{"id":243555,"date":"1998-05-29T00:00:00","date_gmt":"1998-05-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kuldip-singh-suri-vs-surinder-singh-kalra-on-29-may-1998"},"modified":"2016-01-23T18:35:43","modified_gmt":"2016-01-23T13:05:43","slug":"kuldip-singh-suri-vs-surinder-singh-kalra-on-29-may-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kuldip-singh-suri-vs-surinder-singh-kalra-on-29-may-1998","title":{"rendered":"Kuldip Singh Suri vs Surinder Singh Kalra on 29 May, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Kuldip Singh Suri vs Surinder Singh Kalra on 29 May, 1998<\/div>\n
Equivalent citations: 1998 IVAD Delhi 469, 76 (1998) DLT 232, 1999 (48) DRJ 463, 1999 RLR 20<\/div>\n
Author: A D Singh<\/div>\n
Bench: A D Singh<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Anil Dev Singh, J.<\/p>\n
1.      This is a suit for specific performance and possession.\n<\/p>\n
     The dispute between the parties relates to property No.B-1\/16,  Vasant Vihar, New Delhi. The property is built upon plot measuring 600 sq.  yards. The land belongs to the President of India. According to the plaintiff, the lease of this land along with some other plots of land were granted by  the President of India in favour of the Government Servants Co-operative  House Building  Society Ltd (hereinafter referred to as the society). The  plaintiff  is a member of this society. By a tri-partite agreement  (hereinafter called  the sub-lease agreement) dated April 1, 1969, executed between  the President  of India (the lessor), the society (the lessee) and  the  plaintiff,  the  sub-lease of the above said plot was granted in favour  of  the plaintiff for a period of 99 years. As per clause 6 of the sub-lease agreement,  the sub-lessee was not to sell, transfer, assign or  otherwise  part with the possession of the whole or any part of the residential plot  without  the prior consent in writing of the lessor. That apart, the  sub-lease agreement  required the sub-lessee to construct a residential  premises  on the subject plot within two years from April 1, 1969, which is the date  of the execution of the said sub-lease agreement. It is the case of the plaintiff that due to exigencies of his service and paucity of funds he was  not in  a position to undertake the construction of a residential  building  on the  said  plot of land & owing to these circumstances he  entered  into  a Building  Construction Agreement (hereinafter referred to as the  construction  agreement)  with  the defendants on March 6, 1978.  It  required  the defendants to construct a residential building at the cost of Rs.5 lakhs in accordance  with the sanctioned plan, which was to be got prepared  by  the defendants.  It also required the defendants to pay a sum of  Rs.1,82,500\/- to  the  plaintiff as security deposit for carrying out  their  contractual obligations.  As  against this, the plaintiff was required to  pay  to  the defendants  a sum of Rs.6.25 lakhs, Rs.5 lakhs as the cost of  construction and  Rs.1.25  lakhs as the profit of the defendants, after  the  defendants obtain a completion certificate of the building from the concerned authority and notify the acquisition thereof to the plaintiff as per clause 13  of the construction agreement. Besides the above said amount of Rs.6.25 lakhs,
\nthe  plaintiff  was  also  required  to  return  the  security  deposit  of Rs.1,82,500\/-  to the defendants. In the event of failure of the  plaintiff to make the above said payments to the defendants within one month from the receipt  of notice, in terms of clause 13 of the agreement,  the  plaintiff would cease to have any claim or interest in the building.\n<\/p>\n
2.   The  defendants  constructed  a two and a  half  storeyed  residential building  on  the said plot of land. They, without obtaining  a  completion certificate,  occupied the ground floor of the building. They also let  out
\nthe  first floor thereof. The plaintiff claims that by a letter dated  12th May,  1981 he remonstrated to the defendants for their failure  to  furnish the  completion  certificate of the building. He also called upon  them  to hand over the possession of the property to him. But the defendants did not accede  to his demand. The plaintiff further claims that he issued  another letter dated 21st July, 1981 to the defendants repeating its earlier demand and  also asking them to render accounts so that he could pay the  expenses incurred  by  them on the construction of the building. Not  receiving  any favourable  response from the defendants, the plaintiff on April  26,  1984 filed  the  instant suit seeking a decree for specific performance  of  the aforesaid  agreement and for a direction to the defendants to  deliver  the actual physical vacant possession of the suit property.\n<\/p>\n
3.   The defendants on the other hand by their written statement and  counter claim, filed on January 24, 1985, set up the following case:\n<\/p>\n
4.   The plaintiff approached the defendants in early 1978 for the sale  of the  suit plot. Since the plaintiff under the sub-lease agreement  was  debarred from executing a regular sale deed, he suggested execution of  usual documents  namely, power of attorney, construction agreement, agreement  to sell etc. for the transfer of title of the property to the defendants.  The intention  of the plaintiff was to sell the plot and the intention  of  the defendants  was to purchase the same. With this objective in view a  number of documents were executed by the plaintiff namely, construction agreement;\n<\/p>\n
agreement  to  sell; general power of attorney in favour  of  Sardar  Saran Singh Kochar, father of defendant No.2 and father-in-law of defendant No.1; an  undated  letter of the plaintiff addressed to  the  defendants  stating inter-alia  that he was not in a position to pay Rs.8,07,500\/- to  the  defendants and he would have no objection if the defendants got the  property registered  in their name; a will and last testament of the  plaintiff  bequeathing  the  suit property to the defendants;  affidavit  of  Smt.Gurbux Kaur,  wife of the plaintiff; and affidavits of Shri Kulvinder Singh,  Shri Davinder  Singh  and Shri Ravinder Singh, sons of the  plaintiff  affirming that  after  the demise of the plaintiff they will not have  any  right  or claim  in respect of the suit property. The agreement to sell  however  got mixed  up with the papers of the plaintiff and the same remained with  him. This happened after the execution of the documents and delivery of  possession of the plot to them against full payment of Rs.1,82,500\/-. Even before the execution of the documents the parties had entered into an oral  agreement  on  January 25, 1978, whereby the plaintiff agreed to sell  the  suit property  for a total consideration of Rs.1,82,500\/-. A sum of  Rs.10,000\/- was  paid  to the plaintiff vide cheque dated January 25, 1978, as  an  advance.  In  token of having received the cheque the  plaintiff  executed  a receipt.  The remaining amount of Rs.1,72,500\/- was paid by the  defendants to  the plaintiff by means of a cheque dated March 6, 1978, on  which  date
\nsome  of the above said documents were executed and possession of the  plot was delivered to the defendants.\n<\/p>\n
5.   In the written statement-cum-counter claim the defendants have  sought dismissal  of the suit and a decree for pecific performance of the  agree-ment to sell in favour of the defendants.\n<\/p>\n
     On  July 29, 1987 the following issues were framed by Mahesh  Chandra, J.\n<\/p>\n
     “1. Whether the plaintiff has entered into an agreement with  the defendant on March 6, 1978 for nstruction of his house on  plot No.B1\/16, Vasant Vihar, New Delhi and what are the terms thereof? OPP.\n<\/p>\n
     2. Whether the plaintiff had agreed to sell plot No.B1\/16, Vasant Vihar, New Delhi to the defendant vide agreement ted 6th  March 1978  as alleged, if so what are the terms of said  agreement  of sale?\n<\/p>\n
