Delhi District Court
And Also Office At : vs Manke Ram (D) Through Lrs on 31 August, 2019
IN THE COURT OF SH. PRASHANT KUMAR
ADDITIONAL DISTRICT JUDGE, CENTRAL01
TIS HAZARI COURTS, DELHI
CS NO. 9832/2016
Prakash Ratan Lal
S/o Sh. Ratan Lal Didwania,
R/o 30, Alta Mount Road,
Mumbai.
And also office at :
Flat no. 2F, White House,
10, Bhagwan Dass Road,
New Delhi - 110 001
...............Plaintiff
Versus
Manke Ram (D) through LRs.
(a) Bijender Singh,
R/o Village + Post : Bijwasan
New Delhi - 110 061.
(b) Smt. Sumitra,
W/o Sh. Jagbir Singh,
R/o Village Kanjhawala, Delhi
(c) Smt. Saroj
W/o Shri. Jai Prakash
R/o Village Jharoda Kalan, Delhi
(d) Smt. Sunita,
W/o Shri. Raghbir Singh
R/o Bhootonwali Gali, Nangloi, Delhi - 41.
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 1 of 59
(e) Smt. Sarita
W/o Shri. Sanjay Chaudhary
R/o 1/106, Sadar Bazar, Delhi Cantt.
New Delhi.
(f) Smt. Sharmila,
W/o Shri. Jagdeep
R/o Village & PO Kirari, Delhi.
............Defendants
Date of institution of the suit : 02.03.1994
Date on which order was reserved : 30.08.2019
Date of decision : 31.08.2019
SUIT FOR SPECIFIC PERFORMANCE OF THE CONTRACT
AND RECOVERY OF POSSESSION IN SPECIFIC RELIEF
ACT, 1963 READ WITH SECTION 151 CPC.
JUDGMENT
1. Vide this judgment, I shall dispose off the suit filed by the plaintiff vide which specific performance of Agreement to Sell dated 15.06.1988 is sought.
2. The facts in brief are that plaintiff is a Bombay based businessman and defendant is alleged to be an absolute owner of the suit land of village Bijwasan in Mehrauli Tehsil. On 15.06.1988, defendant executed in total 6 Agreement to Sell in CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 2 of 59 favour of plaintiff pertaining to six different property bearing different khasra numbers in Village - Bijwasan, Tehsil Mehrauli. In the year 1988, defendant for his bonafide needs and requirements desired to sell suit land and approached the plaintiff for purpose of selling the said suit land and plaintiff agreed to purchase the said suit land @ Rs.8,00,000/ per acre for which an agreement to sell dated 15.06.1988 was executed. It is contended that on the same day an amount of Rs.50,000/ each with regard to five agreement to sell and qua one agreement to sell Rs.3,50,000/ was given by the plaintiff to the defendant as advance/earnest money and the physical peaceful and vacant possession of the suit land in this case was also handed over to the plaintiff.
3. It was assured by the defendant that he has not entered into any kind of agreement of any nature whatsoever with anyone else qua the suit land nor created any kind of encumbrances charges or liens of any nature. It was further agreed that defendant shall complete all other formalities at his own costs in order to execute and register the sale deed in favour of plaintiff vide para Nos. 7, 8 and 9 of the Agreement to Sell.
4. On 13.10.1988 defendant wrote a letter to the plaintiff through his counsel stating that since plaintiff failed to get the sale deed CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 3 of 59 registered within four months from the date of execution thereof, his earnest money was forfeited. However, plaintiff replied the said letter on 20.10.1988, stating that defendant has to produce the NOC, ITC and has to complete other formalities as per para Nos. 7, 8 and 9 of the Agreement to Sell, only thereafter the liability of plaintiff arises. Again on 09.06.1989 and 05.05.2019, plaintiff wrote letters to the defendant making it absolutely clear that the question to forfeit the earnest money does not arise as per the terms and conditions of the Agreement to Sell and defendant was requested to comply with the terms and conditions of the Agreement to Sell. It is alleged that in the last week of October, 1989 defendant met plaintiff's father and requested for some time to complete the necessary formalities, subsequently, plaintiff issued letter dated 04.09.1989 granting some more time to the plaintiff to perform his commitment. Such requests were made by the defendant on various occasions and also some time was granted by plaintiff vide letters dated 23.10.1989, 18.12.1989, 05.03.1990, 06.08.1990, 06.05.1991, 07.10.1991.
5. It is stated that agents of plaintiff i.e. Sh.Amarnath and Sh.Rajesh Dubey approached the defendant on 03.01.1993 and 04.03.1993, 15.09.1993 and 04.12.1993, respectively for registration of Agreement to Sell, but defendant asked plaintiff CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 4 of 59 to enhance the sale consideration in order to get the Agreement to Sell registered. On 28.01.1994 defendant refused to get the sale deed registered in favour of the plaintiff. With regard to the present suit, it is mentioned that on 28.01.1994 plaintiff found that defendant had taken over illegal and unauthorised possession of the suit land which was already delivered to the plaintiff way back in 15th June 1988. It is further stated that plaintiff was ready and willing to perform his part of contract however, defendant has not taken any steps. Hence, the present suit for specific performance of agreement to sell.
6. Written statement was also filed on behalf of the defendant wherein preliminary objections were taken that the suit was hopelessly time barred and also barred by virtue of Section 33 of the Delhi Land Reforms Act, 1954. It is alleged that the original agreement to sell dated 15.06.88 has not been filed along with the with plaint as the same has been tempered with. It is stated that the plaintiff has not approached the court with clean hands.
7. In reply on merits, it is alleged that the defendant is Bhoomidar of the land in suit which is governed by the provisions of Delhi Land Reforms Act, 1954. It is stated that the purported Agreements to Sell were duly signed by the defendant CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 5 of 59 however, they were not signed by the plaintiff or by any witness. It is stated that plaintiff himself approached the defendant for purchasing the said land. It is also stated that a sum of Rs.50,000/ each with regard to five agreement to sell and qua one agreement to sell of Rs.3,50,000/ was given by the plaintiff to the defendant as earnest money and that the plaintiff agreed to pay the entire balance amount within 4 months and get the sale deed registered. It is stated that it was the sole responsibility of the plaintiff to obtain all the certificates as well as forms and get the sale deed registered. It is stated that since the prices of the land had fallen considerably, the plaintiff was in no mood to pay the amount and get the sale deed executed. Now, since after lapse of such a long time, prices of land have again shown an upward trend, the plaintiff wants to take advantage of his own lapses. In rest of the written statement, the averments made by the plaintiff in his plaint were categorically denied and prayer for dismissal of the suit is made.
8. Replication was also filed on behalf of the plaintiff wherein the averments made by the defendant through its written statement were categorically denied and averments of the plaint were reiterated.
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 6 of 59
9. Thereafter, the following issues were framed :
1. Whether the plaintiff had been and is still willing and ready to perform his part of the obligation under the agreement to sell dated 15th June 1988?
2. Whether the plaintiff is entitled to compensation for unauthorized use and occupation of the suit premises w.e.f. 28th January, 1994 onwards? If so, at what rate?
3. Whether the suit is within time?
4. Whether the suit is barred under Order II Rule 2?
5. Whether the suit is not maintainable in view of Section 33 and 45 of the Land Reforms Act, 1954? (onus objected to)
6. Whether the agreement to sell dated 15 th June, 1988 has been tempered with by the plaintiff, as alleged?
7. Whether it was for the plaintiff to have obtained No Objection Certificate from the Tehsildar and Incometax Clearance Certificate in Form 38 A from the Incometax authorities, as alleged? What would be the effect of non obtaining of No Objection Certificate/ Incometax clearance certificate from the said two authorities in the present suit?
8. Whether the defendant is legally entitled to forfeit the amount of the earnest money?
9. Whether the suit is not maintainable for want of filing of the necessary application under Section 269UC of the Incometax Act?
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 7 of 59
10.Whether the time of four months as stipulated in the agreement to sell dated 15.06.1988 was the essence of contract? If so, its effect?
