JUDGMENT
Gita Mittal, J.
Page 1959
1. By this judgment I propose to decide the present suit for specific performance and permanent injunction filed by Shri Shoukat Rai Malhotra against Shri Ajay Mathur who is stated to be the owner of a vacant plot admeasuring 4400 sq. yards bearing No. K-224 in Khasra No. 660 in the Revenue Estate of Village Neb Sarai, Tehsil – Hauz Khas, New Delhi-110062. The suit came up for hearing on 4th February, 2005. Despite repeated summons and notices issued to the defendant, he could be served only by the substituted mode by publication of a proclamation in the newspaper as well as by affixation of the summons at his last known address and on the notice board of this court. Publication of the summons was effected in the daily newspaper Tribune in its Delhi and Chandigarh edition in the issue dated 27th September, 2005. As the defendant failed to put in appearance, the defendant was directed to be proceeded ex-parte by orders passed on 14th December, 2005. On the same date, the plaintiff was directed to file its ex-parte evidence on affidavit as well as any additional documents. The plaintiff has filed its own affidavit and the affidavit of Shri Mohd. Shafeeq as PW 2 in support of its case.
2. Along with the suit, the plaintiff had also filed an application under Order 39 Rule 1 & 2 being I.A. No. 856/2005. By orders passed on 14th of December, 2005, the defendant was restrained from creating any third Page 1960 party right/or parting with possession of the property in question. This order was modified by orders passed on 20th January, 2006 in IA No. 677/2006 whereby the defendant was directed to maintain status quo with regard to possession of the suit property.
3. The matter has been thereafter posted before this Court for hearing of arguments. Written submissions have also been filed in support of the plaintiff’s contentions in the plaint.
4. The contentions of the plaintiff in the suit remain undisputed and unchallenged and the facts duly established on record deserve to be noticed for the purposes of adjudication of the present case. The unrebutted facts established by cogent and clear evidence show that by an agreement to sell dated 16th July, 2004, the defendant agreed to sell his property being a vacant plot measuring 4400 sq. yeards bearing No. K-224 in Khasra No. 660 in the Revenue Estate of Village Neb Sarai, Tehsil – Hauz Khas, New Delhi-110062 to the plaintiff for a total sale consideration of Rs. 35,52,000/- Even before entering into this agreement to sell which has been marked Exhibit P-1, one Ms. Aparna Berry representing the defendant, had taken earnest money of Rs. 1 lakh on his behalf for which she had executed a receipt dated 12th July, 2004 (Exhibit P-4). Receipt of this payment was duly acknowledged by the defendant in the documents executed by him subsequently. Apart from this payment, the plaintiff has established that he has paid a sum of Rs. 3 lakh in cash on 16th July, 2004 and an amount of Rs. 2 lakh by a demand draft No. 972262 dated 15th July, 2004 drawn on the Canara Bank, Hauz Khas, New Delhi. The defendant had acknowledged receipt of the total sum of Rupees six lakhs by a duly stamped receipt dated 16th July, 2004 executed by him and witnessed by Ms. Aparna Berry and Shri Suraj. This receipt has been proved on record as Exhibit P-3. The agreement dated 16th July, 2004 executed between the parties towards sale and purchase of the suit property also witnesses receipt of the sum of rupees six lakhs by the defendant from the plaintiff. The plaintiff has placed reliance on the representations made by Ms. Aparna Berry on behalf of the defendant to the effect that she was holding the original documents of the suit property in trust and confirming that she would not part with the original documents to anybody other than the plaintiff. Ms. Aparana Berry has apparently addressed a letter dated 16th July, 2004 to the plaintiff in these terms. The plaintiff has also proved the receipt dated 12th July, 2004 whereby she has acknowledged receipt of the payment of the earnest money from the plaintiff.
5. So far as title of the defendant is concerned, the plaintiff places reliance on a title deed search conducted by Shri Narender Vashist, Advocate on his behalf. The search report dated 28th July, 2004 given by this counsel has been proved on record as Exhibit P-7 wherefrom the plaintiff has verified the defendant’s rights in the suit property.
6. The plaintiff has deposed that thereafter the defendant started delaying execution of the sale deed in terms of the agreement dated 16th July, 2004. With a lot of persuasion, the defendant finally agreed to and executed a registered will dated 7th September, 2004 (Exhibit P-19) in favor of the plaintiff; a special power of attorney dated 17th September, 2004 (Exhibit P-18) in favor Page 1961 of the plaintiff in respect of the suit property. By the bequests made in this Will, the defendant bequeathed the suit property in favor of the plaintiff. The submission of the plaintiff is that this was merely a confirmation of the rights of the plaintiff in the suit property inasmuch as properties in the area is being transacted with and rights transfered by execution of documents as agreement to sell, irrevocable power of attorney, Will etc. The defendant also executed a special power of attorney on the same day appointing the plaintiff as attorney of the defendant in respect of the suit property.
