Delhi District Court
Sh. Sukhdeep Singh vs Sh. Satbir on 13 March, 2020
IN THE COURT OF SH. SANJEEV KUMAR-II, ADJ-04, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI.
Civil Suit No. 6249/16
Sh. Sukhdeep Singh
S/o Late Sh. Bhagwant Singh,
R/o 29-C, Road No.1, Silver Oak Farms,
Part of Khasra No. 539/1 (1/16), 538 (0-8),
Ghitorni, New Delhi
........Plaintiff
Versus
1. Sh. Satbir
S/o Late Sh. Mam Chand,
R/o House No. 255, Tarla Mohalla,
Near Bada Kuan,
Village & Post Office Ghitorni,
New Delhi.
2. Sh. Bharat Lal
S/o Late Sh. Mam Chand,
R/o House No. 255, Tarla Mohalla,
Near Bada Kuan,
Village & Post Office Ghitorni,
New Delhi.
3. Smt. Resham
Widow of Late Sh. Simru (S/o Sh. Barkat),
R/o Village & Post Office Ghitorni,
New Delhi.
4. Ms. Ritu
D/o Late Sh. Simru,
Village & Post Office Ghitorni,
New Delhi.
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 1/53
5. Sh. Jitender
S/o Late Sh. Simru,
Village & Post Office Ghitorni,
New Delhi.
6. Ms. Jyoti (minor)
D/o Late Sh. Simru,
(through her mother and natural Guardian Smt. Resham
defendant no.3)
Village & Post Office Ghitorni,
New Delhi.
7. Sh. Harish (minor)
S/o Late Sh. Simru,
(through his mother and natural Guardian Smt. Resham
defendant no.3)
Village & Post Office Ghitorni,
New Delhi.
...... defendants
Date of institution of the suit : 20.05.2014
Date reserved for judgment : 12.02.2020
Date of pronouncement of judgment : 13.03.2020
1. The facts in brief which led to the filing of the present suit are that
an Agreement to Sell dated 04.12.2011 was executed between the
Defendants No. 1 and 2, alongwith one Shri Simru (who happens to be
the husband of the Defendant No. 3 and father of the Defendants No. 4 to
7) on the one hand, being the co-owners/sellers, and the Plaintiff on the
other hand, being the Purchaser, qua sale and purchase of the suit land for
a total sale consideration of Rs. 13,50,00,000/- (Rupees Thirteen Crores
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 2/53
Fifty Lacs only) and out of which, the Plaintiff had paid a sum of Rs.
1,35,00,000/- (Rupess One Crore Thirty Five Lakhs only) to the said Shri
Simru and the Defendants No. 1 and 2 as earnest money/part payment
regarding which a Receipt dated 04.12.2011 was jointly executed by them
acknowledging the receipt of the said payment of Rs. 1.35 Crores.
Pertinently, the suit land is adjacent to the residential property of the
Plaintiff [i.e. Property bearing No. 29/C, Road No. 1, Silver Oak Farms,
Ghitorni, Delhi, owned by the wife of the Plaintiff, namely, Smt. Tara
Singh, vide registered Sale Deed dated 13.07.2006]. The Defendants No.
1 and 2 alongwith the said Shri Simru had represented to the Plaintiff that
they were the co-owners of the suit land in which the Defendants No. 1
and 2 are having 1/4th undivided share each, whereas the remaining ½
undivided share of the suit land was owned by the said Shri Simru.
Considering the respective proportionate shares in the suit land, the
Plaintiff paid a sum of Rs. 67.50 Lakhs to the Defendants No. 1 and 2,
and out of which, a sum of Rs. 57.50 lakhs was paid in cash and the
remaining sum of Rs. 10 lakhs was paid by way of a Cheque bearing No.
207542 and another cheque bearing No. 207543, both dated 04.12.2011,
for Rs. 5 lakhs each, both drawn on Punjab National Bank, Civil Lines
Branch, Delhi-110054, issued in favour of the Defendant No. 1 (Satbir)
and the Defendant No. 2 (Bharat Lal) respectively. Similarly, the Plaintiff
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 3/53
paid a sum of Rs. 67.50 Lakhs to the said Shri Simru out of which a sum
of Rs. 62.50 lakhs was paid in cash and a sum of Rs. 5 lakhs was paid by
way of a Cheque bearing No. 207544, dated 04.12.2011, for Rs. 5 lakhs,
drawn on Punjab National Bank, Civil Lines Branch, Delhi-110054,
issued in favour of the said Shri Simru. The aforesaid cheques were duly
encashed regarding which a Certificate dated 03.09.2013 was issued by
the said Bank. Importantly, as per the terms and conditions of the
Agreement to Sell dated 04.12.2011, it was agreed between the parties
that the remaining sum of Rs.12.15 Crores shall be paid by the Plaintiff
on or before 8 months from the date of execution of the said Agreement
(i.e. on or before 04.08.2012), at the time of registration of the Sale Deed;
meanwhile, before making the final payment, the Defendants No.1 and 2
and the said Shri Simru had to obtain NOC/ requisite permission from the
concerned authority for sale of the suit land and after obtaining the said
permission, they had to inform about the said permission to the Plaintiff
by registered post and thereafter, a registered sale deed was to be
executed in favour of the Plaintiff within 10 days.
2. Unfortunately, the said Shri Simru died intestate on 16.12.2011
leaving behind his widow, namely Smt. Resham (i.e. the Defendant No.
3) and two daughters, namely, Ritu (i.e. the Defendant No. 4) and Jyoti
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 4/53
(minor) (i.e. the Defendant No. 6), and two sons, namely, Jitender (i.e. the
Defendant No. 5) and Harish (minor) (i.e. the Defendant No. 7). After
demise of the said Shri Simru, the aforesaid legal heirs (i.e. the
Defendant Nos. 3 to 7) inherited 1/5th undivided share each in the 1/2
undivided share of the said Simru in the Suit land (i.e. 1/10th undivided
share each). After the death of Simru, the Plaintiff approached the
Defendants No. 1 & 2 and the Defendants No. 3 to 5 for compliance of
their part of obligations as per the Agreement to Sell dated 04.12.2011.
Since the Defendants No. 6 and 7 were minors, the Plaintiff requested the
Defendant No. 3, being their mother and natural guardian, for obtaining
necessary sale permission of their undivided shares in the Suit land from
the concerned District Judge as per the provisions of Section 8 of the
Hindu Minority and Guardianship Act, 1956. Further, the Plaintiff also
approached the Defendants No. 1 to 3 for obtaining necessary permission
regarding No-objection from the Revenue Department of the Govt. of
NCT of Delhi for sale of the Suit land. Moreover, it is the case of the
Plaintiff that after execution of the Agreement to Sell, the possession of
the suit land was also handed over to the Plaintiff and after occupying the
same, he got constructed a Boundary Wall(s) on the suit land, with the
consent and knowledge of the Defendants No. 1 to 3. Pertinently, after
getting no response from the Defendants regarding their part of
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 5/53
obligations qua the said Agreement to Sell, the Plaintiff got sent a Legal
Notice dated 25.08.2012, through his Counsel to the Defendants thereby
giving final notice to obtain necessary sale permission from the Revenue
Department as well as requisite permission for sale qua the respective
undivided shares of the minors (i.e. Defendants No. 6 and 7) from the
concerned District Court, failing which the Plaintiff shall be constrained
to take legal action against them. After receipt of the Legal Notice), the
Defendant No. 1 and his musclemen demolished part of the said boundary
wall and threatened the Plaintiff to demolish the remaining wall(s).
Aggrieved, the Plaintiff lodged a Complaint dated 19.08.2012 against the
Defendant No. 1 with Police Station Vasant Kunj (South), Delhi.
Thereafter, on 09.09.2012, the Defendant No. 1 and his goons again came
to the suit land and demolished the said boundary wall(s) and thus
forcibly took the possession of the suit land, except the portion of suit
land bearing khasra No. 539/2(0-17) as shown in green in the Site Plain
filed by the Plaintiff. With regard to the said incident, the Plaintiff made
PCR Calls and further lodged a Complaint dated 09.09.2012 with the
SHO, Police Station Vasant Kunj (South), Delhi as well as a Complaint
dated 09.09.2012 with the DCP, Vasant Kunj (South), Delhi.
Consequently, the Police Officials registered Complaints vide DD No.
