Shri Ramesh Kumar vs Sh. Chaman Lal And Anr.
2002 Latest Caselaw 1686 Del

JUDGMENT

R.C. Chopra, J.

1. This suit for specific performance of an agreement to sell and in the alternative recovery of damages in the sum of Rs. 6 lakhs and permanent injunction was filed by the plaintiff against the defendants.

2. The defendants were proceeded against ex parte vide orders dated 24.4.1995. In support of his case the plaintiff filed his affidavit and proved on record the documents Ex.P1 to Ex.P-17. The agreement to sell is Ex. P-8

3. I have heard learned counsel for the plaintiff. I have gone through the records.

4. Briefly stated, the case of the plaintiff is that in the year 1977 his firm M/s Joti Ram Ramesh Kumar was inducted as a tenant in a shop in property No.83, Rampuri, Harijan Colony, Kalkaji, New Delhi on a monthly rental of Rs. 300/- The defendant No.1 received advance rent also. In the year 1984 the plaintiff's father Joti Ram dies and such the plaintiff became the sole proprietor of firm M/s Joti Ram Ramesh Kumar. He continued as a tenant in the shop. In the year 1985 the plaintiff sought permission form defendant No.1 to expand the area of his shop and in consideration thereof the rent was enhanced from Rs. 300/- to Rs. 500/- per month. In the month of November, 1987 the defendant No.1 approached the plaintiff and told him that he was in dire need of money and expressed his desire to sell the suit property No.83, Ram Puri, Harijan Colony, Kalkaji, New Delhi to him. On 30.11.1987 the plaintiff advanced a sum of Rs. 20,000/- to defendant No.1 as earnest money vide Ext.P-5 for the sale of the suit property for a total consideration of Rs. 6 lakhs. On 5.6.1988 the defendant No.1 received a further sum of Rs. 23,000/- vide Ext. P6 assuring the plaintiff to get the terms and conditions of the sale reduced into writing. Receipt dated 5.6.1988 was executed in regard to this amount also. On that very day the defendant No.1 again approached the plaintiff in the evening and requested him to pay a further sum of Rs. 2 lakhs towards the part payment of the sale consideration and agreed to execute an agreement to sell. He executed a receipt Ext. P-7 in the sum of Rs. 2 lakhs for the amount received by him from the plaintiff An agreement to sell dated 5.6.1988 Ext. P-8 was reduced into writing. The balance consideration of Rs. 3,57,000/- was payable by the plaintiff to defendant No.1 on completion of certain formalities at the time of the registration of the sale deed. The defendant No.1 had represented to the plaintiff that he was the sole and absolute owner of the suit property and there was no co-sharer in the suit property. This property consisted of three rooms, two court yards and a boundary wall including the shop of the plaintiff.

5. The plaintiff alleged that after the agreement to sell dated 5.6.1988 and receiving the part payment the defendant No.1 did not execute the sale deed inspite of repeated requests. The plaintiff was always ready and willing to perform his part under the agreement dated 5.6.1988. In the month of April, 1989 the defendants tried to take forcibly possession of the property in question from the plaintiff and as such the plaintiff was constrained to file a suit for permanent injunction against the defendants in the Court of sub Judge, Ist Class, Delhi. On 8.9.1989 the plaintiff received a letter addressed to defendant No.1 by Land & Development Officer, Ministry of Urban Development, Nirman Bhawan, New Delhi, which was wrongly delivered to the plaintiff as during those days the defendant No.1 was not residing in the property in question. The said letter Ext. P-13 dated 3.6.1971 revealed that the suit property was in the joint name of defendant No.1 and defendant No.2 the sister of defendant No.1. The plaintiff alleged that defendant No.1 had played a fraud upon him by representing that he was the sole owner of the suit property. When the plaintiff contacted defendant No.1 he showed him a general power of attorney dated 2.11.1987 executed by defendant No.2 in his favor and a relinquishment deed also dated 2.11.1987 by which the defendant No.2 had relinquished her rights in favor of defendant No.1. In the meantime the defendant No.2 filed an eviction petition against the plaintiff which is pending in the Court of Addl. Rent Controller, Delhi. The plaintiff alleged that the defendants had colluded and connived with each other and were harassing the plaintiff by not performing their part of the contract. The plaintiff pleaded that the defendants were bound to abide by the agreement to sell dated 5.6.1988 and as such the suit for the specific performance of the agreement. The plaintiff prayed that a decree for specific performance of the agreement dated 5.6.1988 be passed in his favor and against the defendants directing them to sell the suit property in his favor by execution and registration of the sale deed. In the alternative it was prayed that a decree for recovery of damages in the sum of Rs. 6 lakhs with interest @ 18 per cent per annum be passed in favor of the plaintiff and against the defendants. Decree for permanent injunction was also prayed restraining the defendants from selling, transferring, alienating, encumbering or parting with the possession of the property in question in favor of any person except the plaintiff. Costs of the suit were also claimed.

