Delhi District Court
M/S Golden Builder Pvt. Ltd vs Mukhtiar Singh on 21 October, 2024
CS DJ ADJ 17160/16 Page 1 of 53
IN THE COURT OF SH. DIVYANG THAKUR
DISTRICT JUDGE-03:
SOUTH WEST DISTRICT: DWARKA COURTS: NEW DELHI
Civil Suit No. 17160/16
CNR No. DLSW01-003647-2016
In the matter of :
M/s Golden Buildcon Pvt. Ltd.
Registered Office at:
T-26, Malhan Falcon Plaza, Plot No. 4,
Sector 12, Dwarka, New Delhi
Through its Authorized Signatory Sh. Parveen
S/o Sh. Jaipal Sharma
....Plaintiff
Versus
Sh. Mukhtiar Singh
S/o Sh. Surat Singh
R/o Village and P.O. Jharoda Kalan,
New Delhi
......Defendant
Date of institution of the suit : 08.02.2012
Final Arguments Heard on : 24.08.2024
Date of Judgment : 21.10.2024
Decision : DECREED
M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh
CS DJ ADJ 17160/16 Page 2 of 53
SUIT FOR SPECIFIC PERFORMANCE WITH CONSEQUENTIAL
RELIEF OF PERMANENT INJUNCTION
JUDGMENT :
Brief background of the present litigation
1. Initially, the present suit was filed before the Hon'ble High Court of Delhi whereby the summons of the suit and notice of the application under Order XXXIX R 1 and 2 of CPC were issued to the Defendant and Defendant was directed to maintain status quo with regard to his share in the suit property. Thereafter, written statement was filed by the Defendant along with an application for condonation of delay in filing the written statement which was subsequently allowed subject to cost and Written Statement was taken on record. Admission-denial of documents was concluded, and issues were also framed matter was proceeded for Plaintiff's evidence. The witnesses from Corporation Bank and from the office of the Sub-Registrar IX were examined as PW-2 and PW-3 respectively and they were discharged. Thereafter, vide notification dated 24.11.2015, the present suit was transferred to the Court of Ld. District Judge, South-West, Dwarka Courts, New Delhi vide order dated 25.02.2016. M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 3 of 53
2. Present suit has been filed by the Plaintiff seeking (a) a decree of specific performance of the contract in favor of the Plaintiff company and against the Defendant thereby directing the Defendant to execute the sale deed in respect of 1/12 undivided share in favour of the Plaintiff in the total land comprising in khasra nos. 75//1/2(2-8), 2(4-16), 8(4-16), 9(4-16), 10/1(0-5), 10/2(4-11) & 76//6/2(2-8), total area measuring 24 bighas, situated in the revenue estate of Village Jharoda Kalan, Tehsil Najafgarh, New Delhi, total measuring 24 bighas and also seeking directions to the Defendant to handover the possession of his 1/12 undivided share to the Plaintiff company and
(b) a decree of permanent injunction with respect to the aforesaid suit property.
PLAINT
3. The brief facts of the case as mentioned in the plaint are reproduced here as under:
(i) It is averred that the Plaintiff is a private limited company duly incorporated under the Companies Act, 1956 vide registration no.
UP7010DL2010PTC205703 having its registered office at T-26, Malhan Falcon Plaza, Plot No. 4, Sector 12, Dwarka, New Delhi and M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 4 of 53 Sh. Parveen S/o Sh. Jaipal Sharma is the authorized representative of the Plaintiff company. It is submitted that the Defendant is co-owner / co-bhoomidar having 1/12th share in the total land measuring 24 bighas comprising in khasra nos. 75//1/2(2-8), 2(4-16), 8(4-16), 9(4-
16), 10/1(0-5), 10/2(4-11) & 76//6/2(2-8), total area measuring 24 bighas, situated in the revenue estate of Village Jharoda Kalan, Tehsil Najafgarh, New Delhi. It is submitted that the rest of the land i.e. 11/12th share out of the aforesaid land measuring 24 bighas belonged to (a) Mrs. Santosh W/o Sh. Umed Singh, Sh. Devender S/o Sh. Sardare, Smt. Nirmala W/o Sh. Khazan, Sh. Bijender Singh S/o Sh. Sardare, Smt. Bimla W/o Sh. Satish, Sh. Mukesh S/o Sh. Kuldeep, Smt. Jaswanti W/o Sh. Ramesh, Smt. Sunita W/o Sh. Jaipal (all having equal rights in ½ share); (b) Sh. Ved Prakash and Lachhi Ram, both sons of Shri Jailal (both having 1/4th share); (c) Sh. Naresh Kumar and Sunil Kumar, both sons of Sh. Ishwar Singh (both having 1/12th share) and (d) Sh. Raj Singh S/o Sh. Surat Singh (having 1/12th share), all residents of Village and Post office Jharoda Kalan, New Delhi.
