Gaurav Arora vs Om Prakash & Anr.
2010 Latest Caselaw 3828 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                CS(OS) NO.490/2010 & IA No.3455/2010

                                           Reserved on : 31.5.2010
                                      Date of Decision : 17.08.2010

GAURAV ARORA                                     ......      Plaintiff

                              Through:    Mr. Ankit Jain, Advocate

                                Versus


OM PRAKASH & ANR.                         ...... Defendants

                              Through:    Mr.R.S.Hedge,      Adv.      for
                                          defendant no.1.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI


1.     Whether Reporters of local papers may be
       allowed to see the judgment?                         YES
2.     To be referred to the Reporter or not ?               NO
3.     Whether the judgment should be reported
       in the Digest ?                                      NO

V.K. SHALI, J.

1. This is a suit which has been filed by the plaintiff for specific

performance and permanent injunction. It is alleged in the

plaint that the plaintiff had entered into an agreement to

purchase dated 17.1.2000 a plot of land measuring 332.50

sq. yds. bearing no.260, Block- A, Pocket-I, Sector- 32, Rohini

for a total sale consideration of Rs.14 lacs from one Sh.Lal

Chand (since deceased). It is sated that the entire amount of

Rs.14 lacs was paid by the plaintiff to the deceased Sh.Lal

Chand. However, before Sh.Lal Chand could get allotment of

the plot of land in question, he expired on 13.1.2003. It is

alleged that the plaintiff in the month of April, 2008 came to

know that the recommendation which had been made by the

Land and Building Department to the DDA for allotment of

the aforesaid plot in the name of the deceased Sh.Lal Chand

had been mutated in the name of defendant no.1 on

11.7.2006. An allotment letter dated 5/24.3.2008 had been

issued in favour of the defendant no.1 and when the

defendant was called up to perfect the title of the plaintiff,

being the successor in interest of the deceased Sh.Lal Chand

the latter refused and consequently, the present suit for

specific performance in respect of the agreement dated

17.1.2000 was filed by the plaintiff against Sh.Om Prakash

who is the son of the defendant Sh.Lal Chand, and the DDA.

2. Summons/notices were issued to the defendants. The

defendant no.1, Om Prakash had put in appearance through

counsel and took the plea that the suit for specific

performance and injunction is not maintainable on the

ground that there is no privity of contract between the

plaintiff and the defendant no.1. It is further stated that the

suit for specific performance is filed on 15.3.2010 that is after

more than ten years from the date of agreement to sell and

therefore, the suit is barred by limitation. Thirdly, it was

observed that the plaintiff has made averment in the plaint

that the DDA had executed a conveyance deed in favour of

the defendant no.1 and therefore, even though it is assumed

that the agreement against the defendant no.1 was

enforceable, the suit is not maintainable as nothing has been

conveyed by the defendant no.2 in favour of defendant no.1.

The fourth contention which was taken by the defendant no.1

was that under clause 6 of the alleged agreement between the

plaintiff and the deceased Sh.Lal Chand, the sale of the

property in favour of the plaintiff could be effected only after

obtaining requisite permission from the competent authority

and since the DDA does not permit to sell the plot of land

allotted alternatively on account of acquisition of land under

the provisions of Land Acquisition Act, consequently, the suit

is prima facie not maintainable.

3. A reference was also made to Section 6(d) of the Transfer of

Property Act, 1882 to urge that as the land in question was

allotted to be enjoined personally by the oustees of the

agricultural land which stood acquired therefore, the said

right of allotment of plot of land could not be transferred by

the deceased Sh.Lal Chand in favour of the plaintiff.

4. The learned counsel for the plaintiff has contested the

submissions made by the learned counsel for the defendant

by urging that the agreement to sell which was entered into

between the plaintiff and Late Sh.Lal Chand was in respect of

a plot of land in respect of which recommendation had been

made which ultimately resulted in allotment of land to the

deceased Lal Chand through his successor. It was urged that

in case titled Sarala Devi & Ors. Vs. Daya Ram & Ors. 1995

(35) DRJ(DB), it has been held that the successor of a

deceased inherits the estate of his predecessor and therefore,

is answerable for his liabilities. Reliance in this regard has

also been placed on Calcutta High Court reported in Ehsanul

Haq Vs. Mohd. Umar & Anr. AIR 1973 Allahabad 425 (V 60

C 148), wherein it has been observed that the sale of the

property which is not in existence but which is acquired by a

party after having entered into agreement to sell is a valid

transaction.

5. I have heard the learned counsel for the parties and perused

the record. It may be pertinent here to mention that the

defendant is yet to file his written statement and therefore,

the question which will have to be considered is with regard

to the maintainability of the plaint only on the touch stone of

order 7 Rule 11 CPC and its various clauses therein. Order 7

Rule 11 CPC reads as under :-

"11. Rejection of plaint.--The plaint shall be

rejected in the following cases:-

(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law;

(e) Where it is not filed in duplicate;

(f) Where the plaintiff fails to comply with the provisions of rule 9;"

6. A perusal of Order 7 Rule 11 CPC would show that prima

facie only two of the clauses namely Order 7 Rule 11 (a) and

Order 7 Rule 11 (d) CPC would be applicable.

