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[Cites 12, Cited by 0]

Delhi District Court

Jagbir Sharma vs Saroj Bala on 26 April, 2019

IN THE COURT OF SH. HARGURVARINDER SINGH JAGGI,
  ADDL. DISTRICT JUDGE - 02, SOUTH WEST, DWARKA
               COURTS, NEW DELHI

CS DJ ADJ No. 516839/2016
CNR No. DLSW01-000563-2013

IN THE MATTER OF:

Jagbir Sharma
S/o Sh Khem Chand
R/o House No. 349
Village Kakrola
New Delhi                                                     ... Plaintiff

                                 Versus

Saroj Bala
W/o Sh Satish Prashar
D/o Late Ranjit Singh
R/o 1279/88, Tri Nagar
New Delhi                                                   ... Defendant


Date of institution of suit                    :          28.10.2013
Date reserved for judgment                     :          14.02.2019
Date of pronouncement of judgment              :          26.04.2019


JUDGMENT

1. This is a suit for specific performance instituted by the plaintiff, namely, Jagbir Sharma (hereinafter "plaintiff") against the defendant, namely, Saroj Bala (hereinafter "defendant") with regard to an immovable property admeasuring 33.50sq.yds. bearing No. 121 - A, CS No. 516839/2016 Page No.1/32 out of Khasra No. 13, revenue estate of village Bindapur, known as Block - 'T', Uttam Nagar, New Delhi (hereinafter "suit property"). FACTS

2. The facts of the case in a nutshell are that the plaintiff and defendant entered into an agreement to sell dated 08.03.2013 (hereinafter "agreement to sell") for the sale purchase of the suit property. As per the agreement to sell the total sale consideration for the sale purchase of the suit property was ₹17,25,000/- (Rupees Seventeen lakhs and twenty five thousand only). The plaintiff had paid an amount of ₹5,00,000/- (Rupees Five lakhs only) to the defendant, as earnest money and the balance amount of total sale consideration i.e. ₹12,25,000/- (Rupees Twelve lakhs twenty five thousand only) was to be paid by the plaintiff to the defendant at the time of execution, signing and registration of the sale deed.

3. As per the agreement to sell, the plaintiff was to pay the balance sale consideration to the defendant on or before 07.09.2013.. The plaintiff was always ready and willing to make the balance payment and also sign and execute the registration of the sale deed.With 07.09.2013 being a Saturday, the parties mutually agreed for the date of signing and registration of sale deed, as 09.09.2013. The plaintiff visited the concerned Sub Registrar's Office on 09.09.2013, however, the defendant did not show up at the office of the concerned Sub Registrar on the said date. Subsequently, the plaintiff got issued a notice to the defendant and asked the defendant to be present for registration of sale deed on 14.10.2013. On 14.10.2013, the plaintiff CS No. 516839/2016 Page No.2/32 appeared before the concerned Sub Registrar but the sale deed was not signed, executed and registered on 14.10.2013, regardless of both the parties being present in the office of Sub Registrar. Hence, the present suit for specific performance.

4. The defendant appeared before the court on issuance of summons for settlement of issues and filed her written statement. The main plank of defence urged by the defendant in her written statement is that the plaintiff did not have sufficient money to make the payment of balance sale consideration. The defendant in her written statement also urged that the plaintiff had full knowledge that the suit property was in the possession of a tenant of the defendant and the plaintiff knowingly entered into an agreement to sell dated 08.03.2013. The defendant has also urged in her written statement that the plaintiff had assured her that he would himself get the suit property vacated from the tenant at his own cost and responsibility. The defendant in her written statement has admitted receiving the notice dated 25.09.2013 and submitted that thereafter, the defendant as mentioned in the said notice did appear before the office of Sub Registrar on 14.10.2013 but once again the plaintiff did not have sufficient money to honor his committent and pay the balance sale consideration to the defendant and get the sale deed registered and executed.

QUESTIONS

5. On 21.07.2014, the pleadings were completed and following issues were framed:

CS No. 516839/2016 Page No.3/32
i. Whether the suit is not maintainable in the present form against the defendant? ... (OPD) ii. Whether the suit of the plaintiff is without cause of action against the defendant? ... (OPD) iii. Whether the plaintiff is entitled for a decree of specific performance of agreement of sale and purchase dated 08.03.2013 against the defendant in respect of built up property bearing No. 121 - A, admeasuring 33.1/2 sq.yds.

out of Khasra No. 13, situated at Village Bindapur, known as Block T, Uttam Nagar, New Delhi? ... (OPP) iv. Relief.

6. The plaintiff examined 5(five) witnesses in total. PW1 - plaintiff in person; PW2 - Rohit Yadav, Clerk, Indian Bank, Uttam Nagar, New Delhi, PW3 - Praveen Kumar, Clerk, Indian Bank, GGS, IP, Dwarka, New Delhi; PW4 - Jai Singh Meena, Naib Nazir, Court of Sh. R.L. Meena, ADJ - 02, South West, Dwarka Courts, New Delhi, and Balbir Singh, UDC, eSub Registrar - II, Basai Dara Pur, New Delhi.

7. PW-1 proved the agreement to sell dated 08.08.2013 (Ex.PW1/1), receipt for appearance issued by the office of Sub Registrar (Ex.PW1/2), office copy of legal notice dated 25.09.2013 (Ex.PW1/3), postal receipt and AD card (Ex.PW1/4), complaint dated 24.09.2013 in the office of Sub Registrar - II, Basai Dara Pur, New Delhi (Ex.PW1/5), receipt dated 14.10.2013 for appearance issued by CS No. 516839/2016 Page No.4/32 the office of Sub Registrar (Ex.PW1/6), certified copy of bank statement of A/c No. 603102431, Indian Bank, Dwarka Branch, New Delhi (Ex.PW1/7), and certified copy of bank statement of A/c No. 6093976864, Indian Bank, Uttam Nagar Branch, New Delhi (Ex.PW1/8). A copy of bank statement of the father of the plaintiff was marked as Mark 'A'.

