Shri Sapan Chopra & Anr. vs M/S Ultimate Builders And ...
2014 Latest Caselaw 2618 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment Reserved on : May 12, 2014
                              Judgment Pronounced on : May 22, 2014

+                         RFA (OS) 146/2013

       SHRI SAPAN CHOPRA & ANR.                  .....Appellants
                Represented by: Mr.Rajesh Yadav, Advocate with
                                Ms.Ruchira, Advocate

                                      versus

       M/S ULTIMATE BUILDERS
       AND DEVELOPER (P) LTD.                  ..... Respondent
                Represented by: Mr.R.L.Kohli, Advocate with
                                Mr.Varun Yadav, Advocate

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

1. Sapan Chopra son of Late Sh.V.K.Chopra and his mother Madhu Chopra are the owners of plot bearing Municipal No.72, Kohat Enclave, Pitampura, Delhi on which a 2½ storeyed building exists. Desirous of refurbishing by carrying out extensive repairs, additions and alterations in the existing building, and having no finances to do so, Sapan and his mother Madhu entered into an agreement, Ex.P-1 on August 11, 2004, with M/s.Ultimate Builders & Developers Pvt. Ltd. through its Director Sh.Subhash Gupta. As per the agreement, M/s.Ultimate Builders & Developers Pvt. Ltd. agreed to renovate, make additions and alterations in the ground floor and purchase the first and the partly constructed second floor above together with roof rights at a consideration of `43,50,000/- (Rupees Forty Three Lacs and Fifty Thousand only). As recorded in

Ex.P-1, M/s.Ultimate Builders & Developers Pvt. Ltd. paid `8,00,000/- (Rupees Eight Lacs only) as earnest money-cum-part sale consideration to Sapan and his mother Madhu.

2. Since Sapan and Madhu had inherited the property from the original allottees Tilak Raj Chopra and Kiran Bhatija and mutation in the Government record had yet to be effected in their favour, thus, vide clause 1 in Ex.P-1, it was recorded that the balance sale consideration shall be paid either within three months from the date of execution of Ex.P-1 or from the date when Sapan and his mother obtained mutation in their names; whichever is later. Simultaneously upon receipt of balance sale consideration, sale documents would be executed concerning the first floor and the second floor. The agreement Ex.P-1, vide clause 4, required M/s.Ultimate Builders & Developers Pvt. Ltd. to renovate, make additions and alterations in the ground floor as per working plan. Clause 7 of the agreement records:-

"That the first party have delivered the actual and physical vacant possession of the property to the second party to resume the construction work at site."

3. Vide clause 12 and 13 of the agreement Ex.P-1, the quality of the wood to be used for the door and window frames as also the doors and the windows as also glass was referred to.

4. Vide clause 27 and 28 the nature of the civil works to be executed was detailed qua the specification thereof i.e. for (i) plastering, (ii) brick work, (iii) RCC, (iv) flooring, (v) tiles, (vi) GI pipes, (vii) TI pipes, (viii) CP fittings, (ix) sanitary and (x) electrical works. Clause 28 reads as under:-

"28. That the material to be used in construction of the ground floor shall be of good quality as per details given hereinunder:-

        i)     Plastering         Walls                       1:5
                                 Roof Plastering             1:4
       ii)   Brick work                                      1:6
       iii) RCC                                              1:4:3

iv) Flooring : Rajender Marble of value of `40 per sq.ft.

The quality of marble to be used on the ground floor shall be in similarity to the flooring of the first floor and upper floors.

v) Tiles : Kajaria/Johnson (1st quality), the value of the bathroom tiles shall be `400 per Box with coverage of 16.75 sq.fts. per box.

vi) Electric Switches Anchor/North West.

       vii) G.I.Pipe : Jindal B Class
       viii) C.I.Pipe : SIF (ISI Mark)
       ix)   Sanitary fittings : Classica
       x)    C.P. fittings/Taps : Volga brand"

5. Clause 18 of the agreement stipulates that the ground floor shall be completed i.e. additions, alterations and renovations effected as per the sanctioned building plan within ten months from the date when plans were sanctioned.

6. Alleging breach of their obligations under Ex.P-1 by Sapan and his mother Madhu, M/s.Ultimate Builders & Developers Pvt. Ltd. sought specific performance of Ex.P-1 by filing a suit which was registered as CS (OS) No.299/2005. The plaint was instituted on March 02, 2005.

