S.K. Bagga vs Kasturi Lal

ORDER K.S. Gupta, J.

1. Plaintiff filed this suit, inter alia, alleging that defendant is a lessee of the land measuring 100 sq. yds., bearing No.8A/1 situated at Jheel Kuranja, Geeta Colony. He is also the owner of superstructure built over the said land comprising of two rooms, one store, kitchen, bath, latrine, stairs and courtyard. The defendant who is in possession of said property, agreed to sell it to plaintiff for a sum of Rs. 4,50,000/- under an agreement of sale dated 24th August, 1986. Out of the agreed sale consideration, defendant received Rs. 25,000/- at the time of execution of said agreement of sale and the balance amount was to be received by him on delivering the vacant possession of the property until 10th December, 1986. Defendant was to obtain sale permission from L & DO, Nirman Bhavan and to execute sale deed in favour of the plaintiff or his nominee within the said period. It is further alleged that an additional amount of Rs. 25,000/- was paid to the defendant on 4th September, 1986 and an endorsement retarding that payment was made on the reverse side of said agreement of sale. After having agreed to sell the said property, the defendant has been on the look out for alternate property for his residence. Having failed to arrange alternate property, the defendant asked the plaintiff for extention of time and with mutual consent the time to execute the sale deed etc. was extended upto 15th January, 1987 and an endorsement to that effect was made again on the reverse side of the said agreement of sale on 8th December, 1986. It is pleaded that before the expiry of extended period at the request of defendant, time was further extended upto 15th April, 1987 vide another agreement dated 14th January, 1987 which was executed in continuation of said agreement of sale dated 24th August, 1986.

2. It is also alleged that the plaintiff has been and is still ready and willing to perform his part of the obligations under the said two agreements. However, inspite of number of requests made by the plaintiff himself and also through the property dealer, the defendant has failed to perform his part of the obligation under the said agreements. He has even failed to take steps to get the permission renewed or time extended by L & DO for sale of the said property to the plaintiff. It is stated that if the defendant is unwilling to perform the obligations under the said agreements and dealer vacant possession of the said property to the plaintiff, he is willing to receive compensation to the tune of Rs. 4 lacs in addition to the refund of the amounts paid from the defendant. Plaintiff even sent a legal notice dated 4th April,1987 to the defendant and as is evident from the reply dated 13th April,1987 sent by the defendant, the latter has backed out of the transaction. It was prayed that a decree for specific performance of the agreements dated 24th July, 1986 and 14th January,1987 may be passed against the defendant and the plaintiff be put into possession of said property No. 8A/1. Jheel Kuranja, Geeta Colony. In the alternative, a decree for Rs. 4,50,000/- be passed against the defendant.

3. Defendant contested the suit by filing written statement . It is admitted that defendant is the owner of property No. 8A/1, Jheel Kuranja and he agreed to sell it under an agreement of sale dated 24th August, 1986 to the plaintiff . It is further admitted that the balance amount of Rs.4,25,000/- was to be paid by the plaintiff uptil 10th December, 1986 and the defendant was to execute the sale deed in favour of plaintiff after obtaining sale permission from L & DO upto the said date. It is alleged that the defendant had applied for sale permission and the L & DO communicated that permission by the letter dated 21st October , 1986 which was valid for 90 days from the date of issue. Plaintiff was duly informed about the grant of sale permission but the sale transaction could not be completed as the plaintiff was short of money. Receipt of additional amount of Rs. 25,000/- on 4th September, 1986 and making of endorsement regarding that payment on the back of said agreement of sale is not denied. It is alleged that it was at the request of plaintiff the defendant agreed to extend the time under another agreement dated 14th January, 1987 upto 15th February, 1987. It appears that in that agreement the numerical figure of '2' has been replaced by '4' unauthorisedly by the plaintiff. It is pleaded that the defendant had entered into an agreement dated 25th August, 1986 with B.L. Ahuja for purchase of property No. H-149 situated at old Gupta Colony for Rs. 4,62,500/- which transaction was to be completed on or by 10th December, 1986. Defendant also paid a total sum of Rs. 55,000/- towards earnest money and part payment to said B.L. Ahuja. Due to non-finalisation of sale transaction of the suit property within the stipulated period by the plaintiff, the defendant was unable to purchase the said property from B.L. Ahuja and had to incur loss to the extent of Rs. 35,000/- which Sh. Ahuja refused to return out of the total payment of Rs. 55,000/- made to him. Receipt of the plaintiff's notice dated 4th April, 1987 is admitted. It is stated that reply thereto dated 13th April, 1987 was sent by the defendant through councel. It is asserted that the plaintiff was unable to arrange the balance amount of Rs. 4 lacs upto the extended date of 15th February, 1987. Plaintiff had assured the defendant that he would be able to arrange the balance amount before the expiry of sale permission which he could not do. The amounts paid by the plaintiff stand forfeited because of the breach of conditions of the said agreements. It is denied that the plaintiff is entitled to claim any compensation form the defendant. It is alleged that the suit property is the only property owned by the defendant in Delhi wherein he is living with his family. It is emphatically denied that the plaintiff is entitled to any of the reliefs claimed in the suit .

