Delhi District Court
M/S Monika Infrastructure Pvt. Ltd vs Sh. Rati Ram on 9 May, 2022
CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022
: IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit no. 1979/2014 (16359 / 2016)
In the matter of:
M/s Monika Infrastructure Pvt. Ltd.
@ M/s Monika Property Dealers Pvt. Ltd.
H334, Ground Floor,
New Rajender Nagar,
New Delhi 110 060
........ Plaintiff
VERSUS
1. Sh. Rati Ram
S/o late Sh. Net Ram
R/o Village & PO Rewala Khanpur,
Najafgarh, New Delhi
2. Sh. Chand Ram (since Deceased,, through LRs)
3. Smt. Leela (wd/o Late Sh. Chand Kiran)
R/o Village & PO Rewala Khanpur,
Najafgarh, New Delhi
...............Defendants
Date of Institution of Suit : 05.05.2014
Date of reserving judgment : 09.05.2022
Date of pronouncement : 09.05.2022
Appearance:
(i) Sh. B.S. Maan Advocate, Ld. Counsel for plaintiff
(ii) Sh. Parveen Tyagi, Advocate, Ld. Counsel for defendants
SUIT FOR SPECIFIC PERFORMANCE AND
PERMANENT INJUNCTION
Page nos. 1 of 64
CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022
J U D G M E N T:
1. The present suit has been filed by the plaintiff against the defendant. Brief facts relevant for disposal of this suit are like this:
(i) It is averred that the plaintiff is a Private Ltd. Company, incorporated under the Companies Act, 1956. Originally M/s Monika Property Dealers Pvt. Ltd. was incorporated on 10.07.1997 under the Companies Act, 1956, later on the name of M/s Monika Property Dealers Pvt. Ltd. was changed as M/s Monika Infrastructure Pvt.
Ltd., as per law (hereinafter referred to as, the plaintiff).
(ii) It is averred that plaintiff is dealing in salepurchase and developing the immovable property in Delhi and NCR. Sh. Ramesh Chand is the AR of plaintiff in terms of the resolution dated 30.04.2014, authorizing Sh. Ramesh Chand to signed, verified and institute the present suit for and on behalf of plaintiff. Sh. Ramesh Chand is fully aware about the facts of the present case and thus competent to file and pursue the present suit for and on behalf of plaintiff.
(iii) It is averred that defendants were the coowners in the land admeasuring 24 Bighas and 6 Biswas falling in Khasra No. 39//16/2 (30), 39//17/1 (116), 39//25 (416), 40//21 (416), 40//22 (416), 40//23/1 (310), 49//9/2 (112) situated in the Revenue Estate of Village Rewla Khanpur, Najafgarh, New Delhi (in short, the said land). The share of the defendants in the said land was 1/2, hence the said 1/2 share of the defendants in the said land comes to 12 Bighas and 3 Biswas (in short, the suit property).
(iv) The defendants in the last week of September 1999, after negotiation with the plaintiff, agreed to sell suit property to plaintiff for the total sale consideration of Rs. 5,64,000/ and plaintiff agreed to Page nos. 2 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 purchase the suit property from defendants at the said sale consideration amount. The plaintiff paid the said entire sale consideration amount of Rs. 5,64,000/ (in short, the said sale consideration) to the defendants by issuing following cheques (in short, the said cheques): Sl. No. Cheque No. Dated Amount (in Rs.) 1 379870 27.09.1999 94,000/ 2 379871 27.09.1999 94,000/ 3 379872 27.09.1999 94,000/ 4 379877 27.09.1999 94,000/ 5 379878 27.09.1999 94,000/ 6 379878 27.09.2000 94,000/ All the above said cheques were drawn on Union Bank of India, Naraina, New Delhi and the same had been duly encashed by the defendants as per the certificate issued by the bank.
(v) The defendants after receiving the said sale consideration amount from plaintiff, executed the agreement to sell, receipt, possession letter, affidavit and the indemnity Bond all dated 30.09.1999 in favour of plaintiff and also executed a registered GPA in respect of the suit property in favour of Sh. Om Prakash S/o Sh. Hoshiyar Singh, (at the instance of plaintiff) who was the employee of plaintiff at that time. The defendants in pursuance of the said agreement handed over the actual physical of the suit property to plaintiff in terms of the said agreement to sell (in short, the said agreement). The defendants also executed a separate possession letter dt. 30.09.1999 in favour of plaintiff wherein defendants admitted and acknowledged that, in pursuance of the said agreement, defendants have delivered the actual physical possession of the suit property to plaintiff.
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(vi) It is further averred that prior to execution of the sale documents in respect of suit property by the defendants in favour of the plaintiff, the defendants had already partitioned the above said land amongst their brothers namely Sh. Dharambir and Sh. Rajender, who were also coowners in the said land, mutually and for conveniently using their respective shares in the said land. The said land admeasuring 24 Bighas and 6 Biswas and was/is partitioned in two part i.e. 12 Bighas and 3 Biswas each. The defendants on 30.09.1999, delivered the possession of the part of the said land i.e. the suit property, which was in their actual physical cultivatory possession. The plaintiff, since 30.09.1999, has been in actual physical possession of the suit property.
(vii) It is further averred that plaintiff, at the time of execution of the said sale documents in respect the suit property, had already paid the said sale consideration to defendants and in pursuance of the said sale documents, the defendants had handed over the possession of the suit property to plaintiff. It was agreed between the parties that the sale deed in respect of suit property will be executed when the sale deed will be permissible by the competent authority, and the defendants will be bound to execute the sale deed in favour of the plaintiff or its nominee without any extra charges in as much as for the execution of the said sale deed the necessary permission under the provision of Delhi Lands (Restrictions and Transfer) Act, 1972 (in short, the said Act) and Delhi Land Reforms Act, 1954 (in short, the Act) is mandatory.
(viii) It is further averred that, defendants on 14.02.2000, had entered into an another agreement to sell and purchase with plaintiff, whereby they agreed to sell their other land i.e. 12 Bighas and 11 Biswas land comprising in Khasra no. 39//9 (214), 12 (416), 17/2 (30), 18 (416), 19 (416), 49//9/1 (50) situated in the Revenue Estate of Village Rewla Khanpur, Najafgarh, New Delhi, (hereinafter Page nos. 4 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 referred to as said property) to plaintiff for the sale consideration of Rs. 7,52,000/ and the plaintiff agreed to purchase the said property from the defendants at the said sale consideration amount. The plaintiff, on 14.02.2000, had paid the entire sale consideration amount of Rs. 7,52,000/ to defendants, and after receiving the said sale consideration amount, the defendants executed the agreement to sell, receipt, possession letter and affidavit all dt. 14.02.2000 in favour of plaintiff and also executed a registered General Power of Attorney dt. 14.02.2000 in favour of Sh. Om Prakash S/o Sh. Hoshiyar Singh. The said property and the suit property are adjacent to each other, however, situated in different khatas.
(ix) It is averred that at the relevant time and prior to the year 2010, the suit property and the said property were governed by the provisions of the Act, and as per the provisions of the Act, the sale deeds of the suit property and the said property were to be executed and got registered simultaneously.
(x) That at the time of execution of the above said sale documents by the defendants in favour of plaintiff, the suit property/ the said property was under family litigation between the defendants and their other family members as defendant no. 2 had filed a suit for the permanent injunction against defendant no. 1 and his other brothers and mother, bearing suit no. 1394/1995 titled as "Sh. Chand Kiran v. Rati Ram & Ors.". The ld. trial court, had granted an interim order and same had been entered in the revenue record vide order dt. 27.02.1996 passed by the revenue authority.
(xi) It is averred that the another litigation between the defendants and his brothers in respect of the suit property/said property was pending in the court of A.D.M.(R), and the court of A.D.M. (R) also granted the interim order with regard to the said property and the entry of the said interim order has also been recorded in the revenue record by the order dt. 20.11.1996 passed by the revenue authority.
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(xii) It is averred that on account of above said litigations and ad interim injunction orders in respect of the said property/the suit property, the defendants or their authorized representative/power attorney holders were/was not in position to apply and obtain the No Objection Certificate (NOC) for selling the suit property and the said property from the concerned authority, in as much as the said NOC is mandatarily and requisite for the purpose of execution and registration of the sale deed in respect of the suit property and the said property by the defendants in favour of the plaintiff. Although, the plaintiff had already paid the sale consideration amount to the defendants and in pursuance to the above said agreements to sell, the only obligation remained on the plaint of the plaintiff was to purchase the necessary stamp papers for the execution and registration of the sale deeds.
(xiii) It is averred that defendants, at the time of execution and registration of the said sale documents in respect of the suit property and the sale document dt. 14.02.2000 in respect of the said property had assured and represented to plaintiff that defendants are fully competent to sell the suit property as well as said property to plaintiff. The defendants further assured that after finalisation of the above said litigation over the suit property and said property and vacation of the above said adinterim orders, and after obtaining the necessary and requisite sale permission/NOC from the competent authority, defendants will execute and got registered the sale deeds in respect of the suit property as well as the said property from the concerned SubRegistrar.
(xiv) It is averred that after execution of the said sale documents in respect of the suit property as well as said property, as and when the representative of plaintiff made inquiry from the defendants regarding the status and progress of the above said family litigations of the defendants, the defendants, always informed that the said Page nos. 6 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 litigations, are still pending disposal. The defendants, in the month of October, 2011, also provided a copy of the Khatauni relating to the said land to the plaintiff issued on 21.09.2011, wherein the entry of the above said litigation and interim orders have been mentioned.
(xv) It is further averred that in the month of November, 2011 Sh. Ramesh Chand, AR of the plaintiff again approached defendants and asked them regarding the status and progress of the above said litigation pending over the said land, and the defendants represented and assured to Sh. Ramesh Chand that very soon the said litigation will be finalized and further assured that they have already executed said sale documents in favour of the plaintiff company and have already handed over the possession of the suit property and the said property to the plaintiff. It was further assured by the defendants to the AR of plaintiff that as soon as the said litigations will be finalized, the defendants shall inform and, thereafter, the sale permission/NOC from the concerned authority will be obtained and the sale deeds with regard to the suit property and said property will be executed.
(xvi) It is averred that plaintiff, thereafter, inquired from the defendants regarding the progress of the above said pending litigations, and the defendants always represented to the AR of plaintiff that the above said litigations are still pending and assured that as soon as the said litigations will be finalized and interim orders will be vacated, the sale deeds will be executed and registered.
