Delhi District Court
Manoj Kumar vs Smt. Maya Devi on 30 July, 2021
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURTS, NEW DELHI
CS DJ No. 202/2019
1. Manoj Kumar
S/o Sh. Likhi Chand
R/o 5, Church Road, Bhogal,
New Delhi110014.
2. Vishal Goel
S/o Sh. C. P. Goel
R/o B13, JangpuraB,
New Delhi110014.
3. Charanjeet Singh
S/o Late S. Harbans Singh
R/o 15, Church Road, Bhogal,
New Delhi110014.
.... Plaintiffs
Versus
Smt. Maya Devi
W/o Late Shri Chandler Pal Singh
R/o T70, Church Lane, Bhogal,
New Delhi 110014. ....Defendant
First date before this Court : 07.03.2019
Date of Order : 30.07.2021
JUDGMENT:
1. This suit for specific performance has been filed on behalf of the plaintiffs for execution of the Sale Deed in CS DJ No. 202/2019 Page 1 of 22 Pages their favour by the defendant.
2. The facts in brief are that the plaintiffs being friends had jointly entered into an Agreement to Sell dated 19.02.2016 with the defendant in respect of the suit property which is the ground floor shop with basement rights but without terrace rights bearing private No. 2 internally admeasuring 7'2" X 11'0" (i.e. 7.3236 sq. Mtrs) out of the property bearing MCD No. 15, Samman Bazar, Bhogal, New Delhi 110014 along with structure standing therein and along with proportionate undivided, indivisible and impartibly share of leasehold rights in the land underneath for a total sale consideration of Rs.38,00,000/. A sum of Rs.20,00,000/ out of the total sale consideration of Rs.38,00,000/ was paid after the execution of Agreement to Sell. The three plaintiffs issued one cheque each in the sum of Rs.5,00,000/ in the name of defendant which was encashed by her. In addition, defendant was given Rs.5,00,000/ by cash on 26.02.2016 against a proper receipt. The sale deed was to be executed within one year of the execution of Agreement to Sell. However, the defendant requested extension twice on account of her personal difficulties. The plaintiffs left with no option having paid considerable amount towards the sale consideration, entered into two supplementary agreements dated February, 2017 and 05.02.2018. However, the plaintiffs came to know that defendant was intending to CS DJ No. 202/2019 Page 2 of 22 Pages sell the property to some third person and they filed civil suit bearing CS No. 2579/2018 for Permanent Injunction in November, 2018 which is pending trial in the court of learned Civil Judge, SouthEast. It is submitted that defendant had made a statement through her counsel in the said civil suit that she would not dispose of the property till the disposal of the suit.
3. It is further submitted that plaintiffs are ready and willing to perform their part of the contract and to pay the balance consideration of Rs.18,00,000/. It is incumbent upon the defendant to execute the sale deed which she has failed to do despite repeated requests and legal notices. A prayer is made for a decree of specific performance in respect of the suit property for directing the defendant to execute the sale deed in favour of the plaintiffs.
4. The defendant in her written statement asserted that a civil suit for injunction is already pending but the plaintiffs did not seek specific performance in the said suit. The present suit is therefore barred under Order II Rule 2 CPC. The defendant had explained that she is the owner of the suit property which she had purchased vide registered Sale Deed. The suit for specific performance is not maintainable as it is based on unregistered documents. It is further asserted that the Agreement is void ab initio. The value of the suit property is more than Rs.60,00,000/ but the plaintiffs are claiming to have purchased it for CS DJ No. 202/2019 Page 3 of 22 Pages Rs.38,00,000/. They are misusing the process of law and no cause of action has been disclosed.
5. On merits, it is submitted that defendant being an old lady and in dire requirement of money had taken a loan of Rs.20,00,000/ @ 12% per annum from the plaintiffs and on the insistence of the plaintiffs she has put her thumb impression on some documents for the purpose of security. It is denied that she has sold the property and claimed that the suit is liable to be dismissed.
6. The written statement was not filed within time and an opportunity had been given subject to cost but the same was also not paid. The written statement was taken off the record vide order dated 14.10.2019.
