Delhi District Court
Hari Om Chawla vs Pardeep Kumar Anr on 23 July, 2024
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IN THE COURT OF SH. KISHOR KUMAR, DISTRICT
JUDGE-04, NORTH DISTRICT : ROHINI COURTS :
DELHI
CS No. 58751/16
CNR No. DLNT01-000074-2009
In the matter of :-
Hari Om Chawla
S/o Late Sh. Kishan Lal,
R/o 1171, Dr. Mukherjee Nagar,
Delhi-110009
..... Plaintiff
Versus
Pardeep Kumar
Through Legal Heirs
I. Mr. Ishant (Son)
ii. Mr. Paras (Son)
Both R/o D-1/33, Ground Floor,
Sector-11, Rohini, Delhi-110085
Anil Kumar
S/o Late Sh. Hans Raj
R/o A-5, Dhirpur, Nirankari Colony,
Delhi-110009
..... Defendant
Date of Institution : 27.03.2009
Final Arguments Heard : 03.07.2024
Date of Judgment : 23.07.2024
Final Decision : Suit partly decreed
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JUDGMENT
1. The plaintiff has filed the present suit for permanent injunction and recovery of Rs.15,90,000/- inter alia on the ground that plaintiff and both the defendants are shop keepers at Outram Lines Market and know each other since last many years. Shop No.1, Outram Lines, Kingsway Camp, was initially allotted jointly to Sh. Hans Raj i.e. father of both the defendants and one Sh. Sant Ram. After the death of Sh. Hans Raj the half share in the said shop no.1 was mutated in the name of his wife Smt. Avinash Rani i.e. mother of both the defendants.
2. It is further averred that on 01.09.2008, the plaintiff entered into an agreement with both the defendants, vide which both the defendants agreed to transfer the ownership rights, title and interest in respect of their undivided one half share of shop no.1 along with possession of said portion, along with the land underneath, measuring 12.5 sq yards in favour of the plaintiff. Both the defendants also pretended that they have become the absolute and exclusive owners of the said half portion of the shop no.1, as the same had been bequeathed upon both of them by their mother, Smt. Avinash Rani by virtue of a Will dated 13.08.2002. Half portion of shop no.24-B, Outram Lines, Kingsway Camp, had already been allotted in lieu of half portion CS No. 58751/16 Hari Om Chawla Vs. Pardeep Kumar & Anr. Page: 2 of 18
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of shop no.1, Outram Lines, Kingsway Camp and a letter in this regard has been issued by DDA.
3. It is further stated that it was agreed between the parties that in case half share of shop no.24-B, situated at Outram Lines, Kingsway Camp, Delhi is allotted against the acquisition of half portion of shop no.1, it shall be assumed that the present agreement to sell has been executed in respect of half portion of shop no.24B, measuring 33.33 sq yards. The total price as agreed between the parties was Rs.75.0 lacs. On 01.09.2008, out of the said total consideration, an amount of Rs.7.5 lacs was paid by the plaintiff to both the defendants as earnest money against the receipt issued by both the defendants. Both the defendants executed an agreement to sell containing the above mentioned terms and conditions therein. The rest/balance of the sale price to the tune of Rs.67,50,000/- was to be paid by the plaintiff to both the defendants within 70 days from the date of said agreement i.e. on or before 11th of November, 2008. The plaintiff had contacted both the defendants several times, in the first and second week of November, 2008 for accepting the balance consideration and executing the title deeds and to hand over the physical possession of the said shop to the plaintiff, but both the defendants had been repeatedly seeking more time.
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4. It is further stated that in or around 25.11.2008, plaintiff had received a copy of notice dated 22.11.2008 sent on behalf of Smt. Shashi Thukral, real sister of both the defendants whereby both the defendants had been directed not to dispose of shop no.1 without her permission. It is further stated in the notice that shop in question was ancestral property and she is owner of 1/5th share of the said shop and further that Will of Late Smt. Avinash Rani is a forged document. Thereafter, plaintiff contacted the defendants, but they did not give any satisfactory reply. Plaintiff contacted Smt. Shashi Thukral who informed that Late Sh.
