Delhi District Court
Naresh Chand Jain vs Mirahul Enterprises And Others on 13 April, 2018
Naresh Chand Jain Vs Mirahul Enterprises and others
IN THE COURT OF SH. SAURABH PRTAP SINGH LALER
ADDITIONAL DISTRICT JUDGE-01 (CENTRAL)
TIS HAZARI COURTS, DELHI
C.S. No. 18441/2016
Sh. Naresh Chand Jain,
S/o Late Sh. Hem Chand Jain,
R/o Flat No. G-4, Mirahul Apartments,
A-13, Green Park Extension,
New Delhi.
......Plaintiff
VERSUS
1. M/s Mirahul Enterprises,
Through its Managing Partner
Smt. Kusum Kishore,
W/o Late Sh. S.B. Kishore,
A-13, Green Park Extension,
New Delhi-110016.
2. Smt. Kusum Kishore,
W/o Late Sh. S.B. Kishore,
Managing Partner,
M/s Mirahul Enterprises,
A-13, Green Park Extension,
New Delhi-110016.
......Defendants
Date of institution of suit : 07.06.1989
Date of reserving the judgment : 22.12.2017
Date of pronouncement of judgment : 13.04.2018
J U D G M E N T
CS No. 18441/2016 Page No. 1 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others (Suit For Rectification & Specific Performance Of The Contract Of Sale dated 02.06.1986 And For Prohibitory Injunction And Mandatory Injunction)
1. PLAINT In the plaint, inter-alia, it is submitted as under:-
1.1. On 31.05.1986, the plaintiff learnt that defendant No.1 partnership firm and defendant No.2, its Managing Director, are willing to sell flats in Building No. A-13, Green Park Extension, New Delhi. As such the plaintiff in the evening of 31.05.1986 physical inspected the building and the flat. On the very next day i.e. 01.06.1986 parties entered into negotiations for purchase of flat No. G-4, Mirahul Apartment, A-13, Green Park Extension, New Delhi (suit property, as shown in red colour in site plain Annexure-I). 1.2. As per the negotiations, the sale price of the said flat was fixed at Rs.260 per sq. ft. and as the area of the said flat was stated to be 1730 sq. ft., hence, the total consideration amount for the sale came out to Rs.4,49,800/-, which was rounded to Rs.4,50,000/- and an agreement to sell was entered into on 02.06.1986.
1.3. The plaintiff made payment of Rs.1,00,000/- by cheque No. 410194 dated 01.06.1986 drawn on Indian Bank, Delhi and further paid Rs.1,00,000/- at the time of signing the agreement and taking possession of the flat on 02.06.1986 vide cheque bearing No. 410195 drawn on Indian Bank, Delhi.CS No. 18441/2016 Page No. 2 of 24
Naresh Chand Jain Vs Mirahul Enterprises and others 1.4. Plaintiff further issued cheque bearing No.410196 dated 2.06.1986 for sum of Rs.2,00,000/- drawn on Indian Bank, Delhi, as part payment and it was decided that remaining Rs.50,000/- shall be paid at the time of execution of sale deed.
1.5. The plaintiff came in possession of suit property as per agreement on 02.06.1986 and on 06.6.1986 when he visited the flat along with his interior decorator, who took measurements of the rooms in the flat, the plaintiff was shocked to know from his interior decorator that the area of the flat was 1000-1200 sq. ft. as against 1730 sq. ft. as mentioned in the agreement to sell.
1.6. The plaintiff thereafter engaged M/s. MPP Consultants, Architects & Engineer to ascertain the area of the flat and as per their report, the plinth area of the flat was found to be 1201 sq. ft. However, the said consultants were unable to give opinion regarding total area, due to non-availability of the structural data / building drawing etc. of the building. 1.7. The plaintiff after obtaining experts opinion, met defendant No.2 and requested him to settle the deal as per the exact measurement of the flat and to receive the outstanding as per the calculation according to the area of the flat. 1.8. Plaintiff issued a letter in this regard on 07.06.1986, but as he got no response from the defendants, hence, he was left with no alternative but to get the payment of the post dated cheques of Rs.2,00,000/- stopped.
