Delhi District Court
Sh. Ramesh Chand Gupta vs Sh. J.S. Lamba on 13 March, 2013
IN THE COURT OF MS. RUCHI AGGARWAL ASRANI:
CIVIL JUDGE, CENTRAL-02, TIS HAZARI COURTS, DELHI.
SUIT NO: 203/1993
Sh. Ramesh Chand Gupta
S/o Sh. Jyoti Prasad Gupta
R/o B-4/71, Azad Apartments,
New Delhi-110016. .....Plaintiff
Versus
Sh. J.S. Lamba
S/o Sh. S.S. Lamba
R/o 90/63B, Malviya Nagar,
Ground Floor, New Delhi. .....Defendant
Date of Institution : 17.09.1992
Date of Reserving for Judgment : 25.02.2013
Date of Judgment: 13.03.2013
Decision: Dismissed
JUDGMENT
The plaintiff has filed the present suit against the defendant for specific performance.
Plaintiff's version:-
2 It is stated in the plaint that the defendant is the owner and in possession of a plot of land measuring about 2000 Suit No. 203/1993 Page 1 of 31 sq. yds. situated at Andheria Mor, Ghhaterpur, Delhi, now known as Municipal House No. 256, Andheria Mor, Chhaterpur, New Delhi.
3 It is further stated that on 19.11.1989, the defendant agreed to transfer the said plot to the plaintiff for a total sum of Rs.80,000/-. On the same date, the defendant also received a token money of Rs. 1000/- and executed receipt for the same in his own handwriting. The defendant also executed an agreement in writing on 22.11.1989 incorporating the detailed terms and conditions of sale of the said plot of land that the defendant shall transfer the aforesaid plot of 2000 sq. yds. to the plaintiff for a total consideration of Rs. 80,000/-.
4 It is averred by the plaintiff that on 22.11.1989, the defendant also received a sum of Rs. 20,000/- through an account payee cheque no. 824175 dated 22.11.1989, drawn on Syndicate Bank, Hauz Khas, New Delhi as part payment of the sale consideration. The plaintiff made further payment of Rs.
15,000/- in cash on 10.12.1989. Thus, the defendant has received total Rs.36,000/- as a part payment of the total sale consideration.
5 It is the case of the plaintiff that as per the Agreement, it was agreed between the parties that the Suit No. 203/1993 Page 2 of 31 defendant shall complete the construction of the boundary wall in the suit land and thereafter, hand over vacant possession of the plot to the plaintiff and execute and register all the necessary documents for selling and transferring the suit land to the plaintiff and shall receive the balance amount of the sale consideration.
6 The plaintiff has also contended that in December, 1989, the plaintiff purchased bricks for Rs. 14,760/- for the purposes of construction of the boundary wall and supplied the same to the defendant which were delivered by M/s Deep Builders. He has also contended that the defendant started the construction of the boundary wall with the said bricks and the boundary wall is now, more or less, complete.
7 It is further the case of the plaintiff that when he expressed his willingness to pay the balance sale consideration and receive the vacant possession of the land, the defendant neglected to do so. It is also his case that he has got to know that the defendant is attempting to sell off the suit land to some third party.
8 The plaintiff has also contended that he has been ready and willing and is still ready and willing to comply with the obligations under the Agreement to Sell. However, it appears Suit No. 203/1993 Page 3 of 31 that the intention of the defendant has become malafide as he has been negotiating the sale of the suit land with third parties on higher premium. Since the plaintiff had no other efficacious remedy, he filed the present suit.
Defendant's version:-
9 The defendant has contended the suit of the plaintiff on the following grounds:-
i) That the defendant did not enter into the agreement to sell of any immovable property with the plaintiff with a sound mind.
