Pramod Building And Developers ... vs Smt. Shanta Chopra
2008 Latest Caselaw 31 Del

JUDGMENT

Shiv Narayan Dhingra, J.z

1. By the instant suit, the plaintiff sought the relief of specific performance of an agreement to sell entered into between the plaintiff and defendant on 26th October, 1988 and a supplementary agreement between the parties dated 2nd May, 1989. Vide agreement dated 26th October, 1988, defendant had agreed to sell her plot of land bearing No. E-47, Greater Kailash, Part-II, measuring 300 sq. yards to the plaintiff for a total consideration of Rs. 43.50 lac. At the time of entering into the agreement, the plaintiff had paid a sum of Rs. 9.5 lac as earnest money. The balance amount of sale consideration was to be paid at the time of registration of sale deed. The sale deed was to be got registered after the defendant had obtained income tax clearance certificate from income tax authorities and had given an intimation of receipt of the income tax clearance certificate to the plaintiff by a written notice. After entering into the agreement to sell, the defendant applied for the requisite certificate. The plaintiff pleaded that income tax clearance certificate No. AA/88-89/373 dated 6th January, 1989 was issued by the income tax authorities and copy of this income tax clearance certificate was sent to the plaintiff company being the purchaser of the plot. This was received by the plaintiff on 9th January, 1989. After receipt of this income tax clearance certificate, the plaintiff contacted the defendant but defendant told that she had not received the income tax clearance certificate and in any case she would execute the sale deed only after 31st March, 1989 as she did not want to subject herself to heavy tax on the sale consideration in the current financial years. The plaintiff demanded a letter from the defendant to this effect. As per the plaintiff version, the defendant assured of sending such a letter. However, no such letter was received by the plaintiff, on which the plaintiff sent a registered notice dated 27th January, 1989 informing the defendant that the plaintiff was ready and willing to pay the balance sale consideration and money was lying ready and plaintiff wanted to know when she would execute the sale deed as the plaintiff had not received any communication from the defendant. It is stated by the plaintiff that no reply to this notice/letter was received. The receipt of letter was not even acknowledged by the defendant. It is alleged that the defendant sent an envelop to the plaintiff containing no letter but a piece of advertisement and this envelop was received by the plaintiff on 18th February, 1989. After receiving this envelop, the plaintiff became suspicious of the intentions of the defendant and the plaintiff immediately sent a registered notice dated 18th February, 1989 to the defendant mentioning about the receipt of envelop containing advertisement in it and he expressed his grave suspicious on the motives of the defendant and again expressed its readiness to execute the sale deed. The plaintiff also threatened of taking legal action, both civil and criminal. To this letter, defendant sent a reply dated 27th February, 1989 wherein she denied sending of any such blank envelop to the plaintiff. She expressed her grave distrust to the plaintiff. The defendant also stated in the letter that apart from the written agreement as entered between the parties, there was an oral agreement between the parties that after raising construction over the plot of land purchased from the defendant, the plaintiff shall sell first floor of the constructed plot to the defendant for a price of Rs. 15 lac and this price was to be deducted out of the total sale consideration. The contentions raised by the defendant in the reply was refuted by the plaintiff and a correspondence ensued between the parties. Ultimately, the parties came at peace and a supplementary agreement dated 2nd May, 1989 was executed between the parties wherein following was agreed upon:

1. That the allegations levelled by the 1st party through notice as well as notices issued by or on behalf of both the parties are treated as withdrawn and the party of 1st part undertakes to execute sale deed as per agreement dated 26.10.1988 and agreement to sell dated 26th October, 1988 entered into between the parties stands as it was without any change whatsoever.

2. That the party of the 1st part shall apply for permission under Section 34A of the Income Tax Act within one week of the signing of this agreement.

3. That the party undertakes to inform the party of the second part about the permission under Section 34A of the Income Tax Act within one week of the receipt of the same and thereafter within one month the party of the 1st part will get the sale deed executed and the party of the second part/shall pay the balance amount before the Registrar.

