JUDGMENT
Usha Mehra, J.
(1) By this suit, Sardar Niranjan Singh has sought enforcement of the agreement to sell entered into by him with late Smt. ParkashWati. It is alleged that Smt. Parkash Wati had avoided to perform her part of theagreement, hence the plaintiff is forced to file the suit for specific performance and in the alternative for a decree for damages amounting to Rs. 3,45,000.00Along with interest.
(2) The case as set up in the plaint is that Smt. Parkash Wati entered into an agreement to sell dated 30/03/1980 with the plaintiff for the sale of her single store house bearing No. 26, Road No. 70, -Punjabi Bagh, New Delhi ford measuring 361.43 sq. yards for a total consideration of Rs. 3,45,000.00. Plaintiff paid a sum of Rs. 10,000.00 as earnest money on 17/03/1980 vide cheque drawn on Syndicate Bank at Punjabi Bagh, New Delhi. The said amount was duly encased by Smt. Parkash Wati through her son Shri Harbans Lal (defendantherein) on 18/03/1980. It was the term of the agreement that the necessary papers for registration will be completed and the registration would be done within three months from the date of the agreement, hence the plaintiff approached the defendant for signing the necessary forms and affidavits for grant of sale permission and Income Tax Clearance Certificate required for the sale of the house in question. He also requested the defendant to execute the sale deed.But Smt. Parkash Wati refused to sign any such papers. Ultimately, plaintiff served her with a notice dated 13/06/1980 asking her to appear on 16/06/1980before the Sub Registrar for registration of the sale deed. Smt. Parkash Wati instead of adhering to the terms of the contract sent false replies. She took wrong stand vide her letter dated 17/06/1980. The contentions and allegations made therein were refuted by the plaintiff by his legal notice dated 24/06/1980.Notices issued by the plaintiff were duly received by Smt. Parkash Wati but she falsely stated that the plaintiff had no funds and that it was his duty to obtain sale permission and Income Tax Clearance Certificate. These false allegations were made with the intention to avoid the execution of the sale deed. She intentionally refused to perform her part of the contract. The plaintiff had always been ready and willing to perform his part of the contract but the defendant avoided to do so.On account of non-performance of contract on her part he suffered losses.
(3) The defendant in her written statement denied the validity of the agreement. She took the plea that it was infact the plaintiff who failed to adhere to the stipulated terms of the agreement. Plaintiff was to pay the balance amount within three months from 17/03/1980 but he failed to pay the same within the stipulated period. There was oral understanding between the parties that the sale permission and Income Tax Clearance Certificate would be obtained by the plaintiff as Smt. Parkash Wati was an old woman hence the plaintiff took upon himself to obtain these permissions. Defendant was only to sign the documents in that regard as and when required by the plaintiff. She had always been ready to co-operate in this regard. But plaintiff avoided to obtain the permission because he had no funds to pay the balance amount, and thus committed the breach of the agreement. Defendant had always been ready and willing to perform her part of the contract. That is the reason in response to plaintiff’s letter dated 13/06/1980the defendant informed the plaintiff telegraphically on 16/06/1980 itself that she would be appearing before the Sub Registrar for registration of the sale deed.But it was the plaintiff who did not turn up. The defendant waited for the plaintiff in the office of the Sub Registrar on 16/06/1980 till 3.00 p.m. Plaintiff cannot take advantage of his own wrongs. Since, the prices of the property have goneup, therefore, he has filed this suit. He had in fact no funds to pay the balance price within the stipulated period of three months.
(4) Replication was filed by the plaintiff whereby he refuted the allegations made in the written statement. On the pleadings of parties, following issues were framed on 26/08/1981:1. Has defendant not agreed to sell the property in dispute to plaintiff under agreement of sale dated 17/03/1980?(onus placed upon the defendant in view of the admitted document dated 17/03/1980 on record).2. Has the plaintiff been ready and willing to perform his part of the agreement of sale?3. Has defendant been ready and willing to perform his part of theagreement of sale?4. Did the agreement dated 17/03/1980 not constitute as a full agreement of sale of which specific performance can be enforced?5. To what damages, if any, is the plaintiff entitled to.6. Relief. During the course of proceedings defendant Smt. Parkash Wati died. Vide Order dated 13/02/1984 her legal representatives were brought onrecord. Amended memo of parties was filed on 9/03/1984.
