Suman Chhabra vs Laxmi Bai (Deceased Through Lrs)
2013 Latest Caselaw 5428 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 25th November, 2013

+                                RFA 579/1999
       SUMAN CHHABRA                                       ..... Appellant
                  Through:              Mr. Rajat Joneja, Adv.

                        Versus
    LAXMI BAI (DECEASED THROUGH LRs) ..... Respondent

Through: Ms. Reena Jain Malhotra, Adv. for Ms. Sangeeta LR No.3.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 13.04.1999 of

the Court of Additional District Judge (ADJ), Delhi of dismissal of suit

No.1033/1993 filed by the appellant for specific performance of an

Agreement dated 12.06.1989 by the respondent Smt. Laxmi Bai of sale of

property No. J-167, ad-measuring 125 sq. yds., Saket, New Delhi to the

appellant / plaintiff for sale consideration of Rs.4,75,000/-.

2. The appeal was admitted for hearing and vide ex parte ad-interim

order dated 13.09.1999, the respondent restrained from transferring,

alienating or creating any third party interest in the property or parting

with possession of the property. It was the stand of the respondent during

the hearing on 09.02.2000 that the property in question already stood

transferred in favour of one Smt. Shashi on 10.12.1991 and that the

deceased respondent Smt. Laxmi Bai was not at all concerned with the

property. Observing, that in view of the said fact the ex-parte ad-interim

order did not affect the respondent, the same was on 9th February, 2000

made absolute during the pendency of the appeal.

3. The appeal was on 15.05.2009 dismissed in default of appearance

of either of the parties. CM No.10084/2010 was filed by the appellant for

restoration and notice whereof was ordered to be issued. Upon service of

notice of such application on the counsel earlier appearing for the

respondent and notwithstanding his statement that the file had been taken

away from him, vide order dated 09.02.2011 the appeal was restored to

its original position subject to payment of costs of Rs.5,000/-. The said

counsel on 02.05.2011 informed of the demise of the respondent.

Application for substitution of Sh. Sukhdev, son of the deceased

respondent was filed and notice whereof was ordered to be issued. In

response thereto, the said Shri Sukhdev filed a reply pleading, that the

respondent Smt. Laxmi Bai expired on 13th October, 2000 and the

application for substitution of legal heirs had been filed after 11 years;

that the deceased Smt. Laxmi Bai during her life time had given the said

property to her daughter Ms. Sashi; that the deceased Laxmi Bai was

survived by two sons i.e. Shri Sukhdev and Shri Sukha Ram and a

daughter Ms. Shashi; that Ms. Sashi had also since died leaving a son

namely Shri Anil Kumar and a daughter namely Ms. Sangeeta. Shri

Sukhdev, after filing the reply stopped appearing. The appellant

thereafter filed another application seeking impleadment of Shri Anil

Kumar and Ms. Sangeeta. No impleadment of Shri Sukha Ram was

sought. Shri Anil Kumar upon being served with the notice appeared and

stated that he did not desire to contest the suit or the applications.

However the said Shri Anil Kumar on 4th October, 2013 stated that the

title documents of the property were in his custody. On inquiry as to in

what capacity, he stated, that since he was the owner of the property.

Inspite of explaining to him that if he claimed to be the owner, he should

contest the proceedings, he also has stopped appearing. Vide order dated

30th October, 2013 the abatement of the appeal was set aside and the

delay in applying for substitution of legal representatives condoned and

the legal representatives of the deceased respondent substituted. Today

Ms. Veena Jain Malhotra, Advocate engaged by the Legal Aid has

appeared for the respondent Ms. Sangeeta and states that she has no

file/papers, and the appellant be directed to supply complete paper book

to her.

4. However the appeal being of the year 1999, it has been deemed

expedient to hear the counsel for the appellant to gauge whether there is

any need to hear the counsel for the only contesting respondent viz. Ms.

Sangeeta.

