Delhi District Court
Sh.Rajesh Kumar Ratta vs Sh.S.K.Bhatia on 29 February, 2012
Suit no.48/2004
IN THE COURT OF SH.AJAY KUMAR KUHAR
ADJ-1 CENTRAL, TIS HAZARI COURTS, DELHI
Suit No. 48/2004
IN THE MATTER :
Sh.Rajesh Kumar Ratta
son of Sh.Prithvi Raj Ratta,
r/o A-54, Kirti Nagar,
New Delhi.
... Plaintiff.
Vs.
1.Sh.S.K.Bhatia
son of Sh.Narain Dass
r/o A-44, Moti Nagar, New Delhi
2.Sh.Darshan Singh
son of Sh.Jaimal Singh
r/o K.58, Krishna Park,
New Delhi-18
... Defendants.
DATE OF FILING : 29.03.04
DATE OF ARGUMENTS : 15.02.12
DATE OF JUDGMENT : 29.02.12
JUDGMENT
1 The plaintiff has sought a decree for a direction to the defendant Sh.S.K.Bhatia for the Specific Performance Page 1 Suit no.48/2004 for the Agreement to sell dt.03.01.04, whereby he agreed to sell the residential property bearing no.4/45, Moti Nagar, New Delhi to the plaintiff for a total sale consideration of Rs.5,00,000/- and earnest money of Rs. 3,00,000/- was paid on 03.01.04 itself at the time of the execution of the agreement to sell. The balance amount of the sale consideration was to be paid at the time of execution of the document of title in favour of the plaintiff by the defendant in respect of the property in question. As agreed, 31.3.04 was fixed the date for the execution of the document of title in favour of the plaintiff and the payment of the balance amount. It was also agreed that the defendant Sh.S.K.Bhatia would show clear marketable title in his favour at the time of execution of documents of title in favour of the plaintiff. It is the case of the plaintiff that after 03.01.04 the plaintiff had requested the defendant to come forward Page 2 Suit no.48/2004 and perform his part of the contract and receive the balance amount of Rs.2,00,000/- after satisfying the plaintiff about his clear marketable title in the property in question. The plaintiff has averred that he has always been ready and willing to perform his part of the contract, but the defendant did not come forward to perform his part of the contract.
2 It may be pertinent to mention here that as per the agreement to sell the plaintiff had a right to get the sale deed executed in terms of the agreement to sell through court of law, in case the defendant failed to perform his part of the contract or in the alternative the plaintiff had the option to demand double the amount to the earnest money from the defendant. It was also stipulated that in case the plaintiff failed to get the sale deed executed within the period referred to in the agreement the Page 3 Suit no.48/2004 earnest money of Rs.3,00,000/- paid by the plaintiff shall stands forfeited.
3 The plaintiff has further averred that he had made repeated requests to the defendant for the performance of the contract but the defendant has been postponing the matter on one pretext or the other which gave the plaintiff a reason to believe that the defendant Sh.S.K.Bhatia intended to retract from the contract and the plaintiff also learnt that he was trying to sell the suit property. Therefore, the plaintiff sent a legal notice on 11.3.04 asking the defendant Sh.S.K.Bhatia to execute the documents of title in respect of the suit property in favour of the plaintiff within 15 days of the receipt of the notice. The notice sent by UPC and the registered A.D.was received back with the remarks of Postal Authority that the addressee is not available at the given Page 4 Suit no.48/2004 address.
4 In the background of these facts the present suit is filed for the Specific Performance for direction to the defendant Sh.S.K.Bhatia to execute the document of title for sale of property no.4/45 Moti Nagar, New Delhi in favour of the plaintiff.
5 The defendant Sh.S.K.Bhatia filed the written statement. The averments in the plaint were controverted and it was averred that the plaintiff was a friendly relations with him. It was further averred that on 18.2.04 and 19.02.04 the plaintiff and his colleagues were following the defendant and on 20.2.04 at about 9.15 a.m.when the defendant Sh.S.K.Bhatia was going to his office the plaintiff and his colleagues including Lakhbir Singh and other came in a Maruti Van bearing Page 5 Suit no.48/2004 no.DDB-3116, colour white and forced the defendant into their Maruti Van and took him to the house of the plaintiff, where at point of knife plaintiff and his colleagues snatched all the papers of the defendant pertaining to the property in question and plaintiff also took his signatures on some blank papers including the one which was folded from the bottom.
