Delhi District Court
Sh. Ramesh Chander Sibal vs Smt. Satwant Kaur on 18 February, 2012
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IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADJ03
(CENTRAL) DELHI
Suit No. 138/2011
Sh. Ramesh Chander Sibal,
S/o Late Sh.Karan Chand
R/o: Flat No. 125, Four Story Flats,
Tagor Garden Ext., New Delhi 110 027 .....Plaintiff
Versus
1. Smt. Satwant Kaur
w/o Late Sh. Balwant Singh
2. Jagjeet Kaur w/o late Sh. Tej Pal Singh
3. Ms. Monica d/o Late Sh. Tej Pal Singh
4. Maninder Singh s/o late Tej Pal Singh
5. Jitender Singh s/o late Sh. Tej Pal Singh
All r/o B485, J J Colony, Chowkhandi,
Tilak Nagar, New Delhi. .....Defendants
Date of Institution of the suit : 01.02.2007
Date on which order was reserved : 04.02.2012
Date of decision : 18.02.2012
J U D G M E NT
1. Vide this exparte judgment, I shall dispose off the suit for
specific performance and permanent injunction filed by the
Suit No. 138/2011 1/18
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plaintiff.
2. Brief facts are that it is stated that the defendant had
contracted with the plaintiff for sale of his property bearing
Plot No. F137, Measuring 167 sq yds situated at Rewari
Line, PhaseII, Mayapuri, New Delhi, shown in the site plan
filed on the record (hereinafter referred as suit property).
3. It is stated that the defendant is a lessee vide perpetual
lease deed dated 22.06.1981 executed by the DDA in
respect of suit property. It is stated that the plaintiff and
defendant entered into an agreement for sale and purchase
of suit proper for a sale consideration of Rs. 15,00,000/ and
the plaintiff paid Rs. 51,000/ as earnest money to purchase
said property. Defendant also executed a receipt in favour
of the wife of the plaintiff Smt. Suman dated 18.04.2006.
4. It is further stated that the plaintiff and the defendant settled
the terms and conditions for the sale of the suit property on
Suit No. 138/2011 2/18
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18.04.2006. A formal agreement was executed between
them in writing on 01.05.2006.
5. It is further stated that as per said formal agreement dated
01.05.2006, the plaintiff had to pay the charges to DDA for
conversion of the suit property from Lease Hold to Free
Hold. In this manner, the plaintiff deposited Rs. 1,51,298/ on
09.05.2006 through a demand draft and the said demand
draft was deposited in the office of the DDA in the name of
defendant. Thereafter, the plaintiff again deposited a sum of
Rs. 1,425/ as per the further demand of the DDA in the
name of the defendant. It is further stated that the plaintiff
also paid a sum of Rs. 1,10,000/ to the defendant on his
request and the defendant also executed receipts for said
payment received by him from the plaintiff, which have been
filed on the record. It is stated that in this manner, the
plaintiff has paid a total sum of Rs. 3,13,723/ to the
defendant, out of total consideration of Rs. 15,00,000/.
Suit No. 138/2011 3/18
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6. It is stated that the defendant did not make any efforts to get
the conveyance deed in the favour of the plaintiff from the
DDA after receiving the aforesaid amount and in these
circumstances, the plaintiff was constrained to serve a legal
notice dated 29.08.2006 through registered A.D. and U.P.C.
Post, which was duly served upon the defendant.
7. It is further stated that the defendant requested the plaintiff
to wait for some time and assured the plaintiff that he will
fulfill all the conditions and formalities with the DDA, but he
did not fulfill his liability, despite requests and reminders
form plaintiff from time to time in this regard.
8. It is stated that the plaintiff had visited and requested the
defendant from time to time for the execution of sale deed
and to receive the balance sale consideration of Rs.
11,86,277/ from him, but the defendant is avoiding his part
of the contract due to increase in the market value of the suit
property, despite that the plaintiff was ready to pay the
Suit No. 138/2011 4/18
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balance consideration at all times as per commitment.
9. It is further stated that the defendant is liable to execute the
sale deed in favour of the plaintiff, as he has received the
earnest amount as stated above and the plaintiff had also
deposited the charges with the DDA for the conversion of
the suit property from Lease Hold to Free Hold in the name
of the defendant.
10.In these circumstances, it is prayed that a decree of specific
performance may be passed in favour of the plaintiff and
against the defendant thereby directing the defendant to
execute a sale deed in favour of the plaintiff in respect of the
suit property. With the further prayer that a decree of
permanent injunction be also passed in favour of the plaintiff
thereby restraining the defendant and his successors,
assignees and attorney etc. from selling the suit property or
creating any third party interest in the same.
