Delhi District Court
M/S Tyagi & Co. Through vs Sh. Yashpal Tyagi on 1 August, 2022
IN THE COURT OF SH. KARTIK TAPARIA : CIVIL JUDGE 02
(CENTRAL), TIS HAZARI COURTS, DELHI.
Suit No. 94706/16
In the matter of :
1. M/s Tyagi & Co. Through Plaintiff No. 2
Rajouri Garden, New Delhi.
2. Bhudev (deceased) S/o Ganga Sahai, now represented by his
Legal Representatives :
A) Arya Dutt (deceased) S/o Late Sh. Bhudev, now
represented by his Legal Representatives :
i) Suraj Narain Tyagi S/o Sh. Ramesh Chand Tyagi
ii) Anil Kumar Tyagi (deceased) represented by his
Legal Representatives :
a) Smt. Sharda Tyagi W/o Late Sh. Anil Kumar Tyagi
b) Sh. Abhishek Tyagi S/o Late Sh. Anil Kumar Tyagi
c) Sh. Annu Tyagi S/o Late Sh. Anil Kumar Tyagi
iii) Sh. Narender Kumar Tyagi S/o Sh. Ramesh Chand
Tyagi
B) Sh. Ramesh Chand Tyagi (deceased) represented by his
legal representatives :
i) Suraj Narain Tyagi S/o Sh. Ramesh Chand Tyagi
ii) Anil Kumar Tyagi (deceased) S/o Sh. Ramesh Chand
Tyagi, represented by his Legal Representatives :
a) Smt. Sharda Tyagi W/o Late Sh. Anil Kumar Tyagi
Page 1 of 47
b) Sh. Abhishek Tyagi S/o Late Sh. Anil Kumar Tyagi
c) Sh. Annu Tyagi S/o Late Sh. Anil Kumar Tyagi
iii) Sh. Narender Kumar Tyagi S/o Sh. Ramesh Chand
Tyagi.
C) Sh. Balesh Chand Tyagi (deceased) S/o Sh. Bhudev, now
represented by his legal representative :
i) Sh. Devender Kumar Tyagi.
All residents of Village Jharoda Mazra, Burari, Delhi110084.
.... Plaintiffs
VERSUS
1. Sh. Yashpal Tyagi
2. Sh. Satyapal Tyagi
Both sons of late Sh. Yag Dutt
R/o Village Jharoda Mazra, Burari,
Delhi110084. ....Defendants
Date of Institution: 17.11.1980
Date of reserving the judgment: 02.07.2022
Date of Judgment: 01.08.2022
Final Judgment : Suit dismissed.
JUDGEMENT
(Suit for Specific Performance of Contract of Sale by Execution and Registration of Sale Deed)
1. The brief facts of the present case are that plaintiff No.1 was a partnership firm duly constituted comprising of plaintiff No.2 and Sh.D.K. Page 2 of 47 Khanna, S/o Sh. D.D. Khanna, R/o 32A, Rajouri Garden, New Delhi, as its partners. The firm was duly constituted on 16.11.1970.
1.2 It is further submitted that one Sh. Nar Dev, S/o Sh. Ganga Sahai, R/o Village Jharoda, P.O. Burari, Union Territory of Delhi, had entered into an agreement for sale dated 16.11.1970 with M/s Tyagi & Company plaintiff No.1, for sale of his bhumidari land situated in Village Jharoda, Majra Burari, P.O. Burari, Union Territory of Delhi, detailed as under : Khasra No. Measuring Khasra No. Measuring Bigha Biswa Bigha Biswa 30/21 416 6 214 19/2 016 36/1/1 2 20/2 08 10/1 17 30/22 416 32/3 18 23/1 26 4 28 31/16/2 016 7 416 25 416 8 416 35/5 416 Total area measuring 44 Bigha 6 Biswas.
1.3 It is further submitted that the Agreement for Sale dated 16.11.1970 was duly registered in the office of the Sub Registrar, S.D. No. II, Delhi as document No. 8303, Addl. Book No. I, Vol. No. 1319, on Page 3 of 47 pages 91 to 93 on 23.11.1970. The total sale consideration was settled at Rs. 44,300/. Out of this amount a sum of Rs.10,000/ were paid on behalf of M/s Tyagi & Co. towards payment of the consideration to said Sh. Nar Dev. According to the terms of the contract, the balance amount of Rs. 34,300/ was to be paid before the SubRegistrar at the time of registration of the sale deed or could even be paid earlier in installments. The time for execution of the sale deed was fixed ten years from the date of execution of the agreement for sale. The plaintiffs have been asking said Sh. Nardev during his lifetime, time and again, to execute the sale deed and get the same registered, but he has been postponing it on one ground or the other.
1.4 It is further submitted that said Sh. Nar Dev had died on 22.08.1980. U/s 50 of the Delhi Land Reforms Act, plaintiff No.2, being his real brother, (as they are sons of the same father) is his heir and legal representative and the property left behind by him has vested in him, as Sh. Nar Dev died unmarried and as such has not left behind any widow or any child or any other brother. The defendants allege that said Sh. Nar Dev has left behind a Will in respect of the above property in their favour. The plaintiffs do not admit the Will allegedly executed by said Sh. Nar Dev in favour of the defendants which is being contested by plaintiff No.1 in the mutation proceedings pending before the Revenue Authorities. Without prejudice to the rights of plaintiff No.2, to contest the said Will and to establish his rights on the basis of succession, it is submitted that in case the defendant succeeds in proving the validity and genuineness of Page 4 of 47 the Will allegedly executed by said Sh. Nar Dev in favour of the defendants, during his lifetime, then the defendants are bound by the aforesaid Agreement for Sale dated 16.11.1970 executed by said Sh. Nar Dev in favour of M/s Tyagi & Co., plaintiff. The defendants in that event are then bound under the law to execute the Sale Deed and get the same registered in favour of the plaintiffs under the terms of Agreement for Sale dated 16.11.1970 in respect of the property mentioned therein.
1.5 It is further submitted that by virtue of Deed of Dissolution dated 27.02.1974, Sh. D.K. Khanna, one of the partners of the firm described in para 1 of the plaint has retired from the partnership firm M/s Tyagi & Co. and has given up, abandoned all his rights, privileges, assets etc. in the aforesaid firm in favour of plaintiff No.2 including his rights, title, interest, privileges etc. available to him under aforesaid Agreement for Sale dated 16.11.1970. The plaintiff is, thus, now sole proprietor of the firm M/s Tyagi & Co., plaintiff No.1 and has got sole rights, interest, etc. in the aforesaid Agreement for Sale and is alone entitled to all the benefits available under the same. The plaintiff No.2 alone has thus a right to enforce the aforesaid Agreement for Sale dated 16.11.1970, executed and duly registered by said Sh. Nar Dev, S/o Sh. Ganga Sahai in favour of M/s Tyagi & Co.