(ii) It is submitted that vide an oral contract, the Defendant along M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 5 of 53 with other co-owners / co-bhoomidars stated above had agreed to sale and transfer the aforesaid total land measuring 24 bighas to the Plaintiff company for a total sale consideration of Rs. 2,70,00,000/- and out of the aforesaid total sale consideration, aforesaid co-owners including the Defendant was to be paid cost of land as per his proportionate share as recorded in the record of rights and that the said oral contract was entered in July, 2011. It is also submitted that in furtherance of the oral contract, the Plaintiff company had made a part payment of Rs. 1,50,000/- to each of the co-owners including the Defendant vide cheques of different dates, all drawn on Corporation Bank, Dwarka, New Delhi-75. It is alleged that the Defendant was paid a sum of Rs. 1,50,000/- vide cheque bearing no. 473028 dated 20.07.2011 which was duly credited to his account and the rest of the amount was agreed to be paid to the Defendant and to his co-sharers in the shape of demand drafts and post-dated cheques at the time of registration of sale deed. It is submitted that the Defendant along with his co-owners / co-sharers had applied for a No Objection Certificate (NOC) bearing no. D.C. South West/NOC/7178 which was issued by the competent authority on 24.09.2011 in favor of the Defendant as M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 6 of 53 well as in favor of other co-sharers and the Plaintiff was duly intimated about the same. It is also submitted that the Plaintiff had purchased the stamp duty in respect of the entire land including the share of the Defendant and intimated the Defendant as well as other co-sharers for their presence in the office of the concerned Sub- Registrar on 26.09.2011.
(iii) It is alleged that all the co-sharers except the Defendant appeared in the office of the Sub-Registrar and therefore, the Plaintiff got drafted the sale deed only in respect of 11/12 th share out of total land measuring 24 bighas and the share of the Defendant i.e. 1/12th in the land in question was not made part of the sale deed. It is submitted that all the co-sharers except the Defendant had executed the sale deed after acceptance of the amount of consideration in the shape of demand drafts and post dated cheques and the sale deed was duly registered by the Sub-Registrar vide registration no. 11255, Book No. I, Vol. No. 6130 on pages 19 to 28 dated 04.10.2011. It is submitted that since the sale deed in respect of the Defendant herein was also to be executed and got registered on the same date, therefore, a demand draft dated 22.09.2011 in the sum of Rs. 3,66,667/- was already M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 7 of 53 obtained from Corporation Bank, Dwarka, New Delhi payable to the Defendant and remaining amount of Rs. 17,33,333/- was to be paid to the Defendant by the Plaintiff company through post dated cheques dated 10.05.2012 as per oral contract with the Defendant and other co- sharers. However, demand drafts and post dated cheques could not be given to the Defendant as he did not appear at the office of the Sub- Registrar despite request.
(iv) Consequently, the legal notice dated 06.10.2011 was served upon the Defendant by the Plaintiff, however, the same was not replied by the Defendant. It is alleged that on 11.01.2012, the Plaintiff came to know that the Defendant was negotiating the sale of his share in the land in question and upon inquiry, it was revealed to the Plaintiff that a local property dealer was intending to purchase his share. It is alleged that thereafter, the Plaintiff tried to approach the Defendant for execution of sale deed, however, the Defendant had refused to even speak to the representative of the Plaintiff company. Aggrieved, Plaintiff has filed the present suit for specific performance and permanent injunction, due to the refusal of the defendant to execute the sale deed.
M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 8 of 53 PROCEEDINGS OF THE CASE
4. Summons for settlement of issues along with notice of the application under Order XXXIX R 1 and 2 of CPC were issued to the Defendant by the Hon'ble High Court of Delhi and the issues were also framed in the present matter and matter was fixed for Plaintiff's evidence. Thereafter, the matter was transferred to the Court of Ld. District Judge, South-West, Dwarka Courts, New Delhi vide order dated 25.02.2016.
5. It is alleged by the Defendant in the written statement that the suit of the Plaintiff is not maintainable and is liable to be dismissed and that the Plaintiff has not approached the Court with clean hands. It is further alleged that no cause of action arises against the present Defendant. It is submitted that the Defendant had entered into an agreement for sale of his 1/12th share in the land measuring 24 bighas comprising in khasra nos. 75//1/2(2-8), 2(4-16), 8(4-16), 9(4-16), 10/1(0-5), 10/2(4-11) & 76//6/2(2-8), situated in the revenue estate of Village Jharoda Kalan, Tehsil Najafgarh, New Delhi with the Plaintiff and that the total sale consideration was agreed to be the prevailing market rate which was about Rs. 1.5 crore per acre and it was further M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 9 of 53 agreed that the remaining consideration amount would be paid by the Plaintiff to the Defendant on or before the registration of the sale deed by way of demand draft or in cash as preferred by the Defendant. It is alleged that the representative of the Plaintiff company had approached the Defendant prior to the registration of the sale deed and informed him that the balance sale consideration was intended to be paid by way of post dated cheques to which the Defendant disagreed and expressed his reservations about the same. It is further alleged that the Plaintiff had failed to perform his part of the agreement despite several requests and reminders of the Defendant and as such, the amount paid towards the earnest money was forfeited as agreed between the parties.
