IN THE COURT OF SHRI [ENTITY]: ADDL. DISTRICT JUDGE09: TIS HAZARI COURTS : DELHI [CASE NUMBER]) Unique Case ID No. 02401C0035862007 1. Smt. [ENTITY] W/o Late Sh. [ENTITY], R/o H. NO. 106, Model Basti, Near Filmistan Cinema, Karol Bagh, New Delhi110005. 2. Smt. [ENTITY], D/o Late Sh. [ENTITY], R/o H. NO. 106, Model Basti, Near Filmistan Cinema, Karol Bagh, New Delhi110005. 3. Smt. [ENTITY], D/o Late Sh. [ENTITY], R/o H. NO. 106, Model Basti, Near Filmistan Cinema, Karol Bagh, New Delhi110005. 4. Sh. [ENTITY], S/o Late Sh. [ENTITY], R/o H. NO. 106, Model Basti, Near Filmistan Cinema, Karol Bagh, New Delhi110005. 5. Sh. [ENTITY], [CASE NUMBER]) Page No. 1/36 S/o Late Sh. Ram Dhari Sharma, R/o WZ122, Nimri Village, Shastri Nagar, Delhi110052. Plaintiffs. VERSUS 1. Sh. [ENTITY], S/o Sh. Nanu Ram Sharma, R/o H. No. 136, Tihar Village, Delhi. Also At : House No. B7/9, Sector15, Rohini, Delhi110085. 2. [ENTITY] Through : It's President Mrs. [ENTITY], Regd. Office At 415, Ground Floor (Right Side), Dr. Mukherji Nagar, Delhi110009. Also At : S311, Vivekanand Apartment Plot No. 2, Sector - 5, Dwarka, New Delhi45. Defendants. Date of institution of the suit : 11.01.2007 Date on which order was reserved : 31.03.2015 Date of decision : 23.10.2015 [CASE NUMBER]) Page No. 2/36 SUIT FOR SPECIFIC PERFORMANCE OF SALE AGREEMENT DATED 24.12.1998 AND COMPROMISE AGREEMENT DATED 18.05.2006 JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the land of Khata Khatoni No. 49/46, [CASE NUMBER] total area measuring 8 (eight) bigha and 6 (six) biswa, located within the area of Village Pandawala Kalan, Tehsil Najafgarh, New Delhi, which forms the subject matter of this suit, is recorded in the relevant revenue records in the name of the defendant no. 1, Sh. [ENTITY], who is the admittedly the owner/ bhumidhar of the said land. It has been further stated that the defendant no. 1 Sh. [ENTITY] entered into an Agreement to Sell dated 24.12.1998 for sale of the suit land with Smt. [ENTITY] (the plaintiff no. 5 herein) and one Sh. [ENTITY] (since deceased), who is now represented in the suit in hand by his widow, Smt. [ENTITY], his daughters Smt. [ENTITY] and Smt. [ENTITY] and his son Sh. [ENTITY] (the plaintiffs no. 1 to 4 herein). It has been further stated that the suit land had devolved on the defendant no. 1 in terms of the registered Will dated 31.07.1995 executed in his favour by one Smt. [ENTITY], widow of late Sh. [ENTITY]. It has been further stated that the said Sh. [ENTITY] was the recorded [ENTITY] of the suit land and by virtue of the Will dated 06.07.1984, he bequeathed the said land in favour of his wife Smt. [ENTITY]. It has been further stated that however, a dispute arose with regard to the succession to the suit property left behind by Sh. [ENTITY] and one Smt. [ENTITY], both of whom claimed to be the wives of said Sh. [ENTITY]. It has been further stated that the matter was carried to the Hon'ble High Court of Delhi by Smt. [ENTITY] in [CASE NUMBER] titled as Smt. [ENTITY] Vs. The Government of N.C.T. Delhi. It has been further stated that however, the Will dated 06.07.1984 in favour of Smt. [ENTITY] was upheld and vide orders dated 12.05.2000 and 16.06.2000 passed by the Revenue Assistant (S.D.M.), Najafgarh, the mutation was effected in the name of Smt. [ENTITY]. It has been further stated that thereafter, in terms of the registered Will dated 31.07.1995 executed in favour of the defendant no. 1, the suit land was later on mutated in the name of the defendant no. 1 vide orders dated 11.07.2000 passed by the S.D.M. It has been further stated that on account of the pendency of the said litigation, no date or time was fixed for execution of the agreed sale deed in the said Agreement to Sell dated 24.12.1998. It has been further stated that the date and time for execution of the sale deed was to be fixed by mutual consent after mutation over the suit land in favour of the defendant no. 1 and that too, after intimation in writing thereof by the defendant no. 1 to the Vendees in accordance with the terms and conditions of the Agreement to Sell dated 24.12.1998. The plaintiffs have alleged that however, despite the mutation on 11.07.2000 in the name of the defendant no. 1, the defendant no. 1 gave no written intimation thereof to the Vendees in accordance with the Agreement to Sell dated 24.12.1998. It has been further stated that however, the defendant no. 1 executed a General Power of Attorney in favour of the Vendees authorizing them to take the physical possession over the suit land and to deal the same in the capacity of owners. It has been further stated that the said Vendees under the agreement dated 24.12.1998 took the physical possession over the suit land in August 2000 and since then, they continued in unobstructed possession over the suit land. It has been further stated that however, one Sh. [ENTITY] and Smt. [ENTITY] filed a [CASE NUMBER] before the Ld. District Judge, Delhi on 09.09.2005 against the defendant no. 1 and the defendant no. 2 as well claiming their rights and possession over the suit land on the basis of the Agreement to Sell dated 26.03.1993. It has been further stated that however, the said suit was dismissed as withdrawn on 02.08.2006 by the Court of Sh. [ENTITY], the then Ld. ADJ, Delhi. It has been further stated that later on, the defendant no. 2 i.e. the [ENTITY] instituted a [CASE NUMBER] in August 2006 itself against the defendant no. 1 herein seeking Specific Performance of an Agreement to Sell dated 10.08.2005 in respect of the suit land. It has been further stated that on 13.10.2005, Sh. [ENTITY] (one of the two vendees under the agreement dated 24.12.1998) died leaving behind the plaintiffs no. 1 to 4 as his legal heirs. It has been further stated that the rights, thus, under the said agreement dated 24.12.1998 are legally vested in the said plaintiffs no. 1 to 5. The plaintiffs have further alleged that the institution of the [CASE NUMBER] is a malafide act on the part of Smt. [ENTITY], the President