Delhi High Court
Kailash Chand vs Ganesh on 29 September, 2015
Author: Mukta Gupta
Bench: Pradeep Nandrajog, Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: September 22, 2015
% Judgment Delivered on: September 29, 2015
+ RFA(OS) 140/2013
KAILASH CHAND ..... Appellant
Represented by: Ms.Neha Kapoor, Advocate
versus
GANESH ..... Respondent
Represented by: Mr.B.L.Chawla, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. Ganesh field a suit being CS(OS) No.1445/2005 against the appellant/ defendant seeking specific performance of the agreement to sell dated June 18, 2004 for sale of 1/3rd share of half Kila (2 bigha and 8 biswas) out of khasra No.28/11 situated in the Revenue Estate of Village Kakrola near Colony Bharat Vihar, New Delhi (in short the suit property) for a total consideration of `20 lakhs with delivery of vacant possession; injunction from conveying, alienating or transferring the suit property or in the alternative compensation and damages. In the plaint Ganesh claimed that out of a total sum of `20 lakhs earnest money of `2 lakhs was paid with further payments of `4 lakhs in cash and `2 lakhs by way of cheques; thus totalling to `8 lakhs. The bayana receipt was exhibited as Ex.P-1 and the receipt of total consideration of `8 lakhs as Ex.P-2. To show his readiness and willingness to perform the agreement, Ganesh also proved the pay RFA(OS) 140/2013 Page 1 of 12 orders and the banker‟s cheques got prepared on September 14, 2004 for payment of the balance consideration, however they were got cancelled on a mutual agreement entered into between the parties on September 14, 2004 exhibited as Ex.P-6 wherein the final date of payment of balance consideration and execution of the documents was agreed to be October 04, 2004. Ganesh pleaded that he sent a telegram on October 02, 2004 calling upon Kailash Chand to complete the sale transaction by October 04, 2004. However, despite no reply received Ganesh went to the office of Sub- Registrar Janakpuri, New Delhi on October 04, 2004 inspected the records and marked his attendance. The affidavit dated October 04, 2004 and the receipt issued by the Sub-Registrar were exhibited as Ex.P-9 and P-8 respectively. On coming to know about the intended sale of the suit property by Kailash Chand, Ganesh filed a suit with the prayers as noted above.
2. In the written statement preliminary objections were taken that Kailash Chand was not competent to execute the sale deed in favour of Ganesh by virtue of Section 4/5 of the Delhi Land (Restrictions on Transfer) Act, 1972 (in short the DLRT Act) and that no proper division of the property had taken place between the co-owner, thus the suit was not maintainable. On merits Kailash Chand, however, admitted receiving the earnest money on June 18, 2004. Kailash Chand denied plaintiff being ready and willing to pay the balance amount or that he received the telegram. The agreement dated September 14, 2004 was entered into between the parties was admitted however it was stated that the agreement was entered into when Ganesh took the entire responsibility of getting the sale completed but he had no intention to get the sale deed executed as he RFA(OS) 140/2013 Page 2 of 12 never purchased the necessary stamp papers for registration of sale deed and without completion of these formalities there was no question of execution and registration of sale deed. Kailash Chand admitted having signed necessary forms for obtaining permission/ transfer under Section 4 and 5 of the DLRT Act.
3. On the pleadings of the parties following issues were settled:
(i) Whether the suit of the plaintiff is barred by Sections 4 and 5 of the Delhi Land (Restriction on Transfer) Act, 1972? (OPD)
(ii) Whether the plaintiff was ready and willing to perform his obligations under the Agreements dated 18.06.2004 and 14.09.2004 in respect of the suit property? (OPP)
(iii) Whether the plaintiff is entitled to specific performance of the two Agreements? (OPP)
(iv) If issue No.3 is decided against the plaintiff; whether the plaintiff is entitled to the alternative relief of damages? If so, the extent thereof? (OPP)
(v) Whether the plaintiff is entitled to any interest? If so, at what rate, on what amount and for which period? (OPP)
(vi) Relief."
4. Ganesh examined himself as PW-1 whereas Kailash Chand examined himself as DW-1 besides examining Shri Ashok Kumar from State Bank of Bikaner and Jaipur as DW-2 and Shri Ram Kailash from Syndicate Bank as DW-3.
