Delhi District Court
Sanjay Kumar vs Khub Chand Aggarwala on 27 September, 2023
1
IN THE COURT OF MS.VEENA RANI :ADJ-06, WEST
DISTRICT, TIS HAZARI COURTS, DELHI
CNR No:DLWTO1-000123-2008
Suit No:611616/2016
Original date of institution 22-09-2008
Shri Sanjay Kumar
S/o Sh. Hukam Chand Khattar
R/o WZ-2138, Rani Bagh,
Delhi-110034 .....Plaintiff
Versus
1. Sh. Khub Chand Aggarwal/Garodia
S/o Late Sh. Gulab Chand
Since deceased through his LR's
(a) Sh. Shankar Lal Garodia
S/o Late Sh. Khub chand Aggarwal
R/o Flat No.1D, Nirmal Sagar Apartment
Block C, 1st Floor, Old Post office Lane,
A.K. Azad Road, Gauhati, Assam-78008
(b) Sh. Binod Kumar Garodia
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand
Aggarwal(through LRs) & Ors
2
S/o Late Sh. Khub Chand Aggarwal
(c) Sh.Sanjay Garodia
S/o Late Sh. Khub Chand Aggarwal
(d) Sh. Ajay Kumar Garodia
S/o Late Sh. Khub Chand Aggarwal
(e) Sh. Vijay Kumar Garodia
S/o Late Sh. Khub chand Aggarwal
(f) Smt. Sarda Devi Jadani
W/o Sh. Satyanarai Jadani
D/o Late Sh. Khub chand Aggarwal
(g) Smt. Saroj Devi Poddar
W/o Sh. Ajay Kumar Poddar
D/o Late Sh. Khub Chand Aggarwal
(h) Smt. Sunita Devi Bhartia
W/o Sh. Ramesh Kumar Bhartia,
D/o Late Sh. Khub chand Aggarwal
(I) Smt. Kanhan Devi Jalan
W/o Sh. Manoj Kumar Jalan
D/o Late Sh. Khub Chand Aggarwal
(j) Smt. Nikita Devi Poddar
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand
Aggarwal(through LRs) & Ors
3
W/o Mahesh Kumar Poddar
D/o Late Sh. Khub Chand Aggarwal
LR's B to J C/o
Shankar Lal Garodia
Flat No.1D, Nirmal Sagar Apartment
Block C, 1st Floor, Old Post office Lane,
A.K. Azad Road, Gauhati, Assam-78008
(2) Sh. Naveen Aggarwal
W/o Late Sh. Sohan Lal Aggarwal
General Attorney of Sh. Om Prakash
Aggarwal
R/o Lal Patti P.O. Hojai,
District Nagaon, Assam.
(3) Sh. Om Prakash Garodia
S/o Late Sh. Sohan Lal Aggarwal
R/o Lal Patti P.O. Hojai,
District Nagaon, Assam.
(4) Sh. Shyam Sunder Aggarwal
S/o Late Sh. Sohan Lal Aggarwala
R/o Lal Patti P.O. Hojai,
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand
Aggarwal(through LRs) & Ors
4
District Nagaon, Assam.
(5) Sh. Jagdish Prasad Garodia
S/o Sh. Gulab Chand Garodia
R/o Lal Patti P.O. Hojai,
District Nagaon, Assam.
(6) Ms. Ruchi Jitani
W/o Sh. Tushar Jitani
(7) Smt. Santosh Jitani
W/o Sh. S.K. Jitani
(8) Sh. Tushar Jitani
S/o Sh. S.K. Jitani
(9) Sh. S.K. Jitlani
S/o Late Sh. K.L. Jitlani
All R/o 2A/106,
Rang Rasayan Apartments,
Sector-13, Rohini, Delhi .....Defendants
AMENDED SUIT FOR SPECIFIC PERFORMANCE
Date of Institution of suit :22-09-2008
Date reserved for Judgment :23-09-2023
Date of Judgment :27-09-2023
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand
Aggarwal(through LRs) & Ors
5
JUDGMENT
1) Plaintiff has filed the present suit against the defendants for specific performance and prayed that defendant be directed to execute the sale deed in favour of plaintiff / nominee in respect of suit property bearing Khasra No.41/23(1-00), 41/23(1-00), 41/18(2-00), total holding comes to 4 bighas, or 4032 sq. yards , situated at Village Tikri Kalan, Delhi on accepting the balance consideration and on their failure the court may etc. the sale deed executed in favour of plaintiff as per law.
