Delhi District Court
Suresh Kumar vs Basant Kumar Thakur And Ors on 29 July, 2024
IN THE COURT OF SH. SUMIT DALAL
DISTRICT JUDGE-04,
SOUTH-WEST DWARKA COURTS, NEW DELHI
CS 813/2021
In the matter of :
Suresh Kumar
S/o Sh. Ram Bahadur
R/o RZ-286A, Gali no.24,
Gopal Nagar, Najafgarh,
Delhi-110043. ....Plaintiff
Versus.
1. Basant Kumar Thakur
S/o:- Uma Kant Thakur,
R/o:- 78-A, Khasra No.49/12,
Village Haibatpura, Gopal Nagar,
Najafgarh, New Delhi-110043.
2. Chanchal Devi
W/o:- Basant Kumar Thakur
R/o:- 78-A, Khasra No. 49/12,
Village Haibatpura, Gopal Nagar,
Najafgarh, New Delhi-110043.
3. Krishan Rathi
S/o Not Known
R/o:- Khasra No.49/12, Village Haibatpura,
Gopal Nagar, Najafgarh,
New Delhi-110043. ......Defendants
Date of institution of the suit : 26.10.2021
Final Arguments Heard on : 18.05.2024
Date of Judgment : 29.07.2024
CS DJ ADJ 813/21 Page 1 of 38
SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT,
POSSESSION OF THE SUIT PROPERTY, RECOVERY OF
RENT/DAMAGES & PERMANENT INJUNCTION ON
BEHALF OF PLAINTIFF SURESH KUMAR.
JUDGMENT
1. The present suit is filed by the plaintiff against the defendants seeking specific performance of agreement to sell dated 05.08.2021, possession of the Plot bearing no. 78-A (area ad-measuring 40 sq. yards) out of Khasra No. 49/12, situated in the revenue estate of Village Haibatpura, Delhi Abadai known as Gopal Nagar, Najafgarh, New Delhi - 110043 (hereinafter 'the suit property'), recovery of rent/damages & permanent injunction.
FACTS OF THE CASE
2. Facts of the case as per the plaint are as follows:
a. The Plaintiff is the owner of the suit property. b. The Plaintiff purchased the suit property from Defendant No. 1, Basant Kumar Thakur, on 5.08.2021. As part of this transaction, Defendant No. 1 executed several legal documents in favor of the Plaintiff, which included a Receipt, Affidavit, Agreement to Sell, Possession Letter, Will, and General Power of Attorney all dated 05.08.2021. All these documents were duly notarized. Additionally, Defendant No. 1 handed over all the original title documents related to the previous chain of ownership to the Plaintiff. The full sale consideration amounting to Rs. 10,00,000/-CS DJ ADJ 813/21 Page 2 of 38
(Rupees Ten Lakhs) was paid by the Plaintiff to Defendant No. 1 through a combination of cash and banking transactions. It was agreed at the time of executing the Agreement to Sell on 05.08.2021, that Defendant No. 1 would execute a registered sale deed in favor of the Plaintiff through the competent registering authority/Registrar. c. After purchasing the suit property, Defendants No. 1 and 2 requested the Plaintiff's permission to reside in the property as tenants for some time until they could find alternative accommodation for their family. They agreed to pay a monthly rent of Rs. 6,000/-. Consequently, possession of the property was handed over by Defendant No. 1 and 2 to the Plaintiff. However, upon several requests, the Plaintiff allowed Defendants No. 1 and 2 to continue living in the property for one month. Defendant No. 1 also provided a copy of his Voter ID card to the Plaintiff for tenant police verification.
d. Despite repeated requests from the Plaintiff, Defendants No. 1 and 2 refused to vacate the suit property and failed to pay any rent. On 17.09.2021, when the Plaintiff visited the suit property, Defendants No. 1, 2, and 3 threatened and manhandled the Plaintiff, warning him not to visit the property again. The Plaintiff subsequently filed a police complaint, but no action was taken by the police, forcing the Plaintiff to seek legal recourse through the court.
e. The Plaintiff asserts that Defendants No. 1 and 2 remain in illegal possession of the property despite several requests to vacate it. The Plaintiff has suffered damages due to the CS DJ ADJ 813/21 Page 3 of 38 Defendants' failure to pay the agreed rent, amounting to Rs. 6,000/- per month. The Plaintiff claims that the Defendants are liable to pay Rs. 18,000/- for the period from August 2021 to October 2021 as damages/rent.
f. The Plaintiff contends that the Defendants are trespassers and are liable to restore possession of the suit premises to the Plaintiff. Despite specific requests, the Defendants have not handed over possession of the suit premises. The Plaintiff's cause of action arises from the Defendants' failure to vacate the premises and hand over vacant possession to the Plaintiff, thereby necessitating the present suit. g. The Plaintiff has filed the suit making the following prayers:
(i) To pass a decree and directions to execute the registered sale deed in favor of the plaintiff against the defendant no. 1 in compliance to the agreement to sell dated 05.08.2021.
(ii) To pass a decree for permanent injunction in favor of plaintiff and against the defendants to restrain the defendant No.1 or his agent, sub-agent, attorney to not create any third party interest.
(iii) To pass a decree for a sum of Rs. 18,000/- towards the damages/rent for the period from August 2021 to as on October 2021 with interest @ 12% and future damages /rent along with interest @12% till the disposal of this suit.
(iv) To pass a decree of recovery of possession of the premises property bearing no. Plot/Property no. 78-A, (Area admeasuring 40 Sq. Yards), out of Khasra No.49/12, situated in revenue estate of Village Haibatpura, Delhi Abadai Known as Gopal Nagar, Najafgarh, New Delhi-1100043 as CS DJ ADJ 813/21 Page 4 of 38 shown in the site plan in favor of plaintiff.
(v) To award the cost of suit.
