Full Text
Date of Decision: 6th December, 2013
GULSHAN KUMAR & ORS ..... Appellants
Through: Mr. G.L. Rawal, Sr. Adv. with Mr. Kuljeet Rawal, Amarjeet Singh and
Mr. Jagjit Singh, Advocates.
THROUGH LRS. ..... Respondents
Through: Mr. Ashutosh Dubey, Adv. for R-1, 2 & 4.
Mr. Jayant K. Mehta, Mr. Sukant Vikram and Mr. Anuj Kapoor, Advs for R-3.
Mr. Madan Gera & Mr. Aman Vachher for subsequent purchaser.
RAJIV SAHAI ENDLAW, J
JUDGMENT
1. The appeal impugns the judgment and decree (dated 30th April, 2011 of the Court of the Addl. District Judge (Central-07) Delhi in Suit No.383/2010/1980 filed by the four appellants against Shri Sat Narain Tulsian being the predecessor of the respondents no.1 to 6 in this appeal) of 2013:DHC:6301 dismissal of the suit for specific performance of a contract for sale of property No.H-3/11, Model Town, Delhi constructed over land ad measuring 1250 sq. yds.
2. Notice of the appeal was issued and though the appeal was accompanied with an application for interim relief but the same was not pressed. The Trial Court record was requisitioned. The appellants/plaintiffs however within about ten days moved another application for interim relief to restrain the respondents/defendants from demolishing the subject property. The said application came up before this Court on 11th August, 2011, in order of which date it was observed that the senior counsel for the appellants/plaintiffs was heard at length on the application for interim relief on the date when notice of the appeal was issued but upon the Court being not inclined to grant any interim relief had not pressed the application. The second application for interim relief was thus held to be in abuse of the process of the Court. The application was thus dismissed. The respondents/defendants on that date also informed that the subject property had already been sold by them. The respondent/defendant no.1Shri Raj Kumar Tulsian died during the pendency of this appeal and his legal heirs were substituted vide order dated 9th November, 2011. The appellants/plaintiffs also sought impleadment of Smt. Veena Gupta to whom the respondents/defendants no.1 to 6 had sold the property and the said application was also allowed on 9th November, 2011 and the said Smt. Veena Gupta impleaded as a respondent to the appeal (respondent no.9 as per the amended memo of parties). On the same date i.e. 9th November, 2011 the appeal was also admitted for hearing. Hearing of the appeal was expedited as some of the parties thereto are senior citizens. The senior counsel for the appellants/plaintiffs and the counsel for the respondent/defendant no.3 have been heard. The counsel for the subsequent purchaser Smt. Veena Gupta and the counsel for the respondent/defendant no.3 have also filed written submissions/propositions of law which have been perused.
3. The appellants/plaintiffs on 12th May, 1980 instituted the suit from which this appeal arises, pleading:- (a) that the defendant Shri Sat Naraian Tulsi was the owner of the property; (b) that Shri Bhagat Ram, being father of the present appellants/plaintiffs and husband of the then plaintiff no.5 along with the appellant/plaintiff no.1 Shri Gulshan Kumar intended to purchase the said property and negotiations were going on which matured on 13th April, 1978 when the defendant agreed to make sale of the said property to the said Shri Bhagat Ram and appellant/plaintiff no.1 for total consideration of Rs.4,50,000/-;
(c) that the terms orally settled were that the defendant was to take necessary permission from the Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 (ULCR) and to obtain Clearance Certificate from the Income Tax Department and to otherwise remove impediments to make himself fit to execute the Sale Deed for the purpose of passing appropriate title to the purchasers and to execute deed and get the same registered within a period of six months computed from 13th April, 1978; it was assured that the property was free from all encumberances; that the appellants/plaintiffs were to meet the stamp registration charges; the actual and physical possession was to be delivered at the time of execution and registration of the Sale Deed; that if the defendant failed, neglected or refused to transfer the property with its clean title, the appellants/plaintiffs would be entitled to get the property transferred by an action of suit for specific performance and no amount of compensation would compensate in any circumstances; that if the purchasers refused or neglected in any manner or did not comply with their part of the contract, a sum of Rs.25,000/- shall stand forfeited;
