Delhi District Court
Vardhman Adhaayatmik Sansthan (Regd.) vs Mrs. Sangeeta Ahlawat on 14 October, 2022
Suit No. 17506/2016
IN THE COURT OF SH. DIVYANG THAKUR, LD. ADJ03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suit No: 17506/2016
CNR No. : DLSW01-004385-2016
Vardhman Adhaayatmik Sansthan (Regd.)
Through its Secretary Sh. Vinod Kumar Jain
Having its Registered Office at:
J-1149, Palam Vihar,
Gurgaon-122017
Haryana
.....Plaintiff
Versus
1. Mrs. Sangeeta Ahlawat
W/o Col. Ajay Ahlawat
R/o The Rissala Estate
Bijwasan, New Delhi
......Defendant no. 1
2. Col. Ajay Ahlawat
S/o Not known
R/o The Rissala Estate
Bijwasan, New Delhi
.....Defendant no. 2
SUIT FOR SPECIFIC PERFORMANCE, MANDATORY AND
PERMANENT INJUNCTION
DATE OF INSTITUTION : 03.01.2012
DATE OF FINAL ARGUMENTS : 08.09.2022
DATE OF DECISION : 14.10.2022
Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr.
Suit No. 17506/2016 2
JUDGMENT
1. The plaintiff had initially filed the present suit for Specific Performance, Mandatory and Permanent Injunction before Hon'ble High Court of Delhi seeking (a) execution of necessary documents i.e. sale deed/power of attorney or any other registered instrument to transfer the ownership rights of the property measuring 1411.11 sq. yds. in Khasra No. 28/66 Min, Khasra No. 9 Min, Mustakil-8, Ansal Plaza-Bijwasan Road, Opposite J and K Block, Palam Vihar, Gate no. 1, Near Bijwasan Toll Tax, Village Sahalpur, Tehsil, Kapashera upon balance payment of Rs. 30 lacs (b) directions to defendant no. 3 to permanently remove his lock(s) from the gate of the suit premises and the iron grill/gate of the Jain temple located therein (c) directions to permanently restrain defendants no. 1, 2 and 3 or any of their assignees, representatives, servants from interfering or disturbing the peaceful possession of the plaintiff in the suit property
(d) directions to defendants no. 1 and 2 to return the amount of Rs. 1 crore along with market rate of interest till its realization along with exemplary damages/compensation to the plaintiff society. PLAINT
2. In the plaint of this suit, the plaintiff has pleaded that the plaintiff is a registered society and engaged in the activity of religious Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 3 and social promotion of Jainism. It is further averred in the plaint that the plaintiff society has been formed by like minded people from Jain Community who are engaged in different vocations like business, profession, service etc. Plaintiff has also averred in the plaint that the members of the society had come forward and collected/donated/managed funds to set up and develop a Jain temple in the vicinity of Palam Vihar and accordingly, located a plot of land having a regular boundary and a small built up, deserted structure, situated near to the main road with easy accessibility bearing Khasra No. 28/66 Min, Khasra no. 9 Min, Mustakil-8, Ansal Plaza- Bijwasan Road, Opposite J and K Block, Palam Vihar, Gate no. 1, Near Bijwasan Toll Tax, Village Sahalpur, Tehsil, Kapashera and upon inquiry, found that the said plot belonged to defendants no. 1 and 2. It is further averred that thereafter, the President and Secretary of the society along with other members approached defendants no. 1 and 2 and while negotiating, defendant no. 2 orally agreed to sell the property in question for a sum of Rs. 1,30,00,000/- in total on 06.09.2011 and accepted a token amount of Rs. 1,00,000/- in cash and executed receipt thereof. Plaintiff further avers that defendant no. 2 represented M/s Saj Properties Pvt. Ltd. Company wherein defendant no. 1 is the Director and owner of about 11 acres of the land and the plot in question is a part of the said larger tract. Defendant no. 2 had also showed certain documents relating to the said company, however, Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 4 expressed his inability to give a copy of the documents and said that he would give a certified copy of the title/ownership documents at the time of executing a proper sale deed or a registered agreement with GPA, SPA etc. upon accepting the full and final consideration price of Rs. 1,30,00,000/- for a total area of 1411.1 sq. yds. of property.
3. It has been further averred in the plaint that on 06.09.2011, defendant no. 1 came to the site/plot in question and suggested that plaintiff society can easily bring the old abandoned structure built up in about 50 sq. yrds. into the shape of a functioning Jain Temple. Plaintiff also avers that defendant no. 2 told the plaintiff society that they would have to compromise for the front face of the property as he has sold a plot of 300 sq. yds. to defendant no. 3 and therefore, 20 ft. of the front side falls to the share of defendant no. 3.
