Sh. Raj Kumar Sharma vs Smt. Pushpa Jaggi And Ors.
2005 Latest Caselaw 1586 Del

JUDGMENT

Swatanter Kumar, J.

1. Sh. Goverdhan Lal Jaggi, owner of plot numbers 58, 59, 68A and 60B, measuring about 850 sq. yds. forming part of khasra No. 2/19, situated in the Revenue Estate of Village Kakrola in the abadi known as Nidhi Vihar, Vipin Garden, Uttam Nagar, New Delhi entered into an agreement to sell dated 4th March, 2005 in favor of the plaintiff. In terms of the agreement a sum of Rs. 5 lacs was paid as earnest money (bayana) and the balance amount was to be paid by the plaintiff to the seller on or before 25th June, 2005, upon execution and registration of the sale deed in favor of the plaintiff or his nominee in terms of the said agreement. According to the plaintiff, after execution of the said agreement, the plaintiff had approached Sh. Goverdhan Lal Jaggi for taking actual measurement of the land as the same was postulated under the terms of the agreement. He required the said person to be present on site for such measurement. Unfortunately, Sh. Goverdhan Lal Jaggi died on 9th April, 2005, leaving behind his wife and children as his legal representatives, who have been imp leaded in the present suit as defendants. After death of Sh. Goverdhan Lal Jaggi on 9th April, 2005, the plaintiff approached the defendants for taking actual measurement of the land on the spot, but they avoided to do the same, which resulted in issuance of a legal notice by the plaintiff to the defendants on 26th April, 2005. This notice was replied to by the defendants vide their letter dated 4th May, 2005. In this reply a vague stand was taken by the defendant. It was stated that they were not having any knowledge about the transaction as that late Sh. Goverdhan Lal Jaggi had never informed them of the said transaction. They asked for a copy of the documents. It was averred that the notice issued by the plaintiff was vague and uncertain but it was stated that the property, subject matter of the sale deed, was subject to sale on 'as is where is' basis and the title documents showed the area to be 850 sq. yds. The plaintiff and defendant No. 2 met on 19th May, 2005 for extension of time, for completion of the sale transaction. In that meeting, according to the plaintiff, the time for performance was extended up to 25th July, 2005 and it was also agreed by the defendant No. 2 that they would have the actual measurement of the land taken on spot before completion of the sale by the extended date and reduce the total cost of the land, if the area of the land was found to be less. After the meeting of 19th May, 2005, the plaintiff and the defendant No. 2 fixed the time on several occasions but the defendants did not turn up to measure the plot of the land. The plaintiff then in absence of the defendants took the measurement of the land and found the area to be 700 sq. yds. and thereafter he sent another legal notice dated 18th July, 2005 to the defendants requiring them to complete the work of actual measurement of land by 21st July, 2005 and accept the balance sale consideration and execute the sale deed positively by 25th July, 2005. It is further averred in the plaint by the plaintiff that instead of completing the contractual obligations, the defendants sent a reply to the notice on 20th July, 2005 alleging that as the cost of the land was agreed to be reduced by Rs. 1 lakh in all, in the meeting dated 19th May, 2005, no actual measurement was required to be taken and if the balance amount of consideration was not paid by the extended date, the earnest money paid would stand forfeited. The plaintiff was also informed by the defendants that if the transaction is not completed by 25th July, 2005, the plaintiff would have no right or interest in the said property.

2. The plaintiff has specifically pleaded that it was never agreed by him that the property can be sold to the plaintiff by reducing the sale consideration by Rs. 1 lakh. He stated that the defendants were trying to sell the property to third parties and were finding an excuse to wriggle out of the terms and conditions of the agreement executed between him and Late Sh. Goverdhan Lal Jaggi. According to the plaintiff he was always ready and willing to perform his part of the agreement and performance of the contract is not likely to cause any hardship to the defendants and damages would not be an adequate relief for breach of the terms of the agreement. The defendants had already taken and enjoyed a sum of Rs. 5 lacs which was paid by the plaintiff to the defendants. Equities are stated to be in favor of the plaintiff and on these facts, the plaintiff has prayed for passing of a decree for specific performance in favor of the plaintiff and against the defendants after taking actual measurement of the land in question in terms of the contract dated 4th March, 2005. Besides praying for a decree for specific performance and execution of the sale deed in his favor by the defendants, the plaintiff has further prayed in the alternative, compensation and damages of Rs. 5 lacs in addition to return of the earnest money of Rs. 5 lacs already paid by him.

3. The suit was contested by the defendants who filed a detailed written statement taking a preliminary objection that the suit is liable to be dismissed for mis-joinder of necessary parties as one of the heirs of deceased Sh. Goverdhan Lal Jaggi i.e. daughter namely Smt. Renu Oberoi was not imp leaded as one of the defendants. It is also stated in the written statement that the plaintiff has not come to the court with clean hands and has concealed material facts from the court. He has concealed, particularly the agreement dated 19th May, 2005 which amended the earlier agreement dated 4th March, 2005. The plaintiff cannot be permitted in law and equity, to avoid and evade the consequences of his own breach by resorting to this suit. According to the defendants the plaintiff was never willing and capable of performing his part of the contract and no valid cause of action has been disclosed in the plaint, as such the plaint of the plaintiff is liable to be rejected and suit of the plaintiff is liable to be dismissed. On merits, the case pleaded by the defendants is that Sh. Goverdhan Lal Jaggi, was owner of the plots in question and had agreed to sell the property to the plaintiff for a sum of Rs. 39, 50,000/- , but it was not correct that the price of the plot was to be calculated at a price of Rs. 4647/- per square yds. The whole land was to be sold on the basis 'as is where is' for the consideration agreed. It is stated that after the agreement dated 4th March, 2005, the parties had entered into an agreement dated 19th March, 2005 wherein the consideration was reduced by a sum of Rs. 1 lakh and the period for execution of the sale deed was extended by one month. There being no stipulation in either of the agreements for actual measurement of the plot, there was no occasion for the parties to measure the land before execution of the sale deed. It is denied that the plaintiff had ever approached Sh. Goverdhan Lal Jaggi after 4th March, 2005 for the purposes of taking actual physical measurement of the plot. In fact, such a plea would be contrary to the contents of the written contract between the parties dated 4th March, 2005. Notice dated 26th April, 2005 was received by the defendants from the plaintiff and was replied to vide reply dated 4th May, 2005. The stand taken by the defendants can be summed up in what the defendants have stated in paragraph 5 of the written statement, which reads as under:-

