Delhi District Court
Omkar Singh vs Smt. Anjeera Devi on 9 December, 2015
IN THE COURT OF MS.NISHA SAXENA: ADJ03 (EAST)
KARKARDOOMA COURTS, DELHI.
CS No.108/15 (RBT)
Unique ID No. 02402C0236402013
Omkar Singh
S/o Sh. Sunder Singh
R/o E24, Ganesh Nagar
Pandav Nagar Complex
Delhi110092.
..... Plaintiff
Versus
Smt. Anjeera Devi
W/o Sh. Munna Lal
R/o D272/7, 3rd Floor,
Ganesh Nagar, Pandav Nagar
Complex, Delhi110092.
..... Defendant
Date of Insititution : 30.07.2013
Date of reserving judgment : 07.12.2015
Date of pronouncement : 09.12.2015
JUDGMENT: This is a suit for specific performance of agreement to sell dated 03.06.2012 and for recovery of possession or in the alternate for recovery of Rs.19,00,000/ and perpetual injunction. In the instant case, the plaintiff has claimed that the defendant, who is the owner of suit property, agreed to sell a floor to the plaintiff and an agreement to sell was executed. The defendant agreed to sell the floor to the plaintiff for a total sum of Rs.15,50,000/ (Rupees Fifteen lacs fifteen thousand only).
CS No.108/15 (RBT) Page 1 of 22The plaintiff has claimed that an amount of Rs.14,00,000/ has been given despite which the defendant has not executed the sale deed in his favour.
PLAINTIFF'S CASE The case of the plaintiff is that the defendant is the owner of property bearing No.D372/7, 3rd floor, Ganesh Nagar Complex, Delhi 110092, consisting of two plus one room upto ceiling level area measuring 50 sq. yards (two side open flat) and wanted to sell the said floor. The plaintiff was also desirous of purchasing a floor in the same locality. He came in contact with the defendant through a property dealer Sh. Mukesh Gupta, Proprietor of Bal Gopal Properties. After negotiation, the defendant agreed to sell the said floor to the plaintiff and an agreement to sell was executed between the plaintiff and defendant on 03.06.2012, whereby the defendant agreed to sell the said floor to the plaintiff for a total sum of Rs.15,50,000/ (Rupees Fifteen lacs fifteen thousand only). At the time of execution of agreement to sell dated 03.06.2012, an amount of Rs. 11,00,000/ (Rupees Eleven Lacs only) was given to the defendant by the plaintiff towards earnest money and subsequently he paid a sum of Rs.3,00,000/ (Rupees three lacs only) on 30.03.2013. Thus, a total payment of Rs.14,00,000/ (Rupees fourteen lacs only) was made to the defendant towards purchase of the floor in the property bearing No.D372/7, 3rd floor, Ganesh Nagar Pandav Nagar Complex, Delhi110092.
As per terms and conditions of agreement to sell, the defendant was required to execute and register the sale deed in favour of the CS No.108/15 (RBT) Page 2 of 22 plaintiff and was also required to hand over the possession of the property in dispute to the plaintiff on or before 03.06.2013, subject to total sale consideration amount of Rs.15,50,000/ (Rupees Fifteen lacs fifty thousand only).
On 30.03.2013, at the time of receiving an amount of Rs.3,00,000/ from the plaintiff, the defendant informed the plaintiff that on or before the agreed date i.e. 03.06.2013, the defendant would handover the vacant possession of the property in dispute. However, the defendant failed to fulfill his promise and till date possession of the property in dispute has not been handed over to the plaintiff despite the fact that out of the total sale consideration amount of Rs.15,50,000/, the plaintiff has already made payment of Rs.14,00,000/ to the defendant and only an amount of Rs.1,50,000/ is payable by the plaintiff to the defendant, which the plaintiff is ready and willing to make to the defendant. At the time of entering into an agreement to sell, the defendant required one year for completion of sale transaction on the pretext that the defendant's house is under construction at Panipat and after the construction work was completed, the defendant would start residing there. After 23 days of making the payment of Rs.3,00,000/ on 30.03.2013, plaintiff visited the house of the defendant and enquired from the defendant about the handing over of possession. However, the defendant and her mother in law instead of informing anything to the plaintiff dialled 100 number and police came to the spot. However, he explained everything to the police and they went back.
