Delhi District Court
Also At vs Sh. Prithipal Singh Bhatia (Deceased) on 24 February, 2022
IN THE COURT OF SH. SANJEEV JAIN,
DISTRICT JUDGE (COMMERCIAL COURT)-01,
PATIALA HOUSE COURTS, NEW DELHI
Presiding Officer: Sh. Sanjeev Jain, District Judge
(Commercial Courts)-01
CS (COMM) 244/2020
In the matter of:
Sh. Kripa Shankar Singh,
R/o G-36, Alpha-II,
Greater Noida-201306
Also at:
Flat No.702, 7th Floor,
Narain Manzil,
23 Barakhamba Road, New Delhi. .... Plaintiff
Vs.
1.Sh. Prithipal Singh Bhatia (Deceased) S/o Late Sh. Amolak Singh Bhatia, R/o E2/A, Rajouri Garden, New Delhi110027.
1A. Ms. Inderjit Kaur, W/o Late Sh. Prithipal Singh Bhatia R/o E2/A, Rajouri Garden, New Delhi110027.
2. Mr. Kamaljeet Singh Bhatia, S/o Late Sh. Prithipal Singh Bhatia R/o E2/A, Rajouri Garden, New Delhi110027.
....Defendants.
CS (COMM). 244/2020 Page 1 of 17
Date of institution : 01.02.2020 Arguments advanced on : 07.01.2022 Date of pronouncement of the judgment : 24.02.2022 Court fee amount paid on plaint : Rs.22,750/ Appearance: Sh. Natwar Rai, Ld. Counsel for plaintiff.
Sh. Mukund Yadav, ld. Counsel for LRs of defendant no.1. Sh. Harish Kumar, Ld. Counsel for defendant no.2 Judgment in Suit for Mandatory Injunction and Specific Performance of Contract.
1. In brief, plaintiff has filed the suit for mandatory injunction and specific performance of contract against the defendants. In plaint, plaintiff has prayed for the following reliefs:
a) It is accordingly prayed that this Hon'ble Court may be pleased to pass a decree of mandatory injunction directing defendants to pay house tax dues till April 2009 to the concerned authorities for the flat no.702 on 7th Floor, Narain Manzil, 23 Barakhamba Road, New Delhi-110001.
b) It is accordingly prayed that this Hon'ble Court may direct defendants for specific performance of clause 4 of agreement dated 18.04.2019 registered on 23.04.2019 in respect of transfer of flat no.702, 7th Floor, Narain Manzil, 23 Barakhamba Road, New Delhi-110001, whereby defendant s has undertaken to pay house tax dues till April, 2019 to the concerned authorities.
CS (COMM). 244/2020 Page 2 of 17
c) Such other relief(s) to which the plaintiffs are found entitled to in the facts and circumstances of the case may also kindly be allowed to the plaintiff.
1.2. As disclosed in the plaint, defendants were the owners of flat no. 702 (300 sq.ft.); flat no. 702 A (300 sq.ft.); flat no.703 (200 sq.ft.) and 703 A (176 sq.ft.) all on 7 th floor, Narain Manzil, 23, Barakhamba Road, New Delhi-110001 (hereinafter referred as "flats"). Plaintiff purchased flat no.702 in his own name and other three flats in the name of his family members. The defendant has agreed to sell his flat no.702 at the total cost of Rs.43,05,000/-. It was agreed between the parties that defendants will pay the property tax and all other dues against the said flats pending till the date of finalization of sale deed. Accordingly, vide sale agreement in respect of flat No.702 was executed between the parties on 23.04.2019 at the office of sub- registrar and admittedly consideration amount of Rs.43,05,000/- was paid by the plaintiff to the defendants. In the said registered sale agreement dated 23.04.2019, it was agreed that defendants will clear the water and electricity charges, house tax, maintenance charges etc. pending till April 2019 i.e. the date of agreement. CS (COMM). 244/2020 Page 3 of 17 1.3. According to the averments of the plaint, plaintiff proposed to retain amount of sale consideration to the extent of pending taxes and other charges, but the same was not accepted by defendants and they promised to pay the dues of taxes and other charges at the earliest. Accordingly, the relevant clause in this effect was included in the sale agreement dated 23.04.2019.
