Indian Kanoon - Search engine for Indian Law

Delhi High Court

Vijendra Kumar vs Shailender Kapoor on 5 September, 2013

Author: Mukta Gupta

Bench: Mukta Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+    I.A No. 2151/2013 in CS(OS) 2161/2011

%                                            Reserved on: 27th August, 2013
                                             Decided on: 5th September, 2013

        VIJENDRA KUMAR
                                                                    ..... Plaintiff
                                Through   Mr. Tarique Siddiqui, Ms. Rakshan
                                          Ahmed, Mr. Aditya Gaur, Advs.
                                versus

        SHAILENDER KAPOOR
                                                                    ..... Defendant
                                Through   Ms. Anju Lal, Adv.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1.

By this application under Order XII Rule 6 CPC read with Section 151 CPC the plaintiff prays for passing of a decree of specific performance directing the defendant to perform his part of agreement dated 29 th August, 2010 and hand-over possession of ground floor, measuring 200 sq. yards, half portion of terrace/ roof rights at back side portion of third floor of suit property bearing No. 7/8, West Patel Nagar, New Delhi (hereinafter referred to as the 'suit property') to the plaintiff and damages along with interest till realization and costs.

2. Learned counsel for the plaintiff/ applicant contends that a preliminary decree for part performance of the agreement to sell and purchase dated 29 th August, 2010 is liable to be passed in favour of the plaintiff and against the defendant in view of the admissions made by the defendant. The defendant I.A No. 2151/2013 in CS(OS) 2161/2011 Page 1 of 8 has admitted the agreement to sell and purchase dated 29 th August, 2010, the ownership in the suit premises, receipt of part payment of Rs. 14 lakhs and the legal notice dated 1st July, 2011 which was not replied to by the defendant. The only defence taken by the defendant is that the agreement to sell and purchase has become un-executable in view of the changed circumstances. Thus, even if the defendant is not able to comply with the terms of agreement fully, it can sell portions of the property which are in his possession and conclude the part performance of the contract. In order to avoid the present contract, collusive suit was filed between one Shri Sanjeev Kumar Bahal and the defendant, thus ensuring that the agreement to sell and purchase between the plaintiff and defendant could not be executed due to change in circumstances. Reliance is placed on Satya Bhushan Kaura Vs. Vijaya Myne 142 (2007) DLT 426, Vijaya Myne Vs. Satya Bhushan Kaura 142 (2007) DLT 483 (DB); Sunrise Construction Vs. Veena Wahi 2009 (111) DRJ 710 and order dated 16th September, 2011 in CS(OS) No.(OS) 2528/2008 titled Nitin Arora Vs. Yashoda Nand Sharma and Ors. passed by this Court. Relying upon Surjit Kaur Vs. Naurata Singh and Anr. (2000) 7 SCC 379 it is also contended that a party can elect to accept part- performance of the contract at any stage of the litigation. Mere filing of a suit for specific performance of the agreement and not averring that the party was willing to accept performance in part does not preclude a party from subsequently electing to accept performance in part.

3. Learned counsel for the defendant/ non-applicant on the other hand contends that the agreement between the parties is a single agreement and cannot be bifurcated. Neither in the notice nor in the e-mails sent I.A No. 2151/2013 in CS(OS) 2161/2011 Page 2 of 8 subsequently the plaintiff ever expressed his willingness to accept part- performance of the contract. There is no clear admission on behalf of the defendant in the written statement as the defendant has denied that the plaintiff was willing and ready to perform his part of the contract. The written statement has to be read as a whole and sentences here and there cannot be read in isolation. Reliance is placed on Kishan Lal Chhabra Vs. Anil Arora 156 (2009) DLT 779, Express Towers P. TD & Anr. Vs. Mohan Singh and Ors. 2007 (97) DRJ 687 (DB); Amit Jain Vs. Harvinder Kaur 2013 II AD (DELHI) 408; M/s. Jeevan Diesels & Electricals Ltd. Vs. M/s. Jasbir Singh Chadda (HUF) & Anr. AIR 2010 SC 1890 and Himani Alloys Ltd. Vs. Tata Steel Ltd. 2011 (7) SCC 566.

