Delhi High Court
Rakesh Chander Gupta vs Raj Singh & Ors. on 1 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.548/98
% 1st February, 2011
RAKESH CHANDER GUPTA ...... Appellant
Through: Mr. Hemant Malhotra,
Advocate.
VERSUS
RAJ SINGH & ORS. ...... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal is to the
impugned judgment and decree dated 30.5.1998 of the Trial court whereby
the suit of the appellant/plaintiff was decreed for the alternative relief of
recovery of damages instead of grant of specific performance.
2. The facts of the case are that the respondent no. 1 entered into
an agreement to sell dated 7th December, 1988 with the appellant/plaintiff
for sale of 4 bighas and 16 biswas falling in Khasra no. 507, Village Neb
Sarai, Tehsil- Mehrauli, Delhi. The total sale consideration was agreed at
Rs.4,10,000/- and which complete amount was paid by the appellant/plaintiff
to the respondent no.1. Rs.10,000/- was paid on 18.3.88, Rs.1,00,000/- was
paid on 15.7.88, Rs.50,000/- was paid on 20.9.88, another Rs.50,000/- was
paid on 15.10.88 and the balance amount of Rs.2,00,000/- was paid on
7.12.88 thus making the total payment on which agreement to sell was
entered into. The respondent no.1 on receipt of entire consideration
executed, agreement to sell, general power of attorney and Will, the last of
the two were registered at Gurgaon, in favour of the appellant/plaintiff. The
case of the appellant/plaintiff was that the respondent no.1 became
dishonest and sought to sell the subject property to respondents no.2 to
5/defendants no. 2 to 5 who forcibly dispossessed the appellant/plaintiff and
whereupon the subject suit for specific performance was filed.
3. I may note that the defendants no. 2 to 5/respondents no. 2 to 5
were proceeded ex parte in the Trial court and the defendant no.
1/respondent no. 1 initially put in appearance, but thereafter failed to appear
and was hence proceeded ex parte when after dismissal of the suit, notice of
restoration was served upon the defendant no. 1/respondent no.1 for
25.3.97. The defendant no. 1 had, however, filed the written statement in
the case and his case was that the appellants/plaintiffs allegedly got blank
document signed from him while giving an alleged loan of Rs.10,000/-.
4. The Trial Court has while examining the case, referred to the
agreement to sell which was exhibited as Ex.P1. The Trial court has also
referred to the receipts which showed payment of the entire sale
consideration which have been exhibited as Ex.PW1/1 to Ex.PW1/4. The Trial
Court has also referred to the general power of attorney and Will which were
registered at Gurgaon being Ex.PW1/5 and Ex.PW1/6
In view of this, it is quite clear that the respondent
no.1/defendant no.1 received the entire consideration and thereafter
executed the agreement to sell, power of attorney and, Will and which are
the usual documents executed in Delhi when a property is sought to be
transferred. The authenticity of the documents cannot be doubted because
the general power of attorney and Will are registered documents. The stand
of the respondent no. 1 in his written statement, therefore, that he took a
loan of Rs.10,000/- and he signed the documents in blank is clearly not
believable.
5. The Trial court has thereafter arrived at a finding that it was
respondent no. 1 who was guilty of the breach of contract. Ordinarily
therefore once the complete price is paid, it is a natural consequence that
the suit of the appellant/plaintiff ought to have been decreed for specific
performance. However, the Trial Court after giving complete conclusions
and findings in favour of the appellant/plaintiff, for some reason which I have
failed to decipher, decreed the suit only for the price i.e. Rs.4,10,000/- with
damages of Rs.1,00,000/- along with compound interest at 18% per annum.
Since I have failed to appreciate and agree with the reasoning of the Trial
Court, I would refer to paras 3 and 4 of the impugned judgment and decree
which show the entitlement of the appellant/plaintiff for specific performance
and yet the Trial Court has failed to grant the same. Paras 3 and 4 read as
under:-
"3. The plaintiff has filed an affidavit in evidence wherein,
the plaintiff has stated that defendant no.1 entered into an
agreement to sell of plot khasra No.507, measuring 4
bighas 16 Biswas on 18.3.1988 for a total consideration of
Rs.4,10,000/-, initially amount of Rs.10,000/- was paid on
18.3.1988 by bank cash order and remaining amount of
Rs.4 lacs was paid in cash on 15.7.1988, 20.9.1988,
15.10.1988 and 7.12.1988, vide receipts which are
Ex.PW1/1, ½, 1/3 and ¼. After receiving the full amount
defendant no. 1 executed agreement to sell dated
7.12.1988 which is Ex.P-1. He also executed GPA and Will
in favour of the plaintiff which were registered at Gurgaon
and they are Ex.PW1/5 and 1/6. Physical possession of the
plot of the land was handed over to the plaintiff.
