Delhi District Court
Shri Shyam Gambhir vs Shri Tara Chand on 28 February, 2023
IN THE COURT OF MS. GEETANJALI, ADDITIONAL DISTRICT
JUDGE - 05 SOUTH EAST, SAKET COURTS: NEW DELHI
CS DJ No. 9031/2016
CNR No. DLSE01-000156-2010
In the matter of :-
Shri Shyam Gambhir
S/o Late Shri R.S. Gambhir
R/o F-16, Satbari, Chattarpur,
New Delhi - 110031 .....Plaintiff
versus
1. Shri Tara Chand
S/o Late Shri Gubax Rai
R/o 65/73, Rohtak Road, New Delhi
(through legal heirs)
1A. Shri Raman Kumar Nayyar
S/o Late Shri Tara Chand Nayyar
R/o Plot No. 7-D-201, House, Sector 5,
Dwarka, New Delhi - 110075
1B. Shri Shammi Nayyar
S/o Late Shri Tara Chand Nayyar
R/o EA-1/72, Inderpuri,
New Delhi - 110012
1C. Ms. Tripta
D/o Late Shri Tara Chand Nayyar
Uri Chowk Bhatala,
District Gurdaspur, Punjab
CS No. 9031/2016
Shyam Gambhir Vs. Tara Chand & Ors Page no.1 of 25
1D. Ms. Chanchal (already expired)
D/o Late Shri Tara Chand Nayyar
Address not known
1D(i) Shri Jagmohan Brar (already expired)
1D(ii) Shri Naveen Brar
KG1/65, Top Floor,
Vikaspuri, New Delhi
1D(iii) Shri Amit Brar
Address not known
2. Ms. Rita Nayyar
W/o Late Shri Sukal Nayyar
R/o 65/73, New Rohtak Road,
New Delhi - 110005
3. Shri Kiran Nayyar
S/o Late Shri Satyapal Nayyar
R/o 65/73, New Rohtak Road,
New Delhi - 110005
4. Smt. Kaushlya Nayyar
W/o Late Shri Satyapal Nayyar
R/o 65/73, New Rohtak Road,
New Delhi - 110005
(through legal heirs)
4(i) Shri Kiran Nayyar
S/o Smt. Kaushlya Nayyar
R/o 65/73, New Rohtak Road,
New Delhi - 110005
4(ii) Ms. Rita Nayyar
CS No. 9031/2016
Shyam Gambhir Vs. Tara Chand & Ors Page no.2 of 25
W/o Late Shri Shukal Nayyar (S/o Smt. Kaushlya Nayyar)
R/o 65/73, New Rohtak Road,
New Delhi - 110005
4(iia) Ms. Aarti
D/o Ms. Rita Nair
R/o 65/73, New Rohtak Road,
New Delhi - 110005
Presently at:
S-4/123, Gali no. 8, First Floor
Old Mahabir Nagar, New Delhi
4(iib) Ms. Bharti
D/o Ms. Rita Nayyar
R/o 65/73, New Rohtak Road,
New Delhi - 110005
Presently at:
212, Deep Enclave,
Amritsar, Punjab
4(iic) Ms. Sonu
D/o Ms. Rita Nayyar
R/o 65/73, New Rohtak Road,
New Delhi - 110005
Presently at:
212, Deep Enclave,
Amritsar, Punjab
4(iii) Mrs. Savita Malik
D/o Smt. Kaushlya Nayyar
R/o 4C/1, First Floor, New Rohtak Road,
New Delhi - 110005
4(iv) Ms. Anita
D/o Smt. Kaushlya Nayyar
R/o D-72, Ground Floor,
Kirti Nagar, New Delhi - 110015
CS No. 9031/2016
Shyam Gambhir Vs. Tara Chand & Ors Page no.3 of 25
Presently at:
B-77, First Floor,
Mansarover Garden, Delhi
4(v) Ms. Sharda
D/o Smt. Kaushlya Nayyar
R/o No. 6, New Fruit Market
AB Road, Indore - 452001
Presently at:
House No. 56, Anup Nagar,
Indore City, Madhya Pradesh
5. Shri Shyam Sunder Khosla
R/o 3/16, Punjabi Bagh
New Delhi
6. Mr. M. Abdul Moin
S/o Mr. Abdul Mubin
R/o A-21, Nizamuddin West,
New Delhi .....Defendants
Date of institution of the suit : 25.10.2010
Date of arguments : 24.02.2023
Date of decision : 28.02.2023
SUIT FOR SPECIFIC PERFORMANCE, DECLARATION AND
PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I intend to dispose off the suit for specific performance, declaration and permanent injunction.
