Delhi District Court
Savita Bhatia vs Ms Sheena Company on 17 January, 2025
1
Suit No. 16803/2016
Suit No. 16756/2016
IN THE COURT OF SH. DIVYANG THAKUR, LD. DJ-03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suits No: 16803/2016 and 16756/2016
CNR Nos. : DLSW01-000141-2011 and DLSW01-000468-2013
Memo of Parties in CS No. 16803/2016
1. M/s Sheena and Company (Firm)
Through its Partner
Smt. Meera Batra W/o Sh. Arun Batra
R/o E-20, Defence Colony, New Delhi
2. Smt. Neena Paruthi
W/o Sh. Suresh Paruthi
R/o Z-32, Hauz Khas,
New Delhi
3. Smt. Anju Grover
W/o Sh. Sanjay Grover
R/o B-5, Housing Society
N.D.S.E. Part I
New Delhi
........Plaintiffs
Versus
1. Smt. Savita Bhatia, Widow
2. Mr. Abhishek Bhatia, Son
3. Miss Chetsa Bhatia, Daughter
Legal heirs of late Sh. Rajeev Bhatia
R/o Back portion, 2nd floor flat,
(front terrace above 2nd floor)
81, Poorvi Marg, Vasant Vihar, New Delhi
.........Defendants
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
2
Suit No. 16803/2016
Suit No. 16756/2016
Memo of Parties in CS No. 16756/2016
1. Smt. Savita Bhatia, Widow
2. Mr. Abhishek Bhatia, Son
3. Miss Chetsa Bhatia, Daughter
Legal heirs of late Sh. Rajeev Bhatia
R/o Back portion, 2nd floor flat,
(front terrace above 2nd floor)
81, Poorvi Marg, Vasant Vihar, New Delhi
.........Plaintiffs
Versus
1. M/s Sheena and Company ( A Partnership Firm)
E-20, Defence Colony, New Delhi
2. Smt. Neena Paruthi
W/o Sh. Suresh Paruthi
R/o Z-32, Hauz Khas,
New Delhi
3. Smt. Anju Grover
W/o Sh. Sanjay Grover
R/o B-5, Housing Society
N.D.S.E. Part I
New Delhi
4. Mrs. Meera Batra
W/o Mr. Arun Batra
R/o E-20, Defence Colony, New Delhi
5. Mrs. Veena Chaudhary
W/o Mr. Vinod Chaudhary
R/o B-5, Housing Society,
N.D.S.E. Part 1, New Delhi
.........Defendants
Date Of Institution: 06.07.2011 / 03.01.2013
Date Of Final Arguments: 08.10.2024
Date Of Decision: 17.01.2025
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
3
Suit No. 16803/2016
Suit No. 16756/2016
Suit For Possession Of Immovable Property, Eviction,
Compensation And Recovery Of Mesne Profits With Interest /
Suit For Specific Performance And Permanent Injunction
JUDGMENT
BRIEF BACKGROUND OF THE LITIGATION
1. Vide present common judgment, I would decide two suits namely suit filed by M/s Sheena Company against Smt. Savita Bhatia which was originally filed before the Ld. Additional District Judge, Dwarka Courts and numbered as suit no. 232/2011 and titled as 'M/s Sheena Company Vs. Savita Bhatia and Anr.' and the suit filed by Smt. Savita Bhatia against M/s Sheena Company which was also originally filed before the Ld. Additional District Judge, Dwarka Courts and numbered as CS 04/2013 and titled as 'Smt. Savita Bhatia and Ors. Vs. M/s Sheena Company and Ors.' Thereafter, to avoid the possibility of conflicting findings, both the suits were clubbed and tried together. Thereafter, both the suits have been tried in accordance with law and the said trial has resulted in the present common judgment in both the suits.
2. To avoid confusion and for the sake of clarity, the parties have been referred to by their name throughout the present Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 4 Suit No. 16803/2016 Suit No. 16756/2016 judgment.
Plaint Of The Civil Suit 16803/2016
3. The Plaintiffs have filed the present suit against the Defendants seeking (a) a decree of eviction with respect to the premises being (i) back portion, 2 nd floor flat and (ii) front side terrace above 2nd floor of building no. 81, Poorvi Marg, Vasant Vihar, New Delhi; (b) a decree for payment of compensation of Rs. 5,00,000/- and unpaid arrears of three years mesne profits of Rs. 7,20,000/- and (c) temporary injunction with respect to the aforesaid premises and (d) costs of the suit.
4. In the plaint of this suit, the Plaintiff has pleaded that the Plaintiffs are the owners of immovable property i.e. 2 nd floor (back portion) flat + front terrace (above 2 nd floor) of building at 81, Poorvi Marg, Vasant Vihar, New Delhi. It is submitted that there was an oral agreement of tenancy dated 15.05.1993 between late Sh. Rajeev Bhatia and the Plaintiff firm M/s Sheena and Co. through Smt. Meera Batra, Partner, executed in the present of her father-in-law Sh. K.L. Batra for a period of three years on rent at the rate of Rs. 4,000/- per month. It is further submitted that Sh. K.L. Batra and late Sh. Rajeev Bhatia used to be close friends and that the Plaintiffs had given the vacant, Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 5 Suit No. 16803/2016 Suit No. 16756/2016 peaceful and physical possession of the said premises to late Sh. Rajeev Bhatia who had paid the rent for three years, month to month, though irregularly and thereafter, the monthly rent for two portions was increased to Rs. 6,000/- from 15.05.1996. It is further submitted that late Sh. Rajeev Bhatia had paid Rs. 10,000/- in cash and Rs. 50,000/- vide pay order no. 463699 dated 05.05.1993 drawn on Syndicate Bank, Punjabi Bagh, New Delhi as security deposit to the Plaintiffs. It is alleged that late Sh. Rajeev Bhatia did not pay the rent after 31.03.2002 and defaulted due to his serious illness. It is further submitted that Sh. K.L. Batra had very good friendly relations with late Sh. Rajeev Bhatia and had even given a loan of Rs. 12,00,000/- to Sh. Rajeev Bhatia as a friendly loan on 18.05.1993 as per the receipt issued by late Sh. Rajeev Bhatia in the presence of two witnesses for his business purpose which loan was neither repaid nor any interest was paid on the said amount as promised.
5. It is further submitted that late Sh. Rajeev Bhatia had legally carried out construction once on the open terrace which was demolished by the MCD but in the year 2007, again carried out construction on the open terrace without the knowledge of the Plaintiffs and a number of meetings were held in this regard Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 6 Suit No. 16803/2016 Suit No. 16756/2016 between Sh. K.L. Batra and late Sh. Rajeev Bhatia in the years 2007 and 2008 for getting the said flat. Thereafter, the Plaintiff no. 1 had sent a legal notice dated 30.12.2009 for vacating the two said portions and for misuse of premises to Sh. Rajeev Bhatia and his wife Smt. Savita Bhatia to which reply dated 05.01.2010 was received by the Plaintiff no. 1 wherein it was claimed that Smt. Meena Batra, partner of the Plaintiff no. 1 firm had entered into an agreement to sell dated 08.05.1993 for the rear side second floor of the flat and the front side terrace above the second floor with Sh. Rajeev Bhatia and Smt. Savita Bhatia and the possession thereof was allegedly given on receipt of substantial part of sale consideration and it was also claimed that Sh. Rajeev Bhatia and Smt. Savita Bhatia got the mutation in respect of the subject portions with the MCD. It is alleged that Plaintiffs have no knowledge of such mutation and there is no evidence of ownership or any title.
6. Thereafter, it is averred that Plaintiff no. 1 had sent a letter dated 12.01.2010 to the Defendants, however, there was no response from the Defendants to the said letter and in the meanwhile, Sh. Rajeev Bhatia had expired on 25.04.2010. Plaintiff has further averred that thereafter, two notices dated Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 7 Suit No. 16803/2016 Suit No. 16756/2016 12.11.2010 and 25.01.2011 were sent to the Defendants for vacating the two portions in question and to pay the damages/mesne profits, but no reply was received by the Defendants to the said notices also. Subsequently, Plaintiff had issued legal notice to the Defendants dated 20.04.2011 under Section 106 of the Transfer of Property Act, 1882 but no reply was sent by the Defendants to the Plaintiff. Aggrieved, Plaintiff filed the present suit for possession of immovable property, eviction of unlawful occupants, compensation and recovery of mesne profits along with interest before the Court. Plaint of the Civil Suit 16756/2016
7. The Plaintiffs have filed the present suit against the Defendants seeking (a) a decree of specific performance of the agreement to sell dated 18.05.1993 against Defendant no. 1 with respect to the rear side of the second floor and front side terrace above the front side flat on the second floor of the property bearing no. 81, Poorvi Marg, Vasant Vihar, New Delhi or in the alternative, a decree of mandatory injunction with respect to the aforesaid suit property; (b) a decree of permanent injunction with respect to the aforesaid suit property; (c) a decree of declaration thereby declaring the Plaintiffs as the owners of the suit property Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 8 Suit No. 16803/2016 Suit No. 16756/2016 and (d) costs of the suit.
8. In the plaint of this suit, the Plaintiffs have pleaded that the Plaintiff no. 1 is the widow of late Sh. Rajiv Bhatia who had expired on 25.04.2010 and the Plaintiffs no. 2 and 3 are the son and daughter of Plaintiff no. 1 and late Sh. Rajiv Bhatia and all are residents of 81, Poorvi Marg (back portion of second floor and front terrace above second floor). It is further submitted that Defendant Sheena and Company is a partnership firm and the Defendants no. 2 to 5 are the partners in Defendant no. 1 company. It is further submitted that the Plaintiffs are the owners of rear side second floor flat and the front side terrace above the front side flat on the second floor of the aforesaid suit property along with 15% of the undivided, indivisible and impartible lease hold rights in the land underneath as the same was purchased by Sh. Rajeev Bhatia and the Plaintiff no. 1 from the Defendant no. 1 vide an agreement to sell dated 08.05.1993. It is further averred that the Plaintiffs have also been in continuous, uninterrupted and assertive possession of the suit property with Plaintiff no. 1 and Sh. Rajeev Bhatia being the owners of the same. It is also submitted that the Defendant no. 1 was the owner of property no. 81, Poorvi Marg, Vasant Vihar, New Delhi vide an agreement to Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 9 Suit No. 16803/2016 Suit No. 16756/2016 sell dated 01.05.1980, purchased from Sh. Jagan Nath Endlaw who had purchased the same vide sub-lease dated 11.01.1972 registered at serial no. 5196 in Addl. Book no. 1, Vol. No. 2952 at pages 8 to 14 in the office of the Sub-Registrar, New Delhi.
