Shri Anisuddin And Another vs Mrs Vimla Sethi And Others
2008 Latest Caselaw 897 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on: 02.07.2008

+      CS (OS) 313/1992

SHRI ANISUDDIN AND ANOTHER                                       ... Plaintiffs

                                  - Versus -

MRS VIMLA SETHI AND OTHERS                                     ... Defendants
Advocates who appeared in this case:-
For the Plaintiffs       : Mr J.K. Seth, Sr Advocate with Mr Rakesh Saini
For the Defendant No.1   : Mr Sanjay Jain, Sr Advocate with Mr Deepak Dewan,
                           Mr Arjun Mitra and Ms Usha Kumar

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED

1.

Whether Reporters of local papers may be allowed to see the judgment ? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in Digest ? YES

BADAR DURREZ AHMED, J

1. This is a suit claiming a decree for specific performance of the

agreement to sell dated 23.04.1981 / 05.05.1981 and for directing the

defendant No.1 to execute the sale deed in respect of plot No. 226,

Block-A, New Friends Colony, New Delhi (hereinafter referred to as

„the said plot‟) in favour of the plaintiffs. The plaintiffs have also

sought a decree declaring that the plaintiffs are the absolute owners in

possession of the super-structure standing on the said plot.

2. The plaintiffs, who are brothers, have pleaded that the defendant

No.1 (Smt Vimla Sethi) was the original allottee in respect of the said

plot. The perpetual sub-lease dated 24.03.1973 (Exhibit DW-1/P-16)

was in favour of the defendant No.1: The President of India being the

lessor, The New Friends Cooperative House Building Society Ltd

being the lessee and the defendant No.1 being the sub-lessee. Clause

II(5) of the said sub-lease required the sub-lessee (defendant No.1) to

construct a residential building for private dwelling on the said plot

within a period of two years. It is further pleaded that because the

defendant No.1 was not possessed with sufficient funds and was unable

to erect the building, the defendant No.1 entered into negotiations for

the sale of the plot to the plaintiffs in consideration of payment of Rs

1,80,000/-. It is further pleaded that the agreement to sell dated

23.04.1981 / 05.05.1981 was executed between the parties, i.e., by

defendant No.1 as owner / vendor and the plaintiffs as purchasers /

vendees for the sale of the said plot measuring 481.5 sq. yds. It is

stated that though the agreement was completed on 05.05.1981, the

same was dated as of the date of original oral agreement, i.e.,

23.04.1981.

3. The plaintiffs further averred in the plaint that the total

consideration of Rs 1,80,000/- was paid to the defendant No.1 through

bank drafts, against receipts, as follows:-

1) D.D. No.065236 for Rs 90,000/- dated 04.05.1981;

2) D.D. No.007967 for Rs 10,000/- dated 21.04.1981;

3) D.D. No.065235 for Rs 45,000/- dated 04.05.1981;

4) D.D. No.065237 for Rs 35,000/- dated 04.05.1981.

It is further stated that the said demand drafts were drawn on

Mercantile Bank Ltd., Calcutta in favour of the defendant No.1 and

were encashed by her.

4. It is further averred in the plaint that as per the said agreement to

sell, it was agreed that the sale deed would be executed and registered

in favour of the plaintiffs in terms laid down by the Delhi Development

Authority (DDA) or the Government and at such time as was

permissible by the DDA or any other authority, after construction of the

building on the plot. The plaintiffs have stated that besides the said

agreement to sell, the defendant No.1 also executed other documents

which were generally in vogue at that point of time, such as, receipts,

agreement of building construction dated 23.04.1981 authorising the

plaintiffs to construct the building, three general powers of attorney in

favour of Mr Riazuddin, father of the plaintiffs, two special powers of

attorney, again in favour of Mr Riazuddin, four affidavits, one

Indemnity Bond, a will dated 05.05.1981 and other documents. It is

further pleaded that the plaintiffs got the plans for the construction

prepared and the same were signed by the defendant No.1 and were

submitted for sanction. The construction of the building was raised by

the plaintiffs entirely at their own costs and as per the sanctioned plans.

It is further submitted that the completion certificate was obtained on

21.08.1984. It is further averred that the defendant No.1

simultaneously signed a document stating that she was unable to make

the payment of cost of construction and stating that the plaintiffs should

get the sale deed registered in their name. It is further averred that no

date was specified in the said agreement to sell as to when the sale deed

was to be executed and the defendant No.1 was under an obligation to

execute the sale deed whenever required to do so by the plaintiffs. It is

alleged that the plaintiffs on various dates and lastly by letters dated

27.09.1991 and 23.11.1991 required the defendant No.1 to apply for

and obtain the income tax clearance certificate and other necessary

permissions from the competent authorities for execution of the sale

deed in consideration of the amount already received by her. It is

alleged that the defendant No.1, through her lawyer‟s letter dated

04.12.1991, has taken an evasive attitude which may be construed as

repudiation of the agreement to sell. Consequently, it is averred that

the commencement of limitation for the filing of the present suit would

be the date of the said letter dated 04.12.1991 and the suit having been

filed within three years, is within time.