CS No. 18441/2016 Page No. 3 of 24Naresh Chand Jain Vs Mirahul Enterprises and others 1.9. On 03.07.1986, defendant No.2 along with 3-4 persons came to the flat and threatened to dispossess the plaintiff from flat by force, in case the payment against the post dated cheques of Rs.2,00,000/- was not made. The plaintiff tried to explain to the defendant that he is ready and willing to pay the consideration amount as per actual area of the flat, however, defendant No.2 threatened the plaintiff that he shall be dispossess him from the flat by force, consequent to which FIR No.5263/HK dated 03.07.1986 was lodged at PS Hauz Khas.
1.10. Thereafter, the plaintiff filed a suit for permanent injunction, so as to restrain the defendants from forcibly dispossessing him from the suit property, which was registered as suit No.304/1986, but the said suit was rejected under Order VII Rule 11 CPC for the reason that the same was barred under the provisions of Specific Relief Act 1963. 1.11. Consequently, the plaintiff filed the present suit seeking rectification of agreement to sell dated 02.06.1986 as regards the exact area of the flat and further seeking specific performance of the said agreement to sell. The plaintiff has also prayed for decree of permanent injunction, so as to restrain the defendants from dispossessing the plaintiff from the suit property and also from causing any obstruction to the peaceful enjoyment of the same and from withholding of electricity and water supply or causing any obstruction to the passage of the plaintiff.
CS No. 18441/2016 Page No. 4 of 24Naresh Chand Jain Vs Mirahul Enterprises and others
2. WRITTEN STATEMENT 2.1. In the written statement, the defendants have admitted the execution of agreement to sell dated 02.06.1986, but they denied that the suit property was agreed to be sold on per sq. ft. basis i.e. @ Rs.260 per sq. ft., rather as per the defendants the price of Rs.4,50,000/- was fixed for ready and complete flat, which was in existence at the time of execution of the agreement and inspected by the plaintiff. 2.2. It is also submitted by the defendants that the flat was sold as per the site plan given with the agreement to sell for total consideration of Rs.4,50,000/- and not on per sq. ft. basis. 2.3. The defendants admitted having received Rs.2,00,000/- vide cheque No.410194 dated 01.06.1986 and No.410195 dated 02.06.1986 drawn on Indian Bank, Delhi and they submitted that the plaintiff is a dishonest person, who after giving the post dated cheque, did not honour the same. 2.4. As regards the possession, the defendants submitted that they had not handed over the possession of the property at the time of execution of agreement to sell dated 02.06.1986, rather, at the instances of the plaintiff the flat was placed under double lock and it was in furtherance of his illegal design that the plaintiff taking benefit of ex-parte status quo order passed by learned Sub-Judge, broke open the lock of the door and took possession of the suit property. 2.5. The defendants further denied that they threatened or tried to dispossess the plaintiff and prayed for dismissal of the suit.
CS No. 18441/2016 Page No. 5 of 24Naresh Chand Jain Vs Mirahul Enterprises and others
3. Plaintiff filed replications to the written statements of the defendants to controvert the contentions of the written statement and to reiterate the averments of the plaint.
4. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 30.09.1997:-
a) Whether the suit is barred under the provisions of order 2 Rule 2 CPC? OPD
b) Whether the plaintiff was willing and is willing to perform the part of contract? OPP
c) Whether the plaintiff is entitled for decree for special performance as claimed in the plaint? OPP
d) Whether the plaintiff is entitled for decree for permanent injunction as claimed in the plaint? OPP
e) Relief.
5. In evidence, Plaintiff examined himself as PW-1 in plaintiff evidence and counsel for defendants in his statement recorded on 23.02.2015 stated that defendant No.1 and 2 do not want to lead evidence and thereafter matter was listed for final arguments.
6. I have heard arguments addressed by Ld. counsels and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence, relied precedents and have also examined the record of the case.
ISSUE WISE FINDINGS
7. Issue No.1: Whether the suit is barred under the provisions of order 2 Rule 2 CPC? OPD CS No. 18441/2016 Page No. 6 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others 7.1. The said issue was treated as preliminary issue and by judgment dated 31.05.2002, the same was decided in favour of the defendants, as a result of which the suit was dismissed.