of the [ENTITY] (the defendant no. 2 herein) and her husband Sh. [ENTITY]. The plaintiffs have further alleged that the Agreement to Sell dated 10.08.2005 was executed by the defendant no. 1 with the conditional consent of the above named Sh. [ENTITY] and Sh. [ENTITY] whereunder a sum of Rs. 10 Lacs, out of the agreed sale consideration of Rs. 25 Lacs was to be paid by said Smt. [ENTITY] to said Sh. [ENTITY] and Sh. [ENTITY] directly and out of the balance of Rs. 15 Lacs payable under the proposed sale agreement to said Sh. [ENTITY], the latter was to pay a further sum of Rs. 4 Lacs to said Sh. [ENTITY] and Sh. [ENTITY]. The plaintiffs have further alleged that however, after execution of the Agreement to Sell dated 10.08.2005, the said Smt. [ENTITY] and her husband turned dishonest. It has been further alleged that the said agreed amount of Rs. 10 Lacs was neither paid to Sh. [ENTITY] during his lifetime, nor to the plaintiffs after his death. It has been further stated that on account of the non payment of the abovesaid agreed amount, the consent of Sh. [ENTITY] and Sh. [ENTITY] became ineffective and their rights under the sale agreement dated 24.12.1998 remained unaffected. The plaintiffs have further alleged that not only, an amount of Rs. 10 Lacs as agreed was paid by the defendant no. 2 to Sh.[ENTITY] during his lifetime or to the plaintiffs after his death, but the defendant no. 2 also defaulted in payment of the agreed sale consideration to the defendant no. 1 under the agreement dated 10.08.2005. It has been further stated that a cheque bearing no. 315418 dated 31.08.2006 for an amount of Rs. 9 Lacs, which was given by the defendant no. 2 to the defendant no. 1 was not honoured on account of "funds insufficient" on 28.04.2006 and as such, the cheque was returned unpaid by the United Bank of India. The plaintiffs have further alleged that the claim of the defendant no. 2 to the effect that the defendant no. 2 has paid the whole of the agreed sale consideration to the defendant no. 1, thus, stand belied. The plaintiffs have further alleged that the suit bearing [CASE NUMBER] was instituted malafidely by the defendant no. 2 as neither the sale consideration was paid, nor there was a delivery of actual possession and rather, a false claim was laid with respect to the delivery of the actual possession. The plaintiffs have further alleged that Smt. [ENTITY] and her husband had due notice of the sale agreement dated 24.12.1998 prior to the execution of the agreement dated 10.08.2005. It has been further stated that the sale agreement dated 24.12.1998 being prior in time has to take precedent over the sale agreement dated 10.08.2005. The plaintiffs have further stated that the conduct of the defendant no. 2 led the defendant no. 1 to terminate the sale agreement dated 10.08.2005 and to forfeit the money paid in advance in terms of the notice dated 08.05.2006. It has been further stated that thus, no legal claim remained subsisting under the said agreement dated 10.08.2005. It has been further stated that under his notice dated 08.05.2006, the defendant no. 1 again reaffirmed his earlier agreement dated 24.12.1998 by executing a fresh deed labeled as Compromise Agreement dated 18.05.2006. It has been further stated that the said agreement did recognize the right of Sh. [ENTITY] and Sh. [ENTITY] to purchase the suit land. It has been further stated that in the Compromise Agreement dated 18.05.2006, the right to purchase the suit land was, however, confined to the plaintiff no. 1 Smt. [ENTITY] being the widow and successorininterest of Sh. [ENTITY]. It has been further stated that Sh. [ENTITY] i.e. the plaintiff no. 5 herein, who is a covendee under the agreement dated 24.12.1998 signed the compromise agreement as a witness thereof by way of token of waiver of his rights under the earlier agreement dated 24.12.1998 in favour of Smt. [ENTITY] (the plaintiff no. 1 herein). It has been further stated that the plaintiffs no. 2 to 5 have now exercised their option that the sale deed in terms of the sale agreement dated 24.12.1998 read with the Compromise Agreement dated 18.05.2006 be executed in favour of Smt. [ENTITY] (the plaintiff no. 1 herein). It has been further stated that the agreement dated 24.12.1998 included, besides the suit land, two houses and some other land, for which the total sale consideration was settled at Rs. 21 Lacs. It has been further stated that the price of the suit land was settled at Rs. 4 Lacs only. It has been further stated that in reference to the sale agreement dated 24.12.1998, the defendant no. 1 has been paid a total amount of Rs. 7,68,102/ (the details have been given in para no. 16 of the plaint). It has been further stated that Sh. [ENTITY] (since deceased) assisted the defendant no. 1 in securing mutation over the suit land in his name and for 56 long years, he conducted mutation and other connected cases for and on behalf of the defendant no. 1 and for that Sh. [ENTITY] spent an amount of Rs. 50,000/ from his own pocket. It has been further stated that thus, the total amount advanced to the defendant no. 1 in terms of the agreement dated 24.12.1998 comes to Rs. 8,18,102/ (Rs. 7,68,102/ + Rs. 50,000/). It has been further stated that after having waited long enough for execution of the sale deed, the plaintiffs started pressing the defendant no. 1 to execute a sale deed in accordance with the sale agreements dated 24.12.1998 and 18.05.2006, but he declined to do so on the ground that he could not do so in view of the restraint orders dated 25.08.2006 and 23.11.2006 passed by the Court in the suit bearing [CASE NUMBER] and hence, the present suit.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiffs have prayed for a decree of Specific Performance of the suit land. The plaintiffs have also prayed for a decree for an amount of Rs. 8 Lacs as an alternate relief in favour of the plaintiff no. 1 and against the defendant no.1. The plaintiffs have also prayed for the costs of the suit.
