Delhi District Court
Smt. Sushila Khattar vs Raj Kumari & Ors & Ors on 23 March, 2018
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE (NE)
KARKARDOOMA COURTS, DELHI
CS No. 85/16
IN THE MATTER OF :
1. Smt. Sushila Khattar
W/o Sh. K. C. Bhattar
2. Sh. Bharat Bhushan Khattar
S/o Sh. K. C. Khattar
Both residents of 1/ 13,
Geeta Colony, Delhi110031.
........ Plaintiffs
V E R S U S
(1) Smt Raj Kumari
W/o Sh. Ras Bihari
(2) Sh. Ras Bihari
President Management of S. B. Public School,
( Recognized), E Block, Khajoori Khas,
Delhi.
(3) Sh. Sharat Kumar
S/o Sh. Ras Bihari
All the three residents of
10/8, Geeta Colony, Delhi110031
(4) Hindu Shiksha Samiti Nyas
Through its Chairman
Sh. Jagdish Rai Bansai
CS No. 85/16 page 1 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Office at Geeta Bal Bharti School,
Shankar Nagar, Delhi110051
........ Defendants
Received in this Court : 24.10.2017
Date of argument : 17.02.2018
Date of Judgment/Order : 23.03.2018
Decision : Suit is dismissed with cost.
Suit for specific performance
J U D G M E N T
1. Vide this judgment, I shall decide the suit for specific performance of
agreement to sale dated 02.06.2009 in respect of property with super structure
built on plots admeasuing 400 Sq. yards and 200 Sq. yards part of Khasra No.
E405 and E406 ( Old khasra No. 122/16), Khajoori Khas ( Meerpur Turq),
Delhi ( hereinafter called the suit property) and permanent injunction for
restraining the defendants from selling, alienating or transferring the suit
property to others.
2. The brief facts of the case as stated in the plaint is that plaintiffs and
defendants are known to each other as Sh. K. C. Khattar, husband of plaintiff
No. 1 and father of plaintiff No. 2 is known to the defendant No. 2 for more
than 20 years. As the defendant No. 2 intended to sale the suit property, after
negotiation, Rs. 1,52,00,000/ was fixed as the consideration amount and an
agreement between the plaintiffs and defendants dt. 02.06.09 was executed.
Rs. 5,00,000/ as earnest money/ part payment was also paid by the plaintiffs
and balance sale consideration was payable by the plaintiffs to the defendants
by 09.07.2009 on execution of the sale documents while handing over the
CS No. 85/16 page 2 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
possession. The son of the defendants asked for Rs. 65,00,000/ by way of
cheque on or before 04.07.2009 and balance in cash and also made forceful
endorsement on the agreement to sale in the back side. Mr. K. C. Khattar took
the loan from the banker's and also decided to sale his another flat and
therefore arranged the balance consideration before stipulated time and
informed the defendants. The defendants did not accept the payment of Rs.
65,00,000/ on 04.07.2009 nor appeared before the Sub Registrar on
09.07.2009 to execute the sale deed. Legal notice dt. 15.07.09 was sent by the
defendants making allegations to the plaintiff regarding non payment of the
balance consideration in view of the agreement and the defendants refused to
perform their part of the agreement despite repeated request of the plaintiff.
The plaintiffs further approached before Pre litigation mediation cell in
Hon'ble High Court of Delhi but of no avail. The defendant No. 3 applied for
NOC in respect of the suit property U/s 6 of the Delhi Land( Registration on
transfer) Act, 1972 and tried to sale the same to third party. Further, the
defendant No. 1 to 3 executed and transferred the suit property by power of
attorney dt. 28.04.10 in favour of defendant No. 4 for Rs. 1,20,00,000/.
Thereafter this suit is filed by plaintiff against the defendants on 13.07.2010
in Hon'ble Delhi High Court.
