Delhi District Court
Dr. Kumar Rakesh vs Balwant Kaur Ors on 12 April, 2024
In the Court of Shri Naresh Kumar Laka
District Judge -07 (Central)
Tis Hazari Courts, New Delhi
CS DJ No. 609773/2016
CRN No. DLCT01-000017-2005
In the matter of:
Dr. Kumar Rakesh
S/o Sh. Manmohan Prasad
R/o 3/239, Subash Nagar,
New Delhi-110027
..... Plaintiff
VERSUS
1. Smt. Balwant Kaur
W/o Sh. S. Attar Singh
2. Sh. Gurudarshan Singh,
S/o Sh. S. Attar Singh,
3. Sh. Paramjeet Sigh,
S/o Sh. S. Attar Singh,
All resident of
H. No. 2/8, Subhash Nagar,
New Delhi-110027
4. Sh. Vinod Arora,
S/o Late Sh. K.L. Arora,
R/o 749, Third Floor,
New Rajinder Nagar, New Delhi
.......Defendants
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Dr. Kumar Rakesh vs. Balwant Kaur and ors.
Date of institution : 15.07.2005
Final arguments concluded on : 02.04.2024
Date of decision : 12.04.2024
Result : Decreed
SUIT FOR DECLARATION AND SPECIFIC PERFORMANCE
JUDGMENT
Suit in brief The plaintiff filed present suit seeking relief of specific performance and other reliefs by claiming that he was staying as a tenant in the property bearing no. 3/239, Ground Floor, Subhash Nagar, New Delhi (in short 'suit property') and the owner of the said property, namely, defendant no. 1 to 3 entered into a transaction for sale of the said property with the plaintiff at the consideration amount of Rs.12,25,000/-, out of which, the plaintiff had paid advance/earnest money of Rs.1,25,000/- through three different cheques which were credited in the bank accounts of defendant no. 1 to 3 and thereafter, an agreement to sell dated 30.12.2003 was executed between the parties. It is alleged that the defendants did not comply with the terms of the said agreement nor executed sale deed. It is also claimed that the plaintiff is willing and ready to perform his part of contract by making payment of the remaining amount but the defendant no.1 to 3 did not take step to get the said property converted as free hold.
2. After filing of the present suit, the defendant no. 1 to 3 entered into another transaction with defendant no. 4, therefore, defendant no. 4 CS No. 609773/2016 Page no. 2 of 17 Dr. Kumar Rakesh vs. Balwant Kaur and ors.
was also impleaded in the present suit and the plaintiff filed amended plaint by adding a prayer of declaration to the effect that the documents executed by defendant no. 1 to 3 in favour of defendant no. 4, subsequent to agreement to sell dated 30.12.2003, may be declared as null and void. A relief of permanent injunction has also been prayed for restraining the defendants from alienating/transferring the suit property alongwith an alternative relief of recovery of Rs.5,83,491, interest and double amount of the earnest money.
Defence in brief
3. The defendant no. 1 to 3 contested the suit and filed their joint written statement in which execution of the agreement to sell, receipt of amount of Rs. 1,25,000 and other important facts have been admitted and it is claimed that the plaintiff was duly informed by the defendants that the suit property was a lease hold one and that the defendants cannot complete the formalities for conversation of the said property as they had purchased the said property on the basis of power of attorney, agreement to sell, Will etc. but the plaintiff insisted for getting the said property converted, therefore, the said agreement to sell could not be performed. It is further claimed that eventually, the defendant no.1 to 3 sold the said property to Sh. Vinod Arora (D-4) and as such the present suit became infructuous. The defendant no.4 also filed his WS wherein the allegations of the plaintiff were disputed and he claimed himself to be a bona fide purchaser of the suit property from the defendant no.1 on payment of consideration amount.
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Dr. Kumar Rakesh vs. Balwant Kaur and ors.
Replication, issues & trial
4. The plaintiff filed replication to the written statements of the defendants wherein the averments made in the plaint were reiterated/reaffirmed and the allegations of the defendants were controverted. From the pleadings of the parties, following issues were framed on 19.10.2006:
1. Whether the plaintiff is entitled to a decree of specific performance as prayed for? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
3. Whether the suit is without cause of action? OPD
4. Whether the plaintiff has failed to perform his part of the contract? OPD
5. Vide order dated 16.10.2007, my Ld. Predecessor had framed an additional issue as under:
Additional Issue No. 1: Whether the plaintiff is entitled to recovery of amount of Rs. 5,83,491 with interest from the defendant no.1, 2 and 3? OPP
6. As per the direction of Hon'ble High Court of Delhi, following additional issue was also framed:
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Additional issue no. 2: "Whether the sale documents of the property, in question, executed in favour of defendant no. 4 were null and void? OPP
7. In order to prove his case, the plaintiff examined himself as PW-1, Sh. Vivek Kumar as PW-2 and Sh. Raj Mani as PW-3. Defendant no. 1 examined herself as DW-1 and Sh. Vinod Arora examined himself as DW4 in their defence.