5. Alternatively, it was pleaded that from time to time, the defendant

No.1 either by herself or through her husband as also through the

general power of attorney holder acknowledged the agreement to sell

and promised to complete the transaction. Various letters were

addressed to one Mr Mohd. Zaki, the uncle of the plaintiffs, who was

acting as an authorised representative of the plaintiffs and some letters

were also addressed to the plaintiffs. It was, therefore, pleaded in the

alternative that the time of the performance of the agreement to sell by

execution of the sale deed stood extended by the acknowledgements

made by the defendant No.1 and or by her husband, who acted as her

agent and / or by the advocate in various letters dated 08.12.1981,

13.10.1982, 18.08.1983, 24.05.1986, 10.06.1986 (two letters),

25.09.1989, 23.11.1989, 03.08.1991, 04.09.1991, 19.10.1991 and

04.12.1991 as also the acknowledgements by the general power of

attorney holder of the defendant No.1 dated 31.03.1984, 30.03.1987

and 29.03.1990. The plaintiffs have also pleaded in paragraph 5 of the

plaint that they did not agree to the defendant No.1‟s lawyer‟s

suggestion to execute a new agreement, but insisted on the completion

of the transaction on the basis of the old agreement and informed the

defendant No.1 by a letter dated 23.11.1991 that she should obtain the

permission of the DDA and clearance certificate from the income tax

officer inasmuch as these were the only two matters which remained to

be completed by the defendant No.1 and thereafter the sale deed could

be executed. The plaintiffs pleaded that the entire consideration of the

plot had been paid, possession of the plot had been handed over by the

defendant No.1 to the plaintiffs, the building had been constructed by

the plaintiffs at their own costs and that they were being assessed by the

income tax authorities as the owners in possession of the building. It is

further averred in paragraph 6 of the plaint that the defendant No.1 was

under an obligation to execute the sale deed in favour of the plaintiffs

whenever called upon to do so and that the plaintiffs by their letter

dated 23.11.1991 called upon the defendant No.1 to execute the

necessary sale deed. The defendant No.1 had failed to comply with this

request. It is alleged that the defendant No.1 is avoiding execution of

the sale deed on account of her own difficulties with the income tax

department.

6. It is also pleaded by the plaintiffs that they were, at all times and

are still, ready and willing to complete the agreement to sell in respect

of the suit property (No.A-226, New Friends Colony, New Delhi), but

the defendant No.1 has not obtained the income tax clearance

certificate nor has she applied to the competent authority for requisite

permission nor has she executed the sale deed. The present suit has

been filed in these circumstances.

7. In the written statement filed by the defendant No.1, it is

submitted that the alleged agreement to sell dated 23.04.1981 /

05.05.1981 was only meant as draft paper for discussion and nothing

else and no formal agreement in any legal or moral sense of the term

had been arrived at. It was also submitted that the alleged agreement to

sell dated 23.04.1981 / 05.05.1981 was ab initio void as it was signed

by the plaintiffs at New Delhi on 23.04.1981 and by the defendant No.1

at Calcutta on 05.05.1981. It is also alleged that the said agreement to

sell dated 23.04.1981 / 05.05.1981 does not bear any attestation of the

signatures of the plaintiffs by any witness. It is alleged that since a

document relating to immovable property requires signatures to be

attested by two witnesses, this requirement is not fulfilled in respect of

the agreement to sell dated 23.04.1981 / 05.05.1981 inasmuch as the

plaintiffs‟ signatures are not properly attested. It is also submitted that

the signature of the defendant No.1 is also attested by only one witness,

which, according to the defendant No.1 is, irregular and the said

agreement suffers from fatal infirmities and is suggestive of the fact

that the same was merely a record of the broad points for discussion

and was not meant as a legal and enforceable document. It is also

submitted that the agreement to sell has blanks in paragraph 16 where

the boundaries of the property are described.