2) Plaintiff further prayed that registered Sale deed dt. 23-09- 2009 executed by the defendant Nos.1 to 5 in favour of defendant no.6 to 9 with respect of the suit property bearing Khasra No.41/23(1-00), 41/23(1-00), 41/18(2-00), total holding comes to 4 bighas, or 4032 sq. yards , situated at Village Tikri Kalan, Delhi.
3) Plaintiff also prayed that defendants nos. 6 to 9 may be directed to sign and execute the Sale deed in favour of the plaintiff along with the defendant no.1 to 5 in case this court is pleased to pass the decree of specific performance in favour of plaintiff and directed the defendants to hand over the vacant peaceful possession of the suit property to the plaintiffs.
4) Briefly the facts of the case, as stated in the plaint by the plaintiff is as under:-
VERSION OF THE PLAINTIFF AS PER THE PLAINT Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 6
5) The case of the plaintiff, as stated in the plaint is that defendants are the residents of Lal Patti P.O. Hojai, District Nagaon, Assam and are the owners in possession of the agricultural land comprising of Khasra No.41/23(1-00), 41/23(1-00), 41/18(2-00), total holding comes to 4 bighas, or 4032 sq. yards , situated at Village Tikri Kalan, Delhi. On 29-
09-2005, the defendants approached the plaintiff for the sale of aforesaid property and after due deliberation discussion and negotiation the parties entered into written agreement incorporating the various agreed terms and conditions. Total sale consideration was Rs.1.80 crores out of which an amount of Rs.18 lacs has already been paid to the defendants by the plaintiff as part payment on 30-09-2005 against the receipts.
6) It is averred by plaintiff that as per the agreement , the defendants would get the property transfer in their favour and balance consideration was payable at the time of execution of Sale documents on or before 31-01-2006. It is stated that it was also provided that plaintiff will pay 40% of the sale proceed by November, 2005 as the defendants had to apply for transfer and to obtain the order which they failed. The plaintiff has been approaching the defendants for completion of the part of the contract as plaintiff is ready and willing to perform his part of contract and to make the balance payment but the defendants have been deferring the same on one or other pretext. It is stated that since defendants have failed to mutate the suit property in their name therefore, they did not ask for 40% of the sale consideration as stated above.
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 7
7) It is submitted by the plaintiff that it was admitted by the defendants that they could have got the property mutated in their names in the revenue record sometime in October, 2006 and against the said order of the SDM, an appeal were filed before Dy. Commissioner and against the order of Dy. Commissioner an appeal has been preferred by the Gaon Sabha which is pending before the Financial Commissioner. The defendant did not make the plaintiff aware of any such event. It is further submitted that the defendants are relying upon the cut of date of 31-01-2006 without the transfer of the property which was subject to mutation and offered to take 40% of the deal but the defendant did not turn back.
8) It is alleged by plaintiff that in May, 2008, the defendants were got contacted by plaintiff, through common friend at Assam and it was revealed that the defendants have been deferring the completion of afore-mentioned sale of suit property to the plaintiff and they are asking for big bargain to sell the property in and around the vicinity.
9) The plaintiff stated to have got served legal notice upon the defendants on 19-05-2008 to which defendants replied on 17-07-2008 and shown heir willingness to refund of earnest money of Rs.18 lacs. It is stated that the defendants have committed breach of terms and conditions of the agreement and now wanted to wriggle out of it by blaming the plaintiff.