Agreement to sell between the plaintiff and defendant was executed through property dealer namely Sh. Mukesh Chand Gupta and CS No.108/15 (RBT) Page 3 of 22 as such the plaintiff decided to approach the said property dealer, who also advised the defendant to get the sale transaction completed by handing over possession of the property in dispute to the plaintiff after executing the sale deed subject to receiving balance sale consideration of Rs.1,50,000/ which the plaintiff was / is always ready and willing to pay, performing his part of contract, but the defendant remained adamant in not completing the sale transaction.
Despite receiving letter dated 16.05.2013 requesting the defendant to appear before the SubRegistrar concerned on 23.05.2013, the defendant did not appear before the SubRegistrar and accordingly, through his Advocate the plaintiff sent a legal notice to the defendant dated 20.06.2013. After receiving the legal notice, the defendant started negotiating with other people for selling the suit property to them as informed to the plaintiff by the local property dealer. It is stated that the cause of action firstly arose on 03.06.2013, when the defendant entered into the agreement to sell and lastly it arose on 20.06.2013, when the plaintiff sent legal notice through his Advocate.
The plaintiff has sought a decree for specific performance of contract dated 03.06.2013 directing the defendant to execute necessary transfer documents in favour of the plaintiff and also to handover the vacant and physical possession of the property in dispute i.e. D372/2, 3rd floor, Ganesh Nagar, Pandav Nagar Complex, Delhi92, subject to receiving balance sale consideration amounting to Rs.1,50,000/ from the plaintiff or in the alternate a decree for Rs.19,00,000/ though the defendant is liable to pay double of the earnest money. The plaintiff has also sought a decree of perpetual injunction against the defendant thereby CS No.108/15 (RBT) Page 4 of 22 restraining the defendant to sell the property in dispute to any other person or to create any type of third party interest in respect of the suit property.
DEFENDANT'S CASE The defendant in his written statement has raised preliminary objections that the suit is liable to be dismissed as there arose no cause of action for fling the present suit. It is alleged that the plaintiff has suppressed numerous facts from the Hon'ble Court and as such principle of suppressowari applies. The suit is based on forged and fabricated agreement to sell and purchase and hence, the suit is liable to be dismissed.
The defendant has denied the allegations made and has averred that the husband of the defendant being known to the plaintiff had approached him for some financial assistance and at the time of giving the same, the plaintiff got signed some blank papers including a stamp paper from the defendant. The defendant under impression of financial assistance, signed the blank papers. The defendant has categorically denied that at the time of the execution of agreement to sell dated 03.06.2012, an amount of Rs.11,00,000/ and a total amount of Rs.14,00,000/ was paid by the plaintiff to the defendant towards the purchase of floor in the suit property. It is submitted that two cheques bearing No.634544 dated 03.06.2012 for Rs.3,20,000/ drawn on State Bank of India and cheque No.283352 dated 03.06.2012 for Rs.2,00,000/ drawn on Punjab National Bank, were dishonoured by the respective bankers; that only one cheque bearing No.460815 dated 03.06.2012 for CS No.108/15 (RBT) Page 5 of 22 Rs.2,00,000/ drawn on State Bank of Patiala, was honoured and only this amount was given by the plaintiff to the defendant through her husband.
It is also submitted that the notice or the summons were not served upon the defendant as the wrong address was given by the plaintiff with malafide intention, whereas the correct address of the defendant is D 372/2, 3rd floor, Ganesh Nagar Pandav Nagar Complex, Delhi92.
It is alleged that the plaintiff was required to handover the possession of misused blank papers which he got signed from the defendant on the pretext of giving friendly loan to the defendant through her husband. It is stated that no agreement as alleged by the plaintiff was ever executed between the parties and no payment as alleged had been made by the plaintiff to the defendant. Only Rs.2,00,000/ was given to the defendant by the plaintiff as a friendly loan and the defendant did not take any receipt thereof due to friendly relations between the plaintiff and husband of the defendant. It is submitted that the question of handing over the possession does not arise, at all and the plaintiff is trying to extort money from the defendant; that the question of completing the sale transaction does not arise, at all as the alleged document i.e. Agreement to sell and purchase attached with the suit is forged and fabricated with the connivance of the said property dealer. It is denied that any notice as alleged by the plaintiff was served upon the defendant. She also denied that she was ever served with a notice of the court. The defendant has stated that since she never entered into agreement to sell, therefore, she being an owner of the property is free to deal with it as per her own wishes and no one can interfere in the same and it is alleged that the CS No.108/15 (RBT) Page 6 of 22 plaintiff is trying to grab the property of the defendant which is the only shelter to the family of the defendant with the collusion of one property dealer Sh. Mukesh Gupta.
