Raisuddin vs Mohd. Chaman Gulzar

Valmiki J. Mehta, J

CM No. 5438/2018(Exemption)

Exemption allowed subject to just exceptions

CM stands disposed of.

RFA No. 148/2018 & CM No. 5437/2018 (stay)

This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit impugning the judgment of

the trial court dated 28.11.2017 by which the trial court has dismissed the suit for specific performance filed by the appellant/plaintiff. Suit however

has been decreed for recovery of Rs.3 lacs paid by the appellant/plaintiff to the respondent/defendant under the agreement to sell dated 31.12.2010.

The facts of the case are that the parties entered into an agreement to sell dated 31.12.2010 for the property of the respondent/defendant bearing

no.70, land measuring 50 sq. yards, part of Khasra No. 274/365, situated at Gali No. 39, Zakir Nagar, Jamia Nagar, Okhla, New Delhi-110025, as

shown in the site plan (hereinafter referred to as the ‘suit property’). The total sale consideration was of Rs.4.5 lacs of which appellant/plaintiff

paid a sum of Rs.3 lacs for entering into an agreement to sell. Balance payment was to be made on or before 10.2.2011 at the time of execution of the

sale documents and delivering possession of the suit property to the appellant/plaintiff. The case of the appellant/plaintiff was that the agreement to

sell could not reach its conclusion of execution of the title documents in favour of the appellant/plaintiff because respondent/defendant on account of

escalation of property prices in the area refused to execute the necessary title documents in favour of the appellant/plaintiff although the

appellant/plaintiff is  pleaded to have been always ready and willing to perform his part of contract for paying the balance sale consideration of

Rs.1.5 lacs.

Respondent/defendant contested the suit and denied execution of the agreement to sell. It was pleaded that appellant/plaintiff is a money lender and

respondent/defendant only had taken a loan of Rs.3 lacs for the purpose of the marriage of his daughter out of which a sum of Rs.1.5 lacs was also

returned to the appellant/plaintiff. The title documents of the property were given to the appellant/plaintiff by the respondent/defendant as security.

Suit was hence prayed to be dismissed.

After pleadings were complete the trial court framed the following issues:-

Whether plaintiff is entitled to decree for specific performance as prayed in clause A of prayer ?OPP

Whether the plaintiff is entitled to the decree for a sum of Rs.4.5 lacs in the alternative as prayed in clause C of prayer ? OPP

Whether the plaintiff is entitled to decree of permanent injunction as prayed in clause B? OPP

Relief.

Parties led evidence and this aspect is recorded in paras 8 and 9 as under:-

During plaintiff evidence, plaintiff examined two witnesses. PW-1 Sh. Raisuddin who tendered his affidavit Ex.PW-1/1 and relied upon following

documents:

Kachha receipt dated 28.12.2010 as Ex.PW1/A

Agreement to sell and purchase dated 31.12.2010 as Ex.PW1/B.

Receipt dated 31.12.2010 as Ex.PW-1/C.

GPA, Agreement to Sell, Affidavit, Possession Letter, Receipt and Will executed by one Raees Ahmad in favour of the defendant in respect of the

suit property as Ex.PW1/D to Ex.PW1/I.

Ikrarnama is 19.02.2011 Ex.PW1/J.

Plaintiff also examined PW-2 Sh. Ishrat Khan as PW-1, a resident of the same locality of the plaintiff, who tendered his affidavit as Ex.PW2/A and

relied on receipt dated 31.12.2010 claiming to be witness of the same.

Trial court has held in favour of the appellant/plaintiff that the agreement to sell Ex.PW1/A though disputed by the respondent/defendant was in

fact executed and this conclusion is derived by the trial court with reference to the Ikrarnama Ex.PW1/J entered into between the parties in the police

station on 19.2.2011 and which talks of the agreement to sell.

Trial court has dismissed the suit for specific performance by holding that the appellant/plaintiff has failed to prove his readiness and willingness

because except making a self-serving averment in his deposition of having with him a balance consideration of Rs. 1.5 lacs, no documentary evidence

was filed to prove the availability of funds with the appellant/plaintiff. Also, the trial court notes that respondent/defendant is not an owner of the suit

property by a title deed, and therefore, no sale deed can be executed in favour of the appellant/plaintiff by the respondent/defendant. Trial court

accordingly by the impugned judgment while dismissing the suit for specific performance has passed a money decree for a sum of Rs.3 lacs along

with interest at 12% per annum from 31.12.2010 till payment in favour of the appellant/plaintiff and against the respondent/defendant on account of

Rs. 3 lacs having been received by the respondent/defendant from the appellant/plaintiff under the agreement to sell.

Learned counsel for the appellant/plaintiff again sought to argue that the appellant/plaintiff had made statement in his deposition of availability of the

balance consideration of Rs 1.5 lacs, however in my opinion trial court has in this regard rightly observed that no documentary evidence was filed to

proved the availability of balance sale consideration, and therefore self-serving depositions cannot be believed with respect to readiness and

willingness as required under Section 16(c) of the Specific Relief Act, 1963.

Learned counsel for the appellant/plaintiff then argued that in terms of the Ikrarnama Ex.PW1/J at least appellant/plaintiff must be given possession

however once again this argument is misconceived because possession can be received under an agreement to sell if the agreement to sell satisfies

the ingredients contained in Section 53-A of the Transfer of Property Act, 1881. Section 53-A of the Transfer of Property Act was amended by Act

48 of 2001 w.e.f 24.9.2001 requiring that before benefit of the doctrine of part performance is available to a buyer under an agreement to sell, the

agreement to sell must be registered and stamped at 90% of the value of the sale price and which admittedly is not the factual position which has

emerged in the present case, and therefore the appellant/plaintiff cannot be granted relief of possession amounting to part performance in violation of a

statutory provision.

I may also note that trial court has granted reasonable rate of interest at 12% per annum when ordinarily courts normally grant 9% per annum.

There is no merit in the appeal. Dismissed.