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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (OS) NO. 2377/1995
Decided on: 24th April, 2012
SANJAY GUPTA ..... Plaintiff
Through : Mr. Manish Vashisht and
Mr. Dhruv Rohatgi, Advs.
Versus
RAM PRASAD ..... Defendant
Through : Mr. A.K. Gupta, Adv.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (ORAL)
1. Plaintiff has filed this suit for Specific Performance of Agreement to Sell dated 25th May, 1992, damages and injunction.
2. In nutshell, case of the plaintiff is that defendant had agreed to sell his 1/6th undivided share in the agricultural land admeasuring 55 bighas 5 biswas forming part of Village Bijwasan, vide an Agreement to Sell dated 25th May, 1992 (hereinafter " the Agreement"), for a total sale consideration of `23 lacs. Defendant received a sum of `2,50,000/- (Rupees Two Lacs Fifty Thousand CS(OS) 2377-1995 Page 1 of 12 Only), that is, `10,000/- (Rupees Ten Thousand Only) in cash and `2,40,000/- (Rupees Two Lacs Forty Thousand Only) vide cheque no. 890599 dated 25th May, 1992 towards earnest money, at the time of execution of the Agreement. Subsequently, on 30th April, 1992, another sum of `40,000/- (Rupees Forty Thousand Only) was paid to the defendant‟s son Mr. Daya Chand against receipt, leaving behind a balance of `20,10,000/- (Rupees Twenty Lacs Ten Thousand Only) towards sale consideration, payable at the time of execution of Sale Deed. In terms of the Agreement, defendant was required to obtain necessary „No Objection Certificate‟ under Section 269-UL of the Income Tax Act (hereinafter referred to as "Act") from the Appropriate Authority; „Clearance Certificate‟ under Section 34-A of the Act from the Income Tax authority and requisite „No Objection Certificate‟ from the office of ADM. „No Objection Certificate‟ under Section 269- UL of the Act was granted by the Appropriate/Competent Authority on 13th July, 1992. On persistent request of the plaintiff, defendant also obtained „Clearance Certificate‟ under the Act, on 23rd December 1994. However, he did not take any step to obtain „No Objection Certificate‟ from the ADM‟s office. On persuasion CS(OS) 2377-1995 Page 2 of 12 of the plaintiff, defendant represented that in case plaintiff was interested in completion of sale transaction he may pursue the matter and obtain „No Objection Certificate‟ from the ADM‟s office himself. Accordingly, plaintiff obtained „No Objection Certificate‟ from the said authority on 29th November, 1994. Thereafter, plaintiff repeatedly requested the defendant to execute Sale Deed and get the same registered with Sub-Registrar, after receiving balance sale consideration. He also requested the defendant to hand over vacant possession of the suit land to plaintiff, after executing the Sale Deed. However, defendant did not come forward to execute the Sale Deed, as prices of the property had gone up astronomically. Vide legal notice dated 12th May, 1995, defendant was called upon to perform his part of contract and to get the Sale Deed registered with Sub-Registrar‟s office after receiving balance sale consideration and also to hand over the vacant possession of the land to plaintiff but to no effect. Plaintiff was always ready and willing to perform his part of contract by paying balance sale consideration to defendant, on execution of Sale Deed. But it is the defendant who was not ready and willing to execute the Sale Deed. Hence the suit. CS(OS) 2377-1995 Page 3 of 12
3. In the written statement, defendant has not denied his signatures on the Agreement. His case is that the plaintiff had approached him for the purchase of his share in the land in question. It is the plaintiff who got the Agreement prepared, which was signed by the defendant. Defendant was an illiterate and uneducated agriculturist aged about 86 years and was not well- versed either with English or Hindi language. The Agreement was not read over to defendant by the plaintiff before he appended his signatures thereon. Plaintiff had obtained the signatures of defendant on certain other blank papers also on the pretext of making various applications before the concerned Government authorities, seeking necessary clearances. No Objection/Clearance Certificates had been obtained by the plaintiff. Defendant was always ready and willing to perform his part of agreement, but it is the plaintiff who failed to obtain requisite sale permissions from the Appropriate/ Competent Authorities, within the stipulated time. Plaintiff slept over the matter for more than three years, thus, was estopped from claiming any relief because of his own conduct. Agreement to Sell dated 25th May, 1992 was, otherwise, unenforceable as the defendant has transferred his share in land to CS(OS) 2377-1995 Page 4 of 12 one Sh. B.S. Mehra in the month of December, 1994 for valuable consideration. It was alleged that the suit is hopelessly barred by time. It was further alleged that the sale consideration of `23 lacs was only with regard to the land and not for the two tube-wells for which defendant had agreed to pay ` 1 lac each separately. Defendant has denied that he had received `2,90,000/- (Rupees Two Lacs and Ninety Thousand Only) from the plaintiff. Defendant further denied the allegation of the plaintiff that his son had received `40,000/- towards part sale consideration. Defendant has denied that the plaintiff had approached him from time to time for obtaining clearance from the Income Tax Authority or from ADM‟s office. It was alleged that plaintiff had never contacted the defendant in this regard as he had already obtained the signatures of defendant on certain blank documents for this purpose. It was denied that plaintiff was always ready and willing to perform his part of contract by paying the balance sale consideration.