7. The plaintiff has also proved before this Court the affidavit dated 7th September, 2004 deposed by the defendant wherein he confirmed that he had sold the suit property to the plaintiff and acknowledged receipt of the consideration in respect of the land. The defendant has also confirmed execution of the agreement to sell and the other documents in respect of the suit property in favor of the plaintiff and undertaken that he would not revoke these documents under any circumstance. The defendant has unequivocally deposed that he had delivered the actual physical vacant possession of the land to the plaintiff.
The defendant has also acknowledged handing over the vacant and physical possession of the suit property to the plaintiff by “handing over and taking over” of possession note dated 7th September, 2004 which has been proved on record as Exhibit P-22. It is noteworthy that this transaction took place in the presence of Shri Mohd. Shafeeq and Shri Suraj Bhan who have also signed as witness thereon on this possession letter dated 7th September, 2004 (Exhibit P-22) on record.
8. The plaintiff has established payment of a sum of Rs. 26,70,000/- to the defendant pursuant to the agreement dated 16th July, 2004 and 7th September, 2004. It is stated that the defendant paid by cheque No. 972262 dated 15th July, 2004 drawn on Canara Bank for the sum of Rs. 2 lakhs; cheque No. 194504 dated 26th July, 2004/7th September, 2004 drawn on Canara Bank for the sum of Rs. 10,70,000/-; cash dated 16th July, 2002 of Rs. 4 lakhs; cash through self cheque No. 194506 dated 7th September, 2004/26th July, 2004 drawn on the Canara Bank through a cheque of Rs. 10 lakhs. These payments were also duly acknowledged by the defendant in a receipt dated 7th September, 2004 which has been exhibited as Exhibit P-21.
I find that in Exhibit P-21, the parties had agreed that the balance sum of Rs. 8,82,000/- would be received by the defendant at the time of registration of the documents.
9. The plaintiff has contended that after being put in possession of the suit property, he has carried out extensive land scapping as the sole owner in possession and has incurred expenses to the tune of Rs. 10 lakhs to repair boundary walls etc. The plaintiff has submitted to be in interrupted and exclusive possession of the suit property ever since he received possession of the property from the defendant. The plaintiff has effected large scale improvements on the suit property and has placed photographs before this Court on record as Exhibit P-31 to P-45 to establish his possession of the suit property.
Page 1962
10. The present suit has been necessitated inasmuch as the defendant was inaccessible after October, 2004. All efforts of the plaintiff to contact the defendant or his representative Ms. Aparna Berry did not bear fruit. In these circumstance, the plaintiff got issued a notice dated 20th November, 2004 calling upon the defendant to present himself at the Tehsil Mehrauli in the office of the Sub-Registrar for execution of the registered documents for transfer of title in respect of the suit property. This notice also failed to evoke any positive response. The plaintiff has submitted that he received a notice under Section 160 of the Criminal Procedure Code from the Police Station Mehrauli in a case bearing FIR No. 724/2004 wherein he was required to appear as a witness. This criminal complaint has been registered by the police purportedly on a complaint against the defendant Shri Ajay Mathur. It appears that the criminal complaint had been registered by the police against the defendant who was attempting to sell the suit property to one Shri Rajpal Singh who had made the allegation that Shri Ajay Mathur had duped him. The plaintiff thus became aware that the defendant’s intentions were malafide and he was attempting to disown the terms of the agreement to sell dated 16th July, 2004 in respect of the suit property.
11. The plaintiff has contended that he has throughout been ready, willing and able to perform his part of the contract and has effected substantial payment in terms of the agreement to the defendant.
12. The case of the plaintiff is corroborated on all scores by the testimony of Shri Mohd. Shafeeq who has been examined as PW 2 and whose affidavit has been filed. Shri Shafeeq has not only established the execution of the agreement dated 16th July, 2004 but also has established the payments made by the plaintiff to the defendant and to Ms. Aparna Berry as noticed above. PW 2 is also a witness on all material documents executed by the defendant evidence transfer of his rights and interest in the suit property in favor of the plaintiff. This witness has also deposed that the plaintiff was put in possession of the suit property on 7th September, 2004 which he continues to occupy. This witness tendered his evidence by affidavit before this Court on 26th March, 2007 and identified his signatures as witness on the documents which have been exhibited on record and marked as Exhibit P1, P4, P18, P19, P 21 and P22.
13. It is well settled that the relief for specific performance has to be premised on equitable principles. Vide discretion is conferred on the court to grant or decline a decree for specific performance. The Specific Relief Act, 1963 mandates that it would not be necessary for a court to decree specific performance merely because it is lawful to do so. Considerations of equity, good conscience and fairness form the very foundation for grant of the relief of specific performance and the discretion is to be exercised in consonance with the well settled principles.
Thus having regard to the spirit intendment and purpose of the statutory provisions of the Specific Relief Act, 1963 where a contract is proved to have been executed in accordance with law; where the plaintiff has acted fairly and without any undue delay and pursued his remedy without infringing any legal provision and equity justifies exercise of discretion in favor of the Page 1963 plaintiff, specific performance of the agreement is certainly merited. It is well settled that equity must give relief where equity so demands. Equitas nuquam liti an cillatur ubi remedium potest dare is a clear illustration which has been duly accepted by the Indian courts. Ref : 2006 (90) DRJ 276 entitled M.K. Sehgal v. Mohindar Kaur.