6 Since the neighbour of the defendant had seen the abduction of the defendant by the plaintiff and his colleagues, the wife of the defendant was informed and a PCR call on 20.02.04 was made by the wife of the defendant which was noted vide DD No.6A at PS Moti Nagar. The defendant was released with the help of the police which was called by his wife but the plaintiff did not hand over the signed papers of the defendant on the pretext that he had torn them all. It is further the case of Page 6 Suit no.48/2004 defendant that the matter was thereafter compromised in the police station but the plaintiff is now using those blank papers which were got signed from him to grab the property.
7 On merit, it was stated by the defendant that he never agreed to sell the property no.4/45, Moti Nagar, New Delhi to the plaintiff or that he executed the agreement to sell dt.03.01.04 for a sum of Rs.5,00,000/-. The defendant also denied having received for a sum of Rs.3,00,000/- from the plaintiff. The other averments in the plaint have also been denied specifically by the defendant.
8 After the suit was filed an application was moved by the plaintiff under Sec.52 of the Transfer of Property Act read with Order 1 Rule 10 CPC for impleading one Page 7 Suit no.48/2004 Darshan Singh as the defendant in the suit. This application was allowed vide order dt.04.04.05 by my Ld.Predecessor and Darshan Singh was impleaded as defendant no.2 on the ground that the plaintiff had alleged that the defendant Sh.S.K.Bhatia, during the pendency of the suit, had sold the suit property to Darshan Singh on 21.6.04. Pursuant to this impleadment of Darshan Singh as defendant no.2, the amended plaint was filed with an additional paragraph 14(a) containing the averments that the defendant no.1 Sh.S.K.Bhatia has sold the property in question to defendant no.2 (Darshan Singh) on 21.6.04 vide agreement to sell for a consideration of Rs.80,000/- in violation of the principal of lispendence. Accordingly an additional prayer was also made for declaring the said agreement to sell executed on 21.6.04 as null and void. In response to this, written statement was filed by defendant no.2 Darshan Singh, Page 8 Suit no.48/2004 who apart from taking preliminary objections regarding to his impleadment, has averred that he is a bonafide purchaser of the suit property for consideration and he is in possession of the same. It was further averred by defendant no.2 that there was no privity of contract between the plaintiff and him and further defendant no.2 is not liable to perform any act under the contract of which the specific performance has been sought. 9 The replication was filed to the WS of defendant no. 1 as well as defendant no.2.
10 On the pleadings of parties my Ld.Predecessor has framed following issues on 23.3.06.
1. Whether the defendant agreed to sell the suit property to the plaintiff vide agreement to sell dt.03.01.04?
Page 9 Suit no.48/2004
2. Whether the plaintiff has filed the suit on the basis of forged documents relating to property no.4/45, Moti Nagar, New Delhi, so as to grab the property?
3. Whether the plaintiff was and is willing and ready to perform his part of the contract?
4. Relief.
11 Thereafter on 21.11.09 additional issues were framed to the following effect.
Issue no.3 A: Whether there is no privity of contract between the plaintiff and the defendant no.2? (OPD2) Issue no.3 B: Whether the relief claimed by the plaintiff against defendant no.2 is time barred?(OPD2) Page 10 Suit no.48/2004 12 The plaintiff led the evidence and examined himself as PW-1. In this affidavit Ex.PW1/A the averments made in the plaint have been reasserted. It was deposed that the plaintiff had agreed to purchase the property no.4/45, Moti Nagar, New Delhi vide agreement to sell dt.03.01.04 Ex.PW1/1. It was stated that on 1.1.04 Smt.Shanti Devi, mother of the plaintiff had withdrew Rs.3,09,315/- from her account no.130896, Post Office, Kirti Nagar and out of this amount Rs.3,00,000/- were paid to the defendant no. 1 as an earnest money. The Pass book of the post office showing the withdrawal is placed on record as Ex.PW1/2. The site plan of the suit property was placed on record and proved as Ex.P1/3. The notice dt.11.3.04 sent by the plaintiff to defendant no.1 has been placed on record and proved on record as Ex.PW1/4. The AD and UPC receipt thereof are Ex.PW1/5 and PW1/6 respectively.