(vi) To pass any other further orders and or grant any other such further relief's as this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case.
3. All the defendants were served on 23.11.2021 and a joint written statement was filed by the defendant nos. 1 and 2 on 27.04.2022. Defendant No. 3 did not file any written statement.
4. The case as per the joint written statement on behalf of the Defendant Nos. 1 and 2 are as follows:
a. In their written statement, the defendants argue that the plaintiff's suit is not maintainable as no cause of action has arisen, thus it should be dismissed. They further allege that the plaintiff has not approached the court with clean hands and has concealed material facts, warranting the dismissal of the suit.
b. The defendants assert that the plaintiff has filed the suit based on false facts and circumstances with the malicious intention to mislead the court, harass the defendants, and extort money from them. They claim that the plaintiff lacks the locus standi to file the present suit and seek its dismissal with heavy costs. The defendants also note that this suit is a retaliatory action against a separate suit they have filed to declare the title documents null and void, and for permanent and mandatory injunction, which is pending before another court in Dwarka, New Delhi.CS DJ ADJ 813/21 Page 5 of 38
c. The defendants contend that the present suit is not maintainable as it is filed with an ulterior motive to usurp their property. They allege that the plaintiff created forged and fabricated documents without their consent and knowledge. The defendants provide an alternative narrative, claiming that the plaintiff and his wife organized a committee and advised defendants No. 1 and 2 to invest their money in these committees. In 2020, when defendants No. 1 and 2 needed money for their son's admission fees and other expenses, they requested the plaintiff and his wife to arrange the first committee for them. The plaintiff asked for security for future installment payments and suggested that defendants deposit the title documents of the suit property. d. Defendant No. 1, trusting the plaintiff and being in dire need of money, handed over the original title documents and signed certain blank papers at the plaintiff's request. The defendants repaid the committee installments over time. In July 2021, they again approached the plaintiff for a committee, and the plaintiff had them execute more documents and sign additional blank papers in August 2021. e. On September 12, 2021, the plaintiff and his wife visited the defendants' house, demanded that they vacate the premises, and claimed ownership of the property. The defendants were shocked and questioned how the plaintiff and his wife could claim ownership when no consideration had been received and no valid documents executed. The plaintiff and his wife allegedly threatened to forcibly take possession of the property and harm the defendants and their family if they did CS DJ ADJ 813/21 Page 6 of 38 not vacate. The defendants claim that the plaintiff and his wife have fabricated numerous documents to support their false ownership claim.
f. The defendants deny all allegations and claims made by the plaintiff in the suit, maintaining that the suit is based on fraudulent documents and malicious intent. They request that the court dismiss the plaintiff's suit due to its lack of merit and the plaintiff's deceptive conduct.
ISSUES
5. On completion of the pleadings of the parties, following issues were settled:
(1) Whether there exists any valid Agreement to Sell dated 05.08.2021 between the parties? OPP.
(2) Whether plaintiff has performed his part of obligations in terms of Agreement to Sell dated 05.08.2021?OPP (3) Whether plaintiff is entitled to the relief of specific performance and possession as prayed for?OPP (4) Whether plaintiff is entitled to decree of damages as claimed for?OPP (5) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP (6) Whether the suit is without any cause of action? OPD (7) Whether the suit is a counter blast to the CS DJ ADJ 813/21 Page 7 of 38 suit filed by the defendant? If so, its effect? OPD (8) Whether the suit is liable to be dismissed on account of concealment of material facts? OPD (9) Whether the suit is liable to be dismissed in view of reasons mentioned in para 6 of Preliminary Objections of Written Statement? OPD.
(10) Relief.
EVIDENCES
6. Thereafter, the matter proceeded for plaintiff's evidence. In the evidence, the plaintiff examined the following 6 witnesses:
a. PW-1 - Sh. Suresh Kumar, the plaintiff himself b. PW-2 - Sh. Shish Pal c. PW-3 - HC Anil d. PW-4 - Radhey Shyam.
e. PW-5 - Smt. Santosh f. PW-6 - Kumari Chandani
7. Sh. Suresh Kumar, the plaintiff, appeared as PW-1 and tendered his evidence affidavit which is exhibited Ex. PW1/A and relied upon the following documents:
a. Ex PW1/1 (colly) - Copy of GPA, Agreement to Sell, Affidavit, Will, Possession Letter, Receipt, Indemnity Bond. SPA, Affidavit/ NOC executed by defendant no. 1 in favour of plaintiff, all dated 05.08.2021.
b. Ex. PW1/2 (colly) - Copy of GPA, Affidavit, Agreement to Sell, Receipt, Will, Possession Letters, Bayana receipt CS DJ ADJ 813/21 Page 8 of 38 executed by Shankar Yadav in favour of defendant no. 1. c. Ex. PW1/3 (colly) - Copy of GPA, Agreement to Sell, Affidavit, Receipt, executed by Sh. Attar Singh S/o Sh. Sukhdev Singh, in favour of Shankar Yadav. d. Ex. PW1/4 - Site plan of the suit property. e. Ex. PW1/5 - Copy of aadhar card of plaintiff. f. Mark A - Copy of police complaint against defendants. g. Ex. PW1/7 (colly) - Copy of tenant verification form/ report of defendant no. 1 along with Voter I Card copy of defendant no. 1.
h. Ex. PW1/8 - Copy of electricity bill of suit property in the name of plaintiff.
Thereafter, PW-1 cross examined by Ld. Counsel for the defendant nos. 1 & 2 on 08.02.2023. PW-1 was not cross examined by Ld. Counsel for Defendant No. 3 even after opportunity given. Thus, PW-1 was discharged on 08.02.2023 on the conclusion of his cross examination.
