Delhi District Court
). Mr. R.L Jain (Since Deceased) vs Suit No. 439/08/94 R.L Jain V/S K. Guha & ... on 29 October, 2010
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE, (CENTRAL) 04, THC, DELHI
Date of institution : 25.07.1994
Judgment reserved on : 29.10.2010
Judgment delivered on : 29.10.2010
Suit No. 439/08/94
Unique Case ID No. 02401C5131782004
1). Mr. R.L Jain (since deceased)
14, Raja Enclave, Pitampura, Delhi.
Through LRs :
1 (A). Mr. Rakesh Jain
S/o Late Mr. Roshan Lal Jain,
14, Raja Enclave, Pitampura, Delhi.
1 (B). Mrs. Kanchan Jain
D/o Late Mr. Roshan Lal Jain,
R/o B60, Kitchllu Nagar, Ludhiana, Punjab.
1 (C). Mrs. Promila Jain
D/o Late Mr. Roshan Lal Jain,
R/o B134, Kacha Tobba, Hoshiarpur, Punjab.
1 (D). Mrs. Kavita Jain
D/o Late Mr. Roshan Lal Jain,
R/o K28, Kirti Nagar, Delhi. .... Plaintiffs
Versus
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 1
1). Mrs. K.Guha (since deceased)
W/o Mr. D. Guha,
R/o H1520, Ground Floor, Chittranjan Park, New Delhi.
Through her LRs :
1 (a). Mr. D. Guha
S/o Mr. T.C Guha,
R/o H1520, Ground Floor, Chittranjan Park, New Delhi.
1 (b). Mr. Bisajeet Guha
S/o Mr. D. Guha,
R/o H1520, Ground Floor, Chittranjan Park, New Delhi.
2). Mr. D. Guha
S/o Mr. T.C Guha
R/o H1520, Ground Floor, Chittranjan Park, New Delhi.
3). Mrs. Gayatri Banerjee
W/o Major S.S Banerjee,
148, Sector 38, Arun Vihar, NOIDA.
4). Mrs. Leela Bhattacharya (since deceased)
R/o H1520, 1st Floor, Chittranjan Park, New Delhi.
Through LRs :
4 (a). Mrs. Tapti Talpatra
D/o Late Mrs. Leela Bhattacharya
H1520, First Floor, Chitranjan Park, New Delhi.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 2
4 (b). Mrs. Atreyee Cordein
D/o Late Mrs. Leela Bhattacharya
H1520, First Floor, Chitranjan Park, New Delhi.
4 (c). Mr. K.M Bhattacharya
S/o Late Mrs. Leela Bhattacharya
H1520, First Floor, Chitranjan Park, New Delhi.
5). M/s Goodyear India Ltd.
Godrej Bhawan, Ishwar Nagar, Mathura Road, New Delhi65.
6). M/s Reecha Manish Associates
Through its partners Mrs. Reeta Jain,
Promila Jain, R.L Jain,
14, Raja Enclave, Pitampura, Delhi.
... Defendants
J U D G M E N T
1. This is a suit for specific performance of the contract of sale of the immovable property bearing No. H1520, Chitranjan Park, New Delhi (herein after called the suit property) and for mesne profits.
2. The facts, in narrow compass of the case, from the plaintiff's point of view as per the plaint, in nutshell, are that one Mrs. Gayatri Banerjee, the defendant No.3 was the owner of a plot of land measuring 233 sq. yards and also the constructions raised thereupon, and whereas the Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 3 building comprises of three floors i.e the ground floor, 1st floor and the 2nd floor bearing municipal No. H1520, Chitranjan Park, New Delhi, which was constructed under the construction agreement dt. 18.02.1985 between the defendant No.3 as the 1st party and the defendant Nos.1 and 2 (a couple) as the 2nd party, the contractor and by virtue of such construction agreement, the rights in interest qua the suit property i.e the plot and the building constructed over such plot devolved over the defendant Nos.1 and 2, thereby, defendant Nos.1 & 2 became competent to enter into an agreement relating to the property in question due to a general power of attorney executed by the defendant No.3 in favour of defendant Nos.1&2.
3. The plaintiff Mr. R.L Jain claimed that the defendant Nos.1 and 2 as the 1st party had entered into an agreement with him on 04.06.1991, thereby they agreed to sell the ground floor of the said house and such agreement was signed by both the parties stipulating that the total sale price of Rs.6 lacs is settled for the consideration amount along with other terms and conditions agreed upon and covenanted between the plaintiff and the defendant Nos.1 and 2.
4. Besides other terms under the agreement dt. 04.06.1991, there were two major conditions :
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 4
i). that the defendant Nos.1 and 2 will pay an interest to the plaintiff @ Rs.15000/p.m on the consideration of Rs.6 lacs towards the sale of ground floor till the period the vacant possession was handed over by them to the plaintiff.
ii).that in case the defendant Nos.1 and 2 delay, defer, postpone or decline or fail to execute the sale deed of the ground floor under the Delhi Apartment Ownership Act in favour of the plaintiff, they would forfeit the ground floor to the plaintiff without payment of any consideration.
5. It was also averred by the plaintiff that vide another agreement dt. 12.06.91, the defendant Nos.1 and 2 agreed to hand over the possession of the ground floor that was the subject matter of the agreement dt. 04.06.91 to the plaintiff and also in order to save the payment of interest, they have also agreed to sell the 1st and 2nd floor to the plaintiff and for such property of 1st and 2nd floor, the sale consideration was the interest above mentioned and an amount of Rs. 5 lacs that was to be paid to one Mrs. Mitra who was the tenant as such amount was to be paid by the plaintiff to the tenants occupying such floors.
6. The plaintiff's claim was that both the agreements were not Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 5 executed/performed by the defendant Nos.1 and 2, as per the terms and conditions of such agreement, nor the interest was paid as per agreement @ Rs.15,000/ p.m till the period the possession of the ground floor was to be handed over. Rather the rents were collected from the tenants that was the right of the plaintiff after such agreements.
7. It was also averred that the defendant Nos.1 and 2 fraudulently entered into another contract with one Mr. B.M Bhattacharya, with respect to the 1st floor and 2nd floor and thereby, the plaintiff filed the suit praying for :
i). Passing of a decree for specific performance of the agreements dt.04.06.91 and 12.06.91 qua the ground floor, first floor and second floor of the property No. H1520, Chitranjan Park, New Delhi;
ii). Passing of a decree against the defendant No.4 directing the defendant No.4 to hand over the vacant and peaceful possession of the 1st and 2nd floor to the plaintiff against payment of Rs. 5 lacs as per stipulations;
iii). In alternative, for passing a decree for money in the sum of Rs. 11,25,000/ along with future interest @ Rs.15,000/p.m and pendentelite interest till the payment of the amount @ 30% per annum.Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 6
iv). Passing of a decree against the defendant No.5 directing the defendant No.5 to pay the rent @ Rs.2548/ p.m from 01.06.91 till filing of the suit and onwards till the vacant possession of ground floor is given to the plaintiff and further the defendant No.5 be directed to pay the accumulations, terminal benefit and other dues of the defendant No.2, held with the defendant No. 5 before his retirement/termination as per letter of authority dt. 27.05.91.
v). Passing of a decree directing the defendant Nos. 1 to 3 to render the account in respect of the benefits derived and amount recovered from the said premises after 04.06.91.
8. Contra to the plaint, through the pleadings of the defendant Nos. 1 and 2 filed on 11.04.1995, it was averred that the defendants had no right to enter into an agreement to sell the suit property without obtaining prior permission of the lessor in terms of the perpetual lease deed qua the suit property as the defendant No.3 Mrs. Gayatri Banerjee was the owner and the perpetual lessee of the plot and the defendant Nos. 1 and 2 were appointed only as a Contractor by the defendant No.3 vide agreement dt.18.02.1985 and that the suit was bad for misjoinder of the parties as the defendant Nos. 3 to 5 were not the parties to the agreements dt. 04.06.91 or 12.06.91 under reference.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 7
9. It was also pleaded that the defendant No.2 had actually paid back the substantial amount of the alleged loan taken from the defendant No.6 Mrs. Promila Jain. It has also been pleaded that the defendant No.2 was a Contractor in respect of the suit property, but the ownership rights remained with the defendant No.3 though the defendant No.2 remained in actual possession of the building as Contractor, as the defendant No.3 did not pay the cost of construction and that the defendant Nos.1 and 2 acted as landlords qua tenants in the property and that the transactions of the defendant No.1 with the defendant No.6 was the loan transaction and such loan amount was recoverable only by the defendant No.6 from the defendant No.1.
10. It was pleaded by the defendant Nos.1 and 2 through their written statement verified on 11.04.1995 that the defendant Nos.1 and 2 executed the said agreements dt. 04.06.91 and 12.06.91, but they were not competent to do so. They have also specifically pleaded that they were in possession of the suit property as construction contractor because the cost of construction was not paid by the perpetual lessee defendant No.3 Mrs. Gayatri Banerjee who was the owner and the perpetual lessee of the suit property and was bound by the terms of the agreement dt. 18.02.1985 and Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 8 that the defendant Nos.1 and 2 were not actually the ownerinpossession of the suit property and they were the landlords qua tenants occupying the suit property.
11. It was also pleaded that neither sale consideration was paid to the defendant Nos.1 and 2 nor they were competent to enter into such agreement and thus, such agreements were sham document and were not enforceable and such agreements were got signed only as a collateral security for repayment of the loan amount to the defendant No.6. Thus, it was prayed that the suit may be dismissed with costs.
12. The defendant No.1 (b) Mr. Bisajeet Guha, the LR of the defendant No.1, pleaded that both the agreements dt. 04.06.91 and 12.06.91 are unregistered documents and that for creating charge on the suit property, the agreements are required to be registered under law, thus, the suit is not maintainable.
13. It was further submitted that no consideration amount was ever paid by the plaintiff himself to the defendant No.1 and 2 and the loan amount of Rs. 4 lacs was taken from the defendant No.6 and Rs.One lakh from Mrs. Promila Jain and that the tripartite deed of agreement for Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 9 mortgage of the property dt. 20.11.90 was executed and thus, the agreements dt. 04.06.91 and 12.06.91 are without consideration. Therefore, the plaintiff's claim for specific performance of such agreements was not maintainable.
14. It was also submitted that the plaintiff lodged an FIR No. 507/91 on 04.05.1991 against the defendant No.2 on 04.05.91 and also filed a complaint under section 138 of the Negotiable Instrument Act and thus, acted otherwise, and was never ready and willing to perform his part of obligation, and therefore, is not entitled for the relief of specific performance under section 16 (1) (a) and (b) of the Specific Relief Act.
Also that the tripartite deed of agreement for mortgage dt. 20.11.90 was not sufficient to create equitable mortgage, as the title deeds were not deposited with these documents.
15. It was also pleaded that the fresh agreement executed on 31.10.91 was the subsequent agreement to the agreements dt. 04.06.91 and 12.06.91 and in terms of such fresh agreement, the defendant No.4 had also paid an amount of Rs.50,000/ to the defendant No.2 that itself stops the specific performance of the agreements dt. 04.06.91 and 12.06.91, also that the suit of the plaintiff was time barred, as has been Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 10 filed after expiry of 3 years from the date of execution of the agreements dt.04.06.91 and 12.06.91.
16. It was specifically pleaded on behalf of the defendant No. 1 (b) Mr. Bisajeet Guha, the LR of the defendant No.1 that the defendant Nos.1 and 2 had never agreed to sell the property to the plaintiff, thereby, it was pleaded that the plaintiff's suit may be dismissed for the claim of specific performance of the agreements dt. 04.06.91 and 12.06.91 with respect to the sale of the suit property.
