Home Developers vs Bhanu Sangwan & Ors.
2009 Latest Caselaw 4361 Del

*                    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                              Reserved on : 18.09.2009
                                                                Decided on: 28.10.2009

+                                         CS (OS) 2051/2003
                                                 &
              I.A. Nos. 11209-10/2003, 4817/2005; 1400, 9155/2007 & 12186/2009


       HOME DEVELOPERS                                                 ..... Plaintiff

                            Through: Mr. Manish Kohli, Mr. Sanjeev Kumar Baliyan and Mr.
                            Manjeet Pathak, Advocates.

                                                  versus

       BHANU SANGWAN        & ORS.                                         ..... Defendants
                            Through: Mr. Vijay Kishan with Mr. Vikram Jaitley, Advocates.


       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.     Whether the Reporters of local papers                     Yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?                        Yes

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

Hon'ble Mr. Justice S.Ravindra Bhat

1.     The parties were heard on the pending applications, I.A. Nos. 11209-10/2003;

4817/2005; 1400/ 2007; 9155/2007; 12186/2009 as well as maintainability of the suit.


2.     The suit claims specific performance of an agreement allegedly entered into by the

plaintiff (hereafter called "Home Developers") with the first defendant (hereafter called "Ms.

Bhanu Sangwan") on 24.08.2001. The subject matter of the agreement was the sale of the

CS (OS) 2051/2003                                                                        Page 1
 constructed first floor of property, built on C-545, Defence Colony, New Delhi, a 325 sq. yards

plot (hereafter "suit property"). The suit alleges that the total consideration agreed upon was

Rs. One crore out of which a sum of Rs.5 lakhs was paid on the date of the agreement; of the

balance of Rs.95 lakhs, Rs.76 lakhs was agreed to be paid by the plaintiff within 15 days of

signing of the agreement and at the time of taking clear, vacant and lawful possession of the

terrace of the suit property; the remaining Rs.19 lakhs was to be paid at the time of completion

of construction. The plaintiffs contend that Ms. Bhanu Sangwan assured them that the property

was freehold and that the terrace was free from all encumbrances. It is alleged that she,

however, avoided handing-over of peaceful possession within the time or any time thereafter

and around the end of August 2001, the said Ms. Bhanu Sangwan expressed her difficulty

stating that she required some time to shift from the premises, as her former husband,

Brigadier A.S. Sangwan was in occupation of the ground-floor portion of the property.


3.     It is alleged that the third defendant was acting as the Attorney for Ms. Bhanu Sangwan

and used to frequently negotiate with the plaintiff; sometime in October 2001, the said Ms.

Bhanu Sangwan shifted into the ground floor premises of the suit property. The plaintiff

mentions about an agreement entered into with Ms. Bhanu Sangwan, dated 11.11.2001,

whereby the first floor property consisting of 2 bedrooms, 2 bathrooms, kitchen and front

terrace were let-out for Rs.11,000/- per month for 11 months to it, and its (Home Developer's)

project manager, Shri Jitender Gupta occupied the said premises. It is contended that Ms.

Bhanu Sangwan commenced renovation of the ground-floor of the suit property. It is further

alleged that the plaintiff's said Project Manager, Mr. Jitender Gupta was, mala fide, asked to

vacate the premises by Ms. Bhanu Sangwan in February, 2002.

CS (OS) 2051/2003                                                                        Page 2
 4.     The plaintiff mentions that Ms. Bhanu Sangwan, disregarding the previous agreement to

sell dated 24.08.2001, entered into sale agreement with one M/s. Raison Engineers & Builders

Pvt. Ltd. and executed Sale Deeds on 19.07.2002 in respect of terrace rights and the ground-

floor of the property, for a total consideration of Rs.44,55,000/- to the second defendant. The

sale deeds were registered. It is urged that the plaintiff, on becoming aware of the transaction

contacted Ms. Bhanu Sangwan, who showed ignorance of this sale, and alleged that fraud had

been played upon her by the purchasers. The plaintiff mentions that Ms. Bhanu Sangwan filed

Suit. No. 1267/2002, against the purchasers, (including the third defendant), claiming

cancellation of the sale deeds. It is urged that since the sale deeds were entered into between

Ms. Bhanu Sangwan and the second defendant during pendency of a suit filed by Mr. Jitender

Gupta, the plaintiff's Manager, being CS (OS) 344/2002, the same were illegal.