4. That the necessary permission under Section 37(1) had already been obtained from the Income Tax authorities.

2. The plaintiff alleged in the plaint that the defendant had been trying to wriggle out of the contract because of the hike in prices of the properties during that period. After the supplementary agreement between the parties, the defendant vide letter dated 16th May, 1989, informed the plaintiff that she has received income tax clearance certificate and the sale deed should be executed and got registered by the plaintiff within one month. The plaintiff alleged that on receipt of this intimation, the plaintiff immediately deposited a sum of Rs. 3,48,000/- vide pay order No. 0356098 dated 22nd May, 1989 on American Express Bank in favor of Treasury Office for purchase of stamp paper for execution of the sale deed. The plaintiff vide its letter dated 24th May, 1989 informed the defendant about deposit of the amount and told her that sale deed would be executed on 14th June, 1989 and the payment of balance consideration would be done simultaneously at the time of execution of the sale deed and its registration. By this letter, the plaintiff also told the defendant that defendant would be required to produce the original title deeds, original letter of mutation issued by MCD pertaining to the plot in her favor and original receipt of payment of the property tax and any other documents relating to the plot. This letter was delivered personally by an employee of the plaintiff company to the defendant. The defendant got a draft sale deed prepared and at the time of delivery of this letter to the defendant, she also delivered, through the same person, to the plaintiff a copy of draft sale deed to be executed between the parties. The plaintiff has pleaded that this draft sale deed was very sketchy, incomplete, improper, illegal and was sent to the plaintiff only to invoke refusal from the plaintiff. It was sent to the plaintiff with mala fide intention. However, the plaintiff vide its letter dated 29th May, 1989 sent its own draft sale deed to the defendant accompanied by a draft affidavit to be executed by defendant for her approval. She was again called upon to bring original title deeds, the original letter of mutation, original receipt of property tax and other documents. The defendant replied to this letter through her advocate on 31st May, 1989 wherein she informed that the mutation letter was not traceable. As far as house tax was concerned, she informed that her property was not assessed to house tax so far, so she had not paid any house tax and that she had challenged one assessment notice before the court and a stay was granted by the Civil Court against assessment. She, therefore, took the stand that since she had not to pay any property tax, she had no receipt of the same. She agreed to bring original title deeds pertaining to the property, income tax clearance certificate etc. at the time of execution of sale deed. The defendant also objected to some of the clauses of the draft sale deed and insisted that the plot being sold was a residential property and it should be mentioned in the sale deed that it was a property for residential purposes only. The correspondence again ensued between the plaintiff and defendant and there was exchange of notices between them. The plaintiff contended that the defendant was not truthful, sincere and willing to execute the sale deed and she wanted to wriggle out of the agreement because of the rise in prices of the properties. The plaintiff was willing and ready to execute the sale deed but the defendant had been creating hurdles in the execution of the sale deed by not furnishing the mutation certificate and property tax receipts. Defendant also made counter allegations and showed her willingness to execute the sale deed. Ultimately, both the parties agreed on a draft sale deed. Plaintiff incorporated a clause in the sale deed that the property being sold to the plaintiff was residential in nature, as told by the defendant. The parties were to get the sale deed executed on 14th June, 1989. A day or two before 14th June, 1989, defendant wanted for its perusal and confirmation a photocopy of the bank draft got prepared by the plaintiff for balance consideration. This photocopy was sent to her and confirmation about incorporation of the necessary clauses pertaining to the property being residential in nature was also sent by the plaintiff. The plaintiff in its pleadings stated that this demand of the defendant, asking a copy of the draft was derogatory, insulting etc.

3. It is contended by the plaintiff that on 14th June, 1989, defendant came to the office of Sub Registrar at about 11.30 am. She had come there with a design to create false evidence regarding her readiness and willingness but in reality she was not ready and willing to execute the sale deed and was not ready and willing to hand over even the original title deeds of the property and to give anything in writing pertaining to the court proceedings (qua property tax), as contended by her. The defendant, at the behest of her husband, refused to deliver documents when plaintiff asked her to deliver the same. She refused to even show the documents and give anything in writing. She stated that she would not do anything and the money already received by her was appropriated by her. She, in order to show her make believe readiness and willingness to execute the sale deed, submitted an application to Sub Registrar just to mark her presence. She refused to answer questions put by the plaintiff and she did not give information regarding municipal record, whether her name was mutated or not. She refused to give a copy of letter of mutation. She refused to disclose as to what was the demand/assessment made by the MCD and for how many years it was pending and what was the liability towards the property tax according to her. She refused to show any paper pertaining to the civil court proceedings. She also refused to get the dispute qua property tax settled or to pay tax as demanded or levied under protest or to take any other such step in terms of agreement with plaintiff as a consequence of pendency of the disputes pertaining to payment of property tax. Since the defendant refused to handover anything whatsoever as demanded by the plaintiff qua property tax etc, the plaintiff ultimately got disappointed and had to return from the Office of Sub Registrar. Plaintiff also gave an application to Sub Registrar mentioning his version and marked his presence. It is submitted by plaintiff that it was incumbent upon the defendant either to get the property tax settled with MCD or produce the documents showing the assessment under protest or take any other step by which the plaintiff was duly protected against coercive measures by the Corporation including the attachment and sale of plot for recovery of its dues or its refusal to the mutation and sanctioning of the building plan. But the defendant and her husband refused to do anything of that sort and the defendant had come to the office of Sub Registrar with this pre-determined mind and not for execution of the sale deed at all. It is further alleged by the plaintiff that on 15th June, 1989, defendant sent a telegram to the plaintiff company wherein she alleged that the plaintiff raised unnecessary dispute over property tax at the 11th hour and refused to get the sale deed executed. She demanded that plaintiff should get the sale deed executed by 19th June, 1989, which was the next working day after 17th, failing which consequences would be that of the plaintiff. Plaintiff contended that the telegram was sent by the defendant in order to play fraud, cheating and breach of contract. It is stated that defendant was ready and willing to perform her part of obligation. However, the plaintiff vide its telegram dated 17th June, 1989 again called upon defendant to disclose the total property tax demand till date and clear the same before execution of the sale deed as per the agreement, as default or failure of obligation on her part would cause huge loss to the plaintiff, failing which she would be guilty of breach of contract. It is alleged by the plaintiff that on 19th June, 1989, the plaintiff reached Office of Sub Registrar at 10.30 am but the defendant along with her husband came there at 11 am. The plaintiff presented the sale deed to the defendant for execution and requested her to deliver the documents but she again refused to show or deliver the documents. She refused to give in writing anything whatsoever like an affidavit or security or indemnity bond, as wanted by the plaintiff, in respect of property tax. Even when the plaintiff impressed upon her that without prior settlement of the dispute of payment of property tax, the municipal corporation would not allow the mutation and not sanction the building plan, which would cause huge losses to the plaintiff. But the defendant refused to meet this demand of the plaintiff qua property tax. She refused to hand over any document pertaining to the plot and told the plaintiff that he was free to go to the court of law. Once again, the parties could not execute the sale deed and went back in the same fashion. It is further submitted by the plaintiff that on 19th June, 1989 defendant sent a telegram at the office of the plaintiff wherein she stated that plaintiff had deliberately avoided receipt to the notice dated 15th June, 1989, sent through her counsel. She had never refused to execute the sale deed rather she signed two copies of the sale deed as per the plaintiff's desire. She had never withheld information regarding property tax and the court's judgment. The Court judgment regarding property tax were shown to the plaintiff. She was ready to meet any legal demand of corporation at any stage. There was no question of any pre-demand payment of tax to MCD since the tax had not been determined. She and her husband had gone to the office of Sub Registrar for execution of the sale deed in favor of the plaintiff but the plaintiff again raised dispute about the property tax. There was no real intention on the part of the plaintiff to execute the sale deed. The plaintiff contended that all the averments made by the defendant in the telegram were false to her knowledge. She just wanted to create evidence of her readiness and willingness and made false allegations. She never intimated in writing or even orally that she would meet the demand of municipal corporation and would keep the plaintiff indemnified and protected. It is submitted that in June, 1989 the value of the property had gone up and it would have been around Rs. 53 to Rs. 55 lac at that time and that was the main reason for the defendant from deviating the contract and she willfully wanted to usurp the amount of Rs. 9.5 lacs already paid by the plaintiff.