(5) I have heard learned Counsel for the parties and perused the oral and documentary evidence. I have given my thoughtful consideration to the relevant contentions raised at the Bar. My decision on the above issue? is as follows:-Issues 2 and 3:
(6) These two issues are interlinked and inter-connected and go to the root of the case, therefore, these are taken up together and disposed of first.
(7) In order to discharge the burden of the issue, the plaintiff appeared as his own witness as Public Witness 1. He tried to explain that he had funds and was ever ready and willing to perform his part of the contract. In order to strengthen his case that he was ready and willing, he proved a letter written by him to the defendant dated 13/06/1980 as Ex. P. 1 and another letter dated 24/06/1980 Ex. P. 3.According to him it was the defendant who being not interested to sell the house,went back from her agreement. She set up false plea vide her letter dated 1 7/06/1980 and 1/07/1980 Ex. P.2 and P.4 respectively. He proved the agreements Ex. P.6. According to him, the defendant was to obtain the necessary sale permission,whichshe did not obtain and secondly, she took false plea that the vacant possession was not to be delivered. By her letter dated Ex. P.4 she admitted that she could not deliver vacant possession as the same was in occupation of hersons. This shows she had no intention or she wanted to avoid to execute the saledeed. But when confronted in cross-examination he had to admit that the funds were not available with him. He did not withdraw the amount from any bank or that amount was available with him at his residence. He tried to explain it away by saying that he got it from “somebody”. When asked to furnish the name of that “somebody”, he could not give. He did not remember the name of that”somebody”. Mr. Sharma, Counsel for the defendant contended that from the answer of Public Witness I, it is amply clear that he had no funds with him as on 16/06/1980 when the defendant was called in the office of the Sub Registrar for the purpose of the registration of the sale deed. To strengthen the arguments, he dreamy attention to the testimony of HarbansLal,DW-l, who stated that on receipt of plaintiff’s letter dated 13/06/1980, received late in the evening of 15/06/1980, he telegraphically informed the plaintiff that the defendant would be reaching the office of the Sub Registrar Along with his mother Smt. Parkash Wati.He further testified that he Along with his mother late Smt. Parkash Wati did reach the office of the Sub Registrar on 16/06/1980, but plaintiff did not turn up.They waited for the plaintiff in the office of Sub Registrar till about 3.00 p.m. This fact was informed to the plaintiff vide letter dated l 7/06/1980, Exhibit P.2. The plaintiff did not even once asserted that he went to the office of the Sub Registrar on 16/06/1980. In this regard reference was made to plaintiff’s letter dated 24/06/1980, Exhibit P.3, wherein plaintiff has not denied the averments made by the defendant in his letter Exhibit P.2. This shows that the plaintiff had no funds to pay. From plaintiff’s cross-examination, it is amply clear that he had no funds available with him either at his residence or in the bank, nor he could furnish the name of the person from whom he borrowed this huge amount of Rs.3,50,000.00 and that too without interest.
(8) Mr. Sharma, Counsel for the defendant contended that in 1980 the amountRs. 3,50,000.00 was quite a huge amount. Nobody could have given this much amount to the plaintiff unless the person was very close to him. But plaintiff showed ignorance about that “somebody”. This shows he never borrowed that much amount from somebody nor that much amount was available with him. That is why he did not attend the Office of the Sub Registrar on 16/06/1980, for purposes of registration of the sale deed. This also proves that he had no funds with him. Plaintiff’s testimony that he was ready and willing, therefore, cannot be relied upon. Plaintiff admitted that he received the telegram sent by the defendant on 16/06/1980 but could not give any explanation as to why did not go to the office of the Sub Registrar. His assertion that he went to the office of the Sub Registrar on 16/06/1980, is most unconvincing and unreliable. He wrote Ex. P.3, dated 24/06/1980 after this incident wherein he never mentioned that he went to the office of the Sub Registrar. Whereas Har Bans Lal,DW I has proved by documentary as well as by his oral testimony that he Along with his mother late Smt. Parkash Wati went to the office of the Sub Registrar and waited for the plaintiff till 3.00 p.m. for the purposes of execution and registration of the sale deed. This finds support from defendant’s letter dated 17/06/1980 Exhibit P.2, which was written at the first available opportunity.In Ex. P.2 the defendant