It is his case that he is a habitual drinker and the plaintiff also used to accompany the defendant for drinking at his farm house. The plaintiff had full knowledge of the excessive drinking habit of the defendant and made him excessively drunk at the farm house of the defendant and in the state of intoxication, the plaintiff obtained the signatures of the defendant on certain papers. It is further his case that the defendant did not give any consent, knowingly or willingly, for the sale of his farm house to the plaintiff and therefore, the alleged agreement, if at all executed by the defendant, is bad in law and as such, the present suit is not maintainable.
ii) That the alleged agreement is vague and void for Suit No. 203/1993 Page 4 of 31 uncertainty.
iii) That the consideration amount in the agreement i.e. Rs. 80,000/- is too low and inadequate as compared to the market value of the suit land and the defendant, in his full senses, could have never agreed to sell his property for such a low amount. This fact also shows that the signatures of the defendant were obtained under the influence of liquor.
iv) That the defendant could not have entered into any agreement to sell without the permission of the Gram Sabha and therefore, the said agreement is not valid.
v) That the plaintiff also has not performed his part of the contract as at no point of time, did he call upon the defendant to perform his part of the alleged contract and nor did he ever show his readiness and willingness to perform his part of the contract. Therefore, the suit is liable to be dismissed.
vi) That the agreement in question is without any consideration and therefore, the present suit is liable to be dismissed.
10 On merits, the defendant has denied all the allegations of the plaintiff and has stated that the plaintiff is not Suit No. 203/1993 Page 5 of 31 entitled to any equitable or discretionary relief from this court and therefore, the suit of the plaintiff is liable to be dismissed with compensatory costs.
11 Replication to the written statement of the defendant was also filed on behalf of the plaintiff, denying the contents of the written statement and reiterating and reaffirming the contents of the plaint. It was stated in the replication that the defendant is not a habitual drinker and nor does the plaintiff drink. It was also stated that the agreement was executed at the house of the defendant at Malviya Nagar and he had full knowledge of the said agreement. Therefore, the suit of the plaintiff is liable to be decreed.
12 From the pleadings of the parties, vide order dated 20.10.1995, Ld. Predecessor of this court framed the following issues:-
1 Whether the agreement in question is without consideration? OPD 2 Whether the agreement is executed without any free will or willingness, and the same is void? OPD.
3 Whether the pltf is entitled for the reliefs claimed? OPP.
4 Relief.
Vide order dated 26.02.1996, the following Suit No. 203/1993 Page 6 of 31 additional issue was framed by the Ld. Predecessor of this court:-
Whether the alleged agreement is vague and void for uncertainty?
13 In the present case, it was deemed appropriate to let the defendant lead his evidence first and in order to prove its case, the defendant examined himself as DW-1, Sh. Umarddin as DW-2 and Sh. Nannu Ram as DW-3. On the other hand, the plaintiff examined Sh. J.M. Bahri as PW-1, Sh. Surender Vashishth as PW-2 and himself as PW-3.
14 After conclusion of trial, final arguments were addressed by Ld. Counsels for the parties. I have carefully perused the record and given my considered thoughts to the arguments addressed by Ld. Counsels for the parties and my findings on various issues are as under:-
ISSUE No. 1:-
Whether the agreement in question is without
consideration? OPD
15 Onus to prove this issue was placed upon the
defendant. It is the case of the plaintiff that the agreement to sell was entered into between the parties for the sale of the suit Suit No. 203/1993 Page 7 of 31 land for a total consideration of Rs.80,000/-. It is also mentioned in the agreement that the defendant has already invested Rs. 60,000/- in the construction and will invest Rs. 20,000/- more for the construction of the boundary wall after which the vacant possession of the land will be handed over to the plaintiff. Ld. Counsel for the defendant submitted that the agreement shows that the defendant was in effect taking Rs. 80,000/- only for the construction he was carrying out and nothing for the suit land and therefore, the plaintiff was paying no consideration for the sale of the suit land.