4. There has been exchange of correspondence and telegrams between the plaintiff and defendant even after 19th June, 1989. The crux of allegations of the plaintiff is that the defendant was a defaulter. She failed to perform her part of contract while plaintiff had all along been ready and willing to perform its part of contract. The plaintiff, therefore, prayed that defendant be directed to execute the sale deed in favor of the plaintiff. The plaintiff also submitted that it had already got the building plan of the plot prepared and the plaintiff suffered huge loss of profit. It also suffered loss and interest on the amount of Rs. 9.5 lac to the tune of Rs. 1,02,600/- till date of filing of the instant suit. The plaintiff claimed loss of profit to the tune of Rs. 15.5 lac and prayed to pass a decree for specific performance, directing the defendant to sell the property bearing No.E-47, Greater Kailash Part-II, New Delhi to the plaintiff and also directing the defendant to discharge all dues qua property tax till execution of the sale deed. The plaintiff also sought recovery of Rs. 1,02,600/- as interest on the dues from 10th January, 1989 till 3rd July, 1989 and pendent elite and future interest over this amount @ 24% per annum. He also claimed Rs. 13.5 lacs as damages for loss of profit. He further prayed that in case relief of specific performance cannot be granted, a decree for recovery of Rs. 9.5 lac with interest of 24% @ per annum from 26th October, 1988 till realization, be passed, apart from damages and the defendant be restrained permanently from transfer or selling of the suit property.

5. The defendant in the written statement took the stand that the plaintiff had not come to Court with clean hands. The suit was not filed by a competent person on behalf of plaintiff company. Mr. Rajiv Gupta was not a competent person to sign and verify the suit. The execution of the agreement to sell dated 26th October, 1988 was not denied. It was not denied that income tax clearance certificate was to be obtained by defendant. It was not denied that defendant raised a plea in the notice that the plaintiff had agreed for sale of the first floor of the property to the defendant for a sum of Rs. 15 lac. It was not denied that the supplementary agreement dated 2nd May, 1989 was executed between the parties. However, it was denied by defendant that on 10th January, 1989 or thereafter income tax clearance certificate was received by her. It was stated that the copy of income tax clearance being relied upon by the plaintiff bear signatures of only one of the members of the committee, whereas duplicate copy issued to her subsequently bear signatures of all the three members of the committee. She averred that the income tax papers were still in process when defendant asked the plaintiff to give in black and white the oral understanding about allocating the first floor of the building to her for Rs. 15 lac but the plaintiff adopted hard boiled attitude and denied the oral understanding, but since the agreement was merely oral and the defendant was not having any written agreement, the defendant realizing her weak legal position did not press the oral agreement any further and result was the execution of supplementary agreement between the parties. It is pleaded that the defendant had been all along on the right path and ready to fulfilll her obligation under the agreement. She had not sent any envelop containing the alleged advertisement but the plaintiff was bent upon to defame and degrade the defendant and her husband. All letters received from the plaintiff were duly replied by the defendant and it was the plaintiff, who after entering into the agreement wanted to wriggle out of the agreement. After supplementary agreement, the moment defendant received the income tax clearance certificate, she immediately informed the plaintiff about it and asked the plaintiff to execute the sale deed and pay the balance consideration within 30 days, as agreed between the parties. The plaintiff did not prepare any draft sale deed despite repeated requests of the defendant and defendant instead had to engage an advocate and get a draft sale deed prepared. She sent it to the plaintiff. However, the plaintiff found faults with this draft sale deed and unnecessarily entered into a useless correspondence. It is stated that all relevant information in respect of the property was given to the plaintiff at the time of sale agreement and copies of relevant documents were also shown and given to Mr. Promod Gupta at the time of signatures on the sale agreement. This fact was also conveyed to the plaintiff in reply dated 31st May, 1989. Though the draft sale deed got prepared by the defendant was sent to the plaintiff, but in view of the objections of the plaintiff, the defendant agreed to abide by the draft sale deed got prepared by the plaintiff with little modifications. However, the plaintiff had been playing all sorts of games and levelled all sorts of false allegations against the defendant. The plaintiff was maneuvering and imp leaded the defendant in some fishy things. The plaintiff had been sitting tight on all reasonable requests of the defendant. There was nothing wrong in defendant's asking for advance photocopy of the bank draft but it was also objected by the plaintiff. Since the plot was residential, it could be only used for residential purposes being in a residential colony. Defendant did nothing wrong by asking plaintiff to mention in the sale deed that the plot was residential in nature. However, the plaintiff raised unnecessary disputes qua this clause. The plaintiff himself had been prolonging the matter and had not been sincere for the deal. It had no legal excuse for refusing to incorporate the relevant clause in the sale deed, but the plaintiff wanted to have a showdown with the defendant and wanted to evade the execution of the sale deed. Plaintiff agreed for incorporation of this clause only after raising much noise and bluff.

