Delhi District Court
Sh. Upinder Singh vs Sh. Lal Chand on 6 February, 2017
IN THE COURT OF SH. MAHAVIR SINGHAL
ADDITIONAL DISTRICT JUDGE (WEST)
TIS HAZARI : DELHI
CIV DJ No. 609051/16
SH. UPINDER SINGH
S/o Dr. Nawab Singh
R/o 125, Shapur Jat,
New Delhi110016.
......PLAINTIFF
VERSUS
SH. LAL CHAND
(THROUGH LRs)
1. PRATAP SINGH RANA
2. SH. BHAWAN SINGH RANA
3. SH. PAWAN KUMAR RANA
ALL sons & R/o Village Bijwasan,
New Delhi.
....DEFENDANTS
Page No. 1/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16
Date of filing the suit : 17.08.1995
Date of reserving the Judgment/Order : 30.01.2017
Date of passing the Judgment/Order : 06.02.2017
JUDGMENT: The plaintiff has filed the suit for specific performance of agreement to sell dated 29th March, 1994 relating to land bearing Khasra No. 116/9/1 (2 Bigha 18 Biswa) and 8/1 (4 Bigha 9 Biswa), measuring 7 Bigha 7 Biswa in village Bijwasan, TehsilMahrauli, New Delhi, stating therein that the defendant represented himself to be the absolute owner/bhumidar and in possession of agricultural land bearing Khasra No. 116/9/1 (2 Bigha 18 Biswa) and 8/1 (4 Bigha 9 Biswa), measuring 7 Bigha 7 Biswa in village Bijwasan, TehsilMahrauli, New Delhi. 2 It is further stated that the defendant agreed to sell aforesaid agricultural land to plaintiff for a total consideration of Rs. 7,05,000/, vide Agreement to Sell executed at Delhi on 29th March, 1994 between the parties. It is stated further that as per the terms of agreement to sell between the parties, the plaintiff paid a sum of Rs. 1,00,000/ to the defendant, vide cheque No. 290991 Page No. 2/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 dated 19.05.1994, drawn on UCO Bank, Shahpur Jat, New Delhi. 3 It is further stated that the balance consideration of Rs. 6,05,000/ was agreed to be paid by plaintiff to defendant, at the time of registration and execution of sale deed in favour of plaintiff. It is stated further that the defendant handed over the vacant possession of land to plaintiff at the time of signing the Agreement to Sell against part consideration received by him as part performance of the Agreement to Sell U/S 53A of Transfer of Property Act, by virtue of separate possession letter.
4 It is further stated that the defendant under the terms of the aforementioned Agreement to Sell, was also required to obtain no objection certificate from Land Acquisition Collector. It is stated further that the defendant was also required to obtain Income Tax Clearance Certificate from Income Tax Department, which is a precondition for registration of sale deed. 5 It is further stated that subsequent to signing of the Agreement to Sell, the plaintiff asked the defendant number of times about the status of his obtaining the permission from Land Acquisition Collector and from Income Tax Authorities, Page No. 3/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 but the defendant was not responding to the various calls made by plaintiff in this regard.
6 It is further stated that the defendant was further informed by the plaintiff that he was ready and willing to pay the balance consideration to defendant in consideration of defendant executing the necessary sale deed in favour of plaintiff. It is stated further, however, the defendant failed to respond to plaintiff and not show any inclination to execute the necessary sale deed in favour of plaintiff. It is stated further that in fact, the defendant not even intimate plaintiff whether the necessary sale permission from Land Acquisition Collector and Income Tax Clearance Certificate, as per the requirements of Income Tax Act, had been obtained by defendant or not. It is stated further that the defendant was to execute and register the sale deed on receiving the balance consideration and to have the sale deed executed and despite the willingness of the plaintiff to pay the balance consideration, the defendant did not obtain the necessary permissions for executing the sale deed in favour of plaintiff.
