Delhi District Court
Pratap Singh vs Ganga Singh on 24 February, 2022
: IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No.59/2016 (15508/2016)
In the matter of:
1. Pratap Singh
son of Sh.Mangal Singh
161 Ali Ganj, Kotla Mubarakpur
New Delhi110003
2. Gulshan Arora
son of Sh.Asanand Arora
70 National Park
Lajpat NagarII
New Delhi110024
..... Plaintiffs
VERSUS
1. Ganga Singh
son of late Sh.Narain Singh
2A, Madan Pur Khadar
Near MCD Dispensary Quarters
New Delhi110044
2. Government of NCT of Delhi
Through its Secretary
Land & Building Department
'B' Block, Vikas Bhawan
I.P.Estate, New Delhi.
3. Delhi Development Authority
Through its Vice Chairman
CS No. 59/2016 (15508/2016)
Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 1 of 68
Vikas Sadan, I.N.A.
New Delhi
........ Defendants
Date of institution of Suit : 05.07.2010
Date of transfer to this court : 30.01.2016
Date of reserving judgment : 11.02.2022
Date of pronouncement : 24.02.2022
Appearance:
(i) Sh.Virender Goswami, Advocate, Ld. Counsel for plaintiff
(ii) Sh.Nikhilesh Krishnan, Advocate, ld.counsel for Defendant no.1
(iii) Defendant no.2 is exparte.
(iv)Sh.Amit Minocha, Advocate, Ld. Counsel for defendant no.3.
SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT
INJUNCTION
J U D G M E N T:
1. The present suit has been filed by the plaintiff against the defendants, seeking specific performance in favour of plaintiff thereby directing the defendant no. 1 to accept the balance sale consideration and handover the recommendation letter and demand letter issued by DDA with reference to the allotment of Plot no.97, Sector23, Block B, Dwarka (in short, the suit plot) and to execute all necessary documents for transfer of the plot in favour of the plaintiff in accordance with the agreement to sell dated 08.05.1997.
2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiff for filing the present suit, are as under:
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(i) That defendant's father, namely, Sh. Narain Singh (in short, the deceased) had some agricultural land which was acquired by DDA.
Sh.Narain Singh had applied to the Land & Building Department for allotment of an alternative plot against his acquired land in South Zone.
(ii) That the deceased had entered into an agreement to sell dated 08.05.1997 (in short, the said agreement) with the plaintiff for sale of ownership rights of allotment of alternative plot for a total sale consideration of Rs.9,50,000/ on such terms & conditions.
(iii) In pursuance thereof, plaintiff had paid 50% of the total sale consideration i.e. Rs.4,75,000/ to the deceased by way of cash and cheque and the balance of Rs.4,75,000/ was to be paid at the time of final possession of the suit plot along with execution of all documents for transfer of possession of the suit plot in favour of plaintiff.
(iv) On account of death of the deceased and his wife, the allotment of suit plot had been delayed and could not be processed.
(v) It came to the knowledge of plaintiff on 05.02.2010 that the DDA has recommended allotment of the suit plot under the Dwarka Residential Scheme PhaseII to the defendant being legal heir of the deceased. A recommendation letter as also demand letter has been issued for allotment of the suit plot and are in possession of the CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 3 of 68 defendant and the defendant had failed to inform the plaintiff about this fact.
(vi) It is averred by plaintiff that as per the terms of the said agreement, it is binding upon the defendant to transfer the suit plot to the plaintiff and execute all documents for such transfer and also handover all documents that may have been executed by DDA in favour of defendant.
(vii) Plaintiff served a legal notice dated 16.06.2010 upon defendant but despite service of legal notice defendant failed to comply the terms of said agreement.
(viii) It is averred that plaintiff has always been ready and willing to perform the said agreement and still ready and willing to perform the same and in part performance, he has already paid 50% of the consideration amount to the father of defendant.
(ix) It is averred that after coming to know of the same, plaintiff had requested defendant in good faith to comply with the said agreement but defendant flatly refused to perform the terms of said agreement to sell, hence the present suit is filed against defendants.
3. After filing of the suit, summons for settlement of issues was issued to the defendants. Pursuant to service of summons, defendants appeared and filed their written statements.
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4. Written statement was filed by defendant no.1, wherein the contents as mentioned in the plaint were denied in toto. It is submitted that land in question/suit plot was allotted in the name of defendant in lieu of acquisition of ancestral agricultural lands of the defendant by the Government. It is submitted that neither the deceased could have sold the suit plot which was allotted in lieu of ancestral lands nor the plaintiff could have purchased the same. It is submitted that as on the date of said agreement not even an application for allotment of an alternative land has been made and there is no recommendation by the DDA for allotment of the suit plot and the allotment is for the personal rehabilitation of the persons whose lands have been acquired and such plots cannot be sold or purchased.
5. It is submitted that suit was filed in July 2010 i.e. after 13 years after the execution of the said agreement which was executed on 08.05.1997 and the suit is not maintainable being barred by limitation. The suit is based on forged and fabricated documents and that the deceased did not execute the said agreement in favour of plaintiff or anyone else and as per the said receipt which was allegedly executed between the parties for receipt of Rs.1 lacs bears the date of agreement as 15.11.1997 and the said agreement and the said receipt were witnessed by someone whose signature are not legible. The said agreement is forged and fabricated one and void abinitio.
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6. Defendant no.2/NCT of Delhi filed its written statement wherein it is submitted that suit is not maintainable being barred by limitation. The plaintiff is seeking enforcement of said agreement. The recommendation for allotment of alternative plot in favour of the deceased, was made by defendant no.2 on 18.01.2002, However, the deceased died on 06.03.2001, the defendant no.2 made a fresh recommendation in favour of his son Sh.Ganga Singh/defendant no.1 on 17.04.2006 after completion of formalities. The said recommendation was communicated to him vide letter dated 02.06.2006 and after making the said recommendation, defendant no.2 had no role to play in the matter of allotment of alternative plot to the applicant.
7. Defendant no.3/DDA also filed written statement and submitted that defendant no.1 was allotted the suit plot in draw of lot held on 05.02.2010 and a demand cum allotment letter was sent on 01/11062010. Thereafter plaintiff with one person, namely, Sh.Gulshan Arora made a complaint dated 01.06.2010 before them that they have purchased the ownership right of the suit plot to be allotted to the deceased under allotment of alternative plot scheme vide the said agreement, however, neither the said agreement nor the said receipt were duly registered with the appropriate authority.
8. Plaintiff filed replications to the written statements of defendant nos.1 to 3, thereby, denying all the allegations and has reiterated the contents of plaint.
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9. On the basis of pleadings of the parties, following issues were framed on 02.05.2011:
(i) Whether the plaintiff is entitled to a decree of specific performance of agreement dated 8th May, 1997? OPP
(ii) Whether plaintiff is entitled to a decree of permanent injunction, as has been prayed for in the plaint? OPP
(iii) Whether the suit is time barred? OPD
(iv) Whether the suit filed at the instance of plaintiff no.2 is not maintainable for the reasons given by the defendant no.1 in his written statement? OPD1)
(v) Whether plaintiffs are claiming specific performance of an agreement in respect of nonexisting immovable property?
(OPD1)
(vi) Relief.
10. During the course of proceedings, defendant no.2 failed to appear, therefore, defendant no. 2 was proceeded exparte, vide order dated 09.10.2018.
11. In support of his case, the plaintiff examined Sh.Pratap Singh as PW1, who has deposed on affidavit Ex.PW1/A and relied upon following documents :
i) The said agreement to sell dated 08.05.1997 is Ex. PW1/1
ii) The said reciept is Ex. PW1/2,
iii) The letter dated 01.06.2010 is Ex. PW1/3,
iv) Copy of the legal notice is Ex. PW1/4
v) Copy of the acknowledgment is Ex. PW1/5,
vi) Copy of the letter dated 17.06.2010 is Ex. PW1/6, CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
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12. PW2 Sh.Layak Ram, UDC, Land & Building Department, Vikas Bhawan has proved the recommendations to DDA for allotment of alternative plot to the defendant and proved the same as Ex.PW2/1.
13. PW3 Sh.Dheeraj Kumar, Sr.Officer, Standard Chartered Bank has proved the computer generated copy of bank statement pertaining to the period 31.03.97 till 30.07.1997 which stands in the name of Gulshan Kumar as Ex.PW3/A. ld. Counsel for plaintiff has closed PE, vide statement recorded 15.02.2019.
14. Thereafter, matter was listed for recording of defendant evidence. Defendant examined himself as DW1 and relied upon documents Ex.D1W1/1 to Ex.D1W1/16.
15. Except this no other witness in defence has been examined and defendant's evidence was closed.
16. I have heard Ld counsels for the parties and have carefully gone through the record as well as written arguments filed by them.
Issue no. 1,2 & 5
17. Issue no. 1,2 and 5 are overlapping each other and the burden to prove issue no. 1 is on the plaintiff and burden to prove issue no. 5 is on the defendant no. 1. These issues are overlapping each other, therefore, disposed off by this common order.
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18. It may be noted that the defendant no. 1 had filed the written submissions on 22.02.2020 and, thereafter, ld. counsel for the plaintiff has filed the written submission dated 23.10.2020 on behalf of the plaintiff and, thereafter, defendant no. 1 filed supplementary written submission in response to the written submissions dated 24.11.2020 filed by the plaintiff. The plaintiff thereafter filed supplementary written submissions dated 10.12.2020.
19. The ld. Counsel for the plaintiff has raised the following contentions in support of his case namely :
i) That the first defence of the defendant no. 1 on the said agreement being not maintainable/enforceable falls flat on account of two judgments of the Hon'ble High Court of Delhi, in Tara Chand v.
Jaggi, 72(1998) DLT 505 and Vinod Singh, 2006 (87) DRJ 567 as relied upon by the plaintiff. In fact, Vinod Singh (supra) and the present case are based on almost identical facts in as much as as in both the suits the land was taken/acquired in terms of the DDA policy and alternative plots were offered.
ii) That for the other defence raised by the defendant no. 1 in respect of the forged/fabricated documents namely the said agreement and the said receipt, for that purpose, it is imperative to look into pleadings & evidence in order to make out a case whether the defendant no. 1 has been able to make out a valid defence or not.