4. Thereafter, following payments were made to defendants no. 1 and 2 and were duly acknowledged by receipt executed by defendants no. 1 and 2:
(a) Rs. 24,00,000/- on 05.10.2011 (Rs. 10,00,000/- by cheque bearing no. 109123 dated 03.11.2011 drawn on Bank of Baroda, Sector-53, Branch Gurgaon and Rs. 14,00,000/- in cash).
(b) Rs. 53,00,000/- on 05.10.2011. (c) Rs. 11,00,000/- vide cheque bearing no. 109121 dated
05.10.2011 drawn on Bank of Baroda, Sector-53, Branch Gurgaon.
Thus, plaintiff has averred in the plaint that by Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 5 05.10.2011, plaintiff had made Rs. 89,00,000/- of total payment out of the settled amount of Rs. 1,30,00,000.
5. In the plaint of the suit, plaintiff has averred that plaintiff society had requested the defendants to get prepared the necessary documents as they wanted to start the temple from the occasion of Diwali on 26.10.2011 to which defendant no. 2 expressed that his wife was leaving for a tour and asked the plaintiff society to pay a sum of Rs. 11,00,000/- in cash for totalling the amount to Rs. 1 Crore out of the settled amount and readily agreed to handover the actual physical possession of the plot in question. Accordingly, plaintiff society agreed and paid Rs. 11,00,000/- to defendant no. 2 on 16.10.2011 and thereafter, it was further agreed that on return of defendant no. 1, balance amount of Rs. 30,00,000/- would be paid and simultaneously, necessary documents would be executed. Thereafter, plaintiff society started the work of renovation and held a proper function on 27.11.2011 for ceremonies and rituals. However, despite invitation, defendant no. 2 did not attend the same.
6. Plaintiff further avers that on 23.12.2011, defendant no. 3 along with his accomplices reached the property in question and directed the pujari of the Jain Temple to vacate the premises and flaunted order dated 01.12.2011 passed by the Court of Ld. Civil Judge, Dwarka Courts, wherein defendant no. 3 had been granted an ex-parte stay order for the property in question against defendants no. Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 6 1 and 2 on the basis of some alleged agreement to sell dated 13.06.2007 pertaining to 300 sq. yds. of land i.e. 6 Biswas. Pujari informed the office bearers of the plaintiff society and the said claim was refuted by them. Thereafter, plaintiff also avers that on the same evening, members of the plaintiff society were summoned by the SHO, P.S. Kapashera and got the lock of defendant no. 3 installed at the site under the garb of the aforesaid court order. It is averred by the plaintiff that defendants no. 1 and 2 had been postponing the issue of finalizing the deal, accepting balance payment and execution of necessary documents. Consequently, on these grounds, the plaintiff has filed the present suit for specific performance, permanent and mandatory injunction.
WRITTEN STATEMENT, REPLICATION, ADMISSION-DENIAL OF DOCUMENTS AND FRAMING OF ISSUES 7. A perusal of the Court file reveals that the
summons and notice of interim application was ordered to be issued qua the defendants, on 03.01.2012 and joint Written Statement on behalf of defendants no. 1 and 2 was filed whereas, defendant no. 3 filed a separate WS on 08.02.2012. Plaintiff did not file replication to the WS filed on behalf of defendants no. 1 and 2, but filed replication to the WS filed on behalf of defendant no. 3. Interim application was disposed off vide order dated 08.02.2012 passed by the Hon'ble High Court of Delhi.
Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 7
8. In the WS filed on behalf of defendant no. 3, the defendant no. 3 had pleaded that the present suit of the plaintiff is not maintainable. It has been submitted on behalf of defendant no. 3 that he has no concern with the plaintiff society regarding the suit property since defendant no. 3 has no privity of contract or Agreement. Defendant no. 3 further submits that he has not executed any sale agreement or received any consideration amount from the plaintiff. It is further averred in the WS of defendant no. 3 that the present suit is barred by Section 10 of CPC since the matter is sub judice before the Civil Court of the suit property between the defendants no. 1 and 3 and the plaintiff has moved an application under Order I R 10 for being arrayed necessary party in that suit. Defendant no. 3 further avers that there is no cause of action against defendant no. 3 regarding the present suit. Moreover, it has also been submitted in the WS of defendant no. 3 that the plaintiff has concealed the material facts of this case by not explaining the possession and title of ownership. As per defendant no. 3, plaintiff has also concealed the fact that defendant no. 1 has sold the suit property to defendant no. 3, hence no question arises of sale by defendant no. 1 to the plaintiff. Further, in the WS, defendant no. 3 has also averred that the present suit for specific performance is not maintainable as there is no agreement or contract between the plaintiff and defendant. On these grounds, defendant no. 3 has averred that the present suit is liable to be dismissed. Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 8
9. In the WS filed on behalf of defendants no. 1 and 2, defendants no. 1 and 2 had pleaded that they have already handed over the possession of the suit property to the plaintiff and that Rs 30,00,000 remains to be paid by the plaintiff. They further pleaded that they had only agreed to sell the possessory rights and never agreed to execute sale deed and the same was explained to the representative of the plaintiff society Shikhar Jain at the time of the agreement.