9. It is alleged that the Defendant no. 4 who is a partner in Defendant no. 1 company had claimed that Defendant no. 1 is the owner of the aforesaid suit property and had also entered into an agreement to sell dated 08.05.1993 with Sh. Rajeev Bhatia and Plaintiff no. 1, thereby selling the suit property to Sh. Rajeev Bhatia and Plaintiff no. 1 for a total sale consideration of Rs. 1,00,000/-, out of which Rs. 60,000/- was paid at the time of execution of the agreement to sell vide receipt dated 08.05.1993 and the remaining amount of Rs. 40,000/- was to be paid at the time of handing over of vacant physical possession of the said front floor unit on the second floor or by 07.05.1995 whichever was later and further, in case of delay in the payment of Rs. 40,000/-, an amount of Rs. 1,000/- per month was to be paid as interest by late Sh. Rajeev Bhatia and Plaintiff no. 1. It is further averred that thereafter, possession letter was executed by Defendant no. 1 through its partner Defendant no. 4 and that thereafter, Plaintiffs were in continuous and actual physical Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 10 Suit No. 16803/2016 Suit No. 16756/2016 possession of the suit property.
10. It is further submitted that Defendant no. 1 had also executed a GPA through its partner in favour of Sh. Hitesh Narula (i.e. real brother of Plaintiff no. 1) authorizing the said attorney to even sell the suit property and execute sale deed and a Will was also executed by Defendant no. 4 bequeathing the suit property to the Plaintiff no. 1 and late Sh. Rajeev Bhatia. It is thereafter, submitted that late Sh. Rajeev Bhatia and Plaintiff no. 1 got the said portions of the suit property mutated in their names in the records of the MCD in favour of late Sh. Rajeev Bhatia and Plaintiff no. 1 being the owners/lawful occupants of the said portion of the suit property.
11. It is alleged that in the month of January, 2010, late Sh. Rajeev Bhatia and Plaintiff no. 1 had received a legal notice for eviction dated 30.12.2009 sent on behalf of Defendant no. 1 through its partner Smt. Meera Batra (Defendant no. 4). It is submitted that the said legal notice was duly replied by the Plaintiffs dated 05.01.2010 and reply dated 12.01.2010 was sent by the Defendant no. 1 to the reply dated 05.01.2010. It is alleged that thereafter, Defendant no. 1 had filed a suit for possession, eviction and compensation against the Plaintiffs titled as M/s Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 11 Suit No. 16803/2016 Suit No. 16756/2016 Sheena and Company Vs. Smt. Savita Bhatia and Ors bearing suit no. 232/2011 before the Court of Ld. ADJ, Dwarka Courts, New Delhi. It is alleged that the Defendant no. 1 had changed its stand and given contradictory averments time and again and had stated that both late Sh. Rajiv Bhatia and the Plaintiff no. 1 were tenants but of only the back portion flat on the second floor but in the notice dated 22.04.2011, the Defendant no. 1 had adopted the stand that there was an oral tenancy only between late Sh. Rajiv Bhatia and Defendant no. 1 with respect to both the second floor flat and also the open front terrace above the second floor. Aggrieved, Plaintiffs have filed the suit for specific performance and permanent injunction against the Defendants. Written Statement, Replication, Admission-Denial Of Documents And Framing Of Issues (Suit filed by Sheena Company against Savita Bhatia and Ors bearing CS No. 16803/16)
12. A perusal of the Court file reveals that the summons for settlement of issues along with notice of the application under Order XXXIX R 1 and 2 of CPC were issued qua the Defendants on 06.07.2011 and thereafter, reply to the application under Order XXXIX R 1 and 2 of CPC and Written Statement were filed by the Defendants to which Replication was also filed by the Plaintiffs. Thereafter, an application under Order VI R 17 of CPC Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 12 Suit No. 16803/2016 Suit No. 16756/2016 was filed on behalf of the Plaintiff to which reply was filed by the Defendants along with an application under Order VII R 14(3) read with Section 151 of CPC. The said application under Order VII R 14(3) of CPC was allowed subject to payment of cost and the requisite documents were taken on record. Thereafter, application under Order VI R 17 of CPC was allowed vide order dated 24.05.2012 subject to payment of cost and amended plaint and memo of parties were also taken on record. Amended WS to the amended plaint was filed by the Defendants and in the meanwhile, Defendants had filed a petition before the Hon'ble High Court of Delhi against the order dated 24.05.2012 to which notice was issued and further proceedings were stayed by the Hon'ble High Court. However, the said petition was dismissed by the Hon'ble High Court of Delhi as not pressed vide order dated 03.11.2014. Thereafter, matter was proceeded for framing of issues.
13. In the WS filed by the Defendants, it is submitted that Smt. Meera Batra (partner of the Plaintiff firm) is the owner of property no. 81, Poorvi Marg, Vasant Vihar, New Delhi and had entered into an agreement to sell dated 08.05.1993 with respect to the rear side second floor flat and the front side terrace above Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 13 Suit No. 16803/2016 Suit No. 16756/2016 the front side flat on the second floor of the aforesaid property executed between Sh. Rajeev Bhatia (deceased husband of Defendant no. 1 and the father of Defendants no. 2 and 3) and Defendant no. 1 and the possession thereof, on receipt of substantial part of sale consideration, was also handed over to Sh. Rajeev Bhatia and Defendant no. 1. It is further submitted that under the said agreement, full ownership rights were given to Sh. Rajeev Bhatia and Defendant no. 1 to construct or re-construct the said portion and also to alienate the same. It is further submitted that the aforesaid property is a lease hold property. It is further submitted that the Defendants are in possession of the suit property and occupying the suit property as the owners thereof since May 1993. Relevant paragraph of the 'Brief Facts' of the WS is extracted herein:
"C. This it is also pertinent to mention that under Agreement to sell dated 08th May 1993 it was mentioned that if the second floor front side flat is vacated by the then existing tenant within the period of two years, then Shri Rajeev Bhatia and the defendant no. 1 shall hand over the possession of the 2 nd floor rear side flat, and take possession of the front side portion flat on the 2 nd floor, however, since the tenant of the front side flat of the 2 nd floor did Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 14 Suit No. 16803/2016 Suit No. 16756/2016 not vacate the same, the agreement remained in respect to the rear side flat of the 2nd floor and front side terrace above the front side flat of the 2nd floor and Shri Rajeev Bhatia and the defendant no. 1 have since continued in possession of the same as owner thereof. That the relevant clauses of the Agreement to Sell are also reproduced herein-below:-
That the relevant clauses/portions of the said Agreement to Sell are reproduced hereunder for the ready reference of this Hon'ble Court:-
"As whereas in the eventuality of the said front portion flat on the second floor presently tenanted to Mr. Chakorvarty is relate to another flat (back portion on the same floor which is being handed over to the vendee in lieu of front portion flat) of which confirming party No. 2, become owner of the said units on dissolution of the partnership deed and since there is no dissolution hence no money is to be received by her and thus it has authorized vendor to sell and convey the said flat at the back portion on second floor. In case the front portion flat on the second floor is vacated by Mr. Chakorvarty in the stipulated period the vendee will take possession of the same and handover the possession of back portion flat on the second floor back to Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 15 Suit No. 16803/2016 Suit No. 16756/2016 Vendor."
"2. The vendor authorise the vendee to utilize the above properties in any manner for residential purpose as it likes whether to keep it or disposed off or assign the rights in it and construct, re-construct and then sell off, the said possession shall be part performance of the contract."
"5. That the vendee will be entitled to common rights, common facilities, easements, hereditments attached to the said unit."
"The transaction relating to the terrace on the top of the second floor front portion will not be affected whether the front portion flat is sold or back portion is sold, as it is an independent unit, the possession of the terrace has already been handed over to the Vendee. The above said units are all detailed and described here under."
"And whereas the Vendor has agreed to sell and the Vendee has agreed to purchase all that unit detail and described in the description of the units with undivided, indivisible and impartible 15% lease hold rights in the land underneath and the vendee has agreed to purchase the same and confirming parties have agreed to confirm the sale."
Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 16 Suit No. 16803/2016 Suit No. 16756/2016 "Rs. 40,000/- (Rupees Forty Thousand Only) to be paid against the handing over of vacant physical possession of the said front floor unit (presently occupied by Mr. Chakorbarty) on the second floor, or by 7th May 1995 whichever is later. The Vendee will pay a sum of Rs. 1,000/- (Rupees One Thousand Only) per month as interest against the said outstanding amount.""
14. It is further submitted by the Defendants in their WS that Sh. Rajeev Bhatia and Defendant no. 1 got the said portions of the suit property mutated in their names in the records of the MCD in the year 1994 and the said mutation and assessment of house tax was done by MCD in favour of Sh. Rajeev Bhatia and Defendant no. 1 being the owners of the said portions of the suit property.
15. It is alleged by the Defendants that the suit of the Plaintiff is not maintainable and is liable to be dismissed on the ground that the Plaintiff, through its partner Smt. Meera Batra W/o Sh. Arun Batra, had sold the suit property to late Sh. Rajiv Bhatia and Defendant no. 1 vide agreement to sell dated 08.05.1993. It is further stated by the Defendants that only an amount of Rs. 40,000/- remained to be paid by the Defendants and late Sh. Rajiv Bhatia was ready and willing to pay the same, however, Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 17 Suit No. 16803/2016 Suit No. 16756/2016 Plaintiff had refused to accept the same. It is further alleged that the suit of the Plaintiff is based on a false and fabricated story and is liable to be dismissed. It is further alleged that the suit of the Plaintiff is time barred and is also barred by limitation. It is also alleged that admittedly, the mutation of the suit property took place in the year 2004 itself and that the Plaintiff, while alleging itself to be the owner of the property in question, did not check for years as to how and by whom the property tax was being paid and this would clearly reveal the falsity of the case filed by the Plaintiff. It is also alleged that the Plaintiff had admitted that late Sh. Rajiv Bhatia had stopped paying the rent since the year 1992, whereas, the present suit was filed in the year 2011 and the same is completely unbelievable that the owner of a rented premises would not bother to file any proceeding against the tenant who had not paid the rent for nine years and therefore, the present suit is liable to be dismissed on the ground of limitation. It is alleged that the suit of the Plaintiff is liable to be dismissed also on the ground that the same is contrary to the provisions of Sections 91 and 92 of the Indian Evidence Act as the Plaintiff is barred from taking any plea or to lead evidence to contradict the terms of the Agreement to Sell. Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 18 Suit No. 16803/2016 Suit No. 16756/2016
16. It is further alleged that the Plaintiff had adopted contradictory stands at different times in the suit. It is submitted that in the notice dated 30.12.2009, the Plaintiff had alleged that the Defendant no. 1 and late Sh. Rajiv Bhatia had been in unauthorized occupation of terrace on top of the second floor of the property in question for the last two years and further alleged that the Defendant no. 1 and late Sh. Rajiv Bhatia were trespassers and complete strangers to the Plaintiff. Whereas, in the notice dated 12.11.2010, the Plaintiff had stated that both late Sh. Rajiv Bhatia and Defendant no. 1 were tenants but of only the back portion flat on the second floor and then thereafter, in the notice dated 22.04.2011, the Plaintiff had adopted the stand that there was an oral tenancy only between late Sh. Rajiv Bhatia and the Plaintiff and the same was with respect to both the second floor flat and also the open front terrace above the second floor.
