Shri Jagbir Singh vs Guldaman Singh & Anr.
2009 Latest Caselaw 4001 Del

*          HIGH COURT OF DELHI : NEW DELHI

           I.A. No.3388/2008, I.A. No.3913/2008 &
           I.A. No.2645 /2009 in C.S. (OS) No.1346 /2007

                                 Reserved on:     6rd August, 2009

%                                Decided on:       6th October, 2009

Shri Jagbir Singh                                     ...Plaintiff
                       Through : Mr. D.S. Narula with Mr. A.S. Narula,
                                 Advs.

                       Versus

Guldaman Singh & Anr.                          ....Defendants
                  Through : Mr. Kuldeep Kumar, 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?                              No

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

MANMOHAN SINGH, J.

1. By this order, I shall dispose of three applications being I.A.

No. 3388/2008 (filed by plaintiff under Order XII Rule 6 of the Code of

Civil Procedure, 1908), I.A. No.3913/2008 (filed by defendants under

Order VI Rule 17 of the Code) and I.A. No.2645/2008 (filed by

defendants under Section 151 for bringing additional facts on record).

2. The plaintiff filed the suit for specific performance of the

agreement dated 28th April, 2007 entered into between the plaintiff and

defendants with respect to flat No.13, Mall Apartments, Mall Road,

Delhi (hereinafter referred to as the said flat). The defendants agreed to

sell the flat to the plaintiff for a total consideration of Rs.74 lakhs, out of

which Rs.5 lakhs was admittedly paid by the plaintiff to the defendants

at the time of execution of the receipt-cum-agreement dated 28th April,

2007. As per Clause-I of the agreement, the plaintiff was to pay the

balance amount of Rs.69 lakhs on or before 30 th July, 2007 and get the

sale/conveyance deed executed and registered in favour of the

defendants.

3. It is alleged that the plaintiff by letter/notice dated 12.6.2007

sent through his counsel confirmed to the defendants that he was ready

and willing to perform his part of the Agreement dated 28.4.2007. The

plaintiff further alleged that he made a payment of Rs.1.20 lac to each

of the defendants by two separate pay orders, which have not been

encashed by the defendants till date. The plaintiff thus made a total

payment of Rs.7.40 lac to the defendants i.e. Rs.5 lac at the time of

entering into the agreement and Rs.2.40 lac in June 2007.

4. The plaintiff on realizing that the defendants were trying to

back out of the agreement filed the present suit on 24.7.2007, i.e. six

days prior to the last date for making the final payment.

5. The defendants filed their written statement in which they

have admitted the factum regarding execution of the agreement as well

as the advance payment of Rs.5 lac made by the plaintiff. The

defendants have also in para 10 of the written statement admitted having

received Rs.2.40 lac by way of two separate bank drafts. On the basis

of these admissions, the plaintiff prayed to pass a decree for specific

performance in his favour and against the defendant.

6. The defendant in the written statement admitted the notice

dated 12th June, 2007 sent on behalf of the plaintiff alongwith the pay

order for a sum of Rs.1.20 lac each in the name of both the defendants.

However, it is contended by the defendant that the plaintiff himself

delayed in making the payment and filed the suit on flimsy grounds.

The defendant sought dismissal of the suit or in the alternative prayed

for direction to the plaintiff to pay the remaining balance of Rs.69 lac to

the defendants alongwith the interest till the actual payment.

7. The matter was adjourned from time to time for settlement

and was also sent to Delhi High Court Mediation & Conciliation Centre,

but as recorded in order dated 28th March, 2008, mediation has not

been successful.

8. Relevant paras of the plaint and written statement together

have been referred by the plaintiff during the course of hearing and the

same are reproduced hereunder:-

Plaint                                  Written Statement

2.    That as per the agreement         2. That para 2 of the plaint is
executed between the parties, the       correct and admitted.
plaintiff had to pay the balance sale
consideration i.e. Rs. 69 lacs on or
before 30th July, 2007, of which, the
defendants had agreed to execute
the     requisite   documents     for
conveying title in respect of the
property in question.
3. That the plaintiff submits that      3. That the para 3 of the plaint if
since the Will allegedly executed in    admitted except that the defendant
favour of the defendants had not got    had never agreed for any mutation,
been probated by the defendants         as mentioned in the replying para
from the court of competent             as no conversaion had taken place
jurisdiction. As such, the plaintiff    at the time of agreement regarding
had desired from the defendants to      mutation of the property. It is
get the property in question mutated    most respectfully submitted that


 by the defendants in their names     both the defendants have already
before the same was sold to the      fulfilled   all    the   formalities

plaintiff to which, the defendants regarding the mutation of the had principally agreed. property in their favour, and now the property has been mutated in the favour of the defendants.