Hansraj has left behind five legal heirs i.e. both the defendants, herself and her two sisters namely Mrs. Madhu Sikri and Mrs. Mansi Sikri and she also handed over copy of letter dated 04.11.2008 sent by herself and her sister to Deputy Director, DDA wherein they objected to the mutation of the shop no.1 in favour of both the defendants. Thereafter, plaintiff sent a legal notice dated 12.01.2009 to the defendants which was duly served and called upon them to make payment of Rs.15.0 lacs i.e. double of the earnest money along with interest @ 18% p.a. However, despite service of the said notice, defendants did not comply with the same and rather negotiating with the prospective buyers to sell out the said shop. Hence, the present suit.
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5. Defendants filed joint written statement wherein it is stated that the earnest money is already forfeited due to willful negligence of the plaintiff as despite repeated requests of the defendants, the plaintiff failed to comply his duty i.e. to pay remaining consideration amount and to get executed the documents in his favour. It is further stated that prior to entering into agreement to sell and purchase, the plaintiff was well aware about the fact that the defendants are the owner of the property in question through the registered Will executed by their mother and same was pending before DDA for mutation and on the basis of the same, agreement to sell has been executed. It is further stated that the defendants are still willing to execute sale documents in favour of the plaintiff if the plaintiff is ready with the consideration amount. It is further stated that sister of defendants has already issued NOC in favour of the defendants for mutation of the property in question and all the legal heirs of Late Smt. Avinash Rani have also issued NOC in favour of the defendants in respect of property in question.
6. Plaintiff filed replication to the written statement of defendants, wherein he denied the averments made in written statement being wrong and incorrect and reaffirmed and reiterated the contents contained in the plaint.
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7. On the basis of the pleadings of the parties, following issues have been framed for trial on dated 24.09.2009:
1.) Whether plaintiff is entitled for recovery of Rs.15,90,000/-
along with interest @ 18% per annum w.e.f. 12.11.08 till realization in terms of agreement to sell dated 01.09.2008 ? OPP
2.) Whether defendant committed breach of agreement, if so, to what effect ? OPP
3.) Whether plaintiff was ready and willing to perform his part of agreement ? OPP
4.) Relief, if any ?
8. In order to prove his case, plaintiff Hari Om Chawla examined himself as PW1 by way of his affidavit in evidence Ex. PW1/1. He relied upon the documents i.e. agreement to sell Ex. PW1/1, notice sent by Smt. Shashi Thukral Mark A13, notices pasted at DDA Office Mark Z, X and Y, notice Ex. PW1/2 and receipts are Ex. PW1/3 to Ex. PW1/8.
9. PW1 has been cross examined at length by Ld. Counsel for defendant wherein he deposed that he was well aware about the fact that the suit property belongs to the parents of the defendants. As per agreement to sell Ex. PW1/1, the first party CS No. 58751/16 Hari Om Chawla Vs. Pardeep Kumar & Anr. Page: 6 of 18
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will handover the said papers after receiving from DDA to second party. PW1 admitted that there is no mentioning of 70 days period of handing over the said papers in agreement to sell Ex. PW1/1. He further admitted that the legal notice Ex. PW1/2 has been sent through counsel after the expiry of period of the agreement to sell and even after more than one and a half month. He volunteered that because more than two meetings were held between the parties between said period. He deposed that he has not sent any legal notice during the period of 70 days but he had informed the mediator/property dealer that he had the requisite amount to execute the sale deed before the expiry of 70 days.
10. Plaintiff also examined Sh. Surender Kumar as Ex. PW2 who tendered his affidavit in evidence Ex. PW2/A. He is property dealer in the area of Outram Lines and known to both the parties. He supported the case of plaintiff through his affidavit in evidence.
11. During cross examination, PW2 deposed that he had told the plaintiff that this was the case of Will and that the defendants were claiming ownership of the property on the basis of the Will of the mother. The defendants have told him that they will get the mutation of the property in their names on the basis of Will.
