Delhi High Court
Express Towers Pvt. Ltd. & Anr. vs Mohan Singh And Ors. on 24 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th July, 2014
Pronounced on: 24th July, 2014
+ CS (OS) No.1578/2002
EXPRESS TOWERS PVT. LTD. & ANR. ..... Plaintiff
Through: Mr. Pravir K. Jain, Advocate
Versus
MOHAN SINGH AND ORS. ..... Defendants
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
G.P. MITTAL, J.
1. This suit for specific performance, declaration alongwith perpetual
and mandatory injunction has been filed by the Plaintiff (Express
Towers Pvt. Ltd) through its Managing Director (R.C.Goyal), who has
been authorised to sign and verify the plaint.
2. According to the averments made in the Plaint, Defendants No.1 and 2
(Late Shri Mohan Singh and Smt. Jeet Kaur, who were husband and
wife) were the exclusive owners of Property No.B-7/118, Safdarjung
Enclave Extension, New Delhi. On 21.05.1987, they entered into an
Agreement to Sell in respect of the suit property with the Plaintiff
No.1 for a total consideration of Rs.23,50,000/-. A sum of
Rs.1,00,000/- was paid by the Plaintiff to the Defendants. On
27.05.1987, the Plaintiff and Defendants No.1 and 2 made an
application in Form 37-I u/s 269UC of the Income Tax Act, 1961 (the
Act) to the appropriate authority for obtaining a 'No Objection
Certificate' for sale of the disputed property. The appropriate
authority, without giving any opportunity to show cause to the
Plaintiff and Defendants No.1 and 2 as to why the suit property should
not be acquired, passed an order dated 10.07.1987 for pre-emptive
purchase of the suit property by the Central Government. On
06.08.1987, the Plaintiff filed a writ petition being WP (C)
No.2275/1987 for quashing of the order dated 10.07.1987. By an
order dated 26.08.1987, on an application moved by the Plaintiff,
Delhi High Court passed an interim order directing the possession of
appropriate authority not to be disturbed and asking the Income Tax
Department to maintain the property in the same condition and not to
create any third party interest therein.
3. It is averred that Defendant No.3 claims to have purchased the suit
property by virtue of a Sale Deed dated 30.09.1988 for a consideration
of Rs.2,00,000/-. Further, on 18.09.2000 and 22.09.2000, two Sale
Deeds were made in favour of Defendant No. 5 by Defendant No. 3
and his power of attorney holder Defendant No. 4 for a sale
consideration of Rs.4,00,000/- each. It is alleged that Defendant No.5
also got the property mutated in the house tax record in his name.
4. It is alleged that on 29.07.1992, Defendants No.1 and 2 received the
balance consideration of Rs.22,50,000/- from the appropriate
authority. Same was recorded in the Court order and the property was
directed to remain in possession of Income Tax Department only till
the disposal of that Writ Petition.
5. By an order dated 01.03.1993, the Delhi High Court allowed the writ
petition and the order dated 10.07.1987 regarding pre-emptive
purchase of the property was set aside and the matter was remanded
back to the appropriate authority for fresh decision on the basis of the
Supreme Court decision in C.B. Gautam v. Union of India & Ors.
(1993) 1 SCC 78, as opportunity of being heard had not been given to
both the seller and the buyer before passing of pre-emptive purchase
order by the appropriate authority. It is stated that in the writ petition
Defendants No.1 and 2 did not ask for possession of the property but
only asked for payment of interest on delayed payment. The Court
allowed Defendants No.1 and 2 to raise the aforesaid plea before the
appropriate authority.
6. It is averred that on 28.05.1993, the appropriate authority again passed
a pre-emptive purchase order. The Plaintiff challenged the order dated
28.05.1993 by virtue of a writ petition being Writ Petition (C) No.
4357/1993. It is alleged that Defendants No.1 and 2 did not contest
the writ petition as they had received the entire sale consideration and
were not interested in challenging the pre-emptive purchase order and
hence, they were impleaded as Respondents. In the writ petition, an
interim order was passed to the effect that in case the auction of the
acquired property is held, the same will not be confirmed except with
the permission of Delhi High Court.
7. On 07.10.1993, the auction of the suit property was held and a bid was
given by the Cement Corporation of India for a sum of Rs.78,10,000/-.