     3.  Whether  the defendants have been prepared to  perform  their part of the contract all along as alleged?\n<\/p>\n
     4.  Whether the documents mentioned in para 32, 34 and 35 of  the written  statement  were  executed by the laintiff  as  part  of agreement  to construct a house on Plot No.B1\/16,  Vasant  Vihar, New Delhi?\n<\/p>\n
     5.  Whether the plaintiff is entitled to possession of  the  suit property?\n<\/p>\n
     6.  Whether the defendant is entitled to specific performance  of agreement to sell?\n<\/p>\n
     7. What is the effect of alleged part performance of the suit?\n<\/p>\n
     8.  Whether the defendants are estopped from alleging the  agree-ment to sell?\n<\/p>\n
     9. Relief.”\n<\/p>\n
6.   Subsequently on July 11, 1998 the following additional issue  relating to limitation was raised:\n<\/p>\n
      “Whether the counter-claim is within limitation?”\n<\/p>\n
7.   I have heard the learned counsel for the parties. The learned  counsel apart from the oral submissions, have filed their written submissions. Both the  parties are at one in submitting that the main question for the  deci-sion  is whether the transaction between the parties was one of sale  or  a contract  for  construction  of a house. The plaintiff has  made  the  said submission in para 15 of his written sub-missions, which reads as follows:\n<\/p>\n
      “The only question which arises to be determined by this  Hon’ble Court is as to whether the transaction in question is a construc-tion agreement or sale agreement?”\n<\/p>\n
8.   Similarly the defendants in para 16 of their written submissions  have stated as follows:-\n<\/p>\n
“This being the case put forward, sole question for consideration in the above suit, in my respectful submission, can be formulated as under:\n<\/p>\n
     Was  it  only a contract for construction of house,  and,  Not  a ‘Power-of-Attorney Sale’ of the plot?” p><\/p>\n
     For  the determination of the main question, it will be  important  to note  that  certain facts and documents are admitted on both  sides.  These are:-\n<\/p><\/blockquote>\n
     1.   A  sum  of  Rs.10,000\/- was paid by the  defendants  to  the plaintiff  by  way  of a cheque dated January 25,  1978  drawn  on Grindlays  Bank Ltd., Parliament Street, New Delhi,  Ext.D-1.  In the  receipt  executed by the plaintiff, Ext.D-5,  the  plaintiff admits  to  have received the amount as token  advance  for  plot No.B-1\/16, Vasant ihar. It also recites that the balance payment will be made on or before March 7, 1978.\n<\/p><\/blockquote>\n
     2.   An  agreement  dated  March 6, 1978,  Ext.D-6  captioned  as agreement  of building contract, was executed between the  plain-tiff as owner of the plot and the defendants as contractors.\n<\/p><\/blockquote>\n
    3.   An  irrevocable registered power of attorney dated March  6, 1978  Ex.D-7  was executed by the plaintiff in favour  of  Sardar Saran Singh Kochar, father of defendant No.2 and father-in-law of defendant No.1 whereby the latter was constituted as an  attorney of the plaintiff for representing him at all levels in the office of the DDA and other connected offices to secure the lease  deed, conveyance  deed or any other document to be required in  connec-tion with the plot from the DDA; to apply for permission to  sell under  section 27(2) of the Urban Land (Ceiling and  Regulation) Act; to sell or transfer the plot on receipt of the permission to sell; to ecute the sale deed and to present the same for regis-tration at the office of the competent sub-registrar. <\/p><\/blockquote>\n
     4.   An  undated  letter Ext.D-8 (for short ‘letter  of  repudia-tion’) was authored and addressed by the plaintiff to the defend-ants whereby the plaintiff acknowledged the information given  by the  defendants that the house on the plot in question was  ready for occupation. The letter also stated that the plaintiff was not in a position to make the payment of Rs.8,07,500\/- and as such he shall  have  no objection if the property was registered  in  the name  of the defendants after securing the  requisite  permission for  the sale of the property from the DDA. The letter also  per-mitted  the  defendants  to sell or rent out  the  premises.  The plaintiff  also  admitted that he will have no  lien  or  concern
\nwhatsoever on the said property.\n<\/p>\n
     5.   A  registered Will was executed on March 6, 1978  Ex.D-9  by the plaintiff whereby he devised and bequeathed the said property to the defendants.\n<\/p>\n
     6.   Affidavits of sons of the plaintiff, namely, Shri  Kulvinder Singh  dated March 27, 1978, Shri Davinder Singh dated March  26, 1978 and Shri Ravinder Singh dated March 22, 1978, Ex.D-10, Ex.D-11  & Ex.D-12 respectively, stating, inter-alia, that  after  the demise of their father they would not have any right or claim  in the property in question. A specific reference in the  affidavits was  made  to  the above said Will executed by  their  father  in favour of the defendants.\n<\/p>\n
     7.   Affidavit  of Smt.Gurbux Kaur, wife of the plaintiff,  Ex.D-13,  stating that after the demise of her husband, she will  have no claim in the said property.\n<\/p>\n
     8.   The  defendants claim that apart from the above  said  docu-ments,  the  plaintiff had executed an agreement to sell  but  by mistake the agreement remained with the plaintiff.\n<\/p>\n
9.   The plaintiff appearing as his own witness reiterated that the parties had  entered into an agreement for construction of the building  only.  Explaining  the  reason for entering into such an agreement  he  stated  that according  to the terms of the perpetual sub lease, he was to  construct  a house on the plot within two years, but due to exigencies of service he was not  in a position to construct the house. Since the defendants  wanted  to secure  the  money to be spent by them on construction of the  property  as well  as  their  profit  thereon and the  security  amount  aggregating  to
\nRs.8,07,500\/-, he executed the above said documents, namely, general  power of attorney, repudiation letter, Will and the affidavits.\n<\/p>\n
10.  It  seems  to me that the plea of the plaintiff that  the  above  said documents  were executed merely to secure the payment of  Rs.8,07,500\/-  to the defendants is not correct. It is important to note that the  possession of  the plot was undisputedly delivered by the plaintiff to the  defendants on March 6, 1978. On March 6, 1978 itself the title deed namely,  perpetual sub lease, Ex.D-3, of the property was also handed over to the  defendants. The  plaintiff seeks to explain the handing over of the title deed  to  the defendants by stating that the document was given merely for the perusal of the  defendants and it was to be returned by them which they failed to  do. It is also stated that the defendants were asked to return the document  in 1979  but they did not return the same and on their refusal to  return  the same, he could do nothing. The explanation of the plaintiff does not  carry conviction.  In case the title deed was given to the defendants merely  for their  perusal, in that event the plaintiff apart from his oral  entreaties and requests to the defendants, could have given them notice for return  of the  same. No such notice has been pleaded in the plaint or placed  on  re-\n<\/p>\n
cord. In case the plaintiff was unable to get back the title deed from  the defendants, he could have taken recourse to legal proceedings against  them for  recovery  of the title deed. Right from 1978 till 1984  the  plaintiff took  no legal action whatsoever for securing the return of the title  deed from  the defendants. Even in the letters dated May 12, 1981 and  July  21, 1981,  alleged to have been written by the plaintiff to the defendants,  in regard  to the latters’ failure to abide by the terms of  the  construction agreement,  no  mention is made of the defendants’ failure  to  return  the