11.Relief.
10.During plaintiff's evidence, PW1 was examined, who proved the following documents i.e. UPC, Postal received dated 04.09.1990, 18.12.1989, 05.03.1990, 06.08.1990, 06.05.1991, 7.10.1991 and 23.10.89 bearing the seal of Chinchbunder post office, Mumbai duly exhibited as Ex.PW1/1 to Ex.PW1/7. The said witness was duly cross examined by the defendant.
11. Secondly, PW2 Sh. Rattan Lal Didwania in his examination inchief relied upon the following documents. The power of attorney in his favour is Ex.PW2/1; the agreement to sell dated 15.06.1988 is Ex.PW2/2; reply dated 20.10.1988 is Ex.PW2/3; the original UPC qua the said reply is Ex.PW2/4; letter dated 08.05.1989 is Ex.PW2/5; the original UPC is Ex.PW2/6; the letter dated 04.05.1989 is Ex.PW2/7, the original UPC is Ex.PW2/8, the letter dated 23.10.1989 is duly exhibited as Ex.PW2/9; letter dated 18.12.1989 is Ex.PW2/10, the original UPC is Ex.PW2/8. The letter dated 23.10.1989 is Ex.PW2/9. The letter dated 18.12.1989 is Ex.PW2/10. The letters dated 04.03.1990, 06.08.1990 and 06.04.1991 are duly exhibited as Ex.PW2/11, Ex.PW2/12 and Ex.PW2/13, respectively. The CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 8 of 59 carbon copy of the NOC form dated 15.05.1991 is Ex.PW2/14. The letter dated 07.10.1991 is Ex.PW2/15. He was also cross examined by the defence counsel.
12.Lastly, PW3 Sh. Amarnath Singh tendered in evidence his duly sworn in affidavit Ex.PW3/A and was duly cross examined by the defence counsel.
13.In rebuttal evidence, PW4 Sh. Bimal Rai, Office Kanoongo, Tehsil Najafgarh had produced in the court the khasra girdawari for the period of 1988 to 1994 in respect of the land falling in village Bijwasan Tehsil Mehrauli, Khasra No. 105/16 measuring 39 duly exhibited as Ex.PW4/1 (colly.). The said witness also testified that the document Ex.PW4/2 having 24 pages is correct as per their records. He was also cross examined by the defendant. Thereafter, PE was closed vide order dated 03.02.2007 and matter was listed for defence evidence.
14.On the other hand, defendant in order to prove his case got examined, DW1 Sh. Manke Ram, who tendered his evidence by way of affidavit duly exhibited as Ex.DW1/A and relied upon a document duly exhibited as Ex.DW1/1 i.e. the carbon copy of notice dated 13.10.1988.
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 9 of 59
15.Apart from DW1, defendant also got examined DW2 Sh.Harish Kumar, Halqua Patwari, Brijwasan, Teshil Vasant Vihar, DW3 Sh.Chander Bhan, and DW3 Sh.Rajesh Sharma. Patwari Halka Bijwasan/Salarpur, Tehsil Vasant Vihar, Office of the Deputy Commissioner, South West Kapashera. DW2 Sh.Harish Kumar produced the register Karwahi pertaining to Village Bijwasan and relevant page of the said register was placed on record and exhibited as Ex.DW2/1. DW3 Sh.Chander Bhan tendered his duly sworn in affidavit exhibited as Ex.DW3/A and admitted his signatures at point A on Ex.PW2/2. Lastly, Sh. Rajesh Sharma produced the Khatoni in respect of Salapur and register Karwai in respect of village Bijwasana whereby Sh. Manke, S/o Chhelu is having 1/3rd share in the total land measuring 15 bighas 5 biswas situated in Salapur and further 26 bighas and 17 biswas in village Bijwasan. Thereafter, DE stood closed vide order dated 15.10.2011.
16.Final arguments were heard at length from both the parties. I have given careful consideration to the arguments advanced by Ld. Counsels for both the parties and have perused the record as well as the pleathora of evidence placed on record carefully. My issue wise findings are as under: CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 10 of 59 17.ISSUE Nos. 3 and 10
3. Whether the suit is within time?
10.Whether the time of four months as stipulated in the agreement to sell dated 15.06.1988 was the essence of contract? If so, its effect?
18.The issue pertaining to limitation is taken up first prior to all other issues. Issue No.9 is part and parcel of the issue of limitation as in order to decide whether the suit is within the limitation or not, it has to be considered as to whether time was the essence of the contract or not. As per Section 3 of Limitation Act, it is the duty of the plaintiff to show as per law that the suit is within the period of limitation. The contentious facts in between the parties are that six Agreement to Sell dated 15.06.1988 were executed with a stipulation that the sale deed was to be executed within 4 months. Execution of Agreement to Sell dated 15.06.1988 is not disputed by the defendant except on certain minor facts. Making part payment of Rs.50,000/ each in four cases in cash and Rs.3,50,000/ in one case was given by the plaintiff. It has been stated by the plaintiff that time was not the essence of the contract. It is stated that in such type of contracts the limitation period was extended automatically and though it has been mentioned in the agreement to sell itself that it was to be performed within 4 CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 11 of 59 months however, it was defendant who had to obtained NOC from the government department and when, despite repeated requests made by plaintiff, defendant signed the application for obtaining no objection from the concerned authority on 15.05.1991 and when these formalities were not complied with by the defendant therefore, the suit has been filed within 3 years thereafter i.e., on 23.02.1994 before the registry of the Hon'ble High Court of Delhi. In this regard, it is stated that though the time to execute the Agreement to Sell was within 4 months from the date i.e. 15.06.1988, however, by providing the application for obtaining NOC, Ex.PW2/14 which is signed on 15.05.1991, the limitation period extends thereafter as it is an acknowledgement within the period of limitation.
19.At the outset, it is important to mention here that in such type of agreement for sale and purchase of immovable property, generally the time is never the essence of the contract. However, it is the terms and condition as well as will of the parties which has to prevail always. The plaintiff has alleged that the time was not the essence of the contract but as per Section 18 of the Limitation Act, there is acknowledgement made by the parties, therefore, it extends for another period three years thereafter. These submissions made on behalf of the plaintiff reflects that he has impliedly acknowledged that time CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 12 of 59 was the essence of the contract and when application for obtaining no objection was moved by the defendant and allegedly signed by and on behalf of the plaintiff on 15.05.1991, it extended further. In other words, in my considered opinion it implies that the limitation period started from the day when dispute arose and the right to sue which accrued in favour of plaintiff had already started because only in such circumstances there can be an acknowledgement as per Section 18 of Limitation Act as argued by the plaintiff. Plaintiff has not alleged as to since when his right to sue has started running. In this regard in my considered opinion, the plaintiff is taking contrary pleas with regard to limitation. On the one hand he is alleging that time was not the essence of the contract whereas on the other hand he has alleged that by providing the signed copy of application for obtaining NOC, there was an acknowledgement in writing with regard to liability, hence a fresh period for limitation has started.
20.Section 9 of Limitation Act speaks about running of Limitation period alleging that once it started then it cannot be stopped by subsequent disabilities unless and until provided by the Act itself. Acknowledgment as defined under Section 18 of the Limitation Act is one of such instance. In the absence of any explanation from the side of the plaintiff the starting of CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 13 of 59 limitation period for the first time has to be gathered from the facts mentioned in the plaint and the documents in support therewith.
21.At the outset, it is mentioned that as per CPC the defendant can take contrary pleas in his written statement and during trial however, such liberty is not available to the plaintiff. Taking contrary plea has to be only in the form of various defence available to the party but it cannot be in the form of a ground of attack. If the ground of attack is contrary to the other grounds it not only amounts to an admission but also counter the other grounds of attack. When plaintiff has taken a specific plea that time was not the essence of the contract then the limitation period was supposed to have started, as alleged, after the breach has occurred. If any particular day of causing breach is considered, not only by defendant, but by the plaintiff as well, that it is breach in actual, then as per Section 9 of the Limitation Act the limitation period start running thereafter and it cannot be stopped by subsequent disabilities.