7.2. The said judgment was challenged by the plaintiff by filing RFA No.442/2002 before Hon'ble High Court. The said appeal was decided on 18.11.2011 in favour of the plaintiff and the judgment and decree dated 31.05.2002 was set aside, after observing that Order II Rule 2 of CPC was not applicable to the present case.
7.3. Accordingly, the said issue already stands decided.
8. Issue No.2: Whether the plaintiff was willing and is willing to perform his part of contract? OPP & Issue No.3 Whether the plaintiff is entitled for decree for specific performance as claimed in the plaint? OPP 8.1. The entire case of the plaintiff is based on Agreement to Sell dated 02.06.1986 exhibited as Ex PW-1/1. The execution of the said agreement is specifically admitted in para-2 on page 3 of WS (in response to para-2 of the plaint) in following words:-
"It is admitted that the agreement was drawn up and executed between the parties for a fixed and stipulated place of Rs. 4,50,000/- for the flat as per plan."
Thus, execution of agreement Ex PW-1/1 is admitted in para- 2 as well as subsequent paragraphs (para-3 and 4) of WS.
CS No. 18441/2016 Page No. 7 of 24Naresh Chand Jain Vs Mirahul Enterprises and others 8.2. The dispute is primarily with respect the area of flat no. G-4, which was agreed to be sold for sum of Rs. 4,50,000/- by the said agreement Ex PW-1/1.
The plaintiff claims that the area of the said flat no. G-4 is about 1201 sq. feet as against 1730 sq. feet, as mentioned in agreement Ex PW-1/1.
The defendant on the other hand claims that the said flat G-4 was sold as per plan (attached with agreement) on 'as is where is' basis and the price of the flat was not determined on the basis of area i.e. at the rate of Rs. 260 sq. feet for 1730 sq. feet.
8.3. The pleadings with respect to area are reproduced as under :-
Para-2 of plaint Para-2 of WS That on 31st May, 1986, the plaintiff That the statements made in para No.2 learnt that the defendants were of the plaint are wrong, false, concocted
proposing to sell flats in their Building A- and as such denied. It is wrong and 13, Green Park Extension, New Delhi denied that the plaintiff approached the and as such, the plaintiff met defendant defendants for purchase of flat in their No.2 and his wife in the evening on the building at A-13, Green Park Extension, same day and had a look at the building New Delhi on 31.05.1986. He and the flat. Subsequently, on approached the defendants in April 1986 01.06.1986, after bit of bargaining the and negotiated for purchase of flat No. price of the flat per sq. ft. was settled at G-4 in the building which was then ready Rs. 260/- )Rupees Two hundred sixty) and complete and after inspecting the per sq. ft. in the meeting taken between same a number of times and after the plaintiffs and the defendants. The satisfying himself about its state and size defendants assured that the area of the as well as usefulness of the same for flat was 1730 sq. ft. and as such the him. It is wrong and denied that the price @ Rs. 260/- (Rupees two hundred price was to be calculated by multiplying sixty) per sq. ft. amounted to Rs. the same with 1730 sq. ft. the alleged 4,49,800/- (Rupees four lakhs forty nine area of the flat was sold as per plan thousand eight hundred only). The given with the agreement to sell on as is CS No. 18441/2016 Page No. 8 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others defendants suggested that a round where is basis and a total and fixed price figure of Rs. 4,50,000/- (Rupees Four of Rs. 4,50,000/- was stipulated lakhs fifty thousand only) may be therefore. The plaintiff negotiated and mentioned in the agreement which was settled for the same price of a ready and proposed to be reduced into writing. complete flat then in existence and after The plaintiff agreed to the said duly satisfying himself about the area suggestion of the defendants and as and other facts concerning the flat and such on 2nd June, 1986 when the the seals was on as is where is basis. It agreement was entered into, the price is admitted that agreement was drawn for a flat of 1730 sq. ft. was agreed to be up and stipulated price of Rs. 4,50,000/- paid at Rs. 4,50,000/- (Rupees Four for the flat as per plan. It is pertinent to lakhs fifty thousand only). mention here that the flat was described and mentioned by its No. G-4 and was sold on as is where is basis. It is wrong and denied that the defendant described or assured the area of the flat to be 1730 sq. ft.
