Delhi District Court
Sh. Sanjay Gupta vs Late Sh. Amar Singh (Deceased) on 24 July, 2018
IN THE COURT OF MS. SHUCHI LALER, ADDITIONAL DISTRICT
JUDGE, EAST DISTRICT, KARKARDOOMA COURTS, DELHI.
Suit No.1754/16/95
In the matter of:
Sh. Sanjay Gupta
S/o Sh. L.R. Gupta,
R/o 6, Anand Lok,
New Delhi - 110 049 ......... Plaintiff
Versus
Late Sh. Amar Singh (Deceased)
Through LRs:
(a) Sh. Munshi Ram (Son)
(b) Smt. Omwati (Daughter)
W/o Sh. Rajendra Singh
(c) Sh. Sardar Singh (Son)
(d) Smt. Bimla (Daughter)
W/o Sh. Kaptan Singh
(e) Smt. Shakuntla (Daughter)
R/o Village and P.O. Bijwasan
Tehsil Mehrauli
New Delhi-110030 ......... Defendants
Date of Institution : 17.10.1995
Date of Final Argument : 12.04.2018
Date of Pronouncement : 24.07.2018
SUIT FOR SPECIFIC PERFORMANCE,
DAMAGES AND INJUNCTION.
Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.1 of 20
JUDGMENT :-
1. This suit for specific performance, damages and injunction has been filed with respect to Agreement to Sell dated 24.04.1992 in respect of defendant's 1/45th undivided share in agricultural land bearing Khasra Nos. 49/7/1 measuring 2 bighas 14 biswas; Khasra No. 49/8 measuring 2 bighas 12 biswas; Khasra No. 49/9 measuring 2 bighas; Khasra No. 49/12 measuring 2 bighas 8 biswas; Khasra No. 49/13 measuring 4 bighas 16 biswas; Khasra No. 49/14 measuring 4 bighas 11 biswas; Khasra No. 49/17/1 measuring 1 bigha 12 biswas; Khasra No. 49/18/1 measuring 1 bigha 12 biswas; Khasra No. 49/19/1 measuring only 18 biswas; Khasra No. 49/26 measuring 1 bigha 7 biswas and Khasra No. 169 measuring 30 bighas 15 biswas, total measuring 55 Bighas & 5 Biswas, to the extent of 1 Bigha and 4 Biswas situated in Village Bijwasan, Tehsil Mehrauli, New Delhi (hereinafter referred to as suit property).
2. BRIEF HISTORY OF LITIGATION Date Particulars 16.10.1995 Instant Suit filed before Hon'ble Delhi High Court by plaintiff Sh. Sanjay Gupta against defendant Sh. Amar Singh.
17.10.1995 Suit admitted. Ex parte injunction passed against Sh.
Amar Singh restraining him from transferring, alienating, parting with possession and creating any third party interest in the suit property.
23.11.1995 Local Commissioner Sh. L.B. Roy appointed to inspect the suit property and to prepare note Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.2 of 20 regarding the existing position at the suit property. 27.12.1995 Hon'ble High Court restrained the defendant or his transferees from raising any further construction. 24.09.1999 Application under Order I Rule 10 CPC of Sh.
Shamsher Singh and Sh. Ashok Kumar dismissed by Hon'ble Delhi High Court.
19.01.2001 Order dated 24.09.1999 challenged in FAO (OS) No. 7/2000 by Sh. Shamsher Singh and Sh. Ashok Kumar but the same was dismissed.
05.09.2003 Value of suit being less than Rs. 20 lakhs, the suit was transferred to Ld. District Judge.
01.07.2008 An application under Order 22 Rule 4 CPC filed for impleadment of LRs of deceased Amar Singh was allowed.
21.07.2008 Five Issues framed on the basis of pleadings. 04.09.2003 Local Commissioner Sh. Vishwajeet Mangla, Advocate appointed to record evidence of plaintiff in court between 3 to 5 pm. 24.11.2016 Plaintiff evidence closed.
