Delhi District Court
Smt. Meena Karakoti vs Shri Ashok Kumar on 28 February, 2011
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRA)17,DELHI
Suit No. 852/08
Unique Case ID No. 02401C1075202007
Smt. Meena Karakoti
W/o Shri M.S. Karakoti
R/o 137G, A3, PhaseIII,
Mayur Vihar, Delhi91
.....Plaintiff
Versus
Shri Ashok Kumar
S/o Shri Jagdish Prasad
R/o F14, Green Park Extn.
New Delhi 110016
.....Defendant
Date of Institution of Suit : 27.10.2007
Date when reserved for orders : 18.02.2011
Date of Decision : 28.02.2011
JUDGMENT
1 Vide this judgment I shall decide the suit for specific performance and permanent injunction filed by the plaintiff against the defendant. The brief fact necessitating in filing the present suit are given as under:
2 The plaintiff was inducted as a tenant by the defendant in flat no. 137G, A3, Phase3, Mayur Vihar, Delhi about 14 years back at the monthly rent of Rs. 800/ per month which was enhanced time Suit no. 852/08 Page 1/33 and again and lastly it was Rs. 2200/ per month in December 2005. The defendant was in dire need of money in January, 2005, therefore he proposed to the plaintiff to purchase the said property for total consideration of Rs. 5 lacs. Plaintiff accepted the proposal and in furtherance of the acceptance, plaintiff paid Rs. 80,000/ in cash to the defendant in January 2005, defendant executed the agreement to sell on 31.01.2005 in favour of the plaintiff. After the execution of the agreement to sell, the defendant no.1 voluntarily handed over the original Conveyance Deed dated 11.01.2005 and allotment letter dated 31.01.2005 to the plaintiff. It was also agreed between the parties that remaining sale consideration of Rs. 4,20,000/ shall be paid to the defendant who shall execute the Sale Deed within a period of six months from the date of execution of the agreement. The defendant assured the plaintiff that the suit property is free from encumbrances dues of electricity and water charges and there was no outstanding dues from house tax department etc. The plaintiff was ready and willing to pay the remaining consideration amount of Rs. 4,20,000/ within the given time of six months to the defendant and he managed the said amount and requested the defendant to receive the same and execute the Sale Deed but the defendant on one pretext or the other avoided to receive the amount. The defendant in furtherance of his malafide intention served upon the plaintiff a legal notice dated 15.12.2005 which was duly replied. The defendant also filed a suit Suit no. 852/08 Page 2/33 against the plaintiff for recovery of the possession, arrear of rent and mandatory injunction. Notice of the said suit was served upon the plaintiff who filed his written statement. From the aforesaid act of the defendant it was clear that defendant has cheated the plaintiff.
Plaintiff served a legal notice dated 31.07.2007 requesting the defendant to receive the remaining balance consideration as per the agreement to sell within one month from the receipt of the said notice and execute the Sale Deed in favour of the plaintiff. The defendant was also asked to pay Rs. 97,552/ which was paid by the plaintiff towards the outstanding electricity charges of the suit property to BSES. In spite of the receipt of the said notice, the defendant did not come forward to execute the Sale Deed in respect of the suit property.
On the basis of the aforesaid averment the present suit has been filed by the plaintiff against the defendant. 3 Pursuant to the notice, defendant appeared and filed written statement taking preliminary objection that suit is not maintainable as same is without any cause of action. It is hit by provision of Order 2 Rule 2 CPC and the present suit has to be stayed as per the provision of Section 10 of the CPC. That the agreement relied upon the plaintiff is a void document and hit by Section 17, 18 & 49 of Registration Act. That suit is prematures and the defendant had already terminated the tenancy of the plaintiff and filed a suit for Suit no. 852/08 Page 3/33 possession.
4 On merit it is denied that initially the rent was Rs. 800/ per month including other charges. It is stated that last enhanced rent is Rs. 3600/ per month exclusive other charges. It is denied that defendant was in dire need of money in the month of January 2005 or he proposed to the plaintiff to purchase the suit property. It is also denied that plaintiff paid Rs. 80,000/ in cash in the month of January 2005 on account of earnest money. It is stated that defendant was having cordial relations with the plaintiff and her family. In January 2005, plaintiff approached the defendant and requested him to help her as at that time she was in financial distress, she requested the defendant to execute an agreement to sell so that on that basis she can secure loan to the tune of Rs. 5 lacs. The plaintiff further requested that for that purpose she also needs original documents of the suit property, considering the request of the plaintiff he agreed to execute the documents as requested as there was good relations between the families. It was agreed in the presence of some friends of both the parties that after plaintiff is able to get the loan, she would return all the original documents of the suit property to the defendant. No money transaction was taken place between the defendant and the plaintiff. The defendant was never willing to sell the suit property to the plaintiff. He never received any earnest money to the tune of Rs. 80,000/.