6. It is submitted that it was never agreed between the parties that the balance sale consideration would be paid by way of post dated cheques. It is further submitted that the Plaintiff had offered a demand draft for a sum of Rs. 3,66,667/- and post dated cheques for Rs. 17,33,333/-, however, the said amount and mode of payment was not acceptable to the Defendant and as such, the Defendant had refused to execute the sale deed in respect of his share in the land in question. It M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 10 of 53 is therefore, alleged that the present suit of the Plaintiff is liable to be dismissed on the aforesaid grounds.
7. In Replication filed by the Plaintiff, the Plaintiff has denied the averments of the Defendant in the written statement and reiterated the contents of the plaint.
8. Admission-denial of documents was not recorded on behalf of the parties. However, on basis of the aforesaid pleadings, on 15.10.2024, the following issues were framed :-
(a) Whether the Plaintiff is entitled to the relief of specific performance of the oral agreement? (OPP)
(b) Whether the Plaintiff is entitled to the relief of permanent injunction in respect of the suit property as prayed for? (OPP)
(c) Whether there is no cause of action in favour of the Plaintiff and against the Defendant? (OPD)
(d) Relief.
No other issue arose or claimed by the parties and matter was proceeded for Plaintiff's evidence. On the even date, it was also directed that the status quo with regard to the share of the Defendant in the suit property would be maintained till the disposal of the suit. M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 11 of 53 Thereafter, in terms of the notification dated 24.11.2015, the present suit was transferred to the Court of Ld. District Judge, South-West, Dwarka Courts, New Delhi vide order dated 25.02.2016.
9. Subsequently, at joint request of the parties, matter was referred to mediation for exploring the possibility of settlement vide order dated 10.07.2017, however, the same could not be settled. Thereafter, the matter was again referred to mediation at the joint request of the parties vide order dated 19.03.2018, however, the matter was not settled again and matter was fixed for PE.
EVIDENCE LED BY THE PARTIES
10. On 06.08.2018, PW-1 Sh. Praveen had tendered his evidence by way of affidavit exhibited as Ex. PW1/A and relied upon the following documents:
(a) Copy of incorporation of the Plaintiff company as Ex. PW1/1 (OSR);
(b) Original board resolution of the Plaintiff company as Ex.
PW1/2;
(c) Certified copy of khatauni of the land in question along with its true translation as Ex. PW1/3;
M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 12 of 53
(d) Copy of statement of bank account no. CBCA/01/000166 and account no. CBCA/01/000039 as Ex. PW1/4 (colly)
(e) Copy of NOC marked as Mark A and de-exhibited as Ex. PW1/5;
(f) Certified copy of sale deed dated 04.10.2011 as Ex. PW1/6 (OSR);
(g) Copy of receipt as Ex. PW1/7 (OSR); (h) Copy of possession letter as Ex. PW1/8 (OSR); (i) Original demand draft as Ex. PW1/9; (j) Legal notice as Ex. PW1/10 bearing the signatures of the Defendant at point X and (k) Statement of account of Plaintiff company as Ex. PW1/11.
11. However, the cross-examination of PW-1 was deferred and the following additional issue was framed vide order dated 04.06.2022:
"Whether the AR of the Plaintiff Mr. Praveen S/o Sh. Jaipal Sharma was properly authorized to file the present suit and whether the present suit is not maintainable? (OPD)"
12. Thereafter, on 20.08.2022, PW-1 Sh. Praveen had tendered his M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 13 of 53 evidence by way of affidavit which was exhibited as Ex. PW1/A1 and relied upon the following documents:
(a) Copy of Incorporation of the plaintiff company already exhibited as Ex. PW-1/1 (OSR).
(b) Original Board Resolution dated 20.07.2011 (filed with the plaint) of the plaintiff company already exhibited as Ex. PW-1/2 (objected by the Ld. Counsel for defendant for the mode of proof).
(c) Certified copy of Khatauni of the land in question along with its true translation already exhibited as Ex. PW-1/3.
(d) Copy of Statement of bank account no. CBCA/01/000166 and Account no. CBCA/01/000039 already exhibited as Ex. PW-1/4 (colly).
(e) Copy of NOC already marked as mark A and de-exhibited as Ex. PW-1/5.
(f) Certified copy of sale deed dated 04.10.2011 already exhibited as Ex. PW-1/6 (OSR).
(g) Copy of Receipt already exhibited as Ex. PW-1/7 (OSR).
