Delhi High Court
Sh. Suresh Jain vs M/S. Orient Carpet Gallery Pvt. Ltd. on 24 July, 2009
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No.2094/2008 in C.S. [OS] No.287/2007
Reserved on: 19th January, 2009
% Decided on: 24th July, 2009
Sh. Suresh Jain ...Plaintiff
Through : Mr. Rajiv Nayyar, Sr. Adv. with
Mr. Sacchin Puri, Adv. and
Ms. Kadambari, Adv.
Versus
M/s. Orient Carpet Gallery Pvt. Ltd. ....Defendant
Through : Mr. V.K. Srivastava, Adv. with
Mr. Vikas Mehta, Adv. and
Mr. Pravin Pahuja, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported No
in the Digest?
MANMOHAN SINGH, J.
1. By this order I shall dispose of the application being IA No.2094/2008 under Order 12 Rule 6 read with Section 151 CPC filed by the plaintiff for decree on judgment. The brief facts of the matter are that the plaintiff has filed the present suit, inter alia, for specific performance of agreement dated 09.12.2005 and for permanent injunction. The defendant has filed its written statement.
2. During the pendency of the matter, the plaintiff has filed the CS (OS) No.287/2007 Page 1 of 16 present application under Order 12 Rule 6 CPC on the basis of alleged admissions made by the defendant. It is stated in the application that the defendant has admitted the execution of agreement to sell dated 09.12.2005 and the defendant has further admitted that a letter of attornment was issued by it to the tenant, M/s. Supreme Tradelinks Private Limited, and the said tenant attorned to the plaintiff and the rent has been paid to the plaintiff w.e.f.1.1.2006.
3. It is further contended in the application that it is the admitted case of the defendant that the entire consideration payable under the agreement dated 09.12.2005 has been paid by the plaintiff and that only the ministerial act for getting the property transferred in the name of the plaintiff was required to be done upon the defendant's depositing the money towards transfer charges, ground rent etc. with the developer namely M/s. Ansal Properties and Industries Limited.
4. It is stated in the application that the defendant issued the transfer letter to be lodged with the developer, M/s. Ansal Properties and Industries Limited to substitute the plaintiff in the records but retained the original to enable it for the purposes of clearing the dues and charges, which is the exclusive liability of the defendant till the date of the purchase.
5. According to the plaintiff, the defendant company has admitted the entire case of the plaintiff, which is the subject matter of the suit and in fact the defendant has no defence to the claim of the plaintiff.
6. The plaintiff has averred that it is the case of the parties that CS (OS) No.287/2007 Page 2 of 16 all the rights of the defendant in the property stood extinguished except that the developer has a right to execute the sale deed in respect of the suit property which after substitution would be executed in favour of the plaintiff.
7. It is prayed in the application that a decree in terms of the prayer made in the plaint be passed in favour of the plaintiff and against the defendant directing the defendant company to produce the original transfer letter and deposit the same with the developer and deposit all the requisite charges, ground rent etc.
8. This application has been opposed by the defendant by filing the reply stating therein that the present application under Order 12 Rule 6 CPC is not maintainable as the defendant has raised various triable issues in its written statement, which require full trial and in view thereof, the plaintiff is disentitled to the decree claimed by the plaintiff. The details of the factual and legal issues have been stated in the written statement.
9. In the reply, the defendant has stated that the agreement to sell dated 09.12.2005 is neither registered nor stamped as per the provisions of Stamp Act as amended and applicable to Delhi. The contention of the defendant is that the agreement/document which is not properly stamped, cannot be acted upon and received in evidence as provided under the provisions of Sections 35 and 36 of the Stamp Act. Therefore, the decree cannot be passed in favour of the plaintiff on the basis of agreement, which under the law cannot be acted upon.
10. Another objection raised by the defendant in its reply is that CS (OS) No.287/2007 Page 3 of 16 the conduct of the plaintiff is mala fide as he is guilty of suppression, misrepresentation and committal of fraud.