14A, dated 09.09.2012 and DD No. 16B, dated 09.09.2012 regarding
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 6/53
PCR call. The Police Officials thereafter recorded the statement of the
Defendant No. 1. The aforesaid complaints culminated into a Kalandra
under Sections 107/150 Cr.P.C and subsequently, the proceedings in
regard to the said Kalandra was initiated before the concerned SEM,
Kapashera, Delhi against the Plaintiff as well as the Defendant No. 1 and
one Sunder (son of the Defendant No. 2). In the aforesaid proceedings,
the Defendant No. 1 and the said Sunder filed their joint Reply through
their Advocates, namely, Shri Rajbir Singh Gulia and Shri Deshpal.
Eventually, the said proceedings initiated under Sections 107/150 Cr.P.C
were disposed of by the Court of Special Executive Magistrate by
observing that the disputes between the parties are of civil nature and that
the parties can have their redressal from the concerned Court of law, vide
Order dated 19.03.2013.
3. It came to his knowledge that the Defendants had applied for sale
permission before the learned District Judge (Family Court), Saket
Courts, New Dehi under Sections 7 and 29 of the Guardian & Wards Act,
1890 vide Petition bearing G. No. 34/12. The said Petition was however
disposed of by the Court of Shri K.S.Mohi, Judge, Family Court, vide
Order dated 31.07.2012 with liberty to file the same before the competent
District Court. Thereafter, the Defendants filed another Petition vide G.
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 7/53
No. 9/2012 titled "Smt Resham & Others Vs. State" which was also
withdrawn vide Order dated 07.01.2013. Further, it is the case of the
Plaintiff that the aforesaid acts on the part of the Defendants tantamount
to refusal by the Defendants to perform their obligations under the
Agreement to Sell dated 04.12.2011. On the contrary, the Plaintiff had
always been ready and willing to perform his part of the obligations and
thus, waited for a considerable period of time; however, the Defendants
did not inform him regarding requisite permission for sale on behalf of
the minors from the competent Court as well as No-objection for sale of
suit land from the concerned Revenue Authority. With the aforesaid
averments, the plaintiff filed the present suit seeking the reliefs as prayed
for in the present suit.
4. Written statement was filed on behalf of defendant wherein the
defendant disputed and denied the contents of plaint. It is stated in the
Written Statement that on being served in the present suit, the defendants
filed their Written Statement and subsequently, on permission granted, the
defendants filed their Amended Written Statement thereby taking
objections regarding the maintainability of the present suit while denying
the contentions and reliefs sought for by the plaintiffs. It was contended
by the defendants in their Written Statement that they were always
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 8/53
willing and ready to perform their contractual obligations whereas the
plaintiff was never in such a financial position so as to pay the balance
sale consideration. It was also alleged by the defendants that since the
plaintiff was unable to arrange the funds for paying the balance sale
consideration, he approached the defendants for giving effect to another
Agreement to Sell in respect of a part of suit land after adjusting the
earnest money paid by him towards the fresh sale consideration but the
said proposal could not be materialized. It was further alleged that after
the death of the said Simru, the defendants immediately took steps for
transferring the share of the deceased, Simru in the name of his legal
representatives (i.e. the defendants No. 3 to 7) in the Revenue Records
and thus the Suit land now stands in the name of the defendants No. 3 to
7 in the Revenue records. Furthermore, it is alleged by the defendants that
the Plaintiff in collusion with their earlier Advocate (Shri Rajbir Singh
Gulia) played fraud upon the defendants and that the said Advocate had
dealt with the matter (regarding obtaining the Sale Permission) with
utmost carelessness and in a causal manner in order to prolong the matter
so that the entire blame could be subsequently shifted to the defendants
and the plaintiff could easily escape from the terms of the Agreement to
Sell dated 04.12.2011. It is further alleged that the said Advocate played a
fraud, inasmuch as, he, being the main counsel of the defendants at the
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 9/53
relevant point of time, falsely represented that he had the necessary
instructions from his client to withdraw the matter from the concerned
Court on 07.01.2013, even though no such instruction was given to him.
With the aforesaid version of defence set up by the defendants, they filed
their Written Statement.
5. In the Replication, the plaintiff has denied the contents of the
Written Statement. Plaintiff has reiterated & reaffirmed the contents of
the plaint.
6. From the pleadings of the parties, the following issues were
framed on 29.03.2017:
ISSUES
Issue No. 1. Whether the defendants are entitled to forfeit the amount
paid by the plaintiff under the agreement to sell dated
04.12.2011? OPD
Issue No. 2. Whether the plaintiff is illegally occupying 800 sq. yds.
lands belonging to the defendants?OPD
Issue No. 3. Whether the defendants have admitted breach of terms
and conditions of agreement to sell dated 04.12.2011?
OPP
Issue No. 4. Whether the plaintiff is entitled for a decree of suit
amount, as prayed for? OPP
Issue No. 5. Whether the plaintiff is entitled for interest, if so at what
rate and for which period. OPP
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 10/53
Issue No. 6. Whether the plaintiff is entitled to the relief of
permanent injunctions, as prayed for in clause C and D
of prayer clause of the plaint. OPP
Issues No. 7. Relief.
7. In support of his evidence, the plaintiff examined five witnesses in
all. Plaintiff examined himself as PW-1 and tendered his evidence by
way of affidavit Ex.PW1/A and reiterated and reaffirmed the contents of
the plaint in his affidavit. He has relied upon following documents:
1. Ex. PW1/1 is copy of sale-deed dated 13.07.2006.
2. Mark 'A' is the copy of House Tax Return.
3. Ex. PW1/4 is the copy of House Tax Receipt bearing No. 032515
dated 26.03.2013.
4. Mark 'B' is the photograph of the property bearing No. 29-C,
Road No.1, Silver Oak Farms.
5. Ex. PW1/6 is the Site Plan.
6. Mark 'C' is the photograph of the suit property.
7. Ex. P-4 is the copy of Agreement to Sell dated 04.12.2011.
8. Ex. P-1 is the copy of the Cheque bearing No. 207542 dated
04.12.2011.
9. Ex. P-2 is the copy of the Cheque bearing No. 207543 dated
04.12.2011.
10. Ex. P-3 is the copy of the Cheque bearing No. 207544 dated
04.12.2011.
11. Ex. P-5 is original receipt dated 04.12.2011.
12. Ex. P-6 is the Certificate dated 03.09.2013 issued by the Manager,
Punjab National Bank, Civil Lines Branch, Delhi.
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 11/53
13. Ex. PW1/8 is Legal Notice dated 25.08.2012.
14. Ex. PW1/9 (Colly) are Postal receipts.
15. Ex. PW1/10 (Colly) are the AD Cards.
16. Ex. PW1/11 (Colly) are Courier receipts.
17. Mark 'D' is copy of complaint dated 19.08.2012 lodged with the
SHO, P.S. Vasant Kunj, New Delhi.
18. Ex. PW1/13 is complaint dated 09.09.2012.
19. Ex. PW1/14 is complaint dated 09.09.2012.
20. Ex. P-10 is Certified copy of DD bearing No. 14A dated
09.09.2012 with P.S. Vasant Kunj.
21. Ex. P-11 is the Certified copy of DD bearing No. 16B dated
09.09.2012 with P.S. Vasant Kunj.
22. Ex. P-12 is the Certified copy of statement dated 09.09.2012 of
defendant No.1 Sh. Satbir with P.S. Vasant Kunj.
23. Ex. PW1/15 is Certified copy of statement of Sh. Sunder dated
09.09.2012.
24. Ex. P-7 is the Certified copy of Kalandra dated 09.09.2012.
25. Mark 'E' is copy of reply dated 06.10.2012.
26. Ex. P-8 is the Certified copy of joint reply dated 26.10.2012;
27. Ex. P-9 is the Certified copy of Vakalatnama dated 10.10.2012.
28. Ex. P-13 is the Certified copy of order dated 19.03.2013 passed by
SEM, South Delhi.
29. Ex. PW1/17 (Colly) is the Certified copy of the petition filed by
the defendant No.3 under Section 7 read with Section 29 of
Guardian & Wards Act, 1890.
30. Mark 'F is the copy of order dated 31.07.2012 passed in
Guardianship Petition bearing No. 34/2012.
31. Mark 'G' is the copy of the order dated 07.01.2013.
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 12/53
32. Ex. PW1/20 is the Certified copy of the registered sale-deed dated
22.10.2014.
33. Ex. PW1/21 is the true copy of the reply to the application filed
under Section 84 of the Delhi Land Reforms Act.