Suit no. 852/08 Page 4/33
It is further stated that false notice dated 31.07.2007 was sent by the plaintiff which was duly replied by the defendant vide notice dated 20.08.2007. All other averments have also been refused and replied. It is prayed that suit be dismissed with cost. 5 Plaintiff filed replication thereby denied the averment made in the written statement and reiterated the averment made in the plaint.
6 On the basis of the pleadings of the parties, vide order dated 05.06.2009 the following issues have been framed for adjudication: Issue no. 1 Whether the suit is without any cause of action? OPD Issue no. 2 Whether the suit is hit by Order 2 Rule 2 CPC? OPD Issue no. 3 Whether the suit is liable to be stayed under Section 10 of CPC? OPD Issue no. 4 Whether the suit is not maintainable as agreement in question is hit by Section 17, 18 & 49 of Registration Act 1908? OPD Issue no. 5 Whether the plaintiff is entitled to decree of specific and permanent injunction as prayed ? OPP Issue no. 6 Whether the plaintiff is entitled to a decree of permanent injunction in respect of the suit property?
OPP
Issue no. 7 Relief
Suit no. 852/08 Page 5/33
7 In order to prove her case plaintiff examined herself as
PW1 and reiterated the averment made in the plaint. She exhibited the Site Plan as Ex. PW1/1, the receipt dated 16.11.2004, 28.10.2004 & 6.11.2004 as Ex. PW1/2, allotment letter Ex. PW1/4, Conveyance Deed as Ex. PW1/5, notice dated 31.07.07 as Ex. PW1/6, Postal receipt Ex. PW1/7, A.D Ex. PW1/8 and the reply dated 20.08.2007 as Ex. PW1/9. Plaintiff also examined her husband Mohinder Singh as PW2 and her brother Sh. R. S. Jamnel as PW3.
8 In order to answer the claim of the plaintiff, defendant examined himself as DW1 and reiterated the averments made in written statement in his examination in chief. He also exhibited the documents from Ex. DW1/1 to DW1/8.
9 I have heard both the ld. counsel for the parties and perused the pleadings, documents and the evidence led by both the parties on record. My issue wise findings is as under:
Issue no. 1:Whether the suit is without any cause of action?
OPD
10 The onus to prove this issue is upon the defendant. The plaintiff has taken a plea that defendant executed an agreement to sell with respect to the suit property after receiving earnest money of Rs. 80,000/ but he failed to execute the sale deed despite request and Suit no. 852/08 Page 6/33 notice. The defendant has admitted that agreement Ex. DW1/P1 was executed but put forth a defence that same was executed by defendant so that plaintiff can secure the loan of Rs. 5 lacs for herself as she was in financial crises. The question whether the agreement Ex. DW1/P1 was executed for selling the suit property to the plaintiff or for the purpose of helping the plaintiff and her husband as stated by the defendant, can only be adjudicated upon in the present suit. Therefore, the plaintiff has cause of action against the defendant to file the present suit. The defendant has thus failed to discharge the onus of issue no. 1, same is accordingly, decided against the defendant.
Issue no. 2 Whether the suit is hit by under Order 2 Rule 2 CPC? OPD 11 The onus to prove this issue is upon the defendant. In the written statement defendant has stated that suit is not maintainable as same is hit by a provision of Order 2 Rule 2 CPC as the present suit of the plaintiff is a counter blast to the suit of the defendant which has been filed for possession and permanent injunction.
Admittedly, the said suit has not been filed by the defendant not by the plaintiff. It would be convenient to reproduce Order 2 Rule 2 CPC, herein below: Suit no. 852/08 Page 7/33 Suit to include the whole claim - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.
(2)Where a plaintiff omits to sue in respect of, or intentionally reqlinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted. 12 Perusal of the Rule 2 of Order 2 CPC makes it clear that same is meant for the person who is entitle to claim more than one relief against the defendant. The Rule 2 provides that such persons has to file a suit including whole of the claim for which the plaintiff is entitled to in respect of the same cause of action. If plaintiff relinquish any part of the claim without the leave of the court then subsequently cannot file a suit with respect to the relies which he omitted to sue at the time of filing the suit. Admittedly the previous suit has been filed by the defendant and not by the plaintiff. It is not in dispute that the defendant in that suit could have filed the counter claim, however, merely that defendant has not filed the counter claim in that suit does Suit no. 852/08 Page 8/33 not preclude her to initiate the present suit against the defendant.