7. The issues on the pleadings were framed on 03.03.2020 as under :
i. Whether the defendant entered into an Agreement to Sell dated 19.02.2016 and supplementary agreements dated 19.02.2018 and 19.02.2019 with the plaintiffs in respect of sale of suit property i.e. Ground Floor Shop (with basement rights but without terrace rights) property bearing private no. 2 measuring 7'2" X 11'0" (i.e. 7.3236 sq mts) out of the property bearing MCD No. 15, Samman Bazar, Bhogal, New Delhi along with structure standing therein with fittings and fixtures for a total sale consideration of Rs.38,00,000/? OPP ii. Whether the plaintiffs made payment of Rs.20,00,000/ CS DJ No. 202/2019 Page 4 of 22 Pages out of the total sale consideration of Rs.38,00,000/ in execution of Agreement to Sell dated 19.02.2016? OPP iii. Whether the plaintiffs are willing and ready to perform their part of the contract by paying the balance consideration of Rs.18,00,000/? OPP iv. Whether the defendant is liable to execute the necessary sale deed / conveyance documents in favour of the plaintiffs? OPP v. Whether the plaintiffs are entitled to a decree for specific performance for execution of necessary sale deed / conveyance documents in their favour in regard to the suit property by the defendant? OPP vi. Relief.
8. Plaintiff Shri Vishal Goel appeared as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. He proved the Agreement to Sell dated 19.02.2016 as Ex.PW1/2; the receipt dated 26.02.2016 vide which Rs.5,00,000/ were paid in cash as Ex.PW1/3; the supplementary Agreements dated February, 2017 and 05.02.2018 as Ex.PW1/4 and Ex.PW1/5 respectively; the copy of the legal notices dated 01.02.2017, 16.12.2017, 24.10.2018 and 28.01.2019 are Ex.PW1/6 to Ex.PW1/9 respectively; the passbook of the witness and those of Shri Manoj Kumar and Shri Charanjeet Singh, the other two plaintiffs are marked as Mark A to C respectively.
CS DJ No. 202/2019 Page 5 of 22 Pages
9. The other two plaintiffs namely Shri Manoj Kumar and Shri Charanjeet Singh appeared as PW2 and PW3 and deposed on similar lines as PW1. PW4 Shri Vinod Shankla was the attesting witness to the Agreement to Sell dated 19.02.2016 and also to the receipt. He has corroborated the testimony of the plaintiffs.
10.The defendant Smt. Maya Devi in support of her case appeared as DW1 and tendered her evidence by way of affidavit Ex.DW1/A.
11.DW2 Shri Darshan was the next door neighbour who deposed that there were no Agreement to Sell entered into by the defendant but she had taken a loan from the plaintiffs which is evident from the WhatApp chats exchanged between the plaintiffs and Shri Keshav, son of the defendant.
12.DW3 Shri Keshav (the son of the defendant) has corroborated the testimony of the Defendant and deposed that Rs.20,00,000/ had been taken on loan and the Agreement to Sell etc. have been manipulated since the signatures of defendant were obtained on blank papers.
13.Learned counsel on behalf of the plaintiffs has submitted that the evidence on record proves the case of the plaintiffs in regard to having entered into an Agreement to Sell for purchase of the suit shop from the defendant. She has admitted her signatures on the sale documents and no cogent defence has put forth by her.
CS DJ No. 202/2019 Page 6 of 22 Pages Though defendant has claimed that she had taken Rs.20,00,000/ as a loan amount but this is clearly rebutted by the Agreement to Sell and her own testimony. It is further argued that the relief of possession is not required to be claimed specifically in a suit for Specific Performance as relief of possession is included in the performance of the Agreement to Sell. It is further argued that a plea had been taken on behalf of the defendant that the suit is barred under Order II Rule 2 CPC since the relief for specific performance should have been claimed in the earlier suit for injunction filed by the plaintiffs against the defendant. This objection has already been considered in the application under Order VII Rule 11 CPC filed by the defendant which has already been dismissed. The cause of action had not arisen in respect of specific performance on the date of filing of suit for injunction and hence the objection is without merit. It is submitted that the plaintiffs are entitled to the decree of the specific performance.
