Delhi High Court

Jagtar Singh & Ors. vs Chande Lal & Ors. on 5 January, 2016

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 5th January, 2016

+                            RFA No.279/2001

       JAGTAR SINGH & ORS.                                ..... Appellants
                   Through:            Mr. Manish Kohli and Mr. Pradeep
                                       Shukla, Advs.

                                    Versus
    CHANDE LAL & ORS.                                         ..... Respondents

Through: None.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure

(CPC), 1908 impugns the ex parte judgment and decree dated 12th April, 2001

of the Court of Shri Prithvi Raj, Additional District Judge (ADJ), Delhi of

dismissal of Suit No.170/2000 filed by the appellant on 21 st December, 2000

for specific performance of an Agreement of Sale of immovable property.

2. The appeal was admitted for hearing and while issuing notice, vide ex

parte ad interim order dated 24th July, 2001 the respondent was restrained

from alienating or transferring in any manner or creating any third party

interest in the suit property. The respondent failed to appear despite service of

notice of the appeal also and was vide order dated 6 th March, 2002 proceeded

against ex parte and the interim order was confirmed. Both, the appellant as

well as the respondent died during the pendency of appeal and upon notice of

the application for substitution being issued to the legal representatives of the

respondent, Advocate for some of the legal representatives of the respondent

appeared and the legal representatives of the appellant as well as respondent

were ordered to be substituted. However, the Advocate who had appeared for

some of the legal representatives of the respondent also did not appear

regularly and though on the last three dates either one of the legal

representatives of the respondent appeared in person or an Advocate appeared

for some of the legal representatives but today again none has appeared for

the legal representatives of the respondent. The appeal being old, it is not

deemed appropriate to defer the hearing any further awaiting the legal

representatives of the respondent. The counsel for the appellant has been

heard and the Trial Court Record requisitioned in this Court has been perused.

3. The appellant instituted the suit from which this appeal arises

pleading:-

(i) that the respondent/defendant representing himself to be the

exclusive owner of Shop No.B-189, area measuring 70.60 sq.

yds. situated at New Subzi Mandi, Azadpur, Delhi - 110 033

with leasehold rights in the land underneath the same approached

the appellant/plaintiff for sale of first floor and above portion

(whatever can be legally constructed) of the said shop for a total

sale consideration of Rs.2 lacs;

(ii) an Agreement to Sell dated 17th June, 1998 was executed;

(iii) that the entire sale consideration of Rs.2 lacs was paid by the

appellant/plaintiff to the respondent/defendant in cash and receipt

whereof was confirmed in the Agreement to Sell;

(iv) that the respondent/defendant in part performance of the

Agreement handed over actual physical peaceful and vacant

possession of the first floor and above portion of the shop to the

appellant/plaintiff and also agreed that the appellant/plaintiff

would be entitled to raise construction over and above the first

floor which was unbuilt and the respondent/defendant would not

raise any hindrance therein;

(v) that the respondent/defendant also agreed to get all requisite

permissions/clearances to execute the Sale Deed;

(vi) though the appellant/plaintiff called upon the

respondent/defendant to allow the appellant/plaintiff to raise

construction over and above the first floor and to complete the

transaction but the respondent/defendant avoided;

(vii) that in September, 1999 the respondent/defendant sold/alienated

the basement floor of the said property to the appellant/plaintiff

for a total sale consideration of Rs.6 lacs and also handed over

actual physical peaceful and vacant possession of the same to the

appellant/plaintiff and executed various documents in that regard

in favour of the appellant/plaintiff on 21st September, 1999 and

got them registered on 22nd September, 1999;

(viii) on 25th September, 1999 the son of the respondent/defendant Shri

Raj Kumar instituted a suit against the appellant/plaintiff and the

respondent/defendant for injunction to restrain them taking

forcible possession of the said basement from Shri Raj Kumar;

(ix) a Court Commissioner was appointed in the said proceedings

who submitted a Report, of the appellant/plaintiff being in

possession of the basement;

(x) Shri Raj Kumar son of the respondent/defendant thereafter

withdrew the suit which was dismissed as withdrawn on 7th

August, 2000;

(xi) that the aforesaid Shri Raj Kumar on 16th December, 2000 filed

another suit against the appellant/plaintiff for possession of the

said basement; and,

(xii) that on 18th December, 2000 the appellant/plaintiff finally called

upon the respondent/defendant to comply with his obligations

under the Agreement to Sell dated 17th June, 1998 and upon

refusal of the respondent/defendant the present suit was filed on

21st December, 2000 for specific performance of the Agreement

to Sell dated 17th June, 1998 directing the respondent/defendant

to execute the Sale Deed in favour of the appellant/plaintiff after

obtaining all the requisite permissions and for permanent

injunction restraining respondent/defendant from creating third

party rights in the property agreed to be sold to the

appellant/plaintiff.

