Delhi District Court
Sh. R.C. Anand vs Sh. Joginder Singh on 19 September, 2022
IN THE COURT OF SH. ARUN KUMAR GARG,
ADDITIONAL DISTRICT JUDGE-05, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS DJ No. 9771/16
CNR No. DLCT01-000023-2007
Sh. R.C. Anand
S/o Sh. Amar Nath
R/o 231, Himgiri Apartments
Vikas Puri, New Delhi- 18. ......Plaintiff
Versus
1. Sh. Joginder Singh
S/o Late Sh. Badan Singh
R/o AC-18, Ganga Ram Vatika
Tilak Nagar, New Delhi- 18.
2. Dr. Deepak Yadav
S/o Sh. S.R. Yadav
R/o C-100, Sudershan Park
Tyagi Market
New Delhi- 110015
3. Sharif Ahmed
S/o Sh. Subedar Khan
R/o RZ-R-261, Nihal Vihar,
Nangloi, Delhi. .......Defendants
Date of Institution of Suit : 04.07.2007
Date of Pronouncement of Judgment : 19.09.2022
Suit for Specific Performance of the Agreement to Sell dated
04.12.2006 and Permanent Injunction
CS DJ No. 9771/2016
R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 1 of 41
JUDGMENT
1. The present suit for specific performance of agreement to sell dated 04.12.2006 and permanent injunction was initially filed by the plaintiff against defendant No. 1 before Ld. Vacation Judge, Delhi on 13.06.2007. Defendant no. 1 appeared in response to summons of the suit and filed his written statement on 11.10.2007. Since, in his written statement, defendant no. 1 had taken a stand that the suit property had already been disposed of by him in favour of defendant No. 2, an application under Section 151 CPC came to be filed by the plaintiff for impleadment of Dr. Deepak Yadav as defendant No. 2. Notice of the aforesaid application was, thereafter, issued to the proposed defendant No. 2. In his reply to the aforesaid application, defendant no. 2 took a stand that the suit property had already been disposed of by him in favour of defendant No. 3 namely Sh. Sharif Ahmed and accordingly, vide order dated 18.11.2009, this Court directed impleadment of defendants no. 2 and 3 as parties in the present suit and consequential amendments were carried out by the plaintiff in the plaint.
2. Defendant No. 2 has thereafter filed his written statement to the suit of plaintiff on 11.03.2010. Before the written statement could be filed by defendant No. 3, eight issues came to be settled by Ld. predecessor of this Court vide order dated 05.04.2010. Thereafter, defendant No. 3 filed his written statement on 19.04.2010 and two additional issues were settled by Ld. Predecessor of this Court vide order dated 11.08.2010. Simultaneously, an application of defendant no. 3 under Order 1 Rule 10 (2) CPC seeking deletion of his name from the array of parties was CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 2 of 41dismissed by the Court and issue no. 10, for valuation of the suit for the purpose of jurisdiction and court fee was treated as a preliminary issue. The said preliminary issue was, thereafter, decided by the Court vide order dated 29.09.2010 in favour of plaintiff, simultaneously, permitting the plaintiff to make necessary corrections of the typographical mistakes in para no. 20 of the plaint in stating the value of the suit for the purpose of jurisdiction and court fee. Pursuant to the said order, Plaintiff filed another amended plaint against all the three defendants on 21.12.2010.
3. Brief case of the plaintiff as per the amended plaint is that upon the representation of defendant no. 1 that he was the true, legal and lawful owner in possession of the house bearing plot No. RZ-R 185(old number) RZ-R 223(new number), Gali No. 5, Nihal Vihar, Delhi falling in Khasra No. 4/16 of the Revenue Estate of village Nangloi Sayyed, Delhi, measuring 185 Sq. Yds., consisting of 3 shops at the front and 3 rooms in the rear(hereinafter referred to as the suit property), plaintiff had agreed to purchase the same for a consideration of ₹ 18,50,000/- vide an agreement to sell dated 04.12.2006 and has paid a sum of ₹ 3,50,000/- as earnest money to the defendant no. 1 vide separate receipt executed in the presence of witnesses on the same day. It is further his case that it was mutually agreed between the parties that the balance sale consideration of ₹ 15 lakhs will be paid by the plaintiff to defendant no.1 at the time of execution of the final deeds and documents in favour of plaintiff on or before 25.03.2007. As per clause 4 of the aforesaid agreement to sell, according to plaintiff, in case the defendant no.1 retracts from the terms and conditions of the aforesaid agreement, plaintiff was empowered to get the specific performance of the agreement to sell at the cost and expenses CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 3 of 41of defendant No. 1 in the court of law, whereas, in case the plaintiff backs out from the aforesaid agreement, the earnest money deposited by him could be forfeited by the defendant No. 1.
4. It is further his case that before 25.03.2007, plaintiff had arranged the entire payment of Rs. 15 lakhs and was ready and willing to make the final payment to the defendant no. 1, however, whenever, he approached the defendant no. 1 for execution of the sale deed and other documents in respect of the property in question in his favour, defendant no. 1 avoided the same on one pretext or the other and on 25.03.2007 did not come forward to execute the sale deed and documents at the office of Sub- Registrar Nangloi Delhi, whereas, the plaintiff kept on waiting at the aforesaid office.
5. On 13.03.2007, according to plaintiff, he had got a legal notice issued, through his counsel, to defendant no. 1 for fixing any future date, as per his convenience, for execution of the sale deed in respect of the suit property in favour of the plaintiff and although, the aforesaid legal notice sent to the defendant No. 1 through registered AD and courier had been duly served upon him, however, the defendant no. 1 did not either give any reply to the legal notice nor has he contacted the plaintiff. When the plaintiff tried to contact the defendant No. 1 through some common friends, he was informed that defendant no. 1 shall not execute any document/Sale deed in respect of the suit property in favour of plaintiff nor shall he return the earnest money. Thus, according to him, the intention of defendant no. 1 became dishonest due to surge in the price of the suit property and hence, he has failed to execute the sale deed in respect of the suit property in favour of plaintiff despite the fact that the CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 4 of 41plaintiff had all along been ready and willing to get the sale deed executed in his favour, the entire balance payment/sale consideration being ready with him in the 1st week of March 2007.
6. It has further been submitted by the plaintiff in his plaint that he is always ready and willing to perform his part of the contract by paying the balance sale consideration of ₹ 15 lacs and also ready to bear all the expenses for execution and registration of the sale deed in respect of the suit property. Further, according to him, he had come to know from reliable sources that defendant no. 1 wants to sell the suit land to some other person and on 07.06.2007(sic 07.06.2006), he had shown the suit property to a person namely Dr. Yadav and had taken a sum of ₹ 5 lacs as earnest money from him against a total agreed sale consideration of ₹ 29,70,000/-. Under the aforesaid circumstances, according to him, he was constrained to approach this Court by way of the present suit seeking a decree of specific performance of agreement to sell dated 04.12.2006 or in the alternative a decree for recovery of ₹ 3,50,000/- with interest @ 24% per annum till realization. He has also prayed for a decree of permanent injunction restraining the defendant from alienating transferring/selling or parting with possession of the suit plot to any 3 rd person except the plaintiff.