8. PW1 on 03.06.2015 during his cross examination admitted that the suit property was shown to him from outside. PW1 stated that he did not enter the suit property since the same was locked at the time when it was shown to him. PW1 admitted to have checked the title documents of the suit property. PW1 denied the suggestion that at the time of entering the agreement to sell (Ex.PW1/1), PW1 was aware that the suit property was in possession of a tenant. The cross- examination of PW1 was deferred on 03.06.2015 and subsequently repeated opportunities were granted to the defendant to cross-examine PW1 and even costs was imposed upon the defendant on account of adjournments sought and finally on 03.03.2016 the defendant's right to cross-examine PW1 was closed, as nil, opportunity given.

9. PW2 namely, Rohit Yadav, Clerk from the Indian Bank, Uttam Nagar was a summoned witness, who brought the bank statement of plaintiff's bank A/c No. 6093976864 with Indian Bank, Uttam Nagar Branch, New Delhi (Ex.PW2/1). As per the bank statement produced before the court on 12.02.2015, the plaintiff's bank balance on 07.09.2013 as ₹1,54,952/- (Rupees One lakh fifty four thousand nine hundred and fifty two only) and on 19.09.2013 an amount of CS No. 516839/2016 Page No.5/32 ₹3,00,000/- (Rupees Three lakhs only) was credited from the bank account of Khem Chand to the account of the plaintiff. PW2 stated that he has seen Ex.PW1/8 and the same pertains to the bank A/c No. 6093976864 with Indian Bank, Uttam Nagar Branch, New Delhi. PW2 was not cross-examined, as none appeared for the defendant and the right to cross-examine PW2 by the defendant was closed on 12.02.2015.

10. PW3 namely, Praveen Kumar, Clerk from the Indian Bank, GGS, IP, Dwarka, New Delhi was also a summoned witness, who brought the bank statement of the plaintiff bank A/c No. 603102431 (Ex.PW3/1). PW3 stated that as per the bank statement on 07.09.2013 the plaintiff had an account balance of ₹4,84,184.22/- (Rupees Four lakhs eighty four thousand one hundred and eighty four and twenty two paise only). PW3 stated that he has seen Ex.PW1/7 and the same pertains to the same bank account i.e. A/c No. 603102431 with Indian Bank, GGS, IP, Dwarka, New Delhi. PW3 also brought the certified copy of Khem Chand's bank account statement - A/c No. 6070584411 (Ex.PW3/2). PW3 stated that as per the Ex.PW3/2 the account balance in the account of Khem Chand on 07.09.2013 was ₹4,37,302/- (Rupees Four lakhs thirty seven thousand three hundred and two only). PW3 further stated that the document marked as Mark 'A' is a copy of the pass book of A/c No. 6070584411 of Khem Chand. PW3 was not cross-examined, as none appeared for the defendant and the right to cross-examine PW2 by the defendant was closed on 12.02.2015.

CS No. 516839/2016 Page No.6/32

11. PW4 namely, Jain Singh Meena, Naib Nazir from the Court of Sh. R.L. Meena, ADJ - 02, South West, Dwarka Courts, New Delhi was a summoned witness and who deposed on 16.05.2016. PW4 stated that he has brought the original summoned record in the Execution No. 35/15 titled as Puran (deceased) through LR Khem Chand v. UOI & Anr. PW4 stated that the true copy of the order dated 24.05.2013 is Ex.PW4/1 and the true copy of the District Nazir report dated 22.11.2012 is Ex.PW4/2. PW4 unequivocally stated that he has no personal knowledge of the case, as he is a summoned witness. PW4 in his cross-examination admitted that Ex.PW4/2 does not bear the court stamp though it bears the signature of District Nazir Office Sh. Pawan Kumar, JJA at point A.

12. The last witness to depose on behalf of the plaintiff, PW5 namely, Balbir Singh, UDC, e-Sub Registrar - II, Basai Darapur, New Delhi. PW5 stated that he has brought the original summoned record i.e. receipt book (B) with the cash receipt bearing Slip No. 34471 dated 09.09.2013 (Ex.PW5/1). The true copy of complaint/objections for the registration of the sale deed or any other transfer documents pertaining to the transaction is Ex.PW5/2. True copy of receipt book (B) with the cash receipt bearing Slip No. 37238 issued to Jagbir Sharma on 14.10.2013 is Ex.PW5/3. PW5 unequivocally stated that he has no personal knowledge of the case, as he is a summoned witness.

13. PW5 during his cross-examination denied the suggestion that the documents produced by him are forged documents. PW5 stated that the exhibited documents are computer generated with the help of CS No. 516839/2016 Page No.7/32 its software and there are almost no chances for forging them. PW5 admitted that these documents do not bear rubber stamp. PW5 admitted that he no individual authority letter to bring these documents to the court. PW5 voluntarily stated that he is attending the court hearing in pursuance of the summons received. PW5 denied the suggestion that he is not authorized to bring the documents to the court.

14. Whereas, on behalf of the defendant only defendant stepped into the witness box on 17.01.2018. It is pertinent to mention herein that the Ld. Predecessor of this court granted numerous opportunities to the defendant to lead defendant's evidence and on 13.11.2017 even imposed cost on the defendant. On 04.12.2017, the court observed that with defendant's failure to pay the costs imposed vide order dated 04.12.2017 and no affidavit filed in evidence and also on default to appear, defendant' evidence was closed and the matter was adjourned for final arguments.

15. Subsequently, defendant moved an application seeking setting aside/review of order dated 04.12.2017. Ld. Predecessor of this court vide order dated 20.12.2017 allowed the application moved by the defendant subject to imposition of costs and the defendant was granted final opportunity for leading evidence.