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The said Will was never seen by the plaintiff. He had seen the Will and was satisfied and, therefore, the sale transaction in respect of the suit property was taken place. Two meetings taken place between plaintiff and defendants before executing the agreement regarding the sale transaction. The token amount had been paid in the second meeting. PW2 admitted that defendants never refused to fulfill the agreement for the said property. He volunteered that the mutation had not been done by the DDA that is why the said agreement was not materialized. The balance payment was to be made to the defendants after mutation. He further deposed that after completion of 70 days, the plaintiff had approached him to ask the defendant to get the mutation done and to receive the payment.
12. On the other hand, defendants examined Sh. Pardeep Kumar as DW1 who tendered his affidavit in evidence Ex. DW1/A and relied upon the following documents i.e. copy of Will dated 13.08.2002 Ex. DW1/1(OSR), copy of letter dated 01.06.2006 issued by DDA Ex. DW1/2(OSR), copy of letter dated 13.08.2008 issued by DDA Ex. DW1/3(OSR), copy of challan for deposit of money to DDA for mutation dated 08.09.2008 Ex. DW1/4(OSR), copy of receipt dated 25.09.2008 of DDA regarding deposit of Will Ex. DW1/5(OSR), copy of CS No. 58751/16 Hari Om Chawla Vs. Pardeep Kumar & Anr. Page: 8 of 18
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receipt dated 26.02.2009 of DDA Ex. DW1/6(OSR)(colly), copy of affidavit of Smt. Shashi Thukral Mark A, copy of affidavit of Smt. Mansi Sikri Mark B, copy of affidavit of Smt. Madhu Sikri Mark C, copy of mutation letter dated 31.05.2002 in favour of defendants Ex. DW1/7(OSR).
13. DW1 has been cross examined at length by Ld. Counsel for the plaintiff wherein he deposed that Ex. DW1/7 is addressed to her mother Smt. Avinash Rani as mutation was done in her name. DW1 admitted that the mutation of the suit property is till date in the name of Smt. Avinash Rani. He further admitted that agreement to sell Ex. PW1/1 was signed by him and defendant no.2 with their own consent and free will. All the additions made by blue ink pen in Ex. PW1/1 have been done by his wife Smt. Usha Sugandh. On all the pages of Ex. PW1/1 where additions or cuttings are made in the said ink blue pen, the same have been countersigned by all the parties. DW1 admitted that on pages 1, 2 and 3 of Ex. PW1/1, signatures of himself and defendant no.2 are affixed at only one place and on page no.3 of Ex. PW1/1 there is cutting and addition at 6 places but the said page bears only one signatures of himself and defendant no.2 and that too at the bottom of the page. He further admitted that page no.1 to 4 of Ex. PW1/1 are not signed by the plaintiff and only signed by CS No. 58751/16 Hari Om Chawla Vs. Pardeep Kumar & Anr. Page: 9 of 18
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him and defendant no.2. He admitted that half portion of suit shop till date has not been mutated in his name and in the name of defendant no.2. He volunteered that they have applied for mutation to DDA since 2006. They have not filed on record any reminder/request letter to DDA for expediting the mutation of suit shop in their favour. He has not filed any application before any authority including Ombudsman against DDA for not mutating the property in his name.
14. DW1 further admitted that he or defendant no.2 have not sent any letter/written communication or legal notice to the plaintiff, to the effect that they have forfeited the earnest money amount due to non-performance of terms of Agreement to Sell by the plaintiff. He also admitted that he or defendant no.2 have not given any written reminder to the plaintiff to pay the remaining consideration amount on or before the stipulated date as per the terms of Ex. PW1/1. DW1 admitted that the mutation of the suit property could not be done in favour of himself or defendant no.2 even one year after the execution of compromise deed dated 24.11.2010 Ex. C1. He further admitted that his sisters have not filed any application/letter with concerned authority of DDA for withdrawal of their objections dated 04.11.2008 and legal notice dated 22.11.2008. He deposed that there is no requirement of CS No. 58751/16 Hari Om Chawla Vs. Pardeep Kumar & Anr. Page: 10 of 18
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Relinquishment Deed by the other LRs of his mother as they have already given their NOC in his favour and of defendant no.2. He has not filed on record any document to show that he had filed NOCs/affidavits of his sister before DDA for mutation of the suit property in his name and in the name of defendant no.2. He further admitted that the property was not mutated in his name and in the name of defendant no.2 due to the objections filed by his sisters namely Shashi and Mansi Sikri. He admitted that it is clearly stipulated in the Agreement to Sell that the property is free from any dispute.
