Akhtar Ali (Through Lr???S) vs Bimla Devi & Ors.
2013 Latest Caselaw 4852 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 23rd October, 2013

+      RFA 418/1990 & CM Nos.10787/2009 & 10789/2009 (both for
       condonation of delay), CM No.10788/2009 (for restoration) & CM
       No.10786/2009 (u/O 22 R-3 CPC)

       AKHTAR ALI (THROUGH LR'S)                ..... Appellant
                    Through: Mr. Pramod Kumar and Mr. Manish
                             Garg, Advocates.

                                Versus

    BIMLA DEVI & ORS.                         ..... Respondents

Through: Mr. Hameed S. Shaikh, Adv. for R-9.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 9 th February, 1990

of the Sub Judge, 1st Class, Delhi in Suit No.248/1989 filed by the appellant

against the respondents for the relief of specific performance of an

Agreement of Sale of immovable property and in the alternative for refund

of advance paid with interest and compensation; by the impugned judgment,

the appellant/plaintiff has been denied the relief of specific performance and

has been granted a decree against the respondents/defendants no.1 to 8 for

recovery of Rs.10,000/- with future interest at 12% per annum and

proportionate costs.

2. The appellant/plaintiff, on 23rd August, 1983, had instituted the suit

from which this appeal arises pleading:-

(a). that the respondents/defendants no.1 to 8 had vide Agreement

dated 4th March, 1983 agreed to sell their property No.6777

situated inside Akata Kidara, Bara Hindu Rao, Delhi to the

appellant/plaintiff for a total sale consideration of Rs.16,000/-

out of which the appellant/plaintiff paid Rs.5,000/- at the time

of Agreement to Sell;

(b). that the sale was agreed to be completed by executing the Sale

Deed in favour of the appellant/plaintiff within one month of

the Agreement to Sell i.e. by 3rd April, 1983;

(c). it was stated in the Agreement to Sell that possession of the

property was with Ashraf Ali father of the appellant/plaintiff

who was a tenant in the property at a rent of Rs.4/- per month

since the year 1934;

(d). that the appellant/plaintiff as such since his birth has been

residing in the property and had entered into the agreement to

save his family from displacement therefrom at any time;

(e). that though there was a provision in the Agreement to Sell that

if the respondents/defendants no.1 to 8 committed default in

execution of the Sale Deed they shall be liable to refund the

earnest money and pay liquidated sum of Rs.5,000/- as damages

to the appellant/plaintiff but the said stipulation was made for

the purpose of securing performance of the contract and not for

giving the respondents/defendants no.1 to 8 an option of paying

the money in lieu of specific performance;

(f). that the appellant/plaintiff had always been ready and willing to

perform his part of the agreement and had on 24 th March, 1983

also purchased non-judicial stamp papers for execution of the

Sale Deed and had got prepared a plan of the property for being

registered along with the Sale Deed;

(g). that the appellant/plaintiff repeatedly requested the

respondents/defendants no.1 to 8 to execute the Sale Deed and

receive the balance sale consideration but they continued

putting off the appellant/plaintiff on one pretext or other;

(h). that ultimately the appellant/plaintiff got sent notice dated 30 th

March, 1983 to the respondents/defendants no.1 to 8 expressing

his willingness and calling upon them to execute the Sale Deed;

(i). that the respondents/defendants no.1 to 8 vide reply dated 7 th

April, 1983 of their Advocate took a stand that the

appellant/plaintiff had expressed his inability to purchase the

property and therefore the respondents/defendants no.1 to 8 had

entered into an Agreement with another buyer and executed the

Sale Deed in his favour and the appellant/plaintiff could have

the remedy available to him to receive Rs.5,000/-;