10. Admission-denial of documents was conducted before the Hon'ble Court on 29.11.2012 wherein plaintiff had denied all the documents of defendant no. 3 and defendants no. 1 and 2 did not file any document. Thereafter, defendants no. 1 and 2 admitted 19 documents of the plaintiff which were marked as Ex. P1 to Ex. P19 and admitted/denied the documents of defendant no. 3 wherein three documents were marked as Ex. D1 to Ex. D3. On 25.09.2013, following issues were framed:
(I) Whether the plaintiff and defendants no. 1 and 2 entered into an agreement for purchase of the suit property measuring 1411.1 sq. yds. located at revenue village of Salahpur, Tehsil Kapashera, New Delhi for a consideration of Rs.
1,30,00,000/-? (OPP) (II) Whether the plaintiff paid Rs. 1,00,00,000/- to defendants no. 1 and 2 out of a total consideration of Rs. Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 9 1,30,00,000/-? (OPP) (III) Whether the suit property is in the physical possession of the plaintiff? (OPP) (IV) In case it is held that the plaintiff is in physical possession of the suit property, whether the defendants have any right to interfere in the suit property? (OPD) (V) Whether defendants no. 1 and 2 executed an agreement to sell in favour of defendant no. 3? If yes, its effect.
(OPD-3) (VI) Relief.
No other issue arose or was pressed for. Matter was proceeded for plaintiff's evidence.
11. Thereafter, at joint request of parties, matter was referred to mediation vide order dated 05.08.2015 wherein the matter was not settled. However, the present matter was transferred to the District Courts vide order dated 22.03.2016 in pursuance to notification no. 27187/DHC/Orgl. Dated 24.11.2015. On 03.09.2016, it was submitted by Ld. Counsel for defendant no. 3 that defendant no. 3 had expired on 30.12.2015 and thereafter, an application under Order XXII R 4 r/w Section 151 of CPC was filed on behalf of LRs of defendant no. 3. An application under Order I R 10 of CPC r/w Section 151 of CPC was also filed on behalf of plaintiff for deleting/striking out defendant no. 3 from the array of parties Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 10 as no relief was sought against defendant no. 3 and the same was allowed vide order dated 23.10.2018. Whereas, application under Order XXII R 4 of CPC was dismissed as issue of title of defendant no. 3 (deceased) and his LRs was not required to be adjudicated in the present lis. However, none had appeared for defendants no. 1 and 2 for many dates and therefore, they were proceeded as ex-parte vide order dated 16.01.2017.
12. Thereafter, at another joint request of parties, matter was referred to mediation for exploring the possibility of settlement, if any, however, the same could not be settled once again and matter was proceeded for plaintiff's evidence as already fixed. EVIDENCE LED BY THE PARTIES
13. On 18.11.2019, PW-1 Sh. Shikhar Chandra Jain tendered his evidence by way of affidavit Ex. PW-1/A/1 and relied upon the following documents:
(a) Original authorization letter dated 25.12.2011 is Ex.
PW1/P/1;
(b) Attested copy of certificate of registration and article association of the plaintiff is Ex. PW1/P/2;
(c) Original receipt dated 06.09.2011 issued by defendants for receipt of Rs. One lakh is Ex. PW1/P/3;
(d) Original receipt of Rs. 53 lakhs in cash on 05.10.2011 is Ex. PW1/P/4;
Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 11
(e) Original receipt of Rs. 11 lakhs vide cheque no. 109121 dated 05.10.2011 of Bank of Baroda Gurgaon is Ex. PW1/P/5;
(f) Receipt of Rs. 24 lakhs dated 03.11.2011 is Ex. PW1/P/6;
(g) Confirmation of encashment of the cheques by defendant no. 1 for Rs. 11 lakhs and Rs. 10 lakhs is Ex. PW1/P/7;
(h) Original photographs of the site as it stood before 26.10.2011 and that of formal Puja on 26.10.2011 are Ex. PW1/P/8 and Ex. PW1/P/9;
(i) Invitation card, email invites, photographs of possession and of the event held on 27.11.2011 at the property in question is Ex. PW1/P/10 (colly);
(j) E-mails dated 01.12.2011 are Ex. PW1/P/11; (k) Invitation cards of the grand event of Murti Sthapna to
be held on 27.11.2011 to the public is Ex. PW1/P/12;
(l) Bills of Kaushik Sweets and Caterers dated 27.11.2011 is Ex. PW1/P/13;
(m) Original copy of Amar Ujala newspaper dated 29.11.2011 is Ex. PW1/P/14; (n) E-mail dated 01.12.2011 is Ex. PW1/P/15; (o) Certified copy of Civil Suit No. 312 of 2011 is Ex. PW1/P/16; (p) Certified copy of order dated 01.12.2011 is Ex.
Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 12 PW1/P/17;
(q) Site plan of the property sold to the plaintiff society is Ex. PW1/P/18;
(r) Original copy of Punjab Kesri dated 29.11.2011 is Ex. PW1/P/19.
PW-1 was cross examined and discharged on 09.06.2022.
14. PW-2 Sh. R.K. Jain tendered his evidence by way of affidavit exhibited as Ex. PW2/1 and relied upon documents which were already exhibited as Ex. PW1/P/1 to Ex. PW1/P/19. PW-3 Sh. Vipin Jain had also tendered his evidence by way of affidavit exhibited as Ex. PW3/A/1 and relied upon documents already exhibited as Ex. PW1/P/1 to Ex. PW1/P/19. PW-3 was cross examined and discharged. PW-4 Sh. Shailendra Jain tendered his evidence by way of affidavit exhibited as Ex. PW4/A/1 and he had also relied upon documents already exhibited as Ex. PW1/P/1 to Ex. PW1/P/19. Thereafter, vide separate statement of Ld. Counsel for plaintiff, plaintiff's evidence was closed and evidence of PW-2 Sh. R.K. Jain and PW-3 Sh. Shailendra Jain was dropped and taken off the record.
15. However, it was again submitted on behalf of the parties that there were chances of settlement and matter was once again referred to mediation vide order dated 16.11.2021 wherein the same could not be settled. Thereafter, status quo order was passed regarding Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 13 construction upon the suit property vide order dated 05.02.2022. An application under Section 152 of CPC r/w Section 151 of CPC was filed on behalf of plaintiff for recalling order dated 05.02.2022 which was partly allowed and disposed off accordingly vide order dated 05.03.2022. Another application under Order XXXIX R 1 and 2 of CPC moved on behalf of plaintiff was also allowed and disposed off vide the same order.
16. DW-1 Col. Ajay Ahlawat tendered his evidence by way of affidavit exhibited as Ex. DW1/A and relied upon his affidavit of evidence. DW-1 was cross examined and discharged. DE was closed vide separate statement of Ld. Counsel for defendants on 06.07.2022.
17. Thereafter, matter was proceeded for final arguments. CONTENTION OF PARTIES
18. Final arguments were heard. Ld. Counsel for plaintiff has submitted that the plaintiff is in possession of the suit property since 2011 and is running Jain Temple. The same was handed over by the Defendant no 1 & 2 which is admitted position in the pleadings. There is no bar under any law for the execution of the sale deed and the plea of the defendants that they can only sell the property vide a GPA is concocted and fabricated. There is no other issue arising which bars the specific performance of the suit as the defendants 1 & 2 have admitted in their WS that the plaintiff has been ready and willing at all times to perform their part of the agreement. Out of total sale consideration of Rs 1 Crore 30 lakhs it is undisputed that 1 Crore has Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 14 been paid which is much more than 50% of the total sale consideration. There is no bar to the grant of specific performance of an oral agreement and in the present case, the written receipt has also been executed. The defence of the defendants that they are incapable of executing the sale deed is untenable in law and amounts to a fabricated defence. Equity is in favour of the plaintiff.
19. Per contra, Ld Counsel for the defendants no 1 & 2 has submitted that there was only an agreement to execute GPA. Same has been mentioned in the written receipts which are admitted documents as between the present parties. When it was clear understanding between the parties that the land was only to be sold on GPA then there can be no question of the Court granting specific performance of any oral agreement. Suit has not been filed by any authorized person and the plaintiff society is registered in Haryana and therefore cannot hold land outside Haryana. On these grounds the Ld Counsel has prayed that the suit be dismissed as he has further submitted that till date the defendants are ready to accept Rs 30 lakhs and execute GPA or they are also ready to return the amount of Rs 1 Crore and take back possession of the suit land.