2. Succinctly stated the factual matrix of the case as elucidated from the plaint is that plaintiff agreed to purchase property bearing no. 95, CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.4 of 25 Ishwar Nagar, Khasra No. 1522/328 situated at Okhla, Bagh Shambhu Dayal at Bhapur, New Delhi measuring 550 square yards (hereinafter referred to as "the suit property") for a total consideration of Rs.1,10,00,000/- out of which he paid an advance amount of Rs.25,50,000/- vide advance receipt / agreement to sell dated 25.11.2007. The said agreement was entered by Shri Tara Chand for himself and also being the partner of the firm M/s. Anil Playing Cards under the assurance that he shall get the signatures of other partners as well. However no time period was provided for performance of the said agreement. In the meanwhile, a suit was filed before the Court of the then Ld. Civil Judge against the tenants of the suit property which was ultimately settled in mediation. Thereafter plaintiff continuously approached the defendant and even wrote letters to them to abide by the terms of the agreement dated 25.11.2007 and to execute necessary documents and handover the possession of the property to the plaintiff after receiving their balance payment but the defendants refrained from doing so either on one pretext or the other. All the said chain of events gave cause of action to the plaintiff to file the present suit.
3. Defendant nos. 1(1), 2 and 3 contested the present suit by filing detailed written statement taking preliminary objection to the effect that the plaintiff has not approached the Court with clean hands and has concealed the true and material facts; that plaintiff has not disclosed that the cheque issued in favour of defendant no. 2 got dishonored in due course; that the plaintiff has wrongly mentioned that two cheques amounting to Rs.1 lac each issued in favour of the defendant no. 3 was a CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.5 of 25 commercial transaction between him and the plaintiff and same was not paid as an earnest money; that the documents on which present suit is based are false and fabricated and were not signed by the seller; that plaintiff has no cause of action to file the present suit and hence same is liable to be rejected under order VII Rule 11 CPC; that the alleged agreement is inadmissible in evidence for want of registration / notarization; that the present suit is an abuse of process of law and has been filed in order to extort money from the defendants; that the present suit has been filed by the plaintiff in collusion with defendant no. 1-B; that the plaintiff has no locus standi to file the present suit against the defendants; that the plaintiff did not make any payment in cash to late Shri Tara Chand, Shri Kiran Nayyar, Smt. Rita Nayyar and Smt. Kaushlaya as alleged; that the plaintiff has not valued his suit properly for the purposes of Court-fee; that the plaintiff has alleged that defendants are going to sell plot of land measuring 550 sq. yards whereas the total measurement of the same is 938 square yards out of 3880 square yards but he has not filed any site plan in support of his plea since there was no deal in this regard between the plaintiffs and the defendants; that all the partners of the firm had 1/4th share in the said partnership firm and only one person cannot dispose off the property in question without taking the prior permission of co-owners.
3.1 In reply on merits, the defendants have specifically denied each and every fact alleged in the plaint and has prayed for the dismissal of the suit. 3.2 Defendant nos. 1(b) contested the present suit by filing detailed written statement taking preliminary objection to the effect that the present CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.6 of 25 suit is false, frivolous, baseless and totally misconceived; that the present suit is liable to be dismissed for the reason that the same is based on alleged agreement to sell dated 25.11.2007 purportedly executed by Late Shri Tara Chand and Shri Kiran Nayyar in favour of plaintiff which is not legally valid since they did not have the complete title of the suit property; that answering defendant is one of the co-owners of the suit property but he was neither a party to the said agreement nor received any amount as sale consideration from the plaintiff; that he has no knowledge of said agreement to sell till he received a copy of the plaint; that the suit property was an undivided property and two co-owners of the property did not have right, title or interest vested in them to transfer whole or any part of the same to the exclusion of other co-owners; that the suit suit property was purchased by partnership firm M/s. Anil Playing Cards comprising of four partners namely Shri Surinder Nath Khosla, Shri Shyam Sunder Khosla, Shri Tara Chand Nayyar and Shri Satpal Nayyar and none of the partners had right to sell the property without the consent of other partners; that defendant is not liable to pay any amount to the plaintiff nor liable for performing the contract since he was not party to the same; that answering defendant filed the suit bearing no. 446/007 before the Court of Ld. Civil Judge, Delhi for a decree of perpetual injunction thereby restraining defendants from making any alteration in the revenue record or to create any document of transfer of title from the date of the suit with respect to property bearing Khasra no. 1522/328 Village Bhapur, New Delhi also known as 95, Ishwar Nagar, Near Shambhu Dayal Bagh, Okhla, New Delhi which is under the joint ownership of the answering defendant and CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.7 of 25 others; that the said suit was filed when he came to know that the plaintiff intended to purchase the property from his brother and he was not aware of any agreement to sell prior to filing of the said suit; that his address is wrongly mentioned in the plaint with intention to exclude him from appearing before the Court and to defend the case so as to demonstrate the correct position.
