S Raunaq Singh vs Tule Ram
2011 Latest Caselaw 4129 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Pronounced on: 25.08.2011

+           CS(OS) 1591/2010

S RAUNAQ SINGH                          ..... Plaintiff
              Through: Mr J.S. Lamba, Adv.

                              versus


TULE RAM                                       ..... Defendant
                      Through: Counsel for the defendant.

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 No. 10342/2010 (O. 39 R. 1&2 CPC)

1. This is a suit for specific performance of the

Agreement to Sell dated 11th November, 2006 for sale of

agricultural land measuring 12 bigha, bearing Khasra Nos.

34/6/2(3-8), 34/15(4-16), 34/16/1(3-11) and 34/27 (0-5)

situated at village Kangan Heri, New Delhi. Since the

plaintiff was a minor at the time the agreement was

executed, it was signed by his father Shri Randhir Singh on

his behalf. The total sale consideration was agreed at Rs

80.01 lakh per acre which comes to roughly Rs 2 crore and

a sum of Rs 20 lakh was admittedly paid as earned money

to the defendant. The transaction was agreed to be

completed by 16th February, 2007. The defendant was

required to obtain No Objection Certificate and Income-tax

clearance and inform the plaintiff for registration of the sale

deed within one week from the date of issue of the

certificate.

2. The defendant did obtain a No Objection Certificate

dated 14th February, 2007 from the office of Deputy

Commissioner (South West), Kapashera, New Delhi which

was valid for 30 days from the date of issue. The sale deed,

on the stamp papers purchased by the plaintiff, was also got

typed and signed by the parties to the agreement on 15th

February, 2007.

3. The case of the plaintiff, as set out in the plaint, is

that when he reached the office of the sub-Registrar on 15th

February, 2007 and the demand drafts of Rs 1,80,00,000/-,

representing the balance sale consideration, were shown to

the defendant, he informed that the No Objection

Certificate, duly issued by the concerned authority, was on

its way and would be attached to the sale deed when it is

presented to the sub-Registrar for registration. According to

the plaintiff, the sale deed was got prepared on the aforesaid

representation made by the defendant. This is also the case

of the plaintiff that after signing of sale deed, the defendant

furnished the No Objection Certificate, which he (the

plaintiff) suspected, was not a genuine document and when

questioned about it, the defendant could not give any

satisfactory response and left the office of the sub-Registrar.

This is also the case of the plaintiff that despite his

contacting to defendant on several occasions and requesting

him to fulfil his contractual obligations arising out of the

agreement to sell dated 11th November, 2006, he did not

come forward to do so and rather sent a notice dated 26th

February, 2007, making false and frivolous allegations

against him and also filed a criminal complaint against him

with the police.

The case of the defendant, on the other hand, is

that the plaintiff/his father was never ready and willing to

perform his part of the contract though the defendant had

fulfilled his part of the contract by obtaining the No

Objection Certificate and signing the sale deed, got prepared

by the father of the plaintiff. This is also the case of the

defendant that the plaintiff had no intention to pay the

balance sale consideration and, therefore, he had sent legal

notice dated 26th February, 2007 to him, forfeiting the

earnest money. The defendant had also got his presence

recorded in the office of sub-Registrar on 15th February,

2007, after the father of the plaintiff allegedly failed to

honour his part of the contract by not paying the balance

sale consideration.

4. As noted earlier, the defendant after obtaining the

No Objection Certificate was required to inform the plaintiff

in this regard and the sale deed was to be executed within

one week thereafter. This is not the case of the defendant

that he had given prior intimation to the plaintiff regarding

the No Objection Certificate, obtained by him from the

Competent Authority. In fact, during the course of

arguments, the learned counsel for the defendant stated

that the No Objection Certificate was received by the

defendant only on 15th February, 2007. Thus, it cannot be

disputed that the plaintiff/his father had no opportunity to

verify the genuineness of the No Objection Certificate at any

time prior to 15th February, 2007.

5. It is an admitted case that Pay Orders of

Rs1,80,00,000/- were obtained by the plaintiff/his father

and were shown to the defendant though the contention of

the defendant is that probably the plaintiff had borrowed

some money for obtaining these pay orders and later he got

them encashed. The learned counsel for the plaintiff,

however, maintains that those pay orders were not got

encashed by the plaintiff/his father during the period of

their validity. Be that is as it may, prima facie, I am unable

to make out what advantage the defendant could have

derived by obtaining the pay orders for the balance amount,

going to the office of sub-Registrar, purchasing the stamp

papers, executing the sale deed and then backing out of the

agreement on the very same day on which the sale deed was

executed. Prima facie, if a person has agreed to purchase

the property, paid the earnest money, obtain pay orders for

the balance sale consideration, has gone to the office of sub-

Registrar along with the pay orders, has purchased stamp

papers and got the sale deed prepared, there should be no

reason for him to back out unless he develops some doubt

with respect to either the title of the seller or with respect to

documents, such as the No Objection Certificate, which was

compulsorily required for registration of the sale deed.

