RAJ KUMAR SHARMA Vs. PUSHPA JAGGI

JUDGEMENT

(1.) Sh. Goverdhan Lal Jaggi, owner of plot numbers 58, 59, 68A and 60B, measuring about 850 sq. yds. forming part of khasra no. 2/19, situated in the Revenue Estate of Village Kakrola in the abadi known as Nidhi Vihar, Vipin Garden, Uttam Nagar, New Delhi entered into an agreement to sell dated 4th March, 2005 in favour of the plaintiff. In terms of the agreement a sum of Rs. 5 lacs was paid as earnest money (bayana) and the balance amount was to be paid by the plaintiff to the seller on or before 25th June, 2005, upon execution and registration of the sale deed in favour of the plaintiff or his nominee in terms of the said agreement. According to the plaintiff, after execution of the said agreement, the plaintiff had approached Sh. Goverdhan Lal Jaggi for taking actual measurement of the land as the same was postulated under the terms of the agreement. He required the said person to be present on site for such measurement. Unfortunately, Sh. Goverdhan Lal Jaggi died on 9th April, 2005, leaving behind his wife and children as his legal representatives, who have been impleaded in the present suit as defendants. After death of Sh. Goverdhan Lal Jaggi on 9th April, 2005, the plaintiff approached the defendants for taking actual measurement of the land on the spot, but they avoided to do the same, which resulted in issuance of a legal notice by the plaintiff to the defendants on 26th April, 2005. This notice was replied to by the defendants vide their letter dated 4th May, 2005. In this reply a vague stand was taken by the defendant. It was stated that they were not having any knowledge about the transaction as that late Sh. Goverdhan Lal Jaggi had never informed them of the said transaction. They asked for a copy of the documents. It was averred that the notice issued by the plaintiff was vague and uncertain but it was stated that the property, subject matter of the sale deed, was subject to sale on 'as is where is' basis and the title documents showed the area to be 850 sq. yds. The plaintiff and defendant no.2 met on 19th May, 2005 for extension of time, for completion of the sale transaction. In that meeting, according to the plaintiff, the time for performance was extended upto 25th July, 2005 and it was also agreed by the defendant no.2 that they would have the actual measurement of the land taken on spot before completion of the sale by the extended date and reduce the total cost of the land, if the area of the land was found to be less. After the meeting of 19th May, 2005, the plaintiff and the defendant no.2 fixed the time on several occasions but the defendants did not turn up to measure the plot of the land. The plaintiff then in absence of the defendants took the measurement of the land and found the area to be 700 sq. yds. and thereafter he sent another legal notice dated 18th July, 2005 to the defendants requiring them to complete the work of actual measurement of land by 21st July, 2005 and accept the balance sale consideration and execute the sale deed positively by 25th July, 2005. It is further averred in the plaint by the plaint5iff that instead of completing the contractual obligations, the defendants sent a reply to the notice on 20th July, 2005 alleging that as the cost of the land was agreed to be reduced by Rs. 1 lakh in all, in the meeting dated 19th May, 2005, no actual measurement was required to be taken and if the balance amount of consideration was not paid by the extended date, the earnest money paid would stand forfeited. The plaintiff was also informed by the defendants that if the transaction is not completed by 25th July, 2005, the plaintiff would have no right or interest in the said property.

(2.) The plaintiff has specifically pleaded that it was never agreed by him that the property can be sold to the plaintiff by reducing the sale consideration by Rs. 1 lakh. He stated that the defendants were trying to sell the property to third parties and were finding an excuse to wriggle out of the terms and conditions of the agreement executed between him and Late Sh. Goverdhan Lal Jaggi. According to the plaintiff he was always ready and willing to perform his part of the agreement and performance of the contract is not likely to cause any hardship to the defendants and damages would not be an adequate relief for breach of the terms of the agreement. The defendants had already taken and enjoyed a sum of Rs. 5 lacs which was paid by the plaintiff to the defendants. Equities are stated to be in favour of the plaintiff and on these facts, the plaintiff has prayed for passing of a decree for specific performance in favour of the plaintiff and against the defendants after taking actual measurement of the land in question in terms of the contract dated 4th March, 2005. Besides praying for a decree for specific performance and execution of the sale deed in his favour by the defendants, the plaintiff has further prayed in the alternative, compensation and damages of Rs. 5 lacs in addition to return of the earnest money of Rs. 5 lacs already paid by him.

