Full Text
HIGH COURT OF DELHI
M/S KUSHAL INFRAPROJECT INDUSTRIES INDIA LTD. ..... Plaintiff
Through: Mr. Manik Dogra, Mr. Dhruv and Mr. Aditya Singh, Advocates.
Through: Mr. Y.P. Narula, Sr. Advocate with Mr. Abhey Narula & Ms. Taran Narula, Advocates.
Through: Ms. Sonali Dhir with Mr. Aadhar Nauityal, Adv. for D-13
Mr. Y.P.Narula, Sr. Advocate with Mr. Abhey Narula, Advs. for D-17
LTD ..... Plaintiff
Through: Mr. Y. P. Narula, Sr. Advocate with Mr. Abhey Narula, Advs. for D-17.
Through: Ms. Sonali Dhir with Mr. Aadhar Nauityal, Adv. for D-2.
Through: Mr. Suman Chaudhary, Advocate for D-1 to 3 & 5
Mr. Namit Bangia, Proxy counsel.
AND
KUSHAL INFRAPROJECT INDUSTRIES INDIA LTD ..... Plaintiff
JUDGMENT
1. The present suits seek specific performance and alternatively, recovery/damages. Various agreements to sell and receipts-cum-agreements to sell were executed between the Plaintiff and the Defendants. Part payments, including of earnest money were made by the Plaintiff. However, there were allegations of breach made by both parties against each other. In all the suits, the agreements to sell/agreements-cum-receipts have been terminated on the ground of breach by the Plaintiffs, prior to the filing of the suits. Subsequent purchasers have also been impleaded in the suits as Defendants. The suits are at the stage of framing of issues. At this stage, the Ld. counsels for the Defendants have raised two preliminary objections which are as under: (1) That the suits for specific performance are not maintainable as no declaration has been sought that the termination is illegal. (2) That the Plaintiff is guilty of concealment of material facts and hence, the suits are liable to be dismissed.
2. The case of the Plaintiff on the one hand, is that it had fully complied with the various terms and conditions in the agreements to sell and that it is entitled to specific performance. In all the suits, the amounts paid as earnest money range between Rs.[1] lakh to Rs.2,23,73,750/-. The stand of the Defendants is that the Plaintiff was in breach and that it had not paid the complete consideration amount. It is also their stand that the Plaintiff was well aware of the subsequent sale transactions entered into by the Defendants, and had, in fact, in some of the cases objected to the same before the respective Revenue Authorities. Despite the same, at the initial stage, the subsequent purchasers were not impleaded and the proceedings before the Revenue Authorities were also concealed. In one of the suits, (CS (OS) 2113/2013), the Defendant has also taken a stand that the NOC which was required for completing the sale transaction was also obtained. Thus, the earnest money deposits have been forfeited. Some of the Defendants in (CS (OS) 2170/2013, CS(OS) 2376/2013, CS(OS) 305/2014 and CS(OS) 306/2014) are also agreeable to return to the Plaintiffs, the sum advanced as earnest money along with a reasonable rate of interest.
3. In respect of the first objection, it is the submission of ld. counsels for the Defendants, that prior to the filing of the suit itself, the agreement to sell was terminated due to the various breaches by the Plaintiff. The Plaintiff ought to have sought a declaration that the termination is illegal and in the absence of such declaration being sought, following the judgement of I. S. Sikandar v. K. Subramani and Ors., (2013) 15 SCC 27, the suits are not maintainable.
4. The submission of learned counsel for the Plaintiff, on the other hand, is that the judgement in I. S. Sikandar is distinguishable on facts. Reliance is placed on A. Kanthamani v. Nasreen Ahmed, (2017) 4 SCC 654 wherein the objections as to maintainability of the suit were rejected by the Supreme Court under similar circumstances.
5. The case of the Plaintiff is that it is entitled to specific performance in view of the fact that it complied with all its obligations under the agreements to sell and that Defendants were in breach, as the requisite NOCs from the Tehsildar for permission to sell the land and other permissions were not obtained. The question, as to which of the parties is in breach of the obligation under the agreement to sell, is to be adjudicated only after trial. However, the preliminary objection raised is based on the fact that the Defendants had terminated the agreement to sell due to breach by the Plaintiff, and without seeking a declaration that the said termination is illegal, the relief of specific performance cannot be granted.
6. All the suits are at the stage of completion of the pleadings. The subsequent purchasers are yet to file their written statements in some of the matters.
7. By the present order, the preliminary objections raised by the Defendants are being decided.
8. A perusal of the plaints shows that the Defendants had issued notices to the Plaintiff cancelling/terminating the agreement and forfeiting the earnest money/advance received. In the plaint, the Plaintiff has clearly averred that there was no breach on its behalf, as alleged in the termination notice and it was the Defendants who were in breach. Detailed facts have been given as to why the public notices/the notices of termination are false and frivolous. It has also been alleged that the sale deeds executed with the subsequent purchasers are a sham and are void documents, which do not create any right, title or interest in favour of the said subsequent purchasers. The further case of the Plaintiff is that the Defendants’ actions are with the intention to cheat the Plaintiff and to frustrate the agreement to sell. The plaint proceeds on the presumption that the agreement to sell is valid, and the termination of the same is illegal. On this basis, the Plaintiff has prayed for specific performance as also for damages as an alternative.
