T.R. Bhagat vs Smt.Ranjit Kaur & Ors.
2012 Latest Caselaw 4292 Del

$~A-16
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision : July 20, 2012

+                          RFA(OS) 65/2012

       T.R. BHAGAT                              ..... Appellant
                 Represented by: Mr.A.K.Nigam, Senior Advocate
                                 instructed by Mr.Rajeev Saxena
                                 and Mr.Rohan Ahuja,
                                 Advocates.

                           versus

       SMT.RANJIT KAUR & ORS.                          ....Respondents
                 Represented by: Nemo.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH


PRADEEP NANDRAJOG, J. (ORAL)

CM No.12213/2012 Allowed subject to just exceptions.

CM No.12212/2012 Allowed.

RFA(OS) No.64/2012

1. Suit record has been summoned and perused. Appellant was the plaintiff and had sought specific performance of an agreement dated June 26, 2007; and in respect of the consideration to be paid by the plaintiff to the defendants, as per prayer clause (a) it was stated : Upon receipt of the balance amount as to be negotiated as a first option to be given to the plaintiff.

2. At the outset, learned senior counsel for the appellant concedes that the agreement in question does not

record the sale consideration.

3. 13 persons were impleaded as defendants in the suit, of whom only 9 i.e. defendants No.1 to 9 were stated to be the co-owners of the suit property bearing Municipal No.C- 352 Defence Colony, New Delhi.

4. The agreement/memorandum on which claim was predicated in the suit has been executed between the appellant and one Probjot Singh S/o late Sardar Gurbachan Singh and as per the plaint defendants No.1 to 9 were the joint owners of the property along with late Shri Probjot Singh. The memorandum in question reads as under:-

"MEMORANDUM OF UNDERSTANDING

THIS MEMORANDUM OF UNDERSTANDING is executed on this 26th June, 2007 BETWEEN Mr.PROBJOT SINGH son of late Sardar Gurbachan Singh, resident of 65, Prtapaditya Road, Kolkata 700 026, herein after called the "LESSOR" (which expression shall include his heirs, successors, legal representatives) of the ONE PART AND SHRI TILAK RAJ BHAGAT on M/s.Lennarts India, 14, C.S.C. Building, Sheikh Sarai, Phase-II, New Delhi- 110 017, hereinafter called the „LESSEE‟ of the OTHER PART.

That the Lessee is in occupation of the entire ground floor flat of House No.C-352, Defence Colony, New Delhi-110 024, since 1978.

That the lease with regard to the above premises had been extended from time to time. However, in the meanwhile the Lessee has paid an amount of `8,00,000/- (Rupees eight lakh) only to the daughter of Lessor which amount has been agreed between the parties to be considered as an advance against the said property No.C-352, Defence Colony, New Delhi 110 024, in which regard the Lessor has already discussed the matter through his brother Mr.G.S.Sondhi in Delhi.

That the Lessor has accepted the said amount of `8,00,000/- (Rupees two (sic) lakh) only as an advance against the sale of the property adjustable at the time of the execution of the sale deed as there had been serious family problems in the family of the Lessor pertaining to properties in Delhi, Kolkata and Noida and to keep the Lessee safe and secured the Lessor has already issued a letter of confirmation to the Lessee.

That however, till such time as the issues within the members of the family of the lessor are settled and the sale of the property is finalized with the Lessee, who shall have first preference in this regard. It is agreed between the parties that the Lessee shall continue his use, occupation and possession of the entire ground floor consisting of two bed rooms, two bath rooms, drawing cum dining room, kitchen, garage and one servant quarters along with front lawn and back court yards for a fixed period of 3 (three) years commencing from 01st July, 2007 to 30th June, 2010 at a rent of `3,000/- (Rupees three thousand) only per month which shall be paid by him till the time of execution of the necessary sale for the maintenance and upkeep of the premises and the interest on he said amount of `8,00,000/- (Rupees eight lakh) only shall be worked out and adjusted at the time of execution of the sale deed. It is agreed between the parties that:

1. The Lessee shall pay to the Lessor for the premises the agreed rent of `3,000/- (Rupees three thousand) only per month in advance before the 05th of each calendar month. The Lessee shall also pay `500/- (Rupees five hundred) only as miscellaneous charges as is being paid earlier since 1999.

2. That the lease has been granted for a fixed period of 3 (Three) years commencing from 01 st July, 2007 to 30th June, 2010 at a rent of `3,000/- (Rupees three thousand) only per month plus Misc. charges of `500/- as usual.

3. That the Lessee shall pay the electricity charges according to the meter reading direct to the authority concerned.

4. That the Lessee shall use the demised premises for residential purpose only and not to use the demised premises as Godown or for any commercial purpose or any other purposes, which goes against the Rules and Regulations of Municipal Corporation, Delhi, Defence Colony Welfare Association and L&DO. In case the Lessee uses the demised premises for any other purpose than residential, legal action would be taken and the Lease Agreement will be terminated.

5. That the Lessee shall maintain the lawn at his own cost.

6. That the Lessee shall use the demised premises for residential purpose only.

7. That the lessee shall not sublet the demised premises without the prior written consent of the Lessor.

8. That the lessee shall be responsible to pay any breakages, damages done to the sanitary, electrical and other fittings during the tenancy period.