3. Perusal of the ordersheet dated 04.05.2007 reveals that none appeared on behalf of the defendant no. 1 on that day and as such, the defendant no. 1 was proceeded exparte.
4. Written statement has been filed on record by the only contesting defendant i.e. the defendant no. 2 stating therein that the present suit has been filed by the plaintiffs in collusion with the defendant no. 1 and as such, the same is not maintainable. It has been further stated that the present suit is without any cause of action and the plaintiffs have not come to the Court with clean hands. It has been further stated that the plaintiffs themselves have mentioned in the plaint that the total sale consideration of the land was Rs. 21 Lacs and as such, the present suit has not been valued properly for the purposes of court fees and jurisdiction. It has been further stated that the present suit is abundantly barred by law of limitation from the date of the Agreement to Sell dated 24.12.1998. It has been further stated that the plaintiffs failed to take any steps for the specific performance of the said agreement dated 24.12.1998 during its period of validity. It has been further stated that neither the contract was renewed, nor, the same was revalidated as per the law and as such, the plaintiffs abandoned it for the reasons best known to them. It has been further stated that the alleged compromise deed dated 18.05.2006 in between the plaintiffs and the defendant no. 1 is a forged and fabricated document.
5. On merits, the defendant no. 2 has admitted that Sh. [ENTITY] was the recorded Bhumidar of the suit land. The defendant no. 2 has denied the execution of the Agreement to Sell dated 24.12.1998 for want of knowledge. The Agreement to Sell dated 10.08.2005 in between the defendant no. 2 and the defendant no. 1 has been admitted by the defendant no. 2 against a total sale consideration of Rs. 15 Lacs. The defendant no. 2 has taken the stand that it was also put in physical possession of the suit land and since then, the defendant no. 2 is the owner and in possession of the suit land. The defendant no. 2 has admitted the filing of the suit bearing [CASE NUMBER], which is stated to be pending before the Court of Sh. [ENTITY], the then Ld. ADJ, Delhi. The defendant no. 2 has admitted that the suit bearing no. 743/05, which was instituted by Sh. [ENTITY] and Smt. [ENTITY] was later on dismissed as withdrawn. The execution of the GPA dated 09.08.2000 has been denied by the defendant no. 2. The defendant no. 2 has denied that it agreed to pay Rs. 10 Lacs to Sh. [ENTITY] and Sh. [ENTITY]. The defendant no. 2 has taken the stand that the Agreement to Sell dated 10.08.2005 was executed for a total sale consideration of Rs. 15 Lacs. The defendant no. 2 has further stated that as per the Agreement, the cheque bearing no. 315417 was liable to be presented for clearance only with the consent of the defendant no. 2 and that too, at the time of the execution of the sale deed and not prior to that. The defendant no. 2 has taken the stand that once, the actual and recorded owner has sold the land himself to the defendant no. 2 society on the basis of the Agreement to Sell and registered Memorandum of understanding on 10.08.2005 against a valuable sale consideration leads to the fact that the earlier GPA, if any, given by the Vendor has been revoked. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiffs be dismissed with costs.
6. Replication has been filed on record by the plaintiffs reiterating and reaffirming the stand as taken by the plaintiffs in the plaint and denying the contents of the written statement filed by the defendant no. 2.
7. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 08.02.2008 :
1) Whether the plaintiff has filed this suit in collusion with defendant no. 1?OPD2.
2) Whether the plaintiff has not come to the court with clean hands? If so, its effect?OPD2.
3) Whether the suit has not been properly valued for the purposes of court fees and jurisdiction?OPD2.
4) Whether the suit is barred by limitation?OPD2.
5) Whether the plaintiff is entitled to decree of specific performance of agreement dated 24.12.1998?OPP.
6) Whether the plaintiff was ready and willing to perform her part of obligation in terms of the agreement?OPP.
7) Whether the plaintiff is entitled to the decree for recovery of Rs. 8 Lacs in the alternative?OPP.
8) Relief.
