Delhi High Court
Shri Ved Prakash Ahuja vs Major Suraj Prakash Chhatwal on 21 January, 2009
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Sudershan Kumar Misra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : 21.01.2009
+ RFA (OS) No.29 of 1986
SHRI VED PRAKASH AHUJA ...APPELLANT
Through: Mr. N.S. Jain, Advocate.
Versus
MAJOR SURAJ PRAKASH CHHATWAL ...RESPONDENT
Through: Mr. K.K. Mehrotra, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
SANJAY KISHAN KAUL, J. (Oral)
1. The appellant filed a suit for specific performance of the agreement for sale of property No.B-4/3, Rajouri Garden, New Delhi in terms of a letter of the respondent dated 23.8.1978 and a receipt for earnest money of Rs.5,000.00 dated 30.10.1978. The appellant at the stage of the said agreement was a tenant in part of the premises in suit. The total consideration agreed to was Rs.1,10,000.00. The plaintiff claimed that assurances had been held out to him that documents of sale would be executed in his favour through various letters but to no avail and thus a legal RFA (OS) No.29 of 1986 Page 1 of 7 notice dated 19.1.1982 was sent by the appellant expressing his willingness to perform his part of the contract with the balance consideration being ready with him but the same was denied vide reply dated 5.2.1982. The suit was verified on 9.2.1982 while it was filed on the Original Side of this Court on 23.4.1982.
2. The respondent raised various preliminary objections including the legality and validity of the documents, bar of time, delay and laches and unwillingness of the appellant to perform his obligations in making the balance payment. It was stated that on the visit of the appellant to the respondent at Lucknow in 1978 the respondent agreed to sell the property with the understanding that the price would be informed to him after checking the same from the market. The respondent claims that since he had two marriageable daughters there was a need of funds. The letter dated 23.8.1978 of the respondent informed the appellant of price of Rs.1,10,000.00 but the appellant vide letter dated 4.10.1978 informed that in his opinion the price was on the higher side and should be Rs.90,000.00. It was, thus, alleged that no agreement was executed. The execution of the receipt dated 30.10.1978 and the receipt of Rs.5,000.00 was not denied but it was stated that the respondent was under the influence of medicines as he had come from the hospital and in any case the sale transaction had to be completed within three (3) months from the date of the receipt.
3. The issues were framed in the suit as under on 30.8.1984: RFA (OS) No.29 of 1986 Page 2 of 7
"ISSUES:
1. Whether the suit is within limitation? OPP
2. Whether the defendant entered into an agreement of sale with plaintiff in respect of House No.B-4/3, Rajouri Garden, New Delhi, for a consideration of Rs.1,10,000/- and received Rs.5,000/- as earnest money and executed a valid receipt for this amount? OPP
3. If the issue No.2 is held in favour of the plaintiff was the agreement terminated by the letter dated 9.12.1980 of the plaintiff asking the defendant to treat the sum of Rs.5,000/- as Loan? OPD
4. Whether the defendant committed breach of agreement to sell and if so to what effect? OPP
5. Whether the plaintiff was ready and willing to perform his part of the agreement? OPP
6. Whether the plaintiff is not entitled to the relief of the specific performance on account of alleged laches? OPD
7. Relief."
4. The suit was tried and the appellant appeared as PW-1.
Two other witnesses were also produced being one Shri Raj Kumar, who resides in Lucknow and who was a relation of the appellant and Virender Pal Khurana, PW-3, his brother- in-law. The defendant appeared in support of his case as DW-2 and his son-in-law appeared as DW-1. On conclusion of the trial in terms of a judgement and decree dated 11.4.1986 the suit was dismissed with costs.
5. The learned single Judge of this Court (as he then was) came to a conclusion on the basis of the evidence on record that the parties did enter into an agreement to sell and that the respondent had received a sum of Rs.5,000.00 as earnest money with the receipt being Exhibit P-2. Issue No.2 was, thus, found in favour of the appellant. The suit RFA (OS) No.29 of 1986 Page 3 of 7 was also found to be within time and the question of laches was held not to be a material fact and thus issue Nos.1 & 6 were also found in favour of the appellant. The remaining three issues were dealt with together. The documents on record showed that there was negotiation about how much amount could be lent by the appellant to the respondent which would be adjusted against the final payment. It was, thus, held that a reference to the final payment could be only in respect of the balance consideration agreed to. Exhibit D-3 dated 9.12.1980 showed that the appellant himself stated that he was in a position to pay only Rs.35,000.00 "at present" which would bring the total payment to Rs.40,000.00 but that he would not pay any rent after that. However, that payment was not made. Another letter referred to is Exhibit D-4 dated 20.1.1981 wherein the appellant has stated that part payment could be made of Rs.50,000.00. The appellant suggested thereafter different dates for the respondent to come to Delhi to receive that amount.