Suit No. 138/2011 5/18
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11.Written statement was filed on behalf of the defendant in
which it was admitted that the agreement to sell was
executed between the parties as mentioned in the plaint
dated 01.05.2006. It was the plea of the defendant that it
was agreed by the plaintiff that he shall make the payment
entire consideration of the suit property within six months
from the sale agreement dated 01.05.2006 and not at the
time of the conversion of the property to Free Hold. As the
plaintiff never offered or agreed to pay the sale consideration
in lumpsum, after deducting the amount of Rs. 40,000/ paid
on 16.05.2006 and Rs. 50,000/ on 08.06.2006, as it was
never agreed between the parties, that this amount will be
paid or adjusted as part of the sale proceeds of the total
consideration amount. It was further stated that the
conversion charges were to be paid by the plaintiff to the
DDA besides sale price of the property for conversion of the
property from Lease Hold to the Free Hold.
12.On merits, it was denied that any earnest money was
Suit No. 138/2011 6/18
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offered by the plaintiff to the wife of the defendant, which fact
is not mentioned in the agreement to sell dated 01.05.2006
and no such terms were entered or agreed between the
parties. It is further stated that the defendant had never
received the amount of Rs. 3,13,723/ as stated by the
plaintiff. It was further stated that the plaintiff had
manipulated certain documents on blank papers, which were
got signed by the plaintiff from the defendant, which were
later on fabricated and converted into the receipts. In these
circumstances, no cause of action ever arose in favour of
the plaintiff for filing the present suit as defendant was ready
to execute the conveyance deed in favour of the plaintiff, if
the latter pays Rs. 15,00,000/ in one lumpsum.
13.Replication was filed by the plaintiff, in which averments
made in the written statement were denied and reaffirmed
the facts of his case as correct.
14.Vide order dated 04.07.2008, the defendant was proceeded
Suit No. 138/2011 7/18
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exparte and on the same day, following issues were framed
on the pleadings of the parties :
ISSUES
1. Whether the plaintiff is entitled to a decree of specific
performance against the defendant as prayed in
prayer clause? OPP
2. Whether the plaintiff is entitle for a decree of
permanent injunction as prayed in prayer clause?
OPP
3. Relief.
15.Thereafter, an application u/o. 22 Rule 4 CPC was moved
for bringing on record the LRs of the deceased defendant
and said application was allowed vide order dated
17.11.2009.
16.Thereafter, the plaintiff examined himself as PW1 by
tendering his evidence in the form of affidavit on 17.01.2012.
Said documents mentioned in the affidavit are exhibited as
Suit No. 138/2011 8/18
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Ext.PW1/1 to Ext.PW1/19.
17.I have heard Ld. counsel for the plaintiff Sh. O. P. Jatav and
he has also relied upon a judgment AIR 2009 SC 527 in
support of his contentions.
18.The first and foremost contention raised by Ld. counsel for
the plaintiff was that the agreement to sell Ext.PW1/3, which
was deexhibited as Mark X has been properly stamped and
was not required to be registered as per the law applicable. I
find sufficient merit in the said contention of Ld. counsel for
the plaintiff, as the document, which was originally exhibited
as Ext.PW1/3 in the affidavit of the plaintiff does not contain
any term regarding the transfer of possession or handing
over of the possession to the purchaser in the part
performance of the contract u/s 53 (A) of The Transfer of
Property Act. Therefore, same is not required to be
registered u/s 17(1A) of the Indian Registration Act nor duty
as per item 23A of the Indian Stamp Act has to be paid
Suit No. 138/2011 9/18
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thereon. Therefore, I am of the consideration opinion that
said agreement to sell Mark X can be considered in
evidence or read in evidence as it does not require
registration and is properly stamped as it is not in the part
performance of the contract as no possession of the
property vide said agreement to sell has been conveyed to
the purchaser, by the said document.
19.Now, my issues wise findings are as under :
ISSUES NO. 1 AND 2
These issues are taken up together as both are
interconnected with each other.
20.The plaintiff reiterated the contents of his plaint in his
affidavit while appearing as PW1. The contents of it remains
unrebutted and unchallenged as defendant is already
exparte. The agreement to sell is exhibited as Ext.PW1/3,
which has been proved by the plaintiff on oath and the
documents filed on record in the shape of receipts i.e.
plaintiff had paid an amount of Rs. 3,13,723/ to the
Suit No. 138/2011 10/18
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defendant till date i.e. till filing of the suit as part
consideration out of total sale consideration of Rs.
15,00,000/ also remains unrebutted.
21.Now, clauses 2 and 3 of the agreement to sell (Ext.PW1/3)
are reproduced as under :
"2. That it has been agreed
between the parties that the Ist
Party will apply to the DDA for
conversion of the said property
from Lease Hold to Free Hold and
it has been agreed that the 2nd
Party will pay the charges of
conversion from Lease Hold to
Free Hold and the said amount will
be deducted from the total sale
consideration. The amount of the
conversion will be paid by way of
demand draft / pay order in favour
of the DDA from the account of
the 2nd party.
3. That on conversion of the
properly from Lease Hold to Free
Hold and execution of the
conveyance deed in favour of the
Suit No. 138/2011 11/18
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Ist Party, the Ist Party will execute
proper sale deed in favour of 2nd
party in respect of the said
property and the balance amount
whatsoever may be, will be paid to
the Ist Party by the 2nd Party."
