Delhi District Court
Smt. Dayawati vs Smt. Phula on 16 August, 2022
IN THE COURT OF DISTRICT JUDGE,
COMMERCIAL COURT (02),
SOUTH DISTRICT, SAKET COURT, NEW DELHI
CS (COMM.) 37/2020
Smt. Dayawati ........plaintiff
w/ Sh .Trilok Chand
r/o House No. A-24, Gali no. 1,
Khanpur Extension, M. B. Road,
New Delhi -110062
versus
Smt. Phula .......defendant
w/o late Sh. Peeru Lal
r/o House No. B-II-146, Madangir,
Dr. Ambedkar Nagar, New Delhi-110062
Date of Institution : 18.11.2019
Date of conclusion of arguments : 16.08.2022
Date of Judgment :16.08.2022
JUDGEMENT
1. This is a suit for specific performance of agreement and permanent injunction. Case of the plaintiff is that in the month of May 2019, plaintiff was in need of purchasing a shop for expansion of her business and defendant was the owner of shop bearing no. 219, measuring 6 X 8 sq. ft at Siddharth Market, Sabzi Mandi, Khanpur, New Delhi-110062 (hereinafter referred to as suit property). Defendant approached the plaintiff to sell the Daywati vs Phula Page no 1 of 18 CS No. 37/2020 defendant's shop and after taking into consideration the need for the shop i.e. suit property, plaintiff agreed to purchase the same from the defendant and after due negotiations, the final money consideration of the shop between plaintiff and defendant was settled at Rs. 28,00,000/-. An amount of Rs. 8,00,000/- was given to the defendant as earnest money by the plaintiff and a formal advance receipt cum agreement to sell and purchase dated 29.05.2019 was executed between the plaintiff and the defendant with regard to details of the sale transaction of the suit property.
2. It is further pleaded by the plaintiff that as per the conditions in the agreement dated 29.05.2019, it was agreed between the plaintiff and the defendant that plaintiff would pay balance amount of Rs. 20,00,000/- to the defendant on or before 07.09.2019 and at that time , defendant would transfer all the title documents and handover the vacant and peaceful possession of the suit property. It is stated that plaintiff was willing to pay the defendant total balance amount of Rs. 20,00,000/- to be paid to the defendant for getting the title documents transferred in the plaintiff's name and to get the vacant and peaceful possession from the defendant but despite efforts, defendant had not received the same from the plaintiff.
3. It is pleaded that Legal notice dated 26.08.2019 was sent on 28.08.2019 through the counsel for plaintiff thereby calling upon the defendant to receive the balance amount of Rs. 20,00,000/- and after receiving the amount also to perform defendant's part of agreement by handing over the vacant and Daywati vs Phula Page no 2 of 18 CS No. 37/2020 peaceful possession of suit property and to execute title documents in favour of plaintiff to the defendant. It is further pleaded that defendant did not turn up to perform her part of the agreement despite being served with legal notice. It is stated that on 05.09.2019 legal notice dated 26.08.2019 was again sent through courier. Thereafter, plaintiff personally approached the defendant and requested her to act as per agreement dated 29.05.2019 but defendant avoided the plaintiff on one pretext or the other. It is stated that on 11.09.2019 defendant issued reply to the legal notice and stated that her part of agreement got transferred back the amount of Rs. 8,00,000/- to the account of plaintiff.
4. Since, defendant failed to act as per the agreement executed between the plaintiff and the defendant till the last date of execution of sale deed dated 07.09.2019 and also failed to perform her part of taking balance payment and failed to execute the sale deed in favour of plaintiff, therefore, the present suit was preferred by the plaintiff. Plaintiff has also prayed to get the double amount of the earnest money of Rs. 8,00,000/- (which comes to Rs. 16,00,000/-) alongwith interest.