16 Ld. Counsel for the plaintiff submitted that the plaintiff had agreed to purchase the suit property and the defendant had agreed to sell the same for Rs. 80,000/- which included not only the value of the construction but also the value of the land and therefore, Rs. 80,000/- was the consideration for the land alongwith the construction. He further submitted that it is not known why the defendant agreed to sell the suit land alongwtih the construction for Rs.80,000/- but such was the agreement which the defendant should honour.
17 Careful perusal of the Agreement between the parties shows that the defendant had already spent Rs. 60,000/- on the construction and had agreed to spend another Rs. 20,000/- on the construction of the boundary wall.Suit No. 203/1993 Page 8 of 31
This shows that the total cost of the construction i.e. the superstructure over the suit land was Rs. 80,000/- and the defendant had, if at all, agreed to sell the suit land at zero consideration. In fact, the defendant has stated in his written statement that the value of the suit land at the time of the alleged agreement was around Rs.10,00,000/-. Even DW-3 has deposed that the value of farm house was Rs. 10-12 Lakhs. On the other hand, the plaintiff has not led any evidence to prove that the value of the suit land alongwith the construction at the relevant time was Rs. 80,000/- or that it was not Rs. 10-12 Lakhs. Although, PW-3 has denied the suggestion put to him in his cross examination that the value of the suit land was Rs. 10 Lakhs or that Rs. 80,000/- is very low, but no evidence has been led to prove otherwise.
18 It is a known fact that the land has its own value and in any sale and purchase of a property, the land and the construction are separately valued. If this court was to go by the version of the plaintiff, it would mean that the land itself does not have any value. Since, the agreement clearly shows that Rs.80,000/- was the amount that was spent or was to be spent on the construction at the suit land, this court has no hesitation to hold that the plaintiff was giving no consideration for the land but only for the construction. Therefore, this issue is decided in favour of the defendant and against the plaintiff.
Suit No. 203/1993 Page 9 of 31ISSUE No. 2:-
Whether the agreement is executed without any free will or willingness, and the same is void? OPD.
19 Onus to prove this issue was placed upon the defendant. It is the case of the plaintiff that an agreement to Sell was entered into between the parties for the sale of the suit land for Rs. 80,000/-. On the other hand, it is the case of the defendant that he did not enter into any Agreement to Sell for the sale of any immovable property and he has challenged the validity and legality of the alleged Agreement to Sell on the ground that at the relevant time, he was intoxicated.
20 It is the case of the defendant that he is a habitual drinker and the plaintiff was well aware of this fact. Ld. Counsel for the defendant submitted that the plaintiff took advantage of this fact and in the state of intoxication of the defendant, got certain papers signed by him and since the papers were signed in the state of intoxication, they cannot be said to be legal and valid.
21 In order to prove that the defendant was under a state of intoxication, he as DW-1 deposed that "I am habitual drinker for which I have been chargesheet two times by my Suit No. 203/1993 Page 10 of 31 office as I am working as a Senior Superintendent, IGI Airport, New Delhi, Terminal-I. The Chargesheet dt. 09.04.1980 is Ex. DW-1/1 and order dated 26.05.1981 is Ex. DW-1/2 by which, my six month increment were stopped by the office and reduced my salary at two stages. Another Chargesheet dated 19.04.1983 is Ex. DW-1/3 by letter dated 17.04.1985 is Ex. DW-1/4." He further deposed that "I was made to drink excessively and the pltf accompany me and in the said state intoxication the pltf took some signatures on some papers in that situation."
22 In support of the contention of the defendant, DW-2 who is a chowkidar of the Gram Sabha Panchayat, Chhatarpur deposed that "The pltf and defdt started having liquor and the defendant took drunked heavily and was not in his senses and at that time, the plaintiff took out two papers from his briefcase, one of them was written and the pltf made defdt to write something on those papers and took his signatures on both of the same."
23 DW-3 also deposed in support of the defendant and stated that "He (the defendant) is in habit of drinking liquor and because of that, he has been chargesheeted and punished twice and he also lost seniority due to that...when the defendant is under intoxication, he looses control/senses and anything Suit No. 203/1993 Page 11 of 31 can be done to him that time."