(j). that the appellant/plaintiff had never expressed inability to

purchase the property and the sale by the

respondents/defendants no.1 to 8 in favour of the

respondent/defendant no.9 on 26 th March, 1983 is deceitful,

collusive and sham, being even before the expiry of the time

stipulated in the agreement for execution of Sale Deed in favour

of the appellant/plaintiff and also for the reason that while the

sale in favour of the appellant/plaintiff was to be for

Rs.16,000/- the sale effected in favour of the

respondent/defendant no.9 was for Rs.9,500/- only; and,

(k). that the respondent/defendant no.9 had purchased the property

with knowledge of the Agreement of Sale with the

appellant/plaintiff; the respondent/defendant no.9 along with

her husband had come to see the house on 10th March, 1983

informing that she was interested in purchasing the same and

the appellant/plaintiff had informed the respondent/defendant

no.9 and her husband of the Agreement to Sell in his favour and

had in fact also shown the said Agreement to them and upon

seeing which they had said that they were not interested in

buying litigation; however they had collusively still gone ahead

and purchased the property to defeat the rights of the

appellant/plaintiff.

3. The respondents/defendants no.1 to 8 contested the suit by filing a

written statement, on the grounds:-

(i). that the title of the property having already passed to the

respondent/defendant no.9, the suit against the

respondents/defendants no.1 to 8 was not maintainable;

(ii). though admitting the execution of the Agreement to Sell but

denying execution of any separate receipt of Rs.5,000/- and also

denying having undertaken to complete the transaction by

executing the Sale Deed by 3rd April, 1983;

(iii). that the respondent/defendant no.1 is an illiterate lady and does

not know the contents of the document got executed from her;

the appellant/plaintiff got signed certain blank form/stamp

paper from her under the belief that the same were for the rent

of the premises;

(iv). denying that the father of the appellant/plaintiff was a tenant in

the premises since 1934 or that the appellant/plaintiff was

residing in the premises since birth;

(v). denying that the appellant/plaintiff had been ready and willing

to perform his part of the Agreement;

(vi). that the appellant/plaintiff never approached the

respondents/defendants no.1 to 8 for doing the needful; rather

when they approached the appellant/plaintiff he failed to do the

needful;

(vii). that when the respondents/defendants no.1 to 8 did not receive

any positive reply from the appellant/plaintiff they entered into

an Agreement with the respondent/defendant no.9;

(viii). denying that the sale in favour of the respondent/defendant no.9

was collusive;

(ix). that since the appellant/plaintiff had informed the

respondents/defendants no.1 to 8 before hand that he was not in

a position to furnish the balance consideration or even the

money for the purchase of the stamp papers for execution of the

Sale Deed, the Agreement to Sell was revoked and the

appellant/plaintiff informed well in advance of the sale in

favour of the respondent/defendant no.9;

(x). that the respondents/defendants no.1 to 8 needed the money in

emergency in view of the approaching marriage of the son of

the respondent/defendant no.1 and the sale was thus carried out

for even lesser amount; and,

(xi). denying that the respondent/defendant no.9 was aware of the

Agreement of the respondents/defendants no.1 to 8 with the

appellant/plaintiff.

4. The respondent/defendant no.9 also contested the suit by filing a

separate written statement on the grounds:-

(A). denying that the respondent/defendant no.9 had any knowledge

of the Agreement to Sell in favour of the appellant/plaintiff;

(B). that the respondent/defendant no.9 purchased the property in

good faith and acting on the promises and assurances of the

respondents/defendants no.1 to 8 that the property was free

from all liens, charges, transfers, disputes, legal flaws etc.;

(C). that the Agreement to Sell had been fabricated by the

respondents/defendants no.1 to 8 in collusion with the

appellant/plaintiff;

(D). denying that the father of the appellant/plaintiff was a tenant in

the property since the year 1934;

(E). that the respondent/defendant no.9 paid in all a sum of

Rs.25,000/- to the respondents/defendants no.1 to 8; a sum of

Rs.15,500/- was appropriated towards the price of fixtures and

fittings installed in the premises and the remaining amount of

Rs.9,500/- was received towards sale of land and

superstructure;

(F). denying that the respondent/defendant no.9 had gone to see the

house or that the appellant/plaintiff had informed her of the

Agreement to Sell in his favour; and,

(G). that the Agreement to Sell set-up by the appellant/plaintiff was

not specifically enforceable and compensation in terms of

money was the only adequate relief.

5. The appellant/plaintiff filed replications to the written statements but

the same are mere reiteration of the contents of the plaint.

