Delhi High Court
Sh. Zaffar Ahmed vs Mst. Sartaj Parveen on 9 November, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:10.11.2020
09:18:49
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th November, 2020
+ EX.F.A. 10/2020 & CM APPLs. 28425/2020, 28426/2020
SH. ZAFFAR AHMED ..... Appellant
Through: Mr. Vivek Srivastava, Advocate. (M:
9210107303)
versus
MST. SARTAJ PARVEEN ..... Respondent
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done by video conferencing.
2. This is a first appeal against the order dated 10th February, 2020 by
which the ld. ADJ/ Executing Court has held that the alternate relief of
monetary payment is granted in favour of the Decree Holder/Plaintiff i.e. the
Appellant herein (hereinafter `decree holder'), as more than two years have
been passed since the decree for specific performance was passed and the
same has not reached any conclusion.
3. The brief background of this case is that a suit for specific performance
of an agreement to sell and purchase dated 18th January, 2012 was filed by the
Appellant herein against the Respondent. The said suit was decreed in favour
of the decree holder, by the ld. ADJ, vide judgement/decree dated 16th May,
2017. The operative portion of the said decree reads as under: -
"20. In the light of my findings on the foregoing
Signature Not Verified
Digitally Signed
Signing Date:09.11.2020 22:03
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:10.11.2020
09:18:49
issues, I hereby decree the suit of the plaintiff and
pass a decree of Specific Performance in favour of the
plaintiff and against the defendant in respect of the
suit property i.e. roof of ground floor(upto sky rights)
area measuring 65.24 sq. meters part of free hold
built up property bearing Municipal No. 1152
situated at Tokri Walan, Churl Walan, Jama Masjid,
Delhi- 110 006 alongwith common facilities of
entrance/passage and staircase subject to balance
payment of Rs. 30 lacs by the plaintiff to the defendant
or in, alternate defendant is directed to pay double of
the amount of earnest money i.e. Rs.20,00,000/-
alongwith interest @ 8 % from the date of filing of the
suit till its realization. Defendant is also further
directed to refund the amount of Rs. 10,00,000/- to the
plaintiff which was also paid by the plaintiff later on
alongwith interest @ 8 % from the date of filing of the
suit till its realization. I also pass a decree of
Permanent Injunction restraining the defendant, her
agents etc. from selling, parting with possession or
creating any third party interest in respect of the
property in question Costs of the suit is also awarded
in favour of the plaintiff."
4. After passing of the said judgment/decree, both parties did not
challenge the same. The parties exchanged notices dated 11th August 2017,
17th August, 2017 and 31st October, 2018 and replies thereto were also given.
The Judgment Debtor/Respondent (hereinafter `Judgement Debtor') was
willing to execute the sale deed, however, there was insistence by the decree
holder, of some language in the sale deed relating to a particular staircase. The
said issue continued to be disputed between the parties through the legal
notices and finally, the execution application came to be filed by the decree
holder.
5. In the execution application, vide order dated 10th February, 2020, the
Signature Not Verified
Digitally Signed
Signing Date:09.11.2020 22:03
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:10.11.2020
09:18:49
Executing Court came to the conclusion that the decree has two parts i.e. a
decree for specific performance and in the alternative, a monetary decree.
Since the decree for specific performance had not been concluded between
the parties despite more than two years having passed, the Court executed the
decree in the alternative by way of order dated 10th February, 2020. It is this
order which is under challenge in the present appeal.
6. Mr. Srivastava, ld. counsel for the Appellant/Decree Holder submits
that the Judgment Debtor was always willing to execute the sale deed and so
leaving the staircase issue aside, they may be directed to execute the sale deed.
He further submits that the words 'in alternate' should only mean 'if the
original relief is not available'. Since the original relief is available in the
present case, the alternate relief ought not to be resorted to. He further submits
the Judgment Debtor did not offer the money for the last two years and was
always willing to execute the decree for specific performance.
7. This Court has perused the judgment/decree dated 16th May, 2017. A
perusal of the same clearly shows that the decree which has been passed uses
the words 'or in alternate' very clearly. Post this decree having been passed,
parties have exchanged correspondence in respect of the sale deed. The
Decree Holder sent draft sale deeds to the Respondent, to which some dispute
was raised by the Judgment Debtor. The Decree Holder wanted some
language to be added which was not agreed to by the Judgement Debtor. This
correspondence continued from August, 2017 to 19th November, 2018, to no
avail.It is clear from the perusal of the correspondence that the Judgment
Debtor was willing to execute the sale deed. However, it is due to the
insistence by the Appellant on the language that the sale deed could not be
executed.
Signature Not Verified
Digitally Signed
Signing Date:09.11.2020 22:03
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:10.11.2020
09:18:49
8. Even in the execution application, the Decree Holder primarily sought
warrants of detention to civil prison and execution of decree for specific
performance. However, the Judgment Debtor had filed an application stating
that the Judgment Debtor is willing to deposit the sum in terms of the alternate
relief between the parties. That application was considered by the Court and
allowed.
9. A perusal of the correspondence between the parties shows that there
is no consensus ad idem on the language of the sale deed between the parties.
There appears to be a dispute in respect of the use of the staircase, which
according to the Judgment Debtor ought to be a commonly used staircase.
However, the Decree Holder states that the staircase should be a part of the
sale deed. Since there is no consensus between the parties on this issue, the
Executing Court has rightly allowed the alternate relief in favour of the Decree
Holder.
10. Under these circumstances, this Court does not find any perversity or
illegality in the impugned order. The original decree being one for specific
performance or in the alternative for payment of monetary sums, and the
decree having attained finality, the impugned order is in accordance with law.
11. This Court has not examined the question as to whether the amounts
deposited by the Judgment Debtor are in terms of the decree. On this issue,
the Decree Holder is permitted to move an application before the Executing
Court to compute the amounts in terms of the decree and the entire amount so
computed in terms of the alternate relief granted to the Decree Holder would
have to be paid by the Judgment Debtor. If such an application is moved, the
same shall be decided within a period of four months, so as to ensure that the
Decree Holder/Appellant is not deprived of the monetary payment for a long
Signature Not Verified
Digitally Signed
Signing Date:09.11.2020 22:03
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:10.11.2020
09:18:49
period.
12. The appeal is dismissed, in the above terms. All pending applications
are also disposed of.
PRATHIBA M. SINGH
JUDGE
NOVEMBER 9, 2020
Rahul / A
Signature Not Verified
Digitally Signed
Signing Date:09.11.2020 22:03