6. During the course of arguments, it was contended

by the learned counsel for the defendant that this suit is

barred by limitation having been filed on 04 th August, 2010,

though the alleged breach of the agreement took place on

15th February, 2007. Admittedly, the plaintiff was a minor,

up to 29th December, 2009. Section 6 of Limitation Act, to

the extent it is relevant, provides that where a person

entitled to institute a suit is a minor, at the time from which

the period of limitation is to be reckoned, he may institute

the suit within the same period after the disability has

ceased, as would otherwise have been allowed from the time

specified in the Schedule for this purpose. Computed after

giving benefit of Section 6 of Limitation Act, the suit is well

within the prescribed period of limitation.

7. Prima facie, what I find rather unusual on the part

of the plaintiff is that no written notice was sent by him/his

father to the defendant, alleging therein that he had some

doubt on the genuineness of the No Objection Certificate

and for that reason had sought time to verify the

authenticity of the document. But, these are the matters on

which no final view can be taken at this stage. What is

important at this stage is that the suit property needs to be

preserved so that the plaintiff is not presented with a fait

accompli in case it is ultimately held by the Court after trial

that he had always been ready and willing to perform his

part of the contract and it was the defendant who had

backed out of his contractual obligation under the

agreement. In N. Srinivasa v. Kuttukaran Machine Tools

Ltd., (2009) 5 SCC 182, Supreme Court noticing that the

only ground taken by the respondent was that since time

was the essence of the contract and the appellant had failed

to perform his part of the contract within the time specified

in the agreement and, therefore, the question of grant of

injunction against transfer or alienation of the suit property

did not arise at all, the Supreme Court observed that it

must be kept in mind that it would be open to the

respondent to transfer, alienate or create any third party

interest in respect of property in dispute before passing the

award in which one of the main issues would be whether

time was essence of the contract or not. The Court was of

the view that if at the stage when application of the

appellant under Section 9 of the Arbitration and

Conciliation Act was pending, if the respondent is permitted

to transfer, alienate or create any third party interest in

respect of the property in dispute then the award, if any,

which may be passed in his favour would get nugatory and

it would be difficult for him to ask the respondent to execute

a sale deed when a third party interest has already been

created by sale of property in dispute and delivering the

possession to the third party.

In case interim protection is not granted to the

plaintiff, the defendant may dispose of the suit property or

may create third party interest therein, thereby defeating

the very object behind filing of the suit. On the other hand,

the defendant is not likely to suffer any irreparable loss in

case he is restrained from selling, assigning or transferring

the suit property and from creating any third party interest

therein during pendency of the suit. He will continue to

enjoy the suit property as he is doing at present. The

balance of convenience thus lies in favour of maintaining

status quo during pendency of the suit.

8. In view of the decision of this Court in Mohan

Overseas P. Ltd vs. Goyal Tin & General Industries 169

(2010) DLT 487 (DB), the learned counsel for the plaintiff,

was asked as to whether the plaintiff is ready to deposit an

FDR or furnish a Bank Guarantee for an amount equivalent

to the balance sale consideration of Rs 1,80,00,000/- and

interest on that amount @ 10% per annum w.e.f. 15th

February, 2007 till today. He, however, states that he has

not been able to contact the plaintiff and take instruction

from him in this regard. In these circumstances, it is

directed that subject to the plaintiff depositing FDR for the

amount equivalent to the balance sale consideration of Rs

1,80,00,000/- and interest on that amount @ 10% per

annum w.e.f. 15th February, 2007 till today within four

weeks, the defendant will maintain status quo with respect

to title and possession of the land subject matter of this suit

during pendency of the suit.

The application stands disposed of. The

observations made in this order being tentative and prima

facie, would not affect the decision of the suit on merits.

CS(OS) 1591/2010

The following issues are framed on the pleadings of

the parties:-

1. Whether the plaintiff has always been ready and

willing to verify his part of the agreement to sell dated 11 th

November, 2006? OPP

2. Whether the defendant committed breach of the

agreement to sell dated 11th November, 2006? OPP

3. Whether the plaintiff is entitled to relief claimed?

4. Relief.

Affidavit by way of evidence be filed within four

weeks. The parties to appear before the Joint Registrar for

fixing a date for cross-examination of witnesses of the

plaintiff on 05th October, 2011.

(V.K. JAIN) JUDGE AUGUST 25, 2011 bg