24 On the other hand, Ld. Counsel for the plaintiff submitted that the defendant was in full senses when the Agreement to Sell was executed and the defence of intoxication is being raised only to save him from performing his part of the obligation. Ld. Counsel for the plaintiff further submitted that in fact, the plaintiff, as PW-3, has deposed in his cross- examination that he does not take liquor and nor did he know that the defendant used to take alcohol. He further denied the suggestion that he used to drink alongwith the defendant at his house.
25 Ld. Counsel for the plaintiff further submitted that the perusal of the Agreement to Sell shows that his signatures on the said Agreement to Sell are as precise as those on the written statement which shows that at the time of signing the Agreement to Sell, he was not drunk. He further submitted that if he was drunk and was not in a state to even know whether it is day or night, as claimed by him in his cross-examination, he would not have been able to put his signatures so precisely on the Agreement to Sell. He also submitted that on the second page of the Agreement to Sell in para no. 3, the defendant has also signed in between two lines with as much precision which goes even further to show that he was in a fit state of mind to Suit No. 203/1993 Page 12 of 31 execute the Agreement.
26 Careful perusal of the Agreement to Sell and the written statement shows that there is not much difference between the signatures on the above said two documents. However, this court is of the view that a person is so much in the habit of signing that intoxication cannot have a very great bearing on the way a person puts his signatures. On the other hand, intoxication does affect the mental faculties of a person and can drive him into an impulse to take a decision which he might not, otherwise.
27 Furthermore, the averment of the plaintiff that the signatures of the defendant on the written statement and the affidavit are similar to those signatures as put on the Agreement is weak as the plaintiff has not been able to prove that at the time of signing the written statement or the affidavit, the defendant was sober. If the plaintiff had proved that the defendant was sober at the time of signing the written statement and the affidavit, his signatures could have been taken as a sample to compare with the signatures on the Agreement to prove that he was sober at the time of signing the Agreement. But, the plaintiff has failed to lead any such evidence while on the other hand, the defendant has produced two witnesses who have categorically deposed that the defendant was drunk at the Suit No. 203/1993 Page 13 of 31 time of signing the Agreement.
28 In fact, the plaintiff has not even led any evidence to prove that he was a teetotaler or that the defendant was not in the habit of drinking. He has also not led any evidence to prove that at the relevant time, the defendant was not drunk or that he was in a fit state of mind to enter into the alleged Agreement. Even PW-1 and PW-2, who were present when the alleged Agreement was signed, have also not deposed that the defendant was absolutely sober when the Agreement was signed. Whereas, DW-2 and DW-3 have supported the case of the defendant and have deposed that at the time when the Agreement was entered into, the defendant was drunk. Merely because the signatures of the defendant are precise does not mean that he was not drunk. In the absence of any corroborative evidence, this court is not inclined to believe the version of the plaintiff.
29 The law regarding effect of intoxication on the capacity to contract is contained in Section 12 of the Indian Contract Act, which provides as follows:-
What is a sound mind for the purposes of contracting - A person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational Suit No. 203/1993 Page 14 of 31 judgment as to its effect upon his interests.
A person who is usually of unsound mind, but occasionally of sound mind, may make contract when he is of sound mind.
A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
30 It has been made clear in Illustration (b) to Section 12 that a sane man, who is delirious from fever, or who is so drunk that he cannot understand the terms of a contract, or form a rational judgment as to its effect on his interests, cannot contract whilst such delirium or drunkenness lasts.
31 The law regarding effect of intoxication on a contract was developed in the English case of Belcher Vs. Belcher 11 Yerger R. 521 wherein, the court had held that drunkenness in order to avoid a contract, must, be so excessive and absolute so as to suspend the reason for a time and create impotence of mind.
32 In the present case, the defendant has deposed that he was so drunk that he did not even know whether it was day or night. Moreover, DW-2 has deposed that "I had also taken one peg of drink when the plaintiff and defendant were drinking.