16. DW1 tendered her evidence by way of an affidavit - Ex.DW1/1 and relied upon the document i.e. receipt dared 14.10.2013 bearing slip No. 37261 (Ex.DW1/A). DW1 in her cross-examination admitted the agreement to sell and purchase (Ex.PW1/1). DW1 also admitted CS No. 516839/2016 Page No.8/32 having received an amount of ₹5,00,000/- (Rupees Five lakhs only). DW1 voluntarily stated that the earnest money was ₹2,50,000/- (Rupees Two lakhs and fifty thousand only) whereas, the remaining ₹2,50,000/- (Rupees Two lakhs and fifty thousand only) was paid to her in order that the plaintiff could get the tenant staying in the suit property evicted from the same. DW1 voluntarily stated that when the house could not be vacated by the tenant, the plaintiff refused to complete the sale transaction. DW1 admitted that the above stated voluntary assertions made by her were not recorded in the agreement to sell (Ex.PW1/1). DW1 denied the suggestion that the plaintiff was not aware about the occupancy of the tenant in the suit property at the time of execution of the agreement to sell. DW1 denied the suggestion that the plaintiff was ready and willing to pay the balance amount for the execution of the sale deed. DW1 stated that she cannot tell whether she has placed any document on record with regard to any dispute with the tenant regarding the suit property.

17. DW1 during her cross examination stated that as on today i.e. 17.01.2018 the suit property is vacant and she got it vacated through a court case. DW1 admitted that the plaintiff was not a party to the suit No. 175/2009 and he was not summoned on the behest of the defendant. DW1 admitted that she has not served any notice upon the plaintiff for execution of the sale deed.

18. DW1 stated that on 09.09.2013, she visited the office of Sub Registrar for execution of the sale deed but she did not her attendance marked since the plaintiff refused to purchase the suit property. DW1 CS No. 516839/2016 Page No.9/32 stated that on 14.10.2013 the plaintiff was also present at the office of Sub Registrar and met her personally. DW1 voluntarily stated that on 14.10.2013 when the plaintiff met her at the office of Sub Registrar, the plaintiff asked her to get the sale deed executed in his favour, however, the plaintiff was not carrying the consideration amount and the plaintiff assured the defendant that he would pay the same later on to her. DW1 once again denied the suggestion that the plaintiff was always ready and willing with the balance amount for execution of the sale deed. DW1 denied the suggestion that DW1 did not want to execute the sale deed in favour of the plaintiff since the prices of the land increased. DW1 admitted that her son was present with her at the time of execution of the sale deed. DW1 denied the suggestion that the agreement to sell was read out and explained to her in vernacular. Submissions by the Ld. Counsels for the Parties

19. Ms. Sukhda Dhamija, Ld. counsel for the plaintiff and Sh. Anirudh Shukla, Ld. counsel for the defendant advanced their arguments.

20. Ms. Dhamija, Ld. counsel for the plaintiff submitted that the plaintiff had always been ready and willing to perform his part of the contract and the same has been rightfully pleaded in paragraph 11 of the plaint. With regard to the financial status of the plaintiff, Ld. counsel for the plaintiff submitted that the plaintiff summoned three witnesses and the evidence led by the plaintiff duly proves that the plaintiff not only had sufficient funds at his disposal but also the CS No. 516839/2016 Page No.10/32 plaintiff is a man of adequate means to honour his contractual obligations with the defendant.

21. Ms. Dhamija, Ld. counsel for the plaintiff further submitted that it is the defendant who resiled from the contract and failed to execute the sale deed. Ld. counsel for the plaintiff stressed that the conduct of the defendant is not forthcoming and the same is visible from the order dated 20.12.2017, wherein the defendant was saddled with cost of ₹5000/- (Rupees Five thousand only) and this court observed that the defendant has been delaying the trial.

22. Ms. Dhamija, Ld. counsel for the plaintiff placed reliance Vijay Kumar and Others v. Om Prakash AIR 2018 SC 5098 and Aniglase Yohannan v. Ramlatha (2005) 7 SCC 534 that the plaintiff has duly shown his readiness and willingness and thus the suit for specific performance instituted by the plaintiff against the defendant may be decreed.

23. The defence urged by Sh. Shukla, Ld. counsel for the defendant is that the defendant was always ready and willing to discharge obligations but it is the plaintiff who was not ready and willing to honour his commitments. Ld. counsel strenuously argued that the plaintiff did not have sufficient funds to honour his commitments and it is for that reason that first time on 07.09.2013, the plaintiff failed to make payment and thereafter issued a notice to the defendant seeking her presence on 14.10.2013 at the office of Sub Registrar for execution and registration of sale deed. Ld. counsel for the defendant submitted that the defendant wanted extension of time and it is for that CS No. 516839/2016 Page No.11/32 reason the defendant did not visit the Sub Registrar's office on 07.09.2013. Ld. counsel further submitted that on subsequent occasion i.e. 14.10.2013, regardless of both the parties being present at the office of Sub Registrar, the reason why registration of sale deed did not happen on 14.10.2013 was on account of plaintiff's failure and short coming. Ld. counsel for the defendant submitted that even on 14.10.2013 the plaintiff did not have sufficient funds and it is for that reason the sale deed was neither signed nor executed on 14.10.2013. Ld. counsel for the defendant further stated that the sole reason for non-execution of sale deed is paucity of funds on behalf of the plaintiff to pay the balance sale consideration to the defendant.

24. Sh. Shukla, Ld. counsel for the defendant submitted that the suit property being under occupation of the tenant was always known to the plaintiff and there is no legal impediment for a party to alienate a property of which the part is the rightful and absolute owner. Ld. counsel for the defendant further submitted that defendant has categorically averred in the paragraph 3 of the written statement under the heading preliminary objections of that the plaintiff had full knowledge and was aware about the suit property being under occupation of a tenant.

