Rakesh Chander Gupta vs Raj Singh and Others

Valmiki J Mehta, J.—The challenge by means of this Regular First Appeal is to the impugned judgment and decree dated 30.5.1998 of the Trial court whereby the suit of the Appellant/plaintiff was decreed for the alternative relief of recovery of damages instead of grant of specific performance.

The facts of the case are that the Respondent No. 1 entered into an agreement to sell dated 7th December, 1988 with the Appellant/plaintiff for sale of 4 big has and 16 biswas falling in Khasra No. 507, Village Neb Sarai, Tehsil- Mehrauli, Delhi. The total sale consideration was agreed at Rs. 4,10,000/- and which complete amount was paid by the Appellant/plaintiff to the Respondent No. 1. Rs. 10,000/- was paid on 18.3.88, Rs. 1,00,000/- was paid on 15.7.88, Rs. 50,000/- was paid on 20.9.88, another Rs. 50,000/- was paid on 15.10.88 and the balance amount of Rs. 2,00,000/- was paid on 7.12.88 thus making the total payment on which agreement to sell was entered into. The Respondent No. 1 on receipt of entire consideration executed, agreement to sell, general power of attorney and Will, the last of the two were registered at Gurgaon, in favour of the Appellant/plaintiff. The case of the Appellant/plaintiff was that the Respondent No. 1 became dishonest and sought to sell the subject property to Respondents No. 2 to 5/Defendants No. 2 to 5 who forcibly dispossessed the Appellant/plaintiff and whereupon the subject suit for specific performance was filed.

I may note that the Defendants No. 2 to 5/Respondents No. 2 to 5 were proceeded ex parte in the Trial court and the Defendant No. 1/Respondent No. 1 initially put in appearance, but thereafter failed to appear and was hence proceeded ex parte when after dismissal of the suit, notice of restoration was served upon the Defendant No. 1/Respondent No. 1 for 25.3.97. The Defendant No. 1 had, however, filed the written statement in the case and his case was that the Appellants/plaintiffs allegedly got blank document signed from him while giving an alleged loan of Rs. 10,000/-.

The Trial Court has while examining the case, referred to the agreement to sell which was exhibited as Ex.P1. The Trial court has also referred to the receipts which showed payment of the entire sale consideration which have been exhibited as Ex.PW1/1 to Ex.PW1/4. The Trial Court has also referred to the general power of attorney and Will which were registered at Gurgaon being Ex.PW1/5 and Ex.PW1/6 In view of this, it is quite clear that the Respondent No. 1/Defendant No. 1 received the entire consideration and thereafter executed the agreement to sell, power of attorney and, Will and which are the usual documents executed in Delhi when a property is sought to be transferred. The authenticity of the documents cannot be doubted because the general power of attorney and Will are registered documents. The stand of the Respondent No. 1 in his written statement, therefore, that he took a loan of Rs. 10,000/- and he signed the documents in blank is clearly not believable.

The Trial court has thereafter arrived at a finding that it was Respondent No. 1 who was guilty of the breach of contract. Ordinarily therefore once the complete price is paid, it is a natural consequence that the suit of the Appellant/plaintiff ought to have been decreed for specific performance. However, the Trial Court after giving complete conclusions and findings in favour of the Appellant/plaintiff, for some reason which I have failed to decipher, decreed the suit only for the price i.e. Rs. 4,10,000/- with damages of Rs. 1,00,000/- along with compound interest at 18% per annum. Since I have failed to appreciate and agree with the reasoning of the Trial Court, I would refer to paras 3 and 4 of the impugned judgment and decree which show the entitlement of the Appellant/plaintiff for specific performance and yet the Trial Court has failed to grant the same. Paras 3 and 4 read as under:

The plaintiff has filed an affidavit in evidence wherein, the plaintiff has stated that Defendant No. 1 entered into an agreement to sell of plot khasra No. 507, measuring 4 bighas 16 Biswas on 18.3.1988 for a total consideration of Rs. 4,10,000/-, initially amount of Rs. 10,000/- was paid on 18.3.1988 by bank cash order and remaining amount of Rs. 4 lacs was paid in cash on 15.7.1988, 20.9.1988, 15.10.1988 and 7.12.1988, vide receipts which are Ex.PW1/1, 1/2, 1/3 and 1/4. After receiving the full amount Defendant No. 1 executed agreement to sell dated 7.12.1988 which is Ex.P-1. He also executed GPA and Will in favour of the plaintiff which were registered at Gurgaon and they are Ex.PW1/5 and 1/6. Physical possession of the plot of the land was handed over to the plaintiff. Defendant No. 1 was to obtain the No Objection Certificate from the concerned authority for the sale of the land. Defendant No. 1, however, did not obtain "No Objection Certificate" and did not execute the Sale Deed. Defendant Nos. 2 to 5 came to the plot of the plaintiff with about 10 persons and threatened to dispossessed the plaintiff. Defendant No. 1 also sent notices to the plaintiff which are Ex.PW1/7 and 1/8, the reply of the plaintiff to these notices is Ex.PW1/9.

In view of the testimony of the plaintiff and the documents placed on record by the plaintiff, I come to conclusion that plaintiff has successfully proved that Defendant No. 1 had entered into an Agreement to Sell with the plaintiff for sale of 4 bighas 16 biswas falling in Khasra No. 507, Village Neb Sarai, Tehsil Mehrauli. He received full consideration from the plaintiff and executed General Power of Attorney and Agreement to Sell with a promise to execute Sale Deed after obtaining No Objection Certificate and clearance Certificate. Defendant No. 1 failed to perform his part of the contract and the plaintiff is therefore entitled to the specific performance of the property. However, the contract was entered in 1988, thereafter, the plaintiff was dispossessed from the land some time in 1989 and about 9 years have passed, I consider that in respect of specific performance of the contract, it would be appropriate that the Defendant is directed to pay the amount of the plaintiff back with compound interest and compensation. I, therefore, pass a decree of Rs. 4,10,000/- alongwith cost and compound interest @ 18% p.a. with annual rests on the amount of Rs. 4,10,000/- from 7.12.1988 till the recovery in favour of the plaintiff and against Defendant No. 1. The plaintiff was also be entitled to the cost of the suit and a compensation of Rs. One lakh for not executing the sale deed by the Defendant No. 1. Decree sheet be prepared accordingly. File be consigned to Record Room.

Surely, once there is found to be a contract, which has been duly acted upon by a seller having received the complete price, more so evidenced by registered documents, there was no reason to not grant specific performance. No doubt specific performance is discretionary, however, the judicial discretion is exercised when all the facts and circumstances of the case are in favour of the plaintiff. The facts and circumstances of the case evidence payment of complete consideration and execution of registered documents in favour of the Appellant/plaintiff. In my opinion, therefore the Trial court committed a complete illegality and perversity by denying the relief of specific performance and decreeing only the return of the sale consideration with damages of Rs. 1 lac to the Appellant/plaintiff. Quite clearly, the impugned judgment and decree if allowed to stand will cause grave prejudice and harm to the Appellant/plaintiff who was out of pocket for the entire sale consideration.

In view of the above I accept the appeal and set aside the impugned judgment and decree to the extent it grants only return of the sale consideration with interest. I decree the suit for specific performance of the Appellant/plaintiff and against the Respondent No. 1 with respect to the property being 4 bighas and 16 biswas land falling in Khasra No. 507, Village Neb Sarai, Tehsil-Mehrauli, Delhi. The Respondent No. 1 is directed to execute the necessary sale deed of the suit property in favour of the Appellant/plaintiff. No directions are required for deposit of any money by the Appellant/plaintiff in this Court inasmuch as the entire sale consideration has been received by the Respondent No. 1/Defendant No. 1. The Respondent No. 1 is directed to execute the sale deed in favour of the Appellant within a period of 6 weeks from today after obtaining the necessary permissions required from the appropriate authorities. On the sale deed being executed, the Appellant/plaintiff will also be entitled to possession of the suit property from the Respondent No. 1, which if denied to the Appellant/plaintiff, can be obtained in execution proceedings of the judgment and decree. In case, the Respondent No. 1 fails to execute the sale deed or obtain necessary permissions which are required for execution of the sale deed, then the Appellant/plaintiff will be at liberty to take appropriate proceedings including execution proceedings for getting the sale deed executed in his favour. Decree sheet be prepared.

The appeal is disposed of as allowed. The Trial Court Record be sent back.