1.4. It is stated in para 9 of the plaint that agreement dated 26.04.2019 (EX.PW-1/DX-1), was signed between the parties, but it was an invalid agreement as the same was not properly drafted and acted upon.
1.5. In plaint, it is also disclosed that towards maintenance charges and electricity dues, defendants have issued two cheques to the agencies which were dishonoured by the bank. As plaintiff is in the use of the flats for its office purpose, agencies concerned had approached the plaintiff and asked him to pay the dues. Plaintiff asked the defendants to clear the dues to the concerned agencies but defendants had shown their financial difficulties and requested the plaintiff to pay the cheque amount to the agencies and promised to CS (COMM). 244/2020 Page 4 of 17 reimbursed the same at the earliest. Thereafter, plaintiff paid the amount to the agencies and defendants as per their understanding issued two cheques to the plaintiff towards reimbursement of the said payment. Out of the said cheques, one was returned unpaid on presentation for which notice was given by plaintiff to the defendants under Section 138 of Negotiable Instruments Act. Despite notice, replies and rejoinders, defendants did not pay the house tax and other charges. Thereafter, plaintiff has filed the suit.
2. In the written statement, defendants alleged that suit is not maintainable and is gross abuse of process of law; that suit is based on presumption, conjunctures and assumptions without any basis and; the plaintiff has not approached the Court with clean hands. These primary objections were taken in written statement without substantiating the material facts. In written statement, the fact of execution of sale deed between the parties is admitted. The service of legal notice, its reply and rejoinders placed on record are also admitted. The main defence of the defendants are that in respect of the four flats, the total consideration amount was Rs.1,85,05,600/-. At the time of dealings, defendants had intimated the plaintiff that House tax CS (COMM). 244/2020 Page 5 of 17 and other charges of about Rs.42,37,253/- were due and payable against the said flats. Therefore, plaintiff made a proposal to retain Rs.45lakhs out of total sale consideration of Rs.1,85,05,600/-and the remaining amount was paid.
2.1. The main defence of the defendant is that on 26.04.2019 a general agreement was signed between plaintiffs, Smt. Rajni Rai, Ms.Aarti Rai and Ms. Munni Rai and defendants. As per this agreement, the first party were the defendants and the second party was the present plaintiff. In this agreement, it was mentioned that on account of prior taxes and other charges against the present defendants, plaintiff will retain the amount of Rs.45 lakhs. The main dispute is pertaining to the said agreement as plaintiff has termed this agreement as invalid.
3. In replication filed by plaintiff, the material contents of written statement were denied and the case of the plaintiff setup in the plaint was reiterated as correct.
4. On the basis of pleadings and material on record, following CS (COMM). 244/2020 Page 6 of 17 issues were framed vide order dated 21.11.2020:
1. Whether plaintiff is entitled for the relief of specific performance of contract? OPP.
2. Whether plaintiff is entitled for mandatory injunction?
OPP.
3. Relief, if any?.
5. After case management hearing, evidence of the parties were recorded.
6. Plaintiff appeared as PW-1 in evidence and he filed his affidavit-in-examination-in-chief and proved the following documents:-
S. Document Exhibit Total No No Pages 1 Copy of Sale Agreement (OSR) Ex. PW1/1 10 2 Copy of demand of the property Ex. PW1/2 1 tax by NDMC (OSR of the computer generated document given by NDMC) 3 Copy of Order passed in Mark PW-1/3 2 criminal complaint filed u/s 138 (colly) NI Act CS (COMM). 244/2020 Page 7 of 17 4 Legal Notice sent to defendant Ex. PW1/4 5 5. Reply by defendant Ex.PW-1/5 3 6. Rejoinder by plaintiff. Ex.PW-1/6 4
PW-1 was cross-examined by ld. Counsel for defendant.