01.12.2017 Defendant evidence closed.
12.04.2018 Final arguments addressed on several dates and finally concluded on 12.04.2018.
PLAINT
3. Brief narration of the facts, as pleaded in the plaint, is as under :-
3.1 That an Agreement to Sell dated 24.04.1992 was executed between the parties whereby the defendant agreed to sell the suit property for a sum of Rs. 3 lakhs to the plaintiff. An amount of Rs.6,000/- was paid in cash and a further sum of Rs.24,000/- was Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.3 of 20 paid through cheque bearing no. 890608 dated 24.04.1992 drawn on Citibank, Connaught Circus, New Delhi. The receipt of which was duly acknowledged by the defendant.
3.2 That the defendant was required to obtain NOC from the competent authority i.e. office of A.D.M. (LA) and Income Tax Clearance Certificate in Form 34A. On obtaining the said permission, the defendant was required to give information to the plaintiff, thereafter, the sale deed was to be executed on payment of balance sale consideration amount of Rs.2,70,000/-. 3.3 That the plaintiff repeatedly approached the defendant to obtain the said permission but the defendant every time assured him that he was making efforts to obtain the requisite permissions. 3.4 That the defendant, despite repeated requests, was not ready and willing to execute the sale deed of the suit property, accordingly, the plaintiff issued a legal notice dated 10.05.1995 whereby he called upon the defendant to perform his part of the contract. The defendant on account of rise in prices of land in Village Bijwasan has become dishonest and is not ready to execute sale deed in favour of plaintiff.
3.5 That the defendant, in breach of Agreement to Sell dated 24.04.1992, is negotiating the transfer of suit property to some purchaser at a very high price. The plaintiff has always been ready and willing to perform his part of the contract and to pay the balance sale consideration to defendant on the execution of sale deed, however, the defendant is not ready to execute the sale deed.
Hence, the present suit.
Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.4 of 20 WRITTEN STATEMENT
4. Defendant has contested the present suit by filing a detailed written statement wherein he has taken a preliminary objection that the suit is barred by time as the agreement of sale was executed on 24.04.1992 whereas the suit has been filed on 09.10.1995. The receipt of an amount of Rs.6,000/- in cash and Rs.24,000/- vide cheque as advance has been admitted. The averments to the contrary are as under:-
4.1 That towards the end of April, 1992, the plaintiff and his father Sh. Lala Ram Gupta approached the defendant and offered to purchase the suit property for a total sale consideration of Rs. 3 lakhs. A blank stamp paper was got signed and thumb marked from the defendant on the representation that the document would be utilized as and when necessary for preparation of a detailed agreement of sale. The document was not read over or explained to defendant and the signature of the alleged attesting witness has been obtained later on.
4.2 That the defendant never agreed to receive the balance amount after obtaining NOC. No time was settled for execution of sale deed. The defendant is illiterate and has learnt only to sign in Urdu. No other family member of defendant was present at the time of Agreement and thumb impression was obtained by the plaintiff at the time of payment of Rs.30,000/-.
4.3 That the document purporting to be the agreement of sale contains impractical conditions and the same were never registered. No lawful agreement of sale came into existence Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.5 of 20 between the parties.
4.4 That the plaintiff and his father represented that they are familiar with the process of obtaining NOC from ADM (LA) therefore they on their own would get the NOC for execution / registration of sale deed.
4.5 That the plaintiff after making payment of Rs.30,000/-
did not approach the defendant for any compliance towards the execution of sale deed. The object of plaintiff was to bind down the defendant by obtaining his signatures and thumb impression and then sleep over the transaction as long as possible and later transfer the land to others and make the maximum profit.
Remaining material contents have been denied and dismissal of the suit with costs has been prayed for.
REPLICATION
5. The plaintiff has preferred to file replication to the written statement of defendant wherein he has denied the allegation to the contrary and has reiterated and reaffirmed the averments made in the plaint.
ISSUES
6. Issues were struck by Ld. Predecessor on 21.07.2008, which are as under :-
(i). Whether the suit is barred by time?OPD
(ii). Whether the plaintiff is entitled to decree for specific
Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.6 of 20
performance of Agreement dated 24.04.1992 and the possession of the suit property? OPP
(iii). Whether the defendant has ever entered into an agreement to sell with the plaintiff and his signatures were obtained on blank papers by the plaintiff or not? OPD.
(iv). Whether the plaintiff is entitled for damages in case the relief
for specific performance is declined? OPP
(v). Relief.
Parties were directed to lead evidence.