1.6 It is further submitted that all the lands covered by the said Agreement for Sale has either been acquired or was out of possession on the date of death of said Sh. Nar Dev except the following lands : Page 5 of 47 Khasra No. Measuring Bigha Biswa 30/21 112 30/19/2 016 30/20/2 08 30/22 319 30/23/1 26 31/16/2 04 Total area measuring 9 Bighas 5 Biswas.
1.7 It is further submitted that since the land except mentioned in para 5 above has been compulsorily acquired by the government under the Land Acquisition Act No.1 of 1894 and possession has been taken thereof, the plaintiffs can under the law sue for Specific Performance of the Contract of the Sale only in respect of the land described in the preceding para. Hence, the present suit is being confined only in respect of this land.
1.8 It is further submitted that the defendants were asked to recognize and accept the aforesaid Agreement for Sale dated 16.11.1970 and to act thereupon, but they have refused to do so. The defendants have refused to complete the execution and registration of the sale deed, although, the plaintiffs are ready and willing to perform their part of the contract without prejudice to the right of plaintiff No.2 available to him in his personal capacity.
Page 6 of 471.9 Hence, the present suit with the following prayers :
(a) A decree for Specific Performance of Contract of Sale in respect of the property described in para 5 above in pursuance of Agreement for Sale dated 16.11.1970 described in the plaint by finally and effectually transferring all the rights, title or interest whatsoever in the said property in favour of the plaintiff may kindly be passed against the defendants and in favour of the plaintiff;
(b) Any other alternative relief which this Court may deem fit and proper in the circumstances of the case may be granted to the plaintiff against the defendants with costs of the suit.
2. Summons of the suit for settlement of issues were issued and served upon the defendants. The defendants filed their joint amended written statement by taking preliminary objections that this Court has no jurisdiction to adjudicate upon in the suit as according to the plaintiffs themselves the consideration of the agreement was Rs. 44,300/, therefore, this Court has no pecuniary jurisdiction.
2.1 It is further submitted that the suit of the plaintiffs is hopelessly time barred as the alleged agreement is stated to have been executed on 16.11.1970. Therefore, the suit be dismissed outrightly on this account only.
Page 7 of 472.2 It is further submitted that Plaintiff No. 1 is not a registered firm or company, and therefore, an unregistered company or a firm cannot file a suit against the third party. Thus, Sh. Bhudev has no right, title or interest to file the suit on behalf of plaintiff No.1.
2.3 It is further submitted that this Court has no jurisdiction to entertain and adjudicate upon the subject matter of the suit as most of the land involved in the alleged Agreement of Sale has since been acquired and the possession of the same has been taken by the Govt. According to Land Acquisition Act, only the Additional District Judge, Delhi has the exclusive jurisdiction to decide the controversy where the reference U/s 3031 of the Land Acquisition Act is pending.
2.4 It is further submitted that the alleged Agreement of Sale dated 16.11.1970 is forged, fraudulent and without consideration. The same is neither binding on the deceased Nar Dev nor on the defendants, the legal heirs of Sh. Nar Dev. The factum and validity of the alleged agreement is vehemently denied.
2.5 It is further submitted that the suit of the plaintiffs has been wrongly undervalue for purposes of court fee and jurisdiction.
2.6 It is further submitted that plaintiff No. 2 has no right, title or interest to file the present suit against the defendants, as there was no privity of Contract between plaintiff No. 2 and Sh. Nar Dev, deceased and Page 8 of 47 his legal heirs, the present defendants.
2.7 It is further submitted that the plaintiffs have no cause of action to file the present suit. The suit has been filed only to harass, victimize and cowed down to the defendants.
2.8 In the reply on merits, it is submitted that para 2 of the plaint is wrong, false, malafide and hence vehemently denied. Sh. Nar Dev, deceased was not the Bhumidar of the land bearing Kh. No. 32/3 (18), 32/4 (28), 32/7 (416) and 32/8 (416), total measuring 13 bighas 8 biswas. The land has been wrongly detailed in this para alleging to be under the ownership/Bhumidari of deceased Sh. Nar Dev. Out of the remaining land detailed in para 2 the land bearing Khasra No.30/22 (0
17), 31/16/2 (012), 31/25 (416), 30/21 (304), 35/5/6 (701), 36/1/1 (27), 36/10/1 (17), and 35/5/6 (09), total measuring 20 bighas 13 biswas has been acquired by the Govt. and the possession has been taken over by the Govt. The allegations that Sh. Nar Dev entered into an agreement to sell with the plaintiff No. 1 are false, malafide and vehemently denied. If there is any agreement, the same is a result of fraud, coercion and victimisation. No agreement was ever made and no consideration was ever received by Sh. Nar Dev, deceased, the predecessorininterest of the defendants.
2.9 It is further submitted that the plaintiff filed a suit bearing No. 340/1980 filed on 01.09.1980 in Re: Sh. Bhudev Vs. Sh. Yugdutt & Ors., Page 9 of 47 in which the answering defendants were also parties and the said suit was the suit for Permanent Injunction with regard to the land involved in the present suit. In the said suit not even a word about agreement of sale was mentioned. The said suit was ultimately dismissed on 15.09.1980 by the Court of Sh. I.C. Tewari, the then Sub Judge, Delhi.
2.10 It is further submitted that Sh. D.K. Khanna, one of the Partners of the Partnership firm, has another Sh. M.M. Rai Khanna. He was controlling one society named as M/s Asiatic Multipurpose Co Operative Society. The said society alleged to have purchased 1 Killa of land by virtue of a Sale Deed from Sh. Nar Dev. The said sale deed was outcome of the fraud. The said sale deed was also without consideration. The said Sale Deed was declared as null and void vide decree dated 31.03.1979 in suit No. 52/74. The said cancelled sale deed and the agreement to sell in question in the present suit were both registered on 23.11.1970.
2.11 It is further submitted that the plaintiff never brought the agreement to the notice of Sh. Nar Dev and it was only after the death of Sh. Nar Dev that the present suit was filed.