22.Now, the next question to be considered is as to whether furnishing the NOC form dated 15.05.1991 Ex.PW2/14 amounts to an acknowledgement under Section 18 of the Limitation Act as alleged or not is required to be discussed.
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 14 of 59 Section 18 Limitation Act reads as under:
"18. Effect of acknowledgment in writing (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject t the provisions of the Indian Evidence Act 1872 (1 to 1872) oral evidence of its contents shall not be received.
Explanation: for the purposes of this section
(a) an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to setoff, or is addressed to a person other than a person entitled to the property or right;
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 15 of 59
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right."
23.From the bare perusal of the provision, it is reflected that there has to be an acknowledgment of the liability and such acknowledgement should be in writing and within the period of limitation itself. When the Act provides for the requirement of something in writing then such requirement has to be specific which needs to be in response to the admission of liability. Ex.PW2/14 is perused thoroughly. Nowhere in this document there is any assertion in writing from the side of defendant that he is acknowledging his liability in writing. It is argued by the plaintiff that the conduct of the defendant, by providing the signed application for obtaining NOC which is Ex.PW2/14, implies that he was willing to get the limitation period extended and the agreement in between the parties was still alive.
24.Furnishing of application for obtaining NOC, in my considered opinion, cannot be said to be an acknowledgement for the purpose of Section 18. It is not disputed that as per the Agreement to Sell dated 15.06.1988, four months time was CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 16 of 59 agreed to execute the agreement, which expires on 15.10.1988 and period of three years are to be considered thereafter, then that expires on 15.10.1991. No doubt document Ex.PW2/14 is within three years itself. However, it cannot be considered as an acknowledgement for the reason that there is nothing in writing from the side of defendant which amounts to acknowledging his liability. The conduct of the defendant can be relevant for considering the fact whether time was the essence of the contract or not. However, such conduct is nothing but their behaviour which is not at all equivalent with 'writing' as envisaged under Section 18 of the Limitation Act.
25.Now, coming back to the submissions as to whether time is the essence of the contract or not, the plea taken by the parties has to be considered. Plaintiff has taken contrary pleas in this regard as already mentioned above.
26.In such a situation, facts and circumstances as a whole are required to be seen to see whether time is the essence of the contract. There are number of documents filed by both the parties alleging that they have communicated in between themselves with regard to the performance of contract. Such documents are Ex.PW2/3 dated 20.10.1988, Ex.PW2/5 dated 08.05.1989, Ex.PW2/7 dated 04.05.1989, Ex.PW2/9 dated CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 17 of 59 23.10.1989, Ex.PW2/10 dated 18.12.1989, Ex.PW2/11 dated 04.03.1990, Ex.PW2/12 dated 06.08.1990, Ex.PW2/13 dated 06.04.1991. Defendant has disputed the communication of these documents/letters/notices. Defendant has also placed on record one letter Ex.DW1/1 dated 13.10.1988. It is stated by defendant that vide this letter defendant has expressed his concern that plaintiff was to obtain no objection and income tax clearance which has not been obtained. It is stated that defendant was ready and willing to preform its part of contract. Vide this letter defendant has called upon plaintiff to respond positively within 7 days from the receipt of the letter else the amount was to be forfeited.
27.Defendant has also disputed the date mentioned on document Ex.PW2/14 alleging that this document was signed in blank by the defendant and when he had signed it, it was not containing the signature of plaintiff at that time. It is stated that this document was given in the year 1988 itself. Plaintiff has converted this document in his favour by signing it and putting a subsequent date i.e., 15.05.1991. It is stated by defendant that when this NOC form was signed by the defendant in blank, it was the understanding in between the parties that it was to be acted upon immediately and within the stipulated time. It is argued by the defendant that plaintiff has manipulated his CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 18 of 59 document by converting it in his favour showing that the talks in between the parties were continued till 1991 and even thereafter.
28.Defendant has taken an objection with regard to the date 15.05.1991 mentioned on Ex.PW2/14 however, he has not examined any witness in support of his contention except his own testimony nor he has substantiated his argument by placing on record any other document controverting the date on Ex.PW2/14.
29.Defendant in support of his contention has relied upon one judgment titled as 'Ahmmadsahab Abdul Milla (Dead) by proposed Lrs. Vs Bibijan and Ors'; (2009) 5SCC462, wherein it has been held in this case that where in an agreement a date has been fixed for performance then the limitation period start running from such date. Similar are the observation in the judgment titled as 'Fatehji & Company and Ors. Vs L. M. Nagpal and Ors'; (2015) 8SCC390 which is relied upon by the defendant.
30.Thus, keeping in mind the totality of circumstances, in my considered opinion, the defence of defendant that the date 15.05.1991 upon the document Ex.PW2/14 is manipulated CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 19 of 59 cannot be said to be established and it cannot be consider that he has been able to shift the onus of this fact upon the plaintiff as per Indian Evidence Act. As per section 106 Indian Evidence Act the burden of proving a fact is upon the person who alleges it. In the absence of any evidence to the contrary the defence of the defendant that document Ex.PW2/14 is manipulated to the extent of the date 15.05.1991 is not supported with any documentary evidence. Therefore, oral testimony of defendant to this extent is not suffice. On the contrary the document Ex.PW2/14 is a documentary evidence in itself. Documentary evidence cannot be said to be countered by an oral evidence.
31.Therefore, in my considered opinion it is reflected from the conduct of the parties that though it was mentioned in the agreement to sell dated 15.06.1988 itself that time was the essence of the contract but parties by their conduct kept the agreement alive till 1991. Document Ex.PW2/14 is an instance of the conduct of the parties. Hence, the limitation period cannot be said to be started from three year after 15.10.1988 but somewhere after 15.05.1991. Present suit has been filed on 23.02.1994. The suit filed by the plaintiff is therefore within the period of limitation. In terms of these observations, issue No. 3 and 10 are decided accordingly that time was not the CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 20 of 59 essence of the agreement.
32.ISSUE No. 55. Whether the suit is not maintainable in view of Section 33 and 45 of the Land Reforms Act, 1954? (onus objected to)
33. This issue has been framed according to the objection of the defendant that the suit property in question is agricultural land and as agreement to sell of the suit property is for less than 8 acre despite the fact that other land was still available with the defendant, hence bar laid down under Section 33 and 45 of Delhi Land Reform Act is applicable and suit is not maintainable. In this regard it is stated by the defendant that apart from the suit land in question for which 6 different agreement to sell have been executed, there are other lands in the name of the defendant. The defendant was therefore having other lands apart from land involved in 6 agreement to sell. Counsel for plaintiff has stated that though there are six separate agreement to sell executed in between the parties however, vide these all Agreement to Sell dated 15.06.1988, the entire land in total 8 acre have been agreed to be sold therefore, there is compliance of the provisions of Delhi Land Reform Act and bar laid down under Section 33 and 45 Delhi Land Reform Act is not applicable. Plaintiff has relied upon in support of his CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 21 of 59 contention titled as 'Mayank Vashist Vs Financial Commissioner'; [114 (2004) DLT162] at para 7 & 9, 'Sardar Singh Vs. Addl. District Magistrate & Ors'. (55 (1994) DLT 615 (DB)] at para 7, 'Shri Bhagwan Vs. V.R. M. Estates Private Ltd. & Anr.' [221 (2015) DLT107] at para 9 bottom, 'Sh Neelpadmaya Consumer Product Pvt. Ltd Vs. Satybir @ Satbir & Ors.' [227 (2016) DLT654] at para 16 & 18 and 'Vinod Singh Vs S,t. Phutori Devi deceased thr. LRs' [2006 (3) AD (Delhi) 234 at para 11 and 12.
34.In these judgments, it has been held that the requirement of Section 33 report as well as other formalities are subsequent to the decree of the specific performance and not at the time of granting specific performance court can examined the possibility of getting NOC or not and these are requirement after the decree of specific performance and if at subsequent period permission is not granted or if it is found that mutation cannot be made due to violation of Section 33 of the Act then the purchaser would be entitle for compensation on the basis of decree of specific performance.