(d) that earnest money to the tune of Rs.25,000/- as advance part payment as agreed was paid to the defendant by cheque drawn by M/s. Bhagat Ram Gulshan Kumar in which the said Shri Bhagat Ram and the appellant/plaintiff no.1 Gulshan Kumar were partners; the balance Rs.4,25,000/- was payable at the time of registration of the Sale Deed; (e) that the defendant executed a receipt for Rs.25,000/- admitting therein the agreement to make sale of the said property and to execute the Sale Deed within the period of six months; (f) that Shri Bhagat Ram died on 2nd April, 1979 leaving the appellant/plaintiff no.1 and the remaining appellants/plaintiffs as his sons, daughter and widow; (g) that the appellant/plaintiff no.1 was suing as a party to the contract as well as an heir of Shri Bhagat Ram and the remaining appellants/plaintiffs as the heirs of Shri Bhagat Ram; (h) that the defendant “now it seems” had not taken any steps for making him fit to execute the Sale Deed and had not obtained the permissions which he had agreed to take;
(i) that during the lifetime of Shri Bhagat Ram, defendant was being approached by the appellant/plaintiff no.1 and had been promising that he was taking steps to get the necessary permissions and clearances and the purchasers had been believing the defendant; (j) that even after the death of Shri Bhagat Ram, the appellants/plaintiffs had been following up with the defendant and were always ready and willing and even then ready and willing to perform their part of the Agreement; (k) that the appellants/plaintiffs got issued a notice dated 29th January, 1980 to the defendant to comply with the formalities and deliver vacant peaceful physical possession of the property; and,
(l) that the defendant by telegraphic reply falsely denied having ever agreed to sell the property.
4. The original defendant Shri Sat Naraian Tulsian contested the suit by filing a written statement, pleading:-
(i) that there was no agreement between the parties;
(ii) in any event the alleged agreement was vague, indefinite, incomplete and incapable of enforcement;
(iii) that the property belonged to the joint family of the defendant;
(iv) that the firm M/s. Bhagat Ram Gulshan Kumar had expressed desire to the defendant to purchase the property but no concluded agreement was arrived at and the negotiations never entered the domain of a concluded contract;
(v) that at no time consideration of Rs.4,50,000/- was agreed;
(vi) that the defendant had very good relations with Shri Bhagat
Ram, both being in the same trade; in January, 1978 the defendant had casually expressed a desire to Shri Bhagat Ram that he was thinking of disposing of his property; Shri Bhagat Ram on behalf of M/s. Bhagat Ram Gulshan Kumar started negotiating with the defendant; while the defendant demanded Rs.12,50,000/- as the price of the property, Shri Bhagat Ram offered Rs.11,50,000/- and the negotiations failed;
(vii) ultimately in the beginning of April, 1978 Shri Bhagat Ram, on behalf of the firm M/s Bhagat Ram Gulshan Kumar again approached the defendant and started negotiations;
(viii) on 13th April, 1978 it was agreed that the price of the property in question would be settled with the intervention of common friends namely Shri Dhanpat Rai of M/s Parma Nand Dhanpat Rai, Shri Shiv Shankar Tulsian and Shri Gian Chand and within six months from that date a sale will be executed by the defendant in favour of M/s. Bhagat Ram Gulshan Kumar after the defendant had also obtained the consent of other members of the family;
(ix) in order to bind the defendant, lest he should dispose of the property to any other person, a cheque for Rs.25,000/- was thrust upon the defendant with a condition that the price will be settled with the intervention of the aforesaid common friends;
(x) that Shri Dhanpat Rai, Shri Shiv Shankar Tulsian and Shri
(xi) in the end of June, 1978, Shri Dhanpat Rai, Shri Shiv Shankar
Tulsian and Shri Gian Chand settled the price at Rs.11,95,000/and directed Shri Bhagat Ram and the defendant to enter into a formal agreement incorporating all the terms thereof and M/s Bhagat Ram Gulshan Kumar should pay another sum of rupees one lac as advance to the defendant on the execution of the agreement;
(xii) both parties agreed to the price and the modus aforesaid;
(xiii) however M/s. Bhagat Ram Gulshan Kumar did not pay the amount by the end of August, 1978 nor any final agreement was executed between the parties;
(xiv) before the agreement could be recorded in writing, there were unprecedented floods in the area of Model Town, Delhi on 5th September, 1978 and the entire property was submerged in water and the said floods remained in the locality for more than ten days;
(xv) due to this calamity, the prices of the properties in the locality immediately fell;
(xvi) that when the floods subsided, the defendant approached Shri
Bhagat Ram to pay rupees one lac and get the agreement engrossed and to get a draft sale deed prepared to enable the defendant to apply to the Income Tax Department for clearances and to the Land Ceiling Authority for permission under the ULCR Act but Shri Bhagat Ram expressed his inability to do so because of change of circumstances and because of the rumor then prevalent of such floods being likely to re-occur every year;
(xvii) that the contract thus came to an end;
(xviii) that the defendant thereafter extensively repaired his property to make it habitable; and,
(xix) that owing to the Central Government having made arrangements to prevent such floods in future, the prices of the properties in the locality had gone up and the suit had been filed taking advantage thereof.
