Delhi High Court
Ajit Pal Singh Bindra vs Bharat Bhushan Chadha on 9 October, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 1st October, 2018
Date of decision :9th October, 2018
+ CS (OS) 3989/2014
AJIT PAL SINGH BINDRA ..... Plaintiff
Through: Mr. Raman Kapoor, Senior Advocate
with Mr. Aviral Tiwari, Advocate.
(M:9811758739)
versus
BHARAT BHUSHAN CHADHA ..... Defendant
Through: Mr. Manjeet Singh Bhamra,
Advocate. (M:8000580000)
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
I.As. 4533/2017 (u/O VII Rule 11 CPC), 13083/2017 (u/O XXXIX Rule 4
CPC)
1. The brief background of the present suit is that an agreement to sell in
the form of receipt-cum-agreement was entered into in respect of property
bearing No.J-2/16, Ground Floor, Rajouri Garden, New Delhi along with
50% rights in the land underneath (hereinafter 'suit property') between the
Plaintiff and the Defendant. The document was in the form of a receipt-
cum-agreement dated 23rd February, 2011, which reads as under:
"RECEIPT CUM AGREEMENT
J2/16, G.F., Rajouri Garden, New Delhi
Received A sum of rupees 5,00,000/- (Five Lakh Only) in
cash from Shri Ajit Pal Singh. As advance sale
consideration in respect of sale of property No.J-2/16,
measuring 176 sq. yards (entire Ground Floor) with 50%
rights in the property (in the Land Beneath) for a total
sale consideration of Rs.4,11,00,000/- (Four crores
eleven lac only). The balance sale consideration will be
paid within 90 days at the time of Registration of the sale
deed and at title time of handing over the original
documents of the property and the possession of the
property. Rs.35,00,000 (Rupees Thirty Five lacs only)
towards part part and signing of the property agreement
on 2nd March 2011 will be paid."
2. As per the said receipt-cum-agreement, the Plaintiff had paid to the
Defendant a sum of Rs.5 Lakhs as advance sale consideration. The total sale
consideration amount was Rs.4,11,00,000/-, which was to be paid within 90
days i.e. on or before 23rd May, 2011. As agreed in the above receipt, the
Plaintiff paid to the Defendant a further sum of Rs.35 Lakhs vide demand
draft dated 26th February, 2011 and on 24th May, 2011, a further sum of
Rs.25 Lakhs (Rs.20 Lakhs in cash and Rs.5 Lakhs by way of cheque) was
also paid. Remaining amount was, however, not paid. It is the Plaintiff's
case that the Defendant had to hand over the complete vacant and peaceful
physical possession and also execute sale deed before 24th May, 2011 which
he did not do. The Plaintiff claimed that he issued letters dated 7th July,
2011 and 20th July, 2011, however, the Defendant did not honour his
commitment. Thereafter, the Plaintiff got issued legal notice dated 3rd
November, 2011 calling upon the Defendant to execute the sale deed upon
the receipt of the sale consideration. However, vide reply dated 14th
November, 2011, the Defendant took the stand that some part of the
property was tenanted and the property was agreed to be purchased by the
Plaintiff on 'as is where is basis'. Thus, there were disputes between the
parties which led to the filing of the present suit.
3. The suit was filed and listed on 22nd December, 2014 for the first time
and there was no interim injunction sought at that stage. After almost two
years i.e. on 30th September, 2016, an application for interim injunction was
filed by the Plaintiff. Same was listed on 17th April, 2017 on which date
statement of learned counsel for Defendant was recorded that no third party
interest would be created in the suit property till disposal of the suit.
4. According to the learned counsels for the parties, mediation was also
explored, however, the same did not fructify. The Defendant thereafter
moved an application under Order VII Rule 11 CPC seeking rejection of the
plaint. The Plaintiff then moved an application under Order VI Rule 17 CPC
seeking amendment. The amendment sought by the Plaintiff is sought to
include some other proceedings, which are pending in respect of the suit
property.
5. The Defendant has also filed an application under Order XXXIX Rule
4 CPC seeking setting aside of the ex-parte injunction order. Thus, both the
I.As. are being disposed of by means of the present order.