8. That despite receipt of the 8. That the para 8 of the plaint is aforesaid notice by the defendants correct and admitted. The along with pay orders, the defendants crave leave to this defendants did not acknowledge the Hon‟ble Court to refer and rely receipt of the pay orders tendered byupon the contents of the reply the plaintiff along with the notice dated 10.7.2007. dated 12.6.2007, sent on his behalf by his counsel as such, the plaintiff sent another notice dated 30.6.2007, requesting the defendants to send acknowledgement of receipt of aforesaid Rs. 1,20,000/- each to be appropriated against the balance sale consideration and to fix a date for completion of further formalities to complete the agreement dated 28.4.2007. Unfortunately, instead of coming out positively to honour the commitments in terms of agreement dated 28.4.2007 the defendant no. 1 sent another reply through his counsel claiming therein that the defendant no. 1 was ready and willing to perform their part of commitment under agreement dated 28.4.2007, subject to fulfillment of the final commitments by the plaintiff. The copy of notice dated 30.6.2007 sent by the plaintiff is Annexure E and reply dated 10.7.2007 sent on behalf of the defendant no. 1 is appended hereto as Annexure F.

9. That the aforesaid response from 9. That the para 9 of the plaint is the defendant no. 1 was quite correct admitted. strange in a way the defendant no. 1 neither acknowledged the receipt of pay order for a sum of Rs.

1,20,000/- appended with the notice dated 12.6.2007 sent in the name of the defendant no. 1, nor had fixed the cut out date to complete the modalities as had been requested for

and on behalf of the plaintiff vide notice dated 30.6.2007. It was further strange to notice that the reply dated 10.7.2007 was sent solely on behalf of the defendant no.

1, no response had been given by the defendant no. 2, which indicates a discard and disharmony between the defendants to complete and honour the commitments under the agreement dated 28.4.2007.

Prayer                                   Prayer
(a) directing the defendants to
perform their part of obligation in      (a) an order for the dismissal of the
terms of          agreement dated        suit or in the alternative         the
28.4.2007, by executing a sale deed      plaintiff may be directed to pay
in respect of the property bearing       the remaining balance of Rs.69 lac
Flat No.13, Mall Appt. Mall Road,        to the defendants along with the
New Delhi in favour of the plaintiff     interest, till the actual payment.
on receipt of the balance sale           (b) cost of the suit may kindly be
consideration in terms of          the   awarded in favour of the
agreement dated 28.4.2007; and/or        defendants.
(b) in event of the agreement dated
28.4.2007, becoming unexecutable,
directing defendants to pay the
plaintiff a sum of Rs.14,80,000/-
alongwith the interest.
(c) cost of the suit may kindly be
awarded in favour of the plaintiff.

9. After completion of pleadings, the application under Order

XII Rule 6 CPC has been filed by the plaintiff to pass a decree for

specific performance in his favour on the basis of specific admissions

made by the defendants in their written statement.

10. After filing the application under Order XII Rule 6, an

application under Order VI Rule 17 was made by the defendants for

amendment in the written statement by which they want to incorporate

various new facts which were not mentioned earlier in the written

statement nor in the replies to the notices issued by the plaintiff, the

main details of the amendment sought read as under :

(a) The plaintiff has concealed the material facts from this court

as the plaintiff did not have sufficient funds at the time of

entering into the transaction for the property in question and

with a malicious motive created the false and filmsy story of

Rs.2.40 lac in his notice dated 31.5.2007.

(b) That the defendant had assured the plaintiff that the flat in

question shall be mutated in the records of MCD, as well as

in the records of DDA on the basis of the admitted Will within

15 days. This fact was replied to by the defendants through

their counsel in their reply dated 5 th June, 2007. It clearly

establishes that the plaintiff was a fake buyer, who had paid

an inadequate amount and wanted to create a false title on the

flat by issuing false notices, with a view to entangle the

property in false disputes.