10) In his amended plaint, it is stated by the plaintiff that in the written statement of the defendant no.3 it is revealed/ disclosed that during the pendency of the present suit, through registered sale deed dt. 23-09-2009, registered with Sub Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 8 Registrar, Punjabi Bagh, New Delhi, defendant no.3 has sold his share of the property in question to the defendant no.6 to
8. It is further submitted that defendant no.1 and 2 have also disclosed that they have also sold their share in the suit property jointly with the defendant no.3 to 6 in favour of the defendant no.6 to 8. It is stated that defendant no.4 and 5 have also disclosed in their written statement that by virtue of registered Sale deed dated 23-09-2009, they have also sold their share to the defendant no.7 & 8. It is alleged by plaintiff that the aforesaid registered sale deeds in favour of defendant no.6 to 9 in respect of property in question are sham and bogus and have been executed in order to defeat the lawful rights of the plaintiff. It is stated that the defendant no.6 to 9 were fully aware of the fact that the defendant no.1 to 5 have agreed to sell the property in question to the plaintiff. Hence, the present suit.
11) In their written statements, the defendants have raised preliminary objections that the agreement to sell dated 29-09- 2005 is unregistered and insufficiently stamped document therefore, has no legal force, moreover, same has not been signed and executed by all the co-owners as mentioned by plaintiff in his plaint. In their reply on merits it is denied by defendants that defendants as mentioned in the plaint are the exclusive owners in possession of the suit land. It is stated that initially 1 bigha of the suit land forming part of khasra no.41/23 was purchased by Sh. Sohal Lan vide sale deed 06- 02-1991. Another 1 bigha of suit land was purchase by Sh. Khub Chand Aggarwal vide sale deed dt. 06-02-1991 and Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 9 remaining 2 bighas was purchased by Smt. Suman Garoria vide sale deed dt. 06-02-1991.
12) In their reply on merits it is further stated by defendants that agreement to sell as well as the receipt were signed and executed only by defendant no.2 and 3 and not by any other defendants or the co-owners of the suit property. It is stated that plaintiff himself violated and committed breach of agreement by not paying the 40% of the sale proceed by the end of November, 2005 and time period for the said payment was extended beyond November, 2005, therefore, the said agreement stands Terminated and plaintiff ha no right, title or interest to claim the specific performance of the said agreement after a laps of almost three years. It is submitted that as per the specific clause inserted/incorporated at page 3 of the said agreement by the consent of the parties, that "if either of the parties refuses to complete the sale or purchase proceed, the entire advance money will be refunded to the 2nd party without interest". It is stated that the defendants are not bound to execute the sale deed in favour of the plaintiff as claimed by plaintiff in his plaint. The defendants have denied all other allegations of the plaintiff and submitted that the suit filed by the plaintiff is not maintainable and liable to be dismissed with cost.
13) In his replication the plaintiff has reiterated the averments made in the plaint and denied the stands taken by the defendant in their written statement.
14) From the pleadings of the parties, the following issues were framed on 21-08-2017:-
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 10 ISSUE No. (1) Whether the agreement to sell dated 29- 09-2005 could not be considered being insufficiently stamped and unregistered? OPD ISSUE No. (2) Whether the agreement to sell dated 29- 09-2005 has not been properly executed as it has not been signed by all c-owners? OPD ISSUE No. (3) Whether there is no privity of contract between the plaintiff and defendants? OPD ISSUE No. (4) Whether the plaintiff has no locus standi to file the present suit? OPD ISSUE No. (5) Whether the suit is not maintainable in the present form as it has not been signed and instituted as per the provisions of CPC? OPD ISSUE No. (6) Whether the plaintiff is entitled for specific performance of agreement to sell dated 29-09- 2005? OPP ISSUE No. (7) Whether the plaintiff is entitled for declaration of the sale deed dated 23-09-2009 in favor of defendant no.6 to 9 as Null and Void and for the cancellation of sale deed as prayed for ? OPP ISSUE No. (8) Whether the plaintiff is entitled for decree of mandatory injunction as prayed for ? OPP ISSUE No. (9) Relief.