25. With regard to the issue that no cause of action has arisen in favour of the plaintiff to institute the present suit, Ld. counsel for the defendant submitted that the plaintiff was not prepared to purchase the suit property and the motive of the plaintiff was to sell the property outrightly to a third person on bayana money itself. The plaintiff's CS No. 516839/2016 Page No.12/32 failure to not being able to find a ready buyer for the suit property on or before 07.09.2013, the plaintiff cleverly sought extension of the date of signing, registration and execution of sale deed by issuance of a notice through counsel to the defendant and thus, the extended date of 14.10.2013. Ld. counsel further submitted that the defendant fully cooperated with the plaintiff and thus on a later date, the defendant was present at the office of the concerned Sub Registrar on 14.10.2013 for registration of sale deed.

26. Ld. counsel for the defendant further submitted that the nonchalant conduct and approach of the plaintiff is clearly inferred from the plaintiff's failure to take any steps for purchase of stamp paper and applicable stamp duty, draft of sale deed. Sh. Shukla, Ld. counsel for the defendant further submitted that the plaintiff has not disclosed how the plaintiff intended to pay the balance sale consideration to the defendant. Ld. counsel further submitted that no evidence has been led by the plaintiff to this regard and thus the plaintiff has not approached this court with clean hands. Ld. counsel for the defendant further submitted that the plaintiff did not have sufficient funds at his disposal and control and there no cause of action has arisen in favour of the plaintiff, as the plaintiff was not ready and willing and thus the present suit is not maintainable for want of cause of action.

27. Sh. Shukla, Ld. counsel for the defendant to substantiate his submissions placed reliance upon Prabir Kumar Das v. Amulya CS No. 516839/2016 Page No.13/32 Bhushan Paul AIR 2005 Gau 128 and Amar Singh v. Baliram Singh AIR 2006 Pat 145.

28. With regard to the issue that the suit is not maintainable, Ld. Counsel for the defendant submitted that the averments made in paragraph 5 of the plaint are baseless and without any basis. Ld. counsel for the defendant submitted that there was no such tenant and there is no litigation with regard to suit property. Ld. counsel for the defendant further submitted that the averments made by the plaintiff in the plaint are bald, baseless and nothing but a ploy to wriggle out from the contract.

29. Ms. Sukhda Dhamija, Ld. counsel for the plaintiff rejoined her arguments and submitted that the defendant has stated that the defendant was present on 14.10.2013 and whereas, the defendant has maintained complete silence that why she was not present on 09.09.2013 at the office of Sub Registrar. Ld. counsel further submitted that the defendant has failed to lead any evidence that she was present on 09.09.2013 at the office of Sub Registrar and no plausible explanation has come forward from the defendant with regard to her absence from the office of Sub Registrar on 09.09.2013.

30. Ld. counsel for the plaintiff rejoined her submissions that the plaintiff is ready and willing to pay the balance sale consideration even today and was always ready and willing, as on 14.10.2013. Ld. counsel for the plaintiff further submitted that as per the terms and conditions in the agreement to sell inter alia clause 2, 6, 9 and 11, the balance sale consideration was to be paid by the plaintiff to the CS No. 516839/2016 Page No.14/32 defendant only on vacant and physical possession of the suit property being handed over by the defendant to the plaintiff. Ld. counsel submitted that the same was not done, as the suit property was under

the occupation of defendant's tenant and it is for that reason the defendant first did not appear on 09.09.2013 and the defendant's appearance on 14.10.2013 was a hollow appearance, to cover the lacuna of her failure to get the suit property vacated from her tenant.

31. Ld. counsel for the plaintiff submitted that the Ex.DW1/1 and particularly, paragraph Nos. 4 and 5 therein are beyond pleadings. Ld. counsel for the plaintiff further submitted that the defendant has not only led evidence beyond pleading but also the submissions advanced by the Ld. Counsel for the defendant are beyond what has been pleaded in the written statement.

32. Ld. counsel for the plaintiff submitted that in paragraph Nos. 10 and 12 of the written statement, the defendant has averred that plaintiff never appeared at the office of Sub Registrar on 14.10.2013. Ld. counsel for the plaintiff submitted that the said averments fall flat on its face, as the plaintiff has led sufficient evidence on record to show his presence on the said date at the office of the Sub Registrar.

33. Ms. Dhamija, Ld. counsel for the plaintiff further submitted that during the cross-examination of the defendant, the defendant admitted that the suit property was vacated through a court case. However, there is no whisper about any dispute with the tenant or any legal proceedings between the defendant and her tenant by the defendant in her written statement.

CS No. 516839/2016 Page No.15/32

34. Ld. counsel for the plaintiff took a strong objection to the submissions advanced by the Ld. counsel for the defendant, particularly those submissions which have been advanced beyond pleadings. Ld. counsel further submitted that the defendant has neither ade any averment with regard to seeking disclosure about the source f funds to pay the balance sale consideration in the written statement or any suggestion was made by the counsel for the defendant during ross-examination of plaintiff witnesses. Ld. counsel for the plaintiff submitted that such practice to advance submissions which have neither been urged in the pleadings nor any evidence has been led are impermissible in law.

35. Ld. counsel submitted that the plaintiff summoned witnesses from the concerned banks to show the sufficiency of funds and the same were at his ready disposal and the plaintiff also proved that his father had received money from LAC to the tune of ₹17,10,897/- (Rupees Seventeen lakhs ten thousand eight hundred and ninety seven only) and thus there was no dearth of money with the plaintiff.

