Delhi District Court
Vikrant Kumar Bhalla vs Dheeraj Sharma on 11 April, 2019
IN THE COURT OF SHRI MURARI PRASAD SINGH :
ADDITIONAL DISTRICT JUDGE 03 (EAST)
KARKARDOOMA COURTS : DELHI
Civil Suit No. 446/18
Vikrant Kumar Bhalla,
S/o Late Sh. KK Bhalla,
R/o O15, BlockO,
Budh Vihar, Phase I,
Delhi110086 ................Plaintiff
Vs.
Dheeraj Sharma,
S/o Sh. Mahesh Chand Sharma,
R/o 26A, PocketB,
Mayur ViharII, Delhi110091 ................Defendant
Date of institution : 04.06.2018
Date of reserving judgment : 11.04.2019
Date of judgment : 11.04.2019
JUDGMENT:
1. Vide an agreement to sell dated 30.05.2016 (Ex.PW1/1), defendant agreed to sell a shop bearing no. T2, Third Floor, Sachdeva Arcade, Plot No. 15, LSC, Pocket B, Mayur Vihar II, Delhi to the plaintiff for a consideration of Rs.13 lacs. Plaintiff paid Rs. 9 lacs to defendant against receipt (Ex. PW1/2). It was agreed that the balance amount would be paid at the time of execution of the sale documents.
2. In terms of the agreement dated 30.05.2016, the defendant handed over possession of the shop to the plaintiff. He however, requested that he may be allowed to continue with the possession as he was earning his livelihood from the said shop. Accordingly, plaintiff acceded to his request and it was orally agreed that the defendant would pay Rs. 10,000/ Civil Suit No.446/18 1 of 8 per month towards occupancy charges. While executing the agreement to sell (Ex.PW1/1), the defendant had delivered his original sale deed dated 21.05.2012 (Ex. PW1/4) but he did not hand over the previous original documents on the pretext that the same were not traceable and that he would hand over the same at the time of final execution of the sale deed. In August, 2016 defendant informed the plaintiff that he was unable to trace the previous chain of title documents and that he needed more time to trace out the same. Plaintiff in good faith gave him time till 15.11.2016. On 13.11.2016 defendant apprised the plaintiff that he was going out of station and would return twenty days later. Twenty days later, the defendant informed the plaintiff that he was not interested to sell the shop in question. At the request of the defendant, plaintiff cancelled the deal subject to return of double of Rs. 9 lacs. Defendant sought six months time to refund the money on account of demonetization of currency notes in November 2016. It was agreed that till the time the defendant did not return double the earnest money or did not execute the sale deed, he would continue to pay occupancy charges of Rs. 10,000/ per month to the plaintiff. Defendant, however, started to avoid the plaintiff on one pretext or the other. On 21.05.2018 on learning that the defendant was trying to dispose of the shop on the basis of some forged documents, plaintiff called him up but the former did not take his call. The defendant has not paid the occupation charges for the month May 2018. Plaintiff asked the defendant several times to perform his part of the agreement as he (plaintiff) was still ready and willing to perform his part of the agreement and was ready with the balance sale consideration amount. On these averments plaintiff filed the present suit seeking the following reliefs: Civil Suit No.446/18 2 of 8
(a) to pass a decree of specific performance of agreement to sell dated 30.05.2016, in favour of the plaintiff and against the defendant, directing the defendant to execute and get the necessary sale deed in respect of suit property i.e. Shop bearing No. T2, Third Floor, Sachdeva Arcade, Plot No. 15, LSC PKT B, situated at Mayur Vihar II, Delhi with all rights, title and interest appurtenant thereto, in favour of the plaintiff on receipt of balance sale consideration of Rs. 4 lacs from the plaintiff or in alternate pay the plaintiff a sum of Rs. 18 lacs i.e. double the earnest money paid by the plaintiff;
(b) to pass a decree in favour of the plaintiff and against the defendant for occupation charges of the suit property i.e. Shop bearing no. T2, Third Floor, Sachdeva Arcade, Plot No. 15, LSC Pocket B, situated at Mayur Vihar II, Delhi to the tune of Rs. 10,000/ per month, till the date of handing over the vacant, peaceful, physical possession of the demised property by the defendant to the plaintiff;
(c) to pass a decree of prohibitory injunction for restraining the defendant from further transferring the title, selling, alienating or disposing off, mortgaging, leasing, gifting and creating third party interest in the suit property i.e. Shop bearing no. T2, Third Floor, Sachdeva Arcard, Plot No. 15, LSC PKT B, situated at Mayur Vihar II, Delhi to anybody else (except the plaintiff), forcibly, illegally and any coercive manner whatsoever Civil Suit No.446/18 3 of 8
(d)any other relief which this court deems fit and proper in the facts and circumstances of this case may kindly be passed in favour of the plaintiff and against the defendant.