17. It is further alleged that the Plaintiff had also changed his averments with regard to the ownership of the suit property. It is alleged by the Defendants that there is no prima facie case in favour of the Plaintiff. The Defendants further allege that the present suit of the Plaintiff is barred by the provisions of Section Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 19 Suit No. 16803/2016 Suit No. 16756/2016 69 (2) of the Indian Partnership Act, 1932 which specifically bars filing of the suit by an unregistered partnership firm. It is also alleged that the alleged partnership deed is forged and fabricated and was filed at a belated stage. It is further alleged that the averments made by the Plaintiff with respect to the ownership are completely contrary to the substantial law of the land.
18. In the Rejoinder, Plaintiff has denied the averments of the Defendants and reiterated the contents of the plaint. It is alleged that the Defendants had approbated and reprobated in their self contradictory defence in their written statement and the agreement to sell is merely farce and is of no legal consequence.
19. On the basis of pleadings, following issues were framed on 07.07.2015:
(a) Whether the suit is maintainable as framed and presented before the Court? (OPP)
(b) Whether the suit is barred under any provisions of law;
provisions of CPC in general and the provisions of Specific Relief Act, in particular? (OPD)
(c) Whether the plaintiffs are entitled to a decree of eviction and possession of said premises being (i) back portion, 2 nd floor flat and (ii) front side terrace above 2nd floor of plaintiffs own Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 20 Suit No. 16803/2016 Suit No. 16756/2016 building at no. 81, Poorvi Marg, Vasant Vihar, New Delhi against the defendants? (OPP)
(d) Whether the plaintiffs are entitled to a decree of compensation of Rs. 12,20,000/- against the defendants as claimed for? (OPP)
(e) Whether the plaintiffs are entitled to a decree of temporary injunction against the defendants? (OPP)
(f) Relief.
20. No other issue arose or was pressed for. Issues no. (a) and
(b) were treated as preliminary issues and were to be decided along with the injunction application. Matter was thereafter, proceeded for arguments on the preliminary issues as well as arguments on the injunction application. Thereafter, all the parties were restrained to create any third party right, title or interest with respect to the suit property i.e. back portion, 2 nd floor flat, front side terrace above 2nd floor at No. 81, Poorvi Marg, Vasant Vihar, New Delhi vide order dated 09.05.2016 and the suit was transferred to the Court where the trial of the connected suit was pending and matter was fixed for arguments on the preliminary issues. Thereafter, Ld. Court held that the preliminary issues were to be taken up for disposal along with the Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 21 Suit No. 16803/2016 Suit No. 16756/2016 remaining issues vide order dated 09.01.2017 and matter was therefore, proceeded for Plaintiff's evidence. An application under Order VII R 14 of CPC was thereafter, filed on behalf of the Plaintiff. However, vide order dated 25.08.2017, connected suit i.e. CS No. 16756/16 titled 'Savita Bhatia Vs. M/s Sheena Company' was clubbed with the present suit and the present suit was considered as the main suit as the same was instituted earlier than the connected suit.
21. Arguments were heard on the application under Order VII R 14 of CPC moved by the Plaintiff to which reply was duly filed by the Defendants. Thereafter, vide order dated 25.08.2017, Plaintiff's application under Order VII R 14 of CPC was allowed subject to payment of cost and subsequently, an application under Order VI R 17 of CPC was filed by the Defendants along with amended written statement. On the same date, arguments were also heard on the aforesaid application under Order VI R 17 of CPC which was also allowed subject to payment of cost. Subsequently, additional issue was required to be framed and accordingly, the issues were re-framed vide order dated 07.07.2015 as under:-
1. Whether the suit is maintainable as framed and presented Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 22 Suit No. 16803/2016 Suit No. 16756/2016 before the Court? (OPP)
2. Whether the suit is barred under any provision of law;
provisions of CPC in general and the provisions of Specific Relief Act, in particular? (OPD)
3. Whether suit of the plaintiffs is barred under Section 53A of the Transfer of the Properties Act? (OPD)
4. Whether the plaintiffs are entitled to a decree of eviction and possession of said premises being (i) back portion, 2 nd floor flat and (ii) front side terrace above 2 nd floor of plaintiff's own building at no. 81, Poorvi Marg, Vasant Vihar, New Delhi against the defendants? (OPP)
5. Whether the plaintiffs are entitled to a decree of compensation of Rs. 12,20,000/- against the defendants as claimed for? (OPP)
6. Whether the plaintiffs are entitled to a decree of temporary injunction against the defendants? (OPP)
7. Relief.
No other issue arose or pressed for by the parties and matter was proceeded for Plaintiff's evidence. Written Statement, Replication, Admission-Denial Of Documents And Framing Of Issues (Suit filed by Savita Bhatia against Sheena Company and Ors bearing CS No. 16756/2016) Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 23 Suit No. 16803/2016 Suit No. 16756/2016
22. A perusal of the Court file reveals that the summons for settlement of issues along with notice of the application under Order XXXIX R 1 and 2 of CPC were issued qua the Defendants on 06.02.2013 and thereafter, reply to the application under Order XXXIX R 1 and 2 of CPC and Written Statement were filed by the Defendants and thereafter, the matter was transferred to the Court of Ld. ADJ-05, South-West, Dwarka Courts, New Delhi. Replication was filed by the Plaintiff. An application was thereafter filed by the Plaintiff under Section 63 of the Indian Evidence Act for leading secondary evidence and the matter was thereafter transferred vide order dated 12.02.2016 to the Court where the connected suit i.e. CS No. 16803/2016 was pending and both the suits were clubbed and tried by one Court. Vide order dated 29.02.2016, the application of the Plaintiff under Section 63 of the Indian Evidence Act for leading secondary evidence was dismissed as being premature and issues were framed on the even date.
23. In the WS filed by the Defendants, it is alleged that the suit of the Plaintiff is without any cause of action and is liable to be dismissed under Order VII R 11 of CPC. It is further alleged that the Plaintiff has not complied with the terms and conditions of Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 24 Suit No. 16803/2016 Suit No. 16756/2016 the agreement to sell dated 08.05.1993 and therefore, the present suit is not sustainable under law. It is further alleged that the alleged agreement to sell is not registered and is hit by the Section 17 of the Registration Act, 1908 and cannot be looked into for any purpose whatsoever and that the possession of the Plaintiffs is illegal qua the suit property. It is further alleged that the suit of the Plaintiffs is time barred and is not maintainable. The Defendants have further reiterated the contents and averments of the plaint in civil suit bearing no. 16803/2016 filed by them against Ms. Savita Bhatia. It is further submitted by Defendants that the Plaintiffs were inducted in the suit property as tenants and after termination of tenancy, the suit for possession was filed by the Defendant no. 1 and that the present suit filed by Savita Bhatia is the counter blast of that suit. It is further submitted that a mere agreement to sell does not confer any right, title or interest in the immovable property. It is also submitted that the construction made on the open terrace by the Plaintiffs as tenants in the year 2007 was against the by-laws of Municipal Corporation. It is further alleged that Sh. K.L. Batra, the father- in-law of Defendant no. 4 had granted a loan of Rs. 12,00,000/- to Mr. Rajeev Bhatia which has not been returned till date. Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 25 Suit No. 16803/2016 Suit No. 16756/2016 Defendants have also submitted that after termination of tenancy by way of service of legal notice under Section 106 of the Transfer of Property Act, the status of the tenant remains of a trespasser or illegal.
24. In the Replication, Plaintiff has denied the averments of the Defendants and reiterated the contents of the plaint. On the basis of pleadings, following issues were framed on 29.02.2016:
1. Whether the suit is maintainable as framed and presented before the Court? (OPP)
2. Whether the suit is barred under any provisions of law;
provisions of CPC in general and the provisions of Specific Relief Act, in particular? (OPD)
3. Whether the Plaintiff is entitled for a decree in favour of Plaintiff and against the Defendant directing the Defendant no. 1 to perform the terms of the agreement to sell dated 18.05.1993 as prayed for in the prayer clause (a) of the plaint? (OPP)
4. Whether the Plaintiff is entitled for a decree of permanent injunction as prayed for with respect to the suit property being rear side second floor flat and the front side terrace above the front side flat on the second floor of the property bearing no. 81, Poorvi Marg, Vasant Vihar, New Delhi as prayed for in the prayer Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 26 Suit No. 16803/2016 Suit No. 16756/2016 clause (b) and (c) of the plaint? (OPP)
5. Whether the Plaintiff is entitled for a decree of declaration thereby declaring the Plaintiff as the owner of the suit property being rear side second floor flat and the front side terrace above the front side flat on the second floor of the property bearing no. 81, Poorvi Marg, Vasant Vihar, New Delhi as prayed for in the prayer clause (d) of the plaint? (OPP)
6. Relief.
No other issue arose or was pressed for and the matter was proceeded for arguments on preliminary issues with the connected case i.e. suit bearing no. 16803/2016. Thereafter, all the parties were restrained to create any third party right, title or interest with respect to the suit property i.e. back portion, 2 nd floor flat, front side terrace above 2nd floor at No. 81, Poorvi Marg, Vasant Vihar, New Delhi vide order dated 09.05.2016 and the suit was transferred to the Court where the trial of the connected suit was pending and matter was fixed for arguments on the preliminary issues. Thereafter, Ld. Court held that the preliminary issues were to be taken up for disposal along with the remaining issues vide order dated 09.01.2017 and matter was therefore, proceeded for Plaintiff's evidence. An application Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 27 Suit No. 16803/2016 Suit No. 16756/2016 under Order VII R 14 of CPC was thereafter, filed on behalf of the Defendant. However, vide order dated 25.08.2017, connected suit i.e. CS No. 16803/2016 titled 'M/s Sheena Company Vs. Savita Bhatia and Ors.' was clubbed with the present suit and the suit 16803/2016 was considered as the main suit as the same was instituted earlier than the present suit i.e. CS No. 16756/2016. It was further directed that the evidence would be led in common in both the suits.
COMMON EVIDENCE LED BY THE PARTIES IN BOTH THE SUITS
25. On 21.03.2018, PW-1 Smt. Meera Batra tendered her evidence by way of affidavit Ex. PW1/1 and relied upon the documents viz. Copy of partnership deed dated 14.04.1980 as Ex. PW1/A; self cheques issued by late Sh. Rajeev Bhatia as Ex. PW1/B (colly); receipt dated 18.05.1993 as Ex. PW1/C; affidavit of Sh. K.L. Batra and two witnesses as Ex. PW1/D (colly); legal notice dated 30.12.2009 as Ex. PW1/E; reply dated 05.01.2010 to legal notice as Ex. PW1/F; letter dated 12.01.2010 as Ex. PW1/G; copy of notices dated 12.11.2010 as Ex. PW1/H (colly); copy of legal notices dated 25.01.2011 as Ex. PW1/I (colly); copy of legal notices dated 20.04.2011 as Ex. PW1/J and Ex. Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 28 Suit No. 16803/2016 Suit No. 16756/2016 PW1/K; copy of legal notice dated 08.06.2011 as Ex. PW1/N (not mentioned as exhibit in evidence affidavit). Legal notices dated 20.04.2011 referred to as Ex. PW1/L and Ex. PW1/M are de-exhibited as copy of legal notices had not been filed on judicial record (Ld. Counsel for Defendant had objected to the mode of proof of documents referred to as Ex. PW1/B, Ex. PW1/C, Ex. PW1/D and Ex. PW1/G).