EVIDENCE :
8. The plaintiff no. 5 has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. PW1/A, the original agreement deeds as Ex. PW1/1 and Ex. PW1/2, original receipts as Ex. PW1/3 to Ex. PW1/7 (colly), certified copy of the orders dated 12.05.2000 and 16.06.2000 as Ex. PW1/8(colly), original GPA as Ex. PW1/8A, certified copies relating to Appeal No. 58/2000 as Ex. PW1/9(colly), certified copy of the appeal filed by Smt. [ENTITY] as Ex. PW1/10, the certified copy of Financial Commissioner's order dated 21.12.2001 as Ex. PW1/11, the certified copy of the order sheet of Writ Petition No. 920/2002 as Ex. PW1/12, the certified copy of the Writ Petition no. 920/2002 as Ex. PW1/13, certified copy of the written statement in Civil Suit No. 43/05 as Ex. PW1/14, the certified copy of the affidavit of Smt. [ENTITY] as Ex. PW1/15, the certified copy of the order dated 08.11.2005 of Sh. [ENTITY], Ld. ADJ, Delhi as Ex. PW1/16, the certified copy of another order dated 02.08.2006 in the same case as Ex. PW1/17, the certified copy of affidavit of Sh. [ENTITY] as Ex. PW1/18 and the certified copy of Smt. [ENTITY] as Ex. PW1/19, the certified copy of order sheet of FAO No. 40203/05 as Ex. PW1/20(colly), the original cheque issued by Sh. [ENTITY] as Ex. PW1/21, the certified copy of the written statement of [ENTITY] in Civil Suit No. 170/06 as Ex. PW1/22, Bank memos as Ex. PW1/23 to Ex. PW1/25, the certified copies of RA's Order dated 16.06.2000 as Ex PW1/26, the certified copy of the Deputy Commissioner's order dated 30.05.2001 as Ex. PW1/27, the certified coy of the order sheet of that case as Ex. PW1/28 and Ex. PW1/29, the certified copy of appeal memo of Smt. Ramkali as Ex. PW1/30, the certified copy of Khasra extract as Ex. PW1/31, the order sheet of Writ Petition of Smt. Ramkali as Ex. PW1/32, the certified copy of Writ Petition of Smt. [ENTITY] as Ex. PW1/33, the certified copy of affidavit of Smt. Ramkali as Ex. PW1/34, the certified copy of application of Smt. Ramkali as Ex. PW1/35, the certified copy of affidavit of Smt. Ramkali as Ex. PW1/36 and the copies of orders passed in Writ Petition as Ex. PW1/37(colly).
9. The plaintiff no. 1 Smt. [ENTITY] has examined herself as PW2 and in her evidence by way of affidavit, she has relied upon the documents, which stand already exhibited by PW1 during his evidence.
10. The defendant no. 2 has examined its Secretary Ms. [ENTITY] as DW1 and in her evidence by way of affidavit Ex. DW1/A on record, she has reiterated and reaffirmed the stand as taken by the defendant no. 2 in the written statement.
11. The defendant no. 2 has further examined Sh. [ENTITY] as DW3 and this witness has compared the certified copies of the plaint of [CASE NUMBER], certified copy of the joint application under Order 23 Rule 3 read with Sec. 151 [ACT], certified copy of the affidavit of Smt. [ENTITY], certified copy of the affidavit of Sh. [ENTITY], certified copy of DD dated 21.11.07, certified copy of receipt dated 22.11.07 and certified copy of receipt dated 22.11.07 for a sum of Rs. 2 Lacs, certified copy of SPA dated 21.11.07, certified copy of the order dated 22.11.07, certified coy of decree sheet passed in the aforesaid suit, statements of Sh. [ENTITY] and Smt. [ENTITY] with the original record brought by him. The said certified copies have been exhibited as Ex. DW3/1 to Ex. DW3/11 during the testimony of this witness.
12. The detailed testimonies of these witnesses shall be discussed in the later part of this judgement.
13. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties. Both the parties have filed on record their written final arguments as well. I have also given my thoughtful consideration to the written final arguments filed on record by the both the parties.
14. My issuewise finding on the abovesaid issues is as under:
Issues No. 1 to 8 :
15. All these issues are taken up together as the same are connected interse and overlap each other. Issues no. 1 to 4 relate to the preliminary objections or the defence as contained in the written statement by the defendant no. 2 and as such, the onus to prove the said issues has been placed upon the defendant no. 2. Issues no. 5 to 7 pertain to the prayer clause of the present suit and as such, the onus to prove the said issues has been placed upon the plaintiffs.
16. The factual controversy, involved in the present suit, has already been narrated hereinabove.
17. In the written final arguments filed on record by the plaintiffs, relying upon the factual narration of facts, the testimony of PWs and DWs and certain case law, it has been argued that the plaintiffs have been able to prove their case in its entirety.