3. Defendant suffered the proceedings ex parte vide order dated 29.11.2018.
4. In ex parte plaintiff's evidence, four witnesses were examined, who are as follows: PW1 Sh. Vikrant Kumar Bhalla (plaintiff himself), PW2 Sh. Vishal Bhalla (a marginal witness to the agreement to sell Ex. PW1/1) PW3 Sh. Munish Kumar (a marginal witness to the agreement to sell Ex. PW1/1) and PW4 Sh. Bharat Bhushan (a common friend of both the parties).
5. Arguments heard. Record perused.
6. Having heard the submissions and perused the records of this case, this court is of the view that the plaintiff is not entitled to the relief of specific performance. The total consideration amount was Rs. 13 lacs, out of which Rs. 9 lacs was paid. This left a balance of Rs. 4 lacs, which remained unpaid. The balance amount of Rs. 4 lacs was to be paid at the time (01.09.16) of execution of final sale documents. As per the agreement to sell Ex. PW1/1, the transaction was to be completed on 01.09.2016. The plaintiff has however, led ex parte evidence to the effect that the time was extended to 15.11.2016 for the reason that the defendant was unable to trace out the previous chain of original documents. However, according to him, twenty days after 13.11.2016, the defendant backed out from the agreement. The plaintiff has also led ex parte evidence to the effect that he had sufficient funds with him to pay the balance consideration amount. This oral evidence of the plaintiff is not backed by any document on Civil Suit No.446/18 4 of 8 record. The mere self serving ipse dixit of the plaintiff that he had the balance consideration amount will not suffice. The plaintiff placed no material whatsoever on record to substantiate this plea of his. He did not furnish on record his bank statement of account of the relevant period to actually substantiate that he had with him the balance of Rs. 4 lacs. No pay order or any demand draft or any banker's cheque of the relevant period of the remaining amount of Rs. 4 lacs was shown or furnished to the court. For that matter, he has also led no evidence to show as to how he was in position to pay the balance of Rs. 4 lacs, if not through any bank instrument/bank account. Further, there is no evidence on record at all to show as to how the plaintiff could have procured Rs. 4 lacs through any other source. In short, there is nothing on record to substantiate the plaintiff's plea that he had with him the balance of Rs. 4 lacs at the relevant time. The fact that the plaintiff's evidence remained unrebutted and unchallenged will not alter the fundamental position that he has no documents to substantiate his plea that he had with him the balance of Rs. 4 lacs with him at the relevant time. The best evidence in this regard could only have been the documentary evidence as regard the availability of balance amount of Rs. 4 lacs. This court cannot on the mere oral evidence accept the plea that the plaintiff had with him the balance amount of Rs. 4 lacs at the relevant time. The best evidence having not been led, this court, therefore, holds that the plaintiff has failed to prove his readiness and willingness to perform his part of the agreement. Consequently, this court is of the view, that the plaintiff is not entitled to the relief of specific performance of contract.