In view of the above, I am of the considered view, the present suit is not hit by provision of Order 2 Rule 2 CPC, the defendant has failed to discharge the onus of issue no. 2, same is accordingly decided against the defendant.
Issue no. 3 Whether the suit is liable to be stayed under Section 10 of CPC ? OPD 13 The onus to prove this issue is upon the defendant. In the written statement defendant has stated that the suit is liable to be stayed as per the provision of Section 10 of CPC.
Ld. counsel for the plaintiff contended that the issue in both the suits are different, therefore, Section 10 is not applicable. Section 10 of CPC is reads as under; Stay of suit "No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court."
Suit no. 852/08 Page 9/33
Perusal of the above shows that if the matter in issues is directly or substantially is the same in the previously instituted suit pending between both the parties before the court having jurisdiction to grand the relief. In such case subsequent suit shall not proceed further till the decision of the earlier instituted suit.
As per the defendant he has filed the suit for possession and recovery of rent and injunction against the plaintiff whereas the present suit has been filed for specific performance of the agreement executed between the parties. The issues in both the suits are all together different. In the suit instituted by the plaintiff the issue is whether plaintiff is entitled to possession and rent whereas in the present suit the issue is whether defendant had executed an agreement to sell in favour of the plaintiff and if plaintiff is entitled for specific performance of that agreement. Therefore, the matter in issue in both the suits is different and controversy in the present suit is not directly or substantially in issue in the previously instituted suit, therefore section 10 of CPC is not applicable in the present suit. The defendant has failed to discharge the onus of issue no. 3, same is accordingly decided against the defendant.
Issue no. 4:Whether the suit is not maintainable as agreement in question is hit by Section 17/18 and Section 49 of Registration Act. 1908?? OPD Suit no. 852/08 Page 10/33 14 The onus to prove this issue is upon the defendant. In the written statement defendant stated that suit is not maintainable as the agreement relied upon by the plaintiff is a void document as same is not a registered document and thus not legally enforceable as it is hit by the provision of Section 17, 18 & 49 of Registration Act.
The said preposition has been controverted by the plaintiff. Ld. counsel for the defendant contended that the agreement to sell being not registered is in admissible in evidence as same is hit by Section 49 of Registration Act.
On the other hand ld. counsel for the plaintiff submits that the agreement for seeking specific performance is not required to be registered under the law. Section 17 of the Registration Act stipulates about the documents which are required to be registered mandatory. 15 Perusal of Section 17 clearly shows that the agreement to sell for the purpose of specific performance has not been mentioned in any of the clauses. By Amended Act 48 of 2001Section 1(A) has been incorporated in Section 17 which reads as under: (1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53 A of the Transfer of Property Act. 1882, shall be registered if they have been executed on or after the commencement of the Registration and other Related Laws ( Amendment) Act 2001, and if such document are not registered on or after such commencement then, they Suit no. 852/08 Page 11/33 shall have no effect for the purposes of the said Section 53A. Section 17(2) (V) talks about an instrument which itself does not create any right in the immovable property but make entitile the person to seek other document. Same reads as under: Section 17(2) Nothing in clause B & C of Sub Clause (1) applies to
(i) *
(ii) *
(iii)*
(iv) *
(v) any document other than the documents specified in subsection (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest. 16 Perusal of above shows that the agreement for the purpose of Section 53A of the Transfer of Property Act is required to be registered. Section 53A of the Transfer of Property Act speaks about the doctrine of part performance which stipulates that if in pursuance of the agreement possession of the property was handed over then said agreement is required to be registered. Section 53 of Transfer of Suit no. 852/08 Page 12/33 Property Act can be used as a defence and not as a right on the basis of which a party can claim right against another. The implicaiton of introduction of Section 17 (1A) in Registration Act is that a person who obtained possession under part performance as provided under Section 53A of Transfer of Property Act can not protect his possession if the agreement pursuant of which possession was delivered is unregistered. Section 53A speaks about the doctrine of part performance and not for specific performance.
It is well settled law that agreement to sell itself does not create any right, title or interest in the property sought to be transferred by way of such agreement. The agreement to sell only makes entitle a person to secure another document as mentioned in Section 17(2) (v) of Registration Act. The Hon'ble Delhi High Court in Sunil Kumar Vs. Himat Singh & Ors 167, ( 2010) DLT 808 has held that , "A Mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondent/plaintiff are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as an agreement to purchaser.
