[CASE NUMBER] IN THE COURT OF MS. [ENTITY] CIVIL JUDGE (NORTH): [ENTITY] COURTS: DELHI Suit No.219/13 Sh. [ENTITY], S/o Sh. Roop Lal Popli, R/o 142, Jai Apartments, Delhi110085 Plaintiff Versus Sh. [ENTITY] S/o Late Sh. Manohar Lal Lamba, R/o G22/169170, First Floor, Sector7, Rohini, Delhi110085 Defendant Date of Institution : 30.09.2010 Date Reserve for orders : 20.01.2015 Date of Decision : 20.01.2015 Judgment This suit for specific performance and permanent injunction filed by the plaintiff against the defendant. Sh. [ENTITY] Vs Sh. [ENTITY] 1/28 [CASE NUMBER] CASE OF THE PLAINTIFF 1.
The case of the plaintiff is that in order to set up his office, he purchased built up half portion consisting of one room (11'x11') with balcony and common passage situated on the first floor forming part of Janta Flat no. D7/9, Sector 6, Rohini, Delhi on 1.11.2002. However, in June, 2006, the defendant came in contact with the plaintiff and offered to sell the suit property to him as he was in dire need of Rs. 1 lac before 31.07.2003. After negotiations, an agreement to sell and purchase dated 17.06.2003 was executed between the parties and it was agreed that out of the total sale consideration of Rs. 2,25,000/ a sum of Rs. 1 lac shall be paid by the plaintiff on or before 31.07.2003 and the balance consideration amount of Rs. 1,25,000/ shall be paid from the sale proceeds of the property purchased by the plaintiff on 1.11.2002, as and when the same shall be paid, whereupon the sale deed in respect of the suit property shall be executed by the defendant in favour of the plaintiff. In pursuance to the terms and conditions of the agreement, the plaintiff paid a sum of Rs. 1 ac to the defendant which was duly acknowledged by him and the plaintiff was put in possession of the suit property. In contravention of terms and conditions of the contract, the defendant sent a legal notice dated Sh. [ENTITY] Vs Sh. [ENTITY] 2/28 10.08.2010 to the plaintiff claiming possession of the suit property. Even though the property of the plaintiff had not been sold, he sent a reply dated 20.08.2010 to the defendant asking him to accept the balance sale consideration and execute the sale deed in respect of the suit property in his favour on 7.9.2010 before the Subregistrar. Eventually the plaintiff was constrained to file the suit for seeking the relief of a decree for specific performance in favour of plaintiff and against the defendant thereby directing the defendant specifically to perform the agreement dated 17.06.2003 duly executed between the plaintiff and defendant and to do all acts necessary to transfer the property under sale i.e. built up room/shop no. 3 (approximately 7'x12') situated on the first floor forming part of the flat no. 72/1, Pocket D12, Sector 7, Rohini, Delhi to the plaintiff by executing sufficient instrument/Sale Deed and a decree for permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his associates, family members, attorneys etc from dispossessing the plaintiff with respect to the build up room/shop no.3 (approximately 7'x12') situated on the first floor forming part of the flat no. 72/1, Pocket D12, Sector 7, Rohini, Delhi illegally, forcibly and without due process of law and further from selling/alienating/transferring or Sh. [ENTITY] Vs Sh. [ENTITY] 3/28 creating third party interest with respect in the above suit property. CASE OF THE DEFENANT
2. In the written statement, though the defendant has admitted that he had agreed to sell the suit property to the plaintiff but has been averred that as per the agreement, time fixed for performance of contract was 31.07.2003 or at the earliest possible time. According to the defendant, being a friend, he signed the blank papers for the convenience of the plaintiff but the plaintiff cheated him and executed a vague, illegal and void agreement to sell and purchase. The plaintiff made the agreement contingent without the consent of the defendant and added the words "at the earliest" in the agreement to sell. It has been averred that since the plaintiff failed to pay the balance consideration amount despite repeated requests, the defendant repudiated the agreement to sell vide legal notice dated 10.08.2010 and the possession of the plaintiff in respect of the suit property became illegal and thus the rest of the allegations are vehemently denied. Replication Plaintiff filed the replication to the WS wherein the contents of the WS are denied and the averments in the plaint are reiterated. The same are not being reproduced herein for the sake of brevity Sh. [ENTITY] Vs Sh. [ENTITY] 4/28
3. On 10.10.2011 admission denial of documents had taken place as per order dated 10.10.2011 passed by my ld predecessor and defendant admitting the following documents.