11. In support of this submission, the defendant has stated that on 09.12.2005, at the time of agreement to sell, the property known as MG-11, which is the subject matter of Suit no.136/2007 was also agreed to be sold to the defendant's sister concern. The plaintiff requested the defendant to sell and transfer to the plaintiff simultaneously their commercial space no.CG-07, Ansal Plaza, Andrews Ganj, New Delhi, which is the subject matter of the present suit. The plaintiff at that point of time ensured that he and his son would execute the sale deed in respect of another property bearing no.MG-11 and get the sale deed of the defendant's property at Ansal Plaza executed simultaneously but the plaintiff and his son with mala fide intention failed in their obligation qua MG-11 property despite receiving amount of Rs.2.90 crores as advance.
12. I have heard the submissions of the learned counsel for both the parties and have also gone through the respective pleadings and documents filed by both the parties. While going through the pleadings and documents, the following are the admissions made by the defendant, which are not otherwise specifically denied by the defendant :-
a] The defendant has admitted the execution of the agreement in favour of the plaintiff;
b] The defendant has admitted the receipt of 100% sale consideration;CS (OS) No.287/2007 Page 4 of 16
c] The defendant has admitted that it has asked the tenant to attorn to the plaintiff;
d] The defendant has admitted that the tenant was paying the rent to the plaintiff till the time the defendant asked him not to pay the rent on the ground that they had cancelled the attornment; and e] The defendant has also admitted that it was for its benefit that the tenant should stop paying the rent to the plaintiff.
13. The aforesaid admissions made by the defendant also emerge from the fact that after the execution of the agreement, the defendant issued a letter to the tenant namely M/s.Supreme Tradelinks Private Limited confirming the sale and asking the tenant to attorn to the plaintiff. The said letter dated 12.12.2005, which is written and signed by Satish Kumar Gupta as a Director on behalf of the defendant, is filed by the plaintiff on record, which reads as under:-
"M/s.Supreme Tradelinks Pvt. Ltd.
7th Floor, Tower A, Infinty Tower, DLF Cyber Citi, DLF Phase II, Gurgaon, Haryana Dear Sirs, You are the tenants in the Commercial Space no.CG-07, admeasuring 1695 sq.ft. on the ground floor of the Building known as „Ansal Plaza‟ Hudco Place, Andrews Ganj, Near South Extension, Khelgaon Marg, New Delhi, vide the Lease Deed dated 8th September 2005.CS (OS) No.287/2007 Page 5 of 16
We have sold the Commercial Space no.CG-07 admeasuring 1695 sq.ft. to Mr.SURESH JAIN S/O late Shri Sher Singh Jain R/O C-29, Panchsheel Enclave, New Delhi. In terms of Clause 23 of the above referred Lease Deed, we request you to kindly attorn to the said change of ownership and pay rent for the captioned commercial space directly to the new owners with effect from 1st January, 2006. The new owners viz. Mr.SURESH JAIN, confirm to abide by all the terms and conditions of the Lease Deed dated 08.09.2005. We have paid the sum of Rs.18,30,600/- [Rupees Eighteen Lac thirty thousand six hundred only] only to the new owners being the interest-free security deposit/Advance rent and the receipt of the same has been confirmed by the new owners on this letter itself.
The above statement of ours is being confirmed by the new owners.
Please acknowledge receipt. Thanking you Yours Truly, For M/s. Orient Carpet Gallery Private Limited"
14. It is also a matter of record that in confirmation of the attornment, the tenant also issued a letter dated 22.12.2005, which is filed on record as Annexure „C‟ with the plaint wherein it is admitted that the said letter was confirmed by the tenant, who has confirmed that they shall attorn the change in the ownership and would pay rent in the name of the plaintiff w.e.f. 01.01.2006. This letter was addressed to the CS (OS) No.287/2007 Page 6 of 16 plaintiff with a copy to the defendant. On 15.01.2007, another letter was issued by the tenant to the plaintiff informing that the defendant has issued a letter to the tenant asking them not to pay rent as they have cancelled the attornment.
15. By order dated 18.02.2008, it was directed by this court in IA no.11521/2007 that the arrears of rent in respect of suit property w.e.f. 07.01.2007, which are retained by the tenant, M/s. Supreme Tradelinks Private Limited be deposited within four weeks in this court and the future rent shall be deposited on a month to month basis till further orders. It has been noticed that further order was passed on 02.09.2008 wherein it was ordered with the consent of the parties that the amount received in the Registry from the tenant be placed in the F.D.R. to earn interest till further orders are passed in this respect.