6. The plaintiffs case is supported by his affidavit in which he has deposed about the material facts pleaded in the plaint and added that the defendants were threatening to sell, transfer or dispose of the property. It was also pleaded that the prevailing market price of the property was not less than Rs. 20 lakhs and as such as defendants were not willing to sell the property to him. He has proved on record the documents Ex. P-1 to Ex.P17.

7. I have heard learned counsel for the plaintiff. I have gone through the records.

8. The ex parte evidence produced on record by the plaintiff clearly establishes that the plaintiff and defendant No. 1 had entered into a deal for the sale of the suit property for a sum of Rs. 6 lakhs and vide receipts Exts. P-5, P-6 and P-7, the defendant No.1 had received a sum of Rs. 2,43,000/- from the plaintiff as part payment towards the total consideration agreed between the parties. The Agreement to Sell between plaintiff and defendant No.1 has been proved on record as Ex.P-8 which stipulated that the balance consideration of Rs. 3,57,000/- was to be paid by the plaintiff to defendant No.1 at the time of the registration of the sale deed. However, the plaintiff himself has proved on record the letters Ext. P-12 and P-13 issued by L&DO, which fell into the hands of the plaintiff as a matter of chance only, to show that the suit property was not exclusively owned by defendant No.1. According to Ex. P-13, this property was owned by the father of defendant No.1 and 2 and after his death both the defendants who are brother and sister had become co-owners thereof. Ex. P-13 is a copy of the order passed by L&DO mutating the suit property in the names of both the defendants. It is, therefore, clearly shown on record that the defendant No.1 was misleading the plaintiff by representing that he was the owner of the suit property. The receipts and the agreement sell executed by defendant No.1 nowhere stated that defendant No.2 was also the co-owner of the property in question or had made any relinquishment deed. It has also come in evidence that defendant No.2 had even filed an eviction petition against the plaintiff which was pending in the Court of Additional Rent Controller Delhi. The photo copies of the Relinquishment Deed Ex. P-15 and the General Power of Attorney Ext. P-16 alleged to have been executed by defendant No.2 in favor of defendant No.1 cannot be acted upon for the reason that these two documents pertain to transfer of rights in the immoveable property of the value of more than Rs. 100/- but are not registered documents. Therefore, these documents cannot be looked into by the Court for holding that the defendant No.2 had relinquished her rights in the suit property in favor of the defendant No.1.

9. Under these circumstances, this Court is unable to hold that a valid agreement to sell and come into existence between the plaintiff and defendants and as such the plaintiff is entitled to a decree for specific performance of the agreement to sell dated 5.8.1988. Therefore, this Court is not inclined to pass a decree for specific performance of the agreement as prayed.

10. It is however proved on record that the defendant No.1 by making misrepresentations had included the plaintiff to pay him a sum of Rs. 2,43,000/-. The plaintiff is entitled to the refund of this amount from defendant No.1 in as much as the agreement between the parties is incapable of performance by defendant No.1 alone. The plaintiff and claimed damages in the sum of Rs. 6 lakhs as an alternative relief. In par 26 of his affidavit, the plaintiff has stated that he is entitled to claim of sum of Rs. 6 lakhs from the defendants as damages being the difference in price settled and the market price of the property in question. In view of this affidavit, this Court is of the considered view that apart from the refund of Rs. 2,43,000/- the plaintiff is entitled to a sum of Rs. 3,50,000/- as damages from defendant No.1 on account of his failure to perform his part of the agreement on account of which the plaintiff has suffered a lot of inconvenience and harassment and has failed to own a property of his choice.

11. Accordingly an ex parte decree in the sum of Rs. 5,93,000/- with costs is passed in favor of the plaintiff and against defendant No. 1. The plaintiff is entitled to pendentelite and future interest also on the decretal amount @ 12 per cent per annum from the date of the filling of the suit till realisation. The suit against defendant No.2 stands dismissed for want of privity of contract between plaintiff and defendant No.2.