(i) Agreement to sale and purchase dated 17.06.2003.
(ii) Receipt of payment dated 17.06.2003
(iii) Possession slip dated 17.06.2003.
Thereafter, upon alleged admission of the defendant, the plaintiff moved an application under [SECTION] [ACT] which was disposed of vide a detailed order by my ld predecessor dated 14.05.2012 wherein it was clarified that the defendant had merely admitted the signatures on the documents and not the contents of the documents.
ISSUES: Thereafter following issues were framed by my ld predecessor vide order dated 14.05.2012.
(i) Whether the plaintiff is entitled for decree of specific performance, as prayed? OPP
(ii) Whether the plaintiff in entitled for decree of permanent injunction, as prayed? OPP
(iii) Whether the suit is liable to be dismissed U/[SECTION] [ACT]?OPD
(iv) Whether the suit of the plaintiff is barred U/[SECTION] of Specific Relief Sh. [ENTITY] Vs Sh. [ENTITY] 5/28 Act? OPD
(v) Whether the suit is barred U/[SECTION] [ACT]? OPD
(vi) Whether the suit is barred by limitation period? OPD
(vii) Whether the suit is liable to be dismissed as the defendant had repudiated the agreement dated 17.06.2003 vide the notice dated 10.06.2010 ?OPD Relief:
EVIDENCE ON BEHALF OF PLAINTIFF
4. The plaintiff adduced three witnesses PW1 is the plaintiff himself who vide his testimony Ex as PW1/1 reiterated the contents of the plaint and relied on documents Ex PW1/1 to Ex PW1/15 as (colly).
Ex PW1/1 are sale related documents of property measuring 11"x11" with balcony and common passage and staircase forming part of Janta Apartments, Flat no. D7/9, Sector6, Rohini dated 1.1.2001 purchased by the plaintiff.
Ex PW1/2 is the agreement to sell in question dated 17.06.2013.
Ex. PW1/3 is the receipt 17.06.2013.
Ex. PW 1/ 4 (colly) is the possession letter 17.06.2013.
Sh. [ENTITY] Vs Sh. [ENTITY] 6/28 Ex. PW1/5 (colly) are the photographs.
Ex. PW1/6 is the legal notice dated 10.08.2010 sent by the defendant to the plaintiff.
Ex. PW1/7 is the reply dated 20.08.2010 sent by the plaintiff to the defendant.
Ex. PW1/8 to Ex. PW1/11 are postal receipts.
Ex. PW1/12 is the A.D. Card.
Ex. PW1/13 is I card receipt dated 7.9.2010 and photographs of the plaintiff at the subregistrar office (colly). Ex PW1/14 is the statement of the account of the plaintiff at Axis Bank.
Ex PW1/15 is cheque for a sum of Rs. 2,25,000/ drawn by the plaintiff in the favour of the defendant.
PW2 is Sh. [ENTITY] who vide his testimony Ex PW2/A supporting the case of the plaintiff testified that the plaintiff with intent to separate his office from his residence purchased part of Janta Flat No. D7/9, Sector 6, Rohini, Delhi by virtue of sale purchase papers dated 1.11.2002. When the plaintiff purchased the property in Sector6, Rohini, Delhi. I was also the witness in the sale purchase documents. That the Sh. [ENTITY] Vs Sh. [ENTITY] 7/28 witness was also present at the residence of the plaintiff as he had been requested by the plaintiff and defendant to witness the transaction between them dated 17.06.2003.
PW3 is one Sh. [ENTITY] who had brought the summoned record i.e statement of account pertaining to the plaintiff as a joint holder having account with his wife Smt. [ENTITY] from the period of 1.1.2009 to 31.08.2012 and testifying that according to the statement of account the balance on 6.9.2010 was Rs. 1,60,890.55/ and on 14.09.2010 was Rs. 1,59,379.55/. He testified that the present statement of account is maintained according to the regular business of the bank and no separate ledger is maintained. The statement of account is Ex PW3/A (colly). EVIDENCE ON BEHALF OF DEFENANT
5. Defendant adduced one witness i.e. DW 1 who is the defendant himself who vide his testimony Ex DW1/A reiterated the contents of the WS. It is pertinent to mention that no document was relied upon by the defendant. He was thoroughly crossexamined by the ld counsel for the plaintiff on 27.07.2013, 21.09.2013, 16.07.2014 and 2.8.2014. There was no other witness on behalf of the defendant.
