M/S Ansal Properties And ... vs Ratnu (Deceased) Through Lrs & Ors
2013 Latest Caselaw 5179 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of decision: 12th November, 2013.

+                                RFA 163/2002

       M/S ANSAL PROPERTIES AND INDUSTRIES PVT.
       LTD.                                       ..... Appellant
                    Through: Mr. Sanjeev Kumar Dubey, Mr.
                             Manoj Taneja, Ms. Meenakshi Midha
                             and   Mr.     Chetan      Priyadarshi,
                             Advocates.

                                   Versus

    RATNU (DECEASED) THROUGH LRS & ORS .....Respondents
                  Through: Mr. N.S. Vashisht and Mr. Arpan
                           Sharma, Advocates for R-2(b)-2(e).
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 24 th November,

2001 (of the Court of Additional District Judge (ADJ), Delhi in Suit

No.278/1993) of dismissal of the suit for specific performance of an

Agreement of Sale of immovable property filed by the appellant and the

respondent No.3 Sh. N.K. Jain.

2. The suit was filed on 11th March, 1983, pleading:

(i) that the deceased respondents/defendants No.1 & 2 namely Sh.

Ratnu and Sh. Sarjeet, both sons of Sh. Thakar Dass were Bhumidars

of land admeasuring 19 bighas and 4 biswas bearing Khasra

Nos.13/22, 13/23, 13/24 and 26/4 in Village Deoli, Tehsil Mehrauli,

New Delhi;

(ii) that the respondents/defendants No.1 & 2 had entered into an

Agreement to Sell of the said land with the respondent No.3 Sh. N.K.

Jain; it was agreed that the respondents/defendants No.1 & 2 will be

paid for the sale of their land @ Rs.60,000/- per acre; they were paid

a sum of Rs.24,000/- as part payment and the balance money will be

paid to them at the time of registration of the Sale Deed; that the

respondents/defendants No.1 & 2 were to obtain 'No Objection

Certificate' (NOC) from the Competent Authorities as well as the

clearance certificate from the Income Tax Authorities;

(iii) that the respondents/defendants No.1 & 2 executed a formal

Agreement to Sell dated 23rd March, 1980 in favour of the respondent

No.3 Sh. N.K. Jain;

(iv) that the respondents/defendants No.1 & 2 were to sell the land

within five months from the dated of execution of Agreement to Sell

dated 23rd March, 1980, after excluding the time taken by them in

obtaining the necessary clearances from the various authorities; time

was thus not the essence of the contract;

(v) that it was further a term of the Agreement to Sell that the Sale

Deed would be executed in the name of the respondent No.3 Sh. N.K.

Jain or in the name of his nominee;

(vi) that the respondents/defendants No.1 & 2 had till then not

obtained the required certificates as they were required to obtain;

(vii) that the respondent No.3 Sh. N.K. Jain had appointed the

appellant as his nominee of the Agreement to Sell and the

respondents/defendants No.1 & 2 were duly informed thereof;

(viii) that the appellant and the respondent No.3 Sh. N.K. Jain had

called upon the respondents/defendants no.1 & 2 to obtain the

necessary NOCs and clearances but to no effect;

(ix) that ultimately a registered notice dated 25 th February, 1983

was got sent to the respondents/defendants No.1 & 2 calling upon

them to complete the sale;

(x) that the said notice was received back unclaimed;

(xi) that the respondents/defendants No.1 & 2, in violation of the

Agreement to Sell, were wanting to sell the land to somebody else.

Accordingly, the suit was filed seeking a direction to the

respondents/defendants No.1 & 2 to obtain necessary NOCs from the

Competent Authorities and clearance certificates from the Income Tax

Authorities and to execute and register the Sale Deed in favour of the

appellant; alternately, it was pleaded that if the Sale Deed could not be

executed in favour of the appellant as the nominee of the respondent No.3

Sh. N.K. Jain, the Sale Deed be got executed in the name of the respondent

No.3 Sh. N.K. Jain.

3. Vide interim order dated 14th March, 1983 in the aforesaid suit, the

respondents/defendants No.1 & 2 were restrained from alienating,

encumbering or parting with possession of the land. The said order was

confirmed on 14th September, 1984.