8. PW-2, Sh. Girish Lohia tendered his evidence by way of affidavit
Ex.PW2/A. He is witness of the agreement to sell (Ex. P-4) and of receipt
(Ex. P-5). He also testified that after the demise of Sh. Simru, he
alongwith plaintiff approached several times to the defendants no. 1 to 3
requesting them to take necessary permission for sale of said agriculture
qua the shares of minors legal heirs of the deceased Simru from the
concerned court of law and also requisite permission from the Revenue
Authority. He also testified that eventually, on 03.08.2012, that he and
the plaintiff met the defendant no. 1 at one of his properties near
cremation ground, Ghitorni, M.G. Road, New Delhi and called upon him
for execution of the sale deed to which he blatantly refused to execute the
same.
9. PW-3, Sh. Inderpal Singh tendered his evidence by way of
affidavit Ex.PW3/A. He is the witness of the receipt (Ex. P-5).
10. PW-4 Sh. Gangadharan, Assistant Sub Inspector, police station
Vasant Kunj, who has proved the order, copy of which is Ex. PW-4/A by
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 13/53
which the record of complaints dated 19.08.2012 and 09.09.2012 lodged
by the complainant Sukhdev Singh at police station Vasant Kunj have
been weeded out.
11. PW-5 Sh. Manjeet Singh, Kanoongo, Office of SDM, Vasant
Vihar, New Delhi has proved Khatouni Consolidation Register pertaining
to the agriculture land measuring 6 bigha 9 biswa falling in Khasra No.
539/2(0-17); 540 (0-16) and 541 (4-16) situated in the Revenue Estate of
Village Ghitorni, Telsil Vasant Vihar, Delhi. The copy of the said order
has been exhibited as Ex. PW5/A.
12. In their defence, the defendants examined only one witness in all
who is defendant number 1 Satbir Singh (DW-1). He tendered his
evidence by way of affidavit Ex.DW1/A and reiterated and reaffirmed the
contents of the Written Statement in his Evidence by way of Affidavit.
He has relied upon following documents:
1. Ex. DW1/1 is the Khatauni consolidation.
2. Mark 'A' (Colly) is the complaint dated 04.09.2012.
13. I have heard final arguments advanced by learned counsel for both
the parties and perused the record.
14. Mr. Rajat Aneja, learned counsel appearing for the plaintiff has
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 14/53
submitted that an agreement to sell dated 04.12.2011 was executed
between the plaintiff and defendants no.1 & 2 alongwith one Sh. Simru
qua sale and purchase of the suit land for a total consideration of
Rs.13,50,00,000/- and out of which, the plaintiff had paid a sum of
Rs.1,35,00,000/- to the said Simru and defendants no. 1 & 2 as earnest
money / part payment. As per terms and conditions of the said agreement
to sell, it was agreed between the parties that remaining sum of
Rs.12,15,00,000/- shall be paid by the plaintiff on or before eight months
from the date of execution of the said agreement, at the time of
registration of the sale deed but before making the final payment, the
defendants no.1 & 2 and said Sh. Simru had to obtained NOC / requisite
permission from the concerned authority for sale of the suit land and after
obtaining the said permission, they had to informed about the said
permission to the plaintiff by registered post and thereafter, a registered
sale deed was to be executed in favour of the plaintiff within 10 days. The
said Simru died intestate on 14.12.2011 leaving behind his widow, two
daughters and two sons out of which one daughter and one son were
minor. Since the defendants no. 6 & 7 were minors the plaintiff requested
the defendant no.3, being their mother and natural guardian, for obtaining
necessary sale permission of their undivided share in the suit property
from the concerned District Judge as per provisions of Section 8 of the
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 15/53
Hindu Minority and Guardianship Act, 1956. Further the plaintiff had
approached the defendants no. 1 to 3 for obtaining necessary permission
regarding No-objection from the Revenue Department of the Government
of the National Capital Territory of Delhi for sale of the suit property /
land. After execution of the agreement to sale, the possession of the suit
was also handed over to the plaintiff and after occupying the same, he got
constructed a boundary wall on the suit land with the consent and the
knowledge of the defendant no. 1 to 3. After getting no response from the
defendants, regarding their part of obligations qua the said agreement to
sale, the plaintiff got sent a legal notice dated 25.08.2012 to the
defendants thereby giving final notice to obtain necessary sale permission
from the Revenue Department as well as requisite permission for sale qua
the respective undivided shares of the minors (defendants no.6 and 7)
from the concerned District Judge. After receipt of the legal notice,
defendant no.1 and his musclemen demolished part of the said boundary
wall and threatened the plaintiff to demolish the remaining wall. In this
regard, plaintiff lodged a complaint also.
15. Mr. Rajat Aneja has further submitted that the defendants had
applied for sale permission before the learned District Judge (Family
Court), Saket Courts, New Delhi, under Section 7 and 29 of the Guardian
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 16/53
and Wards Act, 1890 vide petition bearing G. No. 34/12 (Ex. PW-1/17)
but same was disposed off by learned Family Court vide order dated
31.04.2012 with liberty to file the same before competent District Court.
Thereafter, defendants had filed another petition vide G. No. 9/12 which
was also withdrawn vide order dated 07.01.2013 (Mark-G). The said Act
on the part of the defendants tantamount to refusal by the defendants to
perform their obligations under the Agreement to Sale. On the contrary
the plaintiff had always being ready and willing to perform his part of the
obligations and thus, waited for a considerable period of time, however,
the defendant did not inform him regarding requisite permission for sale
on behalf of the minors from the competent court as well as No-objection
for sale of suit land from the concerned Revenue Authority.
16. Mr. Rajat Aneja has further submitted that the defendants did not
take any permission from the Revenue Authority for sale of the suit land
and therefore, they could not intimate the plaintiff about the permission
qua sale of the suit land from the Revenue Authority as well as the sale of
the respective shares of the minors from the Competent Court of Law.
The story propounded by the defendants about the alleged conspiracy
before their earlier advocate and plaintiff itself deserves rejection as the
defendants failed to prove any material whatsoever in order to
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 17/53
substantiate the said allegations of the conspiracy. No verbal agreement
can be proved under Sections 91 and 92 of the Indian Evidence Act.
17. Mr. Rajat Aneja has further submitted that defendants failed to
perform their obligations even after the stipulated period for completion
of the sale transaction and thus, they were not entitled to forfeit the
amount paid by the plaintiff under the said agreement to sell. DW-1
himself has admitted that possession of the suit land was handed over by
the defendants to the plaintiff. After the dispatch of the legal notice dated
25.08.2012, the defendant no.1 and his associates took the possession of
the suit land except the portion of suit land (i.e. 800 sq. yds.). Since the
defendants were not entitled to forfeit the said earnest money, paid by the
plaintiff, therefore, the occupation of the part of the suit land (i.e. 800 sq.
yds.) cannot be considered as illegal in any manner. The defendants have
not filed counter-claim before this court in respect of said suit land (800
sq. yds.). Further, defendants had filed application under Section 84 of the
Delhi Land Reforms Act for seeking the eviction of the plaintiff herein
from there agriculture land (i.e. 800 sq. yds.) and the same is pending
before the court of Revenue Assistant/SDM, Revenue Department, Govt.
of NCT. of Delhi and therefore, issue no.2 framed in the present suit is
not required to be decided by this court. During the course of the
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 18/53
arguments, learned counsel has also submitted that till the time, earnest
money is not paid by the defendants to the plaintiff, the agriculture land
(800 sq. yds.) is legally occupied by the plaintiff. If issue no.1 is decided
against the defendants, the issue no.2 will go in favour of the plaintiff.
18. Mr. Rajat Aneja has further submitted that the defendants had
forfeited the earnest money given by the plaintiff towards the sale in
respect of suit property. It is for the defendants to plead and prove that
loss has been occasioned to them on account of breach of contract by the
plaintiff, and unless same is not pleaded and proved, the defendants
cannot forfeits the earnest money paid by the plaintiff. In the present case,
defendants have neither pleaded nor proved that the loss has been
occasioned to them on account of breach of contract by the plaintiff and
therefore, earnest money could have been forfeited by the defendants. In
this regard, reliance has been placed on behalf of the learned counsel
upon the Sections 73 and 74 of the Indian Contract Act and decisions,
namely, Arun Khanna v. Sumit, 2018 SCC OnLine Delhi 13040; Airports
Authority of India v. R.K. Singhal, 2011 SCC OnLine Del 4786, Fateh
Chand v. Balkishan Dass (1964) 1 SCR 515 and Ashok Kumar & Ors. Vs.
Munni Devi (Smt.) & Ors., 2012 (129) DRJ 476 in support of his
contention.