8. It was also stated in the written statement that "the possession of

the plot detailed herein below has been given to the purchaser as

contractor for construction under a contract for construction executed

between the parties.." It is further averred that the alleged agreement

for building construction dated 23.04.1981 / 05.05.1981 was void ab

initio and that, therefore, possession of the said plot had been illegally

taken by the plaintiffs and they continue to be in illegal occupation

thereof. It is also stated in the written statement of the defendant No.1

that the said agreement to sell and the alleged agreement for building

construction were repudiated by the defendant No.1 through the legal

notice of her advocate Mr Gopendra Nath Dutta dated 03.11.1988 and,

as such, the present suit, which was filed on 13.01.1992, was barred by

limitation inasmuch as the three-year period taken from 03.11.1988

expired on 03.11.1991. It is stated that the confirmations /

acknowledgments dated 31.03.1984, 30.03.1987 and 29.03.1990 issued

by Mr Riazuddin, father of the plaintiffs, as alleged power of attorney

holder of the defendant No.1, are collusive and in a set pattern and the

same appeared to have been back dated at the instance of the plaintiffs.

It has also been averred that the alleged power of attorney in favour of

Mr Riazuddin was ab initio void because it related to the said

agreement to sell and the alleged agreement of building construction

which were also ab initio illegal and void. The defendant No.1 also

alleged that the building construction agreement was void because the

same was executed in Calcutta, whereas the stamp paper was purchased

at New Delhi as also because there was no meeting of minds and as

indicated by the several blanks left in the agreement in respect of

material aspects.

9. On the basis of the aforesaid pleadings and the documents filed

by the parties, the following issues were framed on 07.01.1994:-

"1. Whether the alleged agreement to sell dated 23.4.81/5.5.81 was never meant to be acted upon and as such, it is completely void ab initio for the reasons stated in paras 1(a) to 1 (h), (on pages 1 to 6 ) of the written statement ?

2. Whether the agreement with regard to the building construction is illegal for the reasons stated in paras 1 & 2, (on page 7) of the written statement? If so, its effect ?

3. Whether the agreement for building construction is void for lack of consideration as alleged in para 4 (on page 8) of the written statement ?

4. Whether the alleged agreement with regard to the building construction was repudiated through the notice of Mr. Gopender Nath Datta dated November 3, 1988 as alleged in para 5 (on page 9) of the written statement? If so, its effect ?

5. Whether the general power of attorney executed in favour of Shri Riaz-ud-din is illegal and invalid for the reasons stated in para 6 (on page 9) of the written statement? If so, its effect ?

6. Whether the plaintiff No.1 and plaintiff No. 2 are in illegal occupation of property bearing No. A-226, New Friends Colony, New Delhi, for the reasons stated in para 7 (on page 10) of the written statement?

7. Whether the suit is barred by limitation as alleged (on pages 10 & 11) in the written statement ?

8. Whether this Court has got no territorial jurisdiction to hear the present suit as alleged in para entitled "Jurisdiction" (on page 11 of the written statement) ?

9. To what relief, if any, are the plaintiffs entitled ?"

An additional issue was also framed on 12.12.2007 with regard to the

valuation of the suit and the same reads as under:-

"Whether suit is not properly valued for the purposes of court fees and jurisdiction? OPD"

10. Issue Nos. 5 and 8 which were raised at the instance of the

defendant No.1 were not pressed by the learned counsel for the

defendant No.1 at the time of arguments.

Issue No.1

11. The agreement to sell dated 23.04.1981 / 05.05.1981 (Exhibit

DW-1/P-1) is an admitted document. In her cross-examination, the

defendant No.1 as DW-1 has stated as under:-

"I have seen the original agreement of sale. The same has been signed by me. It is exhibited as DW-1/P-1. This document has been witnessed by my husband. This has been signed by me on each page. Plaintiffs had not signed this document in my presence. I do not remember if besides the document exhibit DW-1/P-1, any other agreement to sell was executed by me."

12. In her cross-examination, the said witness has also admitted the

receipt of sum of Rs 1,80,000/- by means of four bank drafts. The

original receipts dated 05.05.1981 which are marked as exhibits P-3

and P-4 have been admitted to have been signed by her. She has also

acknowledged that these receipts (Exhibit P-3 and Exhibit P-4) were

witnessed by her husband and Mr K.K. Mehta. She also stated that she

had executed the power of attorney in favour of Mr Riazuddin (Exhibit

P-5). She stated that she has seen the original will and that the same

was executed by her. She stated that Exhibit P-6 is a copy of the said

will. She stated that the original will was duly registered before the

Sub-Registrar. The said document also bears her thumb impression.

She has also stated that the three undated powers of attorney had been

signed by her though they had not been attested by anyone. The said

powers of attorney are exhibited as Exhibit DW-1/P-2 to DW-1/P-4.

She also admitted to have seen the documents which have been

described as affidavits and that they had all been signed by her.

