Gulshan Kumar vs B.P. Mishra
2007 Latest Caselaw 191 Del

JUDGMENT

Gita Mittal, J.

1. By this order, I propose to dispose of the present application filed under Order 12 Rule 6 of the Code of Civil Procedure, 1908 on behalf of the plaintiff praying for a decree on admissions made by the defendant.

2. It becomes necessary to notice the few essential facts for the purposes of adjudication on this application. Shri B.P. Mishra, the defendant herein, is the allottee of Flat No. 34 in a complex owned by a housing society known as Kadambari which is built on Plot No. 19, Sector-9, Rohini, Delhi-110085. The flat is stated to be a two bedroom flat located on the ground floor. The plaintiff contemplated purchase of this flat from the defendant for the reason that his brother was located in flat No. 52 in the same complex which was adjacent to the suit property. The defendant was intending to sell his flat. Consequently, in view of the interest of the plaintiff in purchasing the property on the 30th of March, 2004, the defendant is stated to have agreed to sell the said flat No. 34 to the plaintiff for the total sale consideration of Rs. 18 lakhs. Out of this consideration, an amount of Rs. 1 lakh was paid by the plaintiff to the defendant and the balance amount of Rs. 17 lakhs was agreed to be paid within 45 days from the date of execution of this agreement. The agreement is embodied in the document which was executed by the defendant acknowledging the receipt of Rs. 1 lakh which reads thus:

Received a sum of Rs. 1,00,000/- (Rupees one lakh only) from Mr. Gulshan Kumar S/o Shri Jagan Nath as advance against price consideration of my flat No. 34, Kadambari, Sector-9, Rohini. The total consideration being Rs. 18,00,000/- (Rupees Eighteen Lakh only). The balance to be paid within 45 days.

The defendant has admitted his signatures on this receipt and the same has been exhibited on record as Exhibit P-1. The only contest on this document by the defendant relates to affixation of the revenue stamp and signatures of the second witness.

3. Thereafter, on the 23rd April, 2004, the plaintiff sent a letter by registered post to the defendant requesting for a copy of the documents in his favor relating to the suit property, including the title of the property that is the allotment letter, possession slip and share certificate which was required by the plaintiff for submission to the bank which had been approached for raising a loan in order to make the payment towards the agreement dated 30th March, 2004.

4. The plaintiff had emphasized upon the defendant to supply copy of the share certificate, allotment letter and possession slip issued by the society to him and also to obtain the 'no objection' in respect of the sale and to fix the time for a visit by the valuer who could prepare the valuation report. The plaintiff had expressed anxiety to make payment of the balance consideration within the time fixed.

The defendant has admitted receipt of this letter while disputed the contents and the same has been exhibited as Exhibit P-2 on record.

5. This communication was followed by a registered legal notice dated 29th April, 2004 from the plaintiff's counsel to the defendant. The defendant has also admitted receipt of this notice and the same has been marked as Exhibit P-3. In this letter, the plaintiff has again emphasised upon the defendant to make available copies of the documents which had been sought orally on 16th April, 2004 and in writing by the letter dated 23rd April, 2004 and also clearly emphasized the plaintiff's intention of completing the transaction in terms of the agreement dated 30th March, 2004. In this behalf, the plaintiff through counsel had called upon the defendant thus:

12. That you have not informed my client about the status of the Conveyance Deed to be executed by D.D.A. in your favor.

13. That now, for and on behalf of my client, I call upon you to supply the documents as requested by my client from you on 16.4.2004 and as mentioned in his letter dated 23.4.2004. I also call upon you to get Conveyance Deed executed from DDA in respect of the said flat, so that the sale transaction in respect of Flat No. 34, Kadambari Apartments can be completed as agreed between you and my client.

14. Please note that if no steps are taken by you, the addressee, then my client shall be at liberty to take an appropriate legal action, civil as well as criminal, available to my client at your cost and risk and you, the addressee, shall be liable for all the consequences that my follow.

6. It is noteworthy that the period of 45 days from 30th March, 2004 was expiring on 14th May, 2004 and the anxiety on the part of the plaintiff to complete the transaction had been clearly expressed.

7. Vide another registered letter dated 4th May, 2004, the plaintiff through counsel, notified the defendant that the plaintiff had taken all steps and had made arrangement of the balance amount of the sale consideration of Rs. 17 lakhs in terms of the agreement dated 30th March, 2004. The plaintiff requested the defendant to set up a date of mutual convenience and in the event of date not being fixed, the plaintiff informed the defendant that he would remain present in the office of the Sub-Registrar, Pitampura, New Delhi on 11th May, 2004 between 10.00 a.m. to 1.30 p.m. for execution of the documents.

8. The defendant has admitted receipt of this communication in the admission/denial of documents conducted by him, but has denied the contents of the letter. This letter dated 4th May, 2004 has been marked as Exhibit P-4. The material assertions on behalf of the plaintiff in this communication also deserve to be noticed in extenso and reads thus:

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10. That you, the addressee, are informed that my client has made the arrangement of Rs. 17,00,000/- i.e. balance amount of sale consideration of the said flat and the balance amount of sale consideration can be paid to you, the addressee, on any date that may be fixed mutually. However, if date is not fixed mutually and if you, the addressee, fail to contact my client then my client shall be available and my client will remain present on 11.5.2004 in the office of Sub-Registrar, Pitam Pura, Delhi between 10.00 A.M. to 1.30 P.M. for execution of documents in respect of sale of said flat.

11. That therefore now, for and on behalf of my client, I call upon you, the addressee, to fix a date by mutual consent so that the balance amount of sale consideration i.e. Rs. 17,00,000/- is paid to you, the addressee, and the documents in respect of the sale of said flat are executed by you, the addressee, in favor of my client. Please note that if you, the addressee, fail to fix the date by mutual consent then my client shall be available and my client will remain present on 11.5.2004 in the office of Sub-Registrar, Pitam Pura, Delhi between 10.00 A.M. to 1.30 P.M. for execution of documents in respect of sale of said flat.