14.Learned counsel on behalf of the defendant has argued that the suit of the plaintiff is barred under Order II Rule 2 CPC as he has failed to seek the relief of specific performance in his earlier suit for injunction. The defendant had merely taken a loan of Rs.20,00,000/ for which the documents were to be executed. It is further argued that the Agreement to Sell which has been relied CS DJ No. 202/2019 Page 7 of 22 Pages upon by the plaintiffs is a fabricated document as the signatures had been obtained from the defendant who is an illiterate woman, on the pretext that it was a Loan Agreement. It is further submitted that the loan of Rs.20,00,000/ has been paid from time to time to the plaintiffs and no amount remains to be paid. However, the plaintiffs have manipulated the documents and fabricated the Agreement to Sell. It is further submitted that the supplementary agreements are also manipulated as admittedly the copy of the second supplementary Agreement relied upon by the plaintiffs does not have the signatures of second witness but the original second Agreement produced in the court had the signatures of second witness. It shows that these documents are manipulated and have been created subsequently. It is thus argued that the case of the plaintiffs is without merit and is liable to be dismissed.
15.I have heard the arguments and perused the record and the evidence led therein. My issue wise findings are as under :
Issue No. (i) & (ii) i. Whether the defendant entered into an Agreement to Sell dated 19.02.2016 and supplementary agreements dated 19.02.2018 and 19.02.2019 with the plaintiffs in respect of sale of suit property i.e. Ground Floor Shop (with basement rights but without terrace rights) property CS DJ No. 202/2019 Page 8 of 22 Pages bearing private no. 2 measuring 7'2" X 11'0" (i.e. 7.3236 sq mts) out of the property bearing MCD No. 15, Samman Bazar, Bhogal, New Delhi along with structure standing therein with fittings and fixtures for a total sale consideration of Rs.38,00,000/? OPP ii. Whether the plaintiffs made payment of Rs.20,00,000/ out of the total sale consideration of Rs.38,00,000/ in execution of Agreement to Sell dated 19.02.2016? OPP
16.PW1 Shri Vishal Goel in his testimony has deposed that he along with other two plaintiffs entered into an Agreement to Sell Ex.PW1/2 to purchase the suit shop for a consideration of Rs.38,00,000/. While Rs.15,00,000/ were paid by the three plaintiffs vide cheques, a sum of Rs.5,00,000/ was paid vide a receipt dated 26.02.2016 Ex.PW1/3. According to the Agreement to Sell, the Sale Deed was to be executed within one year but on the request of the defendant who pleaded personal difficulties, supplementary Agreement dated February, 2017 Ex.PW1/4 was executed for extending the time by one year and thereafter, another extension of one year was made vide Supplementary Agreement dated 05.02.2018 Ex.PW1/5. According to the second supplementary Agreement, the sale deed was to be executed within one year i.e. up to 05.02.2019.
17.The defendant has not denied having received CS DJ No. 202/2019 Page 9 of 22 Pages
Rs.20,00,000/ pursuant to the documents but the only plea taken is that it was a loan that she took and never entered into any Agreement to Sell the suit shop. The defendant has not denied having received Rs.20,00,000/. The defendant in her crossexamination has admitted her thumb impression on the Agreement Ex.PW1/2 and receipt Ex.PW1/3. She has also admitted that her son Keshav was present and had signed these two documents as a witness.
Shri Keshav, son of the defendant has also appeared as DW3 wherein also he did not deny the execution of these documents.
18.The sole plea that was taken was that the signatures / thumb impressions have been obtained on blank documents, a plea which has never been taken earlier in the Written Statement nor was it suggested in the cross examination to any of the three plaintiffs. The plea of signatures having taken on blank documents was raised for the first time by DW3 Keshav in his own testimony which in any case cannot be accepted as the written statement of the defendant was not taken on record. It may also be noted that the documents have been executed thrice at different times and the defendant cannot claim that he was misled thrice over a period of three years.
19.Furthermore, it was claimed by defendant that the loan amount of Rs.20,00,000/ had been paid from time to time which can be established from the WhatsApp messages CS DJ No. 202/2019 Page 10 of 22 Pages exchanged between DW3 Keshav and the plaintiffs. Interestingly, while a reference has been made to the WhatsApp conversations but they have neither been placed nor proved by way of evidence.