It is incorrect and is hereby denied that there was any Agreement between them to have the actual measurement of the plot taken before the actual completion of the sale and to reduce the total cost of the land accordingly. On the contrary, on 19.05.2005, it was agreed by the parties in writing under their signature and in the presence of Ghanshyam, the broker involved in the deal between the parties, who also attested the said writing by his signature that the final sale price of the land in question would be reduced by Rs. One Lakh to make it Rs. 38,50,000/-. Since this Agreement took place between the parties after the exchange of the above stated legal correspondence between them, and after both of them were aware of the respective positions of each other, it left no scope for any determination or calculation of the final price after taking the measurements of the plot. Any ambiguity in the Agreement dated 04.03.2005 as to the final price of the land stood finally removed. Both parties then knew for sure that the actual area of the plot in question could be less than the stated 850 sq. yards; the plaintiff was given the beenfit of doubt by reducing the net price of the plot by Rs. One Lakh, and time was extended till 25.07.2005 to enable him to arrange for the balance price. The defendants deny anything contrary to the said written Agreement dated 19.05.2005. It is incorrect and is hereby denied that any Agreement took place between the parties to take the actual measurement of the plot. If it were so, it would have been stipulated in the Agreement dated 19.05.2005. It is incorrect and is hereby denied that after 19.05.2005, many meetings were fixed between the plaintiff and the defendant No. 2 to 4 to take the actual measurement of the plot in question. All averments to this effect are false and are hereby specifically denied. No details of the place, date and time when the alleged meetings were scheduled has been indicated. The contents of the amending agreement dated 19.05.2005 also completely rule out any such course of action. The notice dated 18.07.2005 of the plaintiff was meant only to introduce a non-existent issue, and to cover up his own inability to arrange for the balance of the price. The reply of the defendants dated July 20, 2005 clarified the position. The plaintiff has no cause of action to file the suit under reply.

4. To this written statement of the defendants, the plaintiff had filed a detailed replication. In the replication, besides reiterating the case pleaded, the plaintiff has denied that he had agreed to reduction of the total sale consideration by Rs. 1 lakh and the plot was to be sold on 'as is where is' basis. It is stated that time for performance of the agreement was extended up to 25th July, 2005. It is also stated that on 19th May, 2005 only the negotiations mentioned in the plaint had taken place and there was no objection for measurement of the said plot, by the defendants. It is denied that agreement dated 4th March, 2005 was amended by the alleged agreement dated 19th may, 2005. On the pleadings of the parties the following issues were framed, vide order dated 19th October, 2005:-

1. Whether the plaintiff has breached the terms of the agreement dated 4th March, 2005 and subsequent alleged agreement dated 19th May, 2005, and if so, its effect? OPD.

2.Whether the plaintiff has not approached the Court with clean hands and has concealed the stipulations of the alleged agreement, and is not entitled to the specific performance of contract? OPD.

3.Whether the plaintiff has been ready and willing to perform his part of the contract dated 4th March, 2005? OPP.

4.Whether the plaintiff is entitled to the specific performance of the contract dated 4th March, 2005? OPP.

5.If the above issue is decided against the plaintiff, whether the plaintiff is entitled to specific performance of the agreement dated 4th March, 2005 as amended by agreement dated 19th May, 2005 as alleged in the written statement? If so for what consideration? OPD.

6.Whether the area of 850 sq. yds. of land agreed to be sold by the deceased Goverdhan Lal Jaggi on 4th March, 2005 is available for sale on the spot, and if not, its effect? Onus on the parties.

7.Whether the plaintiff in the alternative is entitled to damages, in lieu of specific performance of the contract dated 4th March, and if so to what amount of damages? OPP.

8.Whether the plaintiff is entitled to the relief of injunction, as prayed for? OPP.

9.Relief.

5. Before proceeding to discuss the merits of the contentions raised by the learned counsel appearing for the parties in relation to various issues afore-referred, it may be noticed that the objection with regard to non-joinder of necessary parties taken by the defendants in the written statement was rendered inconsequential as the plaintiff had filed an application being IA No. 8100/2005 under Order 1 Rule 10 read with Section 151 of the Code of Civil Procedure for impleading Smt. Renu Oberoi, W/o Sh. Ajay Oberoi, daughter of late Sh. Goverdhan Lal Jaggi as defendant. Vide order dated 19th October, 2005, the said application was disposed of and the amended memo was permitted to be taken on record as counsel for the parties had stated that they do not wish to amend the contents of the pleadings in this regard. Consequently, the objection taken in the written statement is of no consequence as all the heirs of the deceased are admittedly on record and were parties to the suit. In fact, the learned counsel appearing for the defendants had also appeared for the newly added defendant namely Smt. Renu Oberoi. This objection, thus, need not even be considered by the court on merits.