6. Regarding incident of 14th June, 1989, it is stated that defendant reached the Office of Sub Registrar with her husband at 10.30 am. The plaintiff's director Mr. Rajiv Gupta came at about 11. 30 am. Firstly, he asked defendant to sign copies of the sale deed. Looking at the voluminous size of the sale deed and keeping in view the fact that it had to be signed on every page, she signed the copies but the plaintiff did not hand over the original sale deed to her for signatures. The plaintiff saw all the documents in respect of the property available with her and after seeing the documents, particularly the judgment pertaining to property tax, he asked for the complete plot-tax (property tax) file although he had not demanded the same during his morning visits to the defendant. The defendant told Mr. Rajiv Gupta that the judgment shown to him was the latest and all original documents were in the Court file, there was no ground to postpone the registration of the sale deed. The plaintiff went on harping the same things. At about 12 noon, Mr. Rajiv Gupta slipped away from the Sub Registrar's office. He did not present himself before the Sub Registrar, nor allowed the original sale deed to be signed and registered before the Sub Registrar. The defendant got suspicious and got her presence marked at Sub Registrar's Office at 1.30 pm, which is the closing time of the Office since nobody had turned up from the plaintiff's side for registration of the sale deed till then. It is submitted by defendant that there seemed to be a pre-planned and premeditated plan of the plaintiff of getting his presence marked later on in absence of the defendant to fabricated false circumstances in his favor. The question of delivery of original title deed and other documents by defendant would have arisen only at the time of making payment by plaintiff before the Sub Registrar and at the time of registration of the sale deed. Thought she was not required to give any affidavit but still she agreed to give a solemn undertaking for clearance of property dues, if any, found to be outstanding against her at any stage and had offered to reimburse to the plaintiff company property tax to be paid in future on her behalf but Mr. Rajiv Gupta was adamant and finding himself aside, slipped away. It is further stated that on 15th June, 1989 defendant sent a telegram as well as a letter to the plaintiff again showing her readiness and willingness to execute the sale deed. The plaintiff sent a telegram dated 16th June, 1989 alleging refusal on the part of the defendant for execution of the sale deed and he used the words 'no more correspondence' and in telegram dated 17th June, 1989 he asked for disclosure of the property tax dues. This was immediately replied by a letter and telegram dated 18th June, 1989 by the defendant stating that there was no property tax demand made by the municipal authorities and no demand notice was sent to her. She invited plaintiff to inspect the files, since by that time defendant had collected old files from her erstwhile advocate. The plaintiff deliberately delayed the receipt of telegram and letter with a view to later on cook up a false ground and to evade payment. Plaintiff took the plea that he received the telegram beyond 24 hours and registered letter beyond five days while earlier he used to receive telegram within two hours. It is stated that plaintiff who failed to execute the sale deed on 14th, was again asked by the defendant to execute the sale deed on 19th June, 1989. On 19th June, 1989, she again went to Sub Registrar's Office. The defendant also offered inspection of all the papers and files pertaining to Court cases and property tax in order to satisfy plaintiff's misgivings. The defendant with her husband reached the Sub Registrar Office in the morning, the plaintiff came there at 11.30 am. But the plaintiff's Rajiv Gupta did not present the original sale deed for signatures and execution and insisted that defendant should pay Rs. 5 lac to MCD for clearance of dues or in the alternative accept Rs. 5 lac less in lieu of the property tax amount. It is stated by the defendant that this was quite illegal and illegitimate condition and could not be accepted by defendant. The plaintiff did not show any documentary proof of a demand of Rs. 5 lac upon the defendant by MCD in respect of property tax nor give any reason for less payment of Rs. 5 lac. He simply claimed that he had some personal information that such an amount was outstanding towards defendant on the account of property tax. The plaintiff was not willing to pay the balance consideration amount and to get the sale deed registered before the Sub Registrar's Office. He did not present himself before the Sub Registrar's Office with payment and with sale deed. The defendant was left with no alternative but to wait till closing time up to 1.30 pm, when she left the Sub Registrar's Office in utter frustration, after getting her presence marked. It is stated that the plaintiff after going through the correspondence, fabricated documents at pages 115 and 117 (of the paper book) in back date to suit his designs. It is denied that the defendant had refused to give or show any documents or give in writing any assurance. All allegations made by the plaintiff against the defendant regarding defendant's unwillingness of execution of sale deed have been denied.

7. The defendant denied that plaintiff was entitled for any relief and prayed that the suit of the plaintiff be dismissed. In replication plaintiff denied all assertions made by defendant and reiterated its own version of facts.

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

1. Whether the plaintiff company is a duly incorporated company under the Indian Companies Act, as alleged ? OPP

2. Whether the plaint has been signed and verified and the suit instituted by a duly authorized and competent person? OPP

3. Whether the plaintiff has been and is still ready and willing to perform its part of the contract, as alleged? OPP

4. Whether the plaintiff is entitled to decree of specific performance of the agreement to sell? If so, on what terms? OPP

5. Whether the plaintiff is entitled to damages if so to what extent? OPP

6. Whether the plaintiff is entitled to interest? If so at what rate, on what amount and from which date? OPP

7. Relief.

ISSUE NO.1

9. The defendant did not dispute that the plaintiff company was a duly incorporated company under the Indian Companies Act. This issue is, therefore, decided in favor of the plaintiff and against the defendant.