4. Plaintiff has filed replication, whereby he has denied the averments made in the written statement and has reiterated and reaffirmed the averments made in the plaint.
5. From the pleadings of the parties following issues were CS(OS) 2377-1995 Page 5 of 12 framed on 17th May, 2006:-
1 Is the suit barred by time?
2 Did the original defendant sign an
Agreement to Sell on 25.5.1992 without
knowing contents of the document? If so, to
what effect?
3 Has the plaintiff always been ready
and willing to perform his part of the
contract?
4 Is the plaintiff entitled to decree of
Specific Performance of agreement dated
25.5.1992?
5 To what relief, if any, is the plaintiff
entitled?
6. Plaintiff has filed his own affidavit. However, he has not stepped in the witness box for his cross-examination inspite of umpteen number of opportunities having been granted to him between 17th May, 2006 till 27th November, 2010. Ultimately, plaintiff‟s evidence was closed on 27th November, 2010. Plaintiff filed Chamber Appeal under Rule 4 of Chapter II of Delhi High Court (Original Side) Rules, 1967 being OA No. 96/2010 against the order of Joint Registrar whereby plaintiff‟s evidence was closed. However, O.A. No. 96/2010 was dismissed on 6th CS(OS) 2377-1995 Page 6 of 12 September, 2011. Plaintiff further pursued the matter by filing FAO (OS) No. 490/2011 before the Division Bench. However, after arguing at length before the Division Bench plaintiff has withdrawn the Appeal. Since the plaintiff has not stepped in the witness box for his cross-examination, his affidavit in examination- in-chief cannot be read and it has to be taken that plaintiff has not led any evidence in support of his case.
7. I have heard learned counsel for the parties and perused the record and issuewise findings are as under:-
Issue Nos. 1 and 2
8. Onus to prove above issues was on the defendant, which he has failed to discharge. Since plaintiff did not adduce any evidence, defendant has also not examined any witnesses in his defence. Counsel for the defendant made a statement before the Joint Registrar on 7th December, 2011 to the effect that since plaintiff had not led any evidence, defendant was also not interested in adducing any evidence. Both these issues have remained unproved and are decided in favour of the plaintiff and against the defendant.
Issue Nos. 3 and 4 CS(OS) 2377-1995 Page 7 of 12
9. Both these issues require common discussions, thus, are decided together. Learned counsel for the plaintiff has vehemently contended that the signatures on the Agreement have not been disputed by the defendant. The only plea taken by the defendant was that he had signed the Agreement merely on the saying of plaintiff, without understanding the contents of the Agreement, as he was an illiterate and uneducated person and was not well-versed with English or Hindi language. Thus, the same was not binding on him. However, defendant has not led any evidence to prove his this defence. Signatures on the Agreement to Sell have been admitted by him. Thus, Agreement to Sell has to be read against the plaintiff even without any formal proof. This document is not required to be proved by the plaintiff since defendant has admitted his signatures on the Agreement to Sell and has failed to prove defence taken by him. Thus, it is contended that the plaintiff is entitled to a decree of specific performance straightway.
10. I have considered this contention of the learned counsel but I do not find any force therein. Before relief of specific performance can be granted, which otherwise is a discretionary relief, plaintiff has to prove that he was ready and willing to perform his part of CS(OS) 2377-1995 Page 8 of 12 contract, more particularly, by offering the balance sale consideration. It is for the plaintiff to prove that he was having sufficient funds with him equivalent to the balance sale consideration to offer the same to the defendant as also the fact that he was in a position to perform any other obligation which he was to perform under the contract. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the agreement. Distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the CS(OS) 2377-1995 Page 9 of 12 same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract.
11. In P. D‟Souza v. Shondrilo Naidu (2004) 6 SCC 649, Supreme Court held that it is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstance of each case. No strait-jacket formula can be laid down in this behalf. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. In R.C. Chandiok and Anr. vs. Chuni Lal Sabharwal and Ors. (1970) 3 SCC 140, Supreme Court CS(OS) 2377-1995 Page 10 of 12 held that "readiness and willingness" cannot be treated as a strait- jacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
12. In this case, onus to prove that plaintiff was ready and willing to perform his part of contract was on the plaintiff, which he has failed to discharge. No evidence has been adduced by the plaintiff to show that he was having the payment ready with him and was always ready and willing to perform his part of contract. He has neither stepped in the witness box to depose that he had contacted the defendant on many occasions and offered to pay the balance sale consideration nor any evidence has been led to show that he was having balance sale consideration ready with him and he offered the same to defendant. In absence of any evidence having been adduced by the plaintiff that he was ready and willing to perform his part of contract, in my view, plaintiff is not entitled to a decree of specific performance merely because existence of Agreement to Sell is not in dispute.
13. Plaintiff has also failed to prove that he is entitled to the damages as claimed in the suit, thus, both the above issues are CS(OS) 2377-1995 Page 11 of 12 decided against the plaintiff.
Issue no. 5
14. In view of the findings returned on issue nos. 3 and 4, in my view, plaintiff is not entitled to any relief.
15. Suit is, thus, dismissed. No order as to costs.
A.K. PATHAK, J.
APRIL 24, 2012 rb CS(OS) 2377-1995 Page 12 of 12