5. At the outset, it may be stated that though the Trial Court record

had been requisitioned to this Court but appears to have been sent back

when the appeal was dismissed in default and upon being re-

requisitioned, it is informed that the same has been weeded out /

destroyed. The counsel for the appellant has however handed over his file

for perusal of the pleadings, evidence, etc.

6. The appellant instituted the suit from which this appeal arises,

pleading:

(i) that the deceased respondent / defendant Smt. Laxmi Bai had

on 12.06.1989 entered into an agreement with him for sale of

the property aforesaid for a total sale consideration of

Rs.4,75,000/- and the same day the appellant / plaintiff paid

to the deceased respondent / defendant Rs.1,00,000/- as

earnest money;

(ii) that the deceased respondent / defendant acknowledged

receipt of Rs.1,00,000/- in the Agreement to Sell as well as

in a separate confirmation executed by her;

(iii) that as per the terms and conditions of the Agreement, the

balance amount of sale consideration was to be paid by the

appellant / plaintiff at the time of execution of the final

document of sale i.e. registered sale deed, after getting the

sanctioned plan of the said property from the Delhi

Development Authority (DDA) and final payment was to be

paid upto 06.09.1993;

(iv) that the appellant / plaintiff told the deceased respondent /

defendant several times to perform her part of the contract

and thereafter accept the balance amount of sale

consideration but the deceased respondent / defendant did

not pay any heed in that respect;

(v) that all the formality for sale of the said property in the name

of the appellant / plaintiff was to be completed by the

respondent / defendant up to 06.09.1993 but the same could

not be completed because of the delay and lapses on the part

of the deceased respondent / defendant;

(vi) that the appellant / plaintiff lastly got served a registered

notice and a telegraphic notice dated 02.09.1993 through his

advocate upon the deceased respondent / defendant calling

upon her to get the sale deed executed in favour of the

appellant / plaintiff and to receive the balance sale

consideration of Rs.3,75,000/- but the deceased respondent /

defendant failed to reach the Sub-Registrar‟s office on

06.09.1993;

7. The deceased respondent / defendant contested the suit, by filing a

written statement, on the grounds:

(a) that the agreement dated 12.06.1989 between the parties had

already been cancelled as the appellant / plaintiff had failed

to pay the balance amount of consideration i.e.

Rs.14,00,000/- within one month of the Agreement i.e. upto

11.07.1989 and the deceased respondent / defendant sent a

legal notice on 19.07.1989 and telegraphic message

informing the appellant / plaintiff that the agreement dated

12.06.1989 between the parties had been cancelled and the

advance of Rs.1,00,000/- had been forfeited;

(b) that the appellant / plaintiff had failed to even reply to the

said notice and telegram;

(c) that the appellant / plaintiff had instituted the suit on the

basis of wrong facts and forged agreement; in fact the

appellant / plaintiff had agreed to purchase the property for a

total sale consideration of Rs.15,00,000/- and paid

Rs.1,00,000/- as advance and agreed to pay the balance

consideration of Rs.14,00,000/- within one month i.e. upto

11.07.1989;

(d) that the appellant / plaintiff obtained the thumb impression

of the deceased respondent/ defendant on the paper

explaining the said terms and the appellant / plaintiff later on

had manipulated, fabricated and forged the agreement by

filling the blanks without the consent and permission of the

deceased respondent / defendant, as was apparent from the

photocopy of the agreement supplied to the deceased

respondent / defendant;

(e) that the deceased respondent / defendant was an illiterate and

old lady who did not know reading and writing English,

Hindi or any other language and could only put her thumb

impression and had put her thumb impression in good faith

believing the appellant / plaintiff would pay the balance sale

consideration of Rs.14,00,000/- within one month;

(f) that the deceased respondent / defendant had already

transferred the property in favour of Smt. Shashi and thus the

suit had become infructuous;

(g) Denying that any confirmation of receipt of Rs.1,00,000/-

was executed by the deceased respondent / defendant; and,

(h) denying that as per the terms of the agreement, the sale deed

was to be executed after getting the sanctioned plan of the

property from the DDA.

