Delhi High Court

Sh. Suresh Jain vs M/S. Orient Carpet Gallery Pvt. ... on 24 July, 2009

Author: Manmohan Singh

*          HIGH COURT OF DELHI : NEW DELHI

+          I.A. No.2094/2008 in C.S. [OS] No.287/2007


                                 Reserved on:      19th January, 2009

%                                Decided on:            24th July, 2009

Sh. Suresh Jain                                      ...Plaintiff
                      Through : Mr. Rajiv Nayyar, Sr. Adv. with
                                Mr. Sacchin Puri, Adv. and
                                Ms. Kadambari, Adv.

                      Versus

M/s. Orient Carpet Gallery Pvt. Ltd.                  ....Defendant
                     Through : Mr. V.K. Srivastava, Adv. with
                                 Mr. Vikas Mehta, Adv. and
                                 Mr. Pravin Pahuja, Adv.

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?                               Yes

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

MANMOHAN SINGH, J.

1. By this order I shall dispose of the application being IA

No.2094/2008 under Order 12 Rule 6 read with Section 151 CPC filed

by the plaintiff for decree on judgment. The brief facts of the matter are

that the plaintiff has filed the present suit, inter alia, for specific

performance of agreement dated 09.12.2005 and for permanent

injunction. The defendant has filed its written statement.

2. During the pendency of the matter, the plaintiff has filed the

present application under Order 12 Rule 6 CPC on the basis of alleged

admissions made by the defendant. It is stated in the application that the

defendant has admitted the execution of agreement to sell dated

09.12.2005 and the defendant has further admitted that a letter of

attornment was issued by it to the tenant, M/s. Supreme Tradelinks

Private Limited, and the said tenant attorned to the plaintiff and the rent

has been paid to the plaintiff w.e.f.1.1.2006.

3. It is further contended in the application that it is the

admitted case of the defendant that the entire consideration payable

under the agreement dated 09.12.2005 has been paid by the plaintiff and

that only the ministerial act for getting the property transferred in the

name of the plaintiff was required to be done upon the defendant's

depositing the money towards transfer charges, ground rent etc. with the

developer namely M/s. Ansal Properties and Industries Limited.

4. It is stated in the application that the defendant issued the

transfer letter to be lodged with the developer, M/s. Ansal Properties

and Industries Limited to substitute the plaintiff in the records but

retained the original to enable it for the purposes of clearing the dues

and charges, which is the exclusive liability of the defendant till the date

of the purchase.

5. According to the plaintiff, the defendant company has

admitted the entire case of the plaintiff, which is the subject matter of

the suit and in fact the defendant has no defence to the claim of the

plaintiff.

6. The plaintiff has averred that it is the case of the parties that

all the rights of the defendant in the property stood extinguished except

that the developer has a right to execute the sale deed in respect of the

suit property which after substitution would be executed in favour of the

plaintiff.

7. It is prayed in the application that a decree in terms of the

prayer made in the plaint be passed in favour of the plaintiff and against

the defendant directing the defendant company to produce the original

transfer letter and deposit the same with the developer and deposit all

the requisite charges, ground rent etc.

8. This application has been opposed by the defendant by filing

the reply stating therein that the present application under Order 12 Rule

6 CPC is not maintainable as the defendant has raised various triable

issues in its written statement, which require full trial and in view

thereof, the plaintiff is disentitled to the decree claimed by the plaintiff.

The details of the factual and legal issues have been stated in the written

statement.

9. In the reply, the defendant has stated that the agreement to

sell dated 09.12.2005 is neither registered nor stamped as per the

provisions of Stamp Act as amended and applicable to Delhi. The

contention of the defendant is that the agreement/document which is not

properly stamped, cannot be acted upon and received in evidence as

provided under the provisions of Sections 35 and 36 of the Stamp Act.

Therefore, the decree cannot be passed in favour of the plaintiff on the

basis of agreement, which under the law cannot be acted upon.

10. Another objection raised by the defendant in its reply is that

the conduct of the plaintiff is mala fide as he is guilty of suppression,

misrepresentation and committal of fraud.