(xvii) It is averred that when Sh. Ramesh Chand, AR of plaintiff, in the month of November,2012 again approached defendants, he was informed by the defendant that the interim dt. 27.02.1996 granted by the Civil Judge has been vacated and on 31.10.2012 the revenue officials also passed the order for making entry in the revenue record regarding the vacation of the said interim order. The defendants further told that the interim order granted by the A.D.M (Revenue) is Page nos. 7 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 still continuing and as soon as the said interim order is vacated, the revenue authority shall make an entry in the revenue records and defendants will inform plaintiff.
(xviii) It is averred that Sh. Ramesh Chand, on 27.04.2014 came to know from one property dealer of area namely Sh. Jaipal that the defendants approached him and offered to sell the suit property and the said property to him. Thereafter, Sh. Ramesh Chand, on 28.04.2014, approached defendants and in the said meeting defendants handed over a copy of the Khatauni relating to the said property wherein there is an entry dt. 25.04.2014, that the interim order granted by A.D.M. (R) has been vacated. Sh. Ramesh Chand also informed the said fact to defendants and asked defendants to apply and obtain the NOC in respect of the suit property and the said property in pursuance to the said agreement in respect of the suit property and also to apply the NOC in pursuance of the agreement to sell dated 14.02.2000 in respect of the said property.
(xix) However, the defendants asked Sh. Om Prakash AR of plaintiff, to pay a sum of Rs. 1 crore to them, otherwise in the market there are so many persons who are ready to purchase the suit property and the said property from the defendants. The prospective buyers are ready to pay a sum of Rs. 3 crores to defendants and defendants also informed that the people, who are ready to purchase the suit property and said property would also take the possession of the suit property and said property from plaintiff themselves. The said representative of the plaintiff realized that after finalisation of the above said pending litigations over the suit property and said property defendants have became dishonest.
(xx) It is averred that plaintiff, since the date of execution of the agreement to sell dated 30.09.1999, has always been ready and willing to perform its part of the obligation arising out of the said Page nos. 8 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 agreement. The plaintiff had already paid the entire sale consideration amount to the defendants and in the said agreement to sell, the obligation of plaintiff is only to purchase the necessary stamp papers for execution and registration of the sale deed. It was/is necessary and requisite to obtain the NOC/Sale Permission from the concerned authority, for execution of the said sale deed in pursuance of the said agreement but due to the said family litigation between the defendants, the said NOC would not be issued by the competent authority.
(xxi) It is averred that in the said agreement no time has been mentioned for execution of sale deed however, in view of the above pending litigations and interim orders over the suit property and the said property, the sale deed would have been executed in favour of the plaintiff in pursuance to the said agreement only when the above said interim orders will be vacated and the entry is duly recorded in the revenue records in this regard.
(xxii) It is averred that there is no breach on the part of plaintiff, the breach lies only upon the defendants as on 28.04.2014, after vacating of the above said interim orders granted by the ld. trial court and the ld. A.D.M. (R) in respect of the said property, the intentions of the defendants have turned dishonest and malafide and defendants for performing their part of the obligations demanded an amount of Rs. 1 crore from plaintiff and refused to perform their part of the obligation arising out of the said agreement.
(xiii) It is averred that defendants first time refused to perform their part of the obligations only on 28.04.2014 and prior to that the defendants always assured that the sale deed would be executed and registered only after vacation of the interim order. The defendants till 28.04.2014, never refused to perform their part of the obligations and the plaintiff believing upon the said representation and assurance made by the defendants kept on waiting for the Page nos. 9 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 same.
(xiv) It is averred that Sh. Ramesh Chand AR of plaintiff on 30.04.2014 filed an application before the A.D.M. (SouthWest) requesting therein not to issue any NOC in respect of the suit property, if any, applied by the defendants. In view of the said facts, it has become necessary that this Court may pass an injunction order against the defendants and restraining them from creating any third party interest in the suit property. The plaintiff has the reasonable apprehension that defendants in order to extract the money from plaintiff would create the third party interest in the suit property.
(xv) That the revenue estate of Village Rewla Khanpur, New Delhi wherein the suit property is situated is covered by the Master Plan for Delhi 2021 and in furtherance of the said Master Plan, a Zonal Development Plan has already been framed in respect of this village. The Revenue Estate of Village Rewla Khanpur falls under the category of 'Zone - L', the said Zonal Plan has already been approved by the Central Government vide letter dt. 08.03.2010 u/s 9 (2) of D.D. Act and the same has been notified. The land use of the suit property in the said Zonal plan is mentioned as 'Residential'. The land use of suit property has changed and the suit property has no longer remained under the Green Belt, which is to be used only for the agricultural purposes and the same stands converted into the residential use. Therefore, the suit property is no longer an agricultural land as same has already become a part of the urban extension in accordance with the provisions of the said Zonal Development Plan for ZoneL and the provision of the Act, are not applicable to the same. In view of the above facts and circumstances of the case, the suit property does not fall within the ambit of the Act, and the provisions of the Act are not applicable to the suit property.
(xvi) It is averred that defendants have become dishonest and have committed the breach of the said agreement, which is clear from the above said facts and circumstances. Hence, the present suit. It is Page nos. 10 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 submitted that for the said property, the plaintiff will be filing a separate litigation against the defendants as per law. Hence the present suit
2. After filing of the suit, summons for settlement was issued to defendants. The defendants were served and filed written statement and, inter alia, submitted that suit is barred by limitation as the same has been filed after 14 years of the alleged execution of the said agreement after the alleged refusal of defendants to execute the sale deed.
3. It is submitted that the suit warrants outright dismissal as the relief of specific performance cannot be granted in view of section 33 read with sections 42 and 45 of the Act. The said agreement is void under section 23 of the Indian Contract Act, 1972, and cannot be enforced and the relief of permanent injunction cannot be granted in view of section 41(e) of the Specific Relief Act, 1963. The defendants, if the specific performance is decreed, would be left with less than eight standard acres of land and thereby contravening the provisions of Section 33 of the Act and such a transfer/sale would be void in view of Section 45 of the Act.
4. The defendants did not execute the said agreement and the signatures of the defendants have been obtained by fraud and misrepresentation. The said agreement is null and void and not enforceable. The said agreement has not even been signed by plaintiff. Though, as per the plaintiff, the said documents have allegedly been executed on 30.09.1999 but the same are attested by a notary public Page nos. 11 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 on 01.10.1999. The defendants never went before any notary public and all these documents have been fabricated by plaintiff to suit its illegal interests and in order to succeed in its nefarious designs.
5. It is submitted that the suit filed by plaintiff is not maintainable as there is no privity of contract between plaintiff and defendants. The defendants had dealings with Sh. Ram Kumar Shokeen, his son Sh. Somesh Shokeen and one Sh. Om Prakash, who had never apprised about the identity of plaintiff. The defendants were never given the copies of the documents fraudulently got signed by Sh. Sh. Ram Kumar Shokeen and his associates at the time of making the payment of earnest/token money. There is no document on record to show that Sh. Om Prakash was an employee of plaintiff as alleged in the plaint or that the plaintiff ever communicated with the defendants regarding the suit property.
6. It is submitted that the suit filed by plaintiff warrants dismissal as it has not approached the court with clean hands and has suppressed material facts and it cannot be permitted to take advantage of its own wrongs. A person who does not approach with clean hands and suppresses material facts and documents is not entitled to any relief from the court. The suit has not been instituted//filed by a duly authorized person and as such is liable to be dismissed.
7. It is submitted that defendants are owner in possession Page nos. 12 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 of half share of the said land. The total land area of the said land is 51 bigha and 16 biswa and half share of the defendants in the said land comes to 25 bigha and 18 biswa (5.39583 acres). Sh. Ram Kumar Shokeen, who is a property dealer and was known to the defendants, along with his son Sh. Somesh Shokeen approached defendants in the month of September 1999 for purchasing the suit property. The suit property at that time was free from litigation and the title was clear which is the position till date.
8. It is submitted that the rate of suit property has been agreed upon @ Rs. 15,00,000/ per acre and as such the total sale consideration fixed was Rs. 37,96,875/. The said Sh. Ram Kumar Shokeen, on 30.09.1999, gave six cheques of Rs. 94,000/ each totalling to Rs. 5,64,000/ as token/earnest money and promised to pay the balance sale consideration amount within three months. Sh. Ram Kumar Shokeen got signed certain documents (which were typed in English) from the defendants under the garb of signing the receipt of having received the aforesaid token/earnest money.
9. It is submitted that the defendants are not well educated and know a little bit of Hindi and did not know English. Sh. Ram Kumar Shokeen and the defendants were well known to each other since childhood and had family relations also at one point of time. Since Sh. Ram Kumar Shokeen was known to the defendants for a long time, therefore, they never doubted his intentions and as such could not smell of any foul play. The defendants on his asking signed the papers in good faith/trust without knowing the contents of Page nos. 13 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 the same. Copies of the said documents were never provided to the defendants and the defendants were never told about the plaintiff.
10. It is submitted that Sh. Ram Kumar Shokeen introduced one Sh. Om Prakash and represented himself as well as the said Sh. Om Prakash as buyers. Sh. Ram Kumar Shokeen further got a GPA registered in favour of Sh. Om Prakash stating that since lot of formalities and permissions would be required for the transfer of the suit property and the defendants being uneducated, therefore, all the acts would be done by Sh. Om Prakash on their behalf. The defendants at the insistence of Sh. Ram Kumar Shokeen in good faith got a WILL registered in his favour as security for the payments received.
11. It is submitted that the defendants, in the month of January 2000, approached Sh. Ram Kumar Shokeen for payment of the balance sale consideration amount, who assured that it would be paid soon. The defendants, thereafter, approached him several time for receiving the payments but he kept dilly dallying the matter on one pretext or the other. Sh. Ram Kumar Shokeen, in the first week of February 2000, stated that he/his associates want to set up some agriculture project for which the suit property was not sufficient and they required more land and as such they were having second thoughts of purchasing the land. He started insisting and convincing the defendants to sell more land and assured that if the defendants agreed they would immediately be given more money and the deal would be definitely concluded within three months.
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12. The defendants were in need of money, therefore they agreed to sell the said property. The total sale consideration amount was Rs. 39,21,870/. The defendants were paid token/earnest money of Rs. 7,52,000/ on 14.02.2000 vide different cheques. Sh. Ram Kumar Shokeen as well as Sh. Om Prakash assured that the balance amount (including the balance of the earlier agreement) would be paid within three months.
13. It is submitted that Sh. Ram Kumar Shokeen fraudulently got various papers signed from defendants under the garb of acknowledging the amount received and the copies of the same were never provided to defendants. When the balance sale consideration was not received by defendants as promised, they approached Sh. Ram Kumar Shokeen who kept on lingering the issue on one pretext or the other. The defendants seeing the conduct of Sh. Ram Kumar Shokeen, told him that, in case the payment was not made, they would not sell their land and would cancel the deal. Sh. Ram Kumar Shokeen and Sh. Om Prakash on 25.05.2000 gave the defendants four cheques totalling to Rs. 12,00,000/. They apologized for the delay and assured that the balance amount would be paid soon.