5. Vide the impugned judgment dated October 09, 2013 the learned Single Judge decided issue No.(i) relating to the suit being barred by Section 4 and 5 of the DLRT Act against the defendant in view of his admission in cross-examination wherein he stated "No sale permission was required to be obtained from any authority". As regards issue No.(ii) learned Single Judge RFA(OS) 140/2013 Page 3 of 12 held that the plaintiff has proved payment of `8 lakhs out of total sale consideration of `20 lakhs and has also proved that he was present in the office of Sub-Registrar on October 04, 2004; besides he had also got prepared pay orders for the balance amount. In view of the admission of Kailash Chand about the completion of sale being extended up to October 04, 2004 and DW-2 and DW-3 confirming preparation of banker‟s cheque/ pay orders learned Single Judge held that Ganesh has been able to show that he has performed his part of contract and was ready with the money for the stamp paper and the attempt by Kailash Chand to discredit Ganesh in his cross-examination on this aspect thus fails. Thus the suit was decreed in favour of Ganesh directing Kailash Chand to execute the sale deed by receiving the balance sale consideration of `12 lakhs with cost of `10,000/- in favour of Ganesh.
6. Challenging the judgment and decree dated October 09, 2013 Kailash Chand filed the present appeal being RFA(OS) 140/2013 which was heard by the Division Bench of this Court on the first date itself i.e. November 18, 2013 and decided. Since the appeal was dismissed Kailash Chand preferred a Special Leave Petition wherein the judgment dated November 25, 2013 has been set aside for the reason that the appeal was disposed of without admitting the case. The appeal stands admitted and with consent of the parties it has been finally heard in the category of „After Notice Miscellaneous Matters.
7. The argument of learned counsel for Kailash Chand before this Court is that having not purchased the necessary stamp papers for execution of the sale deed the finding of the learned Single Judge that Ganesh was ready and willing to perform his part of the contract is liable to be set aside. The RFA(OS) 140/2013 Page 4 of 12 second plea assailing the impugned judgment urged is that the agreement in question relates back to 2004 and in 10 years the rates of the properties in urban areas have arisen steeply and thus the delay caused in specific performance is a good ground for declining specific performance of the contract and that an alternative relief of damages could be awarded. Reference is made to (1997) 3 SCC 1 K.S.Vidyanadam & Ors. Vs. Vairavan and (2011) 12 SCC 18 Sardamani Kandappan Vs. Rajalakshmi & Ors. Thus learned counsel for Kailash Chand does not challenge the finding of the learned Single Judge on issue No.(i) and also the findings to the effect that an agreement to sell was entered where after earnest money was paid and thereafter a further mutual agreement was entered into between the parties on September 14, 2004 along with the receipt and rightly so for the reason Kailash Chand admits all these facts in his deposition and cross- examination.
8. The issues which thus arise for consideration are whether in the absence of any evidence being led by Ganesh that he bought the stamp papers for execution of the sale deed, can it be held that Ganesh was not ready and willing to perform his part of the agreement and secondly in view of the time gap between the agreement to sell and the suit being decreed whether the learned Single Judge ought to have directed compensation instead of specific performance of the agreement.
9. As noted above Kailash Chand admits entering into agreement to sell and having received `2 lakhs on June 18, 2004 and that a total sum of `8 lakhs had been received and the sale was to be completed by September 15, 2004 and that the time for completion of sale was extended to October 04, 2004 vide Ex.P-6. Ashok Kumar DW-2 from State Bank of Bikaner and RFA(OS) 140/2013 Page 5 of 12 Jaipur stated that banker‟s cheques dated September 14, 2004 for a sum of `1,70,000/- and `6 lakhs were issued which were cancelled on the request of the account holder on October 07, 2004 and October 13, 2004. He proved the copy of the applications as Ex.DW-2/1 to DW-2/3, copy of the banker‟s cheque vide Ex.DW-2/4 and DW-2/5. Further DW-3 Ram Kailash admitted pay order dated September 14, 2004 being got prepared for a sum of `2 lakhs, and drafts of `1,30,000/- and `1 lakh prepared on September 14, 2004 which were cancelled subsequently. Ganesh has also proved that he went to the office of Sub-Registrar on October 04, 2004 for execution of the documents. In cross-examination Ganesh stated that both the parties reached the office of Sub-Registrar, Najafgarh on September 14, 2004 for execution of the papers but the defendant demanded time till October 04, 2004 as his documents were not complete and thus pay orders were not given to the defendant and were retained by him. He further stated that they had given money to the deed writer to purchase the stamp papers for execution of the sale deed but stamp papers were not purchased. Merely because Ganesh has not been able to prove that he purchased the stamp papers on that date would not lead to an inference that he was not ready and willing to perform his part of the contract.
