Delhi High Court
Deepak Resorts & Hotels Pvt. Ltd. vs M/S Alaknanda Properties Pvt. ... on 6 November, 2015
$~5.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 06.11.2015
% RSA 376/2014 and C.M. No.19864/2014
DEEPAK RESORTS & HOTELS PVT LTD ..... Appellant
Through: Mr. Ravi Gupta, Senior Advocate
along with Mr. V.P. Rana, Mr. Sachin
Jain, Mr. Ajay Gulati & Ms.Bhoomija
Verma, Advocates.
versus
M/S ALAKNANDA PROPERTIES PVT LTD
& ORS ..... Respondents
Through: Mr. Deepak Khosla, Advocate for
respondent No.1.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The present second appeal is directed against the judgment and decree
dated 17.03.2008 passed in RCA No.84/2005 by the First Appellate Court,
namely the Additional District Judge, Delhi, whereby the said appeal
preferred by the respondent No.1/ plaintiff has been allowed and the suit of
the respondent No.1/ plaintiff seeking a decree of specific performance has
been decreed. The respondent No.1/ plaintiff had filed the said first appeal
to assail the judgment and decree passed by the Trial Court, namely the
learned Civil Judge, Delhi in Suit No.763/2002, whereby the said suit had
been dismissed.
2. The respondent No.1/ plaintiff had filed the said suit for specific
performance, impleading respondents No.2, 3 & 4 herein as the defendants
in the suit, on the premise of an agreement to sell executed by defendant
No.1/ Smt. Parmeshwari - the recorded Bhumidhar of 1/8th share of the land
comprising in Khasra Nos. 1018(1-00), 1072(1-00), 1073(1-00), 1079 (0-
06), 1064 min (0-13), 1065 min (0- 13), 1155 min (0-6), 1161 min (0-10),
1163 (1-2), 1166 min (0-4), 23/15 min (2-08), 24/11 (5-14), 43/24 min (1-2),
25 min (4-18) in all measuring 20 bighas 16 biswas situated in the revenue
estate of Village Kapashera, Tehsil Mehrauli, New Delhi.
3. The plaintiff claimed that vide agreement to sell dated 16.12.1991,
defendant No.1 had agreed to sell her share of the aforesaid land for a total
consideration of Rs.1,43,541.66 and had received the entire sale
consideration by cheque under acknowledgement. Defendant No.1 had also
executed a General Power of Attorney (GPA) and a registered Will in
respect of her share in the aforesaid land in favour of Smt. Anjali Sehgal.
She had also sworn an affidavit acknowledging delivery of possession of the
suit property to the plaintiff. The plaintiff stated that in terms of the said
agreement, defendant No.1 was obliged to obtain necessary permission
under the Delhi Land (Restrictions on Transfer) Act, 1972 and thereafter
intimate the plaintiff for completion of the transaction with the execution of
the sale deed. The plaintiff claimed that on various occasions it inquired
from defendant No.1 whether she had obtained the No Objection Certificate
(NOC) and the defendant kept assuring that the permission was under
process, and when the same is received, the plaintiff shall be informed. The
plaintiff stated that it was always been ready & willing to help defendant
No.1 to obtain the permission and perform its part of the contract. In the
middle of April 1996, the plaintiff approached defendant No.1 and enquired
about the aforesaid permission. However, defendant No.1 gave an evasive
reply and, therefore, the plaintiff felt that she was trying to back out from the
agreement. On 24.04.1996, a representative of the plaintiff again visited and
enquired from the defendant with regard to the permission, and on this
occasion, the defendant stated that she was not interested in transferring the
land to the plaintiff. Consequently, the plaintiff filed the said suit.
4. Defendant No.1 filed her written statement and revealed that during
the pendency of the suit, she had transferred the suit property to defendants
No.2 & 3. Consequently, they were impleaded as party defendants in the
suit. In her written statement, defendant No.1 raised, inter alia, the
objection that the suit was barred by time. She claimed that she was an
illiterate person and her thumb impression was taken on the documents
without disclosing the true nature of documents to her. She also claimed
that the agreement in question was procured by Smt. Anjali Sehgal by using
fraudulent means against the defendant. She denied that the amount of
Rs.1,43,541.66 received by her through cheque was the full sale
consideration. She submitted that Rs.1,00,000/- was to be paid at the time of
execution of the sale deed. She further stated that Smt. Anjali Sehgal was
holding the Power of Attorney, which enabled her to obtain the NOC and
complete the sale transaction. However, she did not do so because she was
aware that the agreement to sell had been obtained by her by using
fraudulent means. She denied that the plaintiff enquired about the
obtainment of the permission, as aforesaid. She denied that the plaintiff had
been ready & willing to perform its part of the contract. Defendants No.2 &
3, despite impleadment, did not file their written statement.
