Rajesh Kumar Gupta vs Sonia Bala Jain

Mukta Gupta, J.—By this application the Plaintiff seeks a decree as per provisions of Order XXII Rule 4 r/w Section 151 CPC in favour of the Plaintiff and against the Defendant directing the Defendant to execute and register sale deed in favour of the Plaintiff in respect of the suit property and release the balance sale consideration of Rs. 15 lakhs which stands deposited in this Court to the Defendant and in case of failure on the part of the Defendant, to appoint an officer of this Court to execute and register the sale deed of the suit property in favour of the plaintiff. Learned counsel for the Plaintiff/applicant contends that the Agreement to Sell dated 3rd April, 2010 between the parties has not been denied by the Defendant. Further the payment of Rs. 30 lakhs to the Defendant has also not been denied. The Plaintiff had sent a notice dated 27th April, 2011 to the Defendant seeking specific performance of the contract and in reply thereto no such defence has been taken which has been now pleaded in the written statement. Only in the reply dated 15th May, 2011 it is stated that the Plaintiff was required to pay a further sum of Rs. 10 lakhs beyond Rs. 15 lakhs. The claim of further sum of Rs. 10 lakhs is clearly an after thought and there is no document in relation thereto. Hence in view of the admissions made, the Plaintiff is entitled to decree as prayed for.

Learned counsel for the Defendant on the other hand contends that the Agreement to Sell cannot be read in piecemeal. Para-2 of the Agreement to Sell dated 3rd April, 2010 clearly contemplates that the amount given would be forfeited if the balance sale consideration was not paid by 10th November, 2019. The Defendant was only required to provide the approval certificate for the lift. However, the Plaintiff started demanding the lift as well. In para-9 of the plaint it is stated that the lift was not provided. There is no notice before 10th November, 2010, which was the date when the contract was required to be concluded, stating that the Plaintiff inspected the premises and the work had not been completed. Thus the Plaintiff is not entitled to a decree as prayed for as there is no admission of the facts mentioned in the plaint.

I have heard learned counsel for the parties.

A brief exposition of the facts is that the Plaintiff had entered into an Agreement to Sell dated 3rd April, 2010 with the Defendant for sale of property bearing No. C-9/77, Upper Ground Floor (First Floor), Yamuna Vihar, Delhi-110053 on the plot of land measuring approximately 80 sq. yards comprising two bed room, drawing, dining, two toilets, kitchen etc., as per the tentative site plan along with the car parking on the ground floor (hereinafter referred to as ''the suit property'') for a total sale consideration of Rs. 45 lakhs. The Plaintiff paid a sum of Rs. 30 lakhs out of the said Rs. 45 lakhs and thus the balance of Rs. 15 lakhs remained. It is stated by the Plaintiff that the Defendant assured that best available material would be used for the construction and the building so constructed will be having approved lift, independent car parking for each floor on the ground floor; modular kitchen and the construction would be as per the duly approved plan and design and as per earthquake zone 5 specification. The Plaintiff time and again requested the Defendant to complete the construction and finish the work within the stipulated time, that is, by 10th November, 2011 as per the agreement when the Plaintiff was to give the balance payment of Rs. 15 lakhs. However, the Defendant continued to avoid the Plaintiff on one pretext or the other objecting to the visit of the Plaintiff to the site to inspect the construction, material, design, finish work etc. In the first week of April, 2011 when the Plaintiff impressed upon the Defendant and her husband to complete the construction, finishing work and called upon them for inspection, the Defendant and her husband demanded the balance payment of Rs. 15 lakhs from the Plaintiff to complete the remaining work on the first floor of the building contrary to the terms of the subject agreement. Thus the Defendant has committed breach of agreement having failed to hand over the possession of the suit property within the stipulated time, that is, 10th November, 2010 with complete works like complete wall stone in the staircase; lift, floor grinding and finishing, electric fittings and fixtures, electric connection/meter, kitchen, wood work and installation, water connection etc. Despite the Defendant having failed to comply with the terms, the Defendant got issued a legal notice dated 15th April, 2011 to the Plaintiff through the Advocate asking the Plaintiff to make the balance payment as per the Agreement dated 3rd April, 2010 and in the event of failure on the part of the Defendant it was stated that the Defendant would initiate legal proceedings. The Plaintiff replied to the legal notice on 25th April, 2011 stating the true and correct facts and failure/breach committed by the Defendant as per the terms of agreement and asking her to hand over the possession of the suit property after inspection. The Plaintiff also issued a legal notice dated 27th April, 2011.