6. It will be useful to discuss these issues collectively and at the first instance as adjudication of all other disputes would depend materially on the findings recorded by the court on these issues. Of course, in the reply to the notice of the plaintiff dated 26th April, 2005 Ex.P2, the defendants vide Ex.P3 (reply dated 4th May, 2005) had denied the knowledge about the transaction and had called the notice of the plaintiff as vague and uncertain, but at the same time, had admitted certain facts. But, in the present written statement there is no dispute to the execution of the agreement dated 19th May, 2005, Ex.P1. Ex. P1 is the agreement which is signed by Sh. Goverdhan Lal Jaggi, the seller, predecessor-in-interest, of the defendants and even witnessed by Smt. Pushpa Jaggi, Defendant No. 1 herself. Thus, the stand taken by the defendants in Ex.P3 certainly does not inspire confidence and cannot be believed. The defendants were obviously aware of the terms of the agreement and the commitments made by their father/husband. Defendant No. 1 being the attesting witness to the said agreement, Ex.P1, and having signed the same, cannot, in fact and in law plead ignorance about the contents of the agreement. Thus, Ex.P1 has duly been signed and in fact, even stands admitted between the parties.

7. The most crucial clause of Ex.P1, around which the entire controversy revolves is as under:-

And Whereas the First Party has agreed to sell/transfer the said property to the Second Party who has agreed to purchase the same at the rate of Rs. 4,647/- approx. (Rupees Four thousand Six hundred & forty Seven Only), per sq. yds. (for the total consideration amount of Rs. 39,50,000/- (Rupees Thirty Nine Lacs & fifty thousand Only).

8 Admittedly under Ex.P1 the seller had received a sum of Rs. 5 lacs in cash as earnest money (bayana) on that very day. The sale was to be completed by 25th June, 2005 and in the event the seller failed to comply with the terms of the obligation, then the purchaser was entitled to receive double of the earnest money and if the purchaser failed to fulfilll his obligations, the seller was entitled to forfeit the earnest money paid. The performance of the agreement was to be completed on or before 25th June, 2005 and according to the plaintiff, who examined himself as PW1 and submitted his examination-in-chief by filing an affidavit, he had asked Late Sh. Goverdhan Lal Jaggi to take exact measurements of the plot in question, in view of the above recital of the Ex.P1. However, he avoided the same and unfortunately Goverdhan Lal Jaggi expired on 9th April, 2005. He had asked the defendants also to take the measurements but they avoided it and took up a very vague stand in their reply dated 4th May, 2005, Ex.P2. In regard to the writing of 19th May, 2005, it is stated that no writing was executed, but he had signed a blank paper at the behest of defendant No. 2 and Mr. P.N. Kapoor, who had accompanied him for the meeting, and had assured him that the said paper would be used for measurement of the land. However, the time for execution of the sale deed was extended till 25th July, 2005. According to this witness the writing dated 19th May, 2005 is a forged and fabricated document and has been manipulated by the defendants. It is specifically stated that the defendants are avoiding to take the measurements and execute the sale deed in favor of the plaintiff. According to PW1, the plot does not measure 850 sq. yds. but is 700 sq. yds., for which the plaintiff claims to be ready to perform his part of the agreement. The defendant No. 2 had examined himself as DW1 and had filed his affidavit Ex.DW1/1 in examination-in-chief wherein he has taken the stand that the parties had entered into the agreement dated 4th March, 2005 which was amended by writing of 19th May, 2005. It is admitted that Sh. P.N. Kapoor, a friend of plaintiff and Ghanshyam Das, Property Dealer, were present in the meeting. It is stated by DW1 that payment of the balance amount of the plaintiff and time for execution of the documents of sale deed was extended to 25th July, 2005. It is stated that the defendants have always been ready and willing to execute the sale deed in favor of the plaintiff after accepting the balance and final price, as agreed on 19th May, 2005 and put the plaintiff into possession. According to them, the agreement dated 19th May, 2005 has to be honoured by the parties.

The controversy in the present case has to be determined on the basis of documents and oral evidence produced by the parties. As already noticed, the plaintiff examined himself as PW1, while defendant No. 2 examined himself as DW1. Both the parties closed their evidence after examining themselves and no independent evidence was examined by the parties. To Ex. P1, the attesting witnesses were Ghanshyam Das, the property dealer, and Defendant No. 1. For reasons best known to the parties, neither Ghanshyam Das was produced nor Defendant No. 1 opted to step into the witness-box. It is also admitted between the parties that Sh. P.N. Kapoor was present on 19th May, 2005 when the meeting was held, but none of the attesting witnesses to the said agreement Ex.D1 (DW1/3) was produced. In fact, the original of Ex.D1 was not produced by the defendants. According to the defendants, original of Ex.DW1/3 which was in possession of the plaintiff has not been produced, while according to the plaintiff, original of either Ex.D1 or DW1/3, which in fact, with some variation is the same document relatable to the writing allegedly executed on 19th May, 2005 has not been produced by the defendants. In these circumstances, the court has to draw adverse inference against both the parties for withholding the best evidence which ought to be in their power and possession. None of the parties have produced any independent witness, who were admittedly the attesting witness to Ex.P1 or Ex.D1. Non-production of these witnesses and in fact not even an attempt on the part of either of the parties causes a reasonable suspicion that if these witnesses were produced, they would have deposed adverse to the concerned party. This lacuna in the evidence of the parties would obviously have a material bearing on the findings of the issues arising in the present case.