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iii) That the plaintiff in his evidence by way of affidavit, was able to prove that Rs. 2,00,000/ was paid towards the sale consideration to the deceased at the time of execution of the said agreement, (Ex PW1/1) and further, after execution of the agreement, a consideration of Rs. 1,00,000/ & Rs. 1,75,000/, i.e. Rs. 2,75,000/, in total were again handed over to the deceased. The plaintiff also proved the flow of consideration between him and the deceased by examining the bank witnesses who duly proved Ex PW3/A. The said payments have not been disputed by the defendant no. 1 during the cross examination and no question had been raised by the defendant no. 1 controverting the same.
iv) That both the documents namely the said agreement, (Ex. PW1/1) executed by the deceased also was signed by the deceased and the receipt dt. 15.11.1997 (Ex. PW1/2) issued by the deceased and Hattam Singh jointly as an acknowledgment towards the sale consideration amount of the suit plot have been duly proved by plaintiff. However, defendant no. 1 with no evidence or cross examination questioned the veracity of the same. Plaintiff, in his evidence, has also proved the said agreement (Ex. PW1/1) between the parties and identified the signatures of the deceased and there is no crossexamination by defendant no. 1. The defendant no. 1 has admitted in his crossexamination that his uncle Hattam Singh has also sold his alternative plot to the plaintiff meaning thereby the defendant no. 1 has acknowledged the said receipt dated 15.11.1997 (Ex. PW1/2) in his crossexamination.
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v) That the plaintiff not only has identified his own signatures, on Ex. PW1/2 but also has identified the signatures of the deceased and his uncle Hattam Singh, in the agreement Ex. PW1/2 in as much as there is no crossexamination by the defendant no. 1 regarding the signatures appended by the deceased and Hattam Singh on documents Ex. PW1/2, Ex. PW1/3, Ex. PW1/5 & Ex. PW1/6, during his cross examination.
vi) That defendant no. 1 during the crossexamination of the plaintiff, has raised the question that "late Sh. Narain Singh being related to the plaintiff had given a loan of Rs. 1 lakh and that the plaintiff returned the same, allegedly", however, it was not based on his defense/pleas taken in the WS and thus, this defence was beyond pleadings and duly objected to during cross examination of the plaintiff. It is a settled law that the effect of non crossexamination is that the statement of witness has not been disputed and if no question has been put in reference to a particular point/fact to the witness, then the court would presume that the witness account has been accepted. In this regard, reliance is placed upon Muddasani Venkata Narsaiah (D) Through LRs v. Muddasani Sarojana (2016) 122 SCC 288.
vii) That the defendant no. 1 has raised an argument regarding the readiness & willingness of plaintiff only at the stage of final arguments, without any pleading in this regard, that the plaintiff was not ready or willing to perform the said agreement, therefore, this defence is not CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 11 of 68 available to the defendant no. 1, as such it is inadmissible. However, the plaintiff has specifically pleaded in pleadings & evidence that the plaintiff was ready and willing to perform the said agreement and is still ready and willing to perform his part of the said agreement but no question has been put to plaintiff in this regard by defendant no. 1.
viii) That on behalf of all the defendants, only defendant no. 1 filed his evidence by way of an affidavit and defendant no. 1 had tried to bring in evidence, which is beyond pleadings and an entirely new & contrary case was sought to be set up in his affidavit that plaintiff was a stranger to them. The evidence beyond pleadings ought to be disregarded. The defendant no. 1 had admitted the signatures of his uncle Hattam Singh on the said receipt Ex. PW1/2 issued by the deceased and his uncle Hattam Singh in favour of the plaintiff. The defendant no. 1 claimed plaintiff, to be a stranger to him, therefore, had allegedly not replied to the legal notice, despite admitting the service of notice upon him during his cross examination.
ix) The defendant no. 1 during the stage of crossexamination, was specifically asked about his computer skills as he had falsely raised certain doubts over the printouts of the said agreement and defendant no. 1 categorically admitted that he does not know anything about the computers. The defendant no. 1 on being asked then how could he alleged discrepancies in relation to the computer printout of the agreement, defendant no. 1 admitted the fact that it was informed to CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 12 of 68 him by his son and such hearsay evidence is not admissible in law in as much as the burden of proof lies on the person asserting any fact.
x) That the defendant no. 1 failed to explain the possession of documents, Ex. DW 1/PX1, DW 1/PX 2 and Mark DX1 because it was the plaintiff only who used to liaise and meet with the officials of the DDA for allotment of the alternative plot to the deceased. The defendant no. 1 only managed to give an evasive reply showing his oblivion regarding the identity of plaintiff contrary to his own statement detailed by the defendant no. 1 at para no. 5 of his affidavit, and defendant no. 1 could not give any plausible explanation of the discrepancy in such statements given during the cross examination and in evidence affidavit. The defendant no. 1 again evasively replied that he was not aware how the plaintiff had happened to be in possession of those documents.
xi) The right of getting an alternative plot accrues there and then when the acquisition of agriculture land of the deceased had taken place The recommendation issued by the land and building department is only an administrative process to intimate the DDA to allot a plot to the recommended individual. The recommendation letter issued by the Land and Building Dept. is for the DDA and the size of the plots of the eligible applicants are already fixed by a policy of 1961 so an agreement with/without recommendation does not make any difference as in both the cases there is an existing right of getting an allotment of plot by the DDA.
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xii) That the ld. counsel for the defendant no. 1 had relied upon judgment passed in Braham Singh v. Sumitra (2011) 182 DLT 350, wherein without appreciation of merits of the matter, it was observed that the plot not been allotted, therefore, there could not have been valid agreement in place. The mere observation made was in the context of deciding the application for interim injunction without commenting on the overall merits of the matter, and the said suit was withdrawn by the plaintiff in view of the settlement arrived between the parties vide order dt. 02.07.2014. Thus, the said matter was never decided on merits. On the contrary, the application of plaintiff for interim injunction had already been decided in favour of the plaintiff vide order dt. 22.06.2011 restraining the defendant from creating any third party interest in the suit property. The said judgments has been passed in ignorance to the earlier judgments of Vinod Singh (supra) & Tara Chand (supra), thus, to that extent, Braham Singh (supra) is per incuriam.
xiii) That the judgments which are relied upon by the defendant no. 1 have no relevance in as much as all the judgments pertains to the issue of readiness and willingness of the plaintiff, however, the said defence was never taken up by the defendant no. 1. Otherwise also, said judgments have also no relevance in as much as the said judgments are with regard to the party seeking specific performance, who either did not have sufficient money / or paid only a miniscule percentage of the total consideration and/or were found reluctant to CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 14 of 68 pay to the defendant and the readiness and willingness was specifically questioned in their respective facts.
xiv) The agreement to sell clearly depicts that the terms and conditions of work to be performed at the time of the allotment of the plot from the DDA and DDA had allotted the property to the defendant no. 1 on 05.02.2010 and when the said fact came to the knowledge of the plaintiff on 01.06.2010 he did not waste any time and sent a legal notice dt. 16.06.2010 to the defendant no. 1 for honoring the agreement and thereafter, without any delay, filed the present suit for specific performance on 02.07.2010.
xv) That plaintiff had issued notice to the defendant no. 1 to execute all the relevant documents in his favour and the defendant no. 1 despite receipt of the same did not respond as per his admission. The plaintiff has proved and established his readiness and willingness to perform his part, irrespective of the fact that the same was never raised as a defence by the defendant no. 1 either in his pleadings or evidence.
xvi) That the defendant no. 1 relied upon Sushil Jain v. Sh. Meharban Singh & Ors. MANU/DE/3870/2012, wherein the ratio of Jinesh Kumar Jain v. Smt. Iris Paintal (2012) ILR 5 Delhi 678, was taken into consideration, wherein it was observed that where 50% or more than that of the total consideration has been paid, the same tantamount to substantial act under Section 20(3) of the Specific Relief CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 15 of 68 Act and the courts may grant specific performance in favour of such plaintiff. In the present case at hand, the plaintiff has categorically established his readiness and willingness to perform the said agreement by paying 50% of the agreed consideration amount and thereafter, diligently pursuing the application for allotment of plot in the DDA. However, in the present suit the main defense of the defendant no. 1 is that the suit is based on forged and fabricated documents and lacks financial incapacity of the plaintiff to perform his part. The plaintiff had proved and established his readiness and willingness to perform the said agreement by paying 50% of the sale consideration and, thereafter, diligently pursuing the application for allotment of plot in the DDA which facts have been specifically pleaded in the pleadings and evidence. Moreover, it has been held by the Hon'ble Supreme Court that averment in plaint of readiness & willingness is sufficient for grant of a decree of specific performance.
20. ld. Counsel for plaintiff filed additional written submissions and has contended that the defendant no. 2 and 3 filed their written statements but neither actively participated/contested the case nor have they filed their evidence affidavit/cross examined any of the witnesses of the plaintiff. It is further submitted that the plaintiff has duly proved the flow of consideration in terms of the said agreement by calling the bank executive as plaintiffs witness as well. It is further contended that in civil trial, there is no need of suggestions to be given as tried to be emphasised, therefore, the referred suggestions are of no relevance.
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21. It is submitted that the defendant no. 1 never ever raised the plea of readiness and willingness in his pleading and/or during the stage of evidence/cross examination of the plaintiff and no issue was ever framed regarding the readiness and willingness of the plaintiff. However, the conduct of the plaintiff from 1997 to 2010 is sufficient enough to prove his readiness and willingness to perform his part of the said agreement in as much as the plaintiff had already paid 50% of the total sale consideration in 1997 itself, for purchasing the right of allotment of alternative plot in lieu of the acquired land. Plaintiff had taken a huge risk by paying 50% of the total consideration amount in 1997 and instead, it seems that the same may have further been invested by the deceased in 1997 in some other property/investments for exponential profit. It is not a case where a meager amount has been paid by plaintiff, rather it is a case where plaintiff has paid 50 % of the total sale consideration in 1997 and continued to pursue his part of the contract which can be easily demonstrated with the fact that, without wasting any time, the plaintiff issued the legal notice dated 16.06.2010 & when, there was no response as the defendant no. 1 evaded his part of contractual obligations, filed the present suit for specific performance on 02.07.2010, when it came to the knowledge of the plaintiff on 01.06.2010 when he visited the DDA office, that on 05.02.2010, the plot had been allotted to the defendant no. 1. It can easily be construed as the plaintiff was and is still ready and willing to perform his part under the said agreement. In this regard reliance is placed upon Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 17 of 68 (Dead) Thr. LRs and Ors., (2019) 14 SCC 220 and Sushil Jain(supra) and Jinesh Kumar Jain (supra).
22. It is submitted that the plaintiff has stated in the plaint, that the said agreement was entered for sale of ownership rights of allotment of alternative plot by the Land & Building Department, Delhi under the allotment of alternative plot scheme against the acquisition of agriculture land. Such a plea is not beyond pleading and forms part of the suit filed by the plaintiff and judgment Vinod Kumar Arora v. Surjit Kaur, 1987 (3) SCC 711 is not applicable to the facts of the present case.
