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[Cites 17, Cited by 0]

Delhi District Court

Nishank Gupta vs Shri Vijay Dixit on 3 March, 2021

IN THE COURT OF MS. SHUNALI GUPTA, ADJ­05, SOUTH EAST
     DISTRICT, SAKET COURT COMPLEX, NEW DELHI

CS No.: 185/2018
CNR No. DLSE01­000866­2018

In the matter of:

Nishank Gupta
S/o Shri Ashok Gupta
R/o C­2/35, Safdarjung
Development Area,
New Delhi
                                                                ..... Plaintiff
                                    VERSUS
Shri Vijay Dixit
S/o Late C.L. Dixit
R/o A­1/1, Shanti Niketan
New Delhi.
                                                              ..... Defendant

Date of Institution             :        04.07.2011
Date of Arguments               :        30.01.2021
Date of Judgment                :        03.03.2021


  Suit for Specific Performance of Agreement to Sell dated 01.10.2002

J U D G M E N T:

1. The factual matrix of the case, as culled out from the pleadings of the parties is summarized as under:

1.1. In the year 2002 plaintiff was looking for a property in South Delhi CS No.: 185/2018 Page No1/ 34 Nishank Gupta v. Vijay Dixit for his personal use. During the said search he met Sh. Vijay Dixit -

the defendant herein who represented himself to be the proprietor of M/S Senior Builders and offered to the plaintiff the entire ground floor, basement and terrace above the second floor of the property bearing No. B­109, Defence Colony, New Delhi (hereinafter referred to as the "suit property"). He represented himself to be the absolute owner of the said property and also showed the original documents of the said property to him. There was an office on the ground floor of the said property under the name and Style of M/S Senior Builders and upon query of the plaintiff, the defendant stated that as he has constructed and developed the suit property, his office in the said portion was a temporary/makeshift arrangement only till the time all the floors of the building are sold and thereafter he will shift his office to another premises before execution of the sale deed. Believing on the submissions of the defendant, the plaintiff entered into a written agreement to sell dated 01.10.2002 in respect of the suit property for a total consideration of Rs. 60 lacs. At the time of signing of the said agreement to sell, the plaintiff paid a sum of Rs. 23 lacs to the defendant vide three cheques details whereof are as CS No.: 185/2018 Page No2/ 34 Nishank Gupta v. Vijay Dixit under: 

         CHEQUE       DATED          DRAWN ON                 AMOUNT (In Rs.)
         NO.
         638558       15.07.2002     Bank of India, Hauz Khas 9,00,000/­
         107825       12.08.2002     Allahabad Bank           4,00,000/­
         638559       12.08.2002     Bank of India, Hauz Khas 10,00,000/­

The receipt of the said amount was also acknowledged in the agreement to sell. The balance sale consideration of Rs. 37 lacs was to be paid at the time of execution of the sale deed. No specific time was fixed in the agreement to sell for execution of the sale deed despite request by the plaintiff. At the time of entering into the agreement to sell the defendant handed over the original title documents of the suit property to the plaintiff and also executed a possession letter handing over the constructive possession of the suit property to the plaintiff.

1.2. With an intent to complete the sale transaction at the earliest, the plaintiff arranged the balance sale consideration within two months and called upon the defendant to complete the sale transaction. However, the defendant kept delaying the matter on the pretext that he requires some more time to shift his office to some other suitable premises. Subsequently, in the year 2006 the defendant told the CS No.: 185/2018 Page No3/ 34 Nishank Gupta v. Vijay Dixit plaintiff that he would not be in a possession to shift his office for some time as pursuant to the orders of Hon'ble Supreme Court sealing drive is going on in Delhi and requested the plaintiff to wait for some more time. Thereafter in February, 2008, the defendant informed the plaintiff that he has located another property for shifting his office and requested the plaintiff to pay a further amount. Upon request of the defendant, plaintiff paid a further sum of Rs. 13 lacs - Rs. 8 lacs on 04.05.2008 and Rs. 5 lacs on 28.06.2008 and against both these payments the defendant issued receipts wherein it was specifically mentioned that the said amount was towards the sale consideration under the agreement to sell dated 01.10.2002. Thereafter the defendant kept on delaying the matter till July 2010 whereafter he was totally unavailable to the plaintiff. On 29.12.2010, the plaintiff came to know from a newspaper that the defendant has been arrested at Police Station Dhaula Kuan and an FIR No.103/2010, under Sections 420/406 IPC has been registered against him. Later on the defendant was granted bail by the Hon'ble High Court. The plaintiff also lodged a police complaint at Police Station Dhaula Kuan vide DD No. 52­B dated 21.02.2011 and since CS No.: 185/2018 Page No4/ 34 Nishank Gupta v. Vijay Dixit no action was taken on the said complaint, he also filed a complaint case bearing No.173/2011 in the Court of Ld. MM, South East, Dwarka.