7. In defence, defendant Sh. Kamaljeet Singh Bhatia appeared as sole witness as DW-1. He filed his evidence in-examination-chief and relied upon following documents:
S. Document Exhibit Total No No Pages 1 Copy of legal notice Ex. DW1/1 4 2 Original bank statement Ex. DW1/2 5 3 Replication to reply of legal Ex.DW-1/3 3 notice dated 13.01.2020 4. Copy of whatsapp screen shot Mark DW-A 1 of defendant no.2
DW-1 was cross-examined by ld. Counsel for plaintiff.
8. I have heard ld. Counsels for the parties and carefully gone through the record including written submissions filed by parties.
9. Issue-wise findings are as under:-
CS (COMM). 244/2020 Page 8 of 17
Issues no.1 and 2:
1. Whether plaintiff is entitled for the relief of specific performance of contract? OPP.
2. Whether plaintiff is entitled for mandatory injunction?OPP.
10. In order to avoid any repetition, issues no.1 and 2 are taken up together for discussion.
11. The decision of issue no.1 and 2 depends on the decision on the disputed facts whether agreement dated 26.04.2019 Ex.PW1/DX1 was executed between the parties and the amount of Rs.45 lakhs was retained by the plaintiff on account of liability of the present defendants in respect of unpaid house tax, electricity bills and other charges.
12. In respect of Ex.PW1/DX1 i.e. agreement dated 26.04.2019 consistently the plea of defendant is that after registration CS (COMM). 244/2020 Page 9 of 17 of sale agreement on 23.04.2019, document Ex.PW1/DX1 was executed between the parties as the receipt of retained amount of Rs.45 lakhs. In the plaint and testimony of PW1, the plea of plaintiff is that though this document was executed and bear his signatures, this document was not validly executed and was never acted upon between the parties.
13. It is an admitted case of both the parties that 4 flats were purchased by the plaintiff and his family members from the defendants. Therefore a registered sale agreement dated 23.04.2019 and entire sale consideration was paid. It is also admitted case of both the parties that in sale agreement Ex.PW1/1, it was mentioned that first party i.e. present defendants shall pay and clear the electricity charges, house tax, maintenance charges and other dues to the concerned authorities till date of agreement. It was also stipulated in Ex.PW1/1 that in case first party fails to comply with terms and condition of agreement to sell, then 2 nd party shall have right to get this agreement to sell implemented and enforced through competent CS (COMM). 244/2020 Page 10 of 17 court of law. It is admitted fact between the parties that approximately house tax and other liabilities against the said flats which was payable by the present defendants was Rs.42 lakhs.
14. In ordinary course of events it is hard to believe that the purchaser (present plaintiff) will believe the assurance of the seller (defendants) that they would pay the huge amount of house tax and charges to the authority concerned and would not make any specific provision in the sale deed itself. The version of defendants appears to be more convincing in balance of probabilities due to following reasons:
a) plaintiff himself has admitted that document Ex.PW 1/DX1 was executed and it bears his signatures. PW1 in his statement informed that he is a post graduate. In my opinion, no reasonable person will sign such a document lightly and without understanding its nature and consequences.
b) The plea of the plaintiff is that document Ex.PW1/DX1 CS (COMM). 244/2020 Page 11 of 17 was not validly executed and never acted upon. In support of his plea, he failed to explain either in his testimony or during arguments that how document Ex.PW1/DX1 is not valid and not acted upon. Ex.PW 1/DX1 admittedly bear signatures of all the parties. It is not the argument of any of the party that it requires any registration. As per this document, the amount of Rs.45 lakhs was retained by the plaintiff which means that out of the total sale consideration agreed between the parties, an amount of Rs.45 lakhs was retained (in other words not paid) by the plaintiff to the defendants. I do not find any reason to accept that document Ex.PW1/DX1 is an invalid document.
c) In ordinary course of events, the version of defendants inspire more confidence about the necessity of execution of Ex.PW1/DX1 as the said amount was not directly mentioned in registered sale agreement. It appears that amount of Rs.45lakhs was not included in sale CS (COMM). 244/2020 Page 12 of 17 consideration and was not mentioned in registered sale deed, to curtail the liability of stamp fee.