4. In the replication, the plaintiff has controverted the averments made in the written statement besides reaffirming those made in the plaint.

5. On the pleadings of the parties, following issues were framed:-

1. Whether the plaintiff committed breach of clause 2 of the agreement dated 24th August, 86? If so, to what effect?OPD

2. Whether plaintiff was ready and willing to perform his part of the agreement dated 24th August, 86 preceding the date of the institution of the suit?OPP

3. Whether the agreement dated 14th January, 87 whereby the time for performing the agreement was extended, has been materially altered by plaintiff as alleged by defendant? OPD

4. Whether defendant was ready and willing to perform his part of the agreement ? OPD

5. Whether the plaintiff is entitled to decree for specific performance?OPP

6. Relief.

6. It is admitted case of the parties that defendant had agreed to sell property No.8-A/1, Jheel Kuranja, Geeta Colony to the plaintiff for a total sum of Rs. 4,50,000/- and he was to obtain the sale permission from L & DO and to execute sale deed uptil 10th December, 1986 on receiving the said amount minus Rs. 50,000/- which were received by him by way of earnest money/part payment under the agreement Ex. P-1 dated 24th August, 1986. With mutual consent of both the parties, the time was extended on 8th December,1986 upto 15th January, 1987. It is further the admitted case of parties that in continuation of aforesaid agreement Ex.P-1, another agreement Ex. P-2 was executed on 14th January, 1987. Plaintiff alleges that in terms of the agreement Ex. P-2, time was further extended upto 15th April, 1987 to execute the sale deed etc. by the defendant. However, contention of the defendant is that further time was extended only upto 15th February, 1987 and the plaintiff had interpolated the numerical figure of '2' to '41' regarding month in the agreement Ex. P-2. On this issue, from the side of plaintiff only the statements of plaintiff PW-4, Jagan Nath PW-5 and Jograj Pw-6 are relevant. Pw-4 has deposed that the agreement Ex. P-2 was typed out including the date as 15th April, 1987 first and thereafter he and the defendant signed it in the presence of attesting witnesses Jagan Nath and Jograj, property dealers through whom the deal was finalised. He denied the suggestion that date was changed from 15.2.1987 to 15.4.1987 by erasing and replacing the figure of '2' by '4' after the execution of agreement Ex. P- 2, PW-5 has deposed that agreement Ex. P-2 bears his signature in Urdu as a witness. In terms of the agreement Ex. P-2, the time was extended on 14th January, 1987 upto 15th April, 1987 by the parties in his presence and that of Jograj. One copy each of the said agreement was given to the defendant and Jograj. He acted as property dealer for the defendant while Jograj for the plaintiff. He emphatically denied the suggestion that at the time said agreement was signed, the date was mentioned as 15th February,1987 therein. PW-6 has deposed that he acted as property dealer on behalf of the plaintiff while Jagan Nath for the defendant. The date of 15th April, 1987 was there in the agreement Ex. P-2 before both the parties and the witnesses appended their signatures thereon. One copy of the said agreement was retained by him while another typed copy was given to the defendant and Ex. PW-6/2 is the copy of said agreement retained by him. In cross-examination, he stated that the figure of '4' occurring at two places in Ex. P-2 and also in Ex. PW-6/2 appears to have been overwritten. He, however, asserted that the said figure of '4' was already there in Ex. P-2 before the parties signed it. It was not even remotely suggested to PWs. 5 & 6 that either the deal for sale of said property No. 8-A/1, Jheel Kuranja was not finalised through them or that they did not sign the agreement Ex. P-2 simultaneously with the signing of this agreement by the plaintiff and defendant implying thereby that it is admitted by the defendant that the deal for sale of said property was settled through both these PWs and they were also present at the time the plaintiff and defendant appended their signatures on said agreement Ex .P-2. On the other hand, defendant as DW-1 has deposed that the agreement Ex. P-1 contains his signatures on each and every cutting whereas the agreement Ex. P-2 does not contain his signatures as regards overwritten dates at two places from 15.2.1987 to 15.4.1987. For that reason he says that the figure of '4' has been overwritten at two places in said agreement Ex. P-2. In cross-examination, he denied the suggestion that he had agreed to extend the time upto 15th April,1987 and that time was already typed in the agreement Ex. P-2 before the parties signed it.