16. Learned counsel for the plaintiff has argued that main defence taken by the defendant in their written statement is that the transaction covered by the said agreement was a transaction connected with a transaction for another property i.e. 11, M.G. Road, New Delhi. The contention of the learned counsel for the plaintiff is that the said transaction did not have the present defendant as a party.
17. Further it is argued that there is a suit pending before this court in respect of the said property and the party to the said suit i.e. M/s. Silver Oak Infrastructure Private Limited, is not even a party to the present suit and is not connected with the present transaction. The defendant in the said suit, Mr. Sumit Jain and Mr. Vineet Jain [defendant nos.2 and 3 therein] are again not the party to the present suit CS (OS) No.287/2007 Page 7 of 16 and are not connected with the transaction in question.
18. It is further argued that the defendant has failed to produce any document to show that the two transactions were inter-connected in any manner whatsoever. By raising this defence, the defendant cannot succeed in the matter. Since there are admissions made by the defendant in the present case, there is no requirement for the parties to go for the trial.
19. In support of the case of the defendant, learned counsel contended that the present suit filed by the plaintiff being a suit for specific performance wherein the plaintiff is seeking the relief to pass a decree of specific performance of agreement to sell dated 09.12.2005 and also the relief of endorsement on the basis of the said agreement to sell dated 09.12.2005, the said reliefs cannot be granted as the agreement is insufficiently stamped and no term of the agreement can be enforced under the law.
20. Learned counsel for the defendant has submitted that the agreement to sell dated 09.12.2005 relied upon by the plaintiff is the basis of the suit and in case said agreement is not legally enforceable or cannot be acted upon, the suit of the plaintiff as per law is liable to be dismissed.
21. Learned counsel has also referred to Clause 12 of the Agreement and has argued that the said agreement to sell being deficiently stamped has to suffer the consequences as provided in Section 35 of the Indian Stamp Act. In support of this contention, he has referred to a decision of the Supreme Court in Avinash Kumar CS (OS) No.287/2007 Page 8 of 16 Chauhan V/s. Vijay Krishna Mishra, [2009] 1 Scale 80.
22. He argues that admittedly in the present case the sale consideration is Rs.2.40 crores, which makes the agreement to sell to be affixed with the stamp worth Rs.12,96,000/-, although, the agreement to sell executed between the parties is stamped on a stamp paper of Rs.50/- only.
23. The next submission of the learned counsel for the defendant is that consequence of non-registerability of the document in the nature of part performance does not affect the immovable property and the said document is inadmissible in law.
24. Lastly, learned counsel for the defendant has referred to Section 49 of the Registration Act. He states that a bare reading of this section makes it clear that no document shall affect the right of the parties if the same is unregistered. He further submits that to make a document admissible in evidence, there should be a proper registration and stamping, otherwise the document is rendered inadmissible and unenforceable under Section 54 of the Transfer of Property Act.
25. The sale deed, which transfers the right, can only be valid if the same is registered and properly stamped and an unregistered sale deed shall have no effect on the property. He has referred to a decision reported as Ram Baran V/s.Ram Mohit, AIR 1967 Sc 744. In view of the above-mentioned submissions, learned counsel for the defendant states that present agreement to sell does not confer any right, title or interest in the property in view of the celebrated judgment reported as Sunil Kumar Jain V/s. Kishan, AIR 1995 SC 1891.
CS (OS) No.287/2007 Page 9 of 16
26. As regards, the merit of the application is concerned, the learned counsel for the defendant states that unless the admission is unconditional, unambiguous and unequivocal, the provisions of Order 12 Rule 6 CPC cannot be invoked. His further contention is that the written statement has to be read as a whole and where the admission is qualified or conditional or facts are disputed, then the court cannot grant any relief under the provisions of Order 12 Rule 6 CPC. In support of his submissions, he has referred to a large number of decisions i.e. 1991 RLR 20, 1991 RLR Note [14], 2000 Vol.86 DLT 817, 2000 Vol.85 DLT 211, 1999 [50] DRJ 324 and AIR 1986 SC 1509.