7. On the other hand, defendant no. 1 in his written statement has not denied having executed the agreement to sell dated 04.12.2006 in favour of plaintiff in respect of the suit property, nor, has he denied the receipt of ₹ 3,50,000/- as earnest money from the plaintiff. He has taken the plea that since the plaintiff has not come forward to make the balance payment of ₹ 15 lacs to defendant no. 1 on or before the stipulated date i.e. CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 5 of 4125.03.2007, the earnest money so paid by the plaintiff to defendant no. 1 has been forfeited after cancellation of the agreement to sell and the suit property has subsequently been sold to defendant No. 2, who has paid the entire sale consideration in respect of the suit property, whereafter, the requisite transfer documents have been executed by defendant no. 1 in favour of defendant No. 2 while, simultaneously, handing over the actual vacant and peaceful physical possession of the suit property to defendant no. 2.
8. Under the aforesaid circumstances, according to him, neither the relief of specific performance of agreement to sell dated 04.12.2006 can be granted to the plaintiff, nor he is entitled to recover the earnest money deposit, having himself committed the breach of terms and conditions of the agreement to sell. Defendant no. 1 has thus prayed for dismissal of the present suit of plaintiff with special compensatory costs in favour of defendant no. 1.
9. Defendants no. 2 one 3 have also filed separate written statements to the suit of plaintiff, wherein, they have alleged that the present suit for specific performance and permanent injunction has been filed by the plaintiff in collusion with defendant no.1. They have taken a preliminary objection to their impleadment as defendants in the present suit on the ground that as per the documents as well as the pleadings of the plaintiff in his plaint, the plot/property/house allegedly purchased by the plaintiff from the defendant no.1 was different than the suit property, which is house No. RZ-R261, measuring 200 sq. yds forming part of Khasra No. 4/16, situated in the area of village below Nilothi, Colony known as Nihal Vihar, Delhi which was sold by defendant no. 1 to defendant No. 2 on CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 6 of 4111.07.2007 and by defendant No. 2 to defendant No. 3 vide documents dated 29.08.2007.
10. They have further taken a plea that as on the date of execution of the alleged agreement to sell and receipt dated 04.12.2006, defendant no. 1 was neither the owner nor in possession of the property no. RZ-R261 measuring 200 sq. yds forming part of Khasra No. 4/16, situated in the area of village below Nilothi, Colony known as Nihal Vihar, Delhi as he has purchased the same from its erstwhile owner only vide documents dated 03.05.2007. Under the aforesaid circumstances, according to them, the suit of plaintiff for specific performance of agreement to sell in respect of the property, which, as on the date of execution of alleged agreement to sell, was not owned by defendant no. 1 is not maintainable. Even otherwise, according to them, the agreement dated 04.12.2006 is not enforceable in the court of law for want of sufficient description of the property agreed to be sold by defendant no. 1 to the plaintiff through the aforesaid document. They have thus prayed for dismissal of the present suit of the plaintiff with heavy costs.
11. No replication to the written statements of either of the defendants was filed by the plaintiff. On the basis of pleadings of the parties, the following issues were settled by Ld. predecessor of this Court vide orders dated 05.04.2010 and 11.08.2010:
1. Whether the suit of plaintiff is in collusion with plaintiff and defendant No. 1? OPD
2. Whether the plaintiff has no locus standi to file the present suit? OPD
3. Whether the suit of plaintiff is bad for non-joinder of necessary CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.Judgment dated 19.09.2022 Page 7 of 41
parties? OPD
4. Whether the suit of plaintiff has been properly valued? OPP
5. Whether this court has no territorial jurisdiction to try the suit? OPD
6. Whether the plaintiff is entitled to specific performance of agreement to sell? OPP
7. When the plaintiff is entitled to claim of permanent injunction? OPP
8. Relief.
9. Whether defendant No. 2 and 3 have been unnecessarily impleaded as parties since the property bearing No. RZ-R 261 measuring 200 Sq. Yds. falling in Khasra No. 4/16 situated in the area of village Nilothi, Nihal Vihar sold to them is not the suit property in question? OPD 2&3
10. Whether the suit has been properly valued for the purpose of court fees and jurisdiction? OPP
12. As has already been observed hereinabove, issue No. 10 was treated as preliminary issue and was decided by Ld. Predecessor of this Court vide order dated 29.09.2010 in favour of plaintiff, while simultaneously permitting the plaintiff to correct the typographical mistake in para No. 20 of the plaint in stating the value of the suit for the purpose of jurisdiction and court fee, which has since been done by the plaintiff by filing an amended plaint.
13. Plaintiff has thereafter examined three witnesses in support of his case including himself. He has examined himself as PW1 and tendered his CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 8 of 41evidence by way of affidavit Ex. PW-1/A along with following documents(exhibited subject to objection as to admissibility as well as mode of proof):
i) Ex. PW-1/1: Site plan of the suit property.
ii) Ex. PW-1/2: The agreement to Sell dated 04.12.2006
executed between plaintiff and defendant no. 1.
iii) Ex. PW-1/3: The Receipt dated 04.12.2006 for a sum of Rs.
3,50,000/- executed between plaintiff and defendant no. 1.
iv) Ex. PW-1/4: Copy of legal notice dated 13.03.2007.
v) Ex. PW-1/5: Postal receipt regarding dispatch of legal notice dated 13.03.2007.
vi) Ex. PW-1/6: AD Card in respect of legal notice dated 13.03.2007.
vii) Ex. PW-1/7: Courier receipt regarding dispatch of legal notice dated 13.03.2007.
14. Plaintiff has also examined Sh. Vijay Kumar Solanki S/o. Sh. Shivpal Singh, the property dealer, who had allegedly brokered the deal between the plaintiff and defendant no. 1 and had also signed the agreement as one of the attesting witnesses, has been examined by the plaintiff as PW-2 and he has tendered his evidence by way of affidavit Ex. PW-2/A, wherein, he has relied upon the documents already Ex. PW1/1 to Ex. PW1/7.
15. Sh. Dharmanand, Halka Patwari of village Nangloi Sayyad and village Nilothi, has been examined by the plaintiff as PW3 and he has proved the Khatauni of village Nilothi in respect of Khasra No. 4/16 for CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 9 of 41the year 2001-02 as Ex. PW3/1 and Khasra Girdawari of village Nilothi in respect of Khasra No. 4/16 for the year 2013-14 as Ex. PW3/2 and Sizra of Village Nilothi as Ex. PW3/3.
16. All the three witnesses of the plaintiff were duly cross-examined by Ld. Counsels for defendant No. 1, 2 and 3. Thereafter, on a separate statement of plaintiff, PE was closed vide order dated 12.08.2015.
17. Defendant no.1 has thereafter examined himself as the sole witness in support of his case, i.e. as DW1 and tendered his evidence by way of affidavit Ex. DW-1/A. He was duly cross-examined by Ld. counsel for plaintiff, but, before he could be cross-examined by defendant No. 2 and 3, he stopped appearing in the matter. Since he has failed to offer himself as a witness for his cross-examination by defendant No. 2 and 3 despite repeated opportunities and has not even paid the coast imposed upon him, evidence on behalf of defendant no. 1 was closed by Ld. Predecessor of this Court vide Order dated 30.03.2017.
18. The defendant No. 2 has examined himself as D2W1 and tendered his evidence by way of affidavit Ex. D2 W1/A alongwith the photocopies of GPA, agreement to sell, affidavit, sale consideration receipt, possession letter and registered will all dated 11.07.2007 allegedly executed by defendant No. 1 in favour of defendant No. 2 as mark A to Mark-F respectively. He was duly cross-examined by Ld. Counsel for plaintiff.
19. Although, defendant no. 3 has also filed his evidence by way of affidavit, however, since he has failed to make himself available for his cross-examination despite repeated opportunities, opportunity of defendant no. 3 to lead evidence in support of his case was closed vide Order dated 26.09.2017. Matter was thereafter adjourned for final CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 10 of 41arguments.
