M/S.Parti Fibers Pvt. Ltd. vs Saroj Chawla & Anr.
2014 Latest Caselaw 1243 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                             C.S. (OS) No.576 of 2004

                                      Decided on : 7th March, 2014

M/S.PARTI FIBERS PVT. LTD.                 ...... Plaintiff
               Through: Mr. Ashok Gurnani, Mr. Santosh Pandey,
                         Mr. S.K. Chaturvedi & Ms. Nishi Ranjan
                         Singh, Advocates.

                        Versus

SAROJ CHAWLA & ANR.                                   ...... Defendants
            Through:               Mr. Kirti Uppal, Senior Advocate with
                                   Ms. Aastha Dhawan, Adv. for D-1 & 2.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a suit for specific performance filed by the plaintiff against

the defendants.

2. Briefly stated the facts of the case are that the plaintiff is a private

limited company duly incorporated under the Companies Act, 1956,

having its registered office at B-769, Sector-I, Avantika, Rohini, Delhi-

85. The suit has been filed through one Munish Kumar Sharma, Director

of the plaintiff company, who is duly authorized to sign, verify and

institute the present suit vide a Board Resolution dated 19.5.2004. It was

alleged in the plaint that defendant Nos.1 and 2 are the owners of plot

No.177, Block No.10, Golf Links, New Delhi by virtue of a conveyance

deed dated 7.1.2002 executed by the Land & Development Office, New

Delhi. The defendants are alleged to have agreed to sell the aforesaid

property to the plaintiff for a total consideration of Rs.4,75,00,000/- vide

agreement to sell dated 18.6.2003. It is alleged that along with the

agreement to sell the defendant Nos.1 and 2 were paid an advance of

Rs.45 lacs vide a pay order No.294871 dated 17.6.2003 drawn on

Allahabad Bank, Bhera Enclave, New Delhi for which a receipt was

issued. The balance consideration of Rs.4,30,00,000/- was to be paid by

the plaintiff to the defendants at the time of handing over the vacant and

physical possession of the suit property. The entire transaction was to be

cleared within a period of three months from the date of signing of the

agreement, which period was fixed as 16.9.2003. It has been alleged in

the plaint that both the plaintiff and the defendants later on agreed that the

period to complete the transaction be extended till 6.10.2003. The

plaintiff alleges that as the defendants did not come forward to perfect the

title of the plaintiff consequently they were forced to file the present suit

for specific performance. It was also noticed by the plaintiff that one

Vinod Chawla, who was claiming himself to be the 50 per cent owner of

the suit property had got an advertisement inserted in Hindustan Times on

25.6.2003 because of which they were constrained to file the suit and

implead Vinod Chawla also as a party. The plaintiff has alleged that he

was ready and willing at all times to complete the transaction in terms of

the agreement to sell and he had sufficient liquidity in this regard.

3. The defendant Nos.1 and 2 admitted that they had entered into an

agreement to sell with the plaintiff on 18.6.2003. It is also agreed by

them that the aforesaid agreement was extended till 6.10.2003 by

executing a supplementary agreement dated 16.9.2003. However, it is

denied by them that the plaintiff was ready and willing at all times to

perform his part of the obligation in terms of the agreement or that he had

sufficient liquidity in this regard. It is stated by them that defendant No.3

Vinod Chawla, who happens to be the paternal uncle of plaintiff No.1 and

brother-in-law of defendant No.2 was actually in league with the plaintiff

and had filed a false suit for claiming partition in respect of this very

property. The said suit was bearing No.1485 of 2003 and it is in this suit

that defendant No.3, as the plaintiff, had obtained a restraint order.

However, the defendants had taken a plea that non-perfection of the title

by defendant Nos.1 and 2 in favour of the plaintiff had nothing to do with

the said suit as the plaintiff was not having sufficient liquidity and was

not ready and willing to perform his part of the obligation.

4. The averments made in the written statement were denied by the

plaintiff in the replication. On the pleadings of the parties following

issues were framed on 28.2.2007 :-

"1. Whether the plaint is signed and the suit is instituted by duly authorized person? OPP

2. Whether the plaintiff was ready, willing and able to perform the obligations under the Agreements to Sell dated 18.6.2003 and 6.10.2003? OPP

3. Whether the plaintiff is entitled to specific performance of the said Agreements? OPP

4. Relief."

5. The plaintiff was directed to file his affidavit of examination-in-

chief within six weeks and the matter was directed to be listed before the

Joint Registrar on 3.5.2007 for the purpose of fixing up dates of trial.