5. As this suit came within the ambit of Commercial Court Act 2015 therefore, this case was transferred to this Court on 23.01.2020. On 10.09.2020, defendant was directed not to transfer any right, title or interest in the suit property i.e. shop no. 219, Siddharth Market, Sabzi Mandi , Khanpur, New Delhi
-110062 to any third person till further orders.
Daywati vs Phula Page no 3 of 18 CS No. 37/2020
6. The suit is contested by the defendant by filing written statement. In the preliminary objections it is stated that at any point of time, plaintiff had no intention or willingness to adhere the agreement and to pay the remaining amount to purchase the shop in question and had always requested from the defendant to extend the date of execution as the plaintiff had no arrangement of the balance payment and the plaintiff requested to cancel the agreement dated 25.05.2019 . It is stated that plaintiff through her husband issued two cheques of Rs. 4,00,000/- each on 30.05.2019 for making the part payment i.e. earnest money. It is stated that plaintiff was well aware that she could issue the demand draft or give the cheque in the name of the defendant on or before 07.09.2019 for the balance payment . It is stated that plaintiff had no willingness to purchase the shop as plaintiff had no money and she realized that market value of the shop had decreased due to slump in the real estate sector.
7. It is stated that defendant regularly demanded her balance amount from the plaintiff but plaintiff on the pretext that she could not arrange the balance amount and always asked to extend the date and finally, plaintiff and defendant mutually decided to cancel the agreement dated 29.05.2019 and on the request of plaintiff, defendant returned the earnest money of Rs. 8,00,000/-. It is stated that plaintiff did not file any document which shows that as on 07.09.2019 , plaintiff had the sufficient money to pay the balance amount to the defendant and to get the sale deed registered in her favour. It is stated that plaintiff did not Daywati vs Phula Page no 4 of 18 CS No. 37/2020 file the booking appointment from the Registrar office to get the sale deed registered . It is stated that plaintiff had sent the false and frivolous legal notices dated 26.08.2019 and 05.09.2019. It is stated that agreement in question was not executable as same was modified or tampered by the plaintiff and the sale consideration was tampered by the plaintiff in a deliberate manner. It is stated that copy of agreement was never provided by the plaintiff to the defendant and defendant came to know about tampering in the agreement only when she received the documents alongwith plaint on 10.09.2020.
8. On merits, it is stated that the final amount to sale the shop was settled at Rs. 27,00,000/- and not Rs. 28,00,000/- . Defendant admitted that Rs. 8,00,000/- was received as an earnest money. It is stated that plaintiff made forgery or tampering on the agreement dated 29.05.2019 by putting Rs. 28,00,000/- in place of Rs. 27,00,000/-. Defendant admitted the amount of Rs. 20,00,000/- as the remaining amount was only Rs. 19,00,000/- and not Rs. 20,00,000/-. It is stated that plaintiff was not willing to pay the balance amount and avoided in paying the balance amount. It is stated that defendant admitted the legal notice dated 26.08.2019 but plaintiff was not willing to pay the balance amount. Defendant stated that plaintiff herself failed to adhere the terms and conditions of the agreement and she is not entitled for the relief. Defendant has prayed for dismissal of the suit.
Daywati vs Phula Page no 5 of 18
CS No. 37/2020
9. On 12.10.2021, the matter was referred for
mediation at Mediation Center to explore the possibility of settlement but parties failed to arrive at the settlement as per the report received from the Mediation Center. Case management hearing was held.
10. From the pleadings of the parties, following issues arose for consideration:
1. Whether plaintiff tampered with the agreement to sell dated 29.05.2019 by changing Rs.28,00,000/- in place of Rs.27,00,000/-? If so, to what effect? OPD
2. Whether plaintiff was ready and willing to perform her part of the agreement? OPP
3. Whether agreement to sell dated 29.05.2019 was required to be registered and stamped? OPP
4. Whether plaintiff is entitled to the relief of specific performance of the agreement to sell dated 29.05.2019? OPP
5. Relief
11. To prove its case plaintiff examined herself as PW-1 and examined Sh. Trilok Chand as PW-2. Defendant has not adduced any DE.