5. The appellants/plaintiffs filed a replication denying the averments in the written statement and reiterating their case.
6. On the pleadings aforesaid of the parties, the following issues were framed in the suit on 8th December, 1980:- “(1) Was there any valid and concluded agreement of sale with regard to the property in dispute between the parties? If so, when and on what terms and conditions? (2) Is the property in dispute Joint Hindu Family property of the defendant and his sons etc.? (3) Was the defendant not competent to enter into any agreement of sale with respect to the property in dispute on account of its being HUF property? (4) Have the plaintiffs locus standi to sue? (5) Did the plaintiff abandon the transaction in question at any time as alleged in the written statement? (6) Have the plaintiffs been ready and willing to perform their part of the contract and they are still willing to do so? If not, to what effect? (7) Relief.”
7. The appellants/plaintiffs examined in all four witnesses. The defendant examined himself in his defence.
8. The learned Addl. District Judge, vide judgment and decree dated 6th April, 2002 dismissed the suit of the appellants/plaintiffs ignoring the oral evidence led by the parties holding that in view of Sections 91 & 92 of the Indian Evidence Act, 1872, the same could not be looked at.
9. The appellants/plaintiffs preferred RFA No.363/2002 to this Court which was disposed of vide judgment dated 11th September, 2008. It was held that the agreement pleaded by the appellants/plaintiffs was not predicated on the receipt for Rs.25,000/- for Sections 91 & 92 supra to be invoked; the case of the appellants/plaintiffs was of an oral agreement with the receipt being an evidence thereof and thus Sections 91 & 92 were not attracted. However since the learned Addl. District Judge had not returned any finding on the basis of the evidence led, though the judgment and decree dated 6th April, 2002 of dismissal of the suit was set aside but the suit remanded to the Addl. District Judge for decision afresh on the existing pleadings, issues framed and evidence led, after hearing the counsels for the parties.
10. The learned Addl. District Judge has now vide the impugned judgment and decree dated 30th April, 2011 again dismissed the suit, finding/observing/holding:-
I. Shri Dharamvir Verma, Property Dealer examined by the appellants/plaintiffs deposed that though the appellants/plaintiffs had asked the defendant to write down the sale consideration of Rs.4,50,000/- which had been agreed upon in the receipt, however the defendant had stated that there was no need thereof; however in cross examination he agreed that usually sale consideration is mentioned in the document when the earnest money is given though explained that in the subject transaction it was not done because of the intimacy between the parties;
V. the deposition of the appellants/plaintiffs and their witnesses to the said effect was contrary to the case of the appellants/plaintiffs in their pleadings;
X. that in the receipt not only the fact of payment of Rs.25,000/was mentioned but it was also mentioned that the Sale Deed will be executed within six months; it implied that the receipt was not merely an acknowledgment of payment but was something more than that;
11. Before I proceed to record the respective contentions, it is deemed appropriate to re-produce the English translation of the receipt aforesaid in Hindi proved as Ex.P[4] as given in the impugned judgment and to which translation no objection has been raised by either counsel. The same is as under:- “Shree Ganeshay Namah” Bavat Kothi No.H-3/11, Model Town Walon Ki Bawat advance ka cheque Rs.25,000/-, cheque No.762815 Indian Overseas Bank, Model Town upar ka Sh. Bhagat Ram Gulshan Kumar Ji se vasool paaye. Registry 6 maah tak karva denge.”