12. Please note that if either no date is fixed by the mutual consent in respect of the execution of documents in respect of the sale of the said flat or if you, the addressee, do not present yourself on 11.5.2004 in the office of Sub-Registrar between 11.00 A.M. to 1.30 P.M. for execution of the documents in respect of sale of said flat, then my client shall be at liberty to take appropriate legal action, civil as well as criminal as available to my client, including filing a Suit for specific performance, at your cost and risk and you, the addressee, shall be liable for all the consequences that may follow.

9. The conduct of the defendant in response to these communications makes interesting reading. No reply was sent by the defendant to the letter dated 29th April, 2004 and 4th May, 2004. There is no dispute in any communication or in any pleadings to the fact that the defendant has received sum of Rs. 1 lakh on the 30th March, 2004. A letter dated 6th May, 2004 was sent on behalf of the defendant by his counsel to the plaintiff's counsel wherein it was inter alia stated thus:

2. In reply to paragraphs 1 and 4 of your notice, our client is the sole and exclusive allotee and owner of flat No. 34, Kadambari Apartments D.U. Staff CGH Society Limited, plot No. 19, Sector-9, Rohini, Delhi-110085.

3. Paragraphs 2, 3, 6 and 7 of your notice contain false and self-serving statements. Our client was desirous of selling the flat in question on 'as is where is basis' which your client agreed to for a consideration of Rs. 18,00,000 and paid a sum of Rs. 1,00,000 on 30.03.2004. The parties agreed to execute an agreement to sell embodying necessary terms and conditions of the transaction. Instead of so executing agreement to sell in due time, your client started suggesting new conditions which are not at all agreeable to our client.

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4. The statements contained in paragraphs 5 and 12 are equally false. Your client knows very well that the time taken by the DDA for conversion of the said flat from leasehold to freehold is beyond the control of my client.
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6. Our client disavows allegations contained in paragraphs 8, 9, 10 and 11 of your notice. Our client has no obligation to furnish the documents required by the banks of your client to obtain bank loans or comply with other requisites. In law, delivery of documents of title is made only at the time of execution of the registered sale deed. Consequently, requests made in paragraph 13 of your notice are wholly premature.

10. This document was admittedly sent on behalf of the defendant and has been marked as Exhibit P-5. It contains admissions of the defendant's ownership of the suit property; of the agreement dated 30th March, 2004 for selling the suit property 'as is where is basis' to the plaintiff for the total sale consideration of Rs. 18 lakhs and the receipt of Rs. 1 lakh by the defendant. This notice was purportedly sent in reply to the letter dated 29th April, 2004.

11. The plaintiff denied the assertions made by the defendant to avoid the agreement by a legal notice sent to counsel for the defendant on 8th May, 2004 (Exhibit P-6). In this notice, the plaintiff once again reminded the defendant thus:

4. It is totally wrong that parties agreed to execute any further Agreement to Sell as alleged by you. It is further wrong that my client started suggesting new conditions, as alleged by you. Even your client has not dared to disclose that what were the such conditions which my client suggested and how and why your client was not agreeable. You would appreciate and would impress upon your client that in respect of sale of property concern of the seller is to receive the agreed consideration amount and it is his obligation and his duty to execute sale deed and hand over vacant possession of the property. As my client is agreed and is ready to pay the balance amount of consideration of Rs. 17,00,000/- (Rupees Seventeen Lakh Only) on or before 13.5.2004 therefore, the allegations made by you in said para are false and frivolous and it seems they are with ulterior motives. It is wrong that information in respect of my client and his relatives are not known to your client. It is further wrong that the same are not related to the deal. It is stated that because of said situation my client agreed to purchase the flat No. 34 of your client.

5. That para 4 of your reply notice is wrong. You are informed that it was your client who informed my client that he has already applied for conversion of said flat from leasehold to freehold right and said request has been accepted by DDA and only few formalities are remained i.e. signing of Conveyance Deed which is a formality. You are informed that the said Conveyance Deed is required to execute the sale deed of the said flat and your client is fully aware that without the said Conveyance Deed the sale deed of the flat cannot be executed in favor of my client and therefore your client agreed that he will obtain the Conveyance Deed so that a sale deed of the flat is executed in favor of my client. You are informed that my client is aware that how much time is taken by DDA for conversion of flat and my client is aware of the fact. That the time is not beyond control of your client as DDA has already fixed time and upper limits of time for conversion of leasehold to freehold and moreover once the request is accepted by DDA then it remains only formalities for execution of Conveyance Deed and as informed by your client the request has already been accepted by DDA.

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9. That in view of above please advise your client to receive the balance amount of consideration i.e. Rs. 17,00,000/- (Rupees Seventeen Lakh only) and simultaneously execute the sale deed of the said flat in favor of my client and also hand over vacant possession of the flat to my client. Also advise your client to fix a date by mutual consent or let your client inform my client on which date he is in possession to execute he sale deed of the said flat and hand over vacant and physical possession of the said flat so that other formalities are completed. Please also advise your client to complete the sale transaction of the said flat in the same spirit and manner and the congenial environment in which he agreed to sell the said flat to my client and please advise your client that only obligation of my client is to pay the balance amount of sale consideration and other expenses which are related to the registration of the sale documents and rest of the obligations are of your client.

12. Thereafter, the plaintiff received yet another communication from the defendant's counsel which was also dated 6th May, 2004 wherein it was for the first time stated that the defendant did not wish to sell the flat to the plaintiff. In this behalf, the defendant stated thus:

2. We would only like to add that mere acceptance of Rs. 1,00,000/- provisionally and issuing receipt for the same without specifying detailed terms and conditions of the proposed sale does not create any right in your client. For the reasons already stated our client does not wish to sell the flat in question to your client. The requests made in paragraphs 10, 11 and 12 of your notice under reply cannot therefore be complied with. Our client is, however, willing to refund the sum of Rs. 1,00,000/- if you indicate to us the date, time, venue and mode of payment.

This communication has been admittedly sent on behalf of the defendant and has been marked as Exhibit P-7.

