Smt. Satya Khurana vs Saminder Singh Reen
2014 Latest Caselaw 407 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Date of Decision: January 22, 2014
+                                 RFA(OS) 21/2014
         SMT SATYA KHURANA                                 ..... Appellant
                 Represented by:         Mr.Vinay Garg, Advocate with
                                         Mr.L.S.Solanki, Advocate

                                         versus

         SAMINDER SINGH REEN                             ..... Respondent
                 Represented by:         Mr.Kamlesh Mahajan, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH

PRADEEP NANDRAJOG, J. (Oral)

Caveat No.68/2014 Since the counsel as above appears for the respondent/caveator, the caveat stands discharged.

CM No.1298/2014 For the reasons stated in the application, the delay of 376 days in filing the appeal is condoned.

The application stands disposed of.

CM No.1299/2014 Allowed subject to just exceptions.

RFA (OS) No.21/2014

1. Heard learned counsel for the parties. Record of the suit which has been sent along with the appeal has been considered.

2. The appellant has suffered an ex-parte decree on September 26, 2012.

3. The respondent/plaintiff proved at the trial that he purchased the non- judicial e-stamp papers Ex.PW-1/3 on November 25, 2011 by paying stamp duty in sum of `1,68,000/- (Rupees One Lac and Sixty Eight Thousand only) for purchasing property No.80/65-A, Malviya Nagar, New Delhi. He has also proved the sale deed Ex.PW-1/2 drawn up on November 30, 2011 duly signed by the appellant on each page. The sale deed records that the appellant has received the full sale consideration in the manner recorded in clause No.1 of the sale deed, and which we find is part sale consideration received in cash and the remainder by two cheques drawn in the name of the appellant.

4. Suit sought a direction against the appellant to present herself before the Sub-Registrar for sale deed to be registered. Possession of the suit property was also prayed for.

5. The appellant was proceeded against ex-parte since summons issued to her were reported to have been received. The process server so reported as also the postal authorities. Summons were directed to be served by ordinary process also by way of Regd.A.D.Post.

6. After the suit was decreed the appellant filed IA No.914/2013 under Order IX Rule 13 of the Code of Civil Procedure praying that the ex-parte decree dated September 26, 2012 be recalled.

7. The said application was dismissed on September 23, 2013 against which order FAO (OS) No.492/2013 was dismissed.

8. Learned counsel for the appellant concedes that the only ground on which appellant can challenge the decree is to question the same on merits sans any defence by the appellant for the reason the appellant did not file

any written statement in the suit and did not appear at the trial.

9. The contention urged is that in the plaint the plaintiff has not pleaded his readiness and willingness to comply with his obligations under the oral agreement to sell on basis whereof the suit was filed pertaining to the ground floor of property No.80/65-A, Malviya Nagar, New Delhi. Counsel states that clause (c) of Section 16 of the Specific Relief Act, 1963 mandates that in a suit for specific performance of a contract the plaintiff must aver and prove that he has been ready and willing to perform the essential terms of the contract which are to be performed by him.

10. The argument is useless for the reason clause (c) of Section 16 of the Specific Relief Act 1963 requires the plaintiff to aver that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him.

11. As per the plaint the plaintiff has clearly pleaded that he has paid the full sale consideration agreed in sum of `28,00,000/- (Rupees Twenty Eight Lacs only) and that after he purchased the e-stamp papers the sale deed was drawn which acknowledged the fact that the defendant had received full sale consideration. The defendant had signed the sale deed.

12. Thus, the plaintiff has complied with the requirement of clause (c) of Section 16 of the Specific Relief Act, 1963 because he has pleaded that he has performed the essential terms of the contract which were to be performed by him. At the trial he has proved the same.

13. The next contention urged is that under Section 20 of the Specific Relief Act, 1963 the jurisdiction of the Court to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so.

14. Now, Section 20 of the Specific Relief Act, 1963 while recognizing the discretion of the Court to deny specific performance mandates that the exercise of discretion is not to be arbitrary but has to be sound and guided by judicial principles capable of correction by a Court of Appeal. Sub-Section 2 guides when the Court may exercise discretion not to decree specific performance, and we would simply highlight that the three guiding cases listed in clauses (a), (b) and (c) of Sub-Section 2 require a defence to be predicated by bringing out any one or more of the three circumstances envisaged by the three clauses in question. Now, we have already highlighted that the appellant did not file the written statement. She refused to accept the summons and thus inflicted a self injury on herself.

15. Though not relevant, we have asked learned counsel for the appellant whether she admits having received the amount mentioned in the sale deed the appellant admits having received the money but claims that she took a loan and she signed blank papers.

16. We find no averment in the appeal that the appellant ever paid any interest to the respondent or tendered any amount by way of return of loan.

17. If a person takes a loan it would obviously be at some agreed rate of interest and the natural conduct of the person taking the loan would be to tender interest and as per terms of the loan full or part re-payment of the loan depending upon whether the agreement envisaged the loan to be returned in one instalment or multiple.

18. Our reasoning in paragraph 15 to 17 is just to satisfy the judicial conscious on the genuineness of the defence projected. The same would be irrelevant for the purposes of our decision which rests in paragraph 14.

19. We dismiss the appeal in limine but without any orders as to costs.

CM No.1300/2014 Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(JAYANT NATH) JUDGE JANUARY 22, 2014 mamta