(h) Copy of Possession letter already exhibited as Ex. PW-1/8 (OSR).
M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 14 of 53
(i) Original Demand Draft already exhibited as Ex. PW-1/9.
(j) Legal notice already exhibited as Ex. PW-1/10 served by hand upon the defendant bearing the signatures of the defendant at point X.
(k) Statement of account of plaintiff company already exhibited as Ex. PW-1/11.
(l) Board Resolution dated 20.07.2011 (filed with the affidavit of evidence Ex. PW-1/A1) exhibited as Ex. PW-1/12.
(m) Extract of Board Resolution dated 27.11.2021 exhibited as Ex. PW-1/13.
(n) True copy of Minutes of Meeting dated 21.07.2011 exhibited as Ex. PW-1/14 (OSR).
13. It was deposed by PW-1 during cross-examination that he does not get the salary for being as the Director of the company and that the company was incorporated in the year 2011 for conducting the business of land purchasing. He further deposed that " I do not know as to by which mode the notice of the Board meeting was given to the Directors dated 20.07.2011 at 11:30 AM passing a resolution in my favour regarding the conduct of transactions of land in the present case. I do not know as to who was authorised to record the minutes of M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 15 of 53 the meeting dated 20.07.2011. It is correct that I have no knowledge regarding attendance of the meeting, circulation of minutes of meeting, etc. I do not know whether the minutes of meeting were formed part of the Director's Report and/or Annual Report or was audited by the Auditors for the purposes of submitting with the ROC in the relevant year. It is correct that I have not placed on record the Director's Report or Annual Report or the Auditor's Report verifying the authenticity of the Board Meeting dated 20.07.2011. " The witness admitted that he was authorized to only sign the documents in regard to purchase of land in question as per Ex. PW1/2.
14. During further cross-examination on 30.01.2023, it was admitted by PW-1 that as per the resolution Ex. PW1/2, the power to enter into any oral agreement was not conferred upon him. PW-1 further admitted that the detailed particulars of the purported oral agreement i.e. the place, time, date, any witness, etc was not mentioned in the plaint or in his evidence affidavit. The witness denied the suggestion that the place, time, date, any witness, etc was not mentioned in the plaint or in evidence affidavit as no such oral agreement was ever entered into by him on behalf of the Plaintiff M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 16 of 53 company with the Defendant. The witness further admitted that no written intimation with regard to the purported oral agreement was given by him to the Plaintiff company. It was denied by PW-1 that the prevailing market rate for the agricultural land in village Jharoda Kalan in the year 2010-11 was about Rs. 1.5 crores per acre.
15. It was further deposed by PW-1 that the NOC was applied by the co-owners of the land. The witness admitted that no written intimation regarding the purchase of the stamp duty for the proposed transaction was ever given by the Plaintiff company to the Defendant. Thereafter, the witness was asked by the Court that did he know that the Defendant could not read or understand English language to which the Defendant answered in affirmative. It was further admitted by the witness that no statement of current account was placed on record.
16. PW-2 Sh. Jitender Bansal and PW-3 Sh. Rajbir were examined and discharged on 17.11.2015. PW-2 had tendered the certificate issued by their Senior Manager as Ex. PW2/1, the statement of account for account no. CBCA/01/000166 in the name of M/s Golden Buildcon Pvt. Ltd for the period 20.07.2011 to 30.09.2011 as Ex. PW2/2 and the statement of account no. CBCA/01/000039 for the M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 17 of 53 period 01.09.2011 to 27.09.2011 was exhibited as Ex. PW2/3.
17. Thereafter, no other witness was examined on behalf of the Plaintiff and PE was closed vide separate statement of AR of Plaintiff company dated 30.01.2023. Matter was proceeded for Defendant's evidence.
18. On 10.07.2023, DW-1 / Defendant Sh. Mukhtiar Singh had tendered his evidence by way of affidavit exhibited as Ex. DW1/A. During his cross-examination, he deposed that the entire 24 bighas parcel of land was joined on the spot and was undivided in the same khata. It was further deposed that all other co-sharers had already sold the land to the Plaintiff company and also handed over the possession thereof to the Plaintiff company. Defendant had deposed that he as well as the other co-sharers had together negotiated the sale of the land in question to the Plaintiff company. The Defendant had admitted that he did not go to the Sub-Registrar office for the execution and registration of sale deed along with other co-sharers.
19. The witness was questioned by the Court as to how many other co-sharers had sold their land to the Plaintiff and as to how much did they receive as sale consideration to which the Defendant answered M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 18 of 53 that there were around 12 co-sharers who sold their portion of land to the Plaintiff but he could not tell about the sale consideration and that he was having 1.5 acre land in his share. The witness had denied the suggestion that the Plaintiff had proposed to pay the entire sale consideration in the legal notice through demand draft / cheque and not through PDCs. The witness could not confirm or deny whether the entire sale consideration of 24 bighas was Rs. 2,70,00,000/-. The Defendant further deposed that he had told the representative of the Plaintiff company Praveen Kumar orally that he was not ready to execute the sale deed at his home. Thereafter, the Defendant / DW-1 was discharged.
