Delhi District Court
Mr. Sajal Banerjee vs Smt. Seema Kumar on 29 August, 2018
Sajal Banerjee V. Seema Kumar
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 88/2016
UNIQUE CASE ID NO.: 610185/16
IN THE MATTER OF :
Mr. Sajal Banerjee
S/o Late Shri Nand Lal Banerjee
R/o C105, First Floor,
New Rajinder Nagar,
New Delhi110060. ....Plaintiff
VERSUS
Smt. Seema Kumar
W/o Sh. Gurdev Raj Kumar
R/o 31/13, Old Rajinder Nagar,
New Delhi110060. ...Defendant
SUIT FOR SPECIFIC PERFORMANCE AND
PERPETUAL INJUNCTION
Date of institution of the Suit : 14/05/2008
Date on which Judgment was reserved : 30/07/2018
Date of Judgment : 29/08/2018
Suit No. 88/2016 Page 1 of 78
Sajal Banerjee V. Seema Kumar
JUDGMENT
By way of present judgment, this court shall adjudicate suit for specific performance and perpetual injunction filed by the plaintiff against the defendant.
CASE OF THE PLAINTIFF AS PER PLAINT Succinctly the necessary facts for just adjudication of the present suit, as stated in the plaint, are as under:
(a) The plaintiff has been residing on the first floor of the property bearing no. C105, New Rajinder Nagar, New Delhi 110060 for the last over 30 years, initially, as a tenant and had been regularly paying the rent to the defendant, who is owner of the abovesaid property till the execution of Agreement to Sell and Purchase dated 21/08/2006.
(b) The defendant is a citizen of India, who has invariably been residing out of India and has been represented by her Attor ney from time to time for the last number of years. Lastly she was represented by Shri Anil Bedi, who has been looking after and managing the affairs of the defendant in respect of the Suit No. 88/2016 Page 2 of 78 Sajal Banerjee V. Seema Kumar abovesaid property and has been interacting with various ten ants of the building including the present plaintiff, who has been residing on the first floor. It is submitted that over a pe riod of time, the defendant herself or through her abovesaid attorney had sold the ground floor and third floor of the prop erty bearing no. C105, New Rajinder Nagar, New Delhi 110060.
(c) The plaintiff, who has been residing on the first floor, entered into an Agreement to Sell and Purchase dated 21/08/2006 with the defendant through her constituted General Power of Attorney for sale and purchase of the first floor of the property bearing no. C105, New Rajinder Nagar, New Delhi110060.
(d) It was agreed between the plaintiff and the defendant that to tal sale consideration was Rs.30,00,000/ against which the plaintiff paid a sum of Rs.2,00,000/ by way of two separate cheques bearing no.719480, dated 21/08/2006, drawn on Citi Bank N.A., Delhi for Rs.1,00,000/ and another cheque bearing no. 599849, dated 21/08/2006, drawn on Punjab & Suit No. 88/2016 Page 3 of 78 Sajal Banerjee V. Seema Kumar Sind Bank, Gole Market, New Delhi for a sum of Rs.1,00,000/ and the total payment of Rs.2,00,000/ has been duly received, acknowledged and encashed by the defen dant. It was agreed in the Agreement to Sell and Purchase that the balance sale consideration of Rs.28,00,000/ shall be paid by the plaintiff to the defendant on or before 31/01/2007 together with registration of the property/ transfer docu ments/ Sale Deed in favour of the plaintiff. It was further agreed that plaintiff shall apply, obtain and avail Home Loan from a bank for the purchase of the abovesaid flat/ floor and it was assured by the defendant that the aforesaid flat/ floor had a legal validity, marketable title and the same could be of fered for obtaining/ availing of a home loan.
(e) After entering into the Agreement to Sell and Purchase dated 21/08/2006, the plaintiff applied to ICICI Bank for grant of home loan jointly in his own name and in the name of his wife and a home loan of Rs.30.00 Lakhs was duly sanctioned by the ICICI Bank to the plaintiff vide their communication dated 21/09/2006, however, while sanctioning the abovesaid loan, Suit No. 88/2016 Page 4 of 78 Sajal Banerjee V. Seema Kumar ICICI Bank mentioned that the sanction of the loan will be subject to legal and technical clearance/ verification of the property being financed.
(f) The Technical Branch of ICICI Bank raised objections with re gard to the sanction of the abovesaid loan to the plaintiff and in their reports dated 12/10/2006 and 13/10/2006 stated as under: "12/10/2006 The said property is Mezzanine floor of 7 ft height, though originally it was a First Floor of 9 ft eight (con verted later to mezzanine) of plot no. C105 New Rajin der Nagar, New Delhi, belonging to Mrs Seema Kumar w/o Shri G.R. Kumar. But a false ceiling was con structed and one can now consider it as Mezzanine floor. Also the sanctioned plan provided is not having the area chart of the plot, citing these two reasons the following enclosed case of home Loan (RI) is not recommended. 13/10/2006 Builders flat on First Floor with two bedrooms con structed on a plot of 128 square yards. Extra coverages are considered as per our Banks policy. After false ceil ing the height of the roof is 7 ft only. Otherwise the ac tual height of the room is 9 ft. The true copy of the Map provided along with the loan application is incomplete not having shown area chart thus not valued." Suit No. 88/2016 Page 5 of 78
Sajal Banerjee V. Seema Kumar
(g) Thereafter, the plaintiff had communicated and discussed this issue with the defendant and / or through her Attorney on a number of occasions, calling upon them to rectify the inadver tent mistake and to detail the said Mezzanine Floor as First Floor since no Mezzanine Floor exists in the building.
(h) That while executing the Agreement to Sell and Purchase, the description of the property had inadvertently been mentioned as C105, Mezzanine Floor (First Floor), New Rajinder Nagar, New Delhi, whereas at site, no Mezzanine Floor exists and only a regular First Floor exists. Even the electricity and wa ter bills raised by the statutory bodies/ authorities in respect of the suit property have been raised from time to time as First Floor only and never even a single bill has been raised or received as Mezzanine Floor.
(i) It has been stated that even as per the sanction building plan of the said building, so sanctioned by the Municipal Corpora tion of Delhi way back in the year 1971, the total permissible/ sanctioned building is ground floor, first floor and Barsati Suit No. 88/2016 Page 6 of 78 Sajal Banerjee V. Seema Kumar floor since only Barsati floor was allowed at that point of time and there is no provision of any Mezzanine Floor in the said sanction plan.
(j) Thereafter, the plaintiff with the husband of the defendant and attorney of the defendant visited the office of Municipal Corporation of Delhi to clarify the status of the suit property and it transpired that even as per the records of M.C.D., only first floor exists besides the Ground and Barsati floors and there does not exist any Mezzanine floor. The plaintiff contin ued to be in regular touch with the defendant and/ or her at torney to correct and rectify the inadvertent genuine mistake with regard to the description of suit property but they kept on delaying the matter stating that the defendant will be visit ing India in the second week of January 2007 and the matter would be resolved.
(k) Since nothing concrete was coming through and the agreed dated of 31/01/2007 for making the balance payment was approaching nearer, hence, the plaintiff vide his communica Suit No. 88/2016 Page 7 of 78 Sajal Banerjee V. Seema Kumar tion dated 29/01/2007 addressed to the defendant as well as her attorney by speed post AD as well as by courier requested them to clarify the ambiguity with regard to the description of the floor and to further execute a fresh Addendum to the ear lier agreement to sell and purchase dated 21/08/2006 with reasonable extension of time of about two months to enable the plaintiff to clarify the same to the bank and obtain the home loan and to complete the transaction entered into by and between the plaintiff and the defendant at the earliest in the true letter and spirit. The attorney of the defendant vide his reply dated 16/02/2007 while admitting the execution of the Agreement to Sell and Purchase dated 21/08/2006 as also the receipt of Rs.2,00,000/ as advance consideration amount, went on to state that the description of the property was C105, Mezzanine Floor (First Floor, New Rajinder Nagar, New Delhi110060. However, besides raising other disputable issues in the said reply, the Attorney of the defendant en closed a cheque of Rs.2,00,000/ drawn in the name of plain tiff signed by the defendant and stated that the advance con Suit No. 88/2016 Page 8 of 78 Sajal Banerjee V. Seema Kumar sideration amount was being returned and further stated that there was a mutual mistake regarding the subject matter of the Agreement.
(l) The plaintiff on receipt of the said communication/ reply im mediately vide his reply letter dated 21/02/2007 not only re turned the said cheque of Rs.2,00,000/ but also again re quested the Attorney of the defendant to rectify and correct the discrepancy in the description of the property from Mezza nine Floor to First Floor in order to enable the plaintiff to com plete the transaction at the earliest as also avail the sanc tioned home loan from the ICICI Bank.
(m) The plaintiff again vide communication dated 12/08/2007 called upon the Attorney of the defendant to inti mate the current status of the property under Agreement to Sell and Purchase, more so due to the relaxation of the Build ing Byelaws by the Municipal Corporation of Delhi. It was further reiterated that in the present case, the description of Suit No. 88/2016 Page 9 of 78 Sajal Banerjee V. Seema Kumar the suit property only required a clarificatory description, cor rection but to no effect.
(n) That instead of carrying out the necessary clarificatory correc tion in the Agreement to Sell and Purchase dated 21/08/2006, the defendant through her counsel vide a notice dated 12/02/2008 stated that Agreement to Sell and Pur chase dated 21/02/2008 is neither legal nor valid and already stands rescind and once again enclosed a cheque of Rs.2,00,000/ accompanying the said legal notice to the plain tiff which was duly received by the plaintiff.
(o) The plaintiff immediately through his counsel vide reply dated 19/02/2008 while reiterating the entire earlier correspon dence not only denied the averments, allegations and con tentions raised in the legal notice of the defendant but also stated that the plaintiff was ready and willing to perform his part of the contract in terms of the agreement to sell and pur chase dated 21/08/2006 and there was no reason or occasion for the said agreement to sell and purchase to be rescinded or Suit No. 88/2016 Page 10 of 78 Sajal Banerjee V. Seema Kumar cancelled by the defendant. The abovesaid cheque of Rs.2,00,000/ in original was also returned back to the coun sel for the defendant.