12. The senior counsel for the appellants/plaintiffs has argued:-
13. The counsel for the respondent no.3 has argued:-
I. that while issuing notice of the appeal, no interim stay as sought restraining the respondents / defendants from dealing with the property was granted and the respondents / defendants accordingly sold the property;
II. that the appellants/plaintiffs in the plaint did not plead that on 13th April, 1978 they had asked the defendant to mention the total sale consideration agreed in the receipt or that the defendant had avoided the same stating that he would within two or three days have a formal Agreement to Sell drafted recording terms and conditions agreed and send it to the appellants/plaintiffs for execution, as deposed by the appellants/plaintiffs and their witnesses in evidence and the same showed that the appellants/plaintiffs in the plaint had not pleaded the entire agreement;
III. that Form 34A under the Income Tax Rules requires the consideration to be mentioned and it is not the plea of the appellants/plaintiffs that any Form 34A was signed by the defendant; the only conclusion is that no sale consideration had been agreed upon between the parties on 13th April, 1978;
IV. that there was absolutely no communication from the appellants/plaintiffs till the six months from 13th April, 1978 in which time according to the appellants/plaintiffs the permissions were to be obtained and Sale Deed to be executed;
V. there was no communication for over one year after the expiry of the said six months also, till the notice dated 29th January, 1980 was issued;
VII. that ordinarily a party to an agreement does not issue a notice straightway and issuance of such a notice shows that the same was in preparation to file a suit;
VIII. though the appellants/plaintiffs had not pleaded but had deposed involvement of a broker; that there are inconsistencies in the versions of the agreement in the depositions of the appellants/plaintiffs and their witnesses;
IX. attention is invited to V.R. Sudhakara Rao Vs. T.V. Kameswari (2007) 6 SCC 650 laying down tests for an oral Agreement to Sell;
X. that though the appellants/plaintiffs in their evidence sought to justify non-mentioning of the sale consideration in the receipt on account of intimacy with the defendant but have not pleaded such intimacy;
XIII. reliance is placed on Lalit Kumar Sabharwal Vs. Ved Prakash Vijh 2003 (68) DRJ 670 to contend that merely a receipt signed by one party only cannot be an Agreement to Sell;
XIV. reliance is placed on Ameer Mohammed Vs. Barkat Ali AIR 2002 Raj 406 to contend that when the plaintiff bases the suit on the basis of oral Agreement of Sale then it is the duty of the plaintiff to disclose all material facts and particulars with all the conditions of the agreement and the surrounding circumstances including in whose presence the agreement was entered into and what negotiations took place and the plaintiff is required to prove the oral agreement as a whole, by trustworthy evidence;
XV. that the grant of the relief of specific performance is a discretionary one and the said discretion ought not to be exercised in favour of the appellants/plaintiffs 33 years after the Agreement to Sell; and,
14. The senior counsel for the appellants/plaintiffs in rejoinder has contended:- (A) that the application for permission in Form-34 A under Section 230A of the Income Tax Act is not required to be signed by the purchaser; (B) reliance is placed on Maman Chand Vs. State 2008 VII AD (Delhi) 21 & M/s. Chuni Lal Dwarka Nath Vs. Hartford Fire Insurance Co. Ltd. AIR 1958 Punjab 440 on the effect of noncross examination of a witness on any particular aspect;
(C) that in cases of Agreement of Sale of immovable property, specific performance is the norm and refusal an exception; reliance in this regard is placed on Ajit Prashad Jain Vs. N.K. Widhani AIR 1990 Delhi 42;
(D) that the defendant had been taking adjournments in the suit and is responsible for the long delay and cannot now use the same to defeat the just claim of the appellants/plaintiffs for specific performance; (E) that the defendant by taking false plea of property belonging to his HUF forced the appellants/plaintiffs to summon the Income Tax records, further delaying the proceedings; (F) that when a identical property in the year 1980 has been proved to have been sold for Rs.[6] lacs, the price agreed upon on 13th April, 1978 as pleaded by the appellants/plaintiffs of Rs.4,50,000 is believable; (G) that the discrepancies, in the statements of the witnesses of the appellants/plaintiffs, relied upon by the respondents / defendants are owing to their testimony being recorded after long passage of time; (H) that the perusal of the Trial Court record shows that the defendant tried for three years to prevail upon the mediators named in the written statement to depose in his favour but failed;
