RADHE KRISHAN AGGARWAL Vs. CHANDRAWATI

JUDGEMENT

(1.) This order will dispose of the application of the plaintiff for interim injunction for restraining the defendants from in any manner transferring, disposing or alientating the suit property. Facts of the case is short are that the plaintiff is seeking specific performance of the contract dated 30th June, 1993 alleged to have been executed in his favour by the defendants for sale of the factory premises constructed on 400 sq .yards in Khatoni No. 66, Khasra No. 28 /10/ 3 in the extended lal dora of village Barwala, Delhi - 110 039. Injunction has also been sought restraining the defendants from transferring or alienating the said factory premises. The case as set up in the plaint is that M/s. Delhi Wire Industries, which was a partnership-firm, were tenants in respect of the aforesaid factory premises at a rent of Rs. 850.00 p.m. under defendant No. 1. Defendant No. 2 is the husband of defendant No. 1 and is also stated to be her general attorney. As attorney of defendant No. 1, the said defendant No. 2 had been conducting litigation on her behalf and had been appearing in various Courts from time to time. In a suit bearing No. 84/91 entitled Smt. Chandrawati v. Delhi Wire Industries, the Additional District Judge was pleased to pass adecree on 24th April, 1993 in favour of Mrs. Chandrawati for Rs. 80,000.00 with cost. An appeal.is stated to have been filed by the said M/s. Delhi Wire Industries against the judgment and decree of learned Additional District Judge and by an order dated 8th July, 1993 the execution of the decree has been stated to have been stayed subject to the said M/s. Delhi Wire Industries depositing 50% of the decretal amount. It is alleged that while the said litigation was continuiance, defendant No. 2 acting as an attorney of defendant No. 1 agreed to sell the aforesaid factory premises on 30th June, 1993 for a total amount of Rs. 5,74,000.00 . By way of earnest money a sum of Rs. 20,000.00 is stated to have been paid to defendant No. 2. In the said agreement dated 30th June, 1993, according to the plaintiff, it was stated that a formal agreement will be executed on a non-judicial stamp paper of Rs. 2.00 on 5th July, 1993 from some deed writer at the office of the Sub-Registrar, Kashmere Gate, Delhi. It is alleged that though the plaintiff reached the office of the Sub-Registrar on the appointed date and purchased a non-judicial stamp paper of Rs. 2.00 however, defendant No. 2 demanded payment of the arrears of rent before signing a formal agreement and as such the time is alleged to have been extended to 8th July, 1993 and the same was duly incorporated in the agreement dated 30th June, 1993. The plaintiff is stated to have got prepared a bank draft for Rs. 43,600.00 being up-to-date arrears of rent favouring defendant No. 1 and reached the office of the Sub-Registrar at the appointed place and time alongwith a non-judicial stamp paper of Rs. 2.00 and waited for the defendants but none of the defendants came there and ultimately he is alleged to have left the Office of the Sub-Registrar at 1.00 p.m. A legal notice dated 21st July, 1993 was then served upon the defendants to which a reply was sent by defendant No. 1 on 6th August, 1993. It is stated that as the defendant had failed and were avoiding to perform their obligations under the aforesaid agreement dated 30th June, 1993, while the plaintiff all along was ready and willing to perform his obligations under the agreement, the plaintiff is entitled to get the said agreement specifically performed and has thus filed the present suit.

(2.) Written statement has been filed by the defendants. The defendants stated that there is no agreement to sell between the parties and, therefore, no question of specific performance of the same. It is stated that defendant No. 2 though was empowered to appear in Courts and conduct cases on behalf of defendant No. 1, had not been given any authority by means of any power of attorney or otherwise to sell the property as general attorney of defendant No. 1. It is, therefore, stated that the alleged agreement to sell executed by defendant No. 2 is not binding on defendant No. 1. It is further stated that even as per terms of the alleged agreement, the plaintiff in the event of breach could recover the double of the amount of earnest money of Rs. 20,000.00 paid by the plaintiff to defendant No. 2 and as such the only right of the plaintiff was to file a suit for recovery of Rs. 40,000.00 and the present suit is, therefore, stated to be not maintainable. On merits, it is stated that plaintiff was not willing to perform his obligations under the said agreement to sell and as such he is not entitled to get the said agreement specifically performed.

(3.) A perusal of the agreement to sell shows that the same has been signed by defendant No. 2 as attorney of defendant No. 1. As per the said agreement to sell, defendant No. 2 acting as an attorney of defendant No. 1, had agreed to sell the said factory premises for a total consideration of Rs. 5,74,000.00 and it was agreed that defendant No. 2 will get the agreement executed between the parties on 5th July, 1993. It was also stated in the said agreement that upto the date of agreement, the plaintiff will have to pay the entire arrears of rent and, in case, the plaintiff backs out from the agreement his earnest money will be forfeited and, in case, defendant No. 2 backs out, he will have to pay double of what has been taken from the plaintiff. Mr. Bagai for the plaintiff has argued that though it is mentioned in the agreement that the specific amount will be paid to the plaintiff, in case the defendant backs out from the agreement, the said clause in the agreement will not bar him from filing the suit for specific performance. Reliance has been placed upon a judgment reported as M.L. Devender Singh v. Syed Khaja, AIR 1973 SC 2457. The Supreme Court in the said judgment has clearly laid down that mere specification of a sum of money to be paid for breach in order to compel the performance of the contract does not by itself remove the strong presumption contemplated by the use of the words "unless and until the contrary is proved". The jurisdiction of the Court to decree specific relief cannot be curtailed or taken away by merely fixing a sum even as liquidated damages.