12. This Court has heard the submissions advanced by Sh. Shivam Verma counsel for plaintiff and Sh. Yogesh Kumar Sharma counsel for defendant and has perused the material on record. Issue-wise findings of this Court are as under:-
Daywati vs Phula Page no 6 of 18
CS No. 37/2020
Issue no. 1
13. Whether plaintiff tampered with the agreement to sell dated 29.05.2019 by changing Rs.28,00,000/- in place of Rs.27,00,000/-? If so, to what effect? OPD. The onus to prove the present issue was on defendant and defendant has failed to discharge her onus. Defendant has not appeared in the witness box and has not lead any defence evidence. In the result, this Court finds that defendant has failed to discharge her onus , therefore, the issue no. 1 is decided in favour of plaintiff and against the defendant.
Issue no. 2
14. Whether plaintiff was ready and willing to perform her part of the agreement? OPP Ld. Counsel for plaintiff submitted that plaintiff was ready and willing to perform her part of agreement when the defendant was not receiving the balance consideration amount even prior to the final date of the agreement exhibited as Ex. PW1/1 i.e. 07.09.2019 then the plaintiff having left with no other option sent legal notice dated 26.08.2019 Ex. PW-1/4 and 05.09.2019 Ex. PW1/7 thereby calling upon the defendant to perform her part of the agreement by taking the balance payment but even then, she neither during the entire period of time of the agreement Ex. PW1/1 turned up to receive the balance amount neither showed her interest in transferring the title deeds of the property in question in favour of the plaintiff and even not replied to the notices sent by the plaintiff which were duly received by the defendant.
Daywati vs Phula Page no 7 of 18 CS No. 37/2020
15. It is further submitted that to prove her case, plaintiff had got herself and her husband examined and cross- examined as PW-1 and PW-2 respectively and during the entire cross-examination by the counsel for the defendant, not even a single question was put to the plaintiff or her husband who is a Government servant questioning the plaintiff's financial capacity or readiness to pay the remaining amount of the agreement on or prior to 07.09.2019 and the reason for this was that the defendant was aware of the fact that the plaintiff was willing and ready to perform her part of agreement and it was the defendant who had deliberately failed to perform her part of agreement despite repeated reminders of the plaintiff. It is argued that the defendant's failure to challenge or putting to question the financial capacity and readiness of the plaintiff in performance of the agreement Ex. PW1/1 itself shows the admission on part of the defendant thereby proving the case of the plaintiff.
16. It is submitted that the plaintiff had also filed document Ex. PW1/10 regarding her presence at the office of sub-registrar concerned for execution of title documents of the suit property in her favour, which shows the willingness and readiness of the plaintiff. It is submitted that the plaintiff since the beginning i.e. in the notices sent and in the Plaint had stated that she is ready and willing to perform her part of agreement Ex. PW1/1 and is also willing to do so now also and as such has filed the present suit, so there arises no question regarding the readiness and willingness of the plaintiff in performance of her Daywati vs Phula Page no 8 of 18 CS No. 37/2020 part of agreement.
17. It is argued that the falsehood of the claims of the defendant can also be seen in the light that defendant could not produce even a single evidence that as per the claim of the defendant that the plaintiff had approached her regarding non availability of funds to perform her part of agreement and had taken two different stands in her written statement and the reply dated 11.09.2019 Ex. PW1/9.
18. On the other hand, Ld. Counsel for defendant submitted that in the present case, plaintiff has failed to prove that she had having sufficient money to pay the defendant till 07.09.2019 (till the time of the execution of the agreement). It is submitted that no document on record shows that the plaintiff had enough money to pay the defendant at that point of time.