20. However, at this stage, i.e. at the stage of final arguments, an application under Order 6 Rule 17 CPC came to be filed by the plaintiff seeking amendment in the plaint qua the municipal no. of the suit property. The aforesaid application of the plaintiff was dismissed by Ld. Predecessor of this Court vide Order dated 20.02.2019. As is apparent from the record, the aforesaid Order dated 20.02.2019 of this Court was challenged by the plaintiff before Hon'ble Delhi High Court in CM(M) 1103/2019 and vide order dated 26.07.2019, the said petition of the plaintiff was dismissed by Hon'ble Delhi High Court with cost of ₹ 7500/- to be paid by the plaintiff in the Delhi High Court Bar Association Library Fund. It appears from the record that the said order dated 26.07.2019 has not been challenged by the plaintiff and hence, the same has attained finality.
21. Final arguments on behalf of the plaintiff and defendants no. 2 and 3 were thereafter hard on 26.07.2022, whereas, none has come forward on behalf of defendant no. 1 to advance final arguments. Besides, written arguments have also been filed on behalf of the plaintiff and defendants no. 2 and 3.
22. It is submitted by Ld. Counsel for plaintiff that although the defendants no. 2 and 3 in their written statements have sought to dispute the identity of the suit property viz-a-viz the identity of the property allegedly purchased by them, however, according to him, the defendant no. 1 in his written statement has categorically admitted that the suit property as per the plaint was belonging to him and he had initially agreed to sell the same to the plaintiff but, later on, since the plaintiff has CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 11 of 41failed to come forward with the balance payment, he sold the same to defendant No. 2. Moreover, according to him, even the plea of defendant No. 2 and 3 in their written statement as to the identity of the suit property is clearly an afterthought, in as much as, defendant No. 2 in his reply to the application of plaintiff under Order 1 Rule 10 CPC has admitted that it is the same suit property as per the site plan annexed with the plaint, which had been allegedly purchased by him from defendant no. 1.
23. He submits that since the facts admitted need not be proved, through the admission on the part of defendant No. 1 of the description of the suit property as per the site map, besides, the admission of not only the agreement to sell dated 04.12.2006 but also the money receipt, the plaintiff has been able to prove that it was the plot No. RZ-R-261, which was agreed to be purchased by him from defendant no. 1. He submits that the plaintiff has also been able to establish his readiness and willingness to perform his part of the obligation qua the balance payment of ₹ 15 lacs through the legal notice Ex. PW1/4, which was duly served upon defendant no. 1 through registered post.
24. Although, according to him, defendant no. 1 in his written statement has denied the receipt of the aforesaid legal notice, however, since the same is proved to have been dispatched by the plaintiff to defendant no. 1 to his correct address after prepayment of the postal charges, there arises a presumption in favour of plaintiff regarding the service of the same upon defendant no. 1. The omission, according to him, on the part of defendant no. 1 in responding to the aforesaid legal notice, amounts to admission on the part of defendant no. 1 of the facts contained CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 12 of 41in the aforesaid legal notice, meaning thereby, the plaintiff has been able to prove his readiness and willingness to perform his part of the obligation based on the admission of defendant no. 1.
25. He submits that the defendants have admitted the defendant no. 1 to be the owner of the suit property and hence, the plaintiff is entitled to a decree for specific performance of agreement to Sell dated 04.12.2006 in his favour and against the defendants, in as much as, due to application of the doctrine of lis pendence, since the suit property had allegedly been purchased by defendant No. 2 from defendant no. 1 and by defendant No. 3 from defendant No. 2 during pendency of the present suit, the documents in their favour shall have no effect so as to dis-entitle the plaintiff from seeking the relief of specific performance of the agreement to sell dated 04.12.2006 qua the suit property. In support of his aforesaid submissions, Ld. Counsel for plaintiff has relied upon the judgment of Hon'ble Supreme Court in Guruswamy Nadar v. P. Laxmi Ammal(D) thr. LRs & Ors. AIR 2008 SC 2560, judgment of Hon'ble Punjab & Haryana High Court in Daljit Singh v. Janraj Singh & Anr. AIR 2018 P&H 115, judgment of Hon'ble Rajasthan High Court in Mal Chand v. Shiv Kumar & Ors. AIR 2017 Rajasthan 86 and judgment of Hon'ble Patna High Court in Jonha Devi & Ors, v. Dinesh Singh & Anr. AIR 2019 Patna 155.
26. He submits that even if it is assumed for the sake of argument that there was an error in description of the suit property in the agreement, the same can be amended at any stage as held by Hon'ble Supreme Court in Puran Ram v. Bhaguram & Anr. (2008) 4 SCC 102 and in Pratibha Singh & Anr. V. Sganti Devi Prasad (2003)2 SCC 330.
CS DJ No. 9771/2016R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 13 of 4127. It is further submitted by him the defendants no. 2 and 3 cannot claim any protection under Section 19(b) of the Specific Relief Act, in as much as, even as per their own pleadings, they had purchased the suit property from defendant no. 1 during pendency of the present suit. Even otherwise, according to him, none of the documents sought to be relied upon by the defendants no. 2 and 3 in support of their respective ownership over the suit property have been proved by them as per applicable rules of evidence. Even if, according to him, the same are assumed to have been proved, the same do not confer any right, title or interest over the suit property upon defendants no. 2 and 3 as these are neither properly stamped nor registered.
28. He further submits that the entire case of defendants is fraught with contradictions and it cannot be believed that the property allegedly purchased by defendant no. 1 from Sh. Narinder Singh for a sum of ₹ 60,000/- on 03.05.2007 would have been sold by him to defendant no. 2 for a sum of ₹ 6 lacs on 11.07.2007 in the presence of defendant No. 3 and on 29.08.2007, defendant no. 3 would have purchased the same from defendant no. 2 for the same consideration. Moreover, according to him, it is beyond the comprehension of a reasonable man as to how of property agreed to be sold by defendant no. 1 to the plaintiff for a consideration of ₹ 18,50,000/- would have been purchased by him from Sh. Narinder Singh on 03.05.2007 i.e. after six months of the date of agreement to sell, for a consideration of ₹ 60,000/- only. All the aforesaid facts, according to him, prove that the documents relied upon by the defendants no. 2 and 3 in support of their title over the suit property have been forged and fabricated by them just to defeat the claim of plaintiff over the suit CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 14 of 41property.
29. On the other hand, according to him, the conduct of the plaintiff in performance of the contract since beginning has remained unblemished and he has been able to prove his readiness and willingness to perform his part of the obligation through legal notice dated 13.03.2007. More so, when he has proved that he had sold the property at Bahadur Garh for a sum of Rs. 21,00,000/- in the year 2006. He submits that though ability of plaintiff to make the payment of the balance amount in terms of the agreement can be one of the factors in showing his readiness and willingness to perform the agreement, however, absence of proof of the same by itself can't be a factor to dis-entitle the plaintiff from seeking the relief of specific performance, nor according to him, it was necessary for the plaintiff to prove that he had kept the entire consideration ready with him. In support of his aforesaid submissions, Ld. Counsel for plaintiff has relied upon the judgments of Hon'ble Supreme Court in Kanthamani v. Nasreen Ahmed (2017)4 SCC 654 and Azhar Sultana v. B. Rajamani (2009)17 SCC 27.