(p) The plaintiff has called upon the defendant and her Attorney and has also made all possible efforts to prevail upon them to perform the contract in terms of the Agreement to Sell and Purchase dated 21/08/2006, more so for correcting the nomenclature/ description of the suit property from Mezza nine Floor to First Floor in view of the fact that there does not exist any Mezzanine Floor either on the site and/ or in the Sanction Plan and/ or in the records of the Municipal Corpo ration of Delhi and/ or even the Electricity and Water Bills raised by the concerned Authorities are in respect of First Floor besides even the House Tax bills are also being raised in respect of the First Floor only, but to no effect. The plaintiff has lastly through his Counsel vide the reply dated 19/02/2008 called upon the defendant to carryout the nec essary rectification/ correction in the Agreement to Sell and Suit No. 88/2016 Page 11 of 78 Sajal Banerjee V. Seema Kumar Purchase in order to enable the plaintiff to complete the trans action in true letter and spirit but to no effect.
(q) It has been stated that plaintiff has recently in the end of April 2008 learnt that the defendant is negotiating for the sale of the suit premises and trying to part with the proprietary pos session of the suit property to a third party and is negotiating with the property dealers. The defendant has not only refused to perform her part of the contract and has also neglected and carriedout the rectification/ correction in the Agreement to Sell and Purchase dated 21/08/2006 but has also started acting against the vested rights and interests of the plaintiff in the suit property. The plaintiff has reliably learnt from the property dealers that the defendant is vigorously trying to cre ate third party interest in the suit property by entering into another Agreement to Sell and Purchase and negotiations with the other buyers are in advance stages. Hence, the present suit.
Suit No. 88/2016 Page 12 of 78
Sajal Banerjee V. Seema Kumar CASE OF THE DEFENDANT AS PER WRITTEN STATEMENT Summons was issued to the defendant and the defen dant has filed the written statement in the present case. Succinctly, the case of the defendant is as under:
(i) The present suit is not maintainable as the plaintiff has not come to the Court with clean hands and has concealed mate rial facts from this Court. The plaintiff had been a tenant and has been residing on the Mezzanine Floor (First Floor) of the property C105, New Rajinder Nagar, New Delhi110060 for the last 30 years and not the first floor. The plaintiff has all along been aware that he is residing on the Mezzanine Floor which was under his tenancy on a monthly rent of Rs.3802/ excluding water and electricity charges before his tenancy stood terminated by the defendant vide legal demand notice dated 12/02/2008. The negotiations which took place be tween the plaintiff and the defendant and the Agreement to Sell and Purchase dated 29/08/2006 entered into between the parties was clearly for the sale of Mezzanine Floor which was in his possession as a tenant for the last 30 years and Suit No. 88/2016 Page 13 of 78 Sajal Banerjee V. Seema Kumar that is why "Mezzanine Floor" stands mentioned in the Agree ment to Sell itself. It has been stated that all the documents were shown to the plaintiff and all the facts were well within his knowledge when the plaintiff entered into the Agreement to Sell and Purchase with the defendant. The first Floor of the property No. C105, New Rajinder Nagar, New Delhi has been under the tenancy of another tenant for the last several years, which fact, the plaintiff was well aware of. The property has been correctly described in the Agreement to Sell and Pur chase dated 29/08/2006 as Mezzanine Floor (First Floor) of property No. C105, New Rajinder Nagar, New Delhi which formed the subject matter of abovesaid agreement and not the first floor.
(ii) It has been stated that there is no mistake in the descrip tion of the property which forms the subject matter of the Agreement to Sell and Purchase dated 29/08/2006 between the plaintiff and the defendant.
(iii) The present suit is not maintainable as there is no meet ing of minds between the plaintiff and the defendant as to the Suit No. 88/2016 Page 14 of 78 Sajal Banerjee V. Seema Kumar subject matter of the Agreement to Sell and Purchase dated 29/08/2006 since the defendant intended to sell the Mezza nine Floor of property C105, New Rajinder Nagar, New Delhi, which was and is in occupation of the plaintiff for the last 30 years as a tenant and which stands mentioned in the Agree ment to Sell whereas the plaintiff is alleging that he intended to purchase the first floor of the aforesaid property. There is an error in consensus i.e. a bilateral mistake in the minds of both the contracting parties, vitiating the consent of the par ties, the contract/ Agreement between the plaintiff and the de fendant is void and unenforceable. Since there was no con sensus ad idem between the parties the whole Agreement to Sell and Purchase dated 29/08/2006 stands vitiated and is void due to a mutual mistake and is hit by the provisions of Section 20 of the Indian Contract Act, 1872.
(iv) The present suit is not maintainable as all the terms of the agreement were reduced into writing in the Agreement to Sell and Purchase dated 29/08/2006 and no evidence except the document itself can be referred to qua the terms of con Suit No. 88/2016 Page 15 of 78 Sajal Banerjee V. Seema Kumar tract under Section 91 of the Indian Evidence Act, 1872. Sec tion 92 of the Indian Evidence Act, 1872 excludes the oral evi dence for the purpose of contradicting, varying, adding to or subtracting from the terms of the contract.
(v) The plaintiff has failed to perform his part of contract as in terms of the Agreement to Sell and Purchase dated 29/08/2006, the balance sale consideration of Rs.28.00 Lacs was required to be remitted by the plaintiff on or before 31/01/2007 and in case the plaintiff failed to complete the transaction, the defendant was liable to forfeit the earnest money. It has been stated that at no point of time did the de fendant agree that the plaintiff shall apply to the bank or home loan and it appears that the said false allegations have been levelled by the plaintiff with the sole intention of putting up a false defence to his not being in a position to pay the bal ance sales consideration to the defendant within the time stip ulated in the agreement.
(vi) On merits, the contents of the plaint have been denied and it is submitted that the Agreement to Sell and Purchase Suit No. 88/2016 Page 16 of 78 Sajal Banerjee V. Seema Kumar dated 21/08/2006 was for the sale of the Mezzanine Floor (First Floor) of the property C105, New Rajinder Nagar, New Delhi110060. It has been submitted that a bare perusal of the alleged report reveals that the Technical Branch of ICICI Bank themselves have mentioned that the property is a "Mez zanine Floor". It has further been submitted that all the aforesaid allegations do not concern the defendant and have no relevancy to the matter in issue. The plaintiff was under an obligation to pay the balance sales consideration on or before 31/01/2007 and the source of the balance sale consideration or whether the plaintiff was successful in obtaining a loan is no concern of the defendant.
(vii) It has been submitted that all the documents were shown to the plaintiff and the negotiations which took place between the plaintiff and the defendant were clearly for the sale of Mezzanine floor which was in possession of the plaintiff as a tenant for the last 30 years and that is why "Mezzanine Floor" stands mentioned in the Agreement to sell itself. The first floor of the property no. C105, New Rajinder Nagar, New Suit No. 88/2016 Page 17 of 78 Sajal Banerjee V. Seema Kumar Delhi has been under the tenancy of another tenant for the last several years, which fact, the plaintiff was well aware of. It has further been submitted that the defendant is well within her rights to deal with the property in any manner she deems fit and proper.
(viii) The plaintiff is in unauthorized and illegal possession of the tenanted premises since he has failed to vacate the premises despite termination of his tenancy. The present suit of the plaintiff has been prayed to be dismissed with cost. REPLICATION AND ISSUES Plaintiff has filed the replication controverting the allega tions/ contentions in the written statement of the defendant and contents of the plaint have been reiterated and reaffirmed. It has been submitted that the rent receipts issued by the defendant from time to time detailing the description of the property as First Floor of House No. C105, New Rajinder Nagar, New Delhi - 110060. The defendant has also filed litigation against Sh. Satish Miglani, the tenant on the second floor of the same building and the floor so oc cupied by Shri Satish Miglani is directly above the floor under occu Suit No. 88/2016 Page 18 of 78 Sajal Banerjee V. Seema Kumar pation of the plaintiff. It has been submitted that since October 2006, the plaintiff is not paying any rent to the defendant as he is not liable to make the said payment on account of the Agreement to Sell and Purchase dated 21/08/2006. It has been submitted that the defendant is vainly trying to twist the facts by concocting the story of Mezzanine Floor which does not actually exists on the spot in the building.
From the pleadings of the parties, following issues were framed vide order dated 09/02/2010: ISSUES
1) Whether there was any concluded agreement or consen susadidem/meeting of minds between the plaintiff and the defendant, in relation to the subject matter of the Agreement to Sell and Purchase dated 21.08.2006; if so, its effect.
2) Whether the correct description of the suit property is mezzanine floor or first floor. OPP & OPD;
3) Whether the plaintiff was, and is ready and willing to perform his obligations under the Agreement to Sell and Purchase dated 21.08.2006. OPP;
4) Whether the plaintiff is entitled to specific performance of the Agreement to Sell and Purchase dated 21.08.2006. OPP;
Suit No. 88/2016 Page 19 of 78
Sajal Banerjee V. Seema Kumar
5) Relief.
EVIDENCE OF THE PLAINTIFF AND DEFENDANT AND DOCU MENTS RELIED UPON BY THEM:
The plaintiff, in order to prove his case, led plaintiff evi dence and got examined himself and relied upon the following docu ments:
1. Agreement to Sell and Purchase dated 21/08/2006 as Ex.P1.
2. Communication dated 29/01/2007, postal receipts (2 in num ber) and AD card are Ex.P2 (Colly.).
3. Communication dated 16/02/2007 as Ex.P3.
4. Communication dated 21/02/2007 as Ex.P4.
5. Communication dated 12/08/2007 as Ex.P5.
6. Notice dated 12/02/2008 as Ex.P6.
7. Reply dated 19/02/2008 as Ex.P7.
8. Rent receipt of the month of June 1994 as Ex.P8.
9. Rent receipt for the month of November, 1994 as Ex.P9.
10. Rent receipt for the month of June, 1995 as Ex.P10.
11. Rent receipt for the month of November, 1996 as Ex.P11.
12. Rent receipt for the month of December, 1996 as Ex.P12.
13. Rent receipt for the month of January, 1997 as Ex.P13.Suit No. 88/2016 Page 20 of 78
Sajal Banerjee V. Seema Kumar
14. Rent receipt for the months of April 2003 to October 2003 as Ex.P14.
15. Certified cop of the order as Ex.P15.
16. Sanction plan of property C105, New Rajinder Nagar, New Delhi110060 as MarkA.
17. Two communications dated 21.09.2006 as MarkB and MarkC.
18. Technical report of ICICI Bank dated 12/10/2006 as MarkD.
19. Technical report of ICICI Bank dated 13/10/2006 as MarkE.
20. Rent receipt for the month of June 1996 as MarkF.
21. Rent receipt for the months of April 2000 to March 2001 as MarkG.
22. Water bill for the month of March 2004 as MarkH.
23. Water bill for the month of July 2007 as MarkI.
24. Electricity Bill for the month of September 2008 as MarkJ.
25. Electricity bill for the month of December 2006 as MarkK. On the other hand, defendant has led defendant evi dence and got examined Sh. Anil Bedi as DW1. DW1 has filed his evidence by way of affidavit wherein he reiterated and reaffirmed the contents of the written statement. DW1 was crossexamined by Suit No. 88/2016 Page 21 of 78 Sajal Banerjee V. Seema Kumar counsel for the plaintiff. DW1 in his testimony has relied upon some documents as Ex.DW1/1 to Ex.DW1/4 but there was no document Ex.DW1/1 on record. Ex.DW1/2 was already exhibited as Ex.D1. The document Ex.DW1/3 (Colly.) was already Ex.D2 (Colly.).
