Sh. Jaswant Singh vs Atma Singh
2013 Latest Caselaw 2896 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 10th July, 2013

+                          CS(OS) 1945/2006

       SH. JASWANT SINGH                                     ..... Plaintiff
                     Through:           Dr. R.S. Sasan and Mr. H.S. Sasan,
                                        Advocates.

                                   Versus
       ATMA SINGH                                            ..... Defendant
                           Through:     Mr. P.S. Mahendru, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1.

The plaintiff has sued for specific performance of the Agreement

dated 14th May, 2005 of sale of property No.J-3/37, Rajouri Garden, New

Delhi and for permanent injunction restraining the defendant from dealing

with the said property in contravention of the said Agreement, pleading:-

(i). that the defendant had vide Agreement to Sell dated 14th May,

2005 agreed to sell the property to the plaintiff for a total sale

consideration of Rs.30 lacs out of which Rs.6 lacs was paid as

earnest money at the time of execution of the Agreement to Sell

and another Rs.4 lacs was paid on the asking of the defendant

on 19th May, 2005;

(ii). that at the time of the agreement, a portion of the property

agreed to be sold was occupied by the two brothers of the

defendant who had in the year 1982 filed a suit with respect

thereto against the defendant and which was at the time of

Agreement to Sell still pending consideration;

(iii). that the said suit filed by the brothers of the defendant was

withdrawn on 1st August, 2005 by filing an application under

Order 23 Rule 3 of the CPC and the said brothers of the

defendant vacated the property and the defendant came into

possession of the entire property;

(iv). that the defendant however vide legal notice dated 22 nd August,

2005 revoked the Agreement to Sell;

(v). that upon the plaintiff approaching the defendant, the defendant

further demanded Rs.4 lacs which was paid by the plaintiff on

31st August, 2005 and the defendant waived the notice dated

22nd August, 2005;

(vi). that the plaintiff on 31 st August, 2005 also purchased non-

judicial stamp paper worth Rs.40,000/- for execution of the Sale

Deed;

(vii). that the plaintiff in anticipation of the Sale Deed to be executed

by the defendant in his favour, approached M/s. Janak

Properties property dealers/builders who proposed to build the

suit property; the said property dealer/builder asked the plaintiff

to bring the original documents before they undertook

construction and the plaintiff on 30 th October, 2005 took the

defendant with him to the said property dealer / builder and

handed over all the original documents as required by the

property dealer/ builder and the plaintiff, defendant and the said

property dealer / builder also signed a Memorandum of

Understanding (MoU) dated 30th October, 2005;

(viii). that the defendant however wanted the sale consideration to be

increased to Rs.50 lacs;

(ix). that the plaintiff applied for and obtained refund of the non-

judicial stamp papers on 7 th December, 2005;

(x). that upon the plaintiff again approaching the defendant the

defendant agreed to execute the documents provided he is paid

Rs.10 lacs and the said amount was paid on 26 th May, 2006 and

the defendant promised to execute the documents on 7 th August,

2006;

(xi). the defendant however failed to execute the documents; and,

(xii). that on 22nd September, 2006 the plaintiff received summons of

the suit for permanent injunction filed by the defendant in the

Court of the Civil Judge, Delhi to restrain the plaintiff from

dispossessing the defendant from the said property;

Hence this suit.

2. Summons of the suit and notice of the application for interim relief

were issued and vide ex parte ad interim order dated 13th October, 2006

which was subsequently confirmed the defendant was restrained from

creating any third party interest in the property.

3. The defendant has contested the suit by filing a written statement

pleading:-

(a). that the plaintiff failed to pay the balance sale consideration and

get the Sale Deed registered in terms of the Agreement dated

14th May, 2005 which was cancelled by the defendant through

Notice dated 22nd August, 2005 and to which no reply was

given by the plaintiff;

(b). that the plaintiff has paid advance sale consideration of Rs.6

lacs and Rs.4 lacs i.e. total Rs.10 lacs only and no payments as

alleged of Rs.4 lacs on 31st August, 2005 or of Rs.10 lacs on

26th May, 2006 were made by the plaintiff to the defendant;