13. Contradictorily, the defendant caused yet another legal notice to be issued to the plaintiff dated 13th May, 2004 and has been exhibited on record as Exhibit P-8 which states that it is in reply to the notice dated 8th May, 2004 sent on behalf of the plaintiff. In this notice, the defendant retracted the stand taken in Exhibit P-7, which is the second notice dated 6th May, 2004 and this time informed the plaintiff thus:

2. At this stage, it is only pertinent to state with reference to paras 8 and 9 of your rejoinder notice dated 8.05.2004 that your client has asserted it umpteen number of times that he has made arrangement for the balance amount of Rs. 17 lakhs and is keen to make the payment within 45 days of the alleged "agreement", so that the sale deed may be executed, I wish to inform you that my client shall be present in the sub-registrar's office, Pitampura on 14.05.2004 at 11 A.M. with the necessary documents. Please advise your client to make arrangement for D.D for Rs. 17 lakhs and the necessary stamp duty papers and reach the office of sub registrar at 11 A.M. on that day so that the sale deed can be executed. I wish to warn you that if your client fails to fulfill all the necessary obligations on his side in this regard, his advance money will stand forfeited.

14. My attention has been drawn to the fact that this notice has been issued on 13th May, 2004, that is only one day before the expiry of the 45 days' deadline on the 14th of May, 2004. The plaintiff has pointed out that the statements made by the defendant in this notice were only a reiteration of what was stated in the receipt cum agreement dated 30th March, 2004 and that the assertions on behalf of the defendant by themselves embodied the complete requirements of an agreement to sell immovable property.

15. It is also noteworthy that till this time, there is no challenge on behalf of the defendant, who has been communicating under legal advice through counsel, to the legality and validity of the agreement as contained in the receipt dated 30th March, 2004. I find that the defendant has clearly and unequivocally expressed his intention to stand by the agreement dated 30th March, 2004 and to sell the suit property to the plaintiff by this communication.

16. The plaintiff has pointed out that it was ready and willing with the balance sale consideration on the 11th May, 2004 itself. The plaintiff has placed reliance on the bank draft bearing No. 191972 dated 11th May, 2004 which he had got issued from the Oriental Bank of Commerce, Uttri Pitampura, Delhi in favor of Shri B.P. Mishra, the defendant herein for the sum of Rs. 17 lakhs. It has been contended that this bank draft was got prepared by the plaintiff in order to meet his liability to the defendant under the agreement to sell dated 30th March, 2004 and that the same was in the plaintiff's hand from 11th May, 2004. The plaintiff had also intimated the defendant of this amount being ready in his hand and in fact, had been repeatedly calling upon the defendant to set up a date of mutual convenience so that the amount would be paid on or before the 14th of May, 2004.

17. The plaintiff has placed before this Court, a receipt from the office of the Sub-Registrar, Pitampura bearing No. 442077 dated 11th May, 2004 to evidence the fact that he was present at the office of the Sub-Registrar as notified to the defendant on this date. Learned Counsel for the defendant has pointed out that this receipt has been issued in favor of Shri Arun Tiwari, Advocate who as per this receipt, had visited the Sub-Registrar's office for the purposes of inspection of some record and that this receipt does not evidence any visit by the plaintiff. In my view, nothing material turns on this document.

This is for the reason the plaintiff has placed on record a receipt bearing No. 442271 issued by the office of the Sub-Registrar of the North-west District dated 14th May, 2004 which evidences a visit by Shri Gulshan Kumar, the plaintiff herein. This document contains a reference to the suit property. This receipt mentions the name of the presenter of the documents as Gulshan Kumar and against the columns of date of presentation, nature and amount of consideration of documents is mentioned at '34, Kadambari Apartments, Sector-9, Rohini'.

18. Mr. V.K. Tandon, learned Counsel for the defendant has objected that this document also does not evidence a visit by the plaintiff for the purposes of execution of the sale deed inasmuch as the document bears the word 'inspection' on the same.

So far as this objection is concerned, I find that the plaintiff has utilized this document only to evidence the fact that he actually visited the Sub-Registrar's office on the 14th of May, 2004 in terms of the agreement between the parties. He has also established on record the fact that he was possessed of the bank draft of Rs. 17 lakhs in favor of the defendant and the draft has been issued as back as on 11th May, 2004 which was the balance sale consideration to be payable to the defendant. This document does evidence the visit of the plaintiff to the office of the Sub-Registrar on 14th of May, 2004.

19. In these circumstances, the plaintiff has contended that it was throughout ready, willing and able to perform his part of the agreement dated 30th March, 2004 and that it was the defendant who was attempting to get around and avoid the completion of the contract and taking a vacillating stand.

Furthermore, it has been pointed out that in order to obtain the stamp paper and to prepare the draft sale deed, certain essential particulars had to be incorporated therein and yet the defendant had refused to make available even copies of the documents of title and possession of the defendant to enable the plaintiff to prepare the document of conveyance.

Mr. Narula, learned Counsel for the plaintiff points out that the defendant on 6th May, 2004 (Exhibit P-7) has communicated that he wish to refund the amount and on the eve of the last date of the period prescribed by the agreement and also sent a letter dated 13th May, 2004 submitting that he was interested to sell the property. It is contended that the defendant had clearly acted so as to create a situation whereby he could assert default on the part of the plaintiff in order to avoid the agreement. It has been pointed out that in the letter dated 6th May, 2004 (Exhibit P-5), the defendant had dishonestly tried to create an impression as if there was no firm agreement to sell between the parties and asserted that even the acceptance of Rs. 1 lakh was provisional.

20. The plaintiff has stated that despite the above, on the 14th of May, 2004, the plaintiff had met the defendant at the office of Sub-Registrar, Pitampura, Delhi but the defendant had refused to supply any copies of the documents relating to flat or to permit the defendant for inspection of the flat or even to give complete information as to the status of possession of the flat.

In these circumstances, the bank draft of Rs. 17 lakhs was not handed over to the defendant and the intention of the defendant displayed a mischievous desire and his contradictory conduct was such as to clearly prevent execution of the sale deed in favor of the plaintiff on 14th May, 2004. As such, the plaintiff was constrained to file the present suit on 17th May, 2004 seeking the following reliefs:

a) pass a decree for specific performance in respect of sale of flat No. 34, Kadambari, Plot No. 19, Sector-9, Rohini, Delhi-110085 and further direct the defendant to hand over the vacant and peaceful possession of the said flat No. 34, Kadambari, Plot No. 19, Sector-9, Rohini, Delhi-110085 and also direct the defendant to execute the Conveyance Deed/sale deed or any other documents in respect of sale of the said flat No. 34, Kadambari, Plot No. 19, Sector-9, Rohini, Delhi-110085 in favor of the plaintiff or in alternative plaintiff be granted the compensation;

b) plaintiff be awarded and defendant be directed to pay an amount of Rs. 4,00,000/- as compensation in addition to the decree for specific performance;

c) Cost of the suit be awarded to the plaintiff against the defendant.

d) grant such other and further relief as this Hon'ble Court deem fit and proper under the facts and circumstances of the case in favor of the plaintiff and against the defendant.