2.12 Prayer is made accordingly that the suit of the plaintiffs be dismissed with special costs.
3. In replication, the plaintiffs have denied the averments made Page 10 of 47 in the written statement and reiterated those made in the plaint.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 21.12.1982 :
i) Whether the plaintiff is entitled to the relief of Specific Performance of Contract of Sale by execution and registration of Sale Deed of the suit property, as prayed for in the plaint ? OPP.
ii) Whether this Court has no jurisdiction to try this suit, as alleged in para No. 1 and 4 of the Preliminary Objection in written statement ? OPD
iii) Whether the suit is time barred, as alleged in para No. 2 of the Preliminary Objection ? OPD
iv) Whether the suit has been filed by duly authorized person ?
OPP
v) Whether the alleged Agreement of Sale dated 16.11.1970 is forged, fraudulent and without consideration and is not binding as alleged in para No. 5 of the Preliminary Objection ? OPD
vi) Whether the suit is under valued for purposes of court fees and jurisdiction ? OPD
vii) Whether the suit is not maintainable as alleged in para No. 3 of the preliminary objection ? OPD
viii) Whether there is no privity of contract between plaintiff Page 11 of 47 No. 2, and deceased Nar Dev and his legal heirs, if so, its effect ? OPD
ix) Relief.
5. In support of its case, the plaintiff firm examined Sh. Balesh Chander S/o Sh. Bhudev, Agriculturist as PW1. He deposed that his father is plaintiff No. 2 in the present suit. His father having a Partnership firm with the name and style of Tyagi & Co. The other partner in this firm was one Mr. D.K. Khanna. He further deposed that he identifies the signatures of his father on the Partnership Deed, Mark A at point A. He also deposed that he can identify the signatures of other Partner Sh. D.K. Khanna as he used to sign in English and his signature appears at point B on Mark A. He further deposed that he identifies their signatures as both of them had signed it in his presence on the Partnership Deed which was executed on 16.11.1970. The Agreement to Sale was executed between his uncle Nar Dev and the Partnership firm Tyagi & Co. It was also written on 16.11.1970 but it was got registered at a later day. It also bears the signatures of Sh. D.K. Khanna at point A on all the pages but he cannot identify the signatures of other person on it. The signatures on receipt Mark C is his uncle Nar Dev Singh. The Agreement was executed in his presence. At that time Ram Kishan and Khem Chand were also present. He identifies their signatures. He cannot identify the signatures on the witness on Mark B i.e. Agreement to Sale as they are not visible. After 34 years of its commencement Mr. D.K. Khanna came out of the partnership. The resolution took place somewhere in February,1974, and the Page 12 of 47 Resolution Deed is Mark D. He identifies the signatures of Sh. D.K. Khanna and his father at point A and B on Mark D on each page. He further deposed that after resolution of the firm his uncle was requested number of times for the execution of the Sale Deed but every time he avoided it by signing that there is no hurry for the same. The time of 10 years was fixed for the execution of the Sale Deed from the date of execution of the agreement. His uncle got the Sale Deed registered. His uncle expired in AugustSeptember. After the death of his uncle Nar Dev Singh defendant told him that Nar Dev has executed a Will in their favour. His father filed the suit because the defendants were showing the Will in their favour.
PW1 was crossexamined at length by Ld. Counsel for the defendant.
6. PW2 is Sh. Ram Kishore S/o Vidya Sagar R/o Village Burari, Delhi. The present witness was called as an attesting witness to prove the Partnership Deed dated 16.11.1970 i.e. Ex.PW2/1. He deposed that he knew Sh. Bhudev, plaintiff No. 2 and Sh. D.K. Khanna. Both of them executed a Partnership Deed in the year 1970, almost the end of the year, may be in November or December. The Deed Ex.PW2/1 is the certified copy of the said Partnership Deed which bears his signatures at point A. This Deed was executed in his presence by both the parties and both of them signed in his presence at point C & B. PW2 was crossexamined at length by Ld. Counsel for the defendant.
Page 13 of 477. PW3 is Lal Singh S/o Sh. Bhagwan Sahai R/o 3, Chowki, Sawan Park, Delhi. The present witness was called as an attesting witness to prove the Dissolution Deed of the Partnership dated 27.02.1974 i.e. Ex.PW3/1. He deposed that he knew Sh. Bhudev and Sh.D.K. Khanna. They had formed a Partnership Firm Tyagi & Co.. This Partnership was dissolved by Dissolution Deed on February, 1974 vide Ex.PW3/1. He put his thumb impression upon the said deed as a witness which is at witness No. 2 at point A. Both of them had put their signatures before in his presence. Plaintiff No. 2 has died.
PW3 was crossexamined at length by Ld. Counsel for the defendant.
8. PW4 Sh. M.M. Rai Khanna S/o Late D.D. Khanna. The present witness was called as an attesting witness to prove the Agreement to Sell dated 16.11.1970 i.e. Ex.PW4/1 as well as the receipt dated 16.11.1970 of part payment i.e. Ex.PW4/2. He deposed that the Agreement dated 16.11.1970 was executed between the parties i.e. M/s Tyagi & Co. and Sh. Nardev in his presence and was registered at Kashmiri Gate, Office of Sub Registrar. The certified copy of the said agreement is Ex.PW4/1. The same bears his signatures at point A on the last page of the same. His brother Sh. D.K. Khanna was the partner of the plaintiff company who signed at point B. The said deed was duly executed before the Sub Registrar, Delhi. The certified copy also bears his signatures at point C on the back of the first page on the agreement to sale, original of which seen by him in the file titled as, "UOI Vs. Nardev, Page 14 of 47 LAC No. 111/80, which was tagged with the record of the suit. He identified the signatures of his brother who had signed as a partner on the agreement at point C. He had seen him signing, writing as he was his real brother. He identified signatures because he had seen Nardev reading and writing several times and making signatures. The consideration of Rs.10,000/ was paid in his presence and a receipt for the payment of the same was duly executed by Sh. Nardev. He recognized the signatures of Sh. Nardev at point A on Ex.PW4/2. Though the said agreement and receipt was executed in his presence but he did not sign the receipt as a witness.
PW4 was crossexamined at length by Ld. Counsel for the defendant.
9. PW5 is Sh. Shatrughan Poddar, Record Clerk from the Office of Sub RegistrarI, Kashmiri Gate, Delhi. The present witness was a summoned witness, summoned to prove the registered Agreement to Sell i.e. Ex.PW4/1. He deposed that he had brought the summoned record i.e. Vol. No. 1319 of the Registrar I. He had seen the document Ex.PW4/1, and deposed that it does not pertain to his office because it pertains to the office of SubRegistrarII.