8. I have heard arguments from Sh. S.C. Singhal and Sh. Parth Mahajan, Ld. Counsel for plaintiff, Sh. Viksit Arora, Ld. Counsel for the defendant no.1 to 3 and Sh. Ashok Chhaparia, Ld. Counsel for the defendant no.4. Record perused.
REASONS FOR DECISION Issue No.: 1. Whether the plaintiff is entitled to a decree of specific performance as prayed for? OPP
3. Whether the suit is without cause of action? OPD
9. From the perusal of the agreement to sell dated 30.12.2003, it is seen that there is a clause with regard to getting the said property converted as free hold which is reproduced as under:
"Clause 8: That the first party shall apply and complete all the formalities for the freehold of the above mentioned property and the second party shall bear all the expenses regarding the freehold process."
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10. From the aforesaid clause, it is seen that the obligation to complete the aforesaid formality was upon the defendant no.1 to 3. In the entire written statement, nothing has been mentioned as to what steps were taken by the defendant no.1 to 3 for getting the said property converted from leasehold to freehold from the concerned authority. These facts clearly show that there was nothing wrong on the part of the plaintiff to demand conversion of the said property and to seek registration of the sale deed as per the specific terms of the said agreement to sell.
11. However, the Ld. Counsel for the defendant no.1 to 3 vehemently argued that the defendant no.1 to 3 purchased the suit property on the basis of standard set of documents, i.e. agreement to sell, Will, GPA etc. and even previous chain of documents are also in the same manner and, therefore, in that situation, the defendant no. 1 to 3 were not in a position to get the said property converted as free hold.
12. The aforesaid argument does not hold good unless the defendant no.1 to 3 had taken steps to apply to the concerned authority with the available sets of documents i.e. copy of the previous chain of documents and it cannot be assumed that on the basis of said documents, the said property could not have been converted. The defendants also did not examine any witness from the concerned authority to prove the said stand. In this regard, the decision was to be taken by the concerned land owning agency (i.e. L&DO) who had allotted the said property but in the absence of filing application by the defendants, the said situation did not arise. Moreover, if the defendant no.1 to 3 did not intend to get the said CS No. 609773/2016 Page no. 6 of 17 Dr. Kumar Rakesh vs. Balwant Kaur and ors.
property converted from lease hold to free hold, they should not have agreed to such condition as mentioned in the aforesaid clause 8 of the agreement to sell.
13. The defendant no.4 has filed previous chain of documents and referred the same in his affidavit which was filed in his examination in chief. In his registered agreement to sell, the chain of documents have been described. It was mentioned therein that property was originally allotted to Smt. Maya Dev vide registered lease deed dated 15.04.1968 and she sold the said property vide a registered sale deed to Daler Kaur who got mutation of the said property done in her name from L&DO Department of Govt. of India vide mutation letter dated 19.09.1985. Daler Kaur left behind a registered Will dated 29.06.1998 and the property was bequeathed to Harnam Singh, who also died by leaving a registered Will dated 20.07.1993 thereby bequeathing it to Harnam Kaur and Jaswant Kaur. Harnam Kaur and Jaswant Kaur sold the property to Balwant Kaur (defendant no.1) vide GPA, Will and agreement to sell, etc. all dated 03.11.2001.
14. It is a settled position of law the rights created through an agreement to sell are assignable, transferable and inheritable. Even right also devolves through execution of Will. As such, Balwant Kaur had acquired sufficient right in her favour to get the said property converted and/or mutated on the basis of aforesaid standard documents and if any other document would be needed by the concerned authority, it was the CS No. 609773/2016 Page no. 7 of 17 Dr. Kumar Rakesh vs. Balwant Kaur and ors.
duty of the defendants to execute the same since they had agreed in the agreement to sell to get the conversation formality done.