21. When the suit was listed on the 18th May, 2004, this Court passed the following order on the interim application filed under Order 39 Rule 1 and 2 of the CPC being I.A. No. 3221/2004 which reads thus:

18.5.2004

Present : Mr. Anand Yadav with Ms. Anita Tomar for the plaintiff

CS (OS) No. 526/2004

Let the plaint be registered as a suit.

Issue summons to the defendant by registered AD post as well as through approved courier for 20th July, 2004.

IA No. 3221/2004

Notice for 20th July, 2004.

Till then, the defendant stands restrained from selling, alienating, transferring, parting with possession or creating third party interest in Flat No. 34, Kadambari, Plot No. 19, Sector-9, Rohini, Delhi.

Order XXXIX Rule 3 CPC be complied within four days. dusty.

22. The defendant had taken an objection that the plaintiff had not filed the original of the bank draft dated 11th May, 2004. I find that in para 12 of the written statement, the defendant has stated thus:

12. That the contents of paragraph No. 15 are false and hence denied. It is the plaintiff who was not willing to enter into an agreement to sell embodying the necessary terms, conditions and covenants. The fact that he allegedly made arrangement for payment of Rs. 17 lakh to the defendant, dehors the loan from the Oriental Bank of Commerce, shows that he really did not require any loan and his letter dated 10.4.2004 and the Bank's reply dated 15.4.2004 are part of the conspiracy to seize the documents of title from the defendant without entering into agreement to sell. The defendant has grave doubts about the continued existence of the Manager's cheque dated 11.5.2004. The defendant hereby calls upon the plaintiff to produce the said Managers cheque. The defendant respectfully submits that the sum of Rs. 17 lakhs should be secured by deposit of the same in the court in the interest bearing fixed deposit to abide by the result of the suit.

Based on this objection, the defendant filed I.A. No. 5982/2005 and sought dismissal of the suit for non-filing of this document.

23. The plaintiff had filed a reply dated 11th November, 2005 wherein it was stated thus:

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It is submitted that said draft was got cancelled by the plaintiff on 14.6.2004 and now amount of the said draft is credited to the account of plaintiff. Original letter dated 26.9.2005 issued by the Oriental Bank of Commerce is attached as Annexure A. It is submitted that the said pay order after cancellation is now in the possession of the said Bank. Plaintiff submits that plaintiff was ready and willing to make the payment of the balance amount of sale consideration even at that time and he is still willing and ready to make the payment of balance amount of the said sale consideration to the defendant. It is submitted that plaintiff had arrangement to make the payment of balance amount of sale consideration and even he has arrangement today.

24. The plaintiff had also enclosed the bank certificate dated 26th September, 2005 to this reply whereby the Oriental Bank of Commerce has issued a certificate that a pay order No. 191972 for Rs. 17,00,000/- (Rs. Seventeen Lacs only) was issued on 11/05/2004 in favor of Shri B.P. Mishra S/o Sh. Suresh Chandra Mishra on A/c of Sh. Gulshan Kumar and the same was cancelled on 14/06/2004 and the amount was credited to SB14087 of Sh. Gulshan Kumar.

25. In this background, I.A. No. 5982/2005 was dismissed as having no merit by the order dated 17th April, 2006. This Court also recorded that the document at item 21 was a bank draft which admittedly had been encashed. It was held that the plaintiff cannot be in possession of the draft any more and therefore, non-filing of the draft would not amount to the non-compliance with the order dated 2nd December, 2004.

26. So far as disposal of I.A. No. 3221/2004 is concerned, it is necessary to notice in extenso the order recorded on this application passed by this Court on 17th April, 2006 which reads thus:

17.04.2006

xxx IA No. 3221/2004

The prayer in this application is for ordering the defendant to restrain from selling, alienating or transferring the suit property. Learned Counsel for the defendant says that the plaintiff cannot be granted any such prayer unless the plaintiff deposits in Court the value of the suit property in respect of which the plaintiff is stated to have entered into an agreement to purchase with the defendant. The value alleged by the plaintiff is the sum of Rs. 18.00 lakhs and the outstanding amount is Rs. 17.00 lakhs.

The agreement in question is embodied in a receipt dated 30.3.2004 for a sum of Rs. 1.00 lakh in which there is an averment that the total consideration of the flat, that is, Flat No. 34, Sector-9, Rohini would be Rs. 18.00 lakhs. The existence of the agreement also allegedly stands admitted in the notice dated 6.5.2004 by Ms. Chitra Markanday, Advocate to Mrs. Anita Tomar, Advocate. Apparently the parties were to execute a sale deed at the office of the Sub-Registrar within 45 days of the notice dated 6.5.2004. On behalf of the defendant it is contended that the plaintiff never thereafter offered to pay the balance money. Learned Counsel for the defendant now submits that the bona fides of the plaintiff can be put to test by calling upon the plaintiff to deposit the balance sale consideration in Court. Admittedly the suit property is now occupied by a tenant. May be the tenancy has now expired but the tenant is still in possession of the suit property. Therefore, to that extent the possession of the suit property has already been parted with by the defendant and the possession of the tenant is a right which cannot be disturbed in the present proceedings. The defendant, however, holds the title to the suit property and the defendant can be injuncted from parting with the title. Accordingly, it is directed that the plaintiff deposits the balance sale consideration within two weeks hereof and on the condition of the plaintiff complying with this order the defendant is restrained from alienating his title to the suit property during the pendency of the suit.

The application stands disposed of.

27. This Court, on the objections taken by the defendant, thus directed the plaintiff to deposit the amount of Rs. 17 lakhs in this Court. The order also records the finding that the defendant has admitted the existence of the agreement in the notice dated 6th May, 2004 sent on behalf of the defendant to counsel for the plaintiff.