15. I have heard Ld. Counsels for the parties and have carefully gone through the record. My issue wise findings are as under:Issue No.1 to 3
Whether plaintiff is entitled for recovery of Rs.15,90,000/- along with interest @ 18% per annum w.e.f. 12.11.08 till realization in terms of agreement to sell dated 01.09.2008 ? OPP Whether defendant committed breach of agreement, if so, to what effect ? OPP \ Whether plaintiff was ready and willing to perform his part of agreement ? OPP CS No. 58751/16 Hari Om Chawla Vs. Pardeep Kumar & Anr. Page: 11 of 18
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16. All these issues are taken up together being inter connected and can be decided in one go. Onus of proving these issues has been placed on the plaintiff.
17. The plaintiff has filed the present suit for recovery of Rs.15,90,000/- as double of the earnest money of Rs.7.50 lacs on the ground that defendants have failed to comply with the terms of agreement to sell dated 01.09.2008 by concealing the fact that they are not the exclusive owner of the shop in question under sale.
18. On the other hand, case of the defendants is that the earnest money has already been forfeited due to willful negligence of the plaintiff as despite repeated requests of the defendants, the plaintiff failed to comply his duty i.e. to pay remaining consideration amount and to get executed the documents in his favour.
19. After careful scrutiny of the pleadings of the parties, it has come into picture that the whole case of the parties revolves around the Agreement to Sell dated 01.09.2008 Ex. PW1/1.
Perusal of Ex. PW1/1 shows that defendants are the first party and plaintiff is the second party in the same. Clause (2) and CS No. 58751/16 Hari Om Chawla Vs. Pardeep Kumar & Anr. Page: 12 of 18
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Clause (9) of Agreement to Sell Ex. PW1/1 are reproduced herein below being relevant for deciding the controversy in question:
(2) That the first party shall get the ½ undivided share of shop no.1, Outram Lines, Kingsway Camp, Delhi and Shop No.24-B situated at Outram Lines, Kingsway Camp, Delhi mutated in their names in the records of the DDA during the stipulated period.
(9) That the property under sale is free from all sorts of encumbrances such as sale, mortgage, gift, agreement, lien, decree, court attachment, disputes, litigations, stay, legal flaws etc and if proved otherwise the first party shall be liable and responsible for the same and indemnify the second party of all costs, expenses, damages etc sustained by the second party.
20. In State of Maharashtra & Ors. Vs. Reliance Industries Ltd. & Ors., Civil Appeal No.1699 Of 2007, Hon'ble Apex Court held that the term 'encumbrance' means a claim, lien or liability attached to the property. The persons who are holders of such encumbrance are entitled to compensation. Further, in AI Champday Industries Ltd. Vs. Official Liquidator & ANR. [2009] INSC 368 (19 February 2009) The Hon'ble Supreme Court observed that "...word `encumbrance' in relation to the word `immovable property' carries a distinct meaning. It ordinarily cannot be assigned a general and/or dictionary meaning..... in Supreme Court on Words and Phrases it is stated that "the word `encumbrance' means a burden or charge upon property or a claim or lien upon an estate or on the land..... Encumbrance, therefore, must be capable of being found out either on inspection of the land or the office of Registrar or a statutory CS No. 58751/16 Hari Om Chawla Vs. Pardeep Kumar & Anr. Page: 13 of 18
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authority. A charge, burden or any other thing which impairs the use of the land or depreciates in its value may be a mortgage or a deed of trust or a lien or an easement."