(c). that one Shri Ashwani Suri (property dealer / builder) offered to

intervene between the parties for bringing about reconciliation

with a pre-condition that the parties deposit the original

documents in their respective possession with him; however no

compromise was arrived at though the original documents

continued to be in possession of Shri Ashwani Suri;

(d). that be that as it may, the MoU signed between the plaintiff,

defendant and the said Shri Ashwani Suri confirms that the

Agreement to Sell dated 14th May, 2005 stood revoked,

cancelled and annulled;

(e). that one Shri Jagmohan Singh had filed a civil suit in the year

2006 impleading the plaintiff and certain other family members

of the defendant as defendants thereto and pleading that the

plaintiff herein had agreed to sell the said property to him and

had delivered possession of the property to him and to restrain

the defendants in that suit from dispossessing the said Shri

Jagmohan Singh from the said property; that the defendant on

coming to know of the said suit applied for impleadment

therein but the said suit was withdrawn on 25 th May, 2006;

(f). that it was owing to the aforesaid suit that the defendant filed

the suit for permanent injunction in the Court of the Civil Judge

to restrain the plaintiff herein and the said Shri Jagmohan Singh

from interfering with the possession of the defendant of the

property; and,

(g). that the plaintiff has not been ready and willing to perform his

part of the Agreement;

4. The plaintiff has filed a replication denying that by the MoU dated

30th October, 2005 the Agreement dated 14 th May, 2005 stood revoked and

pleading that Shri Jagmohan Singh had entered into some arrangement with

the brothers of the defendant and had also paid consideration to the brothers

of the defendant and for this reason the plaintiff had to execute an

Agreement with Shri Jagmohan Singh to gain his trust and in fact Shri

Jagmohan Singh was delivered the possession of the portion earlier in

occupation of the brothers of the defendant but the defendant forcefully took

the said possession.

5. In the aforesaid state of pleadings, the following issues were framed

on 10th August, 2007:-

"1. Whether the plaintiff is entitled for decree of specific performance of the Agreement to Sell dated 14.5.2005 in respect of the property bearing No.J-3/37, Rajouri Garden, New Delhi? If so, on what terms and conditions? OPP

2. Whether the plaintiff is entitled for decree of permanent injunction against the defendants in respect of suit property bearing No.J-3/37, Rajouri Garden, New Delhi? OPP

3. Whether the suit has not been properly valued for purposes of court fee and jurisdiction? If so, to what effect? OPD

4. Whether the entire property was in possession of the plaintiff at the time of signing Memorandum of Understanding dated 30.10.2005? If so, to what effect? OPP

5. Whether the plaintiff has paid a sum of Rs.24,00,000/- in all towards the consideration for the Agreement to Sell dated 14.5.2005? OPP

6. Relief."

6. The plaintiff besides himself, has examined Shri Ashwani Suri and

two other witnesses. The defendant had examined himself only in support of

his defence.

7. My issues-wise findings are as under.

Re. Issue No.3 - Whether the suit has not been properly valued for purposes of court fee and jurisdiction? If so, to what effect? OPD

8. The counsel for the defendant had not addressed any arguments on

this issue. The suit is valued for the purposes of Court Fees and jurisdiction

for the relief of specific performance at Rs.30 lacs as per sale consideration

disclosed in the Agreement of which specific performance is claimed and for

the relief of permanent injunction at Rs.130/- and which valuation is found

to be in accordance with law and issues No.3 is accordingly decided in

favour of the plaintiff and against the defendant.

Re. Issue No.2 - Whether the plaintiff is entitled for decree of permanent injunction against the defendants in respect of suit property bearing No.J-3/37, Rajouri Garden, New Delhi? OPP

9. The said issue, in my opinion is redundant. If the plaintiff is found

entitled to a decree for specific performance, the defendant would be

required to convey the property to the plaintiff in accordance with the

Agreement dated 14 th May, 2005; however if the plaintiff is not found

entitled to the relief of specific performance, the plaintiff would not be

entitled to restrain the defendant from dealing with the property. During the

pendency of the suit, to protect the rights of the plaintiff, interim relief to the

said effect was granted. The issue is decided accordingly.