23. In rebuttal, ld. counsel for defendant no. 1 has contended that the case of the plaintiff no.1 is that the deceased had some agricultural land which was acquired by DDA and the deceased had applied with land and building department for recommendation/allotment of alternative plot. The deceased entered into the said agreement with plaintiff for sale of ownership rights of alternative plot to be alloted by Land & Building Department for total sale consideration of Rs. 9,50,000/ and plaintiff had paid Rs. 4.75 lakhs by way of cheque and cash to the deceased and the balance sale consideration of Rs. 4.75 Lakhs was payable at the time of handing over of possession of the suit plot alongwith execution of transfer documents but such allotment of the suit plot owing to death of the deceased and his wife, got delayed and could not be processed.
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24. It is further contended by ld. counsel for defendant no. 1 that as per pleadings of plaintiff, plaintiff no. 1 came to know that on 05.02.2010 that DDA had recommended allotment of the suit plot to the defendant no. 1 being legal heir of the deceased. The defendant no. 1 as per said agreement is bound to transfer the suit plot to plaintiff no. 1 and despite issuance of legal notice dated 16.06.2010, defendant no. 1 did not comply with and hence the suit is filed.
25. It is contended that plaintiff no. 2 has no locus standi to file the suit as he is not party to the agreement to sell. The deceased has no right in the suit plot in as much as no plot was in existence on the date of execution of the said agreement and, therefore, suit for specific performance is not maintainable. The suit for specific performance filed after about thirteen years of execution of the agreement to sell, being against public policy is barred by limitation. The suit is based on forged and fabricated documents as the deceased did not execute the said agreement in favour of plaintiff. The first page and second page and third pages of the said agreement being printed on different dates using different printers, therefore, forgery is writ large in the said agreement. There are discrepancies in the said agreement and the said receipt, therefore, suit is filed on the basis of forged documents and claim being fraudulent is to be dismissed.
26. It is further contended that the issue no. (iv) that suit is not maintainable for the reasons given by the defendant no. 1 in his written statement has been framed and perusal of the plaint depicts that the CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 19 of 68 suit was filed by plaintiff no. 1 alone and plaintiff no. 2 became party on his filing of application under Order I Rule 10 CPC on account of no objection given by defendant no. 1 in terms of the order dated 10.12.2012, but admittedly the plaint depicts that suit seeking specific performance of the said agreement bears signature of plaintiff no. 2/ Sh. Gulshan Arora as witness to the said agreement. The defendant no. 1 specifically stated that "from the pleadings on record, said Gulshan Arora appears to be an alien to the proceedings" and there is bald denial by the plaintiff no. 1 in replication, therefore, there is deemed admission by the plaintiff no. 1 of the said averment of defendant no. 1. The suit for specific performance is not maintainable at the instance of plaintiff no. 2.
27. It is contended that the suit of plaintiff no. 1 seeking specific performance of the said agreement is liable to be dismissed in as much as plaintiff no. 1 has not proved due execution of the said agreement which is sine qua non for grant of decree of specific performance. In this regard, reliance is placed upon Mayawati v. Kaushalya Devi, (1990) 3 SCC 1.
28. The suit for specific performance cannot be decreed on the sole testimony of plaintiff in as much as it is not enough to prove execution of the said agreement by plaintiff only, when no other witness was examined by plaintiff. In this regard reliance is placed upon Lakshmi Sreenivasa Cooperative Building Society v. Puvvada Ram, 2018 (9) SCC 251.
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29. It has been contended that when execution of the said agreement is denied by defendant no. 1, therefore, onus of proof to prove due execution of the said agreement is on the plaintiff by summoning the witness to prove the document and in absence of the same, the document cannot be said to be proved and no specific performance can be granted. In this regard, reliance is placed upon RVE Venkatchalam v. B.A. Devaneshan and Ors., 2015 SCC Online Madras 1233.
30. It has been contended that in the suit for specific performance, burden lies on the plaintiff to prove that parties were consensus ad idem for the concluded agreement to sell and court has to keep in mind that as per Section 20 of Specific Relief Act, it is not bound to grant specific performance merely because it is lawful to do so, when the agreement is disputed and denied, plaintiff has to seek opinion of an expert regarding the execution of the documents. It is the case of the plaintiff no. 1 that the deceased had executed the said agreement in his presence, however, on the date of filing of the suit, the deceased not alive as he had already expired on 06.03.2001. Defendant no. 1 has in para 9 of preliminary submissions as well as in para 2 of reply on merits of his written statement specifically denied execution of the said agreement by the deceased. Onus of proof to establish due execution of the said agreement was on the plaintiff no.
1. In this regard, reliance is placed upon K Nanjappa v. R.A. Hamid and Ors., 2016 (1) SCC 762.
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31. It is contended that the even the defence of the defendant no. 1 is categoric in respect of the aforesaid fact that the deceased has neither executed the said agreement and its pages are having been printed with different printers which fact is also substantiated in evidence of DW1, and there is no explanation by the plaintiff no. 1 at all about the same. This aspect also went against due execution of the said agreement. The witness was not cross examined on this issue and if there was no specific denial in the replication to the specific averment in the written statement, the fact has to be taken as deemed admission as per Section 58 of Indian Evidence Act. In this regard, reliance is placed upon Gurjinder Singh v. Paramjit Kaur & Anr. 2015 SCC Online P&H 19178.
32. It is contended that the said receipt depicts that parties have agreed to sell the suit plot on 15.11.1997 i.e. the same date as the date of execution of the said receipt and perusal of replication shows that there is no specific denial by the plaintiff no. 1 to the above averment in the written statement. Thus, plaintiff no. 1 deemed to have admitted that the said receipt but the suit was filed for specific performance of the said agreement dated 08.05.1997, therefore, there was no execution of the said agreement to sell and plaintiff no. 1 did not produce any agreement to sell dated 15.11.1997.
33. It is contended that the defendant no. 1/DW1 denied execution of the said agreement and perusal of cross examination of DW1 shows that not even a single question was put to DW1 in this CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 22 of 68 regard, therefore, the same is deemed to have been admitted by plaintiff. In this regard, reliance is placed upon State of UP v. Nahar Singh, AIR 1998 SC 1328 wherein it has been held that in the absence of cross examination of witness on particular aspect in his evidence by way of affidavit, same ought to be accepted as correct. Reliance is placed upon Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., 1957 SCC OnlineP&H 177 and A.E.G. Carapiet v. A.Y. Derderian 1960 SCC Online CAL 44.
34. It is further contended that plaintiff was bound to prove a concluded and binding agreement, more so when defendant no. 1 denied the execution of the said agreement by the deceased and there existed inherent contradiction in the said agreement, but except leading his own evidence, plaintiff did not lead evidence of witness/plaintiff no. 2/Mr. Gulshan Arora. Plaintiff no. 1 knowing fully well that non execution of said agreement but did not call plaintiff no. 2, therefore, plaintiff no. 1 withheld his best witness and, therefore, adverse inference is to be drawn against plaintiff no. 1. Plaintiff no. 1 did not take any effort to get any expert opinion regarding handwriting of the deceased on the said agreement, therefore, plaintiff no. 1 himself examined as PW1 but he being an interested witness as such his evidence was not sufficient to prove due execution of the said agreement. In this regard reliance is placed upon, Lakshmi Sreenivasa Cooperative Building Society (supra) & RVE Venkatchalam (supra) & K Nanjappa (supra).
CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 23 of 68
35. It is further contended that the said agreement is in respect of an unidentifiable property and there cannot be specific performance of the said agreement in as much as the said agreement would demonstrate that the same described the property to be sold "as ownership rights of allotment of alternative plot to the second party"
and there is no description in the said agreement either of the alternative plot or the details to the plot to be allotted or area of the alternative plot to be allotted or details of plot against which alternate plot was to be allotted. Thus, the said agreement is in respect of an unidentifiable property and there cannot be any specific performance of the same. In this regard reliance is placed upon Nahar Singh v. Harnak Singh & Ors. 1996 (6) SCC 699, wherein it has been held that there cannot be any specific performance of the said agreement, wherein property is not identified by particular description. If the property itself cannot be identified in the said agreement, relief of specific performance cannot be granted. In this regard reliance is placed on Pawan Kumar Dutt v. Shakuntla Devi, 2010 (15) SCC 601 ; S.K. Chhabra v. Manmeet Kaur 2014 SCC Online Del. 1393.
36. It is contended that the Hon'ble Delhi High Court Delhi while dealing with identical facts wherein the suit of specific performance was sought on the agreement to sell but there was no specific plot of land allotted to the defendants by the time of execution of the said agreement, has held that in view of the subject matter of the agreement being incapable of identification at the time of the execution of the said agreement, the same does not constitute a valid CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 24 of 68 and concluded contract for sale of immovable property. In this regard reliance is placed upon Braham Singh v. Sumitra 2011 (182) DLT
350. Thus, the property to be sold in the alleged agreement to sell in the present case being incapable for identification on the date of agreement to sell, there is no valid and concluded contract for sale of a immovable property to the plaintiff and as such there cannot be specific performance of the said agreement and suit is liable to be dismissed on this ground.
37. It is further contended that the plaintiff had relied upon the judgments i.e. Tara Chand (supra), Vinod Singh (supra) in order to state that specific performance of agreement which does not identify property is permissible, however, the ratio of both the said judgments is not applicable to the facts of the present case. In the above fact, it is evident that the said agreement in the present case being in respect of nonidentifiable property, there cannot be any specific performance of the same.
38. It is further contended that suit is liable to be dismissed in as much as plaintiff had not complied with the mandatory requirements of Section 16 (c) of the Specific Relief Act, 1963. The section 16(c) of the Specific Relief Act, 1963, inter alia, provides that specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the agreement which are to be performed by him. The plaintiff no. 1 has not filed on CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 25 of 68 record any document to demonstrate his financial capacity right from the date of said agreement till the date of filing of the suit in July, 2010. Though PW1 during his cross examination admitted that he had retired from the Government services and in the year 1997, perhaps he was drawing salary of Rs. 20,000/ while working as Pump Operator with Delhi Jal Board yet no document has been filed by him to show his financial capacity right from the date of the said alleged agreement till filing suit in July, 2010 to pay alleged balance sale consideration. The plaintiff has not been able to prove his readiness/continued financial capacity to perform the said agreement, therefore, plaintiff has not satisfied the mandatory requirement of Section 16 (c) of Specific Relief Act therefore, not entitled to relief of specific performance. In this regard reliance is placed upon N.P. Thirugnanam (D) by LRs v. Dr. R. Jagan Mohan Rao & Ors., AIR 1996 SC 116, Ritu Saxena v. J.S. Grover & Anr. 2019(9) SCC SCC 132, Sarabjeet Singh v. Anup,Sharma & Ors., 2016 (231) DLT 414, Sushil Jain v. Meharban Singh & Ors. MANU/DE/3870/2012, Rahat Jain v. Hafiz Mohammad Usman (D) Through LRs, MANU/UP/0240/1983.