Ld. Counsel for the plaintiff has questioned such pleadings of the defendant No.1 (b), that these pleadings are not permissible in law as after impleadment at the place of the defendant No.1, who had earlier filed his pleadings jointly with the defendant No.2, the pleadings of the defendant No. 1 (b) that cannot be permitted to be amended or to place new pleadings.
17. The replication to the written statement was filed by the plaintiff through LRs reiterating the facts as stated in the plaint and denied the averments of the defendants.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 11
18. On the basis of the pleadings vide order dated 05.10.2005, the following issues were framed :
i). Whether the agreement dt. 04.06.1991 and 12.06.1991 is unregistered and without consideration ? OPD.
ii). Whether the suit is time barred? OPD.
iii). Whether the suit is barred under section 16 (a and b) of the Specific Relief Act? OPD.
iv). Whether the plaintiff is entitled to a decree for specific performance of the agreement dt. 04.06.1991 and 12.06.1991 or in alternative to a decree for a sum of Rs.
11,25,000/ against the defendants ? OPP.
v). Whether the plaintiff is entitled for a decree directing the respondent No. 1 to 3 on account of and in respect of the benefits deprived of amount recovered from the suit premises after 04.06.1991? OPP.
vi). Whether the plaintiff is entitled to the relief as prayed for in para D of the prayer of the plaint? OPP.
vii).Whether the plaintiff is entitled for any interest, if yes, at what rate and for which period? OPP.
viii). Relief.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 12
19. For proving the case, the LR No. 1 of plaintiff Mr. Rakesh Kumar Jain has examined himself as PW1 A who produced his affidavit in evidence Ex.PW1A/1 and exhibited the documents Ex.PW1A/1 to 27. The document Ex.PW1A/2 is the true copy of the construction agreement dt. 18.02.1985. The documents Ex.PW1A/3 & 4 are the true copies of General Power of Attorney and Special Power of Attorney, both dt. 18.02.1985. The document Ex.PW1A/5 is the true copy of the lease deed executed by and between defendant No.1 and defendant No.5. The document Ex.PW1A/6 is the true copy of the tripartite deed of agreement for mortgage dt. 20.11.1990. The document Ex.PW1A/7 is the indemnity bond cum mortgage deed dt. 21.11.1990. The document Ex.PW1A/8 is the mortgage deed dt. 19.12.1990 in respect of loan of Rs.One lakh executed in favour of Mrs. Promila Jain. The document Ex.PW1A/9 is the receipt of Rs. 4 lacs dt. 21.11.1990. The document Ex.PW1A/10 is the receipt of Rs. One lakh. The document Ex.PW1A/11 is the letter dt. 22.12.1990 from defendant No.2 to defendant No.1. The documents Ex.PW1A/12 & 13 are the affidavits of Mr. D. Guha and Mrs. K. Guha, both dt. 22.11.1990. The document Ex.PW1A/14 is the true copy of the letter dt. 25.05.1991 along with the letter of attornment. The documents Ex.PW1A/15 & 16 are the true copy of the letter dt. 27.05.1991. The document Ex.PW1A/17 is the true copies of the Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 13 affidavits dt. 18.02.1991 of the defendant No.1 and 2 collectively. The documents Ex.PW1A/18 & 19 are the true copies of the undertaking and the letter written by the defendant No.2. The document Ex.PW1A/20 is the true copy of the agreement to sell dt. 04.06.1991. The document Ex.PW1A/21 is the true copy of the agreement to sell dt. 12.06.1991. The document Ex.PW1A/22 is the true copy of the letter dt. 30.07.1991 of the plaintiff No.1 addressed to defendant No.5 sent under UPC. The document Ex.PW1A/23 is the true copies of the registered letters dt. 21.10.1991 and 13.11.1991 collectively. The document Ex.PW1A/24 is the true copy of the registered letter dt. 09.11.1991 collectively. The document Ex.PW1A/25 is the true copy of the complaint dt. 27.05.1993 and Ex.PW1/26 is the affidavit dt. 27.05.1993 of the defendant No.2. The document Ex.PW1A/27 is the true copy of the notice dt. 26.02.1992. He was crossexamined at length.
20. Written submissions on behalf of both the parties have also been placed on record and I have heard oral submissions addressed to the Court by Ld. Counsel Mr. Samdarshi Sanjay on behalf of the plaintiff and Ld. counsel Mr. Rajneesh Ranjan on behalf of the defendants.
21. It was submitted by Ld. counsel Mr. Samdarshi Sanjay on Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 14 behalf of the plaintiff that the suit property was a plot under the perpetual lease created in favour of one Mrs. Gayatri, the defendant no.3, the suit land is measuring 233 sq. yards, having a building constructed over such land consisting of ground floor, 1st floor and 2nd floor, that was later on devolved on one couple Mrs. K.Guha and Mr. D. Guha, the defendant Nos.1 and 2 by virtue of the construction agreement dt. 18.02.1985, and a registered GPA along with one Special Power of Attorney was executed by the original lessee defendant No.3 in favour of the defendant No.2 as both these defendants constructed the building under such construction agreement over such suit land and claiming that the cost of construction as covenanted under the construction agreement could not be paid, as a consequence the original lessee was not given the possession of the house and for all the practical purposes, she was ousted from the suit property.
22. It was submitted that the defendant no.1 and 2 had executed the two agreements to sell on 04.06.91 and 12.06.91 vide which they agreed to sell the ground floor vide agreement dt. 04.06.91 and the 1st and 2nd floor vide agreement dt. 12.06.91 and has already paid the consideration amount as per the terms and was ever ready and willing to perform the other parts of obligation under the contracts, but the defendant Nos.1 and 2 have not executed the sale documents qua such Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 15 property, nor handed over the possession till date and thereby, the plaintiff was constrained to file the present suit.
23. Ld. counsel has also addressed the issuewise arguments for the issue Nos.4,5,6 and 7 as the onus of proving such issues was laid on the plaintiff.
24. For the issue No. 4, Ld. counsel has submitted that the execution of the agreements dt. 04.06.91 and 12.06.91 are not being disputed by the defendant Nos.1 and 2 who were the parties to the agreement and that one Mr. Rakesh Kumar Jain has been examined as PW1, who was the son of the plaintiff and the agreements dt. 04.06.91 and 12.06.91 have been exhibited as Ex.PW1A/20 and 21, and as per the terms of the agreement Ex.PW1A/20, it was agreed upon that the defendant no.1 and 2 will pay the interest @ Rs.15,000/p.m on the consideration amount of Rs. 6 lacs till the vacant possession of the ground floor that was the subject matter of the contract would be handed over by them to the plaintiff and in case, it is delayed, deferred, postponed or declined to execute the sale deed of the Ground Floor, they would forfeit the Ground floor to the plaintiff without payment of any consideration and as per the calculation from 05.06.91 till 26.05.94, the date when the suit Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 16 was filed, the amount so calculated for the consideration amount as well as for the interest covenanted in the terms, the amount becomes Rs. 11,25,000/ that is being sought as an alternative for specific performance in the form of a money decree against the defendants, for execution of such terms.
25. Ld. counsel also has submitted that the terms and conditions has been duly proved through the evidence of PW1 along with the exhibited documents on record.
26. For the issue No.5 and 6, it has been submitted that the plaintiff was entitled for the benefits deprived of the amount received by the defendant no.1 and 2 from the suit premises after 04.06.91 as after such date, he becomes the owner of the ground floor and as the payment of the consideration had already been paid, the peaceful vacant possession was not handed over to him and all the benefits derived from such premises should be handed over and recovered to the plaintiff by the defendants.
27. Also, that the Ground Floor was given on lease to the company M/s Goodyear India Ltd. at the monthly rental, as per the terms of the Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 17 lease deed dt. 02.04.1985 Ex.PW1A/5 and from 01.06.91, the plaintiff was entitled for receipt of such rent from the defendant no.5 as the peaceful vacant possession was never handed over to the plaintiff under the allotment letter Ex.PW1A/14, thus, the rent received by the defendants was also to be repaid by the defendant nos. 1 and 2 to the plaintiff, as after 01.06.1991 through an attornment letter and after 04.06.91, as the absolute owner of such premises, he was the legally competent person to enjoy such rent that was paid to the defendant no.1 and 2 for the use and occupation of the ground floor of the property by the defendant No.5.
28. It was submitted that through the ocular as well as documentary evidence exhibited in the Court and as such documents were not disputed by the defendant Nos.1 and 2 or defendant No.5, the entitlement of such benefits to the plaintiff have been duly established on record by the plaintiff and the defendant no. 5 should be directed to give an account in this regard to the plaintiff who was legally entitled to receive the benefits qua the defendant no.5 for his use and occupation of such premises of the ground floor of the suit property and that both these facts qua the defendant No.5 were duly established by the plaintiff on record through the ocular as well as documentary evidence of PW1 in the Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 18 Court. It is also submitted that on entitlement of the above amount is proved on record, the plaintiff is also entitled for an interest on such amount, as prayed.
29. On the point of effect of nonregistration of the agreements and for the plea of the defendants that the suit was barred within the provisions of section 69 (2) of the Partnership Act or of section 16 (a) and
(b) of the Specific Relief Act, 1963, it is submitted that the legal propositions is clear in law referred and Ld. Counsel has also relied on the judicial opinions expressed in the following cases:
i). Raghunath & Or V/s Kedarnath AIR 1969 SC 1316
ii). Suresh Jain V/s Orient Caret Gallery Pvt. Ltd.
MANU/DE/1588/2009
30. He has also submitted certain photocopies of the proceedings filed under section 138 NI Act to inform about such proceedings between the parties in some other Court.
31. Ld. counsel Mr. Rajneesh Ranjan for the defendant Nos.1 and 2 has submitted the brief account of all the documents executed relating to Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 19 the suit property in question, those were executed not only between the parties to the suit property, but also to the other persons and relevant to the suit property and has addressed the oral submissions along with written submissions placed on record.
32. He has basically argued on the point that the plaintiff cannot claim the suit for specific performance of the agreements dt. 04.06.91 and 12.06.91 under reference for the reasons that such agreement were unregistered and cannot be given effect to.
33. He has also submitted that the suit is barred under section 69
(i) of the Partnership Act and the plaintiff in his individual capacity has no locusstandi to file such suit and that the plaintiff is not entitled for the relief of specific performance within the provisions of section 16 (a) and
(b) of the Specific Relief Act as he was never ready and willing to perform his part of obligation and acted at variance to the terms of the contract, as he has filed a complaint under section 138 NI Act and also registered an FIR against the defendant Nos.1and 2 and the transaction between the plaintiff and the defendant No.2 was a loan transaction for which specific performance of the contract cannot be asked for and the loan amount was not tendered by the plaintiff but by the defendant No.6 Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 20 and Ms. Promila Jain, who could only claim the amount and thereby the two contracts dt.04.06.91 and 12.06.91, were without consideration, thereby losing their identity as contracts in the eyes of law.
34. During arguments, Ld. counsel for the defendant Nos.1 and 2, has specifically mentioned giving a separate statement, at bar, that the defendant Nos.1 and 2 do not press the issue Nos.2 relating to limitation.
35. He has addressed that the agreements under reference being an unregistered agreements and without consideration, cannot give effect for directing the defendants to perform the same, but he has specifically mentioned that the defendants are not disputing any documents exhibited in the Court.
