Delhi District Court
Sh. Inderjeet Singh Nayer vs Shri Anand Kumar Chopra on 16 November, 2017
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ 04 (WEST), TIS HAZARI COURTS, DELHI
Civ DJ No. 613166/16
Sh. Inderjeet Singh Nayer
Son of late S. Sunder Singh
Resident of D41, Moti Nagar
New Delhi - 110015. ..........Plaintiff.
versus
1.Shri Anand Kumar Chopra Son of Shri Krishan Lal Chopra Resident of 7/70A (IIIrd Floor) Double Storeys, Moti Nagar New Delhi 110015
2. Smt. Mamta Chopra Wife of Shri Anand Kumar Chopra Resident of 7/70A (IIIrd Floor) Double Storeys, Moti Nagar New Delhi 110015. ........Defendants.
Date of Filing Suit : 21.02.2012 Date of Transfer to this Court : 01.08.2016 Date of Reserving Judgment : 06.11.2017 Date of Judgment : 16.11.2017 Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 1/30 JUDGMENT
1. This is suit for specific performance of the agreement to sell dated 23/26.8.2011 filed by the plaintiff against the defendants.
2. Brief facts of the case as per the plaintiff are that the defendants represented themselves as coowner of built up property situated on the third floor out of property bearing no. 7/70A, Double Storey, Moti Nagar, New Delhi110015 ( marked as 7/70C by them) (hereinafter referred to as the "suit property") and agreed to sell the same on 23.08.2011 for a total sale consideration of Rs. 22,50,000/ and received an advance amount of Rs. 1,00,000/ as token money vide bayana receipt dated 23.08.2011. The Plaintiff further paid an amount of Rs. 1,00,000/ in cash on 25.08.2011, whereafter, an amount of Rs.50,000/ was paid and an agreement to sell / purchase dated 26.08.2011 was executed between the parties. The plaintiff had paid total amount of Rs. 2,50,000/ to the defendants up to 26.08.2011.
3. The plaintiff pleaded that as per the terms of agreement to sell dated 26.08.2011, he had to pay balance sale consideration of Rs. 20,00,000/ to the defendants within 60 days from the date of payment of earnest money i.e. on or before 23.10.2011 on delivery of vacant possession of the suit property and execution of proper sale deed. The plaintiff had paid an amount of Rs. 3,00,000/ to the defendants Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 2/30 towards part payment of the balance sale consideration of the suit property against receipt dated 16.09.2011, vide which, the defendants had undertaken to vacate the suit property by 10.10.2011 and then receive the balance sale consideration of Rs. 17,00,000/.
4. The plaintiff further pleaded that the defendants did not vacate the suit property by 10.10.2011 as undertaken by them on 16.09.2011 and sought extension of time up to 15.11.2011 which was done in writing on 13.10.2011 on the back of the agreement to sell and purchase dated 26.08.2011. According to the plaintiff, he had further paid an amount of Rs.4,00,000/ to the defendants on 24.10.2011 against receipt, vide which, it was agreed that the balance sale consideration of Rs. 13,00,000/ would be paid to the defendants at the time of registration of the sale deed of the suit property on 07.11.2011, if the property was vacated by the defendants.
5. The plaintiff further pleaded that he was ready and willing to perform his part of the agreement and pay balance amount of sale consideration to the defendants on or before the stipulated date but the defendants failed to perform their part of the contract and complete the sale transaction of the suit property in his favour by the stipulated date i.e. 15.11.2011. The plaintiff pleaded to have sent notice dated 21.11.2011 to the defendants calling upon them to complete the sale transaction of the suit property in his favour which was stated to be replied by the Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 3/30 defendants on dated 28.11.2011.
6. The plaintiff got issued another notice dated 26.12.2011 to the defendants, which was not replied by the defendants. The plaintiff further pleaded that after receipt of notice dated 26.12.2011, the defendants made false complaint to the police where the defendants agreed to settle the matter with the plaintiff on 03.01.2012, or otherwise, have the dispute resolved through court, however, no settlement could be arrived at which led to the filing of the present suit. By way of present suit, the plaintiff sought relief of specific performance of the agreement to sell dated 23/26.08.2011 and further prayed that in case, relief of specific performance of the contract is not granted, the defendant be directed to refund an amount of Rs. 9,50,000/ to the plaintiff alongwith interest.
7. Written statement cum claim for set off was filed on behalf of the defendants. The case of the defendants is that the defendants offered the suit property for sale in order to purchase bigger house for their residence and their family members besides saving some amount for marriage of their grownup children. The defendants admitted the execution of agreement to sell dated 26.08.2011 as well as the receipt of an amount of Rs. 9,50,0000/ but pleaded that the plaintiff as per his convenience got the period of agreement extended except the alleged extension dated 13.10.2011, which was prepared after obtaining the Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 4/30 signature of the defendant no.2, an illiterate lady, in the presence of the concerned property dealer on blank paper, for the alleged extension upto 15.11.2011.