ISSUES: From the pleadings of the parties, following issues were framed:
(i) Whether the plaintiff is guilty of suppression of material facts? OPD.
(ii) Whether the Agreement to sell dated 03.06.2012 is forged and fabricated? OPD.
(iii) Whether the plaintiff is entitled for the decree of specific performance of Agreement to Sell dated 03.06.2012? OPP.
(iv) Whether the plaintiff is entitled for the decree of the recovery of possession or in alternative for the recovery of Rs.19,00,000/? OPP.
(v) Whether the plaintiff is entitled for the decree of perpetual injunction? OPP.
(vii) Relief.
PLAINTIFF'S WITNESSES
PW1 Shri Omkar Singh, (the plaintiff)
PW2 Sh. Mukesh Chand Gupta, Proprietor of Bal
Gopal Properties
The plaintiff has proved his affidavit as Ex.PW1/A and PW2 Sh. Mukesh Chand Gupta has proved his affidavit as Ex.PW2/A. CS No.108/15 (RBT) Page 7 of 22 DOCUMENTS RELIED UPON BY THE PLAINTIFF Ex.PW1/1 Agreement to sell Mark X Copy of bank statement of Punjab National Bank Mark Y Copy of bank statement of Bank of Patiala Mark A and Photocopy of receipt of attendance B respectively with Sub RegistrarVIII, Delhi, dated 23.05.2013 and 03.06.2013 Mark Z Copy of legal notice dated 20.06.2013 Ex.PW1/5 Original postal receipt Ex.PW1/6 Original delivery report DEFENDANT'S WITNESSES DW1 Smt. Anjeera Devi, (the defendant) The defendant has proved her affidavit as Ex.DW1/A. I have given considerations to the rival contentions of Ld. Counsel for the plaintiff Mr. Afzal Ahmed and Ld. Counsel for the defendant Mr.Akhlak Ali and gone through the entire record.
FINDINGS: CS No.108/15 (RBT) Page 8 of 22 ISSUE No.1: Whether the plaintiff is guilty for suppression of material facts? OPD.
In the written statement, the defendant has taken the preliminary objection that the suit is liable to be dismissed on the sole ground that the plaintiff has suppressed numerous facts from the court and as such, the supressowari applies. Except the bald allegations in the written statement, there is no mention in the affidavit of defendant Smt. Anjeera Devi Ex.DW1/A, regarding the suppression of facts. No such suggestion was given to the plaintiff in his crossexamination that he was guilty of suppressing material facts. No document proved on record. Therefore, I hold that the defendant has miserably failed to discharge the onus placed upon her. Issue no.1 is, accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE No.2: Whether the Agreement to Sell dated 03.06.2012, is forged and fabricated? OPD.
In para 4 of his affidavit, the defendant has stated that no such agreement as alleged by the plaintiff has ever been executed between the parties and no payment as alleged has been made by the plaintiff to the defendant. Only Rs.2,00,000/ was given to the defendant by the plaintiff as a friendly loan. The defendant did not take any receipt thereof considering the friendly relations between the plaintiff and husband of the defendant. The plaintiff is trying to extort money from the defendant with the collusionof the property dealer Sh. Mukesh Chand Gupta on the CS No.108/15 (RBT) Page 9 of 22 basis of forged and and fabricated document. In his crossexamination, PW1 Onkar Singh has categorically denied the suggestion that the agreement to sell and purchase Ex.PW1/1 is a manipulated, forged and fabricated document. It is also denied that the plaintiff is trying to grab the property of the defendant by forging and fabricating the document and trying to extort money from the defendant. The plaintiff has specifically denied the suggestion that he had got signed the blank papers from the defendant on the pretext of giving friendly loan and thereafter he misused the same. He denied the suggestion that he alongwith Sh.Mukesh Chand Gupta, proprietor of M/s Bal Gopal Properties forged and fabricated Ex.PW1/1 with intention to grab the property of the defendant. The plaintiff has denied the suggestion regarding forged and fabricated document having been prepared by the plaintiff. The defendant has not been able to prove that the plaintiff forged and fabricated the agreement to sell deed dated 03.06.2012. In the facts and circumstances, I hold that the agreement to sell dated 03.06.2012, is not forged and fabricaed document. Issue No.2 is, accordingly, in favour of the plaintiff and against the defendant.
