Rahul Kalsi vs Anil Kumar and Others

Rakesh Kumar Garg, J.—This is plaintiffs'' revision petition challenging the orders dated 22.4.2009 and 12.5.2009 (Annexures P-1 and P-2) respectively passed by the Additional Civil Judge, Sr. Division, Gurgaon whereby the plaintiff has been directed to deposit the balance sale consideration and stamp registration charges in the court to show his bona fides towards execution of the sale deed.

As per the averments made in this petition, the petitioner had entered into an agreement to sell on 1.3.2006 in respect of the property in dispute with defendant-respondents No. 1 to 3 for a sale consideration of Rs. 1,31,00,000/-. It is further averred that an amount of Rs. 13,21,000/- was paid by the petitioner to respondents No. 1 to 3 towards advance/earnest money by way of demand draft No. 961253 dated 28.2.2006 drawn on the City Bank, DLF, Gurgaon and the date for execution of the sale deed was settled as on or before 15.5.2006. It is the further case of the petitioner that respondents No. 1 to 3 failed to get the sale deed registered as agreed to by the due date. He received a letter dated 25.8.2006 from the respondents in which it was mentioned that they have forfeited the advance/earnest money paid by the petitioner to them. The petitioner was always ready and willing to perform his part of the contract but respondents No. 1 to 3 had failed to perform their part of contract by the due date and in these circumstances, the petitioner filed the suit for possession by way of specific performance on 26.2.2009.

On receipt of notice of the suit, respondents No. 1 to 3 put in appearance on 25.3.2009. On that date on the basis of a joint statement of counsel for the parties, the following order was passed by the trial Court:

Defendants have appeared through Shri Manu Jain, Advocate. However, it is stated by counsel for the parties that the sale deed would be executed on 15.4.2009, Now the case is adjourned to 15.4.2009 for execution of the sale deed and for further proceeding. In the meantime, status quo in all respect of the suit property be maintained.

On 15.4.2009, the defendants appeared in the Court in compliance of the joint statement made by the counsel for the parties on 25.3.2009 and it was submitted by Sh. Manu Jain, Advocate that they are ready to execute the sale deed today itself. However, counsel for the plaintiff-petitioner submitted that his client was not present and therefore, the case was adjourned to 22.4.2009.

It is also relevant to mention here that on 22.4.2009 an application under Order 1 Rule 10 CPC was filed by one Sanjiv Narang (respondent No. 4 in the revision petition) on the basis of an alleged oral agreement dated 30.12.2005 between the defendants (respondents No. 1 to 3) and the applicant Sanjiv Narang (respondent No. 4) for the sale of the property in dispute for which the defendants had allegedly received a sum of Rs. 10,00,000/- from the aforesaid applicant (respondent No. 4). Learned Counsel appearing on behalf of the applicant could not produce any receipt of Rs. 10,00,000/- and sought adjournment. Keeping in view the facts and circumstances of the case, further opportunity was granted to Sh. R.B. Sharma, learned Counsel appearing on behalf of the applicant- Sanjiv Narang to produce the receipt of relevant record and to show that payment of Rs. 10,00,000/- was made by the applicant to the defendant in pursuance of the alleged agreement dated 30.12.2005. The plaintiffs were also directed to deposit the balance sale consideration and stamp charges in the Court to show his bona fides towards execution of the sale deed and the case was adjourned to 30.4.2009.

On 30.4.2009, again on the request of the plaintiffs, the case was adjourned to 12.5.2009. On that date also, the petitioners failed to deposit the balance sale consideration and stamp charges etc. as directed by the earlier orders and thus, on the request of the petitioner, the Court granted final opportunity to the petitioner to deposit the sale consideration etc. in Court to show his bona fides and adjourned the case to 28.5.2009.

Instead of complying with the aforesaid order, the petitioner has challenged the same in this Court on the ground that since the applicant-Sanjiv Narang vide Annexure P-3 had claimed his right on the plot in question on the basis of oral agreement dated 30.12.2005 which is clearly indicative of the fact that the interest of the petitioner would be adversely affected in case Sanjiv Narang is able to establish his claim over the plot in question as a consequence of agreement to sale entered into between respondents No. 1 to 3 and respondent No. 4 and therefore, the order of the trial Court to deposit the balance sale consideration etc. was erroneous.

Learned Counsel argued that it was imperative on the part of the trial Court to decide the application under Order 1 Rule 10 CPC first and then to proceed with the case in order to avoid further legal complications. It was also argued by the learned Counsel for the petitioner that under Order 15 Rule 1 CPC, the defendant-respondents on 25.3.2009 had agreed to execute the sale deed in favour of the petitioner and therefore, the parties were not at issue and thus, the trial Court ought to have passed a decree for specific performance of the agreement to sell in question in favour of the petitioner and thus, the approach adopted by the trial court is wholly illegal and the impugned order cannot be sustained and are liable to be set aside.