8. Thereafter, PW2/Shish Pal, Assistant Personal Officer from the office of the BSES, Najafgarh was examined. PW-2 brought certified copies of ownership documents of the property which were furnished with BSES by the plaintiff while applying for electricity connection and the same were exhibited as Ex. PW2/A (Colly. 45 pages). PW-2 also submitted that the Plaintiff Suresh Kumar was sanctioned electricity connection vide CA No. 153506817 in respect of property/plot bearing no.78-A (area CS DJ ADJ 813/21 Page 9 of 38 ad-measuring 40 sq yards), out of Khasra No.49/12, situated in revenue estate of Village Haibatpura, Delhi Abadi known as Gopal Nagar, Najafgarh, New Delhi-110043. PW-2 was cross-examined by the Ld. Counsel for the Defendants and was discharged, upon conclusion of his cross-examination on 26.04.2023.
9. Thereafter, PW3, HC Anil, from PS Baba Haridas Nagar was examined. PW-3 brought the complaint register having entry no 1629 dated 17.09.2021 regarding receiving of complaint from complainant Suresh Kumar and the same was marked to ASI Mukesh, photocopy of the same was exhibited as Ex. PW3/1. He had also brought tenant verification register and the same was having entry at serial no.397 regarding verification of tenant Vasant Kumar and having name of owner as Suresh Kumar and having date of form received from verification as 09.08.2021, photographs of Vasant Kumar and Suresh Kumar was also affixed, photocopy of the same was exhibited as Ex. PW3/2. PW-3 was cross-examined by the Ld. Counsel for the Defendants and was discharged, upon conclusion of his cross-examination on 26.04.2023
10. PW 4, Sh. Radhey Shyam deposed in his examination in chief that the plaintiff and the defendant appeared personally before him for the purpose of execution of GPA set of documents. He also added that the documents were signed in his presence by both the parties and the witnesses and thereafter he put his notary stamp on the same as a token of having signed the same in his presence. He exhibited the photocopies of the relevant entries in the notary register as Ex. PW-4/A. PW-4 was cross examined and CS DJ ADJ 813/21 Page 10 of 38 discharged on 03.05.2023
11. PW-5 is Ms. Santosh W/o Sh. Lekh Raj, has tendered her evidence by way of affidavit Ex. PW5/A. This witness was also cross examined by ld. Counsel for defendant and discharged on 03.05.2023.
12. PW-6 Ms. Kumari Chandani W/o Sh. Pawan Kumar, has tendered her evidence by way of affidavit which has been exhibited as Ex. PW6/A bearing her signatures at pt. X and Y. This witness was also cross examined by ld. Counsel for defendant and discharged on 03.05.2023.
13. Thereafter on the statement of ld. Counsel for plaintiff, plaintiff's evidence was closed.
14. Sh. Suresh Kumar, the defendant, appeared as DW-1 and tendered his evidence affidavit which is exhibited as DW-1/1. DW-1 has also exhibited and relied upon the following documents in his examination in chief:
(a) Ex. DW1/A (OSR) - Copy of aadhar card.
(b) Ex. PW1/8 (OSR) is the copy of electricity bill and same has already been exhibited in the deposition of PW-1;
(c) Ex. DW1/B (OSR) - Copy of complaint to SHO CS DJ ADJ 813/21 Page 11 of 38 dated 15.09.2021 along with postal receipts dated 17.09.2021.
(d) Ex. DW1/C (OSR) - Copy of complaint to SHO dated 20.09.2021 along with postal receipts dated 22.09.2021.
This witness was cross examined by ld. Counsel for plaintiff and discharged on 19.09.2023.
15. Thereafter on the statement of ld. Counsel for both defendants, the defendant's evidence was closed.
16. In order to adjudicate upon this suit, this Court heard the detailed submissions of Sh. Kuldeep Vashisht, Ld. Counsel for the Plaintiff, and Sh. Siddharth Yadav, Ld. Counsel for Defendants. The arguments presented by both parties were comprehensive and covered various aspects of the case. While the specific arguments on behalf of each party are not separately detailed here, they have been thoroughly considered and addressed under the respective issues discussed in the judgment.
ISSUE WISE FINDINGS Issue No. 1 - Whether there exists any valid Agreement to Sell dated 05.08.2021 between the parties? OPP.
17. According to Section 101 of the Indian Evidence Act, 1872 (hereinafter referred to as IEA) the burden to prove the entire case CS DJ ADJ 813/21 Page 12 of 38 is on the plaintiff. The main issue is whether an agreement to sell dated 05.08.2021 has been executed between the plaintiff and defendant. As per Section 102 of the IEA the onus of proving this issue is on the plaintiff.
18. On this issue, the Plaintiff has contended that the Agreement to Sell dated 05.08.2021 has been duly executed by the Defendant No. 1 whereas the Defendant No. 1 claims that the said agreement is forged and fabricated and he has merely signed certain documents and some blank papers as security for withdrawing the committee amount.
19. The Court's finding is that there exists a valid agreement to Sell dated 05.08.2021 between the plaintiff and the defendant no. 1. The reasons for the said finding are as follows:
a. Plaintiff himself appeared as PW-1 and reiterated the averments made in the plaint and stated that the Defendant No. 1 executed Agreement to sell, Possession Letter, Receipt, Possession Letter, Will and General Power of Attorney, all dated 05.08.2021. The agreement to sell is Ex. PW1/1 (Colly). In his cross examination, this fact remained unrebutted. The said Agreement to Sell, Ex. PW1/1 (Colly) is duly proved by the testimonies of the attesting witnesses PW-5 (Smt. Santosh) and PW-6 (Smt. Kumari Chandani) who have supported the version of PW-1 and deposed that the agreement to sell dated 05.08.2021, Ex. PW1/1 (Colly), was executed in their presence and also bear their signature. In their respective cross examination, PW-5 and PW-6 CS DJ ADJ 813/21 Page 13 of 38 remained unrebutted.
b. The Notary, Sh. Radhey Shyam deposed as PW-4 to prove the execution of the Agreement to Sell dated 05.08.2021, Ex. PW-1/1 Colly. PW-4 tendered the photocopy of the relevant entry in the notary register at Serial No. 622 to 628 dated 05.08.2021 which is exhibited as Ex. PW4/A (OSR). One issue raised by Defendant No. 1 concerns the reliability of the testimony of the notary. During cross-examination dated 08.02.2023, PW-1 admitted two crucial facts: first, that the Agreement to Sell and other related documents (Ex. PW-1/1 Colly) were executed between the parties on 01.08.2021 and notarized on 05.08.2021; second, that the documents were notarized by the wife of the notary. In contrast, the notary stated in his examination-in-chief:
"Documents were signed in my presence by both the parties and the witnesses, and thereafter, I placed my notary stamp on the same as a token of having signed them in my presence."
