Shri Rajeev Mehra vs Sudhir Kumar

A.K. Pathak, J.—Plaintiff has filed this suit, inter alia, for specific performance of Agreement to Sell dated 15th February, 2001 and in

alternative it has been prayed that a money decree for returning the sum of Rs. 23,00,000/-(rupees twenty three lacs only) together with interest

@26% per annum with effect from 15th February, 2001 be passed; besides a decree of damages to the tune of Rs. 40,00,000/-(rupees forty lacs

only) with interest be also passed.

Along with the suit, IA No. 638/2004 was filed by the plaintiff seeking injunction. By way of ex-parte order dated 3rd February, 2004,

defendant was restrained from selling, transferring, alienating or creating any third party interest in the suit property, i.e., terrace on the second floor

of the building No. 33, NH-IV, Lajpat Nagar, New Delhi. Defendant has filed IA No. 1089/2004 seeking vacation of ex-parte injunction order

dated 3rd February, 2004.

It is alleged in the plaint that vide Agreement to Sell dated 15th February, 2001 defendant had agreed to sell the full terrace rights of the second

floor in the property bearing No. 33, NH-IV, Lajpat Nagar, New Delhi to the plaintiff for a total sale consideration of Rs. 40,00,000/-(rupees

forty lacs only). A sum of Rs. 15,00,000/-(rupees fifteen lacs only) was paid by the plaintiff to defendant towards earnest money on 15th

February, 2001 against receipt. Plaintiff was even put in possession of the terrace on 15th February, 2001 and an affidavit in this regard was

sworn by the defendant. Subsequently, another sum of Rs. 8,00,000/-(rupees eight lacs only) was paid by the plaintiff to the defendant on 10th

April, 2001 against receipt. This amount was paid to the defendant as he had represented that he required this amount for making payment to get

the leasehold rights of the suit property converted into freehold. With this payment, Rs. 23,00,000/-(rupees twenty three lacs only) stood paid to

the defendant. However, defendant did not come forward to execute the Sale Deed despite repeated requests. On 8th March, 2003, plaintiff

along with one Shri Gurinder Singh went to the suit premises but was not allowed to go to the second floor by the defendant and four goons who

were present with him. Plaintiff and Shri Gurinder Singh were manhandled by them. Defendant took out a revolver and threatened the plaintiff and

Shri Gurinder Singh to run away lest they would be killed. Accordingly, plaintiff and Shri Gurinder Singh returned from the premises. On 16th

March, 2003, plaintiff along with his father and Shri Gurinder Singh again went to the office of defendant at about 11:30 AM and requested him to

return Rs. 23,00,000/-(rupees twenty three lacs only) received by him along with interest in case defendant was not willing to execute the sale

deed. On this occasion, plaintiff was beaten up by the defendant. Plaintiff lodged a complaint with Police Station Lajpat Nagar on 17th March,

2003, but no action was taken. Accordingly, plaintiff filed a criminal complaint before the Metropolitan Magistrate wherein local police was

directed to take appropriate action, consequently, FIR No. 329/2003 under Sections 420/406/456/380/341/506 IPC was registered on 16th

April, 2003 at Police Station Lajpat Nagar. Defendant had illegally trespassed the suit property on 1st March, 2003, thus, he was liable to pay

damages to plaintiff. Plaintiff was and/is always ready and willing to perform his part of the agreement.

In the written statement, defendant has neither denied execution of Agreement to Sell dated 15th February, 2001 nor has denied having

received Rs. 23,00,000/-(rupees twenty three lacs only) from the plaintiff. However, defendant has denied that possession of the suit property was

handed over to the plaintiff. It is alleged that in the month of December, 2001, plaintiff along with Shri Gurinder Singh (who was the mediator)

came to the office of the defendant and informed that plaintiff would be no longer interested in the said deal and asked the defendant to return Rs.