4. The respondents/defendants No.1 & 2 contested the suit by filing

written statement, on the grounds:

(a) denying having entered into any Agreement to Sell with the

respondent No.3 Sh. N.K. Jain;

(b) it was however pleaded that a person had approached the

respondents/defendants No.1 & 2 and represented himself as an

employee of the appellant and approached for purchase of the land;

that the respondents/defendants No.1 & 2 were wiling to dispose off

the land at that stage; the said person offered to purchase the land @

Rs.1,60,000/- per acre;

(c) denying that any sum of Rs.24,000/- was received or that the

respondents/defendants No.1 & 2 had agreed to obtain any NOCs or

clearances; it was pleaded that the said representative of the appellant

had represented that all necessary formalities, permissions and

clearances will be completed by the appellant;

(d) it was further pleaded that the said representative of the

appellant had asked the respondents/defendants No.1 & 2 to put

thumb impression on printed forms and blank papers so that

necessary formalities could be completed;

(e) denying that they had agreed to sell the land @ Rs.60,000/- per

acre or that any of the alleged terms were settled or agreed;

(f) pleading that it was represented by the aforesaid representative

of the appellant that the respondents/defendants no.1 & 2 will receive

the entire sale consideration within five months of the date when their

thumb impression and signatures as aforesaid were taken;

(g) that the respondents/defendants No.1 & 2 are illiterate and

trusted the representative of the appellant and kept on approaching the

appellant for balance sale consideration but the same was not paid;

(h) that the respondent/defendants No.1 & 2 at that time were in

dire need of money;

(i) denying receipt of any notice dated 25th February, 1983;

(j) accusing the appellant of non-performance;

5. The appellant and the respondent No.3 Sh. N.K. Jain filed a

replication to the written statement aforesaid, denying the contents thereof

and reiterating the case set out in the plaint.

6. On the pleadings aforesaid of the parties, the following issues were

framed in the suit on 2nd February, 1995:

"1. Whether the suit has been filed by a duly authorised person on behalf of the plaintiff Co.?

2. Whether the agreement to sell dated 23.3.1980 was validly executed by the defendant in favour of the plaintiff No.2? OPP

3. Whether the suit has been properly valued for the purposes of court fees and jurisdiction?

4. Whether the plaintiff is entitled to a decree for possession and specific performance in respect of the suit land?

5. Relief."

7. The respondent/defendant No.2 Sarjeet died during the pendency of

the suit and his legal heirs were substituted vide order dated 7 th July, 1997.

The respondent/defendant No.1 Sh. Ratnu also died during the pendency of

the suit and his legal heirs were also substituted vide order dated 1st October,

1999. The defence of the respondents/defendants No.1 & 2 was struck off

vide order dated 4th July, 2001 for their failure to pay the costs imposed on

them. The respondent no.3/plaintiff and an officer of the appellant examined

themselves in evidence; they were not even cross examined by the counsel

for the respondents/defendants no.1&2.

8. Notwithstanding the defence of the respondents/defendants no.1&2

having been struck off and the contention of the counsel for the appellant

before the learned ADJ being that the appellant was thus entitled to a decree

on their unrebutted evidence, the learned ADJ has dismissed the suit,

finding/observing/holding;

(i). that the appellant/plaintiff had failed to prove that the suit had

been filed and the plaint signed and verified by a duly

authorized person on behalf of the appellant/plaintiff;

(ii). that though the witness of the appellant/plaintiff had deposed

that the appellant/plaintiff was a duly incorporated Company

under the Companies Act and the suit had been filed and the

plaint signed and verified by Shri Gopal Ansal who was

authorized to institute the suit vide Resolutions passed by the

Board of Directors of the appellant/plaintiff proved before the

Court, but had failed to prove any document showing

incorporation of the appellant/plaintiff as a Company under the

Companies Act;

(iii). that in the absence of proof of the appellant/plaintiff being a

Company under the Companies Act, the Resolutions of the

Board of Directors of the appellant/plaintiff were of no avail;

(iv). that the appellant and the respondent no.3/plaintiffs had also

failed to prove that there existed a valid Agreement to Sell

dated 23rd March, 1980, for the following reasons:-

(a). that the deposition of the witnesses, of payment of

Rs.24,000/- in cash by the respondent

no.3/plaintiff and of execution of receipt thereof

was beyond pleadings since in the entire plaint it

was nowhere pleaded that Rs.24,000/- was paid at

the time of Agreement to Sell in the presence of

the witness Shri Jage Ram and that the receipt had

been executed and signed by either of

respondents/defendants no.1&2 on any date

including the date on which Agreement to Sell

dated 23rd March, 1980 was executed;

(b). that the only plea in the plaint was of it having

been agreed between the respondents/defendants

no.1&2 on the one hand and the respondent

no.3/plaintiff on the other hand that a sum of

Rs.24,000/- would be paid; there was however no

plea of such payment having been made;

(c). that even in the Agreement to Sell, the amount of

Rs.24,000/- in figures was written in a different

ink and there was overwriting and Rs.6,000/- had

been inserted in different ink;

(d). that while one page of the Agreement to Sell was

typed, others were printed;

(e). that no details of the payment in cash of

Rs.24,000/- had been given;

(f). that though the Agreement to Sell provided for details of payment to be given but the same were not filled up and therefrom it was evident that no such amount was paid at the time of Agreement to Sell;

(g). that thus no payment of Rs.24,000/- was made to the respondents/defendants no.1&2 at the time of Agreement to Sell;

(h). that cuttings, overwritings and insertions had been made in the Agreement after getting the thumb impression of the respondents/defendants no.1&2;