15. It is an admitted case that suit property was allotted by L&DO, Department of Government of India and the right of the plaintiff should not be defeated only on account of indifferent approach of the Defendant no.1 to 3 when the plaintiff had already paid the advance/earnest money of Rs. 1,25,000 and that he is always ready and willing to pay the remaining amount. A direction can be given to the defendants to take step in this regard for conversion of the said property or in the alternative the plaintiff can also take steps if the defendants fail to take such step and the govt. charges/fees can be adjusted in the remaining sale amount. Thereafter the registration of the sale deed in favour of plaintiff can also be got done and in the alternative the plaintiff can get executed the standard sets of documents i.e. GPA, Will, etc. through the defendants, either before or after the conversion process, if it is desired.
16. In this case, defendant no. 4 is a person to whom defendant no.1 had allegedly transferred the suit property by way of standard set of documents i.e. GPA, Agreement to Sell, Will, etc. The case of the plaintiff is based on an agreement to sell seeking specific performance against defendant no. 1 to 3 and the said agreement to sell was executed prior to execution of documents in favour of defendant no.4. Therefore, the rights of the defendant no. 4 are dependent upon the decision on enforcement of said agreement to sell dated 30.12.2003.
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17. The defendant no. 4 also claimed that he was a bona fide purchaser after payment of consideration amount and, therefore, no relief of specific performance of the agreement to sell can be granted in favour of the plaintiff. It is a settled position of law that when a person enters into a transaction for selling his/her property, the title of the said property does not transfer as per Section 54 of the Transfer of Property Act. However, there are certain distinct rights which accrue on the parties of the said agreement which include the right of the plaintiff/buyer to seek specific performance of the said contract, which is a substantial right as prescribed in the Specific Relief Act, 1963 and the right of the defendant/seller to seek payment of remaining amount, etc. Therefore, if a vendor sells or enter into any transaction with the said property which is a subject matter of an agreement to sell, he and the subsequent purchaser do so at their own risk. If the plaintiff succeeds in proving his case for seeking the relief of specific relief, then his right will prevail over the subsequent transaction which was entered into by the vendor i.e. defendant no. 1 to 3 herein and the defendant no.4. Such subsequent rights of the defendant no. 4 are subject to the outcome of the previous transaction. The claim of defendant no.4 that he entered into a sale transaction as a bona fide purchaser is also not convincing because the sale consideration of Rs.3 lakhs was highly lesser than the sale consideration agreed between plaintiff and defendants no.1 to 3 at Rs.12,25,000. Moreover, the possession of the suit property remained with the plaintiff only, therefore, without receiving the possession of the immovable property, the sale transaction appears to be a plot of the defendants no.1 to 3 to avoid the transaction of the plaintiff. Also, the CS No. 609773/2016 Page no. 9 of 17 Dr. Kumar Rakesh vs. Balwant Kaur and ors.
standard sets of documents i.e. GPA, Agreement to sell, Will etc. did not confer absolute ownership in favour of defendant no.4.
18. The plaintiff has claimed in the present suit that defendant no. 1 to 3 were/are the owners of the suit property and he had paid the part consideration amount/earnest money separately to each defendant. However, Ld. Counsel for the defendants raised an issue that it was only defendant no.1 who was the exclusive owner of the suit property and defendant no.2 and 3 have no interest. As regards said point, the previous chain of documents are required to be seen. The defendant no.4 specifically claimed that he had purchased the suit property from Smt. Balwant Kaur (defendant no. 1 only) on the basis of standard set of documents i.e. agreement to sell, GPA, SPA, Will etc. He also claimed that Smt. Balwant Kaur had purchased the said property from Smt. Harnam Kaur and Jaswant Kaur on the basis of similar sets of documents, all dated 03.11.2001.
19. In the WS filed by the defendant no. 1 to 3, it is claimed that said property has been purchased by virtue of agreement to sell, GPA, Will etc. However, defendants did not disclose the detail of the previous ownership. In her cross-examination, defendant no.1 stated that the documents were initially prepared in her name and in the name of her two sons and subsequently the names of her sons were deleted and documents were executed in her name only. On the contrary, the plaintiff claimed that there was manipulation in deletion of names, removal of photograph, etc. CS No. 609773/2016 Page no. 10 of 17 Dr. Kumar Rakesh vs. Balwant Kaur and ors.