20.The testimony of the plaintiffs proves that the parties had entered into an Agreement to Sell in respect of the shop vide Agreement Ex.PW1/2 and the time frame for executing the Sale Deed was extended twice from 2017 to 2018 and thereafter, from 2018 to 2019 vide two supplementary Agreements Ex.PW1/4 and Ex.PW1/5. A doubt about genuineness of the copy of supplementary Agreement Ex.Pw1/5 was sought to be raised by asserting that its copy filed by the plaintiff did not have the signatures of second witness though the original supplementary Agreement had the signatures. The attestation of this document by two attesting witnesses was not mandatory as it was only a document extending time for execution of Sale Deed. Further the signature/ thumb impression of defendant on this document has been admitting establishing its authenticity. Further, the specific performance has been sought of Agreement To Sell Dated 19.02.2016 PW1/ 2, the authenticity of which has already been established. The supplementary Agreement is not even significant for grant of decree of Specific performance.
21.An objection has been taken on behalf of the defendant CS DJ No. 202/2019 Page 11 of 22 Pages that the Agreement to Sell being a non registered document and not having been executed on the requisite stamp paper, is inadmissible in evidence.
22.This aspect has been the subject matter of discussion in many cases. Hon'ble Apex Court in Kaladevi vs. V. R. Somasundaram & Others, 2010, Law Suits (SC) 182 considered a similar Agreement to Sell. A reference was made to Section 49 of Registration Act dealing with the effect of nonregistration of the document. The proviso thereto specifically provides that an unregistered document affecting immovable property which is required by this Act or the Transfer of Property Act, 1882 to be registered may be received as evidence in a suit for Specific Performance under ChapterII of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument. The proviso therefore clearly creates an exception in favour of admissibility of unregistered document to be received as evidence of contract of sale in a suit for specific performance.
23.In Kalavakurti Venkata Subbaiah vs. Bala Gurappagari Gurvei Reddy, 1999 7 SCC 114, the Hon'ble Apex Court held that suit for specific performance is of a wider amplitude and is primarily one for enforcement of a contract and other consequential or further relief. It was observed that registration of sale documents would not bar CS DJ No. 202/2019 Page 12 of 22 Pages a suit for specific performance of said document.
24.In SMS Teas Estates Pvt. Ltd. vs. Chandmari Tea Company Pvt. Ltd. 2011 AIR (SCW) 4484 the Hon'ble Apex Court held that Section 49 makes it clear that a document will not be received as evidence of any transaction affecting the property except for two limited purposes. First is as evidence of contract in a suit for specific performance and other is as evidence of any collateral transaction. It was thus, held that the unregistered Agreement to Sell is a contract and as per proviso to Section 49 of the Registration Act, can be admitted in evidence. Similar observations have been made by the Hon'ble Apex Court in Bondar Singh & Others vs. Nihal Singh & Others, 2003 AIR SC 1905.
25.High Court of Delhi in C. S. Agarwal & Another vs. Nirmal Jain & Others : Collector of Stamp, 2016 Law Suit (Delhi) 1748, reiterated that the essential registration required under Section 17 is saved by the proviso 2 of Section 49 in cases of Agreement to Sell, which need not be registered.
26.Likewise, in Rishi Raj & Others vs. Rakesh Yadav & Others, 2018 Law Suit (Delhi) 2847 Hon'ble High Court of Delhi after making reference to the Sections 17 & 49 of the Registration Act observed that the Agreement to Sell can be of two categories; one where possession of the property is handed over simultaneously with the execution CS DJ No. 202/2019 Page 13 of 22 Pages of the Agreement, and other in which no possession is handed over. If the Agreement to Sell is not accompanied with the possession of the property, then it does not require registration and the same is receivable in evidence in a suit for Specific Performance. It was further observed that Agreement to Sell does not itself create any right or title in the property, it is only when the Sale Deed is executed that right in the property is created.
27.The law as propounded in the above discussed judgments establishes that simplicitor Agreement to Sell is only a contract for purchase of immovable property in regard to which exception has been created under Proviso 2 of Section 49 of Registration Act; the Agreement if otherwise proved, can be basis for the relief in favour of the plaintiffs. The legal objection in regard to nonregistration of the alleged Agreement to Sell is therefore, not tenable and the Agreement to Sell is valid and is enforceable.
28.The issues no. (i) & (ii) are decided in favour of the plaintiffs and against the defendant.