\ntitle deed. The plea of the plaintiff that the title deed was given to  the defendants  only  for their perusal and the same was not returned  by  them appears to be an after thought. Besides there was hardly any reason for the plaintiff to have handed over the title deed of the property to a  contrac-tor employed by him. Even where an agreement to sell is executed,  normally the title deed of the property is not handed over to the intending buyer.\n<\/p>\n
11.  As  pointed out earlier, an irrevocable registered power  of  attorney dated  March  6, 1978, Ex.D-6, was executed by the plaintiff in  favour  of Sardar  Saran  Singh Kochar. The power of attorney  empowers  Sardar  Saran Singh Kochar to sell and dispose of the property. It is significant to note that the general power of attorney was executed by the plaintiff in  favour of a person who was the father of the defendant No.2 and was not related in any manner to the plaintiff. In case the transaction between the  plaintiff and  the  defendants was only in the nature of  a  construction  agreement, there was no necessity for the plaintiff to confer the power of sale of the property on a close relative of the defendants. Why the plaintiff appointed Mr.Kochar as his agent, is a question which itself suggests an answer.  The appointment of Mr.Kochar as the plaintiff’s attorney was obviously made  in order  to facilitate the execution of a sale deed in favour of the  defend-\n<\/p>\n
ants  without any difficulty as he would be interested in his daughter  and son-in-law  rather  than the plaintiff. The plaintiff admits  that  it  was sugg that since Mr.Kochar bore a close relationship with the  defend-ants,  he should, therefore, be appointed as an attorney and he  agreed  to that suggestion.\n<\/p>\n
12.  In  the construction agreement, there is no mention of any  specifica-tions.  It also does not mention the nature and extent of the  construction to be carried out. The kind of the material to be used in the construction, the  dimensions  of the rooms and the number of rooms on each floor  to  be constructed, have not been detailed in the construction greement. All that it says in this regard is that the building will be constructed in  accordance  with the plan to be approved by the Delhi Municipal Corporation.  The agreement further inter-alia states that the contractors will get the plans prepared.  It  is surprising that a person who intends to  get  a  building constructed  for himself would leave the above said details and the  choice of  the material to the building contractor. No owner of a  building  would leave such details to a contractor. The plaintiff in the  cross-examination categorically  stated  that  he can not answer the question as  to  why  no specifications were mentioned in the agreement, Ext.D-6.\n<\/p>\n
13.  It appears to me that in case the parties had actually entered into an agreement  for  construction of a building, which on completion was  to  be used by the plaintiff, he would have ensured that the agreement incorporat-ed  the  details  like the extent and specifications  of  the  construction including the kind of material to be used by the contractor in constructing the building. Besides, the satisfaction regarding the quality of work could only be that of the plaintiff and not of a third person wholly  unconnected with him. As per clause 8 of the Agreement, the approval of general  attor-\n<\/p>\n
ney, Sardar Saran Singh Kochar father of the defendant No.2, regarding  the workmanship  of the building and the quality of the material  used  therein has  been made final. The plaintiff has not given any convincing reason  as to why such a power was given to Mr.Kochar. The plaintiff justifies this by saying that he was not residing and working at Delhi and therefore, he  had appointed  Mr.Kochar as the attorney. The explanation is puerile  and  sup-ports  the case of the defendants that actually, the parties were  entering into an agreement to sell the property as otherwise the plaintiff, firstly, would  not have appointed a close relative of the defendants as his  attor-ney;  secondly, he would not have empowered him to sell the  property,  and thirdly, would not have made his opinion about the quality of the  material used in the building and the workmanship thereof as final.\n<\/p>\n
14.  In the construction agreement one would have expected provisions  for: inspection  of  the building by the owner; guarantee of  workmanship;  time frame  within which the work would be completed; damages for delay in  completing the work; termination of the contract due to delay in execution  of the  same and consequent appointment of another contractor  for  completing the work at the risks and cost of the defendants etc. but all these  condi-tions  are missing. The plaintiff has also failed to point out what  equip-ment or machinery was deployed by the defendants during the construction of the house.\n<\/p>\n
15.  The plaintiff has admitted that after the completion of the  building, he did not visit the site. He was also not able to identify the photographs of  the building. From the cross-examination of the plaintiff it  is  clear that he does not even know the name of the Architect employed to design the building.  He has also exhibited his ignorance with regard to the  contrac-tors engaged for the purpose of masonary and electrical works.\n<\/p>\n
     In this regard, the plaintiff stated as under:-\n<\/p>\n
     “I  do  not know if one Surinder Sarin was an  architect  in  the Vasant Vihar house. I also do not know if S\/Shri Charan Dass  and      Makhan Singh were the contractors for masonary work and Shri Sant Lal  was  the contractor for electric work for the  Vasant  Vihar house. I only know the defendants who were my contractors. I used to  visit  the Vasant Vihar house during the course of  its  con-struction but I never visited it after its completion.\n<\/p>\n
     Q. I am showing 13 photographs of the Vasant Vihar house.  Kindly look at them and state if you identify
\nthe house?\n<\/p>\n
     Ans. I cannot identify these photographs since I have not seen the completed house because I was abroad.\n<\/p>\n
16.  That  shows an absolute lack of interest on the part of the  plaintiff in the construction of the building in question.\n<\/p>\n
17.  In  case  the  plaintiff was interested in  getting  the  construction effected  through  a contractor, he would have made some sort of  a  market survey and for this purpose would have approached other contractors  before entering  into  an agreement with the defendants for  construction  of  the building  so  that he would be in a position to know the  standing  of  the defendants  as contractors and the market rate for  similar  constructions. The  plaintiff  in his cross-examination has admitted that except  for  ap-preaching  the  defendants through Bagga Property Dealers, he did  not  ap-proach  any  other contractor. He also admits that he did not  consider  it necessary  to  enquire  as to what documents are required  to  be  executed between an owner who wants his house constructed and a building  contractor who  undertakes construction. He also did not find out as to what  was  the standing of the defendants in the field of construction. In  cross-examina-tion  he admitted this position but stated that if the defendants were  not competent enough, they would have engaged a civil engineer.\n<\/p>\n
18.  It  seems to me that since the real and actual nature of the  transac-tion  was  not  what is being made out by the plaintiff  and  actually  the transaction  was in the nature of an agreement to sell, the  plaintiff  did not take the trouble of finding out the details which a prudent owner of  a plot  of  land would have normally checked up before entering into  a  con-struction  agreement. The conduct of the plaintiff shows his total lack  of interest in the construction of the building. It appears to me that as  the building  was being built for the defendants, the plaintiff was not  interested in the quality and specifications of the work.\n<\/p>\n