On CM No.7683/1993 being filed in the earlier stated writ petition by
the Delhi High Court directed the possession not to be handed over to
the auction purchaser. It is stated that by an order dated 12.04.1994,
Writ Petition (C) No.4357/ 1993 was referred to Division Bench along
with a bunch of other Writ Petitions.
8. On 01.02.1996, in spite of order dated 01.03.1993 passed by the Delhi
High Court directing Defendants No.1 and 2 to raise the claim of
interest before the appropriate authority, they filed CM No.830/1996
in WP (C) No.2275/1987 praying for grant of interest on delayed
payment. The same was dismissed by Delhi High Court. Civil Appeal
No.7371/1997 preferred by Defendants No.1 and 2 against this order
was also dismissed by the Supreme Court by an order dated
17.10.1997. Thereafter, by an order dated 17.12.1997, the writ petition
preferred by the Plaintiff was allowed and the Income Tax Department
was directed to issue 'NOC' to the parties including the Plaintiff. The
order dated 17.12.1996 was challenged by the appropriate authority
before the Supreme Court in Civil Appeal No.6056/1998 titled as
Deputy CIT v. M/s. Express Towers Pvt. Ltd. and Ors. By an order
dated 10.05.2001, the said appeal was dismissed.
9. It is the case of the Plaintiff that thereafter, the Plaintiff made various
efforts to get the possession of the property from the Income Tax
Department. Ultimately, on 14.09.2001, the Plaintiff filed Writ
Petition (Civil) No.5654/2001, which was allowed by an order dated
12.12.2001 and the Plaintiff was directed to deposit the balance sale
consideration of Rs.22,50,000/- with the appropriate authority and the
appropriate authority was directed to issue 'NOC' and deliver
possession of the property along with Title Deeds, if any, to the
Plaintiff.
10. The Plaintiff claims that in compliance of the order, the entire amount
was deposited with the appropriate authority and possession of the suit
property was handed over to the Plaintiff along with keys, Title Deeds,
Completion Certificate and the Sanctioned Plan. Consequently,
Defendants No.1 and 2 filed an application being CM No.1404/2002
in WP (C) No.5654/2001 for modification of order dated 12.12.2001.
The application preferred by Defendants No.1 and 2 was dismissed in
limine. Review Application No.2299/2002 preferred by Defendants
No.1 and 2 was also dismissed by an order dated 16.03.2002.
Thereafter, the Plaintiff came to know about the alleged sale of the
suit property to Defendants No.3 to 5.
11. On 25.08.2002, the Plaintiff's workers informed that some persons
who were not disclosing their names had threatened to kill them and to
forcibly evict them from the suit property. The Plaintiff made
inquiries from the MCD and only then came to know about the
mutation of the property in the name of Defendant No.5 in spite of the
order of appropriate authority for pre-emptive purchase passed on
10.07.1987. Plaintiff alleges that Defendant No.3 claims title on the
basis of a Sale Deed dated 19.09.1988. On inquiry from the
concerned Sub-Registrar, it was revealed that no such Sale Deed was
ever registered in the records of Sub-Registrar, Kashmere Gate.
Moreover, the two subsequent Sale Deeds in respect of the suit
property could not have been registered at the office of Sub-Registrar,
Kapashera as the suit property was not within its jurisdiction.
12. The Plaintiff claims that Defendants No.1 and 2 had no right, title or
authority to make sale of the suit property as the property had vested
in the Central Government free from all encumbrances under Section
269 UE of the Act by virtue of order dated 10.07.1987 and the alleged
Sale Deed dated 30.09.1988 is also hit by Section 230A and 269UC of
the Act. It is stated that the averment in the Sale Deed dated
30.09.1988 that vacant and peaceful possession of the property was
delivered by the vendors (Defendants No.1 and 2) could not be true as
the possession vested with the Income Tax Department. Similarly,
averments made in the two subsequent Sale Deeds dated 18.09.2000
and 22.09.2000 about handing over of the original documents to
Defendant No.5 also could not be true as the original documents were
in possession of the Income Tax Department.