Issue No. (iii) iii. Whether the plaintiffs are willing and ready to perform their part of the contract by paying the balance consideration of Rs.18,00,000/? OPP
29.PW1 Shri Vishal Goel has further deposed that they have CS DJ No. 202/2019 Page 14 of 22 Pages always been ready to perform their part of the contract and had the balance of Rs.18,00,000/ in their accounts to perform their part of the contract. The witness had produced the passbooks of himself and all the other two plaintiffs Shri Manoj Kumar and Shri Charanjeet Singh which are Mark A, B and C.
30.It may be noted that the written statement of the defendant had been taken off the record since it was neither filed in time nor the cost was paid and per se the defence of the defendant cannot be considered. The testimony of PW1 which is reaffirmed by PW2 Shri Manoj Kumar and PW3 Shri Charanjeet Singh proves that the plaintiffs had necessary funds to perform their part of the agreement.
31.The issue is decided accordingly in favour of the plaintiffs.
Issues No. (iv) & (v) iv. Whether the defendant is liable to execute the necessary sale deed / conveyance documents in favour of the plaintiffs? OPP v. Whether the plaintiffs are entitled to a decree for specific performance for execution of necessary sale deed / conveyance documents in their favour in regard to the suit property by the defendant? OPP
32.A legal objection was raised during the course of CS DJ No. 202/2019 Page 15 of 22 Pages arguments that a consequential relief of possession has not been claimed by the plaintiffs and therefore the suit of the plaintiffs for specific performance was liable to be dismissed. The law in detail in this respect was explained in Babu Lal vs. Hazari Lal Kishori Lal, (1982) 1 SCC 525 as under:
"Section 22 enacts the rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given lime, the defendant should execute the deed and put the plaintiff in possession."
33.Their Lordships further observed:
"the expression in Subsection (1) of Section 22 'in an appropriate case' is very significant. The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case' and it has been pointed out that even after the introduction of Section 22 of the Specific Relief Act in 1963, the plaintiff in a suit for specific performance of the contract need not always ask for the relief for possession because ordinarily such relief would be implied. It is only in appropriate cases that is cases in which ordinarily possession may not follow from the mere decree for specific performance of the contract e.g. where third party has intervened the plaintiff has to ask for the relief of possession and if not asked, the decree will not grant him possession."
34. Their Lordships further observed:
CS DJ No. 202/2019 Page 16 of 22 Pages "in a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simplicitor without specifically providing for delivery of possession, may give complete relief to the decree holder. In order to satisfy the decree against him completely he is hound not only to execute the saledeed but also to put the property in possession of the decree holder. This is in consonance with the provisions of Section 55(1) of the T. P. Act which provides that the seller is hound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits."
35.Their Lordships referred to the other kind of cases in which a relief for possession cannot be effectively granted to the decreeholder without specifically claiming relief for possession, namely, where the property agreed to be conveyed is jointly held by the defendant with other persons. In such a case the plaintiff has to pray for partition of the property and possession over the share of the defendant, and it has been observed that it is in such eases that a relief for possession must be specifically pleaded. Again it is observed "the contention on behalf of the petitioner is that the relief for possession must be claimed in a suit for specific performance of a contract in all cases. This argument ignores the significance of the words 'in an appropriate case'. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the CS DJ No. 202/2019 Page 17 of 22 Pages transfer of the immovable properly. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property with the relief for specific performance of the contract of sale.
36.In Mahender Nath Gupta v. Moti Ram Rattan Chand and Anr., AIR 1975 Delhi 155, the learned Judge of the Delhi High Court while dealing with the suit for specific performance of contract of sale which was filed before the commencement of the Specific Relief Act, 1963, and decree made after the commencement of the said Act, relief of delivery of possession neither claimed in the plaint nor granted in the decree and whether executing Court can grant delivery of possession, after referring to AIR 1967 SC 1541, AIR 1954 Allahabad 643, AIR 1952 Calcutta 362, AIR 1950 Allahabad 415, held in the affirmative mainly on the ground that Section 22 of the Specific Relief Act, 1963, indicates a rule of pleading.
37. In Lotu Bandu Sonavane v. Pundalik Nimba Koli, AIR 1985 Bombay 412. Section 22(1) and Section 22(2) Proviso of the Specific Relief Act, 1963 had been dealt with. The expression "in an appropriate case" in Section CS DJ No. 202/2019 Page 18 of 22 Pages 22(1) and "at any stage of the proceeding" in proviso to Section 22(2) it was held that decree directing specific performance of agreement of sale against defendant in possession of property specific prayer for delivery of possession is not necessary.