18. Whereas, on the other hand, in the written final arguments filed on record by the defendant no. 2, it has been argued that both PW1 and PW2 have not been unable to explain as to why defendant no. 2 has been impleaded as a party in the present suit as in both the agreements dated 24.12.1998 and 18.05.2006 Ex. PW1/1 and Ex. PW1/2 on record, the defendant no. 2 is not a party. It has been further argued that on 24.12.1998, the defendant no. 1 was not shown as the owner of the property in question as mutation in his favour was subsequently entered into the revenue record on 11.07.2000 on the basis of the Will left behind by his motherinlaw. It has been further argued that the defendant no. 2 was not aware about the agreement dated 18.05.2006 Ex. PW1/2 on record at any point of time. It has been further argued by the defendant no. 2 that the execution of the GPA dated 09.08.2000 as alleged by the plaintiffs itself shows that the defendant no. 1 impliedly refused to execute the sale deed in favour of the plaintiffs. Defendant no. 2 has further argued that the plaintiffs were aware about the passing of the compromise decree in [CASE NUMBER] in favour of the defendant no. 2. It has been further argued that the limitation for filing a suit for Specific Performance is 3 years and as such, the present suit is beyond the period of limitation. It has been further argued that the plaintiffs have not challenged the decree passed in favour of the defendant no. 2. It has been further argued that the doctrine of lispendens is not applicable. It has been further argued that the plaintiffs have failed to prove that the defendant no. 2 had to give an amount of Rs. 10 Lakhs to late Sh. [ENTITY] and Sh. [ENTITY]. It has been further argued that Ex. PW1/2 is forged and fabricated. Defendant no. 2 has further argued that the defendant no. 1 has not filed any suit for recovery till date against the defendant no. 2. Defendant no. 2 has further argued that appropriate court fees have not been paid. It has been prayed that the suit against the defendant no. 2 be dismissed.
Findings on Limitation :
19. Pendency of the prolonged litigation qua the property in question in the form of Ex. PW1/8 to Ex. PW1/20 and Ex. PW1/26 to Ex.
PW1/37 on record is not in dispute. The first agreement dated 24.12.1998 Ex. PW1/1 specifically states that the vendor i.e. the defendant no. 1 was required to intimate the vendees in writing about the factum of mutation qua the disputed land and thereafter, the date and time for execution of agreed sale deed was to be mutually fixed. No date for execution of the sale deed was fixed. To my mind, it has been rightly argued by the Ld. Counsel for the plaintiffs in the written final arguments that there was no refusal on the part of the vendor to perform his part of the contract. I am of the opinion that the abovesaid submission is fortified by the fact that in continuation of Ex. PW1/1, Ex. PW1/2 dated 18.05.2006 was executed by the vendor.
20. In the authority cited as [PRECEDENT] titled as [PRECEDENT]., the Hon'ble High Court of Andhra Pradesh, in para no. 26 thereof has held as under : "26. In the above circumstances, the first contention of the learned counsel for the appellants with regard to the delay and lapses on the part of the appellant cannot be countenanced particularly in view of the fact that the plaintiff made a request demanding the registration from the defendants 1 and 2 and the said defendants postponed the same on the ground of pending litigation. That does not in my view amount to refusal as contemplated under [SECTION] of the [ACT], even assuming that the suit is filed in the year 1983 it is within time in the absence of any time framed for its performance."
21. From the perusal of the ratio of the said authority, it is apparently clear that [SECTION] of the [ACT] which prescribes a period of 3 years from the date fixed under a contract shall not apply and rather [SECTION] of the [ACT] would apply.
22. Furthermore, in [PRECEDENT] titled as [PRECEDENT]., suit was held to be not barred by law of limitation though the same was filed after a period of 11 years from the date of the agreement as there was no refusal to perform.
23. In [PRECEDENT] titled as [PRECEDENT]., suit after 29 years after the date of sale agreement was held to be maintainable by the Hon'ble Apex Court of the Land as there was no date fixed for execution of sale deed and the purchaser had no notice of refusal of performance of sale agreement.
24. In the light of the ratio of the abovesaid judgments, I have no hesitation to hold that [SECTION] of the [ACT] shall not apply and rather [SECTION] of the [ACT] would apply.
25. Ld. Counsel for the defendant no. 2 has further argued that there was an implied refusal on the part of the defendant no. 1 to execute the sale deed when he executed the GPA dated 09.08.2000. To my mind, the abovesaid submission of the Ld. Counsel for the defendant no. 2 is absolutely fallacious because the terms and conditions of Ex. PW1/1 were not altered at the time of execution of GPA dated 09.08.2000. Furthermore, Ex. PW1/2 i.e. the compromise agreement dated 18.05.2006 was again executed by the defendant no. 1 in continuation of Ex. PW1/1.
26. As such, I have no hesitation to hold that the suit of the plaintiffs is within the period of limitation. Accordingly, the defendant no. 2 has failed to prove issue no. 4, which is decided against the defendant no. 2 and in favour of the plaintiffs.
Findings on all other issues :
27. Now, coming to the evidence, PW1 and PW2 have not been crossexamined by the defendant no. 1 as the defendant no. 1 was proceeded exparte on 04.05.2007 by the Ld. Predecessor of this Court.
28. PW1 has been crossexamined by the Ld. Counsel for the defendant no. 2 only. In the crossexamination, PW1 states that the present suit is in relation to Specific Performance of Agreement to Sell dated 24.12.1998. PW1 further states that he had given an oral consent for execution of the agreement to sell by the defendant no. 1 with the defendant no. 2 subject to the payment of Rs. 11 Lakhs out of total consideration of Rs. 25 Lakhs. PW1 again states that he did not receive Rs. 11 Lakhs. PW1 further states that he has approached this Court because he did not receive the amount of Rs. 14 Lakhs. PW1 further states that at the time of execution of the second agreement dated 18.05.2006, he alongwith Smt. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] were present.