22.From the perusal of the said Clause No. 3, it is apparent
that it was agreed between the parties that the same i.e.
defendant will apply to the DDA for conversion of the said
property from Lease Hold to Free Hold, for which the
purchaser will pay the charges for conversion to the DDA
and that same would be deducted from the total
consideration amount. Thereafter, on said conversion being
allowed of the property from Lease Hold to Free Hold, the
seller was under an obligation to execute the conveyance
deed in favour of the purchaser by receiving payment of the
remaining consideration amount.
23.There is a further Clause No. 5 in the agreement to sell,
which is reproduced as under :
Suit No. 138/2011 12/18
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"That it has further been agreed
between the parties that the Ist
Party will get the title of the said
property clear and in case the Ist
Party failed to get the title clear,
the earnest money and the money
deposited in DDA by the 2nd Party
will be refunded to the 2nd Party."
24.As per said clause, in case the seller failed to get his title of
the suit property cleared, then the entire earnest money
deposited in the DDA, had to be refunded to the purchaser.
25.It is admitted case of the parties that DDA was never a
party to the agreement to sell executed between the parties
of this case, which is Ext.PW1/3. Therefore, said agreement
was never binding upon the DDA, even if the defendant had
applied to the DDA for conversion of the property from
Lease Hold to Free Hold by meeting all the formalities in this
regard laid down by the DDA. Even then the DDA was not
under an obligation to transfer the suit property from Lease
Hold to Free Hold as DDA being a principal lessor of the
Suit No. 138/2011 13/18
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property had the discretion to do so. Therefore, it was not
necessary that the DDA in all the cases, in which a particular
person applies to it for conversion of the property from
Lease Hold to Free Hold was under the obligation to do so.
26.The parties to the agreement to sell had also envisaged
such an eventuality, which is mentioned in Clause No. 5 of
the agreement to sell (Ext.PW1/3) mentioned above, that in
case, the seller failed to get his title clear, then the second
party would be entitled to the refund of the earnest money
and money deposited with the DDA by him.
27.In these circumstances, the specific performance of the
contract i.e. Ext.PW1/3 would not be possible as the DDA
cannot be compelled to convert the property from Lease
Hold to Free Hold, as it is the discretion of the DDA to do so
being a principal lessor of the suit property. It has been
repeatedly held in various judgments of the Hon'ble
Supreme Court and Hon'ble High Court that Section 16 of
Suit No. 138/2011 14/18
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the Specific Relief Act provides for a discretionary relief and
it cannot be granted in all the cases. In this regard, I am
fortified by the Judgment "162 (2009) DLT 520 (Supra)" in
para no. 9, it was held as under :
"9. Section 16 (c) of the Specific
Relief Act, 1963, provides that the
discretionary relied of specific
performance of th contract can be
granted only in the event, the
plaintiff not only makes necessary
pleadings but also establishes that
he was always been ready and
willing to perform his part of
contract. Such readiness and
willingness on the part of the
plaintiff is not confined only to the
stage of filing of the plaint but also
at the subsequent stave, viz., at the
hearing. This was emphasized in
Umabai & Anr. Vs. Nilkant
Dhondiba Chavan (Dead) by LRs
and Anr., II (2005) CLT 151 (SC)
(2005) 6 SCC 243, in the following
terms :
"30, It is now well settled that the
Suit No. 138/2011 15/18
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conduct of the parties, with a view
to arrive at a finding as to whether
the plaintiff - respondents were all
along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16 (c) of the Specific Relief Act must be determined having regard to entire attending circumstances. A bare averment in the plaint or a statement made in the examination in chief would not suffice. The conduct of the plaintiff
- respondents must be judged having regard to the entirety of the pleadings as also the evidence brought on records....."
The above observation were reiterated by the Supreme Court, in Inderchand Jain (D) through LRs Vs. Moti Lal (D) through LRs, III (2009) CLT 290 (SC) = VI (2009) SLT 734 = CA 4584/2009, decided on 21.07.2009" and also judgment 128 (2006) DLT 96."
28. These judgments are squarely applicable to the facts and Suit No. 138/2011 16/18 17 circumstances of the present case, therefore in order to balance the equities between the parties, it would be just and fair that the plaintiff, intead of being granted a decree of specific performance of agreement to sell Ext.PW1/3, be granted a decree for the sum of Rs. 3,13,723/ against the defendant for the amount paid by him to the defendant as per documents proved on the record including agreement to sell Ext.PW1/3 and the receipts along with simple interest @ 12% per annum pendentelite and future interest from the date of filing the suit till realization with costs. In these circumstances, the relief for permanent injunction for restraining the defendant and its successors etc from creating any third party interest in the suit property, as prayed by the plaintiff, does not survives in his favour.
29.Issues no. 1 and 2 are decided accordingly.
(Relief)
30. In view of my findings on the aforesaid issues, the plaintiff Suit No. 138/2011 17/18 18 is granted a decree for a sum of Rs. 3,13,723/ along with simple interest @ 12% per annum pendentelite and future interest from the date of filing the suit till realization along with costs. Decree sheet be prepared accordingly.
Thereafter, file be consigned to Record Room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal) COURT ON 18.02.2012 ADJ(Central03)/Delhi Suit No. 138/2011 18/18