14. The defendants presented the said cheques for encashment but, to their utter shock, the said cheques were dishonoured vide return memo dated 30.05.2000. The defendants apprised Sh. Ram Kumar Shokeen and Sh. Om Prakash of the bouncing of the said cheques, who informed that there was shortage Page nos. 15 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 of funds, therefore, the said cheques bounced and took back the original cheques and assured that in 23 days either the payment would be made in cash or fresh cheques would be issued.
15. The defendants, thereafter, on several occasions, met Sh. Ram Kumar Shokeen and Sh. Om Prakash for their balance payment but they kept on lingering the matter for months. The defendants, ultimately told them that the deal stands cancelled, however, they started threatening that they would eliminate defendants, in case, the balance payment is demanded and the suit property now belongs to them and that they would forcibly dispossess the defendants from the suit property. The defendants were constrained to file a police complaint at Police Station Najafgarh on 04.10.2000 against Sh. Om Prakash.
16. That Sh. Ram Kumar Shokeen, Sh. Om Prakash and Sh. Somesh Shokeen were called by the police who assured that they would not trouble the defendants in future and in case the balance payment is not made within few days the deal would stand cancelled and the amount paid would stand forfeited. The defendants waited for some time and when no amount was received, they got the General Power of Attorney and the Will in favour of Sh. Om Prakash cancelled on 21.11.2000 by way of a registered document before the Sub registrar. This factum of cancellation of the GPA as well as the Will was duly communicated to Sh. Om Prakash and Sh. Ram Kumar Shokeen immediately and they were also informed that the deal stood cancelled and defendants would not execute the sale deed. The defendants, Page nos. 16 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 thereafter, have not been in touch with Sh. Om Prakash, Sh. Ram Kumar Shokeen or any of their associates. The said persons failed to fulfill their obligations under the contract and as such were neither ready nor willing to fulfill their part.
17. It is submitted that the plaintiff and its aforesaid associates by entangling the defendants into litigation want to grab the suit property. It is further unbelievable that a person who alleges to have paid the entire sale consideration would sit silent for more than 14 years without taking any steps/efforts to get the sale deed registered. There is no written communication or notice was ever sent by plaintiff for getting the sale deed registered. The conduct of the plaintiff belies the story put forward in the plaint and it is very apparent that the entire story is concocted.
18. It is submitted that since, defendants were in need of money, therefore, they entered into an agreement to sell their land with M/s Leo India Capital Pvt. Ltd. and had applied for the issuance of NOC with the revenue authorities. The plaintiff had filed objections with the ld. ADM (SouthWest) on 18.12.2013 against the issuance of NOC qua the suit property, the ld. ADM issued notice to plaintiff several times to appear before him in the NOC issuance proceedings. The notice was even pasted at the premises of the plaintiff, but it failed to appear before the ld. ADM. When the plaintiff failed to appear despite several opportunities, the ADM(SouthWest) ordered for the issuance of NOC. It was only after the NOC was issued the plaintiff approached the court by way of the present frivolous suit. The conduct of the plaintiff has been such which dis Page nos. 17 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 entitles it to get any relief from the Court.
19. It is submitted that the defendants never received the said sale consideration from the plaintiff nor executed the sale documents in favour of the plaintiff. The said sale documents were got fraudulently signed from the defendants. The sale price was fixed at Rs. 15,00,000/ per acre i.e., for a total sale consideration of Rs. 37,96,875/. The sum of Rs. 5,64,000/ was paid towards token/earnest money and the balance amount was to be paid within three months. The market rate was not what has been shown in the fraudulent agreement and the prevailing market rate at that time was more than Rs. 15 lakhs per acre.
20. It is submitted that the plaintiff, in the objections filed by it before the ADM (SW) New Delhi, has admitted that the defendants had signed NOC application in its favour. The defendants on 14.02.2000 never entered into another agreement with the plaintiff in respect of the said property for a sale consideration of Rs. 7,52,000/ and that the said amount was never paid towards the entire sale consideration. It is submitted that till date the suit property is governed by the provisions of the Act. Even if, it is assumed for the sake of arguments, that the sale deed in respect of the suit property and the said property is to executed simultaneously as alleged in the plaint, even then the transaction/sale would be hit by Section 33 of the Act.
21. It is submitted that the suit property on 30.09.1999 or even thereafter, was neither under family litigation nor any interim Page nos. 18 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 order was granted over the suit property by the court of Ld. Civil Judge in suit No. 1394/95 or by the court of ADM(R). Both these litigations/stay orders had come to an end before 30.09.1999 and this fact was in the knowledge of Sh. Ram Kumar Shokeen and Sh. Om Prakash. The case before the ADM(R) came to an end on 22.09.1999. The Civil Suit No. 1394/95 was filed by defendant no. 2 against defendant no.1 and his other brothers for injunction to restrain them from selling their ancestral house and the agricultural land till the time the properties are partitioned. This case was settled/had come to an end much prior to 30.09.1999 as all the brothers had mutually partitioned the ancestral land/properties between themselves. The plaintiff itself is stating this fact of partition between the brothers in para 5 of the plaint which does not leave room for any ambiguity. Otherwise also, a perusal of the said agreement as well as the indemnity bond dated 30.09.1999 relied upon by plaintiff, it would transpire that the land is free from any litigation, encumbrances, court case, stay order etc.
22. It is submitted that the defendants never assured and represented to plaintiff that after the litigation is over or the stay/injunction orders are vacated they would obtain the NOC/necessary permissions and get the sale deed executed. When there was no litigation/stay order pending as on 30.09.1999 or even thereafter, over the suit property no question of giving such an assurance arises. The plaintiff never made an inquiry from the defendants regarding the status of family litigations, and the defendants never informed plaintiff that the said litigations are still Page nos. 19 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 pending disposal. The defendants never provided a copy of the khatauni issued on 21.09.2011, relating to the suit property to the plaintiff wherein the entry of the litigation and interim orders have been mentioned. The defendants were not in touch with plaintiff or its associates and as such no question arises of giving the plaintiff a copy of the khatauni in October 2011. The plaintiff is trying to take undue advantage of the entries in the revenue records despite knowing that there was no pending litigation/stay order. The defendants have never been in touch with plaintiff to its associates w.e.f November 2000 qua the suit property and the plaintiff is concocting stories and making bald and false averments. The defendants did not even know Sh. Ramesh Chand.
23. There is no privity of contract between plaintiff and defendants. Even if it is assumed that Sh. Om Prakash and Sh. Ram Kumar Shokeen were acting on behalf of the plaintiff, even then neither the plaintiff was ready nor willing to fulfill its part. The obligation arising out of the said agreement was to pay the sale consideration @ Rs. 15 Lac. per acre. The entire case of the plaintiff based on fraud and falsehood. The said agreement dated 30.09.99 is void and the signatures of the defendants were fraudulently obtained by misrepresentation and the defendants never executed the said agreement.
24. The possession is with the defendants and there is no occasion for any body to interfere with the alleged peaceful possession of the plaintiff. The provisions of the Act are very much Page nos. 20 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 applicable over the suit property in as much as the Act is a special Act and coming of the master plan has no effect on the applicability of the Act. The Master Plan only portrays the intended land use and moreover the land pooling policy is yet to be notified by the DDA/Govt. The land records are being maintained by the revenue department and for transfer of land NOC is required from the revenue Authority. Even the plaintiff itself is seeking directions from the Court to direct the defendants to obtain the NOC and then execute a sale deed.
25. Replication to the written statement of defendants filed wherein the contents of the plaint were reiterated and those stated in the written statement were denied.
26. On the basis of pleadings of the parties, following issues were framed by Ld. Predecessor of this court vide order dated 20.10.2014 : Issues i. Whether the suit is barred by limitation ? OPD ii. Whether the suit is barred U/s 33 r/w Section 42 & 45 of Delhi Land Reforms Act ? OPD iii. Whether the documents dated 30.09.1999 were got executed by the plaintiff from the defendants by playing fraud upon them ? OPD iv. Whether there was no provity of contract between the plaintiff and defendants for sale of suit land ? OPD v. Whether the suit has not been filed by a duly authorised person ?OPD vi. Whether the plaintiff is not entitled to the decree of specific performance and permanent injunction in view of documents dated 21.11.2000, executed by the defendants ?
Page nos. 21 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 OPD vii. Whether the plaintiff is entitled to the decree of specific performance, as prayed for ? OPP viii. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for ? OPP ix. Relief ;
27. Thereafter, parties to the suit were called upon to substantiate their case by leading evidence. Sh. Ramesh Chand has been examined as PW1 and has deposed in terms of affidavit Ex. PW1/A and has relied on the following documents :
1. Copy of fresh certificate of incorporation upon change of name is Ex. PW1/1,
2. Copy of resolution dated 30.04.2014 is Ex. PW1/2,
3. Copy of the certificate dated 02.11.1999 is Mark A,
4. Original agreement to sell dated 30.09.1999 is Ex. PW1/3,
5. Original receipt of Rs. 5,64,000 dated 30.09.1999 is Ex.
PW1/4,
6. Original possession letter dated 30.09.1999 is Ex. PW1/5, 7.
Original affidavit dated 30.09.1999 is Ex. PW1/6,
7. Original affidavit of defendant no. 1 dated 30.09.1999 is Ex.
PW1/7,
8. Original affidavit of defendant no. 2 dated 30.09.1999 is Ex. PW1/8,
9. Original indemnity bond dated 30.09.1999 is Ex. PW1/9,
10. The original GPA dated 20.09.1999 is Ex. PW1/10,
11. Copy of Khatauni for the year 20012002 issued on 21.09.2011 is Mark B,
12. Copy of khatauni issued on 28.04.2014 is Marked as Mark C,
13. Copy of application dated 30.04.2014 is Mark D,
14. Copy of the Gazette notification of Zonal Development Plan of Zone "L" is Mark E,
15. Copy of the application dated 19.12.2013 is Mark F,
16. Copy of the status report of Tehsil Kapashera is Mark G,
17. Copy of order dated 19.01.2014 passed by ld. ADM(R) is Page nos. 22 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 Mark H,
18. Copy of application dated 10.01.2014 is Mark I,
19. Copy of the NOC dated 26.03.2014 is Mark K,
20. Copy of the application dated 21.04.2014 is Mark K.
28. Plaintiff has also examined Sh. Manoj Kuamr Patwari as PW2 who has proved on record the Khatoni as Ex. PW2/1.
29. Plaintiff has also examined Sh. Mukesh Sharma, who has relied upon the following documents :
1. Photocopy of the application dated 30.04.2014 filed by Mr. Ramesh chand is Ex. PW3/1,
2. Application dated 19.12.2013 filed by Mr. Rati Ram and Mr. Chand Kiran is Ex. PW3/2,
3. Photocopy of the status report dated 19.12.2013 is Ex. PW3/3
4. Land Status report/NOC dated 09.01.2014 is Ex. PW3/4,
5. Application filed on 10.01.2014 to the Additional District Magistrate, South West is Ex. PW3/5,
6. Letter/Application dated 21.04.2014 filed by Mr. Rati Ram & Mr. Chand Kiran is Ex. PW3/6,
7. Land Status report/NOC dated 26.03.2014 is Ex. PW3/7.
30. Plaintiff has also examined Ms. Anita Dewan Assistant Director (planning) as PW4 who has proved on record the notification of the MPD21 dated 07.02.2007 is Ex. PW4/A and letter dated 08.03.2010 as Ex. PW4/B. Plaintiff has also filed affidavit of PW5 Sh. Phool Singh and PW6 Chand Singh, however, they were not crossexamined. Thereafter, plaintiffs evidence was closed.