3.3 In reply on merits, he has specifically denied each and every fact alleged in the plaint and has prayed for the dismissal of the suit. 3.4 Defendant nos. 3 filed additional written statement being LR of deceased D-4 taking preliminary objection to the effect that defendant no. 4 did not receive any amount of Rs.5,00,000/- in cash on 25.11.2007 from the plaintiff; that the present suit has been filed with malafide and bad intention to grab the suit property; that the documents filed alongwith the present suit are created documents and same are not valid in law. 3.5 In reply on merits, he has specifically denied each and every fact alleged in the plaint and has prayed for the dismissal of the suit. 3.6 Defendant nos. 4 (iia), 4 (iib) and 4 (iic) contested the present suit by filing detailed joint written statement taking preliminary objection to the effect that present suit is gross abuse of process of law; that the plaintiff has not approached the Court with clean hands; that the present suit is barred by limitation against answering defendants; that the present suit is bad for mis-joinder of necessary parties since defendant no. 4 was not the party to the alleged agreement to sell and hence liable to be dismissed; that even otherwise alleged agreement to sell and receipt are not binding on the answering defendants; that the document on which CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.8 of 25 plaintiff has relied are false and fabricated documents and were not signed by the seller; that there is no privity of contract between the plaintiff and the answering defendants; that the present suit is based on totally false, vague, frivolous, misconceived and concocted story without any rhyme or reason; that no cause of action has arisen in favour of the plaintiff and against the defendant no. 4 and plaintiff wants to extort money from the answering defendant; that the proceedings against defendant no. 4 already stands abated under Order XXII Rule 4 CPC.
3.7 In reply on merits, the LR nos. nos. 4 (iia), 4 (iib) and 4 (iic) have specifically denied each and every fact alleged in the plaint and has prayed for the dismissal of the suit.
3.8 Defendant no.5 contested the present suit by filing detailed written statement taking preliminary objection to the effect that the present suit is based on totally false, vague, frivolous, misconceived and concocted story without any rhyme or reason; that the plaintiff has not approached the Court with clean hands and has suppressed material facts; that there is no privity of contract between the plaintiff and the answering defendant; that this Court has no jurisdiction to entertain and try the present suit since no cause of action ever arose for filing the present suit; that the present suit is hit by provisions of Transfer of Property Act, Indian Stamp Act, The Registration Act and Indian Evidence Act; that plaintiff has nowhere pleaded in the plaint that he is still ready and willing to pay the rest of the amount; that present suit has been filed with ulterior motive to extort money from the answering defendant and to harass him on the instigation, collusion and dictate of one of the LR of Late Shri Tara Chand and CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.9 of 25 grabbing the whole property by preparing fake and forged documents; that the present suit is bad for mis-joinder of necessary party; that the property has already been sold vide sale deed and hence present suit for permanent and mandatory injunction is not maintainable; that the answering defendant never received any amount as alleged and hence relief of damages is also not maintainable; that the plaintiff has not valued his suit properly for the purposes of Court-fee and jurisdiction. 3.9 In reply on merits, defendant no. 5 has specifically denied each and every fact alleged in the plaint and has prayed for the dismissal of the suit. 3.10 Defendant no. 6 contested the present suit by filing detailed written statement taking preliminary objection to the effect that he is bonafide purchase of property no. 95 (old no. 96), Ishwar Nagar, New Delhi (comprised in Khasra No. 1522/328 khewat/khatauni 134/394 situated at Okhla Estate Road, Near Bagh Shambhu Dayal; that the present suit is devoid of any action and thus liable to be rejected; that there is no privity of contract between plaintiff and answering defendant; that the partnership firm M/s. Anil Playing Cards was the owner of the suit property and it could not have been sold by partners in their individual capacity. 3.11 In reply on merits, defendant no. 6 has specifically denied each and every fact alleged in the plaint and has prayed for the dismissal of the suit.
