Delhi District Court
Sh. Firozuddin vs Haji Zafruddin on 18 October, 2019
Firozuddin V. Zafruddin
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 54/2016
UNIQUE CASE ID NO.: 614016/2016
IN THE MATTER OF :
Sh. Firozuddin
S/o Late Akhlaquddin
Shop No. 698, Haveli Azam Khan,
Bazar Chitli Qabar,
Jama Masjid, Delhi110006. ....Plaintiff
Versus
Haji Zafruddin
S/o Haji Amir Hassan
R/o H. No.728, Haveli Azam Khan,
Bazar Chitli Qabar,
Jama Masjid, Delhi110006. ....Defendant
SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT AND
PERMANENT INJUNCTION
Date of institution of the Suit : 12.04.2016
Suit No. 54/2016 Page 1 of 43
Firozuddin V. Zafruddin
Date on which Judgment was reserved : 20.09.2019
Date of Judgment : 18.10.2019
:: J U D G M E N T ::
By way of present judgment, this court shall adjudicate
upon suit for specific performance of contract, declaration and
permanent injunction filed by the plaintiff against the defendants.
CASE OF THE PLAINTIFF AS PER PLAINT
Succinctly, the necessary facts for just adjudication of
the present suit, as stated in the plaint, are as under:
1.The plaintiff had been tenant in the shop in question bearing no. 698, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi110006 @ Rs.300/ p.m. under the defendant. The defendant had filed an Eviction Petition bearing no. 261/2015 in the case titled as Haji Zafruddin V/s. Firozuddin under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act against the plaintiff. The eviction petition was filed by the defendant with malafide intention to pressurize the plaintiff to increase the sale consideration as he wanted to sell the shop. In the year 1990, the defendant had agreed to sell the shop in question to the plaintiff for a sale consideration of Rs.2.90 Lakhs and had received the entire sale consideration but subsequently, backed out from the Suit No. 54/2016 Page 2 of 43 Firozuddin V. Zafruddin Agreement as it was oral. The defendant grabbed the said amount and did not refund the same.
2. The defendant has agreed to sell the shop in question to the plaintiff for a sale consideration of Rs.11.50 Lakhs taking undue advantage of the intention of plaintiff that he has made good will in the shop run by him. At this time, a written Agreement to Sell dated 07.01.2016 has been executed between the plaintiff and the defendant for the shop in question and the plaintiff has agreed to purchase the shop for total sale consideration of Rs.11.50 Lakhs, out of which, the plaintiff has already paid Rs.6.00 Lakhs acknowledged by the defendant in the Agreement to Sell, which was entered into by the defendant with the plaintiff with the consent of his above named two sons from whom, he has filed the false eviction petition on the ground of bonafide requirement.
3. The defendant had put a condition upon the plaintiff to allow him to raise four pillars of the size of 9" X 12' from the side of the shop in question as he wants to raise construction over the roof of the tenanted shop and the adjacent shop no. 699, which is under the tenancy of Mohd. Saghir and others, sons of Late Mohd. Saeed who was tenant therein. It was agreed in the said Agreement to Sell that the defendant shall execute the Sale Deed in respect of the shop in question in favour of the plaintiff on or before the expiry of two years w.e.f. the date of Agreement to Sell and in case of failure, the plaintiff shall Suit No. 54/2016 Page 3 of 43 Firozuddin V. Zafruddin be entitled to get the Sale Deed executed through Court of law at the expenses of the defendant. At the same time, it was also agreed that in case the plaintiff fails to get the Sale Deed executed within time fixed, the earnest money of Rs.6.00 Lakhs shall be forfeited.
4. The defendant having dishonest and malafide intention served a notice dated 20.02.2016 upon the plaintiff in an attempt to wriggle out from the Agreement to Sell on the basis of false and frivolous facts blaming the plaintiff that he was not ready to allow the defendant to raise four pillars in his shop. The plaintiff was always ready and willing and is still ready to allow the defendant to raise alleged four pillars. The defendant wants to raise construction over the roofs of the shop of plaintiff and the tenanted shop of Mohd. Saghir and others. The defendant neither took them into confidence to raise construction over the roof of their tenanted shop nor obtained any sanction plan or permission from North Delhi Municipal Corporation. The actual fact is that he wants to grab the earnest money of Rs.6.00 Lakhs paid by the plaintiff as he had done in past, as he had grabbed Rs.2.90 Lakhs previously paid to him for purchasing the shop by the plaintiff. The plaintiff sent reply dated 08.03.2016 to the defendant through his Advocate in which it was specifically mentioned that the plaintiff was ready to allow the defendant to raise the pillars from inside his shop. The defendant was Suit No. 54/2016 Page 4 of 43 Firozuddin V. Zafruddin searching ways to wriggle out from the Agreement to Sell, has sent a noticecumrejoinder dated 28.03.2016 saying that he has cancelled the Agreement to Sell dated 07.01.2016 on false and frivolous grounds. The defendant cannot unilaterally cancel the Agreement to Sell and at the same time, keep the earnest money in his pocket. The plaintiff is not at all at fault but the defendant is a dishonest person. He has served the noticecumrejoinder dated 28.03.2016 because in the light of terms and conditions of the Agreement to Sell dated 07.01.2016, the plaintiff moved an application in the Court of Sh. Rajinder Kumar, the then Ld. ARC (Central), Delhi in the eviction petition filed by the defendant for dismissal of eviction petition.
5. The defendant wanted to blackmail the plaintiff by keeping allow the eviction petition and at the same time, wanted to grab the money paid by him. As per the terms and conditions of the Agreement to Sell, the defendant was bound to withdraw the eviction petition. The plaintiff is entitled to get the Sale Deed executed in respect of the shop in question through court of law at the expenses of defendant. The plaintiff has always been ready and willing to perform his part of contract, as per the terms and conditions of the Agreement to Sell dated 07.01.2016. He is ready with the balance sale consideration of Rs.5.00 Lakhs to pay to the defendant and in fact, he offered to pay the defendant but the defendant Suit No. 54/2016 Page 5 of 43 Firozuddin V. Zafruddin refused. The defendant is guilty of breach of Agreement to Sell. On 09.04.2016, the plaintiff met the defendant at his shop no. 957959, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi110006 and requested him to execute the Sale Deed in his favour. He told the defendant that the defendant was bound with the terms & conditions of the Agreement to Sell. On this, the defendant became furious and said that he was not bound by the Agreement to Sell dated 07.01.2016 as he had already cancelled the same. He threatened that he had settled the deal with potential buyer to sell the property in question through a property dealer. The defendant is bound with the terms and conditions of the Agreement to Sell and cannot sell, alienate or transfer the shop to anybody else except the plaintiff as is from the preceding paras that the defendant is not ready to abide with the Agreement to Sell.