3. The defendant No. 1 and 2 by way of WS claimed that this suit is not
maintainable as the suit property has been transferred by defendant No. 1 to
defendant No. 4 on 28.04.2010 i.e. before filing of the suit ; the agreement to
sale relied by the plaintiff has no evidentiary value being unstamped as per
Indian Stamp Act. It is further claimed that plaintiff not willing and perform
the part of the agreement and did not make the payment in view of the
agreement and therefore no decree of specific performance may be passed as
CS No. 85/16 page 3 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
prayed for. The defendant No. 1 is the sole owner of the suit property and
sold the same to defendant No. 4. The defendant No. 1 admitted the receipt of
Rs. 5,00,000/ in cash. As claimed, the plaintiff did not pay the balance
consideration within the stipulated time, this suit is not maintainable and
plaintiff is not entitled for any relief.
Defendant No. 3 in the WS also denied the claim of the plaintiff on the
basis that suit property has been transferred by defendant No. 1 to defendant
No. 4 for consideration and after the plaintiff was granted sufficient
opportunity to pay the consideration. Defendant No. 3 further reiterated the
averments of defendant No. 1 and 2 in one way or the other.
Defendant No. 4 also filed WS claiming bonafide purchaser for
consideration without any notice of agreement to sale dt. 02.06.2009. As
contended, defendant No. 4 has paid total consideration and purchased the
suit property and therefore this suit is not maintainable.
4. Replication to the WS of the defendants was filed by the plaintiffs
whereby the plaintiffs have reiterated the averments made in the plaint while
denying the contentions of the defendants in the written statements.
5. On the basis of the pleadings of the parties, the following issues have
been framed vide order dated 09.07.2013:
(i) Whether the suit is bad for mis joinder and non joinder
of parties? OPD
(ii) Whether the agreement to sell dated 02.06.2009 is a
legal documents in accordance with the provisions of the
Indian Stamp Act and the Indian Registration Act? OPD
(iii) Whether the plaintiffs are entitled to seek specific
performance of the agreement to sell dt. 02.06.2009 for
CS No. 85/16 page 4 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
purchase of the property super structure built on plots
admeasuring 400 Sq. yards and 200 Sq. yards part of
Khasra No. E405 & E406 ( Old Khasra No. 122/16),
Khajoori Khas( Meerpur Turq), Delhi ? OPP
(iv) Whether the plaintiffs were ready with the balance sale
consideration and willing to pay the same as claimed by
the defendant No. 1 to 3? OPP
(v) Whether the agreement to sell dt. 02.06.09 is no
agreement in the eyes in law ? OPD
(vi) Whether the defendant No. 4 is a bona fide purchaser
for value without notice of the alleged agreement to sell
dt. 02.06.2009, thus he is protected in terms of section
19 (b) of the Specific Relief Act, 1963? OPD D4
(vii) Whether the suit property sold/ transferred by the
defendants No. 1 to 3 in favour of the defendant No. 4 is
a valid legal and binding transaction? OPRP
(viii) Relief.
The case was thereafter fixed for plaintiff's evidence.
6. Plaintiff No. 2 filed his affidavit by way of evidence Ex. PW 1/ A and
examined himself as PW1 and deposed regarding the facts as mentioned in
the plaint. The witness has deposed nothing but the averments made in the
plaint. The witness has also deposed regarding the relevant documents i.e.
agreement to sale Ex. PW 1/1, copy of bank certificate dt. 02.07.09 Ex. PW
1/ 2, bank statement Ex. PW 1/3, the agreement between the father of the
witness regarding sale of other property Ex. PW 1/4, letter dt. 02.07.2009,
copy of cheque and postal receipts Ex. PW 1/ 5 to Ex. 1/7 respectively, copy
CS No. 85/16 page 5 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
of legal notice dt. 15.07.09 issued by the defendants Ex. PW 1/ 8 and reply by
the plaintiff dt. 20.07.2009 Ex. PW 1/9.
Plaintiff No. 1 also examined her husband Sh. K. C. Khattar as PW2
by way of affidavit Ex. PW 2/A who deposed nothing but as deposed by the
PW1.
The plaintiffs also summoned and examined the witness i.e. Sh. Satish
Kumar, Sr. Manager, Oriental Bank of Commerce as PW3 appeared with the
statement of account pertaining to account No. 00852010004040 in the name
of Khem Chand Khattar w.e.f. 01.06.2009 to 06.07.2009. The statement of
account Ex. PW 3/A. Witness has also brought the statement of account
pertaining to account No. 00852010019400 in the name of B. B. Khattar and
Suray Vikram Khattar w.e.f. 01.06.2009 to 06.07.2009 and statement of
account Ex. PW 3/B.