29. PW2 Smt. [ENTITY], in the crossexamination done by the Ld. Counsel for the defendant no. 2, states that she knows that the property in question had been purchased by the defendant no. 2. PW2 again states that there is only an agreement to sell and there is no sale deed. PW2 admits it to be correct that her husband did not file any suit for specific performance on the basis of agreement dated 24.12.1998 because litigation was pending. PW2 admits it to be correct that there was no mutation in the name of the defendant no. 1 prior to 24.12.1998. PW2 further states that on 18.05.2006, a compromise was reached with the defendant no. 1 in the form of Ex. PW1/2. PW2 further states that a compromise was also reached in between Smt. [ENTITY] and Sh. [ENTITY] and the plaintiff that Smt. [ENTITY] and Sh. [ENTITY] will give Rs. 10 Lakhs to the plaintiff and they will also pay Rs. 15 Lakhs to the defendant no. 1 and out of that the defendant no. 1 will pay Rs. 4 Lakhs to the plaintiff. PW2 admits that the said agreement was not reduced in writing. PW2 further states that under the agreement Ex. PW1/2, Sh. [ENTITY] has given the rights to him.
30. Defendant no. 2 i.e. DW1, in the crossexamination, states that the defendant no. 2 is the registered society and it was registered in 2001. DW1 further states that she is knowing about all transactions of the society taking place with third party. DW1 further states that she has seen Smt. [ENTITY] and Sh. [ENTITY] writing and signing. At this stage, the cheque Ex. PW1/21 on record was shown to the witness and the witness identified the signatures of Sh. [ENTITY] at point X on the cheque. DW1 further states that she knows that the cheque Ex. PW1/21 was not honoured by their banker when presented by Sh. [ENTITY]. By way of volunteer, DW1 states that the defendant got the payment stopped. DW1 admits it to be correct that the cheque was dishonoured due to insufficiency of funds. By way of volunteer, DW1 states that but, they did not want to make payment to Sh. [ENTITY] due to dispute with him. DW1 further states that she cannot confirm as to whether Cheque bearing no. 315418 dated 31.08.2006 was issued in the name of Sh. [ENTITY]. DW1 further states that they agreed to sell the land to Sh. [ENTITY] for a consideration of Rs. 15 Lacs. DW1 further states that she has no information if Sh. [ENTITY] entered into an agreement with late Sh. [ENTITY] (since deceased) and Sh. [ENTITY]. DW1 admits it to be correct that the defendant no. 2 filed the suit for Specific Performance against Sh. [ENTITY] bearing [CASE NUMBER]. DW1 further states that she does not remember if Smt. [ENTITY] and other plaintiffs moved an application U/[SECTION] of the [ACT] in that case for becoming party in February 2007. DW1 further states that that suit was settled out of the Court and according to that settlement, they made payment to Sh. [ENTITY] and the suit was decreed in view of the compromise. DW1 further states that no sale deed has been executed till date by Sh. [ENTITY] in favour of the defendant no. 2 in that suit. DW1 further states that she has no knowledge if Sh. [ENTITY] has also entered into an agreement on 18.05.2006 with Smt. [ENTITY] and her children and Sh. [ENTITY]. In response to the question as to whether the agreement dated 18.05.2006 was in continuation to the Agreement to Sell dated 24.12.1998, DW1 has answered that she has no knowledge. DW1 states that she has no knowledge if Smt. [ENTITY] and Sh. [ENTITY] alongwith Sh. [ENTITY] visited the residence of Sh. [ENTITY] in July 2005. DW1 again states that they did not visit the house of Sh. [ENTITY]. DW1 has denied the suggestion that any such meeting took place or that in that meeting Sh. [ENTITY] and Smt. [ENTITY] had agreed to pay Rs. 25 Lacs for the land in question. DW1 has further denied the suggestion that Sh. [ENTITY] and Smt. [ENTITY] agreed to pay Rs. 10 Lacs to Sh. [ENTITY] in lieu of their agreement dated 24.12.1998 or that it was also agreed that Sh. [ENTITY] and Sh. [ENTITY] will give a written consent to Sh. [ENTITY] to enter into agreement with the defendant no. 2 after receiving Rs. 10 Lacs with respect to this land. DW1 further states that she has no knowledge if Sh. [ENTITY] died on 13.10.2005. DW1 further states that she has the knowledge of all the meetings Sh. [ENTITY] and Smt. [ENTITY] used to have on behalf of the society. DW1 further states that she does not know the Khasra number of that land with respect to which agreement to sell was executed by Sh. [ENTITY] in favour of the society, but, it was property situated in Pandwala Kalan measuring 7 bighas and 8 biswas. DW1 further states that she had seen the land in dispute. DW1 further states that she has no knowledge of the directions North, South East and West, hence, she cannot tell on which side of the village the land is situated but, she knows the exact location of the land. DW1 further states that the land is not used for any purpose for the defendants till date and is lying vacant. DW1 has denied the suggestion that the plaintiffs are in possession of the suit land. DW1 states that she has mentioned in her affidavit that both the agreements relied by the plaintiffs are forged and fabricated as the same do not appear to be authentic to her. By way of volunteer, DW1 states that there was a decree in their favour. DW1 further states that she has no knowledge about the contents of the written statement filed by Sh. [ENTITY] in this case.
31. Now, if the crossexamination of PWs is carefully gone through, to my mind, it is evidently and apparently clear that PWs have stuck to their stand even in their crossexaminations. I have no hesitation to hold that on material aspects of the matter, the affidavits of PWs are in consonance with their crossexaminations. Whereas, on the other hand, the testimony of DW1 i.e. the sole witness examined by the defendant no. 2 is evasive and shaky as is apparent from the crossexamination of DW1. DW1 is not aware about the agreements dated 24.12.1998 or 18.05.2006 Ex. PW1/1 and Ex. PW1/2 on record.
