Digamber Builders & Land ... vs Inder Singh
2013 Latest Caselaw 5052 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
23.
+       CS (OS) No. 1577 of 2012 & I.A. Nos. 10368 and 14302 of 2012
        and 9066 of 2013

        DIGAMBER BUILDERS & LAND DEVELOPERS
        PVT. LTD.                                     ..... Plaintiff
                     Through: Mr. Ashish Mohan with Mr. Rohit
                     Gandhi and Mr. Varun Garg, Advocates.

                           versus

        INDER SINGH                                       ..... Defendant
                           Through: Mr. K. G. Chhokar, Advocate.

        CORAM: JUSTICE S. MURALIDHAR

                           ORDER

% 06.11.2013

1. The above suit has been filed by Digamber Builders & Land Developers Private Limited against Mr. Inder Singh seeking specific performance of an agreement to sell dated 11th February 2010 in respect of sale of half share of Khasra No. 308 (admeasuring 4 bighas and 16 biswas) and Khasra No. 309 (admeasuring 4 bighas and 16 biswas) in village Bhalaswa, Jehangirpur, Delhi. Alternatively, it is prayed that in the event specific performance cannot be granted, the Court should pass a decree for damages in the sum of Rs.80 lakhs along with pendente lite and future interest @ 24 % per annum. A third prayer is for a decree of permanent injunction restraining the Defendant from alienating the suit property.

2. While directing issuance of summons in the suit on 30th May 2012, this Court restrained the Defendant from creating third party interests in regard to the undivided share in the suit property.

3. Thereafter, the Defendant filed IA No. 14302 of 2012 under Order VII Rule 11 CPC and IA No. 14303 of 2012 under Order VI Rule 4 and under Order XI Rules 12 and 14 CPC for furnishing better particulars. In the latter application, the Defendant pointed out that in para 17 of the plaint it had been mentioned that the Defendant had failed to perform his obligations under the agreement to sell dated 11th February 2009 and that no such document was produced with the plaint. Further it was pointed out that in para 6 of the plaint, a reference had been made to the fact that the balance sale consideration was payable by 11th February 2011 whereas there was no document to that effect. Accordingly, it was prayed in the application that the Plaintiff should be ordered to furnish better particulars in respect of the agreement to sell dated 11th February 2010 as mentioned in para 6 of the plaint as well as the agreement to sell dated 11th February 2009 referred to in para 17 of the plaint.

4. IA No. 14303 of 2012 was listed before the Court on 7th August 2012 and the following order was passed therein:

"The learned counsel for the Plaintiff states that in fact correct date of agreement is 11th February 2010 and the date has been wrongly typed as 11th February 2009 in para 17 of the plaint.

In view of this clarification, no further order needs to be passed. The application stands disposed of."

5. It must be noted at this stage that the entire plaint is based on the agreement to sell dated 11th February 2010. Originally, along with the plaint, the photocopy of the said agreement and receipt of the same date purportedly executed by the Defendant were produced. It appears that on 29th May 2012, even prior to the above order being passed by the Court, the

original of the agreement to sell as well as the receipt was filed. Both are typed documents. While the agreement to sell is on a Rs. 50 stamp paper, the receipt has a revenue stamp with the purported signature of the Defendant thereon. Interestingly both documents, have during admission/denial of documents, been denied by the Defendant.

6. It is the case of the Defendant that his signatures were forcibly obtained on the said documents and that in fact he never received the amount of Rs.20 lakhs which, according to the said receipt, he is supposed to have received. The case of the Defendant is that "the Plaintiff has procured and manipulated the agreement to sell dated 11th February 2010 and receipt dated 11th February 2010 to deceive the Defendant and to get the undue benefit fraudulently and under undue influence and coercion".