Page 11 Suit no.48/2004 13 In the affidavit Ex.PW1/A, the plaintiff had stated that defendant no.1 was running a group of committees of which the plaintiff had become a member and thus used to pay Rs.5000/- every month. In the month of October 2003, he was declared a winner of the committee. At that time defendant no.1 stated to him that a sum of Rs.1,30,000/- would be paid to him but defendant no.1 paid only a sum of Rs.70,000/- to him and assured that he would pay Rs.1000/- per month in installments w.e.f. July 2004. It is pertinent to mention that these facts which are mentioned in the paragraph 17 to 20 were not pleaded in the suit by the plaintiff. 14 The plaintiff also examined Smt.Shanti Devi PW-2, who tendered the evidence as Ex.PW2/A stating therein that she was having an account no.130896 at the post office, Kirti Nagar and on 1.1.04 she withdrew Rs.
Page 12 Suit no.48/2004 3,09,315/- from the Post office and closed the account. 15 PW3 examined by the plaintiff is Amar Singh, PRO, Ramesh Nagar, Head Post office, who brought the statement of account of account no.130896 in the name of Ashok Kumar Ratta and Smt.Shanti, Devi Ex.PW3/1 16 PW4 examined by the plaintiff is Sh.Sandeep Kumar, who deposed that his father Ajit Singh has expired and he filed the death certificate of Sh.Ajit Singh Ex.PW4/A. It is pertinent to mention that Sh.Ajit Singh is one of the marginal witness to the agreement to sell and PW-4 had identified his signature on agreement to sell Ex.PW1/1 at point A. 17 PW5 is Sh.Inderjeet Singh, who deposed that the agreement Ex.PW1/1 was executed between the plaintiff Page 13 Suit no.48/2004 and defendant on which he had signed at point B. Thereafter, the plaintiff closed the evidence and defendant led his evidence.
18 Defendant appeared himself as DW1 and filed his affidavit Ex.DW1/A on the record. He also repeated the averments made in the written statement. In addition to that he also stated that regarding the incident dt.20.4.04 he had lodged a criminal complaint in the court for the offence under Section 364A/420/465/468/471/506 of IPC, wherein the plaintiff along with his associates were made accused and they are facing the trial. He filed the copy of the complaint on record as Ex.DW1/2. The copy of the complaint given to the SHO Ex.DW1/3. The copy of DD no.6A dt.20.2.04 as Ex.DW1/4. The copy of DD no.21A dt.20.2.04 Ex.DW1/5. He also filed the compromise dt. 20.2.04 which was entered into at PS Moti Nagar, Police Page 14 Suit no.48/2004 Station as Ex.DW1/8 to DW1/10. He also filed the copy of summoning order of the plaintiff as an accused as Ex.DW1/11.
19 Defendant no.1 Sh.S.K.Bhatia also examined Kanchan Bhatia as a witness as D1W2.
20 The defendant no.1 Sh.S.K.Bhatia further examined Sh.J.P.Thakur, Postal Assistant Court, Head Post Office, Ramesh Nagar, New Delhi as D1W3. He deposed that as per the office order the payment of RS.20,000/- or more is made by a cheque. However, he also stated that the payment of Rs.3,09,315/- was made to Smt.Shanti Devi vide withdrawal form Ex.D1W3/B and this amount was paid in cash.
21 D1W4 is Head Constable Vishram Meena, who Page 15 Suit no.48/2004 brought the copy of DD no.6A dt.20.2.04 and DD no.7A dt.20.2.04 and placed the same on record as Ex.D1W4/A and Ex.D1W4/B respectively.