36. Ms. Dhamija, Ld. counsel for the plaintiff, concluded her arguments by submitting that the plaintiff had always been ready and willing to perform his part of the contract. Ld. Counsel for the plaintiff submitted that the plaintiff was always ready with the balance amount of ₹12,25,000/- (Rupees Twelve lakhs and twenty five thousand only) and it was the defendant who summersaulted from her commitments to honour the terms and conditions of the contract. The defendant failed to get the suit property vacated from the tenant under whose CS No. 516839/2016 Page No.16/32 occupation the suit property was. Ld. counsel for the plaintiff reiterated that the market prices of the suit property increased day by day and therefore, the defendant back tracked from the agreement to sell and purchase.

REASONING & FINDINGS

37. I, have perused the complete case record and considered and deliberated the submissions advanced by the Ld. counsels for the parties. My issue wise findings ensue in the following paragraphs of this judgment.

Issue No. 1

Whether the suit is not maintainable in the present form against the defendant?

38. The onus to prove this issue was casted upon the defendant. The defendant did not lead any evidence on this issue. Ld. counsel for the defendant submitted that the suit is not maintainable in its present form.

39. This court observes that the defendant during her cross- examination has admitted to be the owner of the suit property. The defendant has admitted the agreement to sell dated 08.03.2013. It is further observed that that the defendant has admitted receiving an amount of ₹5,00,000/- (Rupees Five lakhs only) from the plaintiff. It is admitted by the defendant that she visited the office of Sub Registrar on 14.10.2013 with regard to signing, execution and registration of sale deed. The defendant in her written statement and in her cross-

CS No. 516839/2016 Page No.17/32

examination has stated that the sale deed was not executed as the plaintiff did not have money.

40. In view of the above observation, I hold that the suit for specific performance instituted by the plaintiff - buyer against the defendant - seller is maintainable. Thus, the issue No. 1 is decided against the defendant and in favour of the plaintiff.

Issue No. 2

Whether the suit of the plaintiff is without cause of action against the defendant?

41. The onus to prove this issue was casted upon the defendant. The defendant did not lead any evidence with regard to this issue. Ld. counsel for the defendant submitted that no cause of action has arisen in favour of the plaintiff to institute the present suit. Ld. counsel for the defendant submitted that the plaintiff was not prepared to purchase the suit property and the motive of the plaintiff was to sell the property outrightly to a third person on bayana money itself. The plaintiff's failure to not being able to find a ready buyer for the suit property on or before 07.09.2013, the plaintiff cleverly sought extension of the date of signing, registration and execution of sale deed by issuance of a notice through counsel to the defendant and thus, the extended date of 14.10.2013. It is observed that no such averment has been pleaded by the defendant in her written statement.

42. The defendant has admitted the agreement to sell dated 08.03.2013. The defendant has admitted receiving an amount of ₹5,00,000/- (Rupees Five lakhs only) from the plaintiff. It is admitted CS No. 516839/2016 Page No.18/32 by the defendant that she visited the office of Sub Registrar on 14.10.2013 with regard to signing, execution and registration of the sale deed. The defence urged by the defendant in her written statement is that the plaintiff did not sufficient funds and it was for that reason the sale deed was not executed. The dispute between the parties is with regard to the readiness and willingness of the plaintiff to pay the balance sale consideration to the defendant.

43. In view of the above observation, I hold that there exists substantial cause of action to institute a suit for specific performance by the plaintiff - buyer against the defendant - seller. Thus, the issue No. 2 is decided against the defendant and in favour of the plaintiff.

Issue No. 3

Whether the plaintiff is entitled for a decree of specific performance of agreement of sale and purchase dated 08.03.2013 against the defendant in respect of built up property bearing No. 121 - A, admeasuring 33.1/2 sq.yds. out of Khasra No. 13, situated at Village Bindapur, known as Block T, Uttam Nagar, New Delhi?

44. The onus to prove this issue was casted upon the plaintiff.

45. With respect to readiness and willingness on the part of the plaintiff to perform his obligation under the agreement to sell dated 08.03.2013, I observe that Section 16(c) of the Specific Relief Act, 1963 (hereinafter "SRA") requires that the plaintiff in a suit for specific performance must aver and prove that he has always been ready and willing and continues to be ready and willing to perform his part of the contract.

CS No. 516839/2016 Page No.19/32

46. The principle, which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance - that the plaintiff must show readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. It is true, as contemplated under Section 20 of the SRA, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirement for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance.

47. The Courts have interpreted the expression "readiness" under Section 16(c), SRA, to mean capacity to perform i.e. financial capacity of a purchaser to pay the balance consideration. Willingness is the intention to go ahead with the agreement.

48. I observe and hold that the plaintiff has though led evidence to prove his readiness and willingness i.e. his financial capacity with respect to making available the balance sale consideration of ₹12,25,000/- (Rupees Twelve lakhs twenty five thousand only) precisely. It is observed that the plaintiff did not file any income tax returns either for the year of entering the agreement to sell dated 08.03.2010 or thereafter and/or of the year when the suit was filed until the plaintiff stepped into the witness box. It is further observed that the plaintiff has failed to file any bank statement other than CS No. 516839/2016 Page No.20/32 Ex.PW-1/7, Ex.PW1/8, Ex.PW2/1, Ex.PW-3/1 and Ex.PW-3/2 and/or any certificate to substantiate and corroborate his pleadings that the plaintiff was always ready and willing to perform the contract, particularly at the time of him deposing as a witness i.e 03.06.2015. It is further submitted that other than Ex.PW-1/7, Ex.PW1/8, Ex.PW2/1, Ex.PW-3/1, Ex.PW-3/2, the plaintiff has not filed any document to corroborate his claim that he had sufficient funds with him as late as filing of the suit, and/or even of the date, when the plaintiff stepped into the witness box. This court is of the view that the balance sale consideration being ₹12,25,000/- (Rupees Twelve lakhs twenty five thousand only) and as per the case of the plaintiff, two dates are vital, which are the dates when the plaintiff visited the office of the concerned Sub Registration for the purposes of signing, execution and registration of sale deed, those dates are 07.09.2013 and 14.10.2013. It is clarified that the 07.09.2013 being a Saturday, the plaintiff visited the office of Sub Registrar on 09.09.2013, regardless, this court observes that the plaintiff has led evidence to prove his financial soundness and availability of funds on 07.09.2013 and 14.10.2013.