7. After pleading parties having executed Ex.P-1, it was averred in the plaint that whereas the plaintiff assisted the defendants in obtaining a sanction from the Municipal Corporation of Delhi to effect reconstruction and that the sanction letter was issued on December 30, 2004, it was pleaded that the defendants delayed obtaining no due certificate from the co-operative society of which they were a member of. It was pleaded that the defendants were paid `50,000/- (Rupees Fifty Thousand only) by cheque on December 11, 2004 as they needed the money to make a

deposit as security with the landlord in whose premises the defendants were to shift to enable reconstruction of the ground floor and that whereas M/s.Ultimate Builders & Developers Pvt. Ltd. was always ready and willing to pay the balance sale consideration in sum of `35,00,000/- (Rupees Thirty Five Lacs only), the defendants delayed execution of the sale documents and in spite of agreeing that the sale-deed with respect to the first and second floor would be executed by them on February 16, 2005, the two did not reach the office of the Sub-Registrar Delhi. It was pleaded that on said date the plaintiff had arranged the balance sale consideration.

8. In a joint written statement filed by Sapan and his mother Madhu it was pleaded that M/s.Ultimate Builders & Developers Pvt. Ltd. had suppressed the fact that after Ex.P-1 was executed, on January 16, 2005 it was agreed that the sale consideration would be enhanced by `3,00,000/- (Rupees Three Lacs only) i.e. the sale consideration would be `46,50,000/- (Rupees Forty Six Lacs and Fifty Thousand only). It was pleaded that M/s.Ultimate Builders & Developers Pvt. Ltd. had agreed that during the period of renovation it would arrange an accommodation for the defendants and one Sh.Ashok Chhabra, at the asking of M/s.Ultimate Builders & Developers Pvt. Ltd. had agreed to provide an accommodation to them at a monthly rent of `6,500/- (Rupees Six Thousand and Five Hundred only) out of which M/s.Ultimate Builders & Developers Pvt. Ltd. had agreed to pay `5,000/- (Rupees Five Thousand only) to Ashok Chhabra and they were to pay `1,500/- (Rupees One Thousand and Five Hundred only). It was pleaded that the renovation work had to be completed within the agreed stipulated time with work to commence latest by November, 2004, because Sapan and his mother were

settled at Dehradun and had needed the funds to purchase a property at Dehradun.

9. It needs to be highlighted that without prejudice to the defence of M/s.Ultimate Builders & Developers Pvt. Ltd. being in breach of Ex.P-1 as novated on January 16, 2005 it was pleaded that if M/s.Ultimate Builders & Developers Pvt. Ltd. agreed to pay to them `38,50,000/- (Rupees Thirty Eight Lacs and Fifty Thousand only) i.e. the balance sale consideration immediately and further undertook to complete the renovation work of the ground floor within ten months the two were ready and willing to immediately execute a sale-deed pertaining to the first and the second floor of the property. They pleaded that to ensure that M/s.Ultimate Builders & Developers Pvt. Ltd. complies with its obligations to renovate the ground floor as per the specifications in Ex.P- 1, since at least `10,00,000/- (Rupees Ten Lacs only) would be required M/s.Ultimate Builders & Developers Pvt. Ltd. should deposit `10,00,000/- (Rupees Ten Lacs only) in this Court.

10. Concerning the pleadings in the written statement that on January 16, 2005 the parties had agreed to enhance the sale consideration by `3,00,000/- (Rupees Three Lacs only), in the replication filed by M/s.Ultimate Builders & Developers Pvt. Ltd. it was pleaded that since commencement of re-construction was being delayed, on January 16, 2005 M/s.Ultimate Builders & Developers Pvt. Ltd. offered that if Sapan and his mother Madhu agreed to vacate the building within a week and execute a sale-deed selling the first and the second floor as per the agreement Ex.P-1, M/s.Ultimate Builders & Developers Pvt. Ltd. shall pay an additional sum of `3,00,000/- (Rupees Three Lacs only) and for which M/s.Ultimate Builders & Developers Pvt. Ltd. wanted a written undertaking to be executed by Sapan and Madhu recording said fact. It

was pleaded that since Sapan and Madhu were not willing to execute the required undertaking M/s.Ultimate Builders & Developers Pvt. Ltd. did not agree to enhance the sale consideration by `3,00,000/- (Rupees Three Lacs only). Admitting that M/s.Ultimate Builders & Developers Pvt. Ltd. had agreed to pay rent up to `5,000/- (Rupees Five Thousand only) per month for the alternative accommodation which Sapan and Madhu would be taking, it was re-emphasized in the replication that on one pretext or the other Sapan and Madhu postponed the execution of the sale-deed and that vide letter dated February 07, 2005 the two had indicated that they would execute the sale-deed on February 16, 2005 and thus on said date the Director of M/s.Ultimate Builders & Developers Pvt. Ltd. reached the office of the Sub-Registrar with the balance sale consideration of `35,50,000/- (Rupees Thirty Five Lacs and Fifty Thousand only) but Sapan and his mother Madhu did not reach the office of the Sub- Registrar.