19.  Besides, in case the defendants were merely employed as contractors to execute  the  construction  work, there is no worth while  reason  why  the plaintiff executed the Will dated March 6, 1978 (Ext.D-9) and the  repudia-tion  letter (Ext.D-8). There is also no cogent explanation as to  why  the wife  and sons of the plaintiff executed affidavits giving up their  rights in  the property in question if the parties were entering into a  construc-tion  agreement  for the purposes of raising the building  on  the  subject plot.\n<\/p>\n
20.  The plaintiff has also not offered any plausible reason why he did not execute the deeds for cancellation of the power of attorney dated March  6, 1978 (Ext.D-7) in favour of Sardar Saran Singh Kochar and Will dated  March 6,  1978  (Ext.D-9), bequeathing the plot to the defendants, till  June  4, 1982 on which date both the documents were cancelled by means of registered documents.  This shows that right from March 6, 1978 to June 4,  1982  i.e. for  almost  more than four years, the plaintiff did not take  any  action, even  though as per his own version the defendants had breached  the  ‘con-\n<\/p>\n
struction agreement’. Learned counsel for the plaintiff submitted that  the plaintiff  had sent registered letters dated May 12, 1981 Ext.P-1 and  July 21,  1981  Ext.P-2 to Sardar Saran Singh & the  defendants  informing  them about  the  cancellation  of the Will, Ext.D-9, cancellation  of  power  of attorney Ext.D-7 and the withdrawal of the undated “letter of  repudiation” Ext.D-8.  The  plaintiff has not placed on record the  postal  receipts  or registered  A.D. cards in proof of having despatched these letters  to  the defendants.  It is important to note that ostensibly a copy of  the  letter
\ndated  May  12, 1981, Ex.P1, was forwarded to the Sub-Registrar,  Asaf  Ali Road,  New  Delhi  with the request that the Will dated March  6,  1978  be considered  as cancelled. Similarly ostensibly copies of the  letter  dated July 21, 1981 addressed to the defendants were forwarded to  Sub-Registrar, Asaf  Ali  Road in continuation of the letter dated May 12,  1981  &  Delhi Development  Authority,  Vikas Minar, Indraprastha Estate and  the  Land  & Development  Officer, Nirman Bhawan in continuation of  plaintiff’s  letter dated  June 4, 1981. No effort, however, was made by the plaintiff to  show that the copies were in fact despatched to the above said authorities.  The plaintiff also failed to summon the copies of the alleged letters from  the offices  of the Sub-Registrar, Asaf Ali Road, Delhi  Development  Authority and  the Land & Development Officer. These letters do not find any  mention either in Ext.P3, which is the registered deed of cancellation of the power of  attorney  dated March 6, 1978, or in Ext.P-4, which is the  fresh  Will executed by the plaintiff repudiating and cancelling the earlier Will dated March 6, 1978 in favour of the defendants. The plaintiff has not  furnished any explanation for not mentioning the letters dated May 12, 1981 and  July 21,  1981  in Ext.P3 and Ext.P4 which were executed on June 4,  1982,  long after the despatch of the alleged letters to the defendants. The  existence and authenticity of these letters is of a doubtful character. In case these letters had been written to the defendants & Sardar Saran Singh, the plain-tiff would have produced the postal receipts or registered A.D. cards.  The explanation of the plaintiff that the A.D.cards were in possession of  Shri Sardari  Lal Bhatia,Advocate, and the same could not be retrieved from  his office after his death, does not carry conviction. In the plaint the plain-tiff  has  not given this explanation at all. Even if  A.D.cards  were  not available  the plaintiff could have applied to the postal  authorities  for furnishing  a certificate of delivery of letters to the defendants  and  to the officers of the DDA, L&DO,etc.,to whom the copies were allegedly  sent. No  attempt was made to secure the certificate or to summon the  copies  of the  letters from the office of the DDA & L&DO. For all these  reasons  the said letters appear to have been fabricated.\n<\/p>\n
21.  Before closing the discussion on this aspect of the matter it needs to be  noticed  that  the plaintiff was not legally competent  to  revoke  the registered irrevocable power of attorney in favour of Sardar Saran Singh as the defendants had paid the entire sale consideration to the plaintiff  and the  plaintiff  had in turn handed over possession of the property  to  the defendants.  The power of attorney was executed in favour of  Sardar  Saran Singh,  father of efendant No.2, only to facilitate the execution  of  the sale  deed  in favour of the defendants. Since Sardar Saran  Singh  is  the father  of  defendant No.2, he is, therefore, interested  in  the  subject-matter of agency, namely, the plot number B-1\/16, Vasant Vihar, New  Delhi. Section  202 of the Contract Act interdicts termination of agency where  an agent  has  an interest in the subject-matter of the agency. The  power  of attorney executed by the plaintiff in favour of Sardar Saran Singh express-ly stated that it could not be revoked by the plaintiff. In the absence  of an  express contract permitting termination of the agency, section  202  of he  Contract Act barred such termination. A similar question came  up  for consideration  before a Division Bench of this Court in Harbans  Singh  Vs. Shanti Devi, 1977 R.L.R. 487, where this court held as follows :-\n<\/p>\n
     “The  next  question is whether this interest was  only  that  of respondent or that of Shri Gulati also. Paragraph 3 of the agree-ment  of  sale executed by the appellant  itself  describes  Shri Gulati as “a nominee and husband” of the respondent. It also says that  the appointment of Shri Gulati as the appellant’s  attorney was made “in order to facilitate the transaction” of sale by  the appellant to respondent. Why had the appellant to appoint as  his
\n     agent  Shri Gulati who was really the nominee and the husband  of the  respondent?  The reason obviously was that Shri  Gulati  was regarded  really interested in his wife, namely, the  respondent, rather  than  in the appellant whose interests  were  opposed  to those of the respondent. By his relationship with the  respondent and  also by the nomination by the respondent Shri Gulati was  in the position of a representative or an agent of the respondent in fact.\n<\/p><\/blockquote>\n
     It  is only in law that he became an agent of the  apellant.  But this  agency  was only with a view to serve the  purpose  of  the respondent.This  is why the last sentence in paragraph 3  of  the said agreement states that the appellant shall not be liable  for negligence  of Shri Gulati “who is the nominee” of his own  wife. Since Indian ladies traditionally do not transact business activities,  it  is  well known that their husbands  figure  as  their representatives  or agent in these activities. This is  why  Shri Gulati  has acted for the respondent in these  transactions.  His interest in the transaction was the same as that of his wife.  It was,  therefore,  the interest of Shri Gulati that  the  property which was the subject matter of the agency should be conveyed  by the appellant to the respondent. The interest in such  onveyance