Though, she stated that they did not bear any date and they contained

several blanks. The said documents have been exhibited as Exhibit

DW-1/P-5 to DW-1/P-8. The document which purports to be an

indemnity bond was also admitted to have been signed by her. The

same is exhibited as Exhibit DW-1/P-12. She has, however, stated that

she did not object to these documents at the time of signing, as

according to her, these documents did not have any validity till such

time the final agreement was arrived at in respect of the property in

question. She also admitted to signing the building construction

agreement, a copy whereof was exhibited as Exhibit D-1. The original

document has been exhibited as Exhibit DW-1/P-13. She admitted that

the letters dated 25.09.1989 and 03.08.1989 which have been exhibited

as Exhibit DW-1/P-14 and DW-1/P-15 appear to have been written by

her and she could not give any explanation as to why she had written

these letters.

13. From the aforesaid, it is apparent that the agreement to sell dated

23.04.1981 (Exhibit DW-1/P-1) was, in fact, signed by the parties,

though the plaintiffs had signed the said agreement in Delhi and the

defendant No.1 had signed it on 05.05.1981 at Calcutta. The two

receipts dated 05.05.1981 (Exhibit P-3 and Exhibit P-4) for the

amounts of Rs 90,000/- each received from plaintiff No.2 and Plaintiff

No.1 respectively have been admitted by the defendant No.1. The

defendant No.1 has also admitted Exhibit P-5 which is a registered

general power of attorney in favour of Mr Riazuddin. She has also

admitted the registered will (Exhibit P-6) executed by her as also

Exhibit D-1 which is the agreement for building construction, Exhibit

DW-1/P-3 which is a one page general power of attorney and Exhibit

P-7 which is a registered special power of attorney in favour of Mr

Riazuddin, inter alia, authorizing him to apply for permission to sell

and to execute the sale deed.

14. PW-1 (Mr Mohd. Zaki) in his examination-in-chief, inter alia,

stated that the plaintiffs were his nephews being the sons of his brother

Mr Riazuddin. He stated that he is a resident of A-177, New Friends

Colony, New Delhi. The plaintiffs were also interested to acquire a

plot in New Friends Colony and that they had asked him to get them

one such plot. He stated that there was one plot bearing No. A-226

which was available for sale but on the same terms and conditions of

execution of documents, such as power of attorney, etc. He stated that

Mr K.K. Mehta introduced one property broker by the name of Mr

Gulshan Kumar. The plot was informed to be owned by Smt. Vimla

Sethi (Defendant No.1) of Calcutta. The witness further stated that the

plaintiffs saw the plot in question and approved the same. They had

agreed to purchase the said plot for a sum of Rs 1,80,000/- in 1981 and

the payment was desired to be made by way of bank drafts on

05.05.1981. The plaintiffs had got the drafts made on 04.05.1981. He

further stated that on the evening of 04.05.1981, he was given four

bank drafts by Mr Anisuddin (plaintiff No.1) and on 05.05.1981, he

(Mr Zaki) and Mr Mehta flew to Calcutta and went to the residence of

Mrs Vimla Sethi (defendant No.1). There, Mrs Vimla Sethi and her

husband (Mr S.P. Sethi) were present. The said bank drafts were given

to Mr S.P. Sethi. Some of the documents duly prepared at Delhi were

taken there and some other documents were to be prepared at Calcutta.

Those documents were shown to Mrs Vimla Sethi and her husband.

They approved the already prepared documents and also the format of

those documents which were to be prepared there. Thereupon, the

remaining documents were prepared at Calcutta. All the documents

were signed by Mrs Vimla Sethi and at that time her husband (Mr S.P.

Sethi) and another person by the name of Tony or Tomy, who was

probably their employee, was also present. The said witness stated that

he was acting on the deal on the implied authority of his nephews and

also because he had experience of dealing with such a property as he

had already purchased one such plot and also knew Mr Mehta.

15. In his cross-examination, the said Mr Zaki (PW-1) stated that

Exhibit DW-1/P-1 was signed by Mrs Sethi at point „X-1‟ at Calcutta.

The same was signed by Mr Anisuddin and Mr Khalid Riaz at point

"X-2" at Delhi on his return from Calcutta. Mr Sethi had signed the

same as a witness at point "X-3" in Calcutta at the time of signature of

Mrs Sethi. Exhibit DW-1/P-13 (Agreement of building construction)

was also stated to have been signed by Mrs Sethi and her husband at

Calcutta by the said witness. He stated that the place at point X-1 in

the said document which was meant for the signature of the contractor

was left blank.

16. The plaintiff No.1 (Mr Anisuddin) deposed as PW-2. In his

cross-examination, he stated that the said documents had been signed

on the return of the same from Calcutta. He also stated that the

possession of the plot in question was given to the plaintiffs by the

society after the finalisation of the deal and the same was taken

immediately after the deal though the exact date could not be recalled.