The plaintiffs also summoned and examined the witness i.e. Sh. Sanjay
Jha, working as Sales Executive in Atlantic Properties Pvt. Ltd as PW3
deposed that agreement dt. 23.05.2009 already Ex. PW 1/4 bears his
signatures at pt. A. The said agreement was cancelled 7 years ago due to the
agreement between the plaintiff and the defendant No. 1 and 2 not maturing
with regard to the suit property. No commission was paid as the deal was not
performed.
Petitioner also summoned and examined the witness i.e. Gopal Dutt,
Bailiff, Sub Registrar Office, Seelampur, Delhi as PW4 appeared with the
record i.e. pertaining to registration form No. 3 showing that on 09.07.2009
Smt. Sushila Khattar and Sh. Bhart Bhushan appeared in the office of Sub
Registrar vide receipt Sr. No. 56 and 57, Book No. 48 and copy of the same
Ex. PW 4/ 1. As no other witness was examined by the plaintiff, the PE was
CS No. 85/16 page 6 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
closed and case was fixed for DE.
7. The defendant No. 1 filed her affidavit by way of evidence Ex. DW
1/A and examined herself as DW1 in support of her defence. The witness
has relied upon the documents i.e. copy of original envelope already on
record Ex.DW1/1, the irrevocable GPA executed which includes irrevocable
GPA, Agreement for sale of property, affidavit, Will Deed, Possession Letter,
Full and Final Payment Receipt for both the plots of land (Suit Property with
the defendant no.4 already on record Ex.DW1/2 (Colly 33 pages).
The defendant No. 4 examined the witness i.e. Sh. Pawan Kumar
Singh as D4W1 by way of affidavit Ex. D4W1/A. Witness has relied upon
the documents as mentioned in his affidavit. DE was thereafter closed.
8. I have heard Ld. Counsel for the parties and considered the relevant
materials on record alongwith provisions of law. I have also gone through the
written submissions filed on behalf of plaintiff alongwith judgments reported
as:
(i) AIR 1977 SC 1005 titled Govind Prasad V/s Hari Dutt
(ii) AIR 1991 Del. 315 titled Nanak Builders and Investors
Pvt Ltd V/s Vinod Kumar Alag
(iii) 227 (2016) DLT titled Neelpadmaya Consumer
Products Pvt Ltd V/s Satyabir & ors.
(iv) 229(216) DLT titled C. S. Aggarwal & Ors. V/s Nirmal
Jain & Ors.
(v) ACR 2001 Bom. 187 titled Haren Krishnakumar Mehta
V/s Kamla Pribhdas Nebhanani
(vi) ACR 2005 Bom. 98 titled Nilkanth Dhondiba Chavan
V/s Umabai
CS No. 85/16 page 7 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
(vii) AIR 2004 HP 20 titled Nathan V/s Nokhu Ram
(viii) AIR 1996 P & H 121 titled Joginder Singh V/s Nidhan
Singh
(ix) AIR 2003 Raj. 2002 titled Deendayal V/s Harjot
Kanwar
(x) AIR 2006 Raj. 8 titled Surender Singh V/s Lrs. Of
Bhanwar Lal
9. I have also gone through the written submissions filed on behalf of
defendant No. 4 and judgments reported as :
(i) M/s J. P. Builders & Anr. V/s A. Ramadas & Anr 2011 (1)
SCC 429
(ii) Jarashree & Ors V/s Bhagwandas S Patel & Ors 2009 3
SCC 141
(iii) In Mohammadia Cooperative Building Society Limited V/s
Lakshmi Srinivasa Cooperative Building Society Limited
& Ors 2008 7 SCC 310
(iv) Ramchander Singh V/s Asghari Begum AIR 1957 Pat. 224
(v) Durga Prasad V/s Smt. Lilawati AIR 1972 All. 396.