7. Plaintiff has led evidence to this effect that the deal could not Civil Suit No.446/18 5 of 8 fructify on account of failure of the defendant to hand over the previous chain of title documents. The question of defendant failing to hand over the previous chain of documents would come into the picture only when the plaintiff is able to satisfy this court that he was ready and willing to perform his part of the contract and that he had with him the balance of Rs. 4 lacs at the relevant time. Even assuming that the defendant failed to hand over the previous chain of title documents, yet the plaintiff cannot be held entitled to the relief of specific performance. The failure on this count on the part of the defendant will not automatically translate into a proof that the plaintiff had with him the balance of Rs. 4 lacs at the relevant time. It is the plaintiff's suit that would face an adverse outcome if he does not prove the existence of facts, which he asserts (Section 101, Evidence Act). Plaintiff avers readiness and willingness on his part and therefore, it is he who must prove it in terms of Section 101, Evidence Act. He cannot seek to prove his case in an indirect manner that there was a failure on the part of the defendant in handing over the previous title documents. The plaintiff cannot succeed on the basis of failure, if any, on the part of the defendant. The plaintiff has to stand on his own legs. To put in other words, a plaintiff must succeed on the strength of his own case. He cannot raise the edifies of his case by highlighting deficiencies on the part of the defendant. That apart, if this was actually the reason for failure of the deal, it seems to be incongruous as to how the plaintiff insists on the relief of specific performance. Even on specific performance of the agreement through the court, the plaintiff would still be without the previous chain of title documents which was according to him the reason for failure of the deal.
Civil Suit No.446/18 6 of 8
8. The alternative relief the plaintiff seeks is the recovery of Rs. 18 lacs i.e. double the earnest money of Rs. 9 lacs which he had advanced to the defendant. The plaintiff in support relies upon clause 7 of the agreement Ex. PW1/1 providing for recovery of double the earnest money. The plaintiff has failed to substantiate his plea of readiness and willingness and as such, he cannot be entitled to refund of double the earnest money. That apart, this clause regarding refund of double the earnest money is in the nature of penalty and consequently, the same cannot be enforced under Sections 73 and 74, Indian Contract Act. Conversely, even the defendant cannot forfeit this amount of Rs. 9 lacs for the reason that doing so would also amount to enforcing a penalty. Such a penalty clause cannot be enforced in a court of law. Two relevant judgments in this regard are a Constitution Bench judgment of Apex Court titled as Fateh Chand vs. Bal Kishan Dass, AIR 1963 SC 1405 and Kailash Nath Associates vs. Delhi Development Authority and Another, (2015) 4 SCC 136. In view thereof, the plaintiff would be entitled to refund of Rs. 9 lacs only. It is therefore, directed that the defendant shall refund the amount of Rs. 9 lacs to the plaintiff. On this amount of Rs. 9 lacs, the plaintiff shall be entitled to pendente lite and future interest @ 6% per annum. It may be mentioned here that the plaintiff did not specifically pray for grant of interest, however, such a relief is being granted for the reason that it would recovered under "any other relief"
which he has prayed for in the suit. In addition, such a relief visavis interest can always be granted invoking Order VII Rule 7, CPC even if the same is not actually prayed for.
9. The next relief which the plaintiff seeks is recovery of Civil Suit No.446/18 7 of 8 occupancy charges @ Rs. 10,000/ per month. In view of the fact that the plaintiff has not been granted the relief of specific performance of contract, there arises no question of grant of this relief. Accordingly, this relief of seeking recovery of Rs. 10,000/ per month is turned down.
10. For the similar reason, as aforesaid, the relief of prohibitory injunction is also turned down.
RELIEF:
11. In view of the discussion hereinabove, the relief of specific performance of agreement dated 30.05.2016 (Ex. PW1/1) is turned down.
The relief of recovery of occupation charges is also turned down. The relief of prohibitory injunction is also turned down. The plaintiff is however, entitled to recover the amount of Rs. 9 lacs together with pendente lite and future interest thereon @ 6% per annum. Proportionate cost of the suit is awarded to the plaintiff. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court ON 11th Day of April, 2019 (MURARI PRASAD SINGH) Addl. District Judge03 (East) Karkardooma Courts, Delhi Civil Suit No.446/18 8 of 8