Sanjay Gupta vs Ram Prasad
2012 Latest Caselaw 2675 Del

$~24
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS (OS) NO. 2377/1995
                                        Decided on: 24th April, 2012
       SANJAY GUPTA                                    ..... Plaintiff
                          Through       : Mr. Manish Vashisht and
                                        Mr. Dhruv Rohatgi, Advs.

                    Versus

       RAM PRASAD                                    ..... Defendant
                          Through       : Mr. A.K. Gupta, Adv.

Coram:

HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J. (ORAL)

1. Plaintiff has filed this suit for Specific Performance of

Agreement to Sell dated 25th May, 1992, damages and injunction.

2. In nutshell, case of the plaintiff is that defendant had agreed

to sell his 1/6th undivided share in the agricultural land

admeasuring 55 bighas 5 biswas forming part of Village Bijwasan,

vide an Agreement to Sell dated 25th May, 1992 (hereinafter " the

Agreement"), for a total sale consideration of `23 lacs. Defendant

received a sum of `2,50,000/- (Rupees Two Lacs Fifty Thousand

Only), that is, `10,000/- (Rupees Ten Thousand Only) in cash and

`2,40,000/- (Rupees Two Lacs Forty Thousand Only) vide cheque

no. 890599 dated 25th May, 1992 towards earnest money, at the

time of execution of the Agreement. Subsequently, on 30th April,

1992, another sum of `40,000/- (Rupees Forty Thousand Only)

was paid to the defendant‟s son Mr. Daya Chand against receipt,

leaving behind a balance of `20,10,000/- (Rupees Twenty Lacs

Ten Thousand Only) towards sale consideration, payable at the

time of execution of Sale Deed. In terms of the Agreement,

defendant was required to obtain necessary „No Objection

Certificate‟ under Section 269-UL of the Income Tax Act

(hereinafter referred to as "Act") from the Appropriate Authority;

„Clearance Certificate‟ under Section 34-A of the Act from the

Income Tax authority and requisite „No Objection Certificate‟ from

the office of ADM. „No Objection Certificate‟ under Section 269-

UL of the Act was granted by the Appropriate/Competent

Authority on 13th July, 1992. On persistent request of the plaintiff,

defendant also obtained „Clearance Certificate‟ under the Act, on

23rd December 1994. However, he did not take any step to obtain

„No Objection Certificate‟ from the ADM‟s office. On persuasion

of the plaintiff, defendant represented that in case plaintiff was

interested in completion of sale transaction he may pursue the

matter and obtain „No Objection Certificate‟ from the ADM‟s

office himself. Accordingly, plaintiff obtained „No Objection

Certificate‟ from the said authority on 29th November, 1994.

Thereafter, plaintiff repeatedly requested the defendant to execute

Sale Deed and get the same registered with Sub-Registrar, after

receiving balance sale consideration. He also requested the

defendant to hand over vacant possession of the suit land to

plaintiff, after executing the Sale Deed. However, defendant did

not come forward to execute the Sale Deed, as prices of the

property had gone up astronomically. Vide legal notice dated 12th

May, 1995, defendant was called upon to perform his part of

contract and to get the Sale Deed registered with Sub-Registrar‟s

office after receiving balance sale consideration and also to hand

over the vacant possession of the land to plaintiff but to no effect.

Plaintiff was always ready and willing to perform his part of

contract by paying balance sale consideration to defendant, on

execution of Sale Deed. But it is the defendant who was not ready

and willing to execute the Sale Deed. Hence the suit.

3. In the written statement, defendant has not denied his

signatures on the Agreement. His case is that the plaintiff had

approached him for the purchase of his share in the land in

question. It is the plaintiff who got the Agreement prepared, which

was signed by the defendant. Defendant was an illiterate and

uneducated agriculturist aged about 86 years and was not well-

versed either with English or Hindi language. The Agreement was

not read over to defendant by the plaintiff before he appended his

signatures thereon. Plaintiff had obtained the signatures of

defendant on certain other blank papers also on the pretext of

making various applications before the concerned Government

authorities, seeking necessary clearances. No Objection/Clearance

Certificates had been obtained by the plaintiff. Defendant was

always ready and willing to perform his part of agreement, but it is

the plaintiff who failed to obtain requisite sale permissions from

the Appropriate/ Competent Authorities, within the stipulated time.