During crossexamination of DW1 following documents were exhibited:
1. The Sanction Plan (earlier MarkA) was exhibited as Ex.DW1/P1.
2. Photocopy of GPA dated 23/07/2005 as Ex.DW1/P2.
3. Copy of tax receipt dated 15/11/1971 as Ex.DW1/P3.
4. Copy of tax receipt dated 28/07/1972 as Ex.DW1/P4.
5. Copy of assessment order for the year 198788 Ex.DW1/P5.
6. Copy of the assessment order signed dated 22/11/2001 as Ex.DW1/P6.
7. Electricity bill with due date 21/01/2017 for CA No.100552383, water bill K No.1042700000 and telephone bill for consumer No.2051722274 were marked as MarkK to MarkM. Suit No. 88/2016 Page 22 of 78 Sajal Banerjee V. Seema Kumar This court heard the final arguments as advanced by Ld.counsel for the plaintiff and defendant and perused the material available on record.
ISSUE WISE FINDINGS: ISSUES NO.1 AND 2 :
1) Whether there was any concluded agreement or consen susadidem/meeting of minds between the plaintiff and the defendant, in relation to the subject matter of the Agreement to Sell and Purchase dated 21.08.2006; if so, its effect.
2) Whether the correct description of the suit property is mezzanine floor or first floor. OPP & OPD ARGUMENTS OF PLAINTIFF
1. The defendant never appeared personally in the witness box and was represented through her attorney. The attorney in his crossexamination has deposed and admitted the case of the plain tiff as under: 16.12.2014 The suit property consists of Ground floor, Mezzanine/ first floor, second floor and third floor.Suit No. 88/2016 Page 23 of 78
Sajal Banerjee V. Seema Kumar Mezzanine floor was sanctioned as per Sanction Plan. Mezzanine floor was constructed (Vol. later on same was altered to first floor). It is correct as on today there is no mezzanine floor. It is correct that there was no mezzanine floor as on the date when the agreement to sell was executed.
I do not know whether defendant and her husband met the plaintiff when they came to India. I, plaintiff and husband of defendant visited ICICI Bank for a loan to the plaintiff in respect of the suit property. It is correct that the bank directed to struck mez zanine floor and mentions first floor for approval of the loan. Nei ther me nor the defendant made such amendment in the agreement to sell. Plaintiff did not request us for the changes. Plaintiff did not make any such request even through his lawyer. (The witness ad mits Exhibit P2, Ex.P3, Ex.P4, Ex.P5, and Ex. P7).
I do not remember whether any rent receipt was issued exclusively for the first floor. The rent receipt Ex. P8, Ex. P9, Ex. P10 Mark F, Ex. P11, Ex. P12, Ex. P13, Ex. P14 bears my sig natures and pertains to only first floor.
08.04.2015 Suit No. 88/2016 Page 24 of 78 Sajal Banerjee V. Seema Kumar The tenant on the second floor is Mr. Satish Miglani with whom litigation is also pending. The second floor is above mez zanine/ first floor.
There is only mezzanine / first floor and there is no sep arate entry for floors.
Q. Under whose tenancy is first floor ? A. There is no first floor. There is only mezzanine/ first floor.
The replies to the communications and notices of the plaintiff were given on her instructions through me as her attorney by the counsel. I never communicated to the lawyer that the amount of Rs.2 lac has been forfeited. (Vol. this amount was given twice to the plaintiff but he refused to accept).
24.10.2016 As per the sanction plan which was earlier Mark A now exhibit as Ex. DW1/P1 (OSR). The area shown as mezzanine floor was under the occupancy and part of transaction with the plaintiff in the present suit. Voltd. The area shown as loft in the sanction plan was termed as mezzanine floor / 1 st floor where the Plaintiff was residing which is the suit property. The mezzanine floor / first Suit No. 88/2016 Page 25 of 78 Sajal Banerjee V. Seema Kumar floor was fully built in the plot C105, New Rajinder Nagar, Delhi. We used to call the floor over the mezzanine floor as second floor. Q. Is it correct that as per the sanction plan the so called 2 nd floor was 1st floor and not 2nd floor?
A. Yes, however, we used to call it 2nd floor.
17.12.2016 Copy of Tax receipt dated 15.11.1971 is Ex. DW1/P3 (OSR).
Copy of tax receipt dated 28/07/1972 is Ex. DW1/P4 (OSR).
Copy of Assessment Order for the year 198788 Ex.DW1/P5 (OSR). Copy of Assessment order signed dated 22.11.2001 Ex. DW1/P6.
(Witness has been shown the document Ex. D1/P6). Af ter going through the contents of the document Ex.DW1/P6, there is no mention of mezzanine floor in the said document.
It is correct that no construction/ structural changes were made in the property bearing no. C105 New Rajinder Nagar, Suit No. 88/2016 Page 26 of 78 Sajal Banerjee V. Seema Kumar New Delhi, after purchasing the same and before filing of the present suit.
(Witness has been shown the document Ex. D1/P3). Af ter going through the contents of the document Ex.DW1/P36, there is no mention of mezzanine floor in the said document. (Witness has been shown the document Ex. D1/P4). After going through the contents of the document Ex.DW1/P4, there is no mention of mez zanine floor in the said document.
03.04.2017 I have brought the summoned record i.e. electricity bill with due date 21.01.2017 for CA No. 100552383, water bill K No. 1042700000 and telephone bill for consumer no. 2051722274 which are marked as Mark K, L and M respectively.
It is correct that as per the above said bills the same pertained to first floor. It is correct that the above said first floor as shown in the bills pertains to mezzanine/ first floor as we all call the same.
It is wrong to suggest that their does not exist or exists any first floor in the property no. C105 New Rajinder Nagar (Vol. Suit No. 88/2016 Page 27 of 78
Sajal Banerjee V. Seema Kumar We always referred to the said floor as mezzanine/ first floor and in day to day conversation with Sajal Banerjee).
It is correct that as per official record, like telephone bills, electricity and water bills, the said suit property is referred as First Floor and not Mezzanine floor (Vol. But in house tax we file documents as mezzanine/ first floor).
2. The plaintiff has also cited the following building bye laws: Mezzanine Floor Mezzanine floor has been defined under the Building Bye Laws 1983, in clause 2.52 of Definition clause as under :
2.52 Mezzanine Floor - An intermediate floor between two floor lev els above ground floor and at least one side of it should form an in tegral part of space/ floor below.
Furthermore Clause 14.8 of Building Bye Laws 1983 de tail Mezzanine floor as under:
14.8 Mezzanine Floor 14.8.1 Size Mezzanine floor shall be permitted only between ground floor and first floor in all type of buildings. The mezz. Area Suit No. 88/2016 Page 28 of 78 Sajal Banerjee V. Seema Kumar upto 25% of the actual covered area on the ground floor is permissi ble and shall not be counted towards FAR calculations.
14.8.2 Height The height of mezz. Floor shall not be less than 2.20 m and not more than 2.70 m.
14.8.3 Other requirementsA mezzanine floor may be permitted over a room or a compartment provided that:
(a) The mezzanine shall have direct light and ventilation to the extent of 10% of its floor area;
(b) it is so constructed as not to interfere under any circum stances with the ventilation of the space over and under it and does not violate any other byelaw;
(c) such mezzanine floor or any part of it shall not be used as kitchen; and
(d) in no case a mezzanine floor shall be closed so as to make it liable to be converted into unventilated compartments.
CASE LAWS RELIED UPON BY THE PLAINTIFF
1. Puran Ram Vs. Bhaguram and Another (2008) 4 SCC 102
2. State of Karnataka & Anr. Vs. K.K. Mohandas and others (2007) 6 SCC 484 Suit No. 88/2016 Page 29 of 78 Sajal Banerjee V. Seema Kumar
3. Madina Begum & anr. Vs. Shiv Murti Prasad Pandey & Ors.
(2016) 15 SCC 322.
4. Shamsher Singh & Ors. Vs. Rajinder Kumar & Ors.
(2015) 5 SCC 531.
5. R. Aravidhan Vs. K.R.S. Janakiraman (A.K.A.) Johny Shanmugam & Anr.
A.S. No.272 of 2013 and M.P. No. 1 of 2015
6. Nanjappa Gounder & Anr. Vs. Ashok Kumar 2013 (3) CTC 746 (S.A. No.1259 of 2012 & M.P. No.1 of 2012) ARGUMENTS OF DEFENDANT The suit is not maintainable as the Agreement to sell and purchase dated 21/08/2016 stands vitiated and is null and void. There has been an error in the consensus i.e. a bilateral mis take in the minds of both the parties, vitiating the consent of par ties, therefore, making the Agreement/ Contract between the par ties void and unenforceable. As it had been hit by Section 20 of the Indian Contract Act, 1872.
As per section 20 of the Indian Contract Act 1872 "Agreement void where both parties are under mistake as to matter of fact - Where both the parties to an agreement are under a mis Suit No. 88/2016 Page 30 of 78 Sajal Banerjee V. Seema Kumar take as to a matter of fact essential to the agreement the agreement is void." and can be termed as no contract in view of the following judgments: i. UNITED BANK OF INDIA VS. RAMDAS MAHADEO PRASHAD AND OTHERS. [(2004) 1 SCC 252] "Where there was no consensus on the terms and conditions stipulated in MOU and the same also had not been acted upon, held, there was no con cluded contract.