In support of his submissions, he has relied on the following authorities for the judicial opinion on the law points:
i).DDA V/s Kochhar Construction & Anr. (1998) 8 SCC 559
ii).Jagdish Chander Gupta V/s Kajaria Traders (I) Ltd. AIR 1964 SC1882
iii).Purshottam & Anr. V/s Shivraj Fine Art Litho Works & Ors. JT 2007(4)SC564
iv). Ardeshir H. Mama V/s Flora Sassoon (1928) 30 BOMLR 1242
v). K.S Sundaramayyar V/s K. Jagadeesan & Anr. AIR 1965 Mad 85
vi). Ayissabi V/s Gopala Konar AIR 1989 Ker 134
vii).Prem Raj V/s DLF Housing & Constn. Pvt. Ltd. & Anr. AIR 1968 SC 1355 Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 21
viii).Gopal Devi V/s Mrs. Kanta Bhatia RPA No. 65/1983 decided on 03.05.1994
ix).N.PThiruganam by Lrs V/s Dr. R. Jagan Mohan Rao & Ors. 1995 (5) SCC 115
x). Pushparani S. Sundaram & Ors. V/s Pauline Manomani & Ors. 2002 (9) SCC 582
xi). Manjunath Anandappa @ Shivappa Hansi V/s Tammanasa & Ors. 2003 (10) SCC 390
xii).His Holiness Acharya Swami Ganesh Dassji V/s Sita Ram Thapars AIR 1996 SC 2095
xiii).Mrs. Sandhya Rani Sarkar V/s Smt. Sudha Rani Debt & Ors. AIR 1978 SC 537
xiv).Salarpuria Properties Pvt. Ltd. V/s M.S Ramaiah Develoers & Builders Pvt. Ltd. 2006 (6) Kar LJ 23
xv). B. Rajamani V/s Azhar Sultana & Ors. AIR 2005 AP 260
36. On the basis of the pleadings, the documents exhibited and the evidence on record in the light of contentions of both the parties, a brief resume of the facts came on record is as under :
That the suit property is consisting of a suit land measuring 233 sq. yards bearing No. H1520, Chitranjan Park, New Delhi, and thereupon the constructed building structure is consisting of Ground Floor, 1st Floor and 2nd Floors and that suit land was under the perpetual lease in the name of one Mrs. Gayatri Banerjee, the defendant No.3 who entered into a construction agreement on 18.02.1985 with D. Guha, the defendant No.2 and she had executed a registered GPA in favour of the defendant No.2 and a notorised SPA in favour of the defendant No.1, and that as per the construction agreement as the original lessee Mrs. Gayatri could not make the payment of the cost of construction as covenanted under the agreement, the suit land as well as the constructed structure Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 22 thereon continued to vest in the possession of the defendant No.2, as its owner in terms of the construction agreement, thus, ousting her in practical sense, from the suit property though she was the original lessee under the perpetual lease. Therefore, the defendant No.3 has basically been out of the picture, so far as the suit property is concerned for the disputes in the suit.
37. After construction of the house, the defendant Nos.1 and 2 executed a large number of documents in favour of a number of people including the plaintiff on different dates creating interest/charge over the suit property, in one or the other portion of the suit property and the execution of such documents in that capacity and authority of the defendant Nos. 1 and 2 qua the suit property is not in dispute. These are as under :
1. A lease deed of the ground floor portion of the suit property in favour of the defendant No.5 M/s Goodyear India Ltd. on 02.04.1985 that was exhibited as Ex.PW1 A/5 creating an interest in favour of the defendant No.5, as lessee, on the terms of payment of monthly rental of Rs. 2548/ who also took a vacant physical possession of the lease property from the defendant No.2 Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 23 on 02.04.1985.
2. The defendant Nos.1 and 2 had borrowed a sum of Rs. 5 lacs from the plaintiff Mr. R.L Jain, against the security of the suit property, on 20.11.90. The defendant Nos.1 and 2 executed an indemnity bond cum mortgage deed dt. 21.11.90 Ex.PW1A/7, the deed of the agreement of mortgage dt. 19.12.90 Ex.PW1A/8 (two receipts dt.21.11.90 of Rs. One lakh & Rs. 4 lacs Ex.PW1A/9 &
10) also issued the letter dt. 22.12.90 Ex.PW1A/11 and the affidavits of the defendant Nos.1 and 2 dt.22.11.90 Ex.PW1A/12 & 13.
The defendant could not pay the amount and the defendant No.1 executed three attornment letters in the name of 3 tenants occupying the suit property at that time for tendering their monthly rental to the plaintiff Mr. R.L Jain w.e.f. 01.06.1991. The attornment documents were Ex.PW1A/14,15 and 16, on the basis of which the plaintiff was claiming the benefits derived from the tenants in the form of rent, relating to their occupation in their respective portions in the suit property.
3. The defendant No.1 and 2 also executed the affidavits dt.18.02.91 Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 24 Ex.PW1A/7 admitting that they have received the aforesaid amount of Rs.5 lacs.
4. On 04.06.91, the defendant Nos.1 and 2, entered into an agreement to sale Ex.PW1A/20 in respect of the ground floor of the suit premises for the consideration amount of Rs. 6 lacs as consideration with the acknowledgment that this amount of consideration of Rs. 6 lacs consists of Rs. 5 lacs that had earlier taken as loan from the plaintiff and Rs. one lakh as interest on such Rs. 5 lacs, totalling Rs. 6 lacs, on the settled terms and conditions that the defendant Nos.1 and 2 will pay an interest @ Rs.15,000/ p.m on the consideration amount of Rs. 6 lacs, till the vacant possession of the ground floor, occupied by the the defendant No.5, under the lease deed dt.02.04.1985, that was to be handed over to the plaintiff and in case of delay, deferment, postponed or declining or failing to execute the sale deed in relation to the ground floor, the ground floor would be forfeited to the plaintiff without payment of any consideration (Rs. 6 lacs).
5. On 12.06.91, another agreement to sell dt. 12.06.91 Ex.PW1A/21 in relation to the 1st and 2nd floor of the suit property was entered Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 25 into with the covenant that the consideration price to be finally settled later and vide such agreement, the possession of such 1st and 2nd floor would be handed over to the plaintiff by the tenants occupying such property on payment of the amount of Rs. 5 lacs to one Ms. Mitra, who was one of the tenants occupying such portion of the property.
38. Apart from the above mentioned documents, it has also come on the record, before the Court during arguments that the following documents i.e two agreements to sell were also executed by the defendant Nos.1 and 2 in favour of the defendant No.4 Mrs. Leela Bhattacharya :
i). On 31.10.1991, the defendant Nos. 1 and 2 executed the agreement dt. 31.10.1991 in favour of the defendant No.4 for sale of the ground floor of the suit property for sale consideration amount of Rs. 18 lacs out of which Rs.50,000/ has been received by defendant Nos. 1 and 2 as an advance down payment and vide orders/judgment dt. 23.07.09 passed by Sh. Dinesh Bhatt, the then Ld. ADJ, Delhi, a decree was passed in favour of the defendant No.4 against the defendant Nos. 1 and 2 with respect to the ground floor of the suit property on the directions of depositing of the balance amount of Rs.17.5 lacs in the Court by the plaintiff and for execution of sale documents in favour of the plaintiff by the defendant Nos. 1 and 2.Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 26
ii). On 09.10.91, the defendant Nos.1 and 2 executed the documents of the agreement to sell in relation to the different portions of the suit property, particularly, for the 1st and 2nd floor of the suit property, in favour of Mr. B.M Bhhatacharya, the husband of the defendant No.4 Mrs. Leela Bhattarcharya, for the consideration amount of Rs.20 lacs for the sale of 1st and 2nd floor of the suit property in favour of Mr. B.M Bhattacharya, out of which an advance money of Rs.50,351/ and an amount of Rs.15,25,000/ were paid against a receipt executed by the defendant Nos.1 and 2, also an amount of Rs.5 lacs were paid to the tenant Mrs. Mitra and against such payment, even took the possession of the 1st and 2nd floor of the suit property and qua such documents, the defendant No.4 Mrs.Leela Bhatachharya had filed a Civil Suit No. 211/1992 before the Hon'ble High Court of Delhi, at New Delhi against the defendant Nos.1 and 2 for the relief of specific performance of the agreement to sell relating to such portion of the suit property and vide orders/judgment dt. 15.04.06 of Sh.Ashwani Sarpal, the then Ld. ADJ, Delhi, passed a decree in favour of the defendant No.4 and issued directions to the defendants to execute the documents on depositing the balance consideration amount of Rs.4.75 lacs in the Court within the period of one month from the date of judgment and even the review of such orders/judgment was dismissed vide orders dt.
02.03.2009 of Sh. Dinesh Bhatt, the then Ld. ADJ, Delhi. Thus, in the light of above facts and circumstances established on record, the issue wise findings are made, in the present suit. Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 27
39. Now, my issue wise findings and observations are as under : Issue No. 1
i). Whether the agreement dt. 04.06.1991 and 12.06.1991 is unregistered and without consideration? OPD.
This issue was to be established by the defendant Nos. 1 and 2 as onus of proof was laid on them as this issue was framed on their plea. In this issue two agreements dt. 04.06.1991 and 12.06.1991 are questioned on the ground that these were unregistered and without consideration.
40. So far as the registration of these documents are concerned, both the parties have not disputed that both these documents Ex.PW1A/20 and 21 are unregistered documents. Thus, these facts need not be proved as not being disputed, as per the law of Evidence.
41. So far as the issue of consideration of these agreements are concerned, firstly, the nature of these documents have to be observed in the light of evidence on record and the contentions of the parties.
42. Both the agreements Ex.PW1A/20 and 21 are entered into Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 28 between two parties viz. the defendant Nos. 1 and 2 as First Party and the plaintiff Sh. R.L Jain as Second Party. The dates of execution of these documents are not in dispute.
43. So far as the consideration for the agreement dt. 04.06.91 was concerned, it is mentioned in the document of agreement to sell that they (First PartyDef.1,Def.2) have offered to sell the entire ground floor flat of the said house to the Second Party (plaintiff) at a total sale price of Rs. 6,00,000/ (Rs. Six lacs only). The Second Party has agreed to purchase it at Rs. 6 lacs by adjusting the amount of loan and interest against this sale consideration and on the terms and conditions settled and agreed between the parties.
44. Now, come to the document Ex.PW1A/21 i.e the agreement to sell dt. 12.06.1991.
i). The document Ex.PW1A/21 dt.12.06.91is clearly an agreement to sell the 1st & 2nd floors of the suit property.
ii). It was executed on 12.06.1991 between two parties i.e First & Second Party therein the defendant No.1 and 2 were jointly and severally called as First Party and Sh. R.L Jain, the plaintiff was the Second Party.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 29
iii). The First Party was mentioned as the joint owners of the suit property by virtue of the construction agreement and the General Power of Attorney (GPA) executed by its original allottee Smt. Gayatri Banerjee, the defendant No. 4 in favour of the defendant No.2.
iv). This agreement acknowledges the following facts:
a). The earlier agreement dt. 04.06.1991 between the same parties qua the ground floor of the suit property ;
b). That the agreement dt. 04.06.1991 continues to subsist and shall remain in full force of operation heretofore.
c). That there was a delay due to certain circumstances and financial difficulties in fulfillment of the commitments made in agreement dt. 04.06.1991 regarding handing over the physical vacant possession of the ground floor of the suit property and also regarding the payment of interest on Rs.6 lacs (as per terms of the agreement dt.04.06.91).
d). That the first floor was sublet to one German company and was in occupation of one Mr. Mitra, the General Manager of such company.Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 30
v). That the First Party (defendant Nos. 1 and 2) has agreed that, in order to save and avoid payment and accumulation of interest @ Rs.15000/p.m on Rs. 6 lacs (as per terms of the agreement dt. 04.06.1991) as such interest was a bar and burden on first and second floor (i.e remaining part of the suit property), in the event of the vacating of the first floor by Mr. Mitra, the possession that of will be given to the Second Party (i.e the plaintiff), and to none else. It was also agreed that if it is not vacated by 31.07.1991, its rent will be payable to the Second Party who shall have the right to receive such rent.
vi). It was also made clear that Dr. Mitra had paid Rs.4.5 lacs to the first party for passing of the rights of renting out and there was some balance of security amount payable to one M/s Avery India Ltd., the tenant of Sacrosanct, therefore, the Second Party i.e the plaintiff had to pay the above mentioned sum to the respective tenants and then shall take possession of both the floors (i.e first and second floor of the suit property). Thus, the Second Party shall continue to have full ownership rights of all floors i.e the entire house No. H1520, Chitranjan Park, New Delhi (i.e the suit property) with all rights, title, interest that stands duly conveyed and transferred by First Party to the Second Party.