20. Thereafter, no steps were taken by the Defendant to summon the remaining Defendant witnesses and therefore, DE was closed vide order dated 07.08.2023 and matter was proceeded for final arguments. CONTENTIONS OF THE PARTIES
21. Final arguments were heard on behalf of the parties. Written submissions were filed on behalf of the Plaintiff along with judgments in Escorts Limited Vs. Sai Autos and Ors (1991) 72 COMPCAS483 (DELHI) dated 20.07.1990; Sughar Singh Vs. Hari Singh in civil M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 19 of 53 appeal no. 5110/21 dated 26.10.2021; Kamal Kumar Vs. Premlata Joshi and Ors in civil appeal no. 4453/2009 dated 07.01.2019; B. Santoshshamma and Anr Vs. D. Sarala and Anr in civil appeal no. 3574/2009 dated 18.09.2020 and Sukhbir Singh and Ors Vs. Brij Pal Singh and Ors AIR 1996 Supreme Court 2510 dated 10.05.1996.
22. Ld. Counsel for Plaintiff has argued that the plaintiff has been able to prove the oral contract between the parties for the sale of the land and has also been able to prove that the plaintiff was completely ready and willing to perform their part of the contract, however, it is the defendant who, for reasons best known to him, refused to come forward for execution of the sale deed.
23. Per contra, Ld. Counsel for Defendant has argued that in cases of oral contract, the burden is very heavy on the plaintiff in a suit for specific performance. He submitted that there was no consensus ad idem between the parties and there was no agreement upon the sale consideration. The acceptance of the advance earnest money does not lead to a conclusion that the defendant had agreed to any sale consideration. He further submitted that the defendant had never agreed to accept sale consideration through post dated cheques and M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 20 of 53 that the same was to be made in cash or through Demand Draft. He further took up the objection that the plaint has not been filed by the duly authorized person and that the resolution placed on record, does not permit the witness, purported AR i.e. PW-1, Parveen, to file the present suit. He submitted that there is no proof that the Company, which is a juridical person, had ever ratified the filing of the suit. He submitted that the present suit has been filed to extort and grab the land of the defendant. He further submitted that no independent witness was produced to prove the contents of the oral contract. He further submitted that the sale consideration cited by the Plaintiff was not close to the actual market value and he cited a sale deed of a similarly placed property that was filed by him during the course of the proceedings. Lastly he submitted that the onus was upon the plaintiff to show that he was ready and willing to perform the contract and no evidence was adduced that the plaintiff was ready to pay the balance sale consideration amount. He submitted that the defendant did not know how to read English and was generally not literate and taking advantage of the said fact, the Plaintiff had filed the present suit with false averments to grab the property of the Defendant. The M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 21 of 53 Learned Counsel cited the judgment of the Hon'ble Kerala High Court in Bhasy v. Thomas & Ors in RSA No 529 of 2015 decided on 07.04.2022 and judgment of the Hon'ble Apex Court in Brij Mohan v. Sugra Begum and Others (1990) 4 SCC 147 to buttress his contentions.
Issue Wise Findings
24. My findings are as follows:-
"Whether the AR of the Plaintiff Mr. Praveen S/o Sh. Jaipal Sharma was properly authorized to file the present suit and whether the present suit is not maintainable? (OPD)"
25. The plaintiff has proved the board resolution dated 27.11.2021 (Ex PW1/13) which states that "Mr Parveen.....be and his hereby authorized to sign, execute, depose..file all applications and other relevant papers, documents, declarations, affidavits, motions, vakalatnama etc and also to represent the Company in relation to CS DJ ADJ/517160/2016 titled M/S Golden Buildcon Pvt Ltd v. Mukhtiar Singh" pending in Dwarka Court..". The defendant has not suggested in any manner or form that the said document is forged and fabricated. M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 22 of 53
26. In 'United Bank of India Vs. Naresh Kumar and Ors. (1996) 6 SCC 660.' the Hon'ble Supreme Court of India has held that such technicalities do not go to the root of the matter and even if the person instituting the suit on behalf of the Corporation had no authority, the Corporation can very well ratify the same post the filing of the suit also. The said dictum clearly applies here. Even if it is assumed that Mr Parveen had no authority to file the suit vide the initial board resolution Ex PW 1/2, the post facto ratification of his actions by the Plaintiff Company is sufficient in and of itself. Therefore, I find that the present plaint has been validly instituted on behalf of the plaintiff corporation under the provisions of Order XXIX of the CPC. The issue is therefore decided against the defendant and in favour of the plaintiff.