5. The Trial Court framed, inter alia, the issue: whether the suit is barred
by limitation. Another issue framed was: whether the plaintiff is entitled to
specific performance of the agreement to sell dated 16.12.2001, as prayed
for. The plaintiff examined Smt. Anjali Sehgal as PW-1. Defendants No.2
& 3 examined Smt. Ramesh Kumari as DW-1 and Sh. Hitesh Bhardwaj as
DW-2. However, since they had not filed their written statement, the said
evidence was not read. Defendant No.1 was proceeded ex-parte.
6. The Trial Court decided all issues in favour of the plaintiff, except
issue No.6, i.e. whether the plaintiff is entitled to specific performance of the
agreement to sell dated 16.12.2001. On the said issue, the Trial Court
returned the finding that since Defendant No.1 had executed and registered a
GPA (Ex.PW-1/5), clause 5 whereof authorized Ms. Anjali Sehgal to obtain
NOC from the Tehsildar (Notification), or any other authority; and clause 7
authorised her to execute the sale deed and present the same to the
competent registration authority, the plaintiff could have easily obtained the
NOC through its director Smt. Anjali Sehgal and also execute the sale deed
in favour of the plaintiff on the basis of the registered GPA. However, the
plaintiff chose not to do so and waited for five long years for defendant No.1
to obtain the NOC and execute the sale deed. The Trial Court held that the
plaintiff had itself been negligent in performing its duty of protecting its
own interest. The Trial Court found the conduct of the plaintiff to be not
above board as the plaintiff was held to be guilty of negligence, disentitling
it to seek the discretionary relief of specific performance. Consequently, the
suit was dismissed.
7. The first appeal preferred by the respondent/ plaintiff, however,
succeeded. The First Appellate Court reversed the finding of the Trial Court
on issue No.6. The First Appellate Court held that the Trial Court had failed
to take into consideration the aspect that it was the definite case of the
plaintiff that the plaintiff had signed the requisite forms for the purpose of
obtaining the NOC under the Delhi Land (Restrictions on Transfer) Act,
1972 which were handed over to defendant No.1. It was not the case of
defendant No.1 that the same were handed back to the plaintiff. Moreover,
defendant No.1 had executed the sale deed in favour of the defendants No.2
& 3, which means, that defendant No.1 would have obtained prior
permission for execution of the sale deed. This constitutes refusal by
defendant No.1 to perform her obligations. Defendant No.1 had claimed
that a further amount of Rs.1,00,000/- was promised to be paid at the time of
execution of the sale deed, but no evidence had been led by her in this
regard. This shows that she had not executed the sale deed by obtaining
permission, as she was expecting something over & above the consideration
under the agreement. Merely because the GPA had been executed in favour
of Smt. Anjali Sehgal, the same would not come in the way of passing of a
decree for specific performance. Reference was made to Kuldeep Singh
Suri Vs. Surender Singh, 1999 RLR 20, where the relief of specific
performance was granted, even though GPA had been executed in favour of
the agreement purchaser.
8. The First Appellate Court also held that it could not be said that the
plaintiff was not ready & willing to perform her part of the agreement.
There was nothing remaining to be done on the part of the plaintiff. Since
defendant No.1 had not obtained permission and did not execute the sale
deed, the finding on issue No.6 was reversed.
9. The submission of Mr. Gupta, learned senior counsel for the appellant
is that when the agreement was entered into between the respondents No.1
& 2, consolidation proceedings were in progress. He submits that Section
30 of the East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948 prohibited transfer of the land which was under
consolidation. Consequently, the agreement itself was hit by Section 30 of
the said Act. Mr. Gupta submits that it was not certain - when the
agreement was entered into between the plaintiff and defendant No.1,
whether the same parcel of land would eventually fall to the share of
defendant No.1 post-consolidation. Thus, the claim made by the plaintiff
that she had been put in possession, was incorrect. Mr. Gupta submits that
the plaintiff had not specifically sought the relief of possession, in the suit
even though the plaintiff was not placed in possession of the suit property
under the agreement to sell. Merely seeking the relief of specific
performance is, therefore, not sufficient. Mr. Gupta has also placed reliance
on the judgment of this Court in Ms. Adarsh Kaur Gill Vs. Sh. Mawasi &
Others, 187 (2012) DLT 41. He submits that the decree obtained by the
respondent/ plaintiff, in any event, cannot be executed since the relief of
possession has not been sought by the respondent/ plaintiff.