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

the suit on 25th July, 1986:-

"1) Whether the defendant entered into agreement of specific performance or in the alternative whether the plaintiff is entitled to recover any amount from the defendant?

              2)    Whether the plaintiff has no cause of action against
                    the defendant? OPD
              3)    Relief."

7. The appellant/plaintiff besides himself examined two other witnesses.

The appellant/plaintiff and his witnesses were cross examined by both, the

counsel for the respondents/defendants no.1 to 8 and counsel for the

respondent/defendant no.9. However thereafter the respondents/defendants

no.1 to 8 stopped appearing and were proceeded against under Order 17

Rule 2 CPC vide order dated 28th August, 1989 and the suit fixed for

evidence of the respondent/defendant no.9. The respondent/defendant no.9

examined herself only in her defence and closed her evidence.

8. The learned Sub Judge, in the impugned judgment, has

found/observed/held:-

(I). that since the Agreement to Sell was admitted by the

respondents/defendants no.1 to 8, it could be read in evidence

and had also been properly proved by the appellant/plaintiff;

(II). a perusal of the Agreement to Sell showed that it did not

contain any clause for specific performance of the contract and

only provided that in case the respondents/defendants no.1 to 8

committed default, then the appellant/plaintiff can claim

damages to the tune of Rs.5,000/-;

(III). so the appellant/plaintiff could not ask for specific performance

of the contract;

(IV). however since the respondents/defendants no.1 to 8 had even

before the expiry of one month's time given under the

agreement to sell to the appellant/plaintiff for purchase of the

property, sold the property to the respondent/defendant no.9,

this fact alone showed that the respondents/defendants no.1 to 8

were in default of performance of their part of the contract and

the appellant/plaintiff was thus entitled to recover damages

from the respondents/defendants no.1 to 8 as agreed and to also

receive refund of earnest money of Rs.5,000/-; the

appellant/plaintiff was thus entitled to recover a sum of

Rs.10,000/- from the respondents/defendants no.1 to 8;

(V). that the appellant/plaintiff in his affidavit had failed to prove

that the respondent/defendant no.9 had knowledge of the

Agreement to Sell in his favour;

(VI). that though the plea of the appellant/plaintiff in the plaint was

that the respondent/defendant no.9 had come to see the property

along with her husband but in evidence it was suggested that

the respondent/defendant no.9 had come along with her sister's

husband;

(VII). that the respondent/defendant no.9 had denied ever visiting the

property or having been informed of the Agreement to Sell;

and,

(VIII). that the appellant/plaintiff had thus failed to establish any

cause of action against the respondent/defendant no.9.

accordingly, the relief of specific performance was declined and the

alternate relief of recovery of money granted.

9. The appeal was on 10th January, 1991 admitted for hearing. On 11 th

July, 1997 the application of the appellant/plaintiff for stay of eviction

proceedings instituted as well as for early hearing of the appeal was

dismissed. The appeal was on 19 th November, 2008 dismissed in default of

appearance of the appellant/plaintiff. After more than seven months, in or

about July, 2009 application for substitution of legal heirs of the

appellant/plaintiff (who died on 26 th March, 2009) and for condonation of

delay in applying therefor and applications for restoration of the appeal and

for condonation of delay in applying therefor were filed pleading that the

legal heirs of the deceased appellant/plaintiff were unaware of the

proceedings and the Advocate engaged by the appellant/plaintiff had also

died and learnt of the proceedings upon receiving notice of an application

for early hearing of a Revision Petition being C.R. No.410/2003 arising

from the eviction proceedings. Notices of the said applications were issued

and the proceeding remained pending for the last nearly four years at the

said stage. Even though the respondents/defendants no.1 to 8 were ex parte

before the Trial Court and had not entered appearance in this appeal also but

still repeated steps were taken by the legal heirs of the appellant/plaintiff for

their service and ultimately they were got served by publication and have not

appeared. The respondent/defendant no.9 has contested the application by

filing a reply inter alia pleading the negligence of the deceased

appellant/plaintiff and his legal heirs.