(c) That the plaintiff has issued false notices by raising frivolous

pleas and the same was replied on 5th June, 2007 and 10th July,

2007. The plaintiff had admitted all his faults as mentioned

in reply dated 5th June, 2007 which clearly shows that the

present suit is liable to be dismissed as the plaintiff had no

intentions to complete the whole transaction as pretended at

the time of entering, hence the suit for specific performance is

not maintainable.

(d) That the alleged receipt cum agreement is neither registered

in accordance with law nor properly stamped, hence the same

is not admissible in evidence and cannot be relied and

considered. The suit is liable to be dismissed on this ground

without prejudice to the other one.

(e) That the plaintiff has knowingly and intentionally made false

averments and submissions in the plaint, and is liable to be

prosecuted under Section 340 of the Code of Criminal

Procedure.

11. In reply to this application, the plaintiff urged that the

defendants are trying to set up a new case by amending the written

statement. Amendments sought to be made were in the knowledge of

the defendants when they filed the written statement. No reason,

justification or explanation has been given by the defendants as to why

the allegations sought to be made by way of amendment were not

included in the written statement already filed.

12. It is argued by the learned counsel for the plaintiff that as far

as mutation of the property is concerned, an option was given to the

defendants in the notice that NOC may be given by the sisters of the

defendants in consonance with the Will executed by the mother, the

plaintiff, under these circumstances, was ready and willing to purchase

the property. It is also argued that as regards Rs.2 lac paid to the

defendants which is denied by them, the said amount without prejudice

may be ignored and may not be adjusted towards the final amount. He

has further argued that even if amended written statement is considered,

there are still specific admissions by defendants, about the execution of

agreement, total amount of consideration and advance amount paid by

him and as well as the plaintiff‟s readiness and willingness to perform

his part.

13. After hearing the parties in the application for amendment of

the written statement, the present application as well as other pleadings

and documents on record, I am of the view that the present application

is totally false and frivolous which has been filed after filing the

application under Order XII Rule 6 in order to delay the proceedings in

this matter and try to get rid of admissions already made which now

cannot be allowed to be withdrawn by clever drafting. Thus, this

application is disallowed as it has been filed with mala fide intention.

14. After the matter was initially heard and reserved vide IA

No.2645/2008 filed by the defendant under Section 151 of the Code, it

is alleged that fraud has been committed by the plaintiff on this Court.

The defendants sought to initiate inquiry against the plaintiff under

Section 340 of Cr.P.C. and criminal contempt proceedings. It is asserted

by the defendants that the document filed with the plaint as Annexure

„A‟ is a false document as agreement to sell was never signed between

the parties. It is only a Receipt-cum-Agreement and not agreement to

sell which was executed between the parties. It is stated that clause 3 of

the Receipt-cum-Agreement is deleted by the plaintiff. The address of

Jindal Associates who was the property dealer for getting the said deal

executed between the parties was also deleted. The word „earnest

money‟ has been deleted and the word „part payment‟ has been shown

on its place. In these circumstances, the defendant sought dismissal of

the suit on the ground of fraud and misrepresentation.

15. In reply to the application of the defendant under Section 151

of the Code, it is averred that this application is a gross abuse of the

process of law as it was filed when the court reserved the matter for

judgment under Order XII Rule 6. It is further submitted that the

allegations made in the application are contrary to those made in the

written statement. The defendant did not complain of the alleged fraud

in the original written statement and/or amended written statement.

Since time was never the essence of the contract and Clause 3 of the

receipt was a printed term that was never agreed to, it was struck off by

the plaintiff in the presence of the defendants. It is admitted that some

changes have been made in the Receipt-cum-Agreement at the initial

stage at the time of execution of the agreement in the presence of the

parties but since the plaintiff did not have another copy of it, he filed

the original receipt-cum-Agreement alongwith the plaint. Learned

counsel for the plaintiff has alleged that the question of any change in

the main clause or any kind of manipulation does not arise in view of

the specific admissions made by the defendants in the replies to the

legal notices and written statement filed by the defendants.