ISSUE No. 3 and 4:
(3) Whether the plaintiff is entitled for the decree of specific performance of Agreement to Sell dated 03.06.2012? OPP. (4) Whether the plaintiff is entitled for the decree of the recovery of possession or in alternative for the recovery of Rs.19,00,000/? OPP.
Issue No.3 and 4 are clubed together as the issues are interlinked CS No.108/15 (RBT) Page 10 of 22 and involve common discussion.
In his affidavit Ex.PW1/A, the plaintiff has reitereated the averment made in his plaint. PW2 Shri Mukesh Chand Gupta, Proprietor of M/s Bal Gopal Properties in his affidavit has averred that the plaintiff came in contact with the defendant, owner of the property No.D372/7, 3rd Floor, Ganesh Nagar Complex, Pandav Nagar, Delhi110092, through him and the defendant wanted to sell the suit property. The plaintiff and the defendant negotiated regarding purchase and sale of flat in question for a total consideration of Rs.15,50,000/. Accordingly, an agrement to sell was executed between the plaintiff and the defendant Ex.PW1/1 and at the time of execution of agreement to sell, an amount of Rs.11,00,000/ was paid by the plaintiff to the defendant in presence of PW2 out of which Rs.3,80,000/ was paid by the plaintiff to the defendant in cash and rest amount ws paid through three cheques out of which one cheque amounting to Rs.3,20,000/ was dishonoured payment in lieu of the same was made by the plaintiff to the defendant in cash in presence of PW2 Sh. Mukesh Chand Gupta. He alslo signed agreement to sell and at the time of signing agreement to sell by the plaintiff and defendant, Smt. Manti Devi, mother in law of the defendant put her thumb impression and Shri Munna Lal, husband of the defendant signed as a witnesses to the agreement to sell. Besides the said witnesses, PW2 also signed the agreement to sell as a witness. The dealing for the sale and purchase of the aforesaid property was done at his office i.e. D297, Ganesh Nagar Pandav Nagar Complex, Delhi110092, in his presence. Besides making the payment of Rs.11,00,000/, the plaintiff also made payment of Rs.3,00,000/ to the defendant in the presence of PW2 on 30.03.2013 and CS No.108/15 (RBT) Page 11 of 22 he put his signatures as a witness to the receiving by the defendant.
PW2 Shri Mukesh Chand Gupta has stated in his cross examination that on 02.06.2012, defendant Smt. Malti Devi, Munna Lal and plaintiff were present at his office, Bal Gopal Properties for the dealing of property in question, whereas PW1 has not stated about the presence of Smt. Malti Devi on 02.06.2012. He has also stated that he knew the plaintiff 23 days prior to the date of selling of flat in question, whereas PW1 Omkar Singh stated that he knew Sh. Mukesh Chand Gupta for the last 56 years. PW2 has stated that the stamp papers for the alleged agreement to sell was purchased by husband of the defendant on 02.06.2012 from the Devender, documentwala. The signatures were affixed by mother in law of the defendant, Sh.Munna Lal and defendant Anjeera Devi. Though PW1 Omkar Singh has not stated about the presence of mother in law of the defendant on 03.06.2012. However, these are minor discrepancies and do not strike at the root of the case.
PW2 has stated that on 03.06.2012, when the payment was made,there were three cheques, two cheques of Rs.2,00,000/ each and the third cheque was of Rs.3,20,000/ and Rs.3,80,000/ were given in cash, therefore, he has corrobrated PW1 regarding the payment that was given to the defendant. The agreement to sell was already prepared on 03.06.2012, however, the same was signed only after the payment. He admitted the handwriting on the back side of the agreement to sell from point A to A in his own handwriting except the signatures of the defendant. He also stated that in his presence, payment was made three times by the plaintiff to the defendant. The first payment of Rs.11,00,000/ was made on 03.06.2012. one cheque of Rs.3,20,000/ CS No.108/15 (RBT) Page 12 of 22 bounced because of which cash of Rs.3,20,000/ was made on 10.06.2012 and the plaintiff took the bounced cheque and third payment of Rs.3,00,000/ was made on 30.03.2013 at his office. Therefore, both the witnesses corroborate each other regarding the payment having been made by the plaintiff to the defendant. He has specifically denied the suggestion that at the time of tendering of cheques by the plaintiff, he in collusion with the plaintiff took signtures of the defendant on blank papers. He further denied the suggestion that signatures were obtained fraudulently on the pretext of extending friendly loan. The cross examination of this witness thwacks the case of the defendant.