22 The defendant also examined Sh.Raj Bhan Singh, Advocate and Notary as D1W5, who deposed that his registration no.as a Notary is 1492. He deposed that the document Ex.PW1/1 does not bear his signature and also the seal on Ex.PW1/1 is not his seal. He further deposed that the document Ex.PW1/1 is not attested by him as a Notary. He also brought the register dt.3.1.04 and placed the copy of the same on record as D1W5/P1. 23 The defendant no.2 Darshan Singh also led the evidence and examined himself as D2W1 as Ex.D2W1/A. He placed on record the agreement to sell dt.21.6.04 as Ex.D2W1/1.
Page 16 Suit no.48/2004 24 I have heard the Ld.counsels for parties, perused the material on record, the evidence led by the parties and written submissions filed by the parties. 25 The counsel for the plaintiff has argued that the plaintiff has always been ready and willing to honour the contract. The defendant however did not come forward to execute the documents in his favour and in the mean time, when the suit was pending, to defeat the rights of the plaintiff the suit property has been sold to defendant no.2 Darshan Singh for a meager sum of Rs.80,000/-. He further submitted that the defendant no.1 has taken contradictory stand with regard to the execution of the agreement to sell Ex.PW1/1. He submitted that in the written statement dt.13.5.04 the defendant no.1 took the plea that his signatures were taken on blank paper on the Page 17 Suit no.48/2004 point of a knife. But during his cross examination as DW1 he also alleged that he was threatened with the false allegations of rape in case he refused to sign the documents. Ld.counsel further argued that the plaintiff has proved that he had paid Rs.3 lac to the defendant no. 1 on 3.1.04. The source of this amount has also been proved by examining the PW2 Smt.Shanti Devi, mother of plaintiff. PW2 has deposed that she had withdrawn Rs. 3,09,315/- on 1.1.04 from the account no.130896 in the Post Office Kirti Nagar. He further argued that PW4 Sandeep Kumar, PW5 Inderjeet Singh have also proved the signature of the marginal witnesses on the agreement to sell Ex.PW1/1. He further argued that the legal notice was sent to the defendant no.1 but despite that defendant no.1 did not come forward for the execution of the document.
Page 18 Suit no.48/2004 26 On the contrary, it was argued by the Counsel for defendant no.1 that the agreement to sell Ex.PW1/1 is a forged document. Infact the signature of the defendant no.1 were taken on a blank stamp paper by the plaintiff on 20.2.04 when he was abducted by the plaintiff and his accomplices. He argued that the DD no.6A dt.20.2.04 and DD No.7A dt.20.2.04 Ex.D1W4/A and D1W4/B would testify the fact that the defendant no.1 was abducted by the plaintiff on 20.2.04. It has been further submitted on behalf of the Counsel for defendant no.1 that the agreement to sell allegedly pertains to property no.4/45 Moti Nagar, while the suit is for the property no.4/44, Moti Nagar. He further argued that the plaintiff has admitted in the cross examination that the agreement to sell was prepared and executed near Sylvania Laxman Chowk and it was notarized there itself. However, the D1W5 Raj Bhan Singh, who happens to be the Notary Public, who Page 19 Suit no.48/2004 supposedly attested the document Ex.PW1/1, has categorically denied that he ever attested the documents. He further argued that no separate receipt with regard to so called payment of Rs.3 lacs as an earnest amount has been alleged by the plaintiff. The said agreement to sell was not registered. Therefore, it has no evidential value. He further argued that the agreement to sell has been deliberately typed in an unusual small font to accommodate the contents according to the signatures taken on the blank papers from the defendant. He further argued that on 20.2.04 a settlement had taken place between the plaintiff and defendant no.1 at the police station Moti Nagar, where the plaintiff had stated that nothing remained due from defendant no.1. If the plaintiff had given Rs.3 lacs to the defendant no.1, he would not have stated so before the police on 20.2.04. He concluded his arguments saying Page 20 Suit no.48/2004 that it is a false case and no transaction has ever taken place with the plaintiff with regard to the sale of the property in question. As regard the witnesses PW4 and PW5 it is stated by Ld.counsel that their testimony in the court itself shows that they are tutored witnesses and the statement do not inspire the confidence. 27 Counsel for defendant no.2 had argued that Darshan Singh is a bonafide purchase of the property in question and the plaintiff can not claim any relief against him as there is no privity of contract between him and the plaintiff. He also raised the issue that the relief claimed against defendant no.2 i.e.declaration of the agreement to sell between defendant no.2 and 3 as null and void is barred by limitation.
