Sunita Sinha & Anr. vs M/S Leela Builders Pvt. Ltd. & Ors.
2011 Latest Caselaw 5387 Del

$~15.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 2162/2008
%                                      Judgment dated 08.11.2011
SUNITA SINHA & ANR.                                      ..... Plaintiffs
                  Through :            Mr. Ravi Gupta, Sr. Adv. with Mr. P.S.
                                       Bindra, Adv.
                    versus
M/S LEELA BUILDERS PVT. LTD. & ORS.               ..... Defendants
                  Through : Mr. N.K. Kaul, Sr. Adv. with Mr. Anil
                             Kumar Batra, Advs. for defendants
                             no.1-8.
     CORAM:
     HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J. (ORAL)

I.A.NO.3759/2010.

1. This is an application filed by the plaintiffs under Order XII Rule 6 CPC praying that the suit be decreed in terms of prayers made in the plaint in view of the admissions made by the defendants in the written statement.

2. Necessary facts, which are required to be noticed for disposal of present application, are that plaintiffs have filed the present suit for mandatory injunction or in the alternate for grant of decree of possession, recovery of mesne profits and permanent injunction against the defendants.

3. As per the plaint, a plot of land measuring 0.179 acres (approximately 966.33 sq. yards), bearing no.48, Block No.171, now known as 48, Sunder Nagar, New Delhi, was allotted to one Sh. R.N. Luthra, by virtue of perpetual lease deed dated 30.11.1961. Sh. R.N. Luthra constructed a two and a half storied super structure/bungalow along with servant quarters and garage over the said plot of land. Sh. R.N. Luthra died on 16.12.1972, leaving behind a Will dated 10.09.1971 whereby he bequeathed and divided the super structure with the land underneath in

1/3rd equal shares to his grandson, Sh. Rajiv Luthra, defendant no.9 herein and his daughters, Smt. Santosh Sethi and Smt. Nirmal Krishan. Smt. Santosh Sethi died on 29.6.1984, leaving behind a Will dated 20.2.1983, whereby she bequeathed her 1/3rd undivided share in the super structure and the land underneath to her son, Sh. Sanjeev Sethi, defendant no.10 herein. Further, as per the plaint, defendant no.10, thus, became the joint owner in respect of 1/3rd undivided share in the said property and the remaining 2/3rd undivided share in the said property had been held by Smt. Nirmal Krishan and defendant no.9 herein. During the life time of Smt. Nirmal Krishan, she along with defendant no.9 entered into an Agreement to Sell dated 24.1.1989 wherein they agreed to sell their respective shares in the suit property to defendants no.1-6 for a total sale consideration of Rs.80.70 lakhs. At the time of entering into Agreement to Sell the ground floor and first floor portion of the suit property was in the possession of tenants.

4. Mr. Ravi Gupta, learned senior counsel for the plaintiffs, submits that to facilitate handing over possession of the property to defendants no.1 to 6 in terms of Clause 4 of the Agreement to Sell, the then joint owners of the property gave a Power of Attorney in favour of the representative of defendants no.1 to 6 to take appropriate action for getting back possession of the said premises. Senior counsel further submits that second floor portion of the said property was in possession of the joint owners of the property as none of the joint owners were residing therein but defendants no.1 to 7 have started using the said portion of the premises without any authorization from the joint owners. Senior counsel next submits that it is the case of the plaintiffs that although defendants no.1-8 had obtained possession and are enjoying use and occupation of the said property, as agents of the then joint owners but

they have failed and neglected to pay the balance consideration of Rs.62.40 lakhs in terms of Clause 4 of the Agreement to Sell. Thus, the Agreement to Sell dated 24.1.1989 stood cancelled without any further obligation on the sellers/joint owners of the property and the part payment of Rs.10.50 lakhs paid by the defendants stood forfeited.