(I) that once the version of the defendant of the terms & conditions of the oral Agreement to Sell has not been proved, the version of the appellants/plaintiffs has to be accepted; (J) that Section 16 (c) of the Specific Relief Act, 1963 does not require any particulars of readiness and willingness to be pleaded; reliance is placed on Syed Dastagir Vs. T.R. Gopalakrishna Setty (1999) 6 SCC 337 and on Motilal Jain Vs. Ramdasi Devi (2000) 6 SCC 420 in this regard; (K) reliance is placed on Smt. Shakuntla Devi Vs. M/s. Mohanlal Amrit Raj Jain Market, Pali AIR 1994 Rajasthan 259 to contend that the purchaser is required to show his readiness and willingness to pay the balance sale consideration only as and when the occasion therefor arises i.e. when the seller has obtained permission and not prior thereto;
(L) that the appellants/plaintiffs were not required to plead what was deposed as a reason/explanation for non-mentioning of the sale consideration in the receipt; and,
15. The counsel for the subsequent purchaser in his written submissions has contended:-
(i) for specific performance to be ordered, the terms & conditions agreed upon between the parties must be certain and specific; reliance in this regard is placed on M/s Mirahul Enterprises Vs. Mrs. Vijaya Sirivastava AIR 2003 Delhi 15 and M/s Trimurthy Constructions Vs. Vijaya Laxmi Gadgil AIR 1993 Andhra Pradesh 95;
(ii) that the receipt proved in the present case is not an enforceable agreement and is at best an agreement for entering into an Agreement to Sell;
(iii) inconsistencies in the version of the transaction, given in the testimonies of the four witnesses examined by the appellants/plaintiffs are pointed out;
(iv) that from the testimony of all the witnesses, it is established that a regular agreement for sale was agreed to be executed later on between the parties and which admittedly was not executed and there is thus no concluded contract between the parties; reliance in this regard is placed on Mayawanti Vs. Kaushalya Devi (1990) 3 SCC 1 and Ganesh Shet Vs. Dr. C.S.G.K. Setty (1998) 5 SCC 381 and on Rabindra Nath Sahu Vs. Mrs. Maya Devi AIR 1991 Patna 192;
(v) non-mentioning of the total sale consideration on the receipt can lead to only one conclusion that on the date of execution of the receipt, the same had not been agreed upon;
(vi) that the evidence of the property broker being beyond pleadings cannot be looked at;
(vii) that the learned Addl. District Judge has erred in holding the appellants/plaintiffs to be financially capable even though the appellants/plaintiffs had not led any evidence in this regard and the finding of the learned Addl. District Judge is based on mere oral assertions of the appellants/plaintiffs appearing as witnesses; and,
(viii) that from the facts it is clear that the defendant had abandoned the agreement.
16. The counsel for the respondent No.3 in the list of cases on relevant propositions of law has referred to a large number of other judgments than which were cited at the time of hearing but the same cannot be permitted; thus no cognizance thereof is being taken. Mention may however be made of Brij Mohan Vs. Sugra Begum (1990) 4 SCC 147 and V.R. Sudhakra Rao Vs. T.V. Kameswari (2007) 6 SCC 650 laying down the tests to be applied in specific performance of an oral agreement. Reference may also be made to Pelikan Estates Pvt. Ltd. Vs. Shri Kamal Pal Singh 2004 VI AD (Delhi) 185 though concerned with the grant of interlocutory relief in suits for specific performance of an oral agreement to sell.
17. I have considered the rival contentions.
18. I had during the hearing enquired from the senior counsel for the appellants/plaintiffs whether not the application for permission under ULCR Act which according to the appellants/plaintiffs was agreed to be obtained in a time span of six months between the date of the oral Agreement to Sell i.e. 13th April, 1978 and the date fixed for completion of sale, was required to be signed by the purchaser also in as much as the said permission could not have been granted without the authority granting the said permission being satisfied that the purchaser was eligible to acquire the property. Though the senior counsel for the appellants/plaintiffs had stated that he will revert to the said aspect in his rejoinder, but no answer has been given.