Page No. 4/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 7 It is further stated that the plaintiff was and is always ready and willing to tender the balance consideration amount as agreed in the Agreement to Sell, referred above, and even now offers to pay the balance consideration amount to defendant and if he obtains the requisite permission and registers sale deed in favour of plaintiff. It is stated further that plaintiff was and has always been all through out and is still ready and willing to perform his part of contract. 8 It is further stated that the defendant, in complete breach and repudiation of the agreement to sell between the parties, has failed to perform his part of the agreement malafide, wrongly and deliberately with ulterior motive and object of defeating the rights existing in favour of the plaintiff under the said agreement. It is stated further that defendant refused to take necessary steps to execute the sale deed and to get the sale deed registered in favour of plaintiff in respect of land in question for the obvious reason that the prices of the land in Delhi have increased manifold.
9 It is further stated that as per the terms of the Agreement to Sell Page No. 5/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 executed between the parties on 29th March, 1994, the plaintiff is entitled to specific performance of the agreement entered into between the parties. It is stated further that the plaintiff has been making various requests to defendant for specific performance of the agreement in question from time to time, but to no effect, hence, plaintiff filed the present suit.
10 Defendant in his WS has taken various preliminary objections, mainly being that the suit agreement is sham document and signed by the defendant on the suggestions and representation of Sh. R.K. Singh on behalf of the plaintiff for the purpose of obtaining no objection certificate mentioning the less consideration in the form of no objection certificate and in the sale deed and hence, the said agreement is not liable to be enforced. It is stated further that the agreement in question is opposed to law and public policy. It is stated further that the agreement, apart from not evidencing the real bargain between the parties, was signed with a view to defeat the provisions of law. It is stated further that the transaction in question was really between Sh. R.K. Singh and the defendant. It is stated further that the advance amounts were also paid by Sh. R.K. Singh. It is Page No. 6/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 stated further that at all time, Sh. R.K. Singh had represented himself to be the real buyer. It is stated further that the agreement, therefore, is hit by the provisions of the Benami Transaction Prohibition Act, 1988. It is stated further that the suit agreement is hit by the provisions of Section 33 of the Delhi Land Reforms Act, 1954 and the same is illegal, void and not enforceable in law. It is stated further that the actual and physical possession of the land in questions remains with the defendant and no possession in fact handed over to the plaintiff. It is stated further that the possession letter was signed by the defendant in good faith on the representation of Sh. R.K. Singh.
11 Replication has been filed for plaintiff, wherein, all the contents and averments made in the plaint by plaintiff, have been reiterated. 12 In WS filed by the LRs of the defendant, various preliminary objections have been taken by them, mainly stating therein that the suit agreement entered into by the father of the defendant with the plaintiff and referred to and relied upon was not intended to be operative and binding between the parties and hence, same is not enforceable in law and therefore, the suit is liable to be dismissed Page No. 7/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 on this ground alone. It is stated further that the suit agreement as well as letter of possession are the shame documents. It is stated further that the signatures, on the above said documents, of the defendant were obtained by the playing fraud and misrepresentations by one Sh. R.K. Singh, by misguiding them on the pretext that the above said documents required only for the purpose of obtaining the necessary and requisite permission mentioning the considerations less than agreed between the parties in the registered document i.e. sale deed. It is stated further that thus, the suit agreement is not liable to be enforced either against the father of the legal heirs or against the defendant. It is stated further that the actual physical possession of the suit land remained with the father of the defendants and after his death, with the defendants from the date of the agreement till date. It is stated further that the father of the defendant and the defendants have been in actual physical and cultivatory possession of the same. It is stated further that one Sh. R.K. Singh, in the first week of