Delhi District Court
Sh. Vikas vs Sh Ishwar Singh on 20 November, 2019 IN THE COURT OF ADDITIONAL DISTRICT JUDGE­05, SOUTH WEST, DWARKA COURTS, NEW DELHI Civil Suit No: 15658/16 IN THE MATTER OF Sh. Vikas
S/o Sh. Purshottam Lal
Presently R/o Guruansh B­235,
Phase – I, Naraina Industrial Area,
New Delhi.
Through Power of Attorney
Sh. Sukhbir Shokeen S/o Sh. Jagdish Shokeen
R/o A­99, Main Road, Opp. Govt. Hospital,
Vilage & PO Chhawla, New Delhi – 110071. ………. Plaintiff versus 1. Sh Ishwar Singh 2. Sh. Rajinder Singh Both S/o Sh. Parbhu
R/o Village & PO. Dhansa,
New Delhi – 110072. ………. Defendants SUIT FOR SPECIFIC PERFORMANCE Date of institution : 19.12.2012 Date when judgment reserved : 17.10.2019 Date of Judgment : 20.11.2019 CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 1 of 85 JUDGMENT:­ 1. Vide this judgment, I shall dispose of the present suit filed by the plaintiff against the defendants for specific performance. 2. The case of the plaintiff as set out in the plaint is summarized as under: ­ 2.1. The plaintiff was intending to purchase a large tract of land and hence engaged the services of a property agent. The defendants who are the co­owners/bhumidars in possession of agricultural land measuring 9 Bigha, 12 Biswa bearing Mustatil/Khasra No. 99/9 (4­16) and 12 (4­16) situated in the revenue estate of Village Dhansa, Tehsil Najafgarh, New Delhi (hereinafter referred to as “suit land/property”) approached the agent of the plaintiff through their own property agent offering to sell their land to the plaintiff. 2.2. After negotiations, the defendants executed an Agreement to Sell the suit land to the plaintiff for total sale consideration of Rs.1,42,00,000/­ (Rupees One Crore Forty Two Lacs only) out of which a sum of Rs.20,00,000/­ (Rupees Twenty Lacs only) was paid upfront to CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 2 of 85 the defendants as bayana/earnest money at the time of execution of Agreement to Sell and the balance amount of Rs. 1,22,00,000/­ (Rupees One Crore Twenty Two Lacs only) was agreed to be paid to the defendants at the time of execution and registration of sale deed. 2.3. The suit land being an agricultural land is subjected to certain statutory restrictions and conditions imposed under the Delhi Land (Restrictions on Transfer) Act, 1972, and the defendants/sellers are required to apply to the concerned ADM, the competent authority to obtain his permission/No Objection Certificate (in short “NOC”) before selling the suit land. However, under bonafide mistake, the plaintiff/buyer was burdened to apply and obtain NOC from the competent authority. The matter was resolved between the parties on the advice of their respective property agents and the defendants agreed to apply to the competent authority and obtain the necessary NOC in fulfillment of their statutory obligation to make them competent to sell the suit land and execute the sale deed in favour of the plaintiff/buyer. 2.4. Though the parties had agreed to complete the deal by 19.07.2012 but the defendants did not obtain the necessary CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 3 of 85 permission/NOC even by the aforesaid last date to complete the transaction and they kept on promising the plaintiff to obtain necessary NOC very soon. The plaintiff reminded many times to the defendants through their agent to abide by the terms of the agreement and to obtain NOC stating that the plaintiff/ buyer is ready and willing to pay the balance sum on any date to get the sale deed executed within the stipulated time period on or before 19.07.2012. However, the defendants failed to obtain the NOC and did not come forward to accept the balance payment and execute the sale deed. 2.5. The plaintiff issued a legal notice on 06.11.2012 to the defendants. The defendants in their reply dated 13/15/17.11.2012 to the said legal notice disclosed that they have obtained the NOC but deliberately failed to inform the plaintiff about the same. 2.6. Having committed the breach of the agreement themselves by not obtaining the NOC/permission from the competent authority and failing to inform the plaintiff in this regard within stipulated period , the defendants deliberately prevented the plaintiff to make balance payment within the stipulated period and they wrongly forfeited the amount of CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 4 of 85 Rs. 20 lacs paid by the plaintiff as bayana/earnest money. 2.7. The intention of the defendants has turned dishonest and greedy and now they are raising false, frivolous and vexatious grounds to deny the execution of sale deed in favour of the plaintiff and trying to sell the suit property to third party. Hence, the present suit. 2.8. The plaintiff by way of present suit has prayed for following reliefs: ­ a) a decree of specific performance of Agreement to Sell dated 20.03.2012 in his favour and against the defendants thereby directing the defendants to obtain NOC from Competent Revenue Officer and to hand over actual physical possession of the suit property/land to him on receiving balance payment of Rs.1,22,00,000/­ and to execute and get registered sale deed/title documents in respect of the same in his favour; b) a decree of permanent injunction in his favour and against the defendants thereby restraining the defendants, their attorneys, servants, representatives, family members etc. from dealing with suit property in any manner or creating any kind of third party interest CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 5 of 85 in the suit property; c) in alternative of decree of specific performance, a decree for recovery of Rs. 20,00,000/­ in his favour and against the defendants, which was paid to the defendants as earnest money alongwith interest @ 18% per annum and also directing the defendants to pay equal sum of Rs. 20,00,000/­ as compensation for loss and damages suffered by him on breach of agreement committed by the defendants. 3. The defendants have contested the suit by filing the written statement contending that: ­ 3.1. The plaintiff has played fraud on the defendants because there is no entity/ person in the name of Vikas S/o Purshotam Lal R/o C­1/9, Vikaspuri, New Delhi. The Agreement to Sell is alleged to have been executed in the name of one Vikas son of Sh. Purshottam, R/o C­1/9, Vikas Puri, however the person from whom the plaintiff/attorney has taken the SPA is not the one who is so mentioned in the alleged Agreement to Sell dated 20.03.2012 and the forged manipulated SPA dated 07.12.2012 is from wrong person Vikas R/o Guruansh, B­235, CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 6 of 85 Naraiana Industrial Area, Phase­I, New Delhi which is unreliable, unregistered and not even notarized. Unless and until, if there is any Vikas son of Sh. Purshottam, R/o C­1/9, Vikas Puri, appear in person with confirmed residential proof, the attorney on the basis of fraudulent document shall not be allowed to continue with the matter. The plaintiff with the address given in the Agreement to Sell is non­existent entity and hence there is no privity of contract between the parties. Even in the receipt there is nobody mentioned where the signature of the defendants were obtained and it means that there is nobody who paid the consideration and from the blank receipt it cannot be said that the amount was paid by the plaintiff. 3.2. The plaintiff has not complied the terms which needed to be complied with by him and he himself is liable for frustration of the contract and hence the plaintiff cannot be allowed to take benefit of his own wrong. Each term of the agreement is binding on the parties and the plaintiff cannot be allowed to choose only those terms which are favourable to him and the terms which are against him has also to be given effect, if, time is the essence of the contract. CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 7 of 85 3.3. The plaintiff since inception had malafide intention to cheat the defendants and had planned to trap the defendants in the litigation in case the prices of the land rises which is now more than three times of the value mentioned in the Agreement to Sell. The plaintiff has mentioned his wrong address in the Agreement to Sell and it proves the fraud played by him upon the defendants and renders the Agreement to Sell void ab initio. 3.4. It is denied that the defendants have ever approached the agent of the plaintiff through their own property agent offering to sell their property. It is stated that the plaintiff has neither disclosed the name of his alleged agent nor the name of the alleged agent of the defendants. 3.5. It is denied that the defendants were required to apply for No Objection Certificate. It is stated that the plaintiff intentionally to deceive the defendants took onus of obtaining No objection Certificate which is necessary for sale of agricultural land and in the absence of same no sale transaction of agricultural land can ever take place, but the plaintiff did not apply for obtaining the NOC and even did not send any notice within the stipulated period of time from 20.03.2012 to CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 8 of 85 19.07.2012 asking the defendants to obtain the necessary NOC from the competent authority and he gave a wrong address so that even after obtaining the NOC, the defendants could not contact him. Hence, the whole default is attributable to the plaintiff and the plaintiff cannot take benefit of his own wrongs. 3.6. The defendants were in bonafide belief that the plaintiff must have taken steps to obtain the NOC and when they reached the office of ADM/SDM/Tehsildar on 16.07.2012, they were shocked to know that the plaintiff has not applied for NOC. The defendants on due date of registry even reached Sub Registrar office and registered their presence vide Slip No. 4840 dated 19.07.2012 and kept waiting upto 5.00 pm. 3.7. The plaintiff has nowhere complained during the period of performance of contract from 20.03.2012 to 19.07.2012 that the defendants ever refused to do what was necessary on their part in executing the registered sale deed on the basis of Agreement to Sell. The defendants sent various letters dated 16.07.2012, 21.07.212, 04.08.2012 and 16.08.2012 and when they came to know from the competent authority that the plaintiff/attorney has not obtained for NOC on the CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 9 of 85 basis of the documents signed by the defendants at the time of execution of the agreement, the defendants immediately applied for obtaining NOC to facilitate the deal and vide their legal notice dated 04.08.2012 duly intimated the plaintiff about obtaining the NOC and made it clear that the sale deed is not executed within next 10 days, the amount given as earnest money shall be forfeited. The said NOC was obtained on 30.07.2012 which was valid only for 30 days, therefore the same automatically got expired and when the notice dated 06.11.2012 sent by the counsel for the plaintiff, there was no valid NOC existing. 3.8. The plaintiff was bound by each and every terms of the agreement and it is specifically written that after statutory period i.e. 19.07.2012 the part payment/earnest money shall be forfeited. 3.9. The plaintiff cannot take shelter of his own wrongs and has failed to perform his part of the contract and the defendants have rightly forfeited the earnest money. Notices dated 16.07.2012, 21.07.2012, 04.08.2012 and 16.08.2012 were sent by the defendants wherein it was specifically made clear that the earnest money will be forfeited w.e.f notice dated 04.08.2012 even time was extended by 10 days but the CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 10 of 85 plaintiff did not turn up and vide notice dated 16.08.2012 the amount was forfeited and contract was cancelled. .The plaintiff was well aware that if the required part of the agreement on his account is not done then he will have to face forfeiture of his earnest money which itself is a contract and binding on both the parties. 3.10. It is denied that the defendants ever agreed to take NOC as per the Agreement to Sell and that they could not obtain the necessary permission. The responsibility to obtain the NOC was taken by the buyer at the time of execution of the Agreement to Sell and therefore it cannot be said that the defendants were ever under any kind of obligation to obtain the necessary permission. 3.11. The other contents of the plaint are stated to be wrong and denied and the defendants have prayed for dismissal of the suit. 4. The plaintiff has filed replication to the written statement in which the averments made in the plaint have been reiterated and reaffirmed and those made in the written statement have been controverted. 5. From the pleadings of the parties, following issues have CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 11 of 85 been framed vide order dated 30.09.2014 for adjudication :­ i. Whether the plaintiff was ready and wiling and able to perform his contractual obligations under the Agreement to Sell dated 20.03.2012? OPP. ii. Whether the plaintiff has violated the terms of the Agreement to Sell dated 20.03.2012 as alleged in the written statement? OPD. iii. Whether the defendants were entitled to forfeiture of advance amount paid under separate receipt annexed to the Agreement to Sell dated 20.03.2012? OPD. iv. Whether the defendants fulfilled their contractual obligations under the said Agreement to Sell dated 20.03.2012? If not, its effects? OPD. v. Whether the plaintiff is entitled for decree of specific performance of Agreement to Sell dated 20.03.2012? OPP. vi. Whether the plaintiff is entitled to a decree for recovery of money as prayed for? If yes, to what amount? OPP. vii. If the answer to Issue No. (vii) is in the affirmative, whether the plaintiff is entitled to charge any interest on the said decretal amount? If yes, at what rate and for which period? OPP. viii. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP. ix. Whether the suit is hit by section 33 of the Delhi Land Reforms Act? OPD. CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 12 of 85 x. Relief 6. In order to prove his case, the plaintiff has examined two witnesses including himself as PW­1. He filed his evidence by way of affidavit which is Ex.PW1/A in consonance of averments made in the plaint. During his deposition before the Court as PW­1, the plaintiff also relied upon and exhibited the following documents:­ Ex. PW1/1 : Agreement to Sell dated 20.03.2012 Ex. PW1/2 : Bayana receipt dated 20.03.2012 Ex. PW1/3 : Office copy of legal notice dated 06.11.2012 Ex. PW1/4 : Office copy of application dated 06.11.2012 sent to the Sub­Registrar Ex. PW1/5 : Tracking report downloaded from the website of the India Post as proof of delivery of aforesaid notice to the defendants alongwith certificate u/s 65B of the Indian Evidence Act Ex. P­1 : Reply dated 13.11.2012 of the defendants to the legal notice 7. The other witness examined by the plaintiff is Sh. Sukbir Shokeen as PW­2, whom he has claimed to be his property agent who struck the deal with the defendants on his behalf. The said witness also CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 13 of 85 filed his evidence by way of affidavit which is Ex.PW2/1 wherein he has deposed more or less as per the averments made in the plaint. 