Shri Rajeev Mehra vs Sudhir Kumar
2011 Latest Caselaw 5320 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS (OS) No. 76/2004
*
                 IA No. 638/2004(O 39 R 1 and 2 r/w Sec. 151 CPC) and IA No.
                 1089/2004 (O 39 R 4 CPC) in CS(OS) NO. 76/2004

                                           Decided on: 3rd November, 2011

SHRI RAJEEV MEHRA                                           .......Plaintiff

                             Through:    Mr. P. Banerjee, Adv.

                             Vs.

SUDHIR KUMAR                                              .....Defendant

                             Through:    Mr. Sandeep Sethi, Sr. Advocate with
                                         Mr. Sachin Midha, Adv.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

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

       2. To be referred to Reporter or not?                No

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

A.K. PATHAK, J. (ORAL)

1. Plaintiff has filed this suit, inter alia, for specific performance of

Agreement to Sell dated 15th February, 2001 and in alternative it has been

prayed that a money decree for returning the sum of `23,00,000/- (rupees

twenty three lacs only) together with interest @26% per annum with effect

from 15th February, 2001 be passed; besides a decree of damages to the tune of

`40,00,000/- (rupees forty lacs only) with interest be also passed.

2. Along with the suit, IA No. 638/2004 was filed by the plaintiff seeking

injunction. By way of ex-parte order dated 3rd February, 2004, defendant was

restrained from selling, transferring, alienating or creating any third party

interest in the suit property, i.e., terrace on the second floor of the building No.

33, NH-IV, Lajpat Nagar, New Delhi. Defendant has filed IA No. 1089/2004

seeking vacation of ex-parte injunction order dated 3rd February, 2004.

3. It is alleged in the plaint that vide Agreement to Sell dated 15th February,

2001 defendant had agreed to sell the full terrace rights of the second floor in

the property bearing No. 33, NH-IV, Lajpat Nagar, New Delhi to the plaintiff

for a total sale consideration of `40,00,000/- (rupees forty lacs only). A sum of

`15,00,000/- (rupees fifteen lacs only) was paid by the plaintiff to defendant

towards earnest money on 15th February, 2001 against receipt. Plaintiff was

even put in possession of the terrace on 15th February, 2001 and an affidavit in

this regard was sworn by the defendant. Subsequently, another sum of

`8,00,000/- (rupees eight lacs only) was paid by the plaintiff to the defendant

on 10th April, 2001 against receipt. This amount was paid to the defendant as

he had represented that he required this amount for making payment to get the

leasehold rights of the suit property converted into freehold. With this

payment, `23,00,000/- (rupees twenty three lacs only) stood paid to the

defendant. However, defendant did not come forward to execute the Sale Deed

despite repeated requests. On 8th March, 2003, plaintiff along with one Shri

Gurinder Singh went to the suit premises but was not allowed to go to the

second floor by the defendant and four goons who were present with him.

Plaintiff and Shri Gurinder Singh were manhandled by them. Defendant took

out a revolver and threatened the plaintiff and Shri Gurinder Singh to run away

lest they would be killed. Accordingly, plaintiff and Shri Gurinder Singh

returned from the premises. On 16th March, 2003, plaintiff along with his father

and Shri Gurinder Singh again went to the office of defendant at about 11:30

AM and requested him to return `23,00,000/- (rupees twenty three lacs only)

received by him along with interest in case defendant was not willing to execute

the sale deed. On this occasion, plaintiff was beaten up by the defendant.

Plaintiff lodged a complaint with Police Station Lajpat Nagar on 17th March,

2003, but no action was taken. Accordingly, plaintiff filed a criminal complaint

before the Metropolitan Magistrate wherein local police was directed to take

appropriate action, consequently, FIR No. 329/2003 under Sections

420/406/456/380/341/506 IPC was registered on 16th April, 2003 at Police

Station Lajpat Nagar. Defendant had illegally trespassed the suit property on 1st

March, 2003, thus, he was liable to pay damages to plaintiff. Plaintiff was

and/is always ready and willing to perform his part of the agreement.

4. In the written statement, defendant has neither denied execution of

Agreement to Sell dated 15th February, 2001 nor has denied having received

`23,00,000/- (rupees twenty three lacs only) from the plaintiff. However,

defendant has denied that possession of the suit property was handed over to the

plaintiff. It is alleged that in the month of December, 2001, plaintiff along with

Shri Gurinder Singh (who was the mediator) came to the office of the defendant

and informed that plaintiff would be no longer interested in the said deal and

asked the defendant to return `23,00,000/- (rupees twenty three lacs only). The

defendant was not having said amount readily available with him, thus, sought

some time from the plaintiff to arrange the funds to make payment. In the

month of January, 2002, defendant paid `15,00,000/- (rupees fifteen lacs only)

in cash to the plaintiff in the presence of one Shri Prem Chand. Plaintiff did not

issue a receipt on the pretext that same would be issued only after the remaining

amount of `8,00,000/- (rupees eight lacs only) is paid to him. Subsequently,

defendant issued three cheques and promissory note to the plaintiff towards

security for payment of `8,00,000/- (rupees eight lacs only) with the

understanding that these cheques would not be presented for encashment.