The said witness also stated that they constructed on the plot as per the

documents executed by the defendant No.1.

17. Mr Riazuddin, the father of the plaintiffs deposed as PW-3. In

his examination-in-chief, he stated that two general powers of attorney

and one special power of attorney were executed by Mrs Vimla Sethi in

his favour in respect of the said plot. The said powers of attorney were

exhibited as Exhibits DW-1/P-2, DW-1/P-3 and DW-1/P-4

respectively. He stated that he had been acting as per these powers of

attorney in respect of the premises in question and that none of the

powers of attorney were ever revoked or cancelled by Mrs Vimla Sethi.

In his cross-examination, the said witness [Riazuddin (PW-3)] stated

that the powers of attorney were executed by Mrs Vimla Sethi in his

favour at the time of the deal of the plot in question and on receipt of

the payment. He further stated that the payments were made by his

sons Anisuddin and Khalid Riaz from their accounts. He also stated

that it is wrong that a notice dated 03.11.1988 was issued by Mrs Sethi

invoking / cancelling the powers of attorney in his favour. He never

received any such notice. PW-3 had been recalled for further statement

when he stated that the confirmation / acknowledgement letters dated

31.03.1984, 30.03.1987 and 29.03.1990 were signed by him on the

revenue receipts and he identified the signatures on these three

documents being Exhibits PX-1 to PX-3. He stated that he signed these

documents as attorney of Smt Vimla Sethi and that he gave these three

documents to the plaintiffs. In his further cross-examination, the said

witness denied that Exhibit PX-1 and Exhibit PX-2 were executed after

03.11.1988 or that they were ante dated and volunteered that, in fact,

the documents were executed on the dates mentioned on them.

18. The agreement to sell (Exhibit DW-1/P-1) clearly showed the

defendant No.1 as the owner / vendor and the plaintiffs as the

purchasers / vendees in respect of the leasehold rights in the plot No.A-

226, New Friends, Colony, New Delhi measuring 481.5 sq. yds. The

recitals in the said agreement to sell clearly indicate that the vendor had

agreed to sell, convey and transfer her rights, title and interest in the

said plot of land for the total consideration of Rs 1,80,000/- in favour of

the purchasers and that the purchasers had also agreed to purchase the

right, title and interest of the owner for the said consideration. Clause 1

of the said agreement stipulated that in consideration of the said sum of

Rs 1,80,000/-, the defendant No.1 thereby agreed to transfer the plot as

well as the building structure to be put on the plot of land in question in

favour of the purchasers (plaintiffs). By virtue of clause 2 of the said

agreement, it was acknowledged by the defendant No.1 that the

plaintiffs had paid the sum of Rs 1,80,000/- through four bank drafts

dated 21.04.1981, 04.05.1981, 04.05.1981 and 04.05.1981 for which

separate receipts had also been issued as full payment of the sale

consideration.

19. Clause 4 of the agreement to sell indicates that the possession of

the plot detailed therein had been given to the plaintiffs as contractors

for construction under a contract for construction executed between the

parties and the plaintiffs had been fully authorised to raise / construct

the building and further to use the building for themselves or the

plaintiffs could let out the same to anybody in part or whole as they

liked and they would be entitled to get the rent from the tenants and the

defendant No.1 would not be entitled to charge anything as rent and

that the house tax, property tax and lease money or any other tax or

levy would also be payable by the purchasers (plaintiffs). Clauses 6

and 7 of the said agreement to sell carry the expression - "the plot

hereby agreed to be sold". Clause 8 stipulates that the ground rent from

the date of the agreement would be payable by the purchasers, but shall

be paid in the name of the owner till such time as the sub-lease is not

transferred in favour of the purchasers. Clause 10 of the agreement

specifically provides that the unearned increase would be payable by

the purchasers to the DDA or L&DO or the Delhi Administration and

that the purchasers alone shall have the liability to make this payment.

Clause 11 provides that the expenses for the transfer, stamp duty and

the corporation tax shall be payable by the purchasers from the date of

the agreement. Clause 14 stipulated that the owner would execute a

general power of attorney in the name of the purchasers or their

nominee / nominees in respect of the said plot which would be

irrevocable till the said plot is not transferred, registered, complete

vacant possession given and the property mutated in the name of the

purchasers or their nominees in the records of the DDA.