5. Learned senior counsel for the plaintiffs submits that having regard to the terms of Agreement to Sell entered into between the parties, it makes it abundantly clear that the suit property was sold for a total sale consideration of Rs.80.70 lakhs, out of which, defendants have only paid part of the sale consideration to the plaintiffs. In view thereof, the occupation of the defendants in suit property is illegal and unauthorized and on the basis of Agreement to Sell, which is an admitted document, the absence of payment of entire sale consideration as admitted in the written statement would amount to admission as the only defence raised by defendants in the written statement that they are in the possession of the suit premises taking benefit of Section 53A of Transfer of Property Act. Elaborating his argument further, learned senior counsel for the plaintiffs has relied upon FGP Limited v. Saleh Hooseini Doctor, reported at (2009) 10 Supreme Court Cases 223, more particularly paras 23 to 26, which read as under:

23. The submission by the appellant's counsel on part performance of the contract under Section 53-A of the Transfer of Property Act also cannot be accepted. Section 53-A of the Transfer of Property Act is based upon the equitable doctrine of part performance in English Law. Initially Section 53-A was not incorporated in the Transfer of Property Act but the same came by way of an amendment for the first time by the Transfer of Property Amendment Act 1929 (Act of 1929). The amendment had to be made in view of some divergence in judicial opinion on the application of the aforesaid equitable doctrine by various Courts in India.

24. Section 53-A of the Transfer of Property Act has certain ingredients and, in our judgment, those are:-

(1) a contract to transfer immovable property;

(2) the transfer should be for consideration;

(3) the contract must be in writing;

(4) it should be signed by or on behalf of the transferor;

(5) the terms of the contract can be ascertained with reasonable certainty from the writing;

(6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession;

(7) such taking of or continuance in possession should be in part performance of the contract;

(8) the transferee should do some act in furtherance of the contract; and

(9) he should have performed, or be willing to perform, his part of the contract.

25. The rationale of the equitable doctrine of part performance in English Law has been traced in Section 53-A by this Court in the case of Sardar Govindrao Mahadik and another Vs. Devi Sahai and others - (1982) 1 SCC 237. In paragraph 13, page 249 of the report while tracing the said equitable doctrine in the way it has been assimilated in Section 53-A of the Transfer of Property Act, the learned Judges held that the act or action relied upon as " evidencing part performance"; must be of such nature and character that its existence would establish the contract and its implementation. The learned Judges further held that the crucial act or action must be of such a character as to be unequivocally referable to the contract as having been performed in performance of the contract.

26. In support of the said conclusion, the learned Judges referred to an Old English decision rendered in the case of Lady Thynne Vs. Earl of Glengall (2 HL Cases 131). In referring to the said

case, the learned Judges quoted the observations therefrom and which are reproduced herein below:

"...part performance to take the case out of the Statute of Frauds, always supposes a completed agreement. There can be no part performance where there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement..."

Relying on the aforesaid principle, the learned Judges in Sardar Govindrao Mahadik (supra) reiterated that the act relied upon by the party invoking the said doctrine must be such as by its own force to show the very existence of the same contract.

6. It is strongly urged before this Court by learned senior counsel for the plaintiffs that the test as laid down by the Apex Court in the case of FGP Limited (supra) are to be strictly applied to the facts of the present case. Senior counsel further submits that defendants can only take benefit of Section 53A of Transfer of Property Act in case they have complied with their part of the obligation and the admitted case on record is that defendants have not paid the entire sale consideration to the plaintiffs. Senior counsel next submits that there is no averment in the written statement that defendants were or are ready and willing to carry out their terms of the agreement. There is no readiness and willingness on the part of defendants and thus one of the basic ingredients of Section 53-A of Transfer of Property Act have not been satisfied. Senior counsel also submits that on the own showing of the defendants, defendants have made payments to the tenants and L&DO for which there was no mandate either in writing or otherwise. It is next submitted by learned senior counsel for the plaintiffs that defendants were aware that suit premises was occupied by tenants and in this view of the matter symbolic possession of the ground floor and the first floor of the suit

property was handed over to the defendants. It is also urged before this Court that Power of Attorney, which was executed in favour of defendants also does not authorize defendants to make any payment to the tenants on behalf of the plaintiffs. It is, thus, contended that even otherwise till date defendants have failed to file any suit for specific performance or initiated any action for perfecting their title.