28 On the basis of the submissions of Counsels for the Page 21 Suit no.48/2004 respective parties and evidence on record, my findings on the issues framed are as under:
29 Issue no.1 & 2:Whether the defendant agreed to sell the suit property to the plaintiff vide agreement to sell dt.03.01.04?
Issue no.2:Whether the plaintiff has filed the suit on the basis of forged documents relating to property no.4/45, Moti Nagar, New Delhi, so as to grab the property.
Both these issues are inter connected, therefore, they are being dealt with together.
In the suit for Specific Performance the contract of which enforcement is sought, is very vital. Section 10 of the Contract Act provides that "all agreements are contract if they are made by the free consent of parties competent to contract, for a lawful Page 22 Suit no.48/2004 consideration and with a lawful object, and are not expressly declared to be void". Section 13 of the Contract Act define "consent" as "two or more person are said to consent when they agree upon the same thing in the same sense". Thus, the consensus ad-idem of the parties is the sine-qua-non of a valid contract. If the consent is vitiated by coercion, undue influence, fraud, misrepresentation or mistake then it can not be termed as a free consent and the party to the contract based on such a consent will not be bound by the same. Whether the agreement to sell Ex.PW1/1 is vitiated by an element of coercion or fraud is the vital question.
30 In the present case the agreement to sell is the basis of the present suit, therefore, the examination of this document is essential. As per this document Page 23 Suit no.48/2004 Ex.PW1/1 Sh.S.K.Bhatia(defendant no.1) agreed to sell and transfer property no.4/45 Moti Nagar to Rajesh Kumar Ratta, plaintiff. At the bottom of this document one would find the signatures of the witnesses on the extreme left side, signature of the first party (Vendor S.K.Bhatia) in the middle and the signature of second party ( Vendee Rajesh Kumar Ratta) on the extreme right side. The contents of the agreement to sell has been confined to one page which generally is not done as the signature of the first party and second party to the agreement are generally taken vertically one below the other and not horizontally side by side. Counsel for the defendant no.1 had submitted that the font of the typing is very unusual and this is due to the fact that the signatures of the defendant no.1 were taken on this stamp paper by folding it from the below when it was blank. A naked eye examination of this document would Page 24 Suit no.48/2004 show that it has a line running across from one side to another which generally occurs when a paper is folded. This document, therefore, definitely raise eye brow as to the manner of the execution.
31 Another important and very vital evidence with regard to this document is the statement of D1W5 namely Raj Bhan Singh, who is a Notary Public having registration no.as a Notary as 1492. This document Ex.PW1/1 has been attested by a Notary whose stamp is put on the document along with the stamp of his registration no. The document so attested is dt.3.1.04. The registration no.mentioned is 1492/99 Tis Hazari Court, Delhi-54 and the round stamp of the Notary bears the name of Sh.R.B.Singh. Now, D1W5 has deposed that his registration no.as Notary is 1492. He deposed further that the seal on the document Ex.PW1/1 is not his seal.
Page 25 Suit no.48/2004 He further deposed that this document is not attested by him. In the cross examination by the plaintiff he stated that his registration no.as a Notary was never in the name of "R.B.Singh" and as such the stamp on the document Ex.PW1/1 is not his stamp as he never got prepared such a stamp with the words "R.B.Singh". In the cross examination he admitted that stamp of his registration no.is there on the document Ex.PW1/1. He denied the suggestion that he had attested the document Ex.PW1/1.
32 This statement of D1W5 makes the execution of the document Ex.PW1/1 doubtful and it lends credence to the case of defendant no.1 that his signatures were taken on the blank papers. Defendant no.1 had appeared as DW1 and deposed that he was being followed by the plaintiff on 18.2.04 and 19.2.04. When on 20.2.04 he was going Page 26 Suit no.48/2004 to his office, he was forcibly taken into Maruti Van bearing no.DBB 3116 white colour by the plaintiff along with his colleagues namely Lakhbir Singh and others. He was taken to the house of the plaintiff, where at the point of knife his papers were snatched and his signatures were taken on some blank papers, one of which was folded from the bottom.