10. The distinction between readiness and willingness was aptly brought out in the decision reported as AIR 1985 Allahabad 223 Bijai Bahadur & Ors. Vs. Shri Shiv Kumar & Anr. as under:
"13. There seems to be an essential difference between the terms „willingness‟ and „readiness‟. Since these two terms having almost a similar meaning have been used in a sequence, it would only be fair to assume that the legislature had done this with a view to distinguish between the two. What is the RFA(OS) 140/2013 Page 6 of 12 difference between „willingness‟ and „readiness‟ must, therefore, be examined first.
14. According to Bouvier's Law Dictionary, IIIrd Revision, the expression „ready and willing‟ has been defined as "implies capacity to act as well as disposition." In Stroud Dictionary, this expression is defined as under:
"It implies not only the disposition but the capacity to do the act."
Plaintiff must show that non-completion of the contract was not the fault of the plaintiffs and that they were disposed and able to complete it if it had not been renounced by the defendants."
15. In Webster Dictionary page 796, „ready‟ is defined as "prompt in performance or action" and „willing‟ at page 1138 is defined as "having the mind inclined not averse, desirous, ready, relating to or pertaining to power or process of choice, volitional."
16. Corpus Juris Secundum defines the word "ready" is "variously defined as meaning prepared for what one is about to do or experience; prepared for immediate movement or action: causing no delay for lack of being prepared; equipped or supplied with what is needed for some act or event, inclined or willing." It also mentions that „ready‟ has been held to be synonymous with „prompt‟ „Willing‟ has been defined as "desirous, inclined or favourably disposed in mind; ready; it has been compared with „justified Willingness‟ according to Corpus Juris Secundum, "Signifies a mental state and may be evidenced by consent."
17. All the above definitions clearly point out at least one thing that „readiness and willingness‟ are sometimes treated as synonymous and have almost the same sense or meaning but there is a clear cut distinction between the two while „willingness‟ is merely mental process, „readiness‟ is something to do with translating that will into action and is preceded by necessary preparation for being in a position to be ready. In RFA(OS) 140/2013 Page 7 of 12 other words, we can say that while „willingness‟ may be something to do mainly with a person's mental process to do an act, his readiness implies close proximity of such willingness and its ultimate physical manifestation. „Readiness‟ must in all cases be backed by „willingness‟ and its imminent physical action is demonstrated when it is about to be put into action. Time lag between the two may sometimes be very short, may even be negligible, but it must always be preceded by an intention or a will to do. In short, „readiness‟ must be said to be the total equipment of a person who is willing to do a thing before he actually does it.
18. There may be cases where though a person may be willing, yet may not be able to do what he wills. He cannot be said to be ready to it. In other cases, the person may possess all that is necessary to do an act. He may be ready but if the will to do is not there, his willingness will be lacking. One cannot remain unaware of such cases in which the plaintiff may go on demanding performance of the contract for keeping the agreement alive, yet really speaking he does not intend to pursue the matter but only wants to keep it alive for some ulterior motives. Since in granting specific performance the Court acts in equity, it becomes necessary that a high standard of equitable conduct must be displayed by the plaintiff. It is for this reason that a rigor of this kind has been provided in S. 16. It is primarily to eliminate any element of fraud and risk of a party taking undue advantage of the other that the discretion to decree specific performance has still been left with the Court.
11. In the present case from the evidence on record it is evident that when parties reached the office of the Sub-Registrar on September 14, 2004 Ganesh was in possession of the balance amount of `12 lakhs by way of banker‟s cheque/ pay orders when Kailash Chand sought extension of time till October 04, 2004 as his documents were not ready. To show his readiness and willingness to perform the agreement Ganesh further sent a RFA(OS) 140/2013 Page 8 of 12 telegram on October 02, 2004 when again he was ready with the balance payment. According to his evidence money has already been given to the deed writer for purchasing the stamp paper and it is not unnatural that since Kailash Chand did not appear before the office of Sub-Registrar on October 04, 2004 for execution of the documents no stamp papers were purchased. The readiness and willingness of Ganesh is further evident from his presence in the office of the Sub-Registrar on October 04, 2004.