49. As per the evidence on record, the plaintiff on 07.09.2013 had the following amount at his disposal:

i. vide Ex.PW2/1 i.e. bank statement of the Indian Bank A/c No. 6093976864 for the relevant period 01.07.2013 to 31.10.2013, the plaintiff had ₹1,54,952/- (Rupees One lakh fifty four thousand nine hundred and fifty two only), and CS No. 516839/2016 Page No.21/32 ii. vide Ex. PW3/1 i.e. bank statement of the Indian Bank A/c No. 603102431 for the relevant period 07.09.2013 to 07.09.2013, the plaintiff had ₹4,84,184.22/- (Rupees Four lakhs eighty four thousand one hundred and eighty four and twenty two paise).

For the sake of clarity, I would like to point out that Ex. PW1/7 and Ex.PW3/1 pertain to the same bank account, and whereas, Ex.PW1/8 and Ex.PW2/1 pertain the same bank account.

50. The plaintiff father's bank account statement proved by PW3, as Ex.PW3/2 for the relevant period 27.06.2013 - 30.09.2013, reflects that on 07.09.2013 the plaintiff's father in his bank account had a sum of ₹4,37,302/- (Rupees Four lakhs thirty seven thousand three hundred and two only).

51. On careful scrutiny of the evidence led by the plaintiff, the position which comes on record is that on 07.09.2013, the plaintiff in his own bank accounts had ₹6,39,136.22/- (Rupees Six lakhs thirty nine thousand one hundred and thirty six and twenty two paise only) i.e. ₹1,54,952.00 + ₹4,84,184.22/-

52. The position as on 07.09.2013 or 09.09.2013 i.e. date when plaintiff visited the office of Sub Registrar for signing, execution and registration of sale, even on addition of money available in the bank A/c of Khem Chand, the plaintiff's father on 07.09.2013 i.e. an amount of ₹4,37,302/- (Rupees Four lakhs thirty seven thousand three hundred and two only) is that the plaintiff had ₹10,76,438.22/- (Rupees Ten lakhs seventy six thousand four hundred and thirty eight CS No. 516839/2016 Page No.22/32 and twenty two paise only) in total. Regardless, the plaintiff was short of money i.e. ₹1,48,561.78/- (Rupees One lakh forty eight thousand five hundred and sixty one and seventy eight paise only), which is the difference between the balance sale consideration of ₹12,25,000/- (Rupees Twelve lakhs twenty five thousand only) and the money proven to be at his disposal i.e. ₹10,76,438.22/- (Rupees Ten lakhs seventy six thousand four hundred and thirty eight and twenty two paise only).

53. Now coming to the second relevant date i.e. 14.10.2013, when not only the plaintiff but also the defendant were present at the office of the Sub Registrar. The reason urged by the plaintiff for the defendant not signing and executing the sale deed is that the defendant failed to get the suit property vacated from the tenant, the prices of the suit property had increased substantially and the defendant wanted to usurp the earnest money paid by the plaintiff to the defendant.

54. As per Ex.PW1/7 and Ex.PW3/1on 14.10.2013, the plaintiff had ₹4,84,127.22/- (Rupees Four lakhs eighty four thousand one hundred nd twenty seven and twenty two paise only). It is also observed that s per Ex.PW1/8 and Ex.PW2/1, the plaintiff on 14.10.2013 had 4,49,712/- (Rupees Four lakhs forty nine thousand seven hundred nd twelve only). The bank statement of the father of the plaintiff i.e. Ex.PW3/2 cannot be looked into as the same pertains to the relevant eriod of 27.06.2013 - 30.09.2013. It is observed that PW2 on 12.02.2015 stated that on 19.09.2013 an amount of ₹3,00,000/- (Rupees Three lakhs only) was transferred from Khem Chand's A/c to CS No. 516839/2016 Page No.23/32 the plaintiff's account. It is also observed that the said transaction of ₹3,00,000/- (Rupees Three lakhs only) is duly reflected in Ex.PW3/2 and Ex.PW2/1.

55. Thus, on 14.10.2013 the date when the plaintiff states that he was ready and willing to pay the balance sale consideration, as per the evidence on record, the plaintiff had a sum of ₹9,33,839.22/- (Rupees Nine lakhs thirty three thousand eight hundred and thirty nine and twenty two paise only) i.e. ₹4,84,184.22/- + ₹4,49,712.00/-.

56. The end result is that as on 14.10.2013, the plaintiff was short of money i.e. ₹2,91,160.78/- (Rupees Two lakhs ninety one thousand one hundred and sixty and seventy eight paise only), which is the difference between the balance sale consideration of ₹12,25,000/- (Rupees Twelve lakhs twenty five thousand only) and the money proven to be at his disposal i.e. ₹9,33,839.22/- (Rupees Nine lakhs thirty three thousand eight hundred and thirty nine and twenty two paise only).

57. As per the evidence led by the plaintiff what has come before this court is that not only on 07.09.2013 and/or 09.09.2013 but also on 14.10.2013, the plaintiff did not have sufficient funds to pay the balance sale consideration of ₹12,25,000/- (Rupees Twelve lakhs twenty five thousand only) to the defendant. It is observed that on both the occasions the plaintiff was short of ₹1,48,561.78/- (Rupees One lakh forty eight thousand five hundred and sixty one and seventy eight paise only) and ₹2,91,160.78/- (Rupees Two lakhs ninety one thousand one hundred and sixty and seventy eight paise only) CS No. 516839/2016 Page No.24/32 respectively. It is also not the case of the plaintiff that he had arranged for a loan or money from any other source.