1.3. It is stated that the defendant from the very beginning had no intention to complete the transaction and had induced the plaintiff to part with substantial sum of money by making false representation. On 10.06.2011 he came to know from a local property dealer namely Mr. Kundra that the defendant was keen to dispose of the suit property. Plaintiff has always been ready and willing to pay the balance sale consideration under the agreement to sell, however the defendant despite repeated reminders and having received more than 50% of the sale consideration has not come forward to execute the sale deed. Hence, the present suit has been filed seeking following prayers:

(a) Decree for a specific performance of the agreement to sell dated 01.10.2002 in respect of the suit property.

(b) In the event of defendant failing to execute the sale documents the Registrar of the Court be directed to execute the sale documents on behalf of the defendant in favour of the plaintiff. CS No.: 185/2018 Page No5/ 34 Nishank Gupta v. Vijay Dixit

(c) Or in the alternative to direct the defendant to pay a sum of Rs.36 lacs along with interest @ 18% per annum with effect from 01.10.2002 till receipt thereof along with damages equallent to current market value of the suit property.

2. Written statement was filed inter alia taking the preliminary objections that the plaintiff has no cause of action for seeking specific performance of the alleged agreement to sell after a lapse of more than 9 years; the suit is barred by limitation as it has been filed after more than three years of the alleged agreement to sell; and the alleged receipts dated 04.03.2008 and 28.06.2008 cannot in any manner revive the cause of action which already become barred by limitation. The plaintiff has concealed material and relevant facts from this Court that the defendant is engaged in real Estate business and on a number of occasions had financial dealing with the father of the plaintiff. The father of the plaintiff had advanced a loan of Rs. 23 lacs to the defendant repayable with interest @ 12% per annum against mortgage created by the defendant upon his immovable property for which the alleged agreement to sell was got executed between plaintiff and the defendant. Since the defendant had already CS No.: 185/2018 Page No6/ 34 Nishank Gupta v. Vijay Dixit paid interest to the plaintiff on the said loan amount till June, 2010, therefore the plaintiff did not seek specific performance of the alleged agreement to sell at an earlier date.

2.1. On merits it was stated that the father of the plaintiff Sh. Ashok Gupta and the defendant were known to each other much before year 2002 as the father of the plaintiff was in the business of financing loans and had on number of occasions advanced loan to the defendant against the mortgage of some property. In the year 2002 the plaintiff had advanced a loan of Rs. 23 lacs to the plaintiff and the alleged agreement to sell was executed as a collateral security while advancing the loan. However, it was specifically denied that the defendant had under the said agreement, agreed to sell the suit property to the plaintiff for a consideration of Rs. 60 lacs. As regards the alleged receipts dated 04.05.2008 and 28.06.2008 it was stated that the said receipts were forged and fabricated documents which were got issued undated as security for due payment of interest on the principal loan amount of Rs. 23 lacs. As the defendant has already paid the interest to the plaintiff on the said loan up to June 2010, the said receipts are without consideration and have been CS No.: 185/2018 Page No7/ 34 Nishank Gupta v. Vijay Dixit misused by the plaintiff. Rest all the averments made in the plaint viz that the defendant kept on delaying the matter on the pretext that he needs some time to shift the office or that the defendant did not come forward to execute the sale deed or that the defendant had further demanded a sum of Rs. 5 lacs or 8 lacs from the plaintiff - all have been specifically denied. Dismissal of the suit has been sought.

3. Replication to the written statement was filed by the plaintiff reiterating the facts stated in the plaint and denying all the contrary averments made in the written statement. Plaintiff has re­affirmed that the amount paid was under the agreement to sell and not by way of any loan transaction.

4. Upon completion of the pleadings, the following issues were framed vide order dated 20.03.2014. They are reproduced as under:

1. Whether the suit of the plaintiff is within limitation? (OPP)
2. Whether there was an agreement to sell dated 01.10.2002 between the plaintiff and the defendant in respect of the suit property? If so, to what effect? (OPP)
3. If the answer to issue No.(II) is in affirmative, whether the time was the essence of the agreement to sell? If so, to what effect?
CS No.: 185/2018 Page No8/ 34

Nishank Gupta v. Vijay Dixit OPP

4. Whether the plaintiff was and is ready and willing to perform his part of the contract? If so, to what effect? (OPP)

5. Whether the transaction of advancing the amount of Rs.23 lacs on different dates by the plaintiff and the defendant was a financial transaction independent of the agreement to sell which was sought to be collaterally secured by an agreement dated 01.10.2002? If so, to what effect? (OPD)

6. Whether the plaintiff is entitled to specific performance of the agreement dated 01.10.2002? If so, to what effect? (OPP)

7. Relief.

5. Affidavit of admission denial was filed by the defendant wherein he admitted six documents of the plaintiff after which they were marked as Ex.P­1 to P­6. The same are as under:

(i) Agreement to Sell dated 01.10.2002 ­ Ex.P­1.
(ii) Possession letter dated 01.10.2002 ­ Ex.P­2.
(iii) Receipt dated 01.10.2002 ­ Ex.P­3.
(iv) Receipt dated 04.03.2008 ­ Ex.P­4.
CS No.: 185/2018 Page No9/ 34
Nishank Gupta v. Vijay Dixit
(v) Receipt dated 28.06.2008 ­ Ex.P­5.
(vi) Title documents of the property bearing No. B­109, Defence Colony, New Delhi, ­ Ex.P­6.