10. Considering that the appeal is of the year 1990, the counsel for the

legal heirs of the deceased appellant/plaintiff and for the

respondent/defendant no.9 were asked to address arguments on the merits of

the appeal also, while addressing arguments on the applications for

substitution and for restoration of the appeal to its original position and have

been so heard.

11. The counsel for the appellant/plaintiff has contended:-

(a). that the onus to prove that the respondent/defendant no.9 was

the bona fide purchaser for value without notice of the prior

Agreement to Sell in favour of the appellant/plaintiff was on the

respondent/defendant no.9;

(b). that since the family of the appellant/plaintiff was in possession

of the property, the respondent/defendant no.9 ought to have

been put to enquiry and on making such enquiry would have

learnt of the prior Agreement to Sell in favour of the

appellant/plaintiff;

(c). reliance in this regard is placed on:-

(i). Section 3 of the Transfer of Property Act, 1882

providing that a person is said to have notice of a

fact when he actually knows that fact or when but

for the willful abstention from an enquiry or search

which he ought to have made or gross negligence,

he would have known it and on Explanation II

thereto deeming notice to a person acquiring

immovable property of the title if any of any

person in possession of such property;;

(ii). definition of 'good faith' in Section 52 of the

Indian Penal Code, 1860 as being not which is

done without due care and attention;

(iii). definition of 'good faith' in Section 3 (22) of the

General Clauses Act, 1897 as thing done honestly,

whether it is done negligently or not;

(iv). R.K. Mohammed Ubaidullah Vs. Hajee C. Abdul

Wahab (2000) 6 SCC 402 - laying down that the

onus to prove good faith is on the purchaser who

takes the plea and that it is essential that the

subsequent purchaser should make an enquiry as to

the title or interest of the person in actual

possession and of further interest if any acquired

by him;

(v). Guruswamy Nadar Vs. P. Lakshmi Ammal (2008)

5 SCC 796 following R.K. Mohammed

Ubaidullah supra;

(vi). Har Narain Vs. Mam Chand (2010) 13 SCC 128

- laying down that enquiry at the time of the

subsequent transaction is material; and,

(vii). Municipality of Bhiwani and Nizampur Vs. M/s.

Kailash Sizing Works (1974) 2 SCC 596 also on

what is good faith.

(d). It is argued that the claim of the respondent/defendant no.9 of

having purchased the property without even visiting the same

itself establishes that the respondent/defendant no.9 is not a

bona fide purchaser;

(e). that the collusion between the respondents/defendants no.1 to 8

and the respondent/defendant no.9 is writ large from the sale to

the respondent/defendant no.9 for a consideration lesser than

agreed with the deceased appellant/plaintiff; and,

(f). reliance is placed on judgment dated 20th February, 2013 of the

Supreme Court in Civil Appeal No.1457/2013 titled Mata

Prasad Mathur Vs. Jwala Prasad Mathur on the aspect of

condonation of delay in applying for substitution of the legal

heirs of the deceased appellant/plaintiff.

12. The counsel for the respondent/defendant no.9 has contended that in

view of the following clause in the Agreement to Sell, in which the

respondents/defendants no.1 to 8 were described as the first party and the

appellant/plaintiff as the second party:-

"the parties have agreed to complete the sale transaction within one month of the signing of this Agreement. In case the second party backs out from this Agreement, the first party shall be entitled to forfeit the earnest money and if the first party commits a default in execution of Sale Deed, the first party shall be liable to refund the earnest money and pay a liquidated sum of Rs.5,000/- (Rupees Five Thousand Only) as damages."

the relief of specific performance is not available. It is also contended

that the appellant/plaintiff having not sought the relief of cancellation of the

sale in favour of the respondent/defendant no.9, is not entitled to any relief

against the respondent/defendant no.9 in whom the title to the property now

vests.

13. I may at the outset state that the Court of minimum pecuniary

jurisdiction, after change in valuations of the Courts, to hear this appeal

against the judgment and decree of the Court of the Sub Judge 1st Class

would not be this Court but the Court of the District Judge/Addl. District

Judge. However after the appeal has remained pending in this Court for 23

years without any counsel highlighting the said fact, it was not deemed

expedient to at this stage transfer the appeal and the arguments were heard.

