. > * IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA 45/2010 Date of Decision: April 07,2010 KHEM CHAND Appellant Through: Mr. SatishcWd Gupta,Adv. versus TEKARAM Respondent Through: Nemo. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ? JUDGMENT ARUNA SURESH, J. (Oral) CM APPL.4111/2010 (delay) and 4112/2010 (delay in refiling) There is a delay of 171 days in filing the appeal and another 14 days delay in refiling the appeal. For reasons stated in the applications, delay in filing as well as refiling the appeal is hereby condoned. RSA 45/2010 Page 1 of? Digitally Signed By:AMULYA Signature Not Verified Applications stand disposed of accordingly. RSA 45/2010 1. Appellantherein was the ownerof propertyNo.1809,bearing Khasra no.128 (New) and 431 (Old), Khatoni No.293, measuring 350 Sq.Yds., situated in Panna Mamurpur,Narela Delhi.'He entered into an Agreement to Sell dated 18.7.1995 with the Respondent for a consideration of Rs.2,00,000/- Respondent paid a sum of Rs.1,00,000/- as eamest money at the time of execution of the Agreement to Sell. As per the Agreement, Sale Deed was to be executed within a period of IV2 years from the date of execution of the Agreement to Sell on payment of balance sale consideration amount. At the time of execution of Agreement to Sell, appellant had handed over the original Title Deeds of the property as well as possession of the property to the Respondent. However, appellant failed to execute the Sale Deed in terms of the Agreement to Sell though Respondent was ready and willing to pay the balance amount of Rs. 1,00,000/-. 2. Appellant apparently refused to execute the Sale Deed because of appreciation in value of the suit property over a period of 1V2 years. Respondent accordingly filed a suit for specific performance of Agreement to Sell dated 18.7.1995. Trial Court while decreeing the RSA 45/2010 Page 2 of? claim of the Respondentfor specificperformanceobserved " The plaintiff as PWl has deposed that he had been asking the defendant to obtain the necessary permission and execute the documents in respectof the propertyin his favour but the defendant has failed to do so. In support of his case, the plaintiff has examined Sh. Tara Chand as PW3 who has deposed that he along with plaintiff had met the defendant on 01.01.97 and had asked for the execution of the sale deed after receiving the remaining amount of Rs. 1,00,000/-. The PWl has further deposed that he served a legal notice dated 15.01.97 upon the defendant intimating him that the balance sale consideration of Rs. 1,00,000/- was ready with him for execution and registration of the sale deed but inspite of the service of the said notice, the defendant neither gave any reply nor executed the sale deed in respect of the property in favour of the plaintiff The PWl has placed and proved on record the copy of the legal notice dated 15.01.97 along with UPC and Postal Receipt as Ex.PWl/C to PWl/E. The defendant has failed to deny the receipt of the said notice from the plaintiff his WS. Though the defendant has averred that he had been asking the plaintiff to pay the balance consideration amount but he has failed to place on \^j record any document in support of his averments. In fact, the defendant has failed to specify the dates on which he approached the plaintiff for the said purpose. Althou^in his testimony,the defendant has deposed that he approached the plaintiff thrice i.e. RSA 45/2010 Page 3 of? 15.12.96, 18.12.96 and 20.01.97, for the said purpose but needless to say, the above deposition of the DWl is beyond pleadings. The DWl admitted in his cross examination that he neither issued any legal notice to the plaintiff nor filed any suit for cancellation of the agreement to sell dated 18.07.95. It has been held by the Hon'ble Supreme Court in P.G. Tanwade Vs. G.B. Kadam reported as AIR 1997 Supreme Court 463 that when in the plaint, the plaintiff averred that he had sent registered notice to the seller to execute the sale deed and that he is willing to pay fees required for sale deed and costs of registration and the balance amount of sale deed and repeated such averments in evidence, the plaintiff had succeeded in proving his readiness and ^ willingness to perform his part of the contract. From the above, it is evidence that the plaintiff had been ready and willing to perform his part of the contract whereas the defendant has failed to substaiitiate the defence putforth by him. Accordingly, the above issues are decided in favour of the plaintiff and against the defendant. RELIEF: In the light of the above fmdings, the suit of the plaintiff is hereby decreed with costs. The plaintiff is directed to pay to the defendant or deposit in the Court the remaining consideration of Rs. 1,00,000/- within one month from today. On the deposition of the above amount by the plaintiff,' the defendant shall execute the sale deed in respect of the property bearing Khasra No. 128 (New) 431 (Old) Khatoni No.293, Property No.1809 measuring 350 sq. RSA 45/2010 Page 4 of? yards. Situated in Panna Mamurpur, N^ela, Delhi and get the same registered in favour of the plaintiff within one month thereafter " 3. Appealfiledby the appellantchallengingthejudgmentand decreeof the Trial Court dated 11.09.2006 was dismissed as barred by period of limitation. 4. It was also observedby the AppellateCourt that possessionof the suitpropertyhavingbeentakenoverby the Respondentinexecution proceedings,the executionstood satisfied.Under the circumstances, the AppellateCourt was of the opinionthat appellanthad failed to ' satisfy the conscience of the Court as to how he could seek . indulgenceofthe Courtto ignorethe law oflimitationinentertaining the appeal,whichontheface ofitwas withoutany merits. 5. Learned counsel for the appellanthas submitted that Agreementto Sell dated 18.7.1995is voidab initioas in the said Agreementto Sell descriptionofthe propertyis incorrectthough, propertynumber is rightly written. The appellant had inadvertently signed the Agreementto Sell being old aged personhavingweak eye sight on the presumptionthat the documentcontainedtrue descriptionofthe suit property. He has submittedthat descriptionof property No. 1809 which find mention in the Agreement, in fact pertains to RSA45/2010 Pages of7 being additional evidence cannot be taken into consideration by this Court. 8. As discussed above, it is a settled principle of law that once execution of a document has been admitted before the Court below and the said court has based its findings on the relevant documents i.e. Agreement to Sell, the appellant cannot argue before this Court that there was an error in the document which the court below overlooked especially when no such defence was raised at the initial stage. 9. Under the circumstances of this case, no substantial question of law is required to be formulated as none arises. 10. Hence, I find no merits in the appeal, the same is accordingly dismissed. APRIL 07,2010 vk (ARUNA SURESH) JUDGE RSA45/2010 Page? of? 7-A