45. As per this document Ex.PW1A/21, it was clear that the document was clearly an agreement between defendant No.1 and 2 (Smt. K.Guha and Sh. D. Guha) as First Party and the plaintiff (Sh. R.L Jain) as Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 31 Second Party. The subject matter was the sale of first and second floor of the suit property.
46. The consideration for the agreement dt. 12.06.91 was (a) the interest on Rs. 6 lacs (as per terms of the agreement dt. 04.06.1991) (b) Rs.4.5 lacs that was paid by Dr. Mitra to the First Party (c). the balance of security amount payable to one M/s Avery India Ltd., the tenant of Sacrosanct.
As per agreement, the transfer and conveyance was of the vacant possession of first floor from Dr. Mitra and second floor from M/s Avery India Ltd., the respective tenants and the rent from Dr. Mitra till the vacation of the tenanted premises in possession and occupation of Dr. Mitra, in favour of Second Party i.e the plaintiff.
47. Both these agreements are duly proved in the Court through ocular evidence of PW1A and duly exhibited the original documents as Ex.PW1A/20 and 21. The execution of these documents is also not in dispute nor any evidence in rebuttal have been given by the defendant to the contrary, thereby these facts are duly established regarding execution of the documents of two agreements dt.04.06.1991 and 12.06.1991 Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 32 between the defendant No.1 and 2 as First Party and the plaintiff as the Second Party.
48. The word 'consideration' defined in section 2 (d) of the Indian Contract Act, 1872, is constituted of acts, abstinences or promise of the parties to the contract and can be understood if it is read literally as per the provisions under section 2 (d) that reads :
'When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing,something, such act or abstinence or promise is called a consideration for the promise'.
49. The Hon'ble Supreme Court in Sonia Bhatia V/s State of U.P AIR 1981 SC 1274 has expressed as to what consideration means.
It is observed therein that, "consideration means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee; when the word 'consideration' is qualified by the work 'adequate', it makes consideration stronger so as to make it sufficient and valuable having regard to the facts, circumstances and necessities of the case".
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 33
50. In the instant case, the amount mentioned in the agreements executed between the parties, was the consideration for the First Party and the handing over the possession of the relevant portions of the suit property was the consideration for the Second Party and there were promises/counter promises in this regard, in the agreements.
51. The existence of an existing debt is sufficient consideration for a later promise to pay that debt. (reliance on the observations in Slade's case (1602) 4 Co Rep. 91 a) and there will be good consideration if there has been forbearance on the part of the creditors. (as opined in Wigan V English and Scottish Law Life Assurance Association (1909) 1 Ch.
291).
52. It is a well settled principle of law settled in Kunj Behari V/s Madhsodan Lal AIR 1919 All 348, Board of Revenue Madras V/s Annamali & Co. Pvt. Ltd. AIR 1968 Mad 50 (FB) & Central Bank of India V/s Tarseema Compress Wood Mfg. Co. AIR 1997 Bombay 225, wherein judicial opinions were that, 'old debts form good consideration for mortgage or transfer of property. A power of attorney given by a company to a bank enabling it to sell the properties which the bank was for good Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 34 consideration relatable to the loan advanced earlier by the bank; so was a promissory note executed as security for repayment of a loan already received by the debtor'.
53. Therefore, the consideration for both the agreements dt. 04.06.1991 and 12.06.1991, above mentioned, has been duly proved on record and it cannot be said that both these agreements were without consideration.
Thus, the defendants have miserably failed to prove that these agreements were without consideration.
54. Therefore, the issue No.1 is decided with the finding that both the agreements dt.04.06.1991 and 12.06.1991 were duly established on record, and that these were unregistered documents were with the consideration and these documents Ex.PW1A/20 and 21 cannot be called as without consideration, thereby, proved against the defendant Nos. 1 and 2 and in favour of the plaintiff.
55. Issue No.2
ii). Whether the suit is time barred? OPD.
The onus of proving this issue was on the defendant Nos. 1 Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 35 and 2 as this issue was framed on the plea raised by the defendant Nos. 1 and 2, but the defendants have not pressed this issue as per the statement of their counsel on 15.05.2010 in the Court, thereby this issue was dropped being not pressed upon vide orders dt.15.05.2010. Therefore, this issue needs no further observations in the above noted circumstances, consequently, it is decided in favour of the plaintiff that the suit is within the period of limitation.
56. Issue No. 3
iii). Whether the suit is barred under section 16 (a & b) of the Specific Relief Act? OPD.
This issue was framed on the plea taken by the defendant No. 1(b), Sh. Bishwajeet Guha, one of the LRs of the defendant No.1 that the plaintiff had filed a criminal complaint under section 138 of Negotiable Instrument Act and an FIR No. 507/91 against the defendant No.2 and in view of the filing of FIR and the complaint case, the plaintiff cannot claim the relief of specific performance, thus, the onus of proof for this issue was laid on the defendant .
57. The contentions of the Ld. counsel for the defendants are that Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 36 the plaintiff had acted at variance from the terms of contract and never intended the contracts valid and enforceable and that according to the plaintiff both the contracts/agreements are vitiated by fraud and cheating who had got registered an FIR and filed a complaint, hence, he is barred from enforcing their right under agreement to sell Ex.PW1A/20 and Ex.PW1A/21 in view of the provisions of section 16 (a & b) of the Specific Relief Act.
58. Ld. counsel has also argued that the plaintiff was never willing and ready to perform his part of obligation as per the terms of contracts and thus, was not entitled for the discretionary relief in view of the law settled in :
a). Ardeshir H. Mama V/s Flora Sassoon (1928) 30 BOMLR 1242
b). K.S Sundaramayyar V/s K. Jagadeesan & Anr. AIR 1965 Mad 85
c). Ayissabi V/s Gopala Konar AIR 1989 Ker 134
d). Prem Raj V/s DLF Housing & Construction Pvt. Ltd. & Anr. AIR 1968 SC 1355
e). Mrs.Gopal Devi V/s Mrs. Kanta Bhatia RPA No. 65/1983 decided on 03.05.1994
59. He has submitted that the suit of the plaintiff was barred under section 16 of the Specific Relief Act on the grounds that :
a). Plaintiff must aver and establish/prove as the fact by evidence that he has always been ready and willing to perform his part of contract. It is not enough if the plaintiff proves that he has been willing to perform his part of obligation, but he Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 37 should also prove satisfactorily that he has necessary funds at his disposal to pay the consideration of sale. He has failed to established the same.
b). Mere averment and filing of suit means desire of the plaintiff to have suit property;
c). By readiness it is meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price and by willingness means continuous willingness from the date of contract till decision of suit.
d). Under Section 20, the Court is not bound to grant the relief just because there was a valid agreement of sale.
Thereby, submitting that the suit of the plaintiff was barred under section 16 Clauses (a), (b) and (c) of the Specific Relief Act.
60. Ld. counsel for the plaintiff has countered the arguments of Ld. counsel for the defendants vehemently submitting that the arguments regarding the provisions of section 16 of the Specific Relief Act were beyond the pleadings of the defendant Nos. 1 and 2 and the LR of the defendant No.1 was not permitted within the provisions of CPC to amend the pleadings of the defendant Nos.1 and 2 filed jointly after its substitution at the place of the defendant No.1 to take the new plea. Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 38
61. Ld. counsel for the plaintiff has argued that being the legal plea, he is also interested to make certain submissions on this point that the defendant has not placed any evidence, ocular or documentary, to support its plea that the plaintiff has acted at variance either by filing the criminal complaint under section 138 NI Act raising cause of dis honourment of cheques tendered by the defendants or by taking the plea that the defendant had played a fraud or for registration of the FIR.
62. It was also submitted on behalf of the plaintiff that the FIR dt. 04.05.1991 is of the prior date to that of both the agreements to sell for sale of the different portions of the suit property and the complaints were relating to the dishonourment of cheques that had nothing to do with the performance of the contracts executed vide agreements dt. 04.06.1991 and 12.06.1991. Thus, neither the fact nor the law settled in the authorities relied by the defendants are applicable to the present case.
63. It is also submitted that the defendants have not established through any evidence or document that the plaintiff was not willing or ready to perform his part of obligation, rather it was the defendants who were never intended to execute the sale documents or to hand over the Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 39 possession of the premises in question under the agreements, thus, within the provisions of Specific Performance Act, the plaintiff was entitled for the discretionary relief of performance.
64. I have gone through the records placed with the file in the light of contentions of both the parties on the above mentioned issue. I have also gone through the provisions of law under section 16 of the Specific Relief Act, that reads as under :
Personal bars to relief - Specific performance of a contract cannot be enforced in favour of a person :
a). who would not be entitled to recover compensation for its breach; or
b). who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in favour of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
c). 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, other than terms the performance of which has been prevented or waived by the defendant.Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 40
65. As per the facts brought on record, it is observed that the defendant Nos. 1 and 2 had filed the pleadings jointly on 11.04.1995 and the entire bulk of contents raised therein, there was no plea raised that the plaintiff had 'acted at variance with the terms of contracts under reference' or that the plaintiff was 'never willing or ready to perform his part of obligation', rather their plea was that the defendants had no right at all to enter into an agreement to sell with the plaintiff without obtaining prior permission of the lessor Smt. Gayatri who was the allottee of the suit property under a perpetual lease with the Govt. and that such lessor had never entered into any such contract to sell the suit property that could be specifically performed.
It is also observed that for the first time, in the written statement filed by the defendant No. 1(b) Sh. Biswajeet Guha, one of the LRs of the defendant No.1, had taken such plea that the plaintiff had filed the complaint under section 138 of Negotiable Instrument Act and one FIR No.507/91 was registered against the defendant No.2, thereby the plaintiff was barred to claim the discretionary relief under the Specific Relief Act and these pleadings were filed on 24.08.2005 after he was substituted as one of the LRs of the defendant No.1 at his place after his death and there was no permission sought to amend the earlier pleadings of the defendant Nos. 1 and 2 filed whereas the defendant No.2 was Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 41 contesting the suit on such pleadings those were filed by him jointly with the defendant No.1.
Also, there was no evidence led either by the defendant Nos. 1 and 2 or by the defendant No. 1 (b) on this point to establish as to how the plaintiff's suit was barred under section 16 of the Specific Relief Act for acting at variance with the terms of contract or that the plaintiff was not willing or ready to perform his part of obligation. The contentions of the counsel were that the plaintiff was not in 'capacity' to make the payment of consideration as the payment was obtained from the defendant No.6 or from one Promila Jain, and not from his own pocket, thereby he was not willing or ready to perform his part of obligation.
