IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Suit No. 55 of 2000 Decided on: June 14, 2010 Shanker Singh and others Plaintiffs Versus M/s Kuthiala Builders Pvt. Ltd. and another Defendants Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Plaintiffs: Mr. Bhupender Gupta, Senior Advocate, with Ms. Charu Gupta, Advocate. For the Defendants: Mr. J.S. Bhogal, Senior Advocate, with Mr. Suneet Goel, Advocate Justice Dev Darshan Sud,J. The plaintiffs pray for a decree of possession of land comprised in Khasra Nos. 471, 475, 476, 482, 484, 485, 486, 487, 488, 489, 490, 491, 494, 472, 473, 474, 479, 493 and 495, entered in Khewat No. 40, Khatauni Nos. 51 to 53, corresponding to old Khasra Nos. 216, 216/3 and 216/4, situated in Up-Mohal Chhota Shimla Khas, Mohal Station Ward Chotta Shimla, Tehsil and District Shimla H.P. and a decree for permanent prohibitory injunction and restraining the defendants from raising any construction over the land 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. in any manner whatsoever either personally or through their servants, agents etc. 2. The case, as pleaded by the plaintiffs, is that S/Shri Bhagat Singh, Piara Singh and Didar Singh, sons of Shri Basant Singh were co owners-in-possession in equal shares of the property, known as Pine Cottage, Chhota Shimla, consisting of a built-up structure and open land. Defendant No. 1, which is a company incorporated under the Companies Act, 1956, through its Director Bal Krishan Kuthiala signed an agreement for the purchase of this property. Accordingly, on 5th January, 1991 an agreement was entered into for a consideration of Rs. 30 lacs. The property, agreed to be sold, was measuring 8101.04 Sq. yards in Khasra Nos. 216, 216/3 and 216/4, entered at Khewat No. 199, Khatauni No. 776 entered in jamabandi for the year 1976-77, situated in Mauza Station Ward Chhota Shimla, Tehsil and District Shimla, H.P. 3. The plaintiff acknowledged and accepted that defendants paid only Rs. 3 lacs on 5th January, 1991 and agreed to pay the balance amount of Rs. 27 lacs in instalments. This agreement was again modified on 13th January, 1994 on certain terms and conditions. The case of the plaintiffs in nutshell is that without honouring the agreement, the defendants started building up on the structure, depriving the plaintiffs of their legitimate rights. Accordigly, a decree, as noticed above, was prayed for. 4. The suit was resisted by the defendants who alleged that they were always ready and willing to purchase the land under the agreement between the parties and are still prepared to pay the price. The execution of the agreement is admitted by the defendants. Subsequently, the defendants filed amended written statement stating therein that supplementary affidavit, dated 6.1.1991, executed between the parties, had not been brought to the notice of the counsel. According to this agreement, the parties had materially altered the previous agreement. 5. On the pleadings of the parties, this court settled the following nine issues on 30.4.2001:- 1. Whether the suit as framed is not maintainable, as alleged, if so, its effect ? OPD 2. Whether the defendants are and always have been ready and willing to purchase the suit property in terms of the agreement, as alleged, if so, the effect thereof ? OPD 3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so, what is the correct valuation and its effect ? OPD 4. Whether the plaintiffs have not approached this Court with clean hands, as alleged, if so its effect ? OPD 5. Whether the suit is bad for non-joinder of necessary parties, as alleged, if so, who are such parties and its effect ? OPD 6. Whether the defendants have committed breach of stipulations and conditions of the agreements, as alleged, if so its effect ? OPP 7. Whether the time was the essence of the contract, if so, what is its effect ? OPP 8. Whether the plaintiffs are entitled to recover damages from the defendants, as alleged, if so, to what amount ? OPP 9. Relief 6. Evidence was led on behalf of the parties. The burden of issues No. 6, 7 and 8 was on the plaintiffs and on the other issues, it was on the defendants. In support of their respective contentions, the plaintiff appeared as PW-1 and PW-2 Sada Singh, son of Biru, who was Head Clerk in the office of Government of India Press, was produced. ISSUE NO. 1 7. The case set up is that the suit, as filed, is not maintainable. To establish this, learned counsel appearing for the defendants relies basically on the documents, which are Ex. PW-1/A, agreement, dated 5th January, 1991, Ex. PW-1/B, agreement, dated 13th October, 1994. These are the two vital documents on which the respective case of the parties is based. By the first agreement, it is agreed upon between them that the land measuring 8101.04 Sq. yards, as noted above, has been agreed to be sold to the defendants. The condition on which the agreement is based contains in Clause 4 of the agreement. Clause 3(i) acknowledges the receipt of Rs. 3 lacs by the plaintiffs. Clause 3(ii) states that a sum of Rs. 24 lacs will be paid by the defendants in instalments with the last instalment to be paid by September, 1994. Another stipulation contained in this clause says that the defendants can clear the payment earlier than the stipulated date. Thereafter, the second agreement, which is executed between the parties on 13th October, 1994, requires to be noticed as it changes the complexion of the first agreement altogether. After noticing that the first agreement, Ex. PW-1/A fixes the consideration at Rs. 30 lacs, out of which a sum of Rs. 3 lacs has been received and that balance of Rs. 24 lacs was to be cleared by September, 1994 and the remaining 3 lacs at the time of registration, it also accepts that the vendor had put vendees in possession of the land so that necessary plan etc. could be prepared. Clause 5 requires to be noticed in detail as these are the conditions which became binding on the parties. It reads as follows:- “5. Because of administrative complications, it has not been possible for the vendee to get the maps approved from the appropriate authorities and, therefore, the vendee has made a request to the vendor for the extension of time. Vendors have considered the request and have agreed to grant extension of time till September, 1996 on the following terms and conditions:- (a) Vendor will be paid by the vendee a consideration of Rs. 33 lacs instead of Rs. 30 lacs already agreed. (b) It will be endeavour of the vendee to clear the payment of Rs. 27 lacs by 30th of September, 1996, but in case vendee fails to do so then vendor will be entitled to charge interest on the belated payments at the prevailing FDR bank rate interest. However, interest will be payable only if the payment is delayed beyond 31st of March, 1997. (c) Interest will start running from 1st of April, 1997 on the belated payments only. (d) Balance amount of Rs. 3 lacs will be paid by the vendee to the vendor at the time of registration of conveyance deed before the Registrar. (e) Other terms of the agreement except the one superseded here will be governed by the agreement dated 5th day of January, 1991.” 