ISSUE WISE FINDINGS
20. I have perused the record and heard the parties. At the outset I would give my observations on the following issues no. 4 & 5 which were framed thus :
"(IV) In case it is held that the plaintiff is in physical Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 15
possession of the suit property, whether the defendants have any right to interfere in the suit property? (OPD)"
"(V) Whether defendants no. 1 and 2 executed an agreement to sell in favour of defendant no. 3? If yes, its effect. (OPD-3)"
21. The defendant no. 3 expired during the pendency of the proceedings and he was deleted from the array of parties on an application moved by the plaintiff under Order I Rule 10 as they did not wish to seek any relief from him. The above said issues were framed on the basis of the pleadings of the defendant no 3 in his Written Statement. Therefore, the above said issues 4 & 5 have become infructuous and do not survive to be adjudicated. Said issues are therefore decided accordingly.
22. Before adverting to my reasons qua the remaining issues, it is to be said that the main issue which was argued by both the parties before this court was qua the granting of relief of specific performance. The evidence led by the parties revolved around this question and in fact the issues 1,2 and 3 as framed deal with questions which would be relevant to the grant or refusal, as the case may be, of the relief of specific performance of the alleged agreement between the plaintiff and the defendants and the consequential relief of permanent injunction. If issues 1 to 3 are decided in favour of the plaintiff and against the defendants, then this court will have to Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 16 consider the relief to be granted. The said issue is also implicit in the issue framed as issue no. 6 i.e. "(VI) Relief." However by way of abundant caution and clarification the following issue is framed for consideration in this judgment itself : (VII) Whether the plaintiff is entitled to the relief of specific performance and permanent injunction against the defendants no 1 & 2, as prayed for? ISSUE 1 "Whether the plaintiff and defendants no. 1 and 2 entered into an agreement for purchase of the suit property measuring 1411.1 sq. yds. located at revenue village of Salahpur, Tehsil Kapashera, New Delhi for a consideration of Rs. 1,30,00,000/-? (OPP)"
23. This issue is fundamental to the suit. Germane to the consideration of the present issue are the written receipts which are admitted documents Ex P3, Ex P4, Ex P5 and Ex P6. All of them are couched in identical language, though Ex P3 consists of details that have been filled in handwriting and signed only by defendant no 2 Ajay Ahlawat whereas Ex P4, P5 and P6 are signed by both the defendants. Ex P4 and P5 are executed on non judicial stamp paper of Rs 20 whereas P6 is executed on non judicial stamp paper of Rs 10. The relevant portion of Ex P4 is extracted herein for convenience :
"Received a sum of Rs 53,00,000/- (Rupees Fifty Three Lacs only) vide Cheque _______ dated 05.10.2011 for Rs _____________in cash from VARDHMAN ADHYATMIC SANSTHAN (Regd) havings its Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 17 registered office at J-1149, Palam Vihar, Gurgaon - 122017 through its office bearer SH SHIKHAR CHAND JAIN and SH PAWAN KUMAR JAIN, as part payment towards the sale of my/our rights, titles, and interests in the land earmarked for temple admeasuring 1411.1 sq yards situated in revenue village of SALAHPUR, Tehsil KAPASHERA, NEW DELHI bearing Khasra No 28/66 Min, Khasra No 9 Min, Mustakil - 8, as per the agreed terms and conditions. The land is sold on Power of Attorney." (the italicized portion is in handwriting, while the rest is typed)
24. The major thrust of the arguments on behalf of the Ld Counsel for the defendants no. 1 & 2 was that the handwritten portion of the aforesaid agreement would show that the defendants never agreed to execute a sale deed and only agreed to execute a GPA and due to the written agreement as above, the plaintiffs are barred from proving any oral agreement to the contrary.
25. I do not agree with submissions of the Ld Counsel for the defendants. From a reading of the Exhibits P3 to P6 what emerges is the intention of the parties to transfer the rights, title and interest in the suit land for a valuable consideration. The phrase "the land is sold on power of attorney" is ambiguous and could also refer to a situation wherein the defendants had agreed to execute a GPA before executing a sale deed. Notice can be taken of the fact that its is extremely common for parties to execute an Agreement to sell/GPA before Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 18 executing the sale deed, while the balance sale consideration has not been fully paid. In fact the practice of selling properties on GPA to avoid stamp duty and registration duty implications was and remains popular despite the judgment of the Hon'ble Supreme Court in Suraj Lamp Industries Pvt Ltd v. State of Haryana 2012 1 SCC 656 (decided on 11.10.2011). The main crux that emerges from a reading of the aforesaid admitted documents is that the parties had agreed for the transfer of title of the suit property. Therefore, I find that there was a valid agreement to sell between the plaintiff and defendant no 1 & 2 for a consideration of 1,30,00,000 (1 Crore 30 lakhs). The issue is decided accordingly in favour of the plaintiff and against the defendant.