October, 1989 approached the father of the defendant and introduced himself as a property dealer engaged in the business of the real estate and desired to purchase the suit property. It is stated further that the negotiations Page No. 8/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 between Sh. R.K. Singh and the father of the defendants/LRs, it was agreed to sell agricultural land total admeasuring 12 bighas and 10 biswas, situated in the revenue estate of village Bijwasan, but total sale consideration, agreed upon, was Rs. 25,39,062/. It is stated further that the said R.K. Singh after one week brought a typed agreement in the name of his son namely Sh. Raghuvinder Singh R/o 118, Shahpur Jat, New Delhi. It is stated further that on inquiry, Sh. R.K. Singh told the father of the defendant and the defendants that he wanted to purchase the above said land in the name of his son. It is stated further that on 14 th October, 1989, the said Sh. R.K. Singh took the thumb impression of the father of the defendant on the written agreement dated 14th October, 1989 and on the same day, he paid Rs. 2 lacs as an advance and earnest money to the father of the defendant. It is stated further that approximately after three months from the date of agreement 14th October, 1989, Sh R.K. Singh again approached the father of the defendant with some printed forms and asked the father of the defendant to sign the same, as the same were required to be submitted before competent authority for obtaining the necessary and requisite permissions for registration of the sale deed in favour of his Page No. 9/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 son. It is stated further that the said printed forms were not filled up with the necessary information and the same were completely blank forms. It is stated further that the father of the defendant and defendants requested and insisted upon Sh. R.K. Singh to fill up the entries against each columns of the form before obtaining the signature of the father of the defendants, but Sh. R.K. Singh insisted and recalcitrate to obtain the signature on the blank forms. It is stated further that in the above said all offers, the father of the defendants refused to sign the said printed forms. It is stated further that on refusal to sign the documents, the said Sh. R.K. Singh became angry and went away with the warning that he would see the father of the defendants in Court. It is stated further that after some time, the father of the defendants received the summons of the suit from the Hon'ble High Court bearing Suit No. 138/93, titled as "Mr. Raghuvinder Singh Vs Sh. Lal Chand" on 22 nd April, 1993.
13 Replication has been filed for plaintiff to the WS of LRs of defendant, wherein, all the contents and averments made in the plaint by plaintiff, have been reiterated.
Page No. 10/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 14 From the pleadings of the parties, vide ordersheet dated 02.05.2012, following issues were framed by Ld. Predecessor:
1. Whether the agreement to sell in question was in fact executed between the plaintiff and one R.K. Singh and it was R.K. Singh who had paid advance amount to the defendant? If so, whether the agreement is hit by the provisions of the Benami Transaction Prohibition Act, 1988? OPD
2. Whether the agreement in question is opposed to law and public policy and signed with a view to defeat the provisions of law as pleaded in the written statement? OPD
3. Whether the agreement in question is hit by the provisions of Section 33 of the Delhi Land Reforms Act 1954 and is illegal, void and not enforceable in law? OPD
4. Whether the possession letters were signed by the defendant in good faith on the representation of Sh. R.K. Singh? OPD
5. Whether on 18.03.1994 the said R.K. Singh came to the defendant in suit no. 138/1993 pending in Hon'ble Delhi High Court and suggested a new proposal that some other person is interested in purchasing the suit property for consideration of Rs. 25 Lac per acre but for the purpose of obtaining the Page No. 11/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 permission under the Income Tax Act mentioning of the consideration of the sale deeds to be less than Rs. 10 Lac? If so, whether on 29.03.1994 the said R.K. Singh came to the defendant with two new typed agreements in the name of the plaintiff and told the defendant that the plaintiff was the new purchaser and the agreement in question was only for the purpose of obtaining the requisite permission under the Delhi Lands Restrictions on Transfer Act and U/S 34 of the Income Tax Act? If so, its effect? OPD
6. Whether the thumb impression of the defendant on the agreement dated 08.04.1994 had been taken by R.K. Singh on 29.03.1994? OPD
7. Whether the plaintiff is not entitled to the relief, prayed for?
OPD
8. Relief.
15 In PE, plaintiff examined himself as PW1 on his affidavit Ex. PW 1/A. He relied upon following documents, as under:
(i) Ex. PW1/1 - Plaint.
