Nitin Arora vs Yashoda Nand Sharma & Others
2011 Latest Caselaw 4576 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Pronounced on: 16.09.2011

+ CS(OS) 2528/2008

NITIN ARORA                                    ..... Plaintiff
                      Through: Mr. Manish Vashisht &
                      Mr. Sameer Vashisht, Advs.

                      versus


YASHODA NAND SHARMA & OTHERS ..... Defendants
             Through: Mr. U. Hazarika, Sr. Adv. with
             Mr. Rahul Pratap, Adv.

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
   in Digest?                                               No

V.K. JAIN, J. (ORAL)

IA 14338/2011 (u/S. 5 of Limitation Act for condonation of delay in depositing Bank Guarantee)

1. Vide order dated 31st March 2011, the plaintiff

undertook to deposit the balance amount of Rs.3.75 Crore

by way of an FDR or furnish a bank guarantee in the name

of the Registrar General of this Court within two weeks.

Vide order dated 30th May 2011, the time to furnish the

bank guarantee was extended till 5th July 2011. In terms of

the aforesaid orders, the plaintiff furnished bank guarantee

of Rs.3 Crore. A cheque of Rs.75 Lacs was tendered for the

balance amount of Rs.75 Lacs. The cheque, however, was

returned by the Registry which wanted either FDR or bank

guarantee. The plaintiff has accordingly filed bank

guarantee for the balance amount of Rs.75 Lacs as well on

25th August 2011. The time to file the bank guarantees in

terms of the order dated 31st March 2011 is extended till the

time the bank guarantee was actually filed.

The application stands disposed of.

CS(OS) 2528/2008 & IA 14318/2009 (u/O 12 R 6 CPC)

1. This is a suit for specific performance of Agreement

to Sell dated 8th January 2006 executed by the defendants

in favour of the plaintiff. Vide aforesaid agreement, the

defendants agreed to sell property No.K-1, Malviya Nagar,

New Delhi measuring 774.44 Sq. Yds. along with entire

constructions on it, to the plaintiff, for a consideration of

Rs.4,25,00,000/- (Rupees Four Crore Twenty Five Lacs).

The plaintiff made payment of Rs.50 Lacs to the defendants,

Rs.25 Lacs by cheque and Rs.25 Lacs in cash. The balance

payment was to be made at the time of handing over the

complete vacant physical possession to the plaintiff and

execution of proper Sale Deed or other requisite document

for conveying/transferring the property in favour of the

plaintiff or his nominee. It was also stipulated in the

agreement that if the vendee fails to execute the Sale Deed

within 30 days after getting the letter of mutation and

freehold from L&DO to the vendor, the earnest money shall

stand forfeited. The grievance of the plaintiff is that the

defendants have turned dishonest, were demanding

Rs.50Lacs over and above the agreed sale consideration and

have failed to complete the transaction despite legal notice

dated 23rd October 2007. The plaintiff has accordingly

sought specific performance of the Agreement to Sell dated

8th January 2006.

2. The defendants have failed written statement

contesting the suit. The execution of the agreement has not

been disputed in the written statement. It is also alleged

that there was no question of the conversion of the property

into freehold since the property was purchased on the basis

of a Sale Deed. As regards mutation, it is alleged that it is

not in the hand of the defendants and it is prerogative of the

government/department concerned. It has been admitted

that the plaintiff was to pay the balance amount at the time

of execution of the Sale Deed. According to the defendants

though they approached L&DO for mutation, that could not

be done since the files were not available with the

department.

3. Clause 2 and 7 of the Agreement to Sell dated 8 th

January 2006, which is an admitted document, are relevant

and read as under:-

2. That the balance amount of Rs.3,75,00,000/- (RUPEES THREE CRORE FIVE LAKH ONLY) shall be paid by the SECOND PARTY to the FIRST PARTY at the time of handing over the complete vacant physical possession of the said property to the SECOND PARTY and also at the time of execution of the proper sale deed or other requisite documents for conveying/transferring the said property in favour of the SECOND PARTY or their nominee, within 30 days, i.e. on or before ____________, subject to the following conditions:

a. The FIRST PARTY shall clear all dues and demands towards the house tax, electricity water bills, ground rent and all other charges in respect of the said property.

b. The FIRST PARTY shall apply and get converted the leasehold rights of the said property (plot of land) converted into freehold from the L&DO and all the expenses in this regard, such as conversion charges, stamp duty,

registration fee and incidental expenses etc. shall be borne and paid by the FIRST PARTY.

c. The FIRST PARTY shall apply and get the said property mutated in their joint names in the records of L&DO.

