Shri Pran Nath Kapoor & Anr. vs Shri Surender Hooda
2009 Latest Caselaw 2390 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                     CS (OS) No.318/2008

%                     Judgment reserved on:             6th May, 209

                      Judgment pronounced on:            1st July, 2009

Shri Pran Nath Kapoor & Anr.                            ..... Plaintiffs
           Through: Mr. B.L. Chawla, Adv.

                      Versus

Shri Surender Hooda                                    ..... Defendant
          Through: None

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

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                           No
   in the Digest?

MANMOHAN SINGH, J.

1. The present suit has been filed by the plaintiffs for specific

performance of contract with delivery of possession,

compensation/damages.

2. It is averred in the plaint that the defendant executed an

agreement to sell dated 20.10.2007 in favour of the plaintiffs for a total

consideration of Rs.44,66,000/- in respect of property bearing plot Nos.

R-20A and R-20B of an area measuring 203 sq. yards with office com-

showroom out of total area measuring 240 sq. yards forming part of

Khasra No.183 and 184, situated in village Nawada, Delhi abadi known

as Nawada Housing Complex, Jain Road, Uttam Nagar, New Delhi. The

plaintiffs on the representation of the defendant agreed to purchase the

property in question from the defendant at the said consideration

mentioned above and made a part payment of Rs.5 lac to the defendant

as earnest money on 20.10.2007 and the balance amount of

Rs.39,66,000/- was agreed to be paid by the plaintiffs to the defendant

on or before 31.1.2008 on execution of sale deed in favour of the

plaintiffs after completion of the necessary and requisite formalities by

the defendant and delivery of vacant physical possession of the property

to the plaintiffs.

3. It is further averred in the plaint that at the time of entering

the agreement to sell, the defendant produced original sale deed dated

3.1.2003 executed in his favour for inspection of the plaintiffs.

4. Since the defendant continued to postpone to complete the

formalities within the stipulated period under one pretext or the other,

the plaintiffs sent a notice dated 21.1.2008 on the defendant requesting

him to fix a date for execution of the sale deed in their favour showing

their willingness and readiness and to pay the balance amount of

consideration and asked defendant to execute the sale deed in their

favour, and received the balance amount of consideration to enable the

plaintiff to purchase the non-judicial stamp paper for the same.

5. The defendant vide letter dated 24.1.2008 replied to the

above said notice of the plaintiffs stating that as per the rules of Govt. of

Delhi, no sale deed and power of attorney have been allowed to get

registered in regard of the locality where the property in question is

situated. It is further stated that the plots in the locality where the

property in dispute situates were allotted to the people under the 20

points (Sutri) programme by the Government and the decision with

regard to getting the locality freehold is still pending for consideration

before the Delhi Government. The defendant assured the plaintiffs that

the sale deed will be executed in their favour only after the Govt. of

Delhi allows the properties in the abovesaid locality to be converted to

freehold properties. No document for registration can be executed till

the matter pending before the Delhi Govt. is settled.

6. After the aforesaid letter dated 24.1.2008, the defendant also

sent a notice dated 4.2.2008 (stated to be erroneously dated 4.1.2008)

wherein the defendant informed the plaintiffs that he had waited for the

payment of balance sale consideration till 31.1.2008, and as the same

was not received, the earnest money of Rs.5 lac paid by the plaintiff is

therefore forfeited by him.

7. The plaintiff states that the plaintiffs were all along and are

still ready and willing to pay the balance of the sale consideration to the

defendant as indicated in their letter dated 21.1.2008, but the defendant

is trying to wriggle out of the contract by making excuses.

8. It is alleged by the plaintiff that they approached the

defendant number of times and offered the balance amount of sale

consideration and requested him for sale transaction and execution of

sale deed with delivery of vacant physical possession after completion of

necessary and requisite formalities but the defendant delayed the

registration on the ground that the property was allotted under 20 points

(Sutri) programme by the Govt.