(ii) Ex. DW1/P1 to Ex. DW1/P2 - Agreements and Receiptscum Page No. 12/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 Possession Letters, dated 29.03.1994.
16 In DE, Mr. Pratap Singh son of Late Sh. Lal Chand examined himself as DW1 on his affidavit Ex. DW1/A. Sh. Satish Kumar Rana was examined as DW2 on his affidavit Ex. DW2/A. Sh. Sushil Kumar Kala, UDC From RKD Branch, Hon'ble High Court of Delhi has been examined as DW3 as summoned witness. Sh. Krishan Bir, Patwari, Bijwasan, District SouthWest, Delhi has been examined as DW4. They relied upon following documents, as under:
(i) Ex. DW1/1 - Agreement to sell and receipt, dated 14.10.1989.
(ii) Ex. DW1/2 - Certified copy of the Registered Karwahi of village Bijwasan holding in the name of the father of the deponent Rana issued on 01.10.2004 and 28.07.2000.
(iii) Ex. DW1/3 - Original copy of the Registered Karwahi which shows that the holding belong to the father of deponent has been mutated in the name of Sh. Pratap Singh Rana.
(iv) Ex. DW1/4 - Certified Khasra Girdawaries for the year 199293, Page No. 13/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 199394 and 199495.
(v) MarkX - Copy of agreement to sell dated 14.10.1998.
(vi) Ex. DW4/1 - Copy of Khasra Girdawari for the year 201112 pertaining to land bearing Khasra NO. 91/11 min, 12, 13, 14, 92/15/3, 105/22/2, 116/2, 8/1, 8/2, 9/1, 219 min, 220 min, 221 min, 281/1, 685 & 691 of Village Bijwasan.
(vii) Ex. DW4/2 - Copy of Registered Karyawahi of Village Bijwasan bearing Haqdar No. 337, pertaining to the above said land. 17 Final arguments have been heard from Sh. Pooran Singh Mahar, Ld. Counsel for plaintiff and also from Sh. R.S. Aggarwal, Ld. Counsel for LRs of defendant. Written arguments have also been filed for both the parties. 18 During final arguments, Ld. Counsel for plaintiff has relied upon following judgments:
(i) "Raghunath Rai and another Vs Jageshwar Prashad Sharma & another", AIR 1999 DELHI 383, passed by Hon'ble High Court of Delhi.
Page No. 14/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16
(ii) "Atma Ram Properties (P) Ltd. Vs Prem Nath Motors (P) Ltd.", 133 (2006) DLT 668, passed Hon'ble High Court of Delhi.
(iii) "Sant Lal Vs Shyam Dhawan", AIR 1986 DELHI 275, passed by Hon'ble High Court of Delhi.
(iv) "Rajinder Singh & Ors. Vs Government of the Natioinal Capital Territory of Delhi & Ors.", 2007 AD (DELHI) 659, passed by Hon'ble High Court of Delhi.
(v) "P. Lakshmi Ammal Vs S. Lakshmi Ammal & Ors.", AIR 1991 MADRAS 137, passed by Hon'ble Madras High Court.
I have gone through the record, including also the written arguments. Carefully. In written arguments, defendants have made mention of some judgments.
DECISION ON ISSUE No. 1 : 19 Issue No. 1 is "Whether the agreement to sell in question was in fact executed between the plaintiff and one R.K. Singh and it was R.K. Singh who had Page No. 15/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 paid advance amount to the defendant? If so, whether the agreement is hit by the provisions of the Benami Transaction Prohibition Act, 1988?" The onus to prove this issue is on the defendant.