9. There is no dispute that the termination took place prior to the filing of the suits. However, the question as to which of the parties was guilty of breaching the agreements to sell would require evidence to be led in the matter. The Plaintiff has averred that it was always ready and willing to pay the balance sale consideration. However, in the alternative, the Plaintiff has also prayed for damages.
10. In order for this Court to adjudicate as to whether the Plaintiff is entitled to specific performance or not, the Court would have to go into the contents of the notices issued by the Defendants, as also the reply thereto by the Plaintiff. It would have to be adjudicated as to which of the parties is in breach and if so, what would be the appropriate relief.
11. The said process of adjudication would involve an adjudication of the legality and validity of the notices issued by the Defendants. The notices including the termination notices, are premised on the allegation that the Plaintiff has breached the agreement. If it is held that the Plaintiff has breached the agreement, then the notices would be held to be legal and no decree for specific performance would be liable to be granted. However, on the other hand, if it is held that the Defendants were in breach, the termination would be bad in law, the forfeiture would not be valid and the decree for specific performance would then be considered, depending upon the evidence adduced and other factors. Thus, the validity of the termination is closely intertwined with the determination of breach. The legality of the termination notices would be a necessary factor to be determined in considering the relief to be granted in the suit, if any. Under such circumstances, the illegality or validity of termination would be an inherent aspect to be considered in respect of the relief of specific performance which has been sought. The said issues are inalienable i.e. agreement breach termination suit for specific performance, and each of them is intricately linked to the other.
12. The legality or validity of termination is inbuilt in the relief of specific performance which is sought. In I. S. Sikandar, the legal notice dated 28th March, 1985 which was issued by the Defendant does not appear to have been premised on a breach of the agreement to sell but on the fact that the Plaintiff failed to return the original documents of the suit property. This is clear from a reading of paragraph 7 of the said judgement. Under those circumstances, the Supreme Court had held that the relief of declaration that the termination was bad ought to have been sought by the Plaintiff.
13. In fact, subsequently in A. Kanthamani, the Supreme Court, in a case where the Defendant had cancelled the agreement to sell, held that firstly time was not the essence of the contract and the judgement of I. S. Sikandar turned on the facts involved therein. The relevant observations of the Supreme Court are set out below:
14. Both I. S. Sikandar and A. Kanthamani were cases which were finally adjudicated after evidence was led by the parties and thus until evidence is led, it cannot be held at the initial stage, that the suits are not maintainable.
15. The judgement in Dharampal Satyapal v. Sanmati Trading & Investment Limited, (2017) 239 DLT 350 cited by the Defendants is also distinguishable on facts and was prior to the judgement of the Supreme Court in A. Kanthamani.
16. On an overall appreciation of the facts, it cannot be held that in the absence of a prayer for declaration that the termination is bad in law, the suits for specific performance are not maintainable. At the time of framing of issues, the issue as to the maintainability of the suit can be framed, which can be adjudicated at the final stage.
17. Insofar as suppression of material facts is concerned, the plaints contain various facts and circumstances in respect of the events that transpired prior to the filing of the suits.
18. Further, the proceedings before the Tehsildar and revenue authorities are independent of the relief of specific performance. Though ideally, the facts relating thereto ought to have been disclosed by the Plaintiff, the same cannot be said to bar the suits for specific performance which is a relief that can be granted only by the Court and not by any other authorities. The proceedings before the Tehsildar would be relevant to consider whether the Plaintiff approached the Court in time or whether it acquiesced to the subsequent sales and hence waived the right to obtain specific performance. The said facts relating to the proceedings before the Tehsildar and the revenue authorities may thus have a bearing in the final relief that is to be granted, but the same is not a bar to maintain the suit. Moreover, in most of the cases the letters written by the Plaintiff to the Tehsildar could not have made any reference to the sale deeds which were subsequently executed with the subsequent purchasers. All the letters written by the Plaintiff are prior to the sale deeds in most cases except one, and hence on the dates of filing of suits though the Plaintiff had apprehended that some steps have been taken by the Defendant to sell the suit property, it appears that the actual execution of the sale deed was not in the Plaintiff’s knowledge. Further in one case learned counsel for the Plaintiff in CS(OS) 2170/2013 has clarified that the proceedings before the Tehsildar were in respect of a gift deed and not the sale deed dated 6th April, 2013. The Plaintiff has repeatedly published public notices cautioning the general public against purchase of suit property in view of its agreement to sell with the Defendants. In any case, the question as to when the Plaintiff acquired knowledge of the sale deeds with the subsequent purchasers would also have to be adjudicated in trial.
19. For the above-mentioned reasons, it cannot be held that the suits are not maintainable or are liable to be dismissed at this stage.
20. List for further proceedings on 26th August, 2019.
PRATHIBA M. SINGH JUDGE MAY 31, 2019