7. Let the SECOND PARTY shall be liable to execute this sale deed within the stipulated period of 30 days, after getting the letter of mutation and freehold from L&DO to the FIRST PARTY. The SECOND PARTY fails to register the sale deed in that case the advance/earnest money shall be forfeited without any notice.

4. It would thus be seen that as per the agreement

between the parties, the balance sale consideration of

Rs.3.75 Crore was to be paid to them only at the time of the

defendants executing the Sale Deed in favour of the plaintiff

and handing over possession of the property subject matter

of the agreement, to him. The plaintiff was under obligation

to obtain execution/registration of the Sale Deed within 30

days of the defendants obtaining mutation and conversion

of the property from lease hold to freehold.

5. The learned counsel for the defendants states that

though the defendants had applied for mutation, the

department took the stand that they had no document of

the property available in their record, which compelled the

defendants to file a writ petition against L&DO in this

regard. The writ petition is stated to be pending. Regarding

conversion of the property from leasehold to freehold, the

learned counsel for the defendants states that the

defendants were not sure whether the property was

leasehold or freehold and, therefore, they have not applied

for its conversion.

6. The learned counsel for the plaintiff states that the

plaintiff is ready and willing to obtain specific performance

of the agreement dated 8th January 2006 from the

defendants even without mutation in their name and

without conversion of the property from leasehold to

freehold. Hence, absence of the mutation and/or

conversion, therefore, cannot be a valid ground to resist the

suit.

7. Since the balance payment of Rs.3.75 Crore was to

be made only at the time of execution of the Sale Deed and

handing over possession to the plaintiff, and this is not the

case of the defendants that they had at any point of time

offered to execute the Sale Deed and/or hand over a

physical possession of the property to the plaintiff, the time

stipulated for making balance payment of Rs.3.75 Crore to

the defendants has not commenced as yet. The plaintiff,

however, is willing to make payment of the aforesaid

amount to the defendants without waiting for conversion

and mutation.

8. It has been alleged in para 18 of the plaint that the

plaintiff was always and is ready and willing to perform his

part of the contract. It is also alleged in para 12 of the

plaint that the defendants kept on seeking extension of time

on the premise that their application for conversion of the

leasehold to freehold was pending before L&DO and as soon

as the said work was done they would intimate the plaintiff

and execute Sale Deed in his favour. It is further alleged

that the plaintiff believed their representations and the

assurances and expressed his readiness and willingness to

get the Sale Deed executed in his favour by making payment

of the balance sale consideration. In para 15 of the plaint it

is alleged that the defendants expressed their willingness to

receive the balance amount of Rs.3.75 Crore and the

plaintiff assured them that he was equally keen to pay

them.

In their written statement, the defendants have not

claimed that the plaintiff was not ready and willing to

perform his part of the contract. There is no allegation in

the written statement that the plaintiff did not have

sufficient funds with him to make payment of the balance

sale consideration of Rs.3.75 Crore to them or that he was

not willing to purchase the property subject matter of the

agreement. A notice dated 23rd October 2007 was also

issued by the defendants to the plaintiff besides publishing

a notice in the newspaper on 27th October 2007. The

receipt of the legal notice has been admitted by the

defendants in the written statement and they also claimed

to have sent reply dated 25th July 2008. The legal notice

sent to the defendants as also the notice published in the

newspaper is yet another proof that the plaintiff was always

ready and willing to perform his part of the contract.

9. For the reasons given in the preceding paragraphs,

I find that the defendants have absolutely no defence to the

case setup in the plaint and have no valid ground to resist

specific performance of the Agreement to Sell executed by

them in favour of the plaintiff on 8 th January 2006. The

application is allowed and a decree for specific performance

of the Agreement to Sell dated 8th January 2006 as also for

possession of property No.K-1, Malviya Nagar, New Delhi is

hereby passed in favour of the plaintiff and against the

defendants, subject to the plaintiff depositing balance sale

consideration of Rs.3.75 Crore in the Court within four

weeks from today. On deposit of the aforesaid amount in

the Court, the plaintiff will be entitled to take back the bank

guarantee filed by him pursuant to interim order passed by

the Court. The defendants will execute the Sale Deed and

do all such acts, including signing of the documents

required by L&DO and other authorities, as may be

necessary for transfer of property No.K-1, Malviya Nagar,

New Delhi in the name of the plaintiff. The amount of

Rs.3.75 Crore will be released to the defendants on transfer

of title in favour of the plaintiff and delivery of possession to

him.

In the facts and circumstances of the case, there

shall be no order as to costs. Decree sheet be prepared

accordingly.

The suit and IA stand disposed of.

(V.K. JAIN) JUDGE SEPTEMBER 16, 2011 'sn'/Ag