6. I have heard the arguments at length by ld counsel Sh. A.K. Sh. [ENTITY] Vs Sh. [ENTITY] 8/28 [ENTITY] ld counsel for the plaintiff and Ms. [ENTITY] ld counsel for the defendant and gone through the material available on record.
7. My issues wise findings are as follows:
Issue no 1, 5, 6 and 7 are taken up together be interconnected and findings on the said issues as such would resolve the entire controversy in hand.
Issue No:(i) Whether the plaintiff is entitled for decree of specific performance, as prayed? OPP Issue No: (v) Whether the suit is barred U/[SECTION] [ACT]? OPD Issue No: (vi) Whether the suit is barred by limitation period? OPD Issue No: (vii) Whether the suit is liable to be dismissed as the defendant had repudiated the agreement dated 17.06.2003 vide the notice dated 10.06.2010 ?OPD The onus to prove the issue no. 1 was on the plaintiff and onus to prove the issues no. 5, 6 and 7 were on the defendant.
It is the case of the plaintiff that to set up his office, he purchased built up half portion consisting of one room (11'x11') with balcony and common passage situated on the first floor forming part of Janta Flat no. D7/9, Sector 6, Rohini, Delhi on 1.11.2002. However, in Sh. [ENTITY] Vs Sh. [ENTITY] 9/28 June, 2006, the defendant came in contact with the plaintiff and offered to sell the suit property to him as he was in dire need of Rs. 1 lac before 31.07.2003. After negotiations, an agreement to sell and purchase dated 17.06.2003 was executed between the parties and it was agreed that out of the total sale consideration of Rs. 2,25,000/ a sum of Rs. 1 lac shall be paid by the plaintiff on or before 31.07.2003 and the balance consideration amount of Rs. 1,25,000/ shall be paid from the sale proceeds of the property purchased by the plaintiff on 1.11.2002, as and when the same shall be paid, whereupon the sale deed in respect of the suit property shall be executed by the defendant in favour of the plaintiff. In pursuance to the terms and conditions of the agreement, the plaintiff paid a sum of Rs. 1 lac to the defendant which was duly acknowledged by him and the plaintiff was put in possession of the suit property. In contravention of terms and conditions of the contract, the defendant sent a legal notice dated 10.08.2010 to the plaintiff claiming possession of the suit property. Even though the property of the plaintiff had not been sold, he sent a reply dated 20.08.2010 to the defendant asking him to accept the balance sale consideration and execute the sale deed in respect of the suit property in his favour on 7.9.2010 before the Subregistrar on the other hand the defendant Sh. [ENTITY] Vs Sh. [ENTITY] 10/28 has raised the plea that the agreement dated 17.06.2003 had become void since it was contingent contract and it is plaintiff himself who failed to perform his part of the obligations. It is also the stand of the defendant that time was essence of the performance of the contract and was to be completed by 31.07.2003 thus the plaintiff having failed to perform his part of the contract in time is not entitled to relief of specific performance or injunction as sought for.