ISSUE NO.2:

10. In order to prove this issue, the plaintiff proved the authority of Mr. Sanjay Gupta vide a duly proved resolution Ex.PW5/1 dated 1st October, 1988 passed by the Board of Directors of the plaintiff company whereby Shri Sanjay Gupta was authorized on behalf of the company to sign, verify and institute the suit on behalf of the company and he was appointed as Secretary of the plaintiff's company resolution. The plaintiff also proved another resolution dated 24th June, 1989 Ex.PW5/2 passed by the Board of Directors whereby the company decided to institute the present suit of specific performance authorizing Mr. Sanjay Gupta to institute, sign and verify the plaint. The plea of the defendant is that the resolutions were false. The defendant has failed to place on record any evidence to show that these two resolutions were false. However, the defendant's counsel submitted that on 13th August, 1989 Mr. Sanjay Gupta was also appointed as director of the company in place of Mr. Parmod Gupta about which they never informed or disclosed to the defendant or placed anything on record. I consider that there was no obligation on the plaintiff's company to inform its internal management to the defendant or to the world outside. Since the suit was filed by the person duly authorized by Board of Directors of the plaintiff's company, the issue is decided in favor of the plaintiff and against the defendant.

ISSUE NO.3 and 4.

11. It is submitted by the plaintiff that the defendant did not dispute possession of sufficient funds with the plaintiff company to pay the balance sale consideration rather the plaintiff company got a pay order prepared in favor of defendant for a sum of Rs. 34 lac, a copy of which was sent to the defendant and the original draft was also produced before this Court after institution of suit and this Court allowed the plaintiff to get the draft canceled and get the money back. It is also stated that the plaintiff had brought this draft to the office of Sub Registrar on 14th and 19th June, 1989. The plaintiff was always ready for the execution of the sale deed. It was the defendant who had not performed its part of the contract. Under Section 55(1)(f) of the Transfer of the Properties Act, the plaintiff was not only to get the vacant possession of the suit property but also the title deeds under Section 55(1)(b) and (g) of the Transfer of Properties Act. The defendant was liable to pay house tax dues payable towards property till the date of delivery of possession since the same was the liability of the defendant. It is also argued that the defendant had not come to the witness box herself and only her power of attorney has come to the witness box and in view of the judgment of Supreme Court in Janki Vashdeo Bhojwani v. Industrial Bank Ltd., the power of attorney holder can only appear and act on behalf of party but he cannot appear as a witness on behalf of party. Therefore, the evidence of defendant's husband was not admissible as no one can delegate powers to appear in the witness box and depose on behalf of the parties. Thus, there was no admissible evidence on behalf of the defendant and evidence of the plaintiff's witness had gone unrebutted in respect of the plaintiff's stand that the plaintiff was always ready and willing to perform her part of contract and it was defendant who had not been ready and willing to perform its part of contract. It is also stated that admittedly the defendant had not paid even a single rupee towards the house tax since she purchased the plot in 1963. She refused to give in writing to the plaintiff that house tax arrears or dues were payable by her. She refused to execute the sale deed as she was determined not to execute the sale deed as price of the plot had gone up. On the other hand, it is submitted by the defendant that the defendant had always been ready and willing to perform the contract and for this purpose alone, she went to the office of Sub Registrar twice along with her husband i.e. on 14th June, 1989 and on 19th June, 1989. So, she was ready to execute the sale deed in favor of the plaintiff but the plaintiff company did not execute the sale deed deliberately on one pretext or the other and wanted the defendant to first deposit a sum of Rs. 5 lac either in Municipal Corporation Office or accept Rs. 5 lac less sale consideration. The defendant had a right to refuse to execute the sale deed on this pre-condition. It is argued that the defendant had all along been carrying all original documents of the property with her on both the dates for handing over the same to the plaintiff. The property was a vacant plot and the moment sale deed was registered, the plaintiff would have become the owner in possession of the plot. It is stated that defendant was not to do any other act as per the agreement to sell and the defendant had always been ready and willing to perform her part of contract. It is only the plaintiff who had been playing truant and had slipped away from the Office of Sub Registrar and, therefore, the fault lies on plaintiff since the plaintiff had failed to honour the agreement. The defendant was entitled to forfeit the earnest money. The plaintiff company was not entitled to any relief.

12. In the present case, almost all the evidence in respect of the parties readiness and willingness, is documentary. It is the case of the plaintiff itself that the husband of the defendant had been accompanying her to Sub Registrar's Office and defendant had been acting at the behest of her husband. The judgment cited by the plaintiff does not lay down that an attorney cannot appear as a witness at all. The judgment only lays down that an attorney can depose only to those facts which are in his personal knowledge and he cannot depose to those facts which are not in his knowledge, on the authority of the principal. The husband of the plaintiff, even if had not been a power of attorney holder of the defendant, could appear as witness of the facts within his knowledge. He has deposed in the Court about those facts which were in his personal knowledge. That part of the testimony of the husband which is based on hearsay can be ignored but rest of the testimony about the facts which were in his personal knowledge can always be relied upon and read in evidence.