13. The Plaintiff claims that since the Plaintiff has already deposited the
sale consideration with the appropriate authority in pursuance of the
order of the Delhi High Court dated 12.12.2001, the Plaintiff is
entitled to a decree of specific performance of the Agreement to Sell
dated 21.05.1988 against Defendants No.1 and 2. Following further
reliefs are sought by the Plaintiff against the Defendants:-
(a) A decree of specific performance of Agreement to Sell dated
21.05.1988 by asking Defendants No. 1 and 2 to execute and
register a sale deed in their favour;
(b) A decree of declaration declaring Sale Deed dated 30.09.1988
by Defendants No. 1 and 2 in favour of Defendant No. 3 null,
illegal and void;
(c) A decree of declaration declaring sale deeds dated 18.09.2000
and 22.09.2000 by Defendants No.3 and 4 in favour of
Defendant No. 5 null, illegal and void;
(d) An order directing CBI/Vigilance Enquiry against Officials
involved in the fraud and forgery; and
(e) A decree of perpetual injunction against defendants restraining
them from interfering in plaintiffs' peaceful use, occupation and
enjoyment of the disputed property.
14. Defendants No.1 and 2 contested the suit by way of filing joint written
statement. They have taken up a plea that on 29.08.1987 they left
India for USA. They visited India only on 10.09.1991 after a period
of more than four years and therefore, they could not have signed or
executed the Sale Deed dated 30.09.1988 (as claimed by Defendants
No.3 to 5). Defendants No.1 and 2 denied having any knowledge
about execution of the Sale Deeds dated 18.09.2000 and 22.09.2000
by Defendant No.3 in favour of Defendants No.4 and 5. They have
stated that the suit for specific performance, declaration, perpetual and
mandatory injunction was not maintainable against them as the
Agreement to Sell between them and the Plaintiff had already expired.
It was stated that, in fact possession of the suit property which was
taken by the appropriate authority along with documents ought to have
been handed over back to Defendants No.1 and 2 only and not to the
Plaintiff. It is stated that since the Plaintiff has taken over the property
directly from the Income Tax Department without involving the
Defendants, the suit for specific performance was not maintainable
against Defendants No.1 and 2. The Defendants No.1 and 2 therefore,
prayed for dismissal of the suit.
15. Defendant No.3 who claimed a Sale Deed dated 30.09.1988 from
Defendants No.1 and 2 in his favour and Defendant No.5 who claim
the Sale Deeds dated 18.09.2000 and 22.09.2000 in his favour from
Defendants No.3 and 4 preferred not to contest the suit. They were
ordered to be proceeded ex-parte by this Court vide order dated
11.02.2004.
16. The suit for specific performance is also resisted by Defendants No.1
and 2 on the ground that the Agreement to sell was entered into way
back in the year 1987 and its enforcement will cause undue hardship
to the Defendants.
17. By order dated 09.10.2006, following issues were framed in the suit:-
"1. Whether the plaintiff is entitled for a decree of specific
performance of the agreement to sell dated 21.5.1987? OPP
2. Whether the suit for specific performance of the
agreement to sell is not maintainable as the agreement to
sell made between the defendants and the plaintiff has
already expired and there is no new agreement between the
parties after the dismissal of Civil Appeal No.6056/1998 by
the Hon'ble Supreme Court? OPD
3. Whether the suit is barred by the provisions of section 23
of the Contract Act? OPD
4. Whether the defendants No.1 and 2 have received the
entire sale consideration in August, 1992 and if so, its
effect? OPP
5. Whether the sale deed dated 30th September, 1988 is
forged and fabricated and if so, its effect? OPP
6. Whether the sale deeds dated 18th September, 2000 and
22nd September,2000 are forged and fabricated and if so, its
effect? OPP
7. Whether the plaintiff is entitled to the relief of perpetual
injunction as prayed for in the plaint? OPP
8. Relief."
18. During evidence, the Plaintiff examined six witnesses. No evidence
was produced by Defendants No.1 and 2. In fact, Defendant No.1 had
expired on 14.05.2008. An application for bringing on record the legal
heirs of deceased Defendant No.1 was moved and Defendant No.2,
who is the wife of Defendant No.1, was directed to reveal the details
of any other legal heirs of deceased Defendant No.1.
19. Despite repeated directions, Defendant No.2 failed and neglected to
disclose the names of any other legal heirs of deceased Defendant
No.1. Therefore, by an order dated 05.09.2013, Defendant No.2 was
permitted to represent the estate of deceased Defendant No.1, without
prejudice to the rights of other legal heirs of deceased Defendant No.1.