8.4. The question before the court is: Whether the suit property i.e. flat no. G-4 was sold on the basis of area (1730 sq feet) as mentioned in the agreement or whether it was sold on the basis of the site plan attached with the agreement?
a) At this stage, it would be relevant to reproduce corresponding para-2 of the replication, to know as to what is the stand of plaintiff with respect to the site plan of the flat annexed with agreement and referred to by defendants in the aforesaid para-2 of WS. The said para is reproduced as under:-
"Para-2 of the written statement as stated is traversed and corresponding para-2 of the plaint is reaffirmed. It is wrong that the defendants approached the plaintiff in April, 1986 and negotiated for the purchase of flat no. G-4. The plaintiffs learnt only on 31.05.1986 that the defendants were proposing to sell flats in their CS No. 18441/2016 Page No. 9 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others building and as such the plaintiff met defendant no.2 and his wife in the evening on the same day and had a look at the building and the flat and it was subsequently on 1st June, 1986 that after bargaining, the price of the flat was settled at Rs. 260/- per sq. ft. There were no negotiations prior to 31st May, 1986. The contract was negotiated and bargaining was done only on 1st June, 1986. It is wrong that the plaintiff had inspected the flat a number of times. The plaintiff did not take measurement of the flat though in other respects, he was satisfied. It is wrong that the flat was sold on as is where is basis. The price was calculated at the rate of Rs. 260/- per sq. ft. which amounted to Rs. 4,49,800/-. In order to make it a round figure, the defendant suggested that the round figure of Rs. 4.50 lacs may be mentioned in the agreement and as such the said figure was mentioned in the agreement. The measurement was not taken. It is denied that the plaintiff was satisfied about the area. Even the copy of the plan was not supplied. It is denied that the flat was sold on as is where is basis. It is reaffirmed that the defendants assured that the area of the flat was 1730 sq. ft. and the price would be charged for the same." (emphasis supplied)
b) It is interesting to note that the plaintiff denied having received copy of the site plan in the replication, as he stated : "Even the copy of the plan was not supplied."
The plaintiff not only denied that the suit property was sold as per site plan, but also denied having received copy of the same from the defendants.
c) Application was filed by defendants u/o 11 Rule 14 and Section 151 CPC, seeking direction to the plaintiff to file on record the original agreement to sell dated 02.06.1986 CS No. 18441/2016 Page No. 10 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others together with the plan annexed therewith and signed by both the parties. The said application was disposed of on 22.08.1990. The order is reproduced as under :-
"I.A. No. 9205/89This is an application under order 11 Rule 14 read with Section 151 CPC for seeking directions to the plaintiff to file on record the original agreement to sale dated 2.6.86 together with plan annexed therewith and signed by both the parties. Reply has not been filed on behalf of non-applicant. It is stated by counsel for non-
applicant that the original agreement in question has been filed and that the same has been kept in sealed cover. A photo copy of the agreement is on record. Counsel for non-application/defendants can inspect the original agreement in terms of the provisions of Original Side Rule.
As regards the plan, filing of which is sought by this application by the applicant, it is stated by counsel for the plaintiff that she has already filed the plan and made it as Annexure I to the plaint. It is further stated on behalf of non-applicant that the non-
applicant/plaintiff does not have any other signed plan in the possession of the plaintiff. In the circumstances, the application does not survive and accordingly disposed of." (emphasis supplied)
d) From the said order it is clear that though in the replication the plaintiff denied that copy of site plan was supplied along with the agreement, the plaintiff through his counsel on 22.08.1990 admitted that there was a site plan annexed with the agreement Ex PW-1/1 and that he had filed the same as Annexure-I to the plaint. The said site plan (Annexure-I), relied upon by plaintiff in para-3 of plaint, was subsequently admitted by the CS No. 18441/2016 Page No. 11 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others defendants during admission/denial of documents on 30.09.1997.