8. On the other hand, the defendants, in support of averments made in the written statement, have examined two witnesses, namely, Sh. Rajinder Singh (defendant no. 2) as DW­1 and their neighbor and property agent Sh. Tatvir Singh as DW­2. They both filed their evidence by way of affidavits as Ex.DW1 and Ex.DW2/1 respectively in consonance of averments made in the written statement. DW­1 (the defendant no. 2) also relied upon and exhibited the following documents during his deposition: ­ Ex.DW1/A : SPA in his favour Ex.DW1/1 : Legal notice dated 16.07.2012 Ex.DW1/2 : Postal receipt showing dispatch of legal notice dated 16.07.2012 Ex.DW1/3 : AD card in respect of legal notice dated 16.07.2012 Ex.DW1/4 : Agreement executed on 15.05.2012 between the defendants and Sh. Haripal Ex.DW1/5 : Legal notice dated 21.07.2012 Ex.DW1/6 : Postal receipt showing dispatch of legal notice dated 21.07.2012 CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 14 of 85 Ex.DW1/7 : NOC dated 30.07.2012 in respect of suit land Ex.DW1/8 : NOC dated 30.07.2012 for the remaining land with the defendants Ex.DW1/9 : Copy of legal notice dated 04.08.2012 Ex.DW1/10 : Postal receipt showing dispatch of legal notice dated 04.08.2012 Ex.DW1/11 : Copy of legal notice dated 16.08.2012 Ex.DW1/12 : Postal receipt showing dispatch of legal notice dated 16.08.2012 Ex.D1 : Reply dated 13.11.2012 Ex.DW1/14 : Postal receipt in respect of reply dated 13.11.2012 Ex.DW1/15 : Closed envelope containing legal notice Ex.DW1/16 : Closed envelope containing legal notice Ex.DW1/17 : Closed envelope containing legal notice Ex.DW1/18 : Stamp paper worth Rs. 50/­ bearing AB No. 655330 Ex.DW1/19 : Stamp paper worth Rs. 50/­ bearing AB No. 655329 Mark A : Cash receipt No. 4840 dated 19.07.2012 9. I have heard the Ld. Counsel for the parties and perused the record carefully. I have also gone through the written arguments filed on CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 15 of 85 behalf of the parties. 10. Ld. Counsel for the plaintiff in support of his arguments made orally and in the written submissions has relied upon the following judgments: ­  Satender & Anr. vs. Govt. of NCT of Delhi & Ors, WP (C) No. 18138­39/2006 decided on 22.07.2010;  Man Kaur (Dead) by LRs vs. Hartar Singh Sangha, 2010 Law Suit (SC) 675;  Manoj Tomar vs. Neena Khattar & Anr., CS (OS) 1371/2014, decided on 13.10.2015;  Naresh Gaur vs. Uma Gupta, 2009 LawSuit (Del) 1490;  M/s Shri Neelpadmaya Consumer Products P. Ltd. vs. Satyabir & Ors., CS (OS) 78/2007 decided on 03.02.2016;  Chimanjirao Kanhojirao Shikre & Ors. vs. Oriental Fire & General Insurance Co. Ltd. (2000) 6 SCC 622;  Dilip Kumar Bhargava vs. Urmila Devi Sharma & Ors, 2011 LawSuit (Del) 1772;  Dharam Pal vs. Shashi Kant Saini, 2011 (122) DRJ 334;  Meera Sahni vs. Lt. Governor of Delhi, 2008 LawSuit (SC) 2247;  Dadarao vs. Ramrao, 1999 Law Suit (SC) 1223, CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 16 of 85  Alka Bose vs. Parmatma Devi & Ors., Civil Appeal No. 6197/2000 decided on 17.12.2008 11. Ld. Counsel for the defendant has also placed reliance on the following judgments: ­  Dr. Kimti Lal vs. Harpal Singh & Anr., RFA No. 436 of 2016 decided on 26.09.2018;  Narendra Kumar Jain vs. Sub Registrar – IX, Delhi & Ors.;  O.P.C. Jain vs. ADM (LA) & Ors. ­ Civil Writ Appeal No. 1268/1989 decided on 28.07.1989;  Satish Batra vs. Sudhir Rawal, Civil Appeal No. 7588 of 2012, SLP (Civil) 4605/2012. 12. On the basis of material available on record, my issue­wise findings are as under:­ Issue Nos. (ii) and (iv) (Whether the plaintiff has violated the terms of the Agreement to Sell dated 20.03.2012 as alleged in the written statement?) and (Whether the defendants fulfilled their contractual obligations under the said Agreement to Sell dated 20.03.2012? If not, its effects?) CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 17 of 85 13. These issues are being taken up together as the same are interconnected and the discussion thereupon is going to be common. The onus to prove Issue No. (ii) is on the plaintiff and the onus to prove the Issue No. (iv) is on the defendants. 14. From the pleadings of the parties, it is not in dispute that the Agreement to Sell Ex.PW1/1 was entered into between the parties on 20.03.2012 by which the defendants had agreed to sell their land to the plaintiff for a sale consideration of Rs. 1.42 crores out of which the plaintiff had paid Rs. 20 lacs to the defendants towards earnest money for which the defendants had also executed receipt Ex.PW1/2 acknowledging the receipt of Rs.20 lacs as earnest money. 15. Though in the written statement, the defendants have tried to make out a case that no valid Agreement to Sell was executed between the parties and no consideration was paid by the plaintiff vide receipt Ex.PW1/2. The basis of these objections is the wrong address given by the plaintiff in Agreement to Sell Ex.PW1/1 wherein the address of the plaintiff is mentioned as “C­1/9, Vikaspuri, New Delhi”. CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 18 of 85 The plaintiff during his cross­examination while denying the suggestion that he was residing at C­1/9, Vikaspuri, New Delhi has admitted that he has never resided at the address as mentioned in the Agreement to Sell Ex.PW1/1. The defendants have contended that with the incorrect address given in the Agreement to Sell Ex.PW1/1, the plaintiff is non­ existent entity and hence there is no privity of contract between them and the plaintiff. The defendants have also contended that in the receipt Ex.PW1/2, the name of the plaintiff as purchaser is not mentioned and the name of the person/purchaser from whom the defendants have received Rs. 20 lacs is left blank and it demonstrates that no amount was paid by the plaintiff to the defendants. 16. However, these objections raised by the defendants in their written statement are shallow and superfluous. If the entire written statement filed by the defendants is gone through, it is apparent that the defendants have not disputed the execution of Agreement to Sell Ex.PW1/1 by them in favour of the plaintiff and that they had received Rs. 20 lacs as earnest money from the plaintiff vide receipt Ex.PW1/2 as they have admitted breach of contract by the plaintiff and consequently CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 19 of 85 forfeiture of earnest money paid by the plaintiff in terms of the Agreement to Sell Ex.PW1/1. The factum of execution of Agreement to Sell Ex.PW1/1 and pursuant thereto receipt of Rs. 20 lacs as bayana amount from the plaintiff has also been duly admitted by the defendants in legal notice dated 16.07.2012 Ex.DW1/1 sent by them through their advocates Sujata Rai and A.K. Thakur to the plaintiff before institution of the present suit wherein in para no. 1 they have categorically stated that they have entered into Agreement to Sell with the plaintiff on 20.03.2012 by which they have agreed to sell the suit land to the plaintiff for a total sum of Rs.1,42,00,000/­ out of which Rs. 20 lacs was received as bayana amount from the plaintiff. 17. Further, DW­2 Rajender Singh (defendant no. 1) has categorically stated in his cross­examination that the name of the purchaser was written on the Agreement to Sell signed by him. In reply to the question put to him, he stated that the name of the buyer in the said Agreement to Sell was written as ‘Vikas’ (the plaintiff). He further stated that no fraud has been played against him in respect to the Agreement to Sell and bayana receipt by Manjeet Singh against him. He CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 20 of 85 further stated that the earnest money amount was paid by Manjeet Singh on behalf of Vikas (the plaintiff). 18. Similarity, DW­2 Tatvir Singh who struck the deal on behalf of the defendants being their property agent stated in his cross­ examination that he knows Rajender Singh and Ishwar Singh (the defendants) and both of them agreed to sell their land to plaintiff Vikas. In reply to a question put to him whether any fraud was played by anyone when Ishwar Singh and Rajender Singh put their signatures and thumb impressions on the Agreement to Sell, he categorically replied that at that time, it did not appear to him that any fraud was being played upon Rajender Singh and Ishwar Singh. He further stated that the Agreement to Sell was not blank when Ishwar Singh and Rajender Singh put their signatures and thumb impressions thereon and he read over the said Agreement to Sell to Ishwar Singh and Rajender Singh. 19. The aforesaid cross­examination of DW­1 (defendant no. 2) and DW­2 (Tatvir Singh) who is agent of the defendants makes it categorical that no fraud has been played by the plaintiff at the time of entering into the Agreement to Sell with the defendants and the CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 21 of 85 defendants cannot be heard saying that there is no privity of contract between the parties or that there was non­existent entity with whom the defendants had entered into the agreement. The defendants were well aware with whom they have entered into the agreement to sell for selling their agriculture land. Therefore, contention of the defendants that there is no privity of contract between the parties or that no valid Agreement to Sell was executed between the parties and that no valid sale consideration has been passed to them are liable to be rejected and it is concluded that the parties had entered into a valid Agreement to Sell dated 20.03.2012 Ex.PW1/1 pursuant to which the plaintiff had paid earnest money of Rs. 20 lacs to the defendants vide receipt Ex.PW1/2. 20. Admittedly, the suit land is an agricultural land owned by the defendants. From the pleadings of the parties, it is also not in dispute that for the sale of the suit land being agricultural land, necessary permission in the form of NOC is required to be obtained from the competent authority under the Delhi Land (Restrictions on Transfer) Act, 1972. However, bone of contention between the parties arises out of Clause 9 of the Agreement to Sell Ex. PW1/1 as per which the plaintiff CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 22 of 85 was required to obtain the requisite NOC from the competent authority and to inform the same to the defendants to complete the sale transaction. The plaintiff has claimed that as per the common practice and procedure, it is the responsibility of the seller i.e. the defendants to obtain necessary NOC from the competent authority but the onus to obtain the NOC has been wrongly paced upon him in Agreement to Sell Ex.PW1/1 as he could not have obtained the necessary permission from the competent authority being a buyer of the suit land. He further claimed that the said matter was resolved by the agents of both the parties and it was agreed that the defendants will obtain the requisite NOC and will communicate the plaintiff about the same but the defendants failed to obtain the NOC within the stipulated period and hence breached the contract. While the defendants in the written statement have denied that they had ever agreed to obtain the NOC from the competent authority and contended that as per the Agreement to Sell Ex.PW1/1, the plaintiff had undertaken to obtain the NOC at his own cost which the plaintiff has failed to obtain from the competent authority and has committed breach of the terms of the Agreement to Sell CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 23 of 85 Ex.PW1/1. 21. In view of aforesaid rival claims of the parties, the point for consideration is: Which of the party is at fault and who out of the buyer (the plaintiff) or the seller (the defendants) has committed breach of contract i.e. Agreement to Sell Ex.PW1/1 by not obtaining the requisite NOC from the competent authority within stipulated time?. 22. Before dealing this issue, it is to be noted that though the defendants in the written statement have not disputed the fact that NOC was required to be obtained from the competent authority for sale of suit land u/s 5 (1) of Delhi Land (Restriction on Transfer) Act, 1972 but in the written arguments, Ld. Counsel for the defendants has vehemently submitted that no such permission/NOC is necessary for registration of Sale Deed of suit land. He submitted that Section 5 r/w Section 4 of the aforesaid Act makes it clear that previous permission/NOC is required only when the land in question is either under Acquisition or declaration to that effect has been made by the Central Govt. under Section 6 of the Land Acquisition Act. He further submitted that the land in question in CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 24 of 85 the present suit admittedly was not subject to any acquisition, therefore no NOC was required for sale of agriculture land. In this regard he has relied upon the judgments of the Hon’ble High Court of Delhi in Narender Kumar Jain vs. Sub Registrar and O.P.C. Jain vs. ADM (LA) & Ors. (supra). 23. Per contra, Ld. Counsel for the plaintiff has argued that the NOC/permission/land acquisition clearance report is must and necessary to be obtained before sale of an agriculture land for due registration of the sale deed. He has placed reliance in this regard upon the judgments reported in Satender & Anr. vs. Govt. of NCT of Delhi & Ors., and Meera Sahni vs. Lt. Governor of Delhi, (supra). He further vehemently argued that the submission of the Ld. Counsel for the defendants that no permission/NOC is required is contrary to the fact as well as to the law and is liable to be rejected. He submitted that the defendants in their written statement have admitted that NOC is extremely very necessary for sale of agriculture land in the absence of which no sale transaction of agricultural land can ever take place and they had also agreed vide Agreement to Sell Ex.PW1/1 to obtain the NOC by the plaintiff and, CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 25 of 85 therefore, now they are estopped from taking contradictory plea by virtue of section 92 of Indian Evidence Act. He further submitted that the defendants themselves had applied and obtained NOC/permission /land acquisition clearance reports as Ex.DW1/7 and Ex. DW1/8 to facilitate the transfer of title of the suit land and now they cannot turn around to take an entirely contrary stand that no such permission/NOC is necessary for registration of Sale Deed. To buttress this argument, he has placed reliance on Chimanjirao Kanhojirao Shikre & Ors. vs. Oriental Fire & General Insurance Co. Ltd., (2000) 6 SCC 622. 24. I have gone through the judgments relied upon by the Ld. Counsel for the parties. 25. In Narender Kumar Jain case (supra), the Hon’ble High Court of Delhi has relied upon the findings made by it in another case in WP (C) No. 2609­01/06 where the land sale deed of which was submitted for registration with the Sub Registrar i.e. respondent no. 1 was not under acquisition and it was observed that, “The respondent No. 1 i.e. the Sub Registrar seems to be under a mistaken belief that wherever agricultural land is sold, a no objection certificate is required CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 26 of 85 under the Delhi Land (Restriction on Transfer) Act, 1972. For future guidance of respondent no. 1, I may note that it’s concern is not with the issue whether the lands are under acquisition or not. Needless to state, if somebody obtains a sale deed in respect of land which is under acquisition, the same would be hit by the Delhi Land (Restriction on Transfer) Act, 1972. Meaning thereby, the purchaser would not be entitled to – any claim under the sale deed.”