Suit No. 203/1993 Page 15 of 31The plaintiff had taken about three pegs of drink and had also taken non-veg in a large amount on that day. The plaintiff had brought two bottles of liquor on that day from which, one was consumed in full and one quarter of the second bottle was consumed by the defendant, plaintiff and me." From this deposition, it is clear that out of one and a quarter bottle of liquor which was consumed by the plaintiff, defendant and DW-2, the plaintiff and DW-2 had together consumed four pegs of drink and the rest was consumed by the defendant. This means that the defendant had consumed large quantity of alcohol and since he did not even know whether it was day or night, this court is of the view that the defendant was so drunk that he did not know the repercussions of his entering into the Agreement in question.
33 Ld. Counsel for the plaintiff also argued that if the defendant was aware that his signatures have been obtained on an agreement to sell while he was in a state of intoxication, then why did he not file any FIR or any civil suit for cancellation of the said agreement to sell. He further submitted that the said attitude of the defendant shows that he was not worried about the said Agreement and had willingly and knowingly entered into the Agreement.
34 The said plea of the plaintiff is wholly untenable as Suit No. 203/1993 Page 16 of 31 the defendant was not aware of the Agreement to Sell, then how could he file an FIR or a civil suit for the cancellation of the Agreement. It is the plea of the defendant that he has not entered into any Agreement to Sell and he has disputed the existence of the Agreement itself, then how can he be expected to file a civil suit in respect of a document, the existence of which he did not know.
35 From the above discussion, it is crystal clear that the defendant was highly drunk at the time of entering into the agreement and therefore, he did not have the capacity to contract. Since, an important requirement of Section 10 of Indian Contract Act is not met, the present contract is not enforceable.
36 Ld. Counsel for the defendant further submitted that intoxication affects the state of mind of a person and is also a factor that is to be considered to see if the consent was also freely given or not. He further submitted that if for the sake of argument, it is considered that there was consideration, then the same was highly inadequate as the value of the land was Rs. 10 Lakhs while the alleged agreement was for Rs.80,000/-. He further submitted that as per the law contained in Explanation II to section 25 of the Indian Contract Act "An agreement to which the consent of the promisor is freely given Suit No. 203/1993 Page 17 of 31 is not void merely because the consideration is inadequate; but the inadequacy of consideration may be taken into account by the court in determining the question whether the consent to the promisor was freely given."
37 On the other hand, Ld. Counsel for the plaintiff submitted that inadequate consideration does not make an agreement invalid and therefore, the Agreement in question is legal and valid and the same shall be ordered to be specifically performed by the defendant.
38 It is settled law that though, inadequate consideration does not make the contract invalid per se, however, it can be taken into account to see if the contract was entered into with the free consent of the parties. Moreover, the Hon'ble High court of Delhi in the case of Glitter Buildcon Pvt. Ltd. v. Sanjay Grover 2003 (105) DLT 530 has held as follows:-
"It has been contended that inadequacy of consideration is not a reason for declining the relief of specific performance. I cannot accede to this argument. What section 20 of the Specific Relief Act enunciates is that when the equitable relief of the specific performance of an Agreement to Sell is asked for, this prayer is not to be declined merely because the court is of the opinion that the market price was Suit No. 203/1993 Page 18 of 31 more than what was agreed upon by the parties. This is in a situation where the Agreement to Sell stands admitted. But this does not preclude the court from keeping the sale consideration in its perspective when it has to determine the genuineness of an Agreement or a document. There is appreciably a vast difference between the two situations. Where one party disputes the genuineness of an Agreement to Sell, relied upon by the plaintiff, the fact that the sale consideration mentioned therein is absurdly low may indicate that the document itself is fabricated. The court, therefore, may decline to take the Agreement into consideration not because the consideration is inadequate, but because the document/deed relied upon does not inspire confidence and acceptance by the court."