10. Mr. Gupta places reliance on Chet Ram Vashist Vs. Ram Chander
Goel, AIR 2000 (Del) 96, wherein this Court has taken the view that in
respect of the agreement to sell where time of performance is not specified,
the same is construed in a reasonable manner. He submits that in the factual
background of the present case, the period of five years between the date of
the agreement and the filing of the suit could not be construed as reasonable.
11. He also places reliance on Subhash Chander Kathuria Vs. Umed
Singh & Another, AIR 2006 Delhi 94, to submit that the suit was barred by
limitation.
12. On the other hand, the submission of Mr. Khosla, learned counsel for
the respondent No.1/ plaintiff is that there is no merit in the present second
appeal as it does not raise any substantial question of law for consideration
of this Court.
13. Mr. Khosla submits that the entire consideration had been paid by the
plaintiff to defendant No.1 at the time of execution of the agreement to sell,
and there was no outstanding obligation of the plaintiff, as it was the
obligation of defendant No.1 to obtain the NOC from the competent
authority before execution of the sale deed. He has specifically drawn the
attention of the Court to clauses 7, 9 and 10 of the agreement to sell
(Ex.DW-1/3), which read as follows:
"7. THAT if requisite in law or if otherwise required by any
statutory authority, then it shall be the duty of the First Party to
obtain in the name of the First Party the required Wealth Tax,
Estate Duty, Income Tax Clearance Certificates and also the
required 'NO OBJECTION CERTIFICATE' from the
prescribed authority under the Delhi Land (Restriction on
Transfer) Act of 1972, however the First Party shall intimate
the Second Party by Registered Post about the receipt of these
sanctions, permissions and certificate.
x x x x x x x x x
9. THAT the land, which is sought to be purchased, is
situated in village Kapashera, and consolidation proceedings
have started in the said village. The First Party has agreed to
transfer the land mentioned hereinabove, however in case
during the consolidation proceedings some different land is
allotted in lieu of the land hereby agreed to be sold, then this
agreement shall be construed for the newly allotted land.
Similarly if the area in the consolidation proceedings increases
or decreases then this agreement shall be effective for the
increase or decreased area as the case may be.
10. THAT the actual physical possession of the said land has
been delivered by the First Party to the Second Party at the
spot and the Second Party shall be entitled to level, develop and
improve the same and can also raise any type of construction
ad may be permissible under the law, and also be entitled to
install any tubewell, boring, and to get electric light/ power
connections in its name."
14. Mr. Khosla submits that merely because the GPA had been executed
in favour of Smt. Anjali Sehgal, it did not take away the obligation of
defendant No.1 to obtain the requisite NOC from the competent authority
and to execute & register the sale deed in favour of the plaintiff.
15. Having heard learned counsel, perused the judgments of the Courts
below and the decisions relied upon by the appellant, this Court is of the
view that there is no merit in this second appeal and the impugned judgment
& decree does not call for interference as no substantial question of law
arises for consideration of this Court.
16. A perusal of clause 7 of the agreement to sell (Ex.DW-1/3) shows that
the specific obligation to obtain the requisite NOC was cast upon defendant
No.1, who was the first party under the agreement. It was for the first party,
namely defendant No.1 to obtain the NOC and intimate the same to the
second party, i.e. the plaintiff. The fact that defendant No.1 had appointed
Smt. Anjali Sehgal as her attorney, enabling her to act on her behalf for the
purpose of obtainment of the NOC and for execution & registration of the
sale deed, it did not liberate defendant No.1 of her primary obligation to
obtain the NOC and thereafter execute the sale deed in favour of the
plaintiff. An attorney is merely an agent of the principal who, in this case,
was defendant No.1. The attorney was not bound or obligated to act on the
basis of the GPA executed in her favour. The same was executed merely to
enable the attorney to act on behalf of the principal, i.e. defendant No.1.
Pertinently, the agreement to sell (Ex.DW-1/3) does not liberate defendant
No.1 to personally apply for and obtain the NOC and thereafter execute and
register the sale deed in favour of the plaintiff. If the intention of the parties
was that only the attorney Smt. Anjali Sehgal would act on the basis of the
GPA executed in her favour by defendant No.1, nothing prevented the
parties from incorporating in the agreement to sell (Ex.DW-1/3), an
appropriate clause to say that the NOC shall be applied for and obtained in
the name of defendant No.1 by the attorney of defendant No.1 and thereafter
the sale deed shall be executed and got registered also through the attorney
of defendant No.1. Since there was no legal obligation on the attorney to act
on the basis of the GPA and to apply for and obtain the NOC and thereafter
execute and register the sale deed, the mere execution of the said GPA in
favour of Smt. Anjali Sehgal could not have liberated defendant No.1 of her
obligation to take the said steps. At the same time, it did not place the
plaintiff in any disadvantageous position, as Smt. Anjali Sehgal chose not to
act on the basis of the GPA to apply for and obtain the NOC and thereafter
proceed to execute and register a sale deed in favour of the plaintiff.