26. During cross-examination of PW-1, she deposed that the firm of the Plaintiff is unregistered partnership firm and has no core business and that the same was made just to take over the property bearing no. 81, Poorvi Marg, Vasant Vihar, New Delhi and that the same was acquired by the said firm in April 1980 through GPA, however, the said GPA was not filed on judicial record. She further deposed that she is the only active partner in the firm and that she was not aware whether the said firm was regularly filing income tax return or not. She further stated that she had not filed the accounting records of the firm. PW-1 further deposed that one Mr. Chakravarty was the tenant in the second floor front side flat of the property in question but she did not remember the year. She further stated that she had no occasion to issue the rent receipts to any of the tenants as she is the owner of Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 29 Suit No. 16803/2016 Suit No. 16756/2016 ground floor flat which was never rented out at any point of time. The witness further deposed that the rear side flat on second floor of the property in question was in the name of Smt Neena Paruthi, however, she had not filed any documents on record to reflect the same. However, the witness denied the suggestion that the said documents were not filed as the same did not exist and that the entire property in question was acquired in the name of the Plaintiff firm. The witness further deposed that the property in question was divided between all the partners in the year 1980 and that as per the understanding arrived at between the partners of the firm, the respective partners were independently looking after their respective flats. PW-1 further deposed that the firm of the Plaintiff had no role in paying the water and electricity charges of the respective flats but she was paying house tax with respect to her flat. She further deposed that Mr. K.L. Batra was her father-in-law and he knew late Mr. Rajeev Bhatia being friends, however, she did not know whether there was any business dealing between the two of them. She deposed that Mr. K.L. Batra had granted a loan of Rs. 12,00,000/- to late Mr. Rajeev Bhatia.
27. During further cross-examination, PW-1 deposed that Mr. Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 30 Suit No. 16803/2016 Suit No. 16756/2016 K.L. Batra had not filed any legal proceedings against late Sh. Rajiv Bhatia for recovery of alleged loan of Rs. 12,00,000/- and that the Plaintiff company had filed on record a receipt dated 18.05.1993 regarding the said loan. The witness had denied the suggestions that the said receipt, affidavit of Mr. K.L. Batra Ex. PW1/D (colly) along with affidavits of Mr. Uday Shankar and Vinod Khanna were forged and fabricated documents and also denied that there were numbers of business dealings between Mr. K.L. Batra and late Sh. Rajiv Bhatia. The witness further deposed that she has no concern with the second floor rear side flat and terrace above the second floor of property in question and that she is pursuing the case on behalf of the Plaintiff company. The witness had denied the suggestion that no oral agreement of tenancy ever arrived at between the Plaintiff and late Sh. Rajiv Bhatia and Defendant no. 1. She further deposed that late Sh. Rajiv Bhatia had done construction on the front portion of second floor terrace, however, she voluntarily stated that the said construction was illegal and the same was demolished by MCD but the said portion was re-built by Sh. Rajiv Bhatia in the year 2009. The witness further denied the suggestion that late Sh. Rajiv Bhatia had paid a sum of Rs. 10,000/- in cash and Rs. Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 31 Suit No. 16803/2016 Suit No. 16756/2016 50,000/- by pay order bearing no. 463699 dated 05.05.1993 towards the consideration of agreement to sell dated 08.05.1993 and that after having received the same, agreement to sell dated 08.05.1993 was executed between late Sh. Rajiv Bhatia, Defendant no. 1 and Plaintiff company. The witness deposed that she did not have any knowledge of execution of agreement to sell, GPA executed in favour of Mr. Hitesh Narula, affidavit, possession letter, Will, receipt, all dated 08.05.1993. The witness further deposed that the Plaintiff company has no records for the meetings held between the Plaintiff company and late Sh. Rajiv Bhatia and voluntarily stated that the same was all oral. She further deposed that she did not have any knowledge as to whether any notice in writing was given to Mr. Rajiv Bhatia by the Plaintiff company for enhancement of the rent in the year 1996. Thereafter, the witness PW-1 was discharged.
28. On 09.01.2019, PW-2 Smt. Neena Paruthi had tendered her evidence by way of affidavit exhibited as Ex. PW2/1 and during cross-examination, she deposed that Smt. Meera Batra is her sister-in-law and that she did not know whether partnership firm was registered or not. She further deposed that the property in question was divided amongst the partners in the year 1980 and Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 32 Suit No. 16803/2016 Suit No. 16756/2016 after division, the property was maintained by the firm. She further deposed that the firm did not file income tax or other statutory returns. She further deposed that she had not negotiated with Mr. Rajiv Bhatia for letting out the suit property, however, the negotiation was made by Mr. K.L. Batra verbally. She had deposed that she was not present during the said negotiation. The witness denied the suggestion that the suit property was purchased by Mr. Rajeev Bhatia vide agreement to sell dated 08.05.1993 and that she was one of the signatories of agreement to sell. She voluntarily stated that the property was never sold. It was further deposed by the witness that she did not know in whose names the electricity and water connections were installed in the suit property and who was depositing the house tax of the same. It is further stated that the possession of the suit property was handed over to Mr. Rajeev Bhatia in the year 1993. She further deposed that she did not know as to whether after division of the property in question, the title documents of the respective shares were executed in the names of respective owners by the Plaintiff firm.
29. On the even date, PW-3 Sh. K.L. Batra had tendered his evidence by way of affidavit exhibited as Ex. PW3/1 and during Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 33 Suit No. 16803/2016 Suit No. 16756/2016 cross-examination, he deposed that the Plaintiff firm is an unregistered partnership firm with seven partners and that the negotiation for tenancy of suit property was made in his presence between Mrs. Meera Batra and late Sh. Rajeev Bhatia. He further deposed that firstly, he had negotiated with Mr. Rajeev Bhatia and thereafter, he had negotiated with Neena Paruthi. However, he did not know the exact date but deposed that it was somewhere in the year 1993. The witness further deposed that the Plaintiff company did not use to maintain its account and there was no business of the said firm and that the said firm also did not maintain any accounts pertaining to the rental income from property in question. The witness voluntarily stated that the accounts were not maintained as there was only one tenant in the property. He further deposed that no rent receipt was ever issued by the Plaintiff to the Defendants or late Mr. Rajeev Bhatia. The witness denied the suggestion that the said rent receipts were not issued as Mr. Rajeev Bhatia was never inducted as a tenant in the suit property. The witness further denied the suggestion that late Sh. Rajeev Bhatia had purchased the suit property vide agreement to sell dated 08.05.1993 and that Mr. Rajeev Bhatia was put into possession of the suit property as he had paid Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 34 Suit No. 16803/2016 Suit No. 16756/2016 substantial consideration amount under the aforesaid agreement to sell. The witness voluntarily stated that there exist no agreement to sell dated 08.05.1993 in his knowledge. He further deposed that he had not taken any legal action against Mr. Rajeev Bhatia for recovery of loan of Rs. 12,00,000/-. The witness stated that the said loan was given by him in cash and that he had arranged the said amount after selling his agricultural land and that he had not filed any document on record to show the said loan transaction. The witness deposed that he had also purchased two properties from late Sh. Rajeev Bhatia at Mussoorie.
30. No other witness was examined on behalf of the Plaintiff and PE was closed vide separate statement of Ld. Counsel for Plaintiff on 16.03.2019 and matter was proceeded for Defendant's evidence.
31. On 03.02.2020, DW-2 Sh. Virender Kumar Gaur, Meter Inspector, Delhi Jal Board was examined and the record brought by him was exhibited as Ex. DW2/A and he was duly cross examined and discharged. On the even date, DW-3 Sh. Akhilesh Kumar, Engineer, BSES and DW-4 Sh. Krishan Singh, Zonal Inspector, Assessment and Collection Department were examined and the record brought by them was exhibited as Ex. DW3/A and Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 35 Suit No. 16803/2016 Suit No. 16756/2016 Ex. DW4/A respectively. They were duly cross examined and discharged. Thereafter, an application was moved on behalf of the Defendants under Section 65B of the Indian Evidence Act for permission to lead secondary evidence of an agreement to sell dated 08.05.1993 on the ground that the said documents were seized by the Income Tax Department in the year 2000. Subsequently, the said application was dismissed and disposed off vide order dated 17.08.2022 and additional affidavit of evidence of DW-1 was filed on behalf of the Defendants.
32. Accordingly, on 19.09.2022, DW-1 Ms. Savita Bhatia had tendered her evidence by way of affidavit exhibited as Ex. DW1/A and also tendered additional affidavit of evidence exhibited as Ex. DW1/B and relied upon the following documents:
(a) Copy of agreement to sell dated 08.05.1993 as Mark A;
(b) Copy of affidavit of Ms. Meera Batra dated 08.05.1993 as Ex. DW1/3 (OSR);
(c) Copy of possession letter dated 08.05.1993 as Ex. DW1/4 (OSR);
(d) Copy of Will dated 08.05.1993 as Ex. DW1/5 (OSR);
(e) Copy of Receipt dated 08.05.1993 as Ex. DW1/6 (OSR);
Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 36 Suit No. 16803/2016 Suit No. 16756/2016
(f) Copy of Election ID of Defendant no. 1 as Ex. DW1/7 (OSR);
(g) Copy of Election ID of late Sh. Rajeev Bhatia as Ex. DW1/8 (OSR);
(h) Copy of House tax receipt of the suit property as Ex. DW1/9 (OSR);
(i) Copy of receipt of Delhi Jal Board as Ex. DW1/10 (colly) (OSR);
(j) Copy of electricity bill of BSES as Ex. DW1/11 (OSR);
(k) Copy of acknowledgment dated 20.04.2000 issued by Dy. Director of Income Tax regarding seizure of original agreement to sell of the suit property dated 08.05.1993 as Ex. DW1/12 (OSR);
(l) Copy of site plan of the suit property as Mark B and
(m) Copy of GPA dated 08.05.1993 issued in favour of Mr. Hitesh Narula as Mark C. The witness has further relied upon various notices, replies and rejoinders exhibited by the Plaintiff i.e. PW-1 in her evidence from Ex. PW1/E to Ex. PW1/N.