(i). that the Agreement to Sell had been illegally manipulated behind the back of the respondents/defendants no.1&2;

(j). that the endorsement on the Agreement to Sell was only of

"confirmed and endorsed in favour of Messrs Ansal Properties & Industries (P) Ltd., 115 Ansal Bhawan, 16 K.G. Marg, New Delhi, and or its nominee or nominees

Sd/-

(N.K.Jain)"

and the same did not constitute nomination of the

appellant/plaintiff as inheritor of the rights of the

respondent no.3/plaintiff under the Agreement to

Sell;

(k). no date, time and place of making such

endorsement had been proved;

(l). that the aforesaid endorsement did not also have

the consent of the respondents/defendants no.1&2;

(m). there was no evidence of such endorsement having

been even conveyed to the respondents/defendants

no.1&2;

(n). that the nomination claimed in favour of the

appellant/plaintiff was invalid and a further

instance of illegal manipulation;

(o). that the receipt proved of Rs.24,000/-, was not

only beyond pleadings but though in typed form

again had blanks which were filled in later on and

not before taking the thumb impression of the

respondents/defendants No.1 & 2 and its contents

were not established beyond reasonable doubts;

(p). there were insertions in hand in the said receipt

also and in different inks;

(q). that the receipt was also a glaring instance of

illegal manipulation;

(r). that the thumb impression on the revenue stamp

on the receipt was of one of the

respondents/defendants no.1&2 only and the

receipt was thus not validly proved against the

other respondent/defendant whose thumb

impression was not on revenue stamp;

(s). that the similar endorsement on the receipt also in

favour of appellant/plaintiff was without any date,

time and place; and,

(t). that the appellant and the respondent

no.3/plaintiffs had also failed to prove due service

of the notice preceding the suit.

(v). that the suit had been properly valued for the purpose of Court

Fees and jurisdiction;

(vi). that the appellant and the respondent no.3/plaintiffs had in the

replication not controverted the plea of the

respondents/defendants no.1&2 of their having agreed to sell at

a Rs.1,60,000/- per acre;

(vii). that there was no specific denial in the replication of the

averments in the written statement of the

respondents/defendants no.1&2 having been approached by the

representative of the appellant who had obtained the thumb

impression of the respondents/defendants no.1&2 on blank

papers and printed forms;

(viii). that the cuttings, overwritings and different prints/font of the

agreement and receipt supported the aforesaid plea of the

respondents/defendants no.1&2;

(ix). that the respondents/defendants no.1&2 were uneducated

persons and the Agreement to Sell and the receipt were in

English language;

(x). that the Agreement to Sell and the receipt were got executed

from the respondents/defendants no.1&2 by misrepresentation,

taking advantage of their illiteracy; and,

(xi). that the appellant and the respondent no.3/plaintiffs were thus

not entitled to the relief of specific performance.

resultantly the suit was dismissed.

9. Notice of the appeal was issued and vide ex parte ad interim order

dated 4th March, 2002 status quo directed to be maintained. On 23rd

October, 2003 the appeal was admitted for hearing and the earlier interim

order made absolute. An application under Order1 Rule 10 of the CPC was

made by the legal representatives of some of the respondents (in turn being

the legal representative of respondents/defendants no.1&2) who had died

and which was allowed on 14th May, 2007.

10. CMs No.7648-49/2007 were filed jointly by the appellant and the

respondents no.1(i) to 1(iv) being all the legal heirs of the deceased

respondent/defendant Ratnu and by respondent no.2(a) being one of the

legal heirs of the deceased respondent Sarjeet, stating that a settlement had

been arrived at. Vide order dated 29th May, 2007 the said settlement was

taken on record and the factum of satisfaction of claim of the appellant

against the said respondents was recorded and it was further recorded that

the possession of the share belonging to the said respondents had been

handed over to the appellant.

11. CM No.840/2008 was filed by the respondents no.2(b) to 2(e) for

recall of the order dated 29th May, 2007 recording the settlement between

the appellant on the one hand and the respondents no.1(i) to 1(iv) and 2(a)

on the other hand. The said application was dismissed vide order dated 23 rd

April, 2010 observing that the settlement was qua the parties thereto only

and was not binding upon the respondents no.2(b) to 2(e).

12. CM No.11748/2010 was thereafter filed by respondents no.2(b) to

2(e) seeking clarification of the status quo order dated 23rd October, 2003.

The said application was also dismissed vide order dated 10th September,

2010 observing that the status quo ordered was qua property and not person

specific.

13. Mediation attempted between the appellant and the respondents

no.2(b) to 2(e) thereafter, remained unsuccessful.

14. The counsel for the appellant and the counsel for the respondents

no.2(b) to 2(e) have been heard. None has appeared for the respondents

no.1(i) to 1(iv) and respondent no.2(a) and respondent no.3.