66. It is observed on record that the agreements under reference were bipartite between First Party i.e the defendant Nos. 1 and 2 and Second Party i.e the plaintiff, and the obligation under agreement dt. 04.06.1991 was relating to making of the payment of Rs.6 lacs as consideration and it was already recorded in the document Ex.PW1A/20 that 'the total sale price stands hereby adjusted against the total amount of loan plus interest accrued thereon so far which also amounts to Rs. 6 lacs' at page 1 Clause 1 of the document, agreement to sell Ex.PW1A/20. Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 42
It is observed that the 'consideration' amount of Rs. 6 lacs was already acknowledged to have been paid as per the above adjustment and thus the contentions that the plaintiff i.e the Second Party was not willing to pay such amount or that he had no capacity to pay, is declined.
67. Also, as per such agreement, no other obligation/act was imposed on the plaintiff for the execution of the terms of contract. Thus, it cannot be said that there was an 'incapacity' with the plaintiff to perform his part of obligation under the contract or that he was not willing or ready to perform his part of obligation. It was the defendants, the First Party who were duty bound to perform their part of obligation of execution of sale documents and to hand over the peaceful vacant possession to the Second Party.
68. So far as the second contract dt. 12.06.1991 is concerned, it was a 'contingent contract' that was to be executed in future subject to the fulfillment of a condition that 'the tenants occupying the respective portions of the suit property vacate the premises'. When such condition was never fulfilled and the premises were never vacated by the tenants, rather one Mrs. Leela Bhattacharya, the defendant No.4, had filed a suit Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 43 before the Court of law in 1992 that was decreed in her favour for specific performance on tendering the remaining sale consideration to the defendants (the defendants of that suit No. 211/1992 are the same who are the defendant Nos. 1 and 2 in the present suit) and the defendants were bound to execute the sale deed in respect of the first and second floor of the plot (the subject matter of the agreement dt. 12.06.1991 in the present suit) in performance of the agreement dt. 09.10.1991 for the consideration of Rs. 20 lacs, out of Rs. 15,25,000/ had already been paid to the defendant Nos. 1 and 2 and the balance sale consideration of Rs. 4,75,000/ was to be deposited in the Court within the period of one month from the date of orders/judgment dt. 15.04.2006 of Sh. Ashwani Sarpal, the then Ld. ADJ, Delhi.
69. In the above noted circumstances, the question of non willingness or nonreadiness on the part of the plaintiff for performing his part of obligation under the contract could not be arisen when there was no occasion of 'vacating' the respective portions of the suit property for handing it over to the plaintiff at any point of time.
70. Also, it is further observed that the registration of the FIR was on 04.05.1991 and the execution of the documents Ex.PW1A/20 ad 21 Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 44 (two agreements) were on 04.06.1991 and 12.06.1991 after one month of registration of FIR and it cannot be related to these agreements to attract the provisions of section 16 of the Specific Relief Act, to say that on registration of FIR, the plaintiff i.e the Second Party to the contracts has acted at variance with the terms of contract as the registration of such case was one month prior to the execution of the documents of contracts under reference.
71. Similarly, filing of the criminal complaint cases under section 138 NI Act for the dishonourment of the cheques tendered by the defendants to the plaintiff cannot be related to the terms of contract or to say that such proceedings could be treated as an act at variance to the terms of contract.
Thus, the facts of the case are entirely and distinguishably different from the cases cited as authority for judicial opinion to be applied to the present case, as relied by Ld. counsel for the defendants. Thus, none of the observations or the judicial opinion or the law settled in such cases, are applicable to the present case, thereby no observations are made in this regard by this Court in this case on such authorities.
72. Thus, the defendants have failed to establish on record that the Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 45 suit was barred within the provisions of section 16 of the Specific Relief Act. Thus, the issue is decided against the defendants and goes in favour of the plaintiff.
73. Issue Nos.4, 5 & 6
iv).Whether the plaintiff is entitled to a decree for specific performance of the agreement dt. 04.06.1991 and 12.06.1991 or in alternative to a decree for a sum of Rs. 11,25,000/ against the defendants ? OPP.
v). Whether the plaintiff is entitled for a decree directing the respondent No. 1 and 2 on account of and in respect of the benefits deprived of amount recovered from the suit premises after 04.06.1991? OPP.
vi). Whether the plaintiff is entitled to the relief as prayed for in para D of the prayer of the plaint? OPP.
For establishing these three issues, the onus was laid on the plaintiff. These three issues are taken together as the claims of the plaintiff in all these issues are based on the two contracts dt. 04.06.1991 and 12.06.1991.
74. Firstly, the agreement dt. 04.06.1991 is considered for the Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 46 findings on the above issues.
The plaintiff's case is that the defendant No.1 and 2 have entered into an agreement to sell the ground floor of the suit property on 04.06.1991 for a total sale price of Rs. 6 lacs, as per the terms of the agreement and the defendant No.1 and 2 as First Party did not perform its part of obligation to execute the sale documents and to hand over the peaceful vacant possession of such suit property and also failed to pay the interest @ Rs.15,000/ p.m on the amount of Rs. 6 lacs till the possession was to hand over, thus seeking the performance of the Contract dt. 04.06.91.
75. Thus the plaintiff has filed the suit for specific performance of the contract dt. 04.06.1991.
The plaintiff has produced one witness Sh. Rakesh Kumar Jain who was examined as PW1/A for the ocular evidence and exhibited the documents as Ex.PW1A/1 to 27.
76. Ld. counsel for the plaintiff has contended that the defendant Nos.1 and 2 were the owners of the suit property comprises of the suit land measuring 233 sq. yards and a building constructed over it comprising of three floors i.e ground floor, first floor and second floor Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 47 and that by virtue of the construction contract Ex.PW1A/2 and General Power of Attorney (GPA) Ex.PW1A/3 with the original lessee Smt. Gayatri Banerjee and both the defendant Nos. 1 and 2 as First Party had the capacity to enter into an agreement dt. 04.06.1991 with the plaintiff as Second Party to sell the ground floor of the suit property for a consideration amount of Rs.6 lacs.
77. It is observed that the 'consideration' amount of Rs. 6 lacs has already been received by the defendant No.1 and 2 as it was adjusted for the amount of Rs. 5 lacs and an interest of Rs. One lakh over such Rs. 5 lacs that had already received by the Firsty Party, that was admitted vide affidavit Ex.PW1A/17 of the defendant Nos. 1 and 2 and thus, the plaintiff was entitled for the execution of the sale documents and for peaceful vacant possession of the ground floor of the suit property and also of receiving of the interest @ Rs.15,000/ p.m on the consideration amount of Rs. 6 lacs till the peaceful vacant possession of the property was to be handed over to him.
78. Ld. counsel for the defendant Nos. 1 and 2 has countered the claim of the plaintiff vehemently on the grounds :
i) that the agreement was unregistered and without consideration Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 48 and thus, was a sham document.
ii).The defendant Nos. 1 and 2 were not competent to enter into such agreement as they were not the owners of the suit property and the plaintiff has not entered into the agreement with Mrs. Gayatri Banerjee, defendant No.3, the original allottee of the suit property.
iii). that the plaintiff has acted at variance and was never willing or ready to perform its part of obligation and thus, cannot claim the specific relief of performance of the contract within the provisions of section 16 of the Act.
iv). that the plaintiff has not made the payment of Rs. 4 lacs plus Rs. One lakh that was the principle amount and along with an interest of Rs. One lakh over such Rs. 5 lacs that was forming the consideration of sale price of the total amount of Rs. 6 lacs for the contract dt. 04.06.1991 and thus, the plaintiff cannot claim the specific performance of such contract.
v). that the plaintiff in its individual capacity could not sue the defendants when he was acting as 'karta' of the partnership firm M/s Richa Manish, the defendant No.6, particularly when this partnership firm was unregistered one.
vi). Also, that the consideration amount was a loan transaction that cannot be specifically performed under the Act.Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 49
79. It is mentioned that the defendants have not led any evidence during the course of trial.
80, On careful perusal of the records placed with the file consisting of ocular as well as documentary evidence, in the light of contentions of both the parties and also on going through the provisions of law relating to registration of the documents, the registration of the partnership firms, the Partnership Act, the Indian Contract Act and the Specific Relief Act, for the disposal of the issues in hand, it is observed that there were certain facts established on record.
81. Now, come to such admitted and established facts on record.
The defendant Nos. 1 and 2 have not disputed the execution of any of the documents exhibited (Ex.PW1A/1 to 27) by the plaintiff on record.
The defendants have not disputed the receipt of amount of Rs.4 lacs plus Rs. One Lakh from the plaintiff Sh. R.L Jain, only disputed that the such amount was paid not from the own pocket of Sh.R.L Jain.
The defendants have also not disputed that the consideration amount of Rs. 6 lacs in the agreement dt. 04.06.1991 was consisting of the amount of Rs. 5 lacs already received by the First Party i.e the defendant Nos. 1 and 2 and an interest of Rs. One Lakh over such amount of Rs. 5 lacs Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 50 already acknowledged as received vide document Ex.PW1A/17 and such amount was constituting the consideration amount of Rs. 6 lacs mentioned in the contract of sale vide agreement dt. 04.06.1991. The receipt of such amount was also acknowledged in admitted document Ex.PW1/21, the agreement dt. 12.06.91.
The defendants have not disputed that it was covenanted in the agreement dt. 04.06.1991 that the defendants shall pay an interest @ Rs. 15,000/p.m on the consideration amount of Rs. 6 lacs to the plaintiff till the peaceful vacant possession of the ground floor is handed over to the plaintiff.
It is also not in dispute by the defendants that the interest @ Rs. 15,000/p.m mentioned above was never paid after execution of agreement dt. 04.06.1991 to the plaintiff, also that the peaceful vacant possession was not handed over to the plaintiff till date.
It is also not in dispute by the parties that one FIR No. 507/91 dt. 04.05.1991 was registered and certain complaints under section 138 Negotiable Instruments Act were filed by the plaintiff for dishonourment of cheques tendered by the defendant Nos. 1 and 2 in respect of interest to be paid by the defendant Nos. 1 and 2 to the plaintiff under the earlier loan transactions.
82. On the facts not disputed, as per the law of Evidence, there is Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 51 no need to further elaborate or appreciate the evidence on record, whether it is in favour of the plaintiff or against the plaintiff or favouring the defendants.
83. It is worth to mention that the copy of two judgments dt. 15.04.2006 of the Court of Sh. Ashwani Sarpal, the then Ld. ADJ, Delhi, and dt. 23.07.2009 of the Court of Sh. Dinesh Bhatt, the then Ld. ADJ, Delhi, have been filed on behalf of the defendant Nos. 1 and 2 pertaining to the Suit Nos. 39/06 & 40/06, both titled as 'Leela Bhattacharya V/s K.Guha & Ors.' vide which two decree were passed in favour of Smt. Leela Bhattacharya (defendant No. 4 in the present suit) against the defendant Nos. 1 and 2 (also defendant Nos. 1 and 2 in the present suit) with respect to the ground floor, first floor and second floor of the suit property in question, directing the defendant Nos. 1 and 2 to execute the sale documents pertaining to the respective portions of the suit property in favour of Smt. Leela Bhattacharya and handing over the peaceful vacant possession of such property to her and such suits were also contested on the same grounds that were raised by the defendant No. 1 and 2 in the present suit regarding the capacity and competence of the defendant No. 1 and 2 in executing such agreements to sell.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 52
84. It is revealed from the orders that the defendant Nos. 1 and 2 had also executed two separate agreements dt. 09.10.1991 and 31.10.1991, with Smt. Leela Bhattacharya, the defendant No.4, to sell first floor/second floor and ground floor of the suit property respectively. In the judgments clear observations were made that the defendant Nos. 1 and 2 had received the down payment and the part payment of the consideration amounts of such agreements from Smt. Leela Bhattacharya and balance amount was directed to be deposited in the Court and such agreements were valid contracts those were directed to be performed under the Specific Relief Act.