The respondents having committed breach can hardly seek to enforce the contracts"
ii. SHIKHA MISHRA AND ANR VERSUS S. KRISHNAMURTHY [(2014) SCC ONLINE DEL 313] "held that in case of specific performance, it is set tled law that jurisdiction to order specific perfor mance is based on existence of a valid and enforce able contract; where a valid and enforceable con tract has not been made, the Court will not make a contract for them; specific performance will not be ordered if the contract itself suffers from some de fects which makes the contract invalid or unenforce able; the contract being the foundation of the obliga tion, the order of specific performance is to enforce that obligation. It was further held that specific per formance of a contract is the actual execution of the contract according to its stipulation and terms and the Courts direct the party in default to do what he had contracted to do; the stipulations and the terms thus of the contract have therefore to be certain and Suit No. 88/2016 Page 31 of 78 Sajal Banerjee V. Seema Kumar the parties must have been consensus adidem; if the stipulation and terms are uncertain and the par ties are not adidem, there can be no specific perfor mance, for there is no contract at all."
There is a consensual mistake between the parties re garding the description of the property. According to the Plaintiff the said property in question is the First Floor and inadvertently written as mezzanine floor in the Agreement to sell and Purchase as alleged. On the other hand, the Defendant states that the property in question had been correctly described as Mezzanine Floor (First Floor) as most of the rent receipts mention the description as Mez zanine floor in it (DW1/3 COLLY.). Therefore, there has been a huge error in the consensus, as a result of which the present suit has been instituted. Further the dispute in the consensus can also be witnessed from various communications between the Plaintiff and the Defendant dated 29.01.2007, 16.02.2007, 21.02.2007, 12.08.2007, 12.02.2008 and 19.02.2008 wherein the Plaintiff has requested the Defendant for clarification of the description of the property in question in the agreement to sell and Purchase. Thus, the communications between the parties itself proves that there Suit No. 88/2016 Page 32 of 78 Sajal Banerjee V. Seema Kumar was no consensus between the parties regarding the subjectmat ter, hence, the contract stands null and void.
The description of the suit property has been inter changeably used by the Plaintiff and Defendant as Mezzanine Floor (First Floor). Even in the Agreement to Sell and Purchase the simi lar/ same description has been mentioned, which was never dis puted by the Plaintiff until 29.01.2007.
Initially the father of the Plaintiff resided in the said property and the rent receipts pertaining to that also has descrip tion as mezzanine floor (First Floor). It was only after the demise of the Plaintiff's father that he started dwelling at the demised premises and has agreed to the fact in his Crossexamination dated 17.12.2012 that most of the rent receipts had the description as mezzanine floor (First Floor). The relevant extract from the Cross examination dated 17.05.2012 of the Plaintiff/ PW1 is as follows:
"It is correct that it was mentioned in most of the rent receipts that the rent was being paid for mez zanine floor"Suit No. 88/2016 Page 33 of 78
Sajal Banerjee V. Seema Kumar The said description in the rent receipt or in the Agree ment to sell was never disputed by the Plaintiff, which clearly indi cates that Plaintiff had due knowledge about the demised property being a Mezzanine Floor and had consented to the same.
In the said Agreement to sell and purchase dated 21.08.2006, executed between the parties clearly states that the sale of the Mezzanine Floor (First Floor) which was in possession of the Plaintiff. The said agreement was duly read and signed by the Plaintiff and was never disputed by the Plaintiff at the time of agree ment about the description of the property, thus it is considered to be taken as Plaintiff admitting the said fact. It is submitted that the Plaintiff in his crossexamination dated 17.05.2012 that the blanks in the agreement to sell and purchase (EX PW 01/01) was duly filed in before it was signed by the parties, therefore, the Plain tiff had knowledge about the description of the property but and had consented to the same himself.
Further, the Technical report dated 12.10.2006 submit ted by the Plaintiff also clearly indicated the demised property as Mezzanine Floor as having only 7 Ft. height. Although initially it Suit No. 88/2016 Page 34 of 78 Sajal Banerjee V. Seema Kumar was First Floor according the house plan having 9 ft. height but af ter the construction of the false ceiling the said property can be termed as mezzanine Floor only.
Therefore, the correct description of the demised prop erty would be Mezzanine floor and not the First Floor. FINDINGS OF THE COURT WHAT IS THE EFFECT OF NONSEEKING OF RELIEF OF RECTI FICATION IN TERMS OF SECTION 26 OF THE SPECIFIC RE LIEF ACT There is no dispute between the parties that the plaintiff had entered into an Agreement to Sell and Purchase dated 21/08/2006 with the defendant through her constituted General Power of Attorney. The contention of the Plaintiff is that the prop erty under sale and purchase was for first floor of the property bearing no. C105, New Rajinder Nagar, New Delhi110060. How ever, the Defendant contended that as per Agreement to Sale and Purchase the said floor was Mezzanine Floor. For apt understand ing the relevant portion of the Agreement to Sell dated 21.08.2006 is reproduced as under: Suit No. 88/2016 Page 35 of 78 Sajal Banerjee V. Seema Kumar "....Whereas the First Party is the absolute owner and in possession of property C105, area mea suring 125 Sq. Yds., Mezanine Floor (First Floor), are at New Rajinder Nagar, New Delhi110060.
".....AND whereas the first party for his bonafide needs and requirements has agreed to sell the aforesaid i.e. Property No. C105, area admeasur ing 125 sq. yds., Mezanine Floor (First Floor), situ ated at New Rajinder Nagar, New Delhi110060 to the second party (purchaser, and the second party/purchaser has agreed to purchase the same for a sum of ...."
The perusal of the aforesaid Agreement clearly reflects that property mentioned as Mezzanine Floor (First Floor). However, the Plaintiff has filed the suit for specific performance reflecting only First Floor and not Mezzanine Floor (First Floor). The Plaintiff has relied upon the following Judgments pertaining to Section 26 of the Specific Relief Act:
1) Puran Ram Vs. Bhaguram and Anr. 2008 4 SCC 102
2) State of Karnatka & Anr. Vs. K.K. Mohandas and Ors. (2007) 6 SCC 484 It is apt to reproduce Section 26 of the Specific Relief Act: "26. When instrument may be rectified.--
(1) When, through fraud or a mutual mistake of Suit No. 88/2016 Page 36 of 78 Sajal Banerjee V. Seema Kumar the parties a contract or other instrument in writ ing [not being the articles of association of a com pany to which the Companies Act, 1956 (1 of 1956), applies] does not express their real inten tion, then--
"(a) either party or his representative in interest may institute a suit to have the instrument recti fied; or "(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or "(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instru ment.
"(2) If, in any suit in which a contract or other in strument is sought to be rectified under subsec tion (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
"(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.Suit No. 88/2016 Page 37 of 78
Sajal Banerjee V. Seema Kumar "(4) No relief for the rectification of an instru ment shall be granted to any party under this section unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim."
(Certain portions bolded in order to highlight) The Ld. Counsel for the Plaintiff has relied upon the aforesaid two Judgments and it is relevant to reproduce paras Nos.12 to 16 of Puran Ram Vs. Bhaguram and Anr., 2008 4 SCC 102:
12. After closely examining the provisions made under Section 26 of the Specific Relief Act, 1963, we do not find any difficulty to hold that in a suit for specific performance of contract for sale, it is permissible to amend a part of the description of the suit property not only in the plaint but also in the agreement. Section 26 clearly says as to when a contract or other instrument can be rectified and provides that when through fraud or a mutual mistake of the parties, the agreement in writing does not express their real intention, it is open to the parties to apply for amendment of the instru ment. It provides that when such a situation arises, then Suit No. 88/2016 Page 38 of 78 Sajal Banerjee V. Seema Kumar "26(1)(a) either party or his representative in inter est may institute a suit to have the instrument rec tified, or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified.
"13. A reading of these two conditions made under Section 26 of the Act would amply show that either party may institute a suit to have the instrument rectified or a party who has already filed a suit in which any right arising under the instrument is in issue may claim in his pleading that the instru ment be rectified. So far as the facts of the present case are concerned, it cannot be doubted that the main issue in the suit for specific performance of the contract for sale was relating to the agreement for sale in which a part of the description of the suit property was wrongly given by mutual mistake and therefore, needed to be amended.
"14. Section 26, of course, says that it would be open to a party to institute a suit for correcting the description of the suit property, but the proviso to Section 26 clearly permits that where a party has not claimed any such relief in his pleading, the court shall at any stage of the proceeding allow him to amend the plaint on such terms as may be just for including such claim. From a plain reading of the provisions under Section 26 of the Act, there is no reason why the prayer for amendment of the agreement to correct a part of the description of the suit property from Chak No. 3 SSM to Chak No. 3 SLM, later on converted to Chak No. 3 SWM could not be granted. In our view, it is only a cor rection or rectification of a part of the description Suit No. 88/2016 Page 39 of 78 Sajal Banerjee V. Seema Kumar of the suit property, which cannot involve either the question of limitation or the change of nature of suit. In our view, the suit shall remain a suit for specific performance of the contract for sale and a separate independent suit is not needed to be filed when the proviso to Section 26 itself clearly per mits either party to correct or rectify the descrip tion of the suit property not only in the plaint but also in the agreement itself. So far as the question of limitation is concerned, the agreement was en tered into on 12th of April, 1991 and the suit, ad mittedly, was filed within the period of limitation. Therefore, even if the amendment of plaint or agreement is allowed, that will relate back to the filing of the suit which was filed within the period of limitation.
"15. So far as the submission of the learned coun sel for the respondent that the rectification of the agreement cannot be permitted is concerned, we are of the view that Section 26(4) of the Act only says that no relief for rectification of instrument shall be granted unless it is specifically claimed. However, proviso to Section 26, as noted herein earlier, makes it clear that when such relief has not been claimed specifically, the court shall at any stage of the proceeding allow such party to amend the pleading as may be thought fit and proper to include such claim. Therefore, we are not in agreement with the learned counsel for the re spondent that section 26 would stand in the way of allowing the application for amendment of the agreement. The views expressed by us find support in a decision of the Madras High Court in Raipur Manufacturing Co., Ltd Vs. Joolaganti Venkata subba Rao Veerasamy & Co [AIR 1921 Mad 664], wherein it was held that where in the course of a Suit No. 88/2016 Page 40 of 78 Sajal Banerjee V. Seema Kumar suit for damages for breach of contract, the plain tiff contends that there is a clerical error in the document embodying the contract, it is not always necessary that a separate suit should have been brought for rectification of the document and it is open to the court in a proper case to allow the plaintiff to amend the plaint and ask for the neces sary rectification.