CASE OF THE DEFENDANT AS PER WRITTEN STATEMENT Summons for settlement of issues were issued to the defendant and the defendant has filed written statement in the present case. Succinctly, the case of the defendant is as under:
1. The plaintiff was not ready and willing to perform his part of duty of Agreement dated 07.01.2016, particularly to permit the defendant to raise four pillars of 9" X 12 ft. from inside his tenanted shop no. 698, Haveli Azam Khan to raise the construction over it by the defendant. After execution of the Suit No. 54/2016 Page 6 of 43 Firozuddin V. Zafruddin said Agreement to Sell dated 07.01.2016, the defendant requested the plaintiff to enable the defendant to raise the said agreed four pillars from inside his tenanted premises but the plaintiff refused to allow the defendant to do so. Since the entire superstructure of the defendants over the suit shop had become dangerous and was in a dilapidated condition, the same was pull down by the defendant to avoid any mis happening and to rebuild the same in the same manner, as it existed prior to its demolition since the said super structure over the roof of the suit premises was to be rebuild by the defendant so as to use the same according to his requirement, the defendant keeping in view the urgency of need and requirement of the super structure, had agreed to sell the suit shop to the plaintiff provided the plaintiff enables the defendant to raise the construction of preexisting super structure over the suit premises but the plaintiff refused to allow the defendant to raise the construction of super structure over the suit premises, which rendered the Agreement to Sell dated 07.01.2016 redundant. As such, the present suit is liable to be dismissed on this ground itself since the said Agreement to Sell dated 07.01.2016 was cancelled by the defendant on valid and cogent grounds.
2. The plaintiff instead of performing his act of the Agreement to Sell dated 07.01.2016 was using the said Agreement as a tool of blackmailing the defendant and was demanding exorbitant Suit No. 54/2016 Page 7 of 43 Firozuddin V. Zafruddin money for enabling the rebuilding of the super structure over the roof of the said tenanted shop. The grant of decree of specific performance is a discretionary relief of the Court and the facts and circumstances, the defendant executed the said Agreement as well as the conduct of the plaintiff after execution of the said Agreement dated 07.01.2016 clearly shows that the hardships being caused to the defendant by refusal of the plaintiff of carrying on reconstruction over the roof of the tenanted premises has made it inequitable to exercise discretionary power in favour of the plaintiff as the passing of the said decree, as prayed, in favour of the plaintiff without the plaintiff performing his part of the Agreement will further result in great hardship to the defendant, which is not equitable.
3. On merits, the contents of the plaint have been denied and it has been submitted that no Agreement was ever arrived at between the parties in 1990 or any other occasion and the defendant never received Rs.2.90 Lakhs as the sale consideration. If the defendant had ever grabbed Rs.2.90 Lakhs from the plaintiff, then the plaintiff ought to have initiated criminal or civil proceedings against the defendant. One of the main conditions of the Agreement to Sell dated 07.01.2016 was that the defendant shall be permitted to raise four pillars from inside the shop of the plaintiff so that the defendant may raise construction over the roof of the suit Suit No. 54/2016 Page 8 of 43 Firozuddin V. Zafruddin premises. The Agreement to Sell dated 07.01.2016 contained the main condition of raising the construction by the defendant after raising four pillars from inside the shop of the defendant, which the plaintiff had agreed and as such, the defendant had taken the plaintiff into confidence in this regard as regards the nonobtaining of sanction plan or permission from NDMC. The defendant had demolished the dangerous upper portion and had taken the permission of NDMC for raising the construction in accordance with building byelaws, it was not the concern of the plaintiff.
4. It is the plaintiff, who is guilty of not only breaching the terms and conditions but also refusing to perform his part of the Agreement dated 07.01.2016. The notice dated 28.02.2016 as well as noticecumrejoinder dated 28.03.2016 are based on true and correct facts and Agreement to Sell dated 07.01.2016 has been legally and validly cancelled by the defendant due to refusal of the plaintiff to perform his part of the Agreement dated 07.01.2016 and hence, the advance money of Rs.6.00 Lakhs paid by the plaintiff to the defendant also legally stood forfeited. The plaintiff is not entitled to get the Sale Deed executed in respect of the shop in question through court of law at the expenses of the defendant.
REPLICATION AND ISSUES Plaintiff has filed the replication controverting the allegations/ contentions in the written statement of the defendant Suit No. 54/2016 Page 9 of 43 Firozuddin V. Zafruddin and contents of the plaint have been reiterated and reaffirmed.
From the pleadings of the parties, following issues were framed vide order dated 06/06/2016: ISSUES
1. Whether the Plaintiff is entitled to decree for Specific Performance in respect of the suit property in terms of agreement dated 07.01.2016 as prayed for? OPP
2. Whether the Plaintiff is entitled for permanent injunction as prayer for? OPP
3. Whether no cause of action in favour of the Plaintiff ? OPD
4. Whether the plaintiff is entitled to alternate relief of double the amount of earnest money, as prayed for in the Plaint? OPP
5. Relief EVIDENCE OF THE PLAINTIFF AND DEFENDANT AND DOCUMENTS RELIED UPON BY THEM Plaintiff has led his evidence and examined himself as PW1, who has filed his evidence by way of affidavit wherein he reiterated and reaffirmed the contents of the plaint and relied upon the following documents :
1. Site Plan is Ex.PW1/1.
2. Agreement to Sell is Ex.PW1/2.
3. Notice dated 20.02.2016 is Ex.PW1/3.
4. Reply to notice dated 20.02.2016 Ex.PW1/4.
Suit No. 54/2016 Page 10 of 43Firozuddin V. Zafruddin
5. Rejoinder dated 28.03.2016 is Ex.PW1/5.
6. Application under section 25B of DRC Act is MarkA. The plaintiff has also examined Sh. Babar Sultan as PW 2, Sh. Ansar as PW3 and Sh. Iftkharuddin as PW4, who have filed their evidence by way of affidavit.
On the other hand, the defendant has led his evidence and examined himself as DW1, who has filed his evidence by way of affidavit wherein he reiterated and reaffirmed the contents of the Written Statement. The defendant has also examined Sh. Ayazuddin as DW2, who has filed his evidence by way of affidavit.
This court heard the final arguments as advanced by Ld. counsels for the parties. I have perused the material available on record.