15) Plaintiff has examined himself as PW1 and filed his evidenciary affidavit by way of affidavit which is Ex. PW1/A Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 11 bearing his signature at point A and B. PW-1 has relied upon the following documents:
i) Ex.PW1/1: the original agreement to sell,
ii) Ex.PW1/2 : receipt
iii) Ex.PW1/2A : legal notice.
16) PW1 has been partly cross examined by the ld. Counsel for the defendants no.3 to 9 and further cross examination of PW1 was deferred on 29-04-2019. However, thereafter, numerous opportunities have been given to the plaintiff get himself cross examined and lead his remaining evidence but despite that the plaintiff has failed to do so, therefore, the opportunity of the plaintiff to lead evidence was closed on 27-
09-2022 and the matter was fixed for defendant's evidence.
17) On the other hand ld. Counsel for the defendants have also closed their evidence on 13-09-2023 & 14-09-2023 respectively. Their statement was also recorded in the court for closing of the evidence of the defendants.
18) I have heard the final argument on behalf of the defendants and also gone through the written submissions filed on behalf of the defendants. Despite opportunity given to the ld. Counsel for the plaintiff, he has failed to address the final argument on behalf of the plaintiff. I have perused and considered the material on record. My findings on the issues are as under:-
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 12
19) ISSUE No. (1) Whether the agreement to sell dated 29-09-2005 could not be considered being insufficiently stamped and unregistered? OPD As far as the aspect of 'unregistered' agreement to sell vis-
à-vis specific performance is concerned, in R. Hemalatha vs Kashthuri [C.A. NO. 2535/2023 decided on 10 April, 2023] it has been held by the Apex Court that as per proviso to Section 49, an unregistered document affecting the immovable property and required by Registration Act to be registered may be received as evidence of a contract in a suit for specific performance under ChapterII of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered document.
20) As far as sufficiency of stamp on the 'Agreement to Sell' is concerned, the said Agreement to Sell was not accompanied by handing over the possession of the immovable property.
"Conveyance" has been defined in Section 2(10) to mean :-
"conveyance" includes a conveyance on sale and every instrument by which property, whether moveable or immoveable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I"
21) As per "Om Prakash v. Laxmi Narayan" [(2014) 1 SCC 618] Only the 'Agreement To Sell' along-with the delivery of possession is an instrument which requires payment of the Stamp Duty. The judgments of the Hon'ble High Courts while referring to SCHEDULE I-A of the applicability of India tamp Act to the respective states have referred to the explanations Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 13 wherein it has been provided : "An agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a "Sale" under this Article:
Observed in "M.Narayana Reddydied And 9 Others vs M Janga Reddy And 4 Others [Civil Rev. Pet. No.566 of 2018 decided on 21 December, 2018 by the Hon'ble Telangana High Court]
22) Thus ISSUE No.1 is decided in favour of the plaintiff and against the defendants.
23) ISSUE No. (3) Whether there is no privity of contract between the plaintiff and defendants? OPD ISSUE No. (4) Whether the plaintiff has no locus standi to file the present suit? OPD
24) The ISSUES No. 3 & 4 will be disposed of together as they are interwoven.