11. On the pleadings of the parties seven issues were settled as per order dated November 16, 2005. They read as under:-

"1. Whether the plaintiff is entitled for specific performance of contract dated 11th August, 2004. If so, on what terms and conditions? OPP

2. Whether the plaintiff is entitled for perpetual injunction as prayed for? OPP

3. Whether the plaintiff have been ready and willing to perform their part of contract dated 11th August, 2004? OPP

4. Whether the parties were not ad idem in respect of sale consideration, if so, to what effect? OPD

5. Whether the plaintiff has not submitted the plan for renovation of the ground floor in accordance with the bye-laws

of the Municipal Corporation of Delhi. If so, to what effect? OPD

6. Whether the plaintiff was liable to arrange for accommodation for the defendants' living during the period of renovation and construction. If so, to what effect? OPD

7. Relief."

12. A word needs to be spoken on the issues settled. From the respective pleadings of the parties it would be apparent that one issue of fact on which the parties were at variance was whether on January 16, 2005 the agreement Ex.P-1 was novated with respect to the agreed sale consideration and for which the rival view points were that whereas M/s.Ultimate Builders & Developers Pvt. Ltd. pleaded in the replication that the novation to increase the sale consideration by `3,00,000/- (Rupees Three Lacs only) was contingent upon Sapan and Madhu vacating the building within a week and executing a sale-deed for the first and the second floor by February 17, 2005, the version of Sapan and Madhu was that the novation was without any pre-condition. Thus, an issue was required to be settled on said factual aspect on which the parties were at variance for the reason if Sapan and Madhu would succeed in proving their assertion, the suit for specific performance filed which predicated a claim under Ex.P-1 for the consideration to flow from M/s.Ultimate Builders & Developers Pvt. Ltd. would fail inasmuch as M/s.Ultimate Builders & Developers Pvt. Ltd. had not pleaded readiness and willingness to perform its obligations under the novated agreement.

13. Another issue was required to be settled on the pleadings. The same would be whether the agreement Ex.P-1 was capable of being specifically enforced in view of the fact that it was not a simple agreement to sell. The agreement had two elements. The first was Sapan

and Madhu agreeing to sell the existing first floor and the second floor to M/s.Ultimate Builders & Developers Pvt. Ltd. and the second was the reciprocal obligation of M/s.Ultimate Builders & Developers Pvt. Ltd. to pay the agreed sale consideration in money and additionally to renovate the existing ground floor as per the specifications in Ex.P-1. Factually one, the agreement Ex.P-1 was conceptually two : (i) to pay money, and

(ii) to effect renovation by making additions and alterations which embraced civil, electrical, plumbing, drainage and sanitary works.

14. It is trite that a Court would not pass a decree which requires constant supervision by the Court. Execution of a work's contract requires constant supervision by the Court. Section 14(b) and (d) of the Specific Relief Act, 1963 was required to be kept in mind and an issue settled.

15. At the trial M/s.Ultimate Builders & Developers Pvt. Ltd. examined seven witnesses. Sapan and Madhu examined three witnesses in defence.

16. Subhash Gupta PW-1, a Director of M/s.Ultimate Builders & Developers Pvt. Ltd. proved Ex.P-1 being executed and deposed that `50,000/- (Rupees Fifty Thousand only) was given to Sapan and Madhu on December 11, 2004 to deposit the same with a landlord because Sapan and Madhu had taken an accommodation on rent were to deliver vacant possession of the suit property to M/s.Ultimate Builders & Developers Pvt. Ltd. Since this aspect of the testimony of PW-1 would be relevant, we note verbatim the examination-in-chief by way of affidavit of PW-1. It reads:-

"The defendants received from the plaintiff another sum of `50,000/- vide cheque dated 11.12.2004 drawn on Nainital Bank, Pitampura Delhi representing that the defendants needed the sum of `50,000/- further towards the sale consideration for

depositing the same as security amount with the landlord. The defendants having rented out an accommodation were to deliver the vacant possession of the property to the plaintiff but the defendants failed to hand over the possession of the property in spite of requests."