6. The application under Order VII Rule 11 CPC has been primarily
filed seeking dismissal of the suit on the ground that the Plaintiff was never
ready and willing to pay the balance sale consideration. It is also submitted
that the suit is barred by limitation.
7. On the issue of limitation it is the case of the Defendant that the
limitation ought to run from the date when the 90 days period expired and in
any case it cannot be after the date when the reply to the legal notice was
received by the Plaintiff i.e. on 18th November, 2011. Thus, the present suit
that has been filed on 28th November, 2011, is barred by limitation.
8. It is the settled position in law that for the purpose of application
under Order VII Rule 11CPC only the plaint and the documents thereof can
be looked at. A perusal of the receipt-cum-agreement clearly shows that the
entire amount was to be paid by the Plaintiff on or before 23rd May, 2011.
The payment made by the Plaintiff on 24th May, 2011 was merely Rs.25
Lakhs. Thus, as on 24th May, 2011 out of the entire amount of
Rs.4,11,00,000/- only Rs.65 Lakhs stood paid. The letters dated 7th March,
2011 and 7th July, 2011 are claimed to have been sent and refused by the
Defendant. What is however clear is the stand of the Defendant as contained
in the reply to the legal notice. Relevant portions of which are extracted
herein below:
"2. That the contents of para No.2 of your notice is
wrong and denied. At the time of striking of deal with
your client the situation regarding handing over the
possession of the portion occupied by my client was
made clear and my client was liable to handover physical
vacant possession of the rear portion of the property in
question and only symbolic possession of the portion
occupied by the tenant in the front portion of the
property. It is wrong and denied that my client
undertook to negotiate with the tenant or to get the same
vacated as alleged. The property was agreed to sold by
my client to your client on "as it is where it is basis" and
no undertaking was made wrt negotiating with tenant or
to handover physical vacant possession of the front
portion of the property in question which infact was/is in
possession of the tenant. The allegations regarding
asking for payment of Rs.35 lacs on 02.03.2011 for
negotiations with the tenant are false. Your client was
liable to pay Rs.35 lacs on or before 02.03.2011 as
agreed at the time of receiving of the earnest money
which payment was received by my client on 02.03.2011
against separate duly executed receipt.
3. That the contents of para No.3 of your notice are
wrong and denied. My client never undertook to either
negotiate or settle with the tenant as alleged and there
was no question to obtain the vacant possession from the
old tenant as alleged. In fact your client approached my
client on the due date i.e. on 23.05.2011 and requested
for extension of the time by one week due to his financial
constraints which request was acceded by my client
subject to further payment of Rs.25 lacs which amount
was also paid by your client to my client vide duly
executed separate receipt Dt 23.5.2011. The allegations
made in para under reply are false and concocted. Your
client be put to strict proof of the same.
4.......6........
7. That the contents of para No.7 of your notice are
wrong and denied. The out of the amount already
received by my client on various dates from your client,
an amount of Rs.18 lacs was given as advance for
purchase of another property which is well with in
knowledge of your client, but due to the non-performance
of your client in making balance payment, the said
advance amount of Rs.18,00,000/- have been forfeited for
which your client solely liable. My client is still ready to
execute transfer document in favour of your client
subject to reimbursement of Rs.18 lacs along-with
balance sale consideration of Rs.3.46 crores along-with
interest @ 18% p.a. w.e.f. 01.06.2011 till date and
hereby call upon him to make the requisite payment
within next 15 days to my client otherwise the amount
already paid by your client shall be forfeited without any
further notice in this regard."
9. Thus, by the reply to the legal notice dated 14th November, 2011 the
Defendant expressed his willingness to honour the agreement subject to
payment of balance sale consideration along with the sum of Rs.18 Lakhs,
which he had incurred as payment towards another property.
10. Further, the reply also clearly avers that there was no agreement to
hand over the vacant peaceful possession of the front portion but only the
rear portion as the agreement between the parties was to sell the property on
'as is and where is basis'. The Defendant's stand was that the Plaintiff was
always aware that the front portion of the property was tenanted. No reply
was sent by the Plaintiff to this letter.