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 19/53
19. Per contra Mr. Charan S. Verma, learned counsel appearing for the
defendants has submitted that it is in admitted fact that the possession of
the land in question was not handed over to the plaintiff at the time of
execution of the agreement to sell dated 04.12.2011 (Ex. P-4) and as per
the agreed terms and conditions of agreement to sell, the actual physical
possession of the land was to be given to the plaintiff at the time of full
and final payment and since admittedly the plaintiff took the possession
of the land in question after the execution of the agreement to sell and as
such the plaintiff was under obligation to make the full and final payment
to the defendants, which he miserably failed and as such the defendants
became entitle to forfeit the advance money / earnest money paid to them
without any intimation / notice. Hence, through the possession was taken
by the plaintiff but he did not make the payment of the balance
consideration of Rs.12,50,00,000/- to the defendants as agreed upon and
it was even admitted by the plaintiff that after 04.12.2011, he did not pay
any amount to the defendants and as such the defendants have
successfully discharged their burden to prove issue no. 1. The plaintiff is
occupying the land ad-measuring 850 sq. yds. illegally without making
any further payment to the defendants and the defendants have rightly
and legally forfeited the earnest money. The defendants have already filed
an eviction suit for the said land ad-measuring 850 sq. yds. before the
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 20/53
Revenue Court / SDM.
20. Mr. Charan S. Verma has further contended that when the plaintiff
fail to make the payment of the balance consideration even after taking
possession of the entire land agreed to be sold, he cannot be permitted to
take advantage of the fact that the defendants did not obtain the
permission from the Revenue Authority or from the learned District Judge
in as much as it was obligatory on the part of the plaintiff to make the
payment of the entire balance sale consideration upon taking the
possession of the entire land from the defendants, which he failed /
neglected to pay. Since the amount paid by the plaintiff was forfeited by
the defendants, the plaintiff is not at all entitled to recover any amount
from them.
21. Mr. Charan S. Verma has further contended that there is no clause
in the agreement to sale with regard to payment of the interest at any rate
whatsoever and therefore, no interest, if any, can be awarded to the
plaintiff. Even otherwise, when the earnest money paid by the plaintiff
was legally forfeited by the defendants in terms of the agreement to sale
on account of the default committed by the plaintiff, he is not entitled to
claim at any rate whatsoever from the defendants. Even otherwise further,
admittedly the plaintiff is still occupying the land of the defendants ad-
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 21/53
measuring 850 sq. yds. having the market value of more than the amount
paid by the plaintiff and as such there is/was no occasion for the plaintiff
to claim any interest from the defendants.
22. Mr. Charan S. Verma has further contended that since the amount
paid by the plaintiff towards advance money, was legally forfeited by the
defendants, the plaintiff has left with no right, title or interest qua the land
in question. The plaintiff has also prayed for permanent injunction which
cannot be granted because the plaintiff has not restored the possession
back to the defendants of their land ad-measuring 850 sq. yds.
23. Mr. Charan S. Verma has further contended that agreement to sale
has been terminated and suit has already been filed for eviction of the
plaintiff from the land ad-measuring 850 sq. yds. before the Revenue
Authority. The suit property including property 850 sq. yds. is a
agriculture land and Civil Court is not having jurisdiction in respect of
agriculture land. During the course of the arguments, learned counsel has
admitted that permission is required from the Revenue Authority for sale
of agriculture land and said permission was not taken by the defendants.
It is also admitted by learned counsel for the defendants that permission is
required from the District Judge / Competent Court for the sale of the
property / agriculture land to be sold by the minors but no permission was
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 22/53
taken by the defendants.
ISSUES No.1: Whether the defendants are entitled to forfeit the
amount paid by the plaintiff under the agreement to sell dated
04.12.2011? OPD
And
ISSUES No. 3: Whether the defendants have admitted breach of
terms and conditions of agreement to sell dated 04.12.2011? OPP
24. Above-mentioned both the issues will be decided together. It is
admitted between the parties that the defendants no. 1 & 2 alongwith Sh.
Simru (now deceased) were/are owners of the suit property / agriculture
land measuring 6 bighas 9 biswas bearing Khasra No. 539 / 2 (0-17), 540
(0-16), 541 (4-16) situated in the Revenue Estate of the Village Ghitorni,
Tehsil Vasant Vihar (Kapasera), New Delhi; that defendant no. 1 & 2
were having one fourth undivided shares each in the said suit property
and remaining one half undivided share was owned by Mr. Simru; there is
a agreement to sell dated 04.12.2011 (Ex. P-4) executed by the plaintiff
and defendants no. 1 & 2 and also Simru in respect of the suit property
for a total consideration of Rs.13,50,00,000/- ; that the plaintiff paid a
total sum of Rs.67,50,000/- to the defendants no. 1 & 2 and
Rs.67,50,000/- to said Simru as earnest money towards the suit property;
that said Simru died interstate on 16.12.2011 leaving behind defendant
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 23/53
no.3 to 7; that all the legal heirs of deceased Simru i.e. defendants no. 3 to
7 have inherited one fifth undivided share each in one half share of the
suit property; that the permission is required from the concerned Revenue
Authority for registration of sale of the suit property which is agriculture
land; that permission from learned District Judge/Competent Court is
required for sale of respective shares of the defendants no. 6 and 7 who
are minors; that no said requisite permissions from concerned Revenue
Authority and learned District Judge/Competent Court were / are taken by
the defendants.
25. Hence, there was an agreement to sell dated 04.12.2011 (Ex. P-4)
executed between the defendants no. 1 & 2 alongwith one Simru (who
happens to be the husband of defendant no.3 and father of defendant no.4
to 7) on the one hand, being the co-owners/sellers, and the plaintiff on the
other hand, being the purchaser, qua sale and purchase of the suit land /
property for a total sale consideration of Rs.13,50,00,000/- and out of
which, the plaintiff had paid earnest money of Rs.1, 35,00,000/- to the
defendant no.1 & 2 and said Shri Simru (Rs.67,50,000 were paid to the
defendant no.1 & 2 and Rs.67,50,000/- were paid to the said Simru as
earnest money). The possession of the suit property agreed to be sold was
taken later on by the plaintiff but said property was re-possessed by the
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 24/53
defendants except the land ad-measuring 850 sq. yds. which the plaintiff
is still occupying. As per clause 7 of the agreement to sell, Ex. P-4, the
defendants were entitled to forfeit the amount paid by the plaintiff, if the
plaintiff failed to pay the balance sale consideration within the stipulated
period which was fixed on or before 8 months from the execution of the
said agreement (i.e. on or before 04.08.2012). As per the plaintiff, the
balance payment towards the sale consideration was subject to the
conditions, mentioned in the said agreement whereunder the defendants
were to take requisite permission for sale of the suit property from the
concerned authority before making the final payment qua the sale
consideration by the plaintiff, and further, the said permission was to be
intimated to the plaintiff by the defendant through registered post.
Further, as per the plaintiff, the predecessor-in- interest of the defendants
no. 3 to 7 (i.e. Shri Simru) died on 16.12.2011, therefore, it was the
obligation of the defendants to transfer the undivided share of the
deceased Simru in the name of his legal heirs i.e. the defendants no. 3 to 7
and also to get the requisite permission. Further, as per the plaintiff, the
defendants no. 6 and 7 are the minors and therefore, permission from the
concerned court regarding sale of the respective shares of said minors
were to be taken by the defendants but said permissions were not taken
by the defendants and were not intimated to the plaintiff to perform his
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 25/53
obligation to pay the balance sale consideration under the said agreement
and therefore, defendants did not perform their obligation under the said
agreement to sell, on the contrary, the plaintiff had always been ready and
willing to perform his part of the obligations; as the defendants did not
inform the plaintiff regarding requisite permission for sale on behalf of
the minors (defendants no. 6 and 7) from the competent court as well as
no objection for sale of the suit property from the concerned revenue
authority and therefore, the defendants have breached the said agreement
to sale and purchase. On the other hand, this is a case of the defendants
that it is the plaintiff who has committed the breach of the contract in not
making the payment of sale consideration, despite taking the possession
of the entire suit property from the defendants, agreed to be sold to him
and as such the defendants have rightly forfeited the earnest money paid
to them by the plaintiff. It is also further case of the defendants that the
plaintiff is still occupying the part of suit land ad-measuring
approximately 850 sq. yds and therefore, the plaintiff on the one hand
intents to recover the earnest money paid by him to them and on the other
hand, he is trying to keep the land ad-measuring 850 sq. yds. with him.