ISSUE WISE FINDINGS ISSUES NO.1 TO 4
1. Whether the Plaintiff is entitled to decree for Specific Performance in respect of the suit property in terms of agreement dated 07.01.2016 as prayed for? OPP
2. Whether the Plaintiff is entitled for permanent injunction as prayer for? OPP
3. Whether no cause of action in favour of the Plaintiff ? OPD
4. Whether the plaintiff is entitled to alternate relief of double the amount of earnest money, as prayed for in the Plaint? OPP Suit No. 54/2016 Page 11 of 43 Firozuddin V. Zafruddin The aforesaid issue nos.1 to 4 are interrelated and inter connected to each other and accordingly they are decided together. FINDINGS AND CONCLUSIONS OF THE COURT There is no dispute between the parties that the Agreement to Sell dated 07.01.2016 (Exhibit PW1/2) was executed between the parties in respect of the suit property and as per the said Agreement, the total consideration of Rs.11,50,000/ was fixed between the parties. It is agreed by and between the parties that Rs.50,000/ shall be retained by the Plaintiff for providing repairs in the shop and it is agreed that defendant "may raise four pillars of 9" x 12' from inside the shop No.698 to raise construction above it". As per clause no.5, a period of two years has been fixed/ settled and it is recorded that the first party shall be bound to execute the Sale Deed in respect of the suit property on or before the expiry of two years. The entire controversy in the present case is about the interpretation of the clause and implications thereof. There is no dispute between the parties that the Plaintiff has paid a sum of Rs.6,00,000/ to the defendant at the time of execution of the said Agreement to Sell and there is also no dispute between the parties that the Plaintiff was ready and willing to perform his part of the contract as far as balance payment of Rs.5,00,000/. In fact, the balance consideration was required to be paid at the time of execution of Sale Deed and admittedly, as per Ex.PW1/2, the parties have fixed two years from 07.01.2016 but the suit was filed on 12.04.2016 as the defendant unilaterally cancelled the Suit No. 54/2016 Page 12 of 43 Firozuddin V. Zafruddin Agreement Ex.PW1/2 by rejoinder notice dated 28.03.2016, which is itself contrary to the time fixed by the parties. The suit has been filed immediately thereafter i.e. on 12.04.2016.
The Ld. counsel for the defendant has assiduously argued that legal Notice dated 20.02.2016 (Exhibit PW1/3) was issued by the defendant to the plaintiff and it was apprised to the Plaintiff by means of the said Notice that the upper portion of the suit property was in a dangerous and dilapidated condition and the defendant has demolished the same in order to raise fresh construction to the level of already constructed portion. It is also argued that when the defendant has started to make fresh construction thereon, after demolishing the same, then the Plaintiff has raised obstruction thereon. The Ld. counsel for the defendant has further argued that the only purpose of executing the Agreement dated 07.01.2016 was to enable the defendant to raise the structure/ construction over the suit property so that the bonafide needs and requirements of the defendant would be meted out and it would enable the sons of the defendant to start their own business. The Ld. counsel for the defendant has also argued that the plaintiff has not even allowed the defendant to raise the pillars in the said suit property in order to raise the construction/ structure over the suit property and they have been avoiding the same on one pretext or the other. The Ld. counsel for the defendant has further argued that the plaintiff was called upon to allow the defendant to raise the pillars within two weeks from the date of Suit No. 54/2016 Page 13 of 43 Firozuddin V. Zafruddin service of legal Notice dated 20.02.2016 and otherwise, the defendant will be left with no other option but to cancel the Agreement dated 07.01.2016.
The said legal Notice dated 25.02.2016 was replied by the Plaintiff by means of Reply dated 08.03.2016. The Plaintiff has agitated that the defendant wants to raise unauthorized construction above the roof of suit property and also Shop No.699 without permission/sanction of MCD and also without the consent of tenants of Shop No.699. It is further contended by the Plaintiff that without taking into confidence the plaintiff or tenants of Shop No.699, the structure over and above Suit property and Shop No.699 was demolished, although, the structure was quite strong enough. It is further submitted in the said reply dated 08.03.2016 that the plaintiff has given consent to raise pillars from his shop, as mentioned in the agreement to sell, but the defendant has not obtained any sanction from MCD and the tenants of Shop No.699, who are raising objection. The defendant has sent the rejoinder Notice dated 28.03.2016 in reply to Notice dated 08.03.2016.
The Ld. counsel for the defendant has fervently argued that since the plaintiff has not allowed the defendant to raise the pillars from inside of the shop, as agreed between the parties and further objected to raise the construction over the aforesaid shop, therefore, the Agreement to Sell dated 07.01.2016 executed between the parties stood cancelled and the same was also intimated to the plaintiff vide rejoinder notice dated 28.03.2016 to the reply dated Suit No. 54/2016 Page 14 of 43 Firozuddin V. Zafruddin 08.03.2016.
There is no dispute that the Agreement to Sell dated 07.01.2016 was executed between the parties (Exhibit PW1/2) and vide Clause5 of the said Agreement, a period of two years was fixed from the date of execution and it is written that the defendant shall be bound to execute the Sale Deed in respect of the suit property on or before expiry of two years. Therefore, the maximum period, which was agreed between the parties, was two years. However, the defendant has jumped upon his chair in the second month of execution of the Agreement when the defendant had sent the Notice dated (Exhibit PW1/3) and even threatening to cancel the Agreement to Sell dated 07.01.2016 in spite of the fact that more than 50% payment was made by the Plaintiff to the defendant at the time of execution of the Agreement to Sell dated 07.01.2016 and further, only a sum of Rs.5,00,000/ was required to be paid. The defendant, by means of the rejoinder Notice dated 28.03.2016 (Exhibit PW1/5), had even cancelled the Agreement dated 07.01.2016, which is otherwise, itself valid for two years from the date of execution. The act of the defendant is perse not in accordance with law when the parties have permitted themselves in the Agreement to sell, the time of two years from the execution of Agreement to Sell and the same has been cancelled/ terminated within a period of about 2 months and 21 days.
The Plaintiff has also nowhere objected to the defendant to raise the four pillars from inside the shop and the same is also Suit No. 54/2016 Page 15 of 43 Firozuddin V. Zafruddin apparent from reading the reply dated 08.03.2016. The parties have fixed a period of two years from execution of the Agreement dated 07.01.2016 and during the crossexamination dated 17.10.2016 (i.e. within a period of 9 months and 10 days from execution of Agreement dated 07.01.2016), the plaintiff has categorically deposed that "Even today, I am ready to allow the defendant to raise four pillars inside my shop". During the crossexamination conducted on 26.11.2016 (i.e. within a period 10 months and about 20 days from execution of the Agreement dated 07.10.2016), the Plaintiff again submitted that " I am still ready to allow the defendant to raise pillars from inside my shop and thereafter sale deed may registered."