5.     The plaintiff urges that it has always been ready and willing to perform its part of the

contract and continues to be so and that since the owner, Ms. Bhanu Sangwan has refused to

execute the sale deed and on the contrary, created third-party rights, it is entitled to the reliefs

of specific performance and a decree for permanent injunction. The plaintiff had filed an

application under Order 2 Rule 2, seeking leave to file a separate suit, if necessary, on a later

date. The said application was not pressed all this while, though at an earlier stage of the

proceeding, the court had issued notice upon it.


6.     The defendants have entered their appearance and contested the proceedings. The

second defendant, the subsequent purchaser denied the existence of an agreement to sell and

besides states that the possession of the entire ground-floor of the suit property was received



CS (OS) 2051/2003                                                                            Page 3
 back by Ms. Bhanu Sangwan after 10.05.2002. The said second defendant strongly relies upon

the registered sale deeds executed on 19.07.2002. It is pointed out that Ms. Bhanu Sangwan

filed a suit, being no. 1267/2002 merely to harass the second defendant purchaser as there was

no dispute about the consideration amount received by her and that the sale deeds were

registered. It is contended that the said suit was inspected by third parties, including the

plaintiff.


7.      The second defendant states that on 29.07.2002, Ms. Bhanu Sangwan had, in fact,

informed the occupant on the first floor of the premises, Mr. Jatinder Gupta that the premises

were sold by a registered sale deed dated 19.07.2002 and that constructive possession of the

first-floor, (which was in occupation of the said Mr. Jatinder Gupta) had been handed-over to

the purchaser. The second defendant also mentions having filed a Civil Suit before the

Additional District Judge for a decree of possession in respect of the said first floor of the

property, which was stayed under Section 10 of the CPC.


8.      During pendency of the present proceeding [as also the Civil Suit filed by the second

defendant CS(OS) 959/2008, transferred to the file of this Court], Ms. Bhanu Sangwan moved

the Court for withdrawal of the Civil Suit 1267/2002 (in which she had sought for cancellation

of the sale deed executed in favor of the second defendant). The said suit was accordingly

disposed of as withdrawn on 18.05.2009 by the Court. Ms. Bhanu Sangwan had also, in the

meanwhile, filed a written statement in this suit, on 11.02.2005 whereby she had inter-alia

alleged that the sale deeds were executed by her, on practice of fraud and misrepresentation

by the third defendant and that she had authorized that defendant only to help her find a



CS (OS) 2051/2003                                                                      Page 4
 buyer. She mentions about the ground-floor of the premises having been occupied by Helpage,

India and having secured the premises later. According to Ms. Bhanu Sangwan, Mr. Jitender

Gupta had nothing to do with tenancy as the lease-cum-sale agreement was with the plaintiff.


9.     This Court had framed issues in the suit. After Ms. Bhanu Sangwan withdrew her suit,

CS(OS) No.1267/2002, the plaintiff moved the Court for amendment of the suit, and also

pressed the earlier application for leave under Order 2 Rule 2. The parties were heard on these

applications and the other pending interlocutory applications as well as the maintainability of

the claim for specific performance. The Court heard the parties on certain pending applications

in suit no.959/2008 (which had been originally filed before the ADJ but which had been

transferred to this Court by separate orders).


10.    The above discussion would show that the plaintiff, in the suit, alleged that it had

entered into a Receipt-cum-Agreement with Ms. Bhanu Sangwan on 24.08.2001 for purchasing

the first floor/terrace rights of the suit property. The pleadings do mention about the ground-

floor premises being under occupation of some other parties. However, that aspect does not

form the subject-matter of the present case. The said premises were apparently leased on

11.11.2001, for 11 months, to Mr. Jitender Gupta, whom the plaintiff acknowledges to be its

Project Manager. Apparently, the said Mr. Jitender Gupta filed a suit, Civil Suit 344/2001,

claiming injunction from dispossession - the records of Suit No. 959/2008 indicate that the suit

was disposed of on a statement that he would not be dispossessed without the authority of

law. When matters stood thus, the owner, Ms. Bhanu Sangwan executed two registered sale

deeds on 19.07.2002; their effect of this were to convey the suit property to the second



CS (OS) 2051/2003                                                                        Page 5
 defendant. Ms. Bhanu Sangwan, no doubt, had questioned the said sale deeds, dated

19.07.2002, claiming that she was misled and that a fraud had been played upon her. That

position is maintained by her in the written statement filed in this case. However, she applied

for withdrawal of the suit (Suit No. 1267/2002) which was permitted by this Court on

18.05.2009. The present plaintiff's attempt for recall of that order was also unsuccessful and

that application was dismissed.