26. Similarly, in case of O.P.C. Jain (supra), it has been held by the Division Bench of the Hon’ble High Court of Delhi that. “If there is no notification issued under Section 4 or Section 6 of the Land Acquisition Act, then no permission or ‘No objection Certificate’ at all is required in the case of transfer/sale of land.”

27. The ratio of the aforesaid judgments relied upon by the Ld. Counsel for the defendants clearly depicts that NOC for sale of an agricultural land is required only when the said land is subject matter of acquisition or in respect of which acquisition proceeding has been initiated or proposed to be initiated and if the land does not come under any of the aforesaid category, the NOC is not required to be obtained as CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 27 of 85 envisaged under Section 5 (1) of the Delhi Land (Restrictions on Transfer) Act, 1972.

28. In the present case, it is not the case of either of the parties that any acquisition proceeding is going on in respect of the land in question or proposed to be initiated. Therefore, in view of legal proposition as settled in the aforesaid two judgments relied upon by the Ld. Counsel for defendants, I am of the view that NOC was not required to be obtained by either of the parties for sale of the suit land. 29. So far as the case law relied upon by the Ld. Counsel for the plaintiff in Satender & Anr. vs. Govt. of NCT of Delhi & Ors. (supra) is concerned, the said judgment is on different facts. In the said case, question before the Hon’ble High Court of Delhi was whether the relief claimed by the petitioners of issuing permission to register the sale deed in respect of the agricultural land i.e. suit land in the said case could have been issued when the land on the date of filing of the writ petition admittedly stood acquired and whether the petitioner is entitled to the relief for the reason of there being no notification for acquisition on the date when the Sale Deed was presented for registration. The CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 28 of 85 Hon’ble High Court after taking due notice of the two of the aforesaid judgments relied upon by the defendants in Narender Kumar Jain vs. Sub Registrar and O.P.C. Jain vs. ADM (LA) & Ors. ,has clarified in para no. 6 that “Even though in the judgments aforesaid, this Court has held that NOC cannot be insisted upon as a mater of routine and is required only when the land is proposed to be acquired, the fact remains that the Registrar of Assurances, cannot have knowledge whether land sought to be transferred by registration of document is likely to be acquired or not. No fault can therefore be found with the action of the Registrar in enquiring from the concerned authorities as to whether the land was proposed to be acquired or not. ” With these observations, the Hon’ble High Court of Delhi dismissed the petition by which the petitioners were seeking direction to the Registrar to register the sale deed in respect of the suit land without insisting upon NOC from the competent authority.

30. However, in the present case, as noted above, the suit land is not under acquisition nor proposed to be acquired by the Government. Hence, the judgment of Satender & Anr. vs. Govt. of NCT of Delhi & CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 29 of 85 Ors. is not applicable in the facts and circumstances of the present case. 31. Similarly, in Meera Sahni case (supra), a notification was issued in respect of the lands in question in the said case u/s 4 of the Land Acquisition Act and subsequently declaration u/s 6 of the said Act was also issued stating that the said land is required for the planned development of Delhi and the NOC obtained by the appellants was found to be defective by the Hon’ble Apex Court as the same was not issued by the Additional District Magistrate (ADM) who is the competent authority to issue such NOC as per notification issued by the Administration of Union Territory of Delhi in exercise of the power conferred u/s 2 (b) of the Delhi Lands (Restriction on Transfer) Act, 1972. It was also observed that even the applications were not made in the manner as provided u/s 5 (2) of the said Act and none of the applications also indicated that the land in respect of which permission/NOC sought for is the subject matter of acquisition proceeding. With these observations, the Hon’ble Apex Court held that no title could be conveyed or could pass to the appellants as neither any proper application was made by the appellants or their predecessor in CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 30 of 85 interest for obtaining the NOC nor any valid and legal permission was granted to the appellants.

32. But the facts in the present case are different as in the present case, the land in question is not notified u/s 4 of the Land Acquisition Act nor any declaration u/s 6 of the said Act was made as cropped out from the pleadings of the parties and hence this authority as well has no applicability in the facts and circumstances of the present case.

33. However, admission of the defendants in their written statement regarding obtaining of NOC from the competent authority to complete the sale transaction cannot be ignored. I find substance in the argument of Ld. Counsel for the plaintiff in this regard. The defendants cannot blow hot and cold. Once they have taken a categorical plea in the written statement that the NOC was required for registration of sale deed and they have also agreed for the same in Agreement to Sell Ex.PW1/1, now they cannot take contradictory plea that NOC is not required as the land in question is not under acquisition. It has been held in Chimanjirao Kanhojirao Shikre & Ors. vs. Oriental Fire & General CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 31 of 85 Insurance Co. Ltd.(supra) by the Hon’ble Surpeme Court that, “Once a stand in fact is taken, that cannot be controverted by the legal proposition”. .