38.In Hemchand v. Karilal, AIR 1987 Rajasthan 117, it was held that in a suit for specific performance, property in possession of contracting party and no third party had intervened, relief of possession would be implied in decree for specific performance and need not be specifically asked for and the question of amendment of plaint does not arise. In the light of the statutory duties and obligations cast on the seller by virtue of Section 55 of the Transfer of Property Act, 1882, and also in the light of the scope and ambit of Section 22 of the Specific Relief Act, 1963, it was held that when there is no dispute or controversy that the judgment debtorsdefendants are in possession of the property, the mere fact that such specific prayer was not made, the same cannot be taken advantage of principally for the reason the decree for execution of sale deed would imply the decree of delivery of possession too inasmuch as these are the obligations which would flow from the relief relating to execution of the sale deed. Hence, this omission cannot be taken advantage of. It is pertinent to note that it is nobody's case that any third party rights had intervened.
39.In Ms. Adarsh Kaur Gill Vs. Sh. Mawasi & Ors.
CS DJ No. 202/2019 Page 19 of 22 Pages decided by Hon'ble High Court of Delhi on 02.02.2012 in Ex. P. No. 286/2011, it was observed that the grant of relief for delivery of possession is just a formality and even though, no specific prayer is made in the plaint and even if the decree is silent about the delivery of possession, the Executing Court is empowered and bound to grant such relief. It was held that the relief of possession is ancillary and it springs out and is comprised in the relief of specific performance of the contract to sell.
40.Similarly, in Deepak Resorts & Hotels Pvt. Ltd. Vs. M/s Alaknanda Properties Pvt. Ltd. decided by Hon'ble High Court of Delhi in RSA 376/2014 and C. M. No. 19864/2014 on 06.11.2015, similar question arose in appeal against a decree of specific performance. A reference was made to the judgment of Babu Lal(supra) and it was concluded that it was abundantly clear that ordinarily the relief for specific performance of a contract implies the relief for possession of the immovable property also and in such a case the plaintiff need not even ask for the decree for possession and as soon as a decree for specific performance of the contract is passed the plaintiff would be entitled to ask for possession in execution of such a decree.
41.Though the plaintiffs had not claimed the possession specifically but in view of the above discussion, it is evident that the relief of possession is implicit in CS DJ No. 202/2019 Page 20 of 22 Pages Agreement to Sell and thus need not be asked for specifically. For this a reference may be made to Agreement to Sell Ex.PW1/2. Relevant para of clause (1) reads as under :
"(1) ...The remaining balance sum of Rs.18,00,000/ (Rupees eighteen lakh only) shall be received by the first party, from the second party, at the time of handing over the vacant and physical possession of the said Shop to the second party and signing, execution and registration of Sale Deed etc. in favour of the second party or their nominee(s) in the office of the SubRegistrar, New Delhi, within 1 (one) Year from the date of this Agreement to Sell."
42.From the terms of the Agreement as well it is evident that the possession was to be handed over as part of the Agreement to Sell. The facts do not at all indicate that the possession would not follow the relief of specific performance of the contract. No third party has intervened. The property is in possession of the contracting party and, therefore, the decree for specific performance of the contract would also ensure for possession of the property in execution of that decree.
43.It is held that the plaintiffs are entitled to the decree for Specific performance and the defendant is liable to execute the Sale Deed in their favour.
44.Issue No. (iv) and (v) are decided in favour of plaintiffs.
Relief
45.In view of the above discussion, a decree of Specific CS DJ No. 202/2019 Page 21 of 22 Pages Relief in respect of ground floor shop with basement rights but without terrace rights bearing private No. 2 internally admeasuring 7'2" X 11'0" (i.e. 7.3236 sq. Mtrs) out of the property bearing MCD No. 15, Samman Bazar, Bhogal, New Delhi110014 is hereby passed. The defendant is directed to execute the Sale Deed within two months from the date of order in favour of the plaintiffs failing which the plaintiffs are at liberty to seek its execution.
46.Parties to bear their own costs. Decree Sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court (Neena Bansal Krishna) th today i.e. 30 July, 2021 Principal District & Sessions Judge SouthEast District, Saket Courts, New Delhi.
CS DJ No. 202/2019 Page 22 of 22 Pages