16. I agree with the submission of the learned counsel for the

plaintiff as after going through the pleadings of this application, this

court is of the view that the defendants have made allegation against the

plaintiff without any basis and contrary to the admission made in the

written statement. The conduct of the defendants shows that they have

no respect for the truth. The application is highly misconceived, false

and frivolous and the same is dismissed .

17. Now coming to the main application under Order XII Rule 6

of the Code as discussed earlier and facts of which have been stated,

there are many decisions wherein the meaning and scope of „admission‟

as regards Order XII Rule 6 has been discussed. One such case is that

of Raj Kumar Chawla v. Lucas Indian Services 129 (2006) DELHI

LAW TIMES 755 (DB) wherein it has been held as follows:

"5. The expression „Admission‟ has been given a wider meaning and connotation so as to take within its ambit admissions made by a party in pleadings or otherwise, orally or in writing. These provisions thus are capable of liberal construction and without imposition of any unreasonable restriction, must be permitted to operate but the Courts have to be careful while passing a decree on admission. The Court essentially should look into the fact that all essential ingredients of an admission are satisfied before such a decree is passed in favour of any of the parties to the suit. Admission has to be unambiguous, clear and unconditional and the law would not permit admission by interference as it is a matter of fact. Admission of a fact has to be clear from the record itself and cannot be left to the interpretative determination by the Court, unless there was a complete trial and such finding could be on the basis of cogent and appropriate evidence on record.

7. Admission, understood in its common parlance still must be a specific admission. There is a very fine distinction between unambiguous and specific admission on the one hand and vague averments of facts which, if proved, could even tantamount to an admission on the part of a party to the suit. The Court has to consider the need for passing a decree on admission under these provisions only in the cases of first category and normally should decline in the cases of the latter category."

18. 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."

19. On perusal of written statement and other documents on

record, it is apparent that the defendants admitted the following facts :

(i) That there was an agreement to sell entered between the parties on 28.4.2007 for sale of the suit property by which the defendants had agreed to sell the suit property to the plaintiff;

(ii) Total sale consideration agreed to between the parties were Rs.74.00 lac;

(iii) Rs.5 lac was paid by the plaintiff to the defendants at the time of signing of the agreement;

(iv) The defendants were still to get the suit property mutated in their names;

(v) The balance amount was to be paid and the sale deed was to be executed by the defendants in favour of the plaintiff;

(vi) The plaintiff had sent a legal notice to the defendants;

(vii) The defendants till 27.7.2007 had not got the property mutated in their names;

(viii) Sale transaction was to be completed by 30.7.2007; and

(ix) The present suit for specific performance was filed on 27.7.2007.

20. The defendants have only denied the receipt of Rs.2 lac

allegedly paid by the plaintiff in cash. The defendants have not denied

that two bank drafts of Rs.1,20,000/- each were received from the

plaintiff when the notice was served, however, the defendants

admittedly did not encash the said two bank drafts and the same shall

now be treated as cancelled.

21. Since there is no dispute between the parties with regard to

the execution of the agreement to sell, I feel that the plaintiff is entitled

to the relief of specific performance in view of admissions, details

which are mentioned in para 8 of this order.

22. This court is of the view that the trial is not necessary given

the facts and circumstances of the present matter, as there is hardly any

defence raise by the defendants, thus this court is inclined to exercise

its discretion under Order XII Rule 6 of the Code in favour of the

plaintiff and against the defendants. Even otherwise, under the

provisions of Order XV of the Code I feel after going through the

pleadings and documents that the parties are not at issue in the facts.

Thus, the application being IA No.3388/2008 is allowed.

23. Hence, I pass a decree for specific performance of

„agreement to sell‟ dated 28th April, 2007 and direct the defendants to

execute the sale deed in favour of the plaintiff and other relevant

documents within three months from today subject to the plaintiff

paying the remaining 90% of the total consideration alongwith interest

@ 12% from 30th July, 2007 till the date of execution of sale deed in

favour of the plaintiff. I further direct that in the event, if the

defendants do not execute the sale deed as directed, the Registrar

concerned shall depute an officer of this Court to carry out execution of

the sale deed for and on behalf of the defendants before the concerned

Sub Registrar.

24. The plaintiff is also entitled to cost. The suit and all pending

applications stand disposed of. Decree be drawn accordingly.

MANMOHAN SINGH, J OCTOBER 06, 2009 SD