27. Per contra, learned counsel for the plaintiff has argued that agreement to sell does not require registration and only those agreements, which are clubbed with the delivery of actual physical possession, require registration as it is clear under Section 17[1A] of the Registration Act.
28. In case a document is clubbed with actual physical possession and is executed but not registered, it shall not have the effect for the purpose of Section 53-A of the Transfer of Property Act. Learned counsel for the plaintiff states that Section 53-A of the Transfer of Property Act shall only apply when the buyer has taken the possession or has continued to be in possession. The explanation at the end of sub-section [2] of Section 17 states that contract shall not require registration merely because the whole of the purchase money has been paid thereunder.
29. He states that in the present case, the buyer has not taken the CS (OS) No.287/2007 Page 10 of 16 possession and the tenant continued to be in possession. In support of his submission, he has referred to a judgment of the Division Bench of the Orissa High Court reported in Nila Padhan and Ors. Vs. Gokulananda Padhi and Ors., AIR 1952 Orissa 118 and in para-7 of the said judgment, it is held that the defendant has to establish not only that there was a transfer but also that there was delivery of possession in pursuance thereof. Learned counsel for the plaintiff has also referred to para-11 of the written statement wherein the defendant has denied that the plaintiff is entitled to have the benefit of Section 53-A of the Transfer of Property Act.
30. As regards, the objection raised by the defendant that the agreement has not been duly stamped, which is required under Article 23-A of Schedule 1 of the Stamp Act, learned counsel for the plaintiff has argued that the application of the said provisions does not arise as the said agreement to sell cannot be construed to be a conveyance.
31. He submits that where only transfer in the record of owners available with the developer is done, then the type of said contract, which requires payment of stamp duty under Clause 23-A of Schedule 1 of the Indian Stamp Act, are the ones which in the nature of their part performance are covered under Section 53-A of the Transfer of Property Act, which requires actual physical possession to be handed over to a buyer, which condition is not fulfilled in the present case.
32. Learned counsel for the plaintiff has also refuted the other arguments of the defendant that transaction was inter-connected with CS (OS) No.287/2007 Page 11 of 16 another transaction for a different property. He has referred to Section 92 of the Indian Evidence Act that the defendant is debarred from leading oral evidence or leading any evidence contrary to the terms of the agreement as the said plea of the defendant is non-est in law. In support of his submissions, he has referred to a decision reported in 1997 AIHC 3774. He further submits that under Section 58 of the Indian Evidence Act, if any fact has been admitted by any party then the same need not to be proved under Sections 91 and 92 of the Evidence Act.
33. In support of his application filed under Order 12 Rule 6 CPC, learned counsel has referred to the following judgments :-
AIR 2000 SC 2740, 79 [1999] DLT 229, 2000 [2] CCC 234 [Madras], 86 [2000] DLT 817, AIR 1997 Raj 28, 87 [2000] DLT 76, AIR 1974 MP 75 and AIR 1972 P&H 29.
34. In the present case, it is the admitted position that the buyer has not taken the physical possession as the tenant continued to be in possession. Further, it is also not in dispute that the suit property is still in the name of defendant as per the record of developer (Ansal Properties and Industries Limited) who has admitted in his letter dated 5th December, 2006 written to the defendant.
35. The defendnat has no where in its pleading has mentioned that the name of the plaintiff has been entered in the record of developer( Ansal Properties and Industries Limited). Rather, after the CS (OS) No.287/2007 Page 12 of 16 receipt of full consideration, the tenant by letter dated 15th January, 2007 informed the plaintiff that he has received a communication from defendant informing that the defendant has cancelled the attornment.
36. The plainfiff has not denied the fact that after title of transfer of the shop in its favour and after delivery of physical possesion to the plaintiff, the parties will have to go for registrations of the requisite documents as per law. The sale deed of the suit property is yet to be registered.