At the very outset, it is pertinent to mention that the defendant has admitted his signatures on the agreement to sell and purchase dated 17.06.2003, the receipt of payment dated 17.06.2003 and the possession slips dated 17.06.2003 Exhibited as PW1/2, Ex PW1/3 and Ex PW1/4 respectively, during the course of the admission denial of documents on 10.10.2011 before my ld predecessor. Although it is contended by the defendant that he had signed on blank paper and the plaintiff fraudulently got prepared the said documents undisputably the defendant admits the execution as well as signatures on the said documents. The only contention of the defendant is that he had signed on blank paper and the plaintiff fraudulently got prepared the aforesaid documents. Thus the onus had shifted upon the defendant to prove the alleged fraud committed by the Sh. [ENTITY] Vs Sh. [ENTITY] 11/28 plaintiff. On the perusal of the said documents. The same bears the signatures of the defendant and it is highly improbable that the defendant who is a literate person and even can understand a bit of English Language as is admitted by him in his crossexamination dated 27.07.2003 signed the documents without knowing the contents. Further on the perusal of the agreement in dispute dated 17.06.2003 it prima facie appears that the defendant initially was signing at the space provided for second party and then after that he signed at the space provided for the first party. The over writing/scribing is amply evident. It is pertinent to mention that the said signatures one duly admitted by the defendant during the course of the admission denial on 10.10.2011. Thus when words first party and second party were duly printed it is highly improbable that other pages of the agreement which also include page of stamp paper were left blank. Further the defendant admitted receiving the amount of Rs. 10,000/, 30,000/, 20,000/ on the documents Ex PW1/3 which is the receipt. The said lines of receipt receiving the said amount have been written in hand. If going by the version of the defendant the entire documents was left blank then if while receiving the amount of Rs. 60,000/ in total why the defendant would have acknowledged his receipts. As such not an iota of oral and Sh. [ENTITY] Vs Sh. [ENTITY] 12/28 documentary evidence has been adduced by defendant to prove the alleged fraud committed by the plaintiff.
Further the plaintiff vide the testimony of PW1 has proved that in order to set up his office, he purchased built up half portion consisting of one room (11'x11') with balcony and common passage situated on the first floor forming part of Janta Flat no. D7/9, Sector 6, Rohini, Delhi on 1.11.2002. However, in June, 2006, the defendant came in contact with the plaintiff and offered to sell the suit property to him as he was in dire need of Rs. 1 lac before 31.07.2003. After negotiations, an agreement to sell and purchase dated 17.06.2003 was executed between the parties and it was agreed that out of the total sale consideration of Rs. 2,25,000/ a sum of Rs. 1 lac shall be paid by the plaintiff on or before 31.07.2003 and the balance consideration amount of Rs. 1,25,000/ shall be paid from the sale proceeds of the property purchased by the plaintiff on 1.11.2002, as and when the same shall be paid, whereupon the sale deed in respect of the suit property shall be executed by the defendant in favour of the plaintiff. In pursuance to the terms and conditions of the agreement, the plaintiff paid a sum of Rs. 1 ac to the defendant which was duly acknowledged by him and the plaintiff was put in possession of the suit property. In contravention of terms and Sh. [ENTITY] Vs Sh. [ENTITY] 13/28 conditions of the contract, the defendant sent a legal notice dated 10.08.2010 to the plaintiff claiming possession of the suit property. Even though the property of the plaintiff had not been sold, he sent a reply dated 20.08.2010 to the defendant asking him to accept the balance sale consideration and execute the sale deed in respect of the suit property in his favour on 7.9.2010 before the Subregistrar. Eventually the plaintiff was constrained to file the suit.
Further the plaintiff proved vide the testimony of PW2 Sh. [ENTITY] who is the witness of the said agreement to sell to show that the document was duly executed and signed by both the parties in his presence. Upon the suggestion given by the ld counsel for the defendant during the course of the crossexamination of the witness PW2 blankly and vehemently refused the suggestion that he was not the witness of the said documents and that the defendant did not go through contents of document in his presence. In fact he categorically stated that both the parties discussed the matter, went though the documents and signed the same in his presence and the relevant portion of his crossexamination is being reproduced herein.
Both the parties discussed the matter, go through the Sh. [ENTITY] Vs Sh. [ENTITY] 14/28 documents and signed the same in my presence. It is incorrect that I was not the witness of the documents Ex PW1/2 to Ex Pw1/4 or defendant did not go through the documents in my presence.
Thus the plaintiff has duly proved the execution of the agreement to sell, receipt and possession slip Ex as PW1/2 to PW1/4. Further the defendant himself admitted his signatures on the said documents. His allegations that the same were blank and got fraudulently prepared by the plaintiff does not find any support in the absence of any oral or documentary evidence on the adduced on behalf of the defendant in this regard. At this stage, it is imperative to note the legal proportions in a suit for specific performance filed by the plaintiff. It is settled law that plaintiff must prove that he is ready and willing to perform his part of the obligations.