17. PW-1 deposed that on December 30, 2004, municipal sanction was obtained vide Ex.PW-1/4 for renovating the building. He proved Ex.P-3, Ex.P-4 and Ex.P-5 being three letters, two written by Madhu and the third by Sapan, the first on January 25, 2005 informing that due to sudden illness of Sapan they would not be in a position to execute the sale-deed before February 07, 2005. The second dated February 05, 2005 written by Sapan informing that his mother had not returned from Dehradun and requesting that further time be extended for sale-deed to be executed. The third by Madhu informing that since Sapan was pre-occupied with work the sale-deed would be executed positively on February 16, 2005. He deposed that in view of the letter Ex.P-5 he reached the office of the Sub-Registrar with two bankers' cheques dated February 16, 2005 in sum of `17,25,000/- (Rupees Seventeen Lacs and Twenty Five Thousand only) and the other in sum of `17,75,000/- (Rupees Seventeen Lacs and Seventy Five Thousand only). He deposed that Sapan and Madhu did not reach the office of the Sub-Registrar and in proof of he being present in the office of the Sub-Registrar he executed and got registered the declaration Ex.PW-1/2A with the Sub-Registrar on said date and sent a telegram Ex.PW-1/3 to Madhu and Sapan. On being cross examined PW-1 stated:-

"I had told Mr.Goyal Advocate to prepare sale-deed for `43.50 lacs and not for `46.50 lacs. The stamp duty was to be paid at 8% of the value in the sale-deed which could be `3.48 lacs. It is correct that sum of `3.48 lacs was not paid by me to Mr.Goyal Advocate for purchase of stamp papers. Volunteer,

the moment the draft was approved, the money would have been given to Mr.Goyal for the purchase of the stamp papers. It is correct that one or two days would have been taken for getting the stamp papers, as money had to be deposited first with the State Bank of India."

18. On being cross-examined Subhash Gupta admitted that the writing Ex.PW-1/D1 dated January 16, 2005 was in his handwriting. With respect thereto, he stated during cross examination:-

"It is corrected that on 16.01.2005, I had given a proposal to the defendant to enhance the sale consideration by `3 lacs and make it `46.50 lacs if premises were vacated by the defendant within a week. It is correct that I had written a note to the effect on 16.01.2005. Ex.PW-1/D1 is the photocopy of the writing made by me on 16.01.2005 in that regard."

19. On further cross examination he admitted that suit seeking specific performance was on the basis that part sale consideration in sum of `43.5 lacs was payable. On further cross examination he admitted that the defendants had shifted to a rented property and had stayed there for two to three months and that he had paid the rent to Madhu sometimes by cheque and sometimes in cash.

20. Ashish Gupta PW-2, G.P.Goyal PW-3, Vikas Aggarwal PW-4 corroborated PW-1 on the aspect that on February 16, 2005 PW-1 was in the office of the Sub-Registrar and was carrying with him two bankers' cheques totaling `35,00,000/- (Rupees Thirty Five Lacs only) to be paid to the defendants. During cross examination PW-4 stated that it was correct that Madhu had agreed to hand over possession early if `3,00,000/- (Rupees Three Lacs only) was paid to which Mr.Subhash Gupta agreed. He further admitted that Ex.PW-1/D1 was in the handwriting of Subhash Gupta. Similarly PW-5 during cross examination admitted that on January 16, 2005, when the matter was settled between

the parties and Ex.PW-1/D1 was written in his presence by Mr.Subhash Gupta, it was reflective of a settlement between the parties. Even PW-6 admitted in cross examination that he had heard talks of the sale consideration being enhanced to `46,50,000/- (Rupees Forty Six Lacs and Fifty Thousand only).

21. B.N.Arora PW-5 deposed that since Madhu and Sapan were delaying handing over possession of the property Sh.Subhash Gupta PW- 1 made an offer to pay them `3,00,000/- (Rupees Three Lacs only) more if possession was handed over within a week and sale-deed registered and that the two did not hand over possession within a week nor executed the sale-deed and thus the conditional offer lapsed.

22. Prashant Jham PW-6 deposed that the agreement Ex.P-1 was drawn up in his presence and that as per the agreement Sh.Subhash Gupta got the plans of the property sanctioned for effecting reconstruction. One Ashok Kumar Chhabra PW-6 (and we note that two witnesses have been given same number) deposed that he had let out the first floor of his house 156, Kohal Enclave to Madhu Chopra in the year 2004 and had received interest free security deposit in sum of `50,000/- (Rupees Fifty Thousand only) and that Madhu Chopra shifted back to her house in Kohat Enclave after three months.