e) Thus, there are two admitted documents which were signed on same day i.e. Agreement to Sell Ex PW-1/1 and the site plan annexed with it (i.e. Annexure-I to the plaint) 1. To answer the question that whether the flat was sold by area as mentioned in agreement Ex PW-1/1, or as per the plan Annexure-I, it is necessary to reproduce the relevant terms of the agreement Ex PW-1/1 as under:-
"And whereas the seller has also agreed to sell and the purchasers have agreed to purchase part portion of the building measuring approximately 1730 sq. fts at the Lower & Upper Ground Floor of Flat No. G-4 in Mirahul Apartment A-13, Green Park Extn, New Delhi, as shown in the site plan attached and marked by red colour boundary, signed by both the parties for the purpose of future verification. NOW THEREFORE THIS AGREEMENT TO SELL WITNESSETH AS UNDER
1.That the sellers do hereby agree to sell the part portion of the building measuring approximately 1730 sq. fts. At Lower & Upper Ground Floor bearing Flat No. G-4 in Mirahul Apartments New Delhi as shown red in the site plan attached for a consideration of Rs.4.50 lacs to be paid in the following manner:-
i) Rs.1,00,000/- (Rupees one lac) already paid by means of cheque No.410194 dated 01.06.1986 drawn on Indian Bank, Delhi.
ii) Rs.1,00,000/- (Rupees one lac) on signning on this agreement and taking possession by means of cheque No.410195 dated 02.06.1986 drawn on Indian Bank, Delhi.
iii) Cheque No.410196 dated 20.06.1986 for 1 Para 3 of the plaint.CS No. 18441/2016 Page No. 12 of 24
Naresh Chand Jain Vs Mirahul Enterprises and others Rs.2,00,000/- (Rupees Two lacs only) drawn on Indian Bank, Delhi, as part payment.
iv) Rs.50,000/- to be paid at the time of Registration of document by demand draft." (emphasis supplied)
f) The agreement Ex. PW 1/1 mentions that the defendants have agreed to sell and the plaintiff has agreed to purchase "part portion of the building measuring approximately 1730 sq. ft. at the lower and upper ground floor of Flat No. G-4 in Mirahul Apartments A-13, Green Park Extension, New Delhi as shown in site plan attached and marked by red colour boundary, signed by both the parties for the purpose of future verification".
g) Agreement also mentions that the approximate area of 1730 sq. ft. includes:-
• area under the partition walls.
• Half of the area under the common wall as between the two flats.
• 100% of the balcony.
• Certain percentage of staircase / lobby / water tanks / set backs.
h) It is not the case of the plaintiff that the suit property i.e. flat No. G-4 is not built up as per site plan (Annexure-I), rather, the plaintiff has relied upon said site plan in para 3 of plaint, reproduced as under:-
"That on 02.06.1986, the defendant No.1 firm through its managing partner, defendant No.2 entered into an agreement to sell for a flat in the said building, ad-measuring approximately 1730 sq. ft. at the lower and upper ground floor, being flat No.G-4, Mirahual Apartment, A-13, Green Park Extension, New Delhi, as shown red in the site plan attached CS No. 18441/2016 Page No. 13 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others as Annexure-I."
i) The plaintiff was cross examined as regards site plan (Annexure-I) and he testified as under:-
"I filed the site plan which was given to me by the defendants. The site plan bears my signatures. I do not know whether it is as per the existing flat or not."
j) The plaintiff despite specific question in his cross examination did not say that flat No. G-4 is not constructed as per site plan (Annexure-I).
k) The plaintiff in order to prove that the area of the flat is less than 1730 sq. ft. has relied upon a report given by MPP Consultants, Architects & Engineers dated 03.07.1986 (Ex. PW 1/5), but even in the said report the individual dimension of rooms, kitchen, balcony, bathrooms etc. is not given so that the same may be compared with site plan (Annexure-I). The contents of the said report Ex. PW 1/5 is highly relevant to be reproduced, hence reproduced as under:-
"As desired by you, we have calculated the plinth area of Flat No. G-4, A-B, Gree Park Extension based on actual measurement taken at site. Total plinth area of the unit is 1201 sq. ft. the break up of which is as given below:-
Plinth area on ground floor = 496 sq. ft.
Plinth area of first floor = 705 sq. ft.
Total = 1201 sq. ft.
We will submit the Super Area details as soon as we receive measured Building drawings and details. We also made few observations, as listed below, during our visit to the flat.
(i) Front set back is exclusively used by the occupants CS No. 18441/2016 Page No. 14 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others of the flats facing front.
(ii) Rear set back has been encroached by constructing a room approx 7'X10' in size and a water tank.