33. During cross-examination, DW-1 has deposed that her late husband and Plaintiff no. 4's father were known to each other and Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 37 Suit No. 16803/2016 Suit No. 16756/2016 he used to consider her husband as his son. It is further deposed by her that late Sh. K.L. Batra had never given the suit property on rent to her late husband. The witness has denied the suggestion that the suit property was given on rent by Sheena and Company to her late husband for a period of three years at the rate of Rs. 4,000/- per month in the year 1993 and also denied the suggestion that the condition of tenancy was that no additional construction would be done on the suit property. She further voluntarily deposed that they had purchased the suit property from late Sh. K.L. Batra and had specifically chosen to purchase the front portion and terrace because they wanted to construct a duplex in the said property. It was further deposed by the witness that she could not say if Neena Pruthi was staying in the suit property as a tenant as she received vacant possession of the suit property. The witness denied the suggestion that the rent was increased from Rs. 4,000/- to Rs. 6,000/- and her late husband had given a pay order of Rs. 50,000/- and cash of Rs. 10,000/- to late Sh. K.L. Batra. The witness voluntarily stated that the money was paid by her late husband to late Sh. K.L. Batra at the time of purchasing the suit property.
34. The witness further denied the suggestion that in the year Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 38 Suit No. 16803/2016 Suit No. 16756/2016 1993, late Sh. K.L. Batra had given any loan to her late husband against which any receipts were issued. The witness further denied that late Sh. K.L. Batra had issued a notice for eviction to her but admitted that she had replied to one legal notice issued by Mr. Batra but that was a different notice and not a notice of eviction. The witness voluntarily deposed that the mutation of the suit property was done with full knowledge of late Sh. K.L. Batra.
35. Thereafter, no other witness was examined on behalf of the Defendants and DE was closed vide separate statement of Ms. Savita Bhatia dated 25.04.2023. Thereafter, an application under Section 65 of the Indian Evidence Act was filed on behalf of the Defendant no. 1 which was disposed off vide order dated 26.09.2023 with an observation that the parties can agitate the questions of admissibility, relevance and probative value at the stage of final arguments. Hence, the trial was concluded and matter was proceeded for final arguments.
CONTENTIONS OF PARTIES
36. Written submissions were filed on behalf of both the parties. Ld. Counsel appearing for Sheena Company has submitted that Sheena Company is the owner of the suit premises Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 39 Suit No. 16803/2016 Suit No. 16756/2016 by virtue of unregistered partnership deed which was entered into by seven partners for ownership and control of the entire property and Plaintiffs no. 2 and 3 were allotted the suit property by virtue of the same partnership deed. It is further submitted that Savita Bhatia has not come before the Court with clean hands and has filed the suit titled Savita Bhatia Vs. Sheena Company as a counter blast to the suit filed by Sheena Company. It is alleged that the contention of Savita Bhatia for specific performance is unfounded and has forged the agreement to sell with unrealistic and impractical conditions and that the suit filed by Savita Bhatia is time barred. It is further submitted that Section 53A of the Transfer of Property Act is not attracted to the suit property in any form or manner and hence, is not a bar on the plaint. It is further alleged that Savita Bhatia is a trespasser in the suit property and that the agreement to sell in question was not brought before the Court and hence, the same cannot be relied upon in any event. It is further contended that the Defendants i.e. Savita Bhatia and Ors have relied upon electricity connections and mutations which reflect their name as against Sheena Company. In respect of the same, it is argued by Ld. Counsel for Sheena Company that the same would only show the possession Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 40 Suit No. 16803/2016 Suit No. 16756/2016 of Savita Bhatia over the suit property but not the ownership as the formalities of the agreement to sell in question have not been complied with. It is further alleged that the Defendant Savita Bhatia is not in possession of the alleged agreement to sell, rather it is the contention of Savita Bhatia that the same was seized in a raid on 19.04.2000 and an alleged document with relation to this was relied on by Savita Bhatia. It is also submitted that the alleged agreement to sell relied upon by Savita Bhatia would in no way be admissible either by virtue of Section 53A of the Transfer of Property Act or for specific performance. It is further submitted that the Defendant Savita Bhatia has also alienated one portion of the tenanted premises to a third party even though, she did not have any right to do so.
37. Per contra, Ld. Counsel for Savita Bhatia has submitted that the agreement to sell dated 08.05.1993 was executed between Savita Bhatia and her late husband Mr. Rajeev Bhatia with Sheena Company. It is alleged that the suit filed by Sheena Company is false and frivolous as no rent or house tax receipts of the suit property were filed by Sheena Company. It is also alleged that the arrangement of payment of security amount of Rs. 60,000/- against monthly rent of Rs. 3,000/- per month is an Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 41 Suit No. 16803/2016 Suit No. 16756/2016 unusual arrangement against market trend and trade practice and therefore, the same is a concocted story by Sheena Company. It is submitted that no complaint was filed by Sheena Company against the alleged construction and in her examination on 05.05.2018, PW-1 stated that the respective owners of the portion may have issued rent receipts to the tenants, however, PW-2 Neena Paruthi / owner of second floor back portion admitted in her examination on 09.01.2019 that no rent receipts were ever issued by her. It is also alleged that no additional or concrete evidence was adduced by Sheena Company to prove that any such tenancy ever existed between the parties. It is also submitted that PW-3 Sh. K.L. Batra deposed in his examination that the tenancy was negotiated between Rajeev Bhatia and Neena Paruthi (PW-2), however, PW-2 admitted the suggestion that she had not negotiated with late Sh. Rajeev Bhatia for letting out the suit property. It is further alleged that the Defendants Sheena Company have denied that there were multiple business transactions between late Sh. Rajeev Bhatia and Mr. K.L. Batra, however, PW-3 Mr. K.L. Batra in his examination dated 09.01.2019 had agreed to a suggestion that he had purchased two properties from late Sh. Rajeev Bhatia in Mussoorie. It is alleged Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 42 Suit No. 16803/2016 Suit No. 16756/2016 that the Defendants Sheena Company have taken contradictory stands and have not approached the Court with clean hands.
38. It is submitted that Savita Bhatia had proved the documents being GPA executed by Mrs. Meera Batra in favour of Mr. Hitesh Narula. It is further submitted that the Plaintiff Savita Bhatia has proved an affidavit executed by Mrs. Meera Batra thereby confirming execution of agreement to sell of the suit property with Mrs. Savita Bhatia and Mr. Rajeev Bhatia, further confirming the appointment of Mr. Hitesh Narula as his GPA and handing over of peaceful and vacant possession of the suit property. It is also submitted that the Plaintiffs Savita Bhatia and others have also proved the possession letters issued by Mrs. Meera Batra on behalf of Defendant no. 1 for respective portions of the suit property and a Will executed by Mrs. Meera Batra. Receipt of Rs. 60,000/- issued by Mrs. Meera Batra against sale consideration of the suit property has also been proved by Savita Bhatia. It is also submitted that the Plaintiff Savita Bhatia has placed on record a letter dated 20.04.2000 issued by Sh. A.K. Pandey, Deputy Director Income Tax (Inv.), Ranchi thereby confirming that the said agreement to sell was seized by him from bank locker of late Sh. Rajeev Bhatia. It is further submitted Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 43 Suit No. 16803/2016 Suit No. 16756/2016 that the Plaintiff Savita Bhatia has examined DW-2 Sh. Virender Kumar Gaur, Meter Inspector, Delhi Jal Board to prove water connection of the suit property in the name of Sh. Rajeev Bhatia and further examined DW-3 Sh. Akhilesh Kumar, Engineer, BSES to prove that the electricity connection was in the name of late Sh. Rajeev Bhatia and Smt. Savita Bhatia and DW-4 Zonal Inspector, SDMC to prove that the property is assessed and mutated in the name of Sh. Rajeev Bhatia and Smt. Savita Bhatia. Ld. Counsel for Savita Bhatia has relied upon a judgment passed by Hon'ble Supreme Court of India in Rathnavathi and Anr. Vs. Kavita Ganashamdas (2015) 5 SCC 223; (2015) 2 SCC (CIV) 736; 2014 SCC ONLINE SC 860. It is submitted that the Plaintiff Savita Bhatia has always been ready to pay the remaining part of the sale consideration but Defendants Sheena Company have refused to accept the same.
FINDINGS
39. The following observations and inferences can be drawn from the evidence adduced by the parties and the pleadings on record:-
(a) A Landlord-Tenant Relationship or an Agreement Purchaser?
This is a case where the parties have diametrically opposite Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 44 Suit No. 16803/2016 Suit No. 16756/2016 stories:- whereas Sheena Company claims to have the relationship of landlord-tenant with Savita Bhatia (through her predecessor-in-interest, deceased husband, Rajeev Bhatia), the story put forward by Savita Bhatia is that she was inducted into the property as an agreement purchaser from the very inception; that there was never any relationship of landlord-tenant between the parties, that an agreement to sell was entered into with Sheena Company in performance of which she entered into possession of the suit property. This agreement to sell propounded by Savita Bhatia is vehemently and categorically denied by Sheena Company in the pleadings as well as in the evidence adduced. In a nutshell, this is a case where the parties admit no portion of the other's case. Therefore, the very first point of adjudication in the present case, is to come at a finding as to whether Sheena Company has been able to prove that there was a landlord-tenant relationship with Rajeev Bhatia? It is the undisputed position in law, that the burden of proof to prove the landlord-tenant relationship, in the first instance would be upon Sheena Company, and not on the other party. Therefore, the next port of call is to see whether Sheena Company has discharged its burden.
Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 45 Suit No. 16803/2016 Suit No. 16756/2016
(b) The Case of Sheena Company and the Evidence adduced The term "lease" is defined in the Transfer of Property Act, 1882. A perusal of the same would show that the payment of rent by the tenant to the landlord is a sine qua non for inferring the existence of a lessor-lessee relationship.
"Section 105 - Lease defined A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Less or, lessee, premium and rent defined. --The transferor is called the less or, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."
The pleadings of Sheena Company in the plaint disclose that in a nutshell, the substance of their pleadings is that they are the owners of the 2nd floor back portion flat and front terrace above 2nd floor at 81, Poorvi Marg, Vasant Vihar, New Delhi. There was an oral agreement of tenancy with late Rajeev Bhatia commencing from 15.05.1993 for a period of 3 years, at the rate of Rs 4000 per month. Rajeev Bhatia, it is claimed, entered upon Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 46 Suit No. 16803/2016 Suit No. 16756/2016 the tenancy and paid rent for 3 years, though irregularly, and thereafter, the rent was increased to Rs 6000 per month from 15.05.1996. Rajeev Bhatia, it is claimed, paid Rs 10,000 cash and Rs 50,000 vide pay order no 463699 dated 05.05.1993 as security deposit. He continued to pay rent upto 31.03.2002, though irregularly and thereafter defaulted. The plaintiff sent various legal notices, starting in the year 2009 for vacation of the premises, but the tenants denied the same and propounded an agreement to sell. There are additional pleadings that Rajeev Bhatia was given a friendly loan of Rs 12,00,000 by Sh KL Batra, which was allegedly never paid back and never pursued.
To prove their case, Sheena Company adduced the evidence of 3 witnesses, who have deposed in their affidavits, on the same lines as the pleadings, and also proved certain documents, which shall be referred to presently.