14. As far as the pending applications, for substitution of legal

representatives of the deceased appellant/plaintiff and for restoration of the

appeal dismissed in default on 19th November, 2008 and for condonation of

delay in applying therefor are concerned, in the face of the admitted demise

of the appellant/plaintiff on 26th March, 2009 i.e. within a few months of the

date when the appeal was dismissed in default as well as the demise of the

Advocate of the appellant/plaintiff, I am inclined to condone the delays in

applying for substitution of legal representatives and for restoration of the

appeal and also find the same to be a sufficient reason for non-appearance of

the appellant/defendant on 19 th November, 2008 when the appeal was

dismissed in default . The suit claim being for specific performance of an

agreement of purchase of immovable property, the cause of action is also

found to survive. Therefore the delays in applying for substitution of legal

representatives and in applying for restoration of the appeal are condoned

and the legal heirs of the deceased appellant/plaintiff are substituted in his

place and the appeal restored to its original position. The amended memo of

parties already filed is taken on record. None having appeared for the

respondents/defendants no.1 to 8; they are proceeded against ex parte in this

appeal.

15. As far as the merits of the appeal are concerned, as aforesaid the

learned Sub Judge has, (i) held the Agreement to be not specifically

enforceable; (ii) held the respondents/defendants no.1 to 8 to be in breach

and resultantly liable for agreed compensation to the appellant/plaintiff; and,

(iii) held the respondent/defendant no.9 to be bona fide purchaser for value

without notice of the prior Agreement to Sell in favour of the

appellant/plaintiff.

16. As far as the first of the aforesaid findings is concerned, though a two

Judge Bench of Supreme Court in Dadarao Vs. Ramrao (1999) 8 SCC 416

had also held agreements providing for consequences of breach to be not

specifically enforceable but subsequently another two Judge Bench in P.

D'souza Vs. Shondrilo Naidu (2004) 6 SCC 649 held the judgment in

Dadarao to be per incuriam and observed that merely because the

Agreement to Sell provides for payment by the sellers of compensation in

the event of being in breach, does not take away the right of the purchaser to

in law seek specific performance of the Agreement to Sell. Recently, in Man

Kaur Vs. Hartar Singh Sangha (2010) 10 SCC 512 also it has been held

that for an agreement purchaser to seek specific performance of a contract of

sale relating to immovable property, it is not necessary that the contract

should contain a specific provision that in the event of breach, the aggrieved

party will be entitled to specific performance and the provision for damages

is not intended to provide the vendor an option of paying money in lieu of

specific performance. The impugned judgment thus, in so far as holding the

agreement to sell to be not specifically enforceable for the reason of

providing for compensation payable by respondents/defendants no.1 to 8

sellers in the event of breach or for the reason of the agreement not

providing for specific performance, is erroneous.

17. There is no merit also in the contention of the counsel for the

respondent/defendant no.9 of the appellant/plaintiff being required to seek

the relief of cancellation of the sale in favour of the respondent/defendant

no.9. The Supreme Court as far back as in Lala Durga Prasad Vs. Lala

Deep Chand AIR 1954 SC 75 reiterated recently in Thomson Press (India)

Ltd. Vs. Nanak Builders & Investors Pvt. Ltd. (2013) 5 SCC 397 held that

there is no need to seek such cancellation or setting side and the plaintiff if

found entitled to the relief of specific performance is entitled to a direction

against the subsequent purchaser to join in the conveyance so as to pass on

the title which resides in him to the plaintiff.

18. Though the respondent/defendant no.9 in her written statement had

taken a plea that the Agreement to Sell in favour of appellant/plaintiff is the

result of collusion between appellant/plaintiff and respondents/defendants

no.1 to 8 after sale in favour of respondent/defendant no.9 but appears to

have not pressed the same. There is also no challenge to the finding of

the learned Sub Judge of the respondents/defendants no.1 to 8 being in

breach of the Agreement to Sell. Though there is no express finding of the

appellant/plaintiff having been ready and willing but that impliedly follows.

In the absence of challenge or any argument, I do not find any reason to

disturb the said finding.