There is no dispute between the parties that the time, which was fixed by the parties, was two years from the date of Agreement to Sell dated 07.01.2016. The controversy in respect of raising of four pillars was also resolved by this Court on the mutual understanding of the parties and the parties have also mutually fixed the time for execution of the Sale Deed. The relevant Orders dated 18.07.2018, 13.08.2018, 11.09.2018 and 04.10.2018 are reproduced herein for ready reference: "18/07/2018 Present: Sh. R.K. Saini, Ld. counsel for the plaintiff.
Sh. Anees Ahmed, Ld. counsel for the defendant.
Suit No. 54/2016 Page 16 of 43Firozuddin V. Zafruddin Ld. counsel for the defendant seeks some time to place on record name of the Architect as well as the estimate for construction of four pillars, as per the agreement between the parties.
At request, put up for the aforesaid purpose and/ or final arguments on 13/08/2018."
"13/08/2018 Present: Sh. R.K. Saini, Ld. counsel for the plaintiff.
Sh. Anees Ahmed, Ld. counsel for the defendant.
The ld. counsel for the defendant submits that defendant want to engage Sh. Ashok Kumar Kalyan, Civil Engineer, Architect and Consultant R/o 18C, AC Block, Shalimar Bagh, Delhi88. The said architect is directed to visit the suit shop in property bearing no. 698, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi, on 20/08/2018 at 4:00 PM.
The Architect shall suggest the place of erection of four pillars in the said suit shop and prepare the estimate for construction of four pillars. The entire expenses of the construction of four pillars including the expenses of architect as per the agreement is to be borne by the defendants.
At request, put up for the further proceedings/ or final arguments on 11/09/2018."
"11/09/2018 Suit No. 54/2016 Page 17 of 43 Firozuddin V. Zafruddin Present: Sh. R.K. Saini, Ld. counsel for the plaintiff along with plaintiff in person.
Sh. Rizwan Ahmed, Ld. proxy counsel for the defendant along with son of the defendant Sh. Zaib Hussain.
The ld. proxy counsel for the defendant has filed the inspection report of the architect. The architect has given the lay out plan for construction of the four pillars in the suit property as well as the cost of construction of the said pillars. The Ld. counsel for the plaintiff has no objection regarding the said report. However, he has submitted that the defendant will construct the pillars one by one and starting from the back of the suit property. The Ld. proxy on instructions from the defendant as well as his son submits that the defendant requires two months time to construct the said pillars in the suit property.
It is made clear that the plaintiff shall remain in possession of the suit property and the plaintiff shall allow the access to the workmen/contractor/architect as well as the defendant in the suit property only for the purpose of construction of the pillars only as per the report. The defendant shall ensure to clean the litter and garbage of the construction materials after completion of each pillar. The defendant shall construct the pillars starting from the back and construct the pillars one by one. Needless to say that the defendant shall Suit No. 54/2016 Page 18 of 43 Firozuddin V. Zafruddin bear the entire expenses of the construction of the pillars.
Put up for the further proceedings/ or final arguments on 13/11/2018.
Copy of the order be given dasti to both the parties through their counsels."
"04/10/2018 File taken up today on the applications, one filed by the plaintiff for early hearing and another filed by defendant u/s 151 CPC.
Present: Sh. R.K. Saini, Ld. counsel for the plaintiff.
Sh. Anis Ahmed, ld. counsel for the defendant along with Sh. Zev Hassan son of the defendant in person.
The Ld. counsel for the plaintiff has filed an application for early hearing of the matter. The Ld. counsel for the defendant has filed an application u/s 151 CPC for appropriate directions to the plaintiff not to create any obstruction in performance of the terms and conditions of the agreement dated 07/01/2016. Since both the parties have appeared before this court, therefore, the application for early hearing is disposed off and both the parties are heard on the matter as well as on the application u/s 151 CPC filed by the defendant.Suit No. 54/2016 Page 19 of 43
Firozuddin V. Zafruddin Both the parties submit that the four pillars are already constructed in the suit shop in view of the orders dated 11/09/2018. The Ld. counsel for the defendant submits that the plaintiff is constructing the room over the said shop but the plaintiff is obstructing the same. It is made clear that the defendant will not carry out illegal construction over the said shop. However, in case the MCD permits to construct the room over the above shop the plaintiff shall not create any hindrance or obstructions for the construction of the same. The plaintiff submits that as per the agreement he is ready to deposit the admitted balance sum of Rs. 5,00,000/ in the court. The plaintiff will deposit the said amount within the period of one week from today. The ld. counsel for the defendant on instructions submits that the defendant will execute the sale deed in favour of the plaintiff in terms of the agreement dated 07/01/2016 on or before 07/01/2019. The applications are disposed off in the aforesaid terms.
Put up for further proceedings on 15/01/2018. The date already fixed i.e. 13/11/2018 is hereby canceled.
Copy of the order be given dasti to both the parties."
The bare perusal of the aforesaid Orders clearly depicts that the four pillars, in terms of the Agreement, were constructed. The only dispute, which is raised by the defendant, after the construction of the pillars, is to raise the construction over & above Suit No. 54/2016 Page 20 of 43 Firozuddin V. Zafruddin the aforesaid suit property. However, the defendant has voluntarily agreed to execute the Sale Deed in favour of the plaintiff. The Orders dated 19.01.2019, 30.1.2019, 05.02.2019 and 23.02.2019 are reproduced herein for apt understanding: "19/01/2019 Present: Sh. R.K. Saini, Ld. counsel for the plaintiff.
Sh. S.D. Ansari, Ld. counsel for the defendant.
The ld. counsel for the defendant submits that in a draft sale deed, which was filed by the plaintiff on 18/01/2019, there is one typographical error in para no.1 and in the said paragraph instead of recording the consideration of Rs. 11,50,000/, it is recorded as Rs.
1,50,000/. The ld. Counsel for the plaintiff submits that the plaintiff will make the necessary corrections. The parties have agreed to execute the said sale deed on 24/01/2019. The defendant is directed to execute the sale deed on said date and visit the concerned Sub Registrar office on 24/01/2019 at 11:00 AM and shall remain present till 1:00 PM for the purpose of execution of the sale deed in favour of the plaintiff. Vide order dated 04/10/2018, this court has observed that in case MCD permits the defendant to construct the room over the shop, the plaintiff will not create any hindrance or obstruction. By this order it is made clear that the defendant is permitted to carry out the construction as per the permission granted by the MCD and the plaintiff will not create any hindrance or obstruction. The para no. 7 of the Suit No. 54/2016 Page 21 of 43 Firozuddin V. Zafruddin draft sale deed filed on 18/01/2019 will not affect this order as well as order dated 04/10/2018.
Put up for further proceedings on 30/01/2019."
