Rajesh Kumar Gupta vs Sonia Bala Jain
2013 Latest Caselaw 4397 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                I.A. No. 9164/2012 in CS(OS) 1318/2011

%                                               Reserved on: 19th September, 2013
                                                Decided on: 25th September, 2013

RAJESH KUMAR GUPTA                                                 ..... Plaintiff
                 Through:                    Mr. Naresh Khanna, Advocate.

                                  versus

SONIA BALA JAIN                                               ..... Defendant
                                  Through:   Mr. Manoranjan, Advocate.

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

1.

By this application the Plaintiff seeks a decree as per provisions of

Order XXII Rule 4 r/w Section 151 CPC in favour of the Plaintiff and

against the Defendant directing the Defendant to execute and register sale

deed in favour of the Plaintiff in respect of the suit property and release the

balance sale consideration of Rs. 15 lakhs which stands deposited in this

Court to the Defendant and in case of failure on the part of the Defendant, to

appoint an officer of this Court to execute and register the sale deed of the

suit property in favour of the plaintiff.

2. Learned counsel for the Plaintiff/applicant contends that the

Agreement to Sell dated 3rd April, 2010 between the parties has not been

denied by the Defendant. Further the payment of Rs. 30 lakhs to the

Defendant has also not been denied. The Plaintiff had sent a notice dated

27th April, 2011 to the Defendant seeking specific performance of the

contract and in reply thereto no such defence has been taken which has been

now pleaded in the written statement. Only in the reply dated 15 th May,

2011 it is stated that the Plaintiff was required to pay a further sum of Rs. 10

lakhs beyond Rs. 15 lakhs. The claim of further sum of Rs. 10 lakhs is

clearly an after thought and there is no document in relation thereto. Hence

in view of the admissions made, the Plaintiff is entitled to decree as prayed

for.

3. Learned counsel for the Defendant on the other hand contends that the

Agreement to Sell cannot be read in piecemeal. Para-2 of the Agreement to

Sell dated 3rd April, 2010 clearly contemplates that the amount given would

be forfeited if the balance sale consideration was not paid by 10th November,

2019. The Defendant was only required to provide the approval certificate

for the lift. However, the Plaintiff started demanding the lift as well. In para-

9 of the plaint it is stated that the lift was not provided. There is no notice

before 10th November, 2010, which was the date when the contract was

required to be concluded, stating that the Plaintiff inspected the premises and

the work had not been completed. Thus the Plaintiff is not entitled to a

decree as prayed for as there is no admission of the facts mentioned in the

plaint.

4. I have heard learned counsel for the parties.

5. A brief exposition of the facts is that the Plaintiff had entered into an

Agreement to Sell dated 3rd April, 2010 with the Defendant for sale of

property bearing No. C-9/77, Upper Ground Floor (First Floor), Yamuna

Vihar, Delhi-110053 on the plot of land measuring approximately 80 sq.

yards comprising two bed room, drawing, dining, two toilets, kitchen etc., as

per the tentative site plan along with the car parking on the ground floor

(hereinafter referred to as 'the suit property') for a total sale consideration of

Rs. 45 lakhs. The Plaintiff paid a sum of Rs. 30 lakhs out of the said Rs. 45

lakhs and thus the balance of Rs. 15 lakhs remained. It is stated by the

Plaintiff that the Defendant assured that best available material would be

used for the construction and the building so constructed will be having

approved lift, independent car parking for each floor on the ground floor;

modular kitchen and the construction would be as per the duly approved plan

and design and as per earthquake zone 5 specification. The Plaintiff time

and again requested the Defendant to complete the construction and finish

the work within the stipulated time, that is, by 10th November, 2011 as per

the agreement when the Plaintiff was to give the balance payment of Rs. 15

lakhs. However, the Defendant continued to avoid the Plaintiff on one

pretext or the other objecting to the visit of the Plaintiff to the site to inspect