10. My findings on the above said issues are as follows :
Issue No. i, ii & v:
(i) Whether the suit is bad for mis joinder and non joinder
of parties? OPD
(ii) Whether the agreement to sell dated 02.06.2009 is a
legal documents in accordance with the provisions of the
Indian Stamp Act and the Indian Registration Act? OPD
(v) Whether the agreement to sell dt. 02.06.09 is no
CS No. 85/16 page 8 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
agreement in the eyes in law? OPD
11. The onus to prove these issue was on the defendants and these issues
were famed in view of the contentions of the defendants in the WS. As regard
issue No. 1, the defendant No. 3 and 4 were impleaded subsequently as
initially this suit was filed only against the defendant No. 1 and 2. In view of
the impleadment of defendant No. 3 and 4, this issue become infructuous and
disposed off accordingly.
The execution of the agreement is admitted between the parties
alongwith receipt of the earnest money. There appears to be no basis of the
contentions by the defendant No. 1 and 2 that the agreement is not an
agreement in view of the section 17 ( 1 A) of the Registration Act and section
53 (A ) of the Transfer of the Property Act is not applicable in the facts of the
case nor the possession of the suit property was handed over to the plaintiff.
The agreement to sale did not require any registration and therefore
enforceable by way of this suit. Issue No. 2 and 5 are decided against the
defendants.
Issue No. iii, iv, vi & vii:
(iii) Whether the plaintiffs are entitled to seek specific
performance of the agreement to sell dt. 02.06.2009 for
purchase of the property super structure built on plots
admeasuring 400 Sq. yards and 200 Sq. yards part of
Khasra No. E405 & E406 ( Old Khasra No. 122/16),
Khajoori Khas( Meerpur Turq), Delhi ? OPP
(iv) Whether the plaintiffs were ready with the balance sale
consideration and willing to pay the same as claimed by
the defendant No. 1 to 3? OPP
CS No. 85/16 page 9 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
(vi) Whether the defendant No. 4 is a bona fide purchaser
for value without notice of the alleged agreement to sell
dt. 02.06.2009, thus he is protected in terms of section
19 (b) of the Specific Relief Act, 1963? OPD D4
(vii) Whether the suit property sold/ transferred by the
defendants No. 1 to 3 in favour of the defendant No. 4 is
a valid legal and binding transaction? OPRP
The onus to prove the issue regarding the entitlement for the relief as
prayed in the suit remained on the plaintiffs. As all these issues are
interrelated/ interconnected, these issues are examined and decided together.
12. The brief and relevant facts for filing of the suit along with the defence
of the defendants is mentioned at the outset. It is well settled that a suit has to
be tried on the basis of the pleadings of the contesting parties which is filed in
the suit in the form of plaint and written statement and the nucleus of the case
of the plaintiff and the contesting case of the defendant in the form of issues
emerges out of that. Being a civil suit, this suit is to be decided on the basis of
preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in
183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to
observe as under:
"A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that the
Power of Attorney Ex. PW3/1 and the Will Ex. P1 were duly
executed by the deceased Sh. Sohan Singh. The Power of
Attorney is after all a registered Power of Attorney, and
more importantly, the original title documents of the subject
CS No. 85/16 page 10 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
property are in the possession of the respondent No. 1 and
which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her father inlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visa vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities CS No. 85/16 page 11 of 20 Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
13. Section 101 of the Evidence Act, 1872 defines " burden of proof"
which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party.
14. Section 20 of the Specific Relief Act, 1963 provides that jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so. The specific performance is an equitable relief and Section 20 of the Act preserves judicial discretion. The relief U/S 20 is not automatic as the Court is required to see the totality of the circumstances which are to be assessed by the Court in the light of facts and circumstances of each case. The party who seek specific performance being an equitable relief must come to the court with clean hands and while exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties and the motive behind the litigation.