8. The defendants further pleaded that after receiving an earnest money of Rs. 2,50,000/ from the plaintiff, they immediately entered into an agreement to sell and purchase dated 29.08.2011 with one Sh. Vikas Gupta for purchase of property bearing No. A78, Third floor with roof/terrace right, New Moti Nagar, New Delhi110015 and paid sum of Rs.2,00,000/ as earnest money. The defendants further pleaded to have paid a sum of Rs. 4,00,000/ to Sh. Vikas Gupta on receipt of amount from the plaintiff on 24.10.2011 itself. The defendants had thus paid an amount of Rs.6,00,000/ to Sh. Vikas Gupta by 24.10.2011 against the total sale consideration of Rs. 19,00,000/ and had to pay the balance sale consideration of Rs. 13,00,000/ to Sh. Vikas Gupta at the time of execution of the sale documents on or before 24.10.2011 which was extendable upto 15 days, meaning thereby, the last date even after extension of time was 08.11.2011. The defendants further pleaded that they had approached the plaintiff as well as the property dealer, Payal Properties through which the deal was finalized for execution of sale deed and for payment of balance amount for onward payment to Sh. Vikas Gupta. It is the case of the defendants that due to default in balance payment by the plaintiff, the deal of the defendants for purchase of new house failed.
Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 5/30
9. It is also the case of the defendants that the plaintiff did not have funds in cash or bank balance to pay the balance sale consideration to the defendants. The defendants pleaded that the plaintiff never tendered the balance sale consideration to the defendants in respect of the suit property or took any steps towards the preparation/execution of the sale documents and thus, was not ready and willing to perform his part of the agreement. The defendants further pleaded that they reached office of the Sub Registrar, Janakpuri, New Delhi on 15.11.2011 and also on 17.11.2011 at 10:00 am for this purpose and they remained there till 1:00 PM but the plaintiff and/or the property dealer did not turn up, as a result of which, the sale deed could not be executed.
10. It is further the case of the defendants that since the plaintiff did not have funds to pay balance sale consideration, the defendants became entitled to forfeit earnest money of Rs. 2,50,000/ mentioned in the agreement to sell dated 26.08.2011. The defendants also pleaded that the alleged reply dated 28.11.2011 issued on behalf of the defendants by an unknown and unnamed Advocate is also false and manipulated by the plaintiff to support his case.
11. On merits, the defendants pleaded that in order to comply with the agreement to sell dated 26.08.2011, the defendants had taken on rent the premises bearing no. 13/13 Ground Floor, Moti Nagar, New Delhi Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 6/30 as per the rent agreement dated 20.10.2011 at a monthly rent of Rs. 9,000/ per month and shifted to the rented premises. The defendants also pleaded on merits that the defendants never demanded an amount of Rs. 3,00,000/ from the plaintiff, however, the plaintiff pressurized the defendants to receive the money for extension of time and the defendants had no option but to receive the same for further payment to Sh.Vikas Gupta. On the other side, Sh. Vikas Gupta insisted for payment of entire sale consideration of Rs. 17,00,000/ for execution of sale deed of the property agreed to be sold by him to the defendants in terms of agreement to sell dated 29.08.2011. The last date for payment to Sh. Vikas Gupta was 24.10.2011, which could be extended upto 08.11.2011 and thus, time period for complete payment by the plaintiff could be extended upto 08.11.2011 only, as such, it was not possible for the defendants to agree for extension of time upto 15.11.2011.
12. It is also the case of the defendants that they had purchased the stamp papers for execution of the sale deed of the property which they intended to purchase from Sh. Vikas Gupta, owner of property bearing No. A78, Third Floor with roof/terrace rights, New Moti Nagar, New Delhi15 and finally, the said stamp papers were returned to the office of SDM, Delhi for refund of the cost of stamp papers after making legal / necessary deductions. The defendants also preferred claim for set off for an amount of Rs.4,12,000/, para(1) of which is reproduced Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 7/30 as under : "Claim for Set off:
1. That the defendants have suffered monetary losses due to the default on the part of the plaintiff in the suit, which are explained below:
i) Expenses incurred on account of Rs. 18,000/ shifting of belonging from suit property to the rented house in the month of October, 2011.
ii) Rent from 20.10.2011 to Rs. 36,000/
19.02.2012 paid by defendants @
Rs. 9000/ p.m.
iii) Commission paid to property dealer Rs. 40,000/
for purchase of property No. A78,
Third Floor, New Moti Nagar, New
Delhi.
iv) Amount deducted by office of Rs.2,000/
SDM, for refund of unused stamp
papers of the property under
purchase by defendants.
v) Loss of income of defendant No.1 Rs. 25,000/
during the relevant period for not
attending his business.
vi) Commission to property dealer for Rs. 19,000/
the sale of property.
vii) Litigation expenses. Rs. 22,000/
Rs.1,62,000/
viii) Amount of earnest money forfeited Rs. 2,50,000/ by the defendants in terms of agreement to sell and purchase Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 8/30 dated 26.08.2011.
