Shri Jasbir Singh v. Royale Ambience Construction Pvt Ltd

1. In the present suit, plaintiff prays for the following reliefs: “a) This Hon’ble Court may be pleased to pass a decree of specific performance in favour of the plaintiff and against the defendant thereby directing the defendant to get their half share in the agricultural land measuring 60 bighas and 17 biswas in khasra No. 22//14 (4-16), 15 (5-17), 16 (4-12), 17 (4-16), 24 (4- 16), 25(4-16), 26(0-4), 22//11/1 (0-18), 20(3-10), 21(4-16), 3//8(4-16), 9/2(3-0), 12(4-12), 3(4-16) in village Ghuman Hera, Tehsil Najafgarh, South West Delhi, New Delhi-110043 demarcated and obtain NOC from Tehsildar and thereafter to execute a sale deed in respect of their half share in the agricultural land measuring 60 Bighas and 17 biswas in khasra No. 22//14 (4-16), 15 (5-17), 16 (4-12), 17 (4-16), 24 (4-16), 25(4-16), 26(0-4), 22//11/1 (0-18), 20(3-10), 21(4-16), 3//8(4- 16), 9/2(3-0), 12(4-12), 3(4-16) in village Ghuman Hera, Tehsil Najafgarh, South West Delhi, New Delhi-110043 in favour of 2017:DHC:5318 the plaintiff against receipt of balance amount of ₹ 4,48,23,700/- and deliver peaceful physical vacant possession of the same to the plaintiff. The plaintiff will bear the registration charges and stamp duty for the same. b) A decree of permanent injunction be passed in favour of the plaintiff and against the defendant thereby restraining the defendant, their agents, employees etc. from in any manner selling, transferring or disposing of their half share or any part thereof in the agricultural land measuring 60 bighas and 17 biswas in Khasra No. 22//14 (4-16), 15 (5-17), 16 (4-12), 17 (4- 16), 24 (4-16), 25(4-16), 26(0-4), 22//11/1 (0-18), 20(3-10), 21(4-16), 3//8(4-16), 9/2(3-0), 12(4-12), 3(4-16) in village Ghuman Hera, Tehsil Najafgarh, South West Delhi, New Delhi- 110043 in favour of anyone except the plaintiff in terms of the agreement dated 22.7.2011. c)Cost of the suit be allowed to the plaintiff. d)Any other order which this Hon’ble court deems fit may also be granted in favour of the plaintiff and against the defendant.”

2. Summons in the suit were issued to the defendant vide order dated 6th January, 2016. Since the defendant could not be served, it was directed to be served by way of publication in English Daily newspaper “Statesman” vide order dated 4th April, 2016. Defendant did not enter appearance, hence was proceeded ex-parte vide order dated 24th April, 2017.

3. It is the case of the plaintiff that the defendant is the owner and is in possession of half share in agricultural land measuring 60 bighas and 17 Biswas in Khasra No. 22//14 (4-16), 15 (5-17), 16 (4-12), 17 (4-16), 24 (4- 16), 25(4-16), 26(0-4), 22//11/1 (0-18), 20(3-10), 21(4-16), 3//8(4-16), 9/2(3- 0), 12(4-12), 3(4-16) in village Ghuman Hera, Tehsil Najafgarh, Sought West Delhi, New Delhi-110043. The defendant approached the plaintiff and made an offer to sell its entire half share in the aforesaid agricultural land at ₹ 86.50 lakh per acre to which the plaintiff agreed and accordingly the plaintiff paid a sum of ₹ 1 crore and a receipt was issued on 22nd July, 2011 in acknowledgement of the aforesaid. The amount of ₹ 1 crore was paid as ₹50,00,000/- (Rupees Fifty lakhs only) in cash and the balance ₹50,00,000/- (Rupees Fifty lakhs only) through cheque no. 036249 dated 22nd July, 2011 drawn on Indian Overseas Bank, Rajouri Garden Branch, New Delhi. The receipt dated 22nd July, 2011 noted that the defendant has agreed to sell his half share in the agricultural land and it was agreed that the balance would be paid on or before 22nd September, 2011.

4. Despite the fact that the plaintiff was ready and willing to pay the balance amount on the agreed date, defendant was not able to get a no objection from the tehsildar. Accordingly a letter dated 20th September, 2011 was written by the defendant to the plaintiff expressing his difficulty in getting no objection from the tehsildar and getting the share demarcated. Vide letters dated 15th November, 2012 and 11th December 2014 the defendant again requested to plaintiff to wait for some more time and to enable him to get the demarcation proceedings. Plaintiff issued a notice on 30th November, 2015 calling upon the defendant to get a NOC from the tehsildar concerned and execute a sale deed in his favour against the balance payment. However, there was no response to the said notice from the defendant.

5. An affidavit by way of evidence was tendered by Jasbir Singh (PW-1) vide Ex.PW-1/A. The receipt-cum-agreement dated 22nd July, 2011 was exhibited as Ex.PW-1/1, the letter dated 20th September, 2011 whereby the defendant expressed his difficulty in obtaining no objection from the tehsildar as Ex. PW-1/2, letters dated 15th November 2012 and 11th December 2014 are exhibited as Ex.PW-1/3 and Ex.PW-1/4 respectively and copy of notice dated 13th November 2015 sent by the plaintiff to the defendant as Ex.PW-1/5.

6. Plaintiff having the agreement to sale cum receipt, payment of part sale consideration of ₹1,00,00,000/-, inability of defendant to get the demarcation done and the notice served, the issue is whether plaintiff is entitled to the decree of specific performance or refund of part sale consideration paid with interest thereon.

7. Supreme Court in the decision reported as (2016) 4 SCC 352 Satish Kumar v. Karan Singh dealing with the issue held: “8. It is well settled that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will not be there even though the contract is otherwise valid and enforceable.

9. This Court in Mayawanti v. Kaushalya Devi [Mayawanti v. Kaushalya Devi, (1990) 3 SCC 1] held thus: (SCC pp. 5-6, para 8)

8. Consequently, the suit is decreed in favour of the plaintiff and against the defendant directing the defendant to refund the amount of ₹ 1,00,00,000/- (Rupees one crore only) to the plaintiff along with interest @ 9% p.a. with effect from 22nd July, 2011, the date of receipt-cum-agreement, till realization along with costs quantified as ₹5,37,600/- (Rupees Five lakhs thirty seven thousand and six hundred only) being the court fee paid and ₹25,000/- (Rupees twenty five thousand only) towards litigation expenses. Decree sheet be drawn accordingly.

JUDGE SEPTEMBER 11, 2017 ‘ga/Anu’