31. Defendant, in order to prove its case has appeared as DW1 and has deposed in terms of his affidavit ex. DW1/A and has relied on the following documents :
Page nos. 23 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022
1. Certified copy of kahatoni is Ex. DW1/1,
2. Photocopy of the cheques is Mark AB (Colly).
3. Photocopy of the return memo is Mark AC,
4. Photocopy of the complaint dated 04.10.2000 is Mark AD,
5. Photocopy of the application submitted to Tehsildar, Najafgarh is Mark AE
6. Photocopy of the cancellation in GPA is Mark AF,
7. Photocopy of the cancellation of Will is Mark AG,
8. Photocopy of the Objection dated 18.12.203 is Mark AH,
9. Photocopy of order dated 25.03.2014 is Mark AI,
10. Photocopy of the order dated 22.09.1999 is Mark AJ,
11. Photocopy of public notice issued by DDA is Mark AK,
12. Photocopy of khasra girdawari of the year 20132014 is Mark AL.
32. No other witness was examined, and thereafter defendants evidence was closed and matter was listed for final arguments.
33. I have heard the counsel for the parties and with their assistants have gone through the record and have considered the rival contentions raised by Ld counsels for the parties and my issue wise findings are as under : ISSUE NO. 1
34. The burden to prove this issue is on defendants.
During the course of arguments, it is contended by ld. counsel for the plaintiff that plaintiff has filed the present suit for specific performance of the said agreement through which plaintiff had agreed to purchase the suit property for the said sale consideration Page nos. 24 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 which was paid to defendants by way of the said cheques of Rs. 94,000/ each all dated 24.09.1999. The defendants have received the full consideration/sale price for the suit property in terms of the Clause 1 of the said agreement. The defendants have also acknowledged the receipt of said amount from plaintiff in terms of receipt Ex. PW1/4.
35. It is further contended that Clause 8 of the said agreement Ex. PW1/3 provides that as and when the sale deed will be permissible in respect of the suit property, then defendants will be bound to execute the sale deed in favour of plaintiff or his nominee without any extra charge or amount. The plaintiff has paid the full sale consideration in respect of the suit property to defendants and pursuant thereto defendants handed over the possession of the suit property to plaintiff with the understanding that as and when the sale deed will be made permissible by the competent authority. defendants will be bound to executed the sale deed in favour of plaintiff in as much as the execution of the sale deed, necessary permission was required under the said Act and the Act.
36. It is further contended that defendants entered into another agreement to sale on 14.02.2000 in respect of the said property with plaintiff for a sale consideration of Rs. 7.52 lakhs in terms of the sale document. The suit property and the said property are adjacent to each other, however they pertains to different khatoni numbers and at the relevant time and prior to the year 2010, Page nos. 25 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 the suit property and the said property were governed by the provision of the Act, which required that the sale deed for the suit property and the said property were to be executed and get registered simultaneously.
37. It is further contended that the defendants after having received the full sale consideration executed sale documents Ex. PW/1/3 to Ex. PW1/10 in respect of the suit property. It was informed by defendants to the representative of plaintiff that on account of some litigation over the suit property, which is likely to be settled between the parties, and after such settlement, defendants will inform plaintiff and executed the sale deed in favour of the plaintiff after obtaining NOC from revenue authority. The entry regarding such litigation are writ large in the khatoni for the year 20012002 issued on 21.09.2011 wherein the entries of the interim order granted by the Ld. Civil Judge, Delhi and ADM(R) is incorporated in terms of the marked document MarkB as well as proved through PW2 as Ex. PW2/1.
38. It is further contended that the defendants or their AR/power of attorney holders were not in position to apply and obtain the NOC for disposal of the suit property from the concerned authority, which was a mandatory requisite condition for the purpose of execution and registration of the sale deed in respect of the suit property and the said property.
39. It is further contended that at the time of execution of Page nos. 26 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 the said agreement and agreement to sell dt. 14.02.2000 in respect of the suit property and the said property respectively, the defendants had assured and presented to plaintiff that they will execute the sale deed in respect of the suit property and the said property in favour of plaintiff and after finalisation of the above said litigation over the suit property and vacation of the abovesaid interim orders and after obtaining the necessary and requisite permission/NOC from the competent authority.
40. It is further contended that for execution of the sale documents/agreement in respect of the suit property and in resepct of the said property, as and when the representative of plaintiff made enquiries from the defendants regarding the status and progress of the said family litigations of the defendants. The defendants, in turn, always informed that the said litigations are still pending disposal. The plaintiff through its AR in the month of October 2011 again approached defendants and inquired about the status of the said litigation, and it was informed that the said litigation will be soon over, and defendants will execute the sale deed in favour of plaintiff. The plaintiff again approached defendants in the month of November, 2012 and defendants informed that interim order dt. 27.02.1996 granted by Ld. Civil Judge has been vacated, and thereafter, the revenue officials also passed the order on 31.10.2012 for making entry in revenue record regarding the vacation of the said interim order. The defendants further informed that the interim order granted by the ADM(R) revenue is still pending and the said interim order is yet to be vacated. As soon as the stay order is Page nos. 27 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 vacated, revenue authority shall make entries in the revenue record and they will inform the plaintiff accordingly. The plaintiff came to know on 27.02.2014 from one property dealer namely Jaipal, that the defendants approached him and offer to sale the suit property and the said property to him. Thereafter, the representative of plaintiff on 28.04.2014 approached defendants and handed over the copy of khatoni wherein the entry has been incorporated on 25.04.2014 regarding vacation of the interim order granted by Ld. ADM(R). The plaintiff through its representative informed defendants to apply and obtain the NOC in regard to the said suit property as well as the said property in pursuant to the said agreement and agreement to sell dated 14.02.2014, whereupon defendants asked plaintiff to pay a sum of Rs. 1 crore more, otherwise, there are many other persons in the market who are ready to purchase the suit property and the said property from defendants for a consideration of Rs. 3 crores.
41. It is further contended that in the said agreement there is no date for execution of the sale deed, therefore, the sale deed is to be executed only after obtaining the permission from the competent authority, for execution and on account of said reason, the competent authority would not have granted the sale permission for disposing of the suit property as well as the said property in as much as the litigation in the civil court and revenue courts was pending. Therefore, the period of limitation for the present suit is to be calculated from the day when defendants have refused to execute the sale deed in favour of plaintiff. In support of his Page nos. 28 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 contention, he has relied upon Dalip Singh alias Deepa v. State of Punjab, 2006 (2) RCR 251, D.S. Thimmappa vs Siddaramakka AIR 1996 SC 1960, Goparaju Venkata Bharata Rao and Ors. vs Nagula Ramakotayya AIR 2001 AP 425, H.M. Krishna Reddy v. Narayan Reddy, AIR 2001 Karnt 442.
42. Per contra, ld. Counsel for the defendants has contended that plaintiff has filed the suit for specific performance of the said agreement (Ex. PW1/3), however, no written or oral communication has been proved by plaintiff that it ever asked defendants to perform their part of the contract and execute the sale deed in respect of the suit property in its favour. The plaintiff has filed the suit after 14 years of the execution of the said agreement, when defendants executed another agreement to sell with M/s Leo Capital Pvt. Ltd. The plaintiff has relied upon the documents khatoni 'Mark B' allegedly given by Devender (one of the defendant), however, there is no Devender in the family of the defendants, therefore, the suit is hopelessly barred by limitation.
43. It may be noted that no date has been fixed for execution of the sale deed in the said agreement and now question arises as to what is the period of limitation for seeking specific performance of the said agreement. It will be relevant here to refer to claim 7 & 8 of said agreement (Ex. PW1/3) which are reproduced as under :
"7. That the first party hereby assure the second party that the said land under sale is free from all sorts of encumbrances, such as sale, mortgage, gift, lien, decree, notification, litigation, legal flaws, notices charges, Page nos. 29 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 acquisition, lease, agreement to sell, any sort or agreement to sell, courtcases stay order, burden and family disputes etc. and there is no legal defect in the title of ownership right of the first parties if it is proved or in whole or part of the said land goes out from the possession of the second party, then the first parties and their both moveable and immoveable properties will be liable to indemnify all the losses, costs, damages and expenses, incurred by the second party, in all respects.
8. That as if & when the sale deed will be permissible then the first party/ies will be bound to execute the sale deed regd. In favour of second party or his nominee(s) without any extra charge or amount."
A bare perusal of Clause 8 of the said agreement depicts that no time was fixed for execution of the sale deed in respect of the suit property by defendants in favour of the plaintiff. Otherwise, and necessary permission/NOC was required from the concerned authority, but there was also a family litigation pending between the defendants, and the necessary permission was not granted by competent authority on account of ad interim injunction order pending in respect of the suit property. The pendency of the both Civil and revenue litigation in resepct of the suit property are detailed in Ex. PW2/1.