15. The counsel for the respondent no.2(b) to 2(e) has at the outset

contended that there is no Vakalatnama from the appellant in favour of any

of the counsels who are appearing today to argue the matter.

16. Though on perusal of the Court file, no such Vakalatnama in favour

of any of the counsels is found but Mr. Dubey arguing counsel for the

appellant has contended that there is a Vakalatnama on record in favour of

the father of the counsel instructing him and has stated that a fresh

Vakalatnama can be obtained.

17. Though the Vakalatnama referred to is from Ansal Infrastructure Ltd.

and not the appellant, the appeal being old, it is not deemed appropriate to

adjourn the matter on the said ground.

18. The counsel for the respondents no.2(b) to 2(e) has however further

contended that the counsels are being not instructed by the appellant Ansal

Properties and Industries Pvt. Ltd. It is contended that CM No.7649/2007

under Order 23 Rule 3 of the CPC which though was allowed, was also not

of settlement between the respondents no.1(i) to 1(iv) and respondent

no.2(a) on the one hand and the appellant on the other than but itself

recorded that the appellant had referred the said respondents no.1(i) to 1(iv)

and respondent no.2(a) to its nominee Shri Vinod Rajoria and the

application was neither signed nor supported by the affidavit on behalf of

the appellant. It is argued that it is evident therefrom that the appellant has

also assigned its rights in favour of the said Shri Vinod Rajoria. It is yet

further contended that in fact the compromise, only between the parties to

the suit could have been recorded and the compromise disclosed in CM

No.7649/2007 being not between the parties to this appeal but being

between respondents no.1(i) to 1(iv) and respondent no.2(a) on the one hand

and Shri Vinod Rajoria, a non party to the appeal, on the other hand, could

not have been accepted.

19. On enquiry as to what prejudice the respondents no.2(b) to 2(e) have

suffered on account of such compromise being recorded, the counsel for the

respondents no.2(b) to 2(e) contends that on account of this Court having

put its imprimatur on the compromise, Shri Vinod Rajoria who otherwise

has acquired no rights in the land is claiming possession thereof and which

he cannot, the shares of the respondents no.1(i) to 1(iv) and respondent

no.2(a) on the one hand and of the respondents no.2(b) to 2(e) on the other

hand having not been segregated.

20. Per contra Mr. Manoj Taneja, Adv. also appearing for the appellant

contends that though an FIR was lodged by the respondents no.2(b) to 2(e)

against Mr. Vinod Rajoria of the offence of trespass but thereafter the

respondents no.2(b) to 2(e) settled the matter and accepted the cancellation

report filed with respect thereto.

21. Mr. Dubey, counsel for the appellant/plaintiff has of course assailed

the reasons given in the impugned judgment denying the relief of specific

performance, of the suit having not been filed and the plaint having not been

signed and verified by a duly authorized person on behalf of the

appellant/plaintiff and of the appellant/plaintiff having not pleaded the

payment of Rs.24,000/-. He has further contended that the defence of the

respondents/defendants having been struck off, the conclusion reached by

the learned Addl. District Judge of the thumb impressions of the deceased

respondents/defendants no.1&2 having been taken on blank papers and the

Agreement to Sell and receipt of Rs.24,000/- having been manipulated

thereon, cannot be sustained.

22. The reasoning given by the learned Addl. District Judge for dismissal

of the suit, of the appellant/plaintiff having not proved institution by a duly

authorized person certainly cannot be sustained. The Supreme Court in

Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh (2006) 1 SCC 75

and Grafitek International Vs. K.K. Kaura 96 (2002) DLT 385 has held

that such irregularities cannot be fatal. The learned Addl. District Judge, if

of the view that it was essential for the appellant/plaintiff to prove the

Certificate of Incorporation of the appellant/plaintiff as a Company, ought to

have first given an opportunity to the appellant/plaintiff to prove the same

and could not without giving such opportunity have dismissed the suit. In

this regard it is also significant that even in the written statement, the factum

of the appellant/plaintiff being a Company under the Companies Act was

not disputed and rather it was the case of the respondents/defendants

no.1&2 that the representative of the appellant/plaintiff Company had

approached them for purchase of the land.

23. Similarly, the view taken by the learned Addl. District Judge, of the

appellant/plaintiff having not pleaded payment of Rs.24,000/- is also found

to be an extreme and harsh one. The litigants ought not to be penalized for

the poor drafting skills of their Advocates particularly when on a reading of

the pleading as well as the documents filed, the case put up was clear.

24. Before I deal with the third reason given by the learned Addl. District

Judge, of the appellant/plaintiff having failed to prove the existence of valid

Agreement to Sell, it is deemed appropriate to deal with the some other

aspects and for the reason whereof the appellant/plaintiff in any case is not

found entitled to the relief of specific performance.