In the written statement the stand of the Defendant is that the Defendant duly constructed the suit property as per the agreement dated 3rd April, 2010 and also in accordance with the changes as pointed out later by the Plaintiff however, the Plaintiff deliberately avoided taking the possession of the suit property and the payment of the balance amount. Since the Plaintiff has failed to perform his part of the Agreement to Sell there is no cause of action in favour of the Plaintiff. Since the Plaintiff asked for certain changes in the building material and the other works, the Defendant and her husband duly informed the Plaintiff that these changes as asked for will cost another Rs. 10 lakhs apart from the agreed cost to which the Plaintiff duly agreed. Thus the Defendant proceeded with those changes and completed the construction work as agreed to by the Agreement to Sell. Since 10th November, 2010 the Defendant had approached the Plaintiff several times asking him to take possession of the property and for payment of the balance amount. However, the Plaintiff deliberately avoided the balance payment as well as taking the possession of the aforesaid suit property wherein the Defendant has invested much more of money to fulfill the demands of the Plaintiff. After November, 2010 the Plaintiff stopped visiting the site and when the Defendant asked for the balance payment and for extra expenses the Plaintiff started avoiding her. The Defendant carried out the works like false ceiling in all the rooms, imported fancy lights (LED), imported tiles, exclusive imported sanitary fittings in the bathroom, woodwork in all the rooms with specific carving for LCDs and other, metal sheet work was replaced by stainless steel work, complete wall stone in the staircase, the heights and width of the doors were altered, supreme quality polish costing three times the ordinary one. There was no agreement between the parties to install the lift and the Defendant had only agreed to provide approval certificate for installation of the lift. Admittedly the legal notice of the Plaintiff dated 27th April, 2011 was an after thought and a counter blast to the legal notice of the Defendant. There is no doubt that the Defendant has not denied the Agreement to Sell or receipt of part consideration of Rs. 30 lakhs. However, a perusal of the Agreement to Sell shows that the Defendant in para-4 only agreed to provide the approval certificate for installation of the lift at the premises at his own cost and not the lift. Further a perusal of the Ex. P2 i.e. the specifications for construction that has to be carried out in the suit property entered into between the parties along with the Agreement to Sell also did not provide for false ceiling, lift, wall stone, earthquake zone 5 specification etc. as stated by the Plaintiff in the plaint. Further the notice of the Defendant dated 15th April, 2011 Ex. P5 states that the Defendant approached the Plaintiff a number of times since 10th November, 2010 to take the possession of the property and make the balance payment. It is also stated that the Defendant invested a large sum of money in order to fulfill the demands and desire of the Plaintiff in view of the Agreement to Sell dated 3rd April, 2010 and the Agreement of specification of construction. A perusal of the reply to the notice by the Plaintiff dated 25th April, 2011 shows that number of requirements which were not specified in the agreement have been stated to have not been done. In view of this specific stand in the written statement which is also evident from the documents filed by the Plaintiff, the Plaintiff is required to prove that the Plaintiff did not ask for any extra specification resulting in escalation in the price and that the Plaintiff was ready and willing to perform his part of the contract. The Plaintiff is not entitled to a decree at this stage on the basis of the averments made in the written statement.

Consequently, the application is dismissed. However, the observation made hereinabove will have no bearing on the final decision of the suit.