6. Parties were directed to lead evidence. On behalf of plaintiff three witnesses were examined. Sh. Nishank Gupta - the plaintiff himself has stepped into the witness box as PW­1 and filed his affidavit by way of evidence as Ex.PW1/A. Apart from the admitted documents he has proved the following documents:

(i) Copy of complaint dated 21.02.2011 and copy of complaint dated 13.04.2011 are Ex.PW­1/1 and Ex.PW­1/2.

(ii) Copy of complaint in complaint case No. 173/2011 is Ex.PW­ 1/3.

(iii) Copy of the order dated 28.04.2011 passed by the Ld. MM in CC No. 173/2011 is Ex.PW­1/4.

(iv) Certified copies of bank statement for the year 2008 and 2014 are Ex.PW­1/7 and PW­1/8 respectively.

(v) Certified copy of FDR in the name of the plaintiff are Ex. PW­ 1/9.

CS No.: 185/2018 Page No10/ 34 Nishank Gupta v. Vijay Dixit He was duly cross examined by learned defence counsel. His cross examination shall be discussed in detail during discussion on issues.

7. PW­2 Sh. Rajesh Kumar, Judicial Asstt., RKD Branch, Delhi High had produced the complete scanned judicial record pertaining to Cr. Misc. case No. 3690/2012 titled as Vijay Dixit v. State & Ors., including the order dated 24.03.2014, duly supported by 65B certificate. The same is Ex. PW2/1.

8. PW­3 Sh. Naresh Kaushik, Judicial Asstt., Record Room (Criminal) South, had produced the complete judicial record of CC No. 95/12 (PS Dhaula Kuan) titled as Nishank Gupta v. State & Ors., decided by the court of Sh. Dhirendra Rana, MM, South, Delhi on 13.09.2012 having Goswara No. 728/2012. The copy of order dated 13.09.202 is exhibited as Ex.PW­3/1.

Both PW­2 and PW­3 were not cross examined on behalf of the defendant despite opportunity being granted. Thereafter, PE was closed and the matter was posted for DE.

9. In the defence evidence, defendant­Sh. Vijay Dixit himself had stepped into the witness box as DW­1 and tendered his affidavit by way of evidence as Ex.DW1/A. CS No.: 185/2018 Page No11/ 34 Nishank Gupta v. Vijay Dixit He was duly cross examined on behalf of the plaintiff. Thereafter, DE was closed and the matter was posted for Final Arguments. Important to note herein that while the matter was at the stage of final arguments, one Sh. Rajesh Kumar @ Rajesh Kanodia moved an application under Order 1 Rule 10 (2) CPC seeking impleadment as a party in the present suit. Arguments on the said application were heard by my learned Predecessor and vide order dated 03.02.2020, the said application was dismissed and a cost of Rs. 1 lac was imposed upon the applicant. The said dismissal order was challenged in appeal before Hon'ble High Court of Delhi vide CMM No. 414/2020. The Hon'ble High Court vide order dated 11.08.2020 passed the following directions:

"i. Two execution petition being Ex.P.112/2017 shall be listed before the same ld. ADJ i.e. ADJ­02 South East District, Saket Courts, New Delhi, who is hearing the suit being CS No.9475/2016.
ii. The final arguments in the said suit shall continue.
iii. The petitioner, who is the Applicant in application under Order 1 Rule 10 of CPC shall be permitted to make his submissions at the stage of final arguments and trial of the suit shall not be reopened in CS No.: 185/2018 Page No12/ 34 Nishank Gupta v. Vijay Dixit the matter.
iv. The stand of the Petitioner shall be considered by the Trial Court at the time of passing the final judgment.
v. The final judgment shall not be given effect to till the present petition is heard and disposed of by this Court.
vi. The Trial Court shall endeavour to conclude the proceedings and conclude the final hearing within the next two months.
vii. Hearing can be held through video conferencing, if needed.
In the meantime, costs imposed of Rs. 1 lakh shall remain stayed.
Respondents are permitted to file their replies in this matter alongwith any judgments, which they wish to rely upon, at least 3 days prior to the next date of hearing."