21. Now adverting back to the facts of the present case. During cross examination, DW1 has admitted that half portion of suit shop till date has not been mutated in his name and in the name of defendant no.2. They have not filed on record any reminder/request letter to DDA for expediting the mutation of suit shop in their favour. DW1 further admitted that he or defendant no.2 have not given any written reminder to the plaintiff to pay the remaining consideration amount on or before the stipulated date as per the terms of Ex. PW1/1. DW1 admitted that his sisters have not filed any application/letter with concerned authority of DDA for withdrawal of their objections dated 04.11.2008 and legal notice dated 22.11.2008. He has not filed on record any document to show that he had filed NOCs/affidavits of his sister before DDA for mutation of the suit property in his name and in the name of defendant no.2. He further admitted that the property was not mutated in his name and in the name of defendant no.2 due to the objections filed by his sisters namely Shashi and Mansi Sikri.
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22. The cross examination of DW1/Pardeep Kumar shows that they were required to get the shop in question mutated in their favour as per the clause (2) of Agreement to Sell Ex. PW1/1 to complete the sale transaction in question, but same could not be done since their sisters have filed objections before DDA which were not withdrawn by them to get the mutation done in favour of the defendants. In these circumstances, in view of cross examination of DW1 and the case laws, as discussed above, it cannot be said that the property under sale is free from all sorts of encumbrances. Record reveals that during the pendency of the trial as well as during testimonies of the witnesses, defendants stressed that they have already obtained NOCs from their sisters, but as per admission made by DW1, such NOCs have not been filed by them on record nor their sisters have withdrawn the objections raised before DDA. Moreover, if the defendants were so confident about their sisters having given NOCs, what stopped them to bring their sisters in the witness box to prove such fact, but they miserably failed to do so.
23. By way of present suit, the plaintiff is claiming double of the amount of Rs.7,50,000/- given by him as earnest money. The relevant provision governing the relief prayed for by the plaintiff is Section 74 of the Contract Act, which is reproduced as under:
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"74. Compensation for breach of contract where penalty stipulated for.- When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for."
24. In ONGC Ltd. v. Saw Pipes Ltd. (2003) 5 SCC 705, Hon'ble Apex Court held that .... Section 74 emphasizes that in case of breach of contract, the party complaining of the breach is entitled to receive reasonable compensation whether or not actual loss is proved to have been caused by such breach. Therefore, the emphasis is on reasonable compensation. If the compensation named in the contract is by way of penalty, consideration would be different and the party is only entitled to reasonable compensation for the loss suffered. But if the compensation named in the contract for such breach is genuine pr-estimate of loss which the parties knew when they made the contract to be likely to result from the breach of it, there is no question of proving such loss or such party is not required to lead evidence to prove actual loss suffered by him. Burden is on the other party to lead evidence for proving that no loss is likely to occur by such breach...."
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25. Now adverting back to the facts of present case. Ex. PW1/1 is the agreement to sell. Clause (11) of this agreement to sell Ex. PW1/1 reads thus: "........... However it shall be option of the second party to claim the double amount of the earnest money from the first party in case of default on the part of the first party....." Perusal of Clause (11) of Agreement to Sell Ex. PW1/1 clearly shows that the compensation named in the contract is by way of penalty, thus, entitles the plaintiff for reasonable compensation.
26. The evidence from both the sides and the documents relied upon by the parties and further in view of case laws, as discussed above, it is proved on record that the plaintiff was willing and ready to complete the sale in question, however, defendants committed breach of contract by concealing the factum of defective title thereby entitled the plaintiff for reasonable compensation. All these issues are accordingly decided in favour of the plaintiff and against the defendants.
RELIEF:
27. In view of my discussion herein-above, suit of the plaintiff is hereby decreed for a sum of Rs.7,50,000/- along with interest @ 6% from the date of agreement Ex. PW1/1 i.e. 01.09.2008 till realization of decretal amount.
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28. Cost of the suit is also awarded in favour of plaintiff and against the defendant.
29. Decree sheet be prepared accordingly.
30. File be consigned to the record room after due compliance.
Digitally signed by KISHOR KISHOR KUMAR
Announced in open KUMAR Date:
2024.07.23
17:24:29 +0530
Court on 23.07.2024
(Kishor Kumar)
DJ-04, North, Rohini Courts,
Delhi/23.07.2024
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