4. The plaintiff has filed separate replications to the written statement of defendant no. 1(a), 2, 3 and defendant no. 6 thereby reaffirming and reiterating the contents of plaint and denying the contents of written statements.
5. From the pleadings of the parties, following issues were framed CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.10 of 25 vide order dated 25.02.2015:
1. Whether the defendant No. 1 and had entered into the receipt cum agreement to sell dated 25.11.2007 with the Plaintiff? OPP
2. Whether defendants have received the consideration in lieu of the Agreement to Sell? OPP
3. Whether the property described in the purported agreement dated 25.11.2007 is unidentifiable and the share of the alleged sellers not defined and hence the plaintiff is not entitled to specific performance of agreement dated 25.11.2007? OPDs
4. Whether the suit is bad in law for non-joinder/misjoinder of necessary parties? OPDs
5. Whether the suit is liable to be dismissed for seeking performance of an unenforceable agreement purportedly entered into between the plaintiff and defendant no. 1 to 5? OPDs
6. Whether the suit seeking declaration simplicitor without consequential relief is not maintainable as against defendant no. 6? OPD
7. Whether the plaintiff is entitled to decree of specific performance of agreement dated 25.11.2007? OPP
8. Whether the plaintiff is guilty of suppression and concealment of facts? OPD
9. Whether the agreement to sell dated 25..11.2007 is a forged and fabricated document? OPDs
10.Whether the suit has been properly valued and proper court fee had been paid?
11.Relief.
Thereafter, matter was fixed for plaintiff's evidence
6. In order to prove his case, the plaintiff examined himself as PW-1 and has tendered his evidence by way of affidavit Ex.PW-1/A wherein he has reiterated the averments made in the plaint. He has relied upon the CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.11 of 25 documents i.e. copy of sale deed dated 18.02.1960 as Mark A, agreement to sale dated 25.11.2007 as Ex. PW1/1, order dated 05.03.2008 as Ex. PW1/2, order dated 30.11.2007, order dated 26.02.2008 as Ex. PW1/4, order dated 19.04.2008 as Ex. PW1/5, statement of Shri Shammi8 Nayyar dated 19.04.2008 as as Ex. PW1/6, statement of Shri Raman Kumar Nayyar dated 19.04.2008 as as Ex. PW1/7, decree sheet dated 19.04.2008 as as Ex. PW1/8, statement of plaintiff as as Ex. PW1/9, copy of civil suit no. 446/2007 as as Ex. PW1/10 (colly.), letter dated 27.05.2008 as as Ex. PW1/11(colly.), letter dated 03.02.2010 as Ex. PW1/12 (colly.), copy of letter dated 2.04.2010 as Mark B, copy of bank statement of plaintiff as Mark C, joint application on behalf of plaintiff and defendant no. 1 and 3 as Ex. PW1/15, application for preponing/compromise as Ex. PW1/16. He was extensively cross examined by ld. counsel for defendants.
7. In defence, defendants examined six witnesses. Defendant no.1(a) examined himself as DW-1 and tendered his evidence by way of affidavit Ex.DW-1/A wherein he has reiterated and reaffirmed the contents of written statement. He was cross examined at length by ld. counsel for plaintiff.
7.1 Defendant no.3 examined himself as DW-2 and tendered his evidence by way of affidavit Ex.DW-2/A wherein he has reiterated and reaffirmed the contents of written statement. He relied on the documents i.e. Ex.PW1/D1 (colly.) and Ex. PW1/D2 (colly.). He was cross examined at length by ld. counsel for plaintiff.
7.2 Defendant no.1(b) examined himself as DW-3 and tendered his evidence by way of affidavit Ex.DW-1/3 wherein he has reiterated and CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.12 of 25 reaffirmed the contents of written statement. He was cross examined at length by ld. counsel for plaintiff.