(a) Whether the Plaintiff is entitled to the relief of specific performance of the oral agreement? (OPP)
(b) Whether the Plaintiff is entitled to the relief of permanent injunction in respect of the suit property as prayed for? (OPP)
(c) Whether there is no cause of action in favour of the M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 23 of 53 Plaintiff and against the Defendant? (OPD)
27. The aforesaid issues are being decided together, being interconnected. This a suit for specific performance of an oral contract. In Kamal Kumar v. Premlata Joshi, 2019 SCC OnLine SC 12, the Hon'ble Supreme Court of India has held as under:
"....It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the appellant has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the appellant has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed an whether such performance was in conformity with the terms of the contract; Fourth, M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 24 of 53 whether it will be equitable to grant the relief of specific performance to the appellant against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the appellant; and lastly, whether the appellant is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds."
28. Therefore, the first level of analysis in the present case is to arrive at a conclusion as to whether there was a binding contract between the parties. As per the position of law, the Court can pass a decree of specific performance on the basis of an oral agreement, though the terms of the same should be established by cogent evidence. In Brij Mohan And Ors vs Smt. Sugra Begum And Ors 1990 SCC (4) 147 it was observed by the Hon'ble Supreme Court that:
"We agree with the contention of the Learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 25 of 53 of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad-idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement."
29. That being the position, it has to be now considered whether the plaintiff has been able to establish that there was an oral contract for M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 26 of 53 sale of the immovable property. In the written statement it is pleaded by the defendant that "it is submitted that the defendant had entered into the agreement for the sale of his 1/12th share in the land measuring 24 bighas comprising in Khasra Nos 75/1/2(2-8), 2 (14-6), 8 (4-16), 9(4-16),10/1(0-5), 10/2(4-11) & 76/6/2(2-8), total measuring 24 bighas situated in the revenue estate of Village Jharoda Kalan, Tehsil Najafgarh, New Delhi with the plaintiff. The total sale consideration amount was agreed to be the prevailing market rate which was about Rs 1.5 crore per acre. It was further agreed between the parties that the remaining consideration amount shall be paid by the plaintiff to the defendant on or before the registration of the sale deed by way of demand draft or in cash as preferred by the defendant." Therefore, it is admitted by the defendant that he did enter into an agreement for sale but he disputes the sale consideration as averred by the plaintiff, and also the mode of payment agreed upon by the parties.
30. Since there is no agreement in writing, the Court has to arrive at a finding on basis of surrounding circumstances and the corroborative evidences adduced by the parties.
M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 27 of 53
31. The following facts have to be taken into consideration:-
(i) the agreement for sale was of 24 bighas of the suit property which was admittedly a joint property in which as many as 12 persons were having a share, including the defendant. During cross examination, the defendant deposed that "regarding the agricultural land admeasuring 24 bighas, oral agreement for the sale to the plaintiff company was entered into by me and my two real brothers, two first cousins beside other co-sharers of the land. The entire 24 bighas parcel of land is joint on the spot and is undivided in the same khata......all other co-
sharers have already sold the land to the plaintiff company.......me as well as the other co-sharers had together negotiated the sale of the land in question to the plaintiff company....".
(ii) the other 11 co-sharers did in fact sell their portion of the land to the plaintiff. This is the undisputed factual position, the best evidence of which is the registered sale deed proved by the plaintiff witness as Ex PW1/6 dated 26.09.2011. The contents of the sale deed may be noticed here. The total sale consideration noted is 2,47,50,000 for land measuring 22 bighas. The same shows the acknowledgment of earlier earnest money of Rs 1,50,000 by each of the vendors and also receipt M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 28 of 53 of part payment through demand draft and acceptance of Post Dated Cheques for remaining balance sale consideration.
(iii) the defendant also admittedly accepted the amount of Rs 1,50,000 by way of cheque dated 20.07.2011 as averred by the Plaintiff. In fact during cross examination he also deposed that he accepted a further amount of Rs 50,000 by way of cash.
(iv) it is also proved by the evidence on record that the plaintiff, defendant and other co-sharers applied for and obtained an NOC from the Deputy Commissioner (South West) Kapashera dated 24.09.2011 (Ex PW 1/5).