30. He has thus prayed for decree of the present suit for specific performance in favour of plaintiff and against the defendants. In any case, according to him, even if the court for any reason comes to the conclusion that the plaintiff is not entitled to the aforesaid relief, the plaintiff is entitled for refund of the earnest money of ₹ 3,50,000/- along with reasonable interest from the date of filing of the suit till the date of realization of the amount, in as much as, the loss on account of alleged breach of contract by the plaintiff has neither been pleaded nor proved by defendant no. 1 or for that matter by defendants no. 2 and 3. In support of CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 15 of 41his aforesaid submission Ld. counsel for plaintiff has relied upon the judgment of Hon'ble Delhi High Court in Rajesh Kumar Dabas v. Rajpati 2019 SCC Online Del 7171 and the judgement of Hon'ble Supreme Court in Sukhwinder Singh versus Jagroop Singh & Anr. AIR 2020 SC 4865.
31. On the other hand, it is submitted by Ld. Counsel for defendants no. 2 and 3 that the first and foremost condition for entitlement of plaintiff to seek a decree of specific performance is that the agreement to sell between the parties must be a concluded, valid and enforceable contract, which further requires that i) the agreement must identify the property with certainty; ii) there must be a price/sale consideration fixed;
iii) the agreement must be based on mutuality; iv) the time within which the agreement is to be performed and the earnest money, if any, paid to the vendor must be specifically stated in the agreement with certainty; and v) there must be a date of the agreement, besides, certainty as to the other terms relating to the probable cost of conveyance to be borne by each of the parties and time within which the conveyance is to be affected. In the case in hand, according to him, the plaintiff has not been able to establish the identity of the property allegedly agreed to be purchased by him through the document is Ex. PW-1/2 and Ex. PW-1/3. He submits that a bare perusal of the aforesaid documents reflect that there is inadequate description of the subject property under the aforesaid documents and hence, a suit based on the aforesaid documents seeking the relief of specific performance is liable to be dismissed. In support of his aforesaid submission, Ld. Counsel for defendants no. 2 ancd 3 has relied upon the judgment of Hon'ble Supreme Court in Satish Kumar CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 16 of 41v. Karan Singh & Anr. 2016(1) CLJ 797(SC) and judgments of Hon'ble Delhi High Court in M/s Mirahul Enterprises & Ors. V. Mrs. Vijaya Sirivastava AIR 2003 Delhi 15 and T. Muralidhar v. PVR Murthy 2015(2) CLJ 225 Delhi.
32. He further submits that plaintiff has also failed to prove the ownership of defendant no. 1 over the suit property as on the date of alleged agreement to sell and hence, no decree for specific performance qua the aforesaid agreement to sell can be passed by the Court. In support of his aforesaid submission, Ld. Counsel for defendants no. 2 and 3 has relied upon the judgment of Hon'ble Madhya Pradesh in Kashiram Rathore v. Mitthulal AIR 2013 MP 119, Judgment of Hon'ble Supreme Court in Agriculture Produce Market Committee v. Bannama(D) by LRs 2014(3) CLJ 28 (NOC) SC, judgment of Hon'ble Punjab & Haryana High Court in Gurmej Ram v. Harbans Singh 1993(2) RRR 557, and judgment of Hon'ble Delhi High Court in NDMC v. Prashant Narula & Ors. 234(2016) DLT 56.
33. It is further submitted by him that the defendants no. 2 and 3, through the cross-examination of plaintiff and his two witnesses as well as through the uncontroverted testimony of defendant no. 2, have been able to establish beyond reasonable doubts that the agreement and receipt Ex. PW-1/2 and Ex. PW-1/3 purportedly executed between the plaintiff and defendant no. 1 were not in respect of the suit property which belongs to the defendant No. 3. Under the aforesaid circumstances, according to him, the plaintiff is not entitled to the relief of Specific Performance of the Agreement to Sell dated 04.12.2006. In support of his aforesaid submission, Ld. Counsel for defendants no. 2 and 3 has relied upon the CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 17 of 41judgment of Hon'ble Punjab & Haryana High Court in Surja Mal v. Har Narain 1996(1) RRR 455 (P&H), in Ujagar Singh (dead) reptd. by his LRs v. Shivraj Singh 1997(1) RCR(Civil) 395, judgment of Hon'ble Allahabad High Court in Abdul Majid & Ors. V. Abdul Ghaffar & Ors. 1997 AIHC 2933 (All. HC), judgment of Hon'ble Andhra Pradesh High Court in M.C.V.Prasad & Ors. V. M. Subba Raju & Ors. 2013 AIR CC 2946(AP), and judgment of Hon'ble Delhi High Court in Laxmi Narayan Soni v. Sudha Gupta & Ors. 2018(1) The Verdict Today 610 (Del).
34. He submits that the entire case of the plaintiff is fraught with contradictions. It is further contended by him that another material fact, which was required to be proved by the plaintiff in order to make himself entitled to the decree for specific performance, i.e. his readiness and willingness to perform his part of the obligation under the alleged agreement dated 04.12.2006 has not been proved by the plaintiff by leading any cogent evidence, in as much as, he has failed to prove the availability of funds worth ₹ 15 lacs with him on or before 25.03.2007. In support of his aforesaid submission, he has relied upon the judgment of Hon'ble Supreme Court in Padmakumari & Ors. V. Dasayyan & Ors. 2015 V AD (SC) 624, in His Holiness Acharya Swamy Ganesh dassji v. Shri Sita Ram Thapar AIR 1996 SC 2095, and judgments of Hon'ble Delhi High Court in Bhaskar Saini v. Satbir Singh AIR 2008(NOC) 893 (Del) and in Matadin Yadav v. Midas Lids P. Ltd. 2013(139) DRJ 280.
35. He submits that the defendants No. 2 and 3 being bonafide purchasers for value, were not bound by the agreement to sell purportedly CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 18 of 41executed by defendant no. 1 in favour of plaintiff. He submits that plaintiff and defendant no. 1 are in collusion with each other, which is apparent from the fact that the defendant no. 1 although entered into the witness box, however, after supporting the case of the plaintiff during his cross- examination, he has failed to make himself available for cross- examination by defendants no. 2 and 3.
36. It is further submitted on behalf of different No. 2 and 3 that since the plaintiff has failed to seek any relief qua the documents executed between the defendants inter-se in respect of the suit property, there was no occasion for him to implead defendants no. 2 and 3 in the array of parties in a suit for specific performance of an agreement to sell which is absolutely vague and does not pertain to the property presently in possession of defendant no. 3. Ld. counsel for defendants no. 2 and 3 has thus prayed for dismissal of the present suit of plaintiff.
37. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record. I have also carefully gone through the judgments relied upon by Ld. Counsels for the parties in support of their respective submissions. My issue-wise findings, on the basis of material available on record, in the light of submissions made on behalf of the parties and judgments relied upon by them in support of their respective submissions, are given in subsequent paragraphs.
Issue no. 1: Whether the suit of plaintiff is in collusion with plaintiff and defendant No. 1? OPD
38. Onus to prove the aforesaid issue was upon defendants no. 2 and 3.
CS DJ No. 9771/2016R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 19 of 41It is submitted on their behalf that the collusion between the plaintiff and defendant no. 1 is apparent from the fact that defendant no. 1 after deposing in favour of plaintiff has stopped appearing in the matter for his cross-examination by defendants no. 2 and 3. This is the only circumstance, which has been relied upon by the defendants no. 2 and 3, as a proof of collusion between plaintiff and defendant no. 1. However, in my considered opinion, the aforesaid fact by itself is not sufficient to discharge the onus placed upon defendants no. 2 and 3 to prove the aforesaid issue.