19. My own study shows that Section 27 of the ULCR Act prohibited transfer by way of sale of any urban land with a building or a portion only of such building except with the previous permission in writing of the Competent Authority constituted under the said Act. Sub Section (2) of Section 27 required the person desiring to make a transfer to make an application in writing to the Competent Authority in such form and in such manner as may be prescribed. Sub Section (3) provided for the Competent Authority to, after making such enquiry as it deemed fit, by order in writing, grant or refuse to grant permission applied for; Sub Section (4) provided that if refusal of the permission was not communicated to the applicant within 60 days of the receipt of the application, the permission would be deemed to have been granted. The Urban Land (Ceiling Regulations) Rules, 1976, by Rule 14 prescribed the application under Section 27(2) to be in Form-VIII to the said Rules. A perusal of the said prescribed form shows that the application was required to be not only signed by the transferer and was required to be accompanied with a copy of the document to be executed in regard to the transfer but was also required to be signed by the transferee and the transferee was also required to state in the said form the purpose for which the transferee intended to utilize the property as well as to furnish a declaration that he did not hold any urban or urbanizable land with a building or give particulars of such urban land with building held by him.
20. That being the position, even if the version of the appellants/plaintiffs as set out hereinabove were to be believed, the appellants/plaintiffs do not claim that they took any steps for preparation/drafting of the document to be executed in regard to the transfer and copy of which was to be attached to the application for permission under the ULCR Act. Also it is not the case of the appellants/plaintiffs that they prepared the statement required to be furnished by them under Form-VIII supra or the declaration required to be made by them of the purpose for which they intended to use the property or handover the same to the defendant for submission as part of the application to the Competent Authority under the ULCR Act. The only inference can be, of the appellants/plaintiffs having not pursued the Agreement to Sell and having not done what they were required to do.
21. In the light of the deemed permission within 60 days as provided under Section 27(4), a doubt also arises as to why the parties had agreed to a time of six months for execution of the Sale Deed. If the agreement of the parties, as set up by the appellants/plaintiffs was of the said period of six months having been stipulated for obtaining the permission under the ULCR Act, a period of say about three months was sufficient. The fixation of a period of six months as borne out from the receipt thus does not appear to be in consonance with the agreement pleaded by the appellants/plaintiffs, of being for the purpose of permission under the ULCR Act.
22. The matter can be looked from another aspect also. From the absence of any pleading or deposition by the appellants/plaintiffs of the appellants/plaintiffs being eligible for permission under Section 27 of the ULCR Act or of the appellants/plaintiffs having not taken any steps for submission of the said application to the Competent Authority under the said Act and which application could not have been submitted by the defendant on his own, a doubt also arises whether an agreement as pleaded by the appellants/plaintiffs was at all reached. If such an agreement had been reached, the appellants/plaintiffs certainly in accordance therewith would have taken steps for submission of application in Form VIII for permission under the ULCR Act.
23. Thus whichever way one looks at, the conclusion is inescapable that either the terms of the oral Agreement to Sell pleaded by the appellants/plaintiffs are false or if they are true, the appellants/plaintiffs are guilty of non-performance thereof.
24. I may add that the Supreme Court in Maharao Sahib Shri Bhim Singhji Vs. Union of India AIR 1981 SC 234 had declared Section 27(1) of the ULCR Act as invalid in so far as it imposed a restriction on transfer of any urban land with building which was within the ceiling area. However the subsequent declaration of 27(1) as unconstitutional to the said extent would have no bearing on the transaction of the year 1978 when the parties were required to act in accordance therewith. It may also be mentioned that the ULCR Act was finally repealed in the year 1999.