Regarding the notarization by the wife of the notary instead of the notary himself, a suggestion was put to the notary, which he denied. Despite this discrepancy, even if the Court believes the version of the Defendant No. 1 that the documents were notarized by the wife of the notary instead of the notary himself and resultantly, this Court does not rely entirely on the testimony of the notary, there is substantial evidence supporting the execution of the Agreement to Sell, Ex. PW-1/1 Colly. The notary register (Ex. PW-4/A) CS DJ ADJ 813/21 Page 14 of 38 contains the signature of Defendant No. 1, along with his photograph and cross-signature on the photograph. This corroborates that Defendant No. 1 visited the notary on 05.08.2021 and signed the register. The entries in the notary register clearly detail the documents, including the Agreement to Sell dated 05.08.2023, and bear the signatures of Defendant No. 1 in front of these entries. Considering the evidence on the preponderance of probabilities, it is reasonable to conclude that Defendant No. 1 appeared before the notary on 05.08.2021 and signed the register. This supports the validity and authenticity of the documents in question, notwithstanding the inconsistencies in the testimonies regarding the presence of the notary during the signing.
c. The version of PW-1 gets further corroboration by the admission of the Defendant No. 1, DW-1, in his cross examination dated 19.09.2023, wherein he admitted his signatures on the Agreement to Sell dated 05.08.2021 (Ex. PW-1/1 Colly).
d. The defence taken by the Defendant, DW-1 that the Agreement to Sell (Ex. PW-1/1 Colly) is forged and fabricated and he has merely signed certain documents and some blank papers as security for the withdrawing the committee amount does not inspire the confidence of this Court. The burden of proving that the sale agreement is forged and fabricated lies on the Defendant No. 1. The Defendant No. 1 pleaded the said defence in his written statement and also reiterated the same in his evidence CS DJ ADJ 813/21 Page 15 of 38 affidavit Ex. DW-1/1. Though, the testimony of Defendant No. 1, DW-1, on this aspect remained unrebutted in his cross examination but DW-1 has not substantiated his allegations by any other trustworthy evidence that the Plaintiff has forged the impugned agreement to sell. When the Plaintiff's version has got strong corroboration from the testimony of PW-4, 5 and 6, the Court cannot rely only on the unrebutted testimony of Defendant No. 1, DW-1, to believe the defence that the Agreement to Sell, Ex. PW1/1 Colly, is a forged and fabricated document. Such defence of the Defendant No. 1 needed further corroboration which the Defendant No. 1 has failed to bring on record.
20. On the basis of the aforementioned finding, Issue No. 1 is decided in favour of the Plaintiff and against the Defendants. There exists a valid agreement to sell dated 05.08.2021 between the Plaintiff and Defendant No. 1.
Issue No. 2 - Whether the Plaintiff has performed his part of the contract.
21. To adjudicate whether the Plaintiff has performed his part of the Contract, first, the rights and duties of the parties are to be inferred from the Agreement to Sell, Ex. PW-1/1 (Colly). This Court has perused the said agreement and according to the said agreement, the part of the Contract to be performed by the Plaintiff are as follows:
a. Payment of consideration amount of Rs. 10,00,000/- by the Plaintiff to the Defendant No. 1.CS DJ ADJ 813/21 Page 16 of 38
b. The Plaintiff will bear all the expenses of the Sale Deed i.e. Stamp Duty, Corporation Tax, Registration Fees etc.
22. The burden of proving that the Plaintiff has performed his part of the Contract lies on the Plaintiff.
23. The Court is of the view that the Plaintiff has paid the consideration amount of Rs. 10,00,000/- to the Defendant No. 1. The reasons for the said finding of this Court are as follows:
a. Agreement to Sell dated 05.08.2021, Ex. PW-1/1 (Colly), which has been duly proved, by Issue No. 1, clearly states that the Plaintiff has paid the entire compensation amount of Rs. 10,00,000/- to the Defendant No. 1. The relevant part of the Agreement to Sell is reproduced below:
"xxxxx And whereas the first party, for his bonafide needs and requirements has agreed to sell the above said property to the second party and second party has agreed to purchase the same for total sale consideration amount of Rs. 10,00,000/- (Rupees Ten Lakh Only) paid in cash.
NOW THIS AGREEMENT WITNESSETH AS UNDER:
1. That the first party has received the entire amount from the second party as full and final settlement of sale consideration of the property under sale and nothing remains due out of the sale price.CS DJ ADJ 813/21 Page 17 of 38
xxxxx"
b. In his cross-examination dated 08.02.2023, the plaintiff stated:
"I had paid around Rs. 6 Lakh in cash in installments to Defendant No. 2 on different dates prior to the execution of the documents on 01.08.2021, and Rs. 3,80,000/- was also given through cheque."