19. However for the appellant/plaintiff to be entitled to specific

performance against respondent/defendant no.9, it has to be adjudicated

whether the respondent/defendant no.9 who is admittedly a transferee for

value, paid the sale consideration to respondents/defendants no.1 to 8 in

good faith and without notice of agreement to sell in favour of

appellant/plaintiff. The learned Trial Court has held the

respondent/defendant no.9 to be such a transferee i.e. transferee for value

who has paid money in good faith and without notice of the original

contract. What needs to be adjudicated is whether such a finding is

erroneous, to be disturbed in this appeal. Even if it were to be held that the

respondent/defendant no.9 is not so, it will also have to be adjudicated

whether discretion implicit in the grant of relief of specific performance is to

be exercised in favour of appellant/plaintiff.

20. I have with this intent perused the evidence recorded. The

appellant/plaintiff has proved the Agreement to Sell, receipt, legal notice got

sent by him, reply of respondents/defendants no.1 to 8 thereto as well as the

stamp papers purchased by him. His cross examination comprises only of

suggestions as per the written statements of the respondents/defendants no.1

to 8 and respondent/defendant no.9. PW2 Shri Rohtas Kumar examined by

the appellant/plaintiff is an attesting witness to the Agreement to Sell who

proved payment of earnest money in cash at the time of execution thereof.

He in his cross examination admitted that only the respondents/defendants

no.2&3 and the appellant/plaintiff had signed the Agreement in his presence

and the respondent/defendant no.1 and the respondents/defendants no.4 to 8

had not signed the Agreement in his presence or at the same time. The oral

evidence of PW3 examined by the appellant/plaintiff is not material. The

respondent/defendant no.9 in her deposition reiterated the contents of her

written statement and proved the original Agreement to Sell and Sale Deed

in her favour showing the total price paid by her as Rs.25,000/- and denied

knowledge of prior Agreement in favour of the appellant/plaintiff. In cross

examination she withstood her ground that though she knew that the

property was tenanted but had neither gone to see the property nor was

informed by the appellant/plaintiff of the prior Agreement to Sell in his

favour.

21. Though specific performance of an agreement can only be against the

parties to an agreement but Section 19(b) of the Specific Relief Act, 1963

enables specific performance also against a person claiming under a party to

an agreement by a title arising subsequent to the agreement of which specific

performance is claimed, except against a transferee for value who has paid

his money in good faith and without notice of the original contract.

22. The learned Sub Judge has held that the respondent/defendant no.9

had no notice of the prior Agreement to Sell with the appellant/plaintiff.

Though it was the case of the appellant/plaintiff that he himself had

informed the respondent/defendant no.9 of such Agreement upon the

respondent/defendant no.9 visiting the property prior to purchase but he

learned Sub Judge has held the appellant/plaintiff to be unsuccessful in

having proved so. The appellant/plaintiff had given his bare word on the said

aspect. As against that there is on record a bare denial of the

respondent/defendant no.9. The appellant/plaintiff in cross examination of

the respondent/defendant no.9 could not shake her on this aspect. The

appellant/plaintiff did not examine any independent witness to prove such

visit by the respondent/defendant no.9. It is also not the case of the

appellant/plaintiff that the appellant/plaintiff immediately after the said visit

protested to the respondents/defendants no.1 to 8 as to why they were

negotiating with others when they had an Agreement to Sell with the

appellant/plaintiff, as the appellant / plaintiff in normal course of human

behaviour would have done. The appellant/plaintiff even in the notice

preceding the suit did not state that the respondents/defendants no.1 to 8 had

sent respondent/defendant no.9 to see the property.

23. Considering the custom of parda practiced amongst muslims specially

of the locality to which the appellant/plaintiff as well as the

respondent/defendant no.9 belong, the version of the appellant/plaintiff of

having directly intimated so to the respondent/defendant no.9 is improbable.