(iii) Major area of the side set back is used for car parking."
l) In the report it is categorically mentioned that the report is with respect to plinth area and not with respect to Super Area as Super Area can only be calculated after building drawing and other details are provided.
m) At this stage it would be relevant to understand the distinction between plinth and super area, so as to find out as to whether the agreement refers to 1730 sq. ft. as plinth area or super area of flat G-4.
n) The area of a flat may be measured in Carpet Area OR Built up Area / Plinth Area OR Super built up area. Carpet Area is the area enclosed within the walls, i.e. the actual area to lay the carpet. This area does not include the thickness of the inner walls / common walls or airducts. It is the actual used area of an apartment. Built up area or plinth area is the carpet area plus the thickness of inner walls / common walls as well as airducts.
Super built up area is the built up area plus proportionate area of common areas such as the lobby, left shaft, stair, set back and it may also include in some cases common areas like swimming pools, garden, play ground etc.
o) In the agreement Ex. PW 1/1, the area of G-4 is CS No. 18441/2016 Page No. 15 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others mentioned as approx. 1730 sq. ft. which includes as per para 4 on page 2 of the agreement the following areas:-
Area under the partition walls.
• Half of the area under the common wall as between the • two flats.
• 100% of the balcony.
• Certain percentage of staircase / lobby / water tanks / set backs.
p) Thus the area mentioned in the agreement Ex. PW 1/1 is the super built up area and not the plinth area or built up area and it is for this reason that the report Ex. PW 1/5 refers to super area and states that super area could not be calculated. PW-1/plaintiff was questioned in this regard and he testified as under:-
"I came to know that the area delivered as part performance of the agreement was much less that the area mentioned as 1730 sq. ft. In fact, the area as per my interior decoration who observed as 1000-1200 sq. ft. only which was later confirmed by an architect firm M/s. MPP Consultants as 1201 sq. ft. only...............We have not calculated the certain percentage of stair case / lobby / set back. Vol. As we did not have the architectural drawings, therefore, it was not possible to calculate the percentage of this area." (emphasis supplied)
q) Thus, admittedly, as per report Ex. PW 1/5 and as per testimony of PW-1/plaintiff, the super built up area of Flat G-4 as per clause (4) of agreement Ex. PW 1/1 was never calculated by the plaintiff or by architect employed by plaintiff and it was without making such calculations that the payment of cheque No.410196 dated 20.06.1986 in CS No. 18441/2016 Page No. 16 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others sum of Rs.2 lakhs was stopped by the plaintiff, because the plaintiff came in possession of the property and now it suited him to create some dispute and avoid payment. It was in order to fill up the said lacuna that an application under Order 16 Rule 7 CPC was filed by plaintiff on 06.10.2017 to summon the sanctioned plan of the suit property from building department of SDMC. However, after filing the said application, the same was abandoned/not pressed by learned counsel for plaintiff, rather, on the next date final arguments were addressed before learned Predecessor and subsequently before the undersigned.
r) Thus onus to prove that the super built up area of the suit property was less that 1730 sq. ft. as mentioned in the agreement Ex. PW 1/1 was upon the plaintiff, but the plaintiff failed to prove the said fact.
s) Moreover, in the opinion of the court the suit property was sold primarily as per the site plan and not as per area mentioned in the agreement, because the property was constructed when the first payment was made or when the agreement Ex. PW 1/1 was executed. It may be noted that first payment of Rs.1 lakh was made on 01.06.1986 and on very next day i.e. 02.06.1986 the agreement Ex.
PW 1/1 was executed and plaintiff came in possession of the property. Thus, the property was purchased by plaintiff after he inspected the same physically and CS No. 18441/2016 Page No. 17 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others subsequent payment of Rs.1 lakh was made on 02.06.1986 when plaintiff was put in actual possession of the property. The plaintiff never raised the dispute regarding area of flat on 02.06.1986 when he took possession as per the site plan attached with the agreement. Thus, the plaintiff was prima facie satisfied with the area of the flat as shown to him and handed over to him at the time of agreement Ex. PW 1/1. It was only subsequently that he raised dispute with respect to the area of the flat.
t) It may be noted here that the plaintiff in the plaint as well as in replication and his evidence, has reiterated again and again that the price of the flat was settled at Rs.260/- per sq. ft., however, the said averment could not be proved for following reasons:-
• Firstly, because the Agreement Ex. PW 1/1 does not mention that the rate was negotiated at Rs.260/- per sq. ft. and any oral evidence contradicting or adding to the terms of agreement is excluded by Section 92 of Indian Evidence Act.