17. The submission of Mr. Gupta premised on Section 30 of the East
Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,
1948 is misplaced. The said provision merely states that after a notification
under Section 14(1) of the said Act has been issued (which sets the
consolidation proceedings into motion) and during the pendency of the
consolidation proceedings, no landowner or tenant having a right of
occupancy upon whom the scheme will be binding, shall have power
without the sanction of the Consolidation Officer, to transfer or otherwise
deal with any portion of his original holding or other tenancy so as to affect
the rights of any other land-owner or tenant having a right of occupancy
therein under the scheme of consolidation. Section 30 does not, per se,
prohibit the transfer of the land under consolidation during the pendency of
the consolidation proceedings. It merely states that such transfer shall not
bind or affect the right of any other land owner or tenant having a right of
occupancy in the land under consolidation. The parties were conscious of
the fact that the land in question was under consolidation and, consequently,
provided in clause 9 of the agreement to sell (Ex.DW-1/3) that the said
agreement shall relate to that parcel of land which came to be allotted
ultimately in lieu of the land to which the agreement related.
18. The submission of Mr. Gupta that the plaintiff did not seek the relief
of possession at any stage of the suit, also has no merit. Section 22 of the
Specific Relief Act, inter alia, provides that any person suing for specific
performance of a contract for transfer of immovable property may, in
appropriate case, ask for possession of the property in addition to such
performance. Section 22(2) provides that no relief under clause (a) or clause
(b) of sub-section (1) shall be granted by the Court unless it has been
specifically claimed. The proviso to Section 22(2) is relevant and the same
reads:
"provided where the plaintiff had not claimed any such relief in
the plaint, the Court shall, at any stage of the proceeding, allow
him to amend the plaint on such terms as may be just for
including a claim for such relief".
19. Firstly, the agreement to sell (Ex.DW-1/3) itself recites in clause 10
that the actual physical possession of the said land has been delivered by the
first party, i.e. defendant No.1 to the second party, i.e. the plaintiff at the
spot, and that the second party shall be entitled to level, develop and
improve the same and can also raise any type of construction as may be
permissible under the law and shall be entitled to install any tubewell, boring
and to get electric light/ power connections in its name. Thus, the plaintiff
was placed in possession when the agreement to sell (Ex.DW-1/3) was
executed. In any event, even if it were to be assumed that the plaintiff was
not placed in actual physical possession of the suit land when the said
agreement to sell was executed, the symbolic possession certainly stood
transferred to the plaintiff.
20. The decision relied upon by Mr. Gupta in the case of Ms. Adarsh
Kaur Gill (supra), in fact, supports the case of respondent No.1 and not that
of the appellant. In this case, while seeking execution of the decree for
specific performance, the decree holder, at the execution stage, without
prejudice, sought amendment of the plaint to include a specific prayer for
possession by way of abundant caution, which had earlier not been sought.
The judgment debtor opposed the execution by claiming that the decree
holder had not sought the relief of possession in the plaint and that the same
was being sought after a long gap of 20 years and that the amendment
sought by the decree holder in the execution proceedings could not be
allowed. This Court rejected these objections of the judgment debtor in the
following words:
"21. Admittedly, in the present case, when the suit for specific
performance was filed in the year 1988, no relief for possession
asked for. A decree for specific performance of the agreement
was passed against the judgment debtors on 15.11.1991. The
sale deed was registered on 22.11.1991 in favour of the decree
holder.
22. It is settled law that an Executing Court cannot go behind
the decree nor can it question its legality or correctness. But,
there is one exception to this rule that where the decree sought
to be executed in nullity for lack of inherent jurisdiction in the
court passing it, its invalidity can be set up in an execution
proceedings. In the present case, there is no such position to the
effect that the decree was passed for lack of inherent
jurisdiction.
23. It is also well established law that it may not always be
necessary for the plaintiff to specifically claim possession over
the property. The relief of possession is inherent in the relief for
specific performance of the contract of sale.
24. The proviso to sub section (2) provides for amendment of
the plaint on such terms, as may, for including a claim for such
relief at "Any stage of the proceedings." The word
"proceedings" in Section 22 includes execution proceedings,
meaning thereby, any stage in litigation which can have various
stages. Thus, the Court executing the decree is competent to
deliver the possession. On 01.03.1964, the Specific Relief Act of
1963 came into force and the Act was amended by enacting
Section 22 which makes it mandate for the plaintiff to ask for
the relief of possession in suit for specific performance. In fact,
the said provision was enacted in order to avoid multiplicity of
proceedings so that the party may claim a decree for possession
in a suit for specific performance. However, despite of that the
proviso to Section 22 provides power to a court to allow the
amendment of plaint "at any stage of the proceedings" on such
term as may be just for including a claim for possession where
the plaintiff did not claim such relief in its original plaint.