8. The appellant / plaintiff filed a replication, denying the contents of

the written statement and reiterating the case in the plaint.

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

framed in the suit on 26.05.1995:

"1. Whether the agreement dated 12.06.89 is not enforceable in the eyes of law if yes to what effect? OPD

2. Whether the plaintiff is entitled to the relief claimed in the suit or not? OPP

3. Relief."

10. The appellant / plaintiff examined himself only in support of his

case. The judgment records that the deceased respondent / defendant

examined herself and also the wife of the appellant / plaintiff as the

defence witnesses.

11. The learned ADJ has vide the impugned judgment found /

observed / held:

(I) that the appellant / plaintiff in his cross-examination had

not named any property dealer through whom deal was

initiated between the parties and claimed to have directly

approached the deceased respondent / defendant for sale

of the house;

(II) that the appellant / plaintiff did not remember the names

of the persons who were present at the time of execution

of the agreement;

(III) the appellant / plaintiff did not know who bought the

stamp paper for execution of the agreement:

(IV) the appellant / plaintiff in his cross-examination also

deposed that the agreement was not drafted in his

presence and the deceased respondent / defendant had

got the agreement typed;

(V) that the appellant / plaintiff in his cross-examination

admitted that the Agreement to Sell was got typed before

the terms and conditions were settled between the

parties;

(VI) that the deceased respondent / defendant was admitted to

be an old illiterate lady;

(VII) that as per the Clause 2 of the Agreement to Sell, the

balance sale consideration was to be received by the

deceased respondent / defendant from the appellant /

plaintiff at the time of execution of the final document of

sale after getting the sanctioned plan of the property

from the DDA for further construction;

(VIII) that as per Clause 3 of the Agreement to Sell, the last

date for final payment was 06.09.1993;

(IX) the aforesaid were unreasonable terms and conditions in

the contract; when sale consideration and period of

execution of the sale deed was disputed by the deceased

respondent / defendant, it was for the appellant / plaintiff

to specifically prove it by leading positive evidence;

(X) that it did not appeal to reason that a person entering into

an agreement of sale of her property would agree that he

would sell the property at the prevalent market rate of

1989 and receive the payment in 1993, after more than

four years of entering into the agreement;

(XI) no reason for fixing the date of completion of sale after

four years and three months had been furnished;

(XII) no evidence had been led by the appellant / plaintiff as to

why such unreasonable period was fixed between the

parties for execution of the sale deed;

(XIII) that the version of the deceased respondent / defendant,

of the sale to be completed within one month appeared,

to be near to the truth as compared to the version of the

appellant / plaintiff;

(XIV) in the ordinary course of business, period of one to six

months is normally fixed for completion of the sale;

(XVI) that while the Agreement to Sell was typed, the sale

consideration and the period of execution of the sale

deed were written in hand in ink;

(XVII) that the deceased respondent / defendant was an illiterate

lady and the person witnessing the agreement i.e. her son

was also an illiterate person; in the circumstances

presumption was that these gaps / blanks were filled by

the appellant / plaintiff in his handwriting according to

his own convenience and the appellant / plaintiff had

failed to prove why the period of execution of the sale

deed was fixed after four years and three months;

(XVIII) that the appellant / plaintiff for the first time in his

evidence had deposed that the respondent / defendant

had to take permission from DDA for selling the

property and which had not been obtained, when there

was no such condition in the written agreement relied

upon by the appellant / plaintiff and as per which

agreement, the only act to be performed by the deceased

respondent / defendant before executing the sale deed

was to get the sanctioned plan of the property from DDA

for further construction;

(XIX) equity and justice does not demand the seller to get the

building plan for future construction sanctioned from the

competent authority, before selling the property;

(XX) that even if it was to be presumed that it was so agreed

between the parties, it was for the appellant / plaintiff to

get the building plan prepared from some Architect and

hand over to the deceased respondent / defendant for

further construction;