7. Learned senior counsel for the defendants has opposed the present application on the ground that Order XII Rule 6 CPC is not applicable to the facts of the present case as there are no admissions much less any clear unequivocal admissions on the part of the defendants. Senior counsel further submits that none of the sellers during their life time had filed any proceedings against the defendants as payments were made by the defendants to the tenants at the request of the sellers. Senior counsel next submits that not only the payments were made to the tenants but the defendants have also made payments to L&DO in the sum of Rs.8.23 lakhs for recall of a re-entry notice issued with regard to the suit property. In addition thereto, defendants also paid a sum of Rs.45.00 lakhs to the tenants by means of cheques, which duly stand encashed. Counsel also submits that after receipt of payments, the tenants handed over possession to the plaintiffs as far back as in the year 1989 and to the knowledge of the sellers. The handing over and receiving of possession was not disputed by the plaintiffs at any point of time in the last nine years nor prior to filing of the suit the plaintiffs lodged any protest.

8. Learned senior counsel for the defendants submits that a bare reading of the registered Power of Attorney executed in favour of the defendants would show that wide and extensive powers have been given to the defendants which would only lead to one conclusion that the entire sale consideration stood paid and received by the plaintiffs. Senior counsel

for the defendants has drawn the attention of the Court to various paras of written statement to show that defendants have not admitted at any point of time that they have not made the payment in terms of the Agreement to Sell. It is submitted by learned senior counsel for the defendants that defence of the defendants is yet to be tested and plaintiffs have been unable to make out a case for grant of a decree under Order XII Rule 6 CPC.

9. I have heard counsel for the parties and also perused the plaint, application and the documents, which have been placed on record. The law with regard to Order XII Rule 6 CPC is well settled. In the case of Uttam Singh Duggal & Co. Ltd. v. Union Bank of India reported at (2000)7 SCC 120, the Apex Court in para 12 observed as under:

"Learned counsel for the appellant contended that Order XII, Rule comes under the heading 'admissions' and a judgment on admission could be given only after the opportunity to the other side to explain the admission, if any, made; that such admission should have been made only in the course of the pleadings or else the other side will not have an opportunity to explain such admission, that even though, the provision reads that the Court may at any stage of the suit make such order as it thinks fit effect of admission, if any, can be considered only at the time of trial; that the admission even in pleadings will have to be read along with Order VIII, Rule 5(1) of CPC and Court need not necessarily proceed to pass an order or a judgment on the basis of such admission but call upon the party relying upon such admission to prove its case independently, that during pendency of other suits and the nature of contentions raised in the case, it would not be permissible at all to grant the relief before trial as has been done in the present case; that the expression 'admissions' made in the course of the pleadings or otherwise will have to be read together and the expression 'otherwise' will have to be interpreted ejusdem generies.

As to the object of the Order XII, Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that "where a claim ia (sic. is) admitted, the Court has

jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled." We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed."

10. The plaintiffs have sought a decree under Order XII Rule 6 CPC primarily on the basis of the terms of Agreement to Sell wherein the sale consideration between the parties has been fixed. The plaintiffs in support of their plea have relied on various Clauses in the Agreement to Sell to show that sale consideration was fixed at Rs.80.70 lakhs and the full amount was not paid to the plaintiffs and the written statement wherein the defendants have failed to show that all amounts stand paid to the plaintiffs.

11. It is submitted by learned senior counsel for the plaintiffs that it is admitted by the defendants that this entire sale price was not paid to the plaintiffs and in view thereof defendants can no longer remain in possession of the suit property and further they cannot derive benefit of Section 53 of Transfer of Property Act as defendants have failed to pass a test as laid down by the Apex Court in the case of FGP Limited (supra). It is further submitted that defendants cannot claim any benefit from the fact that payments were made to the tenants as defendants have failed to place a single document on record to show that at any point of time they were instructed or called upon by the sellers to pay the tenants any amount much less a sum of Rs.45.00 lakhs. Learned senior counsel

for the defendants on the other hand submits that plaintiffs are unable to show a single admission made by the defendants in the written statement or otherwise that they have not made payments to the plaintiffs.