25. This Court in the case of M/s. Ex-service-men Enterprises
(P) Ltd. vs. Sumey Singh, reported in AIR 1976 Delhi 56 while
relying upon the judgment of the Allahabad High Court in
Rameshwar Nath vs. U.P. Union Bank, reported in AIR 1956
AII 586, has held as under:-
"......the word "proceeding" is a very
comprehensive term meaning generally a
prescribed course of action for enforcing a legal
right and the expression "at any stage" in its
literal and actual meaning means without
limitation either in frequency or duration or length
of time."
26. Now the question before this Court is as to whether the
decree-holder asked to amend the plaint or the decree already
granted in favour of decree-holder would imply the decree of
delivery of possession also in view of fact that it would flow
from the relief relating to execution of sale deed. In the present
case, admittedly the sale deed has already executed in favour of
the decree-holder after passing the decree.
27. The similar question has arisen in various cases which are
referred as under :
(a) AIR 1987 Rajasthan 117 by Sh. K.S. Lodha, J., in the case of
Hemchand vs. Karilal, the relevant paras of which read as
under:-
"5. Now coming to the other limb, it may again be
at once stated that the contention is ill founded in
as much as there cannot be any reason or
justification for the plaintiff asking for an
amendment of the plaint when the relief of
possession had already been prayed for and as
stated above must be deemed to have been
impliedly granted when the decree for specific
performance of the contract has been passed. The
matter stands concluded by their Lordships
decision in the aforesaid case of Babu Lal. It is
pertinent to note that before the provisions of
Section 22 of the Specific Relief Act as amended in
1963 came into force the settled view was that a
decree for specific performance of the contract
implied a relief for possession also. Their
Lordships of the Supreme Court have referred to
all the cases which have taken this view and then
they have referred to the amended Section 22 of
the Specific Relief Act in 1963. Their Lordships
observed that "Section 22 enacts a rule of
pleading. The Legislature thought it will be useful
to introduce a rule that in order to avoid
multiplicity of proceedings the plaintiff may claim
a decree for possession in a suit for specific
performance, even though strictly speaking, the
right to possession accrues only when suit for
specific performance is decreed. The legislature
has now made a statutory provision enabling the
plaintiff to ask for possession in the suit for
specific performance and empowering the Court to
provide in the decree itself that upon payment by
the plaintiff of the consideration money within the
given lime, the defendant should execute the deed
and put the plaintiff in possession." Their
Lordships further observed "the expression in Sub-
section (1) of Section 22 'in an appropriate case' is
very significant. The plaintiff may ask for the relief
of possession or partition or separate possession
'in an appropriate case' and it has been pointed
out that even after the introduction of Section 22 of
the Specific Relief Act in 1963, the plaintiff in a
suit for specific performance of the contract need
not always ask for the relief for possession because
ordinarily such relief would be implied. It is only
in appropriate cases that is cases in which
ordinarily possession may not follow from the
mere decree for specific performance of the
contract e.g. where third party has intervened the
plaintiff has to ask for the relief of possession and
if not asked, the decree will not grant him
possession. Their Lordships further observed "in a
case where exclusive possession is with the
contracting party, a decree for specific
performance of the contract of sale simplicitor
without specifically providing for delivery of
possession, may give complete relief to the decree-
holder. In order to satisfy the decree against him
completely he is hound not only to execute the
sale-deed but also to put the property in possession
of the decree holder. This is in consonance with
the provisions of Section 55(1) of the T. P. Act
which provides that the seller is hound to give, on
being so required, the buyer or such person as he
directs, such possession of the property as its
nature admits. "Then their Lordships referred to
the other kind of cases in which a relief for
possession cannot be effectively granted to the
decree-holder without specifically claiming relief
for possession, namely, where the property agreed
to be conveyed is jointly held by the defendant with
other persons. In such a case the plaintiff has to
pray for partition of the property and possession
over the share of the defendant, and it has been
observed that it is in such eases that a relief for
possession must be specifically pleaded. Again it is
observed "the contention on behalf of the
petitioner is that the relief for possession must be
claimed in a suit for specific performance of a
contract in all cases. This argument ignores the
significance of the words 'in an appropriate case'.