Re. Issue No.4 - Whether the entire property was in possession of the plaintiff at the time of signing Memorandum of Understanding dated 30.10.2005? If so, to what effect? OPP

10. I am unable to decipher the necessity of the said issue in as much as

the grant of the relief of specific performance is not dependent upon

possession at the time of MoU dated 30th October, 2005. At the time of filing

of the suit, admittedly the defendant was in possession and the plaintiff has

claimed specific performance inter alia by directing the defendant to deliver

possession of the property to the plaintiff. The said issue is also found to be

misconceived and is disposed of accordingly.

Re. Issue No.1 - Whether the plaintiff is entitled for decree of specific performance of the Agreement to Sell dated 14.5.2005 in respect of the property bearing No.J-3/37, Rajouri Garden, New Delhi? If so, on what terms and conditions? OPP;

and Re. Issue No.5 - Whether the plaintiff has paid a sum of Rs.24,00,000/- in all towards the consideration for the Agreement to Sell dated 14.5.2005? OPP

11. These issues being intertwined are taken up together.

12. The Agreement to Sell dated 14th May, 2005 proved as Ex.PW2/D

which is not in dispute, was for a total sale consideration of Rs.30 lacs and

out of which the plaintiff paid and the defendant received Rs.6 lacs as

earnest money and stipulated execution of Sale Deed by the defendant in

favour of the plaintiff "within 15 days" on receipt of balance sale

consideration amount of Rs.24 lacs and delivery of vacant possession of the

portion of the property then in possession of the defendant to the plaintiff.

The said Agreement in which the defendant is described as the first party

and/or in first tense and the plaintiff as the second party, also provides as

under:-

"That the first party is going for the bargain of property of area in his possession of J-3/37, first Party is not responsible for getting it vacated by other two occupant of J-3/37. I am not responsible for any settlement with other claimants. This agreement relates to the area occupied by me only.

Although I am the sole owner of this property through the said Will but my brothers have made it a disputed property and the case at present in the court of Manish Gupta Civil Judge, Delhi Suit No.312/2002, this case is lingering on since 1979 and 1982.

At the time of settlement of all cases the first party will execute sale deed in respect of the said property in favour of the second party.

That in case the first party backs out from the said transaction on any grounds then they will pay the double amount of earnest money to the second party or second party will get the transaction completed through court of law by specific performance of suit.

That in case the second party backs out from the said transaction, on any ground, then his earnest money shall stand forfeited in favour of the first party."

The defendant, besides the Agreement to Sell, also executed a receipt Ex.PW2/E of the earnest money of Rs.6 lacs.

13. Though the balance sale consideration of Rs.24 lacs was payable

within 15 days i.e. by 30th May, 2005 but the receipt Ex.PW2/E contains

endorsement in hand dated 19th May, 2005 proved as Ex.PW2/F, of receipt

of further sum of Rs.4 lacs, leaving the balance sale consideration as Rs.20

lacs.

14. The defendant, vide legal Notice dated 22nd August, 2005 proved as

Ex.PW1/P1, accused the plaintiff of failure to pay the balance sale

consideration as agreed within 15 days of the Agreement to Sell inspite of

the brothers of the defendant having withdrawn the suit filed by them on 1 st

August, 2005 and hence revoked the Agreement and notified the defendant

of forfeiture of the earnest money.

15. The MoU dated 30th October, 2005 between the plaintiff, defendant

and Shri Ashwani Suri and execution whereof is also not disputed which is

proved as Ex.PW1/D2 records the plaintiff and the defendant, while

depositing their original documents in the custody of Shri Ashwani Suri of

M/s Janak Properties, to have agreed to, (a) execution of the Sale Deed of

the ground and first floors of the property by defendant in favour of the

plaintiff; (b) to the execution of a builder agreement in favour of the

defendant to construct the second floor of the above said property within

eight months of execution of proper Sale Deed and handing over of

possession of the property in favour of the plaintiff; and, (c) the plaintiff

handing over actual vacant, peaceful possession of the portion of the

property earlier in occupation of the brothers of the defendant. The MoU

further records, that the plaintiff had deposited with Sh. Ashwani Suri, (i) the

Agreement to Sell executed by the defendant in favour of plaintiff, (ii)

Relinquishment and three agreements of remaining heirs of the property;

and, (iii) two possession letters of two brothers of the defendant. Similarly,

the documents deposited by the defendant with Sh. Ashwani Suri are

recorded as; (i) original Conveyance/Sale Deed of the property in favour of

father of the defendant; and (ii) copy of compromise order in suit filed by

brothers of the defendant.