8. What requires to be noticed is, that by way of clause `b’, as reproduced above, the conditions regarding the last date on which the payment was to be made is not mandatory, but it contained stipulation that in case a vendee fails to pay the amount by 30th September, 1995, the defendants will be liable to pay interest at the prevailing FDR bank rate. Another relaxation is given that such interest will be payable if it is beyond 31st March, 1997. 9. There is no dispute that these agreements have in fact been signed and acted upon. In these circumstances, it is urged by the learned counsel appearing for the defendants that two decrees, namely one for possession and second for permanent prohibitory injunction cannot be granted. Such right has specifically been abandoned/given up by the plaintiffs by agreeing to the condition of acceptance of interest for payments made beyond 31st March, 1997. 10. Learned counsel for the plaintiff urges that the defendants having failed to make any payment, the plaintiffs cannot be deprived of the use of their property and the defendants cannot be allowed to reap the benefits of its unlawful acts by unjustly enriching at the cost of the plaintiffs. The primary rule for interpretation of documents is that the written contract is to be read unless there is some ambiguity which requires to be filled in/supplied by the parties to the contract or by an interpretation to be placed on the document by the court. From a reading of two agreements, namely PW-1/A and Ex. PW-1/B, I find that the plaintiffs are not entitled to the reliefs in the form as they have been framed. But, that is not to say that the plaintiffs are not entitled to any other relief. Holding that would be to enforce the principle of unjust enrichment. It has been clearly stipulated and agreed by the parties that on the payment made beyond 31str March, 1997, the plaintiff would be entitled to interest thereon. I accordingly hold that though a relief as claimed by the plaintiffs of the return of the land as also the decree for permanent prohibitory injunction, cannot be granted. The plaintiffs would be entitled to interest for the amount of Rs. 27 lacs beyond March, 1997. This issue is decided accordingly. ISSUE NO. 2 11. The only evidence on this issue is that of the plaintiffs and of the defendants. When the defendant appears in the court, he has stated that defendants never rescinded or refused to honour the agreement and the only reason why the suit has been filed is that the prices have gone up and the plaintiffs are, therefore, seeking to resile from the agreement and are claiming possession of the land. There is no evidence on the record that any attempt was made by either party to demand or actually tender any payment towards the balance consideration. Beyond the statements, there is no documentary evidence on record. I accordingly hold that defendants have been able to establish their inclination to pay the balance amount. ISSUE NO. 3 12. There is no evidence on record to establish to fix court fee on Rs. 30 lacs. This issue is, therefore, decided in favour of the defendants and against the plaintiff ISSUE NO. 4 13. There is no evidence on this issue. On the evidence on record, it cannot be said that the plaintiffs have not made a complete disclosure of the facts, especially when the agreements on which both the sides places reliance have been proved on record. This issue is, therefore, decided in favour of the plaintiff and against the defendants. ISSUE NO. 5 14. There is no evidence that any of the parties, who are necessary to the decision of the suit, have not been impleaded. ISSUES NO. 6, 7 and 8 15. These issues are being taken up together for discussion. While deciding issue No. 1, I have held that two agreements PW-1/A and PW-1/B constituted the crux of the entire contractual relationship between the parties. I do not find anything in the evidence of PW-1 to hold in any manner to establish that any attempt was made by the plaintiffs to ask the defendants to complete his part of the agreement. There is no breach of the conditions, as alleged for the reason that by the second agreement, PW-1/B, the defendants themselves have agreed to a stipulation for balance consideration beyond 31st March, 1997. In other words, stipulation is irrespective of what happens between the parties. The balance consideration can be paid at the sweet will and at the pleasure of the defendants, subject to only condition that the amount was to carry interest. It clearly discloses intention of the parties and that for the unpaid consideration, it would in fact be carrying interest at the bank rate. In these circumstances, I hold that time was not the essence of the contract. On the question of entitlement of the plaintiffs, I hold that the plaintiffs are entitled to interest at the rate of 10% per annum. I have awarded this amount on averaging the interest which was payable on FDRs for the period 1997 and beyond. Issues No. 6 and 7 are decided against the plaintiffs and in favour of the defendants. RELIEF 16. The suit of the plaintiffs is decreed. The plaintiffs shall be entitled to a sum of Rs. 30 lacs which is the balance consideration to be paid by the defendants to the plaintiffs as on 30.10.1994. The amount was to be paid with interest if the payment delayed beyond 31.3.1997. Accordingly, the plaintiffs would be entitled to simple interest at the rate of 10% per annum from 30.9.1996 till the actual payment. The plaintiffs shall also be entitled to costs of the suit. A decree in terms of the judgment shall be drawn up. ( Dev Darshan Sud), June 14, 2010(K) Judge