CS No. 85/16 page 12 of 20 Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
15. In a suit for Specific Performance, the plaintiff has to prove a valid sale agreement; the breach of the contract by the defendant and readiness and willingness of the plaintiff to perform his part of the contract. The relevant provision of law i.e. Section 16 (c ) of the Specific Relief Acts mandates readiness and willingness on the part of the plaintiff as a condition precedent to seek specific performance. Section 16 (c ) is reproduced hereunder: " Section 16. Personal bars to relief Specific performance of a contract cannot be enforced in favour of a person XXX XXX XXX ( C) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation. For the purposes of clause ( c ), where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
16. As held by Hon'ble Delhi High Court in RFA No. 83/2007, the readiness and willingness are two separate issues. The former depends upon the availability of the requisite funds whereas the later depends on the intention of the purchaser. The readiness has to be proved by the purchaser by leading evidence relating to the availability of the funds whereas the intention CS No. 85/16 page 13 of 20 Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
has to be inferred from the various circumstances on record. If there is not availability of the funds with the purchaser, he can be none suited on the ground of non readiness alone. If the plaintiff is able to show and prove the availability of balance sale consideration with him at the time fixed for performance in the agreement, it is an indication of his readiness but his willingness/intention to perform cannot be inferred from readiness alone. It is the duty of the Court to find out which party has not performed his part of the contract and the Court has to take into consideration the human probabilities, ordinary course of human conduct and commonsense to draw necessary inference. The Court has to minutely examine the conduct of the parties in order to ascertain the truth.
17. In N. P. Thirugnanam Vs. Dr. R. Jagan Mohan Rao, ( 1995) 5 SCC 115, the Supreme Court held that the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances to adjudge the " readiness" and "
willingness" of the plaintiff. The amount of balance sale consideration must be proved to be available with the purchaser right from the date of execution till the date of decree. The Court upheld the dismissal of the suit for specific performance on various grounds inter alia that the plaintiff was dabbing in real estate business without means to purchase the suit property and the very contract was speculative in nature.
In R. C. Chandiok V. Chunni Lal Sabharwal, (1970) 3 SCC 140, the Supreme Court held that " readiness" and " willingness" cannot be treated as a straitjacket formula. It has to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.
18. As noted, the execution of the agreement between the parties is CS No. 85/16 page 14 of 20 Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
admitted alongwith the payment of the earnest money. The readiness and willingness of the plaintiff to perform their part of the agreement is denied by the defendants. The main issue to be adjudicated is whether the plaintiff has always been ready and willing to perform his part of the agreement to sale dt. 02.06.2009 and in view of the section 16 ( C) of the Specific Relief Act, 1963, the plaintiff is under obligation to prove this issue. There is no whisper regarding obtaining of NOC by the defendant in the agreement to sale and therefore claim of the plaintiffs that the defendants breached the terms and conditions of the agreement by not obtaining NOC is devoid of any merits.
In law the aspect of willingness being there is one which is to be acted upon by making the payment when the defendants make themselves capable of performing the agreement to sale but readiness is an aspect which has to be independently proved. Readiness pertains to the financial capacity of a proposed purchaser to make payment of the balance consideration under the agreement to sale. The issue with respect to readiness and willingness is overlapping. Further the aspect of the plaintiff / proposed purchaser always being ready to perform its part of the contract i.e. having the necessary capacity to pay the sale consideration is because specific performance is a discretionary relief and an alternative to the relief of grant of damages. A suit for specific performance is filed because the plaintiff / proposed purchaser alleges breach of contract by defendants/ proposed seller and ordinarily a breach of contract gives right to remedy and relief of damages U/s 73 of the Indian Contract Act, 1972. Specific performance is the alternative to the relief of damages and courts have in view of the Section 20 of the Specific Relief Act held that even if the proposed seller are guilty of breach of contract, it is not necessary that a suit for specific performance has to be CS No. 85/16 page 15 of 20 Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
decreed and that a proposed purchaser can always be granted an alternative relief of damages, of course depending upon the facts and circumstances of each case and evidence which is led in the case on relevant aspects. The plaintiff cannot claim specific performance unless and until plaintiff has proved its capacity to pay right from the time of entering into an agreement to sell till the time of the present final arguments.
19. It is reiterated that under the agreement, the plaintiff was not under obligation to obtain NOC. Even if the NOC is considered as breach on the part of the defendants, the same is not determinative for the entitlement of the plaintiff to grant of specific performance in its favour because grant of specific performance is not an automatic consequence on proving breach of the agreement to sale by the defendant. The grant of specific performance is an alternative benefit to the proposed purchaser on the proposed purchaser proving that the defendants/ proposed seller guilty of breach of contract. The plaintiff has to prove to the satisfaction of the court is readiness i.e. capacity to pay at all point of time
20. Examining the case of the plaintiff on the basis of preponderance of probabilities, this court is of the considered opinion that plaintiffs have failed to prove the case for entitlement of the reliefs as prayed in the suit. The ratio of judgment reported as 1982 (1) RCR 637 is squarely applicable in the facts of this case. Further, as held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. Undisputedly, the burden lies on the plaintiff to establish such facts.
