Delhi District Court
Ashok Kumar Gupta vs Shri Krishan @ Siri Krishan on 27 August, 2018
IN THE COURT OF SH. SIDHARTH MATHUR,
ADJ-02 (NORTH-WEST), ROHINI COURTS, DELHI.
ASHOK KUMAR GUPTA .................... PLAINTIFF
Through
Dr. Anurag Aggarwal,
Advocate.
VERSUS
SHRI KRISHAN @ SIRI KRISHAN ................... DEFENDANT
Through
Sh. Brijesh Sharma,
Advocate.
JUDGEMENT
1. New No. : 77899-16.
2. Under Section : Specific Performance.
3. Date of Institution : 06.06.2011.
4. Date of Final Order : 27.08.2018.
5. Final Order : Dismissed.
BRIEF FACTS
1) Admittedly the agreement to sell P3 was executed for the purchase of the 1/3rd
undivided interest of the defendant on 26.11.2010. Despite the part payment of Rs. 20 Lacs, it remained unfulfilled.
The plaintiff complained that the defendant violated the mutual arrangement by not getting the suit property physically measured/demarcated by the revenue officials. The defendant, on the contrary, raised concerns over the financial capability of the plaintiff, who also failed to appear before the Sub-Registrar on 26.05.2011 for the balance payment and execution of the sale deed.
TRIAL
2) The pleadings formed the basis of the issues framed on 26.04.2013.
(CS No. 77899-16) (Page No. 1 /8 ) PW1/plaintiff examined himself vide affidavit PW1/X wherein he reiterated the plaint. PW2 Jasbir Chadha was the bank official from OBC, who produced the Bank statements PW2/1 of the Lala Ram Gopal Charitable Trust.
Both were cross-examined. But the defendant opted not to lead any evidence thereby bringing the curtains down on the trial on 15.07.2015.
3) Before moving ahead, it needs to be noted that the plaintiff on 27.09.2013 applied for permission to deposit the balance payment. It was granted on 15.04.2014 whereupon a FDR was filed in the name of Ld. Registrar General.
ISSUE-WISE FINDINGS Issue No. 1 :- Whether the plaintiff was ready and willing to perform his part of the obligation under the Agreement to Sell dated 26.11.2010, executed in respect of 1/3rd share in the subject land, measuring 41 bigha 3 biswas, situated in village Budhanpur, Majara Dabas, Tehsil & District, Delhi ? OPP.
Issue No. 2 :- If issue No. 1 is decided in the affirmative, whether the plaintiff is entitled to a decree of specific performance of the Agreement to Sell dated 26.11.2010, executed in respect of the subject land against the defendant ? OPP.
4) The plaintiff blamed the defendant by alleging that he did not get the suit property physically measured ; that he did not get it demarcated by the revenue officials and that he did not get the NOC from the remaining co-owners.
The compliance of these conditions was sought by the plaintiff for the first time vide his letter PW1/9 dated 23.05.2011. The defendant in his reply PW1/10 dated 25.05.2011 stated that he is ready to execute the sale deed ; that he is ready to deliver (CS No. 77899-16) (Page No. 2 /8 ) the physical possession & that there is no dispute amongst the co-owners. He however denied having agreed to the demarcation/measurement by the patwari or for any NOC from the co-owners.
Now if I go through the agreement P3, none of these conditions are recorded therein. Hence any oral and mutual arrangement alleged qua the said conditions will be barred by Section 91 & 92 of the Evidence Act.
5) The plaintiff sought to argue that he was insisting for NOC from the co-owners & measurement/demarcation in order to get the effective physical possession as was agreed vide agreement P3.
The agreement P3 makes it amply clear that the subject matter of the sale was "1/3rd undivided interest" of the defendant. Now whenever undivided interest is being sold or purchased, I do not think that determination of share by metes and bounds is necessary. Despite this, the defendant in his reply PW1/10 dated 25.05.2011 promised the delivery of the physical possession on the payment of the balance consideration. So in these circumstances, the defendant could have been blamed only if he did not deliver the possession despite receiving the balance payment. But by remaining absent from the Sub Registrar office on the stipulated date and withholding the balance, the plaintiff did himself no favours. The delivery of possession was to follow the payment of the balance and not vice versa, as insisted & persisted by the plaintiff. The plaintiff after remaining absent on the stipulated date is estopped from blaming the defendant.