19. Ld. Counsel for defendant argued that in the present suit, no document showing the capability of the plaintiff for paying the remaining amount mentioned in the agreement was filed by the plaintiff and failed to prove that she was having requisites funds and was ever willing to pay the remaining amount of the agreement to the defendant. It is submitted that the plaintiff was not willing to perform her part after paying the earnest money and she could not prove that she was ever willing to perform her part to get the sale deed registered in her favour. It is submitted that no document on record shows that she was ever willing to perform her part. Ld. Counsel argued that the legal notice dated 26.08.2019 and 05.09.2019 sent by the plaintiff with Daywati vs Phula Page no 9 of 18 CS No. 37/2020 the false averment to play the fraud with the defendant just to cover-up her own fault & lapses. The legal notice dated 05.09.2019 was received by the defendant after expiration of the agreement period although the said legal notice was replied by the defendant i.e. Ex. PW-1/9. It is submitted that the earnest money was given by the cheques and thus, the plaintiff could sent the demand draft or even the cheque in the name of the defendant showing her readiness and willingness to perform her part. It is submitted that the plaintiff has not filed any document to show that she made the numerous calls to the defendant or her son to pay the remaining amount.
20. It is further submitted that the plaintiff knows the defendant since long and if the defendant was not doing her part as per agreement, the plaintiff could send the letter or whatsapp message to show her willingness, but because the husband of the plaintiff is Sub Inspector in Delhi Police, the plaintiff sent legal notices mentioning false averments therein to the defendant just to play fraud with the defendant. It is submitted that the defendant met the plaintiff after receiving the legal notice and the plaintiff told the defendant not to bother about the legal notice as it is sent just to buy more time to arrange funds and it was agreed by the plaintiff and defendant to get the agreement i.e. Ex. PW- 1/1 be cancelled and earnest money be refunded. It is averred that the earnest money was refunded by the defendant on 11.09.2019 in the account of the husband of the plaintiff. It is submitted that the PW-2 who is the husband of the plaintiff never said that the Daywati vs Phula Page no 10 of 18 CS No. 37/2020 shop is lying vacant due to the health condition of her daughter- in-law and the plaintiff could not prove that the health condition of her daughter-in-law was not well.
21. It is submitted that the plaintiff has not produced any documentary evidence in this regard and there was no lockdown for continuing period of' two years and all the shops were opened in the market but the plaintiff's shop was still lying locked tor the last two years because she did not want to run business from the shop. It is submitted that the plaintiff never told to the defendant to take the amount of remaining part of the agreement and never told her when she is going to get the sale deed registered to the registrar office. It is argued that the plaintiff never took the online appointment to get the sale deed registered in her favour and the plaintiff did not purchase the stamp duty to get the sale deed registered. It is submitted that the Ex. PW-1/10 is not a document for appointment from the Sub Registrar office same is not proved by the plaintiff and Ex.PW-1/10 has no relevancy in the present case. It is submitted that it is well settled law that in a suit for specific performance, a proposed purchaser must necessarily prove his financial capacity, and which is a sine qua non as per Section 16(c) of the Specific Relief Act, 1963. Section 16(c) of the Specific Relief Act requires that a proposed purchaser must always be and continue to be ready and willing to perform his part of the contract. Readiness has been interpreted to mean financial capacity. Financial capacity must exist to pay the balance sale consideration right from the time of entering into of Daywati vs Phula Page no 11 of 18 CS No. 37/2020 the agreement to sell till the disposal of the suit. The plaintiff has miserably failed to prove this vital ingredients in her present case.