23,00,000/-(rupees twenty three lacs only). The defendant was not having said amount readily available with him, thus, sought some time from the

plaintiff to arrange the funds to make payment. In the month of January, 2002, defendant paid Rs. 15,00,000/-(rupees fifteen lacs only) in cash to

the plaintiff in the presence of one Shri Prem Chand. Plaintiff did not issue a receipt on the pretext that same would be issued only after the

remaining amount of Rs. 8,00,000/-(rupees eight lacs only) is paid to him. Subsequently, defendant issued three cheques and promissory note to

the plaintiff towards security for payment of Rs. 8,00,000/-(rupees eight lacs only) with the understanding that these cheques would not be

presented for encashment. However, plaintiff manipulated these cheques and filed a criminal complaint u/s 138 of the N.I. Act. Father of the

plaintiff also filed a suit for recovery against the defendant on the basis of these forged cheques and promissory note. It is stated that plaintiff was

not ready and willing to perform his part of contract, inasmuch as, plaintiff himself had terminated the Agreement to Sell and sought refund of the

amount. Having done so, he was not entitled to seek specific performance of Agreement to Sell in view of Section 16(C) of The Specific Relief

Act, 1963 (hereinafter referred to as ""the Act"").

Section 16(C) of the Act provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove

that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other

than terms the performance of which has been prevented or waived by the defendant.

In para 11 of the plaint, plaintiff has himself categorically mentioned that on 16th March, 2003 he along with his father and Mr. Gurinder Singh

went to the office of the defendant and requested him to return Rs. 23,00,000/-(rupees twenty three lacs only) with interest, in case he does not

wish to execute the Sale Deed. This statement clearly indicates that the plaintiff himself was not keen in the continuation of the deal, thus, had asked

for refund of the money paid by him to the defendant. This version also supports the plea taken by the defendant in the written statement that

plaintiff had himself cancelled the deal. Though a statement has been made in para 16 of the plaint that the plaintiff was always ready and willing to

perform his part of the contract and he is still ready and willing to perform his part of contract but in view of statement as mentioned in para 11 of

the plaint not much importance can be attached thereto. The plea, taken by the plaintiff that he had gone to the office of defendant to ask him for

refund of money under coercion as he had been threatened by the defendant earlier, prima facie, does not inspire much confidence as the plaintiff

did not lodge any complaint with the police after the incident which allegedly took place on 8th March, 2003. That apart no assertion has been

made in the plaint that plaintiff had gone to defendant''s office on 16th March, 2003 to seek refund of the amount on account of incident dated 8th

March, 2003. Though the allegations and counter-allegations on this part is subject matter of trial, but at the same time statement made in the

plaint, prima facie, shows that plaintiff had himself shelved the deal and was not ready and willing to perform his part of contract.

Learned counsel for the plaintiff has placed reliance on Boots Pharmaceuticals Ltd. Vs. Rajinder Mohindra and Another, , to contend that the

readiness and willingness to perform the contract on the part of plaintiff is subject matter of trial and the averments made in the plaint is to be taken

as correct. However, the said judgment is in the context of different facts. In the said case cardinal assertion was made by the plaintiff about his

readiness and willingness and there was no material on record to show that plaintiff has shelved the deal. However, in this case plaintiff has himself

admitted that he had gone to the office of the defendant and asked him to refund the money paid pursuant to the agreement and this fact goes

against the plaintiff.

Whether to grant an interim injunction or not depends upon the facts and circumstances of each case as no straight jacket formula can be laid

down in this regard. However, grant of temporary injunction is governed by three basic principles, that is, prima face case; balance of convenience

and irreparable injury, which are required to be considered in proper prospective in the facts and circumstances of a particular case. Prima facie

view has to be drawn on the pleadings and the documents filed in support thereof in a particular case.

In the facts of this case, in my view, plaintiff has failed to make out a, prima facie, case in his favour for the relief of specific performance.

Balance of convenience is also not in favour of the plaintiff seeking restraint order against the sale and transfer of the suit property of the defendant,

moreso, when he had demanded the part payment made by him from the defendant. It also cannot be said in the facts of this case that plaintiff shall

suffer irreparable loss or injury in case interim order as prayed for is not granted. IA No.638/2004 is dismissed.

Interim order dated 3rd February, 2004 is vacated. In view of dismissal of application of the plaintiff, IA No.1089/2004 is disposed of as in

fructuous.

CS(OS) No. 76/2004

List on 30January, 2012 before the Joint Registrar for evidence.