10. Final arguments addressed by Ms. Jaya Goel, learned counsel for the plaintiff, Sh. Sanjay Goswami, learned counsel for the defendant and Sh. Divyakant Lahoti, learned counsel for the applicant Rajesh Kumar have been extensively heard and record has been carefully perused. Discussion on Issues:

ISSUE No. 1: Whether the suit of the plaintiff is within limitation? (OPP) CS No.: 185/2018 Page No13/ 34 Nishank Gupta v. Vijay Dixit

11. I am taking this issue at the very outset in as much as upon this issue or consequent to the result flowing out from the decision on this issue, the need to determine/adjudicate other issues would arise. This, I am so observing for the reason that the agreement to sell in question Ex.P­1 is dated 01.10.2002 and the suit has been instituted in June 2011. Necessarily the question of the suit being in time instantaneously comes to the forefront. In other words the hurdle of the suit being within limitation in a manner becomes the primary hurdle which the plaintiff has to cross.

Now I am just for the discussion on this issue culling out certain important dates from the plaint itself:

1. 01.10.2002 Execution of agreement to sell (no date fixed for performance of the agreement).
2. December, Apparent date [in terms of para no. 2 (7) of the 2002 plaint] when the plaintiff had arranged balance sale consideration and called upon the defendant to execute the defendant.
3. Year 2006 Defendant told the plaintiff that he would not be in a position to shift the office.
4. February, Defendant informed that he has located another 2008 property and that he would shift from the suit property.
5. 04.03.2008 Receipt (for Rs. 8 lakh) 28.06.2008 Receipt (for Rs. 5 lakh)
6. July, 2010 Defendant became unavailable.
CS No.: 185/2018 Page No14/ 34
Nishank Gupta v. Vijay Dixit
7. 21.02.2011 Complaint lodged by the plaintiff with PS Dhaula Kuan.
8. June, 2011 Instant suit filed by the plaintiff.

To maintain the continuity in narrative, I am also quoting the agreement to sell Ex.P­1 particularly the clauses 1 to 10 thereof, possession letter Ex.P­2 and the receipts dated 04.03.2008 Ex.P­4 and 28.06.2008 Ex.P­5:

"AGREEMENT TO SELL
1. That in pursuance of this Agreement to Sell and in consideration of a total sum of Rs. 60,00,000/­ (Rupees Sixty Lacs) out of which the First Party has received a sum of Rs. 23,00,000/­ (Rupees Twenty Three Lakhs only) in the following manner:
Cheque No. 638558 dated 15/07/2002 on Bank of India, Hauz Khas for Rs. 9,00,000/­ Cheque No. 107825 dated 12/08/2002 on Allahabad Bank, Parliament Street for Rs. 4,00,000/­ Cheque No. 638559 dated 12/08/2002 on Bank of India, Hauz Khas for Rs. 10,00,000/­ from the Second Party, as part sale consideration, at the time of signing of this Agreement.
2. That the First Party has handed over the vacant and physical possession of the said Portion, complete in all respects, to the Second Party.
3. That the First Party assures the Second Party that the portion under Sale in free from all kinds of encumbrances, such as prior Sale, Mortgage, Gift, Will, Lien, Litigations, Disputes, Lease, Loan, Surety, Security, Injunction, Stay Order, Acquisition, or any other registered or unregistered encumbrances, etc. and if it is CS No.: 185/2018 Page No15/ 34 Nishank Gupta v. Vijay Dixit proved otherwise, then the first party shall be liable and responsible to indemnify all the losses/damages, thus suffered by the Second Party.
4. That the First Party shall pay and clear all the Water and Electricity Charges, House Tax or any other dues and demands of the concerned authority, in respect of the portion under Sale, up to the date of handing over the vacant and physical possession of the aforesaid portion, and thereafter the same shall be borne and paid by the Second Party in respect of the said Portion only.
5. That after making the full and final payments, the Second Party shall be entitled to get the said Portion mutated and transferred in his own name or in the name of his nominee(s) in the record of MCD, DVB are any other concerned authority.
6. That the Stairs, Passage, Jet Pump and Overhead Water Tank shall be common for the whole building.
7. That the Second Party Capital shall have right to nominate and assign this Agreement to Sell in favour of any nominee(s) are assignee(s), for which the First Party shall not object.
8. That this Agreement to Sell is subject to specific performance at the costs, expenses and risks of the defaulting Party.
9. That the First Party reserves the right to repurchase the said Portion from the Second Party within 12 months from the date of this Agreement to Sell, by refunding the amount received from the Second Party with interest @ 2% per month to the Second Party, for which the Second Party shall not object.
10. That the Second Party shall pay the Stamp Duty, Corporation Tax, Registration Fee, etc. in respect of the Sale Deed."
"POSSESSION LETTER CS No.: 185/2018 Page No16/ 34 Nishank Gupta v. Vijay Dixit BE IT KNOWN TO ALL that I, Shri Vijay Dixit S/o Late Shri C.L. Dixit Prop. Senior Builders having its office at B­109, Defence Colony, New Delhi do hereby handover the vacant and physical possession of the entire Ground Floor, Basement and Terrace above II Floor of the Property having number B­109, Defence Colony, New Delhi M/S 177.75 sq. meters. To Mr. Nishank Gupta S/o Shri. Ashok Gupta R/o C­2/35, Safdarjung Development Area, New Delhi as per the terms and conditions of the Agreement to Sell dated 1st October, 2002."
"RECEIPT Further received Rs.8,00,000/­ (Rupees Eight Lac only) from Mr. Nishank Gupta as per agreement dt 1st October, 2002 in respect of Ground Floor & Basement of B­109, Defence Colony, New Delhi as further payments Towards Sale consideration. IN WITNESS WHERE OF I have signed this receipt at New Delhi on this day of 4 March 2008 in the presence of the following witnesses."
"RECEIPT Further received Rs.5,00,000/­ (Rupees Five Lac only) from Mr. Nishank Gupta as per agreement dt 1st October, 2002 in respect of Ground Floor & Basement of B­109, Defence Colony, New Delhi as further Payments towards Sale consideration. IN WITNESS WHERE OF I have signed this receipt at New Delhi on this day of 28 June 2008 in the presence of the following witnesses."