"30/01/2019 Present: Sh. R.K. Saini, Ld. counsel for the plaintiff.
Sh. S.D. Ansari, Ld. counsel for the defendant.
The ld. counsel for the defendant submits that the defendant could not reach the SubRegistrar Office on the desire date for execution of the sale deed on the ground that he was not well. The Ld. counsel for the defendant further submits that defendant will remain present on 04.02.2019 before the SubRegistrar Office for execution of the sale deed in terms of order dated 19.01.2019. The defendant is directed to remain present on the said date i.e. 04.02.2019 before the concerned SubRegistrar, Asaf Ali Road, New Delhi from 11:00 am to 01:00 PM for the purpose of execution of the sale deed. Rest of the applications filed by the parties shall be considered later on.
Put up for further proceedings on 05/02/2019.
Copy of the order be given dasti to both the parties."
"05/02/2019 Suit No. 54/2016 Page 22 of 43 Firozuddin V. Zafruddin Present: Sh. R.K. Saini, Ld. counsel for the plaintiff.
Sh. S.D. Ansari, Ld. counsel for the defendant.
The ld. counsel for the defendant seeks further time on the ground that the defendant was not well, therefore, he could not reach on 04/02/2019 before the SubRegistrar office for execution of the sale deed in terms of last order r/w order dated 19/01/2019. The ld. counsel for the defendant submits that the defendant will positively reach the SubRegistrar office on 11/02/2019 to execute the sale deed in terms of last order r/w order dated 19/01/2019.
The defendant is directed to remain present on 11/02/2019 before the concerned SubRegistrar, Asaf Ali Road, New Delhi from 11:00 AM to 1:00 PM for the execution of the sale deed in terms of last order r/w order 19/01/2019. Rest of the applications shall be considered later on.
Put up for further proceedings on 12/02/2019.
Copy of the order be given dasti to both the parties."
"23/02/2019 Present: Sh. R.K. Saini, Ld. counsel for the plaintiff.
Sh. Lakshay Kumar, Ld. proxy counsel for the defendant along with Sh. Zaib Hassan son of the defendant in person.Suit No. 54/2016 Page 23 of 43
Firozuddin V. Zafruddin On instructions from the son of the defendant, the ld. proxy counsel for the defendant seeks further time to execute the sale deed. The perusal of the record reveals that the defendant has sought time to execute the sale deed on 19/01/2019, 30/01/2019 and 5/02/2019. The ld. proxy counsel for the defendant on instructions submits that the defendant will positively reach the SubRegistrar office on 27/02/2019 to execute the sale deed in terms of order dated 19/01/2019, 30/01/2019 and 05/02/2019.
The defendant is directed to remain present on 27/02/2019 before the concerned SubRegistrar, Asaf Ali Road, New Delhi from 11:00 AM to 1:00 PM for the execution of the sale deed in terms of order dated 19/01/2019 r/w order dated 30/1/2019 and 05/02/2019. Rest of the applications shall be considered later on.
It is made clear that in case the defendant will not appear on the said date for execution of the sale deed, then the defendant will be burdened with cost of Rs. 50,000/ which shall be deducted from the amount of consideration as deposited by the plaintiff before this court.
Put up for further proceedings on 02/03/2019.
Copy of the order be given dasti to both the parties."
The Ld. counsel for the defendant has argued that the aforesaid orders cannot be looked into in view of the order dated 25/07/2019 passed by the Hon'ble High Court in CM (M) No. 547 of Suit No. 54/2016 Page 24 of 43 Firozuddin V. Zafruddin 2019. The submission of the defendant is totally contrary to the said order. The said order clearly mentions that the suit cannot be decreed at the interlocutory/ interim stages by means of interim order as the relief of the specific performance is discretionary and it is also recorded that the aforesaid orders are relevant but the defendant is agitating that the plaintiff has not allowed the defendant to carryout the construction over & above the suit property. Furthermore, the said order nowhere bars this Court to look into the admitted facts and admissions, which are borne out of the record. It is also recorded that the observations contained in this order are for the purposes of disposal of the said petition alone and shall not prejudice the contentions of the parties before the Ld. Trial Court.
The Ld. counsel for the defendant has further argued that the defendant was perfectly in his right to raise illegal and unauthorized construction over the aforesaid shop and the Plaintiff has no business by means of reply dated 08.03.2016 to object to even raising of illegal and unauthorized construction, as he himself had agreed that after construction of the pillars, the defendant can raise the construction over it and moreover, the illegal and unauthorized construction was otherwise compoundable. The Ld. counsel for the defendant has further argued that the objection for raising illegal and unauthorized construction can be maximum raised by the other third parties or the concerned authorities but the plaintiff has no right to do so in view of the Agreement dated Suit No. 54/2016 Page 25 of 43 Firozuddin V. Zafruddin 07.01.2016 (Ex.PW1/2).
The argument raised by the Ld. counsel for the defendant cannot withstand to the legal scrutiny as no citizen can be allowed to raise illegal and unlawful construction and to agitate that he has the right to do with impunity. It cannot be said that the plaintiff has agreed to allow the defendant to raise illegal and unauthorized construction in terms of the said agreement. The raising of construction in terms of agreement can only mean that the plaintiff has agreed to allow the defendant to raise the legal and lawful construction after obtaining the sanctioned site plan and by no stretch of imagination, it can be presumed that the plaintiff by means of the Agreement dated 07.01.2016 has agreed to allow the defendant to raise the illegal and unauthorized construction. Moreover, the construction was required to be carriedout over & above the suit property and in case, the illegal and unauthorized construction is allowed, the same necessarily implies that it may cause harm and danger to the suit property and all the due care, caution and protection is required to be taken by the plaintiff, as admittedly the plaintiff is in possession of the suit property even much prior to the execution of the Agreement to Sell dated 07.01.2016. Furthermore, any agreement/clause, which is contrary to law and public policy or which may tend to defeat the provisions of law, is null and void in terms of Section23 of the Indian Contract Act. There is nothing in the Agreement, which suggests that the plaintiff has agreed to allow the defendant to carryout illegal and Suit No. 54/2016 Page 26 of 43 Firozuddin V. Zafruddin unauthorized construction over & above the suit property. The defendant, during the entire course of evidence, has not produced even a single document that the defendant has got the sanctioned Site Plan from the concerned authority in respect of the portion over & above the suit property. However, during final stages on 19.12.2018, the defendant has produced the Site Plan and submitted that in view of the said Site plan, the MCD had allowed the construction over & above the suit property under the "Saral Scheme". The Ld. counsel for the defendant has fervently argued that the plaintiff, even thereafter, has not allowed to raise the construction over & above the property and the Plaintiff has also filed the suit for Permanent Injunction, which is totally contrary to the spirit of the agreement between the parties and granting of the relief for suit for specific performance is discretionary and looking into the facts of the case, no discretion can be exercised in favour of the plaintiff to decree the suit for specific performance. The Ld. counsel for the defendant has relied upon the following Judgments of Hon'ble Supreme Court:
(i) Laxman Tatyaba Kankate & Anr. Versus Taramati Harishchandra Dhatrak (2010) 7 SCC 717
(ii) Bal Krishan & Anr. Vs. Bhagwan Das (Dead) by LRs and Ors. (2008) 12 SCC 145 The aforesaid Judgments were discussed at the time of passing of the order dated 25.07.2019 in CM (M) No.547/2019 by Suit No. 54/2016 Page 27 of 43 Firozuddin V. Zafruddin the Hon'ble High Court.