9. That the Lessee shall not carry out any additions, alterations in relation to the demised premises, building layout, fittings and fixtures without the written consent of the Lessor.

10. That the Lessee shall permit the Agents of Lessor to enter the demised premises for inspection and carry out the repairs etc. at reasonable time as and when necessary.

11. That the Lessor shall pay all the taxes whatsoever in relation to the demised premises.

12. That day to day repairs such as fuses, leakages and water taps have to be done by the

Lessee at his own cost but in case of any major repairs of the demised premises which shall be attended by the Lessor at his own cost.

13. That the Lessor shall do the painting, polishing, distempering of the demised premises during the period of tenancy commencing from 01st July, 2007 to 30th June, 2010 as and when necessary.

14. That before the expiry of the lease period, the parties shall, if the family disputes of the lessor gets sorted out, execute necessary Sale Deed, however, in case the negotiations shall fail, the Lessee shall be entitled to specific performance of the agreement of sale or seek refund of the amount paid as advance along with interest as prevailing at the relevant time and shall then deliver the vacant possession of the demised premises with all the fittings and fixtures intact.

15. The Lessee shall not make major repairs at his own cost to the demised premises without the prior written permission of the Lessor.

16. That the Lessor and the Lessee represent and warrant that they are fully empowered and authorizes and able to make this lease.

IN WITNESS WHEREOF the Lessor and the Lessee have hereunder subscribed their respective signatures on this the day, month and year first above written in presence of witness."

5. Holding that the pleadings in the plaint and the document in question would not entitle the appellant to seek specific performance requiring the respondent/defendant to sell the suit property, the learned Single Judge has held that no sale consideration has been specified; no time has been fixed for completing the sale and lastly shares of the successor-in- interest of late Sardar Gurbachan Singh have not been specified.

6. Learned senior counsel for the appellant concedes that late Sardar Gurbachan Singh was the owner of the suit property and upon his death his children, one of whom was Probjot Singh would inherit the property, if Sardar Gurbachan Singh died intestate. Thus, apart from the three reasons given by the learned Single Judge it is apparent that all co-owners of the property not having agreed to sell the same to the appellant, no action could be founded against them on the strength of the document in question which was executed only by Probjot Singh. As regards a plea that decree for specific performance could be passed against Probjot Singh with respect to his share in the property, the answer would be that in said circumstance the sale consideration not being agreed between the parties would render the document lacking as an agreement to sell between Probjot Singh and the appellant.

7. There appears to be too much money floating in the market, notwithstanding the health of the economy not being too good. A perusal of the memorandum would reveal that Probjot‟s daughter had taken `8 lakhs from the appellant and Probjot told the appellant that since there was a serious family problem amongst the heirs of Sardar Gurbachan Singh, the issue pertaining to the sale would be sorted out by him and in the meanwhile the appellant should treat `8 lakhs received by Probjot‟s daughter as part sale consideration. The language in the document : „Till such time as the issues within the members of the family of the Lessor are settled and the sale of the property is finalized ..........‟ clearly bring out that Probjot and the appellant clearly understood that the document in question was in the nature of an agreement to enter into an agreement and not an agreement.

8. It is settled law that an agreement to enter into an

agreement cannot be specifically enforced. It is apparent that the appellant was fishing in troubled waters and had a fish in the eye, but unfortunately the net cast by the appellant i.e. the memorandum in question has gaps from which the fish has escaped.

9. A feeble attempt is made to urge that Probjot was the Karta of the HUF and thus he could act on behalf of the HUF and bind the HUF.

10. The memorandum in question does not record that Probjot was acting as the Karta of any HUF. In the plaint, refer paragraph 2, it is pleaded that defendants No.1 to 9 are the joint owners of the suit property along with late Shri Probjot Singh, being the legal heirs of late Shri Gurbachan Singh. It is then pleaded that Probjot Singh negotiated for a sale of the suit property and received `8 lakhs. It is only in paragraph 15 that it is pleaded that Probjot Singh was the Karta of the HUF. It is a vague plea. Probjot Singh could not be the Karta of any HUF of which his brothers were members unless it was pleaded that the HUF in question was constituted by late Shri Gurbachan Singh and being the eldest son, Probjot Singh became the Karta of the said HUF. Further, it is settled law that if there are adult male co-parceners, unless the sale of HUF property is arising out of a necessity, the Karta cannot sell HUF property. There are no averments of there being any necessity to sell the HUF property.

11. The learned Single Judge has rightly held that the plaint is required to be rejected as not disclosing any cause of action.

12. Learned senior counsel, clutching to the straws, urges that at least qua `8 lakhs paid under the memorandum, a document which is void on account of uncertainty, the suit

should have proceeded.

13. Now, no prayer in the alternative was made. If it is the case of the appellant that the appellant is entitled to return of `8 lakhs since the memorandum is void, there have to be pleadings to said effect and the defendants in the suit have to be only the legal heirs of Probjot and none else. The appellant has not pleaded any case in the alternative.

14. The appeal is accordingly dismissed in limine and hence there shall be no order as to costs. CM No.12211/2012 Since the appeal as well as the suit is dismissed, instant application seeking permission for filing additional documents in the suit (not in the appeal), is dismissed as infructuous. CM No.12210/2012 Since the appeal stands disposed of, instant application seeking stay of the impugned order stands disposed of as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE JULY 20, 2012 dk