11.    The plaintiff's case for decree of specific performance is premised upon an agreement,

what is termed as "Advance Receipt-cum-Agreement to Sell" dated 24.08.2001. Clause 1 of the

said agreement states that Ms. Bhanu Sangwan received Rs.5 lakhs - Rs. 1 lakh through cheque

and the balance Rs.4 lakhs, in cash. According to the agreement, the vendor agreed to transfer

and convey the rights in respect of the entire terrace over the ground-floor of the suit property.

Clause 2, 3 and 4 of the said agreement reads as follows:


       "XXXXXX                                XXXXXX                         XXXXXX

       2.     That out of balance payment of Rs.95,00,000/- (Rupees Ninety Five Lakh
       only) Rs.76,00,000/- (Rupees Seventy Six Lakh only) will be paid within 15 days
       from the date of signing of this Agreement and at the time of taking clear, vacant
       and lawful possession of the said Terrace from the First Party/Seller.

       3.      That the Balance payment of Rs.19,00,000/- (Rupees Nineteen Lakh only)
       will be paid to the First Party/Seller at the time of completion of the building or in
       8 months whichever is earlier.

       4.      THAT the expenses for execution of the agreement to Sell/Sale Deed &
       Relevant Documents shall be paid by the Second Party only and the First Party
       shall execute the said documents in favour of the Second Party or his nominee(s).

       XXXXXX                                 XXXXXX                         XXXXXX"



CS (OS) 2051/2003                                                                               Page 6
 12.    The plaintiff has, in the suit, relied upon a previous injunction suit, being no. 344/2002,

claiming permanent injunction from dispossession filed by Mr. Jitender Gupta, its CEO, who

was given possession of the property pursuant to an agreement dated 18.11.2001, for 11

months. Initially, the Court had granted an ex-parte order, stating as follows:


        "XXXXXX                               XXXXXX                         XXXXXX

       I.A. No.1533/2009

               Plaintiff is a tenant with respect to the first floor of property no. C-545,
       Defence Colony, New Delhi under Defendant No.1 by virtue of a lease agreement
       dated 18th November, 2001. The lease is for 11 months. Plaintiff is in possession
       of the entire first floor. The apprehension of the Plaintiff is that defendant No.1 is
       trying to sell out the property and in the process has threatened the plaintiff to
       vacate the premises. Plaintiff also apprehends that Defendant No.1 will forcibly
       dispossess the Plaintiff.

              Let notice of the application be issued to defendant No.1, returnable on
        rd
       3 July, 2002.

              In the meanwhile, defendant No.1 is restrained from interfering with the
       possession of the plaintiff with respect to the suit premises or from dispossessing
       him without due process of law. Defendant No.1 is also restrained from creating
       any obstruction in the ingress and egress of the plaintiff and his visitors/guests to
       the premises under his tenancy.

       XXXXXX                                 XXXXXX                         XXXXXX"

14.    The Civil Suit was ultimately disposed of on 30.10.2002, in the following terms:


        "XXXXXX                               XXXXXX                         XXXXXX

       I.A. No.9399/02 & S. No.344/02.

              With the consent of the parties, the application is allowed subject to the
       applicant Sh. Deepak Kumar Arya filing an affidavit in the Court clearly stating
       the details regarding his status as a purchaser of the first floor of the suit
       property. He will also file Amended Memo of Parties.


CS (OS) 2051/2003                                                                               Page 7
               Learned counsel for the defendants submit, on instruction of their
       respective clients, that they would not dispossess the plaintiff except by due
       process of law.

                In this view of the matter the learned counsel for the plaintiff submits that
       no further orders need be claimed by him at this stage, and the suit be disposed
       of on the said terms, namely that the plaintiff shall not be dispossessed from the
       first floor of premises No.C-545, Defence Colony, New Delhi except by due process
       of law. It is also agreed between the parties that so long as the plaintiff continues
       to occupy the premises, he will also have right to ingress and egress from the
       stair case through the drive way on the ground floor. Plaintiff also submits that
       he will not create any third party rights in relation to the premises. Both parties
       to remain bound by their respective undertakings.

               Suit and application (I.A. No.9399/02) stand disposed of.

              With the disposal of the suit, all other applications stand disposed of
       accordingly.

