of attorney etc. besides the receipts and agreement to sell on 04.07.1991. It is beyond preponderance of probabilities for plaintiff company for not reporting the commission of offence of theft by defendant no.3, by act of snatching of agreement to sell and running away on 09.07.1991, immediately to concerned police authorities and the explanation offered for non reporting of matter forthwith to police impells to raise eyebrows on the CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 25 of 30 story put forth by plaintiff company. In the case of Thulia Kali v. State of Tamil Nadu, A.I.R 1973 SC 501; it had been held by the Apex Court that on account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.
35. In accordance thereof, there is every probability of introduction of a coloured version, concoction of story putforth by the plaintiff by the exercise of legally fertile brains. Though the defendants 1 to 3 have not been able to prove by evidence, their version that sum of Rs. 1,20,000/ was received by them as part of sale consideration of Rs. 3 lakhs payable by plaintiffs to defendants 1 to 3 for their having agreed with the plaintiff company to partition their share (share of defendants 1 to 5) with Sh. Rai Singh. Fact of the matter remains that even the agreement to sale Ex. PW1/17 dated 06.07.1991 finds no mention of any agreement to sell of date 04.07.1991 having entered into between the plaintiff company and defendants 1 to 5 for 3/4th share of the land in question , though Ex. PW1/17 is purportedly for the remaining 1/4th share of the land in question.
36. Plaint filed and evidence led by plaintiff in totality rest on the CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 26 of 30 foundation of plaintiff company having entered into agreement with defendants 1 to 5 on 04.07.1991 with respect to the suit property. No resolution of the plaintiff, a Private Limited Company has seen the light of the day empowering any person / Director of plaintiff company to enter into agreement to sell with defendants 1 to 5. Even otherwise, material on record including pleadings and evidence of plaintiff is shorn of material fact as to which person, for and on behalf of plaintiff company, negotiated and entered into contract with defendants 1 to 5 on 04.07.1991. All through it has been maintained that the plaintiff company had entered into agreement to sell on 04.07.1991 with defendants 1 to 5. Plaintiff company is a juristic person and is to function through authorised persons in consonance with the Memorandum and Articles of Associates of the plaintiff Company. Order VI Rule 2 of the Code of Civil Procedure, 1908 embodies that every pleading is to contain a statement in a concise form of the material facts on which party pleading relies for his claim or defence. It was incumbent on the plaintiff company to state the material facts as to which authorised person on behalf of the plaintiff company negotiated and entered into agreement for sale with defendants 1 to 5. For want of said material facts in the plaint and non proving the same in backdrop of all said here in before, there is no option but to infer that no concluded contract was ever entered into CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 27 of 30 between plaintiff company and defendants 1 to 5 to make it enforceable. In view of the foregoings, issue no.1 is decided against the plaintiff and in favour of the defendants.
Findings on Issues no. 2
2. Whether the plaintiff has been ready and willing to perform the contract?
37. In view of findings on issue no.1, it does not matter whether or not plaintiff has been ready and willing to perform its part since no concluded contract took place between the plaintiff company and defendants 1 to 5 to make it enforceable. Even otherwise, the set up case of the plaintiff is that there was one month period for plaintiff company to make the payment to defendants 1 to 5. Evidence on record is shorn of material fact to prove that plaintiff was ever in possession or in a position to make necessary arrangements for making of remaining payment of Rs. 19,28,600/ to defendants 1 to 5 within one month of 04.07.1991. Accordingly, Issue no.2 is decided against the plaintiff and in favour of defendants.
Findings on Issue No.3
3. Whether the sale of the suit property in favour of defendant no.6 is hit by the rule of lis pendence. If so to what effect?
38. In view of findings of Issue no.1 above, the sale of suit CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 28 of 30 property in favour of defendant no.6 is not hit by rule of lis pendence, since no concluded enforceable contract ever took place inter se plaintiff on one part and defendants 1 to 5 on the other part.
Relief
39. Admittedly, the defendants 1,2 and 3 had received sum of Rs. 40,000/ each against receipts Ex. PW1/2 to Ex. PW1/7 on 04.07.1991 from plaintiff company. No evidence has been led by defendants 1,2 and 3 to show as to how the aforesaid amounts totalling Rs. 1,20,000/ can be forfeited because in the absence of loss being caused the said sums paid cannot be forfeited as per the ratio of the Constitution Bench judgment of Supreme Court in the case of Fateh Chand Vs. Bal Kishan Das, AIR 1963 SC 1405. Therefore, the plaintiff company would be entitled to a money decree for a sum of Rs. 1,20,000/ with pendentelite and future interest @ 12% per annum simple from defendants 1 to 3, jointly and severally.
40. In view of the aforesaid discussion, the suit of the plaintiff for specific performance stands dismissed. A money decree is passed in favour of plaintiff company and against the defendants 1,2 and 3 jointly and severally for a sum of Rs. 1,20,000/ with pendentelite and future interest @ 12% per CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 29 of 30 annum simple. Parties are left to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (GURVINDER PAL SINGH) Court on 22.07.2017. Additional District Judge 01(SE), Saket Courts, New Delhi. (sm) CS - 9049/16 Rising Properties Pvt. Ltd. Vs. Sh. Mir Singh & Ors. page 30 of 30