44. I found force in the submissions of ld. counsel for the plaintiff that when no period of limitation is provided for the agreement to sell, the period of limitation will start from the date of refusal of vendor to execute the sale deed in favour of vendee. In G. Mulchand Shah (supra), it has been observed that whether time for specific performance of the contract is not provided for, the suit Page nos. 30 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 will be governed by Article 54, Schedule I of the Limitation Act as the period of limitation commenced only from the date of refusal by the defendant to execute the sale deed. The relevant portion is reproduced as under :
"7. We may straightaway say that the manner in which the question of limitation has been dealt with by the courts below is highly unsatisfactory. It was rightly noticed that the suit was governed by Article 54 of the Limitation Act, 1963. Then, the enquiry should have been, first, whether any time was fixed for performance in the agreement for sale, and if it was so fixed, to hold that a suit filed beyond three years of the date was barred by limitation unless any case of extension was pleaded and established. But in a case where no time for performance was fixed, the court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof....... "
So is the ratio of the law laid down in D.S. Thimmappa(supra) wherein, in para no. 6, it has been observed as under :
"under Article 54 of the Schedule to the Limitation Act 21 of 1963, limitation for specific preference begins to run from the date fixed in the contract or from the date of refusal to execute the sale deed. Since time is not the essence of the contract, the respondent had offered the payment of the amount before the expiry of the date of reconveyance but the appellant had refused to reconvey the same. The cause of action arose an expiry of eight years from the date of execution of later sale deed i.e. July 20, 1973. The appellant by conduct refused to execute the sale deed on July 19 1976 the suit was filed on July 20, 1976. The suit was filed within limitation from the date of refusal, i.e., July 19, 1976, i.e., next day."
In the same manner in Gopraju Venkata Bharata Rao (supra) in para no. 26, it has been observed as under :
Page nos. 31 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 "26. In the above circumstances, the first contention of the ld.
counsel for the appellants with regard to the delay and lapses on the part of the appellant cannot be countenanced particularly in view of the fact that the plaintiff made a request demanding the registration from the defendants 1 and 2 and the said defendants postponed the same on the ground of pending litigation. That does not in my view amount to refusal as contemplated under Article 54 of the Limitation Act, even assuming that the suit is filed in the year 1983 it is within time in the absence of any time framed for its performance.
To the same effect is the ratio of judgment H.M. Krishna Reddy (supra).
For the sake of repetition, it is relevant to observe here that the defendants entered into the said agreement (Ex. PW1/3) with plaintiff on 30.09.1999, and as per Clause 8, have undertaken to execute the sale deed as and when sale deed defendants is permissible in respect of the suit property. However, the sale deed could not be executed as the litigation was pending in respect of the suit property and interim order was passed by ld. trial court and ld. Revenue Court and the entries of the said interim order was incorporated in the khatoni Ex. PW2/1.
45. It may be noted that neither the defendants, nor their power of attorney holder could execute the sale deed in respect of the suit property in favour of plaintiff without obtaining the NOC from the concerned authority as per the mandatory provisions of the Act. It may also be relevant to to observe here that interim directions were issued by ld. ADM(revenue) in respect of the suit property. The injunction order granted by ld. ADM on 20.11.1996 was vacated Page nos. 32 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 through order dated 25.04.2014 as detailed in khatoni Ex. PW2/1.
46. From the above said discussion, it can be safely concluded that as per Clause 8 of the said agreement Ex. PW1/3, defendants were obligated to execute the sale deed as and when permission for execution of the same is granted by competent authority and on account of above said litigation sale deed could not be executed in favour of plaintiff by defendants without getting NOC from concerned authority, therefore, the limitation period will start as per second part of Article 54 of Schedule I of the Limitation Act, as per the mandate of case law relied upon by plaintiff as reproduced in the foregoing paras of this judgment. This issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 247. The onus to prove this issue is on the defendants and ld. counsel for the defendants during the course of arguments has contended that at the time of execution of the said agreement the suit property was agricultural land. Even PW1 has testified that plaintiff used to lease out the suit property for growing crops on payment of rent to the leasee. Therefore, the suit property, being the land agricultural in nature and regulated by the provisions of the Act. Therefore, the said agreement is hit by Section 33 r/w Section 42 & 45 of the Act as such the decree of specific performance cannot be passed in terms of the said agreement which is invalid/void agreement. In this regard, reliance is placed upon judgment Vijaybhai Shambhubhai Patel v. Sushilaben Dayalbhai, passed in Appeal no. 1556/2021 passed by Hon'ble Gujarat High Page nos. 33 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 Court.
48. Per contra, ld. counsel for the plaintiff has contended that the suit property is not governed by the provisions of the Act in as much as the land use of the suit property has been changed from agricultural to residential one. The revenue estate of village Revla Khanpur, wherein the suit property is situated, is covered under Master Plan of Delhi 2021 and in pursuant of the Master Plan, a Zonal Development Plan has already been framed in respect of the said village and the revenue estate of the said village falls under the category of Zone 'L'. The said Zonal plan has already been approved by the Central Government through letter dated 08.03.2010 under Section 9(2) of the DDA Act, whereby the nature of the suit property is detailed as residential.
49. He further contended that in view of the Master Plan and Zonal plan the land use of the suit property has been changed, and the suit property has not remained under the green belt, which was to be used only for agriculture purposes. The Gazette Notification of Zonal Development Plan 'L' is on record proved in terms of Ex. PW4/A by PW4. The Zonal Plan of Zone 'L' was approved by the Central Govt, through letter Ex. PW4/B. Therefore, the suit property did not fall in the ambit of the Act and the provisions of the Act are not applicable to the suit property. Therefore, the suit property did not fall within the ambit of the Act and provisions of the Act are not applicable to the suit property. In this regard he has relied upon judgment i.e. Shri Neelpadmaya Consumer Products Pvt. Ltd. v. Satyabir @ Satbir & Ors, 227 (2016) DLT 654, Sanraj farms Pvt.
Page nos. 34 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 Ltd. v. Charan Singh & Anr., judgment passed in CS (OS) no. 165/2018, Sushma Kapoor v. GNCTD & Anr., judgment passed in WP(C) no. 12038/2019, Pushpanjali Residents Welfare v. Deputy Commissioner and Ors, judgment passed in WP (C) No 8098/2012 all by Hon'ble High Court of Delhi.
50. It is further contended that the provisions of Section 33 of the Act is not attracted in as much as the same is attracted when the sale deed has been executed and mutation is applied before the Revenue Authority. Therefore, for granting of a decree of specific performance and for execution of the sale deed, the provisions of the Act is not applicable. The private party cannot make any grievance in respect of the applicability of Section 33 of the Act and only the authority under the Act can take cognizance of violation, if any, of the provisions of the Act. In this regard, he has relied upon M/s New Age Polypack Coats Pvt. Ltd., v. SDM, HQ judgment passed in WP(C) no. 22759/2005 by Hon'ble High Court of Delhi, Vidyadhari Khanna v. Sandeep Khanna, 46 (1992) DLT 682 (DB).
51. The sum and substance of the argument of ld. counsel for defendants so far as the applicability of Section 33 of the Act is concerned, is to the extent that not even the said agreement is null and void but also the same is hit by provisions of the Act in as much as at the time of execution of the said agreement in the year 1999, the provisions of the Act were applicable to the said village including the suit property.
Page nos. 35 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022
52. In this regard, I found force in the submission of ld. counsel for plaintiff in as much as at the time of execution of the agreement (Ex. PW1/3), the provisions of the Act were applicable to the suit property being agricultural in nature. However, the prohibition under Section 33 of the Act was applicable only after the sale deed was executed by the defendant/vendor and mutation has been sought to be recorded by the vendee/plaintiff before the ld. Tehsildar and the ld. Revenue Authorities. However, the Act has no applicability at the time of execution of the said agreement between vendor and vendee. In this regard the observations made by Hon'ble High Court of Delhi in Shri N.C.P.P. Ltd. (supra) are relevant wherein in para 21 and 22 it has been observed that :
"21. I agree with the argument which is urged on behalf of the plaintiff that a notification for urbanization need not only be through a notification under Section 507 of the Delhi Municipal Corporation Act as the later part of Section 3(13) of the Act does not in any way require that there is only one manner of notification viz only under Section 507 of the Delhi Municipal Corporation Act. This later part of Section 3(13) of the Act does not talk of a notification only under Section 507 of the Delhi Municipal Corporation Act. The requirement of this later part of Section 3(13) of the Act is only that a notification is issued in the Official Gazette to make the land as part of the Delhi town and New Delhi town. Once a notification is issued applying a zonal plan issued pursuant to the master plan showing that subject lands are covered under the zonal plan issued by the DDA, in such a situation, it has to be held that the lands cease to be the lands covered under the Act because of issuance of a notification in the Official Gazette results in the lands becoming part of the Delhi town. Additional reasoning on this aspect can be understood from the object and the language found in Section 1 and Sections 3(5) and 3(15) of the Act and which Sections show that once an area falls within a town area and Page nos. 36 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 an area ceases to be an agricultural land because it has to be developed as part of the development of the Delhi town or New Delhi town, then such an area no longer remains an agricultural area for being covered under the expression land as defined in Section 3(13) of the Act. With humility, I am in complete agreement with the observations made by the learned Single Judge of this Court in the case of Guru Pratap Singh (supra) and which arrives at the same conclusion that once the land ceases to be agricultural, the land ceases to be the subject matter of the Act.
XXXXXX
22..........Also, in my opinion, once a particular area falls within the zonal development plan issued by the DDA under Section 11 of the Delhi Development Act, thereafter calling the same by any description, whether rural or otherwise cannot take away the effect that the said land is very much part of notification issued for development of the area which is the subject matter of the zonal plan and hence the subject matter of issuance of a notification falling in the later part of Section 3(13) of the Act taking such land as outside the operation of the Act."
So is the ratio of the law laid down in Pushpanjali Residents Welfare(supra), and Sushma Kapoor (supra) wherein the ratio of Shri N.C.P.P. Ltd. (supra) was reiterated. So is the ratio of Vijay Bhai (supra) is concerned, the same is not applicable the the facts of the present case in as much as in the said case Section 43(1) of the Tenancy Act bars even entering into the agreement to sell or alienating the land, however, in the present case Section 33 of the Act did not provide for any bar for entering into agreement to sell, therefore ratio of the present judgment is not applicable to the facts of the present case.
Page nos. 37 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022
53. It is relevant to mention here that for grant of decree of specific performance, the provisions of the Act is not attracted in in as much as the vendor/private party has no right to put forth any grouse in this regard as the same is within the domain of ld. Tehsildar or the ld. Revenue Assistant, under Section 33 of the Act to deal with the applicability of the said provision to the sale transaction under question. So is the ratio of Vidya Dhari (supra) and M/s New Age Poly Pack Coats (supra) and ld. Finance Commissioner has passed the order dated 04.10.2006 in this regard, taking into consideration of the ratio of law laid down in M/s New Age (supra) relevant portion of which is reproduced as under:
".........