       30th October, 2002

       XXXXXX                                 XXXXXX                         XXXXXX"

15.    The plaintiff has placed on the record a copy of the Civil Suit 1267/2002 filed by Ms.

Bhanu Sangwan, which was ultimately withdrawn on 13.05.2009. The suit alleged that one Mr.

Raghunath Rai, the third defendant in the present case had taken advantage upon her old age

and prevailed upon her to sign certain documents of sale conveying the suit property, to

Defendant Nos. 1 to 3 (i.e. the present Defendant No.2). It was alleged that Ms. Bhanu Sangwan

labored under mistaken belief that those documents were in respect of an agreement to sell

entered into with the present plaintiff on 24.08.2001. The record would establish that on

13.05.2009, this Court passed an order permitting withdrawal of Civil Suit No. 1267/2002; the

said order reads as follows:


        "XXXXXX                               XXXXXX                         XXXXXX


CS (OS) 2051/2003                                                                               Page 8
        I.A. No.6395/2009 in CS (OS) 1267/2002

       This is an application by the plaintiff seeking withdrawal of the suit. The
       application is signed by the plaintiff who is also present in the Court and is
       supported by the affidavit of the plaintiff.

       Issue notice to the defendants, Mr. Vijay Krishnan accepts notice on behalf of
       defendant No.1 and Mr. A.D.N. Rao accepts notice on behalf of defendant Nos. 2
       to 4 and state that they do not oppose the application and have no objection to
       the suit being withdrawn by the plaintiff. Consequently, the application is
       allowed. Plaintiff is permitted to withdraw the suit.

       CS (OS) No.1267/2002

       The application of the plaintiff for withdrawal of the suit being I.A. No.
       6395/2009 has since been allowed. The suit is, therefore, dismissed as
       withdrawn. Parties are left to bear their own cost. All the pending applications
       are also disposed of.

       XXXXXX                                XXXXXX                         XXXXXX"

The present plaintiff sought for recall of that order by filing I.A. No. 8288/2009; this

Court rejected that application on 07.07.2009.


16.    In the overall conspectus of the circumstances, the question which the Court has to

consider is whether the suit in the present form of Home Developers Pvt. Ltd. is maintainable

and if not whether it is an appropriate case for grant of leave under Order 2 Rule 2 to pursue

fresh remedies and if so, to what extent.


17.    The plaintiff no doubt mentions that the total consideration for sale of the suit property

was Rs. 1 crore, and that it is ready and willing to perform its part of the bargain. Here, what it

seeks to satisfy is the technical requirement in the Specific Relief Act, that a plaintiff has to

plead that it was and continued to be ready and willing to perform the contract. The agreement

in this case, concededly mentioned the time limit for payment of Rs. 76 lakhs as 15 days from

CS (OS) 2051/2003                                                                           Page 9
 the date of the agreement. There is no objective material, apart from the pleading, to suggest

that such an amount was ever available with the plaintiff, at the relevant time. There is also no

material, or document on the record, so far to suggest that the plaintiff had called upon Bhanu

Sangwan to perform her part of the bargain, and offered to pay the amount. No copies of bank

statements, or any other evidence, contemporaneous, or as on date, has been adduced in this

respect.

18.    In M. Meenakshi v. Metadin Agarwal,(2006) 7 SCC 470, it was held, in the context of

exercise of discretion by the court to decree specific performance of an agreement to sell

immovable property, that:


       "39. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction
       upon the courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on
       whims and caprice; but when with passage of time, the contract becomes frustrated or
       in some cases increase in the price of land takes place, the same being relevant factors
       can be taken into consideration for the said purpose. While refusing to exercise their
       jurisdiction, the courts are not precluded from taking into consideration the subsequent
       events. Only because the plaintiff-respondents are ready and willing to perform their

part of contract and even assuming that the defendant was not entirely vigilant in protecting his rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction should be exercised or not, the orders of a competent authority must also be taken into consideration."

19. As to what are properly matters of discretion, was spelt out in K.S. Vidyanadam v. Varavan,

(1997) 3 SCC 1, at page 7 :

"10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation

CS (OS) 2051/2003 Page 10 notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani1: (SCC p. 528, para 25)

"... it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract."

In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised. Now in the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades..."