However, plaintiff manipulated these cheques and filed a criminal complaint

under Section 138 of the N.I. Act. Father of the plaintiff also filed a suit for

recovery against the defendant on the basis of these forged cheques and

promissory note. It is stated that plaintiff was not ready and willing to perform

his part of contract, inasmuch as, plaintiff himself had terminated the

Agreement to Sell and sought refund of the amount. Having done so, he was

not entitled to seek specific performance of Agreement to Sell in view of

Section 16(C) of The Specific Relief Act, 1963 (hereinafter referred to as "the

Act").

5. Section 16(C) of the Act provides that specific performance of a contract

cannot be enforced in favour of a person who fails to aver and prove that he has

performed or has always been ready and willing to perform the essential terms

of the contract which are to be performed by him, other than terms the

performance of which has been prevented or waived by the defendant.

6. In para 11 of the plaint, plaintiff has himself categorically mentioned that

on 16th March, 2003 he along with his father and Mr. Gurinder Singh went to

the office of the defendant and requested him to return `23,00,000/- (rupees

twenty three lacs only) with interest, in case he does not wish to execute the

Sale Deed. This statement clearly indicates that the plaintiff himself was not

keen in the continuation of the deal, thus, had asked for refund of the money

paid by him to the defendant. This version also supports the plea taken by the

defendant in the written statement that plaintiff had himself cancelled the deal.

Though a statement has been made in para 16 of the plaint that the plaintiff was

always ready and willing to perform his part of the contract and he is still ready

and willing to perform his part of contract but in view of statement as

mentioned in para 11 of the plaint not much importance can be attached thereto.

The plea, taken by the plaintiff that he had gone to the office of defendant to

ask him for refund of money under coercion as he had been threatened by the

defendant earlier, prima facie, does not inspire much confidence as the plaintiff

did not lodge any complaint with the police after the incident which allegedly

took place on 8th March, 2003. That apart no assertion has been made in the

plaint that plaintiff had gone to defendant's office on 16th March, 2003 to seek

refund of the amount on account of incident dated 8th March, 2003. Though the

allegations and counter-allegations on this part is subject matter of trial, but at

the same time statement made in the plaint, prima facie, shows that plaintiff had

himself shelved the deal and was not ready and willing to perform his part of

contract.

7. Learned counsel for the plaintiff has placed reliance on Boots

Pharmaceuticals Ltd. and Rajinder Mohindra & Anr. 177 (2011) DLT 260, to

contend that the readiness and willingness to perform the contract on the part of

plaintiff is subject matter of trial and the averments made in the plaint is to be

taken as correct. However, the said judgment is in the context of different

facts. In the said case cardinal assertion was made by the plaintiff about his

readiness and willingness and there was no material on record to show that

plaintiff has shelved the deal. However, in this case plaintiff has himself

admitted that he had gone to the office of the defendant and asked him to refund

the money paid pursuant to the agreement and this fact goes against the

plaintiff.

8. Whether to grant an interim injunction or not depends upon the facts and

circumstances of each case as no straight jacket formula can be laid down in

this regard. However, grant of temporary injunction is governed by three basic

principles, that is, prima face case; balance of convenience and irreparable

injury, which are required to be considered in proper prospective in the facts

and circumstances of a particular case. Prima facie view has to be drawn on the

pleadings and the documents filed in support thereof in a particular case.

9. In the facts of this case, in my view, plaintiff has failed to make out a,

prima facie, case in his favour for the relief of specific performance. Balance

of convenience is also not in favour of the plaintiff seeking restraint order

against the sale and transfer of the suit property of the defendant, moreso, when

he had demanded the part payment made by him from the defendant. It also

cannot be said in the facts of this case that plaintiff shall suffer irreparable loss

or injury in case interim order as prayed for is not granted. IA No.638/2004 is

dismissed.

10. Interim order dated 3rd February, 2004 is vacated. In view of dismissal

of application of the plaintiff, IA No.1089/2004 is disposed of as infructuous.

CS(OS) No. 76/2004

List on 30th January, 2012 before the Joint Registrar for evidence.

A.K. PATHAK, J.

NOVEMBER 03, 2011 rb