12. As regards the main contention of learned counsel for the appellant that due to passage of time since the prices of urban property have arisen drastically, no directions for specific performance of the agreement dated June 18, 2004 can be given, it may be noted that after Kailash Chand failed to execute the sale deed on October 04, 2004 Ganesh instituted the suit on October 05, 2005 i.e. within the period of limitation. The suit was finally decided on October 09, 2013. After the settlement of issues on April 28, 2006 PW-1 Ganesh was examined on December 11, 2006, finally cross- examined and discharged on March 07, 2008. Thereafter learned counsel for the defendant sought time to file the evidence by way of affidavit and the matter proceeded for conclusion of defence evidence till November 27, 2009. The delay in passing of the judgment and decree is not attributable to the plaintiff Ganesh, if Ganesh has taken adjournments equal number of adjournments have been taken by Kailash Chand.
13. Explanation to Section 10 of the Specific Relief Act, 1963 provides as under:
"Unless and until the contrary is proved, the Court shall presume (i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money;............"RFA(OS) 140/2013 Page 9 of 12
14. Thus a statutory presumption having been raised Kailash Chand was required to rebut the same, however no evidence has been led on this count nor is it substantiated during arguments.
15. In the decision reported as (1996) 10 SCC 51 Pandurang Ganpat Tanawade Vs. Ganpat Bhairu Kadam & Ors. Supreme Court noting that the plaintiff was always ready and willing to perform his part of the contract however in view of the depreciation in the value of the rupee during the period directed the plaintiff to pay an additional sum and held:
"8. In view of the aforesaid statements of the appellant and Respondent 1 as well as the averments contained in paras 6 and 10 of the plaint, it must be held that the appellant has not only averred, but has also proved that he was ready and willing to perform his part of the contract under the agreement for sale. The appellate court and the High Court were, therefore, in error in holding that the appellant had failed to comply with the requirements of Section 16(c) of the Specific Relief Act and the appellant must be held entitled to a decree for specific performance of the contract in the suit filed by him. We find that the possession of the land was delivered to the appellant in 1976 at the time of execution of the agreement for sale and he is in possession of the same and has been enjoying the same since then. Having regard to the depreciation in the value of the rupee during this period, we feel that the appellant should be required to pay a sum of Rs 16,000 in lieu of the balance amount of Rs 3200 payable by him."
16. The Supreme Court in the decision reported as (2007) 10 SCC 595 Vishwa Nath Sharma Vs. Shyam Shanker Goel & Anr. finding an alternative solution in a similar situation held:
"14. Above being the position we find no merit in this appeal. However, considering the long passage of time it was suggested to Respondent 1 that he could pay an additional sum to the RFA(OS) 140/2013 Page 10 of 12 appellant. Learned counsel for the respondent left the quantum to be decided by this Court. To a similar effect was the suggestion of learned counsel for the appellant. Considering the background facts, we direct that as a matter of good gesture, let the respondent pay a sum of rupees five lakhs to the appellant within a period of four months from today."
17. In the present case though there is no delay on account of Ganesh, however learned counsel for Ganesh has offered to pay an additional sum of `20 lakhs during the course of arguments as noted vide order sheet dated September 22, 2015. Thus the judgment and decree passed by the learned Single Judge is upheld subject to modification that Kailash Chand on receipt of balance sale consideration of `12 lakhs and a further sum of `20 lakhs would execute the sale deed in favour of Ganesh in respect of the suit property. Rest of the terms of the decree would remain the same as directed by the learned Single Judge i.e. "Within a period of four weeks from today, the Plaintiff will write to the Defendant, enclosing a photocopy of the demand draft favouring the Defendant for the aforementioned sum, calling upon the Defendant to appear before the Sub-Registrar on a date not later than 15 days thereafter. If, on the said date, the Defendant fails to appear in the office of the Sub-Registrar, it will be open to the Plaintiff to deposit the said sum in the Court, which will then be kept in a fixed deposit by the Registry, initially for a period of one year, and will be subject to further orders, that may be passed in execution proceedings. In that event, it will be open for the plaintiff to have the decree executed in accordance with law.
18. The decree in the suit is thus modified in the terms as noted above with cost in favour of Ganesh and against Kailash Chand. The decree sheet be drawn accordingly.
RFA(OS) 140/2013 Page 11 of 1219. Appeal is disposed of.
(MUKTA GUPTA) JUDGE (PRADEEP NANDRAJOG) JUDGE SEPTEMBER 29, 2015 'ga' RFA(OS) 140/2013 Page 12 of 12