The Ld. counsel for the defendant has also relied upon Amended subSection (2) of Section 20 of the Specific Relief Act, 1963. The amended provision of SubSections (1) & (2) of Section 20 of the Specific Relief Act reads as under: "20 Substituted performance of contract.-- (1) Without prejudice to the generality of the provisions contained in the Indian Contract Act, 1872 (9 of 1872), and, except as otherwise agreed upon by the parties, where the contract is broken due to nonperformance of promise by any party, the party who suffers by such breach shall have the option of substituted performance through a third party or by his own agency, and, recover the expenses and other costs actually incurred, spent or suffered by him, from the party committing such breach.
"(2) No substituted performance of contract under subsection (1) shall be undertaken unless the party who suffers such breach has given a notice in writing, of not less than thirty days, to the party in breach calling upon him to perform the contract within such time as specified in the notice, and on his refusal or failure to do so, he may get the same performed by a third party or by his own agency:
Provided that the party who suffers such breach shall not be entitled to recover the expenses and costs under subsection (1) unless he has got the contract performed through a third party or by his own agency."Suit No. 54/2016 Page 28 of 43
Firozuddin V. Zafruddin The Ld. counsel for the defendant, by placing on reliance upon the aforesaid provision, has argued that the Amendments made in the Specific Relief Act, 1963 are retrospective in nature and in view of aforesaid Subclause (2) of Section 20 of the Specific Relief Act, 1963, the plaintiff was required to give thirty days' notice to the plaintiff and since the plaintiff has not given thirty days notice, the suit for Specific Performance filed by the plaintiff is not maintainable.
Now, coming to the question of Site Plan, the defendant has not pleaded in the entire Written Statement qua the said Site Plan. The defendant has also not proved the said Site Plan in accordance with law. The Ld. counsel for the plaintiff has vehemently argued that the defendant has not given the correct picture of the actual site in the said Site Plan and on the basis of manipulated Site Plan, the defendant appears to have misled the concerned authority. The said Site Plan has never been the part & parcel of the pleadings of the defendant and moreover, the perusal of the Site Plan reveals that suit shop in question is not at all reflected on the ground floor of the said Site Plan and open hall is reflected showing as dwelling unit. There is no dispute between the parties that the suit property is the shop and the plaintiff is in occupation for quite long and even the defendant had filed the eviction case against the plaintiff showing him to be the tenant in the suit property as shop. The defendant appears to have not placed on record the actual facts before the concerned authority Suit No. 54/2016 Page 29 of 43 Firozuddin V. Zafruddin and is taking the advantage under the 'Saral Scheme' by placing the wrong facts, specifically qua the suit property on the ground floor of property and showing a hall on the ground floor as dwelling unit instead of suit property, which is a shop. Moreover, it appears that the said Site Plan was only submitted on 28.11.2018, the same was neither pleaded nor proved in accordance with law. Furthermore, the conditions of the acknowledgement of the said Site Plan are reproduced herein for apt understanding: "This undertaking under 'Saral Scheme' of UBBL2016 has been received from Sh./Smt./Kumari SH HAJI ZAFARUDDIN Resident of PLOT NO.69899,WARD NO. XI,HAVELI AZAM KHAN,BAZAR CHITLI QABAR,JAMA MASJID,DELHI110006 for intimation of construction start in Plot No. 698 address PLOT NO.69899,WARD NO.XI,HAVELI AZAM KHAN,BAZAR CHITLI QABAR,JAMA MASJID,DELHI110006 has been received on 28/11/2018 along with Building Permit fees amounting to Rs. 73031.00 deposited online via transaction No. 44378409 with the following conditions: a. The above intimation shall not in any way relieve the owner (s)/ Builder / Architect/ Engineer from full responsibility of carrying out the work in accordance with the Building Bye laws and in case of any violation, they shall be liable for action under the law. This is only an acknowledgement of the intimation of construction that given by the applicant.
However, full responsibility of carrying out the work in accordance with the Building Bye laws shall solely & squarely die with the owner/ Suit No. 54/2016 Page 30 of 43 Firozuddin V. Zafruddin Builder/ Architect/ Engineer and in case of any Building Bye laws violations; they only shall be liable for action under the law.
b. Any material misrepresentation or fraudulent statement by the owner (s)/ Builder/ Architect/ Engineer contained in this intimation under Saral Scheme shall lead to automatic cancellation of the undertaking and forfeiture of the building permit fee besides other penal actions.
c. North DMC shall remain indemnified/ harmless in case of any dispute / court case arising out of this undertaking / intimation under 'Saral Scheme'.
d. The owner(s)/ Builder / Architect / Engineer shall be solely responsible for the correctness and genuineness of the plans and documents, details and particulars submitted by them and for obtaining all requisite NOCs from the concerned departments".
(The portion is bolded in order to highlight) The Ld. counsel for the plaintiff has submitted that the plaintiff has never objected to do the legal and lawful construction over and above the suit property but the defendant cannot be allowed to place on record the incorrect facts before the concerned Authority and then, take the shelter of alleged Site Plan under the 'Saral Scheme' and hide himself based upon the manipulated Site Plan submitted before the concerned authority. The plaintiff has Suit No. 54/2016 Page 31 of 43 Firozuddin V. Zafruddin objected to the construction over & above only on the ground that the defendant cannot be allowed to place on record the incorrect facts before the concerned authority and do the illegal construction. The Ld. counsel for the defendant has placed on record the copy of the Suit for Permanent Injunction. The Ld. counsel for the plaintiff has placed on record the copy of the order dated 16.09.2019, whereby the said suit was withdrawn by the plaintiff. The Ld. Civil Judge, while allowing the withdrawal of the suit, has also observed that needless to mention the withdrawal of the suit shall not, in any manner, prejudice the powers of North DMC to take action, if any, against the suit property, as per provision of DMC Act, 1957 and other building byelaws. Therefore, the Ld. Civil Judge was also conscious of the fact that no illegal and unlawful construction can be allowed to be carriedout by the defendant in the suit property. The defendant has not placed anything on record prior to 19.12.2018 that the defendant was having right to raise construction over & above the suit property and defendant has placed on record the Site Plan under the Saral Scheme, which is not in accordance with actual facts existing on the Ground Floor of the property as it does not show the Suit Shop on the Ground Floor of the said property and the same is also contrary to the conditions, as incorporated and mentioned in the said Site Plan.