13. In order to appreciate the arguments of both sides, it would be necessary to look into the original agreement Ex. P-1 which was entered between the parties. The original agreement specifies that Rs. 9.5 lac was being paid by buyer as part payment towards sales consideration of Rs. 43.5 lac. The transfer of the property bearing No. E-47 Greater Kailash-I measuring 300 sq yards plot was to take place after necessary permissions from the income tax authorities. In the agreement, the defendant had assured the plaintiff that she had a clear title over the property and the property was free from encumbrances, charges, mortgage etc. It was also agreed by the parties that any liability including property tax payable in respect of the plot prior to date of sale would be payable by the vendor (defendant). The plaintiff had agreed that the balance sales consideration of Rs. 34 lac shall be paid by the plaintiff to the defendant at the time of execution and registration of the sale deed before the Sub Registrar and the vacant possession of the plot shall be handed over to the plaintiff on the same day. It was agreed that after registration of the plot, the defendant shall have no right of any kind over the plot. The defendant was to inform the plaintiff about receipt of necessary permission/clearance of the income tax, both by registered acknowledgment due, letter as well as by telegram and thereafter within a period of 30 days from the date of the telegram/letter plaintiff was to pay balance sale consideration and get the sale deed executed from the defendant. It is specifically stated that the period of 30 days would be the essence of agreement and shall not be expendable and in case plaintiff failed to pay the balance sale consideration, the amount of Rs. 9.5 lac, received as earnest money, shall stand forfeited. The agreement further provided that in case the defendant failed to execute the sale deed in favor of the plaintiff, the plaintiff would be entitled to get the specific performance of the agreement and possession through court of law with costs and expenditure of the defendant. The cost of stamp duty and registration fee etc. was payable by the plaintiff. In case of acquisition of the plot by the government, the defendant was to return the amount of Rs. 9.5 lac to the plaintiff. Non receipt of registered letter/telegram sent at the address of the plaintiff, would not be a ground for extension of time limit. It was also provided in the agreement that one percent of the sale consideration shall be payable as commission to one Mr. R.P. Aneja by the defendant and the same shall be paid at the time of registration of the sale deed.

14. In the entire plaint and correspondence of the plaintiff, plaintiff has taken the stand that it asked the defendant to show House Tax receipts/mutation letter or to give affidavit or a written assurance or indemnity bond indemnifying plaintiff against house tax demand of the property. However, PW-8 Sanjay Gupta in his examination-in-chief did not say a word about it and in cross examination denied that defendant was asked to show house tax file or demanded any affidavit or Rajiv Gupta who was dealing with the defendant has not been examined as a witness. The cross examination of DW-4 is also contrary to the stand of plaintiff. It is plaintiff's own case that defendant sent a draft sale deed through plaintiff's driver before plaintiff got prepared its own draft sale deed, but entire cross examination on this aspect is contrary to plaintiff's admitted stand.

15. There is no dispute that as per the agreement between the parties, the liability of property tax up to the date of execution of the sale deed was that of the defendant. However, the defendant's stand is that no demand of property tax had crystallized. The defendant further took the stand that the property tax was not payable by her on this property since she had obtained an injunction order from the Court. It is also not the case of the plaintiff that a demand of property tax had crystallized and the defendant was supposed to clear this property tax. No witness has been examined by the plaintiff from the house tax department to substantiate a stand that there was a crystallized demand in respect of the plot tax pending against the defendant. On the other hand, the defendant has placed on record the copies of judgment and the stay order whereby she claimed that she was not liable to pay the house tax at that stage. Ex.PW2/7 is a certified copy of the judgment in Suit No. 656 of 1989 Shanta Chopra v. MCD wherein the court of Sub Judge had passed a decree of injunction restraining MCD from recovering from the defendant property tax illegally assessed and levied amounting to Rs. 426/- and demanded in the notice dated 8th April, 1968. Ex.DW2/I is certified copy of another judgment in Suit No.712 of 1976 Shanta Chopra v. MCD wherein the suit was decreed in favor of Shanta Chopra (defendant) and MCD was restrained from recovery of any property tax in respect of plot bearing No. 47 Greater Kailash, New Delhi except in due process of law. The defendant's case is that she had been receiving illegal demands from MCD and had been taking recourse to law against such demand. She had told the plaintiff about this but the plaintiff was insisting that she should give an affidavit or undertaking to the plaintiff, apart from executing the sale deed containing language as per the liking of the plaintiff.

16. It is apparent from the pleadings of the plaintiff and the admitted correspondences between the parties that the plaintiff had been repeatedly insisting upon the defendant that she should clear her property tax or should give an undertaking that she shall clear her property tax after execution of the sale deed whereas the defendant's stand had been that she was not liable to pay any property tax unless there was a crystallized demand against her.

17. It is to be noted that she had challenged the order of assessment made by the MCD and unless the assessment was made in accordance with law she was not liable to pay property tax. 'The defendant had kept this plot vacant and had been resisting levy of property tax by MCD on various grounds.' However, the plaintiff after purchase of the plot had different designs. 't had got the construction plans prepared for the plot even before execution of sale deed. The plaintiff being a builder intended to purchase this plot for profit. It is clear from the plaint itself and the correspondence that the plaintiff was apprehensive that its building plan may not be sanctioned by the MCD due to pendency of dispute regarding Property Tax.' The plaintiff was also apprehensive that the defendant had been resisting property tax right from the very beginning and had been successful due to litigation with MCD but ultimately the property tax would be levied on this plot even for period prior to June, 1989, when plaintiff was to purchase the property. The plaintiff's effort was to secure the past property tax that may be levied through a indemnity bond from defendant as he did not want to take risk with the defendant.' The correspondence between the parties also reveals that there was a deep distrust between the parties. The plaintiff was not prepared to trust defendant and defendant was not prepared to trust plaintiff. 'For this reason plaintiff wanted the defendant to execute an affidavit or undertaking simultaneously Along with the sale deed indemnifying the plaintiff from past property tax demand.' Defendant for the same reason had asked the plaintiff to send a copy of the draft to her so that she may verify whether the draft was genuine or not.