11. The receipt-cum-agreement provides that the balance sale
consideration would be paid at the time of registration of the sale deed and
at the time of handing over the original documents and possession of the
property. It is the clear position on record that the Defendant is in part
possession of the property. But what is conspicuously absent in the receipt-
cum-agreement are the words 'vacant and peaceful possession'. While the
agreement merely used the word 'possession of the property', all the letters
written thereafter by the Plaintiff state that 'vacant and peaceful possession'
was to be handed over. Moreover, it was the case of the Defendant that the
Plaintiff was always aware that a portion of the property was tenanted and
hence sale consideration that was agreed, was also lesser than the prevalent
market value.
12. The Defendant, further, in his reply clearly states that he is still
willing to honour the agreement which, obviously, the Plaintiff did not want.
Following facts clearly show that the Plaintiff merely wishes to keep the
property entwined in litigation and is not interested in purchasing the
property.
1) No reply was sent to the letter dated 14th November, 2011 written by
the Defendant agreeing to honour the agreement.
2) No injunction was sought at the initial stage and no offer for deposit
was made of the balance sale consideration.
3) Even during the oral arguments, when it was put to learned counsel
for the Plaintiff, if he wishes to still purchase the property, it was
stated that the Plaintiff is willing to pay the balance sale consideration
even with the tenant.
13. These three facts go to show that the Plaintiff was always aware
of the front portion of the property being tenanted. Both the parties
admitted during submissions that part of the property continues to be
tenanted even as on date.
14. If the Plaintiff's understanding is that the vacant and peaceful
possession is to be given to him, that is in fact an impossibility, inasmuch
as part of the property continues to be tenanted. Thus, the relief of
specific performance with vacant and physical possession, in any case, is
not a possibility and is not liable to be granted. As per the pleaded case,
Plaintiff wishes to have vacant and peaceful possession of the property.
15. The Plaintiff has prayed for alternate relief of Rs.3 Crores in
monetary terms against the Defendant. The Plaintiff has paid a sum of
Rs.65 Lakhs towards the agreement to sell and despite the Defendant
having offered to honour the agreement, subject to some conditions, he
chose not to accept the same. Even today, learned counsel for the
Defendant has made a statement in the Court that the Defendant was
willing to pay three times the advance amount i.e., Rs. 65 lakhs
multiplied by 3 = Rs.1.95 crores, to the Plaintiff as settlement amount.
However, the Plaintiff is not willing to accept the same. Under such
circumstances, interim injunction cannot be continued, inasmuch as the
relief of specific performance cannot be granted. The only issue that
remains is as to the monetary compensation. The Plaintiff's interest can
be safeguarded, if the Defendant is directed to deposit a sum of Rs.65
Lakhs along with simple interest @ 6% per annum from 24th May, 2011
till today within a period of eight weeks before this Court. This amount
would secure the interest of the Plaintiff and the money, he has already
paid to the Defendant. The plaint, insofar as the relief of specific
performance is concerned, is rejected.
16. The question of limitation as is appearing from the pleadings is
a mixed question of facts and law, inasmuch as even as of November,
2011 correspondence had been exchanged between the parties. An issue
in respect of limitation would be framed and the said issue would be
decided post trial. At this stage, the Court is unable to hold that the suit
is barred by limitation.
17. Upon the above deposit being made, interim injunction granted
vide order dated 17th April, 2017 shall stand vacated. The relief in the
plaint, so far as it relates to specific performance, stands rejected. Both
the I.As. are disposed of.
I.A. 6972/2018 ( u/O VI Rule 17 CPC)
18. By way of the present application, the Plaintiff seeks
amendment of the plaint to add two paragraphs relating to the other
litigations in respect of the suit property. For the reasons stated in the
application, the prayer for amendment is allowed. I.A. is disposed of.
CS (OS) 3989/2014
19. Let amended plaint be filed within four weeks. Amended
written statement, if any, be filed within four weeks thereafter.
Affidavits of admission/denial be filed with the pleadings.
20. List before the Joint Registrar on 17th December, 2018 for
completion of pleadings and marking of exhibits.
PRATHIBA M. SINGH, J.
JUDGE
OCTOBER 09, 2018/dk