The Ld. counsel for the plaintiff has also submitted repeatedly before this Court that the plaintiff has no objection, if the defendant carries on legal and lawful construction over & above Suit No. 54/2016 Page 32 of 43 Firozuddin V. Zafruddin the suit property and the same has also been submitted vide reply to the application under Section 151 CPC filed on 20/09/2019. There is no material on the record which even remotely suggests that the plaintiff has objected the defendant to carry on the legal and lawful construction over & above the suit property. Even during the crossexamination, the plaintiff has denied the suggestion that whenever the defendant has tried to raise construction over the roof of the shop, the same was resisted by the plaintiff.
Now, coming to the question of the applicability of amendments made in the Specific Relief Act and reliance of Amended Section 20(2) of the Specific Relief Act, 1963, it is relevant to note that the said Amendments came into effect from 01.10.2018 and prior to the same, the said Amendments, there was no provision for 'Substituted Performance' in the Specific Relief Act. The unamended Section 20 of Specific Relief Act, 1963 had provided that the grant of the relief of Specific Performance is discretionary but the same had been done away by Amendment of Section 20 of the Specific Relief Act, 1963 and the language of Section10 of Specific Relief Act, 1963 has also supplemented that the discretion is taken away and now, the discretion, which was vested upon the Court to grant Specific Performance, has been taken by the legislation in its own wisdom. In order to appreciate the said aspect, unamended Section 10 of the Specific Relief Act and amended Section 10 of the Specific Relief Act are reproduced herein for the apt understanding: Suit No. 54/2016 Page 33 of 43 Firozuddin V. Zafruddin SECTION 10 SPECIFIC RELIEF ACT PRIOR TO AMENDMENT
10. Cases in which specific performance of contract enforceable.--Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced--
(a) when there exists no standard for ascertaining the actual damage caused by the non performance of the act agreed to be done; or
(b) when the act agreed to be done in such that compensation in money for its nonperformance would not afford adequate relief.
Explanation.--Unless and until the contrary is proved, the court shall presume--
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:--
(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.Suit No. 54/2016 Page 34 of 43
Firozuddin V. Zafruddin SECTION 10 SPECIFIC RELIEF ACT AFTER AMENDMENT "10. Specific performance in respect of contracts.--The specific performance of a contract shall be enforced by the court subject to the provisions contained in subsection (2) of section 11, section 14 and section 16."
The bare look of the aforesaid two provisions, it is palpable and apparent that earlier the relief of Specific Relief Act, 1963, the grant of Specific Performance, was discretionary relief but by way of Amendment, the discretion, which was vested in the Court, was taken away and earlier, there was also difference of discretion in granting the discretionary relief between the immovable property and movable property and the granting of Specific Performance was more tilted towards immovable property, but the said difference was also done away by the legislation in its wisdom w.e.f. 01.10.2018 and in my considered view, that is one of the major reasons that now, the legislation in its wisdom had introduced the 'Substituted Performance of the Contract' by way of amendment.
For example, if the plaintiff has contracted to buy certain movable goods (only for the sake of reference) from the defendant, but the defendant has committed the breach of the Contract, then the plaintiff can substitute the performance through third party or through his own agency, as provided under amended Suit No. 54/2016 Page 35 of 43 Firozuddin V. Zafruddin Section 20 of the Specific Relief Act, but the plaintiff is required to give prior notice of thirty days in terms of Amended Section 20(2) of the Specific Relief Act in order to recover the expenses and costs and the said expenses & costs can also be recovered unless the plaintiff got the contract performed through a third party or by his own agency, in terms of proviso to SubSection (2) of Amended Section 20 of Specific Relief Act. The Ld. counsel for the defendant has argued that amended provisions of the Specific Relief Act have retrospective operation. The legislation in its wisdom has not shown its intention that the Amended provisions of Specific Relief Act have retrospective operation. The legislation has introduced the totally new aspects by way of Amendments, which were not at all in existence at earlier point of time and one of the aspects was 'Substituted Performance'. The Amendments made in the Specific Relief Act are not procedural in nature, which may have retrospective operation. The Amendments made have far reaching effects and in my considered view, the same cannot have retrospective operation. The Ld. counsel by relying upon Section 20(2) of the Amended Specific Relief Act has argued that no notice is given to the defendant. The question arises that the Plaintiff is not seeking any substituted performance of the Contract through its own agency or through third party but the plaintiff is seeking Specific Performance of the Contract against the defendant himself in terms of Agreement dated 07.01.2016 (Exhibit PW1/2). The reliance placed by the Ld. counsel for the defendant to the said Suit No. 54/2016 Page 36 of 43 Firozuddin V. Zafruddin Section is totally misplaced.
If this Court buys the argument of the Ld. counsel for the defendant that the Amendments made in the Specific Relief Act are having retrospective effect, then the defendant cannot approbate and reprobate i.e. the defendant cannot blow hot and cold in the same breath. The Ld. counsel for the defendant is relying upon the Judgments of Hon'ble Supreme Court, which are based upon the unamended Sections 10 and 20 of the Specific Relief Act, whereby, the grant of relief of Specific Performance is discretionary but by way of Amendments, as discussed hereinabove, the legislation in its wisdom had totally revamped and dismantled the provision of Sections 10 and 20 of the Specific Relief Act, 1963. The Amendments in the Specific Relief Act appear to be made by the legislation taking into care the project of "Ease of doing business". At the cost of repetition, in my considered view, the amendments made in the Specific Relief Act are prospective in operation.
The Hon'ble Supreme Court of India in the Civil Appeal Nos. 98219822 OF 2010 in the case of M/s J.P. Builders & Anr. Versus A. Ramadas Rao & Anr. decided on 22.11.2010 has explained the concept readiness and willingness, as mentioned in Section 16(1)(c) of Specific Relief Act. The relevant portions of paras no.8 and 9 of the said Judgment are reproduced herein for apposite understanding: Suit No. 54/2016 Page 37 of 43 Firozuddin V. Zafruddin "..........Among the three subsections, we are more concerned about subsection(c). "Readiness and willingness" is enshrined in clause (c) which was not present in the old Act of 1877. However, it was later inserted with the recommendations of the 9th Law Commission's report. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract which are to be performed by him.