Hence, each party blamed the other for failing to complete the sale
according to the terms of the agreement (Ex. P-4). Alleging that the
Agreement was rescinded because the defendant had committed default
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 26/53
in performing the agreement by not taking necessary permissions from
the competent authority/court, the plaintiff in an action filed in the court,
claimed a decree for recovery of Rs. 1,74,70,000/- (Rs.1,35,00,000/-
towards principal amount/earnest money, Rs. 39,15,000/- towards interest
for the period commencing from 04.12.2011 upto 30.04.2014 and Rs.
55,000/- towards notice charges) alongwith pendente lite and future
interest and permanent injunction. The defendants resisted the claim
contending inter-alia that the plaintiff having committed breach of the
contract/agreement (Ex. P-4) and having retained the possession of land
ad-measuring 850 square yards out of total suit land of the defendants,
plaintiff is not entitled for the relief.
26. The questions which fall to be determined in this suit are as to who
committed breach of the contract and whether defendants are correct in
forfeiting the earnest money of Rs. 1,35,00,000/-.
27. In Arun Khanna (supra), the Hon'ble High Court of Delhi has held
in Para No.15 to 17 as under:
"15. In sum and substance what is held by the Constitution Bench of
the Supreme Court in the cases of Fateh Chand (supra) and the
recent judgment in Kailash Nath Associates (supra) is that whenever
there is a breach of contract then earnest money which is forfeited
because of the breach, whether by a plaintiff or a defendant in a
contract, the forfeiture is of that amount which are in fact liquidated
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 27/53
damages specified under a contract and that for claiming damages
under a contract, whether liquidated under Section 74 of the Contract
Act or unliquidated under Section 73 of the Contract Act, existence
of loss is a sine qua non. In other words, if no loss is caused to a
seller who has in his pocket monies of buyer, then the seller can only
forfeit a nominal amount unless the seller has pleaded and proved
that losses have been caused to him on account of the breach of
contract by the buyer. Once there is no pleading of loss suffered by a
seller under an agreement to sell, then large amounts cannot be
forfeited though so entitled to a seller under a clause of an agreement
to sell/contract entitling forfeiture of 'earnest money' because what is
forfeited is towards loss caused, and that except a nominal amount
being allowed to be forfeited as earnest money, any forfeiture of any
amount, which is not a nominal amount, can only be towards loss if
suffered by the seller. Thus if there is no loss which is suffered by a
seller then there cannot be forfeiture of large amounts which is not a
nominal amount, simply because a clause in a contract provides so.
The following has been held in the judgment in the case of Kailash
Nath Associates (supra):-
(i) As per the facts existing in the case of Kailash Nath Associates
(supra) the Single Judge of the High Court had held that since no
damages were suffered by DDA therefore DDA could not forfeit the
earnest money. (Para 30 of Kailash Nath Associates's case (supra)).
(ii) The Division Bench of the High Court however set aside the
judgment of the Single Judge by holding that amount tendered as
earnest money can be forfeited because and simply forfeiture of
amount called as earnest money can be forfeited in terms of the
contract. (Para 30 of Kailash Nath Associates's case (supra)
reproducing Para 39 of the Division Bench judgment of the High
Court).
(iii) Supreme Court in the case of Kailash Nath Associates (supra) as
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 28/53
per Para 44 of its judgment holds that the Division Bench of the
High Court had gone wrong in principle because compensation can
be awarded (where there is breach of contract) only if loss or damage
is suffered i.e where there is no loss or damage suffered as a result of
breach of contract no compensation can be awarded as law does not
provide for a windfall i.e large amounts though called contractually
as earnest money cannot be forfeited unless loss is pleaded and
proved to have been suffered. These observations have cross-
reference to Para 34 of the judgment of Kailash Nath Associates's
case (supra) where with reference to the para of Fateh Chand's case
(supra) it is held that the language of Section 74 of the Contract Act
that 'whether or not damage or loss is proved to have been caused by
breach' is the language that such language only discharges proof of
actual loss but that does not justify award of compensation where in
consequence of breach no injury/loss has at all resulted.
(iv) Earnest money is an amount to be paid in case of breach of
contract, and named in contract as such, and that forfeiture of earnest
money is covered under the entitlement to liquidated damages under
Section 74 of the Contract Act vide Para 40 in the case of Kailash
Nath Associates (supra).
(v) The language of Section 74 of the Contract Act that "whether or
not actual loss or damage is proved to have been caused thereby"
means only that where it is difficult or impossible to prove loss
caused by the breach of contract then the liquidated damages/amount
(being the amount of earnest money) can be awarded vide Para 43(6)
of Kailash Nath Associates's case (supra) but where nature of
contract is such that loss caused because of breach can be assessed
and so proved then in such cases loss suffered must be proved to
claim the liquidated damages of earnest money. This finding has
cross reference to Para 37 of judgment in Kailash Nath Associates's
case (supra) where the observations of Supreme Court in Para 67 of
the case of ONGC Ltd. Vs. Saw Pipes Ltd. (2003) 5 SCC 705 are
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 29/53
quoted that liquidated damages are awarded where it is difficult to
prove exact loss or damage caused as a result of breach of contract.
(vi) Even where liquidated damages can be awarded under Section
74 of the Contract Act because loss or damages cannot be proved in
a contractual breach yet if the liquidated damages (earnest money)
are a penalty amount by its nature i.e prescribed liquidated damages
figure is unreasonable, then for the liquidated damages amount or
earnest money amount forfeiture cannot be granted/allowed and that
only reasonable amount is allowed as damages with the figure of
liquidated damages being the upper limit vide Para 43(1) of Kailash
Nath Associates's case (supra).
16. Similar ratio as has been laid down by the Supreme Court in
Kailash Nath Associates's case (supra) was also the ratio of the
judgment of the Supreme Court in the case of V.K. Ashokan Vs.
Assistant Excise Commissioner and Others (2009) 14 SCC 85 and
paras 66 to 71 of this judgment reads as under:-
"66. There is another aspect of the matter which cannot be lost sight
of. If damages cannot be calculated and the terms of the contract
provides therefor only for penalty by way of liquidated damages,
having regard to the provisions contained in Section 74 of the Indian
Contract Act a reasonable sum only could be recovered which need
not in all situations even be the sum specified in the contract. (See
Maula Bux Vs. Union of India and Shre Hanuman Cotton Mills vs.
Tata Air Craft Ltd.)
67. Section 74 of the Contract Act reads as under:
"74. Compensation for breach of contract where penalty stipulated
for-When a contract has been broken, if a sum is named in the
contract as the amount to be paid in case of such breach, or if the
contract contains any other stipulation by way of penalty, the party
complaining of the breach is entitled, whether or not actual damage
or loss is proved to have been caused thereby, to receive from the
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 30/53
party who has broken the contract reasonable compensation not
exceeding the amount so named or, as the case may be, the penalty
stipulated for."
68. There are authorities, no doubt coloured by the view which was
taken in English cases, that Section 74 of the Contract Act would
have no application to cases of deposit for due performance of a
contract which is stipulated to be forfeited for breach, e.g.,. Natesa
Aiyar v. Appavu Padayachi, Singer Manufacturing Company v. Raja
Prosad; Manian Patter v. The Madras Railway Company, but this
view no longer is good law in view of the judgment of this Court in
Fateh Chand Vs. Balkishan Das.
69. This Court in Fateh Chand case observed at pp. 526-27 (of SCR):
―10. Section 74 of the Contract Act deals with the measure of
damages in two classes of cases (i) where the contract names a sum
to be paid in case of breach, and (ii) where the contract contains any
other stipulation by way of penalty. ... The measure of damages in
the case of breach of a stipulation by way of penalty is by Section 74
reasonable compensation not exceeding the penalty stipulated for.
The Court also observed: (AIR p. 1411, para 11) ―11. It was urged
that the section deals in terms with the right to receive from the party
who has broken the contract reasonable compensation and not the
right to forfeit what has already been received by the party
aggrieved. There is however no warrant for the assumption made by
some of the High Courts in India, that Section 74 applies only to
cases where the aggrieved party is seeking to receive some amount
on breach of contract and not to cases where upon breach of contract
an amount received under the contract is sought to be forfeited. In
our judgment the expression the contract contains any other
stipulation by way of penalty' comprehensively applies to every
covenant involving a penalty whether it is for payment on breach of
contract of money or delivery of property in future, or for forfeiture
of right to money or other property already delivered. Duty not to
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 31/53
enforce the penalty clause but only to award reasonable
compensation is statutorily imposed upon courts by Section 74. In all
cases, therefore, where there is a stipulation in the nature of penalty
for forfeiture of an amount deposited pursuant to the terms of
contract which expressly provides for forfeiture, the court has
jurisdiction to award such sum only as it considers reasonable, but
not exceeding the amount specified in the contract as liable to
forfeiture. and that, ―14. ... There is no ground for holding that the
expression contract contains any other stipulation by way of penalty'
is limited to cases of stipulation in the nature of an agreement to pay
money or deliver property on breach and does not comprehend
covenants under which amounts paid or property delivered under the
contract, which by the terms of the contract expressly or by clear
implication are liable to be forfeited. (AIR p. 1412, para 14)
70. Forfeiture of earnest money under a contract for sale of property
whether movable or immovable, if the amount is reasonable, would
not fall within Section 74. That has been opined in several cases.