"16. As noted herein earlier, the learned counsel for the respondent contended before us that the appellant could not get specific performance of the contract for sale unless he sued for rectification of the agreement for sale. We are unable to accept this contention of the learned counsel for the respondent for the simple reason that in this case, by filing the application for amendment in the suit for specific performance of the con tract for sale, the appellant had sought the rec tification of the agreement also. It is sufficient to observe that it was not necessary for the ap pellant to file a separate suit for that purpose as contended by the learned counsel for the re spondent. It is open to the appellant to claim the relief of rectification of the instrument in the instant suit. The amendment, in our view, in the agreement was a formal one and there was no reason why such amendment could not be allowed."
(Certain portion is bolded in order to highlight) The Plaintiff has sought the relief for Specific Perfor mance and the relevant contents of the said relief are as follows: Suit No. 88/2016 Page 41 of 78 Sajal Banerjee V. Seema Kumar "(a) pass a decree for Specific Performance in favour of the Plaintiff and against the Defendant in implementation of the Agreement to Sell and Pur chase dated 21st August,2006 entered into by and between the Plaintiff and defendant in respect of the First Floor of the Property bearing No.C
105......"
The perusal of the aforesaid relief, it clearly postulates that the Plaintiff is seeking Specific Performance of the Agreement dated 21st August, 2006 mentioning the floor as First Floor. How ever, the Agreement dated 21 st August, 2006 apparently postulates Mezzanine Floor (First Floor). In this manner the Plaintiff is seeking the specific Performance of the suit property without seeking the Rectification of said Agreement dated 21st August, 2006.
The perusal of the aforesaid Section 26 of the Specific Relief Act and the Judgment of the Hon'ble Supreme Court, it was incumbent upon the plaintiff to seek rectification of Agreement to Sale and it can be sought in the present suit and there is no need to file separate suit in respect of the said relief. The provision of Sub section (4) of Section 26 vividly postulates and envisages that "No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed." Suit No. 88/2016 Page 42 of 78
Sajal Banerjee V. Seema Kumar The words used in SubSection (4) are "No relief", "Shall" and "specifically claimed." Thus, the perusal of the said words clearly postulates that the provision is mandatory and not directory. The provisions of SubSection (3) of Section 26 postulates "A contract in writing may first be rectified, and then if the party claiming rectifi cation has so prayed in his pleading and the court thinks fit, may be specifically enforced."
In this manner, it is the mandate of the law that it was incumbent duty of the Plaintiff to sought rectification at the first in stance and it is discretion of the Court to allow such rectification or not as the words used are "A contract in writing may first be recti fied" and once the rectification of the Agreement is allowed only then the "Agreement may be specifically enforced". Thus, the use of the words "may be specifically enforced" has to read in the light of other provisions of Specific Relief Act regarding granting or non granting of Specific Performance as grant of Specific Performance is discretionary in terms of provision of Section 20 of the Specific Re lief Act and also governed by other provisions of Specific Relief Act. Suit No. 88/2016 Page 43 of 78
Sajal Banerjee V. Seema Kumar The Plaintiff has directly sought the claim of Specific Performance of Contract with respect to First Floor of the Property instead of Mezzanine Floor (First Floor) of the Property, without lay ing the foundation and relief of the Rectification of the Agreement dated 21.08.2006 in terms of mandatory provision of Section 26 of the Specific Relief Act. In view discussions, made hereinabove, the Suit of the plaintiff for the Specific Performance is not maintainable as the plaintiff has sought the enforcement of the Agreement in re spect of Floor which was not the exact description of floor in the Agreement.
The plaintiff was required to first of all seek the rectifica tion of the Agreement and for seeking the rectification it was incum bent upon the Plaintiff to plead that there was mutual mistake or fraud in terms of provision of Section 26 of the Specific Relief Act. The rectification of the Agreement is permissible only on the ground of mutual mistake or fraud only. The Hon'ble Supreme in Catena of Judgments passed including in CIVIL APPEAL NOs. 21782179 OF 2004 Joseph John Peter Sandy Versus Veronica Thomas Ra jkumar & Anr. 12th March, 2013 held as under: Suit No. 88/2016 Page 44 of 78 Sajal Banerjee V. Seema Kumar "Section 26 of Specific Relief Act, 1963:
Section 26 of the Special Relief Act 1963 (hereinafter referred to as 'Act') provides for rectification of instruments, where through fraud or a mutual mistake of the parties, an instrument in writing does not express the real intention, then the parties may apply for rectification. However, clause 4 thereof, provides that such a relief cannot be granted by the court, unless it is specifically claimed.
"6. In Subhadra & Ors. v. Thankam, AIR 2010 SC 3031, this Court while deciding upon whether the agreement suffers from any ambiguity and whether rectification is needed, held that when the description of the entire property has been given and in the face of the matters being beyond ambiguity, the question of rectification in terms of Section 26 of the Act would, thus, not arise. The provisions of Section 26 of the Act would be attracted in limited cases. The provisions of this Section do not have a general application. These provisions can be attracted in the cases only where the ingredients stated in the Section are satisfied. The relief of rectification can be claimed where it is through fraud or a mutual mistake of the parties that real intention of the parties is not expressed in relation to an instrument.
"A similar view has been reiterated by this Court in State of Karnataka & Anr. v. K. K. Mohandas & etc, AIR 2007 SC 2917.Suit No. 88/2016 Page 45 of 78
Sajal Banerjee V. Seema Kumar "7. Thus, in view of the above, it can be held that Section 26 of the Act has a limited application, and is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties, the real intention of the parties is not expressed in relation to an instrument. Such rectification is permissible only by the parties to the instrument and by none else."
(Certain Portions are bolded in order to highlight) CONSENSUS AD IDEM AND MUTUAL MISTAKE The Plaintiff has nowhere pleaded in the plaint that it was on account of mutual mistake or fraud the description of the floor was incorporated in the Agreement as "Mezzanine Floor (First Floor)". However, the defendant has pleaded that there was no con cluded agreement or consensusadidem/meeting of minds between the plaintiff and the defendant, in relation to the subject matter of the Agreement to Sell and Purchase dated 21.08.2006 as the defen dant has not agreed to sell the First Floor but Mezzanine Floor (First Floor) of the Property. It is further pleaded by the defendant that there is mutual mistake between the parties and owing to such mutual mistake as per provision of Section 20 of the Indian Con Suit No. 88/2016 Page 46 of 78 Sajal Banerjee V. Seema Kumar tract Act, 1872, the agreement is void and the same is unenforce able in the eyes of law. As per provision of Section 9 of the Specific Relief Act, the defendant can plead the defences as are available in the Indian Contract Act, 1872. The provisions of Sections 13, 14 and 20 of the Contract Act are reproduced herein for apt under standing: "13. "Consent" defined "Two or more person are said to consent when they agree upon the same thing in the same sense.
"14. "Free consent" defined Consent is said to be free when it is not caused by (1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of section 20,21, and 22.
Consent is said to be so caused when it would not have been given but for the existence of such coer cion, undue influence, fraud, misrepresentation, or mistake."
"20. Agreement void where both parties are under mistake as to matter of fact.--Where both the par ties to an agreement are under a mistake as to a matter of fact essential to the agreement the agree ment is void. Explanation.--An erroneous opinion as to the value of the thing which forms the sub Suit No. 88/2016 Page 47 of 78 Sajal Banerjee V. Seema Kumar jectmatter of the agreement, is not to be deemed a mistake as to a matter of fact. Illustrations
(a) A agrees to sell to B a specific cargo of goods supposed to be on its way from England to Bom bay. It turns out that, before the day of the bargain the ship conveying the cargo had been cast away and the goods lost. Neither party was aware of these facts. The agreement is void.
(b) A agrees to buy from B a certain horse. It turns out that the horse was dead at the time of the bar gain, though neither party was aware of the fact.
The agreement is void.
(c) A, being entitled to an estate for the life of B, agrees to sell it to C, B was dead at the time of agreement, but both parties were ignorant of the fact. The agreement is void."
This Court is looking upon consensus ad idem and mu tual mistake at the time of entering of Agreement i.e. 21.08.2006 and not subsequent thereto. The meaning of consensus adidem is the meeting of the minds of the parties and the same is postulated in Section 13 of the Indian Contract Act, 1872 which postulates when two or more person are said to consent when they agree upon the same thing in the same sense.
It is not in dispute that there was Landlord and Tenant relationship between the defendant and deceased father of the Suit No. 88/2016 Page 48 of 78 Sajal Banerjee V. Seema Kumar plaintiff and after the death of the father of plaintiff then between the Plaintiff and defendant. The landlord and tenant relationship between them was existent for number of decades. Admittedly, the defendant has also obtained the possession from the Court after fil ing the eviction proceedings against the plaintiff.
The Plaintiff and defendant have referred various docu ments and relied upon oral evidence and cross examination of each other in order to show the nomenclature given to the Floor of the suit property. According to the Plaintiff it is "First Floor" and ac cording to defendant, it is Mezzanine Floor (First Floor). The said documents and oral evidence are referred to by the Plaintiff and De fendant in their respective arguments which are referred herein above and the same are not reproduced herein for the sake of brevity. The perusal of the said documents reflects that in number of Rent Receipts, the Floor has been referred as Mezzanine Floor and in number of Rent Receipts the property has been referred as First Floor. Similarly, in other documents also the Mezzanine Floor has been referred in some documents and in other documents, First Floor has been referred. The site plan Exhibit DW1/P1 reflects the Suit No. 88/2016 Page 49 of 78 Sajal Banerjee V. Seema Kumar said site plan was sanctioned for Ground Floor, First Floor and Barsati Floor. The said site Plan was of the year 1971 and the said rent receipts and other documents are after the period of the said site plan.
In view of this matter there was absolutely no confusion in the minds of the parties that the Suit Floor of the Property in question is described by both i.e. Mezzanine Floor and First Floor and for this reason parties have described in the Agreement as Mez zanine Floor (First Floor). There was no other intention of the par ties forming the Agreement dated 21.08.2006 but to describe Floor of the property as Mezzanine Floor (First Floor) as in the various documents the floors has been described either as Mezzanine or First Floor and in order to avoid confusion the parties have de scribed the Mezzanine Floor(First Floor). It was common under standing between the plaintiff and defendant in the formation of the Agreement dated 21.08.2006. The question of mutual mistake arises when there is a mistake in understanding between the par ties and as discussed hereinabove, there was absolutely no mistake Suit No. 88/2016 Page 50 of 78 Sajal Banerjee V. Seema Kumar on the part of the parties to describe the floor as Mezzanine Floor (First Floor) and not the First Floor only.