10. PW6 is Sh. Naurang Singh S/o Sh. Kanwar Singh R/o Village Todapur, Post Office Pusa, New Delhi110012. The present witness was called as an attesting witness to prove the Dissolution Deed of the Partnership dated 27.02.1974 i.e. Ex.PW3/1. He deposed that he Page 15 of 47 knew Bhudev. He also knew Sh. D.K. Khanna through Sh. Bhudev. Both of them executed Ex.PW3/11 i.e. a Dissolution Deed in February, 1974. Upon which he signed as a witness at point A. He identified the signatures of Sh. D.K. Khanna which is at point B, and the signatures of Sh. Bhudev at point C which is in Urdu, as he had seen them signing and writing. He had seen the original of the Ex.PW3/1 in case file of the case titled as, UOI Vs. Nardev, Suit No. 111/80, decided by Sh. D.S. Dhaka, the then Ld. ADJ, Delhi on 22.11.1986.
PW6 was crossexamined at length by Ld. Counsel for the defendant.
11. PW7 is Sh. Narain Dass, LDC from the office of Sub RegistrarII, Kashiri Gate, Delhi. The present witness was a summoned witness, summoned to prove the registered Agreement to Sell i.e. Ex.PW4/1. He deposed that he had brought the summoned record. As per the record Registration No. 8303 in Addl. Book No. 1, Vol. No. 1319, on pages No. 91 to 93, Agreement to Sell, has been registered on dated 23.11.1970. The certified copy of which is already exhibited as Ex.PW4/1, which is correct as per the record brought by him.
PW7 was crossexamined at length by Ld. Counsel for the defendant.
Thereafter, Ld. Counsel for the plaintiff closed plaintiffs evidence on 10.05.2001.
12. On the other hand, defendant No. 1 Sh. Yashpal examined Page 16 of 47 himself as DW1 by tendering his evidence by way of affidavit Ex.DX. He relied upon the following documents :
i) Ex.D1 is the certified copy of the judgment and decree.
ii) Ex.D2 is the copy of the judgment passed by Sh. G.S. Dakha, the then Ld. ADJ, Delhi.
iii) Ex.D3 is the copy of the plaint of the Suit No. 340/1980.
iv) Ex.D4 is the copy of the order dated 15.09.1980.
v) Ex.D5 is the copy of the Statement of Sh. Ramesh recorded before the court of Sh. G.S. Dakha is on record.
DW1 was crossexamined at length by Ld. Counsel for the plaintiffs.
13. I have heard the arguments advanced by Ld. Counsel for the parties and carefully perused the record. My issuewise findings are as under : Issue No. 2 Whether the court has no jurisdiction to try this suit as alleged in Para No. 1 and 4 of the preliminary objections in the written statement? OPD And Issue No. 6 Whether the suit is undervalued for the purpose of court fees and jurisdiction? OPD Page 17 of 47
14. The burden of proving these issues was on the defendants. It is the contention of the Defendants that the present suit is barred by law, and the present court has no jurisdiction to try the same as the value of the suit is Rs. 44,300/ which was out of the pecuniary jurisdiction of the court in the year 1980 when the suit was filed. On the other hand, the plaintiff has valued the present suit at Rs. 10,000/ being the value of the consideration amount as per the agreement to sell qua the piece of land which was not acquired by the government. It can be seen in the plaint that originally the agreement to sell was executed for a consideration of Rs. 44,300/ for the total land measuring 44 Bighas and 6 Biswas. However, a major chunk was acquired by the government, and at the time of filing the suit only 9 Bighas and 5 Biswas remained unacquired. As per the agreement to sell, the consideration amount was calculated as Rs.1000/ per Bighas, which comes to Rs. 9,250/ for the unacquired land. Accordingly, I am of the opinion that the plaintiff has not undervalued his suit as the consideration price for unacquired land is only Rs. 9,250/. Further, the defendants have failed to prove that the present suit is barred by pecuniary jurisdiction when the value of the suit is taken to be Rs.9250/ or Rs.10,000/.
Accordingly, the present issues are decided in favor of the plaintiffs and against the defendants.
Issue No. 3Whether the suit is time barred as alleged in Para No. 2 of the preliminary objection? OPD Page 18 of 47
15. The burden of proving this issue was on the defendants. It is the contention of the Defendants that the present suit is time barred as the agreement to sell is dated 16.11.1970 whereas the suit is filed in the year 1980. As per Article 54 of the Schedule appended to the Limitation Act, 1963, the limitation for filing a suit for specific performance of a contract is 3 years from the date fixed for performance. As per clause No. 4 of the agreement to sell dated 16.11.1970, the time fixed for the performance was 10 years from the date of agreement i.e. 16.11.1970. The present suit was filed in the year 1980, well before the expiry of limitation period i.e. 3 years as provided in Article 54 as mentioned above. Hence, the present suit is not time barred.
This issue is decided in favor of the plaintiffs and against the defendants.
Issue No. 4Whether the suit has been filed by duly authorized person? OPP And Issue No. 7 Whether the suit is not maintainable as alleged in Para No. 3 of the preliminary objections? OPD
16. The burden of proving issue No. 4 was on the plaintiffs, and that of Issue No. 7 was on the defendants. It is the contention of the Page 19 of 47 defendants that the plaintiff No. 1 was an unregistered partnership firm, hence the present suit is barred under Section 69 of The Indian Partnership Act, 1932. Perusal of the documents filed by the plaintiff shows that the Partnership firm/Plaintiff No. 1 was formed on 16.11.1970, and was dissolved on 27.02.1974, whereby Sh. D.K. Khanna, the second partner of the firm gave up his rights including the right available under the agreement to sell dated 16.11.1970 in favor of Deceased Plaintiff No. 2 Sh. Bhu Dev. The said dissolution deed has been exhibited as Ex. PW3/1, and was proved by the attesting witnesses, PW3 Sh. Lal Singh as well as PW6 Sh. Naurang Singh, who identified their thumb print and signature respectively on the deed. PW3 stated that both the parties to the agreement signed the same in his presence. PW6 identified signatures of both the partners, by stating that he had seen them signing and writing. The witnesses stood by their testimony in their cross examination, and I have no reason to disbelieve their evidence. Clause 2 of the deed specifically states that now Late Sh. D.K. Khanna abandoned and gave up all his rights qua the agreement to sell dated 16.11.1970. Hence, I have come to the conclusion that the Plaintiff No. 2 stepped into the shoes of the Partnership firm after its dissolution, and became beneficiary of the rights as were abandoned in his favor by now late Sh. D.K. Khanna. Having decided this, I am of the opinion that Section 69 of the Indian Partnership Act, 1932 has no role to play in the present suit as the same was filed in the year 1980, whereas the partnership already stood dissolved in the year 1974. Section 69 only bars the filing of suit by or on behalf of an unregistered partnership firm to enforce a right arising Page 20 of 47 out of a contract against a third person. However, in the present case the suit is filed by Sh. Bhu Dev/Plaintiff No. 2 arraying himself as the proprietor of the Sole proprietorship firm i.e. Plaintiff No. 1 which remained as such after the dissolution. Undoubtedly, there is misjoinder of parties, as the Plaintiff No. 1 has no role to play in the present dispute since the right regarding the same vested solely in Plaintiff No.2. However, the same would not have the effect of attracting the bar of Section 69 as the suit is clearly not filed by an unregistered partnership firm but by Plaintiff No. 2 in his personal capacity after the dissolution of the partnership firm. Accordingly, I hold that Plaintiff No. 2 was the authorized person to file the present suit, and the misjoinder of Plaintiff No. 1 is not fatal to the suit. I also hold that the suit is not barred by Section 69 of The Partnership Act. (Also for the sake of convenience, any reference made to 'Plaintiff' would imply a reference to 'Plaintiff No.2', unless otherwise specified) Hence, both the issues are decided in favour of the plaintiffs and against the defendants.