39. It is further contended that the plaintiff has alleged to have paid Rs. 4.75 lakhs in terms of Ex. PW1/1 to Ex. PW1/2 out of the total sale consideration of Rs. 9.50 lakhs and so entitled to specific performance, however, the said plea is totally merit less in as much as no identifiable property is detailed in the said agreement and no continued capacity to pay in terms of the said agreement itself being CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 26 of 68 not proved as per law, so there cannot be specific performance. In addition to it, the said receipt depicts that same is in respect of alleged agreement dated 15.11.1997 and same does not refer to the said agreement, therefore, the amount detailed in said receipt did not add to the amount allegedly paid under the said agreement. The receipt depicts that amount of Rs. 9.50 lakhs was received by Hattam Singh and not by the deceased and even the said receipt dated 15.11.1997, contains the details of payment of Rs. 1 lakhs in cash and as per own allegation of PW1 he had paid Rs. 1.75 lakhs between the date of said agreement dated 08.05.1997 and said receipt dated 15.11.1997 but there is no document to evidence the same. Plaintiff no. 1 was under duty to prove the payment of Rs. 4.75 lakhs as 50% alleged payment but he could not prove the same by any evidence. The said agreement to sell as well as the said receipt was denied by the defendant no. 1 but plaintiff did not led any evidence as per law to prove the same and therefore said alleged documents are of no help to plaintiff.
40. The defendant no. 1 in the supplementary written submission has raised the following contentions:
i) the plaintiff has alleged that defendant no. 1 in his written statement did not raise any defence other than the defence that suit for specific performance filed by plaintiff is based on forged and fabricated documents and thus said agreement was not enforceable.
However, the said allegation of the plaintiff is against record in as much as defendant no. 1 has raised many other defence in his written CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 27 of 68 submissions which are detailed in para no. 3 of the written submissions dated 22.02.2020.
ii) the plaintiff has alleged in para no. 10 of the written submissions dated 23.10.2020 that defendant no. 2 and defendant no. 3 in the written statement have supported the case of the plaintiff. However, the said allegation is against the record in as much as defendant no. 2 and defendant no. 3 instead of supporting the case of the plaintiff sought dismissal of the suit.
iii) The plaintiff has alleged that the said agreement is not enforceable, however, the said contention falls flat in view of the law laid down in judgment Tara Chand (supra) and Vinod Singh (supra). However, those judgments has no relevance to the facts of the present case in as much as in Tara Chand (supra) and Vinod Singh (supra) the said plot was already stood allotted with particulars of the vendor whereas, the suit plot was not in existence as detailed in the said agreement.
iv) The plaintiff alleged that the part payment of sale consideration of ₹ 2 lakhs in terms of the said agreement and ₹ 2.75 lakhs, thereafter, paid to the deceased and acknowledged in receipt Ex. DW1/2, has not been disputed by defendant no. 1, however, suggestion was given to PW1 in this regard in his crossexamination dated 18.09.2007 and, thereafter, in the cross examination of PW1 on 24.07.2018 which were denied by plaintiff. Therefore, the allegations CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 28 of 68 of alleged payment by plaintiff to the deceased have been specifically disputed and denied by defendant no. 1.
v) that plaintiff has alleged in the written submissions dated 23.10.2020 that PW1 has proved the said agreement and identified the signature of the deceased and defendant no. 1 has not questioned the plaintiff in this regard. However, specific suggestion was put to PW1 in his crossexamination dated 24.07.2018 that deceased has not entered into the said agreement with plaintiff no. 1 and plaintiff no. 1/PW1 has denied the suggestion.
vi) The defendant no. 1 has disputed the execution of the said agreement and plaintiff no. 1/PW1 being interested party could not prove the execution of the said agreement in view of the denial of the same by defendant no. 1 and plaintiff was required under law to examine the witnesses as per the dicta of judgment relied upon by defendant in his written submissions. Plaintiff alleged that defendant has raised the argument regarding readiness and willingness of the plaintiff at the stage of arguments and on the other hand the plaintiff should have pleaded in his pleading and arguments about his readiness and willingness to perform his part of the agreement and no question was put to PW1 in this regard. The above said allegations of plaintiff are without merits in as much as the defendant no. 1 has relied upon the case law which mandates that it is for the plaintiff to establish his readiness and willingness through out from the date of entering CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 29 of 68 into the agreement to sell till the filing of the suit which plaintiff failed to do.
vii) The plaintiff was put a specific question in his crossexamination dated 24.07.2018 that he has no financial capacity to pay the amount of ₹ 4.75 lakhs and still no documents has been filed by the plaintiff to prove the same therefore, the defendant no. 1 has duly disputed the readiness and willingness of the plaintiff to perform his part of the agreement.
viii) The defendant has raised the question regarding the discrepancy in the said agreement regarding page no. 1, 2 and 3 in terms of the para no. 6 of the affidavit of evidence of DW1, therefore, the deposition cannot be said to be hearsay and inadmissible.
ix) Plaintiff has alleged that the defendant no. 1/DW1 could not give any plausible explanation as to how the plaintiff happened to be in possession of the relevant document in respect of the suit plot, however, the said documents are posterior to the execution of the said agreement, therefore, the said letters did not lead to conclude that the said agreement is proved as per law. The marked document DX1 cannot be read being not exhibited and further DW1 disputed the same by saying that the deceased in the year 1991 was unable to sign. DW1 also testified that the deceased knew plaintiff no. 1 in terms of the money/loan transaction between the deceased and plaintiff.
CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 30 of 68
x) The plaintiff has alleged that right to get alternative plot accrued when the acquisition of agricultural land has taken place and size of the plot of the applicant is also fixed by the policy of 1961 so an agreement to sell without the recommendation does not make any difference as in both the cases where there is an existing right with the deceased in getting the alternative plot by the DDA. However, no such plea has been taken by plaintiff in his pleadings based on the alleged policy of 1961, therefore, the said new plea altogether could not be considered in the absence of pleadings as per the law laid down in Vinod Kumar Arora (supra). There was no existing right in favour of the deceased to get allotted a particular size of land in a particular area, therefore, the said agreement did not contain any detail of identification of the identifiable property as there was no recommendation on the date of execution of the said agreement of any identification of the property.
xi) It is alleged by plaintiff that the Hon'ble High Court while disposing of the judgment Brahm Singh v. Sumitra (2011) 182 DLT 350 has not considered the ratio of judgment passed in Tara Chand (supra) and Vinod Singh (supra), therefore, Brahm Singh (supra) is per incuriam. However, the said contention is having no force in law in as much as when the judgments are rendered in different factual context i.e. regarding the ratio in the earlier case, cannot be said to be per incurium decision. In this regard reliance is placed upon Mega Technical & Engineers Pvt. Ltd. V. Union of India WA no. 333/2010 judgment passed by Hon'ble High Court of Gauhati.
CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 31 of 68
xii) Plaintiff has alleged that as per the ratio of Jinesh Kumar Jain (supra) plaintiff having paid 50% sale consideration and where 50% or more total sale consideration has been paid the same tantamount to substantial act under section 20(3) of the Specific Relief Act and the court may grant specific performance and the plaintiff has established readiness and willingness to perform his part of the said agreement by making the payment of 50% of the sale consideration and, thereafter, pursuing the application for allotment. However, the plaintiff has mis quoted the ratio of the said judgment by not referring to the other paras of the said judgment.
xiii) the plaintiff has not proved that he has paid 50% of the total sale consideration, therefore, the plaintiff failed to prove his readiness and willingness to perform his part of the agreement.
xiv) The plaintiff has allegedly pleaded that as per the ratio of Chennadi Jalapathi Reddy (supra) averments in the plaint of readiness and willingness is sufficient for grant of decree of specific performance, however, the said observation has not been made in as much as the Hon'ble Supreme Court in para no. 25 has observed as under :
"Be that as it may, we are satisfied from the evidence that plaintiff was having sufficient money to pay the balance consideration to the defendant and the plaintiff was ready and willing to perform his part of the contract. Therefore, the plaintiff must show that he has sufficient money to pay CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 32 of 68 the balance sale consideration to the seller so as to infer that the plaintiff was having readiness and willingness to perform his part of the contract."
41. Plaintiff to prove its case appeared as PW1 and testified through his affidavit by way of evidence Ex. PW1/A and reiterated the contents of the plaint which are not reproduced for the sake of brevity, however, plaintiff/PW1 testified that he entered into the said agreement exhibited as Ex. PW1/1 on 08.05.1997 for purchase of the suit plot which was to be allocated to the deceased and paid part payment of ₹ 4.75 lakhs i.e. 50% of the total sale consideration of 9.5 lakhs by way of cheque and cash to the deceased. The deceased in the presence of plaintiff no. 2 had put his signature on the said receipt acknowledging the payment of 50% of the sale consideration of the suit plot. However, the suit plot was allocated to the deceased on 05.02.2010 and the said fact came to the knowledge of PW1 on 01.06.2010 and he immediately issued letter Ex. PW1/3 to the defendant to comply with the terms and conditions of the said agreement. Thereafter, he issued legal notice dated 16.06.2010 Ex. PW1/4 requesting defendant no. 1 to execute sale deed in his favour.
42. In crossexamination, PW1 admitted that in the year 1997, he was working as pump operator and drawing a salary of about ₹20,000 per month and the deceased is related to him. The deceased offered him to purchased the suit plot, which was yet to be allotted in his name from the DDA in lieu of acquisition of agricultural land. He admitted that on 08.05.1997 when the said agreement Ex. PW1/1 was CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 33 of 68 executed, the suit plot was not in existence in the name of the deceased. He denied the suggestion that the first, second and third pages of the said agreement were prepared on different date and time by different persons. He had paid ₹ 2 lakhs to the deceased at the time of execution of the said agreement on 08.05.1997, and thereafter, PW1 paid a sum of ₹ 1 lakh to the deceased in November 1997 and further paid an amount of ₹ 1.75 lakhs to the deceased in between May 1997 to November 1997. This amount was paid in cash.