6) The plaintiff relied upon "Pandit Kanhiya Lal Dayawanti Punj charitable society Vs. Vinod Kumar Singh & Ors." MANU/UP/1194/2015 to contend that a co-sharer has a right to transfer his undivided share but he cannot put a vendee in possession of the same. I do not think this citation is of any help to the case of the plaintiff as it no where says that the (CS No. 77899-16) (Page No. 3 /8 ) delivery of physical possession is a sine qua non in cases of sale of undivided interest. It is well known that whenever there is sale of an undivided interest, the purchaser can always sue for partition and separate possession, if he wants segregation of his subject matter. The plaintiff in this case also had agreed to purchase only the undivided interest whereby if the defendant would have failed to deliver him the physical possession as per the agreement after the receipt of the balance amount, he could have worked out his rights by going for partition. But as already discussed, this situation never arose in this case once the plaintiff himself chose not to go for the execution of the sale deed and balance payment.
7) The plaintiff had admitted in his cross-examination that he neither purchased the stamp papers ; nor got prepared any demand draft in the name of the defendant ; nor got the draft of the sale deed prepared even after the receipt of the reply PW1/10. All these circumstances fortifies my view that he did not do what was required of him to complete the transaction. The reason he gave for the aforesaid omissions is that the defendant refused to execute the sale deed vide his reply PW1/10. This is a totally wrong understanding of that reply because the defendant never refused the execution, rather he specifically expressed his willingness therein to do what was required of him for the completion of the contract.
8) The admissions made in the cross-examination of the plaintiff makes it amply clear that he did not have the balance consideration available with him in his personal bank accounts during the relevant period. Now during that cross-examination, he also produced the bank statements of Lala Ram Gopal Charitable Trust with OBC in order to support his pleas that the said Trust is his family-trust ; that he was purchasing the suit (CS No. 77899-16) (Page No. 4 /8 ) property for that Trust & that the bank accounts of that Trust had requisite balance available at the relevant time for the payment of the balance.
This story-line featuring the family-trust was neither the part of the agreement ; nor of the plaintiff's letter PW1/9 ; nor of his plaint ; nor of his replication and nor of his affidavit of examination in chief. It was introduced for the first time by him during his cross-examination. Any evidence beyond the pleadings is impermissible.
In order to justify his theory about the family-trust, the plaintiff relied upon the term of the agreement whereby the parties had agreed to execute the sale deed either in the name of the plaintiff or his nominee or assignee. I do not concur with this submission. Had the intention of the plaintiff throughout would have been to purchase the suit property for his family-trust, I think he should got this fact incorporated in the agreement in clear and specific terms and should have also projected this story in his pleadings right from the inception of this suit instead of waiting till his cross examination to introduce it. One is not allowed to take the adversary or the Court by surprise by introducing new facts and changing the initial story-line.
Moreover if the plaintiff really had intended to purchase the suit property for the trust, then why did the initial payments of Rs. 20 Lacs were made by him from his personal accounts and not from the accounts of that trust like he did when he got the DD of the balance amount prepared in the name of the Ld. Registrar General. He also failed to explain that if he intended to buy the suit property for that trust, then why the sale permission from the revenue authorities was obtained by him in his personal name ; why the agreement P3 was not got executed in the name of that trust and why the suit has been filed by the plaintiff in his personal name & not in the name of that trust.
Further except for placing only the bank statements of the said trust and orally saying that it is his family-trust, the plaintiff produced nothing to show that either he is the trustee or in any other manner concerned with the management of that trust.
(CS No. 77899-16) (Page No. 5 /8 ) Admittedly he also never informed the defendant that his so called family-trust has been nominated by him as the purchaser. I think he should have done so by means of his letter PW1/9 written just three days before the stipulated date to substantiate his intention to make the purchase in the name of that trust.