(XXI) though the appellant / plaintiff had alleged that the

deceased respondent / defendant had failed to perform

her part of the contract but the appellant / plaintiff had

not specified as to what the deceased respondent /

defendant was required to perform and had failed to

perform;

(XXII) that the appellant / plaintiff neither pleaded nor deposed

that he got the site plan prepared according to

construction which he wanted to raise or that he handed

it over to the deceased respondent / defendant for

submitting to the DDA;

(XXIII) the appellant / plaintiff was thus a defaulter in not

engaging an Architect or not getting prepared any site

plan for enabling the deceased respondent / defendant to

get it sanctioned;

(XXIV) that during the whole period of over four years, the

appellant / plaintiff never approached the deceased

respondent / defendant that he was ready with the plan to

be submitted to the DDA; he never contacted the

deceased respondent / defendant that he was ready and

willing to make the payment of balance sale

consideration;

(XXV) no evidence had been led by the appellant / plaintiff that

on 12.06.1989 he was having sufficient funds for

purchasing the property or that at any point of time

during the period of over four years thereafter he was

ready with the money;

(XXVI) that since material parts of the Agreement to Sell were

handwritten in ink and only the secondary part of the

agreement was typed, it was for the appellant / plaintiff

to prove by positive evidence that all the terms and

conditions agreed upon between the parties were reduced

into writing;

(XXVII) equity and good conscience led to the conclusion, that

the deceased respondent / defendant never agreed to

receive the balance sale consideration after four years;

(XXVIII) that though the deceased respondent / defendant under ill

advise had examined the wife of the appellant / plaintiff

as DW-2 to prove that the legal notice sent by the

deceased respondent / defendant cancelling the

agreement was received by the wife of the appellant /

plaintiff but since the correct address of the appellant

/plaintiff was existing on the AD card, there was a

presumption that it was received by the deceased

respondent / defendant; and,

(XXIX) that though the appellant /plaintiff in alternative to the

relief of specific performance had claimed a decree for

damages to the tune of Rs.4,75,000/- but without proving

the Agreement to Sell, he was not entitled to damages

also.

12. The counsel for the appellant / plaintiff has argued, that the defence

of the respondent / defendant, of the sale consideration being

Rs.15,00,000/- instead of Rs.4,75,000/- as mentioned in the Agreement to

Sell and of, the time of completion of the sale being one month from the

Agreement of Sell instead of after four years and three months of the

Agreement to Sell, is barred by Sections 91 and 92 of the Evidence Act,

1872. It is further contended that the deceased respondent / defendant

failed to produce her son Sh. Sukhdev who was a witness to the

Agreement to Sell and who alone could have deposed about the terms and

conditions agreed upon between the parties. Reliance is placed on Sanjay

Puri Vs. Radhey Lal 2006 (91) DRJ 471 where this Court held that in

relation to immovable property, specific performance is the rule and non

grant of decree for specific performance an exception. It is yet further

contended that there are no alterations in the Agreement to Sell and

illiteracy of the deceased respondent / defendant cannot be a ground for

denying a relief to the appellant / plaintiff and there is no presumption of

the agreement being false for the said reason. Reliance is also placed on

Ritu Mercantiles Pvt. Ltd. Vs. Leelawati 201 (2013) DLT 301 on the

principles of Sections 91 & 92 of the Evidence Act, 1872.

13. I have considered the contentions of the counsel for the appellant /

plaintiff and am unable to find the same to be such as to sway me from

taking the same view as taken by the learned ADJ and with which I fully

agree and which is on the correct appreciation of the evidence recorded

before the Ld. ADJ.