The expression only indicates that it is not always
incumbent on the plaintiff to claim possession or
partition or separate possession in a suit for
specific performance of a contract for the transfer
of the immovable properly. That has to be done
where the circumstances demanding the relief for
specific performance of the contract of sale
embraced within its ambit not only the execution of
the sale deed hut also possession over the property
conveyed under the sale deed. It may not always be
necessary for the plaintiff to specifically claim
possession over the property with the relief for
specific performance of the contract of sale. It is,
therefore, abundantly clear that ordinarily the
relief for specific performance of a contract
implies the relief for possession of the immoveable
property also and in such a case the plaintiff need
not even ask for the decree for possession and as
soon as a decree for specific performance of the
contract is passed the plaintiff would be entitled to
ask for possession in execution of such a decree. In
the present case also the facts do not at all indicate
that the possession would not follow the relief of
specific performance of the contract. No third
party has intervened. The properly is in possession
of the contracting party and, therefore, the decree
for specific performance of the contract would also
ensure for possession of the property in execution
of that decree. 6. So far as the question of
amendment of the plaint in the peculiar
circumstance of this case is concerned, it will only
be a futile exercise. As already pointed above the
plaintiff had claimed for possession and when the
decree for specific performance of the contract has
already been passed the mere fact that it
specifically did not grant the relief for possession
the plaintiff should again amend the plaint. There
is no occasion for the plaintiff to amend the plaint
when the relief had already been asked for and has
impliedly been granted as slated above. I have
already pointed above that the explanation 5 to
Section 11 would not apply in such a case as the
Hon'ble Supreme Court has already clearly
indicated in the aforesaid authority, in such a suit
the decree for specific performance clearly implies
a decree for possession also that is the relief of
possession is inherent in the relief of specific
performance of the contract of the sale."
(b) AIR 2007 Andhra Pradesh 35 by Sh. P.S. Narayana, J., in
the case of Smt. Suluguru Vijaya & Ors. vs. Pulumati Manjula,
the relevant paras of which read as under:-
"9. ........In S.S. Rajabathar v. N.A. Sayeed, AIR
1974 Madras 289 it was held that where a suit for
specific performance of a contract of sale had been
decreed, the executing Court while executing the
decree, can direct delivery of possession in the
absence of a specific direction to that effect in the
decree. The view expressed in Brij Mohan Matulal
v. Mt. Chandrabhagabai, AIR 1948 Nag 406 was
dissented from. In Mahender Nath Gupta v. Moti
Ram Rattan Chand and Anr., AIR 1975 Delhi 155,
the learned Judge of the Delhi High Court while
dealing with the suit for specific performance of
contract of sale which was filed before the
commencement of the Specific Relief Act, 1963,
and decree made after the commencement of the
said Act, relief of delivery of possession neither
claimed in the plaint nor granted in the decree and
whether executing Court can grant delivery of
possession, after referring to AIR 1967 SC 1541,
AIR 1954 Allahabad 643, AIR 1952 Calcutta 362,
AIR 1950 Allahabad 415, held in the affirmative
mainly on the ground that Section 22 of the
Specific Relief Act, 1963, indicates a rule of
pleading. In Lotu Bandu Sonavane v. Pundalik
Nimba Koli, AIR 1985 Bombay 412. Section 22(1)
and Section 22(2) Proviso of the Specific Relief
Act, 1963 had been dealt with. The expression "in
an appropriate case" in Section 22(1) and "at any
stage of the proceeding" in proviso to Section
22(2) it was held that decree directing specific
performance of agreement of sale against
defendant in possession of property specific prayer
for delivery of possession is not necessary. In
Hemchand v. Karilal, AIR 1987 Rajasthan 117, it
was held that in a suit for specific performance,
property in possession of contracting party and no
third party had intervened, relief of possession
would be implied in decree for specific
performance and need not be specifically asked for
and the question of amendment of plaint does not
arise. Reliance also was placed on a decision in V.
Narasimha Chary v. P. Radha Bai and Ors., 1999
(5) ALT 499. 10. In the light of the statutory duties
and obligations cast on the seller by virtue of
Section 55 of the Transfer of Property Act, 1882,
and also in the light of the scope and ambit of
Section 22 of the Specific Relief Act, 1963, this
Court is of the considered opinion that when there
is no dispute or controversy that the judgment
debtors-defendants are in possession of the
property, the mere fact that such specific prayer
was not made, the same cannot be taken advantage
of principally for the reason the decree for
execution of sale deed would imply the decree of
delivery of possession too inasmuch as these are
the obligations which would flow from the relief
relating to execution of the sale deed. Hence, this
omission cannot be taken advantage of. It is
pertinent to note that it is nobody's case that any
third party rights had intervened. When that being
so, this Court is of the considered opinion that the
impugned order does not suffer from any illegality,
whatsoever."