Considering above facts, it is clarified that in case a Bhumidhar sells a part of his holding which is less than eight acres, the same need not be denied registration by the registration Authority under the Registration Act. However, as decided by the Hon'ble High Court, in the enclosed judgment dated 12th Dec., 2005, the Revenue Authorities shall look into the issue of violation of Section 33 in pursuant to sell, at the time of mutation when the transfer of Bhumidhari right is claimed and in case violation of Section 33 is noticed necessary action as contemplated under Section 42 of the DLR Act, 1954 shall be taken"
Therefore, it cannot be stated that provisions of the Act is applicable to the said agreement which was executed way back in the year 1999. Thereafter, the nature of the land of the said village including the suit property stood changed from agricultural to purpose to residential purpose, therefore, the said agreement is not Page nos. 38 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 hit by the provisions of the Act. This issue is decided in favour of plaintiff and against the defendant.
ISSUE NO. 354. The onus to prove this issue is on the defendants. It has been contended that this suit has been filed through authorised person/PW1 on behalf of the plaintiff, however, neither the Director not the concerned person was present at the time of execution of the sale documents Ex. PW1/3 to Ex. PW1/9. None on behalf of the plaintiff has appeared to prove the said sale documents. The said agreement is signed by first party and there is one thumb impression of the second party. PW1 has testified in his cross examination that Raj Kumar Arora and Dilbagh Singh Arora were the Directors of the plaintiff and he has met them prior to year 2007 and, both of them for execution of any document used to put their signatures. However, none on behalf of plaintiff has signed the said agreement. PW3 also admitted that none was present at the time of execution of the said agreement. The sale documents were executed on 30.09.1999 but notarised on 01.10.1999, however, the said Notary Public has not been examined and DW1 has deposed in categoric terms that he never appeared before any Notary Public on 01.10.1999, therefore, the said agreement has not been proved by plaintiff.
55. It is further contended that PW1 has filed objection dated 18.12.2013 Ex. PW1/DX wherein, it is mentioned that the defendants has received full and final payment by cheque and cash, however, the documents Ex. PW1/3 and receipt Ex. PW1/4 contains Page nos. 39 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 the recital that the sale consideration was paid through cheques only, therefore, serious doubts are being raised against the said sale documents Ex. PW1/1 to Ex. PW1/9, which plaintiff failed to rebutt.
56. It is further contended that plaintiff has failed to prove the payment of sale consideration to defendants in as much as the bank certificate dated 02.11.1999 (Mark A) has been placed on record, therefore, plaintiff failed to show the transfer of the sale consideration in favour of defendants. In addition to it, DW1 admitted in cross examination that he has not received any cheque on 30.09.1999 and he never sold any land to employee of plaintiff namely Om Prakash in whose favour a power of attorney had been allegedly executed by defendants, however, the said witness has not been called to prove the said sale documents.
57. It is contended that the categoric stand of DW1/ Rati Ram is that his signature on the said agreement including other sale documents have been managed by playing fraud and mis representation upon defendants as the alleged sale transaction was entered into between plaintiff and Ram Kumar Shokeen, Somesh Shokeen and one Om Prakash for a sum of ₹ 15 lakhs per acre and the said person paid an amount of ₹ 5.64 lakhs as earnest money and rest of the amount was not paid and the cheques issued by the said persons got dishonoured. DW1 further testified that there is no agreement which took place between plaintiff and defendants. The said sale document contains one GPA allegedly executed by defendants in favour of Om Prakash and the said agreement being Page nos. 40 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 unregistered and as per Clause 2,3,4 & 5 of the said agreement, plaintiff can get executed the sale deed through its employee Om Prakash, but Om Prakash is oblivious to the said agreement. Even the GPA Ex. PW1/10 did not contain the recitals that the suit property has been purchased on behalf of plaintiff by Om Prakash. It is further contended that a bare perusal of the sale documents Ex. PW1/3 to Ex. PW1/9 depicts signature of defendants were taken prior to execution/typing of the said sale documents in as much as blank sheet has been left out in the said documents. The plaintiff has relied upon forged and fabricated documents, therefore, not entitled to any relief. It is further contended that plaintiff has not given any explanation as to why the GPA was executed in favour of Om Prakash and Will was executed in favour of Somesh Shokeen s/o Ram Kumar Shokeen, whereas, the said agreement is allegedly executed in favour of plaintiff which create doubts regarding the genuineness of the said documents.
58. Per contra, ld. counsel for plaintiff has contended that the defendants have raised the contention that the sale documents were got executed from them by playing fraud and mis representation and the sale transaction was between Ram Kumar Shokeen and defendants, however, Ram Kumar Shokeen had never given the said agreement to defendants at the time of making payment of earnest money and the four cheques for an amount of ₹ 12 lakhs each, given by Ram Kumar Shokeen were dishonoured. However, the defendants has not led any evidence to prove these allegations, otherwise also, defendants in the police complaint dated Page nos. 41 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 04.10.2000 (Mark AD) has stated that Ram Kumar Shokeen, Somesh Shokeen and one Om Pakash had got executed the agreement to sell in respect of the land on 16.07.1997 and has given a bayana of ₹ 8 lakhs for transferring their land @₹15 lakhs per acre and the said GPA (Mark AF) has been cancelled by the defendants through registered GPA dated 14.02.2000. However, in the present suit the transaction pertains to the said agreement dated 30.09.1999, therefore, the transaction dated 16.07.1997 between defendants and Ram Kumar Shokeen is totally different from the transaction involved in the present suit and defendants by mixing the alleged transactions dated 16.07.1997 with the present transaction, which took place on 30.09.1999, and by mixing the alleged cheques (Mark AB) as well as and their return memo (Mark AC), are trying to create confusion in the present case.
59. It is further contended that PW1 admitted in his cross examination that signatures of defendants were taken on blank documents and defendants have never entered into the said agreement with any person in respect of the suit property, however, defendants admitted that he has received the six cheques of ₹ 5,64,000 as mentioned in the said agreement Ex. PW1/3 to Ex. PW1/4. Therefore, the burden of proof of alleged fraud was upon the defendants which they miserably failed to prove the same. In this regard reliance is placed on Madholal Damlal v. Gajrabi W/o Shukh Imam, AIR 1951 Nagpur 194, K.S. Mariyappa v. K.T. Siddalinga Setty, 1989 (ILR) Karnataka 425, Fabril Gasosa v. Labour Commissioner AIR 1997 SC 954, Ramchandran vs. Y. Theva Nesom Ammal, AIR 2003 Madras 263, Chief Engineer, MSEB v. Suresh Raghunath Bhokare (2005) 10 Page nos. 42 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 SCC 465 & Shri Madhu Sudan v. Valsala Jayamani (2009) 165 DLT 1.
60. It may be noted that the sum and substance of the contentions of the defendants is that defendants were made to sign blank sale documents and, thereafter, plaintiff has written the contents of the same and the cheques given by plaintiff to defendants were dishonoured. Whereas, case of the plaintiff is that the defendants have entered into the sale transaction for the sale of suit property in terms of sale documents especially Ex. PW1/3 and Ex. PW1/4 and defendants in the written statement have also admitted the receipt of the sale consideration, but with a rider that the said amount was not the full and final sale consideration, otherwise, it was only the earnest money. The defendants have never admitted the signature on sale documents but have not denied the receipt of the sale consideration in their written statement and evidence also and claimed the same as only the earnest money. Therefore, no fraud is made out by the defendants by laying down the basic edifice for pleading fraud or misrepresentation.
61. It may be noted that the basic rules regarding pleadings so far as fraud or misrepresentation of concerned are dealt with in K.S. Mariyappa (supra) and relevant portion of para no. 9 is reproduced as under :
"Rule 4 of Order V! of the Code of Civil Procedure requires that in all cases in which the party pleading relies on any fraud particulars (with dates and items if necessary) shall be stated in the pleading. Therefore, it is necessary for the party pleading if it relies upon any fraud and/or collusion to give necessary particulars of fraud practised with date/s. The particulars pleaded must be such as to give the nature of Page nos. 43 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 fraud and the manner in which it was practised so as to enable the opposite party to know the case it is required to meet. The aforesaid averments in the plaint regarding fraud and collusion do not contain averment giving particulars of fraud and collusion in the plaint. The averment that the plaintiffs and the defendants in the previous suit colluded and defrauded the plaintiffs in the present suit in the absence of material particulars does not amount to a plea of fraud and collusion. Thus, in the absence of necessary particulars pleaded by the plaintiffs regarding fraud and collusion, it is not possible to hold that the plaint contains necessary averments as to fraud and collusion. Such a bald and general allegation without material particulars in the light of Rule 4 of Order 6 of the Code of Civil Procedure cannot be held to be sufficient to lead to an issue. Mere general allegation that an Act or the deed is vitiated by fraud and collusion is no plea of fraud and collusion. Material particulars such as when and how and who and in what manner and for what purpose the fraud was practised and who colluded with whom and in what manner and with what object or purpose etc., must be averred......"
So is the ratio of Madho Lal (supra) and Suresh Raghunath (supra).
62. It is not the case of the defendants that said documents did not bear the signature but defendants stated that they have put signature on the blank documents and the said documents were, later on, forged and fabricated by plaintiff so as to create sale documents in respect of the suit property. However, except bald statement and without laying down the basic edifice for pleading such fraud and mis representation, defendants have led no evidence to contradict the contents of the said sale documents, which defendants is not permitted by virtue of Section 91 and 92 of the Evidence Act and I found force in the contention of ld. counsel for Page nos. 44 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 the plaintiff by placing reliance upon Fabril Gasosa (supra), wherein, it has been observed that oral evidence to contradict the contents of documents except the proviso appended to Section 92 of the Evidence Act is not admissible. The relevant para is reproduced as under :
"14. A conjoint reading of Section 2(p) of the Act and Rule 58 (supra) unmistakably shows that the settlement contemplated by the said provisions is a written settlement and not an oral settlement. It is not in dispute that the 1986 settlement was a written settlement arrived at between the parties. It could not, therefore, be varied or modified except by a written settlement or by a written memorandum duly signed by the parties incorporating the terms of the socalled understanding. Section 92 of the Evidence Act, 1872 also lays down that when the terms of any contract, grant or settlement, as are required by law to be reduced to the form of a document, have been proved as per the provisions of Section 91 of the Evidence Act, no evidence of any oral agreement or settlement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms. Thus, both on facts of the instant case as well as on the interpretation of law, the conclusion arrived at by the High Court that there was no oral understanding between the parties and that the socalled oral agreement pleaded by the appellants could not in any case vary the terms of the 1986 settlement is unexceptionable"
So is the ratio of case Ramchandran (supra) & Madhu Sudan (supra).