35.Defendant in support of his contention has filed one document Ex.DW3/1 which is a khatoni pertaining to land falling in the share of defendant and his predecessor, situated at Village CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 22 of 59 Bijwasan. Other documents filed by defendant are Ex.DW2/1 and Ex.DW3/2 which are record pertaining to the land falling in the share of defendant. DW2 and DW3 both have alleged that there are other lands besides the suit property which are falling in the share of defendant by placing reliance on these document, defendant has stated that he was never left with only 8 acre at any point of time on the date of agreement to sell nor the entire holding 8 acre or less was ever agreed to be sold by him. Documents relied upon by the defendant during their evidence has not been controverted by plaintiff. In this regard it is important to mention the relevant provision laid down under Section 33 and 45 of the DLR Act: "33.Restrictions on the transfers by a Bhumidhar [(1) No Bhumidhar shall have the right to transfer by sale or gift or otherwise any land to any person, other than a religious or charitable institution or any person in charge of any such Bhoodan movement, as the Chief Commissioner may, by notification in the Official Gazette, specify, where as a result of the transfer, the transferor shall be left with less than eight standard acres in the Union Territory of Delhi :
Provided that the Chief Commissioner may exempt from the operation of this section, the transfer of any land made before the 1 st day of December, 1958, if the land covered by such transfer does not exceed on CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 23 of 59 acre in area and is used or intended to be used for purposes other than those mentioned in clause (13) of section 3].
[(2) (Note: Inserted by Act 38 of 1965) Nothing contained in sub section (1) shall preclude the transfer of land by a Bhumidhar who holds less than eight standard acres of land, if such transfer is of the entire land held by him:
Provided that such Bhumidhar may transfer a part of such land to any religious or charitable institution or other person referred to in sub section (1).
Explanation For the purposes of this section, a religious or charitable institution shall mean an institution established for a religious purpose or a charitable purpose, as the case may be.]"
Section 45 of the Delhi Land Reforms Act reads as under:
"45. Transfer made in contravention of this Chapter to be void. [(1)] Any transfer made by or on behalf of a Bhumidhar or Asami in contravention of the provision of this Chapter shall be void.
[(2) Nothing in subsection (1) shall apply to any transfer which has been exempted by the Chief Commissioner under the proviso to sub section (I) of section 33.]"
36.From the bare perusal of these provisions it is reflected that if a CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 24 of 59 bhoomidhar is left with 8 acre or less which is his entire holding then such entire land can be sold and bar laid down under Section 33, 45 and 185 of DLR Act is not applicable which oust the jurisdiction of civil court.
37.It has been argued by the defendant that none of the agreement to sell is pertaining to the entire holding of 8 acre but less than 8 acre. In this regard plaintiff has stated that it is not necessary that the entire holding of 8 acre or less should be sold in one go. It can be sold in parts to different buyer or to one person by dividing the land in various parts. It is stated that all the six agreement to sell have been executed on same day i.e. 15.06.1988. Thus, though vide an agreement to sell entire holding is not sold vide all the six agreement to sell, which are pertaining to the entire holding of 8 acre. Plaintiff however has not been able to controvert document Ex.PW3/1. In these circumstances, the facts alleged by DW3 have to be considered accordingly. The defendant has been able to show that there are other lands as well in the name of defendant besides the suit land in question. One important fact however cannot be ignored in this regard is that the defendant has not disputed the execution of the agreement to sell dated 15.06.1988. It is also not the case of the defendant that the agreement to sell is forged and fabricated or he was not aware CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 25 of 59 of the contents of the document or he was never willing to sell his land to plaintiff. The defence taken by defendant is that as time was essence of the contract and as plaintiff himself did not perform his part of agreement i.e. obtaining NOC from the concerned department, therefore, the agreement has been terminated and earnest money has been forfeited. Defendant cannot be allowed to blow hot and cold at the same time. On the one hand he himself agreed to sell his land to the plaintiff and on the other hand as a considerable time has elapsed and over a passage of time rates of the property has been escalated very high therefore, he is taking the benefit of section 33 and 45 as well as Section 185 of DLR Act. This aspect however shall be considered at the subsequent stage when main issues and quantification of damages are commented upon. So far as the issue pertaining to the law laid down under 33 and 45 of the DLR Act is concerned, defendant has been able to show that he was having land more than 8 acre under his name in the same village and its vicinity, therefore, the jurisdiction of civil court is barred to decide this case. Moreso, even after considering the judgments relied upon the plaintiff, I am of the opinion that the fact remains the same that the land in the hands of defendant was more then 8 acre at the time of execution of agreement to sell. Even if this bar of Section 33 and 45 is not to be considered at this stage still at the time of execution this issue cannot be CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 26 of 59 decided as it relate back prior to the date of filing of the suit which was within the knowledge of the parties or they are made aware during the pendency of the suit. Further, the court should not pass any such decree which cannot be executed for one reason or other. Keeping in mind this mandate, therefore, I am of the opinion that the bar of Section 33 shall remain operative either at this stage or subsequent. It would be most appropriate in the interest of justice that it is to be seen at this stage itself that it is within the contemplation of both the parties. In my considered opinion the bar laid down under Section 33 and 45 of DLR Act operates here with full force and vigor. In terms of these observations, issue No.5 is decided in favour of defendant. There is bar of law laid down under Section 33 and 45 of DLR Act to the present suit.
38.ISSUE No. 4.
"4.Whether the suit is barred under Order II Rule 2?
39.It has been stated by defendant that the Agreement to sell dated 15.06.1988 is not pertaining to the entire holding of land and even after execution of Agreement to Sell in suit No. 9735/16, the subsequent suit filed with number 9832/16 (old number 819/94) is hit by Order II Rule 2 CPC. It is alleged that plaintiff has not sought the entire relief and cause of actions in the earlier CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 27 of 59 suits therefore, the subsequent suit bearing No.9832/16 (old number 819/94) is not maintainable as barred by Order II Rule 2 CPC. Plaintiff in this regard has stated that there were 5 separate agreement to sell executed in between the parties which are raising separate cause of action. It is stated that plaintiff has the liberty either to file one single suit containing all the five cause of action therein or file five separate suits as has been done by him. Submissions made by the plaintiff, in my considered opinion are tenable in the eyes of law. It is not disputed that every agreement to sell is creating a separate cause of action and entitles to file a separate suit upon that. As per CPC plaintiff has the liberty to join all the cause of action in one suit or to file separate suit on the basis of separate cause of action. Hence, this argument of defendant is not tenable in eyes of law. In terms of these observations, this issue is decided in favour of the plaintiff.40.ISSUE Nos. 7 and 9
7. Whether it was for the plaintiff to have obtained No Objection Certificate from the Tehsildar and Incometax Clearance Certificate in Form 38A from the Income tax authorities, as alleged? What would be the effect of nonobtaining of No Objection Certificate / Incometax clearance certificate from the said two authorities in the present suit?
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 28 of 59
9. Whether the suit is not maintainable for want of filing of the necessary application under Section 269UC of the Incometax Act?
41. Onus of these issues was upon the defendant. It has been observed in above paras that though as per the terms and conditions of the agreement vide its clause Nos. 7, 8 and 9, the defendant has to obtain NOC however, plaintiff as per his conduct as explained above, obtained signed NOC form from the defendant on two occasions however have not done anything further nor have alleged as to what steps have been taken further. Thus, the outcome of the above discussion is that it cannot be said that it was the entire duty of the defendant to obtain the NOC. Parties, more particularly plaintiff, by their conduct acted accordingly, this observation is further strengthened from the fact that it was stipulated as per the agreement to sell that time was the essence of the contract and it was to be performed within 4 months from the date 15.06.1988. This condition have been relaxed and extended by the parties as per their conduct which is already mentioned in above paras. Similar analogy applies with regard to the obligation of obtaining the NOC. When as per the agreement to sell dated 15.06.1988 it was agreed that NOC is to be obtained within 4 months but this condition was relaxed by subsequent conduct of CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 29 of 59 the parties then, the submissions made by defendant that the obligation to obtain NOC was shifted upon the plaintiff, cannot be ignored. Thus, with these observations issue Nos. 7 and 9 are decided in favour of defendant.