(See Kunwar Chiranjit Singh v. Har Swarup; Roshan Lal v. Delhi
Cloth and General Mills Co. Ltd.; Mohd. Habib - Ullah v. Mohd.
Shafi ; Bishan Chand v. Radha Kishan Das.) These cases have
explained that forfeiture of a reasonable amount paid as earnest
money does not amount to imposing a penalty. But if forfeiture is of
the nature of penalty, Section 74 applies.
71. Where under the terms of the contract the party in breach has
undertaken to pay a sum of money or to forfeit a sum of money
which he has already paid to the party complaining of a breach of
contract, the undertaking is of the nature of a penalty. (See Maula
Bux and Saurabh Prakash v. DLF Universal Ltd. )"
(emphasis added)
17. All the judgments of the Supreme Court which have been relied
upon in Satish Batra's case (supra) are of a Bench strength lesser
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 32/53
than the Constitution Bench strength of the Supreme Court in Fateh
Chand's case (supra) and the law is well settled that it is the
judgment of the larger Bench of the Supreme Court which will
prevail over the judgment of a Bench strength of lesser number of
judges. Also, as already stated above, in the recent judgment in
Kailash Nath Associates's case (supra) Supreme Court has now
clarified that a forfeiture of an earnest money necessarily falls under
Section 74 of the Contract Act i.e before forfeiture can take place it
must be necessary that loss must be caused. Also, Supreme Court has
further clarified in Kailash Nath Associates's case (supra) that it is
very much possible that forfeiture of an amount can be in the nature
of penalty and if the amount which is allowed to be forfeited under
the contract is in the nature of penalty then Courts are empowered to
treat the amount of liquidated damages (earnest money) as one in the
nature of penalty clause and that earnest money amount only
represents the upper limit of damages which are allowed to be
forfeited in terms of the forfeiture clause, and actual forfeiture only
of a lesser and a reasonable amount should be allowed instead of the
large amount/penalty as stated under a contract as being entitled to
be forfeited and that too merely because a contractual clause allows
such a forfeiture."
28. In Airports Authority of India (Supra), the only issue, therefore,
which was required for determination before the Hon'ble Delhi High
Court was whether taking as correct that the respondent/plaintiff was
guilty of breach of contract can the amount paid of Rs. 1,35,000/- be forfeited by the appellant/defendant on the ground that the same was an earnest money deposit without pleading and proving that any loss was caused to the appellant/defendant. It was observed that in the present Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 33/53 case, surely losses which were caused to the appellant/defendant, with respect to the sale of machine in question could very well have been proved because if the appellant/defendant was forced to sell the machine for an amount lesser than Rs. 4,00,000/- (the price at which the respondent/plaintiff agreed to buy the same) then, by difference of receipt of lesser price such loss could have been pleaded and proved and hence, subject to the upper limit of the earnest money deposited, such loss could well have been claimed by the appellant/defendant but admittedly, the appellant/defendant in the facts of the present case has neither pleaded nor proved any loss having been caused to it on account of breach of contract by the respondent/plaintiff. It was held by the Hon'ble High Court of Delhi that the Trial Court has rightly held that since such loss has not been pleaded and proved, the appellant/defendant was bound to refund the earnest money/advance price which was received by the appellant in the auction.
29. Hence, Hon'ble High Court of Delhi in case of Arun Khanna (Supra) has taken into consideration Sections 73 and 74 of the Indian Contract Act and several judgments including Fateh Chand (Supra) and Kailash Nath Associates (Supra). it is clear from Arun Khanna (Supra) that the above-mentioned judgments that a compensation can be awarded Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 34/53 (where there is a breach of contract) only if loss or damage is suffered i.e. where there is no loss or damage suffered as a result of breach of contract, no compensation can be awarded as law does not provide for a windfall i.e. large amounts though called contractually as earnest money cannot be forfeited unless loss is pleaded and proved to have been suffered. It is also clear that a forfeiture of an earnest money necessarily false under Section 74 of the Contract Act i.e. before forfeiture can take place, it must be necessary that loss must be cost. It is clear from the Airports Authority of India (Supra) also that even if taking as correct that the plaintiff was guilty of breach of contract, the amount paid of Rs.1,35,000/- can not be forfeited by the defendant on the ground that same was a earnest money deposit without pleading and proving that any loss was caused ; that because the defendant has neither pleaded nor proved any loss having been caused to it on account of breach of contract by the plaintiff, the defendant was bound to refund the earnest money / advance price which was received by the appellant in auction. It is also clear that a compensation can be awarded only when the complaining party has suffered some loss or damage as a result of breach of contract by the other party and if there has been no damage or loss in consequence of breach of contract, the question of awarding or claiming compensation does not arise. There cannot be forfeiture under an agreement to sell Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 35/53 unless loss is pleaded and proved to have been caused to the seller of the property on account of the breach of contract by the buyer.
30. In the present case, the defendants have no alleged / pleaded in the written statement that they suffered any loss as a result of plaintiff's failure to deposit the balance amount. Further, defendants have nothing mentioned in their evidence (DW-1) that they suffered any loss as a result of plaintiff's failure to deposit the balance amount. There are no pleadings or any evidence led by the defendants as to how the defendants / sellers have suffered monetary loss of a specific amount of money on account of breach of agreement to sell. Normally, loss is caused to a seller if the value of the property goes down from the agreed price as stated in the agreement to sell to a lower price prevailing as on the date of performance of the agreement to sell. There is no evidence that the property had depreciated in value since the date of the contract provided; nor was there evidence that any other special damage had resulted. Hence, defendants have neither pleaded nor proved any loss having been caused to them on account of breach of contract by the plaintiff.
31. As per the terms of agreement to sell (Ex. P-4) , remaining balance of Rs.12,15,00,000/- had to be received by the defendants from the plaintiff on or before 8 months, at the time of registration of sale deed or Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 36/53 any other documents; that actual physical vacant possession of the suit property had to be delivered by the defendants to the plaintiff at the time of the full and final payment; that the defendants had to obtain the N.O.C and other requisite permission for selling the suit property from the concerned authorities before the final payment; that after obtaining the said permission, the defendants had to inform the plaintiff by registered post and plaintiff had to get the registration done within 10 days; that if the either party fails / defaults / avoids or refuses to implement the terms of the agreement in the manner as stipulated, then in that event, the effected party have the right for specific performance of the agreement in the court of law at Delhi/New Delhi at the cost and risk of the defaulting party; that in case, the plaintiff fails to pay remaining sale consideration within the stipulated period, the defendants have full right to forfeit the advance money without any further intimation / notice under any circumstances or in court of law, and the agreement to sell had to be treated cancelled, null and void; that the defendants had to execute the necessary documents or any other smooth transfer documents of the suit property in favour of the plaintiff or his nominee failing which the plaintiff will be entitled to get double amount of the advance money and party payment or to get the necessary documents registered through the court of law by the specific performance of the contract, at the cost and Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 37/53 expenses of the defendants.
32. As per the agreement to sell (Ex. P-4), it is for the defendants to obtain the N.O.C and other requisite permission for selling the suit property from the concerned authorities before the final payment and after obtaining the said permission, the defendants had to inform the plaintiff by registered post and then plaintiff had to get the registration done within 10 days. It is admitted by the learned counsel for the defendants, during the course of arguments that as the suit property is agriculture land, therefore, prior permission is required from the concerned Revenue Authorities before registration of the sale deed; that as Mr. Simru was died and his two legal heir out of five were minors and therefore, permission is required from the concerned District Judge/Competent Court for sale their respective shares in the suit property. It is also admitted by the learned counsel for the defendants that there is no permissions as required to be obtained from the Revenue Department and learned District Judge/Competent Court, were obtained by them prior to the forfeiture of the amount and within the eight months of the agreement to sell as specified in agreement to sell. Further, DW-1 in his cross-examination has admitted that he alongwith any other defendant had never applied for seeking permission to sale the suit land Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 38/53 from the Revenue Department. As no requisite permissions were taken by the defendants within eight months of the agreement to sell and therefore, there is no question of intimating the plaintiff that they have obtained the said requisite permission as is required to be intimated as per the terms and conditions of the agreement to sell. Hence, from these evidence / admitted facts, it can be said that the defendants were not ready and willing to perform their part in respect to agreement to sell within specified period of eight months as required by the agreement to sell. It is also pertinent to mention as this juncture that after eight months of the agreement to sell also, no said requisite permissions were obtained by the defendants.