PLAINTIFF'S EVIDENCE
7. In support of his case, the plaintiff has stepped into the witness box as PW-1 and tendered his evidence by way of affidavit, which is Ex.PW1/A. He has relied upon the following documents:-
Copy of Agreement dated 24.04.1992 as Mark A;
Notice dated 10.05.1995 as Ex.P-2
Copy of registered postal receipt as Ex.P-3.
The aforesaid witness has been duly cross examined on behalf of defendant. Thereafter, plaintiff's evidence was closed.
DEFENDANT'S EVIDENCE
8. In rebuttal, summoned witness Sh. Krishan Veer, Halka Patwari from the office of SDM has been examined as DW-1 and he has produced the photocopy of Khasra Girdwari for the year 2016 -
Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.7 of 20 2017 as Ex.DW1/A and Register Karyawahi as Ex.DW1/B in respect of the suit land.
The son of deceased defendant / Sh. Munshi Ram Saini has stepped into the witness box as DW2 and tendered his evidence by way of affidavit which is Ex.DW2/A. Both these witnesses have been duly cross examined by ld. Counsel for plaintiff. Thereafter, defendant's evidence was closed.
FINAL ARGUMENTS
9. Rival submissions advanced at bar have been heard and record perused.
JUDICIAL RESOLUTION Issue No. (i) Whether the suit is barred by time?OPD
10. The onus to prove the said issue is upon the defendant. The defendant, in preliminary objection no. 1 of the WS, has alleged that the agreement to sell was executed on 24.04.1992 whereas the suit has been filed on 09.10.1995 which is barred by time. The defendant, in para no. 2 - 3 of reply on merits, has stated that no time was fixed for execution of sale deed. When, admittedly, no time was fixed for execution of sale deed, the limitation would commence from the date of refusal in terms of Article 54 of Limitation Act, 1963. The defendant has no where disclosed the date of refusal, whereas, the plaintiff has claimed it to be as 10.05.1995 Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.8 of 20 when the legal notice was sent by him to the defendant thereby calling upon him to perform his part of the agreement. The limitation would thus start from 10.05.1995. The instant suit which has been filed on 16.10.1995 is, therefore, well within limitation.
Issue no. (i) is decided in favour of the plaintiff and against the defendant.
Issue No. (ii). Whether the plaintiff is entitled to decree for specific performance of Agreement dated 24.04.1992 and the possession of the suit property? OPP Issue No. (iii). Whether the defendant has ever entered into an agreement to sell with the plaintiff and his signatures were obtained on blank papers by the plaintiff or not? OPD.
11. Both these issues are taken up together as they are interconnected and can be disposed off by a common discussion.
12. The foundation of the present suit for specific performance is the photocopy of agreement of sell dated 24.04.1992 Mark 'A'. The plaintiff / PW1 when stepped into the witness box did not exhibit this document but it was simply marked as Mark A. Section 64 of Evidence Act mandates that documents must be proved by primary evidence i.e. by production of the original document itself except in certain cases, when secondary evidence is permissible under Section 65 of Evidence Act.
13. In the instant case, the original agreement to sell was not produced before the court at any stage of trial. It is well settled Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.9 of 20 that a party to litigation must produce the best evidence. The best evidence i.e. the original agreement to sell was not filed. The secondary evidence itself must be of the nature as described in Section 63 of Evidence Act.
14. Section 63 of Evidence Act is extracted hereunder:-
"63. Secondary Evidence - Secondary evidence means and includes :- (1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;
(3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it"
15. In the instant case, a photostat copy of the original agreement to sell Ex.DW1/P1 has been produced but there is no proof of its accuracy or of it having been compared with or it being true reproduction of the original agreement to sell. There is no evidence as to who made the copy, from what it was made or whether it was compared with the original. The testimony of plaintiff / PW-1 is completely silent in this regard. The copy of the agreement to sell Mark A has not been proved to be a correct copy of the original. Thus, the necessary foundation for its reception under Section 63 of Evidence Act was not laid. Moreover, the secondary evidence is also not admissible for the reason that there is no proof as to the loss or destruction of the original agreement to sell.