7.3 Defendant no.4(ii) examined herself as DW-4 and tendered her evidence by way of affidavit Ex.DW-4/A wherein she has reiterated and reaffirmed the contents of written statement. She was cross examined at length by ld. counsel for plaintiff.
7.4 Defendant no.4(iia) examined herself as DW-5 and tendered her evidence by way of affidavit Ex.DW-5/A wherein she has reiterated and reaffirmed the contents of written statement. She relied on the document i.e. death certificate as Ex. DW5/A annexed with the affidavit. She was cross examined at length by ld. counsel for plaintiff. 7.5 Defendant no.6 examined himself as DW-6 and tendered his evidence by way of affidavit Ex.DW-6/A wherein he has reiterated and reaffirmed the contents of written statement. He relied on the document i.e. copy of sale deed as Ex. DW6/1 (OSR). He was cross examined at length by ld. counsel for plaintiff. Thereafter matter was fixed for final arguments.
8. I have heard both the parties and meticulously gone through the record including written arguments.
9. My issue-wise findings are as follows:-
Issue no. 1, 2, 5, 7 and 9
1. Whether the defendant No. 1 and had entered into the receipt cum agreement to sell dated 25.11.2007 with the Plaintiff? OPP
2. Whether defendants have received the consideration in lieu of the Agreement to Sell? OPP
5. Whether the suit is liable to be dismissed for seeking performance CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.13 of 25 of an unenforceable agreement purportedly entered into between the plaintiff and defendant no. 1 to 5? OPDs
7. whether the plaintiff is entitled to decree of specific performance of agreement dated 25.11.2007? OPP and
9. Whether the agreement to sell dated 25..11.2007 is a forged and fabricated document? OPDs
10. All these issues are taken up together since they are interconnected and finding on one issue will have bearing on the other. The onus to prove issues no.1, 2 and 7 was placed upon the plaintiff and that of issue nos. 5 and 9 was upon the defendants.
11. This is a suit filed for specific performance of contract on the basis of agreement to sell dated 25.11.2007. In a suit for specific performance, the plaintiff has to prove a valid sale agreement; the breach of the contract by the defendant; and readiness and willingness of the plaintiff to perform part of the contract.
12. PW-1 has deposed that he agreed to purchase the suit property for a total consideration of Rs.1,10,00,000/- out of which he paid an advance amount of Rs.25,50,000/- vide advance receipt / agreement to sell dated 25.11.2007; that out of the said amount of Rs.25,50,000/-, Rs.50,000/- was paid through cheque and Rs.12,00,000/- in cash to deceased defendant no.1, Rs.2,70,000/- through cheque and Rs.2,45,000/- in cash to defendant no. 3, Rs.35,000/- through cheque and Rs.2,00,000/- in cash to defendant no.2, Rs.5,00,000/- in cash to defendant no. 4 and Rs.50,000/- through cheque to Shri Shyam Sunder. The agreement to sell is Ex. PW1/1. Per contra all the defence witnesses have claimed the said agreement to be CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.14 of 25 forged and fabricated. It is pertinent to note here that the agreement to sell Ex. PW1/1 was entered between plaintiff and deceased defendant no. 1 Shri Tara Chand, defendant no. 2 Ms. Rita Nayar, defendant no. 3 Shri Kiran Nayyar and defendant no. 4 Smt. Kaushalya Nayar out of whom Ms. Rita Nayyar examined herself as DW-4, Shri Kiran Nayyar as DW-2 and son of Shri Tara Chand namely Shri Raman Nayyar entered into the witness box as DW-1 and all of them have deposed that the payment made through cheque, as shown in the agreement to sell, was towards the payment of commercial transaction but they failed to prove their said plea as apparent from their testimonies since DW-1 has deposed about the commercial transaction of supply of packaging, box and cartons between plaintiff and defendant no. 3 i.e. Shri Kiran Nayyar whereas Shri Kiran Nayyar i.e. DW-2 mentioned about commercial transaction relating to his proprietorship firm M/s. Vikas Printers. Secondly, DW-1 has come with the different story in his cross-examination and deposed that the signatures of his father was taken on some blank papers by the plaintiff in context of sale of some old machineries belonging to M/s. Anil Playing Cards.