12. I have carefully perused the written statement filed by defendants wherein the defendants have categorically denied that any amount is due and payable to the plaintiffs and in fact defendants have clearly spelt out and given details of payments made by them. Para „f‟, „i‟ and „j‟ of the written statement read as under:

"f. That on 3.8.89 a further sum of Rs.15,00,000/- was paid to the sellers vide cheque no.258985, 25896 and 258988 for Rs.5,00,000/- each drawn the Bank of Madurai, Nehru Place, towards the balance sale consideration. The said payment was accepted by the sellers under receipt dt. 3.8.89 counter signed by Shri G.D.Krishan which discloses the fact that vacant possession of the self occupied premises and symbolic possession of the tenanted premises were handed over to the purchasers on 3.8.89.

i. That thereafter the answering defendants on 24.2.1990 got the physical vacant possession of the tenanted premises from M/s Bhardwaj Bhardwaj and Associates (i.e. the tenants) against a payment of Rs.25,00,000 and Rs.20,00,000 for the ground and first floor of the suit property respectively. That the said possession was taken from the tenants under two separate receipts both dt. 24.2.90. The said sums of money amounting to Rs.45,00,000/- paid to the tenants was accordingly adjusted against the balance sale consideration with the knowledge and acceptance of the sellers.

j. That thereafter the sellers in discharge of their obligations under the agreement, applied to the land and development officers, Ministry of Urban Development, for the cancellation of the re- entry and compromise with the lessor/President of India in order to have the same revoked and cancelled."

13. A further perusal of the written statement would show that in para 5 of the preliminary objections defendants have stated that erstwhile owners of the suit property have also received full sale consideration in respect

of the property and they have handed over vacant peaceful possession of the premises to defendants on 3.8.1989 and it is for this reason that the original owners did not chose to file any suit against the defendants. Paras 7 to 9 of the written statement read as under:

"7. .....

It is stated that full consideration in respect of the suit property having been paid to the sellers, not only was the possession of the property handed over to the purchasers, further on the same day i.e. 3.8.1989 a irrecoverable general power of attorney was jointly executed by the sellers in favour of defendant no.7, counter signed by Shri G.D. Krishnan granting absolute powers in favour of the answering defendants, vis a vis the suit property. None of the other payments have been disclosed in the plaint.

It is stated that all documents including the general power of attorney dt. 3.8.89 executed in favour of the answering defendants show that the rights, title and interest in the property stands transferred to the answering defendants. Hence, the plaintiffs are not entitled to any relief whatsoever, in respect of the suit premises. Such a power of attorney would be executed only on full consideration having been paid.

8. It is stated that the answering defendants having discharged all their obligations under the agreement to sell and the sellers having received the appropriate consideration in respect of the suit premises with possession having been delivered by the sellers to the purchasers in August, 1989, no share in the property could have thereafter devolved on Com.G.D. Krishnan father of the plaintiffs.

It is pertinent to state that the present suit for possession has been filed by the legal heirs of Shri Nirmal Krishnan after nine years of her death. The plaintiff have no locus standi to file the present suit as all rights, title and interest had been transferred by their predecessor in interest to the answering defendants. That the said action against the answering defendants was neither instituted by Smt.Nirmal Krishan during her lifetime nor has been brought about by the other two surviving sellers namely Sanjeev Sethi and

Rajiv Luthra. In fact, no dispute was also raised by Com.G.D. Krishnan husband of Smt.Nirmal Krishnan during his lifetime. Com.G.D. Krishan father of the plaintiff as per the case of the plaintiffs is said to have inherited the share of Smt.Nirmal Krishan after her death, yet neither did any of the original sellers nor Shri GD Krishan raise any dispute regarding the right, title or interests of the purchasers as appropriate sale consideration having paid to the sellers, the property stood transferred to the answering defendants. It is pertinent to state that Com.G.D. Krishan expired on 19.9.1998 only a eleven months prior to filing of the present suit.