16. Section 65 of Indian Evidence Act, 1872 entails a party to lead secondary evidence, in respect of a document, on satisfying certain conditions. Section 65 reads as under:-
"65. Cases in which secondary evidence relating to documents Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.10 of 20 may be given - secondary evidence may be given of the existence, condition; or contents of a document in the following cases:-
(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by is representative in interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
17. In J. Yashoda Vs. K. Shobha Rani (2007) 5 SCC 730, the Hon'ble Supreme Court dealt with the question as to when a party can be permitted to lead secondary evidence. Para no. 9 of the said judgment is reproduced as under:-
"9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.11 of 20 may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however, permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section...."
18. Similarly, in Chandro Devi & Ors. Vs. Jit Singh & Ors., 1989 ACJ 41, the Honble Delhi High Court, in para no. 35, observed as under:-
"35. It is thus clear that the contents of documents can be proved either by primary or by secondary evidence. Primary evidence means the document itself produced for the inspection of the court. It is settled law that the documents must be proved by primary evidence, except in cases mentioned in Section 65 of Evidence Act. It is also settled law that mere production of a document is not proof of its contents, especially when the person producing it is neither the writer nor the one on whose behalf it is written. A person, who is not producing the primary evidence, must explain the reasons for that."
19. In the present case, the plaintiff is seeking to prove the agreement to sell by secondary evidence but has not led any evidence of the existence of circumstances / situations in which secondary evidence is permissible. The plaintiff has nowhere pleaded in his plaint nor deposed in his affidavit that the original agreement to sell is destroyed or lost or is in possession of the defendant or any other reason for its non production. What happened to the original agreement to sell has remained a mystery.
Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.12 of 20 In these circumstances, the secondary evidence in the shape of photostat copy, which is not even stated or proved to be a copy of original agreement to sell, is not admissible in evidence.
20. Ld. Counsel for plaintiff vehemently urged that the agreement to sell Mark A has been proved by way of admission extracted from DW-1 during his cross examination and admission, as such, is the best evidence against the party making it, hence, the document Mark A stands duly proved. The portion of cross examination of DW-1, which as per ld. Counsel for plaintiff amounts to admission of agreement to sell is reproduced hereinbelow:-
"....I have perused page no. 2 of agreement dated 24.4.1992 and the details of khasra no. recoded therein are absolutely correct. It is also correct to say that the area mentioned in the said document at page no. 2 i.e. 1 bigha 4 biswa is correctly depicting the landholding of my father. The said document is now exhibited as Ex. DW1/P1 at point A and B.... .... It is correct to say that my father signed at point A1, A2, A3 and A4 in Ex.DW1/P1..."
21. The plaintiff, during cross examination of DW-1, has exhibited the photocopy of agreement to sell as Ex.DW1/P1. Mere marking of a document as an exhibit does not dispense with its proof and it has to be proved in accordance with law. The question which arises for consideration before the court is whether the execution of document Ex.DW1/P1 has been admitted by the defendant, thus, it stands duly proved?
22. By way of aforesaid cross examination of DW-1, the plaintiff has only been able to extract an admission that the identity of subject matter of sale as mentioned in the agreement to sell Ex.PW1/D1 is same as that of the property owned by defendant. A perusal of written statement reveals that the defendant has pleaded Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.13 of 20 that there was an oral agreement to sell with respect to the suit property for total consideration of Rs. 3 lakhs and Rs.30,000/- was paid as advance. Thus, the defendant has not disputed the following terms of the agreement to sell :-
(i) Property which is subject matter of sale;
(ii) Seller and Purchaser; (iii) Total Sale Consideration; (iv) Receipt of Earnest Money.
23. The parties were at variance as to the time fixed for performance of agreement to sell. As per the plaintiff, the defendant had to obtain the requisite permissions from ADM (LA) and Income Tax Department and execute the sale deed within 6 months from the date of obtaining the said permissions as incorporated in photocopy of agreement to sell Ex.DW1/P1. The defendant has categorically denied the said version and has averred that he had never agreed to obtain the necessary permissions and had also never agreed to receive the balance amount after obtaining of NOC. Admission, if any, as to the contents of the document Ex.DW1/P1 should have been extracted as to the disputed terms i.e. pertaining to necessary permissions and not as to the terms already admitted by the defendant. The same has not been done by the plaintiff.
Incorporation of certain admitted terms in the agreement to sell Ex.DW1/P1 would not negate the defendant's plea that the entire contents were not read over and explained to him.