All these circumstances points out only in one direction that he introduced the theory about his family-trust being the beneficiary of the sale to cover his own personal financial incapability. In absence of any specific averment with regard to the fact that the purchase was for that trust and by that trust, either in the agreement or elsewhere, it is to be assumed that the agreement was by and for the plaintiff in his personal capacity and for his personal gains.
9) In order to counter his own financial incapability, the plaintiff also relied upon his act of depositing the demand draft of the balance in the name of the Ld. Registrar General to contend that his financial soundness. He in support relied upon "Gurdial Kaur (dead) through LRs Vs. Piara Singh (dead) through LRs" 2008 (14) SCC 735 to prove that deposit of balance before the Court amounts to sufficient compliance of readiness and willingness.
This suit was filed on 06.06.2011 while the demand draft was got prepared on 10/07/2013. This act of depositing the balance vide DD could have been considered as bonafide and relevant, had it been done promptly instead of 02 years after the filing of the suit. Reference in this regard can be made to the judgement of Delhi High Court delivered in "Dinesh Kumar Jain Vs. Sanjeev Chaudhary" 2017 (244) DLT 423. The "Gurdial Kaur's case" (supra) is distinguishable in the peculiar facts of this case because the deposit before the trial court therein was made promptly at the filing of the suit, not after more than 02 years as in this case.
(CS No. 77899-16) (Page No. 6 /8 )
10) The plaintiff also relied on "Azhar Sultana Vs. B. Rajamani & Ors." 2009 (17) SCC 27 ;
"Sukhbir Singh & Ors. Vs. Brij Pal & Ors." 1997 (2) SCC 200 ; "Nathu Lal Vs. Phool Chand" 1969 (3) SCC 20 and "Triveni Verma Vs. Vikas Girdhar" 2013 (203) DLT 508 to contend that it is not necessary that the entire amount of consideration should be kept ready by the plaintiff ; that he should always carry the money and that he should vouch a concluded scheme for financing the transaction to prove his readiness and willingness.
There is no denial to the aforesaid legal principles. But their applicability varies from case to case depending on the respective facts. In this case, it has been proved that the plaintiff did not have the financial capability at the relevant time ; that he introduced the family-trust theory at the belated stage and that their were no breach on part of the defendant. All these factors are sufficient to assume that the plaintiff lacked the will to perform his part whereby he cannot draw any benefit from the above citations.
11) The plaintiff also relied upon "P. D'souza Vs. Shondrilo Naidu" 2004 (6) SCC 649 to contend that the readiness and willingness of the plaintiff would also depend on the question if the defendant performed his part well.
As already opined herein above by me that defendant in this case can not be blamed for the breach. He did and was ready to do whatever was required of him as per the contract. It was the plaintiff who failed in his part by absenting himself on the stipulated date on the basis of his unfounded excuses of demarcation/measurement/NOC etc, which were not even part of the agreement P3.
12) The plaintiff lastly relied upon "Uttar Pradesh State Electricity Board Vs. Aziz Ahmad"
2009 (2) SCC 606 to contend that his suit be accepted as true & proven after the defendant failed to lead any evidence to prove his own contentions. This citation is also of no help to the cause of the plaintiff who himself had failed to prove his readiness & (CS No. 77899-16) (Page No. 7 /8 ) willingness whereby the onus never shifted on to the defendant. The plaintiff was to stand on his own legs and thus could not have drawn any strength from the weaknesses of the defence.
13) Thus it stands amply proved that the plaintiff was not ready and willing to perform his part whereby both the issues are decided him.
RELIEF
14) For the reasons assigned herein above, the suit of the plaintiff is dismissed.
The parties shall bear their own costs.
Decree-sheet be accordingly prepared.
File be consigned to record room after due compliance.
Announced in the Open Court on 27.08.2018.
(SIDHARTH MATHUR) ADJ-02 (North-West), Rohini, Delhi.
(CS No. 77899-16) (Page No. 8 /8 )