The appellant/plaintiff has not examined any other family member who may

be present at the time of her visit, specially lady family members who may

have interacted with the respondent/defendant no.9 during the visit. The

likelihood of the appellant/plaintiff and his family members permitting

strangers as the respondent/defendant no.9 and whosoever accompanying

her inside their house is also improbable. The time of the visit has not been

deposed and as to how the appellant/plaintiff could be said to be present in

the house at that time. The appellant/plaintiff has not examined his father

who is stated to be a tenant in the property. It cannot be lost sight of that the

respondents/defendants no.1 to 8 denied that the appellant/defendant was a

resident of the said premises and the appellant/plaintiff has not proved any

document in that regard. Besides, there is the inconsistency on record as

noticed by the leaned Sub Judge, of the appellant/plaintiff at one stage

stating that the respondent/defendant no.9 had visited along with her

husband and at the later stage stating that she had visited along with her

sister's husband. Thus, the version of the appellant/plaintiff of actual

knowledge by respondent/defendant no.9 of Agreement to Sell in favour of

appellant/plaintiff, cannot be accepted. The counsel for the

appellant/defendant has also not argued so. His emphasis has been on the

lack of enquiry by the respondent/defendant no.9 prior to purchase and the

resultant inference of the respondent/defendant no.9 having not paid money

in good faith and without notice.

24. The next question is, whether respondent/defendant no.9 can be said

to have deemed notice of Agreement to Sell in favour of appellant/plaintiff.

The Supreme Court in R.K. Mohammed Ubaidullah relied upon by

appellant/plaintiff in this regard held that a subsequent purchaser is required

to inquire as to the title or interest of the person in actual possession of the

property as on the date when the sale transaction is made in its favour and

not merely of such person's title when he entered into possession as a person

after entering into possession in one capacity, say as a tenant, later on may

become a usufructuary mortgagee or an agreement purchaser. The same

view, besides in Guruswamy Nadar & Har Narain supra, is also found to

have been followed in Sargunam Vs. Chidambaram (2005) 1 SCC 162.

However the claim of the appellant/plaintiff in the present case of being in

possession of the property is not in his own right but as a son of the tenant in

possession of the property. Notice imputed, in the judgments aforesaid, of

title, is of the person in possession in his own right and not of title of others

who may be in use and occupation of the premises along with such person in

possession in his own right. The appellant/plaintiff as aforesaid has utterly

failed to show/establish the knowledge or involvement in purchase, of his

father who was the tenant in possession of the property. I am, in the facts

and circumstances of the case unable to extend the principle of law

enunciated in the judgments supra of deemed notice of title of the family

members or the acquaintances of the person in possession of the property. It

would have been a different matter had the father of the appellant/plaintiff

deposed that the purchase was in his knowledge and to merge the title as

tenant into title as purchaser of the property.

25. I am therefore unable to impute deemed notice even to the

respondent/defendant no.9 of the Agreement to Sell in favour of the

appellant/plaintiff.

26. I am also unable to find the conduct of the respondent/defendant no.9

lacking in good faith though she may be negligent in not visiting the

property prior to purchase and buying it merely on representations of the

respondents/defendants no.1 to 8. However negligence is not antithesis of

good faith.

27. Even otherwise the relief of specific performance is a discretionary

relief and I am for the reasons herein below appearing not inclined to

exercise the discretion in favour of the appellant/plaintiff:-

(a). it cannot be lost sight of that the father of the appellant/plaintiff

was a tenant in the property at a meagre rent of Rs.4/- per

month but according to the appellant/plaintiff himself, for half a

century prior to the execution of the Agreement to Sell. Judicial

notice can be taken of the fact that till then the Delhi Rent

Control Act, 1958 had not been amended (which was amended

in the year 1988) and the possibility of the

respondents/defendants no.1 to 8 prior thereto evicting the

father of the appellant/plaintiff from the property was remote.

(b). it stands established that the respondent/defendant no.9 has paid

a total consideration amount of Rs.25,000/- to the

respondents/defendants no.1 to 8 for the property i.e. Rs.9,000/-

more than what the appellant/plaintiff had offered.

(c). the two transactions are nearly simultaneous i.e. within few

days of each other and thus obviously the price offered by the

appellant/plaintiff was depressed price, taking advantage of the

tenancy in favour of the father of the appellant/plaintiff.