7. It may be noticed that the defendant whom a copy of aforesaid agreement Ex.P-2 was given, himself had filed a photostat copy of that agreement Ex. D-1. In Ex. D-1 the extended time is noted as 15.4.1987 at two places. A bare perusal of the agreement Ex. P-2 indicates that there is double impression in the typed numerical figure of '4' pertaining to month of the extended period at two places. Had the numerical figure of '2' been altered to '4' in the agreement Ex.P-2 later on, there was no occasion of the extended time uptil 15.4.1987 being recorded in the said photostat copy of agreement Ex. D-1 filed by the defendant. It may further be noticed that in terms of the leagal notice Ex. P-3 dated 4th April , 1987 got sent by the plaintiff, the defendant was asked to execute the sale deed in plaintiff's favour within seven days of the receipt of notice. Notice Ex. P-3 also notices that in terms of said agreement dated 14th January,1987, the time for execution of sale deed was extended further upto 15th April,1987. Ex. D.-3 dated 13th April, 1987 is the reply to the said notice got issued by the defendant through counsel to the plaintiff. Significantly, in the reply Ex. D-3 it was not refuted that the extended date in the said agreement was uptil 15th February, 1987 instead of 15th April, 1987 as is now sought to be alleged by the defendant. Considering this omission, the circumstance referred to above coupled with depositions of Pws. 4, 5 & 6, I have no hesitation in holding that in the said agreement Ex. P-2 the extended time for performing the agreement of sale was not altered to 15th April, 1987 later on by the plaintiff. Issue is answered against the defendant.