25) In the present case the defendants No.1 to 5 are the Legal Heirs and the defendants No.6 to 9 are the subsequent purchasers. The Privity of Contract Doctrine is a long-
standing English law principle that states that no one shall be entitled to or bound by the conditions of a contract to which he is not a party original. It is based on the interest theory, which means that a stranger to a contract cannot sue or enforce the terms of the contract. This doctrine has made it difficult for third parties to carry out the obligations of the contracting parties. The privity is a derivative kind of interest founded on or arising out of a contract. It is conceived Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 14 jurisprudentially as a relationship which creates legal obligations. In dealing with suits for specific performance it needs to be examined in two aspects:
i) Legal Heirs of the plaintiff / defendant
ii) Representative-in-interest of the plaintiff / defendant
26) As far as the Legal Heirs in the suit of specific performance are concerned, it is the matter of record that the agreement was executed by the predecessor-in-title of the defendants and the defendants being the legal heirs. As per the judgment Ram Baran Prasad vs. Ram Mohit Hazra & others [AIR 1967 SC 744] the suit for specific performance is also maintainable against the legal heirs of the parties to the agreement. As per Section 19(b) of the Specific Relief Act, a specific performance suit is maintainable against those persons, who claimed title from one of the executants of the agreement. Therefore, the present suit is maintainable against the Legal Heirs.
27) As far as the subsequent purchasers in the suit of specific performance are concerned, the question is whether the subsequent purchasers can be termed as Legal Representatives of the estate of the deceased defendant / vendor. As per Section 2(11) of C.P.C. "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.'' Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 15
28) The basis of allowing a joinder of the subsequent transferee is contained in Clause (b) of Section 19 of the Specific Relief Act. Clause (b) of Section 19 provides that a specific performance of a contract may be enforced not only against a party to that contract but also against any person claiming under a party to the contract by a title arising subsequently to the contract. The subsequent transferee, who claims title to the property which is the subject matter of a specific performance suit, may always be allowed to be impleaded so that a good title is conveyed to the Plaintiff in pursuance of the agreement for sale of which specific performance is sought.
29) As per Nirav Deepak Modi v Najoo Bhiwandiwala [Suit No. 1166 of 2006 Decided On: 27.08.2014] the Hon'ble Bombay High Court held that the primary obligation to perform the contract therefore, always remains on the vendor and on his death on his legal representatives. As has been pointed out by the Supreme Court in the case of Durga Prosad v. Deepchand, AIR 1954 SC 75 (reaffirmed in AIR 1967 SC
978) the correct frame of the relief to be claimed and given in a suit for specific performance of a contract of sale is to direct specific performance against the vendor - the subsequent transferees from him being only called upon to join in the conveyance to ensure passing of full title to the vendee.
30) The ISSUE No.3 & 4 are decided in favour of the plaintiff and against all the defendants.
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 16
31) ISSUE No. (5) Whether the suit is not maintainable in the present form as it has not been signed and instituted as per the provisions of CPC? OPD Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. In Jai Jai Ram Manohar Lal v. National Building Material Supply Gurgaon [(1969) 1 SCC 869] the Apex Court held that rules of procedure are intended to be handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure.
32) It has been held in Sathyanath vs Sarojamani [C.A. No. 3680 OF 2022decided on 6 May, 2022] "17. We may state that the First Schedule appended to the Code contains the procedure to be applied in respect of the matters coming for adjudication before the Civil Court. Such procedure is handmaid of justice as laid down by the Constitution Bench judgment of this Court reported as Sardar Amarjit Singh Kalra (Dead) by Lrs. v. Pramod Gupta (Smt) (Dead) by Lrs. & Anr. 10 wherein it was observed as 10 (2003) 3 SCC 272 under:
"26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 17 substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice........"
33) In Kailash v. Nanhku & Ors. [(2005) 4 SCC 480] held that all rules of procedure are handmaid of justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence -- processual, as much as substantive."
34) In view of the legal principles, the ISSUE No.5 is decided in favour of the plaintiff and against all the defendants.
35) ISSUE No. (7) Whether the plaintiff is entitled for declaration of the sale deed dated 23-09-2009 in favor of defendant no.6 to 9 as Null and Void and for the cancellation of sale deed as prayed for ? OPP
36) The Issue No.7 needs to disposed of at this stage.