Defendant no.1 was to obtain the No Objection Certificate
from the concerned authority for the sale of the land.
Defendant no.1, however, did not obtain „No Objection
Certificate‟ and did not execute the Sale Deed. Defendant
nos. 2 to 5 came to the plot of the plaintiff with about 10
persons and threatened to dispossessed the plaintiff.
Defendant no. 1 also sent notices to the plaintiff which are
Ex.PW1/7 and 1/8, the reply of the plaintiff to these notices
is Ex.PW1/9.
4. In view of the testimony of the plaintiff and the
documents placed on record by the plaintiff, I come to
conclusion that plaintiff has successfully proved that
defendant no.1 had entered into an Agreement to Sell with
the plaintiff for sale of 4 bighas 16 biswas falling in Khasra
No. 507, Village Neb Sarai, Tehsil Mehrauli. He received
full consideration from the plaintiff and executed General
Power of Attorney and Agreement to Sell with a promise to
execute Sale Deed after obtaining No Objection Certificate
and clearance Certificate. Defendant No.1 failed to
perform his part of the contract and the plaintiff is
therefore entitled to the specific performance of the
property. However, the contract was entered in 1988,
thereafter, the plaintiff was dis-possessed from the land
some time in 1989 and about 9 years have passed, I
consider that in respect of specific performance of the
contract, it would be appropriate that the defendant is
directed to pay the amount of the plaintiff back with
compound interest and compensation. I, therefore, pass a
decree of Rs.4,10,000/- alongwith cost and compound
interest @ 18% p.a. with annual rests on the amount of
Rs.4,10,000/- from 7.12.1988 till the recovery in favour of
the plaintiff and against defendant no. 1. The plaintiff was
also be entitled to the cost of the suit and a compensation
of Rs.One lakh for not executing the sale deed by the
defendant no.1. Decree sheet be prepared accordingly.
File be consigned to Record Room."
6. Surely, once there is found to be a contract, which has been duly
acted upon by a seller having received the complete price, more so
evidenced by registered documents, there was no reason to not grant
specific performance. No doubt specific performance is discretionary,
however, the judicial discretion is exercised when all the facts and
circumstances of the case are in favour of the plaintiff. The facts and
circumstances of the case evidence payment of complete consideration and
execution of registered documents in favour of the appellant/plaintiff. In my
opinion, therefore the Trial court committed a complete illegality and
perversity by denying the relief of specific performance and decreeing only
the return of the sale consideration with damages of Rs.1 lac to the
appellant/plaintiff. Quite clearly, the impugned judgment and decree if
allowed to stand will cause grave prejudice and harm to the
appellant/plaintiff who was out of pocket for the entire sale consideration.
7. In view of the above I accept the appeal and set aside the
impugned judgment and decree to the extent it grants only return of the sale
consideration with interest. I decree the suit for specific performance of the
appellant/plaintiff and against the respondent no.1 with respect to the
property being 4 bighas and 16 biswas land falling in Khasra No. 507, Village
Neb Sarai, Tehsil-Mehrauli, Delhi. The respondent no.1 is directed to execute
the necessary sale deed of the suit property in favour of the
appellant/plaintiff. No directions are required for deposit of any money by
the appellant/plaintiff in this Court inasmuch as the entire sale consideration
has been received by the respondent no.1/defendant no.1. The respondent
no.1 is directed to execute the sale deed in favour of the appellant within a
period of 6 weeks from today after obtaining the necessary permissions
required from the appropriate authorities. On the sale deed being executed,
the appellant/plaintiff will also be entitled to possession of the suit property
from the respondent no.1, which if denied to the appellant/plaintiff, can be
obtained in execution proceedings of the judgment and decree. In case, the
respondent no. 1 fails to execute the sale deed or obtain necessary
permissions which are required for execution of the sale deed, then the
appellant/plaintiff will be at liberty to take appropriate proceedings including
execution proceedings for getting the sale deed executed in his favour.
Decree sheet be prepared.
8. The appeal is disposed of as allowed. The Trial Court Record be
sent back.
February 01, 2011 VALMIKI J. MEHTA, J.
ak