8. These issues can be taken together for discussion. On the point of readiness and willingness, plaintiff as PW-4 has stated that he has been although ready to perform his part of the contract having already paid Rs.50,000/-. When the defendant failed to execute the sale deed despite requests, he got the leagal notice Ex.P-3 issued to the defendant. He also sent telegram Ex. D-4 to the defendant. On 14th April, 1987, he withdrew Rs. 4 lacs from the bank. On 15th April, 1987 he alongwith the property dealer waited at the office of Sub-Registrar, Krishna Nagar for the defendant to execute the sale deed in his favour but he did not turn up. He is interested in the suit property as he wants it for his personal use. In cross-examination, he denied the suggestion that he did not have enough money to pay the balance sale consideration to the defendant and that the defendant had contacted to buy a house form one B.L.Auja. As against this, defendant as DW-1 has deposed that he has four daughters and does not have a son. One of the daughters is residing in Delhi. He wanted to buy an, alternate house nearby his daughter's house after selling the suit property. So, on 25th August,1986 he entered into an agreement Ex. DW-1/1 with B.L. Ahuja to purchase his house situated in Gupta Colony which is nearer to his daughter's house. He was to complete the sale transaction under the agreement Ex.DW-1/1 upto 10th December,1986. Rs. 20,000/- and Rs. 25,000/- were paid by him to said B.L. Ahuja. He does not want to sell the suit property now because the agreement for purchase of alternate house with B.L. Ahuja fell through and he has got no other house to live in. He is willing to repay Rs. 50,000/- received form the plaintiff together with interest thereon. In cross-examination, he stated that previously also he had entered into an agreement of sale of the suit property with Ramesh Chander and Chander Mohan on 11th February,1985 for a consideration of Rs. 3,20,000/- and received Rs. 25,000/- by way of advance. Deal with B.L. Ahuja was independent of the agreement of sale entered into with the plaintiff. He denied the suggestion that no agreement of sale was entered into with B.L. Ahuja.

9. Submission advanced by Sh. M.L. Sachdeva appearing for the defendant was that the agreement of sale Ex.DW-1/1 entered into between the defendant and B.L.Ahuja for purchase of property No. H-149, Old Gupta Colony, Delhi could not materialise because of lapse on the part of plaintiff in not paying the balance sale consideration of Rs.4 lacs to the defendant upto 10th December,1986 which was also the last date stipulated in the said agreement for completion of sale transaction. In the absence of alternate accommodation, the defendant is not willing to sell the suit property to the plaintiff. In view of the said facts, this Court should decline the specific performance of the agreement of sale Ex. P-1 which is discretionary relief. Reliance was placed on the decision in Smt. Ranganayakamma Vs. N.Govinda Narayan, .

10. Ex. P-5 is the certified copy of the application filed on 19th September,1986 before the Competent Authority under Urban Land (Ceiling and Regulation) Act, 1976 seeking permission to transfer aforesaid property No.H-149 by said B.L. Ahuja. Ex. PW-2/3 is the certified copy of the proceedings in the said matter. Proceedings as recorded in Ex. PW-2/3 reveal that on 29th September,1986, the case was postponed to 6th October, 1986 for recording the statement of purchaser. As none was present either for the seller or purchaser on 6th October, 1986, the case was adjourned to 14th October, 1986. Same was the position on that date and the case was again adjourned to 21st October, 1986. On that date, as none was present for both the parties, said application was dismissed in default. Ex. PW-2/4 is the certified copy of the order made on 21st October, 1986 by the Competent Authority dismissing the said application in default. There is absolutely no material on the file to suggest that any step was taken thereafter by said B.L. Ahuja for restoration of the said application. In the absence of sale permission from the Competent Authority under the said Act, B.L. Ahuja could not have sold said property No.H-149 to the defendant. Suffice it to say that under the agreement of sale Ex.P-1 the outer date for execution of the sale deed in regard to the suit property was 10th December,1986 which admittedly came to be extended mutually on 8th December, 1986 to 15th January,1987 and again upto 15th April, 1987 under another agreement Ex. P-2. Since the application filed by said B.L.Ahuja seeking permission to transfer said property No. H-149 was itself dismissed on 21st October, 1986 in default, the plea raised by the defendant that the transaction for purchase of said property did not materialise as the balance payment of Rs.4 lacs was not made by the plaintiff to the defendant, has to be rejected being dishonest.