The record of the case shows that neither the list of witnesses nor

evidence by way of affidavit was filed on behalf of the plaintiff despite

the fact that the matter was listed before the Joint Registrar on 3.5.2007,

5.9.2007 and 30.1.2008. On 30.1.2008 affidavit of one Munish Sharma

was filed and his statement was recorded as PW-1, however, his cross-

examination could not be completed as the affidavit of this witness was

not given to the opposite side, that is, defendant Nos.1 and 2 timely. The

matter was adjourned to 18.7.2008. Thereafter the matter was adjourned

to 5.11.2008, 16.1.2009, 19.5.2009, 10.9.2009, 9.2.2010, 23.2.2010,

6.4.2010, 12.5.2010, 31.8.2010, 3.12.2010, 25.3.2011, 3.8.2011 and

17.11.2011 when the cross-examination of the witness could not be

recorded either on account of absence of the witness or on account of the

fact that the counsel for the plaintiff was not available. Ultimately on

30.4.2012, the court noted that despite last opportunity, the witness PW-1

was not present and the court was constrained to impose a cost of

Rs.5,000/- and gave last and final opportunity to the parties. The matter

was adjourned to 31.1.2013 on which date the witness was again not

present and another opportunity was given to the plaintiff. The matter was

adjourned to 2.8.2013 on which date, the court noted that no further

indulgence is required to be given to the plaintiff as despite expiry of

more than three years, the testimony of PW-1 could not be completed

because of the absence of the said witness. Consequently, the evidence of

the plaintiff was closed and the matter was listed for defendants evidence

on 20.11.2013. The defendants did not adduce their evidence on the

ground that essentially the onus of all the issues was on the plaintiff and

as the plaintiff has failed to adduce any evidence to discharge of his onus

consequently, the defendants were not required to produce any evidence.

The evidence of the defendants was closed.

6. I have heard the learned counsel for the plaintiff as well as the

learned counsel for the defendants. At the outset, it may be stated that if

one reads the issues, the onus of issue No.1, whether the plaint is signed

and instituted by a duly authorized person, was on the plaintiff. No

evidence in this regard has been produced by the plaintiff and

consequently this issue is to be decided against the plaintiff.

7. The second issue was whether the plaintiff was ready, willing and

able to perform his part of the obligation under the agreement to sell

dated 18.6.2003 and 6.10.2003. No witness has been examined by the

plaintiff on record. The testimony of PW-1, Munish Sharma, who is the

Director of the plaintiff company, although his affidavit in chief has been

filed and he has been partly examined but his testimony cannot be read in

evidence for want of completion of his statement as the witness did not

appear despite numerous opportunities having been given to the plaintiff.

Consequently, it is a case where neither evidence has been produced by

the plaintiff nor he has discharged the onus with regard to showing his

readiness and willingness. The readiness and willingness which has to be

established by the plaintiff is not only in terms of the agreement to sell on

the date when the suit is filed by the plaintiff but on all the dates

subsequent thereto.

8. In the instant case, the agreement dated 18.6.2003 has been

admitted by defendant Nos.1 and 2 but their defense was that the plaintiff

was not ready and willing to perform his part of the obligation in terms of

the said agreement. One of the important components of readiness and

willingness to perform his part of the obligation is that the plaintiff must

be able to show to the court that he had sufficient liquidity at the time

when the agreement was to be performed. Further, when he comes to the

court seeking specific performance of the agreement the plaintiff has to

show that there was sufficient resource or liquidity available with him at

that time also. In terms of the agreement, the plaintiff had paid a sum of

Rs.45 lacs to defendant Nos.1 and 2 by way of earnest money and the

balance amount of Rs.4,30,00,000/- was to be paid at the time of signing

of the agreement and perfecting his title when vacant and peaceful

physical possession of the suit property was to be delivered to him. In the

instant case, it has nowhere been shown by the plaintiff that it had

sufficient amount available with it to the tune of Rs.4,30,00,000/- in order

to pay defendant Nos.1 and 2. Even at the time when the suit was filed,

no documentary evidence has been produced to show that it had sufficient

bank balance in this regard. Therefore, this issue has to be decided by the

court against the plaintiff.

9. It was contended by the learned counsel for the plaintiff

Mr. Gurnani that even though the plaintiff had not adduced any evidence

with regard to the proof of these issues still a judgment on the basis of

admission can be passed in favour of the plaintiff for specific

performance. In this regard, he contended that the agreement dated

18.6.2003 is not in dispute as the same was admitted by defendant Nos.1

and 2 in their written statement, therefore, as regards the readiness and

willingness, the court can draw an inference that the plaintiff being a

company was ready and willing to perform its contract. In this regard,

the learned counsel for the plaintiff has also relied upon Mohan Lal Ahuja

& Others vs. Tarun Chandra; 157 (2009) DLT 216 and Sunrise

Construction vs. Veena Wahi; 2009 (111) DRJ 710 and drawn my

attention to the paragraphs where the readiness and willingness in the

facts of those cases has been dealt with.

10. I have carefully considered the submissions made by the learned

counsel for the plaintiff and have gone through the judgments also. The

said two judgments cited by the learned counsel are of no help in the

instant case. In these two judgments, the facts of the case are totally

different inasmuch as these were cases where the parties had adduced

their respective evidence and the court had to martial the evidence in

order to find as to whether the plaintiff, in the light of the evidence

produced by him in these cases can be considered to be ready and willing

to perform his part of the obligation or not. In the instant case, there is

not even an iota of evidence produced by the plaintiff to show that he was

ready and willing to perform his part of the obligation. Under these

circumstances, the reliance placed by the learned counsel for the plaintiff

on the aforesaid judgments is totally misconceived.

11. The third issue is as to whether the plaintiff is entitled to a decree

of specific performance or not. Since the plaintiff has failed to prove the

first two issues obviously the decree of specific performance could not be

passed in his favour.

12. For the reasons mentioned above, I feel that as the plaintiff has

failed to prove any of the issues for grant of relief of specific

performance, therefore, the suit has to be necessarily dismissed. I,

accordingly, dismiss the suit. No order as to costs.

V.K. SHALI, J.

MARCH 07, 2014 'AA'