39. Merely because, defendant no. 1 has not denied the execution of agreement to sell and receipt Ex. PW-1/2 and Ex. PW-1/3 by him in favour of plaintiff, by itself, is not sufficient to contend that he has deposed in favour of plaintiff. The defendant no. 1 took a categorical stand that it was the plaintiff who had committed breach of the agreement to sell Ex. PW-1/2 and had sold the same to defendant no. 2, which testimony, by no stretch of imagination can be said to be a statement made to benefit the plaintiff. Rather it is other way round.
40. Thus, in my considered opinion, defendants no. 2 and 3 have failed to prove any collusion between plaintiff and defendant no. 1 in filing the present suit. Issue no. 1 is thus decided against defendants no. 2 and 3.
Issue No. 2: Whether the plaintiff has no locus standi to file the present suit? OPD
41. Onus to prove the aforesaid issue was upon the defendants. It is submitted by Ld. Counsel for defendants no. 2 and 3 that the plaintiff had no locus-standi to file the present suit qua the suit property since the CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 20 of 41identity of the suit property is not the same as had been allegedly agreed to be purchased by the plaintiff from the defendant no. 1. Moreover, according to him, the plaintiff had no locus-standi to file the present suit based on the agreement Ex. PW-1/2, which was not legally enforceable on account of uncertainty in description of the property which was the subject matter of agreement between the parties.
42. I do not find any force in the aforesaid submission made on behalf of the defendants no. 2 and 3. It is significant to note in this regard that the plaintiff in the present suit has prayed for a decree of specific performance of an agreement to sell dated 04.12.2006 or in the alternative refund of his earnest money deposit of Rs. 3,50,000/-. It is nobody's case that plaintiff is not a party to the aforesaid agreement and hence, in my considered opinion, he has the requisite locus-standi to maintain the present suit against the defendant no. 1 being a party to the agreement and against defendants no. 2 and 3 being the alleged subsequent purchasers of the suit property. Whether or not the agreement Ex. PW-1/2 is a legally enforceable contract or was pertaining to the suit property is a question to be gone into in determination of the issue of entitlement of plaintiff to the reliefs prayed for in the plaint and not to determine his locus-standi to file the present suit.
43. Issue no. 2 is thus decided against the defendants.
Issue no. 3: Whether the suit of plaintiff is bad for non- joinder of necessary parties? OPD
44. The aforesaid issue was settled by the Court in view of preliminary CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 21 of 41objection taken by defendant no. 1 in his written statement that the suit of the plaintiff is bad for non-joinder of defendant no. 2 as a party in the present suit since the suit property, which was the subject matter of agreement to sell between the parties, had already been sold by him to the defendant no. 2. Since, subsequently, defendant no. 2 and 3 being subsequent purchasers of the suit property have been impleaded by the plaintiff in the present suit, pursuant to the directions of this Court vide order dated 18.11.2009, the said issue does not survive and hence, stands deleted.
Issue no. 4: Whether the suit of plaintiff has been properly valued? OPP and Issue No. 10: Whether the suit has been properly valued for the purpose of court fees and jurisdiction? OPP
45. Both the aforesaid issues are identical and since issue no. 10 has already been decided by the Court vide order dated 29.09.2010 in favour of plaintiff, which order has attained finality, having not been challenged by the defendants before any superior Court, issue no. 4 also stands decided in favour of plaintiff.
Issue No. 5: Whether this court has no territorial jurisdiction to try the suit? OPD
46. Onus to prove the aforesaid issue was upon the defendants. Admittedly, defendants have failed to lead any evidence on the aforesaid issue and hence, the same is decided against the defendants.
CS DJ No. 9771/2016R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 22 of 41Issue No. 9: Whether defendant No. 2 and 3 have been unnecessarily impleaded as parties since the property bearing No. RZ-R 261 measuring 200 Sq. Yds. falling in Khasra No. 4/16 situated in the area of village Nilothi, Nihal Vihar sold to them is not the suit property in question? OPD 2&3
47. Onus to prove the aforesaid issue was upon the defendants no. 2 and 3. It is significant to note that the defendants no. 2 and 3 have been impleaded in the suit in view of the plea of defendant no. 1 in his written statement that the suit property which was earlier agreed to be sold by him to the plaintiff vide agreement to sell dated 04.12.2006 has been sold by him to defendant no. 2 after the plaintiff had failed to pay the balance sale consideration to the defendant no. 1 and plea of defendant no. 2 in response to application of plaintiff under Order 1 Rule 10 CPC that he had subsequently sold the suit property to defendant no. 3. Parties are impleaded in a suit on the basis of prima facie view of the matter.
48. Whether the agreement between the plaintiff and defendant no. 1 was in respect of the same property which had allegedly been sold by the defendant no. 1 to defendant no. 2 and by defendant no. 2 to defendant no. 3, is again a question to be decided upon appreciation of evidence led on behalf of the parties to determine the entitlement of plaintiff to the reliefs prayed for in the plaint and not for determination of question as to whether defendants no. 2 and 3 were necessary parties to the suit or not. The application of defendant no. 2 under Order 1 Rule 10(2) CPC seeking deletion of his name from the array of parties has already been dismissed by Ld. Predecessor of this Court vide order dated 11.08.2010 holding him to be necessary party. If defendant no. 3 is held by this Court to be a CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 23 of 41necessary party to the present suit, by the same logic, defendant no. 2 was also a necessary party.
49. Moreover, both defendants no. 2 and 3 were impleaded on the directions of the Court vide order dated 18.11.2009 while observing that both of them were necessary parties. Considering the rival stand taken by the respective parties, in my considered opinion, presence of defendants no. 2 and 3 was very much essential for adjudication of real question in controversy between the parties irrespective of the fact as to whether the plaintiff has or has not been able to prove the identity of property as per the agreement to sell dated 04.12.2006 to be the same as the property which had allegedly been sold by defendant no. 1 to defendant no. 2 and by defendant no. 2 to defendant no. 3.
50. Issue no. 9 is thus decided against the defendants no. 2 and 3 while holding that on the basis of pleadings of the parties, they were necessary parties in the present suit. The issue of identity of suit property shall be dealt with under Issue no. 6.
Issue No. 6: Whether the plaintiff is entitled to specific performance of agreement to sell? OPP
51. Onus to prove the aforesaid issue was upon the plaintiff. Section 10 of the Specific Relief Act, 1963, as it stood as on the date of filing of the present suit, provides that the specific performance of any contract may, in the discretion of the court, be enforced-a) when there exists no standard for ascertaining actual damages caused by the non-performance of the act agreed to be done; or b) when the act agreed to be done is such that compensation in money for its non-performance would not afford CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 24 of 41adequate relief. Explanation 1 appended to the aforesaid section provides that unless and until the contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money.
52. Section 9 of the aforesaid Act provides that the person, against whom the relief is claimed under Chapter II of the Act, may plead by way of defence any ground which is available to him under any law relating to contracts. As per Section 20 of the aforesaid Act, the jurisdiction to decree specific performance being discretionary, the Court is not bound to grant such relief merely because it is lawful to do so, however, the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by the Court of Appeal. Section 21 of the Act confers power upon the court to grant compensation for breach of contract, either in addition to or in substitution of the specific performance of a contract, provided that, the plaintiff has claimed the compensation in his plaint and the court, while determining the amount of compensation to be awarded under this Section, shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872.