11. As regards second limb of argument referred to above that hardship would be caused to the defendant if the agreement of sale Ex. P-2 is enforced as he does not own any other house in Delhi, it may be noticed that the defendant was fully aware of such a hardship at the time he entered into aforesaid agreement of sale Ex.P-1 with the plaintiff. Alleged hardship would not bring the case within the ambit of clause(b) of sub-section (2) of Section 20 of Specific Relief Act. I am fortified in this view of mine by the decision in Yohannan & Anr. Vs. Harikrishnan Nair & Ors., Decision in Smt. Ranganayakamma's case (supra) has no applicability to the facts of this case as in that case it was found that the appellant was a widow with no children and only source of her livelihood was the rent of Rs. 50/- per month received from the tenant who was occupying a portion of the house which was the subject matter of the agreement dated 17th November, 1969 of which specific performance was sought by the respondent.

12. It was next urged on behalf of the defendant that the plaintiff was not willing and ready to perform his part of the obligation under the agreement of sale Ex.P-1 in as much as extention for making payment of the balance sale consideration of Rs.4 lacs was sought by him twice and despite that the payment was not made upto 15th February,1987. My attention was also drawn to the admissions made in cross-examination by PW-3 Jai Kumar Garg, Clerk,Bank of Baroda, Branch Jheel Kuranja. Reliance was further placed on the decisions in Smt. Raj Rani Bhasin & Ors. Vs. S. Kartar Singh Mehta, , R.K. Aneja Vs. Delhi Development Authority & Anr., 1996 I AD (Delhi) 909 and Smt. Kamal Rani Vs. Smt Chand Rani, .

13. It is admitted case of the parties that time for execution of sale deed as provided in the agreement of sale Ex. P-1 was mutually extended by the parties from 10th December, 1986 up to 15th January, 1987 and for further extention of time the agreement Ex. P-2 was executed between the parties on 14th January, 1987. On issue No. 3, it has been found that in terms of Ex. P-2, time was further extended up to 15th April, 1987 instead of 15th February, 1987 as alleged by the defendant. That being so, extentions of time beyond 10th December, 1986 on two occasions and the non- payment of balance sale consideration upto 15th February, 1987 by the plaintiff cannot be made the basis to contend now that the plaintiff had not been willing to perform his part of the obligation under the agreement of sale Ex. P-1. It is pertinent to note that in terms of the legal notice Ex. P-3 dated 4th April, 1987, the defendant was called upon by the plaintiff to execute the sale deed of the suit property in his favour within seven days of its receipt. Through the telegram Ex. D-4 dated 13th April, 1987, the plaintiff had asked the defendant to report for executing the sale deed on 15th April, 1987 before the Sub-Registrar, Krishna Nagar, Delhi. Receipts Exs. PW-4/1 & 2 seem to have been obtained by the plaintiff as proof of his having attended the office of Sub-Registrar, Krishna Nagar on 15th April, 1987. Certificate Ex. P-3/1 issued under the signature of the manager, Traders Bank Limited, Jheel Kuranja notices that a sum of Rs. 4 lacs was withdrawn by the plaintiff from his account No. 3251 on 14th April, 1987. Adverting to the statement of pw-3 Jai Kumar Garg, in cross- examination this witness has stated that the plaintiff had opened an account with Traders' Bank Ltd. on 19th April, 1986 by depositing a sum of Rs. 100/ and Rs. 56,000/- or Rs. 57,000/- were lying to the credit of the plaintiff in that account on 24th August, 1986. Credit balance in that account on 14th January, 1987 was Rs. 15,000/-. Despite the plaintiff, PW-4 having made the statement in examination-in-chief that he has been although ready to perform his part of the contract having already paid Rs. 50,000/-, except putting the suggestion in cross-examination that he did not have enough money to pay the balance sale consideration to the defendant, the plaintiff was not cross-examined specifically about his financial capability to pay the balance sale consideration within the stipulated period. In the absence of cross-examination to that effect, merely on the basis of said admissions made in cross-examination by PW-3, it is difficult to legally infer that the plaintiff had not been ready to perform his part of the contract within the meaning of Section 16(c) of the specific Relief Act. From the aforesaid evidence, it stands proved beyond doubt that the plaintiff had been willing and ready to perform his part of the contract under the agreement of sale Ex. P-1 at all relevant period. He even deposited the amount of Rs. 4 lacs on 26th April, 1987 with the Traders Bank Ltd. for a fixed term of two years against FDR No.029889/3/87 as is manifest from the order dated 28th April, 1987. This amount continues to be deposited till date. In Smt. Raj Rani Bhasin's case (supra), specific performance of the agreement of sale was declined mainly on the ground of purchaser insisting upon the sellers for a copy of the certificate from the District Judge in respect of Chandra Prakash, one of the minor sellers who had already attained the majority on 16th August,1962. In R.K. Aneja's case (supra), the contention of the plaintiff till the date of the filing of the suit and even till the date of addressing arguments had been that he was not under legal obligation to pay the balance amount as demanded by the defendant since the plot had not been developed by DDA. In that context, the declarations sought for in the suit were declined holding that there was no material on record to justify a conclusion that the plaintiff was ever ready and willing to perform his part of the contract by depositing the balance amount within the stipulated period from the date of acceptance of bid by the Lt. Governor In Smt. Kamal Rani's case (supra), specific performance of the agreement to sell was declined on the ground of time being the essence of contract and non-payment of Rs.98,000/- by the vendee within 10 days period. These decisions being distinguishable on facts, have no applicability to the facts of the present case. Said discussion covers the issues other than No. 4