58. With regard to the submissions by the Ld. counsel for the plaintiff that the plaintiff's father had received compensation of ₹17,10,897/- (Rupees Seventeen lakhs ten thousand eight hundred and ninety seven only) from a land acquisition proceedings. The plaintiff summoned PW5 to prove that his father had received compensation from LAC to the tune of ₹17,10,897/- (Rupees Seventeen lakhs ten thousand eight hundred and ninety seven only) and the plaintiff was financially sound to honour his commitment and pay the balance sale consideration of ₹12,25,000/- (Rupees Twelve lakhs twenty five thousand only). Merely proving the fact that compensation of ₹17,10,897/- (Rupees Seventeen lakhs ten thousand eight hundred and ninety seven only) had been received by the father of the plaintiff does not take the case of the plaintiff any far. It is observed that the bank statement of Khem Chand - father of the plaintiff i.e. Ex.PW3/1 only pertains to the relevant period of 27.06.2013 - 30.09.2013 and as on 30.09.2013, the same reflected the bank balance of ₹37,302/- (Rupees Thirty seven thousand three hundred and two only). It is further observed that though the plaintiff's claim is that his father had sufficient money but this court cannot lose sight of the fact that the father of the plaintiff namely, Khem Chand never appeared before the court to depose in favour of the plaintiff. Thus, the claim of the plaintiff that he had adequate money at his disposal to pay the balance sale consideration is not convincing.

CS No. 516839/2016 Page No.25/32

59. The very reason that the submissions advanced by the Ld. counsel for the plaintiff that the plaintiff was ready and willing to pay the balance sale consideration falls flat on its face is that the plaintiff only lead evidence to prove his readiness and willingness on 07.09.2013/09.09.2013 and 14.10.2013. Whereas, the position in law is well settled that in a suit for specific performance, the contract between the parties is treated as still subsisting. Thus, what is of primordial importance in a suit for specific performance for a plaintiff to not only aver and prove his readiness and willingness on the relevant date(s) as per the contract, but also at the institution of the suit and the plaintiff is required to prove continuous readiness and willingness to perform the contract on his part. Failure to make good that averments bring with it and leads to the inevitable dismissal of the suit. I, place reliance on the judgment, Aniglase Yohannan v. Ramlatha (2005) 7 SCC 534 [See pp 7 - 10, p. 537 - 540] cited by the plaintiff, wherein the Apex Court has culled out the legal principle behind Section 16(c) of the SRA. To test whether a plaintiff has performed his obligations, one has to see the pith and substance of a plea. As per the ratio of Aniglase Yohannan v. Ramlatha (supra), the plaintiff was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. In the present case, the plaintiff has miserably failed to prove his readiness and willing not only on the date of the contract but also at the time of the hearing.

CS No. 516839/2016 Page No.26/32

60. Assuming, for the sake of arguments, the submissions advanced by the Ld. counsel for the plaintiff that it is the defendant who was not ready, as the suit property was under the occupation of the defendant's tenant and as per the agreement to sell between the parties the defendant ought to have handover the physical and vacant possession of the suit property to the plaintiff. It is observed that the submissions advanced by the Ld. counsel for the plaintiff that with suit property being never vacant, the plaintiff did not pay the balance sale consideration, regardless of the same being available with him and the plaintiff was forever ready to sign, execute and register the sale deed, does not take the case of the plaintiff any far. It is apparent nay evidence from the findings in the preceding paragraphs that the plaintiff was short of funds on both the dates 07.09.2013/09.09.2013 and 14.10.2013.

61. I am of the view that merely stating in the legal notices or averring in the plaint that the plaintiff is ready to perform his part of the contract is neither here nor there inasmuch as the issue of readiness is a crucial aspect and pivot on which the decree of specific performance hangs. It is for this reason that the aspect of readiness requires clear - cut evidence, which can be believed by the Court, the plaintiff proves his financial capacity. It is observed that the plaintiff failed to prove his financial capacity and sufficiency with regard to the balance sale consideration.

62. I, now place reliance on the judgment passed by the Hon'ble High Court of Delhi in the case of Shri Jinesh Kumar Jain v. Smt. CS No. 516839/2016 Page No.27/32 Iris Paintal & Ors. - CS(OS) No. 1154/1989 decided on 10.07.2012. His Lordship, Valmiki J. Mehta, J., eruditely culled out and applied the legal principle with regard to the readiness of a plaintiff, wherein the plaintiff had failed to prove his readiness and willingness, as the plaintiff had not filed any income tax return, statement of bank accounts to show the sufficiency and availability of funds. The bank statements proved by the plaintiff have failed to show that the plaintiff had adequate funds at his disposal to pay the balance sale consideration to the defendant.

63. On applying the ratio of Shri Jinesh Kumar Jain v. Smt. Iris Paintal & Ors. (supra), I hold that the plaintiff has failed to comply with the requirement of Section 16(c) of the Specific Relief Act, 1963, and therefore, the plaintiff is not entitled to the relief of specific performance.

64. Section 20 of the Specific Performance Act,1963 provides that the relief of specific performance is a discretionary relief. I am of the view that the suit for specific performance of the plaintiff must also fail, as the plaintiff has failed to show and proved that the plaintiff had done substaintial act or suffered losses in consequence of a contract capable of specific performance - vide Section 20(3) of the Specific Relief Act, 1963. The plaintiff had paid ₹5,00,000/- (Rupees Five lakhs only) to the defendant out of the total sale consideration of ₹17,25,000/- (Rupees Seventeen lakh twenty five thousand only) which is 28.98% of the total sale consideration. It is observed that the CS No. 516839/2016 Page No.28/32 plaintiff fail to even make substaintial payment to seek specific performance of the contract.

