Shri D.P. Singh vs Shri Gagan Deep Singh
2011 Latest Caselaw 1932 Del

*                    HIGH COURT OF DELHI : NEW DELHI

                     Judgment reserved on: March 16, 2011
                    Judgment pronounced on: April 04, 2011

+                           CS (OS) No. 280/2005

%       Shri D.P. Singh                               ...         Plaintiff
                            Through:      Mr. Sushil Kumar Pandey, Advocate.

                                       versus

        Shri Gagan Deep Singh                        ...     Defendant
                        Through:          Nemo.

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

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

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

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

SUNIL GAUR, J.

1. What is sought in this suit is the specific performance of Agreement

to Sell of 19th August, 2004 in respect of first floor in flat No. 97 in HIG

Category, in Mahabhadra Kali, CGHS Limited, Plot No.6, Sector 13,

Dwarka, New Delhi (hereinafter referred to as the 'suit property'). Plaintiff

claims that at the time of execution of the aforesaid Agreement, he had

paid earnest money of Rupees Two Lacs and the balance sale

consideration of Rs.19,15,000/- was to be paid by the plaintiff to the

defendant on or before 9th November, 2004 at the time of execution of the

sale deed but before that defendant was required to obtain 'No Dues

CS (OS) No. 280 of 2005 Page 1 Certificate' and 'No Objection Certificate' for sale of the aforesaid flat from

Mahabhadra Kali, CGHS Limited Society and the said sale transaction was

required to be completed on 9th November, 2004 before Sub-Registrar's

office in Janakpuri, New Delhi. Plaintiff was to arrange for non-judicial

stamp paper of Rs.1,69,200/- for execution of the Sale Deed and as per

the plaintiff, a day before i.e. on 8th November, 2004, plaintiff had sent a

telegram to the defendant informing that the stamp papers and the balance

sale consideration are ready and the balance money would be paid to the

defendant i.e. on 9th November, 2004 before the Sub-Registrar concerned

at 12 noon upon defendant furnishing 'No Dues Certificate' & 'No

Objection Certificate', as aforesaid and the keys of the vacant suit property

be given to the plaintiff. It is specific assertion of the plaintiff that on the

due date, i.e. on 9th November, 2004, he had reached the office of the

Sub-Registrar concerned along with banker's Cheque of Rs.19,15,000/-

drawn in favour of the defendant from the ICICI Bank and non-judicial

paper of Rs.1,69,200/- for execution and registration of the Sale Deed in

respect of the suit property.

2. The plaintiff asserts that on the appointed day i.e. 9th November,

2004, he had waited till 5:00 p.m. in the office of the Sub-Registrar

concerned and had tried to contact the defendant on phone many times

but to no avail and the defendant had not turned up for the execution of the

Sale Deed and so, plaintiff was constrained to send a telegram at about

5:40 p.m. on that day informing the defendant about the breach of the

aforesaid Agreement by him. Not satisfied with the Defendants' reply of

23rd November 2004, to Plaintiff's notices of 11th November and 17th

CS (OS) No. 280 of 2005 Page 2 November 2004, the instant suit has been instituted, which was strongly

contested by the Defendant, who has not only denied the Plaintiff's case

but has also asserted that on appointed day, i.e., on 9th November 2004,

he had gone to the Office of the Sub-Registrar concerned and had waited

for the Plaintiff there, till 5 p.m. and thereafter had sent telegram at 5.45

pm on that day to the Plaintiff and since there was a failure on the part of

the Plaintiff to specifically perform the Agreement in question therefore, the

earnest money was rightly forfeited and so, this suit deserves dismissal.

3. On the aforesaid pleadings, the Issues claimed are as under:-

1. Is the suit not maintainable?

2. Has the plaintiff been always ready and willing to perform his part of the agreement dated 19.8.2004?

3. Is the plaintiff entitled to a decree for specific performance?

4. Relief?

4. Parties went to trial. Plaintiff had deposed as PW-1 and had got the

introducer - Mr. Surjeet Singh, (PW-2) examined to corroborate the

Plaintiff's plea of reaching the office of the Sub-Registrar concerned on the

appointed day for specific performance of the Agreement in question. The

Defendant had stepped into the witness box as DW-1 and had got his

brother Mr. Harjinder Singh (DW-2) examined, who corroborates the stand

of the Defendant and of his accompanying the Defendant to the Office of

the Sub-Registrar concerned for execution of the Sale Deed in pursuance

to the Agreement in question. The remaining evidence is of the concerned

official, Mr. Amarpal Singh (DW-3) from the Treasury office, who has

deposed on the basis of the record that on 11th November 2004, the non-

CS (OS) No. 280 of 2005 Page 3 judicial stamp paper worth Rs.1,58,650/- was given to one Raj Kumar who

had applied for the same on 9th November 2004 by making a cash deposit

of the said amount.