The total amount mentioned by the plaintiff comes to Rs. 9,80,000/-. However, the Agreement to Sell (Ex. PW-1/1 Colly) clearly states that the full consideration amount of Rs. 10,00,000/- was paid in cash to Defendant No. 1. Undoubtedly, there are discrepancies in the plaintiff's statements regarding the mode and total amount of payment and the recipient of payment but such discrepancies do not undermine the validity of the transaction because of the following reasons:
(i) Firstly, the plaintiff (PW-1) was not cross examined on the previous statement i.e. the terms of the Agreement to Sell to bring out the aforementioned contradiction. Without giving any opportunity to the Plaintiff, PW-1 to explain the contradiction, the contradiction can not be relied upon.
(ii) Secondly, the Agreement to Sell dated 05.08.2021, Ex. PW-1/1 Colly, has been duly proved in court, establishing its authenticity and the facts contained within it. The documentary evidence holds significant CS DJ ADJ 813/21 Page 18 of 38 probative value, especially when corroborated by other pieces of evidence in the record.
In light of the above, the minor discrepancies in the plaintiff's oral testimony do not outweigh the clear and unequivocal terms set forth in the proven Agreement to Sell. Therefore, the Court will rely on the Agreement to Sell as the conclusive evidence of the transaction.
24. Another key aspect of the agreement that the Plaintiff was required to fulfill involved bearing all the expenses associated with the Sale Deed, including Stamp Duty, Corporation Tax, Registration Fees, and other related costs. The Plaintiff has not pleaded or provided any evidence regarding the performance of this obligation. Consequently, it appears that the Plaintiff has not yet fulfilled this part of the contract. However, it is essential to determine whether the time has come for the Plaintiff to perform this obligation.
25. According to the Agreement to Sell dated 05.08.2021 (Ex. PW-1/1 Colly), Defendant No. 1 was obligated to execute and register the Sale Deed in favor of the Plaintiff with the competent Registering Authority as and when the execution and registration of the Sale Deed became permissible. The Plaintiff's responsibility to bear the expenses for Stamp Duty, Corporation Tax, Registration Fees, and other costs would arise at that time.
26. During the final arguments, the learned counsels for both parties jointly submitted that the registration of the Sale Deed in CS DJ ADJ 813/21 Page 19 of 38 the locality where the suit property is situated is still not permissible. Therefore, in the absence of an opportunity to execute and register the Sale Deed, the Plaintiff's obligation to bear these expenses has not yet arisen.
27. In conclusion, the time for the Plaintiff to fulfill his obligation to bear the expenses of Stamp Duty, Corporation Tax, Registration Fees, and other related costs will only arise when the registration of the Sale Deed for the suit property becomes permissible. Until such time, it cannot be concluded that the Plaintiff has failed to perform this part of the contract
28. In view of the aforementioned findings and the reasoning, issue no. 2 is decided in favour of the plaintiff and against the Defendants.
Issue No. 3 - Whether the Plaintiff is entitled to the relief of specific performance and possession as prayed for? OPP
29. The burden of proving this issue is on the Plaintiff. The cause of action for filing a suit for specific performance of an Agreement to Sell an immovable property typically arises when one party to the agreement fails or refuses to perform their contractual obligations, prompting the other party to seek enforcement of the contract. The specific circumstances that give rise to this cause of action include:
a. Existence of a Valid Agreement: There must be a legally binding Agreement to Sell that is clear, specific, and enforceable. The agreement should detail the terms and CS DJ ADJ 813/21 Page 20 of 38 conditions of the sale, including the description of the property, the sale price, and the obligations of both parties. b. Breach of Contract by the Defendant: The plaintiff must demonstrate that the defendant has breached the agreement. This breach can be in the form of refusal or failure to execute the Sale Deed, failure to transfer possession, or any other material breach of the contract terms. c. Plaintiff's Readiness and Willingness: The plaintiff must show that they have been ready and willing to perform their part of the contract. This includes having the financial capability to pay the consideration amount and taking necessary steps to fulfill other obligations outlined in the agreement.
d. Notice to the Defendant: The plaintiff must generally provide notice to the defendant, demanding performance of the contractual obligations. This can involve formal communication requesting the execution of the Sale Deed or fulfillment of other terms of the contract.
30. In this case, the validity of the Agreement to Sell dated 05.08.2021, Ex. PW-1/1 Colly, has been adjudicated under Issue No. 1. Similarly, the plaintiff's readiness and willingness may be inferred from the adjudication of Issue No. 2, as the plaintiff has paid the complete consideration amount. However, the crucial question is whether Defendant No. 1 has breached the Agreement dated 05.08.2021, Ex. PW-1/1 Colly.
31. According to the said agreement, Defendant No. 1 was CS DJ ADJ 813/21 Page 21 of 38 obligated to execute the Sale Deed in favor of the plaintiff and get it registered when the registration of the Sale Deed for the locality of the suit property becomes permissible. Therefore, the obligation of Defendant No. 1 would arise only after the sale deed registration of the suit property becomes permissible. The plaintiff has neither averred nor proven that the registration has become permissible. There is no statement in the plaint or the evidence affidavit about any breach by Defendant No. 1 regarding the execution of the Sale Deed. Additionally, no notice was sent to Defendant No. 1 before filing the present suit.
32. The plaintiff, despite praying for a decree of specific performance, has primarily focused his pleadings and evidence on recovering possession from Defendant No. 1, under the mistaken belief that he is already the owner based on the set of GPA documents dated 05.08.2021. It is a settled law that GPA documents do not confer ownership. Ownership can only be created in favour of the plaintiff through a registered sale deed executed on the basis of the Agreement to Sell dated 05.08.2021. Even Section 53A of the Transfer of Property offers no assistance to the Plainitff for his prayer regarding possession as the Agreement to Sell is neither registered nor stamped as required by Section 17(1A) of the Registration Act, 1908 and Section 23A of the Indian Stamp Act, 1899.