43. It is further testified that plaintiff no. 2 has given the cheque of ₹ 1 lakh to the deceased on his behalf on 08.05.1997 at the time of execution of the said agreement. He denied the suggestion that the deceased has given an amount of ₹ 1 lakh as loan and he has returned the said loan to the deceased through the said cheque. He has given ₹ 1 lakh cash to the deceased on 08.05.1997. The receipt Ex. PW1/2 was issued to him by the deceased and after the death of the deceased he met the sons of the deceased who assured him that as and when the suit plot will be allotted to them by DDA, they will hand over the suit plot to PW1. He had paid an amount of ₹ 4.75 lakhs to the deceased and plaintiff no.2 has paid an amount of ₹ 4.75 lakhs to Hattam Singh. He testified that he has paid ₹ 1 lakh in cash and ₹ 1 lakh by way of cheque at the time of execution of the agreement Ex. PW1/1 on 08.05.1997, thereafter, PW1 paid ₹1 lakh on execution of the receipt Ex. PW1/2 on 15.11.1997 and the remaining amount of ₹ 1.75 lakhs he has paid to the deceased in between the date of the CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 34 of 68 execution of the agreement and the date on which receipt Ex. PW1/2 was executed.
44. Defendant appeared as DW1 and testified through his evidence affidavit Ex. DW1/A and reiterated the contents of the written statement, which are not reproduced for the sake of brevity, and, interalia, testified that at the time of execution of the said agreement, the suit plot was not in existence, therefore, the plaintiff has sought the execution of nonexisting immovable property which is not permissible under law. The deceased had neither executed the said agreement nor the said receipt in his favour in respect of the suit plot. The plaintiff is seeking the specific performance of the said agreement in the year 2010, however, he never had any correspondence during the interregnum with the defendant no. 1/D1W1 of any such agreement. The said agreement having first page printed by using the old dotmatrix printer, whereas, the page no. 2 and 3 of the said agreement are printed by using a different printer. The said agreement and the said receipt are having many discrepancies regarding date of execution of the same as the alleged receipt is dated 15.11.1997 and the said agreement detailed in the said receipt is bearing date as that of 15.11.1997, whereas, the said agreement was allegedly executed on 08.05.1997. DW1 stated that the amount of 4.75 lakhs was never received by the deceased in respect of the sale price of the suit plot.
45. DW1 in crossexamination admitted that the deceased was well educated and completed his graduation and Hattam Singh is CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 35 of 68 his uncle and Hattam Singh was allotted the plot in lieu of acquisition of his agricultural land and the same was sold to the plaintiff about 12 15 years of the allotment of the suit plot to Hattam Singh. DW1 admitted that he made the payment to the concerned department after the death of the deceased. He only know a little bit about the computer but he has no formal knowledge and education of the same and his son has informed him regarding the particular terms used "the computer printer dotmatrix". When DW1 confronted with para no. 5 of his affidavit by way of evidence from point A to A that plaintiff used to meet the deceased for the purpose of carrying out the allocation and expediting the allotment of alternative plot whereas, in cross examination DW1 admitted that he did not know plaintiff and he has no knowledge as to how the document Ex. DW1/PX1 and DW1/PX2 happened to be in possession of plaintiff no. 1. DW1 thereupon admitted that plaintiff no. 1 was known to the deceased but DW1 has never met the plaintiff no. 1 and he did not know how the said document happened to be in possession of plaintiff no. 1. He admitted that there is no correspondence written by DW1 to the DDA or by the deceased to DDA is on record.
46. First of all, I will take up the issue no. 5 in as much as enforceability of the said agreement Ex. PW1/1 is the basic edifice on which the plaint is built up by the plaintiff and evidence has been lead. It is argued by ld. Counsel for the plaintiff that in the said agreement it is specifically mentioned as the suit plot, its size and location thereof, therefore, the suit plot is are identifiable as per the policy of 1961 CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 36 of 68 issued by the DDA for allotment of plot in lieu of the acquisition of the agricultural land of the deceased and such a plea itself has been approved by the Hon'ble High court in Tara Chand (supra) and Vinod Singh (supra).
47. It is argued by counsel for defendant no. 1 that the suit plot has never been identified by DDA till issuance of the allotment letter in 2006 and the allotment of the same in the year 2010, to defendant no. 1, therefore, at the time of execution of the said agreement, the suit plot being not identifiable property would not be the subject matter of the said agreement to sell in view of the mandate of law laid down by the superior courts in Braham Singh (supra) and Satish Kumar (supra).
48. In this regard it may be noted that in Brahm Singh (supra) in para no. 6 it has been observed as under:
"6.The agreement, alleged to have been executed by defendant No. 1 in favour of the plaintiff on 20.09.2006, does not identify and in fact could not have identified the property subject matter of the agreement for the simple reason that no plot of land had been allotted to the defendants by that time. At the time this agreement is alleged to have been executed in favour of the plaintiff, it was not known in which colony plot would be allotted to the defendants, when the allotment would take place what would be the size of the plot and which particular plot would be allotted to the defendants. Therefore, the property, subject matter of the agreement, was incapable of identification at the time the agreement is alleged to have been executed. It is, therefore, difficult to deny that the agreement dated 20.09.2006, does not constitute a CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 37 of 68 valid and concluded contract for sale of an immovable property to the plaintiff."
So is the ratio of Nahar Singh (supra) Pawan Kumar Dutta (supra) and S.K. Chhabra(supra).
49. So far as the ratio of Vinod Singh (supra) is concerned a perusal of para no. 2 and 3 of the said judgment depicts that in the said judgment prior to execution of agreement to sell dated 02.05.1996, DDA has allotted the plot bearing no. 37 admeasuring 333 sq. yards, sector 10 Dwarka on residential scheme, Dwarka, New Delhi through letter dated 12.01.1996 and therefore, on the date of execution of the agreement to sell in the said judgment, the suit property which was the subject matter of the suit (therein) was clearly identifiable property in existence as subject matter of the agreement to sell, so there was no issue of the subject matter of the agreement to sell being an unidentifiable property on the date of execution of the agreement to sell, therefore, the ratio of the said judgment is clearly distinguishable from the ratio of the present case.
50. So far as the judgment Tara Chand (supra) is concerned, in para no. 1 of this judgment it has been observed that through letter dated 08.10.1992 DDA had recommended for allotment of the alternative land admeasuring 400 sq. yards before execution of the agreement to sell dated 05.07.1995 in the suit (therein) whereas, in the present case the said agreement did not disclose the identification of the suit plot yet to be alloted and sold through the said agreement, CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 38 of 68 therefore, the ratio of Brahm Prakash (supra) is clearly distinguishable from the ratio Tara Chand (supra) and Vinod Singh (supra). There is no dispute regarding the law laid down in Deepa Sarma (supra) and ONGC Petro Additions Limited (supra) regarding the ratio of the judgment passed incuriam without taking into consideration the law laid down by the judgment passed by the coordination bench, therefore, it cannot be said that Braham Prakash (supra) is per incuriam.
51. There is no dispute about the ratio of the said judgments, however, as stated above the ratio of Tara Chand (supra) and Vinod Singh (supra) are not found applicable to the facts of the judgment Brahm Prakash relied upon by the defendant no. 1, therefore, there is no applicability the ratio of law laid down in Tara Chand (supra) and Vinod Singh (supra). It may also be noted that in Satish Kumar V. Karan Singh, 2016 (4) SCC 352 the Hon'ble Supreme Court has after taking into consideration the ratio of Mayawanti (supra) has held that plaintiff has to establish the valid and enforceable agreement to sell and the relief of specific performance was declined by making observation that on the date of the agreement to sell plot was yet to be allotted and further the lease deed provided, for non disposal of the said plot for 10 years and the relevant portion of Satish Kumar (supra) is reproduced as under :
"4. The plaintiff's case in the plaint is that a decision was taken by the Delhi Development Authority for allotment of a plot of land measuring 400 Sq.yds. in favour of the defendantrespondent. It was pleaded that in the year CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 39 of 68 1995 the defendant had desired to sell his right in the said recommendation letter which was to be allotted by the DDA in favour of the defendant. It was further pleaded that the defendant agreed to sell his right in the aforesaid recommendation letter and the plot to be allotted at a price of Rs.4,60,000/.
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6. During the pendency of the suit in the trial court the original defendant who was an old person died and his legal representative was substituted. The original defendant as also the legal representative contested the suit denying and disputing the alleged receiptcum agreement and stated that no decree for specific performance can be passed. The trial court held that the receiptcumagreement is a legal and valid agreement to sell and shall be enforced by passing a decree for specific performance. The High Court on the basis of evidence adduced by the parties affirmed the finding recorded by the trial court.
7. Prima facie, we are of the view that both the trial court and the High Court have completely failed to consider the provisions of Specific Relief Act and the principles laid down by this Court in catena of decisions as to the requirement of law for passing a decree for specific performance.
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11. In the instant case both the Trial Court and the High Court have completely overlooked and failed to appreciate the following facts:
(a) The receipt + agreement dated 6.1.1995 is a document by which the defendant alleged to have received a sum of Rs.2,30,000/ against the alternative plot in question which CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 40 of 68 the DDA recommended to give to the defendant. The said plot will in turn will be given by the defendant to the plaintiff after a lease was executed in favour of the defendant by the DDA;
(b) The total premium amount settled by the said agreement in respect of the plot was Rs.4,60,000/ whereas the defendant deposited a sum of Rs.8,13,389/ with the DDA for the allotment of the said plot;
(c) The plaintiff pleaded in his plaint that the defendant had agreed to sell his rights in the recommendation letter and the plot to be allotted thereunder to the plaintiff for a consideration of Rs.4,60,000/;
(d) Although the right to get the plot was agreed to be sold to the plaintiff by the defendant for Rs.4,60,000/ but the suit was valued at Rs. 6,77,262.75p. being the rate fixed by the DDA.
12. On the basis of these admitted facts the Trial Court erroneously held that the receiptcumagreement is an enforceable contract and on that finding decreed the suit which was affirmed by the High Court.
13. It is interesting to note that the High Court has noticed the fact mentioned in para 24 of trial court judgment that during the pendency of the lis DDA allotted the plot in question in favour of the deceased father of the defendant (original plaintiff) by executing a lease deed putting a condition that the plot in question will remain non transferable for a period of ten years. Para 24 of the trial court judgment is quoted herein below: "It is stated on oath by Umed Singh (DW1) that the DDA allotted plot in dispute to his deceased father on certain terms and conditions, which were embodied in the lease deed. One of such conditions was that suit will remain non transferable for a period of ten years.
CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
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14. In spite of the aforesaid fact noticed by the High Court, that the land so allotted to the defendant is not transferable for a period of 10 years, the High Court failed to hold that a decree for specific performance cannot be passed."
Therefore, from the above discussion it can be safely concluded that the suit plot was not identifiable property so as to be subject matter of transfer by way of said agreement Ex. PW1/1.
52. Now the question arises as to whether the said agreement and the said receipt, through which the suit plot was allegedly transferred by deceased in favour of plaintiff is proved as per law.
53. It may be noted that counsel for plaintiff has argued that plaintiff has proved the said agreement Ex. PW1/1 and the said receipt Ex. PW1/2 being legally admissible in evidence. Defendant has argued that the said agreement and the said receipt have not been duly proved in as much as except the sole testimony of PW1, neither plaintiff no. 2, who happened to be the attesting witness of the said agreement and the said receipt, has been examined despite availability, for the reasons best known to plaintiff no. 1. Therefore, in the absence of any evidence of the attesting witnesses or of the corroborative evidence of the handwriting expert that the said agreement bear the signature of the deceased, it may be presumed that the plaintiff has failed to prove the said agreement and the said receipt.
CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
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54. In this regard it may be noted that admittedly plaintiff as PW1 has proved the said document as Ex. PW1/1 and so is the case with receipt Ex. PW1/2. The defendant no. 1 has denied the execution of the said agreement and the said receipt being not bearing the signature of the deceased. There is no dispute to the law relied upon by learned counsel for the defendant no.1 in as much as in R.V.E Venkatachalam (supra) in para no. 56 and 57, it has been observed as under:
"56. That apart, to prove the sale agreement, no witness has been examined by the plaintiff. The admitted and the disputed signatures of the first defendant were sent to the handwriting expert for comparison. Though the handwriting expert, in his report, has stated that there is no dissimilarity in the signatures, it is not sufficient to prove the case of the plaintiff when all other evidences are against the plaintiff and the fourth defendant.
57. When the defendants denied the very execution of the sale agreement, it is the bounden duty of the fourth defendant and the plaintiff as well to prove that the sale agreement is not a forged one by examining the independent witnesses or the witnesses signed in Ex.A2 and it is the burden of the fourth defendant and the plaintiff to discharge, but that burden has not been discharged in the manner known to law, which is fatal to the case of the plaintiff."
55. In K. Nanjappa (supra), it was observed that heavy burden lies on the plaintiff to prove that parties were consensus ad idem for the concluded agreement to sell and if agreement to sell is denied the plaintiff has to seek opinion of an expert regarding the execution of the documents. So is the ratio of Lakshmi Sreenivasa CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 43 of 68 (supra) that the sole testimony of plaintiff was insufficient to prove execution of agreement to sell when independent witness has not been examined by plaintiff. In the same manner in RVE Vankatachalam (supra) it was observed that when the execution of agreement to sell is denied, onus of proof to prove due execution of agreement to sell is on the plaintiff by summoning the witness to prove the document and in the absence of the same, the document cannot be said to have been proved.
56. A bare perusal of the ratio of these judgments clearly depicts that the agreement is to be proved either by the independent witnesses in the presence of whom the parties has appended their signatures and executed the agreement or there should be at least opinion of the handwriting expert which is in the nature of corroborative evidence to substantiate that the agreement bear the signature of the executant.
57. Before proceeding further, I would like to deal with the other contentions raised by ld. counsel for defendant no. 1. During the course of the argument it is the contention of the counsel for defendant no. 1 that there is no denial on behalf of the plaintiff in the replication, of the pleadings filed by defendant no. 1 especially in para no.2 of the written statement and para no. 11 of the preliminary objections of the written statement regarding the said agreement and para no. 11 is reproduced as under :
CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 44 of 68 "A mere perusal of the purported agreement to sell betrays forgery/fabrication. The first page of the purported agreement was printed using old dot matrix printer and pages 2 & 3 are taken subsequently using a different paper. A mere perusal is sufficient to show that the printouts of first page and second and third pages were taken at different time using different printers. While the date of execution was given in typing in the third page as 8.5.1997 in the first page the same was inserted by hand writing. This strengthens the fact that the first page and second and third pages of the agreement were printed on different dates using different printers"
58. It is contention of defendant no. 1 that plaintiff in replication in response to para no. 11 of the preliminary objection of written statement filed by defendant no.1 has only made a vague denial of such pleadings of defendant no. 1 regarding genuineness of the said agreement, and as per the ratio of Gujinder Singh (supra) where there was no specific denial of the discrepancies in the said agreement in the replication filed by plaintiff, the said fact is deemed to be admitted as per section 58 of the Act.
59. The next contention raised by learned counsel for defendant no. 1 is that the defendant no. 1 in para no. 10 of the preliminary written statement has specifically pleaded that the said receipt contains the averment that "according to the receipt they have agreed to sell the property on 15.11.1997 i.e. the same date as the execution of the receipt". In the replication plaintiff did not specifically denied the said fact, therefore, the plaintiff deemed to have admitted that the said agreement is different from the agreement dated CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 45 of 68 15.11.1997 and the agreement to sell dated 15.11.1997 is the agreement to sell whose specific performance has to be sought, as detailed in the said receipt, but the suit has been filed for specific performance of the said agreement dated 08.05.1997.
60. In this regard suffice is to say that these contentions appear to be attractive but the same are having no force in law in as much as even, if it is presumed, that all the three pages of the said agreement are printed on different printers. However, this fact did not lead to conclude that the said agreement is forged and fabricated in as much as even, if it is presumed that the said three pages are typed on different printers, though not admitted, despite that, a bare perusal of the said agreement depicts that the three pages are the part of the same agreement, however, the print of such pages might have been taken on different printers but merely the fact that the three pages of the said agreement are printed on different printers cannot lead to conclude that the said agreement is forged and fabricated.
61. So far as the second contention is concerned suffice is to say that the date of the execution of the said agreement, whose specific performance has been sought is 08.05.1997, however, the date of agreement to sell dated 15.11.1997 has been incorporated in the receipt dated 15.11.1997 (Ex. PW1/2). But, the bare perusal of the contents of the said receipt (Ex. PW1/2) depicts that the recitals in the said receipt contains the details of previous agreement to sell i.e. the said agreement in as much as the deceased and his brother are alleged to have received the part payment from plaintiff on 15.11.1997 CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 46 of 68 at the time of execution of Ex. PW1/2. The deceased and Hattam Singh are shown to have received Rs. 9.5 lakhs as half of the sale consideration of the suit plot and plot of Hattam Singh. The defendant/DW1 in his crossexamination admitted the signatures of his uncle Hattam Singh appended on the right hand side of the receipt Ex. PW1/2, therefore, it cannot be stated that the plaintiff has detailed the agreement to sell dated 15.11.1997 in the receipt Ex. PW1/2 dated 15.11.1997 and plaintiff have sought the specific performance of the said agreement dated 08.05.1997. This appears to be only a clerical mistake regarding date of the said agreement which is not material to doubt the authenticity of the said agreement and the said receipt. The ratio of case law Gujinder Singh in the facts and circumstances of the present case stands distinguishable and is not applicable to the facts of the present case. Therefore, this contention also deserves to be rejected and is hereby rejected.
62. So far as the contention of the defendant no. 1 that defendant categorically deposed that the deceased had never executed any agreement to sell in favour of the plaintiff in respect of the suit plot and plaintiff has forged and fabricated all the documents and there is no crossexamination of the defendant no. 1 on these facts, therefore, the same fact is deemed to have been admitted by the plaintiff. The said contention also appears to be attractive but the same is fallacious in as much as the ratio of case law State of Uttar Pradesh v. Nahar Singh (supra) & Chuni Lal Dwarka Nath (supra) and A.E.G. Caarapiet (supra) is to the effect that if a witness has CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 47 of 68 been crossexamined and suggestion has not given that to said witness by putting his case by the party crossexamining such witness, the court would presume that version of such witness has been accepted.
63. However, it may be noted Defendant /DW1 was cross examined on all vital aspects of the case of plaintiff and whatever suggestion given to DW1 were denied by him and furthermore, it may be relevant to note here that there is no need of giving suggestions in civil trial in as much as the defence of the parties is made only on the pleadings and in this context the observation in judgment Sher Mohammad(supra) is apt and relevant portion is reproduced as under:
"However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. However unfortunately the said practice of criminal trials has crept into the civil trials also to the extent that most of the cross examinations being in the form of suggestions alone and which take considerable time. The purport of cross examination is to challenge the testimony and / or to falsify the witness or his credit worthiness and not to give suggestions to the effect that each and every deposition in examinationinchief is false. Similarly, a party in a civil trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in the pleadings. "
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Page no. 48 of 68
64. Therefore, it cannot be stated that by merely not giving the suggestion to the defendant no. 1 in his testimony regarding the execution of the said agreement and the said receipt both are result of forgery and fabrication of the said documents by the plaintiff is admitted by plaintiff.
65. So far as the fact that the said agreement and the said receipt is proved or not is concerned, it may also be noted here that defendant no. 1 as DW1 during his crossexamination has testified that the deceased was related to plaintiff and had given a loan of ₹ 1 lakh to plaintiff and plaintiff has returned the same allegedly through the cheque of Rs. 1 lakhs paid through the account of plaintiff no. 2. The said defence of the defendant no. 1 is not based on any defence taken by the defendant no. 1 in the written statement and the said defence is beyond the pleadings and cannot be taken by the defendant no. 1 in as much as it is the mandate of law as discussed in para no. 16 of Muddasani Venkata Narsaiah (supra) that the matter/facts sworn in pleadings by one party not challenged either in pleadings or cross examination by the other party, must be accepted as fully established. In the same manner, the contention of ld. counsel for the plaintiff that on the basis of the policy issued by DDA in 1996, the said plot stood duly identified in the said agreement is devoid of merits in as much as the same is beyond the pleadings of the plaintiff in the plaint and same is to be ignored as per the mandate of law laid down in Vinod Kumar Arora(supra).
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Page no. 49 of 68
66. It may be relevant to observe that, even for the sake of arguments, though not admitted, it is presumed that the said defence has been taken by defendant, despite being not pleaded the same in the written statement, however, defendant no. 1 testified in cross examination that the deceased had given a loan of Rs. 1 lakh to plaintiff and plaintiff returned the said loan through the cheque of Rs. 1 lakh from the account of plaintiff no. 2. Defendant no. 1 has led no evidence that any such loan of ₹ 1 lakh was given by the deceased and in lieu of the said loan the amount of ₹ 1 lakh was paid by plaintiff no. 1 through the bank account of plaintiff no. 2. In the absence of any such evidence led by defendant no. 1 in this regard, the adverse inference is to be drawn against defendant no. 1 that the said amount of ₹ 1 lakh was received by the deceased for execution of the said agreement whereby the suit plot, which though not an identifiable property, was agreed to be transferred by the deceased to plaintiff.