Issue No. 8Whether there is no privity of contract between the Plaintiff No. 2, and deceased Nardev and his legal heirs, if so its effect? OPD
17. The burden of proving this issue was on the defendants. There are two aspects to the present problem: firstly, the privity of contract between Plaintiff No. 2 and deceased Nardev, secondly, the Page 21 of 47 privity of contract between Plaintiff No. 2 and legal heirs of deceased Nardev/defendants herein. The first aspect is duly covered in the afore going findings given while deciding issue No. 4 and 7 which are not repeated here for the sake of brevity. Accordingly, I hold that there was privity of contract between Plaintiff No. 2 and the deceased Nardev, as plaintiff No. 2 stepped into the shoes of the partnership firm thereby usurping all its rights, including the right of claiming the performance of the agreement to sell dated 16.11.1970.
18. Regarding second aspect, the plaintiff has mentioned in his plaint that Late Sh. Nardev left behind a will thereby bequeathing the property to the defendants herein. The same fact is admitted by the defendants in their written statement, whereby they have stated that they are the absolute owners of the suit property in view of the will dated 13.08.1976 made by Late Sh. Nardev in their favor. During final arguments, the defendants also filed the order dated 10.04.2015 in RCA No. 25/14 passed by Sh. D.K. Jangala, the then Ld. ADJ, West, Delhi, whereby the will dated 13.08.1976 was upheld. Accordingly, the parties are not at dispute that the defendants have stepped into the shoes of the late Sh. Nardev and are the owners of the suit property. Since, the defendants have stepped into the shoes of Late Sh. Nardev, they have to accept not only all the rights but also the obligations attached with the suit property. It is established law that the representatives of a promisor are bound to keep that promise in case of death of the promisor before performance, except otherwise provided for in the contract. In this regard, Page 22 of 47 a reference may be made to Section 37 and Section 40 of The Indian Contract Act, 1872, which are reproduced hereunder:
Section 37:
"37. The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.
Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.
Illustrations
(a) A promises to deliver goods to B on a certain day on payment of Taka 1,000. A dies before that day. A's representatives are bound to deliver the goods to B, and B is bound to pay the Taka 1,000 to A's representatives.
(b)......"
Section 40 provides:
"40. If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it."
19. Section 19 of The Specific Relief Act, 1963 also deals with the same aspect, which is also reproduced hereunder : Page 23 of 47 "Section 19. Relief against parties and persons claiming under them by subsequent title.
Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--
(a) either party thereto;
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant, .........."
20. A conjoint reading of all the abovementioned provisions of law clearly shows that the agreement to sell could be enforced against the defendants herein as they are the legal representative of the deceased Nardev and are claiming under him by a title which arose subsequently to the agreement to sell. Accordingly, I hold that the agreement to sell dated 26.11.1970 is enforceable against the defendants.
Hence, this issue is decided in favour of the plaintiff and against the defendants.
Issue No. 5Whether the alleged document of sale dated 16.11.1970 is Page 24 of 47 forged, fraudulent and without consideration and is not binding as alleged in Para. No. 5 of the preliminary objections? OPD
21. The burden of proving this issue was on the defendant. It is contended by the defendants that the agreement to sell is: a) Forged, b) fraudulent, and c) without any consideration, hence not binding on the defendants. The following paragraphs will deal with these objections :
22. It is stated by the defendants in the written statement that the agreement to sell dated 16.11.1970 is a forged document. However, the defendants have not led any evidence on this point. No witness was called by the defendants to prove that the signature made in Urdu at point 'A' of the agreement to sell dated 16.11.1970 was not actually affixed by Late Sh. Nardev. There is no specific averment in the written statement to show as to how and under what circumstances the said agreement was forged. On the other hand, the plaintiff has called Sh. Narain Dass/PW7, an LDC from Sub RegistrarII office who brought the summoned record to prove that the agreement to sell dated 16.11.1970 was registered on 23.11.1970. Sh. M.M. Rai Khanna was also called as PW4, being one of the attesting witnesses to the impugned document. He duly identified his signature as well as the signature of the other partner of the partnership firm, Sh. D.K. Khanna on the agreement. He also identified the signature of Late Sh. Nardev on the agreement. As per his testimony he had seen Sh. Nardev reading, writing and affixing his signatures many times and that is how he identified Late Sh. Nardev's signatures. No question was Page 25 of 47 asked form the witness on this point during cross examination, nor any suggestion was put. Hence, it is presumed that it was admitted by the defendants that the witness has seen Late Sh. Nardev writing and signing several times. This fact is relevant to prove the signature of Late Sh.Nardev on the impugned document. In this regard, a reference may be made to Section 47 of The Indian Evidence Act, 1872 as reproduced hereunder: "Section 47. Opinion as to handwriting, when relevant.--When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation.--A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him."
Accordingly, I hold that since Sh. Nardev is not alive to deny his signatures and prove otherwise, and the plaintiff has been able to prove the veracity of the document by calling the summoned witness, and the attesting witness who could identify the signatures of the parties to the document, the agreement to sell dated 16.11.1970 is found not forged but a valid document.