In a recent judgment of the Hon'ble Supreme Court, i.e. [PRECEDENT] the concept of readiness and willingness in a suit for specific performance was explained thus:
"The words "ready" and "willingness" imply that the person Sh. [ENTITY] Vs Sh. [ENTITY] 15/28 was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
In [PRECEDENT], Hon'ble Supreme Court held: (SCC pp. 11718) " 5
[SECTION] of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of Sh. [ENTITY] Vs Sh. [ENTITY] 16/28 the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
In [PRECEDENT] Hon'ble Supreme Court observed : (SCC p. 654, Date of decision 28th July, 2004 (2004) 6 SCC 6 & 9 held:
It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and Sh. [ENTITY] Vs Sh. [ENTITY] 17/28 willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale." [SECTION] of the [ACT] mandates "readiness and willingness" on the part plaintiff and it is condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff. It has been considered by Hon'ble Supreme Court in R.C. Chandiok v. Chuni Lal Sabharwal 1971 SCR (2) 573 that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the Sh. [ENTITY] Vs Sh. [ENTITY] 18/28 facts and circumstances relevant to the intention and conduct of the party concerned."
In the present case, from the testimony of PW1 the plaintiff has duly proved that the agreement to sell receipt and possession slip had been executed on 17.06.2003. That in terms of the said agreement the plaintiff also took possession of the suit property which is duly admitted by the defendant in his crossexamination. The same is also proved by the photographs EX PW1/5 which is established the possession of the plaintiff at his office and although the mode to proof of the said photographs by ld counsel for the defendant at the time of evidence of PW1, but his testimony could not be controverted on the said point. Further the plaintiff has adduced the testimony of PW3 had brought the statement of account which is Ex.
PW1/14 of the plaintiff to show that he has sufficient funds to pay the balance sale amount. The plaintiff also proved the cheque EX PW1/15 in the name of the defendant for the remaining amount of sale consideration for a sum of Rs. 1,25,000/. The testimony of the plaintiff on this aspect remained uncontroverted and it can be safely said that his readiness and willingness in the light of the case law led above can be inferred of performing his part of the contract.
Sh. [ENTITY] Vs Sh. [ENTITY] 19/28 The next aspect which calls for the consideration is point raised by the defendant that whether the said agreement to sell being allegedly contingent to the fact that event of the sale of first property at Sector6, Rohini, bearing forming part to Flat no. D7/9 did not take place and hence contract became void and unenforciable.
The relevant provisions of the [ACT] are as follows [ACT] [SECTION]31. "Contingent contract" defined A "continent contract" is a contract to do or not to do something, if some event, collateral to such contract, does nor does not happen. [SECTION]. Enforcement of contracts contingent on an event happening.Contingent contracts to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has happened. If the event becomes impossible, such contracts become void.
A bare reading of the above provisions makes it clear that the contingent contracts become void only if the condition prescribed in the contract becomes impossible. In the recent decision in J.P. Builders v a.
Sh. [ENTITY] Vs Sh. [ENTITY] 20/28 Ramdas Rao 2011 (1) SCC 429 Hon'ble Supreme Court clarifies that " the occurrence of an event, occasioned by a parties unwillingness to perform something, does not clothe it with the right to claim that the contract was rendered void for the reason of the contingency envisioned by the parties, not happening."
It is not the case of the defendant that the sale of property purchased by the plaintiff on 1.1.2002 has been become impossible either due to destruction thereof or by enactment of any law. If so, the contention of the counsel for the defendant that the contract between the parties is void can not be accepted.
The next contention raised by the defendant was that time was essence of the contract and that since the agreement to sell and purchase dated 17.06.2003 was executed between the parties and the plaintiff failed to pay balance consideration amount for a period of more than 7 years, the suit for specific performance of the said contract become barred by limitation.
On the perusal of the agreement dated 17.06.2003 Ex PW1/2 there was no apparent time of the performance of the contract which was Sh. [ENTITY] Vs Sh. [ENTITY] 21/28 fixed there is no specific date for the performance which has been mentioned nor could be inferred from the conduct or intention of the parties. The defendant alleged that he and his wife repeatedly requested the plaintiff to perform the contract. Not an iota of oral and documentary evidence have been adduced on behalf of the defendant in this regard nor any document nor any particular date or even in which manner/oral, in writing or in terms the alleged the said requests had been made is either proved or even averred in the WS. The only document legal notice dated 10.08.2010 EX as PW1/6 has been filed. But plaintiff duly replied the same. It is pertinent to mention that no document has been proved nor relied upon by the defendant witness.