(c) The Supreme Court in the case of Babu Lal vs. Hazari Lal
Kishori Lal, reported in (1982) 1 SCC 525 made the following
observations:
"Specific Relief Act, 1963 (47 of 1963) - Section
22 - In appropriate cases of specific performance
of contract of sale of immovable property, held,
court competent to order delivery of possession of
the property, even if not specifically asked for, by
allowing suitable amendment in the plaint Order
for delivery of possession without corresponding
amendment in the plaint would be a mere
omission, not fatal to the relief of possession,
especially when the order made in furtherance of
cause of justice and in view of applicability of
Section 28(3) Expressions "in an appropriate
case" in Section 22(1) and "at any stage of the
proceeding" in proviso to Section 22(2). It may not
always be necessary for the plaintiff to specifically
claim possession over the property, the relief of
possession being inherent in the relief for specific
performance of the contract of sale. In a case
where exclusive possession is with the contracting
party, a decree for specific performance of the
contract of sale simplicitor, without specifically
providing for delivery of possession, may give
complete relief to the decree-holder in order to
satisfy the decree to put the property in possession
of the decree-holder. This is in consonance with
the provisions of Section 55(1) of the Transfer of
Property Act. 21. If once we accept the legal
position that neither a contract for sale nor a
decree passed on that basis for specific
performance of the contract gives any right or title
to the decree-holder and the right and the title
passes to him only on the execution of the deed of
sale either by the judgment-debtor himself or by
the court itself in case he fails to execute the sale
deed, it is idle to contend that a valuable right had
accrued to the petitioner merely because a decree
has been passed for the specific performance of the
contract. The limitation would start against the
decree-holders only after they had obtained a sale
in respect of the disputed property. It is, therefore,
difficult to accept that a valuable right had
accrued to the judgment-debtor by lapse of time.
Section 22 has been enacted only for the purpose
of avoiding multiplicity of proceedings which the
law courts always abhor.
23. There has been a protracted litigation and it
has dragged on practically for about 13 years and
it will be really a travesty of justice to ask the
decree-holder to file a separate suit for possession.
The objection of the petitioner is hyper-technical.
The Executing Court has every jurisdiction to
allow the amendment. The only difficulty is that
instead of granting a relief of possession the High
Court should have allowed an amendment in the
plaint. The mere omission of the High Court to
allow an amendment in the plaint is not so fatal as
to deprive the decree-holder of the benefits of the
decree when Section 55 of the Transfer of Property
Act authorizes the transferee to get possession in
pursuance of a sale deed."
28. After having considered the abovementioned judgments, it
is very clear that the grant of relief for delivery of possession is
just a formality and even though, no specific prayer is made in
the plaint and even the decree is silent about the delivery of
possession, the Executing Court is empowered and bound to
grant such relief. If I go through the judgments referred above,
it is not even necessary to amend the plaint, as it is the admitted
position in the present case that the sale deed in terms of the
decree has already been executed in favour of the decree-
holder and there is no involvement of the third party regarding
the possession. This fact has not been controverted by the
judgment-debtors in the pleadings also as status quo orders
passed by this Court till the disposal of the appeal. Thus, it is
clear that the possession was with the judgment-debtors.
Therefore, the facts of the cases directly apply to the facts and
circumstances of the present case. However, since the objection
is raised by the judgment debtors and the decree-holder has
also sought amendment of the plaint for including the relief for
possession of the property in question, coupled with the fact
that a conflicting view has been taken by the Courts in some of
the cases and the proviso to sub-section (2) of Section 22 of the
Specific Relief Act, 1963 allows the plaintiff who has not
claimed any such relief provided by Clauses (a) or (b) of sub-
section (1) of Section 22 to amend the plaint for including a
claim for recovery of possession. The amendment, under these
circumstances, can be allowed at any stage of proceedings
including the execution proceedings.
29. Under these circumstances, the prayer made by the decree-
holder for amendment of the plaint has to be granted, even
though such amendment was not necessary. Ordered
accordingly and consequent thereto, the decree is also
amended.
30. Under Order VII, Rule 7 of CPC, it is provided that it shall
not be necessary to ask for general or other relief which may
always be given as the court may think just to the same extent
as if it had been asked for. It is settled law that relief to be
provided by the court is to be based on the pleadings of the
plaintiff.
31. This Court is of the considered view that the relief of
possession is ancillary and it springs out and is comprised in
the relief to that for the specific performance of the contract to
sell.