22. Readiness and willingness are two different terms. Readiness means having sufficient means to pay the contractual amount and willingness means desire to perform one's own part. In a recent case reported as U.N. Krishnamurthy (since deceased) Thr. Lrs. Vs A. M. Krishnamurthy MANU/SC/0875/2022 Hon'ble Supreme Court in para 46 held that "it is settled law that for relief of specific performance, the plaintiff has to prove that alla long and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness , would not suffice"
23. In the light of aforementioned legal position, this Court wil consider the evidence adduced by the plaintiff witness. During her cross-examination, PW-1 deposed that she was having numbers of both defendants and her son. PW-1 admitted that she had not sent any letter (except legal notice) or whatsapp message to the defendant or his son during the period from 29.05.2019 till 07.09.2019 . On being asked PW-1 stated that she made numerous calls to the defendant and her son during this period) PW-1 admitted that she had not sent any cheque or demand draft in the name of defendant prior to 07.09.2019 for remaining amount. PW-1 stated that she had not sent any cheque Daywati vs Phula Page no 12 of 18 CS No. 37/2020 or demand draft in the name of defendant prior to 07.09.2019 as despite my numerous reminders, defendant had not approached me with her bank details and had not approached me to transfer the title documents. PW-1 deposed that she had not booked any appointment from Registrar office of the Revenue Department to get the title deeds registered of the suit property in her favour. PW-1 admitted that in the legal notices dated 26.08.2019 and 05.09.2019, there is no specific mention of about her appointment with the Registrar office on 06.09.2019.
24. In her deposition, PW-1 stated that she had not purchased stamp duty. She stated that she had asked deed writers to arrange for necessary stamp paper for the purpose of registration of title deed. PW-1 stated that it is a matter of record that Ex. PW1/10 is the receipt for inspection and not the appointment for getting the sale deed registered. PW-1 did not remember the name of the deed writer whom she had approached to get the sale deed registered in her favour.
25. PW-1 admitted that the earnest money of Rs. 8,00,000/- was returned in her husband's account on 11.09.2019. She stated that it was after expiry of the last date of agreement Ex. PW1/1. PW-1 denied the suggestion that the earnest money was returned after she and her husband had told the defendant that they were not in possession to pay the remaining amount to the defendant and hence, did not want to purchase the suit property. PW-1 admitted that she had not replied to the reply of legal notice Ex. PW1/9 sent by the defendant through her Daywati vs Phula Page no 13 of 18 CS No. 37/2020 counsel.
26. Sh. Trilok Chand PW-2 deposed that he only came know the defendant after execution of the agreement already Ex. PW1/1. PW-2 deposed that it is a matter of record that this receipt Ex. PW1/10 pertains to the inspection. PW-2 denied the suggestion that he or his wife got the appointment from the sub- registrar office for getting the sale deed registered in favour of his wife at any point of time. PW-2 admitted that he had not sent any whatsapp message or written any letter to the defendant with regard to giving balance payment as per Ex. PW1/1 and he had never approached personally to the defendant or her son for making payment.
27. PW-2 admitted that he had received back the earnest money of Rs. 8,00,000/- from the defendant's son on 11.09.2019. PW-2 admitted that his wife's shop is lying locked for about two years . He stated that it is still lying locked due to prevailing pandemic situation. PW-2 deposed that his wife had not purchased stamp duty for execution of sale deed of suit property in her favour. PW-2 stated that they would have only purchased the stamp duty for execution of sale deed of suit property in his wife's favour after defendant would have approached them at the Registrar office.
28. On appreciation of evidence as a whole, this Court finds that plaintiff has not been able to establish that she was having sufficient money to pay to the defendant till 07.09.2019. Plaintiff has not placed on record such document. Thus, no Daywati vs Phula Page no 14 of 18 CS No. 37/2020 document has been placed on record showing her capability for paying the remaining amount. This Court is in agreement with the submissions advanced by Ld. Counsel for the defendant that defendant was never willing to perform her part of contract to get the sale deed registered in her favour. Since earnest money was purported to have been given by way of cheques, therefore, there is no reason why the plaintiff could not sent the demand draft or cheque in the name of defendant showing her readiness and willingness to perform her part of contract. It is also true that since parties knew each other since long so plaintiff could have written any letter or show any message to show her willingness. There is nothing on record to show that the plaintiff took any appointment or online appointment and had not produced any requisite stamp duty to get the sale deed registered in her favour. Admittedly, Ex. PW1/10 is not a document seeking appointment from the sub-registrar office.