63. Otherwise also, defendants have not come to the court with clean hands and suppressed the material facts in as much as he submitted that he has received the sale consideration as earnest money for the sale of the suit property and cheque has been Page nos. 45 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 dishonoured, however, no such evidence has been laid as to why and in what manner the said amount received by defendants from the plaintiff through cheques was earnest money and as to how and in what manner the said cheques were dishonoured, therefore, it cannot be stated that a fraud has been played upon the defendants. The ratio of Zarina Siddiqui (supra) is also to the effect that if vendor/defendant has not come with clean hands and suppressed material facts, discretion would be exercised in favour of plaintiff. In para number 34 it has been observed as under :
"34. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendants does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be exercised by refusing to grant specific performance."
Therefore, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 464. The onus to prove this issue is on the defendants and during the course of argument ld. Counsel for defendants has contended that there is no privity of contract between plaintiff and defendants in as much as plaintiff has relied upon forged and fabricated documents and it cannot be stated that documents are executed by defendants in favour of plaintiff. There is no privity of contract between plaintiff and defendants. It is further contended that Page nos. 46 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 the GPA has been executed in favour of Om Prakash and the Will in respect of the suit property was executed in favour of Somesh Shokeen son of Ramesh Kumar Shokeen and only alleged said agreement has been was executed in favour of plaintiff, therefore, there is no privity of contract between the parties.
65. Per contra ld. Counsel for plaintiff has contended that defendants have pleaded in the written statement that they were dealing with Sh. Ram Kumar Shokeen, Somesh Shokeen and Om Prakash and defendants were never apprised about the identity of the plaintiff and the said agreement has not been signed by plaintiff as a purchaser. It is contended that even if the said agreement is signed only by vendor/defendants the same is valid and enforceable by the plaintiff/purchaser and the said agreement need not to be signed by purchaser/plaintiff. In this regard, reliance has been placed upon Alka Bose v. Parmatma Devi & Ors, AIR 2009 SC 1527.
66. It is further contended that plaintiff has proved the sale document Ex. PW1/3 - Ex. PW1/10 by summoning Phool Singh as PW5 and Chand Ram as PW6. The defendants have received the amount of ₹ 5,64,000 in terms of receipt Ex. PW1/4 so there was a privity of contract between the parties.
67. It may be noted that admittedly sale documents are executed in favour of different persons in as much as the GPA had been executed in favour of Om Prakash and the Will was executed Page nos. 47 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 in favour of Somesh Shokeen by defendants and the said agreement was executed in favour of plaintiff and furthermore, the said agreement has not been signed by plaintiff as vendee.
68. It may be also relevant to mention here that the execution of the different documents in favour of different persons did not lead to conclude that there is no privity of contract between plaintiff and defendants in as much as defendants executed the said agreement Ex. PW1/3 and the receipt Ex. PW1/4 in favour of plaintiff, which are clearly proved as per law and the defendants admitted the receipt of sale consideration claiming the same to be only earnest money but led no evidence in this regard by defendants which fact lead to conclude that there is a privity of contract between the parties.
69. So far as the fact that the said agreement being not signed by plaintiff is concerned, suffice is to say that agreement to sell can be oral and it is not required to be signed by the vendee and once the signature of the vendor on the agreement to sell is there that is a sufficient compliance of process of the Contract Act that the defendants have the agreement executed in favour of the vendee/plaintiff. In this regard the observations made by the Hon'ble High Court of Delhi in Alka Bose (supra) are relevant wherein, it has been observed as under :
"Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void Page nos. 48 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 under the provisions of the Contract Act. The proviso to section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counteroffers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale."
From the aforesaid discussion it can be stated that there is privity of contract between plaintiff and defendants. This issue is accordingly decided in favour of the plaintiff and against the defendants.
ISSUE NO. 570. The onus to prove this issue is on the defendants. During the course of argument, ld. counsel for defendants has contended that plaintiff has not filed any document to show that the present suit has been filed by duly authorised person. PW1 Ramesh Chand has appeared as witnesses on behalf of the plaintiff but he did not have any authorisation letter. The plaintiff did not sign the said agreement Page nos. 49 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 nor signed the plaint nor has given evidence and PW1 was having no personal knowledge of the transaction entered into between the parties in the year 1999. The case of the plaintiff is also bad for non compliance of Section 16(c) of the Specific Relief Act as the plaintiff did not entered into witness box. In this regard he has placed reliance upon Vidyadhar v. Manikrao, 1999(3) SCC 573, Janki Vashdeo Bhojwani v. Indusind Bank Ltd., 2005(2) SCC 217, Shambhu Dutt Shastri v. State of Rajasthan, 1986 2 WLN 713 (Raj), Ram Prasad v. Hari Narain AIR 1998 Raj 185 & Shankar Finance & Investments v. State of AP (2008) 8 SCC 536.
71. He further contended that the matter in the present suit has been handled by different persons at different times on behalf of the plaintiff in as much as the negotiation/execution of the said agreement dated 30.09.1999 were handled by Om Prakash, employee of plaintiff and secondly as per the plaint, from October 2010 the matter was dealt with by PW1 Ramesh Chand the new authorised person for and on behalf of plaintiff. PW1 was not aware about the execution of the said agreement and what happened on the last date fixed for performance of the said agreement.
72. Per contra, ld. counsel for the the plaintiff has contended that the plaintiff is a private limited company which was originally incorporated on 10.07.1997 under the Companies Act with the nomenclature M/s Monika Property Dealers Pvt Ltd., however, later on, its name was changed to M/s Monika Infrastructure Private Page nos. 50 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 Limited. The said company passed a necessary resolution in terms of the Companies Act which was approved by the Central Government under Section 21 of the Companies Act and with notification dated 24.06.1985 published by Government Of India, Department of Company Affairs, New Delhi and fresh incorporation certificate Ex. PW1/1 is on record. The plaintiff in its meeting of the Board of Directors passed a resolution dated 30.04.2014 authorising Ramesh Chand / PW1 to sign, verify for and on behalf of plaintiff the pleadings of the present suit and the same has been duly signed by director of the plaintiff Sh. C. Shrivastav, Ex. PW1/2.
73. It may be noted that the contentions of the ld. counsel for the defendants by placing reliance upon Vidyadhar (supra), Janki Vashdeo Bhojwani(supra), Shambhu Dutt Shastri (supra), Ram Prasad (supra) & Shankar Finance (supra) is to the effect that PW1 is not authorised to sign pleadings and depose for and on behalf of the plaintiff. However, this contention appears to be attractive but the same is fallacious in as much as the ratio of the above said judgment is distinguishable from the facts of the present case in as much as the plaintiff is not an individual person but a company and in Vidyadhar (supra) it was observed that when a party did not appear in the witness box, and states its own case on oath and did not offer himself to be crossexamined by the other side; the presumption would arise that case set up by him is not correct. Whereas, the plaintiff is a company and is competent to authorise any person to appear for and on behalf of the plaintiff Page nos. 51 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 company as per the provisions of the Companies Act and plaintiff led evidence through PW1 who is competent to depose for and on behalf of plaintiff.
74. In the same manner in Janki Vashdeo Bhojwani (supra) it was observed that Order III Rules 1 and 2 CPC, empowers the holder of power of attorney to "Act" on behalf of the principal. It was further observed that the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. It was further observed that the power of attorney holder cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be crossexamined. The ratio of this judgment has also no applicability to the present case as the plaintiff is a company who has led evidence through authorised person as per law.
75. In the same manner in Shambhu Dutt (supra) it has been observed that a general power of attorney holder can appear, plead and Act on behalf of the party, but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can Page nos. 52 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 delegate the power to appear in witnessbox on behalf of himself To appear in a witness box is altogether a different Act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
76. In the same manner in Ram Prasad (supra) it has been observed that that word "acts" used in Rule 2 of Order 3 Code of Civil Procedure does not include the Act of powerofattorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case, he can states on oath but he cannot appear as a witness on behalf of the party in the capacity of that party.
77. The said case law has no relevance to the present matter in which plaintiff is a company and lead evidence as per the provisions of law through its witness PW1. From the above said discussion it can be considered that PW1 was duly authorised to depose on behalf of plaintiff. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 678. The onus to prove this issue is on the defendants. During the course of argument and counsel for defendants submitted that the defendants have cancelled the GPA Ex. PW1/10 and Will dated 30.09.1999. The said agreement did not create any interest of the plaintiff in the suit property as per the mandate of Section 54 of Page nos. 53 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 Transfer of Property Act. Plaintiff after the execution of the said agreement and did not fulfill the conditions of the 53A of the Transfer of Property Act. Hence the plaintiff is not entitled to the relief of specific performance and permanent injunction.
79. Per contra, ld. counsel for the plaintiff has contended that cancellation of GPA (Mark AF) is the document for cancellation of the GPA dated 14.02.2000 and not the GPA dated 30.09.1999. The said GPA dated 30.09.1999 is a registered instrument and had been executed by the defendants for consideration and same is an irrevocable document and same cannot canceled unilaterally by the defendants. It is admitted facts that before or after execution of the said sale deed of cancellation of the GPA by the defendants, the defendants have not served any notice upon the plaintiff company in this regard. In view of the provisions of Section 202 of the Contract Act, the defendants have no right to cancel the GPA dated 30.09.1999 unilaterally. In this regard, reliance is placed upon Vimla Devi v. Pushpa Devi (2017) 241 DLT 568.
80. It may be noted that the GPA dated 30.09.1999 is a registered instrument, which has been executed by defendants for consideration, is an irrevocable document and cannot be cancelled unilaterally by virtue of the provisions of Section 202 of Contract Act, in as much as when a interest has been created in the documents in favour of agent, the principle is not entitled to cancel such documents. So is the ratio of Vimla Devi (supra). It may also be relevant to observe here that GPA dated 14.02.2000 was cancelled Page nos. 54 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 through GPA (Mark AF) and the GPA dated 30.09.1999 executed in favour of Om Prakash have not been cancelled and, even if, the same is cancelled such cancellation pales into insignificance by virtue of Section 202 of the Indian Contract Act.
81. It may be noted that defendants being principal have executed the registered GPA for consideration in favour of Om Prakash, employee of plaintiff, therefore, defendants are not empowered to cancel the said registered GPA, therefore, it cannot be stated that plaintiff is not entitled to decree of specific performance in terms of the agreement despite the fact that said registered GPA has been cancelled through documents dated 21.11.2000. This issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 7 & 882. The onus to prove these issue is on the plaintiff. These issues are overlapping each other and disposed off by this common order. It is the contention of ld. counsel for plaintiff during the course of arguments that plaintiff has proved the execution of the said agreement and other document Ex. PW1/3 to Ex. PW1/10 and also proved the payment of the sale consideration to the defendants in pursuance of the said agreement (Ex.PW1/3). However, defendants have failed to prove alleged fraud and misrepresentation in the written statement. The deposition of DW1 in his cross examination is contrary to the statement made by the defendants in the written statement. The plaintiff has already paid the entire sale Page nos. 55 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 consideration and has also proved the said agreement, the requirement to prove the readiness and willingness is not necessary. The plaintiff has averred and proved its readiness and willingness to perform its part of the said agreement since the date of execution of agreement as plaintiff had already made the entire sale consideration amount at the time of execution of the said agreement and, thereafter, the plaintiff was ready and willing to get the sale deed executed from the defendants, however, due to the litigation over the suit land, the matter for execution and registration of sale deeds lingered on, therefore, plaintiff is entitled to the decree for specific performance of the said agreement in respect of the suit property. In this regard reliance has been placed upon Smt. Nirmala Devi v. Niranjan Singh Tyagi, AIR 2007 Delhi 264, Sughar Singh v. Hari Singh (died) Through LRs, AIR 2021 SC 5581 B. Santoshamma & Anr. V. D. Sarala & Anr. judgment passed by the Hon'ble Apex Court in Civil Appeal no. 357/2009.