It has been held in Azhar Sultana v. B.Rajamani AIR 2009 SC 2157 that Section 16(c) of the Specific Relief Act, 1963 requires continuous readiness and willingness, by the plaintiff to perform his part of the contract. This was emphasized earlier, in Ram Awadh v. Achhaibar Dubey, [2000]1SCR566, as follows:

"6. The obligation imposed by Section 16 is upon the Court not to grant specific performance to a plaintiff who has not met the requirements of Clauses (a), (b) and (c) thereof. A Court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the Court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit."

It is also established that since a court a discretionary jurisdiction, it is entitled to take into consideration whether the suit had been filed within reasonable time. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. There

CS (OS) 2051/2003 Page 11 can, however, be no thumb rule in this regard; the conduct of the parties assumes significance. In Veerayee Ammal v. Seeni Ammal AIR2001SC2920 it was held that:

"11. When, concededly, the time was not of the essence of the contract, the appellant- plaintiff was required to approach the court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani v. Kamal Rani held that in case of sale of immovable property there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of contract, the court may infer that it is to be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case."

It was also held that:

"13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar's The Law Lexicon it is defined to mean:

A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than `directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.'

The Supreme Court, in Ram Awadh as well as Azhar Sultana held that not only the original vendor but even the subsequent purchaser is entitled to contend that the plaintiff was not ready and willing to perform his part of contract.

20. The receipt cum agreement, in this case, is dated 24-8-2001. The plaintiff's Project Engineer occupied the premises, effective from November, 2001. The suit does not mention any document, when the plaintiff demanded the execution of the sale deed, or offered to pay CS (OS) 2051/2003 Page 12 the balance consideration. Even the suit does not mention when the plaintiff asked Bhanu Sangwan to convey the property, or offer to pay the balance Rs. 95 lakhs. On the other hand, the plaintiff was clearly aware that the Sale Deeds were executed on 19-7-2002; there is no whisper about any protest, or legal notice issued to Bhanu Sangwan. All these, in the opinion of the court, clearly disentitle Home Developers to a decree for specific relief.

21. As far as the question of amendment to the suit, incorporating a challenge to the sale deeds in favour of the second defendant is concerned, what is noteworthy is that the plaintiff was aware of the sale, when it approached the court. It does not say that the sale deeds are vitiated, because the second defendant purchaser is not a bona fide vendee, or did not pay due consideration. The allegations are premised on the averments that Bhanu Sangwan claimed to have been misled, by defendant No. 3. The cause for a decree of cancellation as regards the legality of the Sale Deed has not been pleaded; it is contingent upon relief being given to Bhanu Sangwan, in her suit. The plaintiff, clearly, was aware of the Sale Deed. That being the position, the mere filing of a suit, with an allegation that leave would be sought on a later date, to challenge the sale deed, is insufficient. The period of limitation for filing a cancellation suit, is three years. Here, the plaintiff did not take steps to challenge the sale deed, or seek amendment of the present suit, for that purpose, within the period.

22. The power of the court to permit amendment of pleadings, under Order VI Rule 17 are concededly, wide in scope. Yet, the Supreme Court has held that courts can refuse to permit time barred claims to be pressed. Thus, in L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co. [1957]1SCR438 , it was held that:-

"It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice."

This view has been endorsed in T.N.Alloy Foundry Co. Ltd -vs- T.N. Electricity Board 2004 (3) SCC 392, and, more recently, in Puran Ram v. Bhaguram and Anr. AIR 2008 SC 1960.

CS (OS) 2051/2003 Page 13

23. Even as regards the question of maintainability of relief of cancellation of document, by virtue of Section 31 of the Specific Relief Act, this court, in Ajay Goel -vs- K.K. Bhandary 1999 (49) DRJ 292 held that:

"Section 31 of the Specific Relief Act for cancellation of the sale deed by which the title of defendant No. 1 was made perfect on the ground that the same is void against the plaintiff. Admittedly the defendant, apart from paying Rs. 3,96,000/- to the plaintiff has paid a sum of Rs. 35,96,787/- to the DDA. With the sale of the property in question by the plaintiff to the defendant No. 1 and cancellation of the lease by DDA and sale permission in favor of the defendant No. 1, there could not be allegation made by the defendant No. 1 that the sale deed dated 10.1.1997 and the power of attorney are void and thus there is no cause of action for the plaintiff under Section 31 of the Specific Relief Act. In view of the aforesaid facts and circumstances, the suit as framed by the plaintiff is held to be not maintainable.