24. It was incumbent upon the plaintiff to lead evidence to show that the entire contents of the agreement Ex.DW1/P1 which are in english language were translated, fully read and understood Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.14 of 20 by the defendant before he had appended his signatures in Urdu thereon. The admission of the defendant as to his signature on a blank paper and as to correctness of certain terms of agreement would not amount to admission as to of the execution of the agreement Ex.DW1/P1.
25. Execution of a document means something more than mere signing. Execution of a document means that the executant must have signed or put his thumb mark / impression, only after the contents of the document have been fully stated and read by the executant before he put his signature there. In the case of a thumb impression by an illiterate person, the burden is on the person relying on the document to prove that the document was read and explained.
26. In the instant case, the plaintiff has relied upon the document / agreement to sell Ex.DW1/P1 which is in English language but has been signed by the defendant in Urdu which shows that the defendant was not conversant with the English language. Thus, the onus was squarely upon the plaintiff to prove that the agreement to sell Ex.DW1/P1 was read over and explained to the defendant which he has failed to discharge.
27. The defendant, in his written statement, has categorically denied the execution of agreement to sell Ex.DW1/P1. The relevant extract of para no. 2 - 3 of WS of defendant is reproduced hereinbelow:-
"Pleading shortage of time, a blank paper was got signed and thumb marked from the defendant on the representation that the document would be utilized as and when necessary for preparation of a detailed agreement of sale. A photostat copy of the document purporting to be a receipt-cum-agreement of sale Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.15 of 20 seems to have been prepared on the said blank signed paper. The document as produced was not read over or explained to the defendant. The signatures of the alleged attesting witnesses have been obtained later on. The defendant is now informed that Shri Daya Chand, alleged witness no. 1 is a property broker and is a stock witness of the plaintiff in a number of deals, and so is the 2nd attesting witness. They were not present at the time when the signatures and thumb impression of the defendant was obtained on the aforesaid receipt."
28. It is well settled proposition of law that when the execution of a document is denied, it is for the party who alleges its due execution to prove by acceptable evidence that the executant affixed his signatures on the document after being aware of its contents. In the instant suit, though the defendant has admitted his signatures on the photocopy of agreement to sell Ex.DW1/P1, he has categorically denied its execution by pleading that his signatures were taken on blank paper and the document was not read over or explained to him.
29. Mere production of photocopy of agreement Ex.DW1/P1 signed by defendant is no evidence of its due execution. It was necessary for the plaintiff to prove its genuineness and execution. The plaintiff failed to extract an admission from the legal heir of defendant / DW-1 that the agreement to sell Ex.DW1/P1 was read over in toto to the defendant and he had fully understood its contents prior to signing the same. The attesting witness to the agreement to sell i.e. Sh. Daya Chand has not been examined. The defendant expired during the pendency of the instant lis. The best witness who could have proved the due execution of the agreement to sell was the attesting witness / Sh. Daya Chand, who has not been examined Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.16 of 20 and it has proved fatal to plaintiff's case.
30. In view of above, the court is of the opinion that the plaintiff has miserably failed to prove the execution of agreement to sell Ex.DW1/P1 between the parties. The agreement to sell remains unproved, so no specific performance can be granted.
31. Reliance in this regard is placed upon the judgment titled as Shankar Chauhan Vs. Sunil Kumar Goel 178 (2011) DLT 304 wherein Hon'ble Delhi High Court, in para no. 6, observed as under:-
"6. The most crucial aspect in this case is that no original agreement/receipt dated 10.03.1996 has come on record. Admittedly, only a photocopy of the agreement/receipt dated 10.03.1996 is on the trial Court record. Even this document has not been exhibited but is simply marked as "Mark A".
Once a document is not exhibited and simply marked, I fail to understand as to how on the basis of such a document which is not exhibited, the suit for specific performance could have been decreed considering that for specific performance to be decreed it has to be proved as a sine qua non the existence and continued validity of the agreement. An unproved document cannot be the basis of a decree of a suit, more so one so important in nature such as a suit for specific performance. Further, though Section 114 of the Evidence Act may not in one sense be directly applicable, the provision as quoted by the learned Counsel for the Appellant clearly applies because after all it was very convenient for the Respondent/Plaintiff to allege that the agreement was lost once the same was destroyed after exchange of cash between the parties for bringing the transaction to an end. If action of the Respondent/Plaintiff in succeeding in the suit for specific performance is sustained, then the same would mean that even if the original agreement is not filed and proved on record inasmuch as the same is stated to be destroyed, yet valuable rights in an immovable property can be lost on the basis of a photocopy of document."
Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.17 of 20
32. As the agreement to sell has not been proved between the parties, the defendant cannot lose valuable rights in his property on the basis of a photocopy. The relief of Specific Performance is discretionary and in the facts of the present case, in the absence of proof of due execution of agreement to sell, the specific performance of such an agreement cannot be granted.
Issue no. (ii) and (iii) are decided against the plaintiff and in favour of the defendant.
Issue no. (iv). Whether the plaintiff is entitled for damages in case the relief for specific performance is declined? OPP
33. The onus to prove the said issue is upon the plaintiff. While adjudicating upon issue no. (ii), the relief of Specific Performance has been declined. Now, the court needs to determine as to whether the plaintiff, in alternative, is entitled to damages to the tune of Rs. 5,05,000/- including refund of earnest amount of Rs.30,000/-.
34. Though, the relief of specific performance could not be granted in favour of plaintiff in absence of original agreement to sell dated 24.04.1992, the defendant, has himself admitted the receipt of Rs.30,000/- from plaintiff as earnest amount. The defendant has to restore the benefit which he has received. The plaintiff is, thus, entitled to recover the earnest money of Rs.30,000/- from LRs of defendant.
35. Adverting to plaintiff's claim of damages to the tune of Rs.5,05,000/-. Ld. counsel for plaintiff strenuously urged that the amount of Rs.5,05,000/- is a genuine pre-estimate of damages. The Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.18 of 20 plaintiff has miserably failed to establish the existence of an agreement to sell with the defendant, thus, the question of awarding damages does not arise. Even otherwise, the court is of the opinion that the amount of Rs.5,05,000/- is not a genuine forecast of probable loss but it is in the nature of a penalty.
36. The onus was upon the plaintiff to prove that due to breach of the contract by the defendant, he actually sustained damage and what was the measure thereof. The plaintiff has led no evidence whatsoever as to the difference in the market price of the suit property and equivalent properties on the date of breach, so as to enable the court to ascertain the quantum of damages.
37. In view of above, the court holds that the plaintiff is entitled to refund of earnest money of Rs. 30,000/- and not to the sum of Rs.5,05,000/- as damages claimed by him. The Court can not be ignorant of the fact that plaintiff is deprived of the amount of Rs. 30,000/- since 24/04/1992. Thus, the plaintiff needs to be compensated by awarding interest on the amount of Rs. 30,000/- since 24/04/1992 till the realization of the aforesaid amount.
38. Though, the plaintiff has not made a specific claim for interest, he has prayed for any other relief which this Court may deem fit and proper under the facts and circumstances of the case. Under Order 7 Rule 7 CPC, the Court can always grant a lesser relief or an appropriate relief as arising from the facts and circumstances of the case.3 Considering, the facts and circumstances of the present case, the plaintiff is held entitled to refund of an amount of Rs. 30,000/- along with interest @ 6% per 3 Reference may be made to the judgment titled as Sh. Jinesh Kumar Jain Vs. Smt. Iris Paintal & Ors. CS (OS) No. 1154/1989 dt. 10/07/2012 of Hon'ble Delhi High Court.
Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.19 of 20 annum w.e.f. 24/04/1992 till filing of the present suit. The pendente- lite and future interest is also awarded @ 6% per annum.
Issue no. (iv) is partly decided in favour of the plaintiff and against the defendant.
Relief In view of findings and discussion on the aforesaid issues, the relief of specific performance is declined. The plaintiff is held entitled to refund of an amount of Rs. 30,000/- along with interest @ 6% per annum w.e.f. 24/04/1992 till filing of the present suit. The pendente-lite and future interest is also awarded @ 6% per annum. No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (SHUCHI LALER)
on this 24th day of ADJ-04, EAST DISTRICT
July, 2018 KKD Courts, Delhi.
Digitally signed by
SHUCHI SHUCHI LALER
LALER Date: 2018.07.24
17:29:04 +0530
Suit No. 1754/16/95 Sanjay Gupta v Amar Singh Page No.20 of 20