\n     was  not  only  of the respondent but also of  Shri  Gulati.  The powers of attorney in favour of Shri Gulati were executed by  the appellant on the same date on which he executed the agreement  of sale in favour of the respondent. Since Shri Gulati acted for his wife, all these documents, therefore, constitute one transaction. The power of attorney are granted to Shri Gulati only because  an agreement  of sale is entered in favour of his wife. Shri  Gulati no  less than his wife is, therefore, interested in the  subject-matter of the agency, namely, the shop. If the agency were to  be terminated, prejudice would have been caused to the interest  not only  of the respondent but also of Shri Gulati. Section  202  of the Contract Act, therefore, prohibited the appellant from terminating  the agency of Shri Gulati before the shop was  duly  conveyed by the appellant to the respondent.”\n<\/p><\/blockquote>\n
22.  Therefore,  I hold that the registered deed (Ext.P-3)  cancelling  the power  of attorney dated March 6, 1978 (Ext.D-7) is of no  consequence  and the  power of attorney Ext.D-7 in favour of Sardar Saran Singh  still  sub-\n<\/p>\n
sists.   The  receipt  Ex.D-5  executed  by  the  plaintiff  recites   that Rs.10,000\/-  paid  by the defendants by way of a cheque dated  January  25, 1978  (Ext.  D-4) was received by him as token advance for  the  plot.  The intention  of the parties to the transaction can also be gathered from  the language used in the receipt which states as follows:\n<\/p>\n
     “Received  with  thanks a sum of Rs.10,000\/- vide  cheque  No.73H 090103 dated January 25, 1978 ……… from Surinder Singh Kalra and Smt. Ramandeep Kaur……..a token advance of my plot…….. and balance payment will be made on or before March 7, 1978.\n<\/p>\n
     Sd\/- Kuldip Singh Suri.”\n<\/p>\n
23.  Thus  it  is clear that in January 1978, before the execution  of  the construction  agreement(Ext.D-6), Irrevocable registered Power of  Attorney (Ext.D-7),  registered Will Ext.D-9, affidavits Ext.D-10 to  Ext.D-13,  the plaintiff had received the token advance for the plot. This is also indica-tive of the transaction being one of agreement to sell. The receipt clearly shows that the plaintiff had received a sum of Rs.10,000\/- from the defend-ants  as  advance for the plot and not as advance on  account  of  security deposit  for  due performance of the terms of the  construction  agreement.\n<\/p>\n
Normally  in cases where a contractor is employed for the purposes of  con-struction of a building, it is the owner which makes the advance payment to the  contractor  towards the cost of the construction of the same.  In  the instant case, according to the plaintiff, the contractor not only paid  the so called security deposit of Rs.1,82,500\/- but was also required to  spend a  sum of Rs.5 lakhs from his own pocket without expecting any amount  from the  owner till the receipt of the completion certificate for the  building from  the  appropriate authority. Thus the entire investment for  the  con-\n<\/p>\n
struction  had to be made by the contractor and not by the owner. It  is  a well  known practice in Delhi that in respect of a  building  collaboration agreement, the contractor offers to develop the vacant land by making flats thereon & offers some money and a specified percentage of the built up area or  a  share of profits derived from the sale of the flats. In  a  building collaboration  agreement normally the owner is not to spend any  amount  on the  development  and construction of flats and it is  the  contractor  who invests  the money. But the qualitative difference between a building  collaboration  agreement  and  the so called construction  agreement,  if  its express purpose is to be accepted, is that in the former case the  contrac-tor spends the entire money as he gets predominant share in the constructed area, while in the latter case the contractor does not get any interest  in the property and yet constructs the same at his own cost for the owner  who
\nis  to pay the money at a later stage on completion thereof.  The  explicit purpose of the construction agreement runs contrary to human probabilities.\n<\/p>\n
24.  As per the agreement, Ext.D-6, the defendants were to pay the taxes to Delhi Municipal Corporation and the ground rent to DDA. In case the  plain-tiff was entering into a construction agreement, he being the owner of  the property  would  have been liable to pay the taxes to the  Delhi  Municipal Corporation and the ground rent to DDA and not the defendants. This feature is also not compatible with the case set up by the plaintiff.\n<\/p>\n
25.  Clause  18 of the construction agreement talks of execution of a  sale deed  and makes the defendants liable for the payment of the stamp duty  on the  sale deed and registration charges. This condition is in keeping  with the practice that it is the vendee who pays such expenses. This also  lends support to the theory that construction agreement was nothing but a  device to  hide the true nature of the transaction so as to get over the  restric-tion on transfer of the land.\n<\/p>\n
26.  Learned counsel for the defendants pointed out that the plaintiff  did not have the financial capacity to built the house on the plot in  question and was in need of money. He had to pay a sum of Rs.50,000\/- to his brother as  owlets in respect of the entire ground floor of C-426, defense  Colony, New  Delhi which was owned by his father during his life time. Besides  his son was constructing a house at Chandigarh in the year 1978. The  plaintiff in  his  statement  has admitted that after the death of  his  father,  the entire ground floor of the defense Colony house came to his share on partition  between  him  and  his  brother for which he had  to  pay  a  sum  of Rs.50,000\/- to his brother as owlets. He also admitted having renovated the ground floor of the defense Colony house. The plaintiff however, has denied that  he had withdrawn any money from United Commercial Bank, where he  had deposited Rs.1,82,500\/- after taking the same from the defendants, for  the
\npurposes  of construction of the house of his son in Chandigarh.  From  the statement  of the current account of the plaintiff Ex.D-2, it  is  manifest that  from  March  1978 till the end of December 1978  the  entire  sum  of Rs.1,82,500\/-  had  been utilised by him. This indicates that in  case  the transaction between the plaintiff and the defendants was in the nature of a construction  agreement,  the  plaintiff in the ordinary  course  of  human conduct would not have utilised the above said amount received from them by the  defendants as the same along with the construction cost and profit  of
\nthe  defendants  had to be returned to the defendants.  The  plaintiff  has failed to show that in or about the time when the defendants had construct-ed  the house the plaintiff had the means to pay a sum of Rs.8,07,500\/-  to the defendants. According to the own showing of the plaintiff (as reflected from the disputed letter dated May 12, 1981) he was aware of the fact  that house  was  ready  in the year 1981. The plaintiff ought  to  have  adduced evidence  to  show that he had set apart a sum of Rs.8,07,500\/-  which  was available  to  him in the year 1981 for being paid to the  defendants.  The
\nutilisation  of  the  said sum of Rs.1,82,500\/- by the  plaintiff  and  his failure to show that he had the availability of Rs.8,07,500\/- is yet anoth-er factor indicating that actually the transaction was not in the nature of a construction agreement as otherwise he would not have acted in the manner in which he did.\n<\/p>\n
27.  Harish  Chand Bagga (DW-2) was examined by the defendants.  He  stated that the plot in question was sold by the plaintiff to the defendants for a sum  of  Rs.1,82,500\/- and he was paid his commission of Rs.3650\/-  by  the plaintiff.  The  plaintiff  has not denied the factum, of  payment  of  the commission to Harish Chand Bagga by means of a cheque Ext.D-1. The  payment of  2% commission to the property agent also supports the theory  that  the parties had entered into an agreement for the sale of the property.\n<\/p>\n