9. The plaintiff denied of any oral understanding as stated by

the defendant in the letter dated 24.1.2008 and subsequent notice dated

4th January, 2008 and submitted that it was represented by the defendant

at the time of entering into agreement to sell that he was owner of

freehold self acquired property and also produced original sale deed in

his favour dated 3.1.2008. This fact is evident from the terms of the

bayana agreement dated 20th October, 2007 and also from production of

the original sale deed dated 3rd January, 2003 for inspection of the

plaintiffs.

10. It is contended that the contract between the plaintiffs and the

defendant is legally. The plaintiffs are therefore entitled to compensation

for breach of the contract by the defendant, besides its specific

performance, in addition to or in substitution of such performance by the

defendant. The plaintiff prayed for specific performance of the contract

dated 20th October, 2007. In the alternative, the plaintiffs prayed for

compensation of Rs.5 lac for breach of the contract and also for refund

of the amount of Rs.5 lac paid by them to the defendant as earnest

money, with interest thereon at the market rate and to execute and

register the sale deed in favour of the plaintiffs.

11. Vide order dated 18.2.2008, an interim order was passed

restraining the defendant, his agents and/or assignees from selling,

transferring or encumbering the suit property. The defendant even after

service of summons by ordinary process neither filed any written

statement nor any one appeared on his behalf, therefore, by order dated

30.9.2008 the defendant was directed to be proceeded against ex parte

and the interim order dated 18.2.2008 was made absolute till the disposal

of the suit. The plaintiff Sh. Pran Nath Kapoor (plaintiff No.1 herein)

filed evidence on behalf of plaintiffs deposing on the same terms as exist

in the plaint.

12. It is contended by the plaintiff that the damages in terms of

money was not adequately relieved and the breach of contract to convey

the immovable property by execution and registration of sale deed

cannot be adequately relieved by compensation in terms of money or

otherwise in the circumstances of the case, therefore, the plaintiff has

prayed for a decree of specific performance.

13. In the agreement to sell clause 2 provided for payment to be

made on or before 31.1.2008 and to execute the sale deed in favour of

the plaintiffs at the time of the payment. In Clause 4, it is provided that

the suit property is self acquired property of the defendant with the

freehold rights of the land under the said property. Though in the reply

to the notice, the defendant denied regarding the provision for execution

and registration of the sale deed of the property on or before 31.1.2008

after completion of necessary and requisite formalities and took the plea

that the suit property was allotted under 20 points (Sutri) programme by

the Government, the defendant has not denied of executing the

agreement to sell and payment of Rs.5 lac made to him by the plaintiff.

The defendant agreed to do certain acts and things in the agreement to

sell.

14. If the buyer is in the position to perform the remaining

contract and is ready and willing to pay balance amount, it would be

sufficient to fulfil the requirement of readiness to pay. The plaintiffs

being the purchaser for valuable consideration under the agreement to

sell have right to claim specific performance and as such is entitled for

decree in their favour. Performance of the contract would not involve

any hardship to the defendant. In the result, I am of the considered view

that the contract of sale between the parties is lawful, has been partially

and substantially performed and acted upon by both the parties. The

contract is capable of specific performance. There is no valid ground or

justification why the court ought not to pass a decree for specific

performance of this contract in favour of the plaintiffs.

15. The suit of the plaintiff is decreed in terms of prayer [a]. It is

directed to the defendant that as per contract dated 20.10.2007, the

defendant will execute the sale deed of the property bearing Plot Nos.R-

20A and R-20B, measuring 203 sq.yds., with office cum showroom, out

of total area measuring 240 sq.yds. forming part of Khasra no.183 and

184, situated in the revenue estate of Village Nawada, Delhi, abadi

known as Nawada Housing Complex, Jain Road, Uttam Nagar, New

Delhi.

Till the execution of the sale deed, the ex parte ad interim

injunction order passed against the defendant shall continue. The other

reliefs claimed by the plaintiff are rejected being infructuous.

The decree be drawn accordingly.

MANMOHAN SINGH, J JULY 01, 2009 SD