Relevant to note herein that the receipts purportedly bears the signatures of Vijay Dixit (defendant herein) and is on the letter pad of M/s Senior Builders and the address of the office of the Senior Builders is shown as B­109, Defence Colony, New Delhi i.e. the address of the suit property.

CS No.: 185/2018 Page No17/ 34 Nishank Gupta v. Vijay Dixit

12. Article 54 of the limitation Act reads as under:

Description of suit Period of Time from which period limitation begins to run For specific Three years The date fixed for the performance of a performance, or, if no such date contract is fixed, when the plaintiff has notice that performance is refused.
Now obviously in the event if a date is fixed for performance of an agreement - then the said date is the starting point of limitation. In the absence thereof, the date when the performance of the agreement is refused, then the limitation commences from the said date.
Now admittedly, there is no date fixed for performance of the agreement. Had the plaintiff remained in possession of the suit property as reflected in clause (2) of the agreement to sell Ex. P­1, then the question of limitation would not have come into the play in as much as in that eventuality it would have been the other way round i.e. the defendant seeking ejectment of the plaintiff to regain possession. Same is not the case herein as throughout the defendant retained the possession of the premises. In these circumstances, filing of the suit within the period of limitation becomes even much more CS No.: 185/2018 Page No18/ 34 Nishank Gupta v. Vijay Dixit important otherwise the rights emanating from the agreement to sell would fritter away or rendered otiose.
Now I am taking the first eventuality when there is no date fixed in the agreement to sell then on which date the right to sue accrues? In this regard, learned counsel for the defendant has relied upon the judgment of Hon'ble High Court of Andhra Pradesh in case of Second Appeal No.1435/2007 titled as "Kota Sivaram Prasad vs. Nagandla Veera Brahmam and Ors." decided on 07.12.2011.
Extracted from the judgment is reproduced herein under:
"Section 3 of the Limitation Act places obligation on the Courts to examine whether the suit was filed within the period of limitation stipulated under the Act. If the averments in the plaint indicate that the suit was filed beyond the stipulated period of limitation, the plaint is liable to be rejected.
The starting point of limitation for filling suits for specific performance is the date, on which the party, who is under obligation to perform his part, had refused to do so, under Article 54 of the Schedule to the Act. In the absence of any averment in the contract, such demand is required to be made before expiry of three years from the date of agreement. It is only when a stipulation exists to the effect that the transaction can be concluded at a later point of time, that a different approach becomes possible. Even if the Ist respondent can be said to have, indeed, demanded Venkateshwarlu to execute sale deed after expiry of three years, suit ought to have been filed within three years from the date of inaction on the part of Venkateshwarlu. It is not necessary that refusal must be CS No.: 185/2018 Page No19/ 34 Nishank Gupta v. Vijay Dixit specific or in any particular form. If a demand was made and nothing positive is forthcoming, refusal can be implied."

13. Now in the present case the first demand for execution of the sale deed was made after two months of execution of the agreement to sell i.e. the demand was somewhere in December, 2002. Once such a demand was made and which was not acceded by the defendant; no further date was fixed for performance and the plaintiff also having the possession letter with him [signifying that there was no other part or obligation left to be completed by the defendant] - it by itself implies triggering of right to sue and commencement of limitation for filing of the suit. Viewing from the said aspect, the suit is clearly barred by limitation.

14. Delving further, the plaintiff has made out a case that the office of the defendant was in the suit property and the defendant was dilly dallying as he was not in a position or otherwise was avoiding to shift and kept on lingering.

In this regard shifting of office was not a condition precedent or a condition incorporated in the agreement to sell. Hence, at the first place, the performance of the agreement cannot be extended on such CS No.: 185/2018 Page No20/ 34 Nishank Gupta v. Vijay Dixit an extraneous plea. As such the case sought to be made out justifying the delay is not on account of any stipulation flowing out from the agreement to sell.