Total amount of SetOff Rs. 4,12,000/
13.The defendants claimed that the plaintiff had paid a sum of Rs.
9,50,000/ as an advance against the total sale consideration of Rs.22,50,000 and after adjusting the aforesaid amount of Rs.4,12,000/, the defendants are ready to refund the balance amount of Rs.5,38,000/ to the plaintiff.
14.Replication as well as written statement to the set off was filed by the plaintiff. Plaintiff denied the contents of the written statement as well as the setoff and reiterated the contents of the plaint as true and correct.
15.Vide order dated 10.09.2012, following issues were framed by the Hon'ble High Court of Delhi, where the suit was then pending, which are as under :
1. Whether the plaintiff had always been ready and willing to perform his part of contract ? OPP
2. Whether the defendants had entered into an agreement with one Mr. Vikas Gupta to purchase the third floor of property bearing Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 9/30 number 7/70A, Double Storeys, Moti Nagar, New Delhi 110015 ? OPD
3. Whether the defendants suffered monetary loss as alleged in the written statement on account of failure on the part of the plaintiff to pay the balance sale consideration to her ? OPD
4. Whether the plaintiff is entitled to specific performance of the agreement to sell dated 23/26.08.2011 OPP
5. Whether the defendants are entitled to any amount, if so, how much, from the plaintiff ? OPP
6. Relief.
16. Plaintiff in order to prove his case has examined himself as PW1.
17. On the other hand, the defendants have examined the defendant no.1 as DW1; Sh. Vikas Gupta as DW2; Sh. Kunj Behari, Kanoongo from the office of SDM, Patel Nagar, Delhi as DW3.
18. The issue wise finding is given in the succeeding paragraphs.
Issue No. 1: Whether the plaintiff had always been ready and willing to perform his part of contract ? OPP AND Issue no. 4: Whether the plaintiff is entitled to specific performance Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 10/30 of the agreement to sell dated 23/26.08.2011 OPP
19. Issue no. 1 and 4 are interlinked and thus taken up together. Onus to prove the issue nos. 1 and 4 was on the plaintiff. It is admitted case of the parties that the bayana receipt was executed between them on 23.08.2011, Ex P1 which culminated into an agreement to sell & purchase of the suit property on 26.08.2011, Ex.P3, as per which, the plaintiff had paid an amount of Rs. 2,50,000/ upto 26.08.2011 and was required to pay balance sale consideration of Rs. 20 lac to the defendants within 60 days from the date of payment of earnest money i.e. on or before 23.08.2011 and in lieu thereof, the defendants had to handover vacant possession of the suit property and execute proper sale deed.
20.It is further provided in the agreement to sell and purchase dated 26.08.2011, Ex.P3 that time period could be extended at the request of the plaintiff/purchaser. Relevant clauses 1 of an agreement to sell and purchase dated 26.08.2011, Ex.P3 is reproduced hereunder as: "1. That 23rd October2011 is the date fixed for final payment with extension period (if any / if required). On or before this day the second party shall pay the balance sale consideration to the first party, and in lieu of the same the first party will handover the peaceful, vacant and physical possession of the said property under sale to the second party, and will also execute the proper sale deed/sale documents/transfer Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 11/30 documents in respect of the said property under sale in favour of the second party, or in the name of his nominee/s in the office of the concerned SubRegistrar."
21. Vide receipt dated 16.09.2011, Ex P4, the defendants acknowledged the receipt of an amount of Rs. 1,00,000/ through cheque and Rs. 2,00,000/ in cash as part payment from the plaintiff and undertook to vacate the suit property by 10.10.2011 and also agreed for the payment of balance amount of Rs. 17,00,000/ as per agreement to sell thereafter.
22. The perusal of Ex P5 reflects that on 13.10.2011, it was agreed in writing on the backside of agreement to sell and purchase dated 26.08.2011 that on request of the seller, both the parties agreed to extend the date upto 15.11.2011 for final payment as well as to vacate the suit property, whereas, other terms and conditions mentioned in last receipt and agreement to sell remained the same. The defendants admitted the signature of the defendant no. 2 on Ex P5 but denied the contents of Ex P5 on the pretext that the defendant no. 2 is an illiterate lady and her signature was obtained on blank document.