7. In IA No. 14302 of 2012, under Order VII Rule 11 CPC, numerous grounds have been raised by the Defendant seeking rejection of the plaint. It is contended, inter alia, that the agreement to sell was mandatorily required to be registered but was not; that it was required to be duly stamped but was not and, therefore, was inadmissible; that it was barred under Section 3 of the Delhi Land Reforms Act, 1954; that it was barred by Sections 10, 14(a), 15(a) and 16 of the Specific Relief Act, 1963; that the plaint was not filed in accordance with the Schedule I Appendix A Form 47 and 48 and not in accordance with Order VI Rule 3 read with Section 151 CPC; that it was barred under Sections 2(a), 2(e), 10, 16, 17 and 23 of the Indian Contract Act, 1872 and that Plaintiff had suppressed material facts and not come to the Court with clean hands. Importantly, in para 10, it is contended as under:

"10. That the present suit is not maintainable as the

agreement to sell dated 11th February 2010 also suffers from ambiguity and the same is clear from the face of covenant No.1 where date of effect of agreement is 31st July 2010 and date of termination of agreement is 11th February 2010 and in 2nd para of agreement in whereas clause date of final payment is also ambiguous as well as in receipt dated 11th February 2010. The date of final payment is also ambiguous. Agreement is not enforceable in the present form due to apparent ambiguity and uncertainty."

8. Till date no reply has been filed by the Plaintiff to the aforementioned application under Order VII Rule 11 CPC although time was granted for that purpose on 7th August 2012 and subsequently on 26th September 2012.

9. On 16th April 2013, an adjournment was sought on behalf of the Plaintiff subject to payment of costs of Rs.15,000. The Plaintiff then filed IA No.7926 of 2013 seeking waiver of costs. This was declined and the said application was dismissed by an order dated 14th May 2013.

10. Thereafter the Defendant filed IA No. 9066 of 2013 under Order XXXIX Rule 4 CPC pointing out that the Plaintiff has still not paid the costs in terms of the order dated 16th April 2013 and, therefore, the stay should be vacated.

11. Today when the case was taken up for hearing, learned counsel for the Defendant first pointed out the non-compliance by the Plaintiff with the order dated 16th April 2013 requiring the Plaintiff to pay costs of Rs.15,000.

12. Mr. Ashish Mohan, learned counsel for the Plaintiff submitted that costs were in fact tendered to the Defendant by a cheque sent to him with a letter by post but was refused. The returned cover was shown to the Court. The postal remarks on the cover were to the effect that the address of the

Defendant was incomplete and therefore the letter could not be delivered. Therefore, it cannot be said that costs were in fact tendered but was refused by the Defendant. It was then contended by Mr. Mohan that, thereafter, costs were tendered by cheque to the counsel for the Defendant. This was vehemently denied by the counsel for the Defendant.

13. In any event, the Court fails to understand the conduct of the Plaintiff in not complying with the order dated 16th April 2013 till today. If there was any difficulty in tendering costs to the Defendant, the Plaintiff could have applied to the Court seeking permission to deposit the costs in the Court. This would have obviated unnecessary delay. Considering that more than six months have passed since the order dated 16th April 2013, the failure by the Plaintiff to pay costs till date is inexcusable.

14. However, the problems of the Plaintiff do not end there. Learned counsel for the Defendant pointed out that the contents of the agreement to sell as well as the receipt which form the very basis of the suit were such that no relief as prayed for could be granted in law.

15. At this stage it is necessary to reproduce the critical paragraphs of the agreement to sell as well as the receipt placed on record by the Plaintiff. The second preamble paragraph and first paragraph of the agreement to sell read as under:

"And whereas the First Party has agreed to sell the land measuring 4 bighas 16 biswas, out of Khasra No. 308 (2-8), & 309 (2-8), situated in the area of village Bhalswa Jahangirpur, Delhi, Abadi known as Guru Nanak Dev Colony, Delhi to the second party for a total sale consideration amount of Rs.1,47,50,000 (Rupees One Crore Forty Seven Lakhs Fifty Thousand Only), out of which sum

of Rs.20,00,000 (Rupees Twenty Lakhs only), on 11th February 2010 as a earnest money has received by the first party from the second party and the balance amount of Rs.1,27,50,000 (Rupees One Crore Twenty Seven Lakh Fifty Thousand Only), shall be paid by the second party to the first party at the time of final payment as well as execution of the necessary sale documents in favour of the second party before the Sub-Registrar, concerned Delhi, on or before 11th February 2010, on the following terms and conditions of this agreement for sale and purchase (Bayana) as under:

Now this agreement for sale & purchase witnesseth as under:-

1. That the transaction will be with effect from 31st July 2010, completed upto on or before within 11th February 2010".

16. It may be recalled that the above paragraphs are typed without any interpolations. It requires to be noticed that while the sum of Rs.20 lakhs is stated to have been received by the first party i.e. the Defendant from the second party i.e. the Plaintiff on 11th February 2010, the balance of Rs.1,27,50,000 was required to be paid at the time of execution of the sale documents before the Sub-Registrar "on or before 11th February 2010". It appears inconceivable that the initial payment as well as the final payment could be on the same date. Worse still, para 1 of the agreement states that the transaction would be with effect from 31st July 2010 but would be "completed up to on or before within 11th February 2010". Clearly, the above agreement, on the very face of it, is incapable of being performed. The above preamble paragraph has been virtually reproduced in the stamped receipt of the same date i.e. 11th February 2010 which is also typed. The receipt also states that the balance sale consideration would be paid before

the sub-Registrar on or before 11th February 2010 which is supposed to be the date of said receipt as well.

17. Mr. Ashish Mohan, learned counsel for the Plaintiff, faced with documents that obviously make no sense submitted that while the agreement to sell and the receipt were in fact dated 11th February 2010, the date by which the balance sale consideration was to be paid and the transactions completed was 11th February 2011 and not 11th February 2010 and that the date 11th February 2010 was an obvious typographical mistake. He submitted that it is for these reasons that in paras 6, 10 and 19 of the plaint it was stated that the time fixed for completion of the transaction was 11th February 2011.

18. Unfortunately for the Plaintiff, nowhere in the plaint is it mentioned that the date 11th February 2010, mentioned in the agreement to sell and the receipt as the date for completion of the transaction, was a typographical error. At no time did the Plaintiff even write to the Defendant before filing of the suit pointing out the above error in the documents. Nowhere in the plaint is it said that there is any typographical error in the documents.

19. The Court is aware that for the purposes of an application under Order VII Rule 11 CPC, the Court can at best look at the plaint and the accompanying documents and not any other pleadings of the parties. On a bare reading of the aforementioned agreement to sell as well as the receipt it is obvious that the purported agreement to sell is incapable of being performed. An agreement which states that it is effective from 31st July 2010 and must be performed by 10th February 2010 makes no sense. No relief in law can be granted on the basis of such an agreement. It is not possible for the Court to read into the document something which is not written therein.

In any event there is no pleading to that effect by the Plaintiff. It is another matter that no amount of oral evidence can be led to explain away the purported errors in a written document.

20. As a last effort, learned counsel for the Plaintiff wanted the Court to proceed on the basis that there was an oral agreement to sell between the parties. However, that is not even the case of the Plaintiff. He has come to the Court stating that there was a written agreement to sell. He has produced that written agreement to sell and has sought reliefs on that basis. The Plaintiff when faced with the obvious difficulty of seeking specific performance of an agreement to sell that makes no sense cannot turn around and ask the Court to ignore the pleadings and the documents and proceed on a new case of oral agreement to sell which is not even pleaded. If no relief of specific performance can be granted, the question of granting the alternative relief of damages also does not arise.

21. The Court is satisfied that in terms of order VII Rule 11(a) read with (d) the plaint discloses no cause of action for granting the reliefs of specific performance or damages and such reliefs also cannot be granted in law.

22. Accordingly, the plaint is rejected and the suit is dismissed. The interim order is vacated. IA No. 10368 of 2012 is dismissed. IA No. 9066 of 2013 and IA No. 14302 of 2012 are allowed in the above terms.

S. MURALIDHAR, J.

NOVEMBER 06, 2013 dn