32. As such, I am of the opinion that PWs have been able to prove Ex. PW1/1 and Ex. PW1/2 by way of cogent and reliable evidence. I am also of the opinion that both the abovesaid PWs have been able to prove the payment of sale consideration of the amount of more than Rs. 7 Lacs by way of the receipts Ex. PW1/3 to Ex. PW1/7 on record.
33. To my mind, the testimony of DW1 has not been able to discredit the evidence led by the plaintiffs in the present suit at all. I am of the opinion that the plaintiffs have been able to prove that the agreement dated 10.08.2005 executed by the defendant no. 1 with the defendant no. 2 was a conditional agreement, which was executed with the consent of the vendees under the agreement Ex. PW1/1 on record. To my mind, the plaintiffs have been able to prove that out of the total sale consideration of Rs. 25 Lakhs, which was settled under the agreement dated 10.08.2005, the defendant no. 2 had to pay an amount of Rs. 10 Lakhs to late Sh. [ENTITY] and to Sh. [ENTITY] and the defendant no. 1 had to pay an amount of 4 Lakhs out of Rs. 15 Lakhs to the vendees under the agreement Ex. PW1/1 on record.
34. DW1, in the crossexamination, has categorically admitted that the cheque Ex. PW1/21 on record, which was given in lieu of the execution of the agreement dated 10.08.2005 with the defendant no. 2 was dishonoured on presentation.
35. Furthermore, the plaintiffs have placed on record the certified copy of the written statement of the defendant no. 1, which was filed by the defendant no. 1 in suit bearing [CASE NUMBER] instituted by the defendant no. 2 against the defendant no. 1 herein in the form of Ex. PW1/22 on record. The said written statement is not denied by the defendant no. 2 at all. A perusal of the abovesaid document reinforces and fortifies the version put forth by the plaintiffs in the present suit.
36. To my mind, it has also been rightly argued by the Ld. Counsel for the plaintiffs that in the case in hand, [SECTION] of the [ACT] is applicable and Specific Performance of the part of the property, which is the subject matter of the present suit can be granted. In the written final arguments, the plaintiffs have argued that they have already paid more than agreed sale consideration for disputed 8 bighas 6 biswas of the land and have relinquished their claim on the remaining contracted property. It has been further argued that the defendant no. 1 failed to produce ownership documents qua the remaining property covered under Ex. PW1/1. It has been further argued that part of the whole property stands on a separate and independent footing.
37. To my mind, the abovesaid submissions of the Ld. Counsel for the plaintiffs carry weight. To my mind, Ld. Counsel for the defendant no. 2 has not been able to counter the abovesaid arguments of the Ld. Counsel for the plaintiffs and as such, in the considered opinion of this Court, [SECTION] of the [ACT] is applicable.
38. Relying upon the ratio of the authority cited as [PRECEDENT] titled as [PRECEDENT]. Counsel for the plaintiffs has vehemently argued that doctrine of lispendens as specified U/[SECTION] of [ACT] is applicable.
39. It has to be seen that the controversy in the present suit revolves around three agreements. The first agreement is dated 24.12.1998 Ex. PW1/1 on record and the second agreement is dated 18.05.2006 Ex. PW1/2 on record. The abovesaid two agreements are there in favour of the plaintiffs. The third agreement is dated 10.08.2005, which was executed by the defendant no. 1 in favour of the defendant no. 2, on the basis of which, [CASE NUMBER] was instituted by the defendant no. 2 against the defendant no. 1. It is not in dispute that later on, a compromise decree was passed in [CASE NUMBER]. Certified copies of the proceedings of the [CASE NUMBER] are there on record in the form of Ex. DW3/1 to Ex. DW3/13.
40. DW1 has categorically admitted in her crossexamination that despite the compromise decree in [CASE NUMBER], no sale deed qua the property in question has been executed. In para no. 11 of the authority cited as [PRECEDENT] titled as [PRECEDENT]., the Hon'ble High Court of Delhi has held as under : "11. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/ plaintiffs are found to have agreed to sell the property, the petitioner/ defendant would not get any right to occupy that property as an agreement purchaser. This Court in [PRECEDENT] has held that in fact no rights accrue to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed. Thus in law, the petitioner has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour."
42. As such, to my mind, despite the compromise decree, no title has passed till date in favour of the defendant no. 2 in the light of the ratio of the said authority. But, to my mind, since no lis was pending on the fateful day when the agreement dated 10.08.2005 was executed, [SECTION] of the [ACT] is not applicable in the particular facts and circumstances of the present suit. At the same time, I am of the opinion that the plaintiffs have been able to prove that the agreement dated 24.12.1998 being prior in time has to take precedent over the agreement dated 10.08.2005. I am also of the opinion that the plaintiffs have also been able to prove that the defendant no. 2 was having the knowledge of the execution of Ex. PW1/1 at the time of the execution of the agreement dated 10.08.2005.
43. To my mind, Ld. Counsel for the plaintiffs has rightly argued that neither Ms. [ENTITY], nor Sh. [ENTITY] have examined themselves and as such, an adverse inference has to be drawn. In the authority cited as [PRECEDENT] titled as [PRECEDENT]., in para no. 23, the Hon'ble Supreme Court of India has held as under : "23. This decision was also relied upon by the Bombay High court in [PRECEDENT], which observed as under : "It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to crossexamination and his non appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case."