The agreement is required to be registered for purpose of doctrine of part performance. Whereas for the purpose of specific performance the agreement to sell is not required to be registered and Suit no. 852/08 Page 13/33 even a specific performance can be sought on the basis of an oral agreement.
17 In view of the above facts and circumstances, I am of the considered view that agreement to sell for the purpose of specific performance is not a compulsory registrable, therefore same is not hit by Section 49 of the Registration Act. The defendant has failed to discharge the onus of issue no. 4, same is accordingly decided against the defendant.
Issue no. 5 Whether the plaintiff is entitled to a decree of specific performance as prayed? OPP 18 The onus to prove this issue is upon the plaintiff. Plaintiff has taken a plea that he was inducted as a tenant in the suit property by the defendant 14 years back. In January 2005 the defendant was in dire need of money, he proposed to the plaintiff to purchase the suit property for a total sale consideration of Rs. 5 lacs. The plaintiff accepted the proposal and paid Rs. 80,000/ to the defendant as an earnest money in January 2005. Defendant executed an agreement to sell dated 31.01.2005. He also handed over all the original documents of the suit property. It was agreed between the parties that remaining amount of Rs. 4.20 lacs would be paid at the time of execution of the sale document within a period of six months from the date of Suit no. 852/08 Page 14/33 agreement. The plaintiff was ready and willing to pay the remaining amount of Rs. 4.20 lacs within the period of six months and managed the said amount. She also requested the defendant to execute the documents but he avoided the same and filed a suit for recovery of possession and arrear of rent.
19 On the other hand defendant has taken a plea that defendant was having cordial relations with the plaintiff and her family members. In January 2005, plaintiff approached the defendant and requested him to help her, as she was in financial distresses she requested the defendant to executed an agreement to sell so that on the basis of that she can secure some loan. She also requested for original documents of the suit property. Considering the request of the plaintiff, defendant agreed to execute the documents. It was agreed that after securing the loan she would return all the original papers to the defendant. The defendant was never willing to sell the suit property to the plaintiff and he never received earnest money of Rs. 80,000/.
In order to prove their respective case, both the parties led their evidence.
Ld. counsel for the defendant contended that there was no privity of contract between plaintiff and the defendant as the alleged agreement Ex. DW1/P does not bear the signatures of plaintiff. Therefore, suit is not maintainable.
Suit no. 852/08 Page 15/33 20 Perusal of the agreement to sell Ex. DW1/P1 shows that same has not been signed by the plaintiff but by her husband. PW2 during crossexamination has stated that he has signed the same as his wife had given authority to him. However no such authority has been placed on record.
21 All agreement to sale are bilateral contract as promises are made by the the vendor agreeing to sell and the purchaser agreeing to purchase. The agreement to sell come into existence when the vendor agrees to sell and the purchaser agrees to purchase for an agreed consideration on agreed terms, it can be oral. It can be by communication which may or may not be signed. It may be by a single document signed by both the parties. It can also be by a document in two parts, each party signing one copy and then exchanging the singed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. The Hon'ble Supreme Court in Aloka Bose Vs Parmatma Devi reported as AIR 2009, SC, 1527 has held that, " In India an agreement of sale signed by the vendor alone and delivered to be purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the case of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchase alone signing an agreement of sale."
Suit no. 852/08 Page 16/33 22 It is also relevant that DW1 during crossexamination himself admitted that he executed an agreement to sell in favour of defendant but he put a defence that same was without consideration. Be that as it may, it is the admitted case that agreement to sell Ex. DW1/P1 was executed by the defendant. In view of the admissions of DW1 as well as In view of the above pronouncement it is amply clear that absence of signature of the plaintiff on agreement Ex.DW1/P1 is not vital and the said agreement can be enforced. The contention of the ld. counsel for the defendant that there is no privity of contract between the parties can not be accepted and same is hereby rejected. 23 Ld. counsel for the plaintiff contended that the defendant has failed to execute the sale deed in her favour. He would argue that defendant has received the earnest money of Rs. 80,000/ and executed the agreement to sell Ex. DW1/P1. He further argued that at the time of execution of agreement to sell defendant assured that suit premises is free from any charges of electricity and water however the electricity department raised demand of Rs. 97,500/ for arrear which was paid by the plaintiff and defendant has failed to remit the said charges.