85. It is worth reminded that the agreements dt. 04.06.1991 and 12.06.1991 admittedly executed by the defendant Nos. 1 and 2 with the plaintiff Sh. R.L Jain, to sell the ground floor, first floor/second floor of the same suit property respectively. The receiving of consideration amount (Rs. 6 lacs that includes Rs. 5 lacs already received and Rs. One lakh as interest on the amount received) of agreement dt. 04.06.1991, is not in dispute, rather acknowledged vide affidavit Ex.PW1A/17 and also in the agreement dt. 12.06.1991 that is Ex.PW1A/21.
86. It is not being disclosed by the defendant Nos. 1 and 2 as to Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 53 whether such orders have been executed upon or not, nor the plaintiff is aware of the same, but it is fairly admitted by the defendant Nos. 1 and 2 in the Court during the final oral submissions that the subject matter of the suit i.e all the three floors of the suit property were the same as of the present suit. This is the most difficult and strange part of the suit at the time of disposal of the issues in hand.
87. Now, come to the agreement to sell dt. 04.06.1991 that is Ex.PW1A/20. This agreement was entered into two parties i.e first party was Mrs. K. Guha and Sh. D. Guha, the defendant Nos. 1 and 2, and the second party was Sh. R.L Jain, the plaintiff.
88. Thus, it cannot be said that this agreement was a tripartite agreement as alleged by the defendant Nos. 1 and 2 because there were only two parties as per such document.
89. The document clearly mentions that the First Party are the joint owners of the suit property, by virtue of construction agreement and General Power of Attorney executed by the allottee Smt. Gayatri Baneerjee, the defendant No.4, in their favour.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 54
90. It also mentions in the agreement dt. 04.06.91 (the document Ex.PW1A/20) that the First Party besides the owner of the entire house and are also in physical possession and occupation of its ground floor with all rights, title and interest of the ownership of the same, unencumbered. Thus, the contentions of the defendant Nos. 1 and 2 that they were not competent to enter into contract, being not the original allottee or owners cannot be upheld.
91. So far as the consideration was concerned, it is mentioned in the document of agreement to sell that they (First PartyDef.1,Def.2) have offered to sell the entire ground floor flat of the said house to the Second Party (plaintiff) at a total sale price of Rs.6,00,000/ (Rs. Six lacs only). The Second Party has agreed to purchase it at Rs. 6 lacs and that such consideration amount was adjusted as the amount of loan and interest against this sale consideration and on the terms and conditions settled and agreed between the parties.
92. Also, the issue No.1 has been decided in favour of plaintiff vide detailed observations of the Court on this point and concluded with the finding that the agreement to sell dt. 04.06.1991 was with Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 55 consideration and cannot be held as without consideration.
93. Thus, the agreement dt. 04.06.1991 had the following ingredients :
i). There were two parties i.e First Party: the defendant Nos.1 & 2 namely Sh. K. Guha and Sh. D. Guha.
& Second Party: the plaintiff namely Sh. R.L Jain Both were competent, major and of sound mind.
ii). There was an agreement (promise) by the First Party (promissor) to sell the ground floor of the suit property to the plaintiff i.e the Second Party (promisee).
iii).The subject matter of the agreement was the ground floor of the suit property and there was no confusion or doubt on the subject matter that the agreement was for the sale of the ground floor of the suit property.
iv).There was a consideration amount of Rs. 6 lacs and that was a valid consideration for the purpose of contract of sale of property as per findings of issue No.1.
v). The agreement was enforceable by law as there was no covenant/terms to the agreement that was contrary to law.
94. It was the contention of Ld. counsel for the defendants that agreement dt. 04.06.1991 was not the valid contract that could be asked for specific performance under the Specific Relief Act. Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 56
95. Now, what is the 'contract', is defined in Clause (h) of Section 2 of the Indian Contract Act, 1872, that, ' an agreement enforceable by law is a contract'.
And what is an 'agreement' is defined in Clause (e) of Section 2 of the Indian Contract Act, 1872, that, 'every promise and every set of promises forming the consideration for each other is an agreement'.
And who are the promissor and promissee to the agreement are defined in Clause (c) of Section 2 of the Indian Contract Act, 1872, that, 'the person making the proposal is called the promissor and the person accepting the proposal is called the promissee'. Thus, the definition of contract is built up on a succession of definitions of elements which constitute the contract.
96. In nutshell, an agreement that is a promise between the promissor and promissee, both competent to enter the agreement, for a common subject matter, for consideration is a contract if such agreement is enforceable by law.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 57
97. As per the ingredients of the agreement dt. 04.06.1991 observed above, 'the agreement' dt. 04.06.1991 was a 'contract' as per the provisions of Indian Contract Act.
And the performance of contracts, is governed by Chapter 2 of the Specific Relief Act.
98. As per the provisions of Section 10, the specific performance of a contract can be enforceable in cases referred in the several clauses of Sections 9 & 10 of the Specific Relief Act.
Section 9 of the Specific Relief Act reads :
Defences respecting suits for relief based on contract Except as otherwise provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts.
Section 10 of the Specific Relief Act reads :
Cases in which specific performance of contract enforceable Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the Court, be enforced :
a). when there exists no standard for ascertaining actual damage caused by the nonperformance of the act agreed to Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 58 be done; or
b). when the act agreed to be done is such that compensation in money for its nonperformance would not afford adequate relief.
Explanation - Unless and until the contrary is proved, the Court shall presume :
i). that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
ii). that the breach of a contract to transfer movable property can be so relieved except in the following cases :
a). where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market.
b). where the property is held by the defendant as the agent or trusteee of the plaintiff.
99. Thus, it is observed that the agreement dt. 04.06.1991 was a contract within the provisions of Indian Contract Act and the either party to the contract could seek a relief of performance of such contract in view of the provisions of Chapter 2. As per the provisions of Section 15 of the Specific Relief Act, that deals with the subject as to who may obtain Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 59 specific performance of a contract, Clause (a) makes it clear that any party to the contract can steer the wheels of performance of the contract.
100. The plaintiff Sh. R.L Jain was the Second Party to the agreement dt. 04.06.1991 out of the two parties entered into the contract, thus could seek the specific performance of the contract.
101. It was the contentions of Ld. counsel for the defendant Nos. 1 and 2 that the plaintiff had no locus standi to file such suit and has relied on the judicial opinion of the Apex Court in the case of Standard Charted Bank V/s Andhra Bank cited as 2006 (6) SCC 94, submitting that any contentions on which issues have not been framed or the plea has not been taken by any party can be decided by the Court if there is an evidence in that regard.
102. It is submitted by Ld. counsel of the defendants that totality of facts makes it a case filed by the plaintiff in the capacity of managing partner of the defendant No. 6 M/s Reecha Manish Associates and as he was not authorised nor the partnership firm i.e the defendant No.6 was registered, thus within the provisions of section 69 of the Partnership Act, he was not having the locus standi or otherwise the suit was barred under Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 60 section 69 of the Partnership Act. For this contention, he has relied on the authorities of :
i). DDA V/s Kochhar Construction & Anr. (1998) 8 SCC 559
ii). Jagdish Chander Gupta V/s Kajaria Traders (I) Ltd. AIR 1964 SC1882
iii).Purshottam & Anr. V/s Shivraj Fine Art Litho Works & Ors. JT 2007(4)SC564
103. For these contentions, Ld. counsel is relying on the testimony of PW1/A. It was argued that on the factual matrix, the plaintiff has produced the evidence that infers, in totality of facts, a proposition that the plaintiff Sh. R.L Jain has filed the suit on behalf of defendant No.6 M/s Reecha Manish Associates and in the capacity of its Managing Director as the consideration amount of Rs. 6 lacs for the contract vide agreement dt. 04.06.1991 was forming a part of amount that was involved in the loan transaction between the defendant Nos. 1 and 2 and the defendant No.6 and thus, the plaintiff should get the authority from the defendant No.6 and the defendant No.6 should be the registered partnership firm for filing the present suit.
104. On meticulous perusal of the agreement dt. 04.06.1991, it is crystal clear that Sh. R.L Jain was 'Second Party' to the agreement in its individual capacity and admittedly, the consideration amount was Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 61 inclusive of the back debt also that related to the earlier transactions vide which the payments of Rs.4 lacs and Rs. One lakh was made by making an arrangement of the money from his company M/s Reecha Manish Associates for which he claims to be the 'karta' of such company and the amount was paid from the account of the plaintiff that is also clear from the letter dt. 31.05.1991 Ex.PW1A/19 that was a confirmation of the defendant No.2 Sh. D. Guha to the plaintiff Sh. R.L Jain (as an individual not as an official of any company) that the bank has confirmed him that the 'money will be credited to his account on June 3, 1991'.
105. From the pleadings or the submissions of the plaintiff, it cannot be treated as admission that the plaintiff while entering into the contract dt. 04.06.1991 was acting on behalf of the Managing Director of the defendant No.6 just for the reason that the defendant No.6 was made proforma party as the plaintiff was related to this company or some amount was arranged from the company as Managing Director of such company. It is also cannot be inferred from the testimony of PW1A that the plaintiff Sh. R.L Jain had entered into the contract with the defendant Nos. 1 and 2 for sale of the ground floor of the suit property, on behalf of the firm defendant No.6 in any manner, nor it could be inferred in any manner on the basis of the factual matrix of the facts came on record that Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 62 the loan transaction or the mortgage transaction that earlier taken place between the defendant Nos. 1& 2 and 6, was having any privity of contract in the contract dt. 04.06.1991. It is clear on record that the amount of Rs. 5 lacs borrowed by the defendant Nos. 1 and 2 from plaintiff was a loan and it does not change the nature of lender from individual to company if the amount is being arranged for payment to the defendant Nos. 1 and 2 from lender's company or from some relative i.e Promila Jain. Also, the defendant has not led any evidence to establish on record that the amount was not borrowed from the plaintiff Sh. R.L Jain in its individual capacity. The basic question is that an amount of Rs. 5 lacs was lent to the defendant No.1 and 2 from the plaintiff and that was confirmed by the defendant No.2 to the plaintiff about its receipt vide affidavit Ex.PW1A/17.
106. Thus, it cannot be said that the acknowledgment of receipt of some amount lent to First Party (Smt. K. Guha and Sh. D. Guha) from Second Party (Sh. R.L Jain) that was forming the part consideration of the agreement dt. 04.06.1991 changes the nature of 'individuality' of Second Party to infer that such party was entering into the contract on behalf of a firm M/s Reecha Manish Associates, the defendant No. 6 who was made the proforma party.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 63
107. On the basis of facts came on record, it is established by the plaintiff that the consideration amount was Rs. 6 lacs that was inclusive of Rs. 5 lacs already paid to the defendant Nos. 1 and 2 earlier in a loan transaction and Rs. One lakh was an interest on such amount.
108. The language in print and spirit of agreement dt 04.06.1991 is explicitly clear that it acknowledges the receipt of payment of Rs. 5 lacs by the First Party from the Second Party and also assuming the interest of Rs. one lakh over such payment for the period it was kept in use by the First Party. Acknowledging an earlier payment that was forming a part of consideration does not make it a tripartite agreement when the terms of the contract clearly makes it a bipartite agreement.