14. As regards issue No.4 Dhara Singh , UDC from the office of L & DO as PW-1 has stated that Kasturi Lal had applied for sale permission of property No. 8-A/1, Jheel Kuranja to the L & DO on 16th February,1985 and permission was granted on 30th May, 1985. Ex. D-2 is the sale permission dated 21st October, 1986 which was valid for 90 days. The defendant did not apply for extention of sale permission thereafter. In cross-examination, the plaintiff, PW-4 denied the suggestion that after the execution of agreement Ex. p-2 he had assured the defendant that he would be able to arrange the balance money within a week before the sale permission expires. It is in the examination-in-chief of the defendant, DW-1 that he had applied to L & DO for sale permission of the suit property and the same was granted on 21st October, 1986 and was valid upto 20th January, 1987. Although under the agreement Ex. P-2, sale transaction was to be completed upto 15th February, 1987 but the plaintiff told him that he will be able to pay the balance money to him within a week but he did not keep the promise. In cross-examination, he admitted that he did not move the L & DO for extention of sale permission. It does not appeal to reasons that the plaintiff would have agreed to pay the balance sale consideration and get the sale deed of the suit property executed in his favour by 20th January, 1987 particularly when under the agreement Ex.P-2, the time for completing sale transaction had been extended on 14th January, 1987 upto 15th April,1987. Obviously, the defendant was not willing and ready to perform his part of the contract under the aforesaid agreement of sale Ex.P-1 as he did not seek the extention of sale permission beyond 20th January, 1987 nor attended the office of Sub-Registrar, Krishna Nagar to execute the sale deed on 15th April, 1987.

15. Issues 1 & 4 are answered against the defendant while issues 2 & 5 in favour of the plaintiff.

16. In view of the findings on said issues, the suit is decreed with costs for specific performance of the agreement Ex.P-1. The defendant will move the L & DO for grant of permission to sell property No.8-A/1, Jheel Kuranja, Geeta Colony in favour of the plaintiff and take all necessary steps in the matter within two weeks from today. L & DO will take appropriate decision within four weeks from the date of receipt of such a request from the defendant. Irrespective of the decision to be taken by the L & DO, the defendant would attend the office during working hours of the concerned Sub-Registrar on 25th April, 2000 and execute the sale deed with respect to the right, title and interest which he may have in the said property in favour of the plaintiff or his nominee as per the agreement of sale Ex.P-1 on receipt of the balance amount of Rs. 4 lacs in addition to delivering of vacant possession of property to the plaintiff. In the event of defendant failing to comply with any of the said directions, the plaintiff will be entitled to have the needful done by the Registrar of this Court.

17. Deposited amount together with interest be returned to the plaintiff.