23. For better understanding of the present case, relevant portion of Ex P 4 and Ex P5 is reproduced hereunder as: Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 12/30 Ex P4(Receipt dated 16.09.2011) " With thanks we received cheque of Rs. 1,00,000/ (Rs. One Lac only) drawn on State Bank of Patiala No. 207697 dated 16/9/2011 and Rs.2,00,000/ (Rs.Two Lacs only) in cash from Sh. Inderjit Singh R/o D41, Moti Nagar, N. Delhi15, as Part Payment against the Sale Agreement Dated 26/8/2011 for Property 7/70A (III Floor). We undertake and assure the purchaser Shri Inderjit Singh to vacate the said property by 10th Oct. 2011 and balance payment/amount of Rs. Seventeen Lacs only (Rs.17,00,000/) as per Sale/Purchase agreement to be paid thereafter. "
Ex P5 "Re: Property 7/70A (III Floor) Moti Nagar, New Delhi15 On request of seller, both parties agreed to extend date upto 15/11/2011 for final payment as well as to vacate the House / Property. Terms be as mentioned in the last receipt of Payment and Agreement to Sell and Purchase."
24. The plaintiff has also relied upon another receipt dated 24.10.2011, Ex.P6, whereby, the defendants acknowledged the receipt of part payment of Rs.4,00,000/ and agreed that balance amount of Rs. 13,00,000/ be paid at the time of registry on 07.11.2011, if the house vacated by 06.11.2011.
25.According to the defendants, the plaintiff as per his convenience got the period of agreement extended except the alleged extension dated Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 13/30 13.10.2011 on the pretext that signature of the defendant no.2 was obtained on blank paper by the plaintiff in the presence of the property dealer and the same was manipulated for the alleged extension up to 15.11.2011.
26. PW1 admitted that ExP5 does not bear the signatures of the defendant no. 1. However, he denied the suggestion that he had obtained signature of the defendant no. 2 on blank paper, ExP5. He also denied the suggestion that the extension was given only upto 06.11.2011.
27.The defendants have not led any evidence to show that the signature of the defendant no. 2 was obtained on blank document i.e. Ex P5. Further, DW1 has admitted in his cross examination on 19.09.2016 that he did not make any written complaint that the signatures of his wife, being an illiterate lady, had been obtained on blank document. Even otherwise, the provisions of Section 91 and 92 of the Indian Evidence Act stipulate that no plea contrary to or inconsistent with the contents of the document, Ex P5, is permissible to be raised. Thus, there is no merit in the contention of ld. Counsel for the defendants that the signature of the defendant no. 2 had been obtained on blank document, Ex P5, which was manipulated later on for the purpose of seeking extension of time up to 15.11.2011. However, the fact cannot be overlooked that there is subsequent receipt dated 24.10.2011, Ex Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 14/30 P6, as per which the plaintiff had paid part payment of Rs. 4 lacs towards balance sale consideration and agreed to pay the remaining amount of Rs. 13 lacs at the time of registration of sale documents on 07.11.2011, if house vacated on 06.11.2011. The subsequent receipt dated 24.10.2011, Ex P6 would supersede the previous receipt dated 15.11.2011, Ex P5. Meaning thereby, the time for final payment was extended upto 07.11.2011 if house vacated by 06.11.2011; however, the plaintiff claimed that the time was extended upto 15.11.2011. The said stand of the plaintiff is not permissible as he himself is placing reliance on both the receipts i.e. receipt dated 13.10.2011, Ex P5 and receipt dated 24.10.2011, Ex P6, as such, the terms recorded in receipt later in point of time i.e. receipt dated 24.10.2011, Ex P6 would prevail.
28. During crossexamination, PW1 denied the suggestion that the defendants had vacated the suit property on 20.10.2011 and shifted on said date to rented accommodation i.e house no. 13/13, Moti Nagar, New Delhi. He further deposed that the defendants had not vacated the suit property by 15.11.2011 and, therefore, did not deliver the possession to him. He admitted that he did not purchase the stamp papers for the purpose of executing the sale deed and voluntarily stated that the stage did not come as the defendants had not vacated the suit property. He denied the suggestion that the notice was sent by him at the tenanted premises as the defendants had vacated the suit property Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 15/30 on 20.10.2011 itself.
29. Perusal of testimony of PW1 would show that he did not offer the balance amount of Rs. 13 lacs to the defendants as the time was extended upto 15.11.2011 and the defendants had not vacated the suit property by 15.11.2011. In this regard, Ld. Counsel for the defendants has drawn attention of this court to the legal notice dated 21.11.2011, Ex P7 and legal notice dated 26.12.2011, Ex P15 to the effect that the plaintiff was having knowledge of the shifting of the defendants to the rented accommodation and for the said reason, the plaintiff had sent the said legal notices at the rented premises also in addition to the suit property. He contended that had the defendants not shifted to the rented accommodation, there was no occasion for the plaintiff to send the notice at the said address. Per contra, Ld. Counsel for the plaintiff submitted that the said notice was duly received at the suit property and as per the acknowledgment card; notice was received back from the address of the rented accommodation as unclaimed. He thus submitted that the defendants had never shifted to the rented accommodation as alleged.