Thus, there was no mutual mistake as far as the de scription of the floor in the property is concerned. The perusal of the cross examination of PW1 it clearly reveals that the Plaintiff is learned person and he has actively participated in the purchase of stamp papers, filling of the blanks in the Agreement and completion of the entire formalities of the Agreement dated 21.08.2016. In this manner also there was no confusion in the mind of the Plaintiff re garding the description of the Floor of Property and the parties ac cording to the various contradictory documents existed prior to the Agreement, has correctly described the floor as Mezzanine Floor (First Floor) in the Agreement and the same has been done in order to avoid any ambiguity.
As per the case of the Plaintiff himself, he has started in sisting upon the change of description of floor as First Floor only when the Technical Team of ICICI has visited the suit property and on their visit, they have stated that Floor is basically a Mezzanine Floor as the height of the Floor is 7 ft. and on this ground it ap Suit No. 88/2016 Page 51 of 78 Sajal Banerjee V. Seema Kumar pears the Plaintiff was not able to obtain the loan from the said ICICI Bank. The entire controversy started from that point of time and not at the time of execution of the Agreement dated 21.08.2016. The parties were in consensus ad-idem as far as the description of the Floor of the property was concerned and they have correctly depicted the Floor as Mezzanine Floor (First Floor) in the Agreement dated 21.08.2016 and there was absolutely no mis take not to speak of mutual mistake between the parties in describ ing the nomenclature of Floor as Mezzanine Floor (First Floor) in the said Agreement dated 21.08.2016. At the cost of repetition, it is re iterated that the description of according to the documents includ ing the document of ICICI bank, the floor in question is also Mezza nine Floor and the parties have rightly described as Mezzanine Floor (First Floor) in order avoid ambiguity.
However, from the discussions as held hereinabove, the Plaintiff could not seek the relief of specific performance with the description of First Floor only until and unless the rectification of Agreement is sought by the Plaintiff and what is to be enforced is the Agreement dated 21.08.2016 and in the said Agreement the de Suit No. 88/2016 Page 52 of 78 Sajal Banerjee V. Seema Kumar scription of the floor has been referred as Mezzanine Floor (First Floor) not the First Floor. In view discussions, made hereinabove, the Suit of the plaintiff for the Specific Performance is not maintain able as the plaintiff has sought the enforcement of the Agreement in respect of Floor which was not the exact description of floor in the Agreement.
Accordingly, the issues no.1 and 2 are decided in the aforesaid terms.
ISSUES NO. 3 AND 4:
3) Whether the plaintiff was, and is ready and willing to perform his obligations under the Agreement to Sell and Purchase dated 21.08.2006. OPP
4) Whether the plaintiff is entitled to specific performance of the Agreement to Sell and Purchase dated 21.08.2006. OPP MAINTAINABILITY OF SUIT IN THE LIGHT OF THE HON'BLE SUPREME COURT JUDGMENT PASSED IN I.S. SIKANDER (DEAD) BY LRS. VS. K. SUBRAMANI & ORS., (2013) 15 SCC 27 The learned counsel for the defendant submitted that since the Plaintiff did not seek a declaration that the termination of agreement is bad in law, mere suit for specific performance of the agreement was not maintainable in law and was, therefore, liable to Suit No. 88/2016 Page 53 of 78 Sajal Banerjee V. Seema Kumar be dismissed on this short ground. In other words, the submission of the defendant is that it was obligatory upon the plaintiff to have sought a declaration in the suit that the termination rescindment of the agreement made by the defendant vide her communication dated 16/02/2007 (Ex.P3) as well as Notice dated 12/02/2008 (Ex.P6) is bad in law and along with such relief, the plaintiff should also have claimed a relief of specific performance of the agreement to make the suit maintainable. It was urged that since such relief was not claimed by the plaintiff, the suit for specific performance of the agreement simpliciter was also not maintainable. In support of this submission, learned counsel placed reliance on the decision of Hon'ble Supreme Court in I.S. Sikander (Dead) by LRs. Vs. K. Subramani & Ors. (2013) 15 SCC 27. The relevant portion re garding maintainability of the suit on the said ground is reproduced as under: "16. After perusal of the impugned judgment of the High Court and the questions of law framed by the defendant No.5 in this appeal, the following points would arise for determination of this Court:
"1) Whether the original suit filed by the plaintiff seeking a decree for specific performance against Suit No. 88/2016 Page 54 of 78 Sajal Banerjee V. Seema Kumar the defendant Nos. 14 in respect of the suit schedule property without seeking the declaratory relief with respect to termination of the Agreement of Sale vide notice dated 28.3.1985, rescinding the contract, is maintainable in law?......"
"17. Answer to Point No.1 The first point is answered in favour of the defen dant No. 5 by assigning the following reasons:
".................Another legal notice dated 28.03.1985 was sent by the first defendant to the plaintiff ex tending time to the plaintiff asking him to pay the sale consideration amount and get the sale deed executed on or before 10.04.1985, and on failure to comply with the same, the Agreement of Sale dated 25.12.1983 would be terminated since the plaintiff did not avail the time extended to him by defendant Nos. 14. Since the plaintiff did not per form his part of contract within the extended pe riod in the legal notice referred to supra, the Agree ment of Sale was terminated as per notice dated 28.03.1985 and thus, there is termination of the Agreement of Sale between the plaintiff and defen dant Nos. 14 w.e.f. 10.04.1985. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to de clare the termination of Agreement of Sale as bad in law. In the absence of such prayer by the plain tiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the ba sis of Agreement of Sale and consequential relief of decree for permanent injunction is not maintain able in law. Therefore, we have to hold that the re lief sought for by the plaintiff for grant of decree for specific performance of execution of sale deed in Suit No. 88/2016 Page 55 of 78 Sajal Banerjee V. Seema Kumar respect of the suit schedule property in his favour on the basis of non existing Agreement of Sale is wholly unsustainable in law. Accordingly, the point No. 1 is answered in favour of the defendant No.5."
Admittedly, the Plaintiff has received letter dated 16.02.2007 (Exhibit P3) and Notice dated 12.02.2008 (Exhibit P6). The defendant has terminated and rescinded the Agreement vide Letter dated 16.02.2007 and not only this the defendant has even sent the cheque of earnest money of Rs.2,00,000/ to the Plaintiff on account of termination and rescindment of the Agreement as the defendant does not want to forfeit the money. The Cheque of Rs.2,00,000/ was returned back by the Plaintiff to the defendant vide communication dated 21.02.2007 (Exhibit P4). The defendant has also served a Notice dated 12.02.2008 (Exhibiit P6) whereby the defendant has again reiterated that since the aforesaid Agree ment to Sell and Purchase is neither legal nor valid and already stands rescinded. The defendant alongwith said Notice Exhibit P6 again sent the Cheque of Rs.2,00,000/ for return of the earnest money. In view of the aforesaid Communication and Notice the de Suit No. 88/2016 Page 56 of 78 Sajal Banerjee V. Seema Kumar fendant has rescinded the Agreement in question. Para No.20 of the Plaint is reproduced herein for the sake of ready reference: "20. That the Plaintiff immediately through his counsel vide reply dated 19th February, 2008 while reiterating the entire earlier correspondence not only denied the averments, allegations and con tentions raised in the Legal Notice of the Defen dant but also stated that the Plaintiff was ready and willing to perform his part of the Contract in terms of the Agreement to Sell and Purchase dated 21st August,2006 and there was no reason or occa sion for the said Agreement to Sell and Purchase to be rescinded or cancelled by the Defendant. The above said cheque of Rs.2,00,000/ in original was also returned to the Counsel for the Defendant." The Plaintiff was aware about rescinding of the Agree ment prior to the filing of the suit but the Plaintiff not sought any declaration in view of the aforesaid Judgment although the Plaintiff is pleading that there was no occasion or reason for rescindment or cancellation of the Agreement. Accordingly, the present suit for spe cific performance without seeking declaration is not maintainable in view of the aforesaid judgment of Hon'ble Supreme Court. Suit No. 88/2016 Page 57 of 78
Sajal Banerjee V. Seema Kumar READINESS AND WILLINGNESS ARGUMENTS OF THE DEFENDANT The plaintiff never willing to perform his obligation un der the said Agreement to sell and purchase dated 21.08.2006. It is submitted that as per the terms and conditions of the Agreement there was no ambiguity and it was clearly mentioned that, the Plaintiff was to make the payment of the remaining consideration amount of Rs.28,00,000/ (Rupees Twenty Eight lacs Only) by or on 31.01.2007 and not thereafter, That the Plaintiff failed to make the same within the stipulated time frame.
As alleged by the Plaintiff, he was to avail a Home loan from Bank for the purchase of demised property. The Plaintiff ap plied for the same on 21.08.2006 as alleged which was subse quently sanctioned on principle and subject to the technical verifi cation of the suit property. The said Home loan was rejected on technical grounds vide communication dated 12.10.2006 and 13.10.2006. The Plaintiff after the rejection of the said Home Loan never even tried to approach any other bank to avail loan for exe cuting of the Agreement to sell.
Suit No. 88/2016 Page 58 of 78
Sajal Banerjee V. Seema Kumar The Plaintiff had been maintaining accounts in Citi Bank as well as Punjab and Sind Bank and could have easily availed a loan from them but the Plaintiff having no intentions to perform his obligations, never made an attempt to approach the said banks for Home loan.
Further, the Plaintiff alleges that the Loan to the Plaintiff could not be granted due to discrepancy in the said Agreement to sell but the Technical report dated 12.10.2006 clearly states that it is due to the height of the demised property being 7 Ft. that the loan cannot be granted and hence, the allegations imposed by the Plaintiff are false and entirely baseless. It is clarified that in case the terminology would have changed from mezzanine to First, even then the Technical Objections as to height would have stayed and thus the denial of loan had nothing to do with the floor being called mezzanine or first.