34. Since the defendant have taken a categorical stand in the written statement that the NOC was required for sale of the suit land for which they have also agreed in Agreement to Sell E. PW1/1 and have also admitted the same in various legal notices sent by them to the plaintiff, the defendants now cannot negate the said averment in view of the legal propositions in Narender Kumar Jain vs. Sub Registrar and O.P.C. Jain vs. ADM (LA) & Ors.(supra). Hence, I do not find any merit in the contention of Ld. Counsel for defendants that NOC was not required to be obtained from the competent authority for sale of suit land and the same is rejected.

35. Now, it is to be adjudicated upon as to which of the party has committed breach of the contract by not obtaining the requisite NOC from the competent authority.

36. As stated above, the bone of contention between the parties arises from clause 9 of the Agreement to Sell Ex. PW1/1, it is relevant to CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 32 of 85 refer the said clause here which is reproduced as under: ­ That the Second Party/ies shall obtain the NOC at its own costs and expenses and shall inform the First Party/ies within 07 days from the receipt of NOC by regd. Post.

37. As such, as per clause 9 of Agreement to Sell Ex.PW1/1, it is the second party i.e. the plaintiff who had agreed to obtain the requisite NOC and to intimate about the same to the first party i.e the defendants within 7 days from receipt of NOC.

38. However, Ld. Counsel for the plaintiff has argued that according to statutory provisions and prescribed procedure and forms, the plaintiff/buyer could not have applied and obtain the NOC/permission to complete the sale transaction and it is the duty and liability of the defendants under Delhi Lands (Restriction on Transfer) Act, 1972 to obtain prior permission/NOC from the competent authority before selling their land to the plaintiff. He further argued that the plaintiff has been wrongly burdened with the responsibility to obtain requisite NOC in Clause 9 of the Agreement to Sell Ex.PW1/1 which the plaintiff being buyer could not have fulfilled and this fact was brought to CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 33 of 85 the notice of the defendants after intervention by the respective property agents and they agreed to apply and obtain the NOC/permission on their own. But the defendants failed to obtain the NOC/permission within the stipulated period. He has relied upon the judgments reported in Neelpadmaya Consumer Products P. Ltd. vs. Satyabir & Ors. and Dharam Pal vs. Shashi Kant Saini (supra) to buttress his argument that it was the responsibility of the defendants being sellers to obtain the necessary NOC/permission from the competent authority. 39. Ld. Counsel for the defendants, on the other hand, has argued that the plaintiff under Clause 9 of Agreement to Sell was required to obtain NOC and to intimate about the same to the defendants by registered post. He further argued that the plaintiff has taken a totally false and frivolous plea that he was legally incapable of obtaining NOC and he never sent any notice during the subsistence of Agreement to Sell Ex.PW1/1 to the defendants intimating that he was legally incapable to obtain NOC or that he was finding it difficult to obtain NOC being buyer of the land and hence the defendants should apply and obtain the same. 40. As per the written agreement between the parties, it was the CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 34 of 85 plaintiff who was required to obtain the NOC from the competent authority and the said written term of the agreement cannot be challenged by the plaintiff in view of section 92 of Indian Evidence Act. In Dadarao vs. Ramrao (supra) relied upon by the Ld. Counsel for the plaintiff himself, it has been held by the Hon’ble Apex Court that the relationship between the parties has to be regulated by the terms of the agreement between them.

41. In Dharam Pal case (supra) heavily relied upon by the Ld. Counsel for the plaintiff in support of his contention that it is the seller who is legally bound to obtain the requisite NOC for sale of agricultural land, the Hon’ble High Court has observed that as per the admitted terms of the Agreement to Sell Ex.PW1/1, it was the appellant/defendant i.e. the seller who had to obtain the necessary permission from the revenue authorities and he failed to perform his contract and did not obtain the No objection Certificate from the revenue authorities which was a pre condition to execute the sale deed and in those circumstances, it was held that, “The argument/proposition that as per prevalent practice NOC has to be obtained by the buyer of the property is misconceived, CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 35 of 85 because first in law, it is always the seller who has to make himself capable of transferring the property and which capacity is achieved when the seller gets the NOC/permission from the competent authority. Also, there was no doubt in the present case as to who had to obtain the NOC because the agreement itself provided that the NOC will be obtained by the appellant/defendant. I, thus, do not find that there is any valid basis to canvass that it was the respondent/plaintiff who should have obtained the NOC on the ground of an alleged “practice”. In fact the plea as advanced is barred by Section 92 of the Evidence Act, 1872 as no argument can be raised to contradict a term of a written agreement.”

42. In the aforesaid case of Dharam Pal, it was the appellants/defendants/sellers who had agreed vide agreement to sell to obtain the necessary NOC and hence the proposition that as per prevalent practice NOC has to be obtained by the buyer of the property was rejected by the Hon’ble Delhi High Court. Similarly, in Neelpadmaya Consumer Products P. Ltd. vs. Satyabir & Ors, it was admitted case of the defendants/sellers that they had to obtain the CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 36 of 85 necessary NOC for execution of sale Deed. But the facts in the present case are different. In the present case, as per the agreement to sell Ex.PW1/1 which is an admitted document, it is the plaintiff/buyer who had agreed to obtain the NOC from the competent authority and as per settled proposition, the plaintiff cannot contradict the said written term of the Agreement to Sell Ex.PW1/1.

43. The ratio of the judgments in Chimanjirao Kanhojirao Shikre & Ors. vs. Oriental Fire & General Insurance Co. Ltd., Dadarao vs. Ramrao and Dharam Pal vs. Shashi Kant Saini heavily relied upon by the plaintiff itself makes it clear that the plaintiff cannot be allowed to set up a plea which is contradictory to the terms of the agreement to sell Ex.PW1/1 as per which it is the plaintiff who had to obtain the necessary permission/NOC from the revenue authorities. 44. The plaintiff when appeared in the witness box as PW­1 admitted in his cross­examination that whatever is written in the agreement, is true. Similarly, PW­2 Sukhbir Shokeen who is attorney and alleged agent of the plaintiff in striking the deal with the defendants also admitted in his cross­examination that whatever is written in CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 37 of 85 Ex. PW1/1 and PW1/2 is correct.

45. Therefore, in view of categorical stipulation in Clause No. 9 of the Agreement to Sell Ex.PW1/1, it was the plaintiff who had taken the responsibility of obtaining NOC from the competent authority and the plaintiff cannot be allowed to retract from the said written terms of the agreement and the said burden cannot be shifted on the defendants. 46. Let us now discuss another aspect of the matter. As noted above, in view of above agreed terms of the Agreement to Sell Ex.PW1/1, the plaintiff had to obtain the NOC to proceed further with the sale of the suit land. However, it is an admitted fact that the plaintiff has not applied for NOC with the competent authority. The reason assigned for the same by the plaintiff is that he was not eligible to obtain the NOC being buyer and only seller could have obtained the NOC which fact was brought to the notice of the defendants and with the intervention of the respective property agents of the parties, the defendants had agreed to obtain the NOC and intimate about the same to the plaintiff, which onus had been wrongly placed upon the plaintiff in Agreement to Sell Ex.PW1/1. The defendants have denied in the written CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 38 of 85 statement that the plaintiff had ever informed them about his incapacity to obtain the NOC or that they had ever agreed to obtain the requisite NOC from the competent authority. In view of this denial of the defendants, it was incumbent upon the plaintiff to prove that the defendants had agreed for obtaining the NOC contrary to the terms of the agreement.

47. It is pertinent to note here that the Agreement to Sell Ex.PW1/1 was executed on 20.03.2012 and from the said date 20.03.2012 upto 19.07.2012 i.e. the date on which sale deed was to be executed, the plaintiff has not sent a single letter to the defendants informing that he is unable to obtain the NOC being the buyer and, therefore, the defendants should apply for NOC from the competent authority so that sale transaction could be completed. 48. The plaintiff as PW­1 has categorically stated in his cross­ examination that he does not recollect whether he had given any notice or letter to the defendant prior to stipulated date i.e. 19.07.2012 asking him to take NOC with regard to the suit property. PW­1 further stated that he has not visited the defendants asking them to take NOC. He CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 39 of 85 voluntarily stated that Mr. Sukhbir Shokeen who was appointed by him as property agent was dealing in all his property deals including with the defendants. He denied the suggestion that Mr. Sukhbeer Shokeen was not his agent but he stated that he does not recollect whether Mr. Sukhbeer Shokeen had written a letter to the defendants to complete the sale transaction.

49. If the plaintiff was not eligible to obtain the NOC being buyer of the land and only seller could have obtained the NOC, then it was for the plaintiff to intimate the said fact to the defendants because in terms of Agreement to Sell, the burden was placed upon the plaintiff to procure the NOC but the plaintiff has not taken any such steps nor he wrote any letter informing the defendants that he is unable to obtain the NOC and they should apply for the same with the competent authority nor he ever visited the defendants.

50. From the aforesaid cross­examination of the plaintiff, it is apparent that he has claimed that he has appointed property agent namely Mr. Sukhbir Shokeen who was dealing with the defendants. The said fact has been disputed by the defendants by putting a suggestion to CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 40 of 85 PW­1 (the plaintiff) that Mr. Sukhbir Shokeen was not his agent, which was denied by the plaintiff. However, it is pertinent to note that the entire plaint is conspicuously silent about the name of the agent who had struck deal on behalf of the plaintiff with the defendants. The plaintiff has only stated that deal was struck with the defendants through agent but he has not disclosed the name of the said agent. For the first time, the plaintiff disclosed the name of his agent when he appeared in the witness box as PW­1 and claimed that Mr. Sukhbir Shokeen was his agent who was communicating with the defendants to obtain the NOC. But the plaintiff has not been able to prove that Mr. Sukhbir Singh was his property agent who on his behalf was dealing with the defendants regarding procurement of NOC from the competent authority. The plaintiff has categorically stated in his cross­examination that he cannot produce any appointment letter showing the appointment of Mr. Sukhbeer Shokeen as his agent. He further admitted that Ex.PW1/1 and Ex.PW1/2 do not bear the signature of Mr. Sukhbeer Shokeen. 51. The plaintiff has also examined the said Mr. Sukhbeer Shokeen as PW­2 who deposed in his examination­in­chief that he is CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 41 of 85 working as a property agent and is dealing in sale purchase, amongst others, of agricultural and farm lands. Vikas, who is the plaintiff in the present case, approached him sometimes in year 2012 and he took his services as property agent for the said purpose. Vikas is his client and he has been working for him as property agent. He further deposed that Mr. Naresh Kumar, who is resident of Village Dhansa and having side business as property dealer informed him that Ishwar Singh and his brother Rajender Singh, are co­owners/bhumidars in possession of land measuring 9 Bigha, 12 Biswa, bearing Khasra No. 99/9 (4­16) & 12 (4­ 16) and on the instructions of his client, he agreed to buy the said land for his said client. He further deposed that after negotiations, the defendants agreed to sell the suit land to his client for a sum of Rs. 1,42,00,000/­ . He further deposed that a sum of Rs. 20,00,000/­ was paid by him on behalf of his client to the defendants as an advance upon signing of the document and it was agreed that balance sum of Rs. 1,22,00,000/­ will be paid at the time of execution and registration of sale deed. He further deposed that later a dispute arose between the parties in respect of NOC for sale to be obtained from the competent CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 42 of 85 authority and since the buyer was not competent to obtain the NOC for sale of the land, the matter was finally resolved and defendants/sellers got agreed to apply and obtain the necessary NOC from the competent authority. Thereafter, he kept on reminding the defendants through their property dealer, to apply and obtain the NOC but the defendants unduly delayed the matter. Later he came to know through their property dealer that the defendants did not even file the necessary application for obtaining the necessary NOC.