30. PW1 during his cross examination dated 06.03.2014 denied knowledge about the shifting of the defendants to the rented accommodation. He deposed that he came to know from the market rumors that the defendants are going to sell the suit property at higher Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 16/30 price to somebody else and that they are residing at 13/13, Moti Nagar, New Delhi. He further denied the suggestion that he had sent ExP7 to the rented premises at 13/13, Moti Nagar, New Delhi as he already knew that the defendants had shifted to that place.
31. The defendants in order to prove that they had shifted to the rented accommodation on 20.10.2011 also filed copy of the rent agreement dated 20.10.2011, however, neither filed the original rent agreement on record nor proved the same. Further, ld counsel for the plaintiff submitted that the copy of said rent agreement placed on record does not bear the signature of the landlord. DW1 simply mentioned in para 8 of his evidence by way of affidavit that original rent agreement was retained by the landlord, Sh. Vineet Kumar but did not examine Sh. Vineet Kumar to prove the same. He denied the suggestion that he had never shifted to property no. 13/13, Ground Floor, Double Storey, Moti Nagar, New Delhi. He also deposed that he cannot produce any document to show that he had actually shifted to 13/13, Ground Floor, Double Storey Moti Nagar, New Delhi. He voluntarily stated during his crossexamination that he remained there for about four months but could not show any proof in the form of Ration Card, Identity card, transfer of gas connection for the abovesaid period of four months.
32.The very fact that copy of rent agreement placed on record by the Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 17/30 defendants does not bear the signature of alleged landlord and the defendants did not examine the landlord, it is not established that the defendants had actually taken any premises on rent. The sending of notice at the address i.e 13/13, Ground Floor, Double Storey Moti Nagar, New Delhi, in addition to the suit property, is not sufficient to infer that the defendants had shifted to the aforesaid rented premises on 20.10.2011 or they had taken the said premises on rent, more so when, the notices were received back unserved as 'unclaimed'.
33. It is thus not established that the defendants had vacated the suit property by stipulated date which was 06.11.2011 as per receipt dated 24.10.2011, Ex P6 and even on 15.11.2011 as per receipt dated 13.10.2011, Ex P5. The same would establish that the defendant have committed breach of agreement to sell dated 26.08.2011,Ex P3
34.The point which now arises for consideration is that whether the plaintiff has carried out his obligations as per the agreement to sell, Ex P3 and subsequent receipts. It was for the plaintiff to establish that he was having sufficient balance in his bank account or an adequate arrangement to pay balance sale consideration of Rs. 13 lacs to the defendant on the stipulated date i.e. by 07.11.2011 or even by 15.11.2011, which was stipulated date of performance as per the plaintiff. The ld. Counsel for the plaintiff has relied upon the following judgments as: Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 18/30
(a) VIII(2010) SLT 546 titled as J.P.Builders & Anr. Vs. A.Ramadas Rao & Anr.
(b) II (2008) SLT 90 titled as Balasahe Dayandoo Naik (dead) through LRs & Ors. Vs. Appasahed Dattatraya Pawar
(c) IX (2012) SLT 154 titled as Satya Jain(D) Through LRs & Ors Vs. Anis Ahmed Rushdie through LRs & Ors.
35. In response to the same, ld. Counsel for the defendants has relied upon the following judgments as:
(a) 213(2014) DLT 356 titled as Shikha Misra & Anr. Vs. S.Krishnamurthy
(b) 187(2012) DLT 160 titled as Shailesh Mudgil Vs. Vijay Arora
(c) AIR 2015(NOC) 892(Bom) titled as SAB Miller India Ltd.
Vs. M.P.Beer Products Pvt. Ltd.