23. It is further contended by the defendants that the agreement Page 26 of 47 was fraudulently obtained by the plaintiffs. Ld. Counsel for the Plaintiffs has argued during final arguments that this contention cannot be entertained as the fraud has to be specifically pleaded and proved by the party which avers the same. In this context, reliance has been placed upon two judgments of Hon'ble Supreme Court: a.) Afsar Shaikh & Anr. Vs. Soleman Bibi and Ors., AIR 1976 SC 163, and b.) Pawan Kumar Gupta vs Rochiram Nagdeo, AIR 1999 SC 1823. Ld. Counsel for the Plaintiff is quite right in pointing out that fraud has to be specifically pleaded and proved, also the particulars have to be specifically stated out in the pleading to show that fraud was actually committed. Though, the judgments relied upon by the plaintiffs are not strictly on the issue in dispute, reliance can be made to the statutory provision of Order 6 Rule 4 which states:
"4. Particulars to be given where necessary In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
Further, reliance may be placed upon the judgment of Hon'ble Supreme Court in "Bishundeo Narain And Another vs Seogeni Rai And Jagernath, 1951 AIR 280", which was also recently relied upon by the Hon'ble Apex Court in "Raja Ram vs Jai Prakash Singh and Others, (2019) 4 SCC (Civil) 432", wherein the following was held: Page 27 of 47 "25. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion."
24. Having said this, it is required to see this if the Defendants have given specific particulars to show that the agreement was, in fact, obtained by practicing fraud upon Late Sh. Nardev. It can be clearly seen that in Para No. 2 of the parawise reply in the amended written statement, the defendants have given particulars to prove that the agreement was fraudulently obtained. As per the judgment in Bishundeo Narain (supra), there can be no departure in the evidence from the pleadings.
25. Now, as per the written statement, the following particulars are set forth to put the plea of fraud:
a) That the plaintiff filed a suit bearing No. 340/1980 on 01.09.1980, titled as Sh. Bhudev Vs. Sh. Yugdutt & Ors. for the relief of Permanent Injunction qua the suit property. In the said suit, the plaintiff didn't utter a single word about the impugned agreement to sell.Page 28 of 47
b) That the brother of one of the partners Sh. DK Khanna i.e. Sh. MM Rai Khanna was controlling one society named as M/s Asiatic Multipurpose Cooperative Society Ltd., which purchased 1 Killa of Land from Late Sh. Nardev. That the sale deed in the said transaction was the outcome of a fraud and was devoid of consideration, which was challenged in suit No. 52/1974, titled as 'Nardev vs M/s Asiatic Multipurpose Cooperative Society Ltd'. The said suit was decreed in favor of Sh. Nardev vide judgment dated 31.03.1974.
c) That the impugned agreement to sell as well the sale deed as mentioned above were both registered on 23.11.1970. That the plaintiff didn't bring the impugned agreement in the notice of Sh. Nardev, and the present suit was filed only after the detah of Sh. Nardev.
The following paragraphs will deal with the allegation as mentioned above.
26. The first allegation is not relevant in proving fraud as the defendants have not shown the element of fraud in the said acts of the plaintiff No.2. It is probable that the defendants are trying to show that there was no mention of the agreement to sell in the plaint in suit No. 340/1980 as the agreement to sell was not in existence till then. Even if such is the meaning of the allegation, there is not much merit in the Page 29 of 47 contention as it has already been observed above that the agreement to sell was duly executed and registered between the parties on 23.11.1970. The registration was even proved by the official witness by bringing the original record. Accordingly, this allegation does not attribute any fraud to the transaction.
27. Secondly, Sh. M.M. Rai Khanna was called as PW4 who was asked several questions in his cross examination to prove that the agreement to sell was laced with fraud. He admitted that both the sale deed as well as the impugned agreement to sell were registered on the same day. Further, it is also stated by the witness that the cancelled sale deed, originally made in the favor of M/s Asiatic Multipurpose Cooperative Society Ltd was qua Khasra No. 30/22, which was also one of the pieces of land proposed to be transferred by the impugned agreement to sell. Lastly, it was averred by the witness that he had complete knowledge that the Khasra No. 30/22 was the subject matter of both the cancelled sale deed as well as the impugned agreement to sell. No other proof is placed on record by the defendants to prove fraud qua second allegation nor any witness was brought.
28. After going through the evidence of PW4 Sh. M.M. Rai Khanna, it becomes apparent that he knew that both the documents couldn't survive together as Khasra No. 30/22 formed part of both of them. However, in the whole crossexamination, the witness was not asked whether the partners of the vendee or the Plaintiff No. 2 also knew Page 30 of 47 about this fact. No evidence is brought forth by the defendants to show that Late Sh. Bhu Dev or Sh. DK Khanna were aware of this fact, still they entered into the agreement. In view of the same, it cannot be concluded that the present agreement to sell was obtained by fraud. In fact, from the same allegations levelled by the defendants, the same suggestion could also flow that Late Sh. Nardev fraudulently created two agreements to sell in respect of the same property, which being diametrically opposite to the intention of the defendants, would render the allegations absurd. Accordingly, I hold that the averments made by the defendants qua fraud are unsubstantiated and not strong enough to impeach the agreement to sell.
29. Lastly, it is contended by the defendants that the present suit was knowingly not brought during the lifetime of Sh. Nardev, as the plaintiffs knew that the document was fraudulently obtained. However, there is no merit in this argument as date of performance of the agreement was fixed as 10 years from the date of the agreement, and the plaintiffs were under no obligation to bring a suit before the date of performance. Accordingly, I hold that the plaintiff has not committed any fraud by filing the present suit after the death of Sh. Nardev.
30. It is further contended by the defendants that the agreement is not binding on them as it is devoid of consideration. Perusal of the agreement to sell i.e. Ex. PW4/1 clearly shows that against the pieces of land offered by Late Nardev, Plaintiff had to pay a sum of Rs. 44,300/.
Page 31 of 47Accordingly, it cannot be said that the agreement was devoid of consideration. Further, as per the 2nd clause of the agreement, the plaintiffs had already paid a sum of Rs. 10,000/ to the defendants as part payment. A receipt dated 16.11.1970 i.e. Ex. PW4/2 is also placed on record to prove that the part payment of Rs. 10,000/ was actually made to Late Sh. Nardev. PW4 has stated in his examinationinchief that the part payment was made in his presence. He also identified the signature of Late Sh. Nardev on the same at point 'A'. The witness was never asked question regarding the same in his cross examination nor was any suggestion put to him. Accordingly, the witness has duly proved the veracity of the receipt as well as the signatures of Late Sh. Nardev affixed on the same. In view of the aboveheld discussion, I hold that the agreement is not bad in law for want of consideration.
31. The upshot of the discussion is that the defendants have failed to prove that the alleged document of sale dated 16.11.1970 is forged, fraudulent and without consideration and is not binding upon them. Hence, this issue is decided in favor of the plaintiffs and against the defendants.