25. The Agreement to Sell in the present case is dated 23 rd March, 1980.

The same inter alia is for 4 acres of land, and

A. for a total sale consideration calculated @ Rs.60,000/- per acre;

B. provides that the vendors i.e. the respondents/defendants

no.1&2 were in need of funds for investment thereof in other

agricultural land with a view to augment their economic and

other resources and as an act of prudence and of better

management of their affairs. (Cl. 4)

C. thereunder, out of total sale consideration, a sum of Rs.24,000/-

was paid to the vendors in cash and out of which an amount of

Rs.6,000/- was paid by way of earnest money and the balance

amount as and by way of part sale consideration.

D. provides that the purchaser i.e. respondent no.3/plaintiff Shri

N.K. Jain was entitled to obtain the conveyance of the land in

his favour on paying the balance sale consideration at any time

within a period of five months from the date of execution of the

Agreement to Sell. (Cl.11) A printed clause no.12 in the

Agreement to Sell which enabled the purchaser to, by payment

of some additional amount, defer the date of completion of the

transaction by two years had been deleted.

E. provides that if required, the vendor will obtain the required

Income Tax, Wealth Tax and Estate Duty Clearance Certificate

and the required certificate from the prescribed authority under

the Delhi Land (Restriction on Transfer Act), 1972 as well as

the permission of any other statutory authority required for

execution and registration of the Conveyance Deed (Cl. 14);

and,

F. enabled the purchaser i.e. the respondent no.3/plaintiff Shri

N.K. Jain to get the Sale Deed executed and registered in his

own name or in the name of his nominee.

26. Attention of the counsel for the appellant/plaintiff has been invited to

Saradamani Kandappan Vs. S. Rajalakshmi (2011) 12 SCC 18 where it has

been held:-

(i). that the question, whether time is the essence of the contract,

with reference to the performance of a contract, may arise for

consideration either with reference to the contract as a whole

or with reference to a particular term or condition of the

contract which is breached;

(ii) in a contract relating to sale of immovable property, if time is

specified for payment of the sale price but not in regard to the

execution of the sale deed, time will become the essence only

with reference to payment of sale price but not in regard to

execution of the sale deed;

(iii) normally in regard to contracts relating to sale of immovable

properties, time is not considered to be the essence of the

contract unless such an intention can be gathered either from

the express terms of the contract or impliedly from the

intention of the parties as expressed by the terms of the

agreement;

(iv). the intention to make time stipulated for payment of balance

consideration will be considered to be essence of the contract

where such intention is evident from the express terms or the

circumstances necessitating the sale, set out in the agreement;

(v). even if the urgent need for the money within the specified time

is not set out, if the words used clearly show an intention of the

parties to make time the essence of the contract, with reference

to payment, time will be held to be the essence of the contract.

(vi). though in the absence of contract to the contrary, the purchaser

is bound to tender the balance consideration only at the time

and place of completing the sale but if it is found that there is a

conscious effort to delink the terms relating to payment of

balance price from the term relating to execution of sale deed

and making the time of essence only in regard to the payment

of the balance sale consideration, it is a clear indication that

while time would be the essence of the contract in regard to the

terms relating to payment of balance price, time would not be

the essence of the contract in regard to the execution of the sale

deed;

(vii). the precedents from an era, when high inflation was unknown,

holding that time is not of the essence of the contract in regard

to immovable properties, may no longer apply because the

circumstances that existed when the said principle was

evolved, no longer exist;

(viii). the principle that time is not of the essence of contracts relating

to immovable properties took shape in an era when market

value of immovable properties were stable and did not undergo

any marked change even over a few years; however there has

been a galloping inflation and prices of immovable properties

have increased steeply, by leaps and bounds; market values of

properties are no longer stable or steady; the steep increase in

prices is a circumstance which makes it inequitable to grant the

relief of specific performance where the purchaser does not

take steps to complete the sale within the agreed period and the

vendor has not been responsible for any delay or non-

performance; in such circumstances a purchaser can no longer

take shelter under the principle that time is not of essence in

performance of contracts relating to immovable property, to

cover his delays, laches, breaches and `non-readiness'.

(ix). to hold, that a vendor who took an earnest money of say about

10% of the sale price and agreed for three or four months as

the period for performance, did not intend that time should be

the essence, will be a cruel joke on him, and will result in

injustice;

(x). in these circumstances, the greater scrutiny and strictness has

to be applied in considering whether the purchaser was ready

and willing to perform his part of the contract.

and it was enquired as to how the appellant/plaintiff could be said to have

been ready and willing to perform the contract when the time provided in

the Agreement to Sell for completion of the transaction was five months

from the date of the Agreement to Sell i.e. 23 rd March, 1980 and when the

appellant/plaintiff from the date of the Agreement to Sell and till at least the

issuance of the notice dated 25th February, 1983 if not till the institution of

the suit on 11th March, 1983 had maintained a total quietus and not taken

any steps whatsoever.

