Delhi District Court
Dhanpati Singh vs Rajnish Nainakwal on 23 October, 2015
In the Court of Dr. Rakesh Kumar : Additional District Judge
(South District) Saket Court Complex, New Delhi.
Suit No. 120/2014
Unique ID No : 02406C0151582013
In the matter of :
Dhanpati Singh
W/o Late B.P. Singh
R/o K10, Kailash Colony,
New Delhi 110048 ......Plaintiff
V E R S U S
Rajnish Nainakwal
S/o Late Devi Charan
R/o 178, Gautam Nagar,
New Delhi 110049 .....Defendant
Date of institution : 23.05.2013
Reserved for Judgment : 13.10.2015
Date of decision : 23.10.2015
SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT
INJUCTION
J U D G M E N T
1. This is a suit for specific performance and perpetual injunction for specific performance of Agreement to Sell dated 10.10.2011 and directing the defendant to execute the registered sale deed in favour of the plaintiff in respect of property bearing no. 132 Yusuf Sarai, 2nd Floor, New Delhi-110016 (hereinafter referred to as 'the suit property') and for restraining the CS No: 120/2014 Page no. 1 to 14 defendant and his agents etc. from in any manner transferring, alienating, parting with possession or otherwise creating any third party interest in respect of the suit property.
2. Facts alleged in the plaint are that the defendant executed an Agreement to Sell with the plaintiff on 10.10.2011 for the suit property for a total consideration of Rs. 18 lacs. The plaintiff paid an amount of Rs. 16,50,000/ to the defendant and it was agreed that the balance consideration of Rs. 150,000/ was to be paid on or before 30.03.2012 and on the same date Sale Deed was to be executed in favour of the plaintiff. The defendant told the plaintiff that the said flat was still under construction and it would take some more time for the said construction to be completed however it came into the knowledge of the plaintiff that the defendant has sold the said property to some other person. When the plaintiff visited the said premises, she was surprised to see that the said premises was constructed and locked. The plaintiff tried to contact the defendant to inquire about the same and to get the house registered in her name however despite receipt of the said call/conversation, the defendant neither replied to the same nor came forward and flatly refused to execute the sale deed/documents of title in favour of the plaintiff. The defendant has also threatened that they would sell the property at a higher rate to some third party to defeat the right of the plaintiff.
CS No: 120/2014 Page no. 2 to 14
3. The defendant contested the present suit by filing written statement of its defence taking preliminary objections wherein to the effect the plaintiff has not approached this court with clean hands and there is no cause of action against the defendant and in favour of the plaintiff as the possession of the said flat has already been taken over by her partner.
4. In reply on merits, contentions raised on behalf of the defendant are that the plaintiff initially opted for a flat in the same building constructed on 80 sq yards and paid Rs. 3 Lacs, however later the plaintiff and her partner Mr. Davender Nath Sood changed their mind and went for a 40 sq yards plot. The plaintiff and her partner Mr. D.N. Sood have already taken the possession of flat in question. Sale deed could not be executed because of the dispute between the defendant and the landlord. Other allegations of the plaint are denied and disputed by the defendant and prayed for dismissal of the suit.
5. The plaintiff filed replication to the written statement wherein the contentions of the written statement were traversed and the averments of the plaint were reaffirmed.
6. From the pleadings of the parties, following issues were framed on 05.07.2014 for trial, namely: CS No: 120/2014 Page no. 3 to 14
1. Whether the defendant had entered into an agreement to sell the property bearing no. 132 Yusuf Sarai, Second Floor,New Delhi 110016 to the plaintiff which he is under obligation to perform? OPP
2. Whether the defendant has threatened the plaintiff to create third party interest in respect of suit property which is required to be stayed by way of a decree of permanent injunction ? OPP
3. Whether the plaintiff has not approached this court with clean hands and had mislead the court? OPD
4. Whether the plaintiff has not fulfilled the clauses of an agreement to sell? OPD
5. Whether the plaintiff is entitled to any relief.
7. The plaintiff examined three witnesses. The plaintiff got examined herself as PW1 and filed her evidence by way of affidavit (Ex. PW1/1) and also produced the documents Ex. P1 to Ex. P3. PW2 is Smt. Abhilash Panwar. PW3 is Anil Mann.