24 On the other hand ld. counsel for the defendant would argued that there was no agreement to sell with regard to the suit property executed by the defendant in favour of plaintiff. He further argued that plaintiff executed agreement Ex. DW1/P1 in order to help Suit no. 852/08 Page 17/33 the plaintiff to secure the loan and same was without any consideration. He further argued that agreed rent was exclusive of electricity and water charges. The plaintiff failed to pay the arrear for which she deposited Rs. 97,500/ thus cannot be recovered by her. 25 The plaintiff examined herself as PW1. During her crossexamination she admitted that the rate of rent is Rs. 3600/ p.m exclusive water and electricity charges. She again stated that the rate of rent was Rs. 800/ initially including the water and electricity charges. She further stated that she used to deposit the electricity charges herself with regard to the suit property in the name of defendant. Her average consumption of the electricity amount was Rs. 500 to Rs. 600/p.m. She has not filed copy of the electricity bill. She denied that her average consumption of the electricity is normally Rs. 4,000/ onwards. She admitted that her electricity bill for the month of June 2005 was Rs. 4150/, the bill for the month of July 2005 of Rs. 5,780/ Ex. PW1/D1 and the bill for the month of April, 2005 amounting to Rs. 9,750/ Ex. PW1/D2. She further stated that she cannot tell the period of arrears of these electricity bills. She volunteered that these are 89 years back from the year 2005. She has not stated the fact regarding the arrear of electricity to the defendant in writing since 2005. She has denied that no such agreement to sell was executed between her and the defendant. She stated that the agreement to sell was executed between her husband through witnesses with the Suit no. 852/08 Page 18/33 defendant. She denied that the meter of electricity were changed in the year 2005 due to misused of the electricity by her and as a result of which penalty was imposed which was paid by her in installments. She admitted that she has not stated the fact regarding the arrear of electricity bill to the defendant since she deposited the same up till filing of the present suit. She denied that she has not given Rs. 80,000/ to the defendant. She further stated that she has paid the same amount to the defendant in the month of October and November, 2004. She denied that she has filed the present suit just to escape her liability with regard to the rent of the suit property. She cannot tell the day, date and month of paying the earnest money of Rs. 80,000/ to the defendant. She has paid the said amount in cash but cannot tell about denomination of currency notes as same was paid by her husband. At the time of paying the said amount one major Mr. R.S. Jamnal and Mr. Hari Adhikari and her husband were present. She denied that no earnest money was ever paid to the defendant.
26 Plaintiff also examined her husband Sh. M.S. Karakoti as PW2. During crossexamination PW2 deposed that the rent enhanced @ 2200 p.m from January 2005 including other charges of water and electricity. He denied that rent is Rs. 3600/ per month excluding the other charges. He stated that his monthly consumption of electricity is around Rs. 400 to 500/. The last bill was approximately of Rs. 600/ to 700/ which he paid. He denied that his Suit no. 852/08 Page 19/33 average electricity bill of Rs. 4,000/ to Rs. 5,000/ p.m. He also admitted that Ex. PW1/D1 and D2 are electricity bills of his premises . He admitted that in 2005 he was in possession of the suit premises. He admitted that on 31.01.2005 no payment was made neither by him nor by the plaintiff to the defendant but the payment was made earlier. He had made the payment of Rs. 80,000/ in October 2004 to the defendant. He admitted that defendant filed a suit against the plaintiff prior to filing the present suit. He further admitted that prior to filing the present suit the relations between him and the defendant were cordial. He denied that no agreement to sell was executed between plaintiff and the defendant on 31.01.2005. He also denied that he had not paid Rs. 80,000/ to the defendant. He also denied that he had not paid Rs. 40,000/ to defendant on 16.11.2005. He further denied that he has not given Rs. 30,000/ to Abhey Kumar. He also denied that he be given Rs. 10,000/ to defendant through his brotherinlaw.
Plaintiff has also examined Shri R.S. Jamnal as PW3. He also deposed about the payment of Rs. 10,000/.