27. The counsel for the appellant/plaintiff argues that the said period of

five months provided in the Agreement for completion of transaction has to

be read with Clause 14 supra of the Agreement to Sell which required the

respondents/defendants no.1&2 to obtain all clearances for execution of the

Sale Deed. It is contended that since without the said clearances and

permissions and the responsibility for obtaining which was of the

respondents/defendants no.1&2, the Sale Deed could not be executed, the

said period of five months cannot be of any significance. It is yet further

contended that it being not the case of the respondents/defendants no.1&2

that they had performed their obligation to obtain the said clearances, the

appellant/plaintiff cannot be found fault with for having not completed the

transaction within five months.

28. It has however further been put to the counsel for the

appellant/plaintiff that the time of five months under Clause 11 of the

Agreement being from the date of execution of the Agreement to Sell and

not from the date of obtaining of such permissions/clearances for execution

of the Sale Deed, whether not the appellants/respondent no.3/plaintiffs were

required to, within the said period of five months chase the

respondents/defendants no.1&2 for obtaining the said permissions and on

their failure to do so within five months, to compel them to do so

immediately on expiry of said five months, without waiting for a further

period of nearly 2 ½ years.

29. No satisfying answer is forthcoming.

30. I am of the view that where the agreement provides a period for the

purchaser to obtain the conveyance in his favour on paying the balance

consideration, the purchaser cannot be said to have been ready and willing if

notwithstanding the seller on whom the same agreement places the

responsibility for obtaining permissions for execution of the Sale Deed not

obtaining the said permissions, does not take any action and sits quiet till

about the last date before the expiry of three years from the date of

Agreement to Sell. The only inference in such a situation can be of the

purchaser being not ready and willing. The Supreme Court in Saradamani

Kandappan supra has now clearly held that in the changed circumstance of

galloping inflation and prices of immovable properties and the market

values of properties being no longer stable, greater scrutiny and strictness

has to be applied in considering whether the purchaser was ready and

willing to perform his part of the contract and it will be a cruel joke on the

seller who has received only about 10% of the sale price and agreed for the

balance consideration to be received say as in the present case within five

months therefrom, to remain bound to agree at the same rate even after 2 ½

years.

31. Not only so, the aspect of readiness and willingness in the present

case has another strange feature. The respondent no.3/plaintiff who had

entered into Agreement to Sell claims to have assigned his right thereunder

i.e. right to purchase the same to the appellant/plaintiff. The date when he so

assigned the rights, has not been disclosed. The said assignment could have

been on the very next date after the Agreement to Sell dated 23 rd March,

1980 or could have been one day prior to the issuance of the Notice dated

25th February, 1983 preceding the suit. In the absence of the said date, it

cannot be known as to who was ready and willing to perform purchasers

part of the contract from the date of the agreement i.e. 23 rd March, 1980 till

the institution of the suit on 11 th March, 1983 i.e. whether the

appellant/plaintiff or respondent no.3/plaintiff. In fact, the respondent

no.3/plaintiff appearing as PW-1 has not even deposed that he was so ready

and willing. He has merely deposed that being entitled under Clause 19 of

the Agreement to Sell to nominate any other person, he had so nominated

the appellant/plaintiff. The official of the appellant/plaintiff who deposed as

PW-2 has merely deposed that after the appellant/plaintiff had been

nominated by the respondent no.3/plaintiff, the appellant/plaintiff had been

approaching the respondents/defendants no.1&2 to perform their part of the

agreement. However without there being anything to show as to on which

date the appellant/plaintiff was so nominated, it is not clear as to when the

appellant/plaintiff, even if believed to have so approached the

respondents/defendant, started doing so.

32. In this context another contention of the counsel for the

respondents/defendants no.1&2 may be noted. It is contended that the

respondent no.3/plaintiff could not have assigned its obligations under the

Agreement to Sell. Reliance in this regard is placed on recent judgment

dated 8th October, 2012 of this Court in CS(OS) No.2414, 2415 &

2421/1989 titled M/s A.D. Overseas Vs. Smt. Sneh Lata Sharma where this

Court, relying upon Khardah Company Ltd. Vs. Raymon and Company

(India) Pvt. Ltd. AIR 1962 SC 1810 (where it has been held that an

assignment of a contract though may result by transfer either of the rights or

of the obligations thereunder but there is a well recognized distinction

between these two classes of assignments; as a rule obligations under a

contract cannot be assigned except with the consent of the promisee and

when such consent is given, it is really novation resulting in substitution of

liabilities; on the other hand rights under a contract are assignable unless the

contract is personal in its nature) held that even if there is a nomination

clause in the Agreement to Sell, the same does not permit transferring of

obligations of the purchaser, as the seller/vendor may have dealt with the

purchaser for the reason of being comfortable in dealing with the purchaser.