20 It is worth noting that on the face of it, agreement to sell Ex. DW1/P2, was executed between Sh. Lal Chand (original defendant in the present case) and Sh. Upinder Singh (plaintiff in the present case). Thus, the agreement to sell was not executed between one plaintiff and one Sh. R.K. Singh. Since, the said Sh. R.K. Singh was not party to the agreement to sell in question, it is immaterial whether Sh. R.K. Singh or Sh. Upinder Singh paid advance amount to defendant. 21 It is worth noting that Sh. R.K. Singh has not been examined by either of the parties as a witness. Therefore, it cannot be presumed or inferred that the transaction was Benami Transaction. Moreover, in agreement to sell Ex. DW1/P2 dated 29.03.1994, it is mentioned clearly that Rs. 1,00,000/ is being paid by second party to first party vide cheque no. 290991 dated 19.05.1994, drawn on UCO Bank, Shahpur Jat branch, Delhi, in favour of first party at the time of signing of this Page No. 16/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 agreement to sell. Thus, agreement to sell is not hit by the provisions of Benami Transaction (Prohibition) Act, 1988. Hence, this issue is decided in favour of plaintiff and against defendant.
DECISION ON ISSUES No. 2 AND 3: 22 These issues are taken up together as they are interconnected. It is mentioned that in written submissions, the defendant has mentioned issues no. 2 and 3 together. Issue No. 2 is "Whether the agreement in question is opposed to law and public policy and signed with a view to defeat the provisions of law as pleaded in the written statement? and Issue No. 3 is "Whether the agreement in question is hit by the provisions of Section 33 of the Delhi Land Reforms Act 1954 and is illegal, void and not enforceable in law?" The onus to prove these issues is on the defendant.
23 Section 31 of The Delhi Land Reforms Act, 1954 provides as under: "31. Interest of a Bhumidar to be transferable The interest of a Bhumidar shall be transferable subject to the conditions hereinafter contained."
Page No. 17/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 24 Section 33 of The Delhi Land Reforms Act, 1954 provides as under: "33. Restrictions on transfers by a Bhumidar - (1) No Bhumidar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may, by notification in the Official Gazette, specify, where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union Territory of Delhi.
Provided that the Chief Commissioner may exempt from the operation of this section, the transfer of any land made before the 1st day of December, 1958, if the land covered by such transfer does not exceed one acre in area and is used or intended to be used for purpose other than those mentioned in clause (13) of section 3.
(2) Nothing contained in subsection (1) preclude the transfer of land by a Bhumidar who holds less than eight standard acres of land, if such transfer is of the entire land held by him:
Provided that such Bhumidar may transfer a part of such land to any religious or charitable institution or other person referred to in subsection (1).
Explanation - For the purposes of this section, a Page No. 18/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 religious or charitable institution shall mean an institution established for a religious purpose or a charitable purpose, as the case may be."
25 It is worth noting that as per Clause 11 of the Agreement to Sell Ex.
DW1/P2 dated 29.03.1994, first party i.e. Sh. Lal Chand (original defendant of the present case) assured the second party Sh. Upinder Singh (plaintiff of the present case) that there was no impediment or controversy with regard to the transfer of the land under any provisions of Delhi Land Reforms Act, including Section 33 of Delhi Land Reforms Act.
26 In "Rajender Mohan Rana & Ors. Vs Prem Prakash Chaudahry & Ors.", decided by Hon'ble Division Bench of Hon'ble Delhi High Court on 01.09.2011 in para no. 13 quoted with approval interalia the following observation of Hon'ble Single Judge, as under: "19.........The purport of Section 33 is is to prevent fragmentation of holdings to uneconomical sizes.
There is nothing preventing continuance of holdings less than minimum prescribed or transfer where holding is in any case less than that prescribed.
Practical experience shows that transfers resulting in transferor being left with less than that prescribed, are Page No. 19/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 also effected by simultaneously transferring the balance to a nominees/family member of the transferor."
27 The terms uneconomic holding has been defined in Section 3 (22) of Delhi Land Reforms Act, 1954, as under: "22. "uneconomic holding" means a holding of less than eight standard acres which, according to local conditions, is not sufficient to maintain a family unit consisting of a person, his minor children, his wife, or her husband, as the case may be, and if the person himself is a minor, his father and mother."