Thirdly, it was only after filing of present suit did DW-4 Ms. Rita Nayyar came to know during family discussion that the false case has been filed against them by the plaintiff in collusion with defendant no. 1(b) Shri Shammi Nayyar which is quite an interesting fact. Fourthly, it was the defendants who took the plea that the agreement to sell Ex. PW1/1 was forged document but they have not led any evidence to prove their said plea. It was the burden of the defendant to prove the fact of fraud and forgery and in the absence of any such proof, it cannot be held that the CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.15 of 25 allegation stands proved. Section 101 Evidence Act reads thus: "Burden of proof, - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists."
13. In view of the same, it was the burden of the defendants to prove their allegation of forgery and to prove that the signature or the thumb impression on the document does not belong to them but they not led any expert evidence to prove the same. A minute scrutiny of the averments set out in the defence disclose that the allegations are general in nature. It is not the mere use of the general words such as 'forged' and 'fabricated' that can serve as a foundation for the plea. In view of the same, I came to the conclusion that defendants have failed to prove their allegation qua forgery which tilt the balance of probability scale in the favour of plaintiff.
14. Apart from challenging the veracity of agreement to sell, defendants have also disputed the payments made therein. PW-1 has deposed that out of the total paid amount of Rs.25,50,000/-, Rs.50,000/- was paid through cheque and Rs.12,00,000/- in cash to deceased defendant no. 1, Rs.2,70,000/- through cheque and Rs.2,45,000/- in cash to defendant no.3, Rs.35,000/- through cheque and Rs.2,00,000/- in cash to defendant no.2, Rs.5,00,000/- in cash to defendant no.4 and Rs.50,000/- through cheque to Shri Shyam Sunder.
14.1 DW-1 Shri Raman Kumar Nayyar, DW-2 Shri Kiran Nayyar as well as DW-4 Ms. Rita Nayyar deposed that two cheque of Rs.1,00,000/- each were issued in favour of DW-2 in relation of a commercial transaction and since in view of the aforesaid finding, they have failed to prove any CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.16 of 25 commercial transaction with the plaintiff, it is quite probable that the said cheques were issued pursuant to the agreement to sell. 14.2 Coming to second ingredient i.e. breach of contract by the defendant, PW-1 has deposed that "...the agreement, as per its terms and conditions, was irrevocable and no time period was provided in the agreement for the simple reason that the formalities of the agreement were likely to take time". Here I pause for a moment and try to comprehend what all formalities did the plaintiff is talking and if that formality relates to the execution of documents generally a time period is given in the agreement to sell during which period that has to be done. It will not mean that the parties will leave the agreement open ended and if any of the term of the agreement is left loose, it will definitely lead to the conclusion that there was no concluded agreement between the parties. and when there is no concluded contract, where comes the question of its breach.
14.3 Coming to third ingredient, Section (16)(c) of the Specific Relief Act mandates "readiness" and "willingness" on the part of the plaintiff as condition precedent to seek specific performance. For the sake of convenience, Section 16(c) is reproduced hereunder:-
"Section 16. Personal bars to relief.
Specific performance of a contract cannot be enforced in favour of a person xxx xxx xxx
(c) who fails to aver and 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 defendants."CS No. 9031/2016
Shyam Gambhir Vs. Tara Chand & Ors Page no.17 of 25
Explanation - For the purpose of Clause (c),
(i) where a contract involves the payment of money, it is
not essential for the plaintiff to actually tender to the defendants or to deposit in Court any money except when so directed by the Court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
14.4 Section 16(c) of the Specific Relief Act provided that specific performance of an agreement cannot be enforced in favour of a person who has failed to aver and 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 the terms, the performance of which has been prevented or waived by the defendant. The words "ready" and "willing" imply that plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The "readiness" and "willingness" are two separate issues. The former depends on the availability of requisite funds whereas the latter depends on the intention of the purchaser.