the construction, material, design, finish work etc. In the first week of April,

2011 when the Plaintiff impressed upon the Defendant and her husband to

complete the construction, finishing work and called upon them for

inspection, the Defendant and her husband demanded the balance payment

of Rs. 15 lakhs from the Plaintiff to complete the remaining work on the first

floor of the building contrary to the terms of the subject agreement. Thus the

Defendant has committed breach of agreement having failed to hand over the

possession of the suit property within the stipulated time, that is, 10 th

November, 2010 with complete works like complete wall stone in the

staircase; lift, floor grinding and finishing, electric fittings and fixtures,

electric connection/meter, kitchen, wood work and installation, water

connection etc. Despite the Defendant having failed to comply with the

terms, the Defendant got issued a legal notice dated 15 th April, 2011 to the

Plaintiff through the Advocate asking the Plaintiff to make the balance

payment as per the Agreement dated 3rd April, 2010 and in the event of

failure on the part of the Defendant it was stated that the Defendant would

initiate legal proceedings. The Plaintiff replied to the legal notice on 25th

April, 2011 stating the true and correct facts and failure/breach committed by

the Defendant as per the terms of agreement and asking her to hand over the

possession of the suit property after inspection. The Plaintiff also issued a

legal notice dated 27th April, 2011.

6. In the written statement the stand of the Defendant is that the

Defendant duly constructed the suit property as per the agreement dated 3 rd

April, 2010 and also in accordance with the changes as pointed out later by

the Plaintiff however, the Plaintiff deliberately avoided taking the possession

of the suit property and the payment of the balance amount. Since the

Plaintiff has failed to perform his part of the Agreement to Sell there is no

cause of action in favour of the Plaintiff. Since the Plaintiff asked for certain

changes in the building material and the other works, the Defendant and her

husband duly informed the Plaintiff that these changes as asked for will cost

another Rs. 10 lakhs apart from the agreed cost to which the Plaintiff duly

agreed. Thus the Defendant proceeded with those changes and completed

the construction work as agreed to by the Agreement to Sell. Since 10th

November, 2010 the Defendant had approached the Plaintiff several times

asking him to take possession of the property and for payment of the balance

amount. However, the Plaintiff deliberately avoided the balance payment as

well as taking the possession of the aforesaid suit property wherein the

Defendant has invested much more of money to fulfill the demands of the

Plaintiff. After November, 2010 the Plaintiff stopped visiting the site and

when the Defendant asked for the balance payment and for extra expenses

the Plaintiff started avoiding her. The Defendant carried out the works like

false ceiling in all the rooms, imported fancy lights (LED), imported tiles,

exclusive imported sanitary fittings in the bathroom, woodwork in all the

rooms with specific carving for LCDs and other, metal sheet work was

replaced by stainless steel work, complete wall stone in the staircase, the

heights and width of the doors were altered, supreme quality polish costing

three times the ordinary one. There was no agreement between the parties to

install the lift and the Defendant had only agreed to provide approval

certificate for installation of the lift. Admittedly the legal notice of the

Plaintiff dated 27th April, 2011 was an after thought and a counter blast to

the legal notice of the Defendant.

7. There is no doubt that the Defendant has not denied the Agreement to

Sell or receipt of part consideration of Rs. 30 lakhs. However, a perusal of

the Agreement to Sell shows that the Defendant in parat-4 only agreed to

provide the approval certificate for installation of the lift at the premises at

his own cost and not the lift. Further a perusal of the Ex. P2 i.e. the

specifications for construction that has to be carried out in the suit property

entered into between the parties along with the Agreement to Sell also did

not provide for false ceiling, lift, wall stone, earthquake zone 5 specification

etc. as stated by the Plaintiff in the plaint. Further the notice of the

Defendant dated 15th April, 2011 Ex. P5 states that the Defendant

approached the Plaintiff a number of times since 10 th November, 2010 to

take the possession of the property and make the balance payment. It is also

stated that the Defendant invested a large sum of money in order to fulfill the

demands and desire of the Plaintiff in view of the Agreement to Sell dated

3rd April, 2010 and the Agreement of specification of construction. A

perusal of the reply to the notice by the Plaintiff dated 25 th April, 2011

shows that number of requirements which were not specified in the

agreement have been stated to have not been done. In view of this specific

stand in the written statement which is also evident from the documents filed

by the Plaintiff, the Plaintiff is required to prove that the Plaintiff did not ask

for any extra specification resulting in escalation in the price and that the

Plaintiff was ready and willing to perform his part of the contract. The

Plaintiff is not entitled to a decree at this stage on the basis of the averments

made in the written statement.

Consequently, the application is dismissed. However, the observation

made hereinabove will have no bearing on the final decision of the suit.

(MUKTA GUPTA) JUDGE SEPTEMBER 25, 2013 'vn'