8. The defendant tendered his affidavit of evidence as Ex. DW1/A and partly crossexamined. When the case was fixed for further crossexamination, the defendant did not turn up and was proceeded exparte.
9. I have heard counsel for the parties and perused the material available on record. I have also gone through the written arguments filed on behalf of the parties.
CS No: 120/2014 Page no. 4 to 14
10. My issue wise findings are as follows: Issues No. 1 and 2 Whether the defendant had entered into an agreement to sell the property bearing no. 132 Yusuf Sarai, Second Floor,New Delhi 110016 to the plaintiff which he is under obligation to perform ? Whether the defendant has threatened the plaintiff to create third party interest in respect of suit property which is required to be stayed by way of a decree of permanent injunction ?
11. Onus qua these issues was placed on the plaintiff. These issues are taken together being interconnected.
12. For determination of these issues some facts admitted in the pleadings are required to be noticed. From the pleadings of the parties, it has been established that the defendant has agreed to sell the suit property to the plaintiff.
13. The case set up in the plaint is that the defendant has not executed the Sale Deed in favour of the plaintiff as per Agreement to Sell dated 10.10.2011.
14. The defendant has mainly raised two contentions (i) that the suit property was purchased jointly and the possession is already taken by Mr. D.N. Sood, partner of the plaintiff and the plaintiff has paid only Rs. 13,50,000/ and yet to pay Rs. 450,000/ and (ii) sale deed could not be executed because of dispute between the defendant and the landlord.
CS No: 120/2014 Page no. 5 to 14
15. To prove her allegations made in the plaint, it is stated by the plaintiff in her affidavit that by way of an Agreement to Sell dated 10.10.2011 (Ex. P1), the defendant agreed to sell the suit property to the plaintiff and she has paid an amount of Rs. 16,50,000/ to the defendant on different dates and the sale deed was to be executed after balance consideration of Rs. 150,000/. It is further stated that the defendant has flatly refused to execute the sale deed in favour of the plaintiff.
16. It is noteworthy here that to disprove the case of the plaintiff, the defendant Rajnish Nainakwal has tendered his affidavit and partly crossexamined on behalf of the plaintiff. On 25.02.2015, the case was fixed for crossexamination of the defendant, but he did not appear in the court and also did not subject himself to be crossexamined by the opposite party i.e. the plaintiff and was proceeded exparte. Section 138 of the Indian Evidence Act, 1872 deals with the order in which the proceedings of the Court are to be conducted. The section reads as follows:
138. Order of examinations - Witnesses shall be first examinedinchief, then (if the adverse party so desires) crossexamined, then (if the party calling him so desires) reexamined.
The examination and crossexamination must relate to relevant facts, but the crossexamination need not be confined to the facts to which the witness testified on his examinationinchief. Direction of reexamination The reexamination shall be directed to the explanation of matters referred to in crossexamination and, if new matter is, by permission of the Court, introduced in reexamination, the adverse party may further crossexamine upon the matter.
CS No: 120/2014 Page no. 6 to 14
17. In view of provisions of Section 138 of Indian Evidence Act, 1872 the examination of a witness consists generally of three stages: first of all, the witness is examined by the party who calls him; this is called examinationinchief. He is next examined by adverse party; this is called crossexamination. Finally, he is examined again by the party who called him; this is called re examination. As I have already observed, the defendant did not appear for further crossexamination after getting himself examinedinchief, such nonappearance of the defendant for crossexamination leads to an adverse inference against the trustworthiness of his statement made in his examinationin chief and it is held that his examinationinchief is inadmissible.
18. In the light of pleadings and evidences of the parties, the position is that emerges is that the defendant has agreed to sell the suit property to the plaintiff. The flat in question i.e. the suit property has been constructed but the defendant has not executed Sale Deed in respect of the suit property in favour of the plaintiff and he has not performed his part of agreement.