20. From the pleadings, documents and evidence on record, it is

apparent that the agreement to sell (Exhibit DW-1/P-1) was executed

by the parties. It is, of course, true that the said agreement was signed

by the defendant No.1 in Calcutta on 05.05.1981 and subsequently, by

the plaintiffs in Delhi. But this does not enable the defendant No.1 to

detract from the position that the said agreement to sell had been

executed by the parties. Under the said agreement to sell, the defendant

No.1 had agreed to sell the plot in question to the plaintiffs for a total

consideration of Rs 1,80,000/-. It is an admitted position that the entire

amount of Rs 1,80,000/- stood paid to the defendant No.1 by the

plaintiffs on 05.05.1981 itself through the four bank drafts referred to

above and the receipts acknowledging such payments had been issued

by the defendant No.1. It has also been established through evidence

that the plaintiffs were put into possession of the plot in question in

1981 itself.

21. The defendant No.1 has attempted to raise several pleas as set out

in paragraphs 1 (a) to 1(h) of the written statement to indicate that the

agreement to sell was never meant to be acted upon as such. Once

having admitted the execution of the agreement to sell, there was a

heavy burden on the said defendant No.1 to establish that the

agreement to sell was not meant to be acted upon and was void ab

initio. The reasons indicated in the written statement for claiming the

agreement to sell to be void ab initio are untenable. The defendant

No.1 has not been able to discharge this heavy burden of showing that

the agreement to sell was not meant to be acted upon. On the contrary,

the plaintiffs have been able to establish conclusively that the

agreement to sell had been executed by the parties. They have also

been able to establish that the entire sale consideration of Rs 1,80,000/-

had been paid on 05.05.1981 itself and even possession in respect of

the plot was with the plaintiffs.

22. As stated above, the defendant No.1 had sought to suggest that

the possession was taken illegally by the plaintiffs, however, there is

nothing to show that for all the years between 1981 and 1992, when the

present suit came to be filed, the defendant No.1 ever protested with

regard to the possession of the plaintiffs. The argument with regard to

the defendant No.1 having signed the documents in Calcutta and the

plaintiffs having signed it in Delhi and, therefore, the same being void,

is clearly untenable. Once the parties have admitted that they executed

the documents and affixed their signatures thereto, it is immaterial as to

whether they signed the said documents at the same place or at

different places. The significance of signing the document is that they

accept the terms and conditions set out therein. Both the plaintiffs as

well as the defendant No.1 having signed the agreement to sell (Exhibit

DW-1/P-1) are bound by it. It must also be noted that the intention of

the parties was to enter into the agreement to sell and for the defendant

No.1 to ultimately convey the said property to the plaintiffs by

executing a sale deed. This can easily be discerned not only from the

clear and express terms of the agreement to sell (Exhibit DW-1/P-1) as

well as from the other documents executed by the defendant No.1. The

defendant No.1 executed the receipts dated 05.05.1981 (Exhibit P-3

and Exhibit P-4) in respect of Rs 90,000/- each. She executed the

registered general power of attorney (Exhibit P-5), the registered will

(Exhibit P-6), General Power of Attorney (Exhibit DW-1/P-3),

registered special power of attorney (Exhibit P-7). All these documents

clearly go to show the clear intention of the parties that the agreement

to sell was binding on them and that it was meant to be acted upon.

The agreement to sell (Exhibit DW-1/P-1) dated 23.04.1981 /

05.05.1981 was a valid and binding agreement which had been entered

into after a clear meeting of minds.

23. Consequently, Issue No.1 is decided against the defendant No.1

and in favour of the plaintiffs.

24. These issues relate to the building construction agreement and

have been raised at the instance of the defendant No.1. The present suit

is concerned with the specific performance of the agreement to sell

dated 23.04.1981 / 05.05.1981 and is not seeking the specific

performance of the building construction agreement. In any event,

from the discussion of the documents and evidence under Issue No.1, it

is apparent that the construction agreement was entered into by and

between the parties to permit the plaintiffs to construct on the plot in

question even prior to the same being formally transferred to them

through a registered sale deed. Since there were various obstacles for

the conveyance of the property to the plaintiffs, signatures on the

construction agreement had been obtained from the defendant No.1.

The fact of the matter is that the defendant No.1 had agreed to sell the

plot in question to the plaintiffs and the plaintiffs, in turn, had paid the

entire sale consideration as well as obtained possession of the said plot.

Thereafter, the plaintiffs constructed the residential building standing

thereon at their own expense and have been residing in the same since

its completion in 1984. Whether the building construction agreement

was legal or not or was repudiated through the notice of Mr Gopendra

Nath Dutta dated 03.11.1988 is not at all material for the purposes of

coming to a conclusion with regard to the reliefs prayed for by the

plaintiffs. Even if it is assumed that there was no agreement with

regard to building construction, this does not, in any way, advance the

cause of the defendant No.1. She cannot resile from the position that

she entered into the agreement to sell, that she received the entire sale

consideration, that possession was handed over to the plaintiffs, that the

plaintiffs constructed the residential building thereon at their own

expenses, and that the plaintiffs have been residing in the said building

since its completion in 1984 without any hindrance from the defendant

No.1.