23. Madhu Chopra appeared as DW-1 and deposed as per her written statement. She deposed that the agreement Ex.P-1 was novated on January 16, 2005 when Subhash Gupta the Director of M/s.Ultimate Builders & Developers Pvt. Ltd. gave the writing Ex.PW-1/D1 to her. She deposed that she shifted to 156, Kohat Enclave, Pitampura. She deposed that the plaintiff gave to her the draft of a proposed sale-deed Ex.DW-1/2 recording sale consideration in sum of `12,50,000/- (Rupees Twelve Lacs and Fifty Thousand only) which was not acceptable to her

because after selling the first floor and the second floor she was to purchase a property No.826/813, Rajender Nagar, Street -2A, Kaulgarg Road, Dehradun from one Sh.Chakravarty. She admitted that Ex.P-3 to Ex.P-5 were written. She deposed that she did not execute the sale-deed because the plaintiff was not paying the agreed sale consideration in sum of `43,50,000/- (Rupees Forty Three Lacs and Fifty Thousand only). During cross examination she denied that the draft sale-deed Ex.DW-1/2 was not given to her by the Director of the plaintiff.

24. Raj Kumar DW-2 and Sanjay Bhatija DW-3 deposed same facts as were deposed to by DW-1.

25. Vide impugned judgment and decree dated October 08, 2013 the learned Single Judge has held that from the evidence it was clear that since Ex.PW-1/D1 was signed by the defendants but was not signed by anybody on behalf of the plaintiff, thus the sale consideration would continue to be `43,50,000/- (Rupees Forty Three Lacs and Fifty Thousand only) i.e. the suit seeking specific performance of Ex.P-1 on the consideration mentioned therein was rightly filed. The learned Single Judge has held that the plaintiff had two demand drafts in the name of the defendants for the balance sale consideration on February 15, 2005. That the defendants postponed execution of the sale-deed till February 16, 2005 on which date the plaintiff's representative was present in the office of the Sub-Registrar for sale-deed to be executed. The learned Single Judge has held that the defendants could not prove that Ex.DW-1/2 was drafted by the plaintiff and sent to them. The learned Single Judge has held thereafter that issues No.1, 2 and 3 were liable to decided in favour of the plaintiff and issues No.4, 5 and 6 onus whereof was on the defendants were liable to be decided against them.

26. The suit has been decreed requiring plaintiff to deposit balance sale consideration in sum of `35,50,000/- (Rupees Thirty Five Lacs and Fifty Thousand only), wrongly recorded in the judgment as `38,50,000/- (Rupees Thirty Eight Lacs and Fifty Thousand only), which has been subsequently corrected to be read as `35,00,000/- (Rupees Thirty Five Lacs only) vide order dated October 30, 2013 on the reasoning that the defendants had already received a sum of `8,50,000/- (Rupees Eight Lacs and Fifty Thousand only).

27. The impugned judgment passed by the learned Single Judge has clearly overlooked a very critical aspect of the matter concerning the writing Ex.PW-1/D1 dated February 16, 2005 and the admission by Subhash Gupta PW-1 in respect thereof, contents whereof have been noted by us in para 18 above. The learned Single Judge has overlooked the fact that in the plaint not a word was spoken of regarding Ex.PW- 1/D1. Even in his testimony, in spite of knowing the defence, Subhash Gupta PW-1 did not depose anything regarding Ex.PW-1/D1. But in cross examination he admitted that as recorded in Ex.PW-1/D1 he had proposed to enhance the sale consideration by `3,00,000/- (Rupees Three Lacs only) if the premises was vacated by the defendant within a week. Whereas the defendants asserted having vacated the premises, in fact as per the defendants they did so prior to January 16, 2005, the learned Single Judge has not considered the effect of Ex.PW-1/D1 in light of the admission made during cross examination by Subhash Gupta.

28. The writing Ex.PW-1/D1 reads as under:-

"With the mutual consent of the undersigned seller and the undersigned purchaser of property No.72, Kohat Enclave, Pitampura, Delhi-34, the total sale consideration of the property under sale as mentioned in the agreement to sell is hereby finally enhanced from `43,50,000/- (Rupees Forty Three

Lacs and Fifty Thousand only) to `46,50,000/- (Rupees Forty Six Lacs and Fifty Thousand only). The date for final payment and the execution of sale-deed is hereby extended up to 27th January, 2005 at the request and as per the convenience of the seller. The seller shall vacate the property under sale within a period of one week from the date hereof without any excuse and without fail. The seller shall continue to retain possession of drawing room on ground floor."

It has been signed by Sapan and Madhu. It may not have been signed by the authorized representative of the plaintiff, but PW-1 admitted that he wrote the contents thereof.