42.ISSUE Nos. 1, 2 and 6.
1. Whether the plaintiff had been and is still willing and ready to perform his part of the obligation under the agreement to sell dated 15th June 1988?
2. Whether the plaintiff is entitled to compensation for unauthorized use and occupation of the suit premises w.e.f. 28th January, 1994 onwards? If so, at what rate?
6. Whether the agreement to sell dated 15th June, 1988 has been tempered with by the plaintiff, as alleged?
43. All these issues are interlinked hence, taken up together. In order to decide these issues following points are required to be considered:
i. Whether plaintiff was ready and willing to perform the agreement.
ii. Who has cause the breach of the agreement or whether actual breach has been caused or there is anticipatory breach on the part of one of the party and contract is kept CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 30 of 59 alive at the option of other party.
iii. Whether plaintiff is entitled for compensation/ damages and if yes, at what rate?
44. In support of his contention plaintiff has examined Sh. Rattan Lal Didwania as PW2. PW2 is the father and attorney of the plaintiff. As per the pleadings the entire thing started from negotiation to purchase the land from execution of Agreement to Sell including all other incidental formalities are alleged to have been done by PW2 Sh. Rattan Lal Didwania. In his examinationinchief it is stated that PW2 is duly appointed constituted attorney of the plaintiff. Power of attorney in favour of PW2 is Ex.PW2/1 dated 17.08.1993. It is stated that plaintiff is a businessman doing business of import of iron scrap and is based in Mumbai. Plaintiff was not having any permanent address in Delhi in the year 1988 and whenever he used to come to Delhi he used to stay with PW2. It is stated that defendant approached plaintiff as well as PW2 for sale of his entire holding of agricultural land consisting of 25 bighas 1 biswa situated at Village - Bijwasan. Defendant agreed to sell his entire holding @ Rs.8 Lakhs per acre. Defendant executed six agreement for the sale of his total land holding of 25 bighas 1 biswa on 15.06.1988 and he was left with no lands. PW2 was present at the time of negotiations and execution of agreement CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 31 of 59 to sell dated 15.06.1988 which are six in numbers. PW2 has stated that defendant signed all the agreement to sell in his presence. The agreement to sell is Ex.PW2/2. Plaintiff has paid a total sum of Rs. 6 Lakhs to the defendant. Rs.50,000/ each were paid against agreement to sell which are subject matter of suit number (old) 842/94, 818/94, 802/94, 821/94, 819/94.
Plaintiff paid a sum of Rs. 3.5 lakhs and took the possession of the land in suit number (old) 819/94. It was agreed that balance amount shall be paid at the time of registration of the sale deed. It is further stated that defendant was to complete other legal formalities i.e. to obtain NOC from Tehsildar, ITC clearance and other permissions from local authorities for facilitating the registration of sale deed. It is stated that defendant agreed that all these formalities shall be completed within 4 months from the execution of agreement to sell dated 15.06.1988. It is stated that plaintiff signed necessary forms in advance and handed over to the defendant to complete the above said formalities. It is alleged that defendant has however not obtained the necessary certificate.
45.It is alleged that instead of applying for NOC as per the agreement one legal notice dated 13.10.1988 was given by defendant that since the plaintiff failed to register the sale deed the earnest money stands forfeited and agreement to sell is CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 32 of 59 cancelled.
46.It is stated by PW2, the attorney of plaintiff that vide legal notice dated 13.10.1994 defendant has terminated the contract whereas plaintiff has kept the contract alive by giving a reply to the said notice.
47. It is further stated that on 20.10.1988 plaintiff gave reply to the notice dated 13.10.1988 and reminded the defendant that he had to obtain the no objection from the authorities. Plaintiff has further stated that he was ready and willing to perform his part of contract and is ready to pay the balance consideration to the defendant. It is further stated that on 08.05.1989 vide Ex.PW2/5, plaintiff further intimated to the defendant about his obligation to obtain permission from the authorities. This letter is alleged to have been sent by 'Under Postal Certificate' from Mumbai post office. It is stated that no reply has been given. Plaintiff had written another letter dated 04.05.1989 Ex.PW2/7 by 'Under Postal Certificate' from Mumbai post office.
48.It is also stated by PW2 that in the last week of October, 1989 defendant met him at his residence and requested some more time to comply with formalities. Plaintiff granted some more time. Plaintiff again wrote a letter dated 23.10.1989 to CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 33 of 59 defendant which is Ex.PW2/9 sent by 'Under Postal Certificate' from Mumbai post office. It is further stated that defendant again met PW2 in November, 1989 and sought some more time to complete the formalities and it was granted. Plaintiff again wrote a letter dated 18.12.1989 which is Ex.PW2/10 sent by 'Under Postal Certificate' from Mumbai post office. Defendant met with PW2 on several occasions and sought some more time to complete the formalities.
49.It is stated that on 15.05.1991 defendant approached plaintiff and obtained the signature of plaintiff again on 'No Objection Certificate' which was signed by defendant along with plaintiff on 15.06.1988. Defendant had demanded extra money from PW2 for which plaintiff informed him on 17.10.1991 that no additional money was to be paid until he discharge his obligation as per agreement dated 15.06.1988. It is further stated that plaintiff had again written a letter dated 07.10.1991 Ex.PW2/15 sent by 'Under Postal Certificate' from Mumbai post office and also sent his authorized representative Sh.Amar Nath at the residence of defendant asking him to expedite the completion of formalities and registration of sale deed. Defendant however delayed the matter on one pretext or another. It is stated that plaintiff is ready and willing to perform his part of contract and to pay the balance consideration CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 34 of 59 however, defendant has failed to perform his obligation as per the contract. During his cross examination PW2 has denied all the suggestions given by the defendant which are in the form of his defence. Defendant suggested that plaintiff was not ready and willing to perform his part of agreement and it is he who has caused breach. These suggestions have been denied.
50.PW3 Sh. Amar Nath who has stated that he is employee in M/s Viraj Impex Limited since April, 1988. PW2 stated that he was aware that defendant agreed to sell his entire land at Village Bijwasan @ Rs.8 Lakhs per acre and he executed agreement to sell to transfer the land in favour of the plaintiff on 15.06.1988. PW3 has further stated that Rs.6 Lakhs in total was given as part payment. PW3 met with defendant in January, 1992 and on 03.01.1993 and requested him to get the formalities completed. Defendant assured for registration of sale deed but kept on prolonging the matter. It is further stated that attorney of plaintiff also visited the office of tehsildar and office of income tax authority to inquire about the NOC in respect to the suit property. It is stated that as per the agreement it was the duty of the defendant to obtain necessary permission from the authority for which he obtained the signature of plaintiff at the time of agreement and further on false pretext on 15.05.1991, however, he has not performed his obligation. It is CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 35 of 59 stated that plaintiff is ready and willing to perform his part of contract but defendant has denied to perform the contract.
51.During this cross examination, it is reflected that PW3 is not aware whether he has signed upon the Agreement to Sell as witness or not. PW3 has given a strange reply alleging that he do not remember what documents were signed between the parties besides the agreement. During his examinationin chief PW3 has stated that NOC application was signed by plaintiff twice, however, defendant has not obtained the permission. During his cross examination PW3 is disputing this fact and knowledge by stating that he do not remember what other documents were signed besides the agreement.
52.PW3 has also expressed his ignored about any notice being given to defendant in 1991 with regard to NOC. It is important to mention here that PW3 was reexamined on the point of the mentioning khasra number of the property as 819, whereas, as per record it is old number of one of the suit.
53.PW4 Sh. Bimal Rai, Kanoongo has been examined in rebuttal and this witness was asked to bring the record pertaining to the land falling within village Bijwasan in Khasra no. 105/16. It is CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 36 of 59 stated by this witness that document Ex.PW4/1 (colly.) and PW4/2 (colly.) which are already available on record are correct.