7. The first clause deals with the question of the suit being

rejected on account of lack of cause of action while as the

clause (d) entails the rejection of a suit on the ground that the

same is barred by any law.

8. In the light of the aforesaid provision, the submissions of the

counsel for defendant no.1 are being considered. The first

point which has been raised by the learned counsel for the

defendant is that there is no privity of contract between the

plaintiff and the defendant.

9. No doubt, there is no privity of contract between the plaintiff

and the defendant but the suit for specific performance is in

the instant case is not based on the privity of contract in the

sense that the defendant no.1 is a signatory to the agreement,

but the plaintiff's case is that he had signed an agreement to

sell/purchase with one Sh.Lal Chand (since deceased) and

paid him the entire consideration and unfortunately, Sh.Lal

Chand having expired, the defendant no.1 steps into the

shoes of Late Sh.Lal Chand and thus inherits all his liabilities

and assets. Reference in this regard can be safely made to

Section 37 of the Contract Act which binds the successor in

interest with the liabilities. The defendant no.1 successor in

interest gets allotment of plot of land from the DDA which his

predecessor in interest had agreed to sell to the plaintiff for a

consideration of Rs.14 lacs and which in fact had been

received by him in full. Therefore, this plea of lack of privity

of contract cannot be set up as a ground because Section 37

of the Indian Contract Act, 1872 specifically lays down that

any promise which is made by a person would bind the

representatives of the promisors in case of the death of such

promisors before performance, unless a contrary intention

appears from the contract. The exact language of Section 37

of the Indian Contract Act, 1872 reads as under:-

"37. Obligation of parties to contract--The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.

Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract."

10. It may be pertinent here to refer to the case titled Sarala Devi

& Ors. Vs. Daya Ram & Ors. 1995 (35) DRJ (DB), wherein

the Division Bench of this Court has observed that normally

contract can be enforced by a person or a party and their

legal heirs unless the contract intention is expressed or

implied from the contract.

11. In the instant case, there is nothing that can give rise to an

intention that the successor in interest of the deceased Sh.Lal

Chand was not to abide by the agreement entered into by

him. Therefore, this plea of privity of contract does not have

any merit.

12. The second contention which has been raised by the

defendant no.1 is that the suit is barred by limitation

inasmuch as the agreement has been signed on 17.1.2000

while as the suit itself is being filed almost after a decade on

15.3.2010. The suit for specific performance at best has to be

filed within three years from the date of refusal. There is no

dispute that Article 54 of the Schedule of the Limitation Act

lays down the period of limitation within which the suit for

specific performance is to be filed. It lays down that the suit

for specific performance must be filed within 3 years in case

the time for performance stipulated in the agreement itself or

alternatively has to be filed within 3 years from the date of

refusal by the opposite party.

13. In the present case, agreement to sell dated 17.1.2000 does

not specify any specific time frame within which the suit for

specific performance was to be concluded. Thereby, it is the

second contingency that will come into operation. The

plaintiff had learnt about the factum of the suit property

having been mutated in the name of defendant no.1 only on

27.10.2008 and thereafter requested the defendant no.1 to

transfer the said plot of land in favour of the plaintiff.

Although no formal notice in writing has been given by the

plaintiff to the defendant no.1 as a consequence of which

there is no refusal in writing but taking the date of allotment

as the date on which the cause of action has accrued in

favour of the plaintiff to get the plot of land allotted to him

and being refused by the defendant no.1, the suit of the

plaintiff having been filed on 15.3.2010 is in my view is within

the limitation of 3 years from the date of so called refusal. In

any case, this question of limitation is a mixed question of

fact and law. This can be taken by the defendant in his

pleadings and be considered after the parties have adduced

their evidence on the said issue but certainly it cannot be a

ground on which the suit as framed can be rejected at the

threshold itself.

14. So far as clause 6 of the letter of allotment with regard to

obtaining permission of the DDA for sale of the property

which has been allotted to the defendant no.1 and

consequently the plea that according to Section 6(d) of the

Transfer of Property Act which provides the interest of

property which is restricted in its enjoyment to the owner

personally and therefore, the land cannot be transferred

would not result in rejection of the plaint. These are the

defences of the defendant which can be taken in his written

statement as and when he files the same. An issue in this

regard will have to be framed between the parties and decided

on merits rather than the same being held as a ground for

rejection of the plaint.

15. For the reasons mentioned above, I am of the considered

opinion that the suit of the plaintiff cannot be prima facie

rejected under Order 7 Rule 11 CPC at this stage. The

defendant is called upon to file the written statement and

take all such pleas as may be available to him in law.

16. The defendant is given 30 days time to file written statement

with an advance copy to the plaintiff who may file replication.

17. Post before the Joint Registrar for service, completion of

pleadings and admission/denial.

V.K. SHALI, J.

AUGUST 17, 2010 RN