29. As noted in paragraph 2 above, in clause 7 of the agreement Ex.P-1 it has been written that the first party (Sapan and Madhu) had delivered the physical vacant possession of the property to the second party (M/s.Ultimate Builders & Developers Pvt. Ltd.), a fact which both parties agree is incorrect. Concededly possession was not given on August 11, 2004 when Ex.P-1 was executed. It is apparent that M/s.Ultimate Builders & Developers Pvt. Ltd. got said fact wrongly recorded in Ex.P-1 to strengthen itself if need arose upon a dispute concerning possession. But for purposes of a decision by a Court what would be of importance to be highlighted would be that the same shows a lack of mutual trust i.e. a trust deficit between the parties.

30. Ex.P-1 contemplated sanction to be obtained from the Municipal Corporation of Delhi to effect renovation and reconstruction of the existing ground floor, first floor and second floor. The property had yet to be mutated in the name of Sapan and Madhu. Till mutation would be effected in the Government record, municipal plans could not be sanctioned. The parties knew that. They thus recorded in Ex.P-1 that renovation of the ground floor shall be completed within ten months from the date when sanction was obtained from the Corporation to effect

reconstruction. The parties could reasonably be presumed to have expected that municipal sanction would take anything between three months to four months. Indeed, municipal sanction was obtained on December 30, 2004 as per Ex.PW-1/4. It can reasonably be presumed that the Director of the plaintiff who was in touch with the municipal authorities for obtaining a municipal sanction had knowledge of the stage at which the application seeking sanction had reached while being processed at the multi tiered municipal structure. Ashok Kumar Chhabra, the second witness examined as PW-6 by the plaintiffs has deposed that he let out the first floor of his house to Madhu in the year 2004 when he received interest free security deposit in sum of `50,000/- (Rupees Fifty Thousand only) and that Madhu shifted back to her house after three months. As pleaded in the plaint and deposed to by PW-1 `50,000/- (Rupees Fifty Thousand only) was paid to Madhu on December 11, 2004. A co-joint reading of the testimony of Ashok Kumar Chhabra, the pleadings in the plaint and the testimony of PW-1 would strongly probablize the fact that by December 2004, after receiving `50,000/- (Rupees Fifty Thousand only) from the plaintiff Madhu gave the same to Ashok Kumar Chhabra as security deposit and was in a position to shift to the tenanted house. Neither party has led evidence with clarity of the actual date when Madhu and her son shifted. But from the fact that the plaint was instituted on March 02, 2005 and in view of the testimony of Ashok Kumar that Madhu shifted back to her house within three months, we have enough evidence wherefrom a reasonable and a probable inference can be drawn that by end of December, 2004 Madhu had shifted to the tenanted premises. But yet in spite thereof for reasons which can only be attributed to a trust deficit between the parties, when Ex.PW-1/D1 was executed on January 16, 2005 it was recorded that sale

consideration shall be enhanced by `3,00,000/- (Rupees Three Lacs only) with the condition that the seller shall vacate the property under sale within a period of one week retaining possession of the drawing room on the ground floor. The trust deficit is evidenced from the fact that Madhu and Sapan got it written in Ex.PW-1/D1 that they shall be retaining possession of the drawing room on the ground floor, unmindful of the fact that for purposes of renovation of the ground floor possession of even the drawing room on the ground floor had to be given to the builder. Regretfully, neither party understood that the status of the plaintiff with respect to agreement Ex.P-1 was two fold. The first was that of a buyer of the first floor and the second floor. The second was that of a builder to renovate the ground floor. Possession as a builder to renovate the ground floor would be akin to that of a licensee who enters a premises upon the terms of a grant and after the purpose of the entry is over is obliged to withdraw himself. It is this trust deficit which has created the problem. But one fact emerges which we have already noted above : that Sapan and Madhu had vacated the entire property when they shifted to the tenanted accommodation by December, 2004 and the parties were unable to remove cob webs from their mind. The vacant building remained abandoned with formal possession not being given to the plaintiff. Another reason for the trust deficit was the ambiguous manner of the execution of Ex.PW-1/D1. Whereas Sapan and Madhu were clearing their mind that sale consideration was enhanced by `3,00,000/- (Rupees Three Lacs only), the builder was of the view that the novation was conditional upon possession being handed over. But the issue has to be resolved. A Court verdict cannot be floating. In this connection the admissions made by PW-4, PW-5 and PW-6, to which we have made a reference to in para 20 above become relevant. The verdict has to be in