This maxim applies to consideration of a prayer for specific performance of an agreement.
14. In Atma Ram Mittal v. Ishwar Singh Punia the court held that the time taken by the court in deciding suits or appeals would not be permitted to work to the disadvantage of the party to the lis as it is well settled that acts of courts shall cause prejudice to none is well settled.
15. For the same reason, if the court arrives at the conclusion that the plaintiff is ready, willing and able to perform his part of the contract and no delay is attributable to him, it has been held that specific performance would be granted. In this behalf reference can appropriately be made to a Division Bench judgment of this Court reported in 2006 (90) DRJ 276 M.K. Sehgal v. Mohinder Kaur and Single Judge pronouncements in Raj Kumar Sharma v. Pushpa Jaggi and Ors. and Jai Gopal Goyal and Anr. v. Bishan Dayal Goyal. In M.K. Sehgal v. Mohinder Kaur (supra), I find that this Court has also held that making of an alternative prayer by the plaintiff in a suit cannot be construed as a waiver or abandonment of the main relief of specific performance of the agreement.
16. I find that the principles on which discretion is to be exercised under Section 20 of the Specific Relief Act, 1963 have been succinctly laid down by the Apex Court in its pronouncement reported at Her Highness Maharani Shantidevi P Gayakwad v. Savji Bhai Haribhai Patel and Ors. wherein the court has stated thus:
The grant of decree for specific performance is a matter of discretion under Section 20 of the Specific Relief Act, 1963. The Court is not bound to grant such relief merely because it is lawful to do so but the discretion is not required to be exercised arbitrarily. It is to be exercised on sound and settled judicial principles. One of the grounds on which the Court may decline to decree specific performance is where it would be inequitable to enforce specific performance. The present is clearly such a case. It would be wholly inequitable to enforce specific performance for (i) residential houses for weaker sections of the society cannot be constructed in view of the existing Master Plan and thus, no benefit can be given to the said Section of the society, (ii) In any case, it is extremely difficult, if not impossible, to continuously supervise and monitor the construction and thereafter allotment of such houses, (iii) the decree is Page 1964 likely to result in uncalled for bonanza to the plaintiff, (iv) patent illegality of order dated 20th June, 1998, (v) absence of law or any authority to determine excess vacant land after construction of 4356 dwelling units, and (vi) agreement does not contemplate the transfer of nearly 600 acres of land in favor of the plaintiff for construction of 4356 units for which land required is about 65 acres. The object of the Act was to prevent concentration of urban land in hands of few and also to prevent speculation and profiteering therein. The object of Section 21 is to benefit weaker sections of the Society and not the owners. If none of these objects can be achieved, which is the factual position, it would be inequitable to still maintain decree for specific performance.
17. Applying the equitable principles laid down by the Apex Court and this Court to the present case and as per the statutory mandate, I find that it is an undisputed fact that the parties had entered into an agreement to sell dated 16th July, 2004; that the plaintiff has made substantial payments there under and has been even placed in possession of the suit property. The plaintiff has acted bonafide and fairly and there is no challenge that the plaintiff has not been ready, willing and able to perform all obligations under this agreement. All statutory requirements and equitable considerations for grant of specific performance in the facts of the instant case stand satisfied which clearly justify exercise of judicial discretion in favor of the plaintiff.
Accordingly, I hereby pass a decree for specific performance of the agreement to sell dated 16th July, 2004 in favor of the plaintiff against the defendant subject to the following conditions:
(i) The plaintiff shall pay the balance sale consideration of Rs. 8,82,000/- by a cheque to the defendants within two weeks from today.
(ii) On receipt of this payment, the defendants shall execute the registered documents of transfer of title in the suit property in favor of the plaintiff in accordance with law.
(iii) In case of non-acceptance the balance consideration by the defendant, the plaintiff shall deposit the same in this court.
(iv) In the event of default of the defendant, the plaintiff shall be entitled to get the sale deed executed by an officer to be appointed by an order of this Court upon an application for this purpose to be filed by the plaintiff after depositing the balance sale consideration in this court.
I also hereby pass a decree of permanent prohibitory injunction against the defendants restraining the defendants, his agents, servants, nominees, assigns from selling, alienating or creating any third party interest in the property bearing K-224 in Khasra No. 660 in the Revenue Estate of Village Neb Sarai, Tehsil – Hauz Khas, New Delhi-110062.
The defendants, his agents, servants, nominees, assigns are hereby restrained by a decree of permanent prohibitory injunction from disposing the plaintiff or in any manner interfering with his quiet and vacant possession of the property bearing K-224 in Khasra No. 660 in the Revenue Estate of Village Neb Sarai, Tehsil – Hauz Khas, New Delhi-110062.
Page 1965
So far as the alternative relief of damages is concerned, this Court has decreed the suit of the plaintiff for specific performance and consequently this relief does not need to be considered.
The plaintiff will be entitled to costs of the present suit which are quantified at Rs. 75,000/-