15. In view of the above reasons in balance of probabilities, in my opinion, document Ex.PW1/DX1 was executed between the parties but later on plaintiff disputed the validity of the said agreement.
16. As per admitted facts disclosed in the plaint, when the cheques given by the defendants for payment electricity charges, the same were dishonoured and authorities approached the plaintiff for payment of amount. On the request of defendants, plaintiff paid the said amount by way of cheque on the assurance of the defendants for reimbursement of the same. For reimbursement defendant gave the cheques to the plaintiff and one of the cheque was dishnoured and in respect of said dishonoured cheque notice was given by plaintiff to the defendants under Section 138 of Negotiable Instruments Act. The whole version and sequences of transactions does not appear to be fair CS (COMM). 244/2020 Page 13 of 17 in ordinary course of events. One may question that if amount of Rs.45 lakhs was retained by the plaintiff, why cheques were initially given by defendants to the authorities. On this, one may also question that if it was the liability of the defendants to pay the electricity charges why plaintiff has paid the same on the assurance of reimbursement. Again another question may be that, if amount of Rs.45 lakhs was retained by plaintiff why any reimbursement/cheques were given by defendants. Transactions between the parties in this regard does not find any clarification, either from the pleadings of the parties or the testimony of PW1 and DW1. Surprisingly no questions was put to PW1 and DW1 by the respective counsels to find the clear answers of these question. From the entire transactions, in balance of probabilities it appears that at the first instance in order to reduce the tax liability, the total sale consideration was not shown in the sale agreement and the provision was given for payment of house tax and other charges by the defendants. After execution of sale agreement dated 23.04.2019 defendants try to ensure the receipt of retained amount of Rs.45 lakhs and therefore documents Ex.PW CS (COMM). 244/2020 Page 14 of 17 1/DX1 was executed which was duly signed by all the parties. It appears that thereafter to make the record straight, cheques were issues to respective authorities for payment of charges firstly by the defendant and then by the plaintiff on the assurance of defendants.
17. In view of the above discussion in my opinion defendants has been able to establish execution of document Ex.PW1/DX1 and plaintiff has failed to prove it as an invalid document. Ex.PW1/DX1 had clearly mentioned that plaintiff will retain the amount of Rs.45 lakhs with them. Provision was also mentioned in para 3 and 4 of Ex.PW1/DX1 that at the first instance first party will clear all dues towards house tax etc and on payment of house tax and other dues by the defendants, present plaintiff will release the amount of Rs.45 lakhs to the first party.
18. The relief of specific performance of contract or mandatory injunction is the discretionary relief which has to be granted by the court on the basis of equity and good conscious. It is a CS (COMM). 244/2020 Page 15 of 17 basic principle that one who seek equity must do the equity for seeking a equitable discretionary relief. Every party is required to approach the court with clean hands.
19. In my view plaintiff has already retained the amount of Rs.45 lakhs as mentions in Ex.PW1/DX1 and now by denying the validity of the said document cannot claim the prayer of specific performance of contract and mandatory injunction. Plaintiff cannot take the double benefit of retention of amount as well as decree against the defendants for payment of dues to the authority.
20. In view of above discussion, in my view, plaintiff is not entitled for relief of specific performance of contract or the mandatory injunction as prayed for. Therefore, issues no.1 and 2 are decided against the plaintiff and in favour of defendants. Relief:
21. In view of the findings on issues no.1 and 2, plaintiff is not entitled to any relief through suit and the plaint is hereby dismissed with cost against the plaintiff.
CS (COMM). 244/2020 Page 16 of 17
22. Decree sheet be prepared accordingly.
23. File be consigned to record room after due compliance.
Digitally
signed by
SANJEEV
SANJEEV JAIN
Pronounced in the open Court JAIN Date:
2022.02.24
14:26:11
on this 24th day of February, 2021 +0530
(Sanjeev Jain)
District Judge (Commercial Courts)01
New Delhi District, Patiala House Courts,
New Delhi
The order contains 17 pages all checked and signed by me. CS (COMM). 244/2020 Page 17 of 17