ISSUE NO 2 "Whether the plaintiff paid Rs. 1,00,00,000/- to defendants no. 1 and 2 out of a total consideration of Rs. 1,30,00,000/-? (OPP)"
26. I find that the defendants in their Written Statement has admitted the receipt of Rs 89 lakhs. Reference in this regard can be had to para 7 of the plaint and the corresponding para 7 of the Written Statement of the defendants wherein the receipt of such amount has been clearly admitted. As to the rest of the 11 lakhs, it has been pleaded and proved in evidence by the plaintiff that the same was paid in case. Reference can be had to para 8 of the plaint. This pleading of the plaintiff has been denied in the Written Statement vide Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 19 corresponding para 8, however the said denial is not only vague, it is not believable and seems to be false. This is for the reason that there is implied admission of the defendants in their pleadings, vide para 2 of their WS under the heading of "Preliminary Objections", the relevant extract being "it is pertinent to mention here that the payment of Rs 30,00,000/- is still pending to be paid by the plaintiff towards the consideration of the sale consideration of the property in question."
Therefore, it can be clearly inferred that Rs 1,00,00,000 had been paid as it is admitted fact between the parties that the total sale consideration was of Rs 1,30,00,000. Moreover, the sole defendant witness DW-1 did not, in his affidavit of evidence state that only 89 Lakhs had been received. No suggestion was put to plaintiff witness that only 89 lakhs was paid or that he had deposed falsely with respect to the cash payment of Rs 11 lakhs. Therefore, this issue is decided in favour of the plaintiff and against the defendants. ISSUE No. 3
"Whether the suit property is in the physical possession of the plaintiff? (OPP)"
27. No evidence needed to be led in this regard, as even the defendants in their Written Statement have admitted that physical possession has been handed over to the plaintiff in 2011 itself. I find that it has been comprehensively proved that the evidence of the plaintiff in this regard is completely trustworthy and reliable and the Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 20 evidence and pleadings prove that possession was handed over to the plaintiff on 16.10.2011 and that the plaintiff has been in possession ever since. This issue is therefore decided in favour of the plaintiff and against the defendants.
ISSUES NO. 6 & 7
"Relief."
"Whether the plaintiff is entitled to the relief of specific performance and permanent injunction against the defendants no 1 & 2, as prayed for?"
28. Having found as above, now the question arises as to whether the Court can grant specific performance in the present case.
29. Section 20 of the Specific Relief Act, 1963 before the Amendment Act of 2018 reads 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 Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 21
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 foresee, whereas its non-performance 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.
Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 22
(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."
30. Section 16 (c) of the Specific Relief Act, 1963 before the Amendment Act of 2018 reads as under:-
".......(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant."
31. The defence taken by the defendants firstly, that there is no agreement to sell the land is rejected as it has already been found that it was the intention of the parties to transfer the title of the land, which can only be done by way of registered sale deed, and the defendants plea that it can be transferred on GPA is of no avail as the same is not countenanced by law.
32. The second defence is that the property has been sold to the subsequent buyer. Para no. 3 of WS filed on behalf of defendants no. 1 and 2 has been extracted herein: "....it is submitted here that out of the suit property 1411.1 sq. yards of land was sold to Mr. Deepak Udar S/o Sh. Dhir Singh Udar R/o B-503, Som Vihar, R.K. Puram, New Delhi on 03.12.2008 by the defendant no. 1 and subsequently, said Sh. Deepak Udar sold 500 sq. yards of land to Sh. Anand Kumar S/o Sh. Kartar Singh R/o H. No. 354, VPO Bijwasan, New Delhi on 05.12.2008 and 911.1 sq. yards of land to Sh. Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 23 Gajraj Singh Rana S/o Prabhu Dayal R/o VPO Bijwasan, New Delhi on 05.12.2008 but however, no partition walls of said plots were raised by the above said buyers and the suit property was in the collective possession of the defendant no. 1 and 2, Sh. Anand Kumar, and Sh. Gajraj Singh Rana. It is pertinent to mention here that Sh. Anand Kumar and Sh. Gajraj Singh had authorized defendant no. 1 and 2 to rent out or sell out the suit property and on the basis of that authorization defendant no. 1 and 2 struck the deal with the plaintiff to sell the possessory right of the suit property through Mr. Shikhar Jain, President of the plaintiff society and all the terms and conditions have been orally settled between the defendants no. 1 and 2 and Mr. Shikhar Jain, who was representing plaintiff." In para 14 of their Written Statement it was pleaded that "defendant no 3 was initially owner and in possession of larger patch of land including the suit property approximately 52 bighas and 6 biswas out of which he sold land measuring 48 bighas to the M/s Saj Properties on 18/11/2004 and 4 bighas 6 biswas to his wife Sanjana Gupta. It is pertinent to mention here that prior to selling the aforesaid piece of land the defendant no 3 had colonized this land and allotted plots to the members of a Doctor's Enclave Society, Alok PWD Rest House, Ludhiana Punjab but subsequently changed his mind and sold the said piece of land to M/s Saj Properties and keeping a small patch of 4 bighas 6 biswas with himself in the name of his wife to pacify the allottees of the members of the Doctor's Enclave Society and to settle the matter with them. Further the balance patch of 4 bighas and 6 Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 24 biswas was also sold by Mrs Sanjana Gupta w/o Dr Ramesh Gupta, the defendant no 3 to the M/s Saj Properties through the defendant no 1 on 13-06-2007 and at the same time the defendant no 3 took a GPA of 6 biswas of the said properties in his favour from the M/s Saj Properties without any consideration with the pretext of showing the same to some allottess of the plots of the Doctor's Enclave to pacify them by showing the same to them assuring the defendants no 1 & 2 to return the said GPA documents.."