4. The respondent/defendant though initially appeared in the suit but did

not file any written statement and was proceeded against ex parte; he moved

an application for setting aside of the order proceeding ex parte against him

but thereafter again stopped appearing and the ex parte evidence of the

appellant/plaintiff was recorded.

5. The learned ADJ has vide impugned judgment and decree dismissed

the suit observing/finding/holding:-

(a) that though under the Agreement to Sell the

respondent/defendant was required to apply for and obtain all

sale permissions/clearances for transfer of the property agreed to

be sold in favour of the appellant/plaintiff but the

appellant/plaintiff did not call upon the respondent/defendant to

comply therewith;

(b) that the perpetual lease of the land underneath the shop was

granted by Delhi Development Authority (DDA) in favour of the

respondent/defendant for use of the respondent/defendant for

fruits and vegetables business;

respondent/defendant had on the land so leased to him raised

structure;

(d) that the perpetual Lease Deed of the land underneath the property

also required a notice of any transfer/sale/sub-lease to be given to

the DDA within three months of transfer; no such notice also had

been given;

(e) that in the Agreement to Sell of which specific performance was

sought the parties had not made the time of the essence and the

appellant/plaintiff had failed to prove that he had at any time

called upon the respondent/defendant to complete the

transaction;

(f) no cause of action had arisen in favour of the appellant/plaintiff;

and,

(g) that the execution of the Sale Deed in pursuance to the

Agreement to Sell was dependent upon various

permissions/clearances being received and which had admittedly

not been received.

6. The counsel for the appellant/plaintiff has argued that the learned ADJ

has erred in presuming that before the Court can order specific performance

permissions if any required for execution of the Sale Deed should be in

existence. Reliance is placed on, (i) Vishwa Nath Sharma Vs. Shyam

Shanker Goela (2007) 10 SCC 595; (ii) Raghunath Rai Vs. Jageshwar

Prashad Sharma 1999 V AD (Delhi) 254; (iii) Ajit Prashad Jain Vs. N.K.

Widhani AIR 1990 Delhi 42; (iv) Rojasara Ramjibhai Dahyabhai Vs. Jani

Narottamdas Lallubhai AIR 1986 SC 1912; (v) Mrs. Chandnee Widya Vati

Madden Vs. Dr. C.L. Katial AIR 1964 SC 978; and, (vi) Prakash Chandra

Vs. Angadlal AIR 1979 SC 1241 to contend that the proper course is to

decree specific performance by directing the respondent/defendant to apply

for and obtain for permission and by making the execution of the Sale Deed

subject to such permissions being granted.

7. The counsel for the appellant/plaintiff is correct to the aforesaid extent

and the impugned judgment is indeed faulty on this ground.

8. However on the basis of pleadings and the evidence I am unable to

exercise the discretion implicit in the grant of relief of specific performance of

a Agreement of Sale of immovable property in favour of the

appellant/plaintiff for the following reasons:-

A. It being the case of the appellant/plaintiff that the

appellant/plaintiff at the time of execution of the Agreement to

Sell on 17th June, 1998 was put into possession of the first floor

and above of Shop No.B-189, New Subzi Mandi, Azadpur, Delhi

agreed to be sold, I have enquired from the counsel for the

appellant/plaintiff as to who is in occupation of the first floor and

what other construction exists above the first floor.

B. The counsel for the appellant/plaintiff states that the first floor is

not constructed and the property comprises of basement and

ground floor only with open terrace above the ground floor.

C. However the Agreement to Sell is of the first floor and above,

though mentions that the same is unbuilt and that the

appellant/plaintiff shall within three months of the Agreement

make construction of the first floor. Clause 7 of the Agreement to

Sell in this regard is as under:

"7. That the second party shall have right to make the construction on the first floor and above within three months and shall not put any malba in front and backside of the said property after the said period."

and which suggests that it was imperative for

appellant/plaintiff to construct within three months and that after

that he was not entitled to construct the first floor inasmuch as

after three months he were not entitled to put 'malba' in front

and backside of the property and without which no construction

was possible.

D. The appellant/plaintiff in the plaint, as aforesaid, has not pleaded

a single word in this context i.e. whether he took any steps to

raise construction of the first floor within three month. I have

perused the ex parte examination-in-chief recorded of the

appellant/plaintiff and find the appellant/plaintiff therein to have

merely deposed that the respondent/defendant did not allow him

to raise construction over and above the first floor.

E. As per the Agreement the appellant/plaintiff should have raised

construction by September, 1998; though there is no pleading to

that effect but as aforesaid the appellant/plaintiff in his ex parte

evidence has deposed that he was not allowed to do so. A dispute

had thus arisen between the appellant/plaintiff and the

respondent/defendant by September, 1998.