32. It is to be kept in mind that civil cases are decided on the preponderance of probabilities and not on a standard of proof beyond reasonable doubt which is applicable to the criminal jurisprudence. I find the plaintiff's version of the facts and circumstances to be more believable and convincing taking into account the fact that:
(i) the defendant was not the only one involved in the negotiation nor was he excluded from the same. He admits entering into an agreement with the plaintiff along with other co-sharers. He admits that he was involved in the negotiations;
M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 29 of 53
(ii) the defendant along with all the numerous co-sharers accepted the sum of Rs 1,50,000 as earnest money on 20.07.2011;
(iii) no demur over the final sale consideration was averred to be raised by the defendant prior to the application for the NOC before the concerned authority and more than 2 months elapsed since the acceptance of the earnest money and the obtaining and issuance of the NOC;
(iv) pertinently soon after the receipt of NOC on 24.09.2011, the remaining co-sharers executed the sale deed only two days later on 26.09.2011 for the sum of money cited by the plaintiff minus of course the share of the defendant as he did not come forward to execute the sale deed. The sale deed shows that the final consideration and land measurement were in fact altered to adjust to the new figures due to the defendant's refusal to execute the sale deed;
(v) the land was joint piece of agricultural land and it appears that the defendant and co-sharers were all involved in entering the contract for sale. It is improbable that the defendant would have been unaware about the final sale consideration, while the other co-sharers would have been fully cognizant of the same;
M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 30 of 53
(vi) the defendant claims that the market value was Rs 1.5 crores per acre which would mean that his piece of land being around 2 bighas would be valued at Rs 1.75 Crores approximately. It is improbable that the defendant would accept the measly amount of Rs 1,50,000 as earnest money if the final value of his share was so enormous. It is also improbable that the other co-sharers would have done the same. It is also even more improbable that they would have sold their land for a value which is much less than the value claimed by the Defendant. The Court has to take into account the ordinary course of human conduct. It is unbelievable that the remaining co-sharers would have under valued and then sold their property for much lesser amount.
(vii) the defendant, pertinently, nowhere in his pleadings in fact outlined the exact sale consideration that as per him had been agreed upon by the parties. He merely states that the market value is Rs 1.5 Crore per acre. This further shows his case and testimony to be unreliable and untrustworthy. A man who accepts earnest money can be expected to at least know the exact sale consideration that his land is to be sold for. The fact that the defendant does not mention the exact sale consideration to which he purportedly agreed to leads the court to M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 31 of 53 draw an adverse inference as against him;
(viii) during the cross examination, the defendant deposed that " there were around 12 co-sharers who sold their portion of land to the plaintiff but I cannot tell about the sale consideration. I am having 1.5 acre land in my share....I cannot confirm or deny whether the entire sale consideration of 24 bighas was Rs 2,70,00,000....". It is simply incredible that the defendant would be unaware about such things as he claims to be. His testimony does not have the ring of truth and has cannot be safely relied upon;
(ix) on the other hand, the version of the plaintiff company has remained consistent and the sale deed Ex PW 1/6, in fact, corroborates their version of events.
(x) the defendant has not been able to prove by producing any witness that the payment of the balance by way of demand draft or cash was an essential term of the agreement. The fact that the defendant did not summon any of the other co-sharers to depose to this effect even though as per his own statement the agreement was negotiated by all of them jointly goes against him.
33. Therefore, I find that the plaintiff and defendant had entered M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 32 of 53 into a valid oral agreement for sale, that the sale consideration was agreed upon as pleaded by the plaintiff and there was no uncertainty about the same.
34. The next level of analysis is whether the plaintiff was ready and willing to perform his portion of the agreement.
35. In J.P. Builders and Another Vs. A. Ramadas Rao and Another, (2011) 1 Supreme Court Cases 429, Hon'ble Supreme Court has observed as under:
"Readiness and willingness
20. Section 16 of the Specific Relief Act, 1963 provides for personal bars to relief. This provision states that:
"16. Personal bars to relief-Specific performance of a contract cannot be enforced in favour of a person-
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 33 of 53 subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation-For the purposes of clause (c),-
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
21. Among the three clauses, we are more concerned about clause (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 M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 34 of 53 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.
22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. 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.
23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao at SCC para 5, this Court held: (SCC pp. 117-18) "5... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 35 of 53 been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 36 of 53 conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
24. In P.D'Souza v. Shondrilo Naidu this Court observed: (SCC p. 654, paras 19 and 21) "19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf.....
21.... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."
25. Section 16(c) of the Specific Relief Act, 1963 M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 37 of 53 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non- compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 38 of 53 other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
36. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526 wherein it was observed as under:
"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 39 of 53 to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was no ready no capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bit for the time which disentitles him as time is the essence of the contract."
37. Here we may appreciate the fact that :
(i) the agreement was entered into between the plaintiff and defendant plus 12 other co-sharers for the same piece of land;
(ii) the plaintiff did in fact enter into the sale deed with the other co-sharers and pay the balance sale consideration to them vide M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 40 of 53 various cheques and demand drafts;
(iii) that a similar Demand draft and cheque were also prepared by the plaintiff in favour of the defendant, being Ex PW 1/9.
38. The popular english proverb says that "the proof is in the pudding". The fact that the Plaintiff promised and then followed up on their promises qua the other co-sharers and paid them the balance sale consideration shows that the plaintiff was ready and willing to perform their portion of the contract. No reason has been shown by the defendant as to why the plaintiff would have singled out the defendant and not come forward to pay the balance sale consideration to him. Therefore, I find that the plaintiff has been able to prove that he was ready and willing to perform his part of the contract.
