Delhi High Court

Narender Singh Bhullar vs Inder Singh on 3 April, 2013

Author: Manmohan

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 2007/2011

       NARENDER SINGH BHULLAR                     ..... Plaintiff
                    Through                       Mr. Manjeet Singh Bhamra
                                                  with Ms. Nidhi Gupta,
                                                  Advocates
                            versus

       INDER SINGH                         ..... Defendant
                            Through        Ch. Ranjit Singh, Advocate


%                                    Date of Decision: 3rd April, 2013

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                                JUDGMENT

MANMOHAN, J: (Oral)

I.A. 13047/2011 in CS(OS) 2007/2011 [U/o. 39 Rules 1 & 2 CPC]

1. Present suit has been filed for specific performance of contract/agreement and permanent injunction.

2. Learned counsel for the plaintiff states that parties executed an Agreement to Sell dated 21st February, 2011 by virtue of which defendant agreed to sell 114 sq. yrds. of plot bearing No. B-1458, Shashtri Nagar, Delhi admeasuring 200 sq. yrds. (approx.). He further states that Rs.5,00,000/- out of the total consideration of Rs. 2,20,00,000/- was

admittedly paid by cash at the time of execution of Agreement to Sell.

3. The relevant para of the Agreement to Sell is reproduced hereinbelow:-

"The Bayana of which is Rs.5,00,000/- (Five Lakh Rupees only), the half of which comes to Rs.2,50,000/- (Two Lakhs Fifty Thousand Only) which I had received in cash. The Registry/Power of Attorney of the said property should be transferred by 30 June 2011 and if the house is not transferred in his name by purchaser in time then the amount of Bayana shall be forfeited and if the seller does not transfers the property in time then the purchaser shall have the right to get double the amount of bayana which has to be paid by the seller. The house tax, electricity charges, sewerage charges, water bill & all liabilities till the date of transfer of property by Registry/Power of Attorney shall be the responsibility of seller. The buyer has the right to get the paper of property in anyone's name. The previous title documents & vacant possession shall be handed over, Agreement is executed with full senses & consent and in case of need/time both the parties have full right & authority to sale and purchase and I take the responsibility on behalf of my family. In case of any impediment I shall be solely responsible. In case the buyer wishes to sell the property to someone even on bayana, I shall have no objection to the same."

4. Learned counsel for the plaintiff has also drawn this Court's attention to the Note executed by the parties at the back of the original Agreement to Sell, which reads as under:-

"NOTE: Purchaser has paid to the seller Rs. 3,00000/- (Rupees Three Lakhs Only) cash and Rs. 2,00000/- (Rupees Two Lakhs Only) by way of cheque No. 618853 drawn on PNB, Shastri Nagar Branch. Total Bayana as on 21.02.2011 is Rs. 5,00,000/- (Rupees Five Lakhs Only) out of total consideration. One shop in portion of 30 x 32 is in possession of Sh. Bharat Bhushan, Tenant and the sum payable to the tenant for vacating the premises shall be deducted from the balance consideration. This had been read over and heard by both the parties and they have no objection to the same - Site plan of the property has been prepared. One son of Sh. Inder Singh is residing in German whose responsibility shall be that of Inder Singh and his family. Daughter is also one witness."

5. According to learned counsel for the plaintiff the defendant was to get the property vacated from the existing tenant and as the defendant failed to do so, the plaintiff was constrained to file the present suit.

6. On the other hand, learned counsel for defendant states that it was the plaintiff who was to get the tenant evicted. He further states that plaintiff was not ready and willing to make payment of the balance sale consideration within the stipulated period.