36. As per the Section 16(c) of the Specific Relief Act, 1963, it was for the plaintiff to prove that he was ready and willing to pay the balance sale consideration of Rs. 13 lacs on the stipulated date of payment, which as per receipt dated 24.10.2011, was 07.11.2011 till the pendency of the present suit. The plaintiff has not filed Income tax returns for any of the years including post the filing of the suit to establish his readiness to pay the balance sale consideration. The plaintiff has similarly not filed statement of any of his bank account(s) Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 19/30 to show availability of funds with him to pay balance consideration of Rs. 13,00,000/. In fact, the plaintiff has not filed details of his assets in any form to show his financial capacity to pay the balance sale consideration of Rs. 13,00,000/. Therefore, the plaintiff has not proved his readiness and willingness by leading any cogent and plausible documentary evidence. Simple averment by the plaintiff in the plaint that he was ready and willing to perform his part of the contract is not suffice in the eyes of law, more so, when the same has been disputed by the defendants in the written statement. Reference is made to the judgment of Hon'ble High Court of Delhi passed in CS(OS)No.1154/1989 titled as Shri Jinesh Kumar Jain vs Smt. Iris Paintal & Ors. decided on 10 July, 2012, wherein their lordship has observed as: "10. On the aspect as to who is guilty of breach of contract, one thing is clear that the agreement to sell does provide for the necessary permissions to be obtained by the defendants. The defendants have not proved on record that they ever applied to the Income Tax Authority or appropriate authority under the 1972 Act for permission to transfer the land. Of course, I have already stated above that the appropriate authority under the 1972 Act would never have given permission because there is an absolute bar under Section 3 of the Act where the land has already been acquired, however, so far as the permission of the Income Tax Authority is concerned, I do not find any document placed on record whereby the defendants have applied for permission. In my opinion, however, this is not the end of Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 20/30 the matter because the defendant no.1 sent a notice dated 2.12.1988 (Ex.P2), and in which notice there is an allegation against the plaintiff of having committed breach of contract in not completing the transaction within 45 days as provided under the agreement to sell. Reference in this notice, Ex.P2 therefore is clearly to the lack of availability of finances with the plaintiff for completing the transaction of sale. Though this aspect will also be dealt with by me while dealing with the issue of readiness and willingness, it is clear in the facts of the present case, that the plaintiff is also guilty of breach of contract inasmuch as the plaintiff has not filed even a single document of any substance whatsoever of his having financial capacity from 26.9.1988 to the period of 45 days after entering into agreement to sell, and thereafter till filing of the suit. No doubt, plaintiff may want to say that he was liable to have the moneys ready only after the defendants had obtained the necessary permissions, however, one cannot overlook the fact that considering the period of performance to be a short period of 45 days, the plaintiff cannot presume that the permissions will not be applied for; nor obtained, and therefore, he need not be ready to perform his part of the bargain by having the balance sale consideration of `44,00,000/ in the 45 days period. I do not think that it is open for the plaintiff to urge that he need not have established on record his financial capacity during this period of 45 days after entering into the agreement to sell. I must hasten to add that where no period of performance is provided for or where there is a very long period to enable the proposed buyer for completion of his obligations the position possibly may have been different than in this case where the period is only of 45 days. I therefore hold that both the parties were guilty of breach of their respective obligations to be performed under the agreement dated 26.9.1988."
Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 21/30
37. The ratio of the aforesaid case is that the very fact that the defendant failed to perform his part of the agreement, the same would not absolve the plaintiff to prove his readiness and willingness when the period of performance of obligations by the parties is not very long period. In the instant case, as per receipt dated 24.10.2011, Ex P5, the defendants had to vacate the suit property by 06.11.2011 and the plaintiff had to pay the balance sale consideration on 07.11.2011. It is not established on record by the defendants that they had vacated the suit property by 06.11.2011, however, the same would not absolve the plaintiff from his obligation to have arranged the balance sale consideration by 07.11.2011. The plaintiff could not derive any benefit from the failure of the defendants to vacate the suit property by 06.11.2011. Once, it has come on record that there was time gap of one day in the performance of reciprocal obligation by the parties; it was incumbent on the part of the plaintiff to prove his financial capacity to pay on the said date.
38. In regard to the contention of ld counsel for the plaintiff that it was not necessary for the plaintiff to tender the amount on the stipulated date of performance i.e. 07.11.2011 because the defendants did not vacate the suit property, suffice is to state that the same would not absolve the plaintiff from proving his financial capacity to pay on the said date and thereafter till the pendency of the present suit. The judgments relied upon by the plaintiff are not applicable in the facts of the instant case.
Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 22/30
39. In view thereof, it is held that the plaintiff has miserably failed to prove his readiness and willingness to perform his part of the agreement to sell and purchase dated 26.08.2011 from the agreed date of performance till the filing of the suit, and even thereafter. It is thus held that the plaintiff has failed to comply with the requirement of Section 16(c) of the Specific Relief Act, 1963, and therefore, the plaintiff is not entitled to the relief of specific performance. Issue nos. 1 and 4 are accordingly decided against the plaintiff and in favour of the defendants.