32. In view of the reasons stated earlier, there is no impediment
for the Court to grant the relief claimed in the execution
proceedings. The judgment-debtors are, however, entitled to
receive the balance sale consideration which has been
deposited by the decree-holder with this Court. As it is now
incumbent upon the judgment-debtors to put the decree-holder
in possession of the suit property in view of the amendment in
the plaint and the decree which include the relief of possession
also."
21. Thus, there is no merit in this submission of Mr. Gupta.
22. The submission of Mr. Gupta that the suit was filed belatedly and was
barred by limitation or laches, also has no force. The agreement to sell
(Ex.DW-1/3) did not provide the time limit within which defendant No.1
was obliged to apply for and obtain NOC, and thereafter execute & register
the sale deed in favour of the plaintiff. So far as the plaintiff is concerned, it
had performed all its obligations under the agreement and the ball was
entirely in the court of defendant No.1. Admittedly, consolidation
proceedings were in progress when the agreement to sell (Ex.DW-1/3) was
entered into. It is not clear as to when the same came to an end qua the suit
property. In any event, before the same had come to an end qua the suit
property, the parties may have found it difficult to proceed in the matter.
23. Under Article 54 of the Schedule to the Limitation Act, the period of
three years within which the relief of specific performance could be claimed,
is to be calculated from the date specified in the agreement for the
performance, or in the absence of any such stipulation, within three years of
the date when the performance was refused.
24. In the present case, the positive case of the plaintiff was that the
performance was refused by defendant No.1 for the first time in April 1996.
Till then, accordingly to the plaintiff, defendant No.1 kept assuring the
plaintiff that the NOC was under process and the plaintiff shall be informed
as and when the same is received. Defendant No.1 did not contest this
assertion, as she was proceeded ex-parte in the suit. Consequently, the cause
of action for filing the suit arose in favour of the plaintiff in April 1996. The
suit was instituted by the plaintiff, as noticed above, on 10.05.1996 without
any delay whatsoever.
25. Reliance placed by Mr. Gupta on Chet Ram Vashist (supra) is of no
avail in the facts of the present case. In this case, the suit had been filed
after a long gap of 12 years from the date of payment of the last & final
installment on 06.02.1966. The agreement to sell itself was dated
21.02.1960. Pertinently, the plaintiff had served a notice on the defendant
complaining of the property not being transferred under the agreement, on
31.05.1966. Despite the said notice, the suit was not filed till 1978. This
Court construed the terms of the agreement, and in particular, clause (C)
thereof, which obliged the owner to transfer the plot in favour of the
purchaser or his/her nominee, if any named by him/ her, on receipt of total
value of the plot. This Court observed in relation to clause (C):
"The use of the aforesaid expression would clearly indicate that
it was intended by the parties that immediately on payment of
the fourth and final instalment which comprises the total value
of the plot, the defendant would transfer the plot in favour of
the purchaser or his nominee".
26. However, in the present case, not only there is no fixed date for
execution and registration of the sale deed in favour of the plaintiff by
defendant No.1, the same was dependent upon obtainment of NOC by
defendant No.1 from the Tehsildar (Notification) under the Delhi Land
(Restrictions on Transfer) Act, 1972. In contrast with the factual position
recorded in Chet Ram Vashist (supra) - wherein the plaintiff/ agreement
purchaser was put off by the defendant/ agreement seller since 1966, when
he approached the defendant for completion of the transaction with
execution of the sale deed, in the present case, the said refusal came only in
April 1996, as noted hereinabove.
27. The decision in Subhash Chander Kathuria (supra) relied upon by
Mr. Gupta is not applicable in the facts of the present case at all. In this
case, the agreement to sell was entered into on 27.07.1988 whereunder out
of a total consideration of Rs.20,92,656, only a sum of Rs.2 Lakhs was
given as earnest money. The suit was filed on 16.02.1999, i.e. nearly 11
years after the execution of the agreement. The plaintiff had claimed that
the defendant did not obtain the NOC and inform the plaintiff. On
13.09.1996, the defendant allegedly requested the plaintiff to give an
additional amount of Rs.20,000/- for getting the NOC and Income-Tax
Certificate. The plaintiff claimed that cause of action arose on 13.09.1996,
and on that premise, filed the suit. Under the agreement itself, the sale deed
had to be executed within three months of the intimation being given with
regard to the obtainment of the requisite permission. It is in this background
that the Court held that the suit was barred by limitation. The factual matrix
of the present case being materially different from that dealt with in
Subhash Chander Kathuria (supra), the said decision has no application in
the facts of the present case.
28. For all the aforesaid reasons, in my view, there is no merit in the
present appeal. The same is, accordingly, dismissed leaving the parties to
bear their respective costs.
VIPIN SANGHI, J.
NOVEMBER 06, 2015
B.S. Rohella