informed the plaintiff about their going to Sub Register’soffice and waiting for him till 3.00 p.m. Reply was sent by the plaintiff by ExhibitP.3 dated 24/06/1980 in which defendant’s assertions were not denied no writ was plaintiff’s case that he went to the office of the Sub Registrar on 1 6/06/1980. This shows that he never went to the office of the Sub Registrar on 1 6/06/1980 with money. Specific plea taken in para 4 of the notice. Exhibit P.2 had been vaguely denied vide Exhibit P.3. Therefore, so far as the assertion of the defendant, Dw I that he Along with his mother went to the office of Sub Registrar,to my mind, stands fully established from the uncontroverter and un rebutted testimony of Dw I coupled with the documentary evidence placed on record. It has also been proved by the testimony of Dw 1 Harbans Lal, that he had been meeting the plaintiff off and on and had been asking him to pay the balanceamount, because they needed the money for starting the business of Shamiana. It was for this purpose that his mother thought of selling the house, but the plaintiff avoided to pay the balance amount as he had no sufficient funds. At the relevant time there was no spurt in the prices of the property, therefore, the plaintiff was not interested to buy the house. According to Dw I, which fact has not been denied by plaintiff, that they are living in the neighborhood of each other and I had been meeting the plaintiff personally and making oral request for the balance amount. The plaintiff could not refute these assertions either by his testimony or by any cogent and reliable evidence. Harbans Lal’s testimony that he had been meeting the plaintiff and asking him to pay the balance amount and get the sale deed registered has remained unrebutted on the record. Plaintiff also could not prove by any cogent evidence that he had funds to pay or that he was ready and willing to perform his part of the contract.
(9) Mr. Subhash Wason, appearing for the plaintiff, however, took a plea that the defendant was to obtain Income Tax Clearance Certificate and since she failed to obtain the same, therefore, the sale deed could not be executed. This argument of Mr. Wason is without force because in the plaint it is plaintiff’s own case set up in the plaint that he was to get the necessary permission. Reference can be had to Para 3 of the plaint. The plaintiff in this para admit that he approached the defendant for signing the necessary forms and affidavit for grant of sale permission for the sale of the said property. This lend support to the version given by Harbans Lal, Dw 1 that permission was to be obtained by the plaintiff. The defendant was only to co-operate. The plaintiff appearing as Public Witness 1 nowhere stated that the defendant refused to sign the affidavit or the papers. On thecontrary, he took a somersault by alleging that permission was to be obtained by the defendant and since she failed to obtain so, hence contract stood frustrated.On the other hand Harbans Lal appearing as Dw I categorically stated that plaintiff never approached his mother or him for the purposes of her signatures on the forms or on the affidavits. This part of Dw Vs testimony has remained unrebutted and unrefuted. Admittedly, the term as to who would obtain the permission was not incorporated in the agreement Exhibit P.6. It is the case of the parties that this term was orally settled. In the absence of written term in theagreement, we have to rely on the oral testimony. According to the plaintiff and his witness Public Witness 2, it was orally agreed that the defendant will obtain the permission whereas according to the defendant, plaintiff undertook to obtain the necessary sale permission as the defendant was an old woman. The version given by defendant Harbans Lal appears to be more convincing and truthful. The testimony of the defendant Habans Lal in this regard can be trusted on two countsnamely, firstly his version is admitted by the plaintiff in para 3 of the plaint which undoubtedly corroborates what Harbans Lal has stated. Secondly, it finds support from defendant’s letters Exhibit P.2 and P.4. So far as the testimony of A.S.Wadhawan,PW2 is concerned, it cannot be relied. This oral term was not settled in his presence. Public Witness 2 admitted that obtaining of sale permission and Income Tax Clearance Certificate was settled between the parties prior to the execution of theagreement Ex. P.6, meaning thereby that that term was not settled in his presence.If any such term had been settled in his presence he would have reduced the same into writing in Exhibit P.6. He gave a very evasive reply as to why this term was not incorporated in Exhibit P.6. His explanation that parties never wanted him to incorporate this term shows that no such term was settled. His evidence in this regard is only based on hearsay.
