Shri Jasbir Singh vs Royale Ambience Construction Pvt ...
2017 Latest Caselaw 4916 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Decided on: 11th September , 2017

+                          CS(OS) 11/2016

       SHRI JASBIR SINGH                                    ..... Plaintiff
                                  Represented by:      Mr. Rajender Aggarwal,
                                                       Advocate
                                  versus

       ROYALE AMBIENCE CONSTRUCTION PVT LTD .....Defendant
                        Represented by: None

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. In the present suit, plaintiff prays for the following reliefs:

"a) This Hon'ble Court may be pleased to pass a decree of specific performance in favour of the plaintiff and against the defendant thereby directing the defendant to get their half share in the agricultural land measuring 60 bighas and 17 biswas in khasra No. 22//14 (4-16), 15 (5-17), 16 (4-12), 17 (4-16), 24 (4-

16), 25(4-16), 26(0-4), 22//11/1 (0-18), 20(3-10), 21(4-16), 3//8(4-16), 9/2(3-0), 12(4-12), 3(4-16) in village Ghuman Hera, Tehsil Najafgarh, South West Delhi, New Delhi-110043 demarcated and obtain NOC from Tehsildar and thereafter to execute a sale deed in respect of their half share in the agricultural land measuring 60 Bighas and 17 biswas in khasra No. 22//14 (4-16), 15 (5-17), 16 (4-12), 17 (4-16), 24 (4-16), 25(4-16), 26(0-4), 22//11/1 (0-18), 20(3-10), 21(4-16), 3//8(4-

16), 9/2(3-0), 12(4-12), 3(4-16) in village Ghuman Hera, Tehsil Najafgarh, South West Delhi, New Delhi-110043 in favour of

the plaintiff against receipt of balance amount of ₹ 4,48,23,700/- and deliver peaceful physical vacant possession of the same to the plaintiff. The plaintiff will bear the registration charges and stamp duty for the same.

b) A decree of permanent injunction be passed in favour of the plaintiff and against the defendant thereby restraining the defendant, their agents, employees etc. from in any manner selling, transferring or disposing of their half share or any part thereof in the agricultural land measuring 60 bighas and 17 biswas in Khasra No. 22//14 (4-16), 15 (5-17), 16 (4-12), 17 (4-

16), 24 (4-16), 25(4-16), 26(0-4), 22//11/1 (0-18), 20(3-10), 21(4-16), 3//8(4-16), 9/2(3-0), 12(4-12), 3(4-16) in village Ghuman Hera, Tehsil Najafgarh, South West Delhi, New Delhi- 110043 in favour of anyone except the plaintiff in terms of the agreement dated 22.7.2011.

c)Cost of the suit be allowed to the plaintiff.

d)Any other order which this Hon'ble court deems fit may also be granted in favour of the plaintiff and against the defendant."

2. Summons in the suit were issued to the defendant vide order dated 6 th January, 2016. Since the defendant could not be served, it was directed to be served by way of publication in English Daily newspaper "Statesman" vide order dated 4th April, 2016. Defendant did not enter appearance, hence was proceeded ex-parte vide order dated 24th April, 2017.

3. It is the case of the plaintiff that the defendant is the owner and is in possession of half share in agricultural land measuring 60 bighas and 17 Biswas in Khasra No. 22//14 (4-16), 15 (5-17), 16 (4-12), 17 (4-16), 24 (4-

16), 25(4-16), 26(0-4), 22//11/1 (0-18), 20(3-10), 21(4-16), 3//8(4-16), 9/2(3-

0), 12(4-12), 3(4-16) in village Ghuman Hera, Tehsil Najafgarh, Sought West Delhi, New Delhi-110043. The defendant approached the plaintiff and

made an offer to sell its entire half share in the aforesaid agricultural land at ₹ 86.50 lakh per acre to which the plaintiff agreed and accordingly the plaintiff paid a sum of ₹ 1 crore and a receipt was issued on 22nd July, 2011 in acknowledgement of the aforesaid. The amount of ₹ 1 crore was paid as ₹50,00,000/- (Rupees Fifty lakhs only) in cash and the balance ₹50,00,000/- (Rupees Fifty lakhs only) through cheque no. 036249 dated 22nd July, 2011 drawn on Indian Overseas Bank, Rajouri Garden Branch, New Delhi. The receipt dated 22nd July, 2011 noted that the defendant has agreed to sell his half share in the agricultural land and it was agreed that the balance would be paid on or before 22nd September, 2011.

4. Despite the fact that the plaintiff was ready and willing to pay the balance amount on the agreed date, defendant was not able to get a no objection from the tehsildar. Accordingly a letter dated 20th September, 2011 was written by the defendant to the plaintiff expressing his difficulty in getting no objection from the tehsildar and getting the share demarcated. Vide letters dated 15th November, 2012 and 11th December 2014 the defendant again requested to plaintiff to wait for some more time and to enable him to get the demarcation proceedings. Plaintiff issued a notice on 30th November, 2015 calling upon the defendant to get a NOC from the tehsildar concerned and execute a sale deed in his favour against the balance payment. However, there was no response to the said notice from the defendant.

5. An affidavit by way of evidence was tendered by Jasbir Singh (PW-1) vide Ex.PW-1/A. The receipt-cum-agreement dated 22nd July, 2011 was exhibited as Ex.PW-1/1, the letter dated 20th September, 2011 whereby the defendant expressed his difficulty in obtaining no objection from the

tehsildar as Ex. PW-1/2, letters dated 15th November 2012 and 11th December 2014 are exhibited as Ex.PW-1/3 and Ex.PW-1/4 respectively and copy of notice dated 13th November 2015 sent by the plaintiff to the defendant as Ex.PW-1/5.

6. Plaintiff having the agreement to sale cum receipt, payment of part sale consideration of ₹1,00,00,000/-, inability of defendant to get the demarcation done and the notice served, the issue is whether plaintiff is entitled to the decree of specific performance or refund of part sale consideration paid with interest thereon.

7. Supreme Court in the decision reported as (2016) 4 SCC 352 Satish Kumar v. Karan Singh dealing with the issue held:

"8. It is well settled that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will not be there even though the contract is otherwise valid and enforceable.

9. This Court in Mayawanti v. Kaushalya Devi [Mayawanti v. Kaushalya Devi, (1990) 3 SCC 1] held thus: (SCC pp. 5-6, para 8) "8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some

defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation.

10. Exercise of discretionary power under Section 20 of the Specific Relief Act for granting a decree, this Court in Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son [Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son, 1987 Supp SCC 340 : AIR 1987 SC 2328] observed: (SCC p. 345, para 14) "14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit filed by Varghese is the agreement for sale, Ext. A-1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance."

8. Consequently, the suit is decreed in favour of the plaintiff and against the defendant directing the defendant to refund the amount of ₹ 1,00,00,000/- (Rupees one crore only) to the plaintiff along with interest @ 9% p.a. with effect from 22nd July, 2011, the date of receipt-cum-agreement, till realization along with costs quantified as ₹5,37,600/- (Rupees Five lakhs thirty seven thousand and six hundred only) being the court fee paid and ₹25,000/- (Rupees twenty five thousand only) towards litigation expenses. Decree sheet be drawn accordingly.

(MUKTA GUPTA) JUDGE SEPTEMBER 11, 2017 'ga/Anu'