F. However the appellant/plaintiff claims that respondent/defendant

on 21st September, 1999 i.e. after one year from September, 1998

agreed to sell the basement of the same property to the

appellant/plaintiff for a sum of Rs.6 lacs.

G. It does not inspire confidence that if on the one hand there were

disputes between the appellant/plaintiff and the

respondent/defendant with respect to the Agreement dated 17th

June, 1998 of first floor and above, why would

respondent/defendant during the pendency of the said disputes

agree to sell another portion of the property to the

appellant/plaintiff.

H. On the other hand if it is to be believed that there were no

disputes, it is inexplicable why the appellant/plaintiff in

September, 1999 when agreed to purchase the basement, did not

have the transactions subject matter of the Agreement dated 17 th

June, 1998 completed.

I. This is more so as the transaction of September, 1999 is not only

by execution of Agreement to Sell but also by execution and

registration by the respondent/defendant of General Power of

Attorney, Special Power of Attorney, Will etc. It is inexplicable

why the appellant/plaintiff did not get General Power of

Attorney, Special Power of Attorney, Will executed from the

respondent/defendant with respect to the property subject matter

of Agreement to Sell dated 17th June, 1998 also. No explanation

whatsoever is forthcoming.

J. The sale consideration for the basement aforesaid was Rs.6 lacs

and which as per the documents executed with respect to the

basement is found to have been paid by payment of Rs.2 lacs in

cash (and date whereof is not given) and Rs.4 lacs by cheque.

K. The sale documents of the basement do not make any reference

whatsoever to the Agreement to Sell dated 17th June, 1998 with

respect to first floor and above or record that the

appellant/plaintiff had thus become the owner of the basement as

well as first floor and above of the property.

L. The appellant/plaintiff, when obtaining registration from the

respondent/defendant of Power of Attorney and Will for the

basement floor, would not have in the normal course, if had paid

the entire sale consideration of the first floor and above and was

in possession thereof, confined the said power to basement only

but would have included the first floor and above also.

M. The possibility of the parties having novated the Agreement to

Sell dated 17th June, 1998 of which specific performance is

claimed with the sale of basement with Rs.2 lacs paid for the first

floor and above being adjusted against the sale consideration of

basement cannot be ruled out. The appellant/plaintiff has not

proved payment of Rs.2 lacs in cash for first floor and above and

separate payment of Rs.2 lacs in cash for the basement.

Interestingly the purported witnesses to the Agreement to Sell of

which specific performance is sought and to the Will executed

with respect to the basement are the same.

N. The only inference, from the appellant/plaintiff, not constructing

first floor and above till September, 1998 and in September,

1999 transacting with the respondent/defendant with respect to

the basement and which transaction stretched on till March,

2000, is that the appellant/plaintiff was not ready and willing to

go ahead with the transaction subject matter of Agreement to Sell

dated 17th June, 1988 and which also disentitles the

appellant/plaintiff from the relief of specific performance.

O. The delay as aforesaid from September, 1998 till December,

2000 when the suit from which this appeal arises was instituted is

fatal to the claim of the appellant/plaintiff for specific

performance especially when the appellant/plaintiff in

September, 1999 had the occasion to better his rights under the

Agreement to Sell dated 17th June, 1998.

P. Merely because the respondents/defendants have failed to appear

and have been proceeded ex parte does not require this Court,

especially in a case of present nature, to believe whatever the

appellant/plaintiff states as gospel truth especially when the relief

claimed is of specific performance of an Agreement of Sale of

immovable property and which is a discretionary relief and to be

entitled whereto the plaintiff has to satisfy the Court of him being

all time ready and willing to perform his part of the Agreement

and having acted diligently and with promptitude.

Q. The appellant herein is not found to have acted diligently and

with promptitude. As aforesaid, though he had an opportunity to

obtain Power of Attorney and Will with respect to the first floor

and above also but he chose not to and has not given any

explanation with respect thereto.

R. The subject property does not appear to be freely transferable. It

is situated in a Subzi Mandi, properties wherein can be used for

specific purpose of the business of fruits and vegetables only and

from wherein no other business/activity can be carried out. The

said properties are also covered by the Delhi Agricultural

Produce Marketing (Regulation) Act, 1998 and Delhi

Agricultural Produce Marketing (Regulation) General Rules,

2000. There are a large number of seekers of the limited

shops/space available in Subzi Mandi and only those who fulfill

the eligibility conditions are entitled to shops therein. The

counsel for the appellant/plaintiff though on enquiry states that

the appellant/plaintiff is in the same trade but fairly admits that

there is no inkling to the said effect in the documents. Rather

Clause 17 of the Agreement of which specific performance is

claimed provides that the appellant/plaintiff will get 2 APMC

licences in his name from the APMC Authority. The

appellant/plaintiff has neither pleaded nor proved having

obtained such licenses. The same also negate the readiness and

willingness of the appellant/plaintiff.