20. Since no evidence was being produced by Defendant No.2, the
evidence was closed by order dated 18.02.2014.
21. Issue wise findings are as under:-
ISSUE No.3
22. I shall like to take Issues No.1 and 2 a little later as the decision on
Issues No.1 and 2 would be dependent on this issue and certain other
issues framed by the Court.
23. PW-1 has proved an Agreement to Sell dated 21.05.1987 Ex.PW-1/2
whereby Defendants No.1 and 2 had agreed to sell the suit property in
favour of the Plaintiff for a consideration of Rs. 23,50,000/-. It has
not been stated by Defendants No.1 and 2 as to how the Agreement to
sell is forbidden by law as would defeat the provisions of any law or is
fraudulent or implies injury or is immoral or opposed to public policy.
Since the Plaintiff and Defendants No.1 and 2 applied for grant of
'NOC' under Section 269UC of the Act to the Income Tax
Department, the appropriate authority issued a notice for pre-emptive
purchase. The pre-emptive purchase under Section 269UD of the Act
is provided by the statute. Thereafter, Defendants No.1 and 2 received
the amount of Rs.22,50,000/- on 29.07.1992 from the appropriate
authority which in turn was paid by the Plaintiff to the appropriate
authority in terms of the order dated 12.12.2001 passed by this Court.
Thus, it cannot be said that the suit is barred under provisions of
Section 23 of the Contract Act. The issue is accordingly decided
against Defendants No.1 and 2.
ISSUE No.4
24. Defendants No.1 and 2 have admitted the receipt of the balance sale
consideration of Rs.22,50,000/- from the appropriate authority by
order dated 29.07.1992. The said amount of Rs.22,50,000/- was
deposited by the Plaintiff with the appropriate authority by an order of
this Court dated 12.12.2001. Thus, it is evident that the entire sale
consideration has been received by Defendants No.1 and 2.
25. The Plaintiff has examined Om Prakash Chopra (PW-6) from the
office of the Sub-Registrar-II, Kashmere Gate, Delhi. On the basis of
the record, this witness deposed that the Sale Deed at Serial No.16998
dated 30.09.1988 pertains to Flat No.158 in Block C-58, Pankha Road,
Delhi in the name of one Makhan Lal Kaul, son of Shri Raghav Kaul.
Otherwise also, Defendants No.1 and 2 in their written statement have
taken up a plea that on 30.09.1988, they were abroad and therefore,
could not have executed a Sale Deed in favour of Defendant No.3 on
the said date. Defendants No.3 to 5 have failed to produce any
evidence to prove the Sale Deed dated 30.09.1988. It is therefore,
established that the Sale Deed dated 30.09.1988 is a forged document.
Consequently, the Sale Deeds dated 18.09.2000 and 22.09.2000
executed on the basis of the Sale Deed dated 30.09.1988 are of no
consequence. The issues are accordingly decided in favour of the
Plaintiff and against Defendants No.3 to 5.
26. As stated earlier, Agreement to Sell dated 21.05.1987 Ex.PW-1/2 has
been duly proved by virtue of which the Plaintiff had agreed to
purchase and Defendants No. 1 and 2 had agreed to sell the suit
property to the Plaintiff for a consideration of Rs.23,50,000/-. A sum
of Rs.1,00,000/- was received as earnest money. Rest of the amount
was to be paid on obtaining Income Tax Clearance Certificate from
the authorities concerned. In terms of the Agreement to Sell, the Sale
Deed was to be executed in favour of the vendee within a period of
sixty days after obtaining the said permission, failing which the
vendee was entitled to get the Sale Deed registered through the Court
of law by specific performance of the Agreement to Sell. The
Agreement to Sell Ex.PW-1/2 and receipt of sum of Rs.1,00,000/-
towards the earnest money by receipt Ex.PW-2/3 was not even
disputed by Defendants No.1 and 2. The only plea raised by
Defendants No.1 and 2 is that the current value of the property is
much more than what was agreed in the Agreement to Sell which was
entered into way back in the year 1987 and thus, enforcement of the
same would cause undue hardship to Defendants No.1 and 2.
27. In this connection, it would be important to note that Defendants No.1
and 2 were under an obligation to execute the Sale Deed within a
period of sixty days after the grant of permission by the appropriate
authority. On 27.05.1987, Plaintiff and Defendants No.1 and 2 made
an application in Form 37-I under Section 269 UC of the Act for
obtaining NOC from the appropriate authority.