11. In support of this submission, the defendant has stated that

on 09.12.2005, at the time of agreement to sell, the property known as

MG-11, which is the subject matter of Suit no.136/2007 was also agreed

to be sold to the defendant's sister concern. The plaintiff requested the

defendant to sell and transfer to the plaintiff simultaneously their

commercial space no.CG-07, Ansal Plaza, Andrews Ganj, New Delhi,

which is the subject matter of the present suit. The plaintiff at that point

of time ensured that he and his son would execute the sale deed in

respect of another property bearing no.MG-11 and get the sale deed of

the defendant's property at Ansal Plaza executed simultaneously but the

plaintiff and his son with mala fide intention failed in their obligation

qua MG-11 property despite receiving amount of Rs.2.90 crores as

advance.

12. I have heard the submissions of the learned counsel for both

the parties and have also gone through the respective pleadings and

documents filed by both the parties. While going through the pleadings

and documents, the following are the admissions made by the defendant,

which are not otherwise specifically denied by the defendant :-

a] The defendant has admitted the execution of the agreement in favour of the plaintiff;

b] The defendant has admitted the receipt of 100% sale consideration;

c] The defendant has admitted that it has asked the tenant to attorn to the plaintiff;

d] The defendant has admitted that the tenant was paying the rent to the plaintiff till the time the defendant asked him not to pay the rent on the ground that they had cancelled the attornment; and

e] The defendant has also admitted that it was for its benefit that the tenant should stop paying the rent to the plaintiff.

13. The aforesaid admissions made by the defendant also emerge

from the fact that after the execution of the agreement, the defendant

issued a letter to the tenant namely M/s.Supreme Tradelinks Private

Limited confirming the sale and asking the tenant to attorn to the

plaintiff. The said letter dated 12.12.2005, which is written and signed

by Satish Kumar Gupta as a Director on behalf of the defendant, is filed

by the plaintiff on record, which reads as under:-

"M/s.Supreme Tradelinks Pvt. Ltd.

7th Floor, Tower A, Infinty Tower, DLF Cyber Citi, DLF Phase II, Gurgaon, Haryana

Dear Sirs,

You are the tenants in the Commercial Space no.CG-07, admeasuring 1695 sq.ft. on the ground floor of the Building known as „Ansal Plaza‟ Hudco Place, Andrews Ganj, Near South Extension, Khelgaon Marg, New Delhi, vide the Lease Deed dated 8th September 2005.

We have sold the Commercial Space no.CG-07 admeasuring 1695 sq.ft. to Mr.SURESH JAIN S/O late Shri Sher Singh Jain R/O C-29, Panchsheel Enclave, New Delhi. In terms of Clause 23 of the above referred Lease Deed, we request you to kindly attorn to the said change of ownership and pay rent for the captioned commercial space directly to the new owners with effect from 1st January, 2006. The new owners viz. Mr.SURESH JAIN, confirm to abide by all the terms and conditions of the Lease Deed dated 08.09.2005. We have paid the sum of Rs.18,30,600/- [Rupees Eighteen Lac thirty thousand six hundred only] only to the new owners being the interest-free security deposit/Advance rent and the receipt of the same has been confirmed by the new owners on this letter itself.

The above statement of ours is being confirmed by the new owners.

Please acknowledge receipt. Thanking you

Yours Truly, For M/s. Orient Carpet Gallery Private Limited"

14. It is also a matter of record that in confirmation of the

attornment, the tenant also issued a letter dated 22.12.2005, which is

filed on record as Annexure „C‟ with the plaint wherein it is admitted

that the said letter was confirmed by the tenant, who has confirmed that

they shall attorn the change in the ownership and would pay rent in the

name of the plaintiff w.e.f. 01.01.2006. This letter was addressed to the

plaintiff with a copy to the defendant. On 15.01.2007, another letter

was issued by the tenant to the plaintiff informing that the defendant has

issued a letter to the tenant asking them not to pay rent as they have

cancelled the attornment.