53. Although, Section 17 of the Specific Relief Act bars specific enforcement of the contract to sell any immovable property in favour of the vendor, who within his own knowledge had no title to the suit property, however, the rights of the proposed vendee in a case where the proposed vendor had no title or an imperfect title have been given in Section 13 of the Specific relief Act, 1963. A bare perusal of Section 13 of the Act shows that in cases where the proposed vendor had no title or had an imperfect title as on the date of agreement, the suit for specific CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 25 of 41performance can be filed by the proposed vendee, if he subsequently acquires a title to the suit property and in other cases, where, certain steps are required to be taken by the proposed vendor to perfect his title, the proposed vendee, may first seek a direction to the proposed vendor to take such steps and to perfect his title, before he can seek a decree of specific performance.
54. In the case in hand, the proposed vendor i.e. defendant no. 1 has not taken any plea in his defence that he had no title to the suit property as on the date of agreement to sell dated 04.12.2006. Even, as per the plea of defendants no. 2and 3, although the defendant no. 1 had no title to the suit property as on the date of agreement dated 04.12.2006, however, he had acquired title to the suit property much before filing of the present suit by the plaintiff. Thus, the present suit of the plaintiff can't be said to be barred merely because it has been pleaded by defendants no. 2 and 3 that the defendant no. 1 had no title over the suit property as on the date of agreement to sell. Reliance in this regard is placed on the provisions of Section 13(1)(a) of the Specific Relief Act, 1963.
55. Moreover, the plea of defendants no. 2 and 3 that the agreement dated 04.12.2006 can't be specifically enforced against them, they being the bonafide purchasers for value without notice of the agreement in terms of Section 19(b) of the Specific Relief Act, 1963, is liable to be rejected firstly-because none of the documents relied upon by them in support of their title over the suit property are sufficient to confer any title upon them over the suit property being unregistered documents in view of judgment of Hon'ble Supreme Court in Suraj Lamp and Industries CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 26 of 41Private Ltd. v. State of Haryana and Anr. (2012)1 SCC 656; secondly- because they have even failed to prove the aforesaid documents as per applicable rules of law of evidence; and thirdly- because even if, it is assumed for the sake of arguments that the defendant no. 2 had purchased the suit property from defendant no. 1 on 11.07.2007 and defendant no. 3 had purchased the suit property from defendant no. 2 on 29.08.2007, as alleged even without notice of the earlier agreement dated 04.12.2006, they are not entitled to the benefit of Section 19(b) of the Specific Relief Act, 1963 by virtue of provisions of Section 52 of the Transfer of property Act, 1882, both the transactions between defendants inter-se having taken place after filing of the present suit by the plaintiff on 13.06.2007. While taking the aforesaid view, I draw support from the following observations of Hon'ble Supreme Court in Guruswamy Nadar v. P. Lakshmi Ammal, (2008) 5 SCC 796:
"8. Therefore, the question before us in this case is what is the effect of the lis pendens on the subsequent sale of the same property by the owner to the second purchaser.
9. Section 19 of the Specific Relief Act clearly says subsequent sale can be enforced for good and sufficient reason but in the present case, there is no difficulty because the suit was filed on 3-5-1975 for specific performance of the agreement and the second sale took place on 5-5-1975. Therefore, it is the admitted position that the second sale was definitely after the filing of the suit in question. Had that not been the position then we would have evaluated the effect of Section 19 of the Specific Relief Act read with Section 52 of the Transfer of Property Act. But in the present case it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens will govern the present case and the second sale CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.Judgment dated 19.09.2022 Page 27 of 41
cannot have the overriding effect on the first sale.
10. The principle of lis pendens is still settled principle of law. In this connection, the Full Bench of the Allahabad High Court in Ram Peary [AIR 1978 All 318] has considered the scope of Section 52 of the Transfer of Property Act. The Full Bench has referred to a decision in Bellamy v. Sabine [(1857) 44 ER 842] (ER at p. 847) wherein it was observed as under : (Ram Peary case [AIR 1978 All 318] , AIR p. 319, para 4) "4. ...'It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.
Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the court in the suit shall be binding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end.' "
11. Similarly, the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narain [(1906-07) 34 IA 102] where the Court laid stress on the necessity for final adjudication and observed that otherwise there would be no end to litigation and justice would be defeated.
12. The Full Bench of the Allahabad High Court further referred to the work of Story on Equity, 3rd Edn., (Para
406) which expounded the doctrine of lis pendens in the CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 28 of 41terms as follows : (Ram Peary case [AIR 1978 All 318] , AIR p. 319, para 6) "6. ... Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendente lite, nihil innovetur; the effect of which is not to annul the conveyance but only to refer it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them."
13. Normally, as a public policy once a suit has been filed pertaining to any subject-matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject- matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.
14. Our attention was invited to a decision of this Court in R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab [(2000) 6 SCC 402 : AIR 2001 SC 1658] . In this case it was observed that a person who purchased the property should have made necessary effort to find out with regard to that CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 29 of 41property, whether the title or interest of the person from whom he is making purchase was in actual possession of such property. In this case, the plaintiff filed the suit for specific performance of contract and during the pendency of the suit, rest of the defendants brought subsequent transaction of sale by the defendant in their favour claiming the title to the suit property on the ground that they were the bona fide purchasers for value without notice of prior agreements in favour of the plaintiff and they were also aware that the plaintiff was in possession of the suit property as a tenant for last several years and that they did not make any inquiry if the plaintiff had any further or other interest in the suit property on the date of execution of sale deed in their favour apart from that he was in possession of the property as a tenant. In that context Their Lordships observed that subsequent purchaser cannot be said to be bona fide purchaser of the suit property for value without notice of suit agreement and the plaintiff would be entitled to relief of specific performance. Their Lordships after considering the effect of Section 19 of the Specific Relief Act as well as Section 52 of the Transfer of Property Act held that subsequent purchaser has to be aware before he purchases the suit property.
15. So far as the present case is concerned, it is apparent that the appellant who is a subsequent purchaser of the same property, has purchased in good faith but the principle of lis pendens will certainly be applicable to the present case notwithstanding the fact that under Section 19(b) of the Specific Relief Act his rights could be protected." (Emphasis mine)
56. This leads the Court to the real question i.e. what all facts were required to be proved by the plaintiff in order to make himself entitled to a decree for specific performance of the agreement to sell dated 04.12.2006 in his favour and whether the plaintiff has been able to prove CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 30 of 41the same? The pre-requisites, for passing of a decree of specific performance of an agreement to sell in the light of provisions of chapter- II of Part-II of the Specific Relief Act, 1963 read with section 2(e) of the aforesaid Act and provisions of Chapter II and Section 2 of the Indian Contract Act, 1872, in my considered opinion, as on the date of filing of the suit by the plaintiff, were as follows:
i) There should be a valid and legally enforceable contract between the parties;
ii) The plaintiff must plead and prove that he has either performed or has always been ready and willing to perform his part of the obligations under the contract from the date of agreement to the date of filing of the suit;
iii) There exists no standard for the court to determine actual damages caused by non-performance of his part by the defendant under the agreement OR the act agreed to be done by the defendant is such that the compensation in monetary terms for its non-performance would not afford adequate relief to the plaintiff.
57. Now, the term "contract" has not been defined under the Specific Relief Act, 1963 and by virtue of Section 2(e) of the Act, for definition of the aforesaid term, we need to refer to the provisions of Section 2(h) of the Indian Contract Act, 1872, which defines "contract" as an agreement enforceable by law. Moreover, Section 10 of the Indian Contract Act, 1872 provides for certain essential conditions for an agreement to become contract. Section 2(g) of the Indian Contract Act, 1872 defines a void agreement as an agreement which is not enforceable by law, meaning thereby, the void agreements as defined in Sections 24 to 30 of the Indian CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 31 of 41Contract Act, 1872 are not legally enforceable and hence, not contracts within the meaning of Section 2(h) of the Act.