28. The NOC was refused by the appropriate authority by an order dated
10.07.1987 and an order for pre-emptive purchase of property by the
Central Government was passed. Defendants No.1 and 2 did not take
any step to challenge the order. It was only the Plaintiff who was
conscious of his right and filed a series of writ petitions to enforce his
right. On acquisition of the property under pre-emptive purchase,
Defendants No.1 and 2 were only entitled to receive the balance
consideration, which in fact was duly received by Defendants No.1
and 2 on 29.07.1992. Also, Defendants No.1 and 2 only claimed
interest on delayed payment by virtue of CM No.830/1996 filed in WP
(C) No.2275/1987 and not possession of the suit property, which was
rejected.
29. In Nirmala Anand v. Advent Corporation (Pvt.) Ltd. & Ors, (2002) 5
SCC 481 while referring to Gobind Ram v. Gian Chand, (2000) 7 SCC
548, and M.L. Devender Singh & Ors. v. Syed Khaja, (1973) 2 SCC
515, the Supreme Court laid down that the Courts are not bound to
grant specific performance merely because it is lawful to do so
unmindful of equities to be balanced and despite serious inequities that
may necessarily result by granting the same. In Paras 17 to 22 in
Nirmala Anand, the Supreme Court held as under:-
"17. On a careful consideration of the decisions brought to
our notice, it can safely be recorded that it is too late in the
day to deny a claim for specific performance of an
agreement to sell an immovable property in existence or to
be brought into existence according to the specification
agreed to merely because the vendor had to make
applications or move the concerned and competent
authorities to obtain permission/sanction or consent of such
authorities to make the sale agreed to be made an effective
and full-fledged one. The principles laid down in the above
decisions clearly indicate that unless the competent
authorities have been moved and the application for
consent/permission/sanction has been rejected once and for
all and such rejection made finally became irresolutely
binding and rendered impossible the performance of the
contract resulting in frustration as envisaged under Section
56 of the Contract Act, the relief cannot be refused for the
mere pointing out of some obstacles. Since the agreement to
sell, in this case, relates to an immovable property, which
indisputably is of special value, having regard to its location
and special importance of the area, it cannot be readily
assumed or taken for granted that the respondents opposing
the claim of the appellant have discharged their burden to
displace the initial statutory presumption engrafted in
Explanation (i) to Section 10 of the Specific Relief Act. Even
the so-called imponderables noticed both by the learned
Single Judge and by the Division Bench of the High Court, if
could not stand in the way of or did not impede the
assignment of the rights in the building and the interests in
the land in favour of the seventh respondent under the deed
of assignment dated 14-10-1994, it is beyond comprehension
as to what could legitimately be pleaded against for a
similar or identical relief being granted in the suit by
compelling transfer of such and similar rights to and in
favour of the appellant in respect of Flat No. 71 on the 7th
floor, agreed to be sold which she is prepared to receive and
take upon herself at her risk and responsibility even in the
complete (sic incomplete) shape as it stands unless it is that
Respondents 1 and 2 are trying to avoid their obligations
and liabilities to suit their own convenience, wishes and
welfare taking advantage of the steep appreciation in the
value of real estate in the locality in question. The competent
courts of justice, which exercise not only statutory powers,
but jurisdiction in equity, should not be mere onlookers of
an attempt by one of the parties to unreasonably,
unjustifiably and unethically try to evade specific
performance in order to make profit at the expense of the
other party to the contract, who, as concurrently found by
the learned Single Judge as well as the Division Bench of
the High Court, was always ready and willing to perform the
remaining part of her contract.