5. At the final hearing, submissions were advanced by Plaintiff's

counsel who had referred to the evidence on record and has relied upon

decisions in Rachakonda Narayana vs. Ponthala Parvathamma and anr.,

AIR 2001 SC 3353, Siley and others vs. Arun Varghese and anr., (2008)

11 SCC 45, but there was no assistance forthcoming from the side of the

Defendant. However, upon scrutiny of evidence on record and upon

consideration of the submissions advanced and the decisions cited, I

proceed to deal with this matter, in the light of the reiteration of the legal

position governing the grant of specific performance of an Agreement, as

highlighted by the Apex Court in Bal Krishna and Anr. vs. Bhagwan Das

(Dead) and Ors., (2008) 12 SCC 145, in the following words:-

13. Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") corresponds with Section 24 of the old Act of 1877 which lays down that the person seeking specific performance of the contract, must file a suit wherein he must allege and prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation (ii) to clause (c) of Section 16 further makes it clear that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true

CS (OS) No. 280 of 2005 Page 4 construction. The compliance with the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiff's readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court.

14. It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void."

CS (OS) No. 280 of 2005                                                           Page 5
 Issue No.: (i)

6. This Issue of maintainability of this suit was framed on the objection

taken by the Defendant in the written statement, but I find that it is not

disclosed by the Defendant in the written statement as to how this suit is

not maintainable. On perusal of the record of this case, I find that this suit

is very much maintainable in its present form. This Issue is accordingly

answered.

Issue No.: (ii)

7. Readiness and willingness to perform an Agreement, which is

sought to be enforced is an essential ingredient of Section 16 of Specific

Relief Act, on the strength of which this suit has been filed. According to

the Plaintiff, he was in possession of the Banker's cheque for the balance

sale consideration on the due date for performance of the Agreement in

question and he had gone to the Office of the Sub-Registrar concerned

alongwith the introducer - Mr. Surjeet Singh (PW-2) for performance of the

Agreement in question with the balance sale consideration as well as the

requisite stamp papers, but the Defendant did not turn up. Even the

Defendant claims that he had gone to the Office of the Sub-Registrar

concerned with his brother Mr. Harjinder Singh (DW-2) but the Plaintiff did

not turn up.

8. Surprisingly, neither the Plaintiff nor the Defendant had been vigilant

in getting their presence recorded in the Office of the Sub-Registrar

concerned by moving an application there to establish the presence at the

Office of the Sub-Registrar concerned and both sides are relying upon

their oral evidence as well as of their companions and upon scrutiny of the

CS (OS) No. 280 of 2005 Page 6 same, I find that it is just not possible to reasonably conclude that either of

them was present in the Office of the Sub-Registrar on the appointed date

for execution of the Sale Deed in pursuance to the Agreement in question.

The best evidence has been withheld by the Plaintiff. He claims to be in

possession of the banker's cheque for the balance sale consideration, but

he fails to place on record its copy and has not even placed on record any

proof regarding his giving phone calls to the Defendant by disclosing the

phone number of the Defendant. Even the assertion of the Plaintiff that he

was in possession of the stamp paper and the banker's cheque on 8th

November 2004, i.e., a day before the appointed date, remains

unsubstantiated. Rather, the Plaintiff stands contradicted in cross-

examination where he admits that in anticipation of collection of stamp

papers as well as bank draft, he had given a telegram on 8 th November

2004 that he was in possession of the same, though on that day, he

neither had the banker's cheque/bank draft nor the stamp papers with him.

This shows the Plaintiff has not come with clean hands before the Court

and is thus, disentitled to seek discretionary relief of Specific Performance

of Agreement to Sell. More so, when Plaintiff stands falsified from the

deposition of Mr. Amarpal Singh (DW-3) from the Treasury Office, who has

given the date of delivery of the stamp papers as 11th November 2004,

whereas, Plaintiff claims that with the requisite stamp papers, he was in

the Office of the Sub-Registrar concerned on 9th November, 2004 for the

execution of the Sale Deed on those stamp papers. It is so said, as there is

unchallenged evidence of Amarpal Singh (DW-3) to the effect that the cash

for the purchase of stamp papers was deposited on 9th November 2004

CS (OS) No. 280 of 2005 Page 7 and the challan for the same was deposited with the Treasury on 10th