(10) Mr. Wason contended that under law, duty to obtain sale permission and Income Tax Clearance Certificate is on the seller. To support his argument, he placed reliance on the decision of this Court in Sant Lal v. Shyam Dhaa’an,reported in Air 1986Delhi275. I am afraid this case is of no help to Mr. Wason.That was a case where it was stipulated in the agreement itself that the defendant would obtain sale permission from the D.D.A. as well as Income Tax ClearanceCertificate. That during the currency of the agreement, the plaintiff therein asked the defendant to obtain the necessary permission and also Income Tax ClearanceCertificate. But the defendant neither obtained the permission nor replied the notice and the repeated reminders sent by the plaintiff. When plaintiff filed the suit the defendant for the first time in the written statement took the plea that the defendant was the victim of misrepresentation by the plaintiff and that plaintiffhad no funds to purchase the property. It was in this background that the Courtopined, in the facts of that case, that the plaintiff had been ready and willing to perform his part of the contract but it was the defendant who frustrated thesame. That is, however, not the case in hand. On the contrary from the facts which have come on record and discussed above it is clear that the plaintiff had no funds as on 16/06/1980, and therefore, avoided to pay the balance amount within the stipulated period. This find support from the fact that he did not go to the office of Sub Registrar on 16/06/1980 inspite of asking the defendant to comethere. This shows he had no funds On the other hand, the defendant in order to perform his part of the contract and in order to ensure that the sale deed is registered went to the office of the Sub Registrar on 16/06/1980. Followed bya letter dated 17/06/1980, Ex. P.2, it is also proved from the oral and documentary evidence that the sale permission was not to be obtained by the defendant. This finds support from the documentary evidence discussed above coupled with the admission made by the plaintiff in para 3 of the plaint. The plaintiff has not been able to prove that the defendant refused to sign the forms and the affidavits for the purpose of enabling him to obtain the Income Tax Clearance Certificate. lnfact,from the unrebutted testimony of Dw 1 it is apparent that the plaintiff never approached the defendant for this purpose. The factum of defendant’s willingness is writ large from the documentary as well as oral evidence produced, namely, telegram dated 16/06/1980 followed by a letter Exhibits P.2 and P.4 respectively. The readiness and willingness of the defendant to perform her part of contract is apparent as contrast to the readiness and willingness of the plaintiff. Plaintiff’s financial position is apparent from his admission made in cross-examination when he admitted that he had no money with him at his residence nor he withdrew the amount from the bank.The”someone” from whom he took Rs. 3,50,000.00 without interest he could notname, therefore, it can be inferred that the plaintiff had no sufficient funds to pay the balance amount. Defendant cannot be blamed nor it can be said that it was the defendant who frustrated the contract. Even otherwise reading of Exhibit P.6shows it was for the plaintiff to obtain the necessary permission. Reference can be had to the term of the Exhibit P.6 which is reproduced as under:-“All expenses of stamp, registration, corporation tax or any other taxes forgetting the said plot of land/property transferred from my name to the name of the purchaser, shall be borne and paid by the purchaser”.(Underlining mine)
(11) From the reading of this para in Ex. P.6, the intention of the parties areapparent. It indicates that all expenses for obtaining sale permission and Clearance Certificate were to be borne by the purchase i.e. plaintiff herein. If the defendant was to obtain the necessary permission then the words “any other expenses of getting the plot transferred” would have been borne by the defendant.This expression appears to have been used in the agreement with reference to sale permission and Income Tax Clearance Certificate. Since, these permissions were to be obtained by the plaintiff, therefore, he had to bear the expenses for the same.This expression in the agreement Ex. P.6 read with para 3 of the plaint clearly establish the oral agreement between the parties as to who was to obtain the permission. As stated by Dw 1 the plaintiff did not approach the defendant either for signature on the papers or on the affidavits, therefore, there was no occasion for the defendant to have not co-operated with the plaintiff for obtaining the necessary permission. The plaintiff instead of performing his part of the contract within the stipulated period, filed a criminal case which wasdismissed. It is only when prices of the property went up in the market that he filed this suit. It is well settled that in cases of specific performance of a contract, it is for the plaintiff to prove readiness and willingness as a fact before he can succeed.This is a condition precedent to his success and the onus is heavily upon him. The acts and omission on the part of the plaintiff establish that he was never ready nor willing to perform his part of the contract and that he had no funds with him. The observation of the Supreme Court in the case of Indira Kaur v. Sheo LalKapoor, aptly apply to the facts of this case. It has been