39. The next level of analysis requires that it be considered whether it is equitable that the court grant the relief of specific performance.
40. The Specific Relief Act, 1963 as it was before the Amending Act of 2018 gave the Court the discretion on basis of equity to grant or refuse the relief of specific performance. Here we may advert to the provisions of Section 20 of the Act as applicable to the present M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 41 of 53 dispute:-
"20. Discretion as to decreeing specific performance.--(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 42 of 53
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation I.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation II.--The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff, subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 43 of 53 (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party."
41. The Hon'ble Supreme Court in the judgment of Jayakantham v. Abaykumar, (2017) 5 SCC 178, has observed as hereunder:-
"7. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is "sound and reasonable", to be "guided by judicial principles". The exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts. Sub- section (2) of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 44 of 53 grant specific performance. Sub-section (2) of Section 20 is in the following terms:
"20. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance."
8. However, Explanation 1 stipulates that the mere inadequacy of consideration, or the mere fact that the M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 45 of 53 contract is onerous to the defendant or improvident in its nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Moreover, Explanation 2 requires that the issue as to whether the performance of a contract involves hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract.
9. The precedent on the subject is elucidated below:
9.1. In Parakunnan Veetill Joseph's Son Mathew v.
Nedumbara Kuruvila's Son [Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son, 1987 Supp SCC 340 : AIR 1987 SC 2328], this Court held that : (SCC p. 345, para 14) "14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 46 of 53 to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
9.2. A similar view was adopted by this Court in Sardar Singh v. Krishna Devi [Sardar Singh v. Krishna Devi, (1994) 4 SCC 18] : (SCC p. 26, para 14) "14. ... Section 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief, merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 47 of 53 the respective interest under the contract."
9.3. Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd. [K. Narendra v. Riviera Apartments (P) Ltd., (1999) 5 SCC 77], this Court held thus : (SCC p. 91, para 29) "29. ... Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy [Lourdu Mari David v. Louis M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 48 of 53 Chinnaya Arogiaswamy, (1996) 5 SCC 589] by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court." 9.4. These principles were followed by this Court in A.C. Arulappan v. Ahalya Naik [A.C. Arulappan v. Ahalya Naik, (2001) 6 SCC 600], with the following observations : (SCC pp. 604 & 606, paras 7 & 15) "7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 49 of 53 the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff. ***
15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court. ..."
9.5. A Bench of three Judges of this Court considered the position in Nirmala Anand v. Advent Corpn. (P) Ltd. [Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 8 SCC 146], and held thus : (SCC p. 150, para 6) "6. It is true that grant of decree of specific performance M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 50 of 53 lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 51 of 53 considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."
42. Here, it may be seen that the Defendant has not been able to prove his case, whereas the plaintiff has proved their case. The plaintiff has purchased and is in possession of the remaining piece of land and it is only the defendant's portion that was not sold to them. It has been proved that the plaintiff had entered into the agreement for the purchase of the entire piece of land including the defendant's share and it must have been in their contemplation that they would get possession of the entire land. The plaintiff lost no time in approaching the Court, the suit having been filed on 08.02.2024. I therefore find that the plaintiff is entitled to a decree of specific performance. However, in an effort to balance the equities and to not be unduly harsh to the defendant, the Court can ask the plaintiff to pay an extra M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 52 of 53 sum of money beyond that which was agreed upon. Though the balance to be paid to the Defendant was 21,00,000, taking into account the galloping prices of real estate and the fact that the prices have appreciated as much as by 50-60 percent, the Plaintiff shall have the right to get the sale deed executed in their favour on payment of Rs 52,00,000 to the defendant.
43. In light of the foregoing, the issues are decided against the defendant and in favour of the plaintiff.
RELIEF
44. In view of the aforesaid discussion, the suit of the Plaintiff is decreed for the following reliefs:
(a) a decree of specific performance in favour of the plaintiff and against the defendant, whereby the defendant shall execute the sale deed on receiving the balance sum of Rs 52,00,000 which shall be paid by the plaintiff, the defendant shall assist in obtaining the NOC and other permissions as required for executing the sale deed;
(b) the defendant shall be permanently injuncted from dealing with the suit property otherwise than in accordance with the present judgment and order.
M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh CS DJ ADJ 17160/16 Page 53 of 53
45. Parties to bear their own costs. Decree sheet be prepared accordingly.
46. File be consigned to Record Room after due compliance. Digitally signed
DIVYANG by DIVYANG THAKUR THAKUR Date: 2024.10.21 16:32:12 +0530 Announced in the open court (Sh. Divyang Thakur) On 21.10.2024 DJ-03/South West Dwarka / New Delhi M/s Golden Buildcon Pvt. Ltd. Vs. Sh. Mukhtiar Singh