I have heard learned Counsel for the petitioner.

The plaintiff-petitioner has come to the Court for specific performance of the agreement to sell dated 1.3.2006 specifically making averment to the effect that he is still ready and willing to perform his part of the contract on payment of balance sale consideration and he is in possession of necessary expenses.

Upon notice of the suit, the respondents appeared on 25.3.2009 and parties showed their willingness to execute the sale deed on 15.4.2009 as per the alleged agreement and on the joint statement of counsel for the parties, the case was adjourned to 15.4.2009 for execution of the sale deed and further proceedings. However, on 15.4:2009, the petitioner failed to turn up before the Court. The trial Court granted one more opportunity to the petitioner to show his bona fides and adjourned the case for 22.4.2009. However, on 22.4.2009, the petitioner raised argument with regard to the impleadment of respondent Np.4. Still an opportunity was granted and the case was adjourned to 30.4.2009 directing the petitioner to deposit the amount of balance sale consideration and necessary expenses in the Court to show his bona fides. Even this order was not complied with. On 30.4.2009, the Court granted one more opportunity to the petitioner and adjourned the case on 12.5.2009 but the petitioner failed to deposit the same. The petitioner requested another opportunity to comply with the earlier order of the Court. The Court granted one last opportunity to the petitioner at his request and adjourned the case on 28.5.2009 for complying with the earlier orders instead of complying with the aforesaid orders, the petitioner has approached this Court challenging these orders.

It is well settled that for grant of decree of specific performance of agreement to sell it is necessary for the plaintiff to prove his willingness and readiness to perform his part of the contract.

From the aforesaid narration of facts, the conduct of the petitioner is clearly established and it seems that he is not willing and ready to perform his part of the contract. In order to show his bona fides he could have immediately deposited the balance sale consideration and necessary expenses in the Court as on his own showing he was having the necessary funds in his Bank Account. The contention of the learned Counsel for the petitioner that the Court should have decided the application of impleadment of respondent No.4 first before ordering the deposit of balance sale consideration by the plaintiff as the same would adversely affect his rights is without any merit. Vide impugned orders, the Court had directed the petitioner to deposit the amount in the Court to show his bona fides and therefore, there was no question of any adverse effect upon the rights of the petitioner even in case the application of respondent No.4 was decided later. Moreover order dated 12.5.2009 was passed by the Court at the request of the petitioner. It is for the petitioner to deposit or not to deposit the balance sale amount to show his bona fides. It may also be mentioned here that the agreement to sell in question was allegedly executed on 1.3.2006 between the parties and the last date for execution of the agreement to sell was 15.5.2006 whereas the present suit has been filed on 26.2.2009 i.e. almost at the end of limitation period as prescribed under law. According to the averments, after 15.5.2006, the petitioner did not issue any notice to the respondents requesting them to come forward to execute the sale deed in his favour even after receipt of letter dated 25.8.2006 allegedly sent by respondents No. 1 to 3 to him. From the aforesaid facts, the conduct of the petitioner is clear that he is not willing and ready to perform his part of the contract.

The other argument of the petitioner that on 25.3.2009 when the defendant made a statement that they are ready to execute the sale deed in favour of the petitioner, the parties were not at issue on any question of law or of fact and therefore, the Court should have pronounced the judgment in favour of the plaintiff-petitioner at once decreeing his suit as prayed is also without any merit. No doubt under Order 15 Rule 1 CPC if at the first hearing of the suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce the judgments However, this was not the situation before the trial Court in this case. From the order dated 25.3.2009 which is reproduced in the foregoing paragraphs, it can clearly be made out that it was a joint statement by the parties that the sale deed would be executed on 15.4.2009. There is nothing on record to suggest that the parties were not at issue on any question of law or fact on that date. Moreover, under this provision, it is in the discretion of the Court which may pronounce the judgment at once or keep it for further consideration. Since the parties have made a joint statement, it was but natural for the trial Court to adjourn the case for execution of the sale deed and for further proceedings in pursuance of the aforesaid joint statement. In any case, the petitioner has not challenged the order dated 25.3.2009 before any court of competent jurisdiction and therefore, the contention raised by the counsel for the petitioner is without any force and is liable to be rejected.

Thus, for the reasons recorded above, I find no merit in this petition and same is dismissed. However, if the impugned orders are not complied with the trial Court will be free to proceed with the case in accordance with law.