33. During the final arguments, the Court inquired from the learned counsel of both parties whether the execution and registration of the Sale Deed for the locality where the suit property CS DJ ADJ 813/21 Page 22 of 38 is situated has become permissible. Both counsels replied in the negative. At the time of writing this judgment, the registration of the sale deed of the suit property is still not permissible. Therefore, the cause of action for filing the present suit has not yet arisen. The cause of action will arise only when the bar on the registration of the sale deed of the suit property is lifted, and subsequently, Defendant No. 1 breaches the obligation of getting the sale deed executed and registered.
34. The learned counsel for the plaintiff argued that the Court could pass a decree of specific performance directing Defendant No. 1 to execute and register the sale deed once the registration becomes permissible. However, this Court cannot allow such a prayer for the following reasons:
a. Proving Breach of Agreement: To obtain a decree of specific performance, it is essential to prove that a breach of the agreement has occurred. A decree cannot be based on the assumption that Defendant No. 1 will fail to perform his obligations when the time arises.
b. Effectiveness of the Decree: With the current bar on the registration of the sale deed in the locality of the suit property, any decree of specific performance would be ineffectual. It is a well-established legal principle that the Court's function is not merely to pass decrees but to pass decrees that can be executed. An unexecutable decree serves no practical purpose.
35. Another issue that requires special consideration is the CS DJ ADJ 813/21 Page 23 of 38 status of Defendant No. 1 as a mere General Power of Attorney (GPA) holder, without a registered sale deed in his favor. According to the chain of documents presented as Ex. PW-1/3 colly and Ex. PW-1/2 colly, the title of the suit property traces back to a GPA arrangement. Specifically, one Sh. Sukhdev Singh executed a GPA dated 12.05.2000 in favor of Sh. Shankar Yadav, who subsequently executed a GPA dated 16.04.2004 in favor of Defendant No. 1. Neither of these GPAs--dated 12.05.2000 and 16.04.2004--are registered. Nothing has been stated about the status of Sh. Sukhdev Singh from whom the chain is claimed to have originated. There is no clarity whether he was the owner or he too like Sh. Shankar Yadav was merely a GPA holder.
36. In the context of property transactions, the Registration Act, 1908, particularly Sections 32 and 33, plays a crucial role. Section 32 specifies the persons who can present documents for registration, and Section 33 outlines the requirements for presenting a document executed under a power of attorney. According to these provisions, for a power of attorney to be effective in authorizing the attorney to execute a sale deed and present it for registration, the GPA must be duly registered.
37. In the absence of registered GPAs, Defendant No. 1, being a mere power of attorney holder under unregistered instruments, lacks the legal authority to present the sale deed for registration in favor of the Plaintiff. This legal limitation critically undermines the Plaintiff's case for specific performance.
CS DJ ADJ 813/21 Page 24 of 3838. Therefore, the Defendant No. 1's inability to legally execute and register the sale deed on behalf of the Plaintiff due to the lack of a registered GPA is a substantial impediment. This factor further strengthens the argument that the Plaintiff's claim for specific performance cannot be sustained under the current legal framework. The sale deed can be presented for registration either by the title holder or by any in whose favour the title holder has executed a registered GPA. No such person has been impleaded by the Plaintiff in the present suit.
39. In conclusion, the absence of registered GPAs in the chain of title documents not only limits Defendant No. 1's authority but also precludes the possibility of executing and registering a valid sale deed in favor of the Plaintiff. Consequently, the Plaintiff's plea for specific performance fails to meet the essential legal requirements, thereby rendering the relief sought untenable.
40. Given these considerations, the Court concludes that the plaintiff is not entitled to a decree of specific performance. The relief sought cannot be granted under the present circumstances.
41. Now, coming to the question of whether the plaintiff is entitled to the relief of possession, it has been established under Issue No. 1 that Defendant No. 1 executed several documents in favor of the Plaintiff, including the General Power of Attorney (GPA), Agreement to Sell, Affidavit, Will, Possession Letter, Receipt, Indemnity Bond, and Special Power of Attorney (SPA), all dated 05.08.2021 and Exhibited as Ex. PW-1/1 Colly. The critical CS DJ ADJ 813/21 Page 25 of 38 question is whether these documents confer any possessory rights to the Plaintiff. Each document must be evaluated separately:
a. General Power of Attorney (GPA) - The GPA does not confer any title or interest in the suit property. There is no concept of 'Power of Attorney' sales under Indian law. This document only creates an agency relationship, authorizing the grantee to act on behalf of the grantor as specified in the Power of Attorney. Therefore, the GPA does not create any possessory rights for the Plaintiff.
b. Agreement to Sell - While the Agreement to Sell is crucial in property transactions, it does not, by itself, create any title in the suit property. Section 53A of the Transfer of Property Act, 1882, provides protection to the transferee under an Agreement to Sell. However, as held by the Hon'ble Supreme Court in Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (Civil Appeal No. 4610 of 2000, decided on 25.08.2004), the benefits of Section 53A are contingent upon the Agreement to Sell being registered1 and the requisite stamp duty2 being paid. In this case, the Agreement to Sell dated 05.08.2021 is neither registered nor has the requisite stamp duty been paid. Therefore, no interest or right is created in favor of the Plaintiff based on the unregistered Agreement to Sell dated 05.08.2021.
c. Will - A Will only creates interest after the death of the testator. Since Defendant No. 1, the testator, is still alive, no interest or right is created in favor of the Plaintiff by the 1 Section 17(1A) of the Registration Act, 1908 2 Section 23A of the Indian Stamp Act, 1899 CS DJ ADJ 813/21 Page 26 of 38 execution of the Will.