37) In a suit for specific performance it is not necessary for the agreement holder to seek cancellation of sale deed executed in favour of a subsequent purchaser and it is sufficient to implead the subsequent purchaser in the suit and seek relief of specific performance against original owner and Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 18 also seek direction to the subsequent purchaser to join in the execution of the sale deed in order to completely convey title to the agreement holder.
38) Regarding the legal necessity in the suit for specific performance to seek a separate prayer for the cancellation of the sale deed (in favour of the subsequent buyers) it has been held in Lala Durga Parsad and Anr. Vs. Lala Deep Chand and Ors., [1954 SCR 360: AIR 1954 SC 75] as follows:
"42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin [AIR 1931 Cal 67] and appears to be the English practice. See Fry on Specific Performance, 6th Edn., p. 90, para 207; also Potter v. Sanders [67 ER 1057]
39) The judgment in 'Lala Durga Parsad' case has been has been subsequently referred to and followed in the subsequent decision in Rathnavathi & Anr. Vs. Kavitha Ganashamdas, [(2015) 5 SCC 223].
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 19
40) In view of the legal principles, there in no need to seek a separate prayer for declaration and cancellation of the sale deed in favour of the subsequent buyers. Thus the ISSUE No.7 is disposed of accordingly.
41) ISSUE No. (2) Whether the agreement to sell dated 29-09-2005 has not been properly executed as it has not been signed by all co-owners? OPD Perusal of the Agreement to Sell dated 29.09.2005 reveals that it has been signed by only Navin Aggarwal (as General Attorney of Sh. Om Prakash Agarwal) (also as General Attorney of Sh. Om Prakash Gadodia). However, there are no signatures of Sh. Khub Chand Agarwal, Sh. Shankar Lal Agarwal. Apparently, the General Power of Attorney has not been either adduced or proved. In that regard the relevant portion of the cross-examination of PW-1 reveals thus:
"Only Mr. Naveen Aggarwal had signed Ex.PW-1/1 on behalf of Om Prakash Aggarwal, Naveen Aggarwal, Khub Chand Aggarwal , Jagdish and Shankar. There were four sellers in Ex. PW-1/1. All the four co-owners were not present when Ex. PW-1/1 was signed, only Mr. Naveen Aggarwal was present. Vol. However, in the meeting prior to that, all four were present.
...
Q- Have you mentioned about said power of attorneys in your plaint?
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 20 A- I have not mentioned.
It is correct that in agreement to sell Ex.PW-1/1, there is no mention that power of attorneys were registered in favour of Naveen Aggarwal.
Q-Is it correct that you have filed the present suit against all the five sellers?
A- I have filed the present suit against Sh. Naveen Agarwal as he has taken guarantee for all.
Q- I put to you Khub Chand Aggarwal, Naveen Aggarwal, Om Prakash Garodia and Shankar Lal Aggarwal were the four owners of the property in question?
A- It is correct.
...
"I only know Sh. Naveen Kumar who has tken guarantee of all other sellers."
42) The cross-examination of PW-1 strengthens the version of all the defendants that the Agreement to Sell dated 29.09.2005 was not validly executed. The defendants No.1 to 3 and also the defendants No.4 to 9 (in a separate Written submissions) have in the Written Submissions have asserted that as per the Apex Court judgment in "Mrs. Umadevi Nambiar v/s Thamarasseri Roman Catholic Diocese Rep. by its Procurator Devssia's Son Rev. Father Joseph Kappil" [Civil Appeal No. Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 21 2592 of 2022 decided on 01.04.2022] the Power of Attorney needs to be construed seriously. It was thus held:
"...ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha Aiyar's Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney."
18. As held by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust [(2012) 8 SCC 706] the document should expressly authorize the agent, (i) to execute a sale deed; (ii) to present it for registration; and (iii) to admit execution before the Registering Authority.