28. Pursuant to the order dated 17th April, 2006, the plaintiff has deposited the amount of Rs. 17 lakhs by the following four pay orders in this Court:

     Pay Order No.       Date               Amount
1. 932053              26/04/06           5,00,000/-
2. 932057              26/04/06           4,00,000/-
3. 932060              27/04/06           4,00,000/-
4. 932075              27/04/06           4,00,000/-

 

The plaintiff has also deposited the draft of the sale deed proposed on his behalf. 
 

29. The present application has been filed in the foregoing facts pointing out that the defendant has admitted the execution of the agreement dated 30th March, 2004 and in the light of the admissions made in the written statement and in the documents, the plaintiff is entitled to a decree in its favor as per the provisions of Order 12 Rule 6 of the CPC.

The plaintiff has pointed out that the admissions made by the defendant in para 5, 10, 11, 12, 15, 18, 19, 20 and 23 of the written statement, the documents noticed above as well as in the proceedings dated 17th April, 2006.

30. Mr. V.K. Tandon, learned Counsel for the defendant has vehemently contested this application and contended that the receipt dated 30th March, 2004 was a tentative receipt, was forged and fabricated by the plaintiff by affixation of revenue stamp and interpolation of Dr. Khurana's signatures. As such, it was liable to be referred to Central Forensic Science Laboratory for verification of the signatures. Consequently, it is submitted that there is no admission by the defendant which would entitle the plaintiff to a decree.

31. I have given my considered thought to the respective contentions of the parties. It is noteworthy that apart from the documents noticed above, the defendant has placed strong reliance on the declaration given by the defendant to the Sub-Registrar on 14th of May, 2004 which has been filed by the defendant before this Court. In this declaration, the defendant stated thus:

Declaration

This Declaration is made and executed at Delhi on this 14th day of May, 2004 by me, Bhanu Pratap Mishra S/o Sh. Suresh Chandra Mishra, R/o 4, Staff Quarters, K.M. College, Delhi-110007, hereinafter called the executant.

Whereas, I the above named executant had agreed to sell, flat No. 34, Kadambri Apartments, Plot No. 19, Sector-9, Rohini, Delhi-85 to Shri Gulshan Kumar S/o Shri Jagan Nath R/o G-2/95-96, Sector-16, Rohini, Delhi-110085, vide receipt of advance, dt. 30.03.2004. The last date for the final payment and the execution of all transfer documents, was fixed as 14.5.2004. Today on 14.5.2004, I have come to the office of S.R. VI, Pitampura, Delhi to execute get all transfer documents in the purchaser's favor and have been awaiting for the purchaser, but he did not turn up. I am ready to execute all the transfer documents in favor of purchaser but the purchaser did not turn with the balance payment regarding the above said property. I am ready to discharge my part of obligation; and have been awaiting for the above said purchaser but he did not come with the balance payment.

I am left with no option, but to record my presence in the office of S.R. VI, Pitampura, Delhi; as such I am getting this declaration registered so that the purchaser may not hold me liable and responsible and put the blame of default on me on false and frivolous excuse.

In witness whereof, I have signed and executed this Declaration at Delhi on this 14th day of May, 2004 in the presence of following witnesses:

WITNESSES:

1. Sd/- Sd/-

2. Sd/- EXECUTANT

32. From a bare perusal thereof, it is apparent that even on 14th May, 2004, the defendant was not disputing the validity and bindingness of the agreement dated 30th March, 2004. This agreement stands substantially admitted in the written statement filed by the defendant and also in the legal notices dated 6th May, 2004 (Exhibit P-7) and 13th May, 2004 (Exhibit P-8).

Furthermore, the principles laid down by this Court in AIR 1991 Delhi 315 Nanak Builders and Investors Pvt. Ltd. v. Vinod Kumar Alag are instructive in this behalf. It was held by this Court that:

9. Now coming to the 'receipt', Ex. P-1, as already noticed above, the essential substantial terms have been agreed upon and reduced into writing therein. It does not contain any mention that a formal agreement of sale will be executed. Therefore, it is not possible to hold that the same does not amount to a contract. Looking at it from a different angle one may ask as to when the stage for payment of earnest money or token money arises? The answer is that the occasion for payment of earnest money arises only in pursuance of an agreement i.e. when the essential terms and conditions are finalised. The fact that the vendee parts with a substantial amount in favor of the vendor shows that the parties have reached a consensus on the various terms of the arrangement between them meaning thereby that a contract has been arrived at. It is also worth noting that the defendant never brought out or averred that a formal contract had to be executed between the parties after the receipt dated 16th October, 1985. In view of this conduct of the defendant, the defendant is also estopped from alleging that there is no contract between the parties and the document Ex. P-1 is a mere receipt not amounting to a contract.

10. Mere heading or title of a document cannot deprive the document of its real nature. Law is well settled in such matters that it is the substance which has to be seen and not the form. It may be sufficient to refer to Md. Akbar Khan v. Attar Singh AIR 1936 PC 171 and C.I.T. Punjab v. Panipat W and G Mills AIR 1976 SC 640 in this behalf. As already noticed above, the document Ex. P-1, though titled as a 'receipt' contains all the essential ingredients of a 'contract' and, therefore, I have no hesitation in holding that this is a contract and the plaintiff can seek specific performance thereof. The counsel for defendant has also submitted that Ex. P-1 does not bear the plaintiff's stamp, though it is conceded that Sh. Nanak Ram, who has signed the plaint and the power of attorney in the present suit, has signed this document on behalf of the plaintiff. The mere absence of the rubber stamp of the plaintiff company does not render the document as a mere receipt. I have noticed this argument of the counsel for the defendant, though I need not have done so in statement in this behalf. The further argument of the counsel for defendant that there is no acceptance of the offer of the defendant/vendor by the plaintiff is also factually incorrect because Ex. P-1 has been signed on behalf of the plaintiff with the following endorsement:

I confirm the above.

11. In view of the above discussion, I hold that Ex. P-1 is a contract on the basis whereof the plaintiff can seek specific performance as per the provisions of Chapter II of the Specific Relief Act.

33. For all these reasons, the objection that the receipt dated 30th March, 2004 does not amount to a legally enforceable agreement to sell. This objection has to be rejected in the light of the stand of the defendant taken in its various letters noticed above.