20. Whatever may be the nature of stand that is - whether defendant no. 1 only was the owner of the suit property or that the defendant no. 1 to 3 were/are the collective co-owners of the suit property, this fact is not so material to dis-entitle the plaintiff from claiming the reliefs as prayed for because he had entered into an agreement to sell with all the three defendants. Therefore, this court does not deem it fit to go into the said issue and, in fact, accept the ownership/interest of the defendant no. 1 only in the suit property till defendant no.1 was alive. However, the amount given towards earnest money to the defendant no. 2 to 3 i.e. Rs.80,000 in total will be adjusted in the remaining sale consideration. During the course of the trial, the defendant no. 1 expired and the defendant no. 2 and 3 stepped into the shoes of defendant no.1 being her legal heirs. Therefore, all the acts on behalf of defendant no. 1 will now be done by defendant no. 2 and 3.
21. In view of the aforesaid findings, the issue no.1 and 3 are decided in favour of the plaintiff and against the defendants.
Issue no.4. Whether the plaintiff has failed to perform his part of the contract? OPD
22. The Ld. Counsel for the defendants vehemently argued that the plaintiff has not proved on record the important fact that he had sufficient funds to pay the remaining consideration amount to the defendants, therefore, the present suit deserves to be dismissed. In this regard, he relied on the judgment of Hon'ble Supreme Court of India in the CS No. 609773/2016 Page no. 11 of 17 Dr. Kumar Rakesh vs. Balwant Kaur and ors.
case of "U. N. Krishnamurthy v. A. M. Krishnamurthy Civil Appeal No. 4703 of 202"
23. The plaintiff is a Doctor by profession as disclosed in the plaint and no defence has been taken in the written statement that the plaintiff is not capable of paying the said amount. Therefore, the said contention is apparently beyond the scope of pleading and it cannot be considered as per law. Even otherwise, no notice has been sent to the plaintiff by the defendants to show that the defendant no.1 to 3 ever raised the said issue of demanding the remaining sale amount which the plaintiff declined to pay. On the other hand, the plaintiff has repeatedly claimed in his legal notices (dated 20.01.2005 Ex.PW1/28 and dated 31.01.2005 Ex.PW1/36), plaint, evidence and the trial that he is willing and ready to pay the remaining sale consideration. In the reply dated 01.02.2005 sent by Advocate Narendra Kalra on behalf of defendants, the willingness of the plaintiff was appreciated and a meeting was proposed for settlement. The factum of pursuing the present suit diligently by the plaintiff itself shows his intention that he is willing to pay the remaining amount of sale consideration and to perform his part of contract.
24. Moreover, in the opinion of this court, a person is not required to show the availability of the amount in physical form but what is required to be proved on record is the financial worth and creditability of a party who seeks relief of specific performance of the contract. The plaintiff is a doctor by profession and he is into said profession from many years and CS No. 609773/2016 Page no. 12 of 17 Dr. Kumar Rakesh vs. Balwant Kaur and ors.
the payment of Rs. 11 lakh in present scenario cannot be said to be an amount which is beyond the financial capacity of the plaintiff. The judgment relied by the Ld. Counsel for the defendants is distinguishable in view of aforesaid factual matrix. In this context, this court relies on the case of 'BDR Builders and Developers P. Ltd. Vs. Shyam Lal Arora 2014 (213) DLT 78' decided by our own Delhi High Court wherein it was observed by Hon'ble Justice Mr. Jayant Nath as under:
"Specific performance of agreement to sell- Availability of adequate funds with purchase, requirement to show- Held, plaintiff was not required to have the funds actually in his account but has to demonstrate the ability to gather the funds and tender the payment- Further, documents filed on record clearly shows that plaintiffs were possessed of sufficient funds to make necessary payment to the defendant."
25. Ld. Counsel for the defendant no. 4 has also relied on the judgments i.e. (i) Lourdu Mari David V. Louis Chinnaya Arogiaswamy (1996) 5 SCC and (ii) Mohan Madan V. Sheel Gulati 2015 SCC Online Del 11507 to show that on account of lack of readiness/willingness on the part of the plaintiff, the case should be dismissed. In view of the aforesaid observations proving the willingness and readiness on the part of the plaintiff to purchase the suit property, the aforesaid case laws/judgments do not apply to the present case.
26. From the prayer clause (a), it is seen that the plaintiff had also claimed that if the defendants fail to execute the sale deed, the same can be got executed through the Officer of this court. As such, the defendant no.2 CS No. 609773/2016 Page no. 13 of 17 Dr. Kumar Rakesh vs. Balwant Kaur and ors.
and 3 (being the LRs of defendant no.1) can be directed to apply to the land owning agency i.e. L&DO to get the said property converted as free hold and thereafter, to execute register sale deed in favour of the plaintiff and if they fail to do so, such direction can be given by appointing an Official by this court to do the needful. The aforesaid issue is accordingly, decided in favour of the plaintiff and against the defendants.