15. Travelling a little further, plaintiff has contended that in February, 2008 the defendant informed that he has located another property to shift his office for which he demanded further money from the plaintiff. Acceding to the same, in terms of the earlier agreement to sell, plaintiff paid a sum of Rs. 8 lakh on 04.03.208 vide receipt Ex.P­4. The amount was paid at the residence of the defendant at Shanti Niketan, Delhi (reflected in para 2 (ii) of the plaint). Subsequently, a further sum of Rs. 5 lakh was paid on 28.06.2008. Now I fail to understand that if this was the impediment i.e. shifting of office of the defendant from the suit property, then why did the plaintiff accept the receipts on the letter head of Senior Builders which showed the address of the suit property as the office Senior Builders on the receipts dated 04.03.2008 and 28.06.208. In other words considering the case of the plaintiff, it does not behove from the standard of a reasonable man that the plaintiff would further advance 20% of the sale consideration after a lapse of nearly six CS No.: 185/2018 Page No21/ 34 Nishank Gupta v. Vijay Dixit years from the initial agreement to sell without insisting the defendant to vacate the suit property - which grudge is holding the performance of agreement.

Needless to state, that the consideration reflected in receipts was not through any instrument or banking channel nor there was any acknowledgment or endorsement made on the initial agreement to sell Ex.P­1. Thus, it casts doubt as to the genuineness of the receipts as well. The defendant's version on the other hand is that these receipts were undated and signed at the time of execution of the agreement to sell itself as a security for payment of the interest amount.

16. Now the office address of the defendant (which fact I have already highlighted herein above) assumes crucial significance for another reason as there is no date beneath the signatures of Vijay Dixit and the witness. Hence, the receipts being actually of year 2008 is also difficult to accept.

17. Dehors the aforesaid, even if for the sake of arguments, I accept the receipts to be genuine, then also for extending the period of limitation, payment has to be given during the initial/original period CS No.: 185/2018 Page No22/ 34 Nishank Gupta v. Vijay Dixit of limitation and not thereafter by virtue of Section 18 of the limitation Act, 1963. Reference in this regard can be made to the judgment of Hon'ble Delhi High Court in "Subhash Chander Kathuria vs. Umed Singh & Anr." 2006 AIR (DEL) 194. The relevant paragraph Nos.22, 23 and 24 are reproduced herein as under:

22. The other aspect which needs to be dealt with now is as to whether fresh limitation period would start from 13th September, 1996 when allegedly Rs.20,000/­ was given by the plaintiff to the defendants.
23. As already mentioned above, this receipt does not mention any date as and when this amount is taken. It also does not mention that this amount is taken for obtaining the requisite permissions as it is the averment made in the plaint. Further, as mentioned above, between 1988 when the Agreement was executed and 1996 there is nothing on record which would indicate that the defendants had represented that they were taking steps to obtain NOCs or asked for time for this purpose. On the contrary, averment made in the plaint is that there was no response from the defendants all these years and all of a sudden the defendants allegedly approached the plaintiff on 13th September, 1996 requesting the plaintiff to pay additional amount of Rs.20,000/­. The pleadings regarding such assurances that they were taking steps for obtaining the NOCs are post 1996 only; to be precise they relate to the period 1997 & 1998 as contained in paras 6 and 7 of the plaint wherein it is alleged that on plaintiff's approaching in December 1997 and June, 1998 the defendants stated that they would be obtaining the NOCs and would be ready to CS No.: 185/2018 Page No23/ 34 Nishank Gupta v. Vijay Dixit executed the sale deed by August, 1998. Learned counsel for the plaintiff submitted that it is a matter of evidence and, therefore, the issue cannot be decided.

Learned counsel for the defendants, on the other hand, argued that the matter may be proceeded on the basis of allegations contained in the plaint. Therefore, on the assumption that Rs.20,000/­ was given on 13th September, 1996 I proceed further with the matter.

24. Admittedly, the limitation had expired on 26 October, 1991. Fresh period of limitation, therefore, cannot start from making this payment of Rs. 20,000/­. That is the effect of Section 18 of the Act as per which part payment has to be made within the period of limitation. Here, the payment was made much after the period of limitation. Issue No. 1 is accordingly decided against the plaintiff and in favour of the defendants holding that the suit filed by the plaintiff is time barred."

That being the scenario this issue of limitation being the pivotal issue is decided against the plaintiff.

In the context of the facts of the case, rather it would have been apt if this issue would have been taken up as a preliminary issue as it would have curtailed the span of litigation.

ISSUE No. 2 : Whether there was an agreement to sell dated 01.10.2002 between the plaintiff and the defendant in respect of the suit property? If so, to what effect? (OPP) ISSUE No. 5 : Whether the transaction of advancing the amount of Rs.23 lacs on different dates by the plaintiff and the defendant was a financial transaction independent of the agreement to sell which was sought to be collaterally secured by an agreement dated 01.10.2002? If so, to what effect? (OPD) CS No.: 185/2018 Page No24/ 34 Nishank Gupta v. Vijay Dixit

18. These issues are taken up together for the reason that issue no. 5 incorporates the defence or plea of the defendant that the agreement to sell Ex.P­1 was in fact only a camouflage to secure the underlying loan transaction.