54.PW1 Sh. Shankar Genu Shivsharan is a witness from post office situated at Mumbai. This witness is an important witness who has been examined by plaintiff with regard to proving the fact that various communications were made by the plaintiff to the defendant through letters sent by post from Mumbai. It is alleged by plaintiff that he had sent various letters in between 1989 and 1991 to the defendant sent by 'Under Postal Certificate' from Mumbai post office Chinchbundar. This witness brought record pertaining to this post office at Mumbai, however, failed to apprise that any such record was maintained by the post office. One important thing to mention here is that these letters are alleged to have been posted from Chinchbundar post office, Mumbai by the plaintiff and no witness however has been examined from any other post office to prove that these letters have been delivered at the address of the defendant. In other words, the witness PW1 has been called from the post office from where letter is alleged to have been posted but no witness has been called by the plaintiff from the post office having the jurisdiction of the house of defendant where such letters are alleged to have been delivered.
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 37 of 59
55.Now, coming to the evidence led by the defendant. Three wittiness has been examined on behalf of the defendant. DW3 is Sh. Rajesh Sharma, Halka Patwari Village Bijwasan and Salarpur. This witness brought record pertaining to the property falling in the share of defendant in Village Bijwasan and Salarpur. It is stated by this witness that defendant is having other properties as mentioned in Ex.DW3/1 and Ex.DW3/2. This facts has already been discussed in details while dealing with issue No. 4 related to objection 33 and 45 of DLR Act.
56.DW2 again is a halka patwari who brought record pertaining to the properties of defendant. From the testimonies of these two witnesses no material contradiction has emerged. Relevancy of these two witnesses i.e., DW2 and DW3 is pertaining to issue No. 4 which has been decided in preceding paras.
57.DW1 is defendant himself. His examinationinchief is Ex.DW1/A. He has narrated all the facts and defence so taken by him in his written statement. Hence, it is not repeated here for the sake of brevity. During his crossexamination, it is stated by him that six separate agreement to sell were executed on 15.06.1988, in respect of agricultural land measuring 25 Bighas CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 38 of 59 1 Biswa situated at Village Bijwasan, Delhi. It is stated that besides this land defendant has other land in village Salapur. It is stated that he was not supplied the copy of Agreement to Sell dated 15.06.1988. DW1 admitted that he has not mentioned this fact in his written statement that copy of agreement was not supplied to him. DW1 admitted that it was his responsibility to obtain NOC from Tehsil and Income Tax Department, however, as the copy was supplied hence, there was no occasion for obtaining NOC. DW1 has further stated that about 22 blank NOC's were signed from him by the plaintiff which were not returned to him after signature. DW1 was confronted with the fact alleged in his written statement that he has stated that it was the duty of the plaintiff to obtain NOC for which he said that it is correct. DW1 has further stated that he has never given any letter of authorization in favour of plaintiff to obtain NOC from Tehsil. It has been stated by DW1 that the NOC was signed in blank and having no date. DW1 has further stated that on 15.06.1988, he had not met with plaintiff but met with his father. DW1 further stated that after 15.06.1988 and before issuance notice dated 13.10.1988, he did not meet with plaintiff or his father or anyone on their behalf.
58.DW1 has categorically stated that he has not applied for NOC either in Tehsil or in Income Tax Department for the reason that CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 39 of 59 no document was supplied to him. DW1 has also denied receiving the letters Ex.PW2/2 to Ex.PW2/16 except Ex.PW2/3. DW1 has also denied having handing over the possession of the suit property in Suit No. 9832/2016 (old no 819/94). DW1 has also disputed the fact that plaintiff obtained his signature again on NOC form on 15.05.1991 which is Ex.PW2/14.
59.It is a matter of record that affidavit of one witness namely Sh.Chander Bhan was filed by defendant and his examination inchief was also tendered on 21.07.2007, however, this witness did not come thereafter for his crossexamination. It is stated by Ld counsel for plaintiff that as examinationinchief of Sh.Chander Bhan was recorded, therefore, it become relevant and if there is any contradiction or anything emerging in favour of plaintiff then plaintiff can take benefit of it as per law. Submissions made by the plaintiff to this extent are tenable in the eyes of law. Had the examination in chief not been recorded then the things could be different but because examinationin chief was recorded and this witness never turned up for his crossexamination therefore, his examinationinchief can be looked into. Sh.Chander Bhan is stated to be the fatherinlaw (Samdhi) of defendant. This witness has stated that six agreement to sell were executed. This fact is not at all disputed. It is further stated that these agreements were signed undated. It CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 40 of 59 is also stated that besides six agreement, NOC was also signed by defendant on 15.06.1988 but they were undated and not containing the name of the purchaser. Sh.Chander Bhan further stated that on 15.06.1988, physical possession of land was not handed over.
60.Plaintiff has relied upon the examinationinchief of Sh.Chander Bhan alleging that he has not disputed the execution of Agreement to Sell dated 15.06.1988. These agreement to sell has also not been disputed by the defendant. The defence taken by defendant is that time was the essence of the contract and it was the duty of the plaintiff to obtain NOC from the concerned department in which he miserably failed, therefore, contract is terminated.
61.Now, the entire thing rests upon the para Nos 7, 8 and 9 of Agreement to Sell dated 15.06.1988. These paras are reproduced here as under:
"7. That the first party shall obtain the No Objection Certificate from the Tehsildar Notification, Delhi or any other concerned authority at his own cost and responsibility to sell the said land in favour of the second party or his nominee/s.
8.That the first party at his own cost and responsibility shall obtain the Income Tax CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 41 of 59 Clearance Certificate in Form 34A under the provisions of Section 230A(1) of the Income Tax Act, 1961, to sell the said land in favour of the Second party or his nominee/s.
9.That the first party shall complete all the formalities for registration of sale deed/s i.e. NOC, ITC and other formalities for registration with 4 months from the date of execution of this Agreement to Sell and shall inform the second party or the nominee/s by Registered A.D. and if the second party fails to get the sale deed registered with 4 months or within three weeks from the receipt of the notice/intimation from the first party, which ever is later, the earnest money paid by the second party shall stands forfeited and if the first party fails to get the sale deed registered in favour of the second party or the nominee/s then he shall be liable to pay double the amount paid by the second party plus the damages, as agreed compensation, but only where any technical difficulty arises and the sale permission is refused to him, otherwise, the second party shall get the sale deed registered through the court of law at the cost and expenses of the first party under suit for specific performance. The time is the essence of this Agreement."
62.From the bare perusal of para Nos. 7, 8 and 9 of Agreement to Sell exhibited as Ex.PW.2/2, it is reflected that first party is the CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 42 of 59 defendant and second party is the plaintiff. As per para Nos. 7 and 8 mentioned at page No. 3 of the agreement, it has been agreed that the first party i.e. defendant shall obtain the NOC from the concerned authority. As per para 9 mentioned at page no 4, all the formalities are to be completed by first party i.e. defendant within 4 months from the date of execution i.e. 15.06.1988. It is also been stipulated vide para 9 that, if first party fail to get sale deed registered in favour of second party then first party shall be liable to pay double of the amount so paid including damages. The issue pertaining to time as the essence of the agreement has already been decided in favour of plaintiff. Thus, as per the terms and condition stipulated in Agreement to Sell dated 15.06.1988, in my considered opinion, it was the duty of defendant to obtain NOC from concerned authority. It is reflected however that parties through their conduct modified these terms and conditions. One of such instance is that though time is mentioned as essence of contract, but it was not considered to be later on. Similarly obtaining of NOC is to be done by defendant within four months, but plaintiff kept waiting, as alleged by himself from 1988 till 1991 and obtained the signature of defendant, as again alleged by him, twice on NOC. This condition, in my considered opinion, has not strictly adhered to by plaintiff.