28.  The transaction in question because of its peculiar features does  not appear  to be a construction agreement at all. The  construction  agreement (Ext.D-6) is merely a cloak to conceal the real nature of the  transaction. The  mist  shrouding the transaction by and between the parties  is  lifted once the construction agreement is examined along with the receipt Ext.D-1, letter of repudiation Ext.D-8, registered Will Ext.D-9, affidavits  Ext.D-1 to  D-13,  the above mentioned facts and circumstances and conduct  of  the parties.  They expose the real intention of the parties and the  nature  of
\nthe agreement entered into by them.\n<\/p>\n
29.  The  above mentioned facts and circumstances overwhelmingly show  that the  subject  transaction was a power of attorney  sale.  The  construction agreement  cannot be read in isolation. In order to judge the nature of  the transaction  it must be viewed in the light of the  circumstances  existing before  and  after the transaction, ordinary cause of  human  affairs,  and human  probabilities.  In a case where the court is to choose  between  two conflicting versions the court in order to unravel the truth must find  out which  one of the two is in tandem with ordinary course of  human  affairs.\n<\/p>\n
These principles haloed by time have found ample judicial recognition.\n<\/p>\n
30.  In  Meer  Usd Oollah vs. Mussumat Beeby Imaman, 1 Moore’s  Indian  Ap-peals, 19, it has been held that in order to arrive at the truth, there  is no better criterion of the truth, no safer rule for investigating cases  of conflicting  evidence than to examine which of the two cases  best  accords with  those  facts according to the ordinary course of  human  affairs  and usual habits of life.\n<\/p>\n
31.  In Ramchandra Rambux vs. Champabai and others<\/a>, href=”javascript:fnOpenGlobalPopUp(‘\/citation\/crosscitations.asp’,”,’1′);”>,  the
\nSupreme  Court  laid  down that in order to judge the  credibility  of  the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to the  Court to look into the surrounding circumstances as well as the probabilities, so that  it may be able to form a correct idea of the rustworthiness  of  the witnesses.\n<\/p>\n
32.  Again  in S. Chattanatha Karayalar Vs. The Central Bank of  India  and others,  AIR 1965 S.C. 1856 and Smt.Indira Kapur and others Vs.  Shri  Sheo Lal Kapoor, , it has been held that to arrive at the  real nature of the transaction, it is open to the Court to look into the attend-ant and surrounding circumstances and contemporary documents.\n<\/p>\n
33.  Therefore, having regard to the preponderance of probabilities as well as all the documents contemporaneously executed along with the construction agreement  and the attendent and surrounding circumstances and  keeping  in
\nview the ordinary course of human affairs and human behaviour, it seems  to me  that  the parties had actually entered into a power of  attorney  sale, which  is nothing more than an agreement to sell, and the  defendants  paid the  full consideration of Rs.1,82,500\/- to the plaintiff who in  turn  accepted  the same and handed over the possession of the land to the  defend-ants.  Thus,  there was not only an agreement to sell by  and  between  the parties  but there was part performance of the same which was signified  by delivery  of possession of land. The failure of the defendants  to  produce
\nthe formal agreement to sell does not alter the above situation. Therefore, it  is  also  not necessary to go into the question as to  why  the  formal agreement  to sell could not be produced by the defendants and  whether  it remained in the possession of the plaintiff or the parties did not  execute the same at all.\n<\/p>\n
34.  The  instant case is not an isolated case of power of  attorney  sale. The power of attorney sales are a reality which cannot be wished away.  The practice of disposal of plots by executing various documents short of  sale deeds is clearly reflected by the decision of the this Court in Usha Malho-tra  vs.  G.S. Uppal, 1991 Rajdhani Law Reporter 223,  wherein  this  Court noticed the practice of entering into construction agreement to use it as a camouflage  for  an agreement to sell. This was a case  where  alongwith  a construction agreement the sub-lessee of the plot, executed inter-alia  the following documents in favour of the purchaser:\n<\/p>\n
     1. Two Wills, one by himself and the other by his wife  bequeath-ing the property to the purchaser.\n<\/p><\/blockquote>\n
     2. General power of attorney appointing husband of the  purchaser as the lawful attorney of the sub-lessee.\n<\/p><\/blockquote>\n
     3.Agreement  to  sell stating that since the sub-lessee  was  not able to construct a building on the plot therefore she agreed  to sell the same to the purchaser.\n<\/p><\/blockquote>\n
35.  Besides  the above documents and several others including a letter  of repudiation  of  the kind executed in the instant case,  the  parties  also executed  a construction agreement similar to the one which is the  subject matter of the case in hand. While the purchaser brought a suit for specific performance, the sub lessee, plot owner, filed an application under Section 20  of the Arbitration Act to enforce the arbitration clause  occurring  in the  construction  agreement. In the suit filed by the  purchaser  the  sub lessee  filed an application under Section 41 of the Arbitration Act.  This court  while  dismissing  the application under section 20 and  41  of  the Arbitration Act observed as follows:\n<\/p>\n
      “It is a matter of common knowledge that in Delhi due to  various restrictions  imposed  on  the owners of plots held  by  them  on perpetual  leasehold  basis, they devise\/methods  to  dispose  of their  plots  by  entering into various  documents  like  in  the present  case.  The construction agreement is not to be  read  in isolation.  I  find, when the Uppals filed the  present  petition u\/S. 20 of the Act, they withheld material nformation from  the  Court. They said nothing except the construction agreement. After
\n     written statement was filed, they in their replication,  admitted execution  of various documents mentioned above. They  said  that agreement  to  sell  was  no doubt executed  by  the  parties  on 1.8.1978 itself, but said that the parties immediately thereafter discussed  the matter the same day and in view of the  fact  that
\n    such a contract was forbidden by law, decided to execute the  construction agreement superseding the agreement to sell. This  cannot be true. They have been then unable to explain the execu- tion; of the wills and the general power of attorney which was  presented for registration on 2.8.1978. They have woefully failed  to explain their letter dated 15.7.1981. If the stand that the  agreement to sell was superseded with the construction agreement  is to be believed, they have no answer to the execution; of other  documents. Prima facie, it does appear to me that the parties  agreed to the sale of the plot in question by Uppals to Usha.  Otherwise, it is difficult for Uppals to explain the delay as to  why for five years after the construction agreement dated  1.8.1978 till April 1983 they kept quiet, and particularly when  Usha was not in construction business.”\n<\/p><\/blockquote>\n
36. Same dispute at a subsequent stage again found its way to this Court, when it was observed as follows:-   “It may be mentioned that in the suit, the plea of the plaintiff  is that it was a sale by irrevocable power of attorney, which was  executed for valuable consideration and an agreement to sell was  also executed and full price was realised. However, in view of  the restrictions on the transfer contained in the lease, the  property could not be conveyed by formal sale deed at the time  when the agreement to sell was entered into and a power of attor- ney was granted by the defendant in favour of the plaintiff  against payment of full consideration for the property. Counsel  for the defendant states that the power of attorney has since  been revoked. I am unable to understand as to how any irrevocable  power of attorney for valuable considertion, could be revoked  simply by a notice under law. Counsel for the defendant states  that the said grant of power of attorney was accompanied by an  agreement for construction. This argument is absolutely fallacious because in fact the transaction appears to be one