(d). thus the terms of the contract or the conduct of the parties at the

time of entering into the contract gave the appellant/plaintiff an

unfair advantage over the respondents/defendants no.1 to 8

within the meaning of Section 20(2)(a) of the Specific Relief

Act and make specific performance inequitable within the

meaning of Section 20(2)(c) of the said Act.

(e). it is even otherwise not considered reasonable to now in appeal

exercise the discretion for specific performance of an agreement

which is now three decades old and when the ground realities

have changed substantially with the amendment to the Rent Act

and with the phenomenal change in values of real estate.

(f). the appellant/plaintiff, perhaps taking advantage of occupation

of the premises by his father as a tenant, is not found to have

acted very diligently in the matter; as aforesaid the applications

for substitution of legal representatives and for restoration were

not pressed, expedited and were unnecessarily kept pending for

about four years; a perusal of the order sheet shows laxity in

taking steps for service of the respondents/defendants no.1 to 8.

The appellant/plaintiff appears to have used the pendency of

these proceedings to delay eviction proceedings as a tenant. The

Supreme Court in Parakunnan Veetil Joseph's Son Mathew

Vs. Nedumbara Kuruvilas's Son 1987 Supp SCC 340 held that

motive behind litigation is a relevant factor in exercise of

discretion for grant of relief of specific performance.

(g). that the original appellant/plaintiff who had entered into the

agreement is now no more and the case of his legal heirs is that

they did not even know of the case and learnt of the same only

on receipt of the notice in the application for early hearing in

the eviction proceedings, thus though the right to sue may be

surviving but it is not as if the present appellants/plaintiffs who

are the legal heirs of the original appellant/plaintiff who had

entered into the agreement of which specific performance was

sought were pinning their hopes on the same. They are thus not

found to have a live interest in having the agreement

specifically enforced within the meaning ascribed by the

Supreme Court in para 39 of Satya Jain Vs. Anis Ahmed

Rushdie (2013) 8 SCC 131. Per contra he respondent/defendant

no.9 though having paid purchase consideration of Rs.25,000/-

for the property nearly three decades ago is still fighting

proceedings for eviction of the tenant in the premises and

would suffer further hardship if were to be now deprived even

of the title to the property. Such ground prevailed with the

Supreme Court in V. Muthusami Vs. Angammal (2002) 3 SCC

316 to decline specific performance.

(h). that though the conduct of the respondent/defendant no.9 in not

making enquiries from the tenant in occupation of the property

or in not visiting the property may be negligent but the same

cannot be said to be lacking in good faith. The

appellant/plaintiff set up a false case of the

respondent/defendant no.9 having visited the property, he

having informed her of the Agreement to Sell and of the

respondent/defendant no.9 having purchased the property for a

consideration lesser than offered by the appellant/plaintiff when

in the facts of the case it is unlikely that he did not know the

correct facts. The Supreme Court in Lourdu Mari David Vs.

Louis Chinnaya Arogiaswamy (1996) 5 SCC 589 held false

averments in pleadings to disentitle the plaintiff to the relief of

specific performance.

(i). the Supreme Court in A.C. Arvlappan Vs. Ahalya Naik (2001)

6 SCC 600 held that discretion will not be exercised in favour

of plaintiff if it would be inequitable to grant specific

performance;

(j). the Supreme Court recently in Vimaleshwar Nagappa Shet Vs.

Noor Ahmed Shariff (2011) 12 SCC 658 held that value of

property escalates very fast in urban areas and it would not be

equitable to grant specific performance after the lapse of a long

period. The subsequent judgment in Satya Jain Vs. Anis

Ahmed Rushdie (2013) SCC 131 supra also though not

disagreeing with the said proposition sought to balance the

equities by directing sale at prevalent market value, which was

directed to be determined; that however would not be specific

performance.

28. Thus besides affirming the finding of the learned Sub Judge of the

appellant/plaintiff being not entitled to the relief of specific performance

against the respondent/defendant no.9, independently of the same also it is

found that the appellant/plaintiff is not entitled to the discretion implicit in

the grant of relief of specific performance.

29. No merit is thus found in the appeal which is dismissed; however in

the facts no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J

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