33 As regard the incident of taking of defendant no.1 in the Maruti Van on 20.2.04 there is a statement of D1W2 Smt.Kanchan Bhatia, who has deposed that one of her neighbour had seen the plaintiff and his colleagues taking away her husband in the Maruti Van and she accordingly made a complaint to the PCR on which a DD No.6A Ex.D1W4/A was registered. She along with the police had gone to the house of the plaintiff, there the defendant no. 1 was found. The matter went to the police and in the Page 27 Suit no.48/2004 police station Moti Nagar the matter was settled. 34 PW1 who is the plaintiff himself was cross examined with regard to the incident dt.20.2.04. He admitted that on 20.2.04 one police man along with the wife of defendant had approached him and at that time Mr.Bhatia (defendant no.1) was present at his house. Although he has denied that he had abducted defendant no.1 in the morning of 20.2.04. He also admit that on 20.2.04 he was present at the police station Moti Nagar where the matter was compromised between him and defendant no.1. However, he volunteered to add that the agreement to sell in question was not mentioned in the writing in the police station on 20.2.04 as it was not relevant in that dispute.
35 Thus, the factum of a settlement at police station Page 28 Suit no.48/2004 Moti Nagar on 20.2.04 between the plaintiff and defendant no.1 is admitted by the plaintiff. It is also admitted that in that settlement there was no reference to the agreement to sell Ex.PW1/1, the subject matter of the present case. Now a question arise when the plaintiff had given an advance of Rs.3 lacs to the defendant no.1 for the purchase of his house why this fact is not mentioned in the compromise which had taken place between them on 20.2.04? It leads only to the inference that at that particular time the agreement to sell Ex.PW1/1 was perhaps not in existence. 36 As per the case of the plaintiff he had taken Rs.3 lacs in cash which he gave to the defendant no.1 at the time of execution of the agreement to sell (Ex.PW1/1). As per his deposition his mother (PW2) had withdrawn a sum of Rs.3,09,615/- from the Post Office and out of this he Page 29 Suit no.48/2004 had paid Rs.3 lacs to the defendant no.1. The plaint and the replication filed by the plaintiff is completely silent as to what amount was to be paid as an earnest money. There is no averment that the plaintiff had to pay Rs.3 lacs as an earnest money to the defendant no.1 at the time of execution of agreement to sell. If the amount of the earnest money was not settled what had prompted the plaintiff to carry Rs.3 lacs in cash to be given as an earnest money for the purchase of the suit property the value of which was fixed as Rs.5 lacs only. The earnest money is apparently more than 50% of the total sale consideration as per this agreement to sell Ex.PW1/1. As a general practice only 10 to 20% of the sale consideration is given as an earnest money. Therefore, the averments regarding payment of such a huge amount as an earnest money is not found convincing. Further there is no separate receipt executed regarding the Page 30 Suit no.48/2004 payment of this earnest money which is also found very unusual.
37 The plaintiff in his affidavit Ex.PW1/A has referred to some transactions regarding the committee run by the defendant no.1. His statement in his affidavit in this regard is beyond the pleadings and even otherwise this statement does not help the plaintiff rather it gives a background of a strained relationship between the plaintiff and defendant no.1.
38 The plaintiff had examined PW4 Sandeep Kumar son of late Sh.Ajit Singh to prove the signature of late Sh.Ajit Singh on Ex.PW1/1. However his statement in the cross examination would convince the court that he is a tutored witness. He has deposed that his father had told him about the transaction in the month of January 2004. PW5 Page 31 Suit no.48/2004 Inderjeet Singh in the cross examination had deposed that he know Rajesh Ratta for last 6 to 7 years and he also deposed that he knew S.K.Bhatia as well for last 6 to 7 years. He further deposed that Mr.Bhatia had told him about the deal. He further deposed that he has no concern with Rajesh Ratta. This witness has thus tried to project that he is more acquainted with Sh.S.K.Bhatia than Rajesh Ratta and he had come to know about the deal only through S.K.Bhatia defendant no.1 and thus, his statement regarding the execution of agreement to sell should carry much more value as a witness of the plaintiff.