Also, firstly the Plaintiff never informed the Defendant about the availing of the home loan, secondly the factum of rejec tion was only intimated to the Defendant in writing only vide letter dated 29.01.2007, when he had already obtained the information Suit No. 88/2016 Page 59 of 78 Sajal Banerjee V. Seema Kumar on 12.10.2006. The Plaintiff never tried to inform or the approach the Defendant for help before and had approached the plaintiff on 29.01.2007 to seek extension of time to perform his obligation to perform.
That the Plaintiff neither had the intention nor had the resources to perform his obligations under the Agreement to sell and purchase, as a result of which the Defendant had to terminate the Agreement vide legal Notice dated 12.02.2008.
That the Plaintiff had admitted in his crossexamination that by 31.01.2007, the Plaintiff was maintaining accounts in two banks namely, Citi Bank and Punjab and Sind Bank but did not have the balance to honor the said Agreement to sell and purchase.
That the plaintiff while filing the suit also was not ready, willing, able to perform the contract as no document evidencing the readiness, willingness or ability to perform had been placed on record by the Plaintiff.
The Plaintiff till date carries no intentions to perform his obligations under the agreement as nowhere in his pleadings, the Plaintiff has mentioned the same. The Plaintiff has approached this Suit No. 88/2016 Page 60 of 78 Sajal Banerjee V. Seema Kumar Court with malafide intentions to harass the Defendant for no rhyme and reason and claim damages forthwith.
It is submitted that, since the Plaintiff himself is at de fault and is the wrong doer he is not entitled to any claim or specific performance of the agreement to sell and purchase dated 21.08.2006 and the present suit is liable to be dismissed on the same grounds with cost.
It is a settled law that the Plaintiff having committed breach can hardly seek to enforce the contracts. Hence, the con tention of the Plaintiff that the Defendant has failed to comply with the terms of the contract is entirely false, frivolous and fabricated. Thus, the Plaintiff is not entitled to any relief.
The Law of Specific performance is also clear that when the contract for which specific performance is sought, envisages the remedy available in the case of a default, the remedy will be availed and specific performance will not be granted. In the agreement to Sell dated 21.08.2006 it is clearly stipulated that "in case the first Party defaults then they shall pay the Second Party double the amount of the earnest money and in case the second party defaults Suit No. 88/2016 Page 61 of 78 Sajal Banerjee V. Seema Kumar then the earnest money paid shall be forfeited." The Contract never envisages that specific performance can be sought or enforced from a court of law and hence, the remedy not being available even as per the contract, the same does not merit to be granted. In fact it is the Plaintiff, who was the second party in the Agreement and it was he who had defaulted hence, the earnest money merited to be for feited, however the Defendant being a nice person had offered the earnest money back to the Plaintiff.
FINDINGS OF THE COURT " WHETHER THERE WAS ANY AGREEMENT BETWEEN THE PARTIES THAT CONSIDERATION WAS ONLY TO BE MADE BY THE PLAINTIFF THROUGH HOME LOAN"
The Plaintiff has only averred regarding readiness and willingness to perform his part of the contract in para No.20 of the plaint. The said para No.20 is already reproduced hereinabove and the same is not repeated herein for the sake of brevity. The Plaintiff has averred following submissions in Para No.7 of the Plaint which was reiterated in Evidence: "....it was further agreed that plaintiff shall apply, obtain and avail Home Loan from a bank for the Suit No. 88/2016 Page 62 of 78 Sajal Banerjee V. Seema Kumar purchase of the abovesaid flat/ floor/suit prop erty...."
In this manner, as per the Plaintiff himself the Agree ment in question was contingent i.e. the payment for balance con sideration of Rs.28,00,000/ was to be made through Home Loan. However, the Plaintiff has failed to aver that in case the Home Loan was not sanctioned for any reason whatsoever what would be con sequences of the Agreement in question. The further contention of the Plaintiff is that it was also represented and assured by the De fendant that the suit property had a legal validity, marketable title and the same could be offered for obtaining/availing of a Home Loan. However, again the Plaintiff has failed to aver that in case the title of the suit property does not found to be marketable title and loan would not be granted then what would be consequences of the Agreement in question.
However, in my considered opinion as per the pleadings and case of the Plaintiff himself, the Agreement in question cannot and ought not to be enforced if the Plaintiff fails to obtain the Home Suit No. 88/2016 Page 63 of 78 Sajal Banerjee V. Seema Kumar Loan. The rejection of the Home Loan can be for many reasons and it cannot solely dependent upon marketable title.
The Defendant has seriously disputed that there was no Agreement between the Plaintiff and Defendant regarding payment of balance consideration amount through Home Loan from a bank. The Defendant cannot in any circumstances enter into Agreement which was totally dependent upon the third party i.e. Banker in this case. If the parties have any such intention then such clause should have been incorporated in the Agreement in question.
The perusal of the Agreement in question clearly envis ages that there is no such clause which has been incorporated that balance Payment was dependent upon the Home Loan. The balance payment was to be made on or before 31.01.2007 by the plaintiff to the defendant but the Plaintiff has failed to make the balance pay ment on or before such date and it is nowhere mentioned in the said clause that the payment was to made through Home Loan only. The Plaintiff is harping upon the cross examination of DW1, where the DW1 has admitted that the defendant and her husband had gone alongwith the Plaintiff in the Bank. The mere help and as Suit No. 88/2016 Page 64 of 78 Sajal Banerjee V. Seema Kumar sistance of the Defendant and her husband does not imply that the Defendant has changed the mode and time of payment of balance consideration through Home Loan only. The DW1 has categorically replied through Exhibit P3 that at no stage he had agreed that the Plaintiff shall avail Home Loan for the purchase of the abovemen tioned flat. It further averred that neither he has discretion nor re sponsibility to decide how funds would be procured by the plaintiff for paying the balance sale consideration.
The novation of the payment clause is unilateral act on the part of the Plaintiff and there is no agreement between the par ties that the payment was to be solely made through Home Loan. It was incumbent duty upon the Plaintiff to pay the balance consider ation either by way of Home Loan or through any other source but the Plaintiff have failed to adhere to the said stipulation. As per own admission of the Plaintiff either by way of pleading or evidence/ otherwise, the Plaintiff was/is not having balance amount of Rs.28,00,000/ (Rupees Twenty Eight Lakhs only) and he was solely dependent upon the Home Loan. However, during the evi dence the Plaintiff has improved his case by deposing that Plaintiff Suit No. 88/2016 Page 65 of 78 Sajal Banerjee V. Seema Kumar had and still have sufficient funds to complete the sale transaction. The Plaintiff is intending to sell the plot in Faridabad which was owned by his wife so as to make the entire payments to the Defen dant but for the wrong description of the suit property he has not done so.
The submission of having sufficient funds are not sup ported by any documents and the Plaintiff has failed to produce any single documentary evidence regarding availability of the funds whether at the time of entering upon the Agreement in question or even at the time of leading his evidence. The submission regarding selling of the Faridabad property and that too in the name of wife has cropped up for the first time in the evidence and the said sub missions were never pleaded at any point of time. However, the Plaintiff has not filed any documentary evidence regarding the said Faridabad property also. Even for the sake of arguments, the Plain tiff may be possessed of the said Faridabad property in the name of his wife but that does not show that the Plaintiff was/is possessed with sufficient amount to pay the balance amount in terms of the Suit No. 88/2016 Page 66 of 78 Sajal Banerjee V. Seema Kumar Agreement. The consideration amount cannot be dependent upon the sale of the suit property.
The Ld. Counsel for the Plaintiff has relied upon the fol lowing Judgments:
1. Madina Begum & anr. Vs. Shiv Murti Prasad Pandey & Ors.
(2016) 15 SCC 322.
2. Shamsher Singh & Ors. Vs. Rajinder Kumar & Ors.
(2015) 5 SCC 531.
3. R. Aravidhan Vs. K.R.S. Janakiraman (A.K.A.) Johny Shan Mugam & Anr.
A.S. No.272 of 2013 and M.P. No. 1 of 2015
4. Nanjappa Gounder & Anr. Vs. Ashok Kumar 2013 (3) CTC 746 (S.A. No.1259 of 2012 & M.P. No.1 of 2012) The Plaintiff has relied upon the aforesaid Judgments but fails to specifically refer which para (s) of the said Judgment(s), the Plaintiff is/are relying upon. The said Judgments are principles and authority on their own facts and none of the facts in the afore said Judgments are closer or even similar to the peculiar facts of the present case.
Suit No. 88/2016 Page 67 of 78
Sajal Banerjee V. Seema Kumar The defendant has relied upon Jinesh Kumar Jain Ver sus Iris Paintal and Ors., 2012 Law Suit (Del) 2010. Paras No.13 to 20 are reproduced herein: "13. Now let us assume that the agreement to sell dated 26.9.1988 was not hit by the 1972 Act; the defendants were guilty of breach of their obligation to perform their part of contract; and that the plaintiff was ready and willing to perform his part; even then, can it be said that the plaintiff is yet en titled to the discretionary relief of specific perfor mance. It will be appropriate at this stage to refer to Section 20 of the Specific Relief Act, 1963, and more particularly subSection 3 thereof. Section 20 reads as under: "20. Discretion as to decreeing specific perfor mance. (1) The jurisdiction to decree specific per formance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capably of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance: "(a) where the terms of the contract or the conduct of the parties at the time of entering into the con tract or the other circumstances under which the contract was entered into are such that the con tract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or Suit No. 88/2016 Page 68 of 78 Sajal Banerjee V. Seema Kumar "(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff; or "(C) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to en force specific performance.
"(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of spe cific performance.
"(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
"14. SubSection 3 makes it clear that Courts de cree specific performance where the plaintiff has done substantial acts in consequence of a con tract/agreement to sell. Substantial acts obviously would mean and include payment of substantial amounts of money. Plaintiff may have paid 50% or more of the consideration or having paid a lesser consideration he could be in possession pursuant to the agreement to sell or otherwise is in the pos session of the subject property or other substantial acts have been performed by the plaintiff, and acts which can be said to be substantial acts under Section 20(3). However, where the acts are not substantial i.e. merely 5% or 10% etc of the con sideration is paid i.e. less than substantial consid eration is paid, (and for which a rough benchmark Suit No. 88/2016 Page 69 of 78 Sajal Banerjee V. Seema Kumar can be taken as 50% of the consideration), and/or plaintiff is not in possession of the subject land, I do not think that the plaintiff is entitled to the dis cretionary relief of specific performance.