37. In view of the present position of the matter, I think unless all the requirement and formalities are completed, till then the plaintiff is entitled to have the benefit of section 53-A of the Transfer of Property Act. An agreement to sell will become a conveyance in case this is an agreement to sell immovable property for consideration and possession of such property is transferred to the purchasers. Hence the objection raised by the defendant that since the agreement to sell is unstamped and unregistered, the suit is not maintainable has no force and I reject the submission of the defendant in view of the facts and circumstances of the present case.
38. Now, this Court has to consider the plaintiff's application under Order XII Rule 6 CPC on merit. It is well settled law that where admissions are clear, unambiguous and unqualified the court can exercise its discretion under the said provision of law and can pass a decree prayed for.
39. The defendant in the present case has not disputed the facts of (a) execution of the agreement in favour of the plaintiff (b) receipt of CS (OS) No.287/2007 Page 13 of 16 100% sale consideration (c) admitted and asked the tenant to attorn to the plaintiff (d) the tenant was paying the rent to the plaintiff till he asked the tenant later on not to pay.
40. In fact, it clearly appears that after execution of the agreement, the defendant has acted upon the agreement by his subsequent conduct when the defendant has admited the ownership of the plaintiff in writing which is clear, unambiguous and unqualified.
41. One has failed to understand that after the receipt of full considertaion, how can the defendant refused to perform its part by raising the objection about the transaction of another property where the present defendant is not a party and the litigation is already pending before this Court. This court does not agree with the submission of the learned cousel for the defendant in this regard as the present suit is not connected with other litigation in absence of any evidence produced by the defendant to show that the two transactions were inter-connected in any manner. The other contention of defendant made in the written statement are relevant in view of the admissions made in the written statement. Various decisions have been referred by the learned counsel for the defendant in support of his submission. After having gone through the same, I have come to the conclusion that none of the judgment is directly applicable to the facts and circumstances of the present case.
42. In the case of Parivar Seva Sansthan Vs. Dr.(Mrs.) Veena Kalra & Ors., AIR 2000 Delhi 349 in para 9 it was held as under : CS (OS) No.287/2007 Page 14 of 16
"9. Bare perusal of the above rule shows, that it confers very wide powers on the court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. The court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on well established principles. Admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part; even a constructive admission firmly made can be made the basis. Any plea raised against the contents of the documents only for delaying trial being barred by the section 91 and 92 of Evidence Act or other statutory provisions, can be ignored. These principles are well settled by catena of decisions. Reference in this regard be made to the decisions in Dudh Nath Pandey (dead by L.R's) Vs. Suresh Chandra Bhattasali (dead by L.R's) MANU/SC/0382/1986; Atma Ram Properties Pvt. Ltd. Vs. Air India MANU/DE/1151/1996; Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. 1997 2 AD (Del) 518; Abdul Hamid Vs. Charanjit Lal & Ors. 1998 2 DLT 476 and Lakshmikant Shreekant Vs. M N Dastur & Co. MANU/DE/0524/1998."
43. In view of the admissions of the present case coupled with the intention of the parties after execution of the agreement, this court is of the view that there is no requirement for the parties to go for the trial and the decree as prayed for can be passed without any hesitation under the provisions of Order 12 Rule 6 CPC.
44. Considering the matter in the total conspectus, I allow the application and pass the decree for specific performance of agreement dated 9th December, 2005 in favour of the plaintiff and against the defendant in respect of the suit property comprised in commercial space bearing No.CG-07, having an area of 1695 sq. ft. on the ground floor of the building known as "Ansal Plaza" HUDCO Place, Andrews Ganj, Near South Extension, Khelgaon Marg, New Delhi. The CS (OS) No.287/2007 Page 15 of 16 defendant is also directed to comply the decree and to perform the obligation as per agreement to sell dated 9 th December, 2005. An injunction was also issued against the defendant not to alienate, transfer or encumber in any manner in favour of third party except the plaintiff. The plaintiff is also entitled for the cost of the suit. The amount deposited by the tenant in view of order dated 2 nd September, 2008 alongwith interest accrued be released to the plaintiff within two weeks from today.
Decree be drawn accordingly. The suit and pending applications are disposed of accordingly.
MANMOHAN SINGH, J JULY 24, 2009 SD CS (OS) No.287/2007 Page 16 of 16