67. So far as the amount of ₹ 1 lakh received by the deceased in terms of the said receipt Ex. PW1/2 is concerned, the defendant no. 1 has admitted the signature of Hattam Singh, his uncle and the said document also bears the signature on the left side that of the deceased, which signatures defendant no. 1 has denied. It is the case of the plaintiff that the deceased and Hattam Singh has received the amount of ₹ 2 lakhs in terms of the receipt Ex. PW1/2, of both i.e. the deceased and Hattam Singh received Rs. 9.5 lakhs in total, therefore, it is not the case of defendant no. 1 that when Hattam Singh has put his signature on the receipt Ex. PW1/2 it did not bear the signature of CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 50 of 68 the deceased. Had it been the case of defendant no. 1 that when Hattam Singh has put his signatures, the lefthand side of the said receipt was blank, it would have been established that the said reiept did not bears the signatures of the deceased. Therefore, in the absence of any such plea/defence taken by defendant no. 1 it can be safely inferred that the receipt Ex. PW 1/2 bears the signature of the deceased and the amount of ₹ 1 lakh has been received by the deceased from the plaintiffs.
68. From the above discussion, it can be safely concluded that neither the said agreement nor the said receipt has been forged and fabricated by the plaintiff, otherwise the deceased has received the amount of ₹ 4.75 lakhs in terms of the said agreement as well as the said receipt. The non examination of any independent witness regarding attestation of the said agreement and the said receipt and further, non examination of an expert witness for identification of the handwriting of the deceased is not fatal to the case of the plaintiff. Furthermore, no explanation, on behalf of defendant no. 1 has been tendered as to how the plaintiff came into the possession of the documents namely Ex. DW 1/PX1, DW 1/PX 2 and Mark DX1 also fortifies the fact that said agreement was executed by the deceased in favour of the plaintiff.
69. So far as issue no. 1 is concerned, the said plot already held to have been not an identifiable property, therefore, there is no need to go into the aspect concerning issue no. 1 as to whether the CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 51 of 68 plaintiff was ready and willing and still has been ready and willing to perform his part of the contract in terms of the said agreement and the said receipt. However, I would like to delve upon this issue.
70. It may be noted that plaintiff has pleaded and tried to prove that after making payment of 50% of the sale consideration for purchase of the said plot in terms of Ex. PW1/1 and the said receipt Ex. PW1/2 and the plaintiff has ever been ready and willing to perform his part of the contract and is still ready and willing to perform his part of the contract. However, it is argued by learned counsel for defendant no. 1 that the plaintiff has neither paid the sale consideration as alleged in terms of the said agreement and the said receipt nor he is having the capacity to pay the remaining sale consideration of 50%, therefore, plaintiff having failed to prove that they are ever ready and willing to perform their part of the contract and have shown their readiness and willingness to perform their part of the contract and on this ground, the suit deserves to be dismissed.
71. It may be noted that the law with regard to prove the readiness and willingness of the plaintiff is concerned is well settled and in Kamal Kumar v. Prem Lata Joshi, CA no. 4453/2009, the Hon'ble Supreme Court has reiterated the ratio of the previous case law laid down in this regard, and further laid down the guidelines for dealing with the case of specific performance of the contract and the same are reproduced herein for apt understanding.
CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 52 of 68 "10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.
11. In our opinion, the aforementioned questions are part of the statutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47/48 of Appendix A to C of the Code of Civil Procedure). These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts."
So is the ratio of N.P Thirugnanam (supra), Ritu Saxena (supra), Sarabjeet Singh (supra), Sushil Jain (supra) & Jinesh Kumar Jain (supra).
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Page no. 53 of 68
72. The issue whether there existed a valid and concluded contract between the parties for sale of the suit plot, has been decided in favour of the defendant no. 1 and against the plaintiff and it has been held that a valid and concluded contract was not in existence between the parties, as the suit plot was not an identifiable property.
73. However, the issue arises whether the plaintiff have been ready and willing to perform their part of the contract and whether plaintiff is still ready and willing to perform his part of the contract as detailed in the said agreement. The plaintiff appeared in the witness box and as discussed herein above there is crossexamination of the said witness on the vital material particulars. The plaintiff has not placed on record any document to prove his capacity to pay the 50% of the remaining sale consideration in terms of the said agreement and the said receipt for purchase of the suit plot.
74. So far as the issue of readiness and willingness is concerned, the proof of readiness necessarily means demonstration of financial capacity or ability to pay balance sale consideration and take the sale deed. When a person on oath states in the witness box that he is ready with the requisite fund he must produce some evidence to prove his possession of the required funds. The explanation appended to Section 16 of Specific Relief Act makes it clear that the proof of requisite funds did not mean he should produce the currency before the court or should deposit the money in court. But at the same time, mere a statement on oath that he is having the requisite funds would CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 54 of 68 also do not prove possession of funds. The said proof has to be necessarily proved by way of evidence. The reason being, if, the payment is to be made in cash i.e. by handing over currency, the currency is a documentary evidence. The explanation makes it clear that to prove readiness the plaintiff need not produce the currency before the court or either the balance consideration is to be deposited in the court such the position is also evidenced by documentary evidence which is not necessary by virtue of the explanation appended to section 16 of the Specific Relief Act.
75. It may also be noted that the money does not exist in vacuum. The money has to be necessarily in the form of physical object. It is in the nature of document, money deposited in the bank, money is in the nature of security and money being capable of being raised from borrowing. The money could be raised by sale of property movable or immovable. When a person claiming that he possessed the sufficient funds he has to produce so much documents in evidence which proved his capacity to raise the funds or he possesses the funds. But the documents which the plaintiff can produce to prove his capacity may be a passbook issued by the bank where he has The balance sale consideration ready for payment. If he has invested for money by way of securities, he has to produce those security before the court to show that any point he could encash the same and pay the balance sale consideration. Similarly, if he has the money in the fixed deposit, in a bank, deposit receipt is a proof of ability to pay the balance sale consideration. The plaintiff intends to borrow money from CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 55 of 68 a nationalised bank or from his employer or from any other financial institution, it has to be demonstrated by producing a request to such financial assistance in writing, sanctioning of the said loan which has to be necessarily in writing. These are only illustrative. There may be several other modes by which the requested funds could be raised but all of these instances are evidenced by documentary evidence. The Hon'ble Apex court had an occasion to consider the contention that where there is no denial of readiness and willingness by the defendant either in the written statement or in the evidence there is obligation on the part of plaintiff to produce documentary evidence to prove his readiness and willingness.
76. It may be noted that section 16(c) of the Specific Relief Act is an exception to the general rules that each material proposition as per order 14 rule 1(3) must be affirmed by one party and denied by the other party which shall form the subject matter of the issue in as much as unless a person avers and proves that he has performed and was always ready and willing to perform the essential terms of the contract, which are to be performed by him, he is not entitled to enforce the specific performance of the contract. In other words before a court grant a decree of specific performance, this mandatory recommendation of the statute has to be complied with by the plaintiff irrespective of the defence taken by defendant. Only if this mandatory requirement is complied with, the civil court has jurisdiction to grant a decree of specific performance. If this requirement is not met, the civil court has no jurisdiction to give a decree of specific performance.
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Page no. 56 of 68
77. Therefore, it is obligatory on the part of the court, that, in every suit for specific performance to frame an issue regarding readiness and willingness to perform the essential terms of the contract by the plaintiff irrespective of the fact whether defendant has specifically denied the allegations in the plaint regarding readiness and willingness to perform or not. Therefore, what follows is that plaintiff who comes to the court seeking decree of specific performance must aver and prove that he has performed or is always ready and willing to perform the essential terms of the contract which are to be performed by him. Whether the defendant denies those allegations or not in his written statement, the court is under an obligation to frame an issue regarding readiness and willingness on the part of the plaintiff to perform the terms of the contract. Unless the plaintiff proves or satisfy the court that he was ready and willing to perform his part of the contract, the court have no jurisdiction to pass a decree of specific performance.
78. So far as the reliance placed on judgment titled C.J. Reddy (supra) and judgment Sushil Jain (supra) is concerned it may be noted that the ratio of Sushil Jain was taken into consideration by the Hon'ble Delhi High Court in Jinesh Kumar Jain (supra) and in para no. 12 & 13 it has been observed as under :
"12. The undisputed position which emerges on record is that the plaintiff has miserably failed to prove his readiness and willingness i.e. his financial capacity with respect to making available the balance sale consideration of 44,00,000/. No Income Tax Returns of the plaintiff have been filed for any of the years including post the filing of CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 57 of 68 the suit. The plaintiff has similarly failed to file his bank accounts to show availability with him of amounts to pay balance consideration of Rs. 44,00,000/. The plaintiff has in fact not even filed details of his assets in any form to show his financial capacity to pay the balance consideration of Rs.44,00,000/. In my opinion, merely stating in legal notices or replies that the plaintiff is ready to perform his part of the contract is neither here nor there in as much as the issue of readiness is a crucial aspect which requires that by clearcut evidence, which can be believed by the Court, the plaintiff proves his financial capacity. The plaintiff has wholly failed to do so in the present case. I therefore hold that the plaintiff has totally failed to prove the financial capacity to pay the balance consideration and, hence it cannot be said that the plaintiff was and continued to be ready and willing to perform his part of the obligation under the agreement to sell at all points of time i.e. for the period of 45 days after entering into the agreement to sell, after the period of 45 days till the filing of the suit, and even thereafter when evidence was led. I therefore hold that the plaintiff has failed to comply with the requirement of Section 16(c) of the Specific Relief Act, 1963, and therefore, the plaintiff is not entitled to the relief of specific performance.
13. Now let us assume that the agreement to sell dated 26.9.1988 was not hit by the 1972 Act; the defendants were guilty of breach of their obligation to perform their part of contract; and that the plaintiff was ready and willing to perform his part; even then, can it be said that the plaintiff is yet entitled to the discretionary relief of specific performance...... "
79. So far as the ratio of the judgment Chennadi Jalapathi Reddy (supra) is concerned it was observed by Hon'ble Supreme Court that not only the averment in the plaint regarding readiness and CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 58 of 68 willingness is sufficient for grant of decree of specific performance, otherwise the plaintiff is bound to prove that he was having capacity to pay the balance in consideration for purchase of the suit property.