33. Applying the aforesaid ratio, Clause 19 of the Agreement to Sell only

entitled the respondent no.3/plaintiff as purchaser to get the Sale Deed

executed either in his name or in the name of his nominee without any

objection from the respondents/defendants no.1&2 and did not entitle the

respondent no.3/plaintiff/purchaser to assign his obligations inter alia to pay

the balance sale consideration to the respondents/defendants no.1&2 to any

other person. Though Clause 20 of the Agreement to Sell also provides that

the terms vendor and the purchaser shall include their respective heirs,

successors, executors, administrators and assignees but the same in the light

of the express clause of nomination cannot be held as a consent by the

respondents/defendants no.1&2 to assignment by the respondent

no.3/plaintiff/purchaser of his obligations under the Agreement to Sell in

favour of any other person.

34. Thus the readiness and willingness, which had to be averred and

proved, was to be essentially of the respondent no.3/plaintiff and could not

be of the appellant/plaintiff.

35. It is the settled position in law that such readiness and willingness has

to be not only till the date of institution of the suit but has to continue even

after the decree and till the execution of the Sale Deed. Reference in this

regard can be made to Kishan Lal Chhabra Vs. Anil Arora 156 (2009)

DLT 779 and Kumar Dhirendra Mullick Vs. Tivoli Park Apartments (P)

Ltd. (2005) 9 SCC 262.

36. Once that is found to be the legal position, the respondent

no.3/plaintiff whose readiness and willingness is requisite, having chosen

not to even appeal or join in the appeal against the dismissal of the suit,

cannot be said to be ready and willing and the appellant/plaintiff cannot be

entitled to the relief on this ground alone. Though in the suit, , execution of

the Sale Deed was claimed in the name of the appellant/plaintiff and in the

alternative in the name of the respondent no.3/plaintiff but from the

respondent no.3/plaintiff having failed to appeal or join as appellant, it is

obvious that the respondent no.3/plaintiff is now not willing to have the Sale

Deed in his name and if that be the position, he cannot be said to be ready

and willing and the appellant/plaintiff who has only been nominated to have

the Sale Deed executed in its name cannot in the absence of the readiness

and willingness of the respondent no.3/plaintiff be granted the relief.

37. There is another interesting aspect of the matter. The endorsement on

the Agreement to Sell and the receipt is under the signatures of the

respondent no.3/plaintiff only. It is not signed by the appellant/plaintiff. In

the absence of the signatures of the appellant/plaintiff, even if it were to be

believed that the appellant/plaintiff had approached the

respondents/defendants no.1&2 at any time, there was nothing for the

respondents/defendants no.1&2 to know that the appellant/plaintiff had

taken over the obligations earlier of the respondents no.3/plaintiff under the

Agreement to Sell.

38. I am of the view that where the Agreement to Sell provides time for

completion of the transaction and also provides for the seller to obtain

permissions and even if the seller, within the said time, fails to obtain the

permissions, the purchaser ought to immediately take steps for so forcing

the seller and cannot wait till the last day of limitation and if does so runs

the risk of being found to be not ready and willing to perform its part of the

Agreement to Sell. The Supreme Court in K.S. Vidyanadam Vs. Vairavan

(1997) 3 SCC 1 reiterated in Saradamani Kandappan supra has held that

the Courts will frown upon suits which are not filed immediately after the

breach/refusal and the fact that limitation is three years does not mean that a

purchaser can wait for one or two years to file a suit and obtain specific

performance. It was further held that the three year period is intended to

assist the purchasers in special cases, as where major part of consideration

has been paid and possession delivered in part performance.

39. The counsel for the appellant/plaintiff has however referred to the

judgment of the Division Bench of this court in Kulbhushan Seth Vs.

Seema Seth 2008 (2) ILR (Del) 698 to contend that once the defence of the

respondents/defendants no.1&2 had been struck off, their written statement

could not be seen at all and the learned Addl. District Judge has erred, in,

notwithstanding the same, looking into the written statement.

40. However a perusal of the aforesaid judgment shows the same to have

relied on Modula India Vs. Kamakshya Singh Deo (1988) 4 SCC 619

which lays down that notwithstanding the defence being struck off, subject

to the exercise of an appropriate discretion by the Court on the facts of the

particular case, the defendant would generally be entitled to cross examine

the plaintiff's witnesses and to address arguments on the basis of the

plaintiff's case but would not be entitled to lead any evidence of his own nor

to cross examine by travelling beyond the very limited objective of pointing

out the falsity or weaknesses of the plaintiff's case.

41. The aforesaid judgments are not found to come to the rescue of the

appellant/plaintiff. As the aforesaid discussion would show, all that has been

done is to find the lacunas/deficiencies in the appellant's/plaintiff's case

without any recourse to the defence of the respondents/defendants no.1&2.

42. Coming back to the aforesaid line of reasoning, even the

appellant/plaintiff is not now found to be ready and willing. The

compromise entered into by the respondents no.1(i) to 1(iv) and 2(a) is not

with the appellant/plaintiff but with one Shri Vinod Rajoria nominee of the

appellant/plaintiff. It thus appears that the appellant/plaintiff has further

assigned the rights if any in favour of the said Shri Vinod Rajoria. The said

Shri Vinod Rajoria has chosen not to come before this Court. The

Advocates continue to be appear as if authorized by the appellant/plaintiff.