14. I may also add that the appellant / plaintiff is found wanting in

readiness and willingness in the matter of conduct of the proceedings

also. Though the deceased respondent / defendant in her written statement

itself had taken a stand of having transferred the property to her daughter

Smt. Shashi but the appellant / plaintiff did not take any steps for

impleading the said Smt. Shashi as a party to the suit. Undoubtedly, there

is no sale deed by the deceased respondent / defendant in favour of her

daughter Smt. Shashi. However, the said fact has to be considered along

with the fact that there is no sale deed of the property in favour of the

deceased respondent / defendant even. From the documents on record, it

appears that the perpetual lease of the land underneath the property was

granted in favour of one Sh. Bhajan Lal who had executed the Agreement

to Sell, Power of Attorney, Will etc. in favour of the deceased respondent

/ defendant. Even though in this appeal also the counsel for the deceased

respondent / defendant stated that the interim injunction granted against

the deceased respondent / defendant was meaningless since the

respondent / defendant had already transferred the property to her

daughter Smt. Shashi but the appellant / plaintiff still did not take any

steps for impleading the said Smt. Shashi as a party to this appeal. Not

only so, though the deceased respondent / defendant died in 2000, the

appellant / plaintiff did not take any steps whatsoever for substitution of

her legal heirs and did not even pursue the appeal which was dismissed in

default. The appellant / plaintiff is found to have dragged his feet even in

service of notice of the application for substitution and inspite of being

informed of the deceased respondent / defendant, besides her son Sh.

Sukhdev Singh whose impleadment was sought, having also left another

son viz. Sh. Sukha Ram, no impleadment of the said Sh. Sukha Ram was

sought. In fact, seeing such conduct of the appellant / plaintiff, it was

observed in the order dated 04.10.2013 that the same indicated the lack of

readiness and willingness of the appellant / plaintiff which is essential in

a claim for specific performance. The counsel for the appellant / plaintiff

has argued this appeal also, upon literally being forced by this Court.

15. The learned ADJ is correct in her observation that the conditions in

the Agreement to Sell, of completion of sale after four years and three

months and for the deceased respondent / defendant to get the sanction of

the property from the DDA for further construction were out of the

ordinary and a doubt having been cast with respect thereto, it was for the

appellant / plaintiff to remove the same. It may be mentioned that the

total sale consideration of Rs.4,75,000/- in figures as well as in words as

well as the date of 06.09.2013 as the date of final payment, have been

filled up in hand in the Agreement to Sell. Similarly, in Clause No.2,

entitling the deceased respondent / defendant to the balance sale

consideration after getting the sanction of the suit property from the

DDA, the words "for further construction" are in a different font. The

Agreement to Sell is not signed by the deceased respondent / defendant

but bears her thumb impression. The Division Bench of this Court in

judgment dated 15.03.2013 in RFA(OS) No.53/2007 titled as C.L. Jain

Vs. Raghubir Singh has held that where an literate person deals with

villagers in relation to contractual matters, documents of utmost purity

should be got executed and not documents shrouded with suspicion and

that he who is in a better bargaining position owes a greater duty of

reasonable care and this would equally apply to a person having more

knowledge and wisdom in the worldly affairs. The principle so laid down,

squarely applies to the present situation.

16. Reference may also with benefit be made to Saradamani

Kandappan Vs. S. Rajalakshmi (2011) 12 SCC 18 where notice has been

taken of galloping inflation and price of immovable property having

increased by leaps and bounds and market values of properties being no

longer stable or steady. In this light, the term in the Agreement to Sell of

payment of balance sale consideration after four years and three months

has rightly been held by the learned ADJ to be prejudicial to the deceased

respondent / defendant also.

17. The relief of specific performance is a discretionary relief. Section

20(2) of the specific Relief Act, 1963 provides that the Court may

properly exercise discretion not to decree the specific performance where

inter alia the terms of the contract or the conduct of the parties at the time

of entering into the contract or other circumstances under which the

contract was entered into are such that the contract, though not voidable,

gives the plaintiff an unfair advantage over the defendant. The facts of the

present case certainly fall in the said category. The reasoning of the

learned ADJ with respect to Clause 2 of the Agreement to Sell, requiring

the deceased respondent / defendant to get the plan for further

construction on the property sanctioned from the DDA, is also found

apposite to the facts of the case.

18. No merit is thus found in the appeal which is dismissed. However,

no order as to costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J NOVEMBER 25, 2013 „gsr/M‟..