In her affidavit, DW1 stated that her husband being known to the plaintiff approached him for some financial assistance and at the time of giving the same, the plaintiff got signed some blank papers including a stamp paper from the defendant. Though in her cross examination, she stated that the plaintiff never got signed any blank paper or stamp paper from her. Her husband got signed some blank paper and one stamp paper at her home, when she was cooking food. Her husband did not tell her that he was going to sell the house and therefore, he was getting signatures on the papers. Therefore, in her cross examination, DW1Anjeera Devi is demolishing her own case and contradicting the affirmations made by her in the affidavit.
In her affidavit, DW1 has further affirmed that two cheques bearing No. 634544 dated 03.06.2012 of Rs.3,20,000/ drawn on State Bank of India and cheque bearing No.283352 dated 03.06.2012 of Rs.2,00,000/ drawn on Punjab National Bank were dishonoured by the respective bankers. Only one cheque bearing No.460815 dated CS No.108/15 (RBT) Page 13 of 22 03.06.2012 of Rs.2,00,000/ drawn on State Bank of Patiala, was honoured and only this amount was given by the plaintiff to her through her husband. In her crossexamination, she has stated that her husband approached the plaintiff for the financial assistance of Rs.4 lacs. The plaintiff paid Rs.4 lacs by way of two cheques of Rs.2,00,000/ each to her husband. The plaintiff had also given a cheque of Rs.3,20,000/ which was dishonoured. She also admitted that both the cheques of Rs.2,00,000/ each were encashed and the amount was transferred in her account. This is again contradictory. If the husband of the defendant had approached the plaintiff for a friendly loan of Rs.4 lacs, then why did the plaintiff issued three cheques in her name, out of which two cheques were of Rs.2,00,000/ each and one cheque for Rs.3,20,000/. In her affidavit she has categorically stated that only one cheque of Rs.2 lacs was encashed while two cheques for a sum of Rs.3,20,000/ and Rs.2,00,000/ as referred above were dishonoured. However, her cross examination is in contradiction to her affidavit wherein she admitted that both the cheques of Rs.2 lacs were encashed.
DW1 has also admitted her signatures at point A, B and C on the Ex.PW1/1, which is an agreement to sell and purchase. The defendant has admitted her signatures on first page of the agreement to sell and purchase while she has denied her signatures at point D. However, on comparison the signatures appear to be similar. She has also stated that she did not know when her husband repaid a sum of Rs.4 lacs to the plaintiff. Her husband did not pay any interest on the above said amount of Rs.4 lacs as the said amount was repaid. She also stated that her husband did not take any receipt against the repayment of Rs.4 lacs. The CS No.108/15 (RBT) Page 14 of 22 fact in her affidavit that her husband had taken a sum of Rs.2 lacs as a friendly loan from the plaintiff is incorrect. Her husband took a sum of Rs.4 lacs as a friendly loan. Her husband asked for the return of blank papers signed by her at the time of repayment of said loan, but the plaintiff did not return the same. She did not make any complaint to any authority regarding the non return of blank signed paper. It is not believeable that the defendant signed on blank papers; that despite their request, the plaintiff did not return the same after repayment of Rs.4 lacs by her husband and they did not make complaint to the police. The defendant also stated that she did not receive any legal notice from the Advcoate of the plaintiff. She stated that her address on legal notice dated 20.06.2013 does not bear her correct address. She stated that Sh. Daya Nand Sharma was her earlier counsel and vakalatnama filed by him bears her signatures at pointA, which is Ex.DW1/B and the said vakalatnama bears the same address which is on the legal notice. Therefore, from the testimony brought on record, I have no hesitation to hold that defendant is speaking white lies.