The appellant/plaintiff has not chosen to disclose as to why the nomination

was made in favour of Shri Vinod Rajoria and on what terms. All these

developments also support that the Agreement dated 23 rd March, 1980 was

entered into by the respondent no.3/plaintiff Shri N.K. Jain not for the

purposes of himself purchasing the property but for the purposes of trading

and profiteering therefrom. It has been held in S.V.R. Mudaliar Vs. Rajabu

F. Buhari (1995) 4 SCC 15 that if the act of a third party is found to be

champertous, the relief of specific performance should be refused. From the

appellant/plaintiff choosing not to disclose the reason behind nomination of

Shri Vinod Rajoria and Shri Vinod Rajoria choosing not to come before this

Court, the said possibility cannot be ruled out.

43. I am therefore of the view that the essential ingredients of readiness

and willingness which the plaintiff in a suit for specific performance is

required to satisfy remains unfulfilled in the present case and the appeal is

liable to be dismissed on this ground alone.

44. That leaves the remaining finding of the learned Addl. District Judge,

of the very Agreement to Sell to be invalid. The learned Addl. District Judge

in this regard has been guided by the various elements of the Agreement to

Sell being in hand and/or being in different fonts.

45. Though undoubtedly the appellant/plaintiff failed to examine Shri

Jage Ram, the only witness to the Agreement to Sell who was the only

independent person who could have testified about the execution of the

Agreement to Sell but the said failure of the appellant/plaintiff has to be

seen together with the admission of the respondents/defendants in their

written statement of the thumb impressions, which the Agreement to Sell

and the receipt bear, being theirs. The factum of some pages in the

Agreement to Sell being in a different font and of other particulars having

been filled up in hand however do not persuade me to agree with the finding

of the learned Addl. District Judge of there being no valid Agreement to

Sell. The pages 2 to 6 of the Agreement to Sell are printed. The first page is

on a stamp paper and is typed. The various blanks left on the first page

relate to khasra numbers in which the land is situated. The blanks on the

other printed pages are also qua the village in which the land is situated and

the amounts, dates and the time. It is the case of the appellant/respondent

no.3/plaintiffs that the respondent No.3 Sh. N.K.Jain was a broker meaning

that he was scouting for the land on behalf of the appellant/plaintiff. It is the

case of the respondents/defendants no.1&2 also (even if it were to be said

that their written statement cannot be seen, the admissions made by them

therein can always be read against them) that they were approached by a

representative of the appellant/plaintiff. Judicial notice can be taken of the

fact that the appellant/plaintiff is a developer/builder. Such

developers/builders, for their projects generally acquire large tracks of land

by entering into agreements with a large number of villagers owning land in

the village. That explains the printed pages of the Agreement to Sell

containing the standard terms & conditions on which the land was being

acquired from the villagers. It is not unusual to leave blanks in the said

printed pages, to be filled up in hand as per the agreement reached. Even

otherwise there is no bar in law to the said practice. The first page of the

Agreement to Sell is typed being required to be on a stamp paper. However

since the date of actual signing of the agreement and the details of khasra

numbers also are not available at the time of typing, the blanks in that

respect had been filled up in hand therein also. Though the learned Addl.

District Judge has found some inconsistencies in the agreement but there are

none. The rate agreed was of Rs.60,000/- per acre and the advance paid was

Rs.24,000/-out of which Rs.6,000/- was paid towards earnest money and the

balance towards part payment. The same is the position in the receipt also.

46. The counsel for the respondents no.2(b) to 2(e) has in this regard

referred to judgment dated 15th March, 2012 of the Division Bench of this

Court in RFA (OS) No.53/2007 titled C.L. Jain Vs. Raghubir Singh where

the Agreement to Sell was held to be not proved. However such findings are

in factual context and in the context of facts of present case, I am not

inclined to agree with the finding of the learned Addl. District Judge of

there being no valid Agreement to Sell between the parties. The said finding

is thus set aside.

47. Notwithstanding the same, the appeal cannot succeed for the reasons

aforesaid. The appeal is accordingly dismissed leaving the parties to bearing

their own costs. Decree sheet be drawn up.

48. It is clarified that the acceptance by this Court of the compromise of

the respondents no.1(i) to 1(iv) & 2(a) with Shri Vinod Rajoria as nominee

of the appellant/plaintiff would not come in the way of the respondents

no.2(b) to 2(e) contending that the transaction, whatsoever it may be,

between the respondents no.1(i) to 1(iv) & 2(a) with the said Shri Vinod

Rajoria is bad or in contending that no rights have flown to Shri Vinod

Rajoria thereunder or in seeking any other relief with respect thereto.

RAJIV SAHAI ENDLAW, J

NOVEMBER 12, 2013 'bs'/pp..