9. Ex.D1 is allegedly a writing executed between the parties on 19th May, 2005. This document was filed by the defendants with the list of documents and the written statement filed on 15th /16th September, 2005. Ex.DW1/3 again is the photocopy of the writing alleged to be recorded on 19th May, 2005, which according to the plaintiff was supplied to him by the defendants in response to his notice dated 21st September, 2005, Ex.DW1/2, for production of the original of the said writing. It is stated that while giving the copy of the written statement and the documents filed in court, the defendants had supplied Ex. DW1/3 as photocopy of the writing of 19th May, 2005. In other words, both Ex.D1 and DW1/3 are stated to have been produced by the defendants. The defendants filed a carbon copy of Ex.D1. In this Ex.D1, the text has been written as a carbon while it bears signatures of four persons including the plaintiff and the defendant. The other two witnesses are Ajay and Ghanshyam Das. Onus to prove there documents was upon the defendants. The defendants neither served a notice upon the plaintiff to produce the original of Ex.D1, nor produced the person who had written this document. Admittedly, according to the defendant No. 2 this document was written in the meeting of 19th May, 2005 at the residence of the defendants. During the course of arguments, the learned counsel appearing for the defendants stated that the text written in Hindi is in the hand-writing of the defendant No. 2. However, the said defendant in his statement does not say so. This was a very vital fact to be stated by the said witness. On the contrary, in his cross-examination, the plaintiff has put to the said witness that Ex. D1 was fabricated by them as a blank paper was signed by the plaintiff at the instance of Mr. P.N. Kapoor. It was also suggested to that witness that Ex.D1 and Ex.DW1/3, annexed to DW1/2 were at variance with each other and they have fabricated the document to their convenience. Despite such provocative cross-examination, DW1 at no point of time stated even in his cross-examination that the document Ex.D1 or DW1/3 was in his hand-writing and was signed by others in his presence. He also does not say that original copy of the said document was given to the plaintiff during that meeting. These are certain definite doubts which are created by DW1 because of his own averments and evidence.

10. Now, I may proceed to note some glaring interpolations in Ex.D1 and Ex.DW1/3. Ex.DW1/3 bears signatures of five persons i.e. Mr. Ajay Oberoi, Mr. Vinod Kumar, Mr. Ghanshyam Das, defendant-Mr. Satish Jaggi and the plaintiff-Mr. Raj Kumar Sharma, while Ex.D1 has signatures of all others except Sh. Vinod Kumar. In paragraph 1 of Ex.DW1/3 which is in Hindi, in English the words have been written as '850 sq. yds.' This is not so recorded on Ex.D1. The signatures of Mr. Raj Kumar Sharma and the witnesses on these two photocopies, i.e. Ex.D1 and DW1/3 are at different places and appear to have been written in different handwritings. The word 'kharidaar' has been written on both documents in different handwritings and some alphabets of Hindi have been scored out at Ex.D1, while there are no such alphabets and scoring on Ex.DW1/3. There are certain other variations also in these two photocopies of the documents. The above evidence shows that the court cannot place any reliance either on Ex.D1 or DW1/3. According to the plaintiff, both these documents have been produced on record by the defendants and this fact is duly established that during the cross-examination of DW1 both these documents were put to the said witness who answered as under:-

It is also incorrect that I have forged that document. I had supplied the copy of Ex.D1 to the plaintiff in reply to the second notice served by the plaintiff on us. I have seen Ex.P.5. Copy of the writing dated 19.5.2005 was not annexed to this exhibit. I have seen Ex.D1. It is the photocopy of the minutes of the said meeting, which I have filed along with my written statement. Ex.DW1/2 is the notice which my counsel had served upon the plaintiff. It is correct that Ex.DW1/3 was annexed to DW1/2. I am not ready to accept the balance price now.

11. For the reasons afore-stated the court would reject Ex.D1 or DW1/3 as it will not be safe for the court to record its findings on the basis of such a document which is disputed by the parties and is not proved in accordance with law. There is no reason, whatsoever, even stated during the course of arguments, as to why the attesting witnesses were not produced by either of the parties.

12. Another reason for not placing reliance upon Ex.D-1 or DW-1/3 is the conduct of the parties in relation to execution/fabrication of the said document. None of the parties have produced any of the attesting witnesses of this document and it is not believable why a person like plaintiff who is stated to be a property dealer would sign a blank paper particularly when part of the contents of Ex.D-1 are relied upon even in the replication. Equally unnatural is the conduct of the defendant No. 2 in relation to this document as his own brother and friend who are attesting witnesses to the said document are not produced nor any plausible explanation is rendered on record either in the pleadings or in evidence as to why the carbon was removed and signatures of the parties obtained on each of the said documents independently. If the carbon copy was being prepared, it could have bore the signatures of the attesting witnesses as well as the parties to the agreement, without removing the carbon. Furthermore, DW-1 in his statement has admitted both documents Ex.D-1 and DW-1/3 to be his documents which means that both these documents are produced and in fact are admitted by the said defendant as his documents and again there is no explanation much less a reasonable or plausible, to explain the abovenoted variations, differences and interpolation in the said document even including signatures of another person.

13. Ex.P-1 is an admitted document and both parties relied upon the said agreement. In terms of the last recital clause of the said agreement, the land was to be sold @ Rs. 4647/- per.sq.yds. Relied upon this clause, the plaintiff has contended that parties were to take actual measurement of the plot then the price was to be settled and paid. It is contended on behalf of the plaintiff that if the parties were certain about the measurement of the plot, then the total sale consideration of Rs. 36.50 lacs should have been mentioned and there was no occasion for referring to the rate per sq. yard. This contention is further supported by the fact that the plaintiff had served a notice Ex.P-2 calling upon the defendants to take the actual measurement of the plot in question so as to determine the exact amount payable. To this notice (Ex.P-2), a reply (Ex.P-3)was sent by the defendants wherein there was a general denial of all the facts. In reply to paragraph 1 of the notice, it was stated as under :-

1. At the very outset in reply to your notice it is stated that my clients do not have any knowledge about alleged transaction between Sh. Goverdhan Lal Jaggi and your client Sh. Raj Kumar Sharma son of Sh. B.P. Sharma, R/o.A-67, Vipin Garden, Uttam Nagar, New Delhi-11005, as no such document has been supplied by your client to my aforesaid clients, Along with notice under reply, nor Sh. Goverdhan Lal Jaggi had ever informed to my aforesaid clients about alleged transaction regarding sale of land measuring 850 sq.yds. Out of Khasra Nos. 2/19, plot Nos. 58, 59, 68A and 60B, situated in vill. Kakrola, Nidhi Vihar, Vipin Garden, Uttam Nagar, New Delhi. Further you have not even mentioned the total sale consideration of said plot.