18. Not only Respondents 1 and 2, who have agreed to sell,
but also the seventh respondent and others, particularly the
State Government as well as the Municipal Corporation,
were heard. During the course of listing of the appeal for
hearing on several earlier occasions, it appears that
representations have been made that there is every
possibility of the Government as well as the Municipality
respectively, renewing the lease and revalidating the
building plans in question. Apparently, having regard to
such positive hopes and constructive moves as also the
possibility of such renewal of lease and revalidation of the
plans, already transfer of the entire building and the rights
in the same as it stands as well as the interests and rights in
the land, except Flat No. 71 agreed to be sold to the
appellant, has been made to the seventh respondent, subject
to the terms and conditions as are stipulated in the deed of
assignment dated 14-10-1994. The claim of the appellant
could not, therefore, be unceremoniously rejected merely
because in this case it is the Court, which has to order the
specific performance. What the parties themselves could do
or perform, if they wish or so desire, may be compelled to be
performed by the mandate of the competent court also and
the court cannot be held to be disabled or disentitled in law
to direct the parties to perform their obligations, express
and implied by adhering to the solemn undertaking under
the contract between the parties. While granting such a
decree for specific performance, it can always be made
conditional and dependent upon the renewal of the lease and
revalidation of the building plans. In my view, there is no
justification whatsoever in law or on facts on record to deny
the relief to the appellant when it could possibly and
legitimately be directed and rendered executable, subject to
the competent authorities so according or making the
required orders in this regard, denying the right of
execution of the decree at the same time, if the competent
and concerned authorities refused or declined to grant
renewal of the lease and/or revalidate the building plan
rendering it wholly impossible of performance of the
contract by Respondents 1 and 2. So much, on the position
of law as to the powers of the competent court to grant even
a conditional decree by way of specific performance. But, at
the same time, this Court has also repeatedly reiterated the
position of law that courts are not bound to grant specific
performance merely because it is lawful to do unmindful of
equities to be balanced and despite serious inequities that
may necessarily result by granting the same. These aspects
have been highlighted even in the judgments noticed supra.
19. In Sardar Singh v. Krishna Devi [(1994) 4 SCC 18] this
Court held that Section 20(1) declaring the jurisdiction of
courts to decree specific performance being discretionary,
the court is not bound to grant such relief merely because it
is lawful to do so and that the discretion of the court is to be
exercised guided by sound and reasonable judicial
principles, not arbitrarily. It was also cautioned that the
court has to also take into account the circumstances of
each case keeping in view the fact that the circumstances
specified in Section 20 are illustrative and not exhaustive
and that the plaintiff cannot succeed in obtaining an order
of specific performance unless he is able to show sufficiently
and clearly the existence of a contract that is valid and
enforceable at law at the time when the order is sought.
20. In K. Narendra v. Riviera Apartments (P) Ltd. [(1999) 5
SCC 77] this Court reiterated that severe hardship may be a
ground for refusing specific performance, even though it
results from circumstances, which arise after the conclusion
of this contract, which affect the person of the defendant and
for which the plaintiff is in no way responsible. Adverting to
inflationary increase in the value of properties and the
relevance of the same in denying or granting the relief at
paragraph 35 of the Report, it was observed as hereunder:
(SCC pp. 93-94)
"Added to all this is the factum of astronomical
rise in the value of the land which none of the
parties would have forecontemplated at the time of
entering into the agreement. We are not in the
least holding that the consideration agreed upon
between the parties was inadequate on the date of
the agreement. We are only noticing the
subsequent event. ... Upon an evaluation of the
totality of the circumstances, we are of the
opinion.... The contract though valid at the time
when it was entered, is engrossed in such
circumstances that the performance thereof cannot
be secured with precision. The present one is a
case where the discretionary jurisdiction to decree
the specific performance ought not to be exercised
in favour of the respondents."
21. In K.S. Vidyanadam v. Vairavan [(1997) 3 SCC 1] B.P.
Jeevan Reddy, J., speaking for this Court, observed at para
11 as hereunder: (SCC p. 9)
"11. Shri Sivasubramaniam cited the decision of
the Madras High Court in S.V. Sankaralinga
Nadar v. P.T.S. Ratnaswami Nadar [AIR 1952
Mad 389 : (1952) 1 MLJ 44] holding that mere
rise in prices is no ground for denying the specific
performance. With great respect, we are unable to
agree if the said decision is understood as saying
that the said factor is not at all to be taken into
account while exercising the discretion vested in
the court by law. We cannot be oblivious to the
reality -- and the reality is constant and
continuous rise in the values of urban properties
-- fuelled by large-scale migration of people from
rural areas to urban centres and by inflation."