14.5 With this background, I revert to the testimony of the plaintiff. PW- 1 has deposed that that "thereafter the plaintiff continuously approached the defendants and even wrote letters to them to abide by the terms of the agreement dated 25.11.2007 and to execute necessary documents and handover the possession of the property to the plaintiff after receiving their balance payment, but the defendants refrained from doing so either on one pretext or the other". From the aforesaid, it has become quite apparent that plaintiff has nowhere shown his readiness and willingness to CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.18 of 25 perform the contract. He has neither shown the availability of requisite funds with him nor produced any document in support of the same. When the parties enter into an agreement relating to immovable property, they amicably agree on the sale consideration, earnest money as well as the payment of the balance sale consideration however PW-1 has himself deposed that no time was settled for the payment of balance sale consideration and when no time was fixed for balance sale consideration, how it can be said that contract remains to be performed. In N.P. Thirugnanam Vs. Dr. R. Jagan Mohan Rao, 1995 (SLT Soft) 865 = (1995) 5 SCC, the Hon'ble Supreme Court held that the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances to adjudge the "readiness" and "willingness" of the plaintiff. The amount of balance sale consideration must be proved to be available with the purchaser right from the date of execution till date of decree". It is further held that "section 16(c) of 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 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". However, no such evidence has been led by the plaintiff in the present CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.19 of 25 case which tilt the balance of probability scale in the favour of defendant. 14.6 During the course of arguments, it was submitted by Ld. counsel for plaintiff that it is a settled law that if the defence taken in a suit of specific performance is that the agreement was not executed by the defendant and if the same is proved against the defendant and agreement is held to be validity executed, then the question of readiness and willingness does not arise and it is not open to the defendant to raise such a plea. Reliance is placed on the judgment of Hon'ble High Court of Delhi passed in the case of 'Ram Ratan Vs. Kalla & Anr, 2015 SCC Online Raj 3083'. However, the judgment quoted by the plaintiff itself does not support his plea since it has been held in the very said judgment "here in the present case, there is specific evidence of the plaintiff- appellant that he is ready and willing to perform part of his contract and for the same, he went to respondent no.1 on 11.02.1983 with balance sale price and this fact has not been denied even by the respondent in his statement before the court below". The abovesaid is not the situation in the present case. 14.7 The civil cases are to be decided on the basis of preponderance of probabilities. Preponderance means the evidence that persuades a judge to lean to one side as opposed to the other, during the course of litigation. The plaintiff bears the burden to prove his claim by preponderance of the evidence. When a party has a burden of proof it means they must be able to persuade by the evidence that the claim is more probably true then not. The evidence on one side is perceived outweighing the other, if the evidence on one side is more persuasive and impressive than the evidence of other side. In the present case the evidence led by the plaintiff is not CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.20 of 25 able to persuade that his claim is more probably true and is outweighing the contentions of the defendants. The contentions of the defendants prevails over that of the plaintiff.
14.8 In view of the aforesaid discussion, I held that though plaintiff has succeeded in proving that he entered into agreement to sell with deceased defendant no.1 and defendant no. 2 Ms. Rita Nayar, defendant no. 3 Shri Kiran Nayyar and defendant no. 4 Smt. Kaushalya Nayar and also succeeded in proving the payment of amount so mentioned in the agreement but failed to establish his readiness and willingness in paying the remaining consideration amount. Hence, the plaintiff is not entitled to decree of specific performance despite the fact that defendants failed to establish the said agreement to sell to be forged and fabricated. Though issues no.1, 2 and 5 are decided in favour of the plaintiff and issue no. 9 goes against the defendants however issue no. 7 goes against the plaintiff. Issue no. 3 Whether the property described in the purported agreement dated 25.11.2007 is unidentifiable and the share of the alleged sellers not defined and hence the plaintiff is not entitled to specific performance of agreement dated 25.11.2007? OPDs
15. The onus to prove this issue was placed upon the defendants. The plaintiff has filed the present suit for specific performance of the agreement qua the suit property admeasuring 550 sq.yds. DW-2 has deposed that plaintiff alleged that the defendants are going to sell a plot of land measuring 550 sq.yds. while in the fact the total measurement of plot of land is 938 sq.yds. out of 3880 sq.yds. but he has not filed any site plan in support of his version because there was no deal in this regard between CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.21 of 25 the plaintiff and the parties to the agreement. PW-1 has admitted that there are four partners of Anil Playing Cards i.e. Shri Tara Chand, Shri Surinder Nath, Shri Shyam Sundar and Shri Satpal Nayyar and all are the owners of the suit property and admittedly the agreement to sell was not entered with all the partners. He has further admitted that he is not aware about the area of the suit property neither he has filed the site plan to show the identification of the suit property and the share of respective shareholders. However there is no bar in buying the unidentified portion of the stakeholders in the suit property provided they have their stakes in the same and nobody can raise question mark to the fact that the defendants have the stakes in the suit property. Furthermore the addition of bonafide purchaser of the suit property as defendant no. 6 has itself identified the suit property.