14. The stand taken by the defendants in Ex.P-3 again lacks bonafides in as much as the wife of the deceased, defendant No. 1 in the suit, was an attesting witness to the said agreement, as such it could not be said that the family was not aware of the sale of the said property and if that stand taken is true the entire written statement would have to be termed as a an afterthought by the defendants. Either they knew the facts and existence of Ex.P-1 or they knew nothing even on 4th May, 2005. This stand is further altered by the defendants when they replied to the notice Ex.P-4 dated 18th July, 2005 served upon them on behalf of the plaintiff wherein it was specifically stated that they did not come to the site despite the fact that a definite date was fixed for measurement and that the plaintiff had taken the rough measurement and the plot was measuring about 760 sq.yds. In that notice, it was stated that the plaintiff was ready and willing to perform his part of the contract and defendants should come to the site on 21st July, 2005 as documents were to be executed on 25th July, 2005, the date fixed by the parties in their meeting dated 19th May, 2005. In reply to this notice, Ex.P-5 was sent by the defendants through their counsel, wherein it was stated that dispute with regard to measurement of the plot was sorted out amicably and the price was reduced to Rs. 1 lac. Though in the reply, it was specifically denied that the plot was measuring 700 sq.yds. but it was nowhere mentioned that the plot at site actually measures 850 sq.yds. In Ex.P-4 it was duly stated that there was a supplementary agreement dated 19th May, 2005, but it was so cleverly worded as not to state the said agreement was in writing and had been signed by the parties in presence of the witnesses.

15. From the oral and documentary evidence, aforediscussed, it is clear that there is no proper written agreement between the parties dated 19th May, 2005, but where the parties are ad idem in regard to the meeting held on 19th May, 2005 and grant of extension of time for execution of sale deed and discussion in regard to matters arising from Ex.P-1, there the stand taken by the parties in regard to the payment of sale consideration and/or its reduction, about taking measurement of the property in dispute and presence of the persons at the time of execution, is dramatically opposite. It cannot be said that the plaintiff has not approached the Court with clean hands or has concealed certain facts. He has made a mention about meeting of 19th May, 2005 in his complaint itself. The defendants and plaintiff have equally acted unfairly in regard to the writing dated 19th May, 2005. The agreement dated 4th March, 2005 is the proper and admitted agreement between the parties which the plaintiff has proved. In terms of the agreement dated 4th March, 2005, the contention raised on behalf of the plaintiff that there was some doubt with regard to the exact measurement of the plot has some weight. In fact, it is not even disputed by the defendants. DW-1 in his affidavit has not made any reference to the size of the plot while in his cross-examination he has clearly stated that actual area of the site is nearly 792 to 800 sq.yds. If this statement of defendant No. 2 is taken to be correct, even then the plot is admittedly not measuring 850 sq.yds. If the plot is short by 60 sq.yds., it would make a difference of Rs. 4647X60 = 2,78,820/-. Such a material difference in the sale consideration was of consequence for the plaintiff and that is why he persisted by different notices calling upon the defendants or their predecessors-in-interest for taking actual measurement of the plot in question. The plaintiff himself has stated that the plot was measuring 750 sq.yds. in the notice though in his cross-examination, he has stated that the plot was measuring about 700 sq.yds. The statement of the plaintiff before the Court in his cross-examination cannot be relied upon as in his own notice, he has admitted that upon measurement being taken, the plot was measuring 750 sq.yds. and this fact has clearly been stated in Ex.P-4. In the facts and circumstances of the case, thus it would be proper to require the parties to measure the plot exactly in order to avoid any prejudice to either side. In any case, it is an admitted case of the parties on record that the plot does not measure 850 sq.yds. at site. The defendants on the one hand in their reply to the notice vide Ex.-3 had stated that they are always ready and willing to perform part of their agreement and the plot was to be sold on `as is where is basis' but in his statement before the Court, the defendants in their cross-examination had stated "I am not ready to accept the balance price now". In these circumstances, it is difficult for the Court to hold that the plaintiff has committed breach of the obligations placed upon him in terms of the agreement dated 4th March, 2004 (Ex.P-1).

16. The present suit is a suit for specific performance and the relief is one granted by the Court primarily on equitable principles. Section 20 of the Act vests a wide discretion in the Court to grant or decline a decree for specific performance. Of course, this discretion is to be exercised in accordance with the settled principles of law applicable to the facts of the case. It is not necessary for the Court to grant specific performance merely because it is lawful to do so. In the facts of the present case Ex.P-1 does not give any unfair advantage to the plaintiff over the defendants. The parties had agreed to extend the period for execution of the sale deed from June, 2005 to July, 2005 and the measurement of the land in question was a persisting dispute as is clear from the various notices sent by the plaintiff to the defendants. If the specific performance is granted to the plaintiff, it would not involve great hardship to the defendants as what has happened, the parties could foresee the same at the time of execution of the agreement. The mentioning of the price per sq.yard does indicate and even subsequent conduct of the parties including the present defendants show that there was some dispute with regard to the measurement of the land and it is own case of the defendants that they had further reduced the price from Rs. 39.50 lacs to Rs. 38.50 lacs and intended to sell the plot "on as is where is basis". The stand taken by the defendants is unfair and certainly tilts the equity against them rather than in their favor. Firstly, they denied the very knowledge about the transaction in question and subsequently have taken contradictory stand even in regard to smallest of the things. Ex.D-1 suffers from the infirmity of suspicion. In these circumstances, it would no way be unfair to grant relief to the plaintiff whose 5 lacs of rupees have been retained by the defendants for all this time and the plaintiff filed the present suit without any unnecessary delay and in fact in less than one month, that too after serving notice upon the defendants from the agreed date for execution of the sale deed i.e. 25th July, 2005. The defendants have not even spelled out in their written statement what is the breach committed by the plaintiff. The notices issued by the plaintiff to the defendants have been received and replied to by the defendants. In fact, in their reply to the notice, they had stated that they are willing to sell the land and parties were trying to resolve the dispute with regard to measurement of the land in question. In the circumstances of the present case, it is difficult to hold that plaintiff has committed any specific breach of the terms of the agreement and/or has acted malafidely in a manner which would disentitle him from getting the equitable relief of specific performance in the discretion of the Court. At this stage, it would be appropriate to make a reference to the judgment in the case of Rattan Lal v. Smt. Bharpai and Ors 1998 (4) ICC 412, where the Court after considering the law at length and the judgment of the Supreme Court as well as of that Court in the case of Ram Dass v. Ram Lubhaya PLR 1998 (2) 326, held as under :-

