SHAKUNTALA BHOLLA Vs. SHEEL CHAND JAIN

JUDGEMENT

(1.) THIS suit has been filed by the plaintiff for specific performance of an agreement to sell dated 1st September 2003.

(2.) BRIEF facts relevant for the purpose of deciding this suit are that the plaintiff had entered into an entered agreement to purchase the 3rd floor of the property build on a piece of land measuring 200 sq. yards at the premises bearing number 45/12, East Patel Nagar, Delhi. The consideration, as agreed between the parties, was Rs. 25 lacs. A sum of Rs. 2 lac was paid by the plaintiff at the time of entering into the agreement and Rs. 1 lac was to be paid by 29th September 2003 and remaining Rs. 22 lacs was to be paid by 31st January 2004 and on receipt of this payment, the defendant was to execute a sale deed in respect of the third floor in favour of the plaintiff. The plaintiff's contention is that she approached the defendant on 29th September 2003 with payment of Rs. one lac but the defendant stated that he does not need the payment on that day and he would inform the plaintiff whenever this payment would be needed by him. It is pleaded by the plaintiff that on 10th November 2003, defendant informed her that part payment of Rs. 1 lac be made to him and accordingly plaintiff made payment of Rs. 1 lac to the defendant on 11th November 2003 against receipt. The plaintiff also demanded photocopies of the title documents of the property from the defendant on that day, which he promised to supply in the first week of January 2004 However, copies of the title documents were never supplied by the defendant despite demands made regularly by the plaintiff. Defendant was also required to clear all dues and arrears relating to electricity charges, house tax etc outstanding up to 31st January 2004 Defendant did not supply the documents showing clearance of arrears or the copies of the title documents. On 28th January 2004, the Plaintiff went to the defendant and demanded those documents so that a draft sale deed could be prepared and be shown to the defendant. However, defendant became very rude to the plaintiff and refused to supply the documents and did not give any specific reply. Apprehending mala fide intentions, the plaintiff sent a notice dated 29th January 2004 to the defendant through her advocate calling upon him to complete the transaction by or before 31st January 2004 The notice was received by the defendant on 30th January 2004 However, the defendant did not comply with the demands made in the notice, rather defendant sent a notice dated 2nd February 2004 falsely stating that the plaintiff had failed to pay the balance consideration of Rs. 22 lac on or before 31st January 2004 so the amount of Rs. three lac, already paid by the plaintiff to the defendant, stood forfeited. The defendant intentionally did not refer to the notice of the plaintiff, though received by him.

(3.) IN the written statement, defendant admitted having entered into the agreement to sell quathe property in question with the plaintiff, however, stated that the agreement was signed only by the plaintiff and the defendant and not by the attesting witnesses and the signatures of witnesses appearing on the original agreement to sell filed by the plaintiff were obtained by the plaintiff later on. A copy of the agreement entered between the parties, as available with the defendant does not bear the signatures of the witnesses. He, therefore, submitted that since the signatures of these witnesses were obtained later on, the agreement was a forged document and null and void. He also took the stand that it was the plaintiff who had not fulfilled her part of the obligations under the agreement. Therefore, he had a right to forfeit the earnest money and rescind the agreement. It was denied that on 29th September 2003 plaintiff had approached the defendant for payment of Rs. 1 lac and defendant stated that he did not need money on that day and would inform the plaintiff whenever the amount was needed by him. He submitted that no such amount was tendered to him on 29.09.2003 and the amount was paid belatedly on 11th November 2003. The defendant accepted the amount in order to avoid unnecessary controversy and litigation and also he had always been ready and willing to abide by the agreement. He denied having informed the plaintiff on 10th November 2003 that he needed money as is alleged. It was also denied that on 11th November 2003 any demand for photocopies or title documents were made and the defendant promised to supply her the same in the first week of January 2004 or that these photocopies were never supplied to the plaintiff. He submitted that copies of the title documents were supplied to the plaintiff at the time of signing the agreement to sell itself and all necessary particulars about the title of the property were clearly mentioned in the recitals of the agreement itself showing that the defendant had supplied copies of all the documents including documents regarding conversion of the property from leasehold to freehold. Thus, there was no issue of furnishing any other documents to the plaintiff nor such documents could be demanded by the plaintiff. The plaintiff racked up this issue in the alleged notice and plaint with ulterior motives since she was not ready and willing to perform her part of the agreement. She did not tender the balance consideration or take any steps towards the execution of the sale deed. It is submitted that defendant had cleared all pending bills. Even otherwise, the liabilities to clear all charges and taxes up to the date of execution of the sale deed was that of the defendant, therefore, plaintiff had no reason to avoid balance payment and get the sale deed registered on this ground. The plaintiff had copies of title deeds. If she wanted, she could have got the sale deed prepared and made payment of the balance consideration to the defendant and get the property transferred in her name. However, instead of doing this, she allegedly served a vague notice on the defendant accusing the defendant of non compliance of his part of the agreement. Notice dated 29th January 2004 was not received by the defendant, the plaintiff became dubious. She did not have sufficient funds to pay the balance amount and, therefore, was not ready and willing to perform her part of the agreement but by serving notice she wanted to show converse. It is submitted that since the agreement to sale deed was to be executed on 31st January 2004 before the Sub Registrar, Janakpuri, the defendant reached the office of Sub Registrar, Janakpuri at 10 am for this purpose and stayed there till 1 pm but the plaintiff did not turn up at all and as a result the sale deed could not be executed.