16. Though the aforesaid admitted document undoubtedly suggests that it

was the plaintiff who had taken over possession of the portion of the

property earlier in occupation of the brothers of the defendant and had

delivered the said possession to the defendant to enable the defendant to

raise construction of the second floor above the property but the plaintiff has

neither pleaded the said case nor approached this Court for specific

performance of the MoU dated 30th October, 2005 and it is for this reason

that it has been observed under issue No.4 above that the same is redundant.

17. What further immediately comes to fore from the aforesaid MoU

dated 30th October, 2005 is that while the Agreement to Sell dated 14th May,

2005 of which specific performance is claimed was for sale of the entire

property on "as is where is basis" by the defendant to the plaintiff and which

Agreement rightly or wrongly was terminated by the defendant vide notice

dated 22nd August, 2005 averring breach on the part of the plaintiff, the

parties on 30th October, 2005 modified the Agreement dated 14 th May, 2005

and agreed that the defendant would sell only the ground and first floors of

the property to the plaintiff for the sale consideration of Rs.30 lacs and the

second floor of the property to be constructed by the defendant would

belong to the defendant. In the face of the said admitted position, though no

specific issue has been framed in this respect, I have wondered as to how,

even if the plaintiff is to be found to be ready and willing to perform his part

of the Agreement, can specific performance be ordered of the Agreement

dated 14th May, 2005 which admittedly stands modified / superseded by the

MoU dated 30th October, 2005.

18. No arguments also have been addressed by the counsels on the said

aspect. Be that as it may, it having come in evidence that the Agreement

dated 14th May, 2005 stood modified; no specific performance thereof can

be ordered. Where there has been a variation of contract, there can be no

decree for specific performance without variation. The plaintiff having not

claimed specific performance of the modified Agreement, the same cannot

be ordered even in exercise of the power of the Court under Order 7 Rule 7

to modify the relief. Though the plaintiff has not claimed the specific

performance of the modified Agreement but the plaintiff inspite of the said

modification having claimed the relief of specific performance of the

original Agreement has but to be held to be not ready and willing for

performance of the Agreement as modified and thus cannot be granted the

relief of specific performance of that also.

19. Not only so, the case set up by the plaintiff in the plaint of having

approached M/s Janta Properties property dealers/builders for building the

property after the defendant had conveyed the same to the plaintiff, is clearly

contrary to the MoU dated 30th October, 2005 itself. The said document

nowhere provides for the said property dealer / builder constructing the

property but clearly provides for the defendant constructing the property.

The plaintiff examined Mr. Ashwani Suri of M/s Janta Properties property

dealers/builders as PW2; he also did not depose that he was approached by

the plaintiff for raising construction on the property. Rather he has deposed

that the parties had approached him because they had some dispute and he

had prepared the MoU aforesaid after discussion with the parties. The

plaintiff's version on this aspect also thus stands falsified.

20. The plaintiff is not found entitled to the relief of specific performance

for another reason also. The plaintiff, in the plaint, did not disclose having

entered into any Agreement with Sh. Jagmohan Singh. Upon the defendant

in the written statement pleading the suit filed by Sh. Jagmohan Singh,

claiming to have purchased the property from the plaintiff, the plaintiff in

the replication took a stand of the brothers of the defendant in occupation of

property having dealt with Sh. Jagmohan Singh. The plaintiff in his cross

examination however admitted to having entered into the Agreement with

Shri Jagmohan Singh. Though the plaintiff did not produce the said

Agreement but a certified copy thereof filed by Shri Jagmohan Singh in the

suit filed by him has been filed by the defendant and plaintiff in his cross

examination has admitted the execution thereof. The same, even though not

exhibited, can thus be read in evidence. Vide said Agreement dated 29 th

December, 2005, the plaintiff had agreed to sell the entire property to the

said Shri Jagmohan Singh for Rs.10 lacs only, receipt of which sale

consideration was also admitted in the said agreement. The plaintiff having

already agreed to sell the property, i.e. assigning all his rights therein, cannot

be entitled to the relief of specific performance of the Agreement to Sell in

his own favour in as much as an Agreement is specifically enforceable only

when there is no standard for ascertaining the damage caused by non-

performance thereof. Here the plaintiff having agreed to transfer his rights in

the property to Shri Jagmohan Singh for consideration of Rs.10 lacs and

having already received the entire consideration, has no right to enforce

performance against the defendant.