It is clear from the above finding that no fault can be attributed to the plaintiffs. They never attempted to gain undue advantage over the defendant. The plaintiffs were always willing and ready to perform their part of the agreement and had gone to the Court Complex with the money on the appointed dates. The stand of the defendant is totally inconsistent. No averments of fraud have been pleaded. The defendant claims to have gone to the court complex to perform the agreement. However, at no point of time he pleaded that plaintiffs had breached the terms of the agreement and as such the earnest money was liable to be forfeited.

Coming to the legal aspect of the matter in the case of S. Rangaraju Naidu v. S. thiruvarakkarasu, the Supreme court never intended to lay down as a principle of law that specific performance should be denied, if alternative relief is asked for. Keeping in view the special facts of that case, as there was undue delay on the part of the plaintiff, the Hon'ble Supreme Court had denied the specific performance. Their Lordships specifically observed that the order is being passed in view of the fact of that case.

This court in a recent judgment in the case of Ram Dass v. Ram Lubhaya PLR, 1998 (2) 326 considered this aspect at a great length and observed as under :-

Coming to the second contention, the learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Kanshi Ram v. Om Parkash Jawal and Ors and Rangaraju Naidu v. S. Thiruvarakkarasu . The principles of law enunciated in these case is the reiteration of settled principles of law. The principle of equity good conscience and fairness being very foundation for grant of relief of specific performance is the concept not introduced by judicial pronouncement but explicitly indicated by the Legislature in the provision of Section 20 of the Specific Relief Act. The very language of section 20 spells out and indicates the wide discretion that is vested in the Court of competent jurisdiction to grant or decline to grant a relief of specific performance for transfer of immoveable property. The guiding principles for determination of such controversies have been consistently cogitated by various courts but to a common end. The common weal sought to be achieved is to avoid resultant undue hardship to one party while avoiding undue gain to the other by mere lapse of time attributable to erring party.

An alternative prayer by a plaintiff in a suit cannot be construed as a waiver or abandonment of the main relief in the suit. An alternative prayer is a relief which is claimed by the party if the party is found to be not entitled to the principle of main relief claimed in the suit. The submission of the learned counsel appears to be totally contradictory to the well accepted concept of pleadings and cannot be accepted.

The jurisdiction vested in the Court to decline specific performance and grant alternative relief is a jurisdiction of equity and good conscience and must be exercised in consonance of the settled principles of law. Even principles emerging from judicial verdicts which are to guide the courts concerned while passing such a decree and which have been specifically acted upon, are still open to correction by the court of appeal. The provisions indicate the intention of the Legislature to vest the Court with the wide discretion but still define the extent of caution with which such power should be exercised. Settled canone of limitations on the discretion of the court have been well defined by various judicial pronouncements. Precept of equity are accepted good in law. Reliefs in equity are founded on the principle of good conscience and grant of effective relief. The maxim Actio de in rem verso appears to be the underlining feature under the provision of Section 20 of the Act. Exercise of judicial discretion does not admit a limitation extending to a prohibition for grant of relief of specific performance. It is only where the judicial conscience of the court is pricked to an extent that the Court first is able to see inequities, imbalances created against one party and in favor of other, that it would consider exercising its discretion under these provisions. The scheme of this Act clearly shows that where a contract is proved in accordance with law and party has acted without undue delay and has pursued its remedy in accordance with law without infringing the settled canon of equity the grant of specific relief by enforcing the contract would certainly be a relief which equity would demand. The Legislative intention behind Section 20 cannot be stated to be that a party first fails to perform its part of the agreement later contests litigation on frivolous basis then that party cannot be permitted to raise a plea in equity that value of the property has increased disproportionately resulting in an undue advantage to the plaintiff in a suit. Resultantly it would not be fair to deny specific performance against such a party.

A lawful agreement being proved and judicial conscience of the court being satisfied the equity would demand enforcement of an agreement rather than granting an alternative relief of damages to the plaintiff. It need not be reiterated that equity must give relief where equity demands. Equitas nuquam liti ancillatur ubi remedium potest dare is a clear illutration which has been duly accepted by the Indian Courts. The time taken by the courts in deciding suit or appeals would normally be not permitted to work to the disadvantage of the party to the lis. Acts of the courts shall cause prejudice to none was so stated by the Hon'ble Apex Court in the case of Atma Ram Mittal v. Ishwar Singh Punia .

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Further more the courts have also found that the respondent was always ready and willing to perform his part of the agreement. The litigation before the Courts has been prolonged for all this time by the appellant without any fruitful result. In these circumstances I am unable to see any equities in favor of the appellant and reliance placed upon the observations of the Hon'ble Supreme Court in the case of S.Rangaraju Naidu v. Thiruvarakkarasu (supra) is misplaced one. No facts and circumstances have been brought on the record nor any evidence has been adduced to show that the case of the appellant was covered under any of the exceptions carved under sub clause (a) to (c ) of sub Section (2) of Section 20. The appellant has suffered no unfair disadvantage. No such hardship has been caused to the appellant which would justify nonperformance on his part. The appellant has also not been placed at any inequitable situation. Equities have to be balanced. It is only when totally unequitable and unjust and unfair advantage is given to one party that court has to consider such factors. The conduct of the appellant is certainly not worthy of claiming any special equities while conduct of the respondent has been to the accepted standard demanded by the equity and he has persued his remedy carefully and in the earliest point of time, while things are taken to be done in their normal course. Reference is made to Krishna Singh v. Krishna Devi .