observed that the real test as to whether or not the plaintiff was ready and willing to perform his part of the contract was for the defendant to call for his bluff”. In the case inhand, the defendant by going to the office of the Sub Registrar and there after remaining there till 3.00 p.m. has proved that the plaintiff played bluff with the defendant by calling her in the office of the Sub Registrar on 16/06/1980 vide his letter dated 13/06/1980, but himself never going to the office of the Sub Registrar with money. This has proved that the plaintiff was bluffing with the defendant, therefore, the observations of the Supreme Court quoted above squarely apply to the facts of this case. Whereas the defendant by his testimony has been able to establish that his mother was always ready and willing to perform her part of the contract. From the above discussion, it can safely be concluded that plaintiff has failed to discharge the burden of issue No. 2, Hence issue No. 2is decided against him, whereas defendant has proved that his mother was always ready and willing to perform her part of the contract, hence the issue No, 3 is decided in favor of the defendant.Issue No .1:
(12) The burden of this issue was on the defendant, It was for him to prove that the agreement dated 17/03/1980 was not executed by late Smt. ParkashWati or that defendant never agreed to sell the property. From the facts hereinafter referred will prove that defendant has miserably failed to discharge the burden of this issue. Vide letter Ex. P.2 dated 17th June, 1980 defendant had admitted the execution of the agreement dated 17/03/1980 Ex. P.6. lnparalofEx.P.2Parkash Wati admitted that she agreed to sell the House No. 26, Road No. 70,Punjabi Bagh, New Delhi for Rs. 3,45,000.00 and also admitted that she received Rs.10,000.00as earnest money from the plaintiff. She also admitted that she was not avoiding the sale of her house. Even in the evidence the Dw 1 nowhere denied the execution of Ex. P.6 rather he admitted that his mother late Smt. Parkash Watientered into an agreement with the plaintiff for sale of the property in dispute. In view of this admission on the part of the defendant, this issue is decided against the defendant.Issue No. 4:
(13) Mr. Sharma, Council for the defendant contended that the receipt/agreement dated 17/03/1980 could not have been exhibited nor relied upon because it is not a registered document. According to him this documents hit by the provisions of Section 17(1)(b) & (e) of the Registration Act (In short the Act). By this document the parties created right, title and interest and passed on the consideration regarding an immovable property, value of which was more than . Rs. 100.00. Therefore it required compulsory registration. I am afraid this argument has no force. It is a settled law that a writing which confers upon a person a right which comes into existence after such conditions are fulfillled byhim. Such a document does not require registration. An agreement for sale of an immovable property will not fall under the definition under Section 17(1)(b)as it does not itself create, declare, assign, limit or extinguish any, right title or interest whether vested or contingent in immovable property. In fact to arrive at this conclusion reference can be had to Section 17(2)(v) of the Act. Ex. P.6purported to be a receipt/agreement to sell cannot constitute a receipt for consideration as envisaged under Section 17(1)(c) of the Act. The term consideration means that the person to whom money is paid, himself declares, limits or extinguishes his interest in immovable property. But as already observed above,since the provisions of Section 17(1)(b) are not attracted in this case, therefore, this cannot be considered a receipt for valid consideration. A mere receipt is not required to beregistered. Recital of this document, Ex. P.6, shows that it created a right to obtain another document which when executed will create right, title or interest in the property. Therefore, such a document Ex. P.6 did not requireregistration. Hence on this score the objection of Counsel for the defendant isinvalid. This issue is accordingly decided against the defendant. In arriving at this conclusion I am also supported by the explanation given in Sub-section(2) of Section 17 of the Act, which re?ds as under:-“A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money.”For the reasons stated above this issue is decided against the defendant.Issue No. 5:
(14) Since, the plaintiff has failed to establish that he was ready and willing to perform his part of the contract, therefore, the question of specific performance does not arise. As per the terms of the agreement he can only be entitled to there fund of the amount of Rs. 10,000.00 which he paid to the defendant as earnestmoney. On this amount, the plaintiff would also be entitled to interest as the defendant even after the filing of the suit has not returned this amount to the plaintiff. Having taken advantage of this amount, the defendant is liable to pay interest on the same. I accordingly order that on the amount of Rs. 10,000.00, the plaintiff will also be entitled to interest at the rate of 18% per annum from the date of filing the suit will realization.Relief:
(15) In view of the above discussion, the suit is partly decreed. The plaintiff will be entitled to recover a sum of Rs. 10,000.00with interest at the rate of 18% per annum pendente lite till realisation and the costs of the case.