80. From the above discussion, it can safely concluded that plaintiff failed to prove that he was having readiness and willingness to perform his part of the said agreement.
81. The next question which arises for consideration is whether the plaintiff can be granted specific performance or not, in this regard, suffice is to say that section 20 of the Specific Relief Act provides as under :
"20. Discretion as to decreeing specific performance.
1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 59 of 68 foresee, whereas its nonperformance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1. Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2. The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
82. In view of the fact that there is no legal contract as per Indian contract act in as much as the suit plot has not been found to be identifiable in terms of the contents of the said agreement and the said receipt and, even if it is presumed for the sake of arguments that the defendant no. 1 has failed to perform his part of the contract, the CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 60 of 68 plaintiff has also found to be having no readiness and willingness to perform his part of the agreement, therefore, there is no question of grant of relief of specific performance of the agreement. Therefore, plaintiff have not been found entitled to the specific performance of the said agreement, however, plaintiff has proved that the deceased has received an amount of ₹ 4.75 lakhs from the plaintiff without having any title in the suit plot at the time of execution of the said agreement and the said receipt.
83. During the course of arguments, the contention of ld. counsel for the plaintiff is that, even if, plaintiff is not entitled for specific performance of the said agreement and the said receipt, the plaintiff is entitled for the return of the earnest money paid in terms of the said agreement and the said receipt. On the other hand, ld. counsel for defendant no. 1 has argued that there is no pleading in this regard, therefore, without any pleadings in this regard, therefore, without pleadings no such relief can be granted as per section 22 of the Specific Relief Act.
84. Before proceeding further, I would like to reproduce Section 22 of the Specific Relief Act, reads as under :
"22. Power to grant relief for possession, partition, refund of earnest money, etc. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for (a) possession, or partition and separate CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 61 of 68 possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of subsection (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of subsection (1) shall be without prejudice to its powers to award compensation under section 21."
85. Admittedly, there is no prayer either in the pleadings or prayer clause that benefit of Section 22 of the Specific Relief Act may be given to the plaintiff and the earnest money amount be returned along with interest. However, defendant was having knowledge that plaintiff is seeking specific performance of the said agreement through which the deceased allegedly was given an amount of Rs. 4.75 lakhs as half of the sale consideration of the suit plot, therefore, this part of the pleadings, was very much known to defendant, that if, plaintiff found entitled in proving the said agreement and the said receipt, plaintiff will be, at least, entitled to the said amount. In this regard, though not quoted, reliance is placed in Anuja Sharma vs Memo Devi & Ors, in RFA No. 157/2019, wherein in para no. 5,6,9,11 & 12 it has been observed as under :
"5. No doubt, the provision of Section 22 of the Specific Relief Act does provide that where a relief is not claimed CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 62 of 68 with respect to refund of earnest money or advance price/deposit, the courts will not grant such a relief. The provision of Section 22 of the Specific Relief Act however allows amendment of the plaint at any stage of the proceedings to seek refund of the amount paid under an agreement to sell. In the facts of the present case, there was no specific prayer in the plaint with respect to the refund of the price. The issue is that whether nonmention in the plaint by writing and seeking refund of the advance price paid results in a complete prohibition for the courts to refund the price received by a seller under an agreement to sell, once it is found that the agreement to sell does not have to go through and the suit for specific performance is being dismissed.
6. In order to interpret the provision of Section 22, it is necessary to note as to what is the object and requirement of a pleading to be filed by a party. Pleading is defined under Order VI CPC. A pleading will include a plaint and a written statement. What is a plaint is specified under Order VII CPC, and what is a written statement is specified under Order VIII CPC. It is now a settled law by virtue of a catena of decisions of the Hon'ble Supreme Court that object of a pleading is to give notice of a case to the other party. The object of giving notice of a case to the other party is to ensure that the other party can meet the case. On this principle, the appellate courts have allowed issues which are pure questions of law even at the appellate stage, even in cases till the Hon'ble Supreme Court, if the issue of law goes to the root of the matter, and even if there is no specific pleading, but the issue does arise from the admitted facts and the pleadings on record. Thus, the trial court as also the appellate courts can, depending on facts of a particular case, allow a pure issue of law to be raised, at any stage of the legal proceedings. This is being stated by this Court because when the object of Section 22 of the Specific Relief Act is seen, and of the requirement of seeking a relief with respect to the advance CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 63 of 68 price paid under an agreement to sell to be included in the plaint, it is found that the object of stating/praying in a pleading for refund of the advance price and/or earnest moneys paid is to allow a defendant/seller to take up a defence as to why the advance price and/or earnest money should not be repaid. Obviously, defence of a defendant/seller would be that the advance price and/or earnest money is not to be repaid because it is forfeited or liable to be forfeited either because of a specific term of the agreement to sell or because the defendant/seller has suffered a loss and consequently for the loss suffered by the defendant/seller, the advance price and/or earnest money paid under the agreement to sell has to be forfeited by applying the provision of Section 74 of the Indian Contract Act, 1872.
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9. Therefore in my opinion the word 'pleading' in Section 22 cannot be strictly interpreted in the sense that the requirement being only of a written pleading and nothing else, and in law the expression pleading under Section 22 of the Specific Relief Act should be read only and essentially to mean notice of a party‟s case to the other side.
11. Therefore, in my opinion the expression 'pleading' which has to be interpreted with respect to Section 22 of the Specific Relief Act, has to be interpreted only to mean that whether the opposite party had notice of the case of the other side, and in the present case, the appellant/defendant no. 1 did have notice of the case of the respondent/plaintiff for seeking the refund of the advance price and/or earnest money, inasmuch as, the appellant/defendant no. 1 took up a specific defence of being entitled to forfeit the amount received under the subject Agreement to Sell.
CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
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12. Therefore, I may note that the trial court, in the facts of the present case, has rightly applied the provision of Order VII Rule 7 CPC, as this provision entitles every court, depending on the facts of each case, to give reliefs which otherwise arise from the position of the facts as found on record in terms of the pleadings and evidence in the case."
86. A bare perusal of the ratio of the law laid down in the above said judgment is that even if the averments regarding the relief as provided under Section 22 of the Specific Relief Act are conspicuous by its absence but if, pleadings of plaintiff are in very much knowledge of the defendant it will be a due compliance of the provisions of Section 22 of the said Act. However, the defendant no.1 has notice of the sum and substance of the pleadings of the plaintiff that plaintiff is seeking performance of the said agreement. The defendant no. 1 has also notice of the case of the plaintiff for seeking recovery of the advance money/earnest money in as much as the defendant no. 1 could not prove that the amount of Rs. 1 lakh, which was received by cheque by the deceased from plaintiff in terms of the said agreement, was ever advanced as loan by the deceased to the plaintiff, at any point of time, and, in lieu of the return of loan, this cheque was issued. Therefore, plaintiffs' case was very much in the knowledge of defendant no. 1 and as such there was due compliance of the provisions of Section 22 of the Act. Issue no. 1,2 & 5 are decided in favour of defendant no. 1 and against the plaintiff subject to return of the advance money.
87. In view of the above, the plaintiff is entitled for return of the earnest money amount of Rs. 4.75 lakhs. So far as interest is concerned, the said amount is pending with the deceased since 1997, CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 65 of 68 therefore, interest of justice would be met, if the plaintiff is granted interest @ 12% per annum from the date of execution of the said receipt dated 15.11.1997.
Issue no. 3
88. It is contended that perusal of the said agreement demonstrates that the sale deed was to be executed at the time of allotment of the suit plot from the DDA. Perusal of the original recommendation letter dated 02.06.2006 issued by Delhi Administration demonstrate that it recommended for allotment of plot on 02.06.2006 and therefore, the limitation period of 3 years would start from the said date but admittedly the suit has not been instituted within 3 years from 02.06.2006 and therefore, the suit is barred by limitation. There is neither any letter/communication nor any notice sent to the deceased till his death and, thereafter, there was no notice or letters is sent to the defendant no. 1 till 16.06.2010. The plaintiff kept silent for 12 years, which fact amounted to abandonment of the said agreement and therefore, the suit is liable to be dismissed. In this regard reliance is placed upon Urvarshi Aggarwal v. Kushagar Ansal, 2019 AIR SC 1280.
89. It may be noted that suit for specific performance of the agreement of immovable property is three years as per article 54 of the Schedule I of the Limitation Act from the date fixed for specific performance or if no such date is fixed, when the plaintiff has notice that performance is refused. In the present case, no time was fixed CS No. 59/2016 (15508/2016) Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 66 of 68 for performance of the said agreement in as much as the suit property was an undentifiable property but the same was not allotted to the deceased. Therefore, the period of limitation will start from the date of refusal of performance of the said agreement by defendant no. 1, therefore, the suit cannot be stated to be barred by limitation. This issue is decided in favour of plaintiff and against the defendants.
Issue no. 4
90. So far as this issue is concerned, plaintiff has neither in the pleadings nor in evidence has shown as to how plaintiff no. 2 is either a necessary party or a proper party in as much as plaintiff no. 2 was made a party by plaintiff no. 1 by way of moving an application before Hon'ble High Court and the said application was allowed and plaintiff no. 2 was arrayed as a party i.e. plaintiff no. 2. However, the plaint was never amended so as to incorporate what role has been played by plaintiff no. 2 in respect of the sale transaction involved in the said agreement. Otherwise plaintiff no. 2 was only an attesting witness to the said agreement and the said receipt and apart from that no role has been assigned to plaintiff no. 2. Therefore, viewed from any angle, plaintiff no. 2 cannot be said to be either a necessary party or a proper party. This issued is accordingly decided in favour of the defendants and against the plaintiff.
Relief
91. In view thereof, the suit of the plaintiff is "decreed" as follows :
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Page no. 67 of 68
(a) Decreed for the amount of Rs. 4,75,000/ (Rupees Four Lakhs Seventy Five Thousand Only) along with interest @ 12 % from 15.11.1997 (i.e. the date of execution of the said receipt) till its realization is passed in favour of the plaintiff and against the defendants.
(b) The relief of specific performance of the agreement dated 08.05.1997 is declined.
(c) Plaintiffs is also entitled to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
signed by
VIJAY
VIJAY KUMAR
Announced in the open court on KUMAR DAHIYA
Date:
24th Day of February 2022. DAHIYA 2022.03.10
15:11:24
+0530
(V.K. DAHIYA)
ADDL. DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
CS No. 59/2016 (15508/2016)
Pratap Singh & Ors. v. Ganga Singh & Ors.
Page no. 68 of 68