58. For our purpose, it is Section 29 of the Contract Act, which is relevant. Section 29 of the Contract Act, 1872 renders the agreements, meaning of which is not certain or capable of being made certain, void. In the case in hand, it is submitted by Ld. Counsel for defendants no. 2 and 3 that the agreement dated 04.12.2006 is void and hence not enforceable in view of the fact that no proper description of the property agreed to be sold through the said agreement has been given in the agreement. On the other hand, it is submitted by Ld. Counsel for plaintiff that there is no dispute raised by the defendant no./ 1 either in his written statement or evidence by way of affidavit as to the agreement being void on account of uncertainty qua the property agreed to be sold by defendant no. 1. He submits that even defendant no. 2 in his reply to the application of plaintiff under Order 1 Rule 10 CPC has admitted the property allegedly purchased by him from the defendant no. 1 to be the suit property.
59. I have heard the submissions made on behalf of the parties and have perused the material available on record.
60. In the case in hand, the defendant no. 1 has not denied the execution of agreement to sell and receipt both dated 04.12.2006, which are Ex. PW-1/2 and Ex. PW-1/3, by him in favour of plaintiff, nor, has he denied the receipt of Rs. 3.5 lacs by him from the plaintiff under the aforesaid agreement. A bare perusal of the agreement Ex. PW-1/2 shows that the property agreed to be sold by him to the plaintiff under the said agreement has been described as "R-Block, Khasra No. 4/16, Nihal Vihar, measuring 185 Sq. Yds. (Single Storey built with three shops and three CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 32 of 41rooms set)". Thus, neither the municipal number of the property agreed to be sold through the said agreement has been given in the agreement nor the dimensions or for that matter boundaries of the same have been given in the agreement or even in the receipt Ex. PW-1/3.
61. It has not even been pleaded or proved by the plaintiff that the suit property was the only property owned and possessed by the defendant no. 1 in the said locality of Nihal Vihar and hence, the property sought to be sold by defendant no. 1 through the said agreement could not have been any property other than the suit property. It is not even his case that no municipal number was assigned to the property agreed to be sold by defendant no. 1 to the plaintiff at the time of execution of agreement to sell dated 04.12.2006. On the contrary, during his cross-examination, dated 01.08.2012 by Ld. Counsel for defendant no. 3, he has deposed that the property number of the property agreed to be sold by the defendant no. 1 under the agreement was told to him by defendant no. 1 as Property no. RZR-185. He has failed to explain as to why the said number was not mentioned in the agreement. Moreover, during his cross-examination dated 02.01.2013, by Ld. Counsel for defendant no. 2, it has been admitted by plaintiff that there may be many other plots/property of the same direction/situation/locations/measurements in the colony as described/shown in the site plan Ex. PW-1/1.
62. Although, plaintiff, during his cross-examination dated 01.08.2012 has tried to take a plea that the site plan Ex. PW-1/1 was handed over by defendant no. 1 to the plaintiff at the time of execution of receipt Ex. PW- 1/3, however, the said plea seems to be an afterthought and absolutely false in view of the fact that the site plan does not find mention in either CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 33 of 41of the documents Ex. PW-1/2 and Ex. PW-1/3 and that site plan mentions the municipal number of the suit property as RZR-185(old) and RZR- 223(new) and if the same was handed over by the defendant no. 1 to plaintiff on 04.12.2006, there was no justification for not mentioning the same municipal numbers in the agreement Ex. PW-1/2. Moreover, in the site plan Ex. PW-1/1 as well as the plaint the suit property is stated to be situated in the revenue estate of village Nangloi-Sayed, whereas, as per the testimony of PW-3, the suit property does not fall within the revenue estate of village Nangloi Sayed but in the revenue estate of village Nilothi.
63. Although, while relying upon the judgment of Hon'ble Supreme Court in Puran Ram v. Bhaguram's case supra, it has been sought to be contended by Ld. Counsel for plaintiff that description of the suit property can be amended by the plaintiff in the agreement dated 04.12.2006 at any stage, however, in my considered opinion, plaintiff can't derive the benefit from the legal propositions laid down by Hon'ble Supreme Court in the aforesaid judgment and the judgment in Pratibha Singh's case supra, in view of the fact that he has failed to amend the plaint so as to incorporate a prayer for rectification of description of the suit property in the agreement Ex. PW-1/2 and his application for amendment of the plaint and not seeking rectification of the agreement has already been dismissed by Ld. Predecessor of this Court vide order dated 20.02.2019 and the CM(M) 1103/2019 preferred by him against the aforesaid order before Hon'ble Delhi High Court was dismissed vide judgment dated 26.07.2019. The aforesaid order of Hon'ble High Court dated 26.07.2019 has not been further challenged by the plaintiff and hence, the same has attained finality.
CS DJ No. 9771/2016R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 34 of 4164. Under the aforesaid circumstances, it can safely be concluded that not only the property agreed to be sold under the agreement Ex. PW-1/2 is not certain but also the same is not capable of being made certain from the attending facts and circumstances existing as on the date of execution of the agreement to sell dated 04.12.2006. the agreement to sell dated 04.12.2006 is thus void in terms of Section 29 of the Indian Contract Act, 1872 and hence, can't be specifically enforced.
65. There is another reason for declining the specific performance of agreement to sell Ex. PW-1/2 in favour of plaintiff i.e. in my considered opinion, the plaintiff has also failed to prove that he was ready and willing to perform his part of the agreement. No doubt, in view of the authoritative pronouncements of Hon'ble Supreme Court in Kanthmani v. Nasreen Ahmed(supra) and Azhar Sultana v. B. Rajamani (supra) the plaintiff was not bound to keep the entire amount of balance sale consideration ready with him to show his readiness and willingness to perform his part of the obligation under the contract, however, he has even failed to prove that he had made any alternative arrangement for the same. During his cross-examination dated 15.03.2011, plaintiff has admitted that he was a pensioner drawing a pension of Rs. 15,000/- as pension. Although, he had tried to take a plea that the balance sale consideration was available with him out of sale proceeds of one property situated at Bahadurgarh allegedly sold by him for a consideration of Rs. 21,00,000/- in October, 2006, however, he has failed to divulge the details of the said sale transaction including that of the property allegedly sold by him during his further cross-examination.
66. It is submitted by Ld. Counsel for plaintiff that the service of legal CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 35 of 41notice Ex. PW-1/4 by the plaintiff upon defendant no. 1 should be taken as a conclusive proof of his readiness and willingness to perform his part of the contract. Although, according to him, the defendant no. 1 has denied the receipt of legal notice, however, relying on the judgment of Hon'ble Supreme Court in Indo Automobiles case supra, he submits that since the notice was dispatched by the plaintiff to the correct address of defendant no. 1 after pre-payment of the postal charges, there arises a presumption in favour of plaintiff regarding due service of the same. I find force in the submission of Ld. Counsel for plaintiff that in the absence of any evidence by the defendant no. 1 that the address mentioned in the legal notice was not his correct address or that the postal receipt and AD card Ex. PW-1/5 and Ex. PW-1/6 are forged and fabricated, there arises a presumption in favour of the plaintiff regarding due service of legal notice Ex. PW-1/4 upon the defendant no.1. defendant no. 1 has admittedly neither replied nor complied with the same.
67. Be that as it may, a bare perusal of the aforesaid notice would show that the plaintiff through the aforesaid notice has not fixed any specific date for payment of the balance sale consideration by him to defendant no. 1 and for execution of registered sale deed by defendant no. 1 in favour of plaintiff, but left the same to be decided by defendant no. 1. He has failed to prove that when he did not receive any reply to the aforesaid notice from the defendant no. 1, he had approached the defendant no. 1 to decide the date of balance payment and execution of the sale deed.