65. Accordingly, the issue No. 1 is decided against the plaintiff and in favour of the defendant.

66. With the plaintiff not being entitled to the discretionary relief of specific performance, where do we go from here. I, would like to add it is not out of place to mention herein that Section 21 and 22 of Specific Relief Act, 1963, does contemplate different scenarios such as compensation, refund of earnest money as alternative relief and it is for this reason it provides amendment at any stage of the proceedings. I, must note that the plaintiff should have been cautious enough to claim the alternative relief of damages/compensation and which a prospective purchaser is always entitled to. Unfortunately, the present suit is a suit for specific performance and the plaintiff not even at the stage of the final arguments urged that the plaintiff intends to amend the plaint and seek alternative relief of damages/compensation.

67. I, place reliance upon the judgments passed by Hon'ble High Court of Delhi in Ashok Kumar Arora v. D.S. Sodhi - RFA No. 152/2013 decided on 21.03.2013 and Shri Jinesh Kumar Jain v. Smt. Iris Paintal & Ors. - CS(OS) No. 1154/1989 decided on 10.07.2012.

68. His Lordship, Valmiki J. Mehta, J., in Shri Jinesh Kumar Jain v. Smt. Iris Paintal & Ors. - CS(OS) No. 1154/1989 decided on 10.07.2012, has found a middle path for such cases. The relevant paragraphs of Shri Jinesh Kumar Jain (supra) are reproduced as under:

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"19. At this stage, I must note that actually the plaintiff should have been cautious enough to claim the alternative relief of damages/compensation and which a prospective purchaser is always entitled to. Unfortunately, the subject suit is only a suit for specific performance in which there is no claim of the alternative relief of compensation/damages. Not only is there no case set out with respect to the claim of damages/compensation, the plaintiff has led no evidence whatsoever as to difference in market price of the subject property and equivalent properties on the date of breach, so that the Court could have awarded appropriate damages to the plaintiff, in case, this Court came to the conclusion that though the plaintiff was not entitled to specific performance, but he was entitled to damages/compensation because it is the defendants who are guilty of breach of contract.
20. The question is therefore what ought to be done. Though this has not been at all argued on behalf of the plaintiff, I think in exercise of my power under Order 7 Rule 7 CPC I can always grant a lesser relief or an appropriate relief as arising from the facts and circumstances of the case. It cannot be disputed that the defendants have received a sum of 4,50,000/-under the agreement to sell dated 26.9.1988. Considering all the facts of the present case as detailed above, I consider it fit that though an agreement itself was void under the 1972 Act, the plaintiff should be entitled to refund of the amount of 4,50,000/-alongwith the interest thereon at 18% per annum simple pendente lite and future till realization.
21. In view of the above discussion, suit of the plaintiff claiming the relief of specific performance CS No. 516839/2016 Page No.30/32 is dismissed. The plaintiff however will be entitled to a money decree for a sum of `4,50,000/alongwith pendente lite and future interest at 18% per annum simple till realization.
22. Parties are left to bear their own costs. Decree sheet be prepared."

69. I, also place reliance upon the latest judgment of the Hon'ble High Court of Delhi in Anuja Sharma v. Memo Devi & Ors. - RFA No. 157/2019 decided on 22.02.2019, wherein the Hon'ble High Court upheld the findings and reasoning of the trial court applying the provision of Order VII, Rule 7, CPC, as this provision entitles every court, depending on the facts of each case, to give reliefs which otherwise arise from the position of the facts as found on record in terms of the pleadings and evidence in the case.

70. This court cannot lose sight that the plaintiff paid an amount of ₹5,00,000/- (Rupees Five lakhs only) to the defendant in March 2013. The defendant had been in possession of the suit property throughout.

71. I, deem appropriate to exercise the power vested in this Court under Order VII, Rule 7, CPC. The Court can always grant a lesser relief or an appropriate relief as arising from the facts and circumstances of the case. It cannot be disputed that the defendant received an amount of ₹5,00,000/- (Rupees Five lakhs only) under the agreement to sell dated 08.03.2013. The defendant during her cross- examination admitted that ₹2,50,000/- (Rupees Two lakhs and fifty thousand only) was the earnest money and the remaining ₹2,50,000/-

CS No. 516839/2016 Page No.31/32

(Rupees Two lakhs and fifty thousand only) was paid to her so that the plaintiff could get the tenant staying in the suit property evicted from the same. Given due weightage to all the facts and circumstances of the present case, I consider it appropriate that the plaintiff should be entitled to refund of ₹4,50,000/- (Rupees Four lakhs and fifty thousand only) alongwith simple interest @9%p.a. pendente lite from the date of the institution of the suit until the date of actual realization. DECISION

72. In light of the above findings and discussions, the suit of the plaintiff seeking specific performance is dismissed. However, the plaintiff will be entitled to a money decree for a sum of ₹4,50,000/- (Rupees Four lakhs and fifty thousand only) alongwith simple interest @9%p.a. pendente lite and future till realization. The interim order dated 10.05.2014 is vacated. All interim applications, if any, are dismissed.

73. Parties to bear their own costs. Decree sheet be prepared, accordingly.

74. File be consigned to record room only after due compliance and necessary action.

Digitally signed by HARGURVARINDER 
                                        HARGURVARINDER         SINGH JAGGI
                                        SINGH JAGGI
                                                               Date: 2019.04.26
                                                               16:04:24 +0530
Pronounced in the open court          (HARGURVARINDER S. JAGGI)
on 26.04.2019                         Addl. District Judge-02 South West
                                                Dwarka Courts Complex
                                                               New Delhi



CS No. 516839/2016                                              Page No.32/32