33. As defendant no. 6 and 7 are minors, permission was required for selling their shares in the suit property to the plaintiff but said permission could not be taken from the concerned court as has been admitted by the defendants. In this regard, stand of the defendants is that one advocate namely Sh. Rajbir Singh Gulia engaged by them to obtain the said permission from the court of law for selling the shares of minors (defendants no. 6 and 7) in the suit property but he has committed illegality in order to prolong the matter, so that the entire blame could be shifted on the sellers, whereas the plaintiff was in fact never financially Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 39/53 capable to purchase the suit property. As per defendants, when they contracted their lawyer for preparation of the written statement in the present case, only then they came to know that their previous advocate Mr. Gulia had played a serious fraud and had dealt with the matter for obtaining permission to sale the subject land from the court in at most careless and casual manner. It is further case of the defendants in this regard is that their previous advocate deliberately, with malafide intention and in connivance with the plaintiff, did not file the said petition before the appropriate court, so that the time period as envisaged in the agreement to sell for obtaining necessary sale permission gets expired; that said advocate without intimating the defendants about the progress of the said litigation, refiled it before the learned Additional District Judge, Saket Court by omitting the vital details and thereafter filed yet another application for amendment merely to delay the whole proceedings; that said advocate played yet another fraud, in as much as he being the main counsel at the relevant point of time, falsely represented that he had necessary instructions from his clients and he withdrew the said matter on 07.01.2013, even though no such instructions were given to him and as such after coming to know the fraud played the above-said advocate, a complaint against him was made with the Bar Counsel of Delhi for his professional misconduct. These defence find mention in evidence by way Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 40/53 of affidavit of defendant no.1 Satbir (DW-1). He stated in his said affidavit that a complaint against their previous advocate Mr. Rajbir Singh Gulia was made before the Bar Counsel of Delhi for his gross professional misconduct committed by him in respect of the petition filed by him for obtaining necessary permission for sale of respective shares of the defendants no. 6 and 7 who are the minors. But no said complaint has been proved by the defendants to show that any complaint was made against Mr. Rajbir Singh Gulia. DW-1 in his cross-examination testified that he do not have any proof regarding his statement that Sh. Rajbir Singh Gulia was acting in collusion with the plaintiff. He further voluntarily said they came to know about the said collusion from their counsel representing them in the suit, who informed them that the counsel was delaying the matter as he had filed the petition and withdrawn the said petition twice. He further testified that he did not made Sh. Rajbir Singh Gulia after they were informed about his conduct. He further admitted in said cross-examination that he had not filed any complaint against Sh. Rajbir Singh Gulia for his professional misconduct. From the said sole testimony on behalf of defendants, I am of the view that it has not been proved by the defendants that there was a collusion between their advocate namely Mr. Rajbir Singh Gulia and plaintiff in respect of the said petition filed by the defendants to obtain the sale permission in Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 41/53 respect of shares of the defendants no. 6 and 7 who were minors.
34. In respect of capability of plaintiff to purchase the suit property, plaintiff (PW-1) has stated in his examination-in-chief (Ex. PW-1/A) that he is a man of means and always had and still have sufficient sources and money at his disposal to fullfil his obligation / duty under the agreement to sell dated 04.12.2011; that he own the property bearing no. 8, Pusa Road, New Delhi measuring 1226.3 square meters alongwith his brother Shri Maninder Singh and the value of the suit property is much more than the amount of balance consideration to be paid by him to the defendants, but since the defendants did not fulfill their part of the obligation under the said agreement to sell, there was no occasion for him to pay the balance sale consideration; that he had disposed off his one half undivided share in the above-mentioned property at Pusa Road, New Delhi for a consideration of Rs.46 Crores and he had received a sum of Rs.23 Crores at his share; that though this property was actually sold out in the year 2014, however, he started looking out for prospective buyers and was trying to sale this property. The certified copy of the registered sale deed dated 22.10.2014 in respect of property bearing no.8, Pusa Road, New Delhi has been exhibited as Ex. PW-1/20. PW-1 in his cross- examination has denied the suggestion that he gave a fresh proposal to the Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 42/53 defendants to enter into a new agreement to sell for the area proportionate to the amount already paid by him. He has also denied the suggestion that the said proposal was given by him as he was not having the arrangement for making the entire balance payment of Rs.12,15,00,000/-. He also denied the suggestion that since the market value of the property in Delhi were drastically slowed down, hence, with malafide intention he concocted the false story to wriggle out of his liability to make the payment of balance consideration to the defendants. DW-1 in his cross- examination has admitted that he do not have any proof to support his statement that the plaintiff was financially incapable to purchase the suit land. Hence, it can not be said that plaintiff was not capable of paying remaining sale consideration.
35. In respect of performing their part / obligation by the defendants, PW-1 has stated that since two children of Sh. Simroo were minors, therefore, requisite permission to sell the land on behalf of the said children had to be taken by their mother (defendant No.3) from the court of the District Judge, Delhi as per the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956; that he approached the defendants No.1 & 2 and the L.Rs of Sh. Simroo for calling upon them to fulfill their part of obligations as per the terms and conditions of the Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 43/53 Agreement to Sell; that he also requested the defendant No.3 for obtaining the necessary permission for sale of shares of minor children (i.e defendants No. 6 and 7) in the agriculture land from the Learned District Judge, Delhi, however, the defendant No.3 went on postponing the same on the one pretext or the other and thus, failed to get the requisite permission despite promising and assuring him to get the same; that he also approached the defendants No. 1 to 3 requesting him to obtain the necessary No Objections from the Revenue Department of the Government of NCT of Delhi for execution of the sale-deed in his favour, however, the defendants failed to discharge any of their obligations; that as per the terms of Agreement to Sell, the sale-deed was to be executed on or before 04.08.2012; that on 03.08.2012, he alongwith the broker, namely, Sh. Girish Lohia, who also happens to be an attesting witness to the Agreement to Sell met the defendant No.1 at one of his properties near Cremation Ground, Ghitorni, M.G. Road and called upon him for execution of the sale-deed to which he blatantly refused; that he sent a legal notice dated 25.08.2012 ( Ex. PW1/8) through his Counsel to the defendants No.1 to 7 thereby calling upon them to fulfill their part of obligation as per the Agreement to Sell; that the said notice was duly served upon the defendants, however, they chose not to reply thereto and failed to honour the Agreement to Sell. In this regard, DW-1 has himself Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 44/53 admitted his meeting with the plaintiff on 03.08.2012 and at that time plaintiff was accompanied by Sh. Girish Lohia at his other land near cremation ground. But he denied the suggestion that during the said meeting he refused to perform his contractual obligation in respect of agreement to sell dated 04.12.2011 and refused to sale the suit land to the plaintiff. Further, he admitted in said cross-examination that till 03.08.2012, he as well as other defendant did not have any permission from any concerned Authority / Department to sale the suit land on behalf of the minor LRs of deceased Simru. He also stated that the agreement dated 04.12.2011 could not be materialized as a fresh agreement was to be executed between the plaintiff and them and the second agreement was not fulfilled by the plaintiff; that the fresh agreement was to be executed regarding sale of half portion of the suit land; that the talks regarding the fresh agreement happened between he, the plaintiff and Sh. Girish Lohia at the farmhouse of Sh. Girish Lohia; that the said talks happened after two days from the expiry of stipulated completion of the agreement dated 04.12.2011 which was 04.08.2012; that at that time of the talks, he did not have the required permission to sell the shares of the minor legal heirs of the deceased Simru. Hence, after two days from the expiry of stipulated completion of ageement (Ex.P-4), defendants did not have required permission to sell the shares of defendants no 6 and 7 (minors). Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 45/53
36. In respect of the possession of part of the suit property ad- measuring 800 sq. yds. by the plaintiff, it is admitted between the parties that whole the suit property ad-measuring 6 bighas and 9 biswas had been taken into possession by the plaintiff after the execution of the agreement to sell (Ex. P-4) and the suit property except the property ad-measuring 800 sq. yds. had again taken into possession by the defendants and the suit property ad-measuring 800 sq. yds. is still in the possession of the plaintiff. DW-1 has stated in this regard in his examination-in-chief (Ex. DW-1/A) that alongwith the present suit, the plaintiff has first time disclosed that still he is occupying (0-17) bigha of the suit property; that after coming to know that the plaintiff with a malafide intentions is still occupying part of suit land / property, they repeatedly requested the plaintiff to restore back the said portion to them, however, to no avail and waiting for a considerable time from July 2014 onwards and looking to the hostile conduct of the plaintiff, they through their advocate issued a legal notice dated 21.07.2016, thereby calling him to restore back the land measuring 17 biswas to them. Hence, It is not the defence of the defendants that they had forfeited the earnest money because of the fact that plaintiff had not returned the suit property ad-measuring 850 sq. yds.