52. In the cross­examination, PW­2 (Sukhbir Shokeen) admitted that Ex. PW1/1 and PW1/2 i.e. Agreement dated 20.03.2012 and Receipt dated 20.03.2012 respectively, do not bear his signatures as a witness. He further admitted that on the date of execution of the aforementioned documents on 20.03.2012, he was not present. He voluntarily stated that some other person from his side was present. He further stated that he is a big property dealer, having a number of agents who deal on his behalf but he cannot tell exactly who was present on that day. He does not have any document to show that he deputed some other person to be present at the time of execution of the aforementioned CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 43 of 85 documents on 20.03.2012. He admitted that he did not meet the sellers i.e. defendants before the execution of aforementioned documents Ex. PW1/1 and Ex. PW1/2. He cannot say that no witness signed on Ex. PW1/1 and PW1/2 on the date of signing by defendants. He also cannot admit or deny that signature of attesting witnesses on Ex. PW1/1 & PW1/2 were obtained later on. He admitted that Rs. 20 Lacs on account of earnest money were not given to defendants by him but by some other person on his behalf and he had paid the said amount to his person on behalf of the plaintiff. He admitted that there was no written agreement or any other document between him and plaintiff appointing him as property agent by the plaintiff.

53. In his further cross­examination, PW­2 (Sukhbir Shokeen) stated that he knows Mr. Manjeet resident of Village Chhawla, Delhi. He does not recollect whether the aforementioned Manjeet on behalf of the plaintiff as his agent went to the house of defendants on 20.03.2012 i.e. the date of execution of Agreement to Sell Ex.PW1/1. He does not know whether Manjeet Singh entrusted Rs. 20 lacs to the defendants as an amount of earnest money on 20.03.2012. He categorically stated that he CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 44 of 85 has no role in the sale purchase transaction, if any, between the plaintiff and defendants. He further stated that the dispute regarding NOC was between plaintiff Vikas, Manjeet and defendants. He does not recollect the date, month and year of the said dispute. He stated that the plaintiff asked the defendants many times for obtaining NOC. He does not recollect the date, month and year of the same. He voluntarily stated that it may be at the time of execution of the agreement. He stated that he has never written any letter to the property dealers of the defendants for obtaining NOC and to complete the deal. He knows Tatbir Singh who is a teacher. He does not know whether Tatbir was involved in the transaction between the plaintiff and defendants. He does not know whether Tatbir was the property agent on behalf of the defendants and Manjeet was the property agent on behalf of the plaintiff. He does not know the name of the property agent to whom the defendants were attempting to sell the suit property as mentioned in para no. 16 of his affidavit. He does not know whether the contents of para no. 17 of his affidavit are correct or incorrect.

54. The aforesaid cross­examination of PW­2 (Sukhbir CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 45 of 85 Shokeen) does not support the case of the plaintiff that the said witness PW­2 Sukbhir Shokeen was property agent who had struck the deal with the defendants on behalf of the plaintiff and he was in continuous touch with the defendants and had been asking them to obtain the NOC. This witness (PW­2) even has not been able to prove that he was appointed as property agent by the plaintiff or that he ever took any participation in the deal between the plaintiff and the defendants. The witness has not denied the claim of the defendants that one Mr. Manjeet Singh was the property agent of the plaintiff and Tatvir Singh was the property agent of the defendants who participated in the deal on behalf of the parties. He even could not deny the fact that Manjeet Singh had entrusted Rs. 20 lacs to the defendants on behalf of the plaintiff. The entire issue clinches in favour of the defendants when PW­2 (Sukhbir Singh) categorically stated that he has no role in sale/purchase transaction, if any between the plaintiff and the defendants.

55. As such, the contention of the plaintiff that his property agent Sukhbir Shokeen was asking the defendants to obtain the NOC has remained unsubstantiated. The plaintiff even has not been able to prove CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 46 of 85 that PW­2 Sukhbir Shokeen was his property agent.

56. On the other hands, the defendants have taken a plea that when the plaintiff failed to obtain the NOC within stipulated time despite the fact that their agent Sh. Tatvir Singh was continuously in touch with him to obtain the NOC, they were constrained to obtain the NOC. The defendants have also contended that they applied for NOC after waiting quite a time and intimated the said fact that they had obtained the NOC to the plaintiff vide legal notice dated 16.07.2012 and the plaintiff was called upon to pay the balance sale consideration amount of Rs.1.22 crores on or before 19.07.2012 and in case balance amount is not paid, the earnest money shall be forfeited. 57. The defendant no. 2 who examined himself as DW­1 deposed as per the averments made in the written statement in his examination­in­chief. In the cross­examination of DW­1 (defendant no. 2), nothing material could be extracted to demolish his testimony. He categorically stated that he is aware of contents of his affidavit as the same has been prepared on his instructions by his counsel. He denied the suggestion that he received the aforesaid bayana amount from Sukhbir CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 47 of 85 Shokeen, the property agent of the plaintiff. He stated that prior to the agreement in writing, it was agreed orally between him and property agent Tatvir Singh that NOC qua the suit property is to be obtained by the buyer Vikas i.e. plaintiff. No further suggestion was given to the witness that no such oral agreement took place between him and property agent Tatvir Singh by which the plaintiff had agreed to obtain the NOC. The witness further stated that he has applied for NOC since the plaintiff did not turn up on the appointed date for registration of the sale deed. He admitted that he has applied for NOC on 04.07.2012. He further admitted that he has not contacted the plaintiff and Manjeet after execution of Agreement to Sell. He voluntarily stated that he has contacted Tatvir several times. He admitted that he has not met plaintiff and Sukhbir Shokeen during course of the Agreement to Sell. He cannot say whether Manjeet Singh was not authorized to get the sale agreement executed on behalf of Vikas. He denied the suggestion that Tatvir is not his agent in respect to the Agreement to Sell. He further denied the suggestion that Tatvir has never met Vikas.

58. The defendants have also examined DW­2 Sh. Tatvir Singh CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 48 of 85 who in his examination­in­chief has deposed that he knows the defendants as they reside in his neighbourhood. On or about 15.03.2012, he came to know through Sh. Manjeet, a property dealer that one Vikas wants to purchase agricultural land in and around Village Dhansa, New Delhi and the said dealer also told that the buyer was ready to purchase the land at the price of Rs. 71 lacs per acre and would pay the whole amount of sale consideration in four months from the date of agreement. He contacted the defendants and told them about the aforesaid proposal . The defendants agreed to sell two acres of their land to the buyer and they put a condition that NOC etc. shall be obtained by the buyer at his own cost, risk and expenses. He further deposed that said Mr. Manjeet from the side of the buyer came to him on 20.03.2012 with Rs. 20 lacs in cash and already written agreement, receipt, and printed forms of NOC and thereafter, he and said Manjeet went to the house of defendants where the defendants were explained the terms and conditions of the agreement. The defendants received Rs. 20 lacs and signed the agreement, receipt and printed forms required for obtaining NOC for registration of sale deed which after signing were handed over to said CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 49 of 85 Mr. Manjeet, the dealer of the buyer. It was specifically agreed upon and written in agreement dated 20.03.2012 that buyer of the land shall obtain NOC at his own cost and expenses. He further deposed that after execution of agreement, neither buyer nor his aforementioned dealer or any other person on behalf of the buyer contacted him for making payment of balance amount of sale consideration to sellers. He also tried to contact the buyer at the address mentioned in the agreement but he could not contact the buyer in spite of his repeated efforts. He further deposed that the sale transaction could not be completed as the buyer failed to pay balance amount of sale consideration to the sellers within stipulated time. The buyer also failed to obtain NOC as stipulated under agreement dated 20.03.2012.

59. In his cross­examination, DW­2 (Tatvir Singh) stated that he came to know about the intended purchase of land by the buyer Vikas from Manjeet Singh. Manjeet Singh knew him and that is why he told him about the aforesaid intended purchase by Vikas. He had meeting with Manjeet 3­4 times before the deal. Manjeet inquired about his land whether he is interested in selling the said land to Vikas which he CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 50 of 85 refused. He stated that the documents related to Agreement to Sell, Bayana receipt etc. were got prepared by Manjeet Singh. He further stated that he knows Rajender Singh and Ishwar Singh. He admitted that both of them agreed to sell their land to the plaintiff Vikas. He was present when Rajender Singh and Ishwar Singh put their signatures and thumb impressions on the Agreement to Sell. He stated that the name of the buyer was not written in the said Agreement to Sell and he was not aware of the name of buyer. He voluntarily stated that he was told by Manjeet Singh that one Vikas is purchasing the said property. He did not sign on the Agreement to Sell as on the said date no signature of any witness were affixed on the Agreement to Sell as Manjeet disallowed the same. Manjeet told him that the buyer would bring his own witness on the Agreement to Sell. Manjeet refused him to be the witness on the Agreement to Sell as he was on behalf of seller. He denied the suggestion that he was not present at the time of execution of Agreement to Sell and that is why the same does not bear his signature as a witness. He further denied the suggestion that he was not privy to the transaction to the said deal on behalf of defendants. He stated that CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 51 of 85 after the stipulated time period expired, the seller obtained NOC qua the suit property. He further stated that Rajender and Ishwar contacted him many times after the agreement as he lives across the road from their houses. He deposed that Manjeet and the buyer did not contact him after the said agreement. He voluntarily stated that he contacted Manjeet several times. He stated that Manjeeet told him prior to the execution of Agreement to Sell that one Vikas is intending to purchase the suit property. He stated that the contents of the Agreement to Sell were read over by him to Ishwar Singh and Rajender Singh.

60. The aforesaid cross­examination of this witness (DW­2) clearly shows that one Manjeet Singh and not Sukhbir Shokeen was the property agent of the plaintiff with whom he had been dealing. There is not a single suggestion to the witness that Manjeet Singh was not the property agent of the plaintiff or that he had not been dealing with Manjeet Singh on behalf of the defendants. This witness has categorically stated that when the stipulated period has expired, the seller obtained the NOC qua the suit land. Again there is no suggestion that NOC was not obtained by the defendants when the plaintiff failed to CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 52 of 85 obtain the same.