22. In a recent pronouncement reported in V.
Pechimuthu v. Gowrammal [(2001) 7 SCC 617] this Court
observed that where the court is considering whether or not
to grant a decree for specific performance for the first time
the rise in the price of the land agreed to be conveyed may
be a relevant factor in denying the relief of specific
performance. Reference has also been made above to a
decision of this Court in Gobind Ram v. Gian Chand [(2000)
7 SCC 548] wherein, in order to mitigate the hardship
resulting to the vendor due to lapse of time and escalation of
prices of urban property, further compensatory amount was
ordered to be paid, even though in that case the trial court
granted a decree for specific performance for consideration
recited in the document and the balance of consideration
was also deposited by the purchaser in full, thereon."
30. In the instant case, as noticed above, Defendants No.1 and 2 did not
challenge the compulsory acquisition on the basis of the order dated
10.07.1987 passed by the appropriate authority. Defendants No.1 and
2 did not even take steps for recovery of the amount in pursuance of
the acquisition order. It was only on the direction of this Court dated
26.08.1987 in pursuance of the Writ Petition (C) No.2275/1987 filed
by the Plaintiff that the appropriate authority was directed to release
the amount of Rs.22,50,000/-, i.e., the balance sale consideration in
favour of Defendants No.1 and 2.
31. As stated earlier, Defendants No.1 and 2 only claimed interest for
delayed payment initially. Therefore, in equity, at the most the
Plaintiff can be directed to pay interest at the appropriate rate from the
date of Agreement to Sell dated 21.05.1987 till the amount of
Rs.22,50,000/- was released in favour of Defendants No.1 and 2 on
29.07.1992. Although, there is a great delay in the execution of the
Sale Deed in favour of Plaintiff, yet the Plaintiff has already been
handed over the Title Deeds and possession of the suit property by the
appropriate authority in pursuance of the order dated 12.12.2001
passed by this Court in W.P. (C) No. 5654/2001. The conduct of the
Plaintiff shows that the equities are highly balanced in its favour and
in favour and in view of his vociferous contest of the pre-emptive
purchase and ultimate success in the writ petition, it is very much
entitled to a decree for specific performance of the Agreement to Sell
dated 21.08.1987 (Ex.PW-1/2). Issues No.1, 2 and 7 are hence
decided in favour of the Plaintiff and against the Defendants.
RELIEF
32. In view of my findings on the issues above, the suit of the Plaintiff is
decreed:-
(a) by a decree of specific performance of Agreement to Sell dated
21.05.1987 directing Defendant No.2 to execute and register a
Sale Deed in favour of the Plaintiff, subject to the Plaintiff
paying interest @ 15% per annum from the date of execution of
the Agreement to Sell i.e. 21.05.1987 till the payment of the
balance consideration to Defendants No.1 and 2 by the
appropriate authority i.e. 29.07.1992. The amount of interest as
stated above, shall be deposited with the Registrar General of
this Court within a period of two months and shall be released
in favour of Defendant No.2 immediately. On deposit of the
earlier said amount of interest, Defendant No.2 shall execute a
Sale Deed in respect of the suit property i.e. B-7/118,
Safdarjung Enclave Extension, New Delhi, within a period of
eight weeks, failing which the concerned Joint Registrar shall
execute a Sale Deed for and on behalf of Defendant No.2
(Defendant No.1 being dead);
(b) by a decree of declaration declaring Sale Deed dated 30.09.1988
allegedly executed by Defendants No.1 and 2 in favour of
Defendant No. 3 to be forged and hence, null and void;
(c) by a decree of declaration declaring Sale Deeds dated
18.09.2000 and 22.09.2000 by Defendants No.3 and 4 in favour
of Defendant No.5 to be illegal, null and void and hence, of no
consequence; and
(d) by a decree of perpetual injunction against Defendants
restraining them from interfering in Plaintiff's peaceful use,
occupation and enjoyment of the suit property.
33. The Plaintiff shall be entitled to costs of the suit from Defendants
No.3 to 5.
34. This Court further directs the Commissioner of Police to register an
FIR in respect of the forged Sale Deed dated 30.09.1988 and
subsequent Sale Deeds dated 18.09.2000 and 22.09.2000 and to take
appropriate action against the persons who may be found guilty.
35. The suit of the Plaintiff is decreed accordingly.
36. Pending applications also stand disposed of.
37. A copy of the order shall be sent to the Commissioner of Police for
taking action as stated earlier.
38. The status report in respect of same shall be filed by the
Commissioner of Police/DCP concerned, within a period of 12 weeks.
(G.P. MITTAL)
JUDGE
JULY 24, 2014
vk