28 In the present case, there was not case of original defendant Late Sh. Lal Chand and there is no case of Legal Heirs of the said defendant Sh. Lal Chand that after the sale/sales of the suit property, the remaining portion in the hands of the said Sh. Lal Chand would be uneconomic holding. Thus, applicability of Section 33 (2) of Delhi Land Reforms Act, 1954 has not been proved by defendant on record. Hence, these issues i.e. issues no. 2 and 3 are decided in favour of plaintiff and against defendant/Legal Heirs.
Page No. 20/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 DECISION ON ISSUE No. 4 : 29 Issue No. 4 is " Whether the possession letters were signed by the defendant in good faith on the representation of Sh. R.K. Singh? " The onus to prove this issue is on the defendant.
30 It is worth noting that Ex. DW1/P2 is ReceiptscumPossession Letter. The same is signed by plaintiff Sh. Upinder Singh and the same bears also the thumb impression of defendant Sh. Lal Chand. Moreover, the same bears the signatures of three witnesses namely Sh. Pratap Singh, Sh. Bhawan Singh and Sh. Pawan Kumar. It is mentioned in this document Ex. DW1/P2 that Sh. Lal Chand handed over vacant possession of the property to Sh. Upinder Singh at the time of signing of agreement to sell. This ReceiptscumPossession Letter was executed on 29.03.1994.
31 It is worth noting that neither plaintiff nor defendant nor legal heirs of defendant have examined the said Sh. R.K. Singh. It is the rule of evidence that parties are required to bring on record the best available evidence. Since, the said Sh. R.K. Singh has not been examined by either of the parties, it is not proved on Page No. 21/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 record by defendant that possession letters were signed by the defendant while on representation of Sh. R.K. Singh. Accordingly, this issue is decided in favour of plaintiff and against the defendant/legal hears of deceased defendant Sh. Lal Chand.
DECISION ON ISSUE No. 5 : 32 Issue No. 5 is " Whether on 18.03.1994 the said R.K. Singh came to the defendant in suit no. 138/1993 pending in Hon'ble Delhi High Court and suggested a new proposal that some other person is interested in purchasing the suit property for consideration of Rs. 25 Lac per acre but for the purpose of obtaining the permission under the Income Tax Act mentioning of the consideration of the sale deeds to be less than Rs. 10 Lac? If so, whether on 29.03.1994 the said R.K. Singh came to the defendant with two new typed agreements in the name of the plaintiff and told the defendant that the plaintiff was the new purchaser and the agreement in question was only for the purpose of obtaining the requisite permission under the Delhi Lands Restrictions on Transfer Act and U/S 34 of the Income Tax Act? If so, its effect?" The onus to prove this issue is on the defendant. 33 It is worth noting that neither plaintiff nor defendant has examined Sh. Page No. 22/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 R.K. Singh in evidence. It is fundamental rule of evidence that parties are required to bring on record best available evidence. Since, Sh. R.K. Singh has not been examined by either of the parties, it is held that defendant has failed to prove the facts mentioned in the said issue. Accordingly, this issue is decided in favour of plaintiff and against defendant/legal heirs of deceased defendant Sh. Lal Chand.
DECISION ON ISSUE No. 6 : 34 Issue No. 6 is " Whether the thumb impression of the defendant on the agreement dated 08.04.1994 had been taken by R.K. Singh on 29.03.1994?" The onus to prove this issue is on the defendant.
35 It is worth noting that in the present case, agreement to sell is dated 29.03.1994. It is worth noting that agreement to sell in the connected suit is dated 08.04.1994. Therefore, this issue is not relevant in the present suit. Same is decided accordingly.