It is pertinent to note that the initial legal notice was sent on 30.12.2009 which is Ex PW1/E. It is the case of the plaintiff that this was the very first legal notice sent to the defendant. The relevant portion of the pleadings in the plaint read " that late Rajeev Bhatia legally made construction once on the open terrace which was demolished by the Municipal Corporation of Delhi Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 47 Suit No. 16803/2016 Suit No. 16756/2016 but in the year 2007 he again made construction on the open terrace without the knowledge of the plaintiffs. A number of meetings were held between Shri K L Batra on behalf of the plaintiffs and late Shri Rajeev Bhatia in the year 2007 and 2008 for getting the said flat and the said terrace vacated and arrears of mesne profits to be paid but late Shri Rajeev Bhatia turned greedy and insisted on being paid a heavy compensation for vacating the above said two portions (viz. Flat and terrace with illegal construction) of the plaintiffs. The plaintiffs own the entire building including these two above said portions. Stalemate continued. Shri Rajeev Bhatia was not enjoying good health and was continuously ill.
6. That the plaintiff no 1 sent legal notice dated 30.12.2009 for vacating the two said portions and for misuse of premises to Shri Rajeev Bhatia (then alive, now deceased) and his wife Smt Savita Bhatia throught its advocate....dated 30.12.2009...stating therein that both of them were in unauthorized occupation of the subject said two portions of the building situated at no 81 Poori marg, Vasant Vihar, New Delhi and that they are trespassers and they have no right to occupy the terrace, requiring them to vacate the portions and also to pay mesne profits....." Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 48 Suit No. 16803/2016 Suit No. 16756/2016 A reading of the notice Ex PW 1/E would show that the same reads that "that both of you are in unauthorized occupation of terrace on top of 2nd floor of her firm's property no 81, poorvi Marg, Vasant Vihar, New Delhi without any authority from the owner firm (Sheena & Co) or without any right, unlawfully for the last two years.......you are, according to her, trespassers and have no right to occupy the terrace. You are rank strangers to the firm and the owner/firm has not given any authority......"
Right off the bat, the aforesaid legal notice, which as per the plaintiff, forms one part of the cause of action, strikes a discordant note. There is no mention of any tenancy and in fact Savita Bhatia and Rajeev Bhatia are referred to as "complete strangers". Even more curious is the fact that though in the plaint, it is mentioned that Rajeev Bhatia had not paid rent since 2002, and that talks were going on for the vacation of both the flat and terrace, in the legal notice Ex PW1/E, there is absolutely no mention of a flat, even though the address of Savita and Rajeev Bhatia is mentioned as 2nd Floor, Back Portion Flat, 81, Poorvi Marg. The lack of specificity in this crucial notice which begins the story certainly casts a tall shadow over the claims of a tenancy by Sheena Company. It is not understandable as to how Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 49 Suit No. 16803/2016 Suit No. 16756/2016 Sheena Company could have omitted to mention any fact of the tenancy in this notice, when it is specifically their case, that the flat as well as the terrace were given on tenancy to Rajeev Bhatia. It would have been a different matter if it was their case that it was only the flat which was given on rent and that Rajeev Bhatia had encroached and trespassed into the terrace. However, it is specifically the case of Sheena Company that both the flat and the terrace were leased out to Rajeev Bhatia. Reference is invited in this regard to para no 2 of the plaint which states that "there was an oral agreement of tenancy between late Shri Rajeev Bhatia and the plaintiff firm M/s Sheena and Co....for a term of 3 years ....for the month to month tenancy for the said second floor flat and open front terrace above second floor..."
This contradiction, in my opinion, shakes the foundation of the case of Sheena Company. It is their case that it was an oral tenancy. In such cases, the corroborative evidence and the oral evidence also must be of a higher standard, as it is only the circumstantial evidence that is available to convince the court of law.
What is even more crucial, is the inherent impossibilities of the case of the plaintiff. Firstly, it is to be noticed, that Sheena Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 50 Suit No. 16803/2016 Suit No. 16756/2016 Company has not placed on record a single scrap of evidence showing the payment of monthly rent. It is claimed that rent was being paid from 15.05.1993 till 31.03.2002, i.e. for the better part of a decade, yet it is testified by all three of the witnesses of Sheena Company examined as PW-1, PW-2 and PW-3, that the partnership firm maintained no accounts, or that the witnesses are not sure whether accounts were maintained or not. PW-1, 2 and 3 also testify that no rent receipts were ever issued to Rajeev Bhatia. PW-1 deposed during cross examination that the plaintiff firm was made just to take over the property bearing no 81, Poorvi Marg, Vasant Vihar, New Delhi and that it was maintaining its accounting and other financial records. However she was not aware whether the firm was regularly filing its income tax return or not. Certainly, no accounting or financial records were ever produced before the court. There is no evidence of the income being enjoyed from the rent from the premises of 81, Poorvi Marg, though it is the case of the firm that the main business was to take over and enjoy income from the property situated at 81, Poorvi Marg, New Delhi. It does not seem to be their case, that they were reporting their income from the rent being paid by their tenants to the authorities. PW-1 Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 51 Suit No. 16803/2016 Suit No. 16756/2016 further deposes that "I do not remember the year but one Mr Chakarvarty was the tenant in the 2nd floor front side flat of property bearing no 81, Poorvi Marg, Vasant Vihar, New Delhi, however the respective owners may have issued the rent receipts to the tenants. I had no occasion to issue the rent receipts to any of the tenant as I am the owner of ground floor flat which was never rented out at any point of time. From the day of creation of plaintiff firm, I am only managing the affairs of the firm.... ".
What comes out that PW-1 who claims to be managing the affairs of the firm discloses that no rent receipts were ever issued by the firm to any of the tenants. Though she claims that the accounts of the firm were maintained, no such accounts were ever produced.
The only payment made by Rajeev Bhatia to the firm upon which the parties agree upon is Rs 10,000 cash and Rs 50000 by pay order paid in May,1993. As per the plaintiff firm, this is the security deposit for the tenancy. However, I find this claim hard to swallow. It is not believable that the security deposit would be more than the annual rent of the year 1993 (which would be as per the plaintiff, Rs 48000). As a common practice, the security deposit is usually one or two months rent. Though, the aforesaid Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 52 Suit No. 16803/2016 Suit No. 16756/2016 sum of security deposit looks accurate in today's world, if adjusted for inflation, Rs 60,000 would amount to approximately, Rs 4,50000 in today's terms. It is highly unbelievable that such security deposit would be paid by any tenant.
It is also highly unbelievable, that such princely amount (for the year 1993) of Rs 4000 which was allegedly being paid per month is not accounted for by the plaintiff's firm and vague allegations are made that the rent was being paid but "irregularly".
It is also the case of the plaintiff firm that rent was paid till the month of March 2002, and in fact, was increased to 6000 per month in the year 1996. There is no evidence adduced to show such payments.
Even though, as per the case of the plaintiff firm, no rent was paid after 2002, no steps were taken to realize the rent or vacate the property for more than seven years after the defaults began. This is also highly unbelievable.
On the other hand, Savita Bhatia, apart from her own evidence, has brought forth evidence of DW-2 from Delhi Jal Board proving that they were enjoying the water connection at the suit property in name of Rajeev Bhatia, and also the evidence Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 53 Suit No. 16803/2016 Suit No. 16756/2016 of DW-3 to show that they were having electricity connection in name of Rajeev Bhatia and Savita Bhatia at the suit property. Evidence of DW-4 from MCD has also been adduced showing that the property was mutated and assessed by the municipal authorities in name of Rajeev Bhatia. These actions of Rajeev and Savita Bhatia which were taken much before the arising of the present dispute are inconsistent with that of a person who finds themselves a tenant. On the other hand, the payment of such huge amount of "security deposit", the lack of evidence to show the payment of rent, the lack of any protest by the plaintiff firm while Rajeev Bhatia and Savita Bhatia went about obtaining water and electricity connections in their name at the suit property, the lack of effort to realize the alleged rent after 2002, are actions that are inconsistent with the claims of a landlord. On the facts, I find therefore, even if the alleged Agreement to Sell relied upon by Savita Bhatia is taken out of the equation, (to which document I shall presently advert to), that the plaintiff firm, Sheena Company, has failed to prove that there was a relationship in the nature of a landlord-tenant between them and Rajeev and Savita Bhatia. For this reason in and of itself, the suit for eviction and consequential reliefs, filed by Sheena Company Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 54 Suit No. 16803/2016 Suit No. 16756/2016 must fail.
(c) The Suit of Sheena Company is also barred by Section 69 of the Indian Partnership Act, 1932 Section 69 reads as:
"Effect of non-registration (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. (2) No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm. (3) The provisions of sub- sections (1) and (2) shall apply also to a claim of set- off or other proceeding to enforce a right arising from a contract, but shall not affect,-
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or court under the Presidency- towns Insolvency Act, 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realise the property of an insolvent partner."
It is the admitted fact (by PW-1 during the cross examination) that the plaintiff firm is unregistered. It is also the Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 55 Suit No. 16803/2016 Suit No. 16756/2016 case of the plaintiff firm in the plaint that the contract of oral tenancy was between the firm and Rajeev Bhatia for the lease of immovable property owned by the firm in its name. In my view, therefore, Section 69(2) of the Indian Partnership Act, 1932 bars the institution of the present suit. Merely because the partners of the firm were impleaded later on as plaintiffs no 2 and 3 does not cure this defect because the contract (as averred in the plaint itself) was between Sheena Company i.e. the unregistered partnership firm and the third party Rajeev Bhatia and not between Neena Paruthi or Anju Grover and Rajeev Bhatia, and to argue otherwise is futile and contrary to all pleadings and evidence. It is the admitted fact by PW-1 that the sole business of the partnership was to manage the immovable property at 81, Poorvi Marg and enjoy the income thereof. Sheena Company has also proved the partnership deed of the unregistered firm as Ex PW1/A. It is has not been averred or proved that the partnership has subsequently dissolved and that the suit property was thereafter owned by Neena Paruthi. Therefore, the institution of the suit of Sheena Company is itself barred and for this reason also the suit fails.
(d) The Case of Savita Bhatia for Specific Performance of the Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 56 Suit No. 16803/2016 Suit No. 16756/2016 Agreement to Sell dated 08/05/1993 Before proceeding to assess the case of Savita Bhatia, note may be taken in brief of the law governing specific performance of contracts.
In Kamal Kumar v. Premlata Joshi, 2019 SCC OnLine SC 12, the Hon'ble Supreme Court of India has held as under:
"10. 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 and whether such performance was in conformity with the terms of the contract; Fourth, 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."
On the aspect of readiness and willingness, the Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 57 Suit No. 16803/2016 Suit No. 16756/2016 position of law regarding the requirements to be proved by the plaintiff in a suit for specific performance and the implication of the said terms are well settled by a catena of judgments.
In Devenderjeet Singh Sethi v. Om Prakash Arora and Others 2023 SCC OnLine Del 2231, Hon'ble High Court of Delhi has observed as under:
"The distinction between "readiness" and "willingness"
and the method of ascertaining the same has been explained by the Apex Court in J.P. Builders v. A. Ramdas Rao, (2011) 1 SCC 429. It was observed that readiness pertains to the financial capacity of the appellant while willingness is determined through the conduct of the appellant who is in turn seeking specific performance.