19. First contention raised by the defendant is that the suit property was purchased jointly and the possession is already taken by Mr. D.N. Sood, partner of the plaintiff but there is no material on behalf of the defendant to prove that the plaintiff had CS No: 120/2014 Page no. 7 to 14 jointly agreed to purchase the suit property through with D.N. Sood. There is no evidence on behalf of the defendant to prove that the D.N. Sood is a partner of the plaintiff. There is also no evidence on behalf of the defendant to prove that possession of the suit property has already been taken over by D.N. Sood. In absence of any evidence on behalf of the defendant, therefore, I hold that the defendant has failed to prove this contention raised by him.
20. Further, the pleas taken by the defendant seems to be self contradictory and selfdemolishing. On the one hand, the defendant has contended that possession of the suit property has already been taken over by the partner of the plaintiff, which itself goes to suggest he has performed his part of agreement and, on the other hand, he has contended that sale deed could not be executed as there was a dispute between him and the landlord. These two self contradictory pleas taken by the defendant have itself demolished the case set up by the defendant on these points and are not sustainable.
21. Furthermore, the case of the plaintiff is that she has paid a sum of Rs. 16,50,000/ out of total sale price Rs. 18,00,000/. The defendant has nowhere disputed the amount of total sale price. But, in the original written statement, the defendant has CS No: 120/2014 Page no. 8 to 14 contended that a sum of Rs. 4,50,000/ is yet to be paid by the plaintiff. However, in the written statement to the amended plaint, the defendant has taken entirely new plea that the plaintiff is yet to pay Rs. 10,00,000/ in respect of the suit property. The defendant has failed to explain how the amount of Rs. 4,50,000/ as claimed in the original Written Statement increased to Rs. 10,00,000/ in the amended written statement. In view of the above said contradictions in the two written statements, the contentions of the defendant become not reliable and moreover, there is no evidence on behalf of the defendant to prove any of these contentions.
22. Counsel for the defendant has referred to the judgments in Vinod Kumar and Anr. v. Ajeet Singh, IA No. 20617/2012 in CS (OS) 2661/2012 decided on 01.10.2013, Ajeet Singh v. Vinod Kumar and Ors., FAO (OS) 504/2013 and CM 17624/2013 decided on 15.01.2014, Avinash Kumar Chauhan v. Vijay Krishna Mishra, Civil Appeal No. 7350 of 2008 (arising out of SLP(c) No. 8651/2007) to argue that the Agreement to Sell relied upon by the plaintiff is inadmissible in evidence and can not be relied upon for being not registered. It is further argued that the Agreement to Sell (Ex. P1) is also not admissible in evidence for being not properly stamped as ninety percent of the duty as a conveyance is payable as per Article 23A of Schedule 1 of Indian Stamp Act.
CS No: 120/2014 Page no. 9 to 14
23. The arguments raised by counsel for the defendant are not sustainable. Firstly, the facts of the present case and the judgments referred to on behalf of the defendant are different as in present case, possession of the suit property was not delivered to the plaintiff at the time of execution of Agreement to Sell whereas in the judgments referred to on behalf of the defendant possession of the property had also been delivered at the time of Agreement to Sell. Secondly, the defendant has not denied execution of Agreement to Sell or having agreed to sell the suit property to the plaintiff. Thirdly, from a conjoint reading of the Written Statement, it can be gathered that the defendant has even tried to contend that he has already performed his part of agreement. Lastly, in case of an Agreement to Sell the immovable property simplicitor without being the possession delivered, the provisions of Registration Act and Section 33 and 35 of Indian Stamp Act, 1899 do not apply. Last clause of Sec. 54 of the Transfer of Property Act clearly indicates that by such a contract for sale, no interest is created.
24. Section 54 of the Transfer of Property Act, 1882 specifically provides that an agreement for sale by itself does not create any interest in or charge on the property agreed to be sold. In the present case, possession admittedly has not been delivered. There has been no transfer of any interest in the property. The CS No: 120/2014 Page no. 10 to 14 agreement for sale cannot be treated as a conveyance for the purpose of Registration Act and so is not compulsorily registrable under Clause (b) to Sub section (1) of Section 17 of Registration Act.