Issue no. 2: Whether the defendants had entered into an agreement with one Mr. Vikas Gupta to purchase the third floor of property bearing number 7/70A, Double Storeys, Moti Nagar, New Delhi 110015 ? OPD Issue no. 3: Whether the defendants suffered monetary loss as alleged in the written statement on account of failure on the part of the plaintiff to pay the balance sale consideration to her ? OPD AND Issue no.5: Whether the defendants are entitled to any amount, if so, how much, from the plaintiff ? OPP
40.The onus to prove issue no. 2 & 3 was on the defendants. Ld. Counsel for the defendants contended that the defendants had entered into an Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 23/30 agreement to sell and purchase dated 29.08.2011 with one Sh. Vikas Gupta for purchase of property bearing No. A78, Third floor with roof/terrace right, New Moti Nagar, New Delhi15 and paid sum of Rs.2,00,000/ as earnest money. He further contended that the defendants had paid a sum of Rs. 4,00,000/ to Sh. Vikas Gupta on receipt of the said amount from the plaintiff on 24.10.2011 itself. He further contended that the defendants had paid total amount of Rs. 6,00,000/ to Sh. Vikas Gupta by 24.10.2011 against the total sale consideration of Rs. 19,00,000/ and the balance sale consideration of Rs. 13,00,000/ was payable by the defendants to Sh. Vikas Gupta at the time of execution of the sale documents on or before 24.10.2011 which was extendable upto 15 days, meaning thereby, the last date even after extension of time was 08.11.2011. It is his contention that due to default in payment of balance amount by the plaintiff, the deal of the defendants for purchase of the aforesaid house failed. He thus submitted that the defendants are entitled to forfeit the amount of earnest money of Rs. 2,50,000/ mentioned in the agreement to sell dated 26.08.2011. He further submitted that in order to comply with the agreement to sell dated 26.08.2011, the defendant had taken on rent the property bearing no. 13/13 Ground Floor, Moti Nagar, New Delhi as per the rent agreement dated 20.10.2011 at a monthly rent of Rs. 9,000/ per month. He also submitted that the defendants had purchased the stamp papers for execution of sale deed of the property which they intended to purchase from Sh. Vikas Gupta and the said Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 24/30 stamp papers were returned to the office of SDM, Delhi for refund of the cost of stamp papers after making necessary deductions.
41.According to the defendants, due to default committed by the plaintiff in not making the balance payment, the defendants had suffered monetary loss amounting to Rs. 1,62,000/ as detailed in para 1 of the claim for set off and also entitled to forfeit the earnest money of the plaintiff amounting to Rs. 2,50,000/ as per clause 2 of agreement to sell, Ex P3. He thus contended that the defendants are entitled for setting off an amount of Rs. 4,12,000/ out of the total amount of Rs. 9,50,000/ which was paid by the plaintiff to the defendants.
42.Per contra, Ld. Counsel for the plaintiff submitted that the defendants had never entered into any deal with one Sh. Vikas Gupta and did not incur expenses amounting to Rs. 1,62,000/. He also contended that the defendants are not entitled to forfeit an amount of Rs. 2,50,000/ paid by the plaintiff as earnest money towards the purchase of the suit property.
43.Heard Ld. Counsels for the parties and perused the record.
44.Defendants in order to prove their case have also examined Sh. Vikas Gupta as DW2, who deposed during his cross examination dated 03.02.2017 that he had refunded bayana amount to the defendant no. 1 Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 25/30 on account of the fact that defendant no. 1 was not able to pay balance sale consideration of the property bearing no. A78, 3rd floor, New Moti Nagar, New Delhi in time. He admitted that he has no document on the date of cross examination to show that he had received the bayana amount with respect to the aforesaid transaction. Defendants further examined Sh. Kunj Behari, Kanoongo, office of SDM, Patel Nagar, New Delhi as DW3 who brought the record regarding refund of Rs. 20,000/ of estamp paper in the name of Sh. Anand Kumar Chopra which was at the entry dated 28.02.2012. He also placed on record the relevant page of register showing entry of refund, which is ExPW3/1.
45.Notwithstanding the fact that the defendants did not prove agreement to sell and purchase dated 29.08.2011, the testimony of Sh. Vikas Gupta, DW2 makes it evident that the defendants had entered into an agreement to sell with him regarding purchase of the aforesaid property at Moti Nagar, however, the said deal could not be fructified due to nonpayment of the consideration amount by the defendant no. 1 to him. Further, testimony of DW3 would show that the defendant no. 1 had purchased the stamp duty, which was subsequently refunded, but, it is not clear that the same was applied towards purchase of property from Sh. Vikas Gupta.
46.In view of the above, the defendants have been able to establish on Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 26/30 preponderance of probability that they had entered into an agreement to sell with one Mr. Vikas Gupta to purchase the third floor of property bearing number 7/70A, Double Storeys, Moti Nagar, New Delhi 110015. Issue no. 2 is thus decided in favour of the defendants and against the plaintiff.