Issue No. 1Whether the plaintiff is entitled to the relief of specific performance of contract of sale by execution and registration of sale deed of the suit property as prayed in the plaint? OPP Page 32 of 47
32. The burden of proving this issue was on the plaintiffs. Ld. Counsel for the plaintiffs has vehemently argued that The Specific Relief (Amendment) Act, 2018 is retrospective in nature, hence the agreement in the present case is also governed by the amendments brought forth in the year 2018. To prove the same, reliance has been placed on the following judgments:
a) Shamrao V. Parulekar Vs. The District Magistrate, Thana, 1952 AIR 324,
b) Hazara Singh and S. Ishar Singh Vs. Custodian of Evacuee Property, AIR 1960 P H 133,
c) Govt. of India Vs. Indian Tobacco Assn., (2005) 7 SCC 396,
d) Adhunik Steels Ltd. Vs. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC 125 and AIR (2018) SC 4197.
On the other hand, Ld. Counsel for the defendants has resisted the same by arguing that the rights of the parties crystallised on the date when the contract was formed, and remain unaltered by a subsequent amendment in the governing Act. To prove the same, reliance has been placed on the following judgment:
a) Rajender Bansal & Ors. Vs. Bhuru (D) Through Lrs & Ors. Dated 18.10.2016 in Civil Appeal No. 8194/2016, passed by Hon'ble Supreme Court of India.
Page 33 of 4733. Though both the parties are at loggerheads on the aspect of nature of the Amendment, I am of the opinion that the plaintiff has to at least prove that his case is fit for a decree of specific performance as per the Amendment Act. In case, the plaintiff is able to prove the same, the question of nature of the Act shall be considered.
34. Amended Section 10 reads as follows: "10. The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub section (2) of section 11, section 14 and section 16."
Qualifying provisions under the amended Section 11(2), Section 14 and Section 16 are reproduced hereunder: Section 11(2) :
"(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced."
"The following contracts cannot be specifically enforced, namely:
a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20;Page 34 of 47
b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise;
c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and
d) a contract which is in its nature determinable."
"Specific performance of a contract cannot be enforced in favour of a person--
a) who has obtained substituted performance of contract under section 20; or
b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
c) who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.Page 35 of 47
Explanation.For the purposes of clause (c),
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction."
35. The fivefold questions which are to be considered by the court, while deciding whether the plaintiff is entitled to the relief of Specific performance, are laid down by the Hon'ble Supreme Court in "Kamal Kumar Vs. Premlata Joshi", (2019) 3 SCC 704. The same are reproduced hereunder:
"7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.
7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.
7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner Page 36 of 47 he has performed and whether such performance was in conformity with the terms of the contract;
7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff;
7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds."
36. It is also to be kept in mind that the abovesaid judgment didn't take into account the Amendment Act, 2018, and thus held that specific performance is a discretionary and equitable relief. However, the present case is first passed through the sieve of The Amending Act, to see if the same percolates in its entirety. For the limited purpose, question No. 4 or 7.4 (as mentioned above), is not considered as after the amendment of Section 20 of The Act, the relief of Specific Performance no longer remains an equitable and discretionary relief. Also, question No. 2 or 7.2, shall only be considered on the point of proof and not averment. The following paragraphs shall deal with the questions under consideration.
Page 37 of 4737. Whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property? (7.1) Agreement to sell dated 16.11.1970 is a registered document, which has been duly proved by calling the official witness from the office of SubRegistrarII, Kashmere Gate, Delhi i.e. PW7, who brought the summoned record, and duly identified the agreement to sell i.e. Ex. PW4/1. Further, one of the attesting witnesses, Sh.M.M. Rai Khanna i.e. PW4 was also called as a witness, who not only identified his signature on Ex. PW4/1, but also identified the signature of the vendor Sh. Nardev. The witness was not contradicted on this point, hence his testimony remains blemish less on the aspect of execution of the document. Further, it is also held while deciding issue No. 5 that the agreement in question is supported by due consideration, and is not marred by fraud or forgery. Accordingly, this question is answered in affirmative. There exists a valid and concluded contract between the parties for sale/purchase of the suit property.
38. Whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract? (7.2) Hon'ble High Court of Delhi in Baldev Behl & Ors. vs. Bhule & Ors.,(2012) 132 DRJ 247 has explained the import of readiness Page 38 of 47 and willingness in following words: "Readiness is financial capacity to go ahead with the agreement to sell and willingness is the intention."
Before the decree of specific performance can be granted, the plaintiff must prove that he was, always has been and still is ready and willing to perform his part of promise in the contract which in the present case is the payment of the balance amount of Rs. 34,300.
38.1. Firstly, it is required to see if the plaintiff has been able to prove his willingness to perform his part of the contract. In his plaint, the plaintiff has specifically mentioned that he has been asking Late Sh. Nardev, during his lifetime, to execute the sale deed and get the same registered, but he had been postponing on one ground or the other. Plaintiff No. 2 died before leading any evidence in this case. In his place, his son S. Balesh Chander led evidence as PW1. He stated during his examinationinchief that after the dissolution of the firm, his uncle/Late Sh. Nardev was requested a number of times to execute the sale deed, but he avoided the same every time, by stating that there is no hurry for the same as 10 years' time is fixed for execution. Further, it was stated by the witness that he was sent by his father/Plaintiff No.2 to Sh. Nardev for this purpose, but it was declined by Sh. Nardev for Page 39 of 47 the reason.... (Next portion of the testimony is illegible as the right corner of the sheet is in tatters). In his cross examination, the witness was asked whether any notice was sent to Sh. Nardev for the execution of the Sale deed, which was answered in negative by stating that Sh. Nardev was only verbally requested. No further question was asked from the witness to impeach his truthfulness on this aspect nor any relevant suggestion was also put to the witness. Accordingly, the witness has withstood the test of cross examination, and has duly proved that attempts were made on behalf of the plaintiffs to get the sale deed executed. As already said, the willingness is the intention of the performance of the contract by the party. The same can be adjudged by the conduct of the said party as well as taking into account the surrounding circumstances. The unrebutted conduct of the plaintiff No. 2 as well as PW1 duly shows that the Plaintiffs were willing to perform their part of the bargain.
38.2. In order to see if the plaintiffs were at all times ready to perform their part of promise, the timeline can be divided into two parts: a.) Post Acquisition, b.) Pre acquisition.