25. It is well settled law that an Agreement to Sell not bearing any endorsement regarding delivery of possession, but the agreement being a simple document, stamp duty paid thereon would be sufficient and ninety percent of the duty as a conveyance as per Article 23A of Schedule 1 of Indian Stamp Act 1899 is not payable on such document.
26. It has been held in Ashabai Krishna Badole (Smt.) v. Dhanna Lal, AIR 2009 MP 157 that where the plaintiff was in possession of property as a tenant and after agreement to sell, possession would be handed over to him after execution of sale deed, as owner of the property, which was not 'conveyance', and he would not be liable to pay stamp duty on the agreement.
27. It has been held in Shankarlal Narayandas v. New Mofussil Co. Ltd., AIR 1946 P.C. 97 that a contract for sale of immovable property need not be in writing and it may be by way of an oral agreement.
CS No: 120/2014 Page no. 11 to 14
28. Counsel for the defendant has not referred to any judgment/law which provides for payment of ninety percent of the duty as a conveyance as per Article 23A of Schedule 1 of Indian Stamp Act 1899 to be payable on simple Agreement to Sell where possession is not delivered alongwith the agreement.
29. In view of the above discussions, therefore, I hold that the Agreement to Sell (Ex. P1) relied upon by the plaintiff is properly stamped for the stamp duty applicable to a simple agreement.
30. It is undoubted rule giving a specific performance is a matter of discretion. But, this does not mean that it is open to a court to do just what it pleases in an individual case. It is well settled law that in every case the question must be whether the exercise of power of the court is demanded to subserve the ends of justice.
31. The plaintiff, who is a widow, had agreed to purchase property from the defendant. The defendant has received considerable amount of price of the suit property. Sale deed in respect of the suit property was to be executed in favour of the plaintiff on completion of construction. When the plaintiff approached the defendant for execution of sale deed, the defendant has raised very vague pleas of having already CS No: 120/2014 Page no. 12 to 14 delivered the possession of suit property to partner of the plaintiff and impossibility on his part to execute sale deed on the ground of dispute between him and the landlord but he has failed to prove his contentions. It is established from the pleading and evidence of the parties that on asking of the defendant the plaintiff kept on investing money in one or another flat but she did not get any and the defendant kept on making money from the money invested by the plaintiff and now he has flatly refused to honour his promise of execution of sale deed in favour of the plaintiff in respect of the suit property. The plaintiff has instituted this suit within a reasonable time. In these circumstances, I am of the opinion that it is demanded to subserve the ends of justice that a direction to defendant to specific performance of contract to execute sale deed in respect of the suit property in favour of the plaintiff should be given.
32. In view of the above discussion, these issues are decided in favour of the plaintiff and against the defendant.
Issues no. 3 and 4.
Whether the plaintiff has not approached this court with clean hands and had mislead the court?
Whether the plaintiff has not fulfilled the clauses of an agreement to sell?
Onus to prove these issues were on the defendant. These issues are taken together being interconnected.
CS No: 120/2014 Page no. 13 to 14 33. While deciding issues no. 1 and 2, it has already been
observed that examinationinchief of the defendant is inadmissible. There is no evidence on behalf of the defendant to prove these issues, so these issues remained not proved.
34. For want of evidence, these issues are decided against the defendant and in favour of the plaintiff.
Relief Whether the plaintiff is entitled to any relief.
35. In the light of my findings on issues no. 1 and 2, this suit is decreed. The defendant is directed to execute the registered sale deed in favour of the plaintiff in respect of property bearing no. 132 Yusuf Sarai, 2nd Floor, New Delhi - 110016 and to hand over actual physical possession of the suit property to the plaintiff. The defendant and his agents etc. are also hereby restrained from in any manner transferring, alienating, parting with possession or otherwise creating any third party interest in respect of the suit property. Costs of the suit is also awarded in favour of the plaintiff. Decreesheet would be prepared accordingly. Pronounced in the Open Court on 23.10.2015 (Dr. Rakesh Kumar) Additional District Judge South District: Saket: New Delhi CS No: 120/2014 Page no. 14 to 14