Full Text
12th February, 2018 RAISUDDIN ..... Appellant
Through: Mr. Anish Shrestha and Mr. Vishal Sameer, Advocates.
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
CM No. 5438/2018(Exemption)
Exemption allowed subject to just exceptions CM stands disposed of.
RFA No. 148/2018 & CM No. 5437/2018 (stay)
JUDGMENT
1. This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit impugning the judgment of the trial court dated 28.11.2017 by which the trial court has dismissed the suit for specific performance filed by the appellant/plaintiff. Suit however has been decreed for recovery of 2018:DHC:1037 Rs.[3] lacs paid by the appellant/plaintiff to the respondent/defendant under the agreement to sell dated 31.12.2010.
2. The facts of the case are that the parties entered into an agreement to sell dated 31.12.2010 for the property of the respondent/defendant bearing no.70, land measuring 50 sq. yards, part of Khasra No. 274/365, situated at Gali No. 39, Zakir Nagar, Jamia Nagar, Okhla, New Delhi-110025, as shown in the site plan (hereinafter referred to as the ‘suit property’). The total sale consideration was of Rs.4.[5] lacs of which appellant/plaintiff paid a sum of Rs.[3] lacs for entering into an agreement to sell. Balance payment was to be made on or before 10.2.2011 at the time of execution of the sale documents and delivering possession of the suit property to the appellant/plaintiff. The case of the appellant/plaintiff was that the agreement to sell could not reach its conclusion of execution of the title documents in favour of the appellant/plaintiff because respondent/defendant on account of escalation of property prices in the area refused to execute the necessary title documents in favour of the appellant/plaintiff although the appellant/plaintiff is pleaded to have been always ready and willing to perform his part of contract for paying the balance sale consideration of Rs.1.[5] lacs.
3. Respondent/defendant contested the suit and denied execution of the agreement to sell. It was pleaded that appellant/plaintiff is a money lender and respondent/defendant only had taken a loan of Rs.[3] lacs for the purpose of the marriage of his daughter out of which a sum of Rs.1.[5] lacs was also returned to the appellant/plaintiff. The title documents of the property were given to the appellant/plaintiff by the respondent/defendant as security. Suit was hence prayed to be dismissed.
4. After pleadings were complete the trial court framed the following issues:- "1. Whether plaintiff is entitled to decree for specific performance as prayed in clause A of prayer ?OPP
2. Whether the plaintiff is entitled to the decree for a sum of Rs.4.[5] lacs in the alternative as prayed in clause C of prayer ? OPP
3. Whether the plaintiff is entitled to decree of permanent injunction as prayed in clause B? OPP
4. Relief."
5. Parties led evidence and this aspect is recorded in paras 8 and 9 as under:- "8. During plaintiff evidence, plaintiff examined two witnesses. PW-
1. Kachha receipt dated 28.12.2010 as Ex.PW1/A
2. Agreement to sell and purchase dated 31.12.2010 as Ex.PW1/B.
3. Receipt dated 31.12.2010 as Ex.PW-1/C.
4. GPA, Agreement to Sell, Affidavit, Possession Letter, Receipt and Will executed by one Raees Ahmad in favour of the defendant in respect of the suit property as Ex.PW1/D to Ex.PW1/I.
5. Ikrarnama is 19.02.2011 Ex.PW1/J.
9. Plaintiff also examined PW-2 Sh. Ishrat Khan as PW-1, a resident of the same locality of the plaintiff, who tendered his affidavit as Ex.PW2/A and relied on receipt dated 31.12.2010 claiming to be witness of the same."
6. Trial court has held in favour of the appellant/plaintiff that the agreement to sell Ex.PW1/A though disputed by the respondent/defendant was in fact executed and this conclusion is derived by the trial court with reference to the Ikrarnama Ex.PW1/J entered into between the parties in the police station on 19.2.2011 and which talks of the agreement to sell.
7. Trial court has dismissed the suit for specific performance by holding that the appellant/plaintiff has failed to prove his readiness and willingness because except making a self-serving averment in his deposition of having with him a balance consideration of Rs. 1.[5] lacs, no documentary evidence was filed to prove the availability of funds with the appellant/plaintiff. Also, the trial court notes that respondent/defendant is not an owner of the suit property by a title deed, and therefore, no sale deed can be executed in favour of the appellant/plaintiff by the respondent/defendant. Trial court accordingly by the impugned judgment while dismissing the suit for specific performance has passed a money decree for a sum of Rs.[3] lacs along with interest at 12% per annum from 31.12.2010 till payment in favour of the appellant/plaintiff and against the respondent/defendant on account of Rs. 3 lacs having been received by the respondent/defendant from the appellant/plaintiff under the agreement to sell.
8. Learned counsel for the appellant/plaintiff again sought to argue that the appellant/plaintiff had made statement in his deposition of availability of the balance consideration of Rs 1.[5] lacs, however in my opinion trial court has in this regard rightly observed that no documentary evidence was filed to proved the availability of balance sale consideration, and therefore self-serving depositions cannot be believed with respect to readiness and willingness as required under Section 16(c) of the Specific Relief Act, 1963.
9. Learned counsel for the appellant/plaintiff then argued that in terms of the Ikrarnama Ex.PW1/J at least appellant/plaintiff must be given possession however once again this argument is misconceived because possession can be received under an agreement to sell if the agreement to sell satisfies the ingredients contained in Section 53-A of the Transfer of Property Act, 1881. Section 53-A of the Transfer of Property Act was amended by Act 48 of 2001 w.e.f 24.9.2001 requiring that before benefit of the doctrine of part performance is available to a buyer under an agreement to sell, the agreement to sell must be registered and stamped at 90% of the value of the sale price and which admittedly is not the factual position which has emerged in the present case, and therefore the appellant/plaintiff cannot be granted relief of possession amounting to part performance in violation of a statutory provision.
10. I may also note that trial court has granted reasonable rate of interest at 12% per annum when ordinarily courts normally grant 9% per annum.
11. There is no merit in the appeal. Dismissed.
FEBRUARY 12, 2018/ib VALMIKI J. MEHTA, J