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 43 of 59
63.Now, proceeding further and considering as to who has committed the breach or whether contract has been terminated or it was a mere anticipatory breach and contract was kept alive at the option of plaintiff, the evidence led by the parties is perused again. Plaintiff has placed on record one letter dated 20.10.1988 duly Ex.PW2/3 alleging that it was the reply to the notice dated 13.10.1988 given by the defendant. As per letter dated 13.10.1988, Ex.DW1/1 defendant has declared that it was the plaintiff who has to obtain NOC and it has not been obtained in due course of time as stipulated in the Agreement to Sell dated 15.06.1988, therefore, seven days more time is given from the receipt of this letter (dated 13.10.1988) to comply with the formalities as the contract shall be terminated and amount stand forfeited. In his reply vide Ex.PW2/3 plaintiff has stated both the facts. On the one hand, he has demanded double of the amount so paid and on the other hand alternatively he had demanded that defendant should obtain NOC within reasonable time. Plaintiff has further stated that he is willing to pay the remaining amount and get the sale deed registered.
64.Thus, so far as pleadings are concerned, both the parties are stating contrary to each other. Defendant has alleged that plaintiff was never ready and willing to perform the contract and he has not been able to show any evidence to this effect that CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 44 of 59 he was having sufficient funds available with him on the relevant day i.e. either on October 1988 or in the year 1991 or 1992. Plaintiff on the other hand, stated in the plaint that he was ready and willing to perform his part of agreement. It is stated that vide its para Nos. 19 and 26 of plaint, it has been alleged that plaintiff is ready and willing to perform his part of agreement.
65.Now, coming to the law on the subject, specific performance of agreement are mentioned in Sections 10, 14, 15, 16, 17 and 18 of the Specific Relief Act. Discretion and power of court to grant of relief in a suit of specific performance is mentioned in Section 20 to Section 24 of the Act of 1963. In nutshell, in order to seek the specific performance of an agreement, the plaintiff has to establish that:
(a) he was ready and willing to perform the contract;
(b) he has not terminated the contract from his side;
(c) it is the other party i.e. defendant who has been refusing to perform the contract;
(d) there was sufficient funds available with the plaintiff and he was having capacity to pay.
66.With regard to relief prayed in the suit, the onus as per the Indian Evidence Act is always upon the plaintiff. He has stated CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 45 of 59 that he was ready and willing to perform the contract as mentioned in para Nos. 19 and 26 of the plaint. Similar facts are alleged by PW2 in his evidence, who is stated to be the attorney of the plaintiff. As per the requirement of the relevant provisions of Act of 1963, the plaintiff has to show more than that, that he was having the capacity to pay as well. The requirement of establishing this fact become more important when defendant has taken the defence that plaintiff was neither ready and willing nor was having any capacity to pay that is why he made lame excuses.
67.From the perusal of entire record from the side of the plaintiff, he has not been able to show his capacity to pay the agreed/remaining sale consideration. Pleadings and the evidence from the side of plaintiff are silent to this extent.
68.In support of his contention plaintiff has relied upon a number of judgments which are as follows:
(a) 'Aloka Bose Vs Parmatma Devi and Others', (2009) 2 Supreme Court Cases 582.
(b) 'Nathulal Vs Phoolchand', 1969 (3) Supreme Court Cases 120.
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 46 of 59
69.In Aloka Bose (supra) it has been held that:
"Held: An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communication which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and the vendor has a copy signed by the purchase. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it."
18. In any agreement of sale, the terms are always negotiated and thereafter reducing the form of an agreement of sale and signed by both parties or the vendor alone.
(unless it is by a series of offers and counteroffers by letters or other modes of rerecognized communication). In India an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser has always been considered to be a valid contract. In the event of breach by the vendor it can be specifically enforced by the purchaser.
There is, however, no practice of purchase alone signing an agreement of sale."
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 47 of 59
70.In the judgment tittled as Nathulal (supra), it has been held that: "Held:
(i) That the question whether Nathulal committed the breach of agreement is not of any significance as he was the owner of the land and the factory. His right could be defeated by Phoolchand only if he makes out a case of part performance under Section 53A, Transfer of Property Act.
Section 70 (8) of debt Madhya Bharat Revenue and Tenancy Act, is no bar to such a plea as the section requires a completed sale, and not a mere contract of sale as in this case. All the conditions stipulated in the Section 53A Transfer of Property Act have been fulfilled by Phoolchand.
He had ready money to pay. A purchaser has not necessarily to produce the money to vouch a concluded scheme for financing the transaction.
Bank of India Ltd. and Ors. v. Jamsetji A. H. Chiony and Messrs. Chinoy & Co. (3) LR 77 1 I A 76, 91, referred to.
(ii) That by virtue of Section 4 of the Transfer of Property Act, the chapters and sections of that Act which relate to contracts are to be taken as a part of the Indian Contract Act, 1872, if under the terms of the contract the obligations of the CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 48 of 59 parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations of the other parties without in the first instance, performing his own part of this contract which in sequence of obligations is performable by him earlier.
Nathulal's undertaking to have the change of the Revenue records effected was held to be such a pre condition.
(iii) That it is well settled that where by statute property is not transferable without the permission of the authority, an agreement to transfer the property must be deemed subject to the implied condition that the transferor will obtain the sanction of the authority concerned. Hence, Nathulal as vendor has necessarily has to get the prior sanction of the State Government made under Section 70 (4) of Madhya Bharat Land Revenue and Tenancy Act (Act No. 66 of 1950). This he has to fulfill before he can claim payment from Phoolchand notwithstanding the absence of such a clause in the agreement."
71.Ld. counsel for defendant on the other has also relied upon a number of judgments in support of his contention:
(a) 'Man Kaur (Dead) by Lrs Vs Hartar Singh Sangha';Manu/SC/0789/ 2010.
(b) 'Sarabjit Singh Vs Anup Sharma & Ors',
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 49 of 59
(Manu/DE/1258/2016)
(c) 'Gopal Devi Vs Kanta Bhatia', 54 (1994)DLT 541 (DB).
(d) 'Kamal Kumar Vs Premlata Joshi'
Manu/SC/0012/2019
(e) 'Satya Jain through Lr's & Ors Vs Anis Ahmad Rushdie & Ors', (2013) 8 Supreme Court Cases 131.
(f) B.Vijaya Bharati Vs P Savitri & Ors (MANU/SC/1032/2017)
(g) Matadin Yadav Vs. Mindas Lids, (MANU/DE/4109/2013)
72.In all the judgments relied upon by the defendant, it is alleged that issue pertaining to Section 16 (c) of Specific Relief Act has been specifically dealt with and it has been further stated that for a suit for specific performance the plaintiff has not only to established that he is ready and willing to perform but he is also required to establish that he was having capacity to pay and get the agreement executed in his favour on the day of its execution. Apart from this, plaintiff also has to establish that he is still ready and willing to perform and has the capacity. In Man Kaur (Supra) which is also relied upon by the plaintiff it is has been held by Hon'ble Supreme Court of India that:
"The continuous readiness and willingness CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 50 of 59 on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to ay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract."
73.Similar are the observations in Sarabjeet Singh (Supra), Gopal Devi (Supra), Kamal Kumar (supra), Satya Jain (Supra), B. Vijaya (Supra) and Mata Deen (Supra).
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 51 of 59
74.From the above discussions, it is reflected that mere averment that plaintiff was ready and willing to perform is not suffice. He has to establish more than that. He has to show that sufficient funds were available with him on the day of performance of the contract. It is also reflected from the record that none of the party is specifically alleging anything from which it could be manifest that they were at fault. It has to be construed, therefore, from their conduct. Thus, the judgment relied upon by the defendant are equally applicable in present facts and circumstances. One of the judgment of Man Kaur (Supra) is also relied upon by the plaintiff. In the light of above discussion, it is therefore reflected and I am of the considered opinion that plaintiff was not ready and willing to perform his part of contract. Mandate laid down under Section 16 (c) of Specific Relief Act, therefore, applies here with full force and Vigor. Following are certain facts which substantiate this submission:
(i) Agreement to sell dated 15.06.1988 speaks about the time as essence of the contract and it was to be performed within four months thereafter. However, plaintiff has stated that time was not the essence of the contract. On the contrary, it is further argued that vide application for obtaining NOC Ex PW 2/14 dated 15.05.1991, limitation period had started afresh. Limitation period can only be CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 52 of 59 said to start afresh when it has begun to run. On the contrary, when time was not the essence of the contract as alleged then limitation period was not supposed to start and there could be not acknowledgement under Section 18 of Limitation Act.