(3.) The suit was contested by the defendants who filed a detailed written statement taking a preliminary objection that the suit is liable to be dismissed for mis-joinder of necessary parties as one of the heirs of deceased Sh. Goverdhan Lal Jaggi i.e. daughter namely Smt. Renu Oberoi was not impleaded as one of the defendants. It is also stated in the written statement that the plaintiff has not come to the court with clean hands and has concealed material facts from the court. He has concealed, particularly the agreement dated 19th May, 2005 which amended the earlier agreement dated 4th March, 2005. The plaintiff cannot be permitted in law and equity, to avoid and evade the consequences of his own breach by resorting to this suit. According to the defendants the plaintiff was never willing and capable of performing his part of the contract and no valid cause of action has been disclosed in the plaint, as such the plaint of the plaintiff is liable to be rejected and suit of the plaintiff is liable to be dismissed. On merits, the case pleaded by the defendants is that Sh. Goverdhan Lal Jaggi, was owner of the plots in question and had agreed to sell the property to the plaintiff for a sum of Rs. 39, 50,000/- , but it was not correct that the price of the plot was to be calculated at a price of Rs.4647/- per square yds. The whole land was to be sold on the basis 'as is where is' for the consideration agreed. It is stated that after the agreement dated 4th March, 2005, the parties had entered into an agreement dated 19th March, 2005 wherein the consideration was reduced by a sum of Rs. 1 lakh and the period for execution of the sale deed was extended by one month. There being no stipulation in either of the agreements for actual measurement of the plot, there was no occasion for the parties to measure the land before execution of the sale deed. It is denied that the plaintiff had ever approached Sh. Goverdhan Lal Jaggi after 4th March, 2005 for the purposes of taking actual physical measurement of the plot. In fact, such a plea would be contrary to the contents of the written contract between the parties dated 4th March, 2005. Notice dated 26th April, 2005 was received by the defendants from the plaintiff and was replied to vide reply dated 4th May, 2005. The stand taken by the defendants can be summed up in what the defendants have stated in paragraph 5 of the written statement, which reads as under:- It is incorrect and is hereby denied that there was any Agreement between them to have the actual measurement of the plot taken before the actual completion of the sale and to reduce the total cost of the land accordingly. On the contrary, on 19.05.2005, it was agreed by the parties in writing under their signature and in the presence of Ghanshyam, the broker involved in the deal between the parties, who also attested the said writing by his signature that the final sale price of the land in question would be reduced by Rs. One Lakh to make it Rs. 38,50,000/-. Since this Agreement took place between the parties after the exchange of the above stated legal correspondence between them, and after both of them were aware of the respective positions of each other, it left no scope for any determination or calculation of the final price after taking the measurements of the plot. Any ambiguity in the Agreement dated 04.03.2005 as to the final price of the land stood finally removed. Both parties then knew for sure that the actual area of the plot in question could be less than the stated 850 sq. yards; the plaintiff was given the beenfit of doubt by reducing the net price of the plot by Rs. One Lakh, and time was extended till 25.07.2005 to enable him to arrange for the balance price. The defendants deny anything contrary to the said written Agreement dated 19.05.2005. It is incorrect and is hereby denied that any Agreement took place between the parties to take the actual measurement of the plot. If it were so, it would have been stipulated in the Agreement dated 19.05.2005. It is incorrect and is hereby denied that after 19.05.2005, many meetings were fixed between the plaintiff and the defendant no.2 to 4 to take the actual measurement of the plot in question. All averments to this effect are false and are hereby specifically denied. No details of the place, date and time when the alleged meetings were scheduled has been indicated. The contents of the amending agreement dated 19.05.2005 also completely rule out any such course of action. The notice dated 18.07.2005 of the plaintiff was meant only to introduce a non-existent issue, and to cover up his own inability to arrange for the balance of the price. The reply of the defendants dated July 20, 2005 clarified the position. The plaintiff has no cause of action to file the suit under reply.