43. Kerala High Court in George M. Mathews @ George v. Muhammed Haneefa Rawther RFA No. 156/2014 decided on 08.02.2023, while relying on J.P. Builders (Supra) stated that "while readiness refers to the financial capacity of the appellant/vendor to pay the sale consideration, willingness is a different component referable to the conduct of the vendor. Therefore, it is not axiomatic that one who is ready is automatically willing to perform the contract. Per contra, one who is ready with the funds can still be unwilling to perform the contract for different reasons altogether, say for example, the vendor deems the transaction not feasible/profitable for commercial reasons."
44. Furthermore the appellant may have had the financial capacity at the time of entering into the Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 58 Suit No. 16803/2016 Suit No. 16756/2016 Agreement, but to be successful in a decree for Specific performance, continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part has to be proved as held by the Apex Court in H.P. Pyarejan v. Dasappa (Dead) By L.Rs., (2006) 2 SCC 496. Failure to make good these averment brings with it and leads to the inevitable dismissal of the Suit. In Motilal Jain v. Ramdasi Devi, (2000) 6 SCC 420, the Apex Court had expounded the same principle that the averments in the plaint must reflect the readiness and willingness on the part of the appellant."
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 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 Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 59 Suit No. 16803/2016 Suit No. 16756/2016 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 recommendations of the 9 th 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 Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 60 Suit No. 16803/2016 Suit No. 16756/2016 are to be performed by him, other than those terms the performance of which has 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 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 Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 61 Suit No. 16803/2016 Suit No. 16756/2016 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 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 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."
Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 62 Suit No. 16803/2016 Suit No. 16756/2016 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 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."
It is the case of Savita Bhatia that her deceased husband entered into the written agreement to sell dated 08.05.1993 and a sum of Rs 10000 in cash and 50000 by pay order was paid for the suit property and a sum of Rs 40000 remained to be paid as the total sale consideration was Rs 1,00,000. The vacant possession Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 63 Suit No. 16803/2016 Suit No. 16756/2016 of the property was handed over to them and their family has been residing in the suit property since 08.05.1993 and for the first time on 30.12.2009 they came to know that Sheena Company was not acknowledging the agreement to sell to which notice she and had replied, setting out the facts in detail. The defence of Sheena Company is simpliciter denial of the agreement to sell.
Therefore, the first port of call would be to decide whether the Agreement to Sell dated 08.05.1993 was validly executed between the parties or not.
The first issue to be decided herein is whether the secondary evidence of the said agreement which has been marked as Mark A is admissible or not. It is the case of Savita Bhatia that the said original agreement document was seized by the Income Tax Authorities, that the summons of this court remained unserved on the concerned Income Tax Officer and that the said original could never be traced despite all reasonable efforts and that therefore, the photocopy would be admissible under Section 65 of the Indian Evidence Act.
The said provision reads as :
"Secondary evidence may be given of the existence, Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 64 Suit No. 16803/2016 Suit No. 16756/2016 condition, or contents of a document in the following cases:-
(a) When the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in1[India] to be given in evidence;
(g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection."
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 65 Suit No. 16803/2016 Suit No. 16756/2016 examined them, and who is skilled in the examination of such documents.
Presumably, Savita Bhatia, relies upon Section 65(c) for supporting her case of admissibility of the agreement to sell. In her affidavit by way of evidence she testifies that " the Income tax Department, Ranchi on 19.04.2000 in furtherance of an investigation had ordered for opening of Locker No 1217 in the ANZ Grindlays Bank, Chanakyapuri Branch, New Delhi and the abovesaid original Agreement to Sell, along with other documents were seized by the concerned officer. An acknowledgment dated 20.04.2000 issued by the said Officer acknowledging seizure of the original documents in Ex DW 1/27. The said document was never returned back to the Deponent or her deceased husband till date.
.....that I had previously filed an application before this Hon'ble Court for issuance of notice to Sh AK Pandey, Deputy Director, Income Tax (INV), Ranchi to produce the original Agreement to Sell but the notices issued by this Hon'ble Court were received back unserved. Thereafter I tried my level best to get the exact location of the file/officer but could not trace the same as the matter with the Income Tax Department was around 17 to 18 Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 66 Suit No. 16803/2016 Suit No. 16756/2016 years old......."
This version has not been challenged in the cross examination of the said witness DW-1 by Sheena Company and therefore, when the version put forward by the witness is not challenged, generally unless there are suspicious circumstances, the Court would generally believe the same. It is the matter of record that summons were issued to the concerned Income Tax Department and received back unserved as can be seen from the ordersheet dated 25.07.2019. Moreover, there are other circumstances that enhance the probative value and admissibility of the said agreement Mark A. Firstly, the contemporaneous documents of even date of 08.05.1993 have been produced in original i.e. Affidavit, Possession letter, Will and Receipt, Ex DW1/3, DW1/4, DW1/5 and DW1/6 respectively. These documents have not been challenged by Sheena Company. The relevant witnesses PW-1, PW-2 and PW-3 have not stated explicitly that the said documents do not bear their signatures and their purported signatures have been forged. They never attempted to invite this Court's comparison with their admitted signatures nor produced the evidence of the handwriting expert to dispute these signatures. The forgery of signatures on such Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 67 Suit No. 16803/2016 Suit No. 16756/2016 documents would have normally invited prosecution under the onerous provisions of Section 467 of the erstwhile Indian Penal Code which would have been then applicable, and which provision carried the maximum sentence of life imprisonment as one of the penalties. It is the admitted position that no criminal complaint was ever lodged by Sheena Company or PW1, 2 & 3 for forgery on a valuable security.
Moreover, the contents of the Agreement to sell also show that is a carefully thought out and drafted document. During cross examination PW-1 admitted that one Mr Chakrovarty used to be their tenant in the building of 81, Poorvi Marg, New Delhi. This fact corresponds with the clauses of the Agreement to Sell dated 08.05.1993 which state that if Mr Chakrovarty vacates the front side flat on the second floor then the same will be handed over to Rajeev Bhatia. It is unlikely that such a far fetched and well thought out conspiracy could have been hatched by Rajeev and Savita Bhatia and that they forged the signatures of the partners of the firm Sheena and Company with such thoroughness and impeccability that the said partners have not even thought it worth their while to get the same compared and examined by any expert.
Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 68 Suit No. 16803/2016 Suit No. 16756/2016 Furthermore, the details of payment mentioned in the said agreement correspond with the details mentioned by Sheena Company as the "security deposit" allegedly paid by Rajeev Bhatia. I have already found that it was unbelievable that such huge amount would have been paid by a tenant and that the relationship of landlord and tenant could not be proved. The fact that Sheena Company has put forward a palpably false story, fortifies the claim of Savita Bhatia qua the genuineness of the agreement Mark A dated 08.05.1993. I therefore, find that the said document is admissible and having high probative value and proves that there was an agreement of sale of the suit property entered into between the parties, with the terms as stated in the said document.
The next point to be examined is if the purchaser i.e. Rajeev Bhatia and his successor in interest Savita Bhatia et all have been ready and willing to perform this portion of the contract. As per the relevant clause it is stipulated that " And whereas in the eventuality of the said front portion flat on the second floor presently tenented to Mr Chakrovarty is not vacated in a period of two years, the transaction will relate to another flat (back portion on the same floor which is being handed over to Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 69 Suit No. 16803/2016 Suit No. 16756/2016 the Vendee in lieu of front portion flat) (Emphasis Supplied) of which confirming party no 2 becomes owner of the said unit on disolution (sic) of the partnership deed and since there is no dissolution hence no money is to be received by her and thus it has authorised vendor to sell and convey the said flat at the back portion on second floor. In case the front portion flat on the second floor is vacated by Mr Chakrovarty in the stipulated period the Vendee will take possession of the same and handover the possession of back portion flat on the second floor to the Vendor. .......
..........3) Rs 40,000/- ...to be paid against the handing over of vacant physical possession of the said front floor unit presently occupied by Mr Chakrovarty on the second floor or by 7th May 1995 which ever is later....."
Though there is evidence to show that one person named Mr Chakrovarty was a tenant and occupying the front portion flat on the second floor whereas the back portion flat was handed over to Rajeev Bhatia, no evidence has been led by either party to show that he vacated the said flat within the stipulated period of two years. It is the admitted position that Rajeev Bhatia and his successors in interest have been in settled possession of the back Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 70 Suit No. 16803/2016 Suit No. 16756/2016 portion flat which was handed over on 08.05.1993 and that they have never shifted to Mr Chakrovarty's flat (so termed for convenience of understanding). The only available inference to be drawn is that Mr Chakrovarty never vacated the flat within the period of two years or that even if he did, Rajeev Bhatia never asked for or got the possession of the flat being occupied by Mr Chakrovarty thereafter, as there is no evidence adduced of any such demand. If the flat was never vacated by Mr Chakrovarty, then the stipulation in the agreement was that the said agreement would become applicable on the same terms for the back portion flat being handed over to Rajeev Bhatia and his family at the time of the execution of the agreement. In either case, there is no evidence to show that after two years, Rajeev Bhatia agitated for completing the sale transaction by urging Sheena Company to accept the payment of Rs 40,000 and hand over the front side flat, or in the other case where the property was not vacated by Mr Chakrovarty within 2 years i.e. by 08.05.1995, by urging Sheena Company to accept Rs 40,000 and execute the sale documents of the back portion flat of which he was already in possession of since 08.05.1993. There is no evidence of "willingness" of Rajeev Bhatia to complete the terms of the sale Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 71 Suit No. 16803/2016 Suit No. 16756/2016 at the relevant times which would be on 08.05.1995 and thereafter. Moreover, there is also no proof of the "readiness" to pay the not-inconsiderable sum of Rs 40,000 (by 1995 standards) at the relevant time by Rajeev Bhatia. The said readiness and willingness cannot be merely assumed or presumed but has to be proved by cogent evidence which has not been brought forward and the onus of which was firmly upon Savita Bhatia. The only inference to be drawn is that no steps were taken by the vendee for completion of sale after the execution of the agreement to sell dated 08.05.1993. Merely obtaining the electricity and water connection and mutation of their names in the municipal records cannot suffice as proof of willingness and readiness. The conduct of the vendee in the present case is wholly lacking. Therefore, though, she has been able to prove the execution of the valid contract, in absence of proof of readiness and willingness to execute the terms of the contract by making the balance payment and demanding execution of sale deed, the relief of specific performance cannot be granted. The fact that the vendee has been in settled possession of the suit property or that he has got it mutated in his name with the municipal authorities cannot change the fact that the onus to prove readiness and willingness has not Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 72 Suit No. 16803/2016 Suit No. 16756/2016 been discharged.
As Savita Bhatia could not prove readiness and willingness, though having successfully proved the execution of the contract, her suit for specific performance has to fail.