39 In issue no. 1, this court has decided that there was no consideration in the Agreement vis-a-vis the sale and purchase of the suit land itself. However, as an alternative and for the sake of arguments, if it is considered that the consideration was inadequate, then applying the principles laid down in the above mentioned judgment to the facts of the present case, it becomes imperative to see if the consent was freely given. It has already been observed above that the defendant was in the state of intoxication when the agreement was signed and keeping in mind the fact that the consideration was so low, this court is of the view that the defendant was not Suit No. 203/1993 Page 19 of 31 in a state to give his free consent to the Agreement. In view of the above discussion, it is concluded that the defendant was highly intoxicated and therefore, he did not have the capacity and competence to contract or give his free consent to the contract. Therefore, the contract is not enforceable. This issue is accordingly decided in favour of the defendant and against the plaintiff.
ADDITIONAL ISSUE:
Whether the alleged agreement is vague and void for uncertainty?
40 Onus to prove this issue was not placed upon any of the parties. However, since the issue has been raised by the defendant, it should have been placed upon the defendant.
41 Ld. Counsel for the defendant submitted that no house number was mentioned on the agreement and therefore, the agreement is void for uncertainty and vagueness. In reply to this contention of the defendant, Ld. Counsel for the plaintiff argued that because the property at that time was not regularised, there were no municipal house numbers allotted to the property and because there were no house numbers, a site plan was prepared, thus, the agreement is not void.
Suit No. 203/1993 Page 20 of 3142 Since a proper site plan was prepared, the property was sufficiently identified and therefore, not mentioning the municipal number does not make the agreement uncertain or void. Thus, the agreement is not void for uncertainty. This issue is accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE No. 3:-
Whether the pltf is entitled for the reliefs claimed? OPP.
43 Onus to prove this issue was placed upon the plaintiff. Ld. Counsel for the plaintiff submitted that the parties had entered into an Agreement to Sell and therefore, they are under an obligation to perform their part of the Agreement and honour the Agreement.
44 Ld. Counsel for the defendant submitted that besides the fact that the alleged Agreement to Sell was entered into by the defendant when he was highly intoxicated and the fact that there is no consideration or inadequate consideration for the sale of the suit land, the Agreement itself is not a valid document. He further submitted that the said document has been notarised but it is not pleaded as to where it was notarised and by whom; secondly, the contents of the Agreement have been written at the back of the stamp paper and thirdly, the Suit No. 203/1993 Page 21 of 31 stamp paper is dated 13.08.1989 while the agreement was entered into on 22.11.1989.
45 On the other hand, Ld. Counsel for the plaintiff submitted that the Agreement to Sell is not required to be notarised and nor is there any bar on writing at the back of the stamp paper. He further submitted that a stamp paper is valid for six months and merely because the agreement was entered into three months after the purchase of the stamp paper does not mean that the Agreement is not valid. He also submitted that at times negotiations take a lot of time and in the present case, the stamp paper was bought by the plaintiff in the month of August, 1989 and the Agreement was written on the said stamp paper after much negotiations and therefore, the agreement is valid.
46 It is settled law that the agreement is not required to be notarised (B. Jogi Reddy v. Baldev Singh (died) by LRs 2003 (4) ALD 276) and also that there is no bar on writing at the back of the stamp paper. Moreover, merely because the stamp paper was bought three months prior to it was used does not make it invalid. Therefore, the contentions of the defendant are not tenable.
47 Ld. Counsel for the defendant also argued that a Suit No. 203/1993 Page 22 of 31 photocopy of the agreement has been filed and therefore, the Agreement cannot be read into evidence. On the other hand, Ld. Counsel for the plaintiff argued that the defendant was granted permission to lead secondary evidence vide order dated 24.02.1999 and therefore, the Agreement can be read into evidence. He further submitted that the defendant has admitted his signatures on the Agreement and therefore, the Agreement is valid. He also submitted that the executor of the document i.e. PW-1 has himself come to the court to depose that the document was drafted by him and therefore, the document stands proved. He also argued that the document was either destroyed or lost by the previous counsel of the plaintiff and despite various efforts, the said document could not be obtained from the said counsel.