DW1 also admitted her signatures on the front page of Ex.PW1/1 which is acknowledging the receipt of Rs.11 lacs. Details of payment of Rs.4 lacs by cheque and Rs.3,20,000/ by cheque and Rs.3,80,000/ by cash from the second party as an earnest money and advance money. She has also admitted her signatures at point B acknowledging the receipt of Rs.3,20,000/on bouncing of cheque No.460815 and Sh. Mukesh Chand Gupta, Proproptier of Bal Gopal Properties has signed as a witness. She admitted her signatures at point C which is acknowledging the receipt of Rs.3,00,000/ cash on 30.03.2013 wherein it is admitted that the amount CS No.108/15 (RBT) Page 15 of 22 has been received in the presence of Sh. Mukesh Chand Guta, PW2. PW2 has signed as a witness. Therefore, the documents on record clearly proves that an agreement to sell and purchase was executed between the parties and a total sum of Rs.14 lacs has been paid by the plaintiff to the defendant.
It has been contended that Ex.PW1/1 is not a registered document and cannot be looked into. The agreement to sell Ex.PW1/1 is not a registered document.
The agreement to sell is not required to be registered as it does not fall within the ambit of either Section 43(A) of the Transfer of Property Act or 17(1a) of the Registration Act 1908. Agreement to sell falls under the mischief of Section 17(2)(v) of the Registration Act which is as under: "{any document other than the documents specified in sub section (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immoveable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest;"
Therefore, from a bare reading of the Section, it is evident that an agreement to sell does not create declare, assign, limit or extinguish any right, title or interest in the property rather it creates a right to obtain another document which will when executed create, declare, assign, limit or extinguish any such right, title or interest. Not only that, proviso to Section 49 of the Act make things more clear. Proviso of Section 49 is as under: "Effect of nonregistration of documents required to be CS No.108/15 (RBT) Page 16 of 22 registered - No document required by Section 17 {or by any provision of Transfer of Property Act, 1982} to be registered shall
(a) affect may immoveable property compromised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
{Provided that an unregistered document affecting immoveable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief, 1877) or as evidence of any collateral transaction not required to be effected by registered instrument}"
Therefore, it is evident that proviso to Section 49 envisages that an unregistered document affecting immoveable property and required by the Registration Act 1908, or the Transfer of Property Act to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act. A conjoint reading of Section 17(2) (v) and proviso to Section 49 of the Registration Act leaves no room for doubt that an agreement to sell of property itself does not create any right, title to the property. It is the sale deed which when executed will create right, title and interest in the property. Hence, an agreement to sell is not required to be registered and the same is receiveable in evidence in a suit for specific performance under Chapter II of the Specific Relief Act, 1877. I place reliance upon Sukhvinder Kaur vs Amarjit Singh & Ors., AIR 2012, Panjab and Haryana 1997.
In Suraj Lamp and Industries Pvt. Ltd. Vs State of Haryana and Anr., AIR 2012 SC 206, the court observed as under: CS No.108/15 (RBT) Page 17 of 22 "Any contract of sale (ageement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirement of Sections 54 and 55 of Transfer of Propety Act and will not confer any title nor transfer any interest in an immoveable property (except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement to sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter".
Hence, it is clear that agreement to sell Ex.PW1/1 is not required to be registered and it is not creating any title or interest in the property, but it is receivable in evidence as a contract.
Section 15 to 20 of the Specific Relief Act, specifically deal with the suits for specific performance and the necessary ingredients, which are required to be pleaded. The relief itself is a discretionery relief and even though it may be legal to be given cannot be so allowed by the court, in various circumstances, as enshrined in Section 20 of the Act. However, to a person to seek specific performance of a contract, it is imperative for him to show that not just there was a contract, executed by the defendant in his favour and that he has filed his suit for a specific performance within the period of limitation but that he was always ready and willing to perform his part of the contract and that the breach, if any, or withdrawl from the contract is that of the defendant. This principle of 'readiness and willingness' of the plaintiff to perform his part of the contract is that, any person seeking benefit of specific performance of a contract, must manifest that his conduct has been blemishless throughout CS No.108/15 (RBT) Page 18 of 22 entitiling him to the specific relief.