\nof a sale  by power of attorney notwithstanding the lack of formality of the  execution of the formal sale deed, which could not be executed in  view of certain restrictions contained in the sale deed. Under  the scheme whereby DDA has given the liberty to the plot holders  to obtain free hold title, the position of purchases by sale on  power of attorney has been recognised nothwithstanding the fact  that such a sale could not be considered to be a sale of the  property in the eye of law under Transfer of Property Act.”\n<\/p>\n
37. Learned counsel for the plaintiff next submitted that assuming the transaction was one of agreement to sell, the same is illegal in view of clause 6 of the perpetual sub lease. Clause 6 of the construction agreement in so far as it is relevant to the case in hand, reads as follows:-\n<\/p>\n
 “6(a) The Sub-Lessee shall not sell, transfer, assign or other wise part with the possession of whole
\nor any part of the residential plot in any form or manner, benami or otherwise, to a  person who is not a member of the Lessee.\n<\/p>\n
 (b) The Sub-Lessee shall not sell, transfer, assign or otherwise  part with the possession of the whole or any part of the residen- tial plot to any other member of the Lessee except with the  previous consent in writing of the Lessor which he shall be  entitled to refused in his absolute discretion.”\n<\/p>\n
38. It is a matter of common knowledge that in all sub leases executed on behalf of the President of India such like restrictive clauses have been incorporated. It is also a matter of common knowledge that due to such like restrictions the power of attorney sales in thousands have been effected. If the instant transaction is held to be illegal then in that eventuality thousands of such transactions on the same token would have to be declared as illegal. This would cause colossal loss and misery to the vendees. Though both the vendors and the vendees are in pari delicto, the vendors would be making capital out of their breach by getting back their proper-ties which over the years have appreciated astronomically. It would be wholly inequitable to declare such agreements being violative of perpetual sub leases. Learned counsel for the plaintiff contended that the fetter imposed by clause 6 of the perpetual sub lease Ext. D-3 is meant to protect public interest as the land in Delhi has become a scarce commodity and therefore, any violation of the same would not only give impetus to the illegal sales but would also be conflict with public policy.\n<\/p>\n
39. Argument though attractive must be repelled. Public policy is not a immutable concept. It must change with the march of time. The Supreme Court in Central Inland Water Transport Corporation Limited and another Vs. Brojo Nath Ganguly and another, (1986) 3 S 156, has observed that public policy connotes some matter which concerns the public good and the public inter-est. The principles governing the doctrine of public policy must be and are capable, on proper occasion, of expansion or modification.\n<\/p>\n
40. In Gherulal Parakh Vs. Mahadeodas Maiya and others, 1959 SC 781, the Supreme Court summarizing the doctrine of public policy observed as fol-lows:-    The doctrine of public policy may be summarized thus: Public  Policy or the policy of law is an illusive concept; it has been  described as “untrustworthy guide”, “variable quality”, “uncerain one”, “unruly horse”, etc. <\/p>\n
41. Thus it is clear that doctrine of public policy is a variable concept which must be fine tuned with demands of time and changing concerns for public good and public interest. Whether in the instant case the above said policy had achieved its desired goal is a question to be considered. The answer is not far to seek. Despite the incorporation of the restrictive clauses in the perpetual sub-leases executed by and between the DDA or L&DO on the one hand and the sub lessees on the other properties have been changing hands through, what are known as, power of attorney sales. This has deprived the state of the stamp duty and registration fee chargeable on the sale deeds. Restrictions have created a situation where there is no incentive for observing honesty. Rather the policy has given boost to dishonesty. If such restrictive clauses did not exit, the sellers and buyers would have entered into straight and regular sale transactions resulting in generation of revenue for the State in as much as the buyers would have been liable to pay the stamp duty and registration fee. In practice the restrictive clauses have worked to the detriment of the State. In order to get over the restrictions a method of sale of the property through execution of power of attorneys, Wills, affidavits and agreements to sell has been devised. It may be mentioned that Government of India on February 14, 1992 has introduced a Scheme whereby lease hold properties acquired from the Government can be converted into free hold. This decision also provides for regularisation of power of attorney sales on payment of penalty. The Scheme originally applied to the DDA and the L&DO plots measur-ing 500 sq. meters. However, by a subsequent office order No.V.11-6\/92 dated June 2, 1994 the Notification dated February 14, 1992 has been made applicable to plots upto 505 sq. meters. Therefore, by virtue of the office order plots measuring upto 505 sq. meters are to be treated as falling under the Scheme dated February 14, 1992. This policy decision of the Government is an eloquent testimony of the fact that the requirements of public interest change with the times and are not static. A time had come where in keeping with the ground realities the Government had to introduce a Scheme for regularising the sales on the basis of the power of attorneys. Experience shows that unnecessary restrictions lead to deceitfulness in arranging ones affairs. The Government had rightly recognised the need for removal of such restrictions.\n<\/p>\n
42. The argument of the learned counsel for the plaintiff that if the transaction is considered to be an agreement to sell, then in that event the same would be clearly void as no prior permission for entering into such a transaction was taken from the DDA for the transfer of the land, is devoid of force. An agreement to sell does not amount to sale or transfer of the immovable property. Therefore, under clause 6(a) and (b) of the perpetual sub lease, there is no bar for a sub lessee to enter into an agreement to sell. As per clause 6(a) if the sub lessee desires to sell or transfer an unbuilt plot to any person who is not a member of the lessee, he is required to take the consent in writing of the lessor. The Privy Council in Motilal v. Nanhelal , laid
\ndown that if the vendor had agreed to sell the property which can be transferred only with the sanction of some government authority, the court has jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanction is forthcoming to convey to the purchaser within a certain time. This proposition of law was followed in Mrs. Chandnee Widya Wati Madden Vs. C.L. Katial, , and R.C.\n<\/p>\n
Chandiok Vs. Chuni Lal Sabharwal, . The
\nPrivy Council in Motilal v. Nanhelal (supra) also laid down that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he has agreed to sell the same to the vendee. In Ajit Prashad Jain Vs. N.K. Widhani and others, , this Court held that the permission from the Land & Development Officer is not a condition precedent for grant of decree for specific performance. While holding so this court relied upon the decision of the Supreme Court in Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial (supra) and Maharo Saheb Shri Bhim Singhji v. Union of India,<\/a> . At this