48 It is clearly mentioned in paragraph 3 of reply on merits of the written statement of the defendant that the Agreement in question was got executed by the plaintiff from the defendant when the defendant was under the influence of liquor. This shows that the defendant admits that the Agreement to Sell was entered into, albeit under the influence of alcohol. Since the defendant admits the execution of the document, secondary evidence can be led of the same and therefore, the Agreement can be read into evidence (Section 65 (b) of the Indian Evidence Act, 1872).
Suit No. 203/1993 Page 23 of 3149 Ld. Counsel for the defendant further argued that it is an important requirement of Section 16 of Specific Relief Act that the plaintiff avers and proves that he was always ready and willing to perform his part of the contract. He further argued that only a bald averment has been made in the plaint that the plaintiff was ready and willing to perform his part of the contract and the same has not been proved by way of evidence.
50 Ld. Counsel for the defendant also argued that it is settled law that readiness means that the plaintiff has the financial capacity to honour his obligations and willingness means that he is mentally ready to perform his part of the contract. He further submitted that the plaintiff has not led any evidence to prove that he had the funds available to make the payment of the balance consideration and in fact no document like a bank account statement or passbook has been placed on record to prove that he was ready to perform his part of the contract. He has not even proved that he was mentally willing to perform his obligations of the contract as he has not led any evidence or placed on record any document to prove that he had approached the defendant with a draft of the sale deed or even otherwise to ask him to execute the sale deed and honour the contract. He did not even issue a legal notice to the defendant asking him to execute the sale deed. Moreover, he Suit No. 203/1993 Page 24 of 31 has approached the court two years and ten months after the execution of the alleged agreement to sell and this delay on his part shows that he was sleeping till date and was not interested in getting the sale deed executed.
51 Ld. Counsel for the defendant has relied on the judgment of N.P. Thirugnanam (D) by LRs vs. Dr. R. Jagan Mohan Rao and Ors. 1995 SCC (5) 115, wherein, it was held 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 and to judge 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 alongwith other attending circumstances.
52 Plaintiff has also relied on the judgment of A.K. Narula vs. Iqbal Ahmed and Ors., wherein, it was held that provision of Section 16 (c) of Specific Relief Act, 1963 providing readiness and willingness requires categorical evidence and not self serving statements. In this case, the court had decided against the plaintiff and had observed that besides making a self serving statement, the plaintiff has not filed any concrete proof with respect to his final capacity in the form of Suit No. 203/1993 Page 25 of 31 bank accounts, income tax returns, movable or immovable properties etc. 53 On the other hand, it is the case of the plaintiff that the plaintiff has averred in his plaint that he was always ready and willing to perform his part of the contract and merely because he has not proved his bank account details, does not mean that he was not ready and willing to perform his contract. The plaintiff has relied upon the judgment of Syed Dastagir vs. T.R. Gopalakrishna Setty AIR 1999 SC 3029, wherein, it was held that it is not important for the plaintiff to tender to the defendant or deposit in court any money but the plaintiff must at least aver his performance or readiness and willingness to perform his part of the contract.
54 He has also relied on the judgment of Motilal Jain Vs. Ramdasi Devi & ors. AIR 2000 SC 2408, wherein, it was held that readiness and willingness could not be treated as a straight jacket formula and that had to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.
55 The judgments relied upon by the plaintiff are on the point that it is important to aver that the plaintiff is ready and willing to perform his part of the contract. It is true that the Suit No. 203/1993 Page 26 of 31 plaintiff does not have to tender the amount but he has to prove that he has the money to make the payment of the balance consideration. Considering the entire facts and circumstances of the present case, this court is of the view that neither did the plaintiff prove that he had the funds to pay the balance consideration nor did he prove that he was willing to perform his part of the contract. He has not led any evidence, in fact, he has not even averred that he had approached the defendant on any specific date to ask him to execute the sale deed. If he was willing and keen to perform his contract, he would have approached the defendant at least 10-15 times during the two years and 10 months' period. But no such averment has been made. Therefore, this court is of the view that the plaintiff has failed to prove that he was ready to perform his part of the contract.