34. There is yet another material fact which would discredit the pleas taken by the defendant in its reply to this application.

35. In the rejoinder filed by the plaintiff in I.A. No. 5163/2006, the plaintiff has pointed out that the defendant has since obtained even the conveyance deed pursuant to the conversion which was applied for by him. It has been pointed out that the defendant had applied for conversion as back as in 2001 which was permitted by the Delhi Development Authority and a registered conveyance deed dated 5th May, 2004 was executed by the Delhi Development Authority in favor of the defendant. Copy thereof has been now obtained by the plaintiff and placed before this Court.

Despite this conversion, the defendant has dishonestly withheld intimation thereof to the plaintiff. On the contrary, as noticed above, in his legal notice dated 6th May, 2004 (Exhibit P-5) has stated that the time which would be taken for conversion was indeterminate. The defendant did not disclose that the conveyance deed stood executed by the DDA in his favor on 5th of May, 2004 in any communication to the plaintiff.

36. The defendant has concealed this fact even from this Court. There is no dispute that this fact has not been disclosed even in the written statement or in any reply filed by the defendant which were filed after the 5th of May, 2004 when the conveyance deed was executed by the DDA in favor of the plaintiff. This fact was certainly material and would have changed the nature of the conveyance which the defendant was required to execute in favor of the plaintiff. Thus, the plaintiff is certainly guilty of concealment of material particulars.

37. In para 19 of the written statement, the defendant has stated that it was under no obligation to furnish documents of title. Undoubtedly, the defendant was not required to furnish the original document till receipt of the full payment. However, even in order to purchase the stamp paper and to prepare the draft sale deed, the plaintiff was entitled to photocopies of the documents. The defendant in the declaration dated 14th May, 2004 has clearly admitted the legality, validity and bindingness of the agreement dated 30th March, 2004. The objections which have been raised in the reply to this application and the written statement were never raised by the defendant in any of the communications sent by him through his counsel and clearly have to be rejected.

38. From the above discussion, I find that the following position emerges from the statements made by the defendant:

I. The defendant had agreed to sell the suit property to the plaintiff on the 30th March, 2004 for a total sale consideration of Rs. 18 lakhs (admitted in receipt dated 30th March, 2004, Exhibit P-1); legal notice dated 6th May, 2004 sent on behalf of the defendant (Exhibit P-5); legal notice dated 13th May, 2004 sent on behalf of the defendant (Exhibit P-8); and declaration dated 14th May, 2004 of the defendant (Annexure R-2 at page 32 of the written statement).

II. The plaintiff had received a sum of Rs. 1 lakh as earnest money while the balance sale consideration of Rs. 17 lakhs was to be paid within 45 days of the receipt cum agreement dated 30th March, 2004.

III. Despite repeated requests, the defendant refused to make available even photocopies of the allotment letter, possession letter, share certificate issued by the society and the other documents which would evidence and establish the nature of the defendant's rights in the suit property to enable drafting of the conveyance deed of title in favor of the plaintiff.

IV. Conversion of the flat from leasehold to freehold has been processed by the Delhi Development Authority and in fact even a registered conveyance deed dated 5th May, 2004 stood executed by the Delhi Development Authority. Pursuant to the application made by the defendant in the year 2001, this conveyance deed has been registered in accordance with law on the 5th of May, 2004 and bears the signatures of the defendant as a purchaser. As a result of this conveyance deed, the defendant became the absolute owner of the suit property and stood divested of all liabilities under the lease deed under which he was earlier exercising rights.

V. The defendant did not inform the plaintiff that the registered conveyance deed stood executed in his favor. On the contrary an impression was created as if the matter was pending with the DDA.

VI. The defendant had got prepared the pay order dated 11th May, 2004 in the sum of Rs. 17 lakhs from the Oriental Bank of Commerce in favor of the plaintiff which pay order was cancelled by him on the 14th June, 2004.

VII. Before the cancellation of this pay order itself, the defendant had made a statement in this Court on 17th April, 2006 to the effect that the bona fides of the plaintiff be put to test by calling upon him to deposit the balance sale consideration in this Court. The court had so directed the plaintiff to deposit the balance sale consideration in court in two weeks. On the condition of such deposit, this Court had prohibited the defendant from alienating his title to the suit property.

VIII. In compliance of the order dated 17th April, 2006, the plaintiff has deposited the amount of Rs. 17 lakhs i.e. the balance sale consideration in this Court by four pay orders (two dated 26th April, 2006 and two dated 27th April, 2006).

39. It is now necessary to consider the mandate of Order 12 Rule 6 of the CPC under which the present application has been filed. Order 12 Rule 6 of the CPC enables a court at any stage of the suit where admissions of fact have been made either in pleadings or otherwise, whether orally or in writing, without waiting for the determination of any other question between the parties, to make such order or give such judgment as it may think fit, having regard to such admissions. The admission is the best piece of evidence against the person making it.

40. The object of this rule came up for consideration before a Division bench of this Court in 2003 III AD (Delhi) 419 Delhi Jal Board v. Surendra P. Malik. The court noticed that Order 12 Rule 6 confers almost sweeping power on the court to render a speedy judgment in the suit to save the parties from going through the rigmarole of a protracted trial. Such judgment has to be passed on admissions of fact which are clear and unequivocal, unconditional and may relate to the whole claim or part of it. These admissions need not be made specifically or expressly and could be constructive admissions also. The Division Bench in this judgment laid down the following test. "9. The test, therefore, is (i) whether admissions of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defense set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment.

41. In Uttam Singh Duggal & Co. v. Union Bank of India and Ors., the Apex Court had occasion to consider the impact of an evasive and unspecific denials. It was held by the court that the same amounts to an unequivocal admission of the contents of document relied upon by the plaintiff. It would be useful to consider the observations of the Apex Court in extenso which read thus:

13. The next contention canvassed is that the resolutions or minutes of meeting of the Board of Directors, resolution passed thereon and the letter sending the said resolution to the respondent bank cannot amount to a pleading or come within the scope of the Rule as such statements are not made in the course of the pleadings or otherwise. When a statement is made to a party and such statement is brought before the Court showing admission of liability by an application filed under Order XII, Rule 6 and the other side has sufficient opportunity to explain the said admission and if such explanation is not accepted by the Court, we do not think the trial Court is helpless in refusing to pass a decree. We have adverted to the basis of the claim and the manner in which the trial Court has dealt with the same. When the trial Judge states that the statement made in the proceedings of the Board of Directors meeting and the letter sent as well as the pleadings when read together, leads to unambiguous and clear admission with only the extent to which the admission is made is in dispute, and the Court had a duty to decide the same and grant a decree, we think this approach is unexceptionable.