Additional Issue no.1: Whether the plaintiff is entitled to recovery of amount of Rs. 5,83,491 with interest from the defendant no.1, 2 and 3? OPP
27. In view of my findings on the aforesaid issues, this issue is not required to be decided.
Additional Issue no.2: Whether the sale documents of the property, in question, executed in favour of defendant no. 4 were null and void? OPP
28. As per provision of Section 7 and 8 of the Transfer of Property Act, 1872, if a person transfers any right, title and interest of an immovable property, then the transferee does not get a better title than what was held by the transferor. If the title was defective, the same character travels to the transferee. Therefore, the transfer of the property by defendant no.1 in favour of defendant no.4 was defective. In view of my findings on the aforesaid issues, this issue is decided in favour of the plaintiff and against the defendant no.4 and the documents executed in favour of defendant no.4 by defendant no.1 are declared as not enforceable and null and void.
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Dr. Kumar Rakesh vs. Balwant Kaur and ors.
Conclusion/Reliefs
29. In the light of aforesaid findings, the suit of the plaintiff is decreed for the following reliefs:
(a) A decree of specific performance of the agreement to sell dated 30.12.2003 is passed in favour of plaintiff and against the defendants. The defendants no.2 and 3 (in the capacity of legal heirs of defendant no.1) are directed to file an application with all requisite documents and fees to the L&DO for conversion of the suit property in their favour or directly in favour of the plaintiff, if permissible and after needful is done, they will execute and get registered a sale deed in favour of plaintiff. The defendants are directed to present themselves for registration of the sale deed of the suit property before the concerned Sub-Registrar as and when intimated by the plaintiff and in the alternative if the defendants do not present themselves or not interested to appear before the Sub-Registrar for registration of the sale deed, the specific performance of the agreement to sell can be got done through Ahlmad of this court on behalf of the defendants no.2 and 3 for completing the formalities before the concerned Sub-Registrar and for that purpose the plaintiff will pay a cost of Rs. 3,000 to the Ahlmad. If the L&DO refuses to convert the suit property, the plaintiff will be at liberty to avail legal remedies as per law against the said CS No. 609773/2016 Page no. 15 of 17 Dr. Kumar Rakesh vs. Balwant Kaur and ors.
office or in the alternative or for the time being, he can get registered the standard set of documents i.e. GPA, Will, SPA, etc. from the defendant no.2 and 3 in his favour, if so desired.
(b) The plaintiff is also directed to pay the remaining sale consideration to the defendants no.2 and 3 at the time of registration of sale deed by way of demand draft or pay order after deducting the amount already paid to them and the amount which will be spent on govt. charges for seeking conversion of the suit property on behalf of defendant no.2 and 3 (if the said charges are spent by the plaintiff). If the defendants no.2 and 3 do not accept the said amount, same can be deposited before this court in the form of an FDR in the name of 'District Judge 07, Central District' with automatic renewal clause.
(c) A decree is also passed for permanent injunction restraining the defendants and their agents to sell or transfer or execute any document with regard to suit property in favour of anyone other than plaintiff or appointees of plaintiff.
(d) A decree of declaration is also passed in favour of the plaintiff and against the defendant no.4 to the effect that the documents executed in favour of defendant no.4 by defendant no.1, subsequent to agreement to sell dated 31.12.2003, are declared as not enforceable and null and void. The defendant CS No. 609773/2016 Page no. 16 of 17 Dr. Kumar Rakesh vs. Balwant Kaur and ors.
no.4 is also directed to file on record all the original documents of the previous chain of the suit property and documents executed in his favour, which are in his possession or filed in other case within 30 days. All the documents in original as well as copies relating to previous chain of suit property can be obtained by the plaintiff from this court. On filing of PF and copy of the registered documents which are in favour of the defendant no.4, be sent along with certified copy of the decree to the concerned Sub-Registrar to make an endorsement of cancellation on the said documents as per Section 31 (2) of the Specific Relief Act.
30. Cost of the suit is also awarded to the plaintiff to be paid by defendant no.2 and 3 which will be reflected in the decree-sheet. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Announced & dictated in NARESH by
Digitally signed
NARESH
the open court on 12.04.2024 KUMAR LAKA
KUMAR Date:
LAKA 2024.04.15
15:34:42 +0530
(Naresh Kumar Laka)
DJ-07, Central, THC
Delhi/12.04.2024
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Dr. Kumar Rakesh vs. Balwant Kaur and ors.