42. A recent judgment by the Hon'ble Supreme Court in Shakeel Ahmed Vs. Ayed Akhlaq Hussain (2023 INSC 1016, decided on 01.11.2023) is particularly relevant to this issue. The Court emphasized that no title can be transferred with respect to immovable properties based on an unregistered Agreement to Sell or an unregistered GPA. The relevant parts of the judgment state:
"10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries (supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e., the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered Agreement to Sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to Sections 17 and 49 of the Registration Act and CS DJ ADJ 813/21 Page 27 of 38 Section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title, or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i). Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar
(ii). Balram Singh v. Kelo Devi
(iii). Paul Rubber Industries Private Limited v. Amit Chand Mitra
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and the effect of non-registration CS DJ ADJ 813/21 Page 28 of 38 emanate from the statutes, in particular the Registration Act and the Transfer of Property Act.
The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view.
14. In case the respondent wanted to evict the appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the High Court in the impugned order.
15. For all the reasons recorded above, the impugned judgment deserves to be set aside and the suit deserves to be dismissed. Accordingly, the appeal is allowed. The impugned judgment is set aside and the suit is dismissed."
43. Applying the principles from this judgment, it is clear that no right, title, or interest in the immovable property can be conferred on the Plaintiff based on the unregistered GPA and Agreement to Sell. As such, the Plaintiff cannot maintain a suit for CS DJ ADJ 813/21 Page 29 of 38 possession based on these documents.
44. In conclusion, the Plaintiff has not demonstrated any possessory right based on the documents presented. The GPA and Agreement to Sell do not confer title or possessory rights, and the Will is not operative until the death of the testator. Therefore, the Plaintiff is not entitled to the relief of possession.
45. Thus, Issue No. 3 is decided against the Plaintiff and in favour of the Defendants. The Plaintiff is entitled to the relief of specific performance and possession as prayed for.
Issue No. 4 - Whether the plaintiff is entitled to a decree of damages as claimed for?OPP
46. The burden of proof for this issue lies with the Plaintiff. The Plaintiff has sought damages on two grounds:
a. Damages of Rs. 6,000/- per month for mental stress. b. Damages/rent of Rs. 18,000/- incurred by the Defendant from August 2021 to October 2021.
47. To address this issue, it is essential to consider the outcome of Issue No. 3, which has been decided against the Plaintiff. Since the Plaintiff is not entitled to possession of the suit property, the claim for damages tied to possession cannot be sustained.
48. Moreover, the Plaintiff has not led any substantial evidence to satisfy the burden of proving the claim for damages.
CS DJ ADJ 813/21 Page 30 of 38The following points elucidate the lack of evidence and the reasoning behind the Court's decision:
a. Mental Stress Damages: The Plaintiff claims damages of Rs. 6,000/- per month for mental stress. However, the Plaintiff has not provided any concrete evidence, such as medical records, expert testimony, or other relevant documentation, to substantiate this claim. Mental stress damages require a clear demonstration of the impact on the Plaintiff's mental health and the causative link to the Defendant's actions. In the absence of such evidence, the Court cannot award damages for mental stress.
b. Damages/Rent Incurred: The Plaintiff also claims damages/rent of Rs. 18,000/- for the period from August 2021 to October 2021. This claim is based on the assertion that the Defendants have been in illegal possession of the suit property. However, since Issue No. 3 determined that the Plaintiff is not entitled to possession, the basis for claiming rent or damages for this period is untenable. Additionally, the Plaintiff has not provided any evidence of a tenancy agreement, payment records, or other documents to support this claim.
49. Given these considerations, the Court concludes that the Plaintiff has failed to meet the burden of proof for the claim of damages. The Plaintiff has neither demonstrated entitlement to possession nor provided sufficient evidence to substantiate the claims for mental stress and incurred rent.
CS DJ ADJ 813/21 Page 31 of 3850. Therefore, the issue is decided against the Plaintiff, and the Plaintiff is not entitled to a decree of damages as claimed.
Issue No. 5 - Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP
51. The burden of proof for this issue rests on the Plaintiff. To determine whether the Plaintiff is entitled to a decree of permanent injunction, it is necessary to consider the findings on Issue No. 3, which has been decided against the Plaintiff.
52. Issue No. 3 addressed the Plaintiff's claim for specific performance and possession, concluding that the Plaintiff is not entitled to these reliefs due to the absence of a registered sale deed and the lack of possessory rights. Given that the Plaintiff does not have a legally enforceable right to possession or title to the suit property, the claim for a permanent injunction also fails.
53. A decree of permanent injunction is typically granted to prevent the Defendant from committing an act that would violate the Plaintiff's rights. In this case, since the Plaintiff's rights to the suit property have not been established, there is no basis for issuing a permanent injunction.
54. Additionally, the Plaintiff has not provided adequate evidence to justify the need for a permanent injunction. Without proof of legal ownership or right to possession, the Plaintiff cannot demonstrate the necessity of an injunction to protect any legitimate interest.
CS DJ ADJ 813/21 Page 32 of 3855. Therefore, considering the findings on Issue No. 3 and the lack of supporting evidence, the Plaintiff is not entitled to a decree of permanent injunction as prayed for. The issue is decided against the Plaintiff.
Issue No. 6 - Whether suit is without any cause of action? OPD
56. The burden of proof for this issue rests on the Defendants. In deciding whether the suit is without any cause of action, the findings on Issue No. 3 are particularly pertinent.
57. In the discussion of Issue No. 3, this Court has determined that the cause of action for the suit for specific performance has not yet arisen, as the registration of the sale deed has not become permissible. Consequently, it cannot be claimed that Defendant No. 1 has breached any obligation under the Agreement to Sell. The contractual obligation of Defendant No. 1 to execute and register the sale deed will only arise once the registration of the sale deed becomes permissible. As this condition precedent has not been met, the Plaintiff's claim for specific performance is premature and without a valid cause of action.
58. Furthermore, in Issue No. 3, the Court also concluded that the Plaintiff is not entitled to the relief of possession. The Plaintiff's claim for possession was based on unregistered documents (GPA, Agreement to Sell, Will) that do not confer legal title or possessory rights under the law. Therefore, without a registered sale deed, the Plaintiff cannot assert any right to CS DJ ADJ 813/21 Page 33 of 38 possession of the suit property.