38.3. The plaint has failed to mention the year(s) in which the part of the subject matter of the agreement was acquired by the government. However, the same must have been after the year 1970 (when the agreement was entered into), and before the year 1980 (when the suit was filed averring that part land has been acquired). The area out of the total land, remaining after the Page 40 of 47 acquisition was only 9 Bighas and 5 Biswas. As per the agreement to sell, the consideration amount was calculated as 1000 Rs. per Bigha, which comes to Rs. 9,250 for the unacquired land. As per the agreement to sell, the part consideration of Rs. 10,000 had already been paid by the plaintiffs to the Sh. Nardev by way of part performance. It clearly shows that due to the subsequent development, only a portion of the total land remained available for sale as per the agreement, the consideration of which also stood fully paid as the amount of Rs. 10,000 can be apportioned towards the remaining land. Since, by the sheer turn of events, the plaintiffs ended up paying the proportionate consideration amount against the available piece of land, they were not required to prove that they were willing to perform their part of promise. This view also finds favor in Section 12(3)(i) of The Specific Relief Act, 1963. Accordingly, I hold that the plaintiffs were not required to prove their readiness to perform their promise,for the period after the acquisition proceedings, which also includes the entirety of the pendency of the present suit.
38.4. However, the same cannot be said about the pre acquisition period. Undoubtedly, the plaintiffs would have to prove their readiness to perform their promise at the time when the acquisition proceedings had not commenced, and the entire land was available with Sh. Nardev.
38.5. Hon'ble High Court of Delhi in "Baldev Behl & Ors. v.
Page 41 of 47Bhule & Ors.", 2012 SCC OnLine Del 4730, has exhaustively dealt with the manner in which the plaintiff can prove his readiness. The relevant portion is reproduced hereunder:
"(ii) Readiness to perform the obligations by a proposed purchaser is a very important aspect and it has to be proved by categorical evidence. Mere oral evidence and selfserving depositions cannot be a substitute for categorical evidence on the specific statutory requirement of Section 16(c). It is not disputed on behalf of the plaintiff No. 1 that plaintiff No. 1 has not filed any income tax returns or any bank account or proof of any other assets/properties or any other evidence to show the financial capacity of the plaintiff No. 1 to pay the balance sale consideration. As per the case of the plaintiff No. 1, the balance sale consideration would be approximately Rs. 19.5 lacs and there is no evidence worth the name in the record to show the plaintiff No. 1's financial capacity for this amount.
Of course, while on this argument, I am assuming that there is a certainty as to consideration because in reality there is no certainty as to balance sale consideration inasmuch as the plaintiff No. 1 has failed to exercise the option in terms of the agreement to sell as to which area of the balance land less the hutment/portion the plaintiff No. 1 seeks specific performance of. Also, as already stated above, this area Page 42 of 47 claimed by the plaintiff No. 1 has to be further conditioned by an area of 12 bighas which has already been sold to be defendant No. 3 under the sale deed dated 8.4.1988. In any case, I need not state anything further inasmuch as there is not a single piece of paper on record or any credible evidence which proves the financial capacity of the plaintiff No. 1. I accordingly hold that plaintiff No. 1 has miserably failed to prove his readiness to perform his obligations under the agreement to sell dated 27.8.1988...."
This judgment was relied upon by Hon'ble High Court of Delhi in "Dr. Kimti Lal v. Harpal Singh & Anr.", 2018 SCC OnLine Del 11542, wherein it was held:
"10. In the present case, it is seen that admittedly no documentary evidence whatsoever has been filed by the respondents/plaintiffs with respect to their financial capacity. No income tax returns have been filed. No proof of bank deposits have been filed. No proof that balance sale consideration existed in the bank account of the respondents/plaintiffs has been filed. No documents have been filed to show that respondents/plaintiffs were owners of various properties or had other means to show financial capacity to pay the balance sale consideration of Rs. 50,00,000/. In my opinion, therefore, the trial court was completely unjustified in holding that the respondents/plaintiffs have proved their financial capacity...."
38.6 Coming back to the present case, the plaintiffs have not filed any Income Tax Return, Proof of Bank Balance, or any piece of paper on record to prove that they had the financial capacity to pay the remaining sale consideration i.e. Rs. 34,300. Neither any witness was Page 43 of 47 called upon to prove the same, nor the witness PW1 Sh. Balesh Chander led any sort of oral or documentary evidence in this regard.
38.7 Undoubtedly, such proof had to be shown for the Pre acquisition period, when the whole of the suit land was at the ready disposal of Sh. Nardev. It is trite law that the plaintiff has to prove his readiness and willingness to perform his part of the promise from the very day of the execution of the agreement till the date of the decree. This view finds fortification in Dr. Kimti Lal(Supra), wherein it was held:
"7. In my opinion, the trial court has committed a complete illegality in holding that the respondents/plaintiffs had the financial capacity because financial capacity cannot be judged on the basis of self serving ipse dixit. Financial capacity is one of the most important ingredients of a sale transaction because not only is this aspect related to the breach of contract being nonperformance by a buyer because of not having requisite moneys, the readiness or financial capacity independently under Section 16(c) of the Specific Relief Act is an aspect which has to be proved right from the date of the agreement to sell till the decree of the suit vide N.P. Thirugnanam (D) through LRs v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115.
The relevant para of this judgment is para 5 which reads as under:
--
"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under s.20 of the Specific Relief Act 1963 (for short, 'the Act'). Under s.20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of Page 44 of 47 the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract."Page 45 of 47
(emphasis supplied)"
38.8 In view of the aboveheld discussion, this question is answered in negative. I hold that the plaintiff has failed to prove that he was ready to perform his part of the contract from the date of entering into the agreement till the date of acquisition of part of the suit property.
Since, this question is answered in negative, the discussion on points 7.3 and 7.5 would be superfluous.
39. The upshot of the aboveheld discussion is that the plaintiff is not entitled to the relief of specific performance of the contract as the same is barred as per Section 16 (c) of The Specific Relief Act, 1963. It is also clarified that there is no requirement to adjudicate upon the nature of the Amending Act, as the provision under Section 16(c) of The Act remains unchanged regarding proof. The only change in Section 16(c) is the deletion of the words 'to aver', and the same has also not been discussed above. The plaintiff has not been able to prove his case either in terms of the Unamended Act or the Amended Act. Consequently, the present issue is decided in favor of the defendants and against the plaintiffs.
40. Relief.
In view of the above discussion, the suit of the plaintiffs is hereby dismissed.Page 46 of 47
No order as to costs.
Decreesheet be prepared accordingly.
File be consigned to record room as per rules.
Announced in the open ( Kartik Taparia ) Court today on 01.08.2022. Civil Judge02 (Central), Tis Hazari Courts, Delhi.Page 47 of 47