25. As such, I hold that Issue Nos. 2, 3 and 4 are irrelevant for the

purposes of the present suit.

Issue No.6

26. This issue pertains to the occupation of the suit property by the

plaintiffs. While discussing Issue No.1, I have already found that the

plaintiffs‟ occupation of the property in question is entirely legal. This

issue is also decided in favour of the plaintiffs and against the

defendant No.1.

Issue No.7

27. It has been contended on behalf of the defendant No.1 that the

present suit is barred by limitation. According to the defendant No.1,

Article 54 of the Schedule to the Limitation Act, 1963 needs to be

considered for computing the period of limitation. The said Article 54

stipulates that the period of limitation for a suit for specific

performance of a contract is three years and the time from which the

period begins to run is - "the date fixed for the performance, or, if no

such date is fixed, when the plaintiff has notice that performance is

refused". It was contended on behalf of the defendant No.1 that in the

plaint, it has been averred that the plans were prepared and the

construction was raised and the completion certificate was issued on

21.08.1984 and that the defendant No.1 had signed the documents

indicating that she was unable to pay cost of construction and that the

plaintiffs should get the sale deed registered in their names. It was,

therefore, contended on behalf of the defendant No.1 that even as per

the plaintiffs‟ case, the refusal on the part of the defendant No.1 was on

21.08.1984 and that should be construed as the starting point of

limitation. Three years from that date would expire on 20.08.1987,

whereas the suit was filed on 13.01.1992 and, therefore, the same is

time barred.

28. The reference to the document signed by the defendant No.1

indicating her inability to pay the cost of construction is to Exhibit PW-

1/7. This is a document which has several blanks at marks X-1 to X-7.

This document had been signed by the defendant No.1 in 1984. This

document also lends support to the conclusion that the building

construction agreement was only sought to be a device to enable the

plaintiffs to construct on the said plot even prior to the registration of

the sale deed in their favour. Nothing turns on this document and the

same cannot be regarded as a refusal of performance on the part of the

defendant No.1. This argument of the defendant No.1 is, therefore,

rejected.

29. It has then been contended on behalf of the defendant No.1 that

by the defendant No.1‟s lawyer‟s notice dated 03.11.1988 (Exhibit D-

2), it had been indicated to the plaintiffs that the agreement to sell and

agreement to build would not be binding unless these were re-

negotiated and in particular the agreement to sell. It was also indicated

in the said notice that the agreement to build would be deemed to be

void so far as the defendant No.1 was concerned till the said

agreements are re-negotiated. It was, therefore, contended on behalf of

the defendant No.1 that the letter dated 03.11.1988 constituted a refusal

of the performance of the agreement between the parties and would,

therefore, be the starting point of limitation. Three years from that date

would expire on 03.11.1991, whereas the suit has been filed on

13.01.1992 and, therefore, would be barred by limitation.

30. This argument, though appearing to be attractive, is not

acceptable. The learned counsel for the defendant No.1 failed to refer

to various letters and more importantly the letter dated 03.08.1991

(Exhibit DW-1/P-15) issued by the defendant No.1 to the plaintiffs. In

the said letter, there is a reference to the agreements entered into on or

about 23.04.1981 and in that context, the defendant No.1 has stated:-

"While in equity, justice and law, all those agreements signed on or about 23rd April, 1981 are fast loosing relevance because of having not been acted upon for over a decade, I am still willing to cooperate with you and your brother in the above matter so that whatever was agreed upon between us can be acted atleast in the spirit in which it was agreed upon but without any loss to me materially or otherwise. Since most of the items in the agreement have become out-dated because of not having been acted upon, I am ready to sign any new agreements also to give effect to our understandings, provided I do not suffer any loss in the process."

xxxx xxxx xxxx xxxx xxxx

"I am ready to cooperate with you in every way still so that the spirit of the agreement can be honoured but it does look to me that you are least appreciative of my difficulties created solely by your inaction over the agreements for the last ten years continuing with your disregard of my problems."

