Sandeep Lakra vs Rajender & Ors.
2010 Latest Caselaw 5620 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 09.12.2010

+           CS(OS) No.1518/2010

SANDEEP LAKRA                                 .....Plaintiff

                           - versus -

RAJENDER & ORS.                              .....Defendants

Advocates who appeared in this case:
For the Plaintiff: Mr. Arjun Singh Bawa, Advocate.

For the Defendants: Mr. Rohit Jain, Advocate.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                         No

2. To be referred to the Reporter or not?                  No

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

V.K. JAIN, J. (ORAL)

IA 9852/2010 (O.39 R.1 & 2 CPC)

1. This is a suit for specific performance of the

agreement dated 28.9.2007 alleged to have been executed

by the defendants in favour of the plaintiff. The agricultural

land owned by defendant No.1 in village Kakrola was

acquired by the Government. Thereafter, defendants No.1 &

2, under the scheme of Large Scale Acquisition Development

& Disposal of Land in Delhi, framed by Government of NCT

of Delhi, applied for allotment of an alternative plot

measuring 80 sq.yds. The defendants offered to sell their

right, title and interest in the plot, which Govt. of NCT of

Delhi had recommended to be allotted to them, to the

plaintiff, for a total consideration of Rs.22 lakhs. A part sale

consideration of Rs.8 lakhs is alleged to have been paid by

the plaintiff to them at the time of execution of the

agreement. This was followed by a payment of Rs.5 lakhs

on 15.07.2008 and yet another payment of Rs.5 lakhs on

8.12.2008.

2. In a draw held on 5.2.2010, plot bearing No.92,

Pocket-10, Block-B, Sector-23 of Dwarka, measuring 66

sq.mtrs. was allotted to defendant No.1. It is alleged in the

plaint that on being informed of the allotment by defendants

No.1 & 2, the plaintiff made payment of Rs.1,24,150/- to

DDA being 10% of the cost of the plot which it had allotted

to defendant No.1. It is also alleged that the defendants

have now started negotiating with some property dealers in

the local for sale of the aforesaid plot. He has, therefore,

sought a decree for specific performance of the Agreement to

Sell dated 28.09.2007 in respect of the aforesaid plot

allotted to defendant No.1 by DDA and has also sought

possession of that plot and execution and registration of

sale deed on payment of balance amount of Rs.4 lakhs. The

alternative prayer made by the plaintiff is for recovery of

Rs.38,58,000/- along with interest thereon at the rate of

18% per annum. As an interim relief, the plaintiff is seeking

injunction against sale, alienation, transferring and parting

with possession of the aforesaid property and raising any

construction therein, during pendency of Suit.

3. The defendants have contested the suit and have

taken a preliminary objection that relief cannot be granted

to the plaintiff since no contract to sale plot No. 92, Pocket-

10, Block-B, Sector-23 of Dwarka, was entered into by them

with the plaintiff. On merits, the case of the defendants is

that defendant No.1, who was in urgent need of Rs.1 lakh,

approached the plaintiff to advance that amount to him.

The plaintiff agreed to advance the loan to him, on payment

of interest at the rate of 15% per annum for a period of two

years. It is further alleged that at the time of advancing the

loan, the plaintiff obtained signatures of defendants No.1 &

2 on certain blank papers as well as on the papers which

had already been typed.

4. The defendants have admitted allotment of plot

No. 92, Pocket-10, Block-B, Sector-23 of Dwarka, by DDA.

Regarding payment of Rs.1,24,150/- to DDA, the case of the

defendant is that no such payment was authorized by them

and this amount was unilaterally paid by the DDA.

5. It is an admitted fact that by the time the

agreement dated 28.09.2007 is alleged to have been

executed by the defendants in favour of the plaintiff, no plot

of land had been allotted to either of the defendants. The

plot at Dwarka was allotted to defendant No.1 on 8.6.2010

which would be more than 2 years after the Agreement to

Sell is alleged to have been executed. In fact the Agreement

to Sell itself refers to the recommendation made by Land &

Building Department of Delhi Government to DDA, for

allotment of a plot measuring 80 sq.yds. to defendant No.1.

6. Section 10 of Specific Relief Act, provides that

specific performance of a contract, can be enforced, where

there exists no standard for ascertaining the actual damage

caused by the non-performance of the Act agreed to be done

or when the act agreed to be done is such compensation in

money for its non-performance would not be adequate relief.

Some of the essential ingredients of an Agreement to Sell an

immovable property are (i) identity of vendor and purchaser

(ii) complete description of the property subject matter of the

agreement (iii) amount of consideration to be paid by the

purchaser to the seller (iv) time within which the agreement

is to be performed and (v) earnest money if any paid to the

vendor, one more of these essential ingredients are missing,

the agreement between the parties would not amount to

concluded contract. A Division Bench of this Court in

Mirahul Enterprises & Ors. Vs. Mrs. Vijaya Srivastava

AIR 2003 Delhi 15 referring to the provisions contained in

Section 10 of Specific Relief Act, observed that a true

contract requires the agreement of the parties, freely made

with full knowledge and without any feeling of restraint and

the parties must be ad-idem on the essential terms of the

contract and in case, it is an Agreement to Sell of immovable

property, the law requires that it must certainly identify the

property agreed to be sold and the price fixed as

consideration paid or agreed to paid. The Agreement alleged

to have been executed by the defendants in favour of the

plaintiff on 28.09.2007 does not identify the property

subject matter of the agreement.

7. In the facts and circumstances of this case, it

could not have been possible to identify the property subject

matter of the agreement for the simple reason that by the

time this agreement was executed no plot had been allotted

to either of the defendants by DDA. At the time of execution

of this agreement, it was not known when the plot of land

would be allotted by DDA, in which locality the allotment

would be made and which particular plot would be allotted

to the defendant. Therefore, it is difficult to dispute that the

agreement dated 28.09.2007, even if taken as true and on

its face value does not constitute a concluded contract for

sale of an immovable property.

8. Therefore, prima facie, the plaintiff cannot seek

enforcement of the agreement dated 28.09.2007. The

application for grant of interim relief seeking injunction

against sale, transfer, assignment or parting with

possession of plot No. 92, Pocket-10, Block-B, Sector-23 of

Dwarka, during pendency of the suit, therefore, cannot be

granted.

9. The application is dismissed.

CS(OS) 1518/2010

1. Replication, if proposed to be filed, can be filed

within four weeks. The parties can filed documents within

that period.

2. The parties shall appear before the Joint Registrar

on 11th January, 2011 for admission/denial of documents.

3. List the matter before the Court for framing of

issues on 28th March, 2011.

(V.K. JAIN) JUDGE

DECEMBER 09, 2010 'sn'