18. There is no doubt that defendant was liable to pay property tax but this property tax could have been paid by her only at the time of crystallization of the demand. 'She had a legal right to minimize her liabilities towards property tax over a vacant plot.' She had been filing suits before the Courts of competent jurisdiction and obtained orders from the Court that the demand should be levied only in accordance with rules. This act of the defendant cannot be said to be illegal or causing any inconvenience to the plaintiff. 'It is undisputed that the defendant had ultimately agreed to the draft sale deed prepared by the plaintiff.' A perusal of the draft sale deed Ex PW 8/2would show that Clause 6 of the sale deed provided that the property tax dues and demands, if any, payable in respect of the plot till date of execution of the sale deed, shall be paid by the Vendor(defendant) and only property tax after the date of sale deed would be payable by the Vendee (plaintiff). Clause 7 provided that the vendee (plaintiff) shall get the property mutated in its name in the record of municipal corporation (MCD) and the vendor(defendant) shall execute all necessary papers required for that purpose and shall give all assistance. Clause 8 provided that all rent, cess and tax dues, payable up to the date of registration shall be exclusively payable by the vendor and thereafter by the vendee (plaintiff). It was also provided in this clause that the original sale deed executed in favor of defendant by DLF Housing and Construction Pvt. Ltd. dated 29th November, 1963 had been handed over to the vendee (plaintiff) at the time of execution and registration of sale deed.

19. It is the case of the plaintiff itself that this draft sale deed was agreed upon by defendant and she was prepared to sign the sale deed. Since Clauses 6,7 and 8 were incorporated in the sale deed, sale deed when executed would have amounted to a binding contract between the parties and defendant would have been bound and liable to pay property tax which might have been levied in respect of the plot by MCD. However, the plaintiff insisted upon the defendant that unless the defendant indemnifies the plaintiff or does not execute an affidavit or a writing, the plaintiff shall not proceed with the execution of the sale deed. The plaintiff imagined that there would be huge property tax liabilities on the defendant and was also apprehensive about the conduct of the defendant. In the same fashion, defendant was apprehensive about the conduct of the plaintiff and was not prepared to take any chance and to give anything in writing over and above the sale deed.

20. Plaintiff's witness PW-8 Mr. Sanjay Gupta in his testimony has deposed that he visited the Registrar's Office on 14th June, 1989 and 19th June, 1989 along with Rajiv Gupta and defendant had also come to Sub Registrar's Office on both the dates with her husband. He deposed that the defendant refused to execute the sale deed and stated that she was not interested in getting the sale deed executed as the rates of the property had risen. In fact this testimony of the plaintiff is contrary to the documentary evidence adduced by the parties on record. In the letter dated 5th June, 1989 Ex. P-16, a 22 page counter notice served by plaintiff on the defendant's counsel in reply to the letter dated 31st May, 1989 of the defendant, the plaintiff categorically stated that the defendant was once again called upon to send her approval to the draft sale deed and an affidavit sent by the company in order to enable the company to get the same typed on stamp papers. The draft sale deed and affidavit were enclosed along with the letter. The insistence of the plaintiff had been that the defendant must execute the affidavit.

21. The plaintiff vide its letter dated 29th May, 1989 Ex. EW 4/X apart from asking the defendant to execute affidavit also asked the defendant to bring the original title deeds, original letter of mutation by MCD in her favor and also original receipt of payment of property tax and other documents pertaining to the property for being handed over to the plaintiff at the time of making payment of balance sales consideration and execution of sale deed. In response to this letter, the defendant vide letter dated 31st May, 1989 (admitted documents) wrote to the plaintiff that no property tax was being paid as no assessment has been made by the municipal authorities in light of the order of the civil court. It was also stated that the plaintiff had entered into a bargain after knowing of this fact and the plaintiff cannot demand property tax receipts. Regarding title documents she stated that the original sale deed of the property would be handed over at the time of making payment before Sub Registrar. Regarding mutation letter it was stated that the letter could not be traced and this fact was told to the Managing Director Mrs. Pramod Gupta before entering into the sale agreement. In response to this letter of 31st May, 1989 of the defendant, the plaintiff wrote letter dated 5th June, 1989 and in this letter the plaintiff stated that a draft sale deed in respect of the plot had been sent to the defendant along with an affidavit and the defendant should send her approval for the draft sale deed and the affidavit sent by the company to enable the company to get the sale deed typed on stamp paper.

22. A reply was sent to the letter P-16 by the defendant on 7th June, 1989 P-18 whereby the defendant stated that she had brought it to the notice of the plaintiff that the plot in question was meant only for residential use and was situated in a residential colony and a provision should be there in the draft sale deed that the vendor has told the vendee about the plot being of residential nature and situate in residential colony and as per rules and regulations, the same cannot be put to any other use. The defendant asked the plaintiff to incorporate this fact in the draft sale deed. Vide letter dated 8th June, 1989, Ex P-19 the plaintiff replied that the clause regarding user or misuse cannot be incorporated in the sale deed. I consider that this response of the plaintiff to the defendant's demand was unjustified. However, plaintiff later on agreed for including this clause. The defendant vide letter dated 9th June, 1989 (Ex. P-20) again wrote to the plaintiff that defendant has no objection in handing over the title deed and sale deed of DLF in respect of the property to the plaintiff. Regarding mutation, it was again stated that the letter was not traceable but this fact can be verified from the MCD record and has already been verified by the plaintiff. Regarding property tax, it was stated that the previous assessment made by MCD was quashed by Civil Court and no fresh assessment had been made and consequently no property tax has been paid and this fact was also within the knowledge of the plaintiff. The plaintiff in response to this letter wrote letter dated 11th June, 1989 Ex. P-21 wherein again it was reiterated that the defendant would have to give an affidavit sworn with original letter of mutation regarding the plot in question. She will have to state in affidavit that she does not hold any other property or vacant plot within Union Territory of Delhi or any other plot under sale and the plot was within the ceiling limit. The plaintiff again told the defendant that an amended draft affidavit was being enclosed along with the letter which the defendant was required to swear at the time of execution and registration of sale deed. The plaintiff further wrote to defendant that plaintiff excepts defendant to give in writing on solemn affirmation that what she has stated about the property tax etc was all true. She was required to give an affidavit to protect the interest of the company and she was also required to give in writing that the property was absolutely free and she was having perfect title with no liabilities of property tax and she would have to give indemnification against demand of property tax. The plaintiff in the same letter again wrote that if the defendant did not want to give an affidavit, she should at least give in writing all the representations and statements she had made and the facts mentioned in the draft affidavit in order to pass a perfect title and to keep the company free from all liabilities in respect of the plot. It is obvious that plaintiff deliberately raked up new things and that is why plaintiff wanted defendant to give affidavit about unconcerned things like her not holding any other property or plot not being within ceiling limit.