83. Per contra ld. counsel for defendants has submitted that Section 12 of Specific Relief Act, 1877 clearly lays down the boundaries as to when someone can make a claim on the performance of a contract. The court will always assume that a breach of contract related to immovable property can be compensated in monetary terms which assumption can be rebutted in court. It is further contended that the GPA/Will dated 21.11.2000 were cancelled by defendant when Ram Kumar Shokeen, Somesh Shokeen and Om Prakash did not make the balance payment and the cheque dated 25.05.2000 (Mark AB) issued by Ram Kumar shokeen bounced and returned through Page nos. 56 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 memo (Mark AC). The defendants made a complaint against Ram Kumar Shokeen (Mark AD). The defendant cancelled the said sale documents when abovesaid persons failed to perform their part of contract, therefore, plaintiff has no right, title or interest in the suit property. In this regard reliance has been placed upon Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana & Ors. 2009 (7) SCC 363.
84. It is submitted that if any of the party wishes to forego the option of a suit for specific performance of contract they can do so by stating it explicitly in the contract. Plaintiff, if decided to pursue specific performance as a remedy, is unlikely to seek monetary compensation. In the present suit, neither the suit has been filed by duly authorised person nor the Director/concerned person were present at the time of execution of the alleged documents. The sale document Ex.PW1/3 Ex.PW1/9 were allegedly executed on 30.09.1999 and same was got notarised on 01.10.1999, however, the notary public was not examined, therefore, it can not be said that the said agreement was executed between the plaintiff and the defendants. The plaintiff failed to prove payment to the defendants, however, they have attached a bank certificate dated 02.11.1999 (Mark A), the plaintiff failed to show on which date and in whose favour the payment has been transferred by plaintiff. The plaintiff company stated that Om Prakash was the employee and the defendants executed the powerofattorney in his favour, however, the plaintiff failed to produce him in the witness box to prove the document Ex. PW1/3 - Ex. PW1/9. Therefore, the plaintiff has relied upon are tampered document which seems to be forged one and the Page nos. 57 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 plaintiff is not entitled to any relief. In support of the contentions of the defendants has relied upon the following judgments, Jayakantham v. Abhay Kumar (2017) 5 SCC 178, Sarita Dokania & Anr. Etc. v. Krishna Dey & Anr, (2014) 13 SCC 522, Lalit Kumar Sabharwal v. Ved Prakash Vij. 2003 DRJ 670, Man Kaur (dead) Through LRs v. Hartar Singh Sangha in CA no. 147 148/2001.
85. It is contended that the court must look into the substance of the agreement and not the letter of law and several factors are to be taken into consideration regarding the completion of the transaction in a time frame. The question is whether the time is the essence of contract or not, or whether the suit for specific performance was filed within a reasonable time.
86. It is further contended that none of the PWs had had proved the sale documents and even PW1 and PW5 failed to testify as to who has signed the said agreement on behalf of plaintiff and who appeared at the time of execution of the said sale documents on behalf of plaintiff. The objection given by PW1 (Ex. PW1/DX), is contrary to the terms of the said agreement so far as the payment of sale consideration in respect of the suit property by plaintiff to defendant. Plaintiff failed to prove the bank certificate dated 02.11.1999 (Mark A) and DW1 in categoric terms has deposed that he did not receive the cheque on 30.09.1999.
87. It may be noted that, for the sake of repetition, it is Page nos. 58 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 relevant to mention that the plaintiff has proved that defendant executed the said agreement in respect of the suit property for the said sale consideration by leading the deposition of attesting witnesses of the said agreement. The defendants not only admitted the signature on the said agreement but defendants also admitted that the amount so received was the earnest money only from Ram Kumar Shokeen. The defendant denied having executed the said agreement including the other said sale documents, however, as observed in the foregoing paras of this judgment, defendants failed to led any evidence to contradict the contents of the sale documents including the said agreement, therefore, the question arises as to whether the plaintiff was ever ready and willing to perform his part of the contract and is still willing and ready to perform his part of the contract.
88. In this regard, suffice is to say that as has been observed in the foregoing paras, litigation was pending in terms of the interim order passed by the court of competent jurisdiction as well as the revenue Court details of which are duly incorporated in Ex. PW/1 (khatauni). The defendants have moved an application before the competent authority for not issuing NOC in favour of the other vendee to whom the defendants have planned to dispose off the suit property and plaintiff moved objection to such application moved by defendants for seeking no objection certificate in favour of some other company. Therefore, it can be safely concluded that plaintiff was always ready and willing and is still ready and willing to perform its part in as much as plaintiff already paid the sale Page nos. 59 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 consideration and defendant admitted the receipt of the said sale consideration in written statement. In this regard, it may be noted that in para no. 5 of judgment Smt. Nirmala Devi (supra) it has been observed as under :
"5. Moreover, Section 16(1)(c) applies against those who are yet to perform the essential terms of the agreement and this provision of law would pale into significance as against those who have already performed their part of contract and no further performance is required on their part. Readiness and Willingness cannot be treated as a Straight Jacket formula. The conduct of the parties is very crucial."
89. Therefore, plaintiff was ever ready and willing to perform his part of the contract and it is the defendants who after getting the said sale consideration backed out and failed to to execute the sale deed in favour of plaintiff.
90. Now the question arises as to whether the judicial discretion should be exercised in favour of the plaintiff by passing a decree of specific performance of the said agreement.
91. It may be noted that in Sughar Singh (supra), it was observed that the discretion under section 20 of the Specific Relief Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that execution of the said agreement in his favour has been established and proved and further plaintiff is found to be always ready and willing to perform his part of the Page nos. 60 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 contract and the relevant observation in para no. 10 are reproduced as under :
"10. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant executant of the agreement to sell, while exercising the discretion judiciously. For the aforesaid, even amendment to the Specific Relief Act, 1963 by which section 10(a) has been inserted, though may not be applicable retrospectively but can be a guide on the discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary relief. As such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings including appeals is kept Page nos. 61 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 open. However, at the same time, as observed hereinabove, the same can be a guide."
To the same effect is the ratio of B. Santoshamma(supra).
92. So far as the case law relied upon by ld. counsel for the defendants is concerned, it may be noted that in Jatkamma(supra) the total sale consideration was ₹ 1.6 lakhs and out of which ₹ 60,000 were paid to the appellants (therein) and the appellants (therein) had offered to pay an amount of ₹10 lakhs as just compensation in lieu of specific performance and in such circumstances, it was observed by Hon'ble Supreme Court that the interest of justice would be met by directing the appellants (therein) to pay to the respondent (therein) and amount of ₹ 15 lakhs in lieu of specific performance, however, the facts of the present case are distinguishable in as much as in the present case, the plaintiff has paid the full sale consideration.
93. In Sarita Dokania (supra) facts was to the effect that ld. trial court decreed two suits for specific performance of agreement and Hon'ble High Court upheld all finding recorded by ld. trial court and declined the relief of specific performance and granted alternative relief of refund of earnest money deposited by appellant (therein) in as much as the relief of specific performance would have caused under hardship to the respondent (therein). However, facts of the said judgment are distinguishable from the facts of the present case in as much as the plaintiff already has paid Page nos. 62 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 full sale consideration for purchase of the suit property.
94. So far as the ratio of Lalit Kumar Sabharwal (supra) is concerned, in the said case the defendant(therein) has signed Ex. P1 and the said document was held to be receipt for the reason that it was not signed by plaintiff (therein) furthermore, certain essential stipulations relevant to an agreement to sell of immovable property was conspicuously missing. No time frame was fixed for execution of the sale deed nor there was any stipulation as to who was to apply for permission from the concerned authority in respect of the sale of the property. Furthermore, there was no recital with regard to the consequences of default either by the seller or the purchaser. In addition to it, there was no description of the property proposed to be sold under the said receipt/agreement to sell and in such circumstances, the said receipt was not held to be an agreement to sell. Therefore, this case law has no relevance to the facts of the present case in as much as in the present suit the said agreement Ex. PW1/3 contains all the details and stipulations as required under the law. Therefore, from the above discussion, it can be safely concluded that the plaintiff is found entitled to the relief of specific performance of the said agreement, as such, these issues are decided in favour of the plaintiff and against the defendants.
Page nos. 63 of 64 CS no. 1979/2014(16359/2016) M/s Monika Infrastructure Pvt. Ltd. v. Rati Ram & Ors DOD : 09.05.2022 RELIEF :
95. In view thereof, the suit of the plaintiff is "decreed" as follows :
i) Decree of specific performance of the agreement to sell dated 30.09.1999 is passed in favour of the plaintiff directing the defendants to apply and obtain the sale permission/NOC from the revenue authority and thereafter execute, sale deed in favour of the plaintiff w.r.to suit property i.e. 12 Bigha and 3 biswas of land comprising in Khasra No. 39//16/2 (30), 39//17/1 (116), 39//25 (416), 40//21 (416), 40//22 (416), 40//23/1 (310), 49//9/2 (112) situated in the Revenue Estate of Village Rewla Khanpur, Najafgarh, New Delhi.
ii) Decree of permanent injunction is passed in favour of the plaintiff and directing the defendants, their agents, representatives, family members and assignees from creating third party interest in respect of suit property i.e. 12 Bigha and 3 biswas of land comprising in Khasra No. 39//16/2 (30), 39//17/1 (116), 39//25 (416), 40//21 (416), 40//22 (416), 40//23/1 (310), 49//9/2 (112) situated in the Revenue Estate of Village Rewla Khanpur, Najafgarh, New Delhi.
iii) Plaintiff is also entitled to costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
signed by
Announced in the open court on VIJAY VIJAY KUMAR
DAHIYA
09th Day of May of 2022. KUMAR Date:
DAHIYA 2022.05.25
15:03:21
+0530
(V.K. DAHIYA)
ADDL. DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI
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