27 In order to answer the claim of plaintiff, defendant examined himself as DW1. During crossexamination he admitted that suit property is LIG flat allotted by the DDA in 1991. He admitted that in the year 1993 he let out the suit property to the plaintiff. He denied that rent included the charges of electricity and Suit no. 852/08 Page 20/33 water charges also. He stated that the last enhanced rent was Rs. 3600 p.m. excluding water and electricity charges since 2004. He admitted that he never paid electricity or water bill in respect of the property till date as the tenant has to pay the same. He denied that in 2004 he was in the need of money and he offered to sell the suit property to the plaintiff for a sum of Rs. 5 lacs. He denied that plaintiff made a payment of Rs. 80,000/ towards the earnest money to him. He denied that he received Rs. 30,000/ on 28.01.2004, Rs. 10,000/ on 6.11.2004 and Rs. 40,000/ on 16.11.2004. He denied that he had issued receipt Ex. PW1/2 in respect of above mentioned amount. He admitted that he had executed agreement to sell on 31.01.2005 Ex. DW1/P1 Just to facilitate to raise loan which bears his signatures at point A & B. He denied that said agreement was executed in the presence of any witness. He admitted that after the execution of agreement to sell he handed over the original paper of the suit property to the plaintiff. He denied that deal as mentioned in the agreement was to be performed within six months. He demanded the original documents of suit property from the plaintiff after nine and a half months from the date of signing the document Ex. DW1/P1. Plaintiff refused to hand over the original documents. He further stated that there was no question of cancellation of agreement to sell as same was prepared to facilitate the plaintiff to take loan.
Suit no. 852/08 Page 21/33 28 A careful examination of the pleadings and evidence led on record clearly shows that Ex. DW1/P1 was executed by the defendant in favour of the plaintiff. However, as per the plaintiff the said agreement was executed for selling the suit property. Whereas as per the defendant the said agreement was executed in order to facilitate the plaintiff to secure loan from the bank as she was in financial crises at that time. The agreement Ex. DW1/P1 bears the signatures of Mr. R.S. Jamnal as one of the attesting witness. The plaintiff has examined Sh. R.S. Jamnal as PW3 and during examination in chief in Para 2, PW3 stated that the agreement to sell dated 31.01.2005 was executed by the defendant in favour of the plaintiff in his presence. He is one of the witness in the said agreement to sell. 29 PW3 has been throughly crossexamined. However, the above testimony of PW3 has not been refuted at all and the said testimony remained uncontroverted. Admittedly plaintiff executed the agreement to sell Ex. DW1/P1. Defendant put forth the defence that the said document was created only for the purpose of securing loan. In onus to prove the said fact was upon the defendant, however, the defendant has not produced any material on record which can show or suggest that the agreement to sell Ex. DW1/P1 was without any consideration and was executed only to facilitate the defendant to secure loan. The defendant has also admitted that at that time of execution of the document Ex. DW1/P1 he handed over the original Suit no. 852/08 Page 22/33 documents of the suit property to the plaintiff. During cross examination he stated that he demanded the original documents after nine and a half months from the defendant on telephone. No particulars have been furnished by the defendant which can show or suggest that he demanded the original documents. It is clear that defendant executed the agreement to sell Ex. DW1/P1. It is also clear that defendant is not an illiterate person who could not read the contents of the agreement. The defendant has further not taken a defence that his signatures were obtained on a blank piece of papers or the agreement was got typed subsequently, the defendant has thus conceded that he signed the agreement to sell which contains the stipulation in Clause I that he has received the earnest money of Rs. 80,000/ out of the total sale consideration of Rs. 5 lacs from the plaintiff. If the said agreement had been executed only for the purpose to facilitate the plaintiff to secure loan and same was without consideration then in that event the amount of earnest money would not have been mentioned in the said agreement. It is hard to believe for a prudent person that the person would signed the agreement to sell and hand over the complete chain of original documents with respect to the suit property only to facilitate the plaintiff to secure loan. The defence put forth by the defendant that agreement to sell was without consideration or same was executed to facilitate the plaintiff to secure loan does not inspire confidence. The oral testimony of the defendant Suit no. 852/08 Page 23/33 contradicting the contents of Ex. DW1/P1 can not be taken into consideration as same is not permissible under Section 91 & 92 of Indian Evidence Act. Moreover plaintiff examined one of the witnesses of the agreement to sell who categorically stated that said agreement to sell was executed by the defendant to which he signed as one of the witness. The testimony of PW3 remains unchallenged to that effect. In view of the above, I am of the considered view that the defendant executed the agreement to sell after accepting the earnest money of Rs. 80,000/ from the plaintiff.