61. It is pertinent to note here that the plaintiff has claimed that respective agents of the parties had resolved the matter and it was agreed by the defendants that they would obtain the NOC from the competent authority. However, no such suggestion either to DW­1 or DW­2 was given by the Ld Counsel for the plaintiff that any such oral agreement had taken place between the plaintiff and the defendants through their respective property agents by which the defendants had agreed to obtain the NOC contrary to the terms of the agreement and the plaintiff has miserably failed to prove the same.

62. Admittedly, the plaintiff for the first time sent a legal notice dated 06.11.2012 Ex.PW1/3 to the defendants after expiry of stipulated period of time to execute the sale deed, which has expired on 19.07.2012 alleging that the defendants have failed to obtain NOC and did not come forward to execute the sale deed despite being reminded by his property agents so many times and the defendants were called upon to execute the sale deed in his favour.

63. It is interesting to note that prior to legal notice dated CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 53 of 85 06.11.2012 even within the subsistence of Agreement to Sell Ex. PW1/1 i.e. w.e.f. 20.03.2012 to 19.07.2012, the plaintiff did not bother to make any communication with the defendants asking them to execute the sale deed within stipulated time. It has come on record that neither the plaintiff nor his alleged property agent Mr. Sukhbir Shokeen has ever met the defendants or communicated with them regarding execution of sale deed. Therefore, the legal notice dated 06.11.2012 Ex.PW1/3 issued by the plaintiff to the defendants is a sham and lame excuse just to cover up the breach of the obligation cast upon him in terms of agreement to sell Ex.PW1/1.

64. On the other hand, it has been proved on record by the defendants that Mr. Sukhbir Shokeen was not the property agent of the plaintiff and one Manjeet Singh was the agent of the plaintiff and neither the plaintiff nor his agent ever contacted the defendants or their agent for applying for NOC. The defendants have claimed that when the plaintiff failed to obtain the NOC within stipulated time, they applied for NOC and obtained the NOC. The defendants have placed on record the NOC as Ex.DW1/8 and Ex.DW1/9.

CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 54 of 85
65. It is pertinent to note here that the defendants vide letters dated 11.07.2012 Ex. DW1/1, 21.07.2012 Ex. DW1/5, 04.08.2012 Ex. DW1/9 had tried to intimate the plaintiff that on account of his failure to obtain the requisite NOC, they have applied for NOC and called upon the plaintiff to pay the balance sale consideration amount and to complete the sale transaction, failing which the earnest money shall be forfeited. Thereafter, vide legal notice dated 16.08.2012 Ex.DW1/10, the defendants had tried to contact the plaintiff to intimate him that on account of his failure to pay the balance sale consideration amount even after extension of time granted by earlier legal notices, they have cancelled the agreement and forfeited the earnest money paid by him. The said legal notices sent by the defendants through registered post could not be served upon the plaintiff because of wrong address given by the plaintiff in Agreement to Sell Ex PW1/1.

66. Perusal of Agreement to Sell Ex.PW1/1 which is admitted document shows the address of the plaintiff as “Vikas S/o Purshottam Lal R/o C­1/9, Vikaspuri, New Delhi”, whereas in the plaint, the plaintiff has given his address as “Guruansh B­235, Phase – I, Naraina CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 55 of 85 Industrial Area, New Delhi”. Similar address has been given by the plaintiff in his affidavit in evidence Ex. PW1/A. In his cross­ examination, PW­1 (the plaintiff) stated that in the year 2012, he was residing at House No. C­1, Vikas Puri, New Delhi on rent at Rs. 12.000/­ per month and he was residing at the aforesaid address for about 6­8 months, though he has no documents including rent agreement to show in this regard. He denied the suggestion that he was residing at C­1/9, Vikaspuri, New Delhi, the address mentioned in the agreement Ex. PW1/1 on 20.03.2012. It shows that the plaintiff has admitted that he was not residing at the address as mentioned in Agreement to Sell Ex.PW1/1. One fails to understand that why the plaintiff has given his incorrect address in Agreement to Sell Ex.PW1/1.

67. Similarly, PW­2 Sukhbir Shokeen, who is alleged property agent of the plaintiff stated in his cross­examination that the plaintiff was resident of C­Block, Vikaspuri. He does not know the exact house number of the plaintiff. He does not recollect for how many years, the plaintiff resided in Vikaspuri. He could neither admit nor deny that the plaintiff was resident of H.No. 334, Ground Floor, New Rajinder Nagar, CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 56 of 85 New Delhi. He could not say that plaintiff never resided at Vikaspuri. He further stated that he cannot say that the plaintiff has wrongly mentioned the address of Vikaspuri in the sale agreement dated 20.03.2012. 68. The aforesaid testimony of PW­1 and PW­2 clearly demonstrate that address of the plaintiff given in Agreement to Sell Ex. PW1/1 as C­1/9, Vikaspuri, New Delhi did not belong to the plaintiff and, therefore, the attempts made by the defendants to serve the intimation of receiving of NOC upon the plaintiff at the said address vide notices dated 16.07.2012, 21.07.2012, 04.08.2012 and 16.08.2012 remained futile as same were remained undelivered because of wrong address. It goes to show that the plaintiff since beginning had no intention to get through the deal for the reasons best known to him as he had given his wrong address in the agreement to sell. Therefore, the defendants cannot be faulted with for not intimating the plaintiff about obtaining of NOC. The defendants have also claimed that they also appeared before the concerned Sub Registrar on 19.07.2012 for execution of sale deed but the plaintiff did no turn up. In this regard, the defendants have placed on record stamp papers of Rs. 50/­ each as CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 57 of 85 Ex.DW1/18 and Ex.DW1/19 purchased by the defendant no. 1 on 19.07.2012 from the DC office Kapashera, New Delhi. DW­1 (the defendant no. 1) was suggested in his cross­examination that he purchased the stamp paper for Rs. 50 each Ex.DW1/18 and Ex.DW1/19 for some other purpose and not to mark his presence at Sub­Registrar office which was denied by the witness. However, except putting the suggestion, the plaintiff has not been able to show that the defendant no. 1 had purchased the said stamp papers Ex.DW1/18 and Ex.DW1/19 for some other purpose and not for executing the sale deed in respect of the suit land.

69. The repeated attempts made by the defendants vide legal notices dated 16.07.2012 Ex.DW1/1, 21.07.2012 Ex.DW1/5, 04.08.2012 Ex.DW1/9 to call upon the plaintiff to pay the balance sale consideration amount and their presence on 19.07.2012 before the concerned sub registrar, clearly goes to show that the defendants were ready and willing to execute the sale deed in favour of the plaintiff on receipt of balance sale consideration amount. On the other hand, it has come on record that NOC for sale of suit land was a pre­condition for completing the sale CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 58 of 85 transaction which the plaintiff was obliged to obtain from the competent authority in terms of Clause 9 of the Agreement to Sell but the plaintiff failed to obtain the same. The plaintiff remained silent after execution of the Agreement to Sell Ex.PW1/1 and did not try to contact the defendants to make the balance payment to facilitate the sale of the suit land. The plaintiff also did not turn up before the concerned Sub Registrar on due date i.e. on 19.07.2012 for completing the sale transaction. All these facts leads to irresistible conclusion that the plaintiff had no intention to complete the sale transaction. 70. In view of aforesaid discussions, I have no hesitation to hold that it is the plaintiff who has failed to fulfill his part of the contract as envisaged in Agreement to Sell Ex. PW1/1 and has committed breach of the terms of the Agreement to Sell dated 20.03.2012 Ex. PW1/1. On the other hand, the defendants have been able to show that they were willing to fulfill their contractual obligation under the Agreement to Sell Ex. PW1/1 but on account of failure of the plaintiff to perform his part of contract, the sale transaction could not be completed. Hence, Issue Nos. (ii) and (iv) are decided in favour of the defendants and against CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 59 of 85 the plaintiff.

Issue No. (i) (Whether the plaintiff was ready and wiling and able to perform his contractual obligations under the Agreement to Sell dated 20.03.2012?) 71. The onus to prove this issue is on the plaintiff. In order to succeed in a suit for specific performance, one of the ingredient as envisaged u/s 16 (c) of the Specific Relief Act is that the the plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. In Dr. Kimti Lal vs. Harpal Singh & Anr (supra) relied upon by the Ld. Counsel for the defendants, the Hon’ble High Court of Delhi quoted the judgment of Hon’ble Supreme Court in N.P. Thirugnanam (D) through LRs vs. Dr. R. Jagan Mohan Rao & Ors. 1995 (5) SCC 115 wherein it has been held as under: ­ “The continuous readiness and willingness on the part of the CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 60 of 85 plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting and refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract.” 72. The plaintiff in the plaint has claimed that he was always ready and willing to pay the balance sale consideration amount within the stipulated period of time but it was the defendants who failed to CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 61 of 85 obtain the requisite NOC and never came forward to accept the balance sale consideration amount despite various efforts made by the plaintiff through his agent. In the written arguments, Ld. Counsel for the plaintiff has also vehemently submitted that it is the defendants who could not make them competent to receive the balance payment and to execute the sale deed as they failed to obtain the requisite NOC/permission from the competent authority and hence the defendants are not entitled to demand payment of balance sale consideration amount. He further submitted that as per the terms of the Agreement to Sell remaining amount of Rs.1,22,00,000/­ was to be paid by the plaintiff on or before 19.07.2012. Therefore the plaintiff was liable to pay the balance amount to the defendants only at the time of execution of the sale deed and prior to that, the defendants were also required to make them competent in all respect to execute the sale deed by obtaining necessary NOC/permission for sale of the suit land which the defendants has failed to obtain and hence the plaintiff cannot be faulted for not payment of balance sale consideration amount within the stipulated period of time. He has relied upon Man Kaur (Dead) by LRs vs. Hartar Singh Sangha, (supra) CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 62 of 85 wherein quoting from P.D. Souza vs. Shondrio Naidu, (2004) 6 SCC 649, the Hon’ble Supreme Court has held that, “The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of them to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straight jacket formula can be laid down in this behalf.” 73. However, as it stands proved under Issue Nos. (ii) and (iv) that it is the plaintiff who is guilty of breach of contract as he neither obtained the requisite NOC as stipulated under Agreement to Sell Ex.PW1/1 nor he intimated the defendants about his inability to obtain the NOC and that they should apply for NOC, there is no merit in the contention of Ld. Counsel for the plaintiff that defendants have failed to make them competent to execute the sale deed by not obtaining the requisite NOC from the competent authority. Even if it is assumed that the defendants are guilty of breach of contract, still the plaintiff was required to prove that he was ready and willing to perform his part of the CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 63 of 85 contract. It has been so held in Man Kaur case (supra) relied upon by Ld. Counsel for the plaintiff himself wherein it has been held that, “Even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which were required to be performed by him (other than the terms the performance of has been prevent or waived by the plaintiff), there is bar to specific performance in his favour. Therefore, assumption of the respondent that readiness and willingness on the part of plaintiff is something which need not to be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct.”