In view of the above settled principles of law, the contention raised on behalf of the defendant is without merit. The plaintiffs had no point of time delayed the legal remedies available to them and acted with prudence and reasonable expectation.

17. The principle of wide discretion vested in the Courts, in terms of Section 20 of the Specific Relief Act has consistently been upheld by the Courts. No doubt such discretion is to be guided by settled principles of law and is applicable to the facts of a given case. It is a well settled norm that Court may amplify, extend justice but within the prescribed limitation of its jurisdiction. This was also accepted by the Supreme Court in the case of Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel and Ors. . The relevant extract of the judgment is as under :-

The grant of decree for specific performance is a matter of discretion under Section 20 of the Specific Relief Act, 1963. The court is not bound to grant such relief merely because it is lawful to do so but the discretion is not required to be exercised arbitrarily. It is to be exercised on sound and settled judicial principles. One of the grounds on which the Court may decline to decree specific performance is where it would be inequitable to enforce specific performance. The present is clearly such a case. It would be wholly inequitable to enforce specific performance for (i) residential houses for weaker sections of the society cannot be constructed in view of the existing master plan and thus, no benefit can be given to the said section of the society; (ii) In any case, it is extremely difficult, if not impossible, to continuously supervise and monitor the construction and thereafter allotment of such houses; (iii) the decree is likely to result in uncalled for bonanza to the plaintiff; (iv) patent illegality of order dated 20th June, 1998; (v) absence of law or any authority to determine excess vacant land after construction of 4356 dwelling units; and (vi) agreement does not contemplate the transfer of nearly 600 acres of land in favor of the plaintiff for construction of 4356 units for which land required is about 65 acres. The object of the Act was to prevent concentration of urban land in hands of few and also to prevent speculation and profiteering therein. The object of Section 21 is to benefit weaker sections of the Society and not the owners. If none of these objects can be achieved, which is the factual position, it would be inequitable to still maintain decree for specific performance.

18. Applying the above equitable principles to the facts of the present case and particularly when Ex.D-1 or DW.1/3 cannot be relied upon by the Court, it is necessary to hold that the parties are bound by the terms and conditions of the agreement dated 4th March, 2005 and further that the parties had agreed to extend the period for execution of the sale deed up to 25th July, 2005 (as admitted in the pleadings of the parties).

19. The plaintiff would be entitled to the specific performance of the agreement dated 4th March, 2005. It is also not disputed between the parties and in fact stands admitted in various documents including the pleadings Exs.P-1 to P-4 that area of the plot is not 850 sq.yds. According to the plaintiff, it was 700 sq.yds., however, in the notice Ex.P-4 which was issued after the plaintiff had taken the measurement of the plot of the land, it was stated to be 750 sq.yds. while according to the defendants, it was 792 to 800 sq.yds. On his own admission, the plaintiff cannot be permitted to resile from his admission that the plot in question measured 750 sq.yds. In Ex.P-1, the parties had fixed the price per square yard and as such it will be just equitable, fair and proper that the parties should be directed to measure the plot in question and plaintiff be directed to pay the agreed price depending on the measurement of the plot in question.

20. At the time of execution of Ex.P-1, the plaintiff had paid a sum of Rs. 5 lacs and in terms of the agreement between the parties, the balance sale consideration was payable at the time of execution of the sale deed. According to the plaintiff measurement of the plot was taken before registration of the sale deed and price was to be paid @ Rs. 4647/- per sq.yds. He had served notices upon the defendants ExP-1 and P-4 for this purpose. In both these notices, it is specifically averred by the plaintiff that he is ready and willing to perform his part of obligation and had sufficient means to pay the balance consideration. Even in Ex.P-4, in fact, the plaintiff had requested the defendants to be present to receive the amount of the balance sale consideration and complete the sale transaction on 24th July, 2005. The reply submitted by the defendants to these notices was vague and indefinite in terms and in fact they had not even questioned the capacity or capability of the plaintiff to pay the balance sale consideration. There was a dispute with regard to the measurement between the parties which was referred to by the defendants in Ex.P-5 and they had agreed to reduce the price by Rs. 1 lac. If there was no scope for doubt, there could be no occasion with the defendants to reduce the said price. Thus the parties have by their conduct interpreted the recital of Ex.P-1 relatable to exact measurement of the plot in question. Vide Ex.P-3 defendants, particularly defendant No. 1 who was the attesting witness and had shown her ignorance about the transaction, while in the last paragraph of the said notice, they have stated that the plaintiff was at liberty to get the deal completed on due date on making balance payment as per agreement, subject to substantiate his allegations in toto. DW-1 for the first time during his cross-examination stated that he was not ready and willing to accept the balance price now. No reason whatsoever had been given by DW-1 for this attitude. In his affidavit DW-1 has nowhere stated that the plaintiff was not ready and willing to perform his part of the obligation and /or he was not in possession of sufficient means to buy the property. On the contrary they had agreed to put the plaintiff in possession subject to payment of the balance sale consideration.