Issue No. 2:

12. The present suit has been instituted by the plaintiff under Section 31 of the Specific Relief Act praying for cancellation of certain documents as void. No relief is sought for by the plaintiff for possession although in a suit under section 31 of the Specific Relief Act such a relief can be prayed for. The plaintiff admittedly is not in possession of the suit property and has not been so since 27.10.1972 i.e. for the last more than 26 years. In Suit No. 2946/1996 the plaintiff has sought for possession. The defendant has already filed its written statement in that suit and I find from the records that in the said suit also various preliminary objections have been raised by the defendant. The remedy under Section 31 of the Specific Relief Act is to remove a cloud upon tile. In this connection reference may be made to a Full Bench decision of Madras High Court in Muppudathi Pillai Vs. Krishnaswami, reported in AIR 1960 Mad 1. In the said decision it was held that the provisions of Section 39 make it clear that three conditions are requisite for the exercise of jurisdiction to cancel an instrument which are as follows, (i) the instrument is void or voidable against the plaintiff; (ii) the plaintiff may reasonably apprehend serious injury by the instrument being left outstanding; (iii) in the circumstances of the case the Court considers it proper to grant this relief of preventive injustice. The Madras High Court while analysing the second aspect of the matter emphasized that the remedy under Section 39 (now Section 31) is to remove a cloud upon the title by removing a potential danger but it does not envisage an adjudication between competing titles. It was held that such an action could relate only to instruments executed or purported to be executed by a party or by any person who can bind him in certain circumstances or that it was only in such circumstances that it can be said that there is a cloud on his title and the apprehension that if the instrument is left outstanding it may be a source of danger."

CS (OS) 2051/2003 Page 14

24. In the opinion of this court, none of the three pre-requisites for applicability of Section 31 exist in this case. There is no question of the plaintiff having any title to the suit property, after the registered sale deeds were executed in favour of the second defendant. Likewise, if, arguendo, there was some threat to the plaintiff's interest, its inaction has led to the claim becoming time barred, as far as the relief of cancellation is concerned. The plaintiff's awareness of the sale deed, and its neglect all these years, to move the court, display a speculative approach. It cannot be said that the withdrawal of Bhanu Sangwan's suit has led to a cause of action; the primary "cause" for the cancellation claim, arose, when the plaintiff became aware of the registered sale deeds, in July, 2002. Its omission to include the relief has now led to lapse of more than four years, after the claim became time barred. In these circumstances, the court is of opinion that the amendment, enlarging the scope of the suit, should not be allowed, in the interests of justice.

25. The next question is whether, in view of the above observations, the suit for other reliefs is maintainable. The plaintiff seeks permanent injunction restraining the defendants from alienating or transferring the suit property. Concededly, this was some kind of consequential or adjunct relief, to the main claim for specific performance. The suit, for this claim, is clearly not maintainable, because the second defendant had acquired title, through a registered sale deed. In the circumstances, this relief is unavailable.

26. The court is mindful of the fact that issues were framed in this suit long ago. Yet trial has not commenced. The plaintiff took no steps to amend the suit, within the time; nor does the suit disclose that the relief of specific performance was filed within reasonable time. Most importantly, the court is of the opinion that the pleadings and materials on record nowhere disclose that by any reasonable standards, the plaintiff was ever ready and willing to perform the contract, and ensure that the claim for specific performance could succeed. There is no `

CS (OS) 2051/2003 Page 15 shred of documentary evidence in this regard, despite lapse of over six years, and even after issues were framed.

27. The court is therefore, of the opinion that the in the circumstances of this case, it would be inequitable to permit the plaintiff to amend the suit, incorporating a claim for cancellation of document, or granting leave to it, in this regard, particularly, after expiry of the period of limitation provided by law, for such relief. The court, however, is also of the opinion that the withdrawal of the suit, by Bhanu Sangwan, possibly can constitute a fresh cause, to the plaintiff, in respect of monetary claims.

28. In view of the above discussion, and since the court is not permitting the amendments proposed, or the leave sought, the suit is liable to be rejected. This will not preclude the plaintiff from claiming any monetary relief, if so advised, against Bhanu Sangwan, in the light of the withdrawal of her suit No. 1267/2002. However, nothing said in this judgment shall be reflective of the relative merits of such claim, if made.

29. For the above reasons, the suit is rejected, as no longer disclosing any cause of action, triable by the court.

30. All the pending applications are also dismissed.

                                                                              S. RAVINDRA BHAT
                                                                                   (JUDGE)
       October 28,2009




CS (OS) 2051/2003                                                                          Page 16