29. Having regard to the aforenoted legal position , the proposed purchaser must always and continue to be ready and willing to perform her part of contract. Readiness implies financial capacity which must exist to pay the balance sale consideration right from the time of entering into the sale till disposal of the suit. This Court finds that plaintiff has failed to prove the necessary ingredients in the present case. In the result, this Court finds that plaintiff has failed to discharge her onus and therefore, this issue no. 2 is decided in favour of defendant and against plaintiff.
Daywati vs Phula Page no 15 of 18
CS No. 37/2020
Issue no. 3
30. Whether agreement to sell dated 29.05.2019 was required to be registered and stamped? OPP. Ld. Counsel for plaintiff argued that plaintiff entered agreement to sale for purchase of an immoveable property and paid Rs.8,00,000/- to the defendant as an earnest money but since the possession of the suit property was not handed over by the defendant to the plaintiff, and the registration of agreement to sale was not compulsory/required as there was no delivery of possession at the time of entering into the agreement in question.
31. Ld. Counsel for defendant submitted that the plaintiff entered agreement to sale for purchase of an immoveable property and paid Rs.8,00,000/- to the defendant as an earnest money and the registration of agreement to sale was compulsory to be registered in terms of Section 17 of the Indian Registration Act, 1908. In absence of compulsory registration, the Agreement to Sale cannot be looked into evidence.
32. An agreement for selling is an agreement to sell a property in the future. This agreement defines the terms and conditions, under which the property should be transferred. Section 54, of the Transfer of Property Act, 1882, regulates the sales and transfer of house property, it states that an agreement for sale is a contract for the selling of immovable property, this contract defines the terms settled between the parties. Section 54 further states that it does not in itself create any interest or charge on such property.
Daywati vs Phula Page no 16 of 18 CS No. 37/2020
33. An agreement to sell contains a promise to transfer a property in the future, on fulfillment of certain terms and conditions. So this agreement itself does not create any rights or interest within the property for the proposed buyer. Thus, an agreement to sell is different from a sale deed because it does not create ownership in the property, for the proposed buyer. Ownership of an immovable property can only be transferred through a duly stamped and registered bona- fide sale deed. Also, it is not mandatory to register an agreement to sell which makes it an executory contract on the other hand it is mandatory to register a sale deed and make it an executed contract.
34. Thus, this Court is of the considered view that agreement to sell in question is not required to be registered. Accordingly, this issue no. 3 is decided in favour of plaintiff and against the defendant.
Issue no. 4
35. Whether plaintiff is entitled to the relief of specific performance of the agreement to sell dated 29.05.2019? OPP. Ld. Counsel for plaintiff submitted that plaintiff is entitled for the relief of specific performance of the agreement to sale Ex. PW1/1. It is submitted that the defendant has miserably failed to prove her point against the case of the plaintiff by not putting herself for examination as witness or any other witness in her defense which itself shows her guilt in non-performance of her part of duty.
Daywati vs Phula Page no 17 of 18 CS No. 37/2020
36. On the other hand, ld. Counsel for defendant The plaintiff is not entitled for the relief of specific performance of the agreement to sale as same is not registered document in terms of section 17 of the Indian Registration Act, 1908. It is submitted that the plaintiff herself is at default and has miserably failed her willingness and readiness to perform her part of duty. It is averred that the plaintiff was not having requisites funds to execute the sale deed in respect of the shop in question.
37. In view of the findings on the issue no. 2, plaintiff is not entitled to the relief of specific performance of the agreement to sell dated 29.05.2019. Accordingly, this issue no. 4 is decided in favour of defendant and against plaintiff. Relief.
38. In view of above noted findings on the issues, this Court finds that plaintiff is not entitled to the relief claimed. In the result, this Suit filed by the plaintiff is dismissed. No orders as to costs. Decree sheet be drawn up accordingly. File be consigned to record room.
(Dictated and announced in the open Court on 16.08.2022) (VINAY KUMAR KHANNA) District Judge (Commercial Court-02) South Disttt., Saket, New Delhi Daywati vs Phula Page no 18 of 18 CS No. 37/2020