43) The defendants have very valid point as the Agreement to Sell dated 29.09.2005 cannot be said to be binding all the co- owners. The plaintiff has not been able prove that the Agreement to Sell dated 29.09.2005 was properly executed. Thus the ISSUE No. 2 is decided against the plaintiff and in favour of the defendants.
44) ISSUE No. (6) Whether the plaintiff is entitled for specific performance of agreement to sell dated 29-09- 2005? OPP ISSUE No. (8) Whether the plaintiff is entitled for decree of mandatory injunction as prayed for ? OPP
45) The ISSUES No.6 & 8 are interwoven and will be disposed of together.
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 22 Incomplete / Un-concluded cross-examination of plaintiff (PW-1)
46) The plaintiff examined as PW-1 has only been partly cross examined by the ld. Counsel for the defendants no.3 to 9 and further cross examination of PW1 was deferred on 29-04- 2019. However, thereafter, numerous opportunities have been given to the plaintiff get himself cross examined and lead his remaining evidence but despite that the plaintiff has failed to do so, therefore, the opportunity of the plaintiff to lead evidence was closed on 27-09-2022 and the matter was fixed for defendant's evidence.
47) The defendants No.1 to 3 and also the defendants No.4 to 9 (in a separate Written submissions) have in the Written Submissions have asserted that the plaintiff had not stepped in the witness box to complete / conclude his cross-examination. In Vidyasagar v. Manikrao it has been held:
"16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 23 Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
48) In view of the circumstance that the plaintiff did not conclude his cross-examination, an adverse inference is drawn against the plaintiff-herein.
Financial position of the plaintiff regarding "readiness"
49) The defendants No.1 to 3 and also the defendants No.4 to 9 (in a separate Written submissions) have in the Written Submissions have further asserted that there is no evidence to show that the plaintiff was in financial position to pay the balance sale amount. In that regard the Written Submission it is argued that that the plaintiff was not willing and ready to perform his part of the obligation as he did not have the amount of Rs.1,80,00,000/- (Rupees One Crore & Eighty Lakh only) . In that regard the relevant portions pf the cross- examination reveal thus:
"... I was maintaining two bank accounts with Punjab National Bank and my cash in hand was approximately Rs.15 lakhs, may be R.20 lakhs also. .... Vol. It was not Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 24 shown in the return but same consisted of my savings. ..... I can show a document to the effect that I was possessed of Rs.15 lakhs to Rs.20 lakhs in cash with me. Again said, that by cash in hand I mean the amount which was lying in my bank account and I can produce the document for the same....."
...
"I have not placed on record any document to show that I had a sum of Rs.1,80,00,000/- in my bank account.'
50) Section 16 (c) of the Specific Relief Act, 1963 (prior to amendment w.e.f. 01-10-2018) bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of the contract. In Acharya Swami Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526, the Apex Court opined that there is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. In JP Builders v. A Ramadas Rao [(2011) 1 SCC 429] , the Apex Court observed that Section 16(c) mandates "readiness and willingness" of the plaintiff and is a condition precedent to obtain the relief of specific performance. In "P Meenakshisundaram v. P Vijayakumar [(2018) 15 SCC 80] the Apex Court observed:
Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 25 "8. As regards suit for specific performance, the law is very clear that the plaintiff must plead and prove his readiness and willingness to perform his part of the contract all through i.e. right from the date of the contract till the date of hearing of the suit."
51) In Shenbagam & Ors V. KK Rathinavel [Civil Appeal No 150 of 2022 decided on 20.01.2022] the Hon'ble Supreme Court has reiterated the meaning of "readiness" as follows:
"The "readiness" of the respondent to perform his obligations refers to whether he was financially capable of paying the balance consideration.... The payment of income tax by itself does not show that the respondent had sufficient resources to pay for the suit property....It is an established principle of law that the plaintiff must prove that he is ready and willing to perform the contract. The burden lies on the plaintiff. "
52) The witness PW-1 never produced the above-said bank details and never tuned up to conclude his cross-examination. Thus the plaintiff has failed in discharging the onus of proving the aspect of "readiness" vis-à-vis ISSUE No.6.