14. Before the trial Judge, there was no pleading much less an explanation as to the circumstances in which the said admission was made, so as to take it out of the category of admissions which created a liability. on the other hand, what is stated in the course of the pleadings, in answer to the application filed under Order 12 Rule 6 CPC, the stand is clearly to the contrary. Statements had been made in the course of the minutes of the Board of Directors' meeting held on 30.5.1990 which we have already adverted to in detail. in the pleadings raised before the Court, there is a clear statement made by the respondent as to the undisputed part of the claim made by them. In regard to this aspect of communicating the resolution dated 30.5.1990 in the letter dated 4.6.1990 what is stated in the affidavit-in-opposition in application under Order 12 Rule 6 CPC is save what are matters on record and save what would appear from the letter (sic resolution) dated 30.5.1990 all allegations to the contrary are disputed and denied. This averment would clearly mean that the petitioner does not deny a word of what was recorded therein and what is denied is the allegation to the contrary. The denial is evasive and the learned Judge is perfectly justified in holding that there is an unequivocal admission of the contents of the documents and what is denied is extent of the admission but the increase in the liability is admitted.

42. Order 12 Rule 6 of the CPC has been enacted for the purposes of expediting adjudication in the face of admissions on the part of the defendant. In Lal Mehra and Ors. v. Kamal Saroj Mahajan (Smt.) and Anr., the Apex Court has held that where there is any admission on the part of the defendant or an admission can be inferred from the facts and circumstances of the case without any dispute, even then in order to expedite and dispose of the case, such an admission can be acted upon.

43. In order to decide this application filed by the plaintiff seeking a decree on admissions, it would be necessary and appropriate to examine the statutory provisions which would govern the relief of specific performance of an agreement. Sections 16 to 20 of the Specific Relief Act, 1963 are concerned with the grant of the specific performance of an agreement to sell. It is well settled that specific performance is a discretionary relief and cannot be claimed as a matter of right. However, such discretion to grant specific performance of an agreement to sell immovable property is governed by the statutory provisions of Sections 16 to 20 of the Specific Relief Act, 1963 and sound judicial principles determined by various judicial pronouncements.

44. Section 16(c) of the Specific Relief Act, 1963 provides that specific performance of a contract would not be enforced in favor of a person who fails to aver and prove that he has performed or has always been ready, willing and able to perform the essential terms of the contract which are to be performed by him, other than the terms of performance which have been prevented or waived by the other side.

For the purposes of Clause (c), this statute contains an explanation (i) which states that where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court.

45. Section 20 of the statute confers discretion on the court to grant or not to grant decree for specific performance. A contract may be specifically enforced if the court arrives at a conclusion that the same gives the plaintiff an unfair advantage over the defendant or that the performance of the contract would involve some hardship on the defendant which he did not foresee while its non-performance would involve no such hardship to the plaintiff.

A third condition where the specific performance may not be decreed is where the defendant entered into the contract under the circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

46. It is therefore evident that in a suit for specific performance of an agreement to sell and purchase the immovable property, only two issues arise for consideration by the court which would:

(i) whether the agreement to sell as alleged by the plaintiff is lawful, validly executed and binding.

(ii) whether the plaintiff who is a purchaser has complied with the provisions of Section 16(c) of the Specific Relief Act, 1963 in establishing that it has performed and has been ready, willing and able to perform his part of the contract.

47. In order to ascertain as to whether the plaintiff was ready and willing to perform his part of the contract, the sequence in which the obligations under the contract are to be performed are required to be taken into consideration. (Ref: Ajit Prasad Jain v. N.K. Widhani and Ors. (at page 42 para 23)

48. From the statements made by the defendant in the legal notices noticed hereinabove and the declaration dated 14th May, 2004 and the written statement, there is no real contest to the execution or the bindingness of the agreement dated 30th March, 2004.

49. I find that a half-hearted argument was raised by the defendant in court to the effect that the receipt dated 30th March, 2004 could not be enforced for the reason that the same was not stamped for execution in accordance with law. I find that the defendant has taken a mutually destructive and contradictory stand at different places. Such a plea taken in answer to I.A. No. 5163/2006 is certainly in material contradiction to the pleas taken by the defendant in its written statement or in the notices dated 6th May, 2004 and 13th May, 2004 and the declaration given by the defendant on the 14th of May, 2004.

50. In this behalf, I find that this Court has laid down the principle that in order to invoke the provisions of Order 12 Rule 6 of the Code of Civil Procedure, the court is required to scrutinise the pleadings in detail. The court is required to ignore vague, evasive and unspecific denials as also inconsistent pleas in the written statement and reply. Even a contrary stand taken while arguing the matter is required to be ignored. (Ref. Rajiv Saluja v. Bhatia Industries Ltd. and Anr. and Rajiv Sharma and Anr. v. Rajiv Gupta)

Therefore, the challenge to the agreement, if contradictory to the prior stand of the defendant has no legal basis and has to be rejected.

51. I also find that a half-baked challenge has been asserted with regard to the readiness and willingness of the plaintiff and ability to make the payment. In Motilal Jain v. Ramdasi Devi and Ors., the Apex Court held that readiness and willingness cannot be treated as a straight jacket formula and the same had to be determined from the facts and circumstances which are relevant to the intention and conduct of the parties.

It has further been held in Nirmal Anand v. Advent Corporation Pvt. Ltd. that it is the respondents who have always been and are trying to wriggle out of the contract and that they cannot be permitted to take advantage of their own wrongs and then plead that grant of the decree for specific performance would confer an unfair advantage to the appellant.

52. Before this Court, I find that the plaintiff has placed the pay order issued by the bank as well as the certificate issued to him and the same was cancelled on the 14th June, 2006 after this Court had directed deposit of the balance sale consideration in court. This amount was so deposited by the plaintiff in court as directed.