15.1 In view of the aforesaid discussion, buying the unidentified share of defendants will not prove fatal to the case of the plaintiff. The issue is accordingly decided against the defendants.
Issue no. 4 Whether the suit is bad in law for non-joinder/misjoinder of necessary parties? OPDs
16. The onus to prove this issue was placed upon the defendants. The suit of the plaintiff is objected from the side of defendants on the ground of mis-joinder of parties. It was argued from the side of defendant no. 1(b) that since he was not party to the agreement to sell therefore he has been wrongly arrayed in the present suit.
CS No. 9031/2016Shyam Gambhir Vs. Tara Chand & Ors Page no.22 of 25 16.1 The agreement to sell Ex. PW1/1 was entered between plaintiff and deceased defendant no. 1 Shri Tara Chand, defendant no. 2 Ms. Rita Nayar, defendant no. 3 Shri Kiran Nayyar and defendant no. 4 Smt. Kaushalya Nayar and defendant no. 1(b) has been impleaded being LR of deceased Shri Tara Chand. In view of the same, this objection taken by the defendant is found to be frivolous. The issue is accordingly decided in favour of the plaintiff.
Issue no. 6 Whether the suit seeking declaration simplicitor without consequential relief is not maintainable as against defendant no. 6? OPD
17. The onus to prove this issue was placed upon the defendants. It was contended from the side of defendants that despite filing copy of registered sale deed dated 03.03.2010 in favour of M/s. Jaipur Jewellers on record by the defendant no. 6 alongwith his written statement the plaintiff did not amend his suit. The plaintiff did not seek cancellation of the registered sale deed executed in favour of M/s. Jaipur Jewellers for consideration of Rs.3,05,00,000/- as a consequential relief and continued with his relief seeking declaration simplicitor. Hence the suit seeking declaration simplicitor without consequential relief is liable to be dismissed.
17.1 The plaintiff has sought relief of declaration that any document if at all executed by defendant no. 1 to 5 in favour of defendant no. 6 or any other person in respect of the suit property be declared null and void in operative for all purposes alongwith his relief for specific performance of contract. It was the burden of the plaintiff to prove that he is entitled to CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.23 of 25 relief of specific performance of agreement and the burden of defendant no. 6 is to prove himself to be bonafide purchaser. In case plaintiff succeeds in his case that will result in declaration of all documents executed after his agreement to sell as null and void. Per contra if defendant succeeds in establishing himself to be bonafide purchaser, his sale deed will stand the ground. In view of the same, the objection taken from the side of defendant is without any consequence. The issue is answered accordingly.
Issue no. 8 Whether the plaintiff is guilty of suppression and concealment of facts? OPD
18. The onus to prove this issue was placed upon the defendants. It was contended from the side of defendants that plaintiff is not entitled to any relief since he has based his claim on the agreement to sell dated 25.11.2007 which was never executed. However in view of the above said findings on the aforesaid issues, there remains nothing in the present issue for adjudication.
Issue no. 10 Whether the suit has been properly valued and proper court fee had been paid?
19. The onus to prove this issue was placed upon the defendants. The defendant took preliminary objection in his written statement that the plaintiff has not properly valued his suit for the purposes of court fees because plaintiff is required to assess and pay court-fee on the market value of the property and has relied on the sale deed executed in favour of defendant no. 6 to support their averment. Per contra plaintiff has valued CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.24 of 25 his suit at Rs.1,10,00,000/- for relief of specific performance and at Rs.200/- for relief of declaration and plaintiff is not liable to value his suit on the basis of sale deed of defendant no. 6 since he did not amend his plaint pursuant to addition of defendant no. 6. The issue is accordingly decided in favour of the plaintiff.
RELIEF.
20. In view of aforesaid findings on issue no. 7, the suit of the plaintiff is hereby dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to Record Room. Digitally signed by GEETANJALI GEETANJALI Date:
2023.03.01 Typed to the dictation directly (Geetanjali) 15:51:07 Corrected and announced Ld. Additional District Judge-05 +0530 in the open court on this day South East/Saket Courts 28.02.2023 New Delhi/28.02.2023 CS No. 9031/2016 Shyam Gambhir Vs. Tara Chand & Ors Page no.25 of 25