74. Similar view was taken in Dr. Kimti Lal vs. Harpal Sinh & Anr. wherein quoting its judgment in Baldev Behl & Ors. vs. Bhule & Ors (2012) 132 DRJ, the Hon’ble High Court of Delhi held that, “In a suit for specific performance even if there is no defence of the defendant, yet, the aspect of readiness and willingness has to be specifically proved by the plaintiff.

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75. As such, readiness and willingness of the plaintiff to make payment of balance amount of sale consideration is sine qua non and his readiness and willingness must be proved irrespective of any default of the defendants. The readiness to perform the obligation by a proposed purchaser is a very important aspect and it has to be proved by categorical evidence. Mere oral evidence and self serving depositions cannot be a substitute for categorical evidence on the specific statutory requirement of Section 16 (C). It has been held in Dr. Kimti Lal vs. Harpal Sinh & Anr. (supra) that, “In law to prove readiness under Section 16 (c) of the Specific Relief Act, a buyer/plaintiff must show his financial capacity to pay the balance sale consideration right from the time of entering into the Agreement to Sell, till the decree of the suit.” It was further observed by the Hon’ble Delhi High Court that, “Financial capacity has to be proved by clear cut evidence to the satisfaction of the Court being an extremely important aspect in suit for specific performance. In the case of Baldev Behl & Ors. Vs. Bjule & Ors., (2012) 132 DRJ 247, it was held that financial capacity has to be proved to the satisfaction of the Court by clear cut documentary CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 65 of 85 evidence and self serving ipse dixit cannot be held to discharge the onus of proof with respect to the aspect of readiness/financial capacity”. 76. In view of above case law, to prove his readiness under section 16 (c) of the Specific Relief Act, the buyer must show his financial capacity to pay the balance sale consideration right from the time of entering into the Agreement to Sell till the decree of the suit. Since the onus was upon the plaintiff to prove his financial capacity, it has to be seen whether the plaintiff was having sufficient funds to pay the remaining balance consideration of Rs. 1,22,00,000/­ payable to the defendants as on date of entering the Agreement to Sell Ex.PW1/1 which was executed on 20.03.2012.

77. In this regard testimony of PW­1 (the plaintiff) is very relevant. In the cross­examination, PW­1 (the plaintiff) stated that he entered into the Agreement to Sell with other persons for almost 6­7 properties measuring around 25 acres in the vicinity of the suit property in and around 2012 and the consideration amount involved in all aforesaid deals was more than Rs. 15 crores. He further stated that he is an income tax payee for the last about 17 years. He does not recollect as CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 66 of 85 to how much cash in hand and bank balance was shown by him in the income tax returns for the year 2011­12. He does not want to produce the income tax return details for the relevant period. In 2012, he was having probably two bank accounts. He does not recollect the name of the bank and the branch. He cannot produce the bank passbook for the year 2012. He cannot produce the same for the reason that he was not having the same in the year 2012 as it was a private bank. He stated that he does not want to file any bank statement for the relevant period of 2012. He does not recollect as to how much amount in cash or in bank, he was having in the year 2012, 2013, 2014, 2015. He voluntarily stated that he was having enough money, however, he cannot tell exactly or approximately how much money. He denied the suggestion that he was not having the balance sale consideration of Rs. 1.22 crores on 19.07.2012. Plaintiff further stated that he cannot show any document in this regard.

78. From the aforesaid cross­examination of the plaintiff, it is apparent that no documentary evidence whatsoever has been filed by the plaintiff to show his financial capacity. Neither income tax returns have CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 67 of 85 been filed nor proof of bank deposits have been filed. No proof that balance sale consideration existed in the bank account of the plaintiff has been filed. No document has also been filed by the plaintiff to show that he was owner of various property or had any other means to show financial capacity to pay the balance sale consideration of Rs. 1,22,00,000/­ as on 20.03.2012. Therefore, in view of law laid down in Dr. Kimti Lal (supra), the self serving statement of the plaintiff is not sufficient to discharge the onus that he was having financial capacity to pay the balance sale consideration amount. I, therefore, hold that the plaintiff has failed to prove his readiness and willingness as required u/s 16 (c) of the Specific Relief Act to perform his part of contract under the Agreement to Sell Ex.PW1/1.

79. The Ld. Counsel for the plaintiff though has vehemently submitted in the written arguments that as per Clause 11 of the Agreement to sell Ex.PW1/11, the plaintiff was permitted to nominate and assign his right to some other person and as such the plaintiff could have got executed the sale deed in favour of any third person and, therefore, he was required to prove his financial capacity at the time of CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 68 of 85 execution of sale deed. However, I am not in agreement with the argument of Ld. Counsel for the plaintiff. The Clause 11 of the Agreement to Sell Ex. PW1/11 only entitled the plaintiff to get executed the sale deed either in his favour or in favour of his nominee assigned by him but it does not by any stretch of imagination absolve the obligation of the plaintiff to prove his financial capacity to pay the balance sale consideration amount right from the time of entering into the Agreement to Sell as also held in Dr. Kimti Lal vs. Harpal Sinh & Anr. (supra). The plaintiff has failed to prove his financial capacity as discussed herein above and hence it cannot be said that the plaintiff was ready and willing to perform his part of the contract. Hence, this issue is decided against the plaintiff.

Issue No. (iii) (Whether the defendants were entitled to forfeiture of advance amount paid under separate receipt annexed to the Agreement to Sell dated 20.03.2012?) 80. The onus to prove this issue is on defendants. Admittedly, the defendants have forfeited the earnest money of Rs.20 lacs paid by the plaintiff to them vide receipt Ex.PW1/2. The Ld. Counsel for the CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 69 of 85 defendants has submitted that the earnest amount paid by the plaintiff has been rightly forfeited by the defendants as Clause 8 of the Agreement to Sell provides so. He has also relied upon the judgment of the Hon’ble Supreme Court in Satish Batra vs. Sudhir Rawal (supra) where it has been held that the seller can retain the entire amount of earnest money if terms of Agreement provide so.

81. Per contra, the Ld. Counsel for the plaintiff has argued that the defendants could not forfeit the earnest money paid to them by the plaintiff as they themselves failed to make them competent to execute the sale deed by not obtaining the NOC/permission from the competent authority. However, as it has come on record that it was the duty of the the plaintiff to obtain the requite NOC from the competent authority and he has failed to do so and hence is guilty of breach of the contract, this argument of the Ld. Counsel for the plaintiff is without any merit. 82. The Ld. Counsel for the plaintiff has also vehemently argued that the defendants have failed to aver and lead any evidence to prove the loss or damages, if any, suffered by them on account of default on the part of the plaintiff to pay the balance amount within the CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 70 of 85 stipulated time, therefore the defendants were not entitled to forfeit the earnest money in the absence of any loss suffered by them. He has placed reliance in this regard upon judgments reported in Dilip Kumar Bhargava vs. Urmila Devi Sharma & Ors and Manoj Tomar vs. Neena Khattar & Ors.(supra) 83. In view of rival submissions made by the Ld. Counsel for the parties, question which arises for consideration is : Whether the defendants were justifiable in forfeiting the earnest amount paid by the plaintiff to them on account of failure of the plaintiff to perform his part of the contract?.

84. It is relevant to refer the relevant clause of Agreement to Sell Ex.PW1/1 in this regard. Clause 8 of the Agreement to Sell Ex. PW1/1 provides as under: ­ That if the First party/ies fails to execute the Sale Papers in favour of Second party then she/he/they shall pay DOUBLE AMOUNT of the Earnest Money/Biana amount & including Part­Payment. Likewise, if the Second party fails to pay the Balance amount to the First party within the above mentioned stipulated period then his/her/their CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 71 of 85 Earnest money/biana shall be forfeited as default. 85. The effect of breach of contract is provided under Section 73 of the Indian Contract Act. If there is a breach of contract then an aggrieved party is entitled to monetary damages as per Section 73 of the Indian Contract Act and which monetary damages is the amount of loss which is caused to the aggrieved party under the contract. Section 74 of the said Act deals with the measure of damages in two classes of cases (I) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. 86. The aforesaid stipulation made in Agreement to Sell Ex.PW1/1 under Clause 8 shows that forfeiture of earnest money is prescribed in the nature of penalty to compensate the loss/damages, if any on account of the default on the part of the plaintiff. 87. In Dilip Kumar Bhargava vs. Urmila Devi Sharma & Ors (supra), the Hon’ble High Court of Delhi after relying upon catena of judgments of the Hon’ble Supreme Court and taking note of section 74 of the Indian Contract Act, observed that, “A contract pertaining to CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 72 of 85 breach of an Agreement to Sell is a contract where loss can be calculated, the loss ordinarily being the lesser value of the immovable property on the date of the contract. Such contracts of Agreements to Sell, being contracts where damages can be calculated, even if, there is a provision of forfeiture of a huge amount of Rs. 5 lacs, the same would be a Clause in terrorem. The clause being in the nature of a penalty or in terrorem such forfeiture of a huge amount cannot be allowed unless damages are actually proved, the law being that Section 74 only provides the outer limit of damages which can be awarded. The Court always awards reasonable compensation depending upon the outer limit of compensation/damages which are prescribed under the contract, and which are in the nature of liquidated damages under Section 74 of the Contract Act.” With these observations, it has been held that, there cannot be forfeiture of an amount which is paid by a buyer under an Agreement to Sell to the Respondent, even if, the buyer is guilty of breach of contract because the seller who has received monies, cannot forfeit the monies unless he has suffered loss in the bargain. 88. In Manoj Tomar vs. Neena Khattar & Anr., (supra), the CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 73 of 85 issue whether the defendants are entitled to forfeit the advance money received by them under the Agreement to Sell even if the plaintiff is guilty of breach of contract was dealt with. The Hon’ble Delhi High Court observed that. “Para 14 of the written statement shows that the defendants have made an averment that the defendants have forfeited the amount because the plaintiff did not call upon them to complete the sale transaction, however there is no averment in the written statement that defendants have forfeited the amount on account of loss being caused to them by the plaintiff on account of the breach of the contract.” It was further observed that, “Section 74 occurs in Chapter 6 of the Indian Contract Act, 1872 which reads “of the consequences of beach of contract”. It is in fact sandwiched between Sections 73 and 75 which deal with compensation for loss or damages caused by breach of contract and compensation for damages which a party may sustain through non­fulfillment of a contact after such party rightfully rescinds such contract. It is important to note that like Sections 73 and 75, compensation is payable for breach of contract Under Section 74 only where damage or loss is caused by such breach.” The Hon’ble High CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 74 of 85 Court referring the judgment of Hon’ble Apex Court in Kailash Nath Associates vs. Delhi Development Authority & Ors. (2015) 4 SCC 136 further observed that. “A reading of the ratio of the Kailash Nath Associates case (supra) makes it more than clear that the law with respect to entitlement of a defendant/proposed seller to forfeit an amount received under the Agreement to Sell is subject to loss being caused and appropriation is actually pursuant to section 74 of the Indian Contract Act by taking the advance payment received as liquidated damages, but once there is no plea of loss being caused alongwith necessary details, there does not arise issue of appropriation by the defendants, of the advance price received under the contract as liquidated damages.”