Plaintiff slept over the matter for more than three years, thus, was

estopped from claiming any relief because of his own conduct.

Agreement to Sell dated 25th May, 1992 was, otherwise,

unenforceable as the defendant has transferred his share in land to

one Sh. B.S. Mehra in the month of December, 1994 for valuable

consideration. It was alleged that the suit is hopelessly barred by

time. It was further alleged that the sale consideration of `23 lacs

was only with regard to the land and not for the two tube-wells for

which defendant had agreed to pay ` 1 lac each separately.

Defendant has denied that he had received `2,90,000/- (Rupees

Two Lacs and Ninety Thousand Only) from the plaintiff.

Defendant further denied the allegation of the plaintiff that his son

had received `40,000/- towards part sale consideration. Defendant

has denied that the plaintiff had approached him from time to time

for obtaining clearance from the Income Tax Authority or from

ADM‟s office. It was alleged that plaintiff had never contacted the

defendant in this regard as he had already obtained the signatures

of defendant on certain blank documents for this purpose. It was

denied that plaintiff was always ready and willing to perform his

part of contract by paying the balance sale consideration.

4. Plaintiff has filed replication, whereby he has denied the

averments made in the written statement and has reiterated and

reaffirmed the averments made in the plaint.

5. From the pleadings of the parties following issues were

framed on 17th May, 2006:-

             1      Is the suit barred by time?

             2      Did the original defendant sign an
             Agreement to Sell on 25.5.1992 without
             knowing contents of the document? If so, to
             what effect?

             3      Has the plaintiff always been ready
             and willing to perform his part of the
             contract?

             4      Is the plaintiff entitled to decree of
             Specific Performance of agreement dated
             25.5.1992?

             5       To what relief, if any, is the plaintiff
             entitled?

6. Plaintiff has filed his own affidavit. However, he has not

stepped in the witness box for his cross-examination inspite of

umpteen number of opportunities having been granted to him

between 17th May, 2006 till 27th November, 2010. Ultimately,

plaintiff‟s evidence was closed on 27th November, 2010. Plaintiff

filed Chamber Appeal under Rule 4 of Chapter II of Delhi High

Court (Original Side) Rules, 1967 being OA No. 96/2010 against

the order of Joint Registrar whereby plaintiff‟s evidence was

closed. However, O.A. No. 96/2010 was dismissed on 6th

September, 2011. Plaintiff further pursued the matter by filing

FAO (OS) No. 490/2011 before the Division Bench. However,

after arguing at length before the Division Bench plaintiff has

withdrawn the Appeal. Since the plaintiff has not stepped in the

witness box for his cross-examination, his affidavit in examination-

in-chief cannot be read and it has to be taken that plaintiff has not

led any evidence in support of his case.

7. I have heard learned counsel for the parties and perused the

record and issuewise findings are as under:-

8. Onus to prove above issues was on the defendant, which he

has failed to discharge. Since plaintiff did not adduce any

evidence, defendant has also not examined any witnesses in his

defence. Counsel for the defendant made a statement before the

Joint Registrar on 7th December, 2011 to the effect that since

plaintiff had not led any evidence, defendant was also not

interested in adducing any evidence. Both these issues have

remained unproved and are decided in favour of the plaintiff and

against the defendant.