15. By order dated 18.02.2008, it was directed by this court in IA

no.11521/2007 that the arrears of rent in respect of suit property w.e.f.

07.01.2007, which are retained by the tenant, M/s. Supreme Tradelinks

Private Limited be deposited within four weeks in this court and the

future rent shall be deposited on a month to month basis till further

orders. It has been noticed that further order was passed on 02.09.2008

wherein it was ordered with the consent of the parties that the amount

received in the Registry from the tenant be placed in the F.D.R. to earn

interest till further orders are passed in this respect.

16. Learned counsel for the plaintiff has argued that main

defence taken by the defendant in their written statement is that the

transaction covered by the said agreement was a transaction connected

with a transaction for another property i.e. 11, M.G. Road, New Delhi.

The contention of the learned counsel for the plaintiff is that the said

transaction did not have the present defendant as a party.

17. Further it is argued that there is a suit pending before this

court in respect of the said property and the party to the said suit i.e.

M/s. Silver Oak Infrastructure Private Limited, is not even a party to the

present suit and is not connected with the present transaction. The

defendant in the said suit, Mr. Sumit Jain and Mr. Vineet Jain

[defendant nos.2 and 3 therein] are again not the party to the present suit

and are not connected with the transaction in question.

18. It is further argued that the defendant has failed to produce

any document to show that the two transactions were inter-connected in

any manner whatsoever. By raising this defence, the defendant cannot

succeed in the matter. Since there are admissions made by the defendant

in the present case, there is no requirement for the parties to go for the

trial.

19. In support of the case of the defendant, learned counsel

contended that the present suit filed by the plaintiff being a suit for

specific performance wherein the plaintiff is seeking the relief to pass a

decree of specific performance of agreement to sell dated 09.12.2005

and also the relief of endorsement on the basis of the said agreement to

sell dated 09.12.2005, the said reliefs cannot be granted as the

agreement is insufficiently stamped and no term of the agreement can be

enforced under the law.

20. Learned counsel for the defendant has submitted that the

agreement to sell dated 09.12.2005 relied upon by the plaintiff is the

basis of the suit and in case said agreement is not legally enforceable or

cannot be acted upon, the suit of the plaintiff as per law is liable to be

dismissed.

21. Learned counsel has also referred to Clause 12 of the

Agreement and has argued that the said agreement to sell being

deficiently stamped has to suffer the consequences as provided in

Section 35 of the Indian Stamp Act. In support of this contention, he

has referred to a decision of the Supreme Court in Avinash Kumar

Chauhan V/s. Vijay Krishna Mishra, [2009] 1 Scale 80.

22. He argues that admittedly in the present case the sale

consideration is Rs.2.40 crores, which makes the agreement to sell to be

affixed with the stamp worth Rs.12,96,000/-, although, the agreement to

sell executed between the parties is stamped on a stamp paper of Rs.50/-

only.

23. The next submission of the learned counsel for the defendant

is that consequence of non-registerability of the document in the nature

of part performance does not affect the immovable property and the said

document is inadmissible in law.

24. Lastly, learned counsel for the defendant has referred to

Section 49 of the Registration Act. He states that a bare reading of this

section makes it clear that no document shall affect the right of the

parties if the same is unregistered. He further submits that to make a

document admissible in evidence, there should be a proper registration

and stamping, otherwise the document is rendered inadmissible and

unenforceable under Section 54 of the Transfer of Property Act.

25. The sale deed, which transfers the right, can only be valid if

the same is registered and properly stamped and an unregistered sale

deed shall have no effect on the property. He has referred to a decision

reported as Ram Baran V/s.Ram Mohit, AIR 1967 Sc 744. In view of

the above-mentioned submissions, learned counsel for the defendant

states that present agreement to sell does not confer any right, title or

interest in the property in view of the celebrated judgment reported as

Sunil Kumar Jain V/s. Kishan, AIR 1995 SC 1891.