In these circumstances, on substantive reading of the agreement to sell as well as intention of the parties, it is clear that the time was not essence of the contract as when a particular property (Flat no D7/9) would be sold would depend upon various variable factors including market fluctuations, availability of the purchasers, suitability of the said property, its location etc., and such variable factors as such in common parlance can not be clutched with specific time limit.
At this stage, it is pertinent to quote [SECTION] of the Sh. [ENTITY] Vs Sh. [ENTITY] 22/28 [ACT]. It provides that if no specific date for performance of a contract is fixed, the period of limitation for filing the suit for specific performance of a contract shall be three years from the date when the plaintiff has noticed that the performance is refused by the defendant. In the present case since legal notice EX PW1/6 dated 10.08.2010 was signed by the defendant and the plaintiff has filed the present suit dated 29.09.2010. It is clear that the present suit has been duly filed well before within the period of limitation.
Further the defendant has admitted the case of the plaintiff and relevant portion of the crossexamination of DW1 is reproduced herein "it is correct that Ex PW1/3 is receipt of part consideration with regard to the aforesaid agreement to sale Ex. PW1/2. It is correct that vide Ex PW1/3. I accepted part consideration in the sum of Rs. 40000/ on 17.06.2003, Rs. 10000/ on 6.7.2003, Rs. 30000/ on 9.7.2003 and another Rs. 20000/ on 15.07.2003. It is correct that while receiving the part payments on 17.06.2003. I have not stated in the receipt that the final payment must be received on or before 31.07.2003. It is correct that in the possession slip also I have not stated that Sh. [ENTITY] Vs Sh. [ENTITY] 23/28 the final payment must be received on or before 31.07.2003. It is correct that till today I have not complained to the sub registrar concerned that the plaintiff had manipulated the receipt of appearance dated 7.9.2010 it is correct that I did no make any written complaint to electricity department/company raised the grant of electricity connection to the plaintiff. It is correct that the plaintiff did not enter into the suit premises forcibly It is correct that I have not filed any suit for recovery of penalty against the plaintiff. It is correct that the there is no penalty clause in Ex PW1/2. It is correct that I have never filed any police complaint, FIR or complaint case before any criminal court against the plaintiff regarding Ex PW1/2. (Agreement to sell) "
Thus what emerges from the findings above is that there was valid agreement to sell and purchase dated 17.06.2003 executed between the parties for which the plaintiff performed his part of the obligations by making part payments and also got possession of the suit property and that further he is ready and willing to pay remaining sale consideration and that he not only has intention but even the sufficient funds to do the same.
Sh. [ENTITY] Vs Sh. [ENTITY] 24/28 Further DW1 is his crossexamination has made glaring admissions to the effect that admittedly he has handed over the possession of the suit property to the plaintiff that he has even received part payment of the transactions. There is no avernment by the defendant that the final payment was to be received by a particular date 31.07.2003 in the present case. It is further admitted that even the possession slip does not say that the date of final payment. Further if as per the version of the defendant the plaintiff after repudiation of the contract had been illegally in possession of the suit property, it is pertinent to mention that defendant admittedly never filed any police complaint nor pleaded for forfeiture of the part payments or earnest money nor file any suit for possession qua the suit property till date. Thus it is clearly speaks of the intention of the parties.
In view of these findings issue no. 1 is decided in favour of the plaintiff and issues no. 5,6, 7 are decided in favour of the plaintiff against the defendant.
Issue no. 2. Whether the plaintiff in entitled for decree of permanent injunction, as prayed? OPP This onus to prove this issue upon the plaintiff. In view of the findings issues no 5,6 and 7 as above the plaintiff is entitled to the Sh. [ENTITY] Vs Sh. [ENTITY] 25/28 consequential relief of injunction as prayed for and hence issue is decided in favour of the plaintiff.
Issue no. 3 Whether the suit is liable to be dismissed U/[SECTION] [ACT]?