9. Both these issues require common discussions, thus, are

decided together. Learned counsel for the plaintiff has vehemently

contended that the signatures on the Agreement have not been

disputed by the defendant. The only plea taken by the defendant

was that he had signed the Agreement merely on the saying of

plaintiff, without understanding the contents of the Agreement, as

he was an illiterate and uneducated person and was not well-versed

with English or Hindi language. Thus, the same was not binding

on him. However, defendant has not led any evidence to prove his

this defence. Signatures on the Agreement to Sell have been

admitted by him. Thus, Agreement to Sell has to be read against

the plaintiff even without any formal proof. This document is not

required to be proved by the plaintiff since defendant has admitted

his signatures on the Agreement to Sell and has failed to prove

defence taken by him. Thus, it is contended that the plaintiff is

entitled to a decree of specific performance straightway.

10. I have considered this contention of the learned counsel but I

do not find any force therein. Before relief of specific performance

can be granted, which otherwise is a discretionary relief, plaintiff

has to prove that he was ready and willing to perform his part of

contract, more particularly, by offering the balance sale

consideration. It is for the plaintiff to prove that he was having

sufficient funds with him equivalent to the balance sale

consideration to offer the same to the defendant as also the fact that

he was in a position to perform any other obligation which he was

to perform under the contract. The words "ready" and "willing"

imply that the person was prepared to carry out the terms of the

agreement. Distinction between "readiness" and "willingness" is

that the former refers to financial capacity and the latter to the

conduct of the plaintiff wanting performance. Generally, readiness

is backed by willingness. Section 16(c) of the Act envisages that

plaintiff must plead and prove that he had 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 those terms

the performance of which has been prevented or waived by the

defendant. The continuous readiness and willingness on the part of

the plaintiff is a condition precedent to grant the relief of specific

performance. This circumstance is material and relevant and is

required to be considered by the court while granting or refusing to

grant the relief. If the plaintiff fails to either aver or prove the

same, he must fail. To adjudge whether the plaintiff is ready and

willing to perform his part of the contract, the court must take into

consideration the conduct of the plaintiff prior and subsequent to

the filing of the suit along with other attending circumstances. The

amount of consideration which he has to pay to the defendant must

of necessity be proved to be available. Right from the date of the

execution till date of the decree he must prove that he is ready and

has always been willing to perform his part of the contract.

11. In P. D‟Souza v. Shondrilo Naidu (2004) 6 SCC 649,

Supreme Court held that it is indisputable that in a suit for specific

performance of contract the plaintiff must establish his readiness

and willingness to perform his part of contract. The question as to

whether the onus was discharged by the plaintiff or not will depend

upon the facts and circumstance of each case. No strait-jacket

formula can be laid down in this behalf. The readiness and

willingness on the part of the plaintiff to perform his part of

contract would also depend upon the question as to whether the

defendant did everything which was required of him to be done in

terms of the agreement for sale. In R.C. Chandiok and Anr. vs.

Chuni Lal Sabharwal and Ors. (1970) 3 SCC 140, Supreme Court

held that "readiness and willingness" cannot be treated as a strait-

jacket formula. This has to be determined from the entirety of the

facts and circumstances relevant to the intention and conduct of the

party concerned.

12. In this case, onus to prove that plaintiff was ready and

willing to perform his part of contract was on the plaintiff, which

he has failed to discharge. No evidence has been adduced by the

plaintiff to show that he was having the payment ready with him

and was always ready and willing to perform his part of contract.

He has neither stepped in the witness box to depose that he had

contacted the defendant on many occasions and offered to pay the

balance sale consideration nor any evidence has been led to show

that he was having balance sale consideration ready with him and

he offered the same to defendant. In absence of any evidence

having been adduced by the plaintiff that he was ready and willing

to perform his part of contract, in my view, plaintiff is not entitled

to a decree of specific performance merely because existence of

Agreement to Sell is not in dispute.

13. Plaintiff has also failed to prove that he is entitled to the

damages as claimed in the suit, thus, both the above issues are

decided against the plaintiff.

Issue no. 5

14. In view of the findings returned on issue nos. 3 and 4, in my

view, plaintiff is not entitled to any relief.

15. Suit is, thus, dismissed. No order as to costs.

A.K. PATHAK, J.

APRIL 24, 2012 rb