89. In view of aforesaid proposition of law, the defendants on account of breach of contract on the part of the plaintiff cannot forfeit the earnest money paid by the plaintiff and at the most he can claim damages for the same but to claim the damages, they are required to plead and prove that they have suffered actual loss/damages on account of default on the part of the plaintiff and unless they prove the loss, they CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 75 of 85 are not entitled to forfeit the earnest money paid by the plaintiff. 90. The defendants in the written statement have pleaded that for a very specific purpose to purchase the land of one Sh. Haripal, they agreed to sell their land to the plaintiff. They immediately paid the entire earnest money of Rs.22 lacs to aforesaid Hari Pal and balance payment was to be paid on 10.08.2012, but only due to the non payment of balance amount by the plaintiff on 19.07.2012, the defendants could not pay the balance amount to said Hari Pal on 10.08.2012 due to which they suffered great loss and injury as bayana/earnest money paid by them has been forfeited by the vendor Sh. Hari Pal.

91. However, the defendant no. 2 when appeared in the witness box as DW­1, he though has reiterated that they entered into an Agreement to Sell with one Haripal and has also produced on record and exhibited the Agreement to Sell entered with Sh. Haripal as Ex. DW1/4 which has not been disputed by the plaintiff which is evident from the cross­examination of the DW­1. But, he did not aver a single averment regarding loss suffered by the defendants as pleaded in the written statement. He completely gave up the stand taken in the written CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 76 of 85 statement with regard to the loss suffered by them on account of non­ payment of balance sale consideration amount by the plaintiff and consequent forfeiture of advance payment made by them to Sh. Hari Pal. As such, the defendants have failed to prove the loss suffered by them on account of breach of contract by the plaintiff. Even no such assertion was made by the defendant no. 2 in his examination­in­chief despite the specific stand taken in the written statement. Therefore, in the absence of any loss suffered by the defendants, they could not have forfeited the earnest money of Rs. 20 lacs paid by the plaintiff and it is held that the defendants have wrongly forfeited the earnest money and they are liable to refund the same to the plaintiff. Hence, this issue is decided against the defendants.

Issue no. (v) (Whether the plaintiff is entitled for decree of specific performance of Agreement to Sell dated 20.03.2012? ) 92. The onus to prove this issue is on the plaintiff. As under Issue No. (1), it has already come on record that the plaintiff has failed to prove his readiness and willingness to perform his part of contract, CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 77 of 85 and on this ground itself the plaintiff cannot be said to be entitled to decree of specific performance of the Agreement to Sell dated 20.03.2012 Ex.PW1/1.

93. There is another reason for which the plaintiff is denied the decree of specific performance as prayed by him. Admittedly, the plaintiff has paid an amount of Rs. 20 lacs as earnest money to the defendants vide receipt Ex.PW1/2 out of the total sale consideration of Rs. 1.42 crores i.e. about 14% of the total sale price. This aspect has been considered in detail by the Hon’ble High Court in M/s Hotz Industries Pvt. Ltd. vs. Dr. Ravi Singh (since deceased through LRs.) & Ors., CS(OS) No. 1261/1998 decided on 28.02.2018 and it was held that a buyer of a property merely on the payment of about 10% of the price is not entitled to the discretionary relief of specific performance. 94. Similarly, in Jinesh Kumar Jain vs. Iris Paaintal & Ors. ILR (2012) 5 Delhi 678, the Hon’ble High Court referring to Section 20 of the Specif Relief Act has held that, “Sub­Section 3 makes it clear that Courts decree specific performance where the plaintiff has done substantiate acts in consequence of a contract/Agreement to Sell. CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 78 of 85 Substantial acts obviously would mean and include payment of substantial amounts of money. Plaintiff may have paid 50% or more of the consideration or having paid a lesser consideration he could be in possession pursuant to the Agreement to Sell or otherwise is in possession of the subject property or other substantial acts have been performed by the plaintiff, and acts which can be said to be substantial acts under Section 20 (3). However, where the acts are not substantial i.e. merely 5% or 10% etc. of the consideration is paid i.e. less than substantial consideration is paid, (and for which a rough benchmark can be taken as 50% of the consideration), and/or plaintiff is not in possession of the subject land, I do not think that the plaintiff is entitled to the discretionary relief of specific performance”. 95. In M/s Shri Neelpadmaya Consumer Products P. Ltd. vs. Satyabir & Ors, (supra) Hon’ble Delhi High Court has held that, “No doubt, it is the law that grant of specific performance is a discretionary relief, and which is made clear by Section 20 of the Specific Relief Act and especially sub­Section 3 thereof which requires substantial acts to be done by the plaintiff. Substantial acts have been interpreted in judgments CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 79 of 85 that payment of only nominal consideration of 10 to 15% is a good ground to deny specific performance and for the proposed buyer/plaintiff only to get damages, however, whether or not specific performance should be granted or damages should be granted, necessarily has to be depend upon the facts of each case. No doubt, in a case where only about 10­15% of the consideration is paid in advance and around 85% of the consideration payable is still a balance consideration, depending on the facts of a particular case, court may deny specific performance…..”. 96. Likewise, in Sardarmani Kandappan vs. Mrs. S.

Rajalakshmi, 2011 (12) SCC 18, Hon’ble Apex Court considered the aspect of payment of a nominal advance price by the plaintiff and its effect on the discretion of the court in granting the discretionary relief of specific performance and held that even assuming the plaintiff buyer is not guilty of breach of contract, yet, Section 20 sub section 3 of the Specific Relief Act, 1963 clearly requires substantial acts on behalf of the plaintiff/proposed purchaser i.e. payment of substantial consideration.

97. In a judgment titled as in “Laxmi Devi vs. Mahavir Singh”, CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 80 of 85 RFA No. 556/2011 decided on 01.05.201, the Hon’ble High Court of Delhi declined specific performance one of the ground being payment of only nominal consideration under the Agreement to Sell holding that there are two reasons for declining the discretionary relief of specific performance. The first reason is that the Supreme Court has now on repeated occasions held that unless substantial consideration is paid out of the total amount of consideration, the Courts would lean against granting the specific performance inasmuch as by the loss of time, the balance sale consideration which is granted at a much later date, is not sufficient to enable the proposed seller to buy an equivalent property which could have been bought from the balance sale consideration if the same was paid on the due date.

98. The ratio of the aforesaid judgments clearly demonstrate that the Court may deny the decree of specific performance to the plaintiff on the ground of nominal consideration paid under the contract. In the present case, besides the fact that plaintiff is guilty of breach of contract and was not ready and willing to perform his part of the contract lacking in financial capacity to pay the balance consideration, it is also a CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 81 of 85 fact that the plaintiff has paid a nominal amount of Rs. 20 lacs to the defendants out of total sale consideration of Rs. 1.42 crore which also dis­entitle the plaintiff to the discretionary relief of the specific performance. Hence, this issue is decided against the plaintiff. Issue no. (vi) and (vii) (Whether the plaintiff is entitled to a decree for recovery of money as prayed for? If yes, to what amount?) and (If the answer to Issue No. (vii) is in the affirmative, whether the plaintiff is entitled to charge any interest on the said decretal amount? If yes, at what rate and for which period?) 99. The onus to prove this issue is on the plaintiff. The plaintiff in alternative of decree of specific performance has claimed recovery of Rs. 20,00,000/­ from the defendants which was paid by him as earnest money alongwith interest @ 18% per annum and has also claimed Rs. 20,00,000/­ as compensation for loss and damages suffered by him on breach of agreement committed by the defendants. 100. Since it has come on record that the plaintiff himself is guilty of breach of contract, the plaintiff cannot be said to be entitled to CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 82 of 85 Rs. 20 lacs claimed by him as compensation for loss and damages on breach of contract by the defendants. Even otherwise, no evidence has been led by the plaintiff that he has suffered any loss due to the conduct of the defendants. However, since under Issue No. (3), it is held that the defendants have wrongly forfeited the amount of Rs. 20 lacs paid by the plaintiff as earnest money and the plaintiff is entitled to refund of the said earnest money of Rs. 20 lacs.

101. The plaintiff has claimed interest @ 18% per annum. However, there is no stipulation in the agreement to sell Ex.PW1/1 regarding rate of interest. Hence, the claim of the plaintiff regarding rate of interest @ 18% per annum appears to be on higher side. The ends of justice will be met if the plaintiff is awarded interest @9% per annum on the amount of Rs. 20 lacs pendentlite and future. These issues are accordingly decided in favour of the plaintiff and against the defendants.

Issue No. (viii) (Whether the plaintiff is entitled to a decree of permanent injunction as prayed for?) CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 83 of 85
102. Since the plaintiff is held not entitled to decree of specific performance of the Agreement to Sell Ex.PW1/1 by which the plaintiff had agreed to purchase the suit land from the defendants and the deal could not be finalized on account of breach of contract by the plaintiff, the defendants who are admittedly owners of the suit lands cannot be denied of their right to sell their property to the third party. Hence, the plaintiff cannot be said to entitled to the decree of permanent injunction as prayed for. Hence, this issue is decided against the plaintiff. Issue No. (ix) (Whether the suit is hit by section 33 of the Delhi Land Reforms Act?) 103. The onus to prove this issue has been placed upon the defendants. However, in the written statement, the defendants have nowhere raised any such objection that the suit is hit by section 33 of the Delhi Land Reforms Act and it appears that the said issue has been framed due to inadvertence. Even otherwise, none of the parties have led any evidence in this regard nor made any submission on this issue. Therefore, in the absence of any pleadings and evidence on this issue, the same has become redundant and no findings are required to be given CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 84 of 85 on this issue.

RELIEF
104. As a sequel to my findings under Issue Nos.(vi) and (vii), the suit filed by the plaintiff is partly decreed and a decree is passed in favour of the plaintiff and against the defendants for a sum of Rs. 20,00,000/­ (Rupees Twenty Lacs) with pendentelite and future interest @ 9% per annum from filing of the suit till realization of the decretal amount. The other reliefs claimed by the plaintiff including decree of specific performance of Agreement to Sell Ex.PW/1 are declined. No order as to costs. Decree sheet be prepared accordingly.

105. File be consigned to Record Room after necessary compliance. BALWANT Digitally signed by BALWANT RAI RAI BANSAL Date: 2019.11.21 BANSAL 14:44:03 +0530 Announced in the open Court (Balwant Rai Bansal) on 20th November, 2019 Additional District Judge­05 (South­West) Dwarka Courts, New Delhi CS No. 15658/16 Vikas vs. Ishwar Singh & Anr. Page 85 of 85

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