44. Ld. Counsel for the defendant no. 2 has vehemently argued that PW1 and PW2 have failed to specify as to why the defendant no. 2 has been added as a party in the present suit. It has to be seen that none other, but DW1 who is the sole witness examined by the defendant no. 2 has admitted the filing of the suit bearing [CASE NUMBER] by the defendant no. 2 against the defendant no. 1. The passing of the compromise decree, in the said suit, later on, in favour of the defendant no. 2 is also not in dispute. The defendant no. 2 is the sole contesting defendant in the present suit. It is not in dispute that the claim of the plaintiffs in the present suit is with regard to the same property which was the subject matter of the suit bearing [CASE NUMBER]. As such, I have no hesitation to hold that the defendant no. 2 has been rightly added as one of the defendants in the present suit by the plaintiffs.
45. Ld. Counsel for the defendant no. 2 has further argued that the mutation in favour of the defendant no. 1 in respect of the property in question was entered on 11.07.2000 and as such, on 24.12.1998, when Ex. PW1/1 was executed, defendant no. 1 was not even the owner of the property in question. It has to be seen that it has not been denied that on the basis of the Will dated 31.07.1995, the defendant no. 1 became the owner of the property in question. As such, to my mind, the abovesaid submission of the Ld. Counsel for the defendant no. 2 does not hold much water.
46. I have no hesitation to hold that if weighed on the scale of preponderance of probabilities, the testimony of PWs is more reliable and trustworthy as compared to the testimony of DW1.
47. In the light of the abovesaid discussion, to my mind, the defendant no. 2 has utterly failed to prove that the present suit has been filed by the plaintiffs in collusion with the defendant no. 1. To my mind, rather the plaintiffs have been able to prove that the suit bearing [CASE NUMBER] was filed by the defendant no. 2 against the defendant no. 1 in collusion. While holding so, I am fortified by the observations of the Hon'ble Apex Court of the Land in the authority cited as [PRECEDENT] titled as [PRECEDENT]. In paras no. 7 and 8 of the said authority, the Hon'ble Supreme Court of India has held as under : "7. Learned counsel for the plaintiffappellant submitted that in fact exercise of discretionary relief in favour of Defendant No.2 is not correct as this kind of discretion if exercised in favour of Defendant No.2 then it is likely to lay down a bad precedent. This will give premium to unethical transaction and a bona fide purchaser will be left high and dry. Learned counsel for the defendants submitted that it is true that [SECTION] of the [ACT] is a discretionary remedy that is not always necessary to grant a decree for specific relief if it appears to be inequitable and causes hardship to the other side. But looking to the facts of the present case we are of opinion that it will be unfair and inequitable not to grant a decree for specific relief in favour of the plaintiffappellant herein because he is a bona fide purchaser and he has done everything which is possible, that he has purchased the stamp paper and was ready and willing to perform his part of the contract, that he went along with Defendant No.1 to the SubRegistrar's Office for registration but some how Defendant No.1 sneaked away from that place as he had already entered into another agreement to sell the present premises, so much so that a sham suit was got filed by Defendant No.2 against Defendant No.1 and on the same day a compromise decree was obtained. These facts go to show that there is not much equity left in favour of Defendant No. 2 as it appears that the suit by Defendant No.2 was a pre arranged affair with connivance with Defendant No.1. Otherwise that suit would not have been filed on the same day and a compromise decree would not have been obtained the very same day. This shows that there was a pre conceived agreement between Defendant Nos.1 & 2 in order to cheat the plaintiff appellant herein. Therefore, we are of opinion that the discretionary power exercised by learned Single Judge of the High Court was not correct. In fact, it appears that Defendant No.2 has purchased the litigation and therefore, there is no equity in his favour.
8. Hence, in the result of our above discussion, we allow this appeal and set aside the impugned order of the learned Single Judge of the High Court of Karnataka passed in [CASE NUMBER], affirm the decree of the trial court as well as the first appellate court and grant a decree for specific performance of the agreement to sell against Defendant No.1. However, so far as the question of granting possession of the suit premises is concerned, that order we are not passing for the reason that Defendant No.2 is in possession of the premises for a long time and the plaintiff appellant herein has to execute a formal agreement of purchase with Defendant No.1. However, it would be open for the plaintiff to take appropriate proceedings for eviction of Defendant No.2 and take possession of the suit premises in accordance with law. It will be open to Defendant No. 2 to file a suit against Defendant No. 1 to recover his money in accordance with law. There shall be no order as to costs. "
48. In the light of the abovesaid discussion, issue no. 1 to 4 are decided against the defendant no. 2. Issues no. 5 and 6 are decided in favour of the plaintiffs. Issue no. 7 pertains to the alternate relief, but, since the main relief has been granted under issue no. 5, there is no need to grant the alternate relief.
Relief :
49. In the light of my findings on the foregoing issues, I hereby decree the suit of the plaintiffs for the relief of Specific Performance.
The defendant no. 1 is hereby directed to execute a sale deed in favour of the plaintiff no. 1 in respect of the suit land measuring 8 bighas and 6 biswas forming part of i.e. Khata Khatoni No. 49/46, [CASE NUMBER] located within the area of Village Pandawala Kalan, Tehsil Najafgarh, New Delhi. Costs of the suit are also awarded in favour of the plaintiffs.
Decree sheet be prepared accordingly by the Reader. File be consigned to Record Room after due compliance.
Announced in the open court ([ENTITY]) on this 23th day of October 2015. ADJ09 (Central) Tis Hazari Courts, Delhi.