4. Heard learned counsel for the parties. The case of the plaintiff is that the defendant represented to the plaintiff that the defendant was the exclusive and absolute owner and in possession of property with structure thereon in respect of built-up back side portion of basement measuring 900 sq. feet, entire ground floor measuring 200 sq. yards and half portion of the terrace/ roof rights at back side portion of third floor, out of property bearing No. 7/8, West patel Nagar, New Delhi along with proportionate undivided, indivisible and impartial ownership right undearneath land of the said property, by way of two Gifts Deeds duly registered executed by the defendant's father Shri Narender Nath Kapoor. The defendant represented and assured that the suit property was free from all encumbrances, decree, sale, mortgage, gift, lien, liability, legal flaws, litigation, attachment etc. Thus, the plaintiff agreed to purchase the suit property along with fittings and fixtures, with electric and water connection in working order etc. for a I.A No. 2151/2013 in CS(OS) 2161/2011 Page 3 of 8 total sale consideration of Rs. 1,40,00,000/- and entered into an agreement to sell and purchase dated 29th August, 2010 with the defendant. The plaintiff paid a sum of Rs. 14 lakhs out of which Rs. 12,50,000/- was paid by four cheques and Rs. 1,50,000/- by cash as earnest money and the balance amount of Rs. 1,26,00,000/- was to be paid by the plaintiff within three months from the date of signing of the agreement dated 29th August, 2010 and at the time of execution and registration of necessary documents in favour of plaintiff before the Sub-Registrar. As per the agreement the defendant was to hand-over vacant and peaceful possession of the suit property to the plaintiff on or before 28th November, 2010. Further all dues such as electricity & water bills, house-tax, lease money/ ground rent etc. in respect of the suit property were to be paid by the defendant. The defendant, however, failed to supply the details to the plaintiff regarding clearance of all the dues relating to the suit property and also failed to execute the sale deed, though the plaintiff was ready and willing to perform his part as per the terms and conditions of the agreement dated 29th August, 2010. The defendant instead of taking initiative to get the suit premises vacated and perform his part of the agreement dated 29th August, 2010 informed the plaintiff for the first time on 21st November, 2010 through e-mail that a Civil Suit No. 557/2010 titled as 'Sanjay Kumar Bahal Vs. Shailender Kapoor and Anr.' pertaining to the back portion of basement of 7/8, West Patel Nagar was pending in the Court of learned Civil Judge, West, Tis Hazari, Delhi, thus the same was affecting the defendant's ability to perform his part of the contract.

5. In the written statement the defendant has stated that the agreement to sell dated 29th August, 2010 was terminated/ cancelled by both the parties on 27th December, 2010 mutually and it was agreed that the defendant shall pay to the plaintiff a sum of Rs. 17 lakhs in lieu of full and final settlement. It is stated that since the agreement to sell stands revoked, as such the suit filed for specific performance thereof is not maintainable. Since Shri Sanjeev Kumar Bahal had filed a suit against the defendant for injunction in the District Court, the defendant informed the plaintiff about the changed circumstances that he would not be in a position to hand-over the possession of the back side basement to the plaintiff. The plaintiff feeling dissatisfied approached the office of District Investigation Cell (Central Distt. of Delhi Police) claiming that he was cheated of Rs. 14 lakhs by the defendant. In the District Investigation Cell it was mutually agreed that the agreement to sell could not be executed due to changed circumstances, it be terminated and the plaintif be paid a sum of Rs. 17 lakhs. It is due to these changed circumstances the defendant could not perform his part of the contract. Since there was a drop in the property prices, the plaintiff wanted to wriggle out of the transaction and alleged that the plaintiff was to make the payment at the time of execution and registration of document in his favour, whereas the payments were to be made within three months from the date of execution of the agreement after which possession of the property was to be handed-over. It is contended that the plaintiff was not entitled to the discretionary relief of specific performance as the sale could not be executed on account of changed circumstances and also on account of the plaintiff's admission that he was willing to accept compensation of Rs. 17 lakhs in lieu thereof. It is further stated that at the time of execution of agreement to sell I.A No. 2151/2013 in CS(OS) 2161/2011 Page 5 of 8 dated 29th August, 2010 the defendant was in possession of the entire property agreed to be sold to the plaintiff. The defendant was residing on the ground floor and was running a Gym in the name of 'Temple Gym' in the basement. One Shri Sanjeev Kumar Bahal was employee of the defendant as a trainer who filed a false, baseless and frivolous suit against the defendant and his wife claiming himself to be a tenant of the defendant's wife and running his own Gym namely 'Body Fitt Gym'. The defendant received the summons in that suit in the first week of November, 2010. It is further informed that the suit has since been disposed of directing the defendant not to dispossess Shri Sanjeev Kumar Bahal without due process of law.