favour of Sapan and Madhu because the writing Ex.PW-1/D1 which admittedly is in the hand of PW-1 simply records that 'the seller shall vacate the property under sale within a period of one week from the date hereof without any excuse and without fail'. We have already held that the evidence requires this Court to take the reasonable view that the evidence probablizes Sapan and Madhu vacating the property under sale within a period of one week. The document does not record possession being handed over within one week. The parties clearly understood that vacation of the property within a week would be treated as possession with the builder. Thus, it is a clear case where M/s.Ultimate Builders & Developers Pvt. Ltd. was required to pay sale consideration of `46,50,000/- (Rupees Forty Six Lacs and Fifty Thousand only) and not `43,50,000/- (Rupees Forty Three Lacs and Fifty Thousand only). The suit seeking specific performance on the readiness and willingness to pay `43,50,000/- (Rupees Forty Three Lacs and Fifty Thousand only) must accordingly fail.

31. The learned Single Judge has held that M/s.Ultimate Builders & Developers Pvt. Ltd. had proved that on February 16, 2005 it had got prepared two bankers' cheques totaling `35,00,000/- (Rupees Thirty Five Lacs only) and therefrom has concluded that M/s.Ultimate Builders & Developers Pvt. Ltd. had proved the readiness and willingness to comply with its obligations under the agreement Ex.P-1.

32. The learned Single Judge has overlooked the fact that except for an assertion to said effect no attempt was made to prove, by calling the banker, that the two cheques stated to have been got issued from the banker towards sale consideration were issued by the bank. In this regards we note that in the list of documents filed along with the suit photocopies of two cheques in sum of `17,75,000/- (Rupees Seventeen

Lacs and Seventy Five Thousand only) and `17,25,000/- (Rupees Seventeen Lacs and Twenty Five Thousand only) as also a certificate purportedly issued by the banker have been filed, but none have been proved.

33. But we proceed on the basis that M/s.Ultimate Builders & Developers Pvt. Ltd. did have in its possession, to be tendered to Sapan and Madhu, the two cheques in question on February 16, 2005.

34. That by itself would not mean that on said day the sale-deed could have been executed. Admittedly all charges to be borne for execution of the sale-deed were to the account of M/s.Ultimate Builders & Developers Pvt. Ltd. As noted in paragraph 17 above, during cross examination PW- 1 conceded to the fact that on February 16, 2005 stamp papers on which sale-deed had to be drawn up were not purchased and that it would have taken minimum one or two days to obtain the stamp papers for the reason `3,48,000/- (Rupees Three Lacs and Forty Eight Thousand only) had to be first deposited with the State Bank of India and the deposit challan handed over to the Treasury of the Collector of Stamps for the stamp papers to be issued. Thus, it is apparent that no sale-deed could be executed on February 16, 2005. It has to be kept in mind, a vital circumstance overlooked by the learned Single Judge, that whereas M/s.Ultimate Builders & Developers Pvt. Ltd. was a experienced player in sale, purchase, construction and reconstruction of properties, Sapan and Madhu were novices. Whereas Madhu was a widow, Sapan was then a young man barely out of his teens. The two lacked any experience in sale and purchase of properties. M/s.Ultimate Builders & Developers Pvt. Ltd. was fully aware that in the absence of stamp papers with it no sale-deed could be executed on February 16, 2005. It is obvious that PW- 1, as Director of M/s.Ultimate Builders & Developers Pvt. Ltd., knowing

fully well it was impossible to get executed and thereafter get registered any sale-deed, reach the office of the Sub-Registrar on February 16, 2005 to create evidence in favour of M/s.Ultimate Builders & Developers Pvt. Ltd. Further, we have already held that the sale consideration was `46,50,000/- (Rupees Forty Six Lacs and Fifty Thousand only) and thus a tender of any sum less than that would be useless.

35. This takes us to the immediate second limb of a relevant issue on which the learned Single Judge has disbelieved Madhu's testimony that Subhash Gupta, the Director of M/s.Ultimate Builders & Developers Pvt. Ltd. had sent to her Ex.DW-1/2, a proposed sale-deed recording sale consideration in sum of `12,50,000/- (Rupees Twelve Lacs and Fifty Thousand only), to which she did not agree. No reasons have been given by the learned Single Judge to disbelieve the statement made on oath by Madhu, but the only reason could be that the same was a mere assertion on oath, and could be labeled as a self-serving statement, uncorroborated by any other evidence. If this was so, the learned Single Judge would be equally obliged to apply the same yardstick to measure the creditworthiness of the testimony of Subhash Gupta made on oath. Mere statement made on oath by Subhash Gupta that he was armed with two cheques to pay the sale consideration has been accepted by the learned Single Judge without any corroborative evidence. That apart, the learned Single Judge has clearly overlooked the fact that normal course of conduct with reference to a sale-deed being executed would be that the buyer and the seller would settled their agreed terms of the sale-deed. That M/s.Ultimate Builders & Developers Pvt. Ltd. was an experienced player and Sapan and Madhu were novices had to be taken into account and therefrom a reasonable inference could be drawn that M/s.Ultimate Builders & Developers Pvt. Ltd. would take the lead in preparing the