Plaintiff in written argument relied upon judgment titled Bhandari Construction Company Vs. Narayan Gopal Upadhye (2007)3 SCC 163, which goes against the plaintiff in this regard.
• Secondly, because the plaintiff failed to examine any witness to the agreement Ex. PW 1/1 to prove that the CS No. 18441/2016 Page No. 18 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others rate was settled at Rs.260/- per sq. ft. • Thirdly, because the consideration amount is Rs.4,50,000/- which is different from the amount calculated at the rate of 260/- per sq. ft. i.e. Rs.4,49,800/-.
• Fourthly, because the plaintiff did not mention the said rate (of Rs.260 sq. ft.) in his complaint to SHO dated
03.07.1986 as well as in his notice to defendant No.1 (Ex. PW 1/2). From the same it can be inferred that the story of negotiation of rate of flat @ Rs.260 per sq. ft. was subsequently concocted at the time of filing of the suit.
• Lastly, because in para 2 of plaint the plaintiff stated the consideration amount of Rs.4,49,800/- was rounded of to Rs.4,50,000/-, whereas in his cross examination he stated that charges of documentation of Rs.200/- was added to consideration amount of Rs.4,49,800/- which is again in contradiction to the terms of agreement Ex. PW 1/1.
u) In light of the aforesaid discussion, the court is of the opinion that the suit property was sold primarily on the basis of site plan (Annexure-I) and not on per sq. ft. basis.
v) Moreover, the plaintiff failed to prove the super area of flat G-4 as per clause (4) of Agreement Ex. PW 1/1 and in absence of such proof it cannot be held that the super area of the suit property is not as mentioned in Agreement CS No. 18441/2016 Page No. 19 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others Ex. PW 1/1.
8.5. The next question before the court is: Who committed breach of Agreement to Sell Ex. PW 1/1?
a) As the plaintiff failed to prove that the super area of suit property as per Clause (4) of Agreement to Sell is less than that mentioned in Agreement to Sell and the plaintiff has also admitted2 that the flat of which he was given possession was as per the site plan (Annexure I) attached with the agreement and signed by the parties, hence, plaintiff failed to prove that defendant committed breach of contract / Agreement Ex. PW 1/1.
b) On the other hand, it is the case of the plaintiff himself that he stopped the payment of post dated cheque bearing No.410/96 dated 20.06.1986 in sum of Rs.2 lakhs (Para 10 page 9 of the plaint).
c) Thus, the plaintiff stopped payment of post dated cheque, without verifying the super area of the suit property as per clause (4) of the Agreement Ex. PW 1/1. Accordingly, it is the plaintiff who committed breach of contract dated 02.06.1996 Ex. PW 1/1 by stopping payment of post dated cheque dated 20.06.1986.
d) Moreover, the plaintiff failed to file on record his bank statement, pertaining to the account from which cheque dated 20.06.1986 was issued, in order to prove that he had sufficient balance to honour the said cheque on 2 In para 3 of plaint.
CS No. 18441/2016 Page No. 20 of 24Naresh Chand Jain Vs Mirahul Enterprises and others 20.06.1986.
e) PW-1/plaintiff was questioned in this regard in his cross examination and he testified as under:-
"Q. Did you give any assurance that all the cheques given by me will be encashed?
Ans. I did not given any assurance about encashment of the cheque.
It is wrong to suggest that I did not have sufficient money in my account."
f) The plaintiff at that stage also could have produced his bank statement, but he failed to do so and as such he failed to prove that he had sufficient balance to honour the cheques of Rs.2 lakhs on 20.06.1986 and that it was bonafidely that he issued stop payment instruction.
g) It may be noted that once cheque is issued, it must be honoured and issuance of stop payment instruction without proving that there was sufficient balance in the account to honour the cheque, raises an inference that the stop payment instructions were issued because there was not sufficient balance to honour the cheque.
h) Accordingly, it is held that the plaintiff was not willing to perform his part of contract as per Agreement Ex. PW 1/1 and that he failed to prove breach of said contract by the defendant.