November 2004 and so, non-judicial stamp papers could be made

available for delivery on 11th November 2004 only. Another pertinent

aspect is that as per the deposition of Amarpal Singh (DW-3) the aforesaid

stamp papers were not delivered to the Plaintiff but to one Mr. Raj Kumar,

with whom, Plaintiff fails to establish any connection. In the face of

aforesaid fundamental contradiction in the Plaintiff's case, I find that

reliance placed by Plaintiff's counsel upon decisions in Rachakonda

Narayana vs. Ponthala Parvathamma and anr., AIR 2001 SC 3353, Siley

and others vs. Arun Varghese and anr., (2008) 11 SCC 45, is clearly

misplaced.

9. Had the Plaintiff been in possession of the bankers cheque of the

balance sale consideration, then, as a prudent person, he would have

placed on record its copy. Having failed to do so, the Plaintiff cannot be

heard to say that he was in a position to perform his part of the Agreement

in question by tendering the balance sale consideration on the appointed

date, i.e., 9th November 2004. There is no convincing evidence on record

to establish that Plaintiff was in possession of the requisite stamp papers

on the aforesaid appointed date. As already observed, the oral evidence

led by the Plaintiff to prove the essential ingredient, i.e., of readiness and

willingness to perform the Agreement in question, cannot be accepted on

the face of it, in view of the following deposition of the Plaintiff:-

"I cannot explain it false or true, if the stamp papers were in fact released from Treasury on 9th November 2004 at 4 PM. (Volunteered) I had collected these papers from the Rohilla Documentation Center, at 11 or

CS (OS) No. 280 of 2005 Page 8 12 Noon or that the amount for issuance of these stamp papers was deposited on 9th November 2004 at around 11 to 12 PM."

10. On one hand, Plaintiff had asserted that he had asked the

Defendant to reach the Office of the Sub-Registrar concerned in the

morning on the appointed date, i.e., 9th November 2004, whereas, he

claims to have reached the Office of the Sub-Registrar concerned at 12

Noon. Non only this, it is the positive assertion of the Plaintiff that he had

filed the documentary proof of his presence on the appointed date, in the

Office of the Sub-Registrar concerned by way of a receipt got issued for

deposit of the amount for registration of a document but no such document

has been placed on record. The evidence led by the Plaintiff is not only

unsatisfactory but is contradictory, and so, I have no hesitation in holding

that the Plaintiff fails to prove the readiness and willingness to perform his

part of the Agreement in question. This Issue is accordingly answered

against the Plaintiff.

Issue No.: (iii)

11. Consequential to the findings returned on Issue No.(ii), it is held that

the Plaintiff is not entitled to the decree for specific performance. However,

what is required to be considered is whether the Defendant was justified in

forfeiting the earnest money. Since the Defendant has admitted in

evidence that on the appointed date, i.e., 9th November 2004, he was not

in possession of No Dues Certificate from the society, where the suit

property is situated, therefore, it cannot be said that on the due date, the

suit property was free from encumbrances, therefore, the Defendant was in

breach of the Agreement to the aforesaid extent and is not justified in

CS (OS) No. 280 of 2005 Page 9 forfeiting the earnest money amount. More so, when the Defendant fails to

establish that he was present in the Office of the Sub-Registrar concerned

for performance of Agreement to Sell. The Receipt (Ex.DW-1/8) indicating

deposit of an inspection fee by the Plaintiff on the appointed date is not

duly proved on record and it does not establish the presence of the

Defendant at the Office of the Sub-Registrar concerned. Even application

for inspection (Ex.DW-1/9) is not duly proved on record. Telegram receipt

(Ex.DW-1/10) fails to prove that to whom the purported telegram was sent

and by whom. Accordingly it is held that though the Plaintiff is not entitled

to the relief of the specific performance of the Agreement in question but

he is entitled to refund of earnest money of Rs.2 lakhs with reasonable rate

of interest @ 6% per annum w.e.f. 9th November 2004 till realization. This

Issue is accordingly answered.

Issue No.: (iv)

12. In view of the findings returned on Issue No.(iii), thought he suit for

specific performance of Agreement in question fails but, the Plaintiff is held

entitled to refund of earnest money of Rs.2 lakhs with interest @ 6% per

annum, w.e.f., 9th November 2004 till realization. Decree sheet be

accordingly drawn.

13. This suit is accordingly disposed of.

Sunil Gaur, J.

April 04, 2011
pkb/rs




CS (OS) No. 280 of 2005                                                   Page 10