37. It is also pertinent to mention here that said forfeiture of earnest Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 46/53 money by the seller can be only when buyer has broken the contract. If buyer has not broken the contract and it is the seller who has broken the contract, the earnest money cannot be forfeited by the seller. I have already observed that it has not been proved by the defendants that contract had been broken by the plaintiff. On this ground also, it can be said that defendants could not have forfeited the earnest money and therefore, forfeiture of earnest money of Rs. 1,35,00,000/- by the defendants is not justified.
38. In view of above discussion, I am of the view that the defendants have admitted breach of terms and conditions of agreement to sell dated 04.12.2011 (Ex. P-4) and defendants were / are not entitled to forfeit the amount paid by the plaintiff under said agreement to sell. Hence, issue no. 1 and no. 3 are decided in favour of the plaintiff and against the defendants.
ISSUES No.2: Whether the plaintiff is illegally occupying 800 sq. yds. lands belonging to the defendants?OPD
39. It is admitted between the parties that defendants no. 1 & 2 alongwith defendant no. 3 had delivered and given the entire possession of their agriculture land to the plaintiff in lieu of agreement to sell Ex. P-4 after the execution of the said agreement to sell; that said entire land Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 47/53 except the land about 800 sq. yds. as shown green in colour in the site plan (Ex. PW-1/6) which is part of the land situated in Khasra No. 539/2 (0-17) situated in the Revenue Estate, Village Ghitorni, Tehsil Vasant Vihar (Kapashera), New Delhi have repossessed by the defendants but said 800 sq. yds. land is still in possession of the plaintiff. The defendants have already filed suit for ejection against the plaintiff for the said agriculture land ad-measuring about 800 sq. yds. before the learned Revenue Court which is still stated to be pending. The said learned Revenue Court has to decide the said suit. The suit property including property / land ad-measuring 800 sq. yds. were themselves given by the defendants to the plaintiff. The defendants have forfeited the earnest money given by the plaintiff to them in respect of sale of said suit property. In the present facts and situations, I am of the view that it cannot be said that the plaintiff is illegally occupying said 800 sq. yds land belonging to the defendants at-least until the said earnest money is not returned to the plaintiff by the defendants or order of competent court is not passed in this regard. Hence, this issue is decided in favour of the plaintiff and against the defendants.
ISSUES No. 4: Whether the plaintiff is entitled for a decree of suit amount, as prayed for? OPP Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 48/53
40. In view of my findings on issue no. 1, 2 & 3, the plaintiff is entitled for earnest money i.e. Rs.1,35,00,000/-. Hence, this issue is decided in favour of plaintiff and against the defendants accordingly. ISSUES No. 5: Whether the plaintiff is entitled for interest, if so at what rate and for which period. OPP
41. Keeping in view, the facts and circumstances of the case including the fact that the plaintiff is still in possession of part of suit property ad- measuring 800 sq. yds., the plaintiff is entitled for interest @ 6 per cent per annum from the date of filing of the suit till realization of the earnest money.
ISSUES No. 6: Whether the plaintiff is entitled to the relief of permanent injunctions, as prayed for in clause C and D of prayer clause of the plaint. OPP
42. Plaintiff has prayed for decree for permanent injunction as prayed for in clause C of prayer clause of the plaint that the decree for permanent injunction may be passed in favour of the plaintiff against the defendants and their employees, relatives and persons working on their behalf from the portion of the land which is in /possession of the plaintiff as shown green in colour in the site plan annexed, which is part of land situated in Khasra Nos. 539/2 (0-17) situated in the Revenue Estate of Village Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 49/53 Ghitorni, Tehsil Vasant Vihar (Kapashera), New Delhi, which is part of the land owned by the defendants measuring 6 bighas 9 biswas bearing Nos. 539/2 (0-17), 540 (0-16), 541 (4-16) except by due process of law.
43. Plaintiff has also prayed for decree for permanent injunction as prayed for in clause D of prayer clause of the plaint that the decree for permanent injunction may be passed decree for permanent injunction may be passed in favour of the plaintiff against the defendants thereby restraining the defendants from transferring and also entering into Agreement to Sell and also for executing the Sale Deed and also for transferring their rights and interests in respect of the whole agriculture land which is part of Khasra measuring 6 bighas 9 biswas bearing nos. 539/2 (0-17), 540 (0-16), 541 (4-16) situated in the Revenue Estate of Village Ghitorni, Tehsil Vasant Vihar (Kapashera), New Delhi or any part thereof, in any manner, till the payment of the suit amount is returned by the defendants to the plaintiff alongwith costs.
44. As per the learned counsel for the defendants, permanent cannot be granted by this court in respect of suit property being a agriculture land. But learned counsel for the plaintiff has submitted in this regard that civil court has jurisdiction to entertain the relief of the injunction qua the agriculture land and in this regard he has placed reliance on the judgment Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 50/53 passed by Hon'ble High Court of Delhi in Ashok Kumar's case (Supra). In the said judgment, Hon'ble High Court of Delhi has held that unless the suits are in substance, the suit which fall within the Sections as stated in Column 2 of Schedule 1 of the Delhi Land Reforms Act, 1954, the jurisdiction of the civil court is not barred by virtue of Section 185 of the said Act. As per serial No. 18 of the schedule 1 of the Delhi Land Reforms Act 1954, suit for injunction or for the repair of the waste or damage caused to the holding can be filed before the learned Revenue Assistant. It is also clear from Section 83 of the Delhi Land Reforms Act that the Gaon Sabha or the land holder may sue for injunction with or without compensation, or for the repair of the waste or damage caused to the holding. The present case has not been filed by the Gaon Sabha or the land holder as required by Section 83 of the Delhi Land Reforms Act. Further, this is not a court of revenue. Hence, in the present case, the injunctions as prayed by the plaintiff in the facts and circumstances of the case, cannot be said to be barred by Section 185 of the Delhi Land Reforms Act, 1954.
45. As the land ad-measuring 800 square yards are still in possession of the plaintiff and suit for ejectment against the plaintiff have already been filed on behalf of the defendants which is stated still to be pending. Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 51/53 Hence, plaintiff is entitled for relief for permanent injunction in respect of land ad-measuring 800 square yards. Insofar as the permanent injunction in respect of whole suit property/agriculture land as prayed in prayer clause (d) of the prayer clause of plaint is concerned, the plaintiff is not entitled for the same because the said land except 800 square yards land is in possession of the defendants and further that this court has held that the plaintiff is entitled for the earnest money paid by him to the defendants. Hence, this issue is decided partly in favour of the plaintiff and against the defendants, accordingly.
RELIEF
46. In view of my findings on above mentioned issues, the suit of the plaintiff is decreed for a sum of Rs. 1,35,00,000/- (one crore thirty five lacs rupees) alongwith interest @ 6% per annum from the date of filing of the suit till its realization. Defendants are also restrained permanently from forcefully dispossessing the plaintiff from the portion of the land about 800 square yards which is in possession of the plaintiff as shown green in colour in the site plan, which is part of land situated in Khasra No. 539/2 (0-17) situated in the Revenue Estate of Village Ghitorni, Tehsil Vasant Vihar (Kapashera), New Delhi, which is part of land owned by the defendants measuring 6 bighas 9 biswas bearing Khasra Nos. Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 52/53 539/2 (0-17), 540 (0-16), 541 (4-16) except by due process of law. Cost of the suit is also awarded in favour of the plaintiff.
47. Decree sheet be prepared accordingly.
48. File be consigned to the Record Room.
Announced in the open court.
Dated:13.03.2020 (SANJEEV KUMAR-II)
Additional District Judge-04
South District,Saket Courts
New Delhi
Digitally signed
SANJEEV by SANJEEV
KUMAR
KUMAR Date: 2020.03.16
11:03:35 +0530
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 53/53
Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 54/53 Civil Suit No. 6249/16 Sh. Sukhdeep Singh vs Satbir & Ors. 55/53