6. The legal position with regard to a judgment on admission under Order XII Rule 6 CPC is well-settled as laid down in Himani Alloys Ltd. Vs. Tata Steel Ltd. 2011 (7) SCALE 566.

9. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the Defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a Defendant to contest the claim. In short the discretion should be used only when there is a clear 'admission' which can be acted upon. (See also Uttam Singh Duggal and Co. Ltd. v. United Bank of India 2000 (7) SCC 120, Karam Kapahi v. Lal Chand Public Charitable Trust 2010 (4) SCC 753 and Jeevan Diesels and Electricals Ltd. v. Jasbir Singh Chadha 2010 (6) SCC 601. There is No. such admission in this case.

7. It is clear from the facts that though the defendant does not deny execution of the agreement to sell on receipt of the part payment, however he pleads a supervening circumstance so as to make the performance of the contract impossible. The defendant has further pleaded that pursuant to a settlement between the parties, the agreement to sell stood revoked. In view of this position of the defendant it cannot be said that the defendant has admitted the case of the plaintiff and thus a judgment on admission be passed. The defendant is entitled to prove the revocation of the agreement by leading evidence in view of the subsequent settlement arrived at between the parties. In Vijaya Myne (supra) relied upon by the learned counsel for the plaintiff this Court allowed the application under Order XII Rule 6 CPC and dismissed the appeal on the ground that there was no exceptional case made out to show hardship to the defendant therein. It was held that the grant of relief for specific performance was the rule and it was for the appellant therein to demonstrate as to how a case would fall in any exception carved out under Section 20(2) of the Specific Relief Act.

8. In the present case it is not disputed that after the agreement to sell was executed between the plaintiff and defendant, the defendant received summons in a civil suit filed by Shri S.K. Bahal claiming himself to be a tenant in the back portion basement of the suit property which suit has now been finally decided and the defendant has been directed not to dispossess Shri S.K. Bahal without due process of law. Thus, when the defendant purportedly revoked the agreement with the plaintiff, there was a valid explanation for non-performance. A perusal of the legal notice issued by the plaintiff and the e-mails sent by the plaintiff show that the plaintiff never I.A No. 2151/2013 in CS(OS) 2161/2011 Page 7 of 8 sought for part performance of the agreement. In fact the e-mails required the defendant to expedite the matter with Shri S.K. Bahal and get the basement vacated besides addressing the remaining issues like obtaining NOC from the L&DO and No Dues certificate from the MCD. The legal notice dated 1st July, 2011 sent by the plaintiff to the defendant also admits that pursuant to the plaintiff filing the Police complaint the Investigating Officer at the Police Station made efforts for settlement and the defendant agreed to return the earnest money of Rs. 14 lakhs and a further sum of Rs. 4 lakhs totaling Rs. 18 lakhs as full and final settlement. Even the draft of mutual settlement was exchanged, however the same could not be finalized. It is, thus, evident that efforts were made to revoke the agreement and the facts pleaded by the defendant in his defence cannot be said to be unsubstantiated or amounting to a clear unambiguous admission warranting this Court to pass a judgment on admission.

8. Consequently, the application is dismissed.

(MUKTA GUPTA) JUDGE SEPTEMBER 05, 2013 'ga' I.A No. 2151/2013 in CS(OS) 2161/2011 Page 8 of 8