It has been held by the Hon'ble Apex Court in AIR 1995 SC 945 that 'continuous readiness and willingness' at all stages from the date of agreement till the date of hearing of the suit, must be proved, while 'readiness' means the capacity of the plaintiff to perform his part of the contract, to pay the sale consideration, and the 'willingness' is his mental attitude, that he is always ready and prepared to perform his part of the contract. Furthermore, the Hon'ble Apex Court has held that, 'this readiness and willingness should also be averred specifically in the plaint, which is filed by the plaintiff. In the pleadings, the plaintiff is required not only to aver, but also to prove that he has always been ready and willing to perform his part of the contract, at all times.
Furthermore, the grant of the relief for specific performance is a discretionery one and the discretion is to be used judiciously and should not be arbitrary. The plaintiff is required to approach the court with clean hands.
Keeping these guidelines in mind, when the suit in hand is adverted to it is found that the agreement to sell and purchase was executed between the parties on 03.06.2012 and parties entered into a deal for sale of the suit property by the defendant to the plaintiff for a total sum of Rs.15,50,000/. Out of the total amount of Rs.15,50,000/ the plaintiff has already made payment of Rs.14 lacs as per the following schedule: Date Mode Amount 03.06.2012 Cheque Rs. 2,00,000/ CS No.108/15 (RBT) Page 19 of 22 03.06.2012 Cheque Rs. 2,00,000/ 03.06.2012 Cash Rs. 3,80,000/ 03.06.2012 Cheque Rs. 3,20,000/ (bounced) 10.06.2012 Cash in lieu of Rs. 3,20,000/ bounced cheque 30.03.2013 Cash Rs.3,00,000/ Total Rs.14,00,000/ In the plaint, the plaintiff has specifically averred that he was / is always ready and willing to perform his part of contract and is ready with the sale consideration amount of Rs.1,50,000/; that he visited the office of Sub RegistrarVIII, Delhi, on 23.05.2013 and 03.06.2013 for payment of money and execution of sale deed and he has placed the copy of receipt of attendance with Sub RegistrarVIII, Delhi, dated 23.05.2013 and 03.06.2013, as Mark A and B. Accordingly, I hold that the plaintiff is entitled for a decree of specific performance of agreement to sell dated 03.06.2012 on payment of the remaning amount of Rs.1,50,000/. Issue No.3 is, accordingly, decided in favour of the plaintiff and against the defendant.
As already observed in the paras above, the agreement to sell per se does not create any right or title to the property and it is a sale deed which when executed will create right, title and interest in the property. With these observations, issue No.4 is also, accordingly, disposed of.
ISSUE NO.5: Whether the plaintiff is entitled for decree of perpetual injunction? (OPP) CS No.108/15 (RBT) Page 20 of 22 It has been averred by the plaintiff that despite entering into agreement to sell with the defendant, thereby agreeing to sell the property in dispute to the plaintiff, is trying to sell the same to some other persons as informed by the local property dealer to the plaintiff. It is also stated that the defendant is negotiating with the property dealer to sell the floor in dispute to different persons. Inasmuch as, the defendant has already entered into an agreement to sell with the plaintiff and has also received the earnest money of Rs.14 lacs, therefore, I am of the opinion that the plaintiff is entitled for a decree of perpetual injunction against the defendant. Issue No.5 is, accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE No.6 RELIEF: In view of my discussion above and findings given on the foregoing issues:
(i) A decree of perpetual injunction is passed in favour of the plaintiff and against the defendant, permanently restraining the defendant from selling, transferring, alienating or parting with the possession of the suit property or executing a sale deed in respect of the suit property bearing No. D372/7, 3rd floor, Ganesh Nagar, Pandav Nagar Complex, Delhi 110092, in favour of anybody except the plaintiff.
(ii) A decree of specific performance is passed in favour of the plaintiff and against the defendant directing the defendant to specifically perform the terms of agreement to sell dated 02.06.2012 and to execute the necessary sale documents / sale deed in favour of the plaintiff within CS No.108/15 (RBT) Page 21 of 22 three months from the date of passing of the decree subject to payment of the remaining amount of Rs.1,50,000/. The plaintiff shall also be entitled to the cost of the suit, which shall payable by the defendant.
Decree sheet be prepared. File be consigned to record room.
Announced in the open court
Dated:9th November 2015 (NISHA SAXENA)
Additional District Judge03
East District, Karkardooma Courts
Delhi.
CS No.108/15 (RBT) Page 22 of 22