26. As regards, the merit of the application is concerned, the

learned counsel for the defendant states that unless the admission is

unconditional, unambiguous and unequivocal, the provisions of Order

12 Rule 6 CPC cannot be invoked. His further contention is that the

written statement has to be read as a whole and where the admission is

qualified or conditional or facts are disputed, then the court cannot grant

any relief under the provisions of Order 12 Rule 6 CPC. In support of

his submissions, he has referred to a large number of decisions i.e. 1991

RLR 20, 1991 RLR Note [14], 2000 Vol.86 DLT 817, 2000 Vol.85 DLT

211, 1999 [50] DRJ 324 and AIR 1986 SC 1509.

27. Per contra, learned counsel for the plaintiff has argued that

agreement to sell does not require registration and only those

agreements, which are clubbed with the delivery of actual physical

possession, require registration as it is clear under Section 17[1A] of the

Registration Act.

28. In case a document is clubbed with actual physical

possession and is executed but not registered, it shall not have the effect

for the purpose of Section 53-A of the Transfer of Property Act.

Learned counsel for the plaintiff states that Section 53-A of the Transfer

of Property Act shall only apply when the buyer has taken the

possession or has continued to be in possession. The explanation at the

end of sub-section [2] of Section 17 states that contract shall not require

registration merely because the whole of the purchase money has been

paid thereunder.

29. He states that in the present case, the buyer has not taken the

possession and the tenant continued to be in possession. In support of

his submission, he has referred to a judgment of the Division Bench of

the Orissa High Court reported in Nila Padhan and Ors. Vs.

Gokulananda Padhi and Ors., AIR 1952 Orissa 118 and in para-7 of

the said judgment, it is held that the defendant has to establish not only

that there was a transfer but also that there was delivery of possession in

pursuance thereof. Learned counsel for the plaintiff has also referred to

para-11 of the written statement wherein the defendant has denied that

the plaintiff is entitled to have the benefit of Section 53-A of the

Transfer of Property Act.

30. As regards, the objection raised by the defendant that the

agreement has not been duly stamped, which is required under Article

23-A of Schedule 1 of the Stamp Act, learned counsel for the plaintiff

has argued that the application of the said provisions does not arise as

the said agreement to sell cannot be construed to be a conveyance.

31. He submits that where only transfer in the record of owners

available with the developer is done, then the type of said contract,

which requires payment of stamp duty under Clause 23-A of Schedule 1

of the Indian Stamp Act, are the ones which in the nature of their part

performance are covered under Section 53-A of the Transfer of Property

Act, which requires actual physical possession to be handed over to a

buyer, which condition is not fulfilled in the present case.

32. Learned counsel for the plaintiff has also refuted the other

arguments of the defendant that transaction was inter-connected with

another transaction for a different property. He has referred to Section

92 of the Indian Evidence Act that the defendant is debarred from

leading oral evidence or leading any evidence contrary to the terms of

the agreement as the said plea of the defendant is non-est in law. In

support of his submissions, he has referred to a decision reported in

1997 AIHC 3774. He further submits that under Section 58 of the

Indian Evidence Act, if any fact has been admitted by any party then the

same need not to be proved under Sections 91 and 92 of the Evidence

Act.

33. In support of his application filed under Order 12 Rule 6

CPC, learned counsel has referred to the following judgments :-

AIR 2000 SC 2740, 79 [1999] DLT 229, 2000 [2] CCC 234

[Madras], 86 [2000] DLT 817, AIR 1997 Raj 28, 87 [2000] DLT

76, AIR 1974 MP 75 and AIR 1972 P&H 29.

34. In the present case, it is the admitted position that the buyer

has not taken the physical possession as the tenant continued to be in

possession. Further, it is also not in dispute that the suit property is still

in the name of defendant as per the record of developer (Ansal

Properties and Industries Limited) who has admitted in his letter dated

5th December, 2006 written to the defendant.

35. The defendnat has no where in its pleading has mentioned

that the name of the plaintiff has been entered in the record of

developer( Ansal Properties and Industries Limited). Rather, after the

receipt of full consideration, the tenant by letter dated 15th January,

2007 informed the plaintiff that he has received a communication from

defendant informing that the defendant has cancelled the attornment.