59. Given these findings, it is clear that the Plaintiff's suit lacks a substantive cause of action. The necessary legal and factual conditions required to support claims for specific performance and possession have not been met. As a result, the suit is without a valid cause of action.
60. Thus, this issue is decided against the Plaintiff and in favour of the Defendants.
Issue No. 7 - Whether suit is a counter blast to the suit filed by the defendant? If so, its effect? OPD
61. The burden of proof for this issue lies with the Defendants. They must demonstrate that the Plaintiff's suit is a retaliatory action, or a "counter blast," to the suit previously filed by the Defendant, and establish the effect of such a determination.
62. Upon reviewing the evidence presented, the Court finds that the Defendants have not provided any substantive evidence to support the claim that the Plaintiff's suit is a counter blast to their own suit. There is no documentary evidence, witness testimony, or other credible material presented that substantiates the Defendants' assertion that the Plaintiff's suit was filed with retaliatory intent or as a response to the Defendants' legal actions.
63. Without concrete evidence to demonstrate that the Plaintiff's suit is a reactionary measure intended to undermine the CS DJ ADJ 813/21 Page 34 of 38 Defendants' suit, the Court cannot accept the Defendants' claim. The mere existence of a prior suit filed by the Defendants does not automatically imply that the Plaintiff's suit is a counter blast.
64. Given the lack of evidence to prove this issue, the Court concludes that the Defendants have not met their burden of proof. Therefore, this issue is decided against the Defendants and in favour of the Plaintiff.
Issue No. 8 - Whether suit is liable to be dismissed on account of concealment of material facts? OPD
65. The burden of proof for this issue rests with the Defendants. They must demonstrate that the Plaintiff has concealed material facts from the Court, warranting dismissal of the suit.
66. The Court finds that the Defendants have not provided any substantive evidence to support their claim. No specific facts have been identified as being concealed, nor has it been shown how any alleged concealment would materially impact the case.
67. Without concrete evidence of such concealment, the Defendants have not met their burden of proof. Therefore, this issue is decided against the Defendants and in favour of the plaintiff Issue No. 9 - Whether suit is liable to be dismissed in view of reasons mentioned in para 6 of Preliminary Objections of Written Statement? OPD.
CS DJ ADJ 813/21 Page 35 of 3868. Para 6 of the Preliminary Objections in the Written Statement contends that Defendant No. 1 was involved in committee transactions, and the documents on which the present suit is based are forged and fabricated. It is further claimed that Defendant No. 1 merely signed certain documents and blank papers and did not execute the Agreement to Sell dated 05.08.2021.
69. This issue has already been addressed and decided under Issue No. 1. In Issue No. 1, the Court thoroughly examined the validity of the documents, including the Agreement to Sell dated 05.08.2021, and the defense raised by Defendant No. 1 regarding the alleged forgery and fabrication of documents.
70. Having considered the evidence and arguments presented, the Court concluded in Issue No. 1 that the Plaintiff's documents are valid and that the Agreement to Sell was indeed executed by Defendant No. 1. Since the defense in para 6 of the Preliminary Objections has been comprehensively dealt with in Issue No. 1, there is no further basis to dismiss the suit on these grounds.
71. Therefore, this issue is decided against the Defendants and in favour of the plaintiff.
RELIEF
72. In view of the decision of this Court on the Issues framed, the plaintiff is not entitled to the relief of specific performance of the agreement to sell dated 05.08.2021. The CS DJ ADJ 813/21 Page 36 of 38 Plaintiff is also not entitled for the relief of possession. Resultantly, the Plaintiff cannot be granted the reliefs of permanent prohibitory injunctions and the damages. This Court, considering the present facts and circumstances of the case, in exercise of the implicit power available to it, as per the judgments of the Hon'ble High Court in Ashok Kumar Arora v DS Sodhi & Anr., (2013) SCC OnLine Del 1189 and in M/s. Kiri Associates P. Ltd. v Pramod Kumar Mittal & Anr., (2016) SCC OnLine Del 374533, can only grant to the plaintiff, the relief of recovery of consideration amount of Rs.10,00,000/ alongwith interest.
73. As a net result of the aforesaid, this suit is decreed in favour of the plaintiff and against the defendant no. 14, for a sum of Rs. 10,00,000/ alongwith pre litigation, pendentelite and future interest at the rate of 6% per annum5 along with cost.
74. Before parting with this judgment, it is clarified that the pre litigation interest awarded in favor of the plaintiff shall be calculated w.e.f. 05.08.2021 i.e. the day of the execution of the Agreement to Sell.
3The said judgment has been upheld in M/s. Kiri Associates P. Ltd. v Pramod Kumar Mittal & Anr., (2017) SCC OnLine Del 8935 4 The Agreement to Sell dated 05.08.2021 is between the plaintiff and the defendant. Therefore, liability of the return of the consideration amount of Rs. 10,00,000/- will be only against Defendant No. 1.
5In exercise of the discretionary power of this Court, the plaintiff has been granted prelitigation, pendentelite and future interest at the rate of 6% per annum because Section 34 of CPC, 1908 as well as the provisions of the Interest Act, 1978, contemplate grant of interest at the rate of 6% per annum and because in the past decade, the nationalized banks have also granted interest at the rate of 56% per annum, on terms deposits.
CS DJ ADJ 813/21 Page 37 of 3875. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
ANNOUNCED IN THE OPEN COURT DATED: 29.07.2024 Digitally signed SUMIT by SUMIT DALAL DALAL Date:
2024.07.31 10:11:35 +0530 (SUMIT DALAL) DISTRICT JUDGE - 04 DWARKA COURTS : NEW DELHI CS DJ ADJ 813/21 Page 38 of 38