Defective / Unenforceable Agreement to Sell dated 29.09.2005
53) The defendants No.1 to 3 and also the defendants No.4 to 9 (in a separate Written submissions) have in the Written Submissions have already pointed out towards the fundamental defects in the execution of the Agreement to Sell dated 29.09.2005. The issue No.2 regarding this has already been decided against the plaintiff and in favour of the Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 26 defendants. However, this also touches the Issue No.8 to examine whether plaintiff is entitled to the decree of Specific Performance vis-a-vis existence of a valid & enforceable 'Agreement to Sell'. It will be appropriate to refer to the judgment of the Honourable Apex Court in 1990(3) SCC 1 (Mayawanti vs. Kaushalya Devi) wherein it was held as follows:
"The jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation of the order of specific performance is to enforce that obligation.
The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 27 parties must have been consensus ad idem. The acceptance must be absolute, and must correspondent with the terms of the offer. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be material if the agreement is rescinded.
54) In Zarina Siddiqui v. A. Ramalingam [(2015) 1 SCC 705] the Apex Court has observed:
"24. It is well settled that remedy for specific performance is an equitable remedy. The court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that the Court's discretion to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles"
55) In view of the circumstance of the case the plaintiff has failed in discharging the onus of proving ISSUE No.6.
56) As regards the relief of "Mandatory Injunction" is concerned in the present case, the prayer clause will have to be read in the context of the pleadings and then interpreted to hold whether the relief is in fact one for injunction or specific Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 28 performance. If the plaint is read as a whole it would be very clear that plaintiffs essentially filed suit for conveyance of the plots in favour of the plaintiffs which defendants had agreed to convey. Thus what plaintiffs essentially want is conveyance of plots in their favour. It is clear from the prayer clause that the plaintiff has sought execution of the sale deed in his favour. Even while passing a decree for specific performance the Court would have even otherwise directed execution of the sale deed in favour of the plaintiff. Such a direction even in a suit for specific performance by the Court is nothing less than a mandate. The prayer clause in the instant case at the most could be said to be not very happily worded but the purport of the relief is one to seek specific performance. Simply because the words 'mandatory injunction' are used it is not as such a suit for mandatory injunction but a suit for specific performance. {see Shrikant Gopalkrushna Tare and Ors. Vs. Vasant Nagorao Mahalley and Ors. [Second Appeal No. 448 of 1996 Decided On: 07.10.2009 by the Hon'ble Bombay high Court - Nagpur Bench]}.
57) When the ISSUE No.6 is decided against the plaintiff, the ISSUE No.8 too, stands decided against the plaintiff.
58) Thus ISSUES No. 6 & 8 are decided against the plaintiff and in favour of all the defendants-herein.
ISSUE No. (9) Relief.
59) As the ISSUE no. 6, 7 & 8 are decided against the plaintiff. The plaintiff-herein is not entitled to any relief. Suit of the Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 29 plaintiff is dismissed. Decree-sheet be prepared accordingly. File be consigned to Record Room.
Digitally signed by VEENA VEENA RANI RANI Date:
2023.10.11 Announced in the open court. 14:26:11 +0530 ( VEENA RANI ) Additional District Judge-06, West District, Tis Hazari Courts, Delhi Judge Code : DL271/Date:27-09-2023 Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 30 IN THE COURT OF MS.VEENA RANI :ADJ-06, WEST DISTRICT, TIS HAZARI COURTS, DELHI CNR No:DLWTO1-000123-2008 Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors 27-09-2023 Present: None.
Vide my separate judgment, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court.
( VEENA RANI ) Additional District Judge-06, West District, Tis Hazari Courts, Delhi Judge Code : DL271/Date:27-09-2023 Suit No:611616/2016, Shri Sanjay Kumar Vs. Sh. Khub Chand Aggarwal(through LRs) & Ors