109. From the literal interpretation of the language used in the agreement, it is unambiguously clear that agreement dt. 04.06.1991 was entered between two parties i.e the First Party i. e the defendant No.1 and 2 and Second Party i.e the plaintiff, and both the parties were acting in their individual capacity and not in their professional capacity or on behalf of any company with which they were connected. Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 64
110. Therefore, it is observed that the Second Party i.e the plaintiff to the agreement dt. 04.06.1991 was a party to such contract in its individual capacity and not acted on behalf of the company M/s Reecha Manish Associates, nor as its partner or the Managing Director. Therefore, the provisions of section 69 of the Partnership Act are not attracted to the present suit nor the judicial opinion of the higher Courts expressed in the cases cited and relied upon by the defendants, are applicable to the present facts and circumstances of the case.
111. So far as the evidence of PW1/A is concerned, to testify certain factual matrix, that was basis of the contentions of the Ld. counsel for defendants, it is observed that it is well settled principle of law of evidence settled in the express provisions of Chapter VI of the Indian Evidence Act, 1872, that the documentary evidence excludes the oral evidence.
Also, as per section 94, 'when the language used in a document is plain in itself and when it applies accurately to the existing facts, evidence may not be given to show that it was not meant to apply to such facts'. Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 65
112. In the instant case, the agreement dt. 04.06.1991 clearly refers two parties to agreement and the plaintiff is being referred as Second Party without any qualification added to it as to whether he was a partner or 'karta' or Proprietor or Managing Director of any company when he entered into the contract and thus, it is observed that the plaintiff's suit filed in the individual capacity is not barred by any provisions of either the Registration Act or the Partnership Act.
113. Moreover, as per the submissions of Ld. counsel for the plaintiff, it is informed that Reecha and Manish are the granddaughter and grandson and Promila Jain is the daughter of Sh. R.L Jain, the plaintiff and M/s Reecha Manish Associates was a family business and the plaintiff was a 'karta' of such family and the money that was lent to the defendant Nos. 1 and 2 was arranged from the family members of the plaintiff and was paid to them in his individual capacity from his account and the payment that of was confirmed by the defendant Nos. 1 and 2 vide letter addressed to the plaintiff in his individual capacity vide letter dt. Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 66 31.05.1991 Ex.PW1A/19 and thus, there was no question of filing of the suit by the plaintiff on behalf of any partnership firm or requirement of registration of such firm for filing of the present suit.
114. Thus, on the basis of above law and facts, it is observed that the agreement dt. 04.06.1991 entered between First Party i.e the defendant Nos. 1 and 2 and Second Party i.e the plaintiff, for the sale of the ground floor of the suit property for the consideration amount of Rs.6 lacs was a contract within the provisions of Indian Contract Act and the plaintiff was competent to file the suit for performance for such contract.
115. The 'defence' produced by the defendant Nos. 1 and 2 i.e First Party to the contract to contest such performance, was that they were not competent to execute such agreement as they were not the owners of the suit property in question and it was Smt. Gayatri, the defendant No.3 who was actually the original allottee of the suit land under the perpetual lease with the Govt. of India.
Also, the 'second defence' taken was that the plaintiff's suit for specific performance for such contract was bad within the provisions of section 16 of the Specific Relief Act. In view of the findings/observations in Issue No.3, it is already held that the suit was not bad within provisions Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 67 of section 16 of the Specific Relief Act. Thus, this defence has already been adjudicated upon.
116. Now, come to the defence relating to the competence of the defendant Nos.1 & 2 for entering into the contract. The 'competence of parties' to contract as prescribed within the provisions of Indian Contract Act and Specific Relief Act , there is nothing in dispute that both the parties to the contract were major by age or they were of sound mind at the time of entering into the agreement. The competence of First Party was taken as a defence on the ground of lacking of their 'authority' over the subject matter to enter into the contract submitting that the First party was not the owner of the suit property.
117. It is worth reminding that the defendant Nos. 1 and 2 have admitted in their pleadings that they were the GPA holder of the suit property executed by the original lessee Smt. Gayatri Banerjee, the defendant No.3 and by virtue of the construction contract, as the original lessee was ousted of the suit property for noncomplying of the terms of contract and the defendant Nos.1 and 2 on expiry of the covenanted period of making of the payment under such contract by the original lessee, continued with the possession of such suit property thereafter and Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 68 were admittedly the landlords qua the respective tenants in the different portions of the suit property.
118. It is also worth to note that the defendant Nos. 1 and 2 have not disputed the execution of the agreement dt. 04.06.1991 or of 12.06.1991 with the plaintiff, but also it is revealed that they executed to other agreements to sell the different portions of suit property vide agreements dt. 09.10.1991 and 31.10.1991 with Smt. Leela Bhattacharya for the same suit property. He takes a defence that he was not competent or authorised as owner to execute such documents.
119. It is also worth to remind that the orders/judgments dt. 15.04.06 and 23.07.09 of the two Courts have already decreed two Suit Nos. 39/06 and 40/06 against the defendant Nos. 1 and 2 with respect to the same suit property in favour of Smt. Leela Bhattacharya directing them to execute the sale documents and the Court is not with the records as to whether such sale documents were executed or the judgments/orders have reached to the finality of its outcome. But one thing is clear that the defendant Nos. 1 and 2 had taken the similar plea before such Courts about their lacking of competence/authority for the want of ownership with respect to the suit property, such pleas of the defendant Nos. 1 and 2 Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 69 were declined and the specific performance of the contacts dt. 09.10.1991 and 31.10.1991 were directed to be performed by the two different Courts of law in such suits.
120. Now, come to the construction agreement/GPA executed by original lessee in favour of the defendant Nos. 1 and 2 referred in agreement dt. 04.06.1991. As per the construction agreement Ex.PW1/2 executed by Mrs. Gayatri Banerjee, the defendant No.4, in favour of Sh.D. Guha, the defendant No.2, the terms at page No.4 read :
'Should the lessee fails to make the payment of the entire cost plus 25 % profit thereon as aforesaid and makes there fund of the security money with interest @ 12 % within the stipulated period in strict conformity with the above, the Lessee hereby agree to convey and sell to the Contractor the leasehold rights interest, title, privileges, and appurtenances ...The structure and the building have been constructed by the Contractor himself at his own costs & expenses & not having been paid by the Lessee will remain the property of the contractor'.
121. It is an admitted case of the defendant Nos. 1 and 2 that the original lessee could not comply the terms of payment of cost of construction under the construction agreement and by virtue of such agreement, the lessee was constrained to convey and sell to the Contractor (defendant Nos. 1 and 2) the leasehold rights interest, title, privileges, and appurtenances. As per terms, the structure and building constructed by Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 70 the Contractor at his own costs and expenses for not having been paid by the Lessee remained the property of the Contractor (defendant Nos.1 & 2).
122. The same facts regarding the title and leasehold rights over the suit property with the defendant Nos. 1 & 2, the First Party, to agreement dt. 04.06.91 have been reproduced in verbatim, thus there was no question that the plaintiff had to investigate, enquire and search for more facts regarding the title/ownership of the defendant Nos. 1 and 2 with respect to the suit property, the subject matter of the agreement at the time of entering into the contract for sale of such portion of the suit property.
123. The above noted observations set it finally that the First Party i.e the defendant Nos. 1 and 2 was competent to enter into the agreement dt. 04.06.1991 and at the time of execution of such document, they were having the authority, capacity and leasehold rights over the subject matter of the agreement that was agreed to sell to the Second Party.
124. Ld. counsel for the defendants has also taken a plea that the agreement dt. 04.06.1991 was an unregistered document and as it creates a charge over the immovable property, it is a sham document for the want of registration.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 71
125. Ld. counsel for the plaintiff has countered such arguments on the ground that the proviso to section 49 clearly makes it explicit that an unregistered document affecting immovable property and required by this Act or within the provisions of Transfer of Property Act, may be received 'as evidence of a contract in a suit for Specific Relief Act, 1877 or as evidence of any collateral transaction, not required to be affected by registered instrument'.
126. Ld. counsel has also relied on the observations and judicial opinion laid by the Apex Court in the case titled as Raghunath & Or V/s Kedarnath AIR 1969 SC 1316 and of the Hon'ble High Court of Delhi in a case titled as Suresh Jain V/s Orient Caret Gallery Pvt. Ltd. reported interalia as MANU/DE/1588/2009, submitting that agreement to sell does not require registration. Registration shall be required in the eventuality when the sale documents were to be executed on handing over the peaceful vacant possession of the suit property in question.
127. I have gone through the provisions of section 49 of the Registration Act and the observations made in the authorities cited above. Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 72
Section 49 of the Registration Act, 1908, reads :
Effect of nonregistration of documents required to be registered No document required by section 17 (or by any provision of the Transfer of Property Act, 1882) to be registered shall :
a). affect any immovable property comprised therein, or
b). confer any power to adopt, or
c). be received as evidence of any transaction affecting such property or conferring such power, Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.
128. It is explicitly clear that agreement to sell dt. 04.06.1991 was a promise made by First Party to Second Party for sale of ground floor of the suit property for the consideration amount of Rs. 6 lacs and no possession was handed over nor the documents of sale were executed, thus, the unregistered agreement to sell dt. 04.06.1991 cannot be treated as sham document as it was forming a valid contract between two parties for sale of the subject matter. Thus, the contentions of Ld. counsel for the defendants are declined in this regard.
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 73
129. Ld. counsel for the defendants has also taken a plea that an agreement before an M.M's Court during proceedings under section 138 Negotiable Instrument Act had arrived for settling the amount that was involved in the loan transaction and thus, such amount cannot be treated as paid to the defendant Nos. 1 and 2 for the consideration of this agreement.
Moreover neither the tripartite mortgage documents nor loan transactions are the subject matter of this suit. The subject matter of the suit is agreements dt. 04.06.1991 and 12.06.1991 having nothing to do with the earlier transactions at the time of seeking of the specific performance under the Specific Relief Act.
130. Ld. counsel for the plaintiff has also countered this contention on the ground that such agreement before Ld. M.M was pertaining to the dishonourment of certain cheques under reference to such complaint and the 'settlement' was 'without prejudice to rights and liabilities of the parties' and the rights relating to agreement dt. 04.06.1991 have been exercised by the plaintiff in this suit qua agreement dt. 04.06.91, nothing to do with the earlier transactions of the defendant Nos. 1 and 2.
131. I have gone through the records placed before me. It is Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 74 observed that the defendants have led no evidence to show that such agreement was concluding the consideration part of the agreement dt. 04.06.1991 in any manner and the records make it clear that there is an admission and acknowledgment of receipt of an amount of Rs. 4 lacs plus Rs. One lakh by the First Party from the Second Party who were the parties to the agreement dt. 04.06.1991 and another Rs. One Lakh was an interest over Rs. 5 lacs. Such acknowledgment was again endorsed in another agreement dt. 12.06.1991. There is nothing on record that such payment was exhausted in any manner and was a subject matter to such agreement before Ld. M.M as records of such case were not proved and the records produced before the witness were not clarifying the position in this regard in any manner, thus this contention of the Ld. counsel for the defendants is also declined as such facts are not established on record.
132. Therefore, on the basis of above observations on law and facts, it is observed that not only the factum of contract vide agreement dt. 04.06.1991 is established on record by the plaintiff but also it was proved on record that the consideration amount was duly acknowledged as paid to the First Party by the Second Party. Therefore, such agreement is enforceable in law and the plaintiff is entitled for the relief of specific performance within the provisions of Specific Relief Act against the Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 75 defendants qua the contract dt. 04.06.1991 for sale of ground floor of the suit. The plaintiff is also entitled for the alternative relief of amount of Rs. 11,25,000/ in view of the terms laid in the agreement itself.