30 The second point raised by the plaintiff is that she demanded Rs. 97,500/ from the plaintiff vide notice which was deposited by her towards the arrear of electricity. During cross examination PW1 admitted that rate of rent is Rs. 3600 p.m exclusive of water and electricity charges. However, thereafter she become wiser and again said that rent was Rs. 800/ including water and electricity charges. PW2 has also given the similar statement. He stated that average consumption of electricity charges was amount to Rs. 500 to Rs. 600/. When both these witness were confronted with the electricity bill they admitted that the bill for the month of June 2005 was Rs. 4,150/ and bill for July 2005 was Rs. 5,780/ and the bill for the month of April amounting to Rs. 9750/ . Both the witnesses however, have stated that the electricity and water charges are inclusive in rent which was Rs. 2200/ as per their statement. It is Suit no. 852/08 Page 24/33 hard to believe that the electricity charges of Rs. 9750/ for one month is inclusive of the rent which is Rs. 2200/ per month. The defendant examined himself as DW1. During his crossexamination the defendant stated that last enhanced rent was Rs. 3600/ per month excluding water and electricity charges since 2005. He admitted that he never paid any electricity or water bills in respect of the suit property till date as tenants has to pay the same. The above testimony of DW1 remained unrebuted and uncontradicted as defendant has not given any suggestion contradicting the said testimony. The consequence of the same is that the plaintiff has deem to have admitted that electricity and water charges are exclusive of rent and she was paying the same since the inception of tenancy.
31 From the above, I am of the considered view that electricity and water charges are exclusive of the rent. It is also admitted case of the plaintiff that since the inception of the tenancy electricity charges have been paid by her and not by the defendant. Accordingly the amount of Rs.. 97,500/ which has been paid by the plaintiff towards the arrear of electricity cannot be recovered by her from the defendant.
32 A careful examination of the pleading, the plaintiff proved the existence of agreement to sell Ex. DW1/P1. She has further proved that total sale consideration was Rs. 5 lacs, out of which she paid Rs.80,000/ as earnest money. However, she failed to prove that Suit no. 852/08 Page 25/33 she is entitled to recover the amount of Rs. 97,500/ which she paid towards the arrear of electricity charges as that was for the period of her tenancy which was to be paid by the plaintiff herself. 33 Besides the above the court has to independently examine whether the material on record entitles the plaintiff to the decree sought for. Two important consideration always weigh with the court while adjudicating the claim for specific performance of the contract of sale of immovable property. One whether the plaintiff had pleaded and proved readiness and willing to perform their part of the contract and two whether the equities of the case demands that such decree be made.
34 Ld. counsel for the plaintiff contented the necessary averment had been made in the plaint. He also refer the testimony of PW1 & PW2 in support of his contention that plaintiff was ready and willing to perform her part of obligation. Per contra, ld. counsel for the defendant would argued that plaintiff has failed to prove that they were ready and willing to perform their part. Therefore, plaintiff is not entitled for the relief.
35 Section 16C of the Specific Relief Act which is relevant for the purpose of this case to the extent is reproduce below:
(a)*
(b)*
(c) who fails to aver and prove that he has performed or has Suit no. 852/08 Page 26/33 always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant. Explanation For the purpose of Clause ©
1. where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court.
2. the plaintiff must aver performance of, or readiness and willingness to perform, the contract accordingly to its true construction.
3. the readiness and willingness could not be treated as a stait jacket formula and that had to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the parties concerned.
36 Section 16C of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence that they have always been ready and willing to perform their part of the contract.
The idea behind Section 16(C) read with explanation. II is that any person seeking benefit of specific performance of contract must manifest that his conduct has been blemish less though out entitling him to specific relief. Since the relief sought is equitable and Suit no. 852/08 Page 27/33 discretionary the court can not grant the relief on the basis of the person who seek it.
37 It is settled law that remedy of specific performance is an equitable remedy and is in the discretion of the court which discretion requires to be exercise according to settle principle of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act 1963. Under Section 20 the court is not bound to grant the relief just because there was a valid agreement to sell. Section 16C of the Act envisages that plaintiff must plead and proved that she had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by her. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. 38 The Hon'ble Supreme Court in Man Kaur (died) by L.Rs Vs Hartar Singh Sanga reported as 2010 Al0L 672 has held that "Section 16C of the Specific Relief Act 1963 bars the specific performance of the contract in favour of a plaintiff who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. The explanation II to Section 16 provides that for the purpose of Clause ( C) of Section 16, the plaintiff must aver Suit no. 852/08 Page 28/33 performance of, or readiness and willingness to perform, the contract according to its true construction. Thus in a suit for specific performance the plaintiff should not only plead and prove the terms of the agreement but should also plead and prove his readiness and willingness to perform his obligation under the contract in terms of the contract."
The similar view has been reiterated by the Hon'ble S.C in M/s J.P. Builders and Anr Vs. A. Ramdas Rao and Anr reported as 2011 ( 1) RCR Civil page 604.