9. The suit property having been sold to the answering defendants with possession being delivered and a general power of attorney having been executed on 3.8.89 giving absolute powers to the said defendants........"

14. The written statement has to be read and construed as a composite documents and an isolated line out of contest in which it is written cannot be treated as an admission (See 2006 V AD (Delhi) 667 DB).

15. It is not in dispute that payments have been made to the tenants by cheque. It is also not in dispute that tenants handed over possession to the defendants as far back from the year 1989 till the date of filing of the present suit i.e. in the year 2008. There was no protest on the part of the plaintiffs as to why tenants had handed over possession to the defendants nor any steps were taken by the plaintiffs to safeguard their rights.

16. I have also carefully perused the General Power of Attorney, which has been placed on record, which would prima facie show that wide and extensive powers have been given to the defendants and plaintiffs had for all intents and purposes severed all their rights with respect to the suit property. The powers include the right to reconstruct and right to sell. Prima facie reading of the General Power of Attorney would show that the entire sale consideration has been paid or else no ordinary prudent man would execute such a Power of Attorney. This is also to be

considered in the light of the fact that plaintiffs considered it appropriate to hand over possession of the suit property to the defendants and in case less than 50% of the amount has been received by them there would have been no occasion either to have executed such a Power of Attorney with such sweeping powers or to put the defendants in possession of the suit property. There is also no explanation much less a reasonable explanation as to why the plaintiffs allowed the defendants to take possession of the property from the tenants in case the sale consideration was not paid. It has also not been explained as to why during the life time of the original sellers no action was initiated by them or the plaintiffs as according to the plaintiffs more than 50% of the sale consideration was not paid to them. Applying the law laid down by the Apex Court to the facts of this case and having regard to the stand taken by the defendants in the written statement it cannot be said that defendants have admitted that they have not paid the entire sale consideration to the plaintiffs. It is also not in dispute that besides payments to the tenants, all of which fortunately have been paid by means of cheques, the defendants have also paid a sum of Rs.8.23 lakhs to L&DO to enable L&DO to withdraw the notice of re-entry. The judgment, sought to be relied upon by learned senior counsel for the plaintiffs in the case of FGP Limited (supra), is not applicable to the facts of the present case as in the present matter as per the defendants the entire sale consideration stands paid by them. The question, whether the defendants were authorized to make the payments or not, can only be decided on the basis of evidence.

17. Although bare reading of the Order XII Rule 6 CPC would show that wide power has been vested with the court in passing a decree under the said provision, however, the Court must satisfy itself that the admission

made must be clear, unambiguous, unconditional and unequivocal. It is also a settled principle of civil jurisprudence that judgment on admission is not a matter of right rather a matter of discretion of Court. The court must further consider that if the case involves complicated questions, which cannot be conveniently decided on a bare application, the Court must decline to exercise the discretion vested with it as objections raised by defendants can go to the very root of the matter and which would require evidence, such serious questions of law and fact cannot be decided by an application under Order XII Rule 6 CPC.

18. In the present case, this Court is not satisfied that there is either any clear unequivocal admission on the part of the defendants, which would entitle plaintiffs the benefit under Order XII Rule 6 CPC. Accordingly, present application is without any merit and the same is dismissed.

19. Needless to say that any observations made in this order are only for the purpose of deciding this application and the same would have no bearing on the merits of the matter.

CS (OS) NO.2162/2008.

20. Learned counsel for the parties seek an adjournment. Despite the matter pending since the year 2008 issues have not been framed.

21. List the matter before Court on 6.3.2012 for framing of issues. Parties will bring suggested issues to Court on the next date of hearing. I.A.NO.5133/2002.

22. At request of learned counsel for the defendants no.1-6, adjourned to 6.3.2012.

G.S.SISTANI, J NOVEMBER 08, 2011 msr