133. Now, come to the agreement dt. 12.06.1991. In view of the above discussions, observations and the findings on issue Nos.1 & 3 and also on 4 relating to the nature of agreement dt. 04.06.1991, the Court is of the view that even agreement dt. 12.06.1991 is a contract within the ambit of Indian Contract Act and the plaintiff was competent to seek its specific performance within the provisions of Specific Relief Act and the defences taken by the defendants No. 1 and 2 are not available with them to contest the specific performance of such contract, thus even the agreement dt. 12.06.1991 between the First Party (defendant Nos.1 & 2) and Second Party (the plaintiff Sh. R.L Jain) with respect to the sale of first floor and second floor of the suit property. Being a contract enforceable by law and the plaintiff competent to seek its performance, is entitled for the relief of specific performance.
134. So far as the performance of contract vide agreement dt. 12.06.1991 is concerned, it is an abundant duty of the Court to appreciate the nature of contract vide agreement dt. 12.06.1991. For the purpose of Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 76 appreciating the nature of contract, the relevant terms of such contract are detailed in para Nos. 48 to 50 in this judgment and the same are reproduced at the cost of repetition.
Now, come to the document Ex.PW1A/21 i.e the agreement to sell dt. 12.06.1991.
v). The document Ex.PW1A/21dt. 12.06.91 is clearly an agreement to sell the 1st and 2nd floors of the suit property.
vi). It was executed on 12.06.1991 between two parties i.e First & Second Party therein the defendant No.1 and 2 were jointly and severally called as First Party and Sh. R.L Jain, the plaintiff was the Second Party.
vii). The First Party were mentioned as the joint owners of the suit property by virtue of the construction agreement and the General Power of Attorney (GPA) executed by its allottee Smt. Gayatri Banerjee, the defendant No. 4 in favour of the defendant No.2.
viii). This agreement acknowledges the following facts:
a). The earlier agreement dt. 04.06.91 between the same parties qua the ground floor of the suit property ;
b). That the agreement dt. 04.06.1991 continues to subsist and shall remain in full force of operation heretofore.
c). That there was a delay due to certain circumstances and financial difficulties and the commitments made in agreement dt. 04.06.1991 regarding handing over the physical vacant possession of the ground floor of the suit property and also regarding the payment of interest on Rs. 6 lacs (as per terms of the agreement dt.
04.06.1991).
d). That the first floor was sublet to one German company and was in occupation of one Mr. Mitra, the General Manager of such company.
* v). That the First Party (defendant Nos. 1 and 2) has agreed that, in order to save and avoid payment and accumulation of interest @ Rs.15,000/p.m on Rs. 6 lacs (as per terms of the agreement dt. 04.06.1991) as such interest was a bar and burden on first and second floor (i.e remaining part of the suit property), in the event of the vacating of the first floor by Mr. Mitra, the possession that of will be given to the Second Party (i.e the plaintiff), and to none else. It was also agreed that if it is not vacated by 31.07.1991, its rent will be payable to the Second Party who shall have the right to receive such rent.
vii). It was also made clear that Dr. Mitra had paid Rs.4.5 lacs to the first party for passing of the rights of renting out and there was some balance of security amount payable to one M/s Avery India Ltd., the tenant of Sacrosanct, therefore, the Second Party had to pay the above mentioned sum to the respective tenants and then shall take possession of both the floors (i.e first and second floor of the suit property). Thus, the Second Party shall continue to have full ownership rights of all floors i.e the entire house No. H1520, Chitranjan Park, New Delhi (i.e the suit property) with all rights, title, interest that stands duly conveyed and Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 77 transferred by First Party to the Second Party.
Thus, as per this document Ex.PW1A/21, it was clear that the document was clearly an agreement between defendant No.1 and 2 (Smt. K.Guha and Sh. D. Guha) as First Party and the plaintiff (Sh. R.L Jain) as Second Party. The subject matter was the sale of first and second floor of the suit property. ** The consideration was (a) the interest on Rs. 6 lacs (as per terms of the agreement dt. 04.06.1991) (b) Rs.4.5 lacs that was paid by Dr. Mitra to the First Party (c). the balance of security amount payable to one M/s Avery India Ltd., the tenant of Sacrosanct.
As per agreement, the transfer and conveyance was of the vacant possession of first floor from Dr. Mitra and second floor from M/s Avery India Ltd., the respective tenants and the rent from Dr. Mitra till the vacation of the tenanted premises in possession and occupation of Dr. Mitra, in favour of Second Party. Thus, as per the terms of such agreement, the consideration was three fold i.e (a), (b) and (c), in the starred para (**) as mentioned above.
135. The terms of the contract makes this contract a contingent contract that was to be executed in the event of certain happenings in future i.e in the event of the vacating of the first floor by Mr. Mitra (as mentioned in starred (*) para).
136. It is observed that on the face of the decree/judgment dt. 15.04.06 with regard to the Suit No. 39/06 for the specific performance of the agreement dt. 09.10.91 in favour of the defendant no.4 with respect to Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 78 1st and 2nd floor of the suit property, the event of the vacating of the first floor or even the second floor by the occupant did not arise and the consideration amount forming part of (b) and (c) could not be executed by the plaintiff and there is nothing on record to show that such terms were complied with by either party to the contract.
Therefore, being the contract contingent in nature, cannot be directed to be specifically performed in favour of the plaintiff in the suit.
Thus, the issue No. 4 is decided in favour of the plaintiff and against the defendant Nos. 1 and 2 with the findings that the contract vide agreement dt. 04.06.1991 is enforceable and the plaintiff is entitled for the relief of specific performance of such contract and all the related consequential reliefs as per the terms of contract and even entitled for the alternative relief of an amount prayed by the plaintiff in this issue.
137. So far as the Issue No. 5 is concerned, the relief asked by the plaintiff is based on the attornment letters issued by the defendant Nos. 1 and 2 in favour of the plaintiff and the suit is filed for specific performance of contracts dt. 04.06.1991 and 12.06.1991 and not of the attornments letter, thus, the plaintiff is not entitled for this relief, based on attornment letter. However for the period from the date of contract on 04.06.1991 till the vacant possession is handed over to the plaintiff, as per Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 79 agreement dt. 04.06.1991, the plaintiff is entitled for the interest @ Rs. 15,000/ p.m on Rs. 6 lacs from 04.06.1991 till the possession is handed over and not the benefits derived.
138. Similarly, the Issue No.6 is not established for the relief claimed in para (d) of the plaint, as such relief was based on the attornment letters or the terms of agreement dt. 12.06.91, both these cannot be enforced in the suit as attornment letter was not a part of contract dt. 04.06.1991 and contract dt. 12.06.1991 could not be executed being contingent contract, that could never be concluded and part consideration amount could not be paid due to non happening of the event of vacation of the suit property (1st/2nd floor) by the tenants.
Thus, the issue Nos. 5 and 6 are not decided in favour of the plaintiff, being not established on record.
139. Issue No.7
vii).Whether the plaintiff is entitled for any interest, if yes, at what rate and for which period? OPP.
In view of the findings on the all above issues, the plaintiff is entitled not only for the principal amount to be calculated as per the terms of the contract and as per the entitlement allowed to him but also for the Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 80 interest on such amount @ 14 % per annum from the date of agreement i.e 04.06.1991 till its realization, in view of the legal mandate of section 34 of CPC as the transaction under adjudication is commercial in nature. This interest is allowed on the principle amount of entitlement as calculated above and it shall not be confused with the entitlement of the INTEREST @ Rs.15,000/ per month on the amount of Rs. 6 lacs as embedded in the agreement dt. 04.06.1991 itself from the date of agreement i.e 04.06.1991 till the date of peaceful vacant possession of the ground floor of the suit property is handed over to the plaintiff by the defendant Nos. 1 and 2 or till the realization of the alternative relief of money decree in favour of the plaintiff, as the case may be.
Thus, the interest @ 14 % is allowed to the plaintiff in this issue shall be in addition to the INTEREST @ Rs.15,000/p.m on the amount of Rs.6 lacs from 04.06.1991 till the date the possession of ground floor is handed over to the plaintiff.
140. Relief In view of the findings on the above mentioned issues, the suit Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 81 of the plaintiff is decreed accordingly with the following reliefs :
i). The plaintiff is entitled for the relief of specific performance of the contract vide agreement dt. 04.06.1991 against the defendant Nos. 1 and 2 who shall execute the sale documents with respect to the ground floor of the suit property after obtaining necessary permissions from the relevant authorities within a period of two months from the date of decree, and shall hand over the peaceful vacant possession of the ground floor with immediate effect.
Alternative relief to relief No. (i) As the decree with respect to the same portion i.e ground floor of the suit property vide orders/judgment dt. 23.07.09 of Sh. Dinesh Bhatt, the then Ld. ADJ, Delhi, has been passed against the defendant Nos. 1 and 2 in favour of one Smt. Leela Bhattacharya, then in case the execution of sale documents and handing over the possession have already been taken place to such decree holder, then, the plaintiff shall be entitled to receive an amount of Rs. 18 lacs which was the sale price in terms of agreement dt. 31.10.1991 between the defendant Nos. 1 and 2 herein and the said decree holders, who must have deposited Rs.17.5 lacs, in compliance to the directions of the said Court, as the defendant Nos.1 and 2 had already received Rs.50,000/ as advance money. If the aforesaid amount of Rs.17.5 lacs deposited in the Court concerned, but not yet got released by the defendant Nos. 1 and 2, then the plaintiff may get released the said amount from the Court itself and further Rs.50,000/ from the defendant Nos. 1 and 2. Further, if the Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 82 defendant Nos. 1 and 2 have already withdrawn the said deposited amount of Rs.17.5 lacs, then the plaintiff shall recover the entire amount of Rs.18 lacs from the defendant Nos. 1 and 2.
Also, on the amount of Rs.18 lacs, the plaintiff shall also be entitled for an interest @ 14 % p.a w.e.f 31.10.1991, the date of such agreement till the date of realization of such amount from the defendant Nos. 1 and 2, as such interest shall be a charge over the sale price for the sale of the portion of the suit property in question, because the agreement dt.04.06.91 is a prior agreement to 31.10.1991, but the decree with respect to agreement has been passed by the Court of law in favour of one Smt. Leela Bhattacharya whose right and title over such property has been accrued by virtue of such decree from the Court of law.
This arrangement is made as an alternative relief to the plaintiff to avoid any further multifarious litigations between Smt. Leela Bhattacharya, the defendant No.4 and the plaintiff, as both are the decree holders for the relief of specific performance of the agreements pertaining to the same portion of the suit property and for the fault/fraud committed by the defendant Nos. 1 and 2, these purchasers should not suffer.
It is made clear that in case, such portion of the suit property has not been handed over to the another decree holder Smt. Leela Bhattacharya till date, by any reasons whatsoever, Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 83 either due to nonexecution of the decree/or it has not reached to the finality, then the defendant Nos. 1 and 2 shall hand over the peaceful vacant possession of the ground floor of the suit property to the plaintiff with immediate effect.
ii). The plaintiff shall also be entitled for the INTEREST @ Rs.15,000/ p.m on the consideration amount of Rs. 6 lacs from 04.06.1991 till the realization of the amount of alternative relief of money decree granted or till the date of possession of the ground floor is handed over to the plaintiff, as the case may be.
This is made clear that this part of INTEREST shall not be in conflict with the earlier 'interest' awarded in favour of the plaintiff in relief (i), as this interest is as per the terms of contract and not a charge over the amount due.
The plaintiff shall also be entitled for the cost that includes the pleader's fees to the extent of Rs.15,000/ in addition to the Court fees.
Decree sheet be drawn accordingly.
File be consigned to R/Room.
Announced In the open Court (Dr. Archana Sinha)
29 Day of October, 2010. Addl. District Judge,
th
Centl.04, Tis Hazari Courts,
Delhi. 29.10.2010
Suit No. 439/08/94 R.L Jain V/s K. Guha & Ors. Page No. 84