\nstage it would be appropriate to reproduce the law laid down by this Court :-   “The permission from Land and Development Office is not a condi- tion precedent for grant of decree for specific performance. In  Mrs.Chandnee Widya Vati Madden Vs. Dr. C.L.Katial, :  the
\nSupreme Court confirmed the decision  of the Punjab High Court holding that if the Chief Commissioner  ultimately refused to grant the sanction to the sale the plain- tiff may not be able to enforce the decree for specific perform- ance of the contract but that was no bar to the court passing a  decree for that relief. The same is the position in the present  case. If after grant of the decree of specific performance of the  contract the Land and Development Office refuses to grant permis- sion for sale the decree-holder may not be in a position to  enforce the decree but it cannot be held that such a permission  is a condition precedent for passing a decree for specific per- formance of the contract. I may also notice that S.27(1) of the  Urban Land (Ceiling and Regulation) Act, in so far as it imposes  a restriction on transfer of any urban or unobtainable land with a  building or a portion of such building, which is within the  ceiling area, was declared invalid by Supreme Court in Maharo  Saheb Shri Bhim Singhji Vs. Union of India , and  as such it may not be necessary to obtain permission under the  said Act but that is not a matter with which I am concerned at  this stage. Assuming such a permission is required that would be  a matter for consideration after passing of the decree and at the  stage of execution. No fault can be found out with the  plaintiff’s anxiousness to take possession in terms of the agree- ment on payment of the amounts stipulated therein.\n<\/p>\n
43. Therefore, having regard to the principle laid down in the above said decision of the Privy Council, which was subsequently reiterated by the Supreme Court and various High Courts, appropriate direction can be issued to the vendor to apply for permission of the appropriate authority as required under clauses 6(a) and (b) of the sub lease.\n<\/p>\n
44. Learned counsel for the plaintiff submitted that the counter-claim of the defendants is barred by limitation. The submission is based on basical-ly the letters dated May 12, 1981 (Ext.P-1) and July 21, 1981 Ext.2. It was contended by the learned counsel for the plaintiff that under Article 54 of the Limitation Act, any suit for specific performance of a contract must be brought within three years from the date fixed for performance of the same, or if no such date is fixed, when the plaintiff had notice of the refusal of the performance by the defendant, otherwise the suit would be out of time. It was contended by the learned counsel for the plaintiff that in order to escape the bar of limitation the defendants should have filed the suit for specific performance of the agreement to sell within three years of the receipt of the letters Ext.P1 and Ext.P2. As already noticed, the plaintiff has failed to prove that the letters were despatched to the concerned persons. Since the existence and authenticity of these letters have not been established by the plaintiff he cannot draw any benefit therefrom.\n<\/p>\n
45. The plaintiff illegally cancelled the General Power of Attorney and superseded the Will executed in favour of the defendants only on June 4, 1982. Since this was done by registered documents, a constructive notice thereof to the defendants can be assumed. While the deed of cancellation of General Power of Attorney and the fresh Will is dated June 4, 1982, the counter-claim was filed on January 25, 1985.\n<\/p>\n
46. Therefore, the counter-claim is within three years from the date when for the first time the plaintiff indicated its refusal to perform the contract. Thus, the counter-claim is within time. Accordingly the submis-sion of the learned counsel for the plaintiff grounded on Article 54 of the Limitation Act is rejected.\n<\/p>\n
47. In the light of the above discussion, my findings on each of the issues are as follows :-\n<\/p>\n
 Issue No. 1:\n<\/p>\n
 The plaintiff and the defendants had ostensibly entered into a  construction agreement dated March 6, 1978, but the same was a  camouflage to hide the real nature of the transaction. The so  called construction agreement was in reality a sham agreement and  has no existence in the eye of law.\n<\/p>\n
 Issue No. 2:\n<\/p>\n
 The plaintiff had agreed to sell the subject plot to the defend- ants and the defendants had paid the sale consideration of  Rs.1,82,500\/- to the plaintiff. The plaintiff had in part per- formance of the agreement handed over possession of the suit plot  to the defendants.\n<\/p>\n
 Issue No. 3:\n<\/p>\n
 Since the defendants had paid the entire sale consideration of  Rs.1,82,500\/- to the petitioner, no further obligation was cast  on them which they were to discharge.\n<\/p>\n
 Issue No. 4:\n<\/p>\n
 Documents, namely, receipt-cum-agreement dated January 25, 1978  (Ext.D-5); irrevocable registered power of attorney dated March  6, 1978 (Ext.D-7) executed by the plaintiff in favour of Sardar  Saran Singh Kochhar, father of defendant No.2; undated letter of  repudiation executed by the plaintiff (Ext. D-8) and the registered Will dated March 6, 1978 (Ext. D-9) were
\nexecuted by the  plaintiff not as part of the agreement to construct, but were  executed to nullify and explode the myth that the parties had  entered into a construction agreement. These documents coupled  with Ext. D-10, Ext.D-11, Ext.D-12 and Ext.D-13 and surrounding  circumstances and human probabilities show that the parties had  actually entered into an agreement to sell.\n<\/p>\n
 Issue No. 5:\n<\/p>\n
 Since the plaintiff has received the entire sale consideration  from the defendants, he is not entitled to possession of the suit  property.\n<\/p>\n
 Issue No. 6:\n<\/p>\n
 The defendants are entitled to specific performance of the agree- ment to sell as they were at all times ready and willing to  perform their part of the obligation under the contract and they  also discharged the obligation by paying the entire sale consideration to the plaintiff.\n<\/p>\n
 Issue No. 7:\n<\/p>\n
 The issue is covered by my findings in respect of the main ques- tion.\n<\/p>\n
 Issue No. 8:\n<\/p>\n
 The defendants are not estopped from alleging the agreement to  sell.\n<\/p>\n
 Additional Issue:\n<\/p>\n
 The counter-claim is within limitation.\n<\/p>\n
 Relief:\n<\/p>\n
 In view of the foregoing findings and the con-collusions reached by me in respect of the various points raised by the parties, the suit of the plaintiff for possession of the suit premises is dismissed. The counter-claim of the defendants succeeds to the extent indicated below :\n<\/p>\n
 A decree is hereby passed directing the plaintiff, or in the alternative Sardar Saran Singh Kochhar, to apply to the D.D.A. for permission to sell the suit land to the defendants, and on receipt of the permission execute conveyance deed in favour of the defendants. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Kuldip Singh Suri vs Surinder Singh Kalra on 29 May, 1998 Equivalent citations: 1998 IVAD Delhi 469, 76 (1998) DLT 232, 1999 (48) DRJ 463, 1999 RLR 20 Author: A D Singh Bench: A D Singh ORDER Anil Dev Singh, J. 1. This is a suit for specific performance and possession. The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-243555","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nKuldip Singh Suri vs Surinder Singh Kalra on 29 May, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kuldip-singh-suri-vs-surinder-singh-kalra-on-29-may-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kuldip Singh Suri vs Surinder Singh Kalra on 29 May, 1998 - 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