Shri Ved Prakash Ahuja vs Major Suraj Prakash Chhatwal
2009 Latest Caselaw 209 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                           Date of decision : 21.01.2009

+                        RFA (OS) No.29 of 1986


SHRI VED PRAKASH AHUJA                              ...APPELLANT
                    Through:           Mr. N.S. Jain, Advocate.


                                   Versus


MAJOR SURAJ PRAKASH CHHATWAL             ...RESPONDENT
                    Through: Mr. K.K. Mehrotra, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?            No

2.        To be referred to Reporter or not?             No

3.        Whether the judgment should be
          reported in the Digest?                        No


SANJAY KISHAN KAUL, J. (Oral)

1. The appellant filed a suit for specific performance of the

agreement for sale of property No.B-4/3, Rajouri Garden,

New Delhi in terms of a letter of the respondent dated

23.8.1978 and a receipt for earnest money of Rs.5,000.00

dated 30.10.1978. The appellant at the stage of the said

agreement was a tenant in part of the premises in suit. The

total consideration agreed to was Rs.1,10,000.00. The

plaintiff claimed that assurances had been held out to him

that documents of sale would be executed in his favour

through various letters but to no avail and thus a legal

notice dated 19.1.1982 was sent by the appellant

expressing his willingness to perform his part of the

contract with the balance consideration being ready with

him but the same was denied vide reply dated 5.2.1982.

The suit was verified on 9.2.1982 while it was filed on the

Original Side of this Court on 23.4.1982.

2. The respondent raised various preliminary objections

including the legality and validity of the documents, bar of

time, delay and laches and unwillingness of the appellant to

perform his obligations in making the balance payment. It

was stated that on the visit of the appellant to the

respondent at Lucknow in 1978 the respondent agreed to

sell the property with the understanding that the price

would be informed to him after checking the same from the

market. The respondent claims that since he had two

marriageable daughters there was a need of funds. The

letter dated 23.8.1978 of the respondent informed the

appellant of price of Rs.1,10,000.00 but the appellant vide

letter dated 4.10.1978 informed that in his opinion the price

was on the higher side and should be Rs.90,000.00. It was,

thus, alleged that no agreement was executed. The

execution of the receipt dated 30.10.1978 and the receipt

of Rs.5,000.00 was not denied but it was stated that the

respondent was under the influence of medicines as he had

come from the hospital and in any case the sale transaction

had to be completed within three (3) months from the date

of the receipt.

3. The issues were framed in the suit as under on 30.8.1984:

"ISSUES:

1. Whether the suit is within limitation? OPP

2. Whether the defendant entered into an agreement of sale with plaintiff in respect of House No.B-4/3, Rajouri Garden, New Delhi, for a consideration of Rs.1,10,000/- and received Rs.5,000/- as earnest money and executed a valid receipt for this amount? OPP

3. If the issue No.2 is held in favour of the plaintiff was the agreement terminated by the letter dated 9.12.1980 of the plaintiff asking the defendant to treat the sum of Rs.5,000/- as Loan? OPD

4. Whether the defendant committed breach of agreement to sell and if so to what effect? OPP

5. Whether the plaintiff was ready and willing to perform his part of the agreement? OPP

6. Whether the plaintiff is not entitled to the relief of the specific performance on account of alleged laches? OPD

7. Relief."

4. The suit was tried and the appellant appeared as PW-1.

Two other witnesses were also produced being one Shri Raj

Kumar, who resides in Lucknow and who was a relation of

the appellant and Virender Pal Khurana, PW-3, his brother-

in-law. The defendant appeared in support of his case as

DW-2 and his son-in-law appeared as DW-1. On conclusion

of the trial in terms of a judgement and decree dated

11.4.1986 the suit was dismissed with costs.

5. The learned single Judge of this Court (as he then was)

came to a conclusion on the basis of the evidence on record

that the parties did enter into an agreement to sell and that

the respondent had received a sum of Rs.5,000.00 as

earnest money with the receipt being Exhibit P-2. Issue

No.2 was, thus, found in favour of the appellant. The suit

was also found to be within time and the question of laches

was held not to be a material fact and thus issue Nos.1 & 6

were also found in favour of the appellant. The remaining

three issues were dealt with together. The documents on

record showed that there was negotiation about how much

amount could be lent by the appellant to the respondent

which would be adjusted against the final payment. It was,

thus, held that a reference to the final payment could be

only in respect of the balance consideration agreed to.