23. Even in the application made to the Sub Registrar by the plaintiff on 14th June, 1989 Mark E the plaintiff stated that the defendant was not willing to handover the mutation letter or a copy thereof and she was not willing to handover the property tax receipts saying that the above plot stands in her name and that she had paid the property tax nor she was having certified copy of the originals of civil proceedings of the property tax against MCD.

24. It is thus clear that the plaintiff's witness Pw 8 testimony that the defendant had refused to execute the sale deed without any cause is contrary to what is proved by the documents. It is proved by the documents that the plaintiff was insisting on the defendant to give mutation letter, house tax receipts or an affidavit/indemnity bond on solemn affirmation that the defendant would discharge all liabilities qua property tax etc in respect of the property, up to date of the execution of sale deed and he wanted this document over and above the sale deed wherein all these clauses were incorporated specifically. On 19th June, 1989 also same thing happened and the plaintiff kept on insisting upon on the mutation letter and House Tax receipts/affidavit in order to ensure plaintiff's security and the defendant kept on insisting that she would execute the sale deed and give original title deeds and nothing more. I consider that there was no fault on the part of defendant. It was agreed by defendant in the sale deed itself that she would be paying liabilities of property tax which accrued in respect of the property up to date of execution of the sale deed. It was not necessary for her to execute any other document for this purpose since she had agreed to execute the sale deed with relevant clauses. She had made it clear to the plaintiff in various letters that she was not having mutation letter, even otherwise, mutation letter was not at all necessary. It is the case of the plaintiff itself that defendant was being assessed to the property tax and she had not paid property tax. Defendant could have been assessed for the tax, only if, the property had been mutated in her name. Even otherwise, the mutation is not a proof of ownership and only title deeds are the proof of ownership and the defendant was prepared to hand over the original title deeds all along. The plaintiff wanted something more than title deeds which was not part of the agreement. The defendant was only supposed to cooperate in the mutation of this property in favor of the plaintiff. This could have been done by the defendant only after the property had been transferred to the plaintiff. There was no requirement for the defendant of handing over mutation letter to the plaintiff. The defendant had already made it clear to the plaintiff that final property tax assessment in respect of this property was not done so far and earlier assessment had been challenged by her and had been set aside and fresh assessments was yet to be done. The admitted correspondence between the parties showed that the defendant had in clear cut words stated that she would be liable for paying the property tax in respect of property as and when determined in future for the period when the property remained under her ownership. If this entire correspondence between the parties and the covenants to this effect in-proposed-sale deed were not sufficient to ensure the plaintiff, no affidavit or writing by the defendant would have secured the interest of the plaintiff but, it seems that plaintiff was adamant in getting a writing from the defendant to the extent mentioned above. I consider that there was no fault of the defendant. The defendant all along was ready and wiling to execute the sale deed and it was plaintiff who because of his adamant behavior of obtaining an extra writing from the defendant, did not execute the sale deed. This fact is further proved from the fact that defendant admittedly signed the copies of the sale deed handed over to her. The original sale deed obviously was to be signed before the Sub Registrar only and she could have signed the original only if plaintiff had accompanied her to Sub Registrar. It is not proved from the evidence of the plaintiff that she had refused to go to Sub Registrar's office. Rather the evidence abundantly shows that she had gone to Sub Registrar's Office and was prepared to appear before the Sub Registrar and it was plaintiff who insisted upon additional security from the defendant qua property tax. The plaintiff could have recovered the amount which the plaintiff was made to pay qua the property for period before execution of the sale deed. The sale agreement and proposed sale deed were sufficient security for the plaintiff. The distrust between plaintiff and defendant was result of bitterness which crept in between them due to exchange of letters and notices before the execution of the sale deed.

25. In view of above premise, I therefore, decide both these issues in favor defendant and against the plaintiff. The plaintiff is not entitled to a decree of specific performance of agreement to sell.

26. In view of my holding issues No. 3 and 4 against the plaintiff, I consider that plaintiff is not entitled to damages of any kind. However, considering the facts of the case where both parties come to Sub Registrar's Office on 14th June and 19th June, 1989, for execution of the sale deed but the sale deed could not be executed because of deep distrust between the parties and the insistence of the plaintiff' that the defendant should give in writing about property tax and indemnify the plaintiff while defendant took the stand that she was not supposed to give anything more in writing except executing the sale deed, I consider that the defendant should return the earnest money of Rs. 9.5 lac taken from the plaintiff along with interest since this money has been used by the defendant all along. 'However, considering the tremendous fall in the rate of interest in recent years, I think it appropriate that 10% simple interest would be a suitable rate of interest.' I, therefore, hold that the defendant was liable to pay back the amount of Rs. 9.5 lac received by her along with 10% simple interest per annum with effect from the date of receipt of this money by her till realization of the same. These issues are decided accordingly. RELIEF:

27. The suit of the plaintiff for specific performance is hereby dismissed. A decree for sum of Rs. 9.5 lac along with 10% simple interest from the date of receipt of amount till realization is passed in favor of plaintiff. Parties to bear their own costs.