(e) The Availability of the defence under Section 53A of the Transfer of Property Act, 1882 to Savita Bhatia The issue qua the availability of the defence under Section 53 A to Savita Bhatia has also been framed in the suit where she is the defendant. The said section reads as :-
"53A. Part performance Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 73 Suit No. 16803/2016 Suit No. 16756/2016 which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]"
In Vasanthi vs. Venugopal (D) thr. L.Rs.:
MANU/SC/0290/2017, the Hon'ble Supreme Court has
elaborated on the requirements for the application of this defence. The relevant portion is excerpted below :
"17. Reverting to the availability of the protection of Section 53A of TP Act to the original Defendant and on his death, to the present Respondents, to reiterate, the evidence on record does proclaim that the agreement for sale dated 20.5.1975 had indeed been executed between the predecessors-in-interest of the vendors of the Appellant/Plaintiff and the Respondents herein, pursuant whereto, an amount of Rs. 26,000/- in all had been paid by the proposed purchaser and the possession of the suit property had been handed over to him in consideration thereof. As a matter of fact, at the time of execution of said agreement, the suit property was in occupation of a tenant of the proposed seller i.e. the predecessor-in-
interest of the vendors of the Appellant/Plaintiff and that following a compromise, the tenant delivered possession of the suit property to the predecessor-in- interest of the present Respondents and since thereafter, they are in occupation thereof. The evidence on record, however, does not in very clear terms establish that the Appellant/Plaintiff had conscious notice or knowledge of this agreement for Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 74 Suit No. 16803/2016 Suit No. 16756/2016 sale at the time of her purchase. Admittedly as well, neither the predecessor-in-interest of the Respondents nor they had taken recourse to law for specific performance of the agreement. This assumes importance in view of the averment made in the written statement that even prior to the demise of the predecessor-in-interest of the vendors of the Appellant/plaintiff, he did not comply with the requests of the original Defendant to get the sale deed executed and his legal heirs, after his demise, also adopted the same non-cooperative stance.
18. Section 53A of T.P. Act and Section 16 of the Specific Relief Act, 1964 (sic 1963) (for short, hereinafter to be referred to as "Act, 1963"), being of significant relevance are extracted hereunder:
53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that [***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 75 Suit No. 16803/2016 Suit No. 16756/2016 which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this Section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
(Emphasis supplied)
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 willfully acts at variance with, or in 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.
(Emphasis supplied)
19. As would be patent from the above quotes, the protection of a prospective purchaser/transferee of his possession of the property involved, is available Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 76 Suit No. 16803/2016 Suit No. 16756/2016 subject to the following prerequisites:
(a) There is a contract in writing by the transferor for transfer for consideration of any immovable property signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
(b) The transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract;
(c) The transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract.
20. In terms of this provision, if the above pre- conditions stand complied with, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person(s) claiming under him, any right in respect of the property of which the transferee has taken or continue in possession, other than a right expressly provided by the terms of the contract, notwithstanding the fact, that the transfer, as contemplated, had not been completed in the manner prescribed therefor by the law for the time being in force. Noticeably, an exception to this restraint is carved out qua a transferee for consideration, who has no notice of the contract or of the part performance thereof.
21. On a perusal of the evidence adduced, it transpires that the sale deed dated 26.6.1982 had been proved on behalf of the Appellant/plaintiff. PW1 Subramanian, the husband of the Appellant/Plaintiff in his testimony has stated that at the time of purchase, when he enquired about the possession of the original Defendant, his vendors told him that he was in occupation of the premises as a tenant and that after Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 77 Suit No. 16803/2016 Suit No. 16756/2016 the purchase, as he (original Defendant) refused to pay the rent, the application before the Rent Controller, Cuddalore was filed for his eviction therefrom and it was in that proceeding, that the original Defendant disclosed about the agreement for sale, whereafter the suit had to be filed seeking declaration of title and possession. This witness categorically denied about his knowledge of such agreement for sale at the time of purchase.
22. PW2 Deenadayalan, one of the sons of the original owner Ramnathan Chettiar on oath affirmed the execution of the sale deed dated 26.6.1982 in favour of the Appellant/Plaintiff for a consideration of Rs. 35,000/-. Though, this witness admitted the agreement for sale between the original Defendant and his father, he mentioned that on enquiry, his father had told him that the agreement had lapsed as the purchase was not made within time. This witness also categorically stated that he did not disclose about the agreement for sale to the Appellant/Plaintiff and instead had disclosed to her husband that the original Defendant was only a tenant in possession of the suit property.
23. As against this, the Respondents, amongst others sought to rely on the testimony of DW1 to the effect that he had always been ready and willing to perform the contract and also in the reply to the notice sent by the vendors of the Appellant/Plaintiff conveying the cancellation of the agreement, he reiterated his readiness and willingness to get the sale deed, on the basis of the agreement for sale, executed.
24. The attendant facts and the evidence on record, though demonstrate that an agreement for sale of the suit property had been entered into on 20.5.1975 between the predecessor-in-interest of the vendors of the Appellant/Plaintiff and the original Defendant and Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 78 Suit No. 16803/2016 Suit No. 16756/2016 that an amount of Rs. 26,000/- had been paid by the latter for which the possession of the suit property had been delivered to him, to reiterate, adequate evidence is not forthcoming to convincingly authenticate that the proposed purchaser and thereafter his heirs i.e. the present Respondents, had always been ready and willing to perform his/their part of the contract, which amongst others, is attested by his/their omission to enforce the contract in law. His/their readiness and willingness to perform his/their part of the contract is also not pleaded in the written statement in clear and specific term as required. Further the materials on record also do not testify in unequivocal terms that at the time of purchase, the Appellant/Plaintiff had the knowledge/information of such agreement for sale or the part performance as claimed, so as to repudiate her transaction to be neither bona fide nor one with notice of such contract or the part performance thereof, as comprehended in the proviso to Section 53A of the T.P. Act.
25. The fact that at the first instance, the Appellant/Plaintiff had filed an application before the Rent Controller, Cuddalore for eviction of the original Defendant as a tenant, also attests her ignorance at that point of time of the agreement for sale and his occupation of the premises in part performance thereof.
26. This Court in Shrimant Shamrao Suryavanshi and Anr. v. Pralhad Bhairoba Suryavanshi by Lrs. and Ors. MANU/SC/0093/2002MANU/SC/0093/2002 : (2002) 3 SCC 676, while tracing the incorporation of Section 53A in the TP Act, vide Act of 1929, acting on the recommendations of the Special Committee on the issue, had ruled that mere expiration of the period of limitation for bringing a suit for specific performance would not debar a person in possession of an Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 79 Suit No. 16803/2016 Suit No. 16756/2016 immovable property by way of part performance from setting up a plea, as contemplated therein in defence to protect his possession of the property involved. It was however underlined that if the conditions precedent, as enumerated, in Section 53A of the Act, are complied with, the law of limitation would not come in the way of the said person to avail the benefit of the protection to his possession as extended thereby even though a suit for specific performance of a contract by him had gone barred by limitation. Explicitly therefore, though mere expiry of the period of limitation for a suit for specific performance may not be a bar for a person in possession of an immovable property in part performance of a contract for transfer thereof for consideration to assert the shield of Section 53A of T.P. Act, it is nevertheless imperative that to avail the benefit of such protection, all the essential pre-requisites therefor would have to be obligatorily complied with.
27. In A. Lewis and Anr. v. M.T. Ramamurthy and Ors. MANU/SC/8086/2007MANU/SC/8086/2007 :
(2007) 14 SCC 87, it was propounded that the right to claim protection Under Section 53A of T.P. Act would not be available, if the transferee remains passive without taking effective steps and abstains from performing his part of the contract or conveying his readiness and willingness to that effect.
28. Added to this, to reiterate, is the proviso to Section 53A of T.P. Act which excludes from the rigour of the said provision a transferee for consideration, who has no notice of the contract or of the part performance thereof.
29. In the contextual facts, as obtained herein, the materials on record do not unmistakably demonstrate that the original Defendant during his lifetime and on his demise, his heirs i.e. the Respondents had been Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 80 Suit No. 16803/2016 Suit No. 16756/2016 always and ever ready and willing to perform his/their part of the contract and that the Appellant/Plaintiff had notice either of the agreement for sale or the fact that the original Defendant had been in occupation of the suit premises by way of part performance of the contract.
30. Apropos, Section 16 of the Act, 1963, specific performance of a contract cannot be enforced in favour of a person who, inter alia, 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 unless prevented or waived by the other party thereto. As mentioned hereinabove, though there is an averment in the written statement that before the death of the predecessor-in-interest of the vendors of the Appellant/plaintiff, the original Defendant had requested him to execute the sale deed and after his demise, he made similar demands with them, evidence is jejune to irrefutably establish the readiness and willingness of his, during his lifetime and after his death, of the Respondents, to perform his/their part of the contract. It is also not the case of either the original Defendant or the present Respondents that his/their performance of the contract had been either prevented or waived by either the vendors of the Appellant/Plaintiff or their predecessor-in-interest at any point of time." Therefore, the requirement of readiness and willingness also applies to the Defendant claiming the protection under section 53A of the Transfer of Property Act. It would be incongruous to find that specific performance cannot be granted due to the lack of proof of readiness and willingness and at the Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 81 Suit No. 16803/2016 Suit No. 16756/2016 same time, to find that the protection under section 53A is available to the same party.
Therefore, as I have already found that Savita Bhatia and her predecessor in interest have not been able to prove their readiness and willingness, therefore the defence of part performance is not available to her.
(f) Savita Bhatia, has also prayed for declaration of title, however, I find that a plaintiff in a suit for specific performance cannot at the same time seek declaration of title, and moreover, there are no pleadings in the suit to allow this Court to adjudicate the issue of the better title as between the parties. Therefore, such declaration cannot be granted. Consequently, the permanent injunction as prayed for can also not be granted.
(g) In sum and substance, therefore, the following conclusion is arrived at - the issues as framed in the suit titled " Sheena Company v. Savita Bhatia" are decided as following - issues 1,2,4,5 and 6 are decided against the plaintiff Sheena Company and in favour of the defendant Savita Bhatia, issue no 3 is decided against the defendant Savita Bhatia and in favour of the plaintiff Sheena Company. The issues as framed in the suit titled "Savita Bhatia v. Sheena Company" are decided as following - Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company 82 Suit No. 16803/2016 Suit No. 16756/2016 issues 1 & 2 are decided in favour of the plaintiff Savita Bhatia and against the defendant Sheena Company, issues 3,4 and 5 are decided against the plaintiff Savita Bhatia and in favour of the defendant Sheena Company.
RELIEF
40. Consequently, both the suits are ordered to be dismissed. Parties to bear their own costs.
41. Decree sheets be prepared accordingly in both the suits.
42. Files be consigned to Record Room after due compliance. Digitally signed by DIVYANG
DIVYANG THAKUR THAKUR Date:
2025.01.17 15:27:01 +0530 Announced in the open court (Sh. Divyang Thakur) On 17.01.2025 DJ-03, Dwarka New Delhi Sheena Company Vs. Savita Bhatia Savita Bhatia Vs. Sheena Company