Delhi High Court
Raisuddin vs Mohd. Chaman Gulzar on 12 February, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 148/2018
% 12th February, 2018
RAISUDDIN ..... Appellant
Through: Mr. Anish Shrestha and Mr.
Vishal Sameer, Advocates.
versus
MOHD. CHAMAN GULZAR ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No. 5438/2018(Exemption)
Exemption allowed subject to just exceptions
CM stands disposed of.
RFA No. 148/2018 & CM No. 5437/2018 (stay)
1. This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit
impugning the judgment of the trial court dated 28.11.2017 by which
the trial court has dismissed the suit for specific performance filed by
the appellant/plaintiff. Suit however has been decreed for recovery of
Rs.3 lacs paid by the appellant/plaintiff to the respondent/defendant
under the agreement to sell dated 31.12.2010.
2. The facts of the case are that the parties entered into an
agreement to sell dated 31.12.2010 for the property of the
respondent/defendant bearing no.70, land measuring 50 sq. yards, part
of Khasra No. 274/365, situated at Gali No. 39, Zakir Nagar, Jamia
Nagar, Okhla, New Delhi-110025, as shown in the site plan
(hereinafter referred to as the 'suit property'). The total sale
consideration was of Rs.4.5 lacs of which appellant/plaintiff paid a
sum of Rs.3 lacs for entering into an agreement to sell. Balance
payment was to be made on or before 10.2.2011 at the time of
execution of the sale documents and delivering possession of the suit
property to the appellant/plaintiff. The case of the appellant/plaintiff
was that the agreement to sell could not reach its conclusion of
execution of the title documents in favour of the appellant/plaintiff
because respondent/defendant on account of escalation of property
prices in the area refused to execute the necessary title documents in
favour of the appellant/plaintiff although the appellant/plaintiff is
pleaded to have been always ready and willing to perform his part of
contract for paying the balance sale consideration of Rs.1.5 lacs.
3. Respondent/defendant contested the suit and denied
execution of the agreement to sell. It was pleaded that
appellant/plaintiff is a money lender and respondent/defendant only
had taken a loan of Rs.3 lacs for the purpose of the marriage of his
daughter out of which a sum of Rs.1.5 lacs was also returned to the
appellant/plaintiff. The title documents of the property were given to
the appellant/plaintiff by the respondent/defendant as security. Suit
was hence prayed to be dismissed.
4. After pleadings were complete the trial court framed the
following issues:-
"1. Whether plaintiff is entitled to decree for specific performance as
prayed in clause A of prayer ?OPP
2. Whether the plaintiff is entitled to the decree for a sum of Rs.4.5
lacs in the alternative as prayed in clause C of prayer ? OPP
3. Whether the plaintiff is entitled to decree of permanent injunction
as prayed in clause B? OPP
4. Relief."
5. Parties led evidence and this aspect is recorded in paras 8
and 9 as under:-
"8. During plaintiff evidence, plaintiff examined two witnesses. PW-
1 Sh. Raisuddin who tendered his affidavit Ex.PW-1/1 and relied
upon following documents:
1. Kachha receipt dated 28.12.2010 as Ex.PW1/A
2. Agreement to sell and purchase dated 31.12.2010 as
Ex.PW1/B.
3. Receipt dated 31.12.2010 as Ex.PW-1/C.
4. GPA, Agreement to Sell, Affidavit, Possession Letter,
Receipt and Will executed by one Raees Ahmad in favour
of the defendant in respect of the suit property as
Ex.PW1/D to Ex.PW1/I.
5. Ikrarnama is 19.02.2011 Ex.PW1/J.
9. Plaintiff also examined PW-2 Sh. Ishrat Khan as PW-1, a resident
of the same locality of the plaintiff, who tendered his affidavit as
Ex.PW2/A and relied on receipt dated 31.12.2010 claiming to be
witness of the same."
6. Trial court has held in favour of the appellant/plaintiff
that the agreement to sell Ex.PW1/A though disputed by the
respondent/defendant was in fact executed and this conclusion is
derived by the trial court with reference to the Ikrarnama Ex.PW1/J
entered into between the parties in the police station on 19.2.2011 and
which talks of the agreement to sell.
7. Trial court has dismissed the suit for specific
performance by holding that the appellant/plaintiff has failed to prove
his readiness and willingness because except making a self-serving
averment in his deposition of having with him a balance consideration
of Rs. 1.5 lacs, no documentary evidence was filed to prove the
availability of funds with the appellant/plaintiff. Also, the trial court
notes that respondent/defendant is not an owner of the suit property by
a title deed, and therefore, no sale deed can be executed in favour of
the appellant/plaintiff by the respondent/defendant. Trial court
accordingly by the impugned judgment while dismissing the suit for
specific performance has passed a money decree for a sum of Rs.3
lacs along with interest at 12% per annum from 31.12.2010 till
payment in favour of the appellant/plaintiff and against the
respondent/defendant on account of Rs. 3 lacs having been received
by the respondent/defendant from the appellant/plaintiff under the
agreement to sell.
8. Learned counsel for the appellant/plaintiff again sought to
argue that the appellant/plaintiff had made statement in his deposition
of availability of the balance consideration of Rs 1.5 lacs, however in
my opinion trial court has in this regard rightly observed that no
documentary evidence was filed to proved the availability of balance
sale consideration, and therefore self-serving depositions cannot be
believed with respect to readiness and willingness as required under
Section 16(c) of the Specific Relief Act, 1963.
9. Learned counsel for the appellant/plaintiff then argued
that in terms of the Ikrarnama Ex.PW1/J at least appellant/plaintiff
must be given possession however once again this argument is
misconceived because possession can be received under an agreement
to sell if the agreement to sell satisfies the ingredients contained in
Section 53-A of the Transfer of Property Act, 1881. Section 53-A of
the Transfer of Property Act was amended by Act 48 of 2001 w.e.f
24.9.2001 requiring that before benefit of the doctrine of part
performance is available to a buyer under an agreement to sell, the
agreement to sell must be registered and stamped at 90% of the value of
the sale price and which admittedly is not the factual position which has
emerged in the present case, and therefore the appellant/plaintiff cannot
be granted relief of possession amounting to part performance in
violation of a statutory provision.
10. I may also note that trial court has granted reasonable rate
of interest at 12% per annum when ordinarily courts normally grant 9%
per annum.
11. There is no merit in the appeal. Dismissed.
FEBRUARY 12, 2018/ib VALMIKI J. MEHTA, J