6. In terms of the impugned judgement it has been found that though the aspect of the loan amount being adjusted against sale consideration can be found from documents, there is no evidence brought on record as to the terms of the loan. However, the promise to pay Rs.35,000.00 as per Exhibit D-3 was held not to amount to termination of the agreement but thereafter the learned Judge proceeded to examine the most important aspect of the readiness and RFA (OS) No.29 of 1986 Page 4 of 7 willingness of the appellant to perform his part of the agreement.
7. In respect of this aspect the learned Judge has found that the plaintiff has failed to show that he had arrangements to make balance payment and on a specific question being posed as to what amount was available within the bank account or otherwise in 1980 the plaintiff denied remembering the same. The appellant also stated that he was having no money in the house but that he would have made arrangements. The appellant though promised a loan of Rs.50,000.00 never paid that amount nor was any evidence brought on record that the appellant was in a position to pay the whole amount. In fact, Exhibit P-7 showed that the appellant had gone to Lucknow but he could not show that he had gone with the balance of Rs.1,05,000.00 but actually had gone with a sum of Rs.50,000.00 by means of two bank drafts of Rs.20,000.00 and Rs.30,000.00 each. There is also silence of the appellant from 23.10.1978 till 1980.
8. We have heard learned counsels for the parties. Learned counsels agree that the short question to be examined in the appeal is the readiness and willingness of the appellant to make payment.
9. The evidence produced and discussed in the impugned judgment shows that the agreement of 1978 did not specify any time period for making the balance payment but it would be expected that the payment would be made within a reasonable period of time. The appellant kept silent for a RFA (OS) No.29 of 1986 Page 5 of 7 long period of time and thereafter also clearly expressed his ability only to make part payments firstly of Rs.35,000.00 and thereafter of Rs.50,000.00. If the full payment was ready there would be no occasion to pay loan amount to the respondent or adjust the same against balance consideration as the reason stated by the respondent for sale of property was the need of money. The appellant being a tenant in part of the premises clearly had an advantage of being a protected tenant under the Delhi Rent Control Act, 1958. The appellant claimed in the pleadings that he went to Lucknow with a sum of Rs.1,05,000.00 but the testimonies and documents showed that he had carried with him only a sum of Rs.50,000.00 in the form of two bank drafts. Prior to that he had promised to make payment of Rs.35,000.00. The fact remains that even these payments were never made.
10. It, thus, clearly emerges that the appellant did not have sufficient means or resources to arrange the payment of the balance amount of Rs.1,05,000.00 within a reasonable period of time after the execution of the agreement and thus kept on prolonging the matter on one pretext or the other. This also explains the silence of the appellant from 23.10.1978 till 1980. The explanation given by the appellant that the sale deed was to be executed only after the eviction of the other tenant from another portion of the property has been rightly disbelieved by the learned single Judge as it forms no part of averments of the plaint or of documents including the pleadings. The appellant sought RFA (OS) No.29 of 1986 Page 6 of 7 to purchase the property with himself in occupation of a part of the premises and another tenant being in occupation of the other but thereafter prolonged the matter on one pretext or the other. It is only when the eviction proceedings succeeded against the other tenant that the appellant started reasserting his rights. Needless to say that the value of a property occupied by a tenant and as vacant would be quite different. We are, thus, in agreement with the findings arrived at by the learned single Judge of the inability and unwillingness of the appellant to pay the balance consideration and learned counsel for the appellant has not been able to show any infirmity in the findings of the impugned judgment.
11. The appeal is without any merit and is dismissed with costs.
SANJAY KISHAN KAUL, J.
JANUARY 21, 2009 SUDERSHAN KUMAR MISRA, J. b'nesh RFA (OS) No.29 of 1986 Page 7 of 7