31. This letter clearly establishes that it is the defendant No.1 who

has been attempting to resile from the original agreement of

23.04.1981/05.05.1981. Perhaps because the property prices had gone

up in the meanwhile, the defendant No.1 was trying to re-negotiate a

better deal for herself, forgetting that she had accepted the entire sale

consideration upon a solemn promise to execute the sale deed when the

plaintiffs required her to do so. This letter also clearly indicates that

the story of repudiation / refusal was not tenable because the defendant

No.1 clearly indicated that she was still willing to cooperate with the

plaintiffs so that whatever was agreed upon between them could be

acted upon at least in the spirit in which it was agreed upon. The

expression "but without any loss to me materially or otherwise", is

clearly indicative of the fact that the defendant No.1 wanted to make

some extra money out of the transaction which had been concluded.

This letter clearly indicates that on 03.11.1988, there was no refusal to

perform the contract, but only a desire to re-negotiate so as to enable

the defendant No.1 to receive something more than what had been

agreed upon. The same sentiment is discernible from this letter dated

03.08.1991 (Exhibit DW-1/P-15).

32. Therefore, I hold that the starting point of limitation for the

purposes of filing of the present suit would not be 03.11.1988 as

alleged by the defendant No.1. On the other hand, the plaintiffs have

averred in paragraphs 5 and 6 of the plaint that they insisted on sticking

to the old agreements and informed the defendant No.1 by their letter

dated 23.11.1991 that she should obtain permission of the DDA and the

clearance certificate from the income tax department for executing the

necessary sale deed which were the only two matters which remained

to be completed. The plaintiffs averred that by their letter dated

23.11.1991 they called upon the defendant No.1 to execute the

necessary sale deed. The defendant No.1 has failed to do so and,

therefore, the plaintiffs were compelled to file the present suit. In the

written statement, there is no denial by the defendant No.1 of the

receipt of the letter dated 23.11.1991 calling upon the defendant No.1

to execute the sale deed after obtaining permission from the DDA and

the clearance certificate from the income tax department. In view of

the provisions of Order 8 Rule 3 of the Code of Civil Procedure, 1908,

every denial has to be specific. Order 8 Rule 6 thereof provides that

every allegation of fact in the plaint, if not denied specifically or by

necessary implication, or stated to be not admitted in the pleading of

the defendant, shall be taken to be admitted except as against a person

under disability. A specific allegation has been made by the plaintiffs

with regard to the letter dated 23.11.1991 and the demand raised therein

for executing the necessary sale deed. This has not been denied by the

defendant No.1. Consequently, the same would have to be construed as

having been admitted by the defendant No.1. The position, therefore, is

that the plaintiffs requested for execution of the sale deed by their letter

dated 23.11.1991 which has not been complied with by the defendant

No.1. The starting point of limitation, if at all, would be subsequent to

23.11.1991 when the defendant No.1 received the said letter of

23.11.1991 and failed to act thereupon thereby constituting refusal to

perform her part of the agreement by her conduct. The suit was filed

on 13.01.1992 and would, therefore, clearly be within time. The suit is,

therefore, not barred by limitation and this issue is also decided in

favour of the plaintiffs and against the defendant No.1.

Additional Issue

33. The learned counsel for the defendant No.1 raised this issue with

regard to the suit being improperly valued for the purposes of court fee

and jurisdiction. Though this issue was not seriously agitated, it was

contended on behalf of the defendant No.1 that the suit was actually

one for declaration and consequential relief and, therefore, ad valorem

court fee on the value of the plot on the date on which the suit had been

filed ought to have been paid. However, I find that the suit is actually

one for specific performance of the agreement to sell dated

23.04.1981/05.05.1981 and it has been properly styled as a suit for

specific performance. Consequently, this issue is also decided in

favour of the plaintiffs and against the defendant No.1.

Issue No.9 (Relief)

34. It is an admitted position that the plaintiffs are in possession of

the suit property. They are, therefore, entitled to a declaration that they

are in possession thereof. The plaintiffs have clearly established the

execution of the agreement to sell (Exhibit DW-1/P-1) dated

23.04.1981 / 05.05.1981. It has also been established that the plaintiffs

have paid the entire sale consideration of Rs 1,80,000/- to the defendant

No.1. Possession of the said suit property was also handed over the

plaintiffs. The plaintiffs had applied to the defendant No.1 specifically

to perform the agreement on her part, but the defendant No.1 has not

done so. The plaintiffs have also demonstrated that they have been and

still are ready and willing to specifically perform the agreement on their

part of which the defendant No.1 has had notice. Despite this, the

defendant No.1 has not executed the sale deed. The plaintiffs have

already performed their part of the contract and nothing more is

required of them. It is only the defendant No.1 who has to execute the

sale deed and complete the transaction. Accordingly, the plaintiffs are

entitled to the reliefs prayed for in sub-paragraphs „a‟ and „b‟ of

paragraph 12 of the plaint. The suit is decreed accordingly with costs.

( BADAR DURREZ AHMED ) JUDGE July 02, 2008 dutt