68. In fact, the plaintiff in his pleadings as well as evidence was found taking contradictory stands as to the manner in which he had been approaching the defendant no. 1 for performance of their respective CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 36 of 41obligations under the agreement. Although, in his original plaint as well as the first amended plaint, plaintiff had taken a plea that he had visited the office of Sub-Registrar, Nangloi on 05.03.2007 and kept waiting for defendant no. 1 whole day for execution of the sale deed, however, the legal notice Ex. PW-1/4, which is dated 13.03.2007, is conspicuously silent about the aforesaid fact. On the other hand, in para no. 7 of the second amended plaint filed by the plaintiff on 21.12.2010, he has alleged that it was on 25.03.2007, when he had visited the office of Sub-registrar, Nangloi. However, once again in para 8 of his evidence by way of affidavit, plaintiff has given the date of his visit to office of Sub-registrar as 05.03.2007. During his cross-examination dated 15.03.2011, he has taken a plea that he visited the office of Sub-Registrar, Nangloi on 25.03.2007, however, during his cross-examination dated 01.08.2012, he has categorically admitted that he had not visited the office of sub-registrar on 25.03.2007, because he had come to know that the suit property had already been sold by defendant no. 1 to someone else.
69. Moreover, although, during his cross-examination dated 15.03.2011, plaintiff has taken a plea that he went to defendant no. 1 before 05.03.2007 for performing his part of the contract as the amount was available at his house in cash, but, during his cross-examination dated 30.09.2013, he has first taken a plea that he had sent the property dealer to defendant no. 1 to complete the sale transaction and subsequently took a stand that he had gone personally to defendant no. 1 for the same.
70. The aforesaid contradictions in the testimony of plaintiff, coupled with the fact that the plaintiff has failed to prove that he had made any CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 37 of 41arrangement for the balance sale consideration on or before the date of execution of the sale deed as per the agreement and the fact that despite knowing before 25.03.2007 that defendant no. 1 had sold the suit property to someone else, he has failed to file the present suit until 13.06.2007, are sufficient to conclude that the plaintiff has failed to prove his readiness and willingness to perform his part of the contract.
71. Under the aforesaid circumstances, in my considered opinion, plaintiff is not entitled to the relief of specific performance of agreement to sell dated 04.12.2006 in his favour. Issue no. 6 is thus decided against the plaintiff.
Issue no. 7: Whether plaintiff is entitled to claim of permanent Injunction? OPP
72. Since the plaintiff has been held dis-entitled to the relief of specific performance, in my considered opinion, he is not entitled to the relief of permanent injunction restraining the defendants from alienating, transferring, selling or parting with possession of the suit property in favour of any third person except the plaintiff. Issue no. 7 is thus decided against the plaintiff.
Issue No. 8: Relief?
73. In alternative to the relief of specific performance of the agreement to sell dated 04.12.2006, plaintiff in prayer clause 2 of the plaint has prayed for a decree for recovery of Rs. 3,50,000/- with interest @24% per annum in his favour. It is submitted by Ld. Counsel for plaintiff that even if it is assumed for the sake of arguments that it was the plaintiff, who was CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 38 of 41in breach of the agreement, in the absence of proof of any damage having been suffered by defendant no. 1, plaintiff can't be left high and dry and he is entitled to a decree for refund of the earnest money deposit of Rs. 3.5 lacs in his favour alongwith reasonable interest considering the present value of the property in question. In support of his submission, Ld. Counsel for plaintiff has relied upon the judgment of Hon'ble Supreme Court in Sukhwinder Singh v. Jagroop Singh & Anr.(supra) and judgment of Hon'ble Delhi High Court in Rajesh Dabas's case (supra).
74. On the other hand, the aforesaid prayer of plaintiff has been opposed by Ld. Counsel for defendants no. 2 and 3 on the ground that admittedly plaintiff himself had got the agreement to sell and receipt Ex. PW-1/2 and Ex. PW-1/3 drafted and hence, he himself being a part of illegality by entering into an illegal agreement is not even entitled to refund of the earnest money.
75. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record. As already discussed hereinabove, although the plaintiff in the present suit has taken a plea that it is the defendant no. 1 who is in breach of the agreement to sell dated 04.12.2006, however, he has failed to prove the same. On the other hand, even the defendant no. 1 has failed to prove that it was the plaintiff, who has committed the breach of the agreement to sell dated 04.12.2006, particularly, when he has failed to respond to the legal notice Ex. PW-1/4 of the plaintiff nor has he served any legal notice upon the plaintiff demanding the balance payment.
76. Thus, from the evidence led on behalf of the parties, it has not been CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 39 of 41possible for the Court to arrive at a definite conclusion as to which of the parties is in breach of the agreement. On the other hand, the agreement dated 04.12.2006 has been found to be void by the Court in terms of Section 29 of the Indian Contract Act, 1872 and hence, unenforceable. Section 65 of the Indian Contract Act, 1872 requires a party in receipt of any advantage under a void contract to restore the same to the person from whom he has received such advantage.
77. In the case in hand, it is defendant no. 1 who has admittedly received a sum of Rs. 3.5 lacs from the plaintiff under the agreement dated 04.12.2006, which has subsequently been declared to be void by this Court, and hence, in terms of Section 65 of the Indian Contract Act, 1872, defendant no. 1 is bound to restore the aforesaid advantage i.e. to refund the earnest money deposit of Rs. 3.5 lacs to the plaintiff. Considering the fact that the earnest money deposit of Rs. 3.5 lacs has been unreasonably withheld by the defendant no. 1 for a considerable period without any reasonable explanation, in my considered opinion, it would be in the interest of justice to award reasonable compensation in the form of interest on the aforesaid amount in favour of plaintiff.
78. Considering the fact, that the transaction between the parties was not a commercial transaction, in my considered opinion, the interest of justice shall be served by award of pendente-lite interest @ 9% per annum on the principal amount of Rs. 3.5 lacs from the date of filing of the present suit by the plaintiff against defendant no. 1 i.e. w.e.f. 13.06.2007 till the date of decree and a further interest @6% per annum from the date of decree till the date of actual realization of the aforesaid amount. In the facts and circumstances of the present case, parties are left to bear CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors.
Judgment dated 19.09.2022 Page 40 of 41their own costs.
79. In view of the aforesaid discussion, it is hereby ordered that the suit of plaintiff for the relief of specific performance and permanent injunction is hereby dismissed while the alternative prayer of the plaintiff for decree for recovery of Rs. 3.5 lacs alongwith interest is partly allowed directing the defendant no. 1 to refund the earnest money deposit of Rs. 3.5 lacs to the plaintiff alongwith pendente-lite interest @9% per annum from the date of filing of the suit i.e. w.e.f. 13.06.2007 till the date of decree and further interest @ 6% per annum from the date of decree till actual realization. Parties to bear their own costs.
80. Decree sheet be prepared accordingly.
Announced in the open court on this 19th day of September, 2022. This judgment consists of 41 number of signed pages.
Digitally signed by ARUN KUMAR ARUN KUMAR GARG GARG Date: 2022.09.19 16:34:11 +05'30' (ARUN KUMAR GARG) Additional District Judge-05(Central) Tis Hazari Courts, Delhi. CS DJ No. 9771/2016 R.C.Anand v. Joginder Singh & Ors. Judgment dated 19.09.2022 Page 41 of 41