7. Learned counsel for defendant relies upon the plaintiff's legal notice dated 24th June, 2011 to contend that the plaintiff as a condition precedent to make any further payment insisted upon receipt of certain documents which to the plaintiff's knowledge could not have been within the possession of the defendant. He further states that the documents asked for by the plaintiff in the legal notice are not even referred to in the Agreement to Sell. The relevant portion of the legal notice is reproduced hereinbelow:-

"4. That at the time of entering into the said agreement you agreed to provide the following documents to my client.

i. NOC from Tehsildar Notification ii. House tax clearance (No due certificate) iii. Electricity no dues certificate/NOC.

iv. Water NOC/No due certificate.

v. Sanctioned plan from the MCD with regard to the above said property.

vi. Certified copies of all relevant documents of the title documents of the said property.

xxxx xxxx xxxx xxxx

6. That my client is ready and willing to perform his part of contract.

I, therefore, by means of the present demand notice call upon you the address to come forward and handover the above said documents of the above said property to my client and also execute

the sale deed i.e. sale deed after receiving the documents of the said property from the date of receipt of this notice immediately."

8. Learned counsel for the defendant lastly submits that there is no covenant in the Agreement to Sell which entitles the plaintiff to file a suit for specific performance. In this connection, he relies upon the judgment of this Court in Ashok Aggarwal Vs. Bhagwan Das Arora, AIR 2001 DELHI 107 wherein it has been held as under:-

"7. Taking note of the stipulation extracted above of the agreement dated 30th June 1989, said ratio in Dadarao's case (1999 AIR SCW 4818) (supra) applies on all fours to this case. Thus I am inclined to agree with the submission advanced on behalf of defendant that remedy available to the plaintiff was to claim double the amount of earnest money from the defendant instead of seeking relief of specific performance of the said agreement. Issue is answered in favour of the defendant and against the plaintiff."

9. Having heard learned counsel for parties and having perused the papers this Court is of the view that plaintiff was never ready and willing to perform his part of the contract inasmuch as the documents he sought from the defendant vide legal notice dated 24th June, 2011 as a condition precedent before making any further payment were neither referred to in the Agreement to Sell nor could be in possession of the defendant to the knowledge of the plaintiff as the plaintiff is a property broker and the suit property is admittedly situated in an unauthorized colony.

10. Further, though in the Agreement to Sell, no specific onus had been cast upon either of the parties to get the tenant evicted, yet upon reading a entire Agreement to Sell as well as the Note appended thereto, this Court is of the view that the onus was on the plaintiff to get the tenant evicted. This Court is also of the view that any ambiguity or vagueness in the Agreement

to Sell has to be read against the plaintiff as admittedly, Agreement to Sell and the Note had been prepared at the instance of the plaintiff.

11. In fact, upon a reading of the entire Agreement to Sell and Note this Court is of the view that the said documents had been executed by the plaintiff only to gain a foothold in the suit property with an intent to block its future sale.

12. Further, in the absence of a specific clause in the Agreement to Sell to seek its specific enforcement, this Court is of the view that the present suit is not maintainable. The Agreement to Sell only stipulates that in the event the seller does not transfer the property in time, the purchaser shall have the right to claim double the amount of bayana as compensation. The Supreme Court in Dadarao & Anr. Vs. Ramrao & Ors., IX (1999) SLT 240 has held as under:-

"7. If the agreement had not stipulated as to what is to happen in the event of the sale not going through, then perhaps the plaintiff could have asked the court for a decree of specific performance but here the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs. 1,000 plus pay Rs. 500 in addition thereto. There was thus no obligation on Balwantrao to complete the sale transaction."

13. Consequently, even if the defendant has breached the Agreement to Sell, the plaintiff at the highest can sue the defendant only for double the amount of bayana as compensation.

14. Accordingly, the injunction order dated 17th August, 2011 is vacated and it is clarified that even lis pendens shall not apply to the present proceedings.

CS(OS) 2007/2011 In view of the order passed today in I.A. 13047/2011, following preliminary issues are framed:-

1. Whether present suit for specific performance of the Agreement to Sell dated 21st February, 2011 is maintainable in view of the specific term in the Agreement to Sell that in the event the Seller does not transfer the property in time, then the Purchaser shall have right to claim double the amount of bayana as compensation? OPP