In this regard particularly, reliance was placed upon clause No. 9 of the Agreement whereby a right to repurchase was given to the defendant which appears to be and was contended to be a clause unlike the ones in the agreement to sell wherein the property is to be sold or conveyed perpetually whereas by virtue of this clause, it enables the defendant to have a reversal of the transaction.

19. Now first of all it has to be determined as to whether the agreement to sell Ex.P­1 (which I have already quoted in extenso) - satisfies the legal requirements of an agreement to sell. In reference thereto:

(i) There is clear identity of the parties - the vendor and the vendee.
(ii) The property is clearly identifiable.
(iii) Sale consideration is also clear.
(iv) The time of performance though is not specified but as discussed in the preceding issue that is not fatal/antithesis to there being an agreement to sell.
CS No.: 185/2018 Page No25/ 34

Nishank Gupta v. Vijay Dixit In other words even in that eventuality when there is no date fixed for performance, then also the Court can decode/decipher the same upon reading of the agreement in totality and other surrounding circumstances as well. Thus, the agreement Ex.P­1 qualifies to be an agreement to sell.

20. Coming to the second limb of the argument that the clause of repurchase denudes Ex.P­1 of its character of being an agreement to sell. In my opinion this clause perse does not in any manner destroy or affect the basic ingredient required for an agreement to sell as above. Once there is an agreement to sell, such a clause at best either

(i) empowers the defendant to rethink or give him a right to Veto the transaction before the agreed period of time or (ii) in the second eventuality, the agreed time having lapsed, such a clause looses its efficacy. There cannot be any other construction to such a clause inserted in an agreement to sell. To contend that it changes its nature and character of an agreement to sell is an untenable plea. The legal nature of the documents or the real intent of the parties at the time of entering into the bargain can only be taken into consideration subject to the rule incorporated under Section 91­92 of CS No.: 185/2018 Page No26/ 34 Nishank Gupta v. Vijay Dixit the Indian Evidence Act, 1872 and leading of evidence to contradict the bargain which is reduced into a document, is permissible only as per the set rules of evidence and generic or inadmissible pleas cannot be permitted to be taken as being done hereby the defendant qua the documents in question. It is also not that the defendant is a layman or the agreement entered into was on account of undue influence, fraud or coercion.

The issues are decided in favour of the plaintiff. ISSUE No. 3 : If the answer to issue No.(II) is in affirmative, whether the time was the essence of the agreement to sell? If so, to what effect? OPP ISSUE No. 4 : Whether the plaintiff was and is ready and willing to perform his part of the contract? If so, to what effect? (OPP) ISSUE No. 6 : Whether the plaintiff is entitled to specific performance of the agreement dated 01.10.2002? If so, to what effect? (OPP)

21. These issues are taken up together in as much as they are interconnected and a common discussion shall suffice. As per the agreement Ex.P­1 no time was fixed for performance of the Agreement/for execution of the Sale deed. Now in the absence of there being any time fixed it has to be seen whether time was the essence of the agreement or not. On this aspect I am relying upon the judgment of Hon'ble Supreme Court in the case of "Chand Rani CS No.: 185/2018 Page No27/ 34 Nishank Gupta v. Vijay Dixit (Smt.) (Dead) by LRs vs. Kamal Rani (Smt.) (Dead) by LRs" (1993) 1 SCC 519 wherein it has been held that as a general principal of law, in case of sale of immovable property, there is no presumption as to time being the essence of the contract. However, the Court may from the terms of the contract infer that it is to be performed within a reasonable time.

Later on Hon'ble Supreme Court in the case of Saradamani Kandappan v. Mrs. S. Rajalakshmi, 2011 (12) SCC 18, it was observed as under:

".....Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time­limits stipulated in the agreement. The courts will also "frown" upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three­year period is intended to assist the purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part­ performance, where equity, shifts in favour of the purchaser."

Considering the factual matrix and totality of facts and circumstances of the case in my opinion clause 9 of the agreement Ex.P­1 holds and CS No.: 185/2018 Page No28/ 34 Nishank Gupta v. Vijay Dixit answer to this question. The plaintiff, if would have been in possession of the property, the defendant would have a right to repurchase on nullify the agreeement within an out a limit of one year. However, said eventuality did not arise, meaning thereby that after one year the right to perfect the title accrued which means time was the essence of the contract in a sense. It is not that time was not the essence of the contract or sucha clause was not appended therein. Thus, in view of the aforesaid discussion the time was the essence of the agreement here.

22. Coming to the second and most important aspect - assessessing the readiness and willingness of the plaintiff to perform the contract. Now, I may note that the remedy of specific performance being one in the realm of equitable jurisdiction, the burden clearly is on the plaintiff to prove the positive facts of readiness & willingness on his/her part. The defendants are not expected to prove the negative. In this reference, the observations made by Hon'ble Supreme Court in the case of N. P. Thirungnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115 can be taken as the guiding principles. The observations made in paragraph 5 of the said judgment are CS No.: 185/2018 Page No29/ 34 Nishank Gupta v. Vijay Dixit reproduced herein under:

"....Section 16(c) of the Act envisages that Plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the Defendant. The continuous readiness and willingness on the part of the Plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the Plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the Plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the Plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the Defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the Plaintiff was ready and was always ready and willing to perform his part of the contract."