53. In the light of the conduct of the defendant and the submissions on his behalf in the written statement and in the proceedings and in view of the principles laid down by the Apex Court, it cannot be held that the plaintiff was not ready, willing and able to perform his part of the agreement.

54. I further find that the defendant was vacillating and taking a contradictory stand in communications purportedly of the same date. While in letter dated 6th May, 2004 sent through its counsel, the defendant admitted agreement dated 30th March, 2004. By another communication of the same date, the defendant submitted that he did not want to sell the property to the plaintiff and expressed willingness to refund the sum of Rs. 1 lakh. Contradictorily, on 13th May, 2004, the defendant notified the plaintiff to be present at the office of the Sub-Registrar on 14th May, 2004 for payment of the balance sale consideration and the necessary stamp duty papers at 11.00 a.m. for execution of the sale deed. In none of the communications from the defendant was the fact of the conveyance deed dated 5th May, 2004 and the conversion of freehold intimated to the plaintiff. This would have a material bearing on the nature of the conveyance documents and even on the stamp duty which would have been payable.

55. The defendant has acted under legal advice. There can be no dispute that even purchase of the stamp paper requires a communication of the purpose for which they are required. It is not open to the defendant to contend that the factum of conversion to freehold was not a material fact or that the plaintiff was not required to know of the fact so as to purchase the stamp paper or to draft the conveyance deed in the correct terms so that the same could be executed.

56. The communication dated 13th May, 2004, even if sent in the early hours of the day would have been received almost in the late afternoon or at the end of the day. It would be humanly impossible to procure the stamp papers for the conveyance deed and to reach the office of the Sub-Registrar at 11.00 a.m., the next day. Even to withdraw the cash amount towards the sale consideration from the bank and to reach the office of the Sub-Registrar at 11.00 a.m. would have been impossible unless the plaintiff had access to a 24-hour bank facility which would have facilitated such a withdrawal.

57. From the timing of the notice dated 13th May, 2004 (Exhibit P-8), it is evident that the defendant was attempting to create a situation so that default could be attributed to the plaintiff with the intention of avoiding his liability under the same.

58. Strong objection has been taken by Mr. V.K. Tandon, learned Counsel for the defendant to the effect that the total sale consideration under the agreement was only Rs. 18 lakhs and that the suit has been over-valued for the purposes of jurisdiction. It has been contended that the valuation of the suit made by the plaintiff for jurisdiction at Rs. 22 lakhs has no basis and that this Court does not have the pecuniary jurisdiction to entertain and adjudicate upon the subject matter of the suit.

59. I find that while the court fees which is to be affixed on the plaint is determined by the Court Fees Act, however, valuation of a plaint for the purposes of jurisdiction is to be ascertained under the Suit Valuation Act.

So far as prayers in series based on the same cause of action are concerned, it is well settled that the court fee is liable to be affixed on the aggregate amount of the court fee which would be payable on such reliefs and the suit is to be also valued accordingly. In this view of the matter, I find no force in the objection taken by the defendant for valuation of the suit claim.

60. As noticed above, it was the obligation of the plaintiff to pay the balance sale consideration. The agreement has not said so many words, however, the plaintiff was called upon by the defendant to bring the stamp papers and to present himself for registration of the documents. However, as noticed above, this could have been accomplished only upon the plaintiff being informed as to the nature of the conveyance deed which was required to be executed.

61. As a mere lessee of the suit property, the defendant would not have been in a position to execute the sale deed. The defendant has concealed the factum of the sale deed/conveyance deed in his favor by the Delhi Development Authority from the plaintiff as well as from the court.

In this view of the matter, even assuming that the plaintiff had not presented himself at the office of the Sub-Registrar on 14th May, 2004, it cannot be held that the plaintiff was not ready, willing and able to perform his part of the contract as his responsibilities would have commenced only on disclosure of the complete facts by the defendant.

62. It is trite that in cases of contract of sale of immovable property, grant of specific performance is a rule while its refusal is only by way of exception which too can only be for valid and cogent grounds. [Ref. Ajit Prasad Jain v. N.K. Widhani and Ors. (para 22) and Nirmal Anand v. Advent Corporation Pvt. Ltd. (para 30)].

63. In the light of the foregoing discussions and the parameters statutorily laid for adjudication of a claim for specific performance of an agreement to sell immovable property, I find that the admissions on all material aspects of the matter on the part of the defendant are clear, unambiguous and unequivocal. No issue of fact or law which would disentitle the plaintiff to the relief of specific performance claimed by the plaintiff at all remains for consideration before this Court. The defendant has had adequate opportunity to explain his conduct as also the aforenoticed admissions. In the light of the clear documentary evidence, I find that no tenable explanation has been rendered which would disentitle the plaintiff to the relief.

64. I have noticed hereinabove that the defense set up by the defendant is not such which would require evidence for the determination of any issue which arises for consideration in the present matter so far as the relief of specific performance is concerned.

65. In the instant case, I find that there is no dispute to any of the material facts which are necessary for consideration in a suit for specific performance. There is no good or justifiable reason disentitling the plaintiff to the relief sought. No fault is attributable to the plaintiff and I find that there is no factual or legal ground whereby the plaintiff could be held disentitled to a decree for specific performance. The mandate of Sections 10, 16 and 20 of the Specific Relief Act, 1963 is clear and the prayer made by the plaintiff falls within the parameters of the discretion conferred on this Court to grant specific performance of an agreement to sell immovable property and for the consideration of an application filed for grant of a decree upon the admissions made by the defendant.

66. As the defendant before this Court has made clear and unequivocal admissions of all relevant issues not only in the legal notices sent on behalf of the defendant but also in the declaration executed by him and in the written statement as well as in the proceedings before this Court. Therefore, I find that there is no necessity for delaying adjudication or for proceeding to trial as no friable issues remain on which the parties would be required to put to evidence so far as the relief of specific performance is concerned.

For all the foregoing discussion, this application is allowed with costs which are quantified at Rs. 25,000/-.

It is held that the plaintiff is entitled to a decree for specific performance of the agreement dated 30th March, 2004 as prayed on the admissions of the defendant.