8.6. In view of the aforesaid discussion, it is held that the plaintiff was not willing to perform his part of contract as per Agreement Ex. PW 1/1 and as he failed to prove breach of said contract by the defendant, hence, he is not entitled to CS No. 18441/2016 Page No. 21 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others decree for specific performance of the contract / Agreement to Sell Ex. PW 1/1. Both issue No.2 and 3 are decided in favour of defendants and against the plaintiff.
9. Issue No.4: Whether the plaintiff is entitled for decree for permanent injunction as claimed in the plaint? OPP 9.1. The plaintiff has prayed for following injunction against the defendants:-
"A decree of permanent injunction against the defendants, their employees, agents, representatives and attorneys from dispossessing the plaintiff from the flat No. G-4, Mirahul Apartments, A-13, Green Park Extension, New Delhi and from causing any obstruction to the peaceful enjoyment of the said flat by the plaintiff by withholding electricity and water supply or causing any obstruction to the passage of the plaintiff."
9.2. As regards said relief, plaintiff / PW-1 in his examination in chief dated 07.08.2000, testified as under:-
"The defendants in part performance of contract Ex. PW 1/1 had delivered the possession of the flat in question to me on dt. 02.06.86. After taking the possession, I put my household goods in the said flat. The defendant No.2 contacted me when the cheque of Rs.2 lac received unpaid by him on 3rd July, 1986 and he threatened me that he will dispossess me from the flat in question if the plaintiff did not pay the amount of Rs.2 lac to the defendant than he will threw him out from the flat in question and the plaintiff was always willing and ready to pay the amount as per the agreement dt. 2.06.86 in which the specific area of the flat was mentioned as 1730 sq. ft. and while s per the report of the Architect, the area of the flat was only 1201 sq. ft. Thereafter, I have made a complaint to PS Hauz Khas on 3.7.86. The photo copy of the said complaint is Mark A and the police has registered a case u/s 420 of IPC against the deft. The copy of the CS No. 18441/2016 Page No. 22 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others said FIR is marked B and on registration of the case, the defendant No.2 obtained anticipatory bail from the concerned court.
9.3. In his cross examination dated 09.01.2015, no question with respect to the aforesaid examination in chief qua threat advanced by defendant No.2 was asked from the plaintiff / PW-1. The only line which can be related to the threat in said examination in chief (or the entire examination in chief) is:-
"It is wrong to suggest that I am deposing falsely."
9.4. As far as possession of plaintiff is concerned, it is an admitted fact that plaintiff is in possession of the suit property. Further, the testimony of plaintiff regarding threat given by defendant No.2, that he shall be dispossessed, also remains unchallenged and uncontroverted. Hence, the plaintiff is entitled to relief of permanent injunction as regards possession.
9.5. However, as the plaintiff has not testified with respect to any threat regarding withholding of electricity or water supply or causing of any obstruction to the passage of the plaintiff, hence, injunction as regards the same cannot be granted in favour of plaintiff.
9.6. This issue is decided accordingly.
10. Final order In light of the aforesaid discussion, it is held that the plaintiff is not entitled to relief of specific performance or the relief of rectification of agreement to sell dated 02.06.1986. However, as CS No. 18441/2016 Page No. 23 of 24 Naresh Chand Jain Vs Mirahul Enterprises and others the plaintiff is in possession of the suit property, hence, in view of the finding on issue No.4, decree of permanent injunction is passed in favour of plaintiff and against the defendants, thereby restraining the defendants from dispossessing the plaintiff from suit property i.e. Flat No. G-4, Mirahul Apartments, A-13, Green Park Extention, New Delhi (as shown in red colour in the site plan Annexure-I) without following due process of law.
11. Decree sheet be drawn accordingly.
12. No order as to costs.
13. File be consigned to Record Room after necessary compliance.
Announced in the Open Court Digitally signed by
on 13.04.2018 SAURABH PARTAP SINGH
LALER
Date: 2018.04.13 16:54:40
+05'30'
(S.P.S. LALER)
Additional District Judge-01, Central
Tis Hazari Courts, Delhi
13.04.2018
CS No. 18441/2016 Page No. 24 of 24