draft of the proposed sale-deed and get it settled with Madhu and Sapan. It is trite that sometimes circumstances enwombing a fact assume such importance that the circumstance starts playing a role more dominant than a fact. That M/s.Ultimate Builders & Developers Pvt. Ltd. claims that the sale-deed had to be executed on February 16, 2005 is a circumstance wherefrom it can reasonably be inferred that prior thereto a draft of the proposed sale-deed was handed over by M/s.Ultimate Builders & Developers Pvt. Ltd. to Madhu and Sapan and thus it is not a case of a mere statement on oath by Madhu that the draft sale-deed Ex.DW-1/2 was given to her by the plaintiff. It is an additional case where aforenoted circumstance exists and therefore corroborates the statement on oath made by Madhu.

36. We accordingly hold that Madhu and Sapan have been able to establish that M/s.Ultimate Builders & Developers Pvt. Ltd. was wanting the sale-deed to be registered at a sale consideration of `12,50,000/- (Rupees Twelve Lacs and Fifty Thousand only), to which Madhu and Sapan did not agree and this was the real reason, apart from the trust deficit between the parties, to which we have referred to hereinabove, for the transaction not to get through. Thus, M/s.Ultimate Builders & Developers Pvt. Ltd. must fail on said account additionally on its inability to prove that all throughout it was ready and willing to perform its obligations under the contract.

37. Lastly, the learned Single Judge overlooked the fact that agreement Ex.P-1 had a dual character, to which we have made a reference to in paragraph 13 above. It may be true that the pleadings of Madhu and Sapan did not bring out said fact, but this was not a matter of evidence or dispute between the parties. This aspect stares one in his face if one merely glances at Ex.P-1, a document on which neither party was at

variance. The distinct part of Ex.P-1 which reduces the status of M/s.Ultimate Builders & Developers Pvt. Ltd. to a contractor to renovate the existing ground floor by making additions and alterations with details in minute specifications which we have noted in paragraph 4 above would meant that the composite composition for the sale of the first floor and second floor was not only the payment of the agreed money but even the execution of civil, electrical, plumbing, drainage and sanitary works. The latter had an element of bringing to site the requisite material but even a labour and a supervision element. The execution of the work would obviously require constant supervision. In our opinion Section 14(b) and (d) of the Specific Relief Act, 1963 come into play on account of the fact that one important facet of the contract runs into such minute or at least such numerous details which are of a nature that the Court cannot enforce specific performance of its material terms. Further, the performance of said part of the contract involves the performance of a continuous duty which the Court cannot supervise. Ex.P-1 cannot be severed into two parts concerning sale of the first floor and the second floor for an agreed consideration and reconstruction and renovation of the ground floor at an agreed consideration.

38. The appeal is thus allowed. Impugned judgment and decree dated October 08, 2013 is set aside.

39. During arguments learned counsel for the appellants had indicated the willingness of Sapan and Madhu to refund `8,50,000/- (Rupees Eight Lacs and Fifty Thousand only) received by them from M/s.Ultimate Builders & Developers Pvt. Ltd.; `8,00,000/- (Rupees Eight Lacs only) when Ex.P-1 was executed and `50,000/- (Rupees Fifty Thousand only) subsequently on December 11, 2004. Such rate at which interest should be awarded was left to the discretion of the Court.

40. In our opinion simple interest @ 12% per annum on `8,00,000/- (Rupees Eight Lacs only) commencing from August 11, 2004 till date of payment and simple interest @ 12% per annum on `50,000/- (Rupees Fifty Thousand only) from December 11, 2004 till date of payment would suffice.

41. The appeal is accordingly disposed of decreeing suit filed by the respondent against the appellant in sum of `8,50,000/- (Rupees Eight Lacs and Fifty Thousand only) with simple interest @ 12% per annum on `8,00,000/- (Rupees Eight Lacs only) commencing from August 11, 2004 till date of payment and simple interest @ 12% per annum on `50,000/- (Rupees Fifty Thousand only) from December 11, 2004 till date of payment.

42. Parties shall bear their own costs all throughout.

(PRADEEP NANDRAJOG) JUDGE

(JAYANT NATH) JUDGE MAY 22, 2014 mamta