9) The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contact. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness."
There is nothing on record to show that the plaintiff was not ready and willing to perform his part of the Contract. Admittedly, the plaintiff has paid Rs.6,00,000/ (more than 50%) at the time of execution of the Agreement to Sell dated 07.01.2016 (Exhibit PW1/2). The parties have fixed the time of two years in terms of the Agreement and accordingly, the plaintiff was having two years at his hands to pay the balance amount of Rs.5,00,000/ as Rs.50,000/ was to be retained by the plaintiff in his hands in view of the Agreement dated 07.01.2016. The implications of the default were encompassed by the parties in paras no.8 and 9 in Exhibit PW1/2 and the same are reproduced herein for apt Suit No. 54/2016 Page 38 of 43 Firozuddin V. Zafruddin understanding: "8. That, in case, first party fails to execute the sale deed on or before the expiry of two years as fixed aforesaid, the second party shall be entitled to get the sale deed executed through court of law at the expenses of first party.
9. That, in case, the second party fails to get the sale deed executed within the time fixed as aforesaid, the earnest money of Rs.6,00,000/ (Rupees six lacs Only) shall stand forefitted."
Although, there was period of two years from the date of execution of the said Agreement, but the defendant within a period of one and half months had given the Notice dated 20.02.2016 (Exhibit PW1/3) and the defendant has not waited till the completion of two years. The said Notice was duly replied by reply dated 08.03.2016 (Exhibit PW1/4). The defendant by way of rejoinder Notice dated 28.03.2016 (Exhibit PW1/5) had terminated/ cancelled the Agreement to Sell. In terms of the Agreement, the time fixed was two years but the defendant had terminated/ cancelled the Contract within a period of two and half months, which had led to filing of the present case by the plaintiff. The plaintiff has filed the present case on 12.04.2016 i.e. within three months and 5 days from the execution of the Agreement Exhibit PW1/2, although, the time fixed by the parties was two years in terms of the said Exhibit PW1/2. The suit was filed on account of unilateral termination/ cancellation of Agreement dated Suit No. 54/2016 Page 39 of 43 Firozuddin V. Zafruddin 07.01.2016.
In the agreement to Sell dated 07.01.2016, there is no agreement between the parties that in case, the plaintiff will not allow to construct the four pillars from inside the shop, then the defendant has the right to terminate the Agreement to Sell and similarly, there is no Contract between the parties that in case, the plaintiff will not allow or object the defendant to construct the property over & above the suit property, then the defendant has right to terminate/ cancel the Contract.
The default clause, as mentioned in paras no.8 and 9 of the said Agreement, nowhere, provides the said implications. The defendant can't unilaterally terminate/ cancel the Agreement and that too, within a period of two and half months, when the time fixed between the parties was two years and the aforesaid clauses no. 8 and 9 also fortify the aforestated fact. The discussions, as far as construction of four pillars and construction over & above the suit property, have been discussed hereinabove in detail and the same are not reproduced herein for the sake of brevity. In case, the defendant was not allowed by the plaintiff to construct the four pillars, then the defendant could have approached the Court for Specific Performance of the Contract and moreso, when there is no default clause as far as the said aspects are concerned but the defendant was having no right to terminate the Contract unilaterally and that too within a period of two and a half months from the execution of the Agreement dated 07.01.2016 (Ex.PW1/2).
Suit No. 54/2016 Page 40 of 43Firozuddin V. Zafruddin The defendant has not disputed at any point of time that the plaintiff was not having the financial capacity to perform his part of the Contract and the entire crossexamination was concentrated upon the aspect of construction of four pillars from the inside of shop and resistance by the plaintiff for construction over & above the suit property. The record clearly borne out that the plaintiff was/is always ready and willing to perform his part of the Contract. Moreover, the order dated 04.10.2018 reflects that the plaintiff has himself submitted that plaintiff was ready to deposit the balance amount of Rs.5,00,000/ in the Court within a period of one week from the said date and order dated 11/10/2018 reflects that the plaintiff had deposited the balance amount of Rs.5,00,000/ in the Court and the same is kept in the form of FDR. The plaintiff is already in possession of the suit property.
Considered from any view point, from the discussions made hereinabove, this is fit case where discretion is required to be exercised to decree the suit for Specific Performance of the Agreement to Sell dated 07.01.2016 (Exhibit PW1/2) and simultaneously, the plaintiff is also required to be directed not to obstruct or create any type of hindrance in the construction over & above the suit property, if the defendant carriesout the construction in accordance with law and building byelaws and as per permission granted by North MCD/ concerned authority. QUESTION OF PREPETUAL INJUNCTION The conduct of the defendant, which is demonstrated Suit No. 54/2016 Page 41 of 43 Firozuddin V. Zafruddin above, there is definitely threat to the plaintiff that defendant may not create any third party right in suit property. The defendant was not able to shake the testimony of the witnesses of plaintiff on material particulars. Considering overall facts and circumstances of the present case and on the discussion made hereinabove, the plaintiff has also been able to prove this issue by cogent and convincing evidence.
Accordingly, the cumulative effect of the pleading, evidence of the parties and from the discussions as adumbrated above, the issues no.1 to 4 are decided in favour of the plaintiff and against the defendant in the aforesaid terms. RELIEF:
From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER (I) A decree of specific performance of Contract in terms of Agreement to Sell dated 07.01.2016 (Exhibit PW1/2) in respect of suit property is passed in favour of the plaintiff and against the defendant. In view of the order dated 25.07.2019 passed by the Hon'ble High Court in CM(M) No.547/2019, the Original Registered Sale Deed dated 12.03.2019 executed by the Ld. Local Commissioner on behalf of the defendant in respect of suit property be released to the plaintiff in accordance with law. The cost of the suit is also awarded in favour Suit No. 54/2016 Page 42 of 43 Firozuddin V. Zafruddin of the Plaintiff and against the defendant. (II) The amount of Rs.5,00,000/ deposited by the plaintiff, which is kept in FDR, be released to the defendant alongwith accrued interest, however, after retaining the cost of suit, as awarded, which will be released to the plaintiff.
(III) The Plaintiff is also directed not to obstruct or create any type of hindrance in the construction over & above the suit property, if the defendant carriesout the construction in accordance with law and building bye laws and as per the permission granted by North MCD/ concerned authority.
(IV) A decree of permanent injunction is passed in favour of the plaintiff and against the defendant thereby restraining the defendant from selling or creating third party interest in respect of suit property.
Decreesheet be prepared accordingly in terms of this decision.
Files be consigned to Record Room after due compliance. Announced in the open court on this 18th Day of October, 2019.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit No. 54/2016 Page 43 of 43