47.In so far as the claim of the defendants towards the expenses incurred for an amount of Rs. 1,62,000/ as detailed in para 1 of the claim for set off is concerned, the defendants have not proved their claim of an amount under any of the clauses from (i) to (vii) of para 1 of setoff. The defendants have not proved that they had shifted their belongings from the suit property to the rented house in the month of October, 2011 and thus claim of Rs. 18,000/ is not tenable. Further, the defendants have neither proved the rent agreement nor filed any rent receipt for the period from 20.10.2011 to 19.02.2012, whereby, the defendants had paid an alleged amount of Rs. 36,000/ and thus, the said claim is also not admissible. The defendants have also claimed an amount of Rs. 40,000/ which was paid as alleged commission to the property dealer towards purchase of the property No A78, 3 rd floor New Moti Nagar, New Delhi. Needless to say, the defendants again have not led any evidence to show that they had paid the said amount of Rs. 40,000/ to the property dealer and thus, same is also not legally sustainable. Again, the defendants have not proved any loss of income by leading any sort of evidence. Rather, the defendant no. 1 has not Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 27/30 proved his earning and thus, there is no question of payment of any amount towards the alleged loss of income. Further, the defendants again have not established by leading any cogent evidence that they had purchased the stamp paper of Rs. 20,000/ towards the property under purchase from Sh. Vikas Gupta and thus not entitled to an amount of Rs. 2,000/ deducted by office of SDM while refunding the same. Similarly, the defendants have not established by leading any oral or documentary evidence that they had paid commission of Rs. Rs.19,000/ to the property dealer for the sale of the suit property and also not been able to prove the litigation expenses claimed to the tune of Rs.22,000/. In view thereof, the defendants are not entitled for the amount claimed under the said heads.
48.In so far as the forfeiture of the earnest money by the defendants in terms of agreement to sell & purchase dated 26.08.2011, Ex P3 is concerned, suffice is to state that it was for the defendants to prove the loss suffered by them on account of cancellation of deal in terms of agreement to sell & purchase dated 26.08.2011. The relevant clause no. 2 of agreement to sell and purchase, ExP3 is reproduced as under: " 2. That in case the first party fails to perform their part of the contract as per clause 1 above then the second party shall remain free either to accept the double of the earnest money amount from the first party, or to complete this bargain Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 28/30 through court of law on the cost and risk of the first party, by filing suit for specific performance on the basis of this Agreement to Sell and purchase, and similarly if the Second party fails to perform his part of the contract as per clause 1 above, then the entire earnest money amount paid by the second party to the first party shall stand forfeited by the first party, and deal will come to an end."
49.The fact cannot be overlooked that Sh. Vikas Gupta deposed to have returned the amount allegedly given by the defendants without making any deduction. The defendants have also failed to prove any other loss sustained by them on account of non performance of obligation by the plaintiff under agreement to sell dated 26.08.2011, Ex P3. Even otherwise, it has already been observed by this court that the defendants have also not been able to perform their obligations under the agreement to sell dated 26.08.2011, Ex P3 and subsequent receipt dated 24.10.2011, Ex P6, as per which, they had to vacate the suit property by 06.11.2011. In view thereof, the defendants anyways cannot take advantage of their own wrong and are thus not entitled to forfeit the earnest money of Rs. 2,50,000/ paid by the plaintiff. Hence, the defendants have not established their claim of setoff to the tune of Rs. 4,12,000/.
50.However, it is not out of place to mention herein that the plaintiff has admittedly paid an amount of Rs. 9,50,000/ to the defendants towards the part sale consideration of the suit property. Notwithstanding the Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 29/30 fact that no issue has been framed for alternate relief of refund of the said amount, the court in exercise of power under order 7 rule 7 CPC is examining the said aspect, more so when the defendants have themselves stated that they are ready and willing to pay an amount of Rs. 5,38,000/ after claiming setoff an amount of Rs. 4,12,000/. Keeping in view that claim for setoff has been decided against the defendants, the plaintiff is entitled to refund of an amount of Rs. 9,50,000/ from the defendants alongwith interest @ 7% per annum from the date of filing of present suit till realization. Issue nos. 3 & 5 are decided accordingly.
Relief
51.In view of the above, the plaintiff is not entitled to relief of specific performance of agreement to sell dated 26.08.2011, Ex P3. In exercise of power U/o 7 Rule 7 CPC, suit of the plaintiff is decreed against the defendants for an amount of Rs. 9,50,000/ alongwith interest @ 7% per annum from the date of filing of present suit till realization. Cost of the suit is also awarded in favour of the plaintiff.
52. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court on (Manjusha Wadhwa) this 16th of November, 2017 Addl. District Judge04 (West) THC/Delhi Civ DJ No. 613166/16 Inderjeet Singh Nayer vs. Anand Kumar Chopra & anr. ... 30/30