56 It is also the case of the defendant that the plaintiff filed the present suit two years and ten months after the execution of the Agreement to Sell. It is the case of the defendant that the plaintiff is not entitled to the discretionary relief of specific performance due to the inordinate delay. The defendant has placed reliance on the judgment of Anil Sharma & Ors. Vs. Mahesh Dass through LRs and ors, wherein, the court had held that every suit for specific performance need not be decreed merely because it is filed within the period of Suit No. 203/1993 Page 27 of 31 limitation by ignoring the time limits stipulated in the agreement. Courts will also 'frown' upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.
57 In the present case, the plaintiff has pleaded that he has paid Rs. 50,760/- towards the consideration of sale. However, the plaintiff not been able to prove receipt of Rs. 15,000/- that has been alleged to have been paid in cash. He has also not been able to prove that he had purchased bricks worth Rs. 14,760/-. Therefore, the plaintiff has, if at all, proved only Rs. 21,000/- of sale consideration. Rs. 21,000/- is not even 30 % of the alleged sale consideration. Further, by no stretch of imagination can this court believe that the plaintiff will not pursue the sale transaction for two years and ten months. This only shows that the plaintiff was not serious about this sale, if at all, and that he was not ready and willing to perform his part of the contract.
58 Section 20 (1) of Specific Relief Act provides that Suit No. 203/1993 Page 28 of 31 the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so ; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
59 It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to the settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963. Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale (N.P. Thirugnanam case(supra)).
60 It is trite law that for an agreement to be specifically enforced, the mandatory requirements have to be fulfilled i.e. there should be a valid agreement fulfilling the conditions of Section 10 of the Contract Act ; there should be a breach of the agreement and an averment and proof by the plaintiff that he has either performed or is and has been ready and willing to perform his part of the contract.
61 In the present case, the agreement cannot be specifically enforced due to the following reasons:-
Suit No. 203/1993 Page 29 of 31a) As decided in issue no. 1, there is no consideration for the sale of the suit land and therefore, the Agreement is void for lack of consideration under Section 25 of the Indian Contract Act.
b) As decided in issue no. 2, the defendant was so drunk at the time of entering into the Agreement that he could not realise the repercussions of his entering into the Agreement and therefore, as per Section 12 of the Indian Contract Act, he was not in a fit state of mind to enter into an Agreement and thus, he was not competent to contract and accordingly, the said Agreement cannot be said to be enforceable as an important requirement of Section 10 of Indian Contract Act has not been fulfilled.
c) As decided in issue no. 2, the consent of the defendant was not freely given as he was under the influence of alcohol.
d) The plaintiff has not been able to prove that he was ready and willing to perform his part of the contract and therefore, the most important requirement of Section 16 (c) of Specific Relief Act has not been met out.
62 In view of the above reasons, this issue is decided against the plaintiff and in favour of the defendant.
Suit No. 203/1993 Page 30 of 31Relief.
63 In view of my findings on various issues, as discussed above, the plaintiff is not entitled for any relief from this court and therefore, the suit of the plaintiff is hereby, dismissed. No order as to costs. Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court today on this 13th day of March, 2013.
(RUCHI AGGARWAL ASRANI) CIVIL JUDGE, CENTRAL-02, TIS HAZARI COURTS, DELHI.
Suit No. 203/1993 Page 31 of 31 CS No. 203/1993 13.03.2013 Present: None.
Vide separate judgment of even date, the suit of the plaintiff has been dismissed. No order as to costs. Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
(Ruchi Aggarwal Asrani) CJ/CENTRAL-02/DELHI/13.03.2013 Suit No. 203/1993 Page 32 of 31