25. I am also unable to accept the contention of the senior counsel for the appellants/plaintiffs, that of the two versions of the terms & conditions of the Agreement to Sell put up by the contesting parties, this Court is bound to accept one or that since the witnesses material to the version of the defendant had not been examined and the said version is to be disbelieved for the said reason, the version of the appellants/plaintiffs is bound to be accepted. Though the counsel for the subsequent purchaser cited Ganesh Shet supra on the aspect of grant of the relief of specific performance being discretionary but I find the Supreme Court in the said judgment to have also held:a. that the plaintiff in a suit for specific performance cannot be permitted to abandon the case made out in the plaint and to invite the Court to examine whether a completed agreement may or may not be spelt out of the antecedent correspondence; b. that the Court would not permit the plaintiff to depart from the case made in the plaint as the Court discourages as a rule, variance between pleading and proof; c. that when the plaintiff alleged a contract of which he sought specific performance and failed to establish the same, the Court would not make a decree for specific performance of a different contract; d. that a plaintiff who has sought specific performance of a contract reached in the month of August cannot get a decree on the basis of evidence of a contract having been reached in May; e. that the plaintiff having failed to prove an agreement which he had set up will be refused specific performance of a different agreement admitted by the defendant; and, f. that the contract sought to be enforced by the plaintiff must be established.
26. It thus follows that merely because this Court may not find the defendant to have proved his version of the transaction, is no reason for this Court to believe the appellants/plaintiffs, unless the appellants/plaintiffs have proved the oral contract pleaded by him.
27. I otherwise agree in entirety with the reasoning given by the learned Addl. District Judge on a correct appreciation of the evidence recorded in the suit and thus do not feel the need to reiterate the same.
28. I may only add that though the appellants/plaintiffs had not pleaded the agreement having been arrived at through a broker as was deposed in evidence but even if that were so, it belies any logic as to why the said broker Shri Dharamvir Verma who was examined as PW[2] did not follow up the matter of obtaining permission under the ULCR Act. The said broker in his deposition has not deposed having taken any such steps as the brokers in the transactions, are expected to and normally do.
29. I also find merit in the contention of the counsel for the respondent/defendant no.3 that ordinarily the fist missive from a party to an agreement to the other is not a legal notice unless some altercations have taken place between the parties. No such altercation is pleaded; rather the appellants/plaintiffs have built up a case of intimacy with the defendant. In the ordinary course of human behavior, if any oral agreement as pleaded by the appellants/plaintiffs had been reached, the appellants/plaintiffs would have definitely written to the defendant enquiring about the status of the permissions which had been agreed to be taken or offering to assist in the same. Nothing of the sort was done. The only inference is of no such agreement having been reached.
30. The relief of specific performance is undoubtedly a discretionary one. The facts of the present case are such which also require the discretion to be not exercised in favour of the appellants/plaintiffs. The agreement pleaded by the appellants/plaintiffs is of 13th April, 1978 with a date of completion thereof within six months i.e. by 12th October, 1978. The fist missive as aforesaid from the appellants/plaintiffs is dated 29th January, 1980 i.e. after nearly one year and three months of the date stipulated for completion. The Supreme Court in K.S. VidyanadamVs. Vairavan (1997) 3 SCC 1 reiterated in Sardamani Kandappan Vs. S. Rajalakshmi (2011) 12 SCC 18 has held that the Courts will frown upon suits which are not filed immediately after breach/refusal and the fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain specific performance. It was further held that the three year period is provided to assist the purchasers in special cases, as where major part of the consideration has been paid and possession delivered in part performance. The bare pleas and statements of the appellants/plaintiffs of having approached the defendant from time to time would not suffice. The appellants/plaintiffs as aforesaid were also required to join in making the application for permission under the ULCR Act and had the appellants/plaintiffs been following up the matter as claimed by them, the question of the appellants/plaintiffs joining in the same would also have arisen. The Supreme Court in Umabai Vs. Nilkanth Dhondiba Chavan (2005) 6 SCC 243 has held that mere bare statement in the plaint or in the examination-in-chief of readiness and willingness would not suffice and the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances.
31. There is yet another aspect of the matter. Admittedly the property was inundated with flood waters, towards the end of the six months time for completion of the sale according to the oral agreement pleaded by appellants/plaintiffs. It is axiomatic that the prices of such a property would fall and there would be few takers thereof. Even if the entire story set up by the appellants/plaintiffs is to be believed, the waking up of the appellants/plaintiffs after one year and three years of the date fixed for the sale, has necessarily to be seen in the said context and which is sufficient to exercise the discretion against the appellants/plaintiffs.
32. No merit is thus found in the appeal which is dismissed. I however refrain from imposing any costs on the appellants/plaintiffs. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J DECEMBER 06, 2013 pp