33. The said defence is rejected as not being believable, and remains unproved by the defendants. It would have been entirely possible for them to prove the sale deed in favor of the subsequent buyer or produce as witness such subsequent buyer who could have testified and proved any such sale deed. The fact that not even once have the defendants even attempted to do any of the above, entitles this Court to draw an adverse inference. Moreover, it has been alleged that it was the defendant no 1 who through the proprietorship of Saj Properties bought and sold the suit land. However, she did not step into the witness box to testify as to this fact. Again, an adverse inference needs to be drawn. Moreover, it has not been pleaded specifically anywhere in Written Statement by the defendant no 1 and 2 that they have prior to the filing of the present suit, executed a registered sale deed in favour of a third party. Not having done so, it was not open to the defendants to try and prove that the property has Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 25 been sold to a subsequent buyer and that they are left with no title to the property, as it is settled law that a party cannot go beyond their pleadings. Moreover, even if the pleadings in the aforesaid para of the WS are accepted at the face, it is clearly averred that the defendants were given the authority to sell out the land.
34. During the examination-in-chief and cross examination of DW-1 i.e. Col Ajay Ahlawat, for the first time the defence was taken that the property had been sold and no portion kept with the defendants due to the provisions of the Delhi Land Reforms Act. The relevant portion of the said evidence affidavit of DW-1 is extracted herein : "That M/s Saj Properties had purchased 11 acres of land including the suit property from Dr. Ramesh Gupta who was earlier defendant no. 3 in the present case, now deleted. The defendant no. 1, wife of the deponent was one of the directors in the M/s Saj Properties. The above mentioned land was further sold to the subsequent buyers by M/s Saj Properties through defendant no. 1 except the suit property which was kept by the defendant no. 1 and 2 as possessory rights after raising a boundary wall around the suit property. The sale deed of the whole 11 acres of land had to be executed/registered by the M/s Saj Properties through defendant no. 1 in favour of the above mentioned subsequent buyers in order to avoid the violation of Sec-33 of DLR Act as there was no 8 standard acres balance land with the M/s Saj Properties. That the defendant no. 1 and 2 kept the suit property with a boundary wall with themselves in their possession with the oral consent of the purchaser of the larger patch. It had been explained in detail to the plaintiff at the time of negotiation of the sale of the suit Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 26 property. It had also been conveyed to the plaintiff that the defendants no. 1 and 2 have no title of the suit property in the revenue record and the possessory right of the suit property would be sold through GPA only. That is why in the money receipts GPA had been inserted during their execution." Nowhere in their Written Statement has such a fact been disclosed that it was due to the operation of Delhi Land Reforms Act that the whole land had already been sold and no portion remained with the defendants. Moreover, each and every statement in the pleading and evidence of the defendants is contradictory to each other.
35. However, it has to be now seen whether the plaintiff is entitled to the relief de hors the false defence taken by the defendant, as it is settled law that the case of the plaintiff has to stand on its own legs. In M.K. Sehgal v. Mohinder Kaur 2006 SCC OnLine Del 579 :
(2006) 90 DRJ 276 (DB), the Hon'ble Delhi High Court had held that "It is a settled principle of law that it is not mandatory or a court to grant relief of decree for specific performance, simply for the reason that the plaintiff has proved his case and it is lawful to do so. But this discretion vested in the court is not arbitrary and can be exercised only for sound and reasonable ground. The need for sound reasoning is illustrated in the statute by the language used by the legislature in Section 20 of the Act. The discretion exercised, guided by judicial norms has to be capable of correction by a court of appeal."
Therefore even though I find (I) that the plaintiff has not been in breach of the agreement, as the same has not been pleaded nor does it Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 27 appear from the record (II) that the plaintiff has been ready and willing, as even the defendants have not denied the averment of the plaintiff and accepted that the plaintiff was ready and willing to perform their part of the agreement (reference can be had to para 17 of the plaint and corresponding para 17 of the Written Statement on behalf of the defendants); even then it has to be seen whether the plaintiff is entitled in equity and good conscience to the relief of specific performance.