(underlining added) Further on this aspect I also rely upon the judgment of Shree Aadhiya Build Well Pvt. Ltd. Vs. Kartar Singh & Ors, 228 (2016) DLT 10:

CS No.: 185/2018 Page No30/ 34

Nishank Gupta v. Vijay Dixit "....This provision (Section16(c) of Specific Relief Act, 1963) requires that a proposed purchaser has always to be and continues to be ready and willing to perform its part of the agreement to sell. It is settled law that the expressions 'readiness' and 'willingness' refer to the capacity to pay so far as the expression 'readiness' is concerned and the intention to go through with the transaction as reflected in the expression 'willingness'.

These are the meanings of the expressions 'readiness' and 'willingness' as held in various judgments of the Supreme Court and one such judgment of the Supreme Court in this regard is in the case of J.P. Builders and Another v. A. Ramadas Rao and Another, VIII (2010) SLT 546=IV (2010) CLT 492 (SC)=(2011) 1 SCC 429. We will therefore have to examine as to whether the plaintiff was always ready and willing to enter into the sale deed till the time of the present final arguments and from the date of entering into the agreement to sell. At the time of considering this issue, no doubt, it is borne in mind that the plaintiff has to be willing to perform its part of the contract only when the defendants have obtained the NOC, however, Section 16(c) of the Specific Relief Act requires not one but two aspects to be proved by the plaintiff ie both readiness and willingness. In law the aspect of willingness being there is one which is to be acted upon by making the payment when the defendants make themselves capable of performing the agreement to sell by taking the necessary NOC, however, as contrasted from willingness, readiness is an aspect which has to be independently proved. Readiness pertains to the financial capacity of a proposed purchaser to make payment of the balance consideration under the agreement to sell. The issue with respect to readiness and willingness is overlapping with the issue to defendants being guilty of breach of contract, but, the expression "has always been ready and willing" is an expansive expression not only encompassing therein CS No.: 185/2018 Page No31/ 34 Nishank Gupta v. Vijay Dixit that it has to be shown that the defendants are guilty of breach of contract, but also that it has to be shown that plaintiff had necessary financial capacity to pay the balance sale consideration at all points of time after the agreement to sell was entered into. The aspect of a plaintiff/proposed purchaser always being ready to perform its part of the contract i.e. having the necessary capacity to pay the sale consideration is because specific performance is a discretionary relief and an alternative to the relief of grant of damages...." Thus, it is abundantly clear that the amount of consideration, which a buyer must pay to the seller, must be necessarily proved to be available and only on proof of which readiness & willingness would stand established.

23. Reverting to the facts of the present case, in this case apart from a bald averment in the plaint that the plaintiff had called upon the defendant after two months of the execution of the Agreement Ex.P­ 1 to execute the Sale deed as he was ready with the balance sale consideration, there is nothing else on record. Admittedly, no written notice has ever been given to the defendant calling upon him to execute the sale deed. In a suit for specific performance proof of communication of readiness and willingness is a sine quo non. The observations made by Hon'ble Delhi High Court in the case of "Madan Mohan v. Sheel Gulati", 223 (2015) DLT 57 are also CS No.: 185/2018 Page No32/ 34 Nishank Gupta v. Vijay Dixit relevant herein. In the said case, it was observed that mere self­ serving IPSE DIXIT cannot be held to be discharge of onus to prove with respect to a very important issue of a readiness and willingness which is required to be proved by a proposed buyer in terms of Section 16(c) of the Specific Relief Act, 1963. In the case in hand not only that there is an absence of written communication by the plaintiff to the defendant, even the pleadings are absolutely silent on the aspect that any written communication was ever sent to the defendant. Further, no preparatory work was ever done before the registration of sale deed which inter alia includes purchase of stamp papers, preparation of draft sale deed etc. The plaintiff has hopelessly failed to prove his readiness and willingness to execute the contract. Thus, on this short ground alone, the suit is liable to be dismissed.

Issues are thus decided accordingly holding that time was the essence of the contract and plaintiff was not ready and willing to perform the contract - is not entitled to th relief of specific performance. Relief

24. In view of the aforesaid discussions, the suit of the plaintiff stands CS No.: 185/2018 Page No33/ 34 Nishank Gupta v. Vijay Dixit dismissed. No order as to cost.

Decree sheet be prepared accordingly and file be consigned to Record Room after necessary compliance.

Announced in the Open Court (Shunali Gupta) Dated: 03rd March, 2021. Additional District Judge­05 South­East District, Saket Court CS No.: 185/2018 Page No34/ 34 Nishank Gupta v. Vijay Dixit