The law on grant of specific performance is well settled. The Supreme Court in Parakunnan Veetil Joseph's Son Mathew V/s Nedumbara Kuruville's Son & Ors., AIR 1987 SC 238 held as under: CS No. 85/16 page 16 of 20 Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
" 14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
This position was reiterated by Supreme Court in Jayakantham V/s Abhay Kumar ( 2017) 5 SCC 178. While dealing with the scope of court's discretion U/s 20 of the Special Relief Act, 1963, The Supreme Court in Zarina Siddiqui V/s A. Ramalingam AIR 2015 SC 580 held as under: " 25. It is well settled that remedy for specific performance is an equitable remedy. The Court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that Court's discretion to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles."
21. The documents relied by PW1 in support of claim is already noted above and plaintiff No. 1 did not produce any of the documents to show that he had balance in his account to make payment. If his father had the amount, the question may be asked as to why the photocopy of cheque only was sent to the defendants and not the original cheque for its encashment. The suit CS No. 85/16 page 17 of 20 Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
against the defendant No. 3 already abated. The plaintiff has not prayed for recovery or damages. Even after the expiry of the date of the execution of the documents, there was no tender of the balance consideration by the plaintiff nor anything is brought or proved on record that the plaintiffs have such amount available which shows that they were ready and willing to perform their part of agreement. Admittedly, the defendant No. 1 was the owner but even the alleged cheque was intentionally issued in the name of defendant ( though the receipt and issuance of such cheque is denied) which shows that it was not the intention of the plaintiff to make payment at all. I have gone through the testimony of PWs which appears to be totally shattered during cross examination. The plaintiff was well aware that suit property has been sold to defendant No. 4 and thereafter this suit was filed but defendant No. 4 was not impleaded as initial stage. On the basis of records and in view of testimony of witnesses, it is proved that plaintiff was not ready and willing to perform his part of agreement. The plaintiffs therefore are not entitled for decree of specific performance. The ratio of judgment of Hon'ble Delhi High Court in CS( OS) No. 325/ 07 titled Shree Aadhiya Build Well Private Limited V/s Sh. Kartar Singh & Ors, & in RFA 434/2016 titled Jainab V/s Jalaluddin are also squarely applicable in the facts and circumstances of this case. The ratio of judgments relied by ld. Counsel for plaintiffs is neither applicable nor helpful in the facts and circumstances of the case. The discussion with respect to issue No. III and IV will also have to overlap with the decision of issue No. VI and VII. Admittedly the defendant No. 4 had paid the consideration and purchased the suit property. Issue No. III and IV are decided against the plaintiff whereas issue No. VI and VII are decided in favour of defendants.
CS No. 85/16 page 18 of 20 Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
22. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33).
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
23. In view of the testimony of the PWs, documents on record, the CS No. 85/16 page 19 of 20 Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
pleadings of the parties and examining the case of the plaintiffs on the basis of preponderance of probabilities, it is established that the plaintiffs failed to prove the case and discharge the onus. This Court is therefore of the considered view that the plaintiffs failed to discharge the onus and prove the issues. Merely, oral contentions is not sufficient to prove the issues. The suit of the plaintiffs is liable to be dismissed and plaintiffs are not entitled for any relief as prayed in the suit.
Relief:
24. In view of aforesaid discussion and findings, this court is of the considered view the plaintiffs are not entitled for any relief as prayed in the suit. The suit of plaintiffs is accordingly dismissed with costs. Decree sheet be drawn accordingly.
File be consigned to record room after necessary compliance.
Digitally signed by GORAKH GORAKH NATH PANDEY
Location: Court No.69,
Announced in open Court
on this 23rd day of March, 2018
NATH North East District,
Karkardooma Court, Delhi
PANDEY Date: 2018.03.23 16:26:04
+0530
G. N. Pandey
Addl. District Judge (NE)
Karkardooma Courts, Delhi.
CS No. 85/16 page 20 of 20
Sushila Khattar & Ors. V/s Raj Kumari & Ors & Ors.