21. Ready and willingness are to be gathered from the evidence of the parties and the capacity to pay. PW-1 has specifically stated in his statement that he had a part of the money in his different bank accounts and the balance he would arrange within no time. PW-1 is a property dealer and thus would be fully aware of such dealings. Plaintiff claiming the relief of specific performance, is not required to exhibit the currency notes to show his ready and willingness. He should be capable and should have the capacity to pay on demand the sale consideration whether from his account or after arranging the same from reliable sources. The law does not impose an obligation on a party requiring it to exhibit its mean by physical demonstration. Suffices it to say for a party that it possess and/or is capable of gathering sufficient means to perform its part of the contract by paying the balance sale consideration. Readiness and willingness have various ingredients and one of them is that party to an agreement should be able to fulfilll its obligations in regard to payment of the sale consideration. The purchaser need not establish that he had the required money with him or arrangements have been made for financing the transactions. What is required of him is to show that he was ready and willing to fulfill his terms of the agreement. A party would be well within its rights to say that he was in a position to arrange the payment of the requisite amount within the prescribed time. Demonstrable possession of means is no sine qua non to satisfy the principle of ready and willingness. Every action follows its prescribed course and so does a buyer should be able to show before the Court that he either possesses or can arrange the requisite funds for payment of the balance sale consideration within the stipulated period. Obviously the fruits of this act fall in favor of the party only on completion of the act in accordance with the directions of the Court founded on the agreement between the parties. Fleri non debuit sed factum valet would normally apply to this aspect of ready and willingness on the part of the claiming party. In the case of Mulla Badruddin v. Master Tufail Ahmed , the Court held as under :-

In the case reported in Bank of India v. J.A. H. Chinoy, AIR 1950 PC 90, in the context of the plaintiff being ready and willing to perform his part of the contract though it was stated by plaintiff No. 1 that he was buying for himself and that he had no sufficient ready money to meet the price and that no arrangements had been made for finding it at the time of repudiation but when it was further made clear that he was in a position to arrange the payment of requisite amount, it was observed by their Lordship :

But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact and in the present case the appellate Court had ample material on which to found the view it reached.

The lower Court considered the point in detail and advanced cogent reasons for its conclusions. We find nothing to differ from these conclusions. In the light of the observations made above, and considering the total lack in defense evidence challenging the readiness and willingness of the plaintiff to perform the contract, we are of the view that Alakhram's case AIR 1950 Nag 238, (supra), has no application to the facts of the present case. The facts of that case are clearly distinguishable. This objection raised by the appellant has no merit and is, therefore, overruled.

22. In view of the above discussion, it is clear that the plaintiff was always ready and willing to perform his part of the contract and in fact it is the defendants, who have been changing their stands. Thus the Court, answers the issue in favor of the plaintiff and against the defendants.

23. Plaintiff has claimed damages in alternative to the principle relief of specific performance of the agreement dated 4th March, 2005. If the plaintiff claims an alternative relief, it does not mean that he has given up his main relief for specific performance. Claiming an alternative relief is permissible in law and no legal or other infirmity can be placed in the suit of the plaintiff on this score. The plaintiff is entitled to the specific performance of the agreement dated 4th March, 2005 and the defendants are obliged to execute the sale deed for the property in question in favor of the plaintiff subject to receiving the balance sale consideration in accordance with the terms of this order and within stipulated time provided therein. Till the defendants execute the sale deed in favor of the plaintiff, they ought to be injuncted from alienating, transferring or parting with possession of the said property.

24. The plaintiff would be liable to pay interest to the defendants as he has denied Exs.D-1 and/or DW.1/3, but still has taken advantage of extension of time, though extension of time for execution of the sale deed is on the admission of the defendants. The plaintiff has thus availed of the benefit of the entire balance sale consideration in excess of the agreed period and has utilised the said money for his own benefit. Having wrongfully withheld the said amount subsequent to 24th June, 2005, the plaintiff cannot be permitted to take advantage and enrich himself at the cost of the defendants. Of course, the defendants have been in possession of the property, but lawfully they were entitled to receive the entire sale consideration on or before 25th June, 2005. In order to balance the equity between the parties, it would be just and fair that the plaintiff is directed to pay interest on the said sum @ 12% which would be the minimum rate of interest payable in such transactions.

25. In view of the detailed discussion on different issues, a decree for specific performance of the agreement dated 4th March, 2005 is passed in favor of the plaintiff and against the defendants jointly subject to the following conditions :-

A. Mr.________ is appointed is a Local Commissioner who shall visit the property in suit on _____ and would actually measure the said property. The measurement given by the Commissioner would be the basis for payment of balance sale consideration in terms of Ex.P-1. However, the same would not be considered less than 750 sq.yds. which the plaintiff himself has agreed vide Ex.P-5. The Commissioner shall visit the premises at Khasra Nos. 2/19, Plot Nos. 58,59, 68A and 60B situated at Village Kakrola situated at Nidhi Vihar, Vipin Garden, Uttam Nagar, New Delhi at 11.00 AM and both the parties are directed to be present at the time of measurements. The Commissioner, if necessary, shall also prepare a sketch of the property in dispute mentioning its exact length and width in sq.yds. The Fee of the Commissioner is fixed at Rs. 7,000/- payable by the parties in equal share.

B. Within two weeks thereafter, the plaintiff shall deposit the balance sale consideration calculated @ Rs. 4647/- per sq . Yds in this Court and or pay the same to the defendants, in equal share, by means of bank drafts.

26. Within two weeks of such payment, the defendants shall execute sale deed in regard to property in question in favor of the plaintiff and getting the same registered in accordance with law. In the event of default, the plaintiff would be entitled to get the sale deed executed by an officer to be appointed by order of the Court upon an application being filed by the plaintiff. The plaintiff shall pay to the defendants on the balance sale consideration, interest @ 12% per annum from 25th June, 2005 till the payment is made and/or deposited by the plaintiff in terms of the order/decree. The plaintiff would also be entitled to a decree of injunction against the defendants restraining them from alienating, transferring or parting with possession of the property in question till execution of the sale deed in his favor. However, in the facts and circumstances of the case, the plaintiff would not be entitled to costs on the suit.

27. The suit is accordingly decreed in favor of the plaintiff and against the defendants in the above terms.