21. From the facts aforesaid, the plaintiff is also not found entitled to the

discretion implicit in the grant of the relief of specific performance in his

favour for the reason that the Agreement to Sell dated 14 th May, 2005 itself

provides that the defendant had agreed to the "bargain sale" of the property

to the plaintiff for Rs.30 lacs only owing to the property being then

embroiled in litigation between the defendant and his brothers. The

Agreement provided for the entire sale consideration of Rs.30 lacs to be paid

by the plaintiff to the defendant within 15 days of the Agreement to Sell and

which admittedly was not paid by the plaintiff. Thus the circumstances

under which the contract was entered into were such which gave the plaintiff

an unfair advantage over the defendant and make it inequitable to enforce

specific performance. Not only so the conduct of the plaintiff subsequently

assigning his rights under the Agreement to Shri Jagmohan Singh and of

having a suit filed through Shri Jagmohan Singh without impleading the

defendant though the threat if any to Shri Jagmohan Singh was from the

plaintiff , also disentitle the plaintiff from the relief of specific performance.

22. The plaintiff has also been unable to prove the payments pleaded of

Rs.4 lacs on 31st August, 2005 and of Rs.10 lacs on 26th May, 2006 and

which have been denied by the defendant. The plaintiff in his examination-

in-chief put exhibit marks Ex.PW1/D and Ex.PW1/G on the receipts for the

said payments in cash. The plaintiff in his cross examination deposed that he

had not shown the payments made to the defendant in his Income Tax return

though he is an Income Tax assessee. On further questioning he stated that

the cash for making the said payments had not been withdrawn by him from

his bank. Though the plaintiff also examined as PW4 Shri Jagjeet Singh,

witness to the said receipts of Rs.4 lacs and Rs.10 lacs and who besides

identifying his signatures as witness on the said receipts has also identified

the signatures thereon of the defendant as well as of the other witness Mr.

K.L. Sharma and further deposed of the payments thereunder having been

made in cash in his presence but in my view the payments still do not stand

proved. According to the plaint, the payment for Rs.4 lakhs on 31 st August,

2005 was not due but was made in consideration of defendant agreeing to

withdraw the notice dated 22 nd August, 2005. However in receipt

Ex.PW1/D of the said payment and which PW-4 has deposed was typed in

his presence, it is not recorded so, as would have been done in ordinary

course of human behaviour. The defendant in his examination-in-chief has

denied the said payments and in cross examination has denied his signatures

on Ex.PW1/D and Ex.PW1/G. Not only so, in the subsequent admitted MoU

dated 30th October, 2005, no mention was made thereof. The receipt

Ex.PW1/D was also not kept with Mr. Ashwani Suri of M/s. Janak

Properties, though all other documents were being kept/deposited with him.

The only inference can be that it was not in existence then and has been

fabricated subsequently. Yet further, if the plaintiff had paid the said sum of

Rs.4 lakhs on 31st August, 2005, the consideration under the Agreement

executed by plaintiff on 29th December, 2005 would have been Rs.14 lakhs

and not Rs.10 lakhs. Similarly, the receipt of Rs.10 lacs records the date of

Agreement to Sell as 26th May, 2006 when there is no Agreement to Sell

pleaded of the said date. Owing to the said inconsistencies and further owing

to the plaintiff having failed to prove availability with him of the said sum of

Rs.14 lacs in cash, there is no option but to hold that the plaintiff has failed

to prove the said payments.

23. The plaintiff, though has also examined as PW3 Smt. Surinderjeet

Kaur wife of the brother of the defendant and who deposed that the plaintiff

and Shri Jagmohan Singh had paid Rs.27 lacs to the brothers of the

defendant in occupation of the property but all this is beyond pleadings and

thus need is not felt to elaborate thereon.

24. Issues No.1&5 are accordingly decided against the plaintiff and in

favour of the defendant.

25. Axiomatically, the suit fails and is dismissed. However in the facts,

no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J JULY10, 2013 pp