Exhibit D-3 dated 9.12.1980 showed that the appellant

himself stated that he was in a position to pay only

Rs.35,000.00 "at present" which would bring the total

payment to Rs.40,000.00 but that he would not pay any

rent after that. However, that payment was not made.

Another letter referred to is Exhibit D-4 dated 20.1.1981

wherein the appellant has stated that part payment could

be made of Rs.50,000.00. The appellant suggested

thereafter different dates for the respondent to come to

Delhi to receive that amount.

6. In terms of the impugned judgement it has been found that

though the aspect of the loan amount being adjusted

against sale consideration can be found from documents,

there is no evidence brought on record as to the terms of

the loan. However, the promise to pay Rs.35,000.00 as per

Exhibit D-3 was held not to amount to termination of the

agreement but thereafter the learned Judge proceeded to

examine the most important aspect of the readiness and

willingness of the appellant to perform his part of the

agreement.

7. In respect of this aspect the learned Judge has found that

the plaintiff has failed to show that he had arrangements to

make balance payment and on a specific question being

posed as to what amount was available within the bank

account or otherwise in 1980 the plaintiff denied

remembering the same. The appellant also stated that he

was having no money in the house but that he would have

made arrangements. The appellant though promised a loan

of Rs.50,000.00 never paid that amount nor was any

evidence brought on record that the appellant was in a

position to pay the whole amount. In fact, Exhibit P-7

showed that the appellant had gone to Lucknow but he

could not show that he had gone with the balance of

Rs.1,05,000.00 but actually had gone with a sum of

Rs.50,000.00 by means of two bank drafts of Rs.20,000.00

and Rs.30,000.00 each. There is also silence of the

appellant from 23.10.1978 till 1980.

8. We have heard learned counsels for the parties. Learned

counsels agree that the short question to be examined in

the appeal is the readiness and willingness of the appellant

to make payment.

9. The evidence produced and discussed in the impugned

judgment shows that the agreement of 1978 did not specify

any time period for making the balance payment but it

would be expected that the payment would be made within

a reasonable period of time. The appellant kept silent for a

long period of time and thereafter also clearly expressed

his ability only to make part payments firstly of

Rs.35,000.00 and thereafter of Rs.50,000.00. If the full

payment was ready there would be no occasion to pay loan

amount to the respondent or adjust the same against

balance consideration as the reason stated by the

respondent for sale of property was the need of money.

The appellant being a tenant in part of the premises clearly

had an advantage of being a protected tenant under the

Delhi Rent Control Act, 1958. The appellant claimed in the

pleadings that he went to Lucknow with a sum of

Rs.1,05,000.00 but the testimonies and documents showed

that he had carried with him only a sum of Rs.50,000.00 in

the form of two bank drafts. Prior to that he had promised

to make payment of Rs.35,000.00. The fact remains that

even these payments were never made.

10. It, thus, clearly emerges that the appellant did not have

sufficient means or resources to arrange the payment of

the balance amount of Rs.1,05,000.00 within a reasonable

period of time after the execution of the agreement and

thus kept on prolonging the matter on one pretext or the

other. This also explains the silence of the appellant from

23.10.1978 till 1980. The explanation given by the

appellant that the sale deed was to be executed only after

the eviction of the other tenant from another portion of the

property has been rightly disbelieved by the learned single

Judge as it forms no part of averments of the plaint or of

documents including the pleadings. The appellant sought

to purchase the property with himself in occupation of a

part of the premises and another tenant being in

occupation of the other but thereafter prolonged the matter

on one pretext or the other. It is only when the eviction

proceedings succeeded against the other tenant that the

appellant started reasserting his rights. Needless to say

that the value of a property occupied by a tenant and as

vacant would be quite different. We are, thus, in

agreement with the findings arrived at by the learned single

Judge of the inability and unwillingness of the appellant to

pay the balance consideration and learned counsel for the

appellant has not been able to show any infirmity in the

findings of the impugned judgment.

11. The appeal is without any merit and is dismissed with costs.

SANJAY KISHAN KAUL, J.

JANUARY 21, 2009 SUDERSHAN KUMAR MISRA, J. b'nesh