39 The issue no.1 was whether defendant had agreed to sell the property to the plaintiff and issue no.2 is whether the plaintiff has filed the suit on the basis of the forged document relating to property no.4/45 Moti Nagar, Page 32 Suit no.48/2004 New Delhi. Now defendant has categorically deposed that he never executed the agreement to sell PW1/1. He has also given the background in which his signature were appended on this document. His evidence with regard to the incident dt.20.2.04 which is supported and corroborated by DD no.6A and 7A at PS Moti Nagar also probablise that the agreement to sell Ex.PW1/1 was not signed by him at the time when it was purported to have been signed. The statement of D1W5 Raj Bhan Singh further establish that the document Ex.PW1/1 is not a genuine document. Therefore, the issue no.1 and 2 are both decided against the plaintiff and in favour of defendant no.1.
40 Issue no.3: Whether the plaintiff was and is willing and ready to perform his part of the contract?
Page 33 Suit no.48/2004 This issue was framed to ascertain the willingness and readiness to perform his part of the contract. In view of the finding on issue no.1 and 2 this issue has lost its significance because of the doubts created on the genuineness of the agreement dt.3.1.04 Ex.PW1/1. Still it would be pertinent to mention that the plaintiff had mentioned in the plaint that he had been willing to perform his part of the contract and he had contacted the defendant many times and asked him to come forward and perform his part of the contract. However, the defendant no.1 did not come forward. If the agreement to sell Ex.PW1/1 is accepted to be a genuine document, then the date fixed for execution of the document of the title in favour of the plaintiff was 30.03.04. But the plaintiff is issuing a legal notice to defendant no.1 on 11.3.04 itself asking him to execute the document of title. What was the urgency of a such pre-mature legal notice Page 34 Suit no.48/2004 is not clear from the pleadings or from the evidence. The plaint is completely silent as to on which date the plaintiff asked the defendant to perform his part of the contract before 11.3.04 and even if he had asked what was the urgency when the due date fixed for execution of document was 30.3.04. This create a serious doubt about the bonafide of the plaintiff. Therefore, this issue although having lost its significance goes against the plaintiff.
41 Issue no.3A: Whether there is no privity of contract between the plaintiff and the defendant no.2?
This issue was framed after the impleading of defendant no.2 as defendant in the case. He is the purchaser of the suit property vide agreement dt. 21.6.04(Ex.D2W1/1). The defendant no.2 purchased the Page 35 Suit no.48/2004 suit property from the defendant no.1 and he claim to be a bonafide purchaser of the same. He has no nexus with the plaintiff. Even if the sale of the suit property to defendant no.2 is hit by Section 52 of the Transfer of Property Act and the principal of lis pendence, the remedy and the relief would be available to the plaintiff, who seeks the specific performance of the contract with regard to the suit property, by virtue of Sec.52 of the Transfer of Property Act only. Even for defendant no.2 and plaintiff may not have privity of contract. The privity of the contract between the plaintiff and defendant no.2 can not be created by virtue of the purchase of the suit property by defendant no.2 during the pendency of the suit. The issue therefore is decided against the plaintiff. 42 Issue no.3B:Whether the relief claimed by the plaintiff against defendant no.2 is time barred?
Page 36 Suit no.48/2004 The defendant no.2 had claimed that the relief claimed by the plaintiff against him was barred by limitation. However it is not so. The relief which the plaintiff could have got would be by virtue of Sec.52 of the Transfer of Property Act. The prayer made by the plaintiff regarding the declaration of the agreement to sell between defendant no.1 and defendant no.2 dt. 21.6.04 as null and void could have been granted only by virtue of Sec.52 of the Transfer of Property Act because the sale transaction of the suit property has taken place during the pendency of the suit with regard to the suit property. Therefore, relief claimed against defendant no. 2 was not time barred. The issue of limitation accordingly is decided in favour of the plaintiff. 43 Relief:
In view of the above discussions and finding on Page 37 Suit no.48/2004 issues the suit of the plaintiff is dismissed. Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to R/R. Announced in open court on 29.02.12 (AJAY KUMAR KUHAR) ADJ-CENTRAL/TIS HAZARI COURTS DELHI Page 38 Suit no.48/2004 Page 39