(ii)Plaintiff has alleged to have sent various letter expressing his desire to continue with the contract however, all such letters dated 04.09.1990, 18.12.1989, 05.03.1990, 06.08.1990, 06.05.1991, 7.10.1991 and 23.10.1989, UPC of which are Ex PW 1/1 to PW 1/7 and the letters are Ex.PW 2/4 to PW 2/14, have been alleged to be sent from Chinchubunder post office, Mumbai but they are disputed and denied by the defendant. Compliance of Section 27 of General Clauses Act has not been done by the plaintiff for the reason that the proof regarding sending the letters is sought to be established to PW 1 but no evidence regarding delivery of these letters has been led. The onus to prove this fact is upon the plaintiff as receiving of these letters is disputed by the defendant. Plaintiff has failed to discharge the burden of proving this fact upon him.
75.In this context, with regard to proof of service through 'UPC' counsel for defendant has relied upon judgments titled as 'State CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 53 of 59 Bank of India Vs. H. C. Takyar and Ors.', RFA No. 6/2004 decided on 13.02.2012 and 'Greater Mohali Area Development Authority and Ors. Vs. Manju Jain and Ors.' In these cases it has been observed that: "The sole reliance is upon postal certificates. In my opinion, letter whereon fate of the case gangs and execution whereof itself if doubtful; reliance upon postal certificates will not be poper. The Hon'ble Supreme Court and the Hon'ble Hight Court have time and again cautioned total reliance upon the UPC receipts, on a letter which is the fulcrum of the dispute between the parties. Despatch of the letter under postal certificate is also doubtful for the reason that the very next communication dated 11.09.1998 by the Bank addressed to the landlords was dispatched through registered post. The tenant has also not referred to any practice or directions by any higher authorities of the bank for dispatching the letters under postal certificate."
76.The outcome of the mandate laid down regarding reliance upon postal communication through 'UPC' it has therefore, been considered as not a reliable means to communicate. It has also been observed that when communication is through other means of postal communication like 'Registered Cover' and 'Speed Post' more importance should be given to other means. In the CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 54 of 59 present case, the only mean of communication adopted by plaintiff is through UPC. Moreso, only the witness from the place where the letter was posted has been examined who did not bring the entire record and no witness from the place where the letter was delivered to the addressee has been examined. Hence, all these letters as already stated above sent through UPC which are Ex.PW1/2 to Ex.PW1/7 and Ex.PW2/4 to Ex.PW2/14 cannot be presumed to have been delivered and the presumption under Section 27 General Clauses Act cannot be said to be in favour of the plaintiff. In other words there is no communication of the intention of the plaintiff through these documents that he was ready and willing to perform. Moreso, plaintiff has not led any evidence to show his capacity that he was having sufficient funds to pay the remaining sale consideration as per agreement There is no compliance of Section 16 (c) of Specific Relief Act.
77.Hence, the outcome of above discussion is that it was the plaintiff who was not ready and willing to perform his part of contract. As per the terms and condition of Agreement to Sell dated 15.06.1988, the defendant was to obtain NOC however, plaintiff himself has alleged that he obtained the signature of defendant twice on the application for obtaining NOC. If plaintiff has obtained the signature of the defendant twice upon CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 55 of 59 the application for obtaining the NOC as alleged by himself then he must have done something further thereafter for which he has simply stated that the defendant was not coming forward. Defendant has stated in his evidence that in order to submit signed application for obtaining NOC, personal presence of the parties is not required. Plaintiff has stated nothing in this regard and rather he remain silent on this aspect during entire trial. Thus, defendant has been able to show that plaintiff by his conduct as mentioned above, was not performing his part of agreement. Hence, it was the plaintiff who committed the breach of agreement. Therefore, issue Nos. 1,2 and 6 are decided in favour of defendant and against the plaintiff.
78. ISSUE No. 88.Whether the defendant is legally entitled to forfeit the amount of the earnest money?
79.It is reflected from the above discussion that plaintiff has not been able to establish that he was ready and willing to perform his part of obligation as per Agreement to Sell dated 15.06.1988 and as per Section 16 (c) Specific Relief Act he is not entitled for specific performance of the agreement. During above discussion, it was observed that defendant was having land more than 8 acre under his possession and this fact was very much within his knowledge since the beginning when the CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 56 of 59 negotiation for sale and purchase of his land was going on. Despite this fact he entered into the agreement to sell and on the other hand the plea of bar of Section 33 and 45 of Bearer Act has been taken by him. Defendant therefore, cannot be allowed to blow hot and cold at the same time. On the one hand he took the part sale consideration from the plaintiff and on the other hand he took the defence that the agreement could not be performed due to the bar laid down under D.L.R. Act. Thus, in my considered opinion the conduct of defendant therefore, is not appreciable to a certain extent hence, though agreement to sell dated 15.06.1988 has been directed not to be specifically performed, however, defendant cannot be allowed to be forfeit the amount received by him due to the reasons mentioned above. Hence, he is directed to return the earnest money i.e. to the tune of Rs.350,000/ along with interest @ 12 % per annum from the date when he received the same till its realization.
80.RELIEF During arguments, it has been reflected from the submissions of the parties that the plaint filed by plaintiff is not signed by him and the affidavit of the plaintiff is also not supported with but it is signed by his father Sh.Rattan Lal Didwania. In the entire plaint, it has not been alleged by the plaintiff that the suit has been filed on the basis of attorney holder. The counsel for CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 57 of 59 defendant has prayed that in these circumstances as the plaint is not filed by a duly authorised person, hence, it is liable to be rejected.
81.Counsel for plaintiff has relied upon the judgments titled as Man Kaur (Supra) and 'Janki Vasudeo Bhojwani Vs. Indusind Bank Ltd.', (2005) 2 SCC 217 and 'M C S Rajan and Company vs. National Nail Industries, Tiruchirapalli and others.' 3rd April, 1985 659/71.
82.From the careful perusal of the record it is reflected that, the first and foremost requirement of Order I, IV and VI CPC is that the plaint which is filed by plaintiff should be duly signed and verified by him and supported with duly sworn affidavit. If it is filed on behalf of attorney then as per Order VI CPC pleadings have to be specific. If there is no averment in the entire pleading then such defect even though it is objection of law but is so grave that it goes to the root of the case. As per Indian Evidence Act any fact which is not supported with and authenticated by the party submitting it then it cannot be considered. No doubt the court should not adopt a hyper technical approach however, signing of plaint by the plaintiff and its verification is very essential for authentication of the facts mentioned therein. This requirement is lacking here.
CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 58 of 59 Thus, as no reasonable explanation has been furnished by the plaintiff in this regard, therefore, it has to be considered accordingly. It is therefore, concluded that even the facts mentioned in the plaint are not supported with and verified by the signature of the plaintiff.
83.The outcome of the above discussion is that plaintiff has miserably failed to prove his prayer in specific performance of agreement to sell against the defendant, therefore, agreement to sell cannot be directed to be performed. Defendant, however, is directed to return the earnest money i.e., to the tune of Rs.3,50,000/ along with interest @ 12 % per annum from the date when he received the same till its realization. Cost of the suit is also awarded.
Decree sheet be prepared accordingly.
File be consigned to record room, after due compliance.
Digitally signed by
PRASHANT PRASHANT KUMAR
KUMAR Date: 2019.09.05
14:34:24 +0530
Announced in the open court (PRASHANT KUMAR)
on 31st August, 2019. ADJ01/ Central District Tis Hazari Court/Delhi CS No.983216 Prakash Rattan Lal Vs. Mankey Ram Page No. 59 of 59