DECISION ON ISSUE No. 7 : 36 Issue No. 7 is " Whether the plaintiff is not entitled to the relief, prayed for?" The onus to prove this issue is on the defendant. Page No. 23/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 37 It is the case of defendant that plaintiff is not entitled to the relief prayed for as he was not ready and willing to make the payment of the balance amount. In "Sant Lal Vs Shyam Dhawan", AIR 1986 DELHI 275, Hon'ble Delhi High Court has observed as under: "The requirement of law is simply the continuous readiness and willingness on the part of the plaintiff to perform his part of the contract throughout from the commencement of the agreement to sell till the hearing of the suit but that does not mean that the plaintiff was expected to carry on the cash balance price of Rs. 1,45,000/ in his pocket during all the period, but what he was to show was simply his continuous readiness and willingness to pay that balance price only as and when the appropriate occasion for the same was to arrive. The expression "readiness and willingness" cannot be treated as a strait jacket formula and has to be determined from the totality of facts and circumstances relevant to the case and also to the conduct of the party concerned and in order to be real has to be backed by the capacity to do so."
38 It is worth noting that in para 5 of agreement to sell Ex. DW1/P2 , first party (defendant in the present suit) was required to obtain permission from Page No. 24/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 Land Acquisition Collector or any other authority. Moreover, as per para no. 6 of the said document, first party (defendant in the present suit) was required to obtain the Income Tax Clearance Certificate from the Income Tax Authorities in Form 34 A Section 230A of Income Tax Act. In that para, first party (defendant in the present suit) undertook to obtain all such permissions from authorities concerned for sale/transfer of the agricultural land in favour of second party and/or his nominee(s).
39 It is worth noting that there is no case of defendant/LRs that required permissions from concerned authorities have been obtained. In such a situation, defendant/LRs cannot take the plea that plaintiff was not ready and willing to perform his party regarding payment. It is also worth noting that as per the agreement to sell Ex. DW1/P2, balance payment was to be made at the time of execution/registration of sale deed.
40 In view of above discussion, it is held that defendant/legal heirs has/have failed to prove on record that the plaintiff is not entitled to the relief, prayed for. Accordingly, this issue is decided in favour of plaintiff and against Page No. 25/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 defendant/legal heirs.
DECISION ON ISSUE No. 8 : RELIEF: 41 Para No. 7 of Agreement to Sell Ex. DW1/P2 provides as under: "7. That the First Party shall get the aforesaid clearances/permissions from the competent authorities and said agricultural land duly transferred in the name of the Second Party or his nominee(s) by executing the Sale Deed in favour of the Second Party within two months from the date of signing of this Agreement to Sell. It will be the responsibility of the Second Party to prepare necessary documentation entirely at his own cost." 42 Further, Para No. 13 of the said Agreement to Sell Ex. DW1/P2 provides as under: "13. That if the First Party infringes the terms and conditions of this Agreement to Sell, then the Second Party shall be entitled to get the sale deed registered in the office of SubRegistrar, Delhi, of the said agricultural land, through the Court of Law, at the cost and expense of the First Party."
43 Since, the first party i.e. defendant Sh. Lal Chand (or defendant Sh. Page No. 26/27 Upinder Singh Vs Lal Chand (Through LRs) CIV DJ No. 609051/16 Lal Chand through Legal Heirs) has failed to perform his obligation, defendant/LRs is/are directed to perform the said responsibility as contained in para no. 7 of the Agreement to Sell Ex. DW1/P2 dated 29.03.1994, within two months from today i.e. 06.02.2017, on payment of the balance amount as per the said document. 44 Section 35 (2) of Code of Civil Procedure, 1908 provides as under: "Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing." Thus, normally costs follow event. Accordingly, costs are awarded in favour of plaintiff and against defendant/LRs of defendant Late Sh. Lal Chand.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
(MAHAVIR SINGHAL)
Announced in Open Court ADDITIONAL DISTRICT JUDGE
today i.e. 06.02.2017 WEST/DELHI
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