"15. The Supreme Court in the recent judgment of Saradamani Kandappan vs. Mrs. S. Rajalak shmi, 2011 (12) SCC 18 has had an occasion to consider the aspect of payment of a nominal ad vance price by the plaintiff and its effect on the discretion of the Court in granting the discre tionary relief of specific performance. Though in the facts of the case before the Supreme Court, it was the buyer who was found guilty of breach of contract, however, in my opinion, the observations of the Supreme Court in the said case are relevant not only because I have found in this case the plaintiff/ buyer guilty of breach of contract, but also because even assuming the plaintiff/buyer is not guilty of breach of contract, yet, Section 20 subSection 3 of the Specific Relief Act, 1963 as re produced above clearly requires substantial acts on behalf of the plaintiff/proposed purchaser i.e. payment of substantial consideration. Paras 37 and 43 of the judgment in the case of Saradamani Kandappan (supra) are relevant and they read as under: "37. The reality arising from this economic change cannot continue to be ignored in deciding cases re lating to specific performance. The steep increase in prices is a circumstance which makes it in equitable to grant the relief of specific performance where the purchaser does not take steps to com plete the sale within the agreed period, and the vendor has not been responsible for any delay or nonperformance. A purchaser can no longer take Suit No. 88/2016 Page 70 of 78 Sajal Banerjee V. Seema Kumar shelter under the principle that time is not of essence in performance of contracts relating to im movable property, to cover his delays, laches, breaches and "nonreadiness". The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the con tract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circum stances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for per formance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific perfor mance, as suits and appeals therefrom rou tinely take two to three decades to attain final ity. As a result, an owner agreeing to sell a property for rupees one lakh and received ru pees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thou sand, when the property value has risen to a crore of rupees. xxxxxx xxxxxxx xxxxxxx "43. Till the issue is considered in an appropriate case, we can only reiterate what has been sug gested in K.S. Vidyanandam. (i) The courts, while exercising discretion in suits for specific perfor mance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period pre Suit No. 88/2016 Page 71 of 78 Sajal Banerjee V. Seema Kumar scribed cannot be ignored. (ii) The courts will ap ply greater scrutiny and strictness when con sidering whether the purchaser was "ready and willing" to perform his part of the contract. (iii) Every suit for specific performance need not be de creed merely because it is filed within the period of limitation by ignoring the timelimits stipulated in the agreement. The courts will also "frown" upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific perfor mance. The threeyear period is intended to assist the purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been deliv ered in partperformance, where equity shifts in favour of the purchaser." (emphasis is mine) "16. A reading of the aforesaid paras shows that Courts have a bounden duty to take notice of gal loping prices. Surely it cannot be disputed that the balance of convenience i.e. equity in the present case is more in favour of the defendants who have only received 10% of the consideration. If the ham mer has to fall in the facts of the present case, in my opinion, it should fall more on the plaintiff than on the defendants inasmuch as today the de fendants cannot on receiving of the balance con sideration of `44,00,000/, and even if exorbitant rate of interest is received thereon, purchase any equivalent property for this amount. Correspond ingly, the plaintiff has had benefit of 90% of sale consideration remaining with him (assuming he has any) and which he could have utilized for pur chase of assets including an immovable property. In specific performance suits a buyer need not Suit No. 88/2016 Page 72 of 78 Sajal Banerjee V. Seema Kumar have ready cash all the time and his financial ca pacity has to be seen and thus plaintiff can be said to have taken benefit of the 90% balance with him. It is well to be remembered at this stage that in a way that part of Specific Relief Act dealing with specific performance is in the nature of exception to Section 73 of the Contract Act, 1872 i.e. the normal rule with respect to the breach of a con tract under Section 73 of the Contract Act, 1872 is of damages, and, the Specific Relief Act, 1963 only provides the alternative discretionary remedy that instead of damages, the contract in fact should be specifically enforced. Thus for breach of contract the remedy of damages is always there and it is not that the buyer is remediless. However, for get ting specific relief, the Specific Relief Act, 1963 while providing for provisions of specific perfor mance of the agreement (i.e. performance instead of damages) for breach, requires discretion to be exercised by the Court as to whether specific per formance should or should not be granted in the facts of each case or that the plaintiff should be held entitled to the ordinary relief of damages or compensation.
"17. I have recently in the case titled as Laxmi Devi vs. Mahavir Singh being RFA No. 556/2011 decided on 1.5.2012 declined specific performance, one of the ground being payment of only nominal consideration under the agreement to sell. Para 11 of the said judgment reads as under: "11. Besides the fact that respondent/plaintiff was guilty of breach of contract and was not ready and willing to perform his part of the contract lacking in financial capacity to pay the balance considera tion, in my opinion, the facts of the present case Suit No. 88/2016 Page 73 of 78 Sajal Banerjee V. Seema Kumar also disentitle the respondent/plaintiff to the dis cretionary relief of specific performance. There are two reasons for declining the discretionary relief of specific performance. The first reason is that the Supreme Court has now on repeated occasions held that unless substantial consideration is paid out of the total amount of consideration, the Courts would lean against granting the specific performance inasmuch as by the loss of time, the balance sale consideration which is granted at a much later date, is not sufficient to enable the pro posed seller to buy an equivalent property which could have been bought from the balance sale con sideration if the same was paid on the due date. In the present case, out of the total sale consideration of `5,60,000/, only a sum of `1 lakh has been paid i.e. the sale consideration which is paid is only around 17% or so. In my opinion, by mere pay ment of 17% of the sale consideration, it cannot be said that the respondent/plaintiff has made out a case for grant of discretionary relief or specific per formance..............."
"18. Therefore, whether we look from the point of view of Section 20 subSection 3 of the Specific Re lief Act, 1963 or the ratio of the judgment of the Supreme Court in the case of Saradamani Kan dappan (supra) or even on first principle with re spect to equity because 10% of the sale considera tion alongwith the interest will not result in the de fendants even remotely being able to purchase an equivalent property than the suit property specific performance cannot be granted. In fact, on a rough estimation, the property prices would have gal loped to at least between 30 to 50 times from 1988 till date. I take judicial notice of this that in the capital of our country, like in all other megapolis, Suit No. 88/2016 Page 74 of 78 Sajal Banerjee V. Seema Kumar on account of the increase in population and rapid urbanization, there is a phenomenal increase in the prices of urban immovable property. I therefore hold and answer issue no. 5 against the plaintiff and in favour of the defendants holding that the plaintiff is not entitled to discretionary relief of specific performance.
"19. At this stage, I must note that actually the plaintiff should have been cautious enough to claim the alternative relief of damages/compensa tion and which a prospective purchaser is always entitled to. Unfortunately, the subject suit is only a suit for specific performance in which there is no claim of the alternative relief of compensation /damages. Not only is there no case set out with respect to the claim of damages/compensation, the plaintiff has led no evidence whatsoever as to dif ference in market price of the subject property and equivalent properties on the date of breach, so that the Court could have awarded appropriate dam ages to the plaintiff, in case, this Court came to the conclusion that though the plaintiff was not entitled to specific performance, but he was enti tled to damages/compensation because it is the defendants who are guilty of breach of contract.
"20. The question is therefore what ought to be done. Though this has not been at all argued on behalf of the plaintiff, I think in exercise of my power under Order 7 Rule 7 CPC I can always grant a lesser relief or an appropriate relief as aris ing from the facts and circumstances of the case. It cannot be disputed that the defendants have re ceived a sum of `4,50,000/ under the agreement to sell dated 26.9.1988. Considering all the facts of the present case as detailed above, I consider it fit Suit No. 88/2016 Page 75 of 78 Sajal Banerjee V. Seema Kumar that though an agreement itself was void under the 1972 Act, the plaintiff should be entitled to refund of the amount of `4,50,000/ alongwith the inter est thereon at 18% per annum simple pendente lite and future till realization."
The bare perusal of the aforesaid Judgment of Hon'ble High Court which is actually based upon the Judgment of the Hon'ble Supreme Court, the Hon'ble High Court has categorically and specifically held in para 18 that Court ought not to grant relief of the Specific Performance when the buyer has paid only 10% of the amount. In the present case, the plaintiff has not even paid 6.75% to 7% of the total consideration amount. Moreover, the Plain tiff has also miserably failed to show that the Plaintiff was/is ready to perform his part of the Agreement.
Considered from any view point, from the discussions made hereinabove, the Issues No.3 and 4 are accordingly decided in favour of the defendant and against the Plaintiff. RELIEF The Plaintiff has not claimed any relief for refund of money or compensation or damages as alternative relief. However, the defendant was not interested to keep the earnest amount of Suit No. 88/2016 Page 76 of 78 Sajal Banerjee V. Seema Kumar Rs.2,00,000/ which was paid by the Plaintiff to the defendant at the time of execution of the Agreement. The defendant had repeat edly sent the cheque for return of the amount of Rs.2,00,000/ vide Exhibit P3 and Exhibit P6 but the Plaintiff has refused to accept the same. The DW1 has accepted in the evidence that defendant has not forfeited the amount of Rs.2,00,000/ and for this reason, the defendant has no intention to forfeit the money right from the beginning and the defendant has shown her intention to return the said amount. Although, the said amount has not been claimed as alternative relief yet in exercise of power under Order 7 Rule 7 CPC, the Court can always grant a lesser relief or an appropriate relief as arising from the facts and circumstances of the case. Accordingly, the Plaintiff is entitled to refund sum of Rs.2,00,000/ alongwith in terest @ 9% per annum from the date of Agreement dated 21/08/2006 till its realization. The interest @ 9% is granted con sidering the fact that the defendant has returned the said amount twice but the plaintiff has refused to accept the same. However, the defendant has utilized the said amount and the defendant has not forfeited the same. In view thereof, I hereby pass the following Suit No. 88/2016 Page 77 of 78 Sajal Banerjee V. Seema Kumar FINAL ORDER
(i) The suit of the plaintiff qua reliefs (a) to (d) relating to Specific Performance, Permanent injunction and cost of the suit are hereby dismissed.
(ii) a decree in the sum of Rs.2,00,000/ alongwith interest @ 9% per annum from 21.08.2006 till its realization is passed in favour of the Plaintiff and against the defendant.
Decreesheet be prepared accordingly in terms of this decision.
File be consigned to Record Room after due compliance.
Announced in the open court (ARUN SUKHIJA)
on 29/08/2018 ADJ07 (Central)
Tis Hazari Courts, Delhi
Suit No. 88/2016 Page 78 of 78