OPD Issue no. 4 Whether the suit of the plaintiff is barred U/[SECTION] of [ACT]? OPD This onus to prove these issues was upon the defendant. The defendant had alleged that there was no cause of action against the defendant that further plaintiff is not entitled to the equitable relief as his conduct is allegedly unfair and dishonest and that he illegall wants to usurp the suit property of the defendant. In view of the findings issue no. 1,5,6,7 as discussed above, it is clear that the plaintiff has been able to make out the cause of action against the defendant and further the defendant has not led an iota oral and documentary evidence to show that plaintiff has been dishonest in his conduct. On the contrary, as it discussed above in my findings the plaintiff has always been ready and willing to perform his part of the contract and in fact has incurred the lot of expenses in the renovation of the suit property and thus in the absence of any evidence on behalf of the defendant these issues are decided in favour of the plaintiff against the Sh. [ENTITY] Vs Sh. [ENTITY] 26/28 defendant.
Thus in view of aforesaid observations and findings the plaintiff is entitled to a decree in his favour. The total sale consideration amount is agreed between the parties was Rs. 2, 25,000/ out of which the plaintiff has proved that and admittedly so that a sum of Rs. 1,00,000/ as per admitted agreement of sale Ex. PW1/2 had been paid by the plaintiff to the defendant. The balance consideration amount would be paid by the second party to the first party i.e. by the plaintiff to the defendant against receipt and as per clause 3 of the said agreement the sell purchase documents with respect to the said property would have to be executed and registered by the first party i.e. Defendant in favour of the plaintiff thereafter at the time of the receipt of full sale consideration amount. The agreement had been executed between the parties in the year 2003. The judicial notice be taken to the the fact that the suit property which exists in sector9, Rohini has appreciated in value during the course of the past 12 years.
Relief: With these observations, the suit of the plaintiff is decreed and he is entitled to the decree of specific performance of agreement dated 17.06.2003 entered into with defendant. The plaintiff is directed to deposit Sh. [ENTITY] Vs Sh. [ENTITY] 27/28 the balance sale consideration amount along with 12 % interest per annum on the said amount with effect from 2003 till date in the court treasury as per rules which may be done by the plaintiff within one month of the passing of the decree and thereafter the defendant shall execute the sale documents in favour of the plaintiff and do all acts necessary to transfer the suit property by executing necessary documents in favour of the plaintiff within two months thereafter. In the meanwhile, the defendants are also restrained from creating any third party interest in favour of any other persons qua the suit property bearing no i.e. built up room/shop no. 3 (approximately 7'x12') situated on the first floor forming part of the flat no. 72/1, Pocket D12, Sector 7, Rohini, Delhi and also restrained from dispossessing the plaintiff without due process of law. Parties to bear their own cost of litigation. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 20.01.2015 ([ENTITY]) CIVIL JUDGE (NORTH) [ENTITY],DELHI/20.01.2015 Sh. [ENTITY] Vs Sh. [ENTITY] 28/28 CS No:219/13 Sh. [ENTITY] Vs [ENTITY] 20.01.2015 Present: None.
Vide this separate judgment even date the suit of the plaintiff is decreed and he is entitled to the decree of specific performance of agreement dated 17.06.2003 entered into with defendant. The plaintiff is directed to deposit the balance sale consideration amount along with 12 % interest per annum on the said amount with effect from 2003 till date in the court treasury as per rules which may be done by the plaintiff within one month of the passing of the decree and thereafter the defendant shall execute the sale documents in favour of the plaintiff and do all acts necessary to transfer the suit property by executing necessary documents in favour of the plaintiff within two months thereafter. In the meanwhile, the defendants are also restrained from creating any third party interest in favour of any other persons qua the suit property bearing no i.e. built up room/shop no. 3 (approximately 7'x12') situated on the first floor forming part of the flat no. 72/1, Pocket D12, Sector 7, Rohini, Delhi and also restrained from dispossessing the plaintiff without due process of law.
Sh. [ENTITY] Vs Sh. [ENTITY] 29/28 Parties to bear their own cost of litigation. Decree sheet be prepared accordingly. File be consigned to record room. ([ENTITY]) CIVIL JUDGE [ENTITY] Sh. [ENTITY] Vs Sh. [ENTITY] 30/28