36. The plainfiff has not denied the fact that after title of

transfer of the shop in its favour and after delivery of physical possesion

to the plaintiff, the parties will have to go for registrations of the

requisite documents as per law. The sale deed of the suit property is yet

to be registered.

37. In view of the present position of the matter, I think unless

all the requirement and formalities are completed, till then the plaintiff

is entitled to have the benefit of section 53-A of the Transfer of

Property Act. An agreement to sell will become a conveyance in case

this is an agreement to sell immovable property for consideration and

possession of such property is transferred to the purchasers. Hence the

objection raised by the defendant that since the agreement to sell is

unstamped and unregistered, the suit is not maintainable has no force

and I reject the submission of the defendant in view of the facts and

circumstances of the present case.

38. Now, this Court has to consider the plaintiff's application

under Order XII Rule 6 CPC on merit. It is well settled law that where

admissions are clear, unambiguous and unqualified the court can

exercise its discretion under the said provision of law and can pass a

decree prayed for.

39. The defendant in the present case has not disputed the facts

of (a) execution of the agreement in favour of the plaintiff (b) receipt of

100% sale consideration (c) admitted and asked the tenant to attorn to

the plaintiff (d) the tenant was paying the rent to the plaintiff till he

asked the tenant later on not to pay.

40. In fact, it clearly appears that after execution of the

agreement, the defendant has acted upon the agreement by his

subsequent conduct when the defendant has admited the ownership of

the plaintiff in writing which is clear, unambiguous and unqualified.

41. One has failed to understand that after the receipt of full

considertaion, how can the defendant refused to perform its part by

raising the objection about the transaction of another property where

the present defendant is not a party and the litigation is already pending

before this Court. This court does not agree with the submission of the

learned cousel for the defendant in this regard as the present suit is not

connected with other litigation in absence of any evidence produced by

the defendant to show that the two transactions were inter-connected in

any manner. The other contention of defendant made in the written

statement are relevant in view of the admissions made in the written

statement. Various decisions have been referred by the learned

counsel for the defendant in support of his submission. After having

gone through the same, I have come to the conclusion that none of the

judgment is directly applicable to the facts and circumstances of the

present case.

42. In the case of Parivar Seva Sansthan Vs. Dr.(Mrs.) Veena

Kalra & Ors., AIR 2000 Delhi 349 in para 9 it was held as under :

"9. Bare perusal of the above rule shows, that it confers very wide powers on the court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. The court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on well established principles. Admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part; even a constructive admission firmly made can be made the basis. Any plea raised against the contents of the documents only for delaying trial being barred by the section 91 and 92 of Evidence Act or other statutory provisions, can be ignored. These principles are well settled by catena of decisions. Reference in this regard be made to the decisions in Dudh Nath Pandey (dead by L.R's) Vs. Suresh Chandra Bhattasali (dead by L.R's) MANU/SC/0382/1986; Atma Ram Properties Pvt. Ltd. Vs. Air India MANU/DE/1151/1996; Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. 1997 2 AD (Del) 518; Abdul Hamid Vs. Charanjit Lal & Ors. 1998 2 DLT 476 and Lakshmikant Shreekant Vs. M N Dastur & Co. MANU/DE/0524/1998."

43. In view of the admissions of the present case coupled with

the intention of the parties after execution of the agreement, this court is

of the view that there is no requirement for the parties to go for the trial

and the decree as prayed for can be passed without any hesitation under

the provisions of Order 12 Rule 6 CPC.

44. Considering the matter in the total conspectus, I allow the

application and pass the decree for specific performance of agreement

dated 9th December, 2005 in favour of the plaintiff and against the

defendant in respect of the suit property comprised in commercial

space bearing No.CG-07, having an area of 1695 sq. ft. on the ground

floor of the building known as "Ansal Plaza" HUDCO Place, Andrews

Ganj, Near South Extension, Khelgaon Marg, New Delhi. The