39 In the present case, apart from making bald and general allegation about the plaintiff's willingness and readiness to perform his part of the bargain, no evidence in the form of bank statement for the relevant period i.e date of filing the suit and the date when the plaintiff produced his evidence has been placed on record.
40 As per the agreement the transaction was to be completed within a period of six months from the date of execution of documents. Even where time is not the essence of the contract, the plaintiff must perform her part of the contract within a reasonable time and reasonable time should be determined by looking surrounding circumstances including the express term of the contract and nature of property. As per the agreement to sell Ex. DW1/P1 period of six months was agreed for completion of the transaction. PW1 during Suit no. 852/08 Page 29/33 her crossexamination stated that after making the above payment she has approached the defendant, however, she does not remember the date, month of the same. She cannot say whether she has ever written to the defendant to receive the remaining consideration amount. She denied that she never written to the defendant to received balance amount and execute the title paper in her favour. She has further stated that after expiry of six months she never given any legal notice to the defendant to execute the title papers in her favour. She admitted that no notice in writting was ever given by her to the defendant to execute the papers. She volunteered that she has verbally requested the defendant. She admitted that at the time of alleged payment of earnest money she was in the possession of the suit property. PW2 also reiterated the same.
41 From the perusal of the above it is clear that the plaintiff has not approached the defendant any time either before the expiry of six months period as provided vide agreement to sell Ex. DW1/P1 or thereafter till the filing of the present suit. As per the agreement to sell the remaining amount of sale consideration was to be paid within period of six months. The said agreement to sell was executed on 31.01.2005 therefore the remaining amount was to be paid by the plaintiff uptill 30.07.2005 however the plaintiff has not made any effort to pay the remaining sale consideration nor ever called upon the defendant to execute the sale documents in her favour even she did not Suit no. 852/08 Page 30/33 call upon the defendant to do the needful after the expiry of six months period till the filing of the present suit i.e 25.10.2007. 42 The present suit has been filed after about more than two years after the expiry of six months period as provided vide agreement to sell Ex. DW1/P1. During the entire period the plaintiff has not made any request whatsoever to the defendant with regard to the completion of the sale transaction nor offered the balance amount to the defendant. No evidence of the same, has been adduced by the plaintiff to show her readiness and willingness to perform her part of obligation.
The requirement is that the plaintiff must show her willingness and readiness to perform her part of the contract is not a ritualistic incantation of what is prescribed under the Act but determines the claimant's ability to perform the contract. In the present case plaintiff has not placed any proof to that effect. Therefore, plaintiff could not substantiate her plea that she was ready and willing to perform her part of the contract which is mandatory as per Section 16(C) of Specific Relief Act.
43 In view of my above discussion, I am of the considered view that the plaintiff has failed to prove that she was having sufficient amount to pay the sale consideration which was a precondition for execution of the sale documents. She has further failed to proved on record that she ever called upon the defendant from the date of Suit no. 852/08 Page 31/33 execution of the agreement till the filing of the suit to execute the sale documents and receive the balance sale consideration, thus plaintiff has failed to prove on record that she was ready and willing to perform her part of obligation. Therefore, it is not equitable to grant a relief of specific performance in favour of the plaintiff on the basis of the facts and circumstances of the present case. The plaintiff has thus failed to discharge the onus of issue no. 5, same is accordingly decided against the plaintiff.
Issue no. 6: Whether the plaintiff is entitled to a decree of permanent injunction in respect of the suit property? OPP 44 The onus to prove this issue is upon the plaintiff. In the plaint in para 8 it is mentioned that defendant wanted to dispossess the plaintiff from the suit property and wanted to sell the suit property to any third party at a higher price because the rate of properties have been raised manifold. Besides the above averment the plaintiff has not aver anything in the entire plaint that defendant was trying to sell the suit property moreover the plaintiff has admitted during cross examination that she was inducted in the premises as tenant by the defendant and suit for possession has already been filed against her. 45 Keeping in view the facts and circumstances, i am of the view that plaintiff has failed to place any material on record, on the basis of which it can be assumed that defendant ever threatened to Suit no. 852/08 Page 32/33 transfer the suit property to third person. The apprehension of the plaintiff is unfounded and without any basis. Plaintiff has thus no cause of action for filing the suit for injunction against the defendant. Plaintiff has failed to discharge the onus of issue no. 6, same is decided against the plaintiff.
46 Relief In view of the above the suit filed by the plaintiff is dismissed. However, there is no order to cost. Decree Sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court ( PITAMBER DUTT)
28th February, 2011 Additional District Judge
Delhi
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Suit No.
Present; None
( PITAMBER DUTT)
ADJ; DELHI
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