36. In Jinesh Kumar Jain v. Iris Paintal & Ors 2012 SCC OnLine Del 3548 : ILR (2012) 5 Del 678, the Hon'ble High Court of Delhi elaborated on the meaning of substantial acts as mentioned in Section 20(3) :
"Sub-Section 3 makes it clear that Courts decree specific performance where the plaintiff has done substantial acts in consequence of a contract/agreement to sell. Substantial acts obviously would mean and include payment of substantial amounts of money. Plaintiff may have paid 50% or more of the consideration or having paid a lesser consideration he could be in possession pursuant to the agreement to sell or otherwise is in the possession of the subject property or other substantial acts have been performed by the plaintiff, and acts which can be said to be substantial acts under Section 20(3). However, where the acts are not substantial i.e. merely 5% or 10% etc of the consideration is paid i.e. less than substantial consideration is paid, Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 28 (and for which a rough benchmark can be taken as 50% of the consideration), and/or plaintiff is not in possession of the subject land, I do not think that the plaintiff is entitled to the discretionary relief of specific performance."
37. I find that the plaintiff has done substantial acts in consequence of the agreement. The sale consideration was for Rs 1,30,00,000 and the plaintiff has admittedly paid much more than 50% of the sale consideration being Rs 1,00,00,000 which is a substantial sum. It is admitted position that the defendants after accepting the aforesaid amount handed over the possession of the suit property in October of 2011. The plaintiff society in pursuance of the same, then proceeded to install deities and perform the ritual and ceremonies which has been proved by the pleadings as well the photographs exhibited and placed on record. There is no doubt with respect to the dimensions and identity of the suit property which is admitted position between the parties and already in possession of the plaintiff. Therefore, I find that the present is a fit case for exercising discretion in favor of the plaintiff.
38. Moreover, the conduct of the defendant also tilts the scales towards the plaintiff. The present suit was filed without any delay and laches on the part of the plaintiff. The disputes arose presumably in the months of October, November and December 2011. The suit was instituted on 03.01.2012. Therefore the defendants were Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 29 aware since long that the plaintiff wished for the execution of sale deed and conveyance of title but have not once offered to deposit the Rs 1,00,00,000 admittedly received by them in the Court pending the adjudication and have been enjoying the said amount for the past 11 years. If the case of the defendants was genuine that the property had been sold by way of sale deed to subsequent purchaser, the defendants would have produced the sale deed and also deposited the sum received by them with the Court immediately. Apart from bland pleadings that they are ready to return the amount, no step was taken by the defendant.
39. Insofar, as the contentions of the defendants that the plaintiff society is not entitled to hold land in Delhi being registered in Haryana or that the suit was not duly instituted, the same deserve to be dismissed as they do not form part of the pleadings nor has any material been brought on record to substantiate such claims. RELIEF
40. Therefore, considering the above settled law and in view of the facts and circumstances of the present case and applying the principles of equity the suit of the plaintiff is decreed in favour of the plaintiff and against the defendants. The plaintiff is directed to pay the balance sale consideration of Rs 30,00,000 (Thirty Lacs) to the defendant no 1 within 3 weeks. Accordingly, once the payment is made, as per the agreement to sell, a sale deed in respect of the suit property being property measuring 1411.11 sq yards in Khasran No Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr. Suit No. 17506/2016 30 28/66 Min, Khasra No 9 Min, Mustakil-8, Ansal Plaza-Bijwasan Road, Opposite J and K Block, Palam Vihar, Gate No 1 Near Bijwasan Toll Tax, Village Sahalpur, Tehsil Kapashera will be executed by the defendant No. 1 in favour of the plaintiff, which shall also be signed by defendant No. 2, within ten weeks on the plaintiff paying the balance sale consideration to the defendant no 1 as above. In case the sale deed is not executed it would be open to the plaintiff to seek execution of the decree. The defendants are also permanently injuncted from interfering with the peaceful possession of the plaintiff in the suit property. The requisite stamp duty and other charges for execution of sale deed would also be paid by the plaintiff. Costs of the suit are awarded to the plaintiffs.
41. Decree sheet be prepared accordingly.
42. File be consigned to Record Room after due compliance. Digitally signed by DIVYANG
DIVYANG THAKUR
THAKUR Date:
2022.10.14
16:21:19 +0530
Announced in the open court (Sh. Divyang Thakur)
On 14.10.2022 Dwarka / New Delhi
Vardhman Adhaaytmik Sansthan Vs. Mrs. Sangeeta Ahlawat and Anr.