HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J.
1. The plaintiff has filed the aforesaid suit against the defendants seeking Specific Performance of Agreement to Sell dated 7th February, 2010 executed by defendant Nos.1 and 2 in respect of part of property No.A-72, New Friends Colony, New Delhi (excluding First Floor) for a total consideration of Rs.7,31,00,000/- (Rupees Seven Crores Thirty One Lac Only) out of which Rs.50,00,000/- was paid by the plaintiff and the balance consideration of Rs.6,81,00,000/- (Rupees Six Crores Eighty One Lac Only) was to be paid within sixty (60) days i.e. on or before 7th April, 2010, in terms of Clause No.11 of the said Agreement to Sell.
2. The suit was filed against four defendants. Defendant Nos.1 and 2 are sisters. Defendant No.3 is brother of defendant Nos.1 and 2. Defendant No.4 is the wife of defendant No.3.
3. As per material placed on record, it appears that the suit property No.A-72, New Friends Colony, New Delhi was earlier owned by Ms. Amrit Kaura (deceased) mother of defendant nos. 1 to 3 wife of late Sh. Mool Raj Kaura. She purchased the same above mentioned plot admeasuring 492. Sq. yds. from Delhi Development Authority vide perpetual sub lease dated 21st December, 1972. Deceased constructed ground floor and part of first floor. Defendant No.1 and 2 being unmarried daughters of the deceased were residing with her on the ground floor and defendant No.3, son was residing in one room on the first floor of the property. Late Sh. Mool Raj Kaura, husband of late Amrit Kaura expired on 25th August, 1984. deceased had one more son namely Sh. Sushil Kaura but he also died on 5th November, 2007, issueless as he had no children and had divorced his wife and was staying abroad for a long time.
4. In the registered Will dated 8th September, 1986 mother of defendant no.1 to 3 had stated defendant No.3 was also violent in nature and she expressed fear that he may harm his unmarried sisters. Therefore, by registered Will and Testament dated 8th September, 1986, Late deceased stating above facts about defendant No.3, bequeathed the above property to defendant nos.1 and 2.
5. As per the case of plaintiff, mother transferred her rights in the first floor only of the property without any rights in the roof above the first floor or floors above the same in favour of defendant nos.3 and 4 in the year 1996 and she executed agreement to sell dated 16th October, 1996, registered power of attorney also dated 16th October, 1996, receipt and also registered Will only with respect to first floor of the property with right to construct the open area on the first floor excluding garage block and remaining property. The Will was only with respect to first floor only and therefore, remaining property stood bequeathed to defendant Nos.1 and 2 vide registered Will dated 8th September, 1986 and there was no change in the same.
6. It is alleged by the plaintiff that the defendants No. 3 and 4 alongwith their family are residing on the first floor with separate entry from the front side of the property from outside with separate staircase and remaining property i.e. ground floor and terrace of the first floor and garage block with separate staircase from ground to terrace of first floor along with independent driveway along with front and back lawn/ courtyard i.e. entire remaining property except the entire first floor were owned by and are in possession of defendant Nos.1 and 2. Deceased expired on 21st October, 2007.
7. As mentioned earlier, defendant Nos.1 and 2 entered into agreement to sell dated 7th February, 2010 for sale of the property to plaintiff for total sale consideration of Rs.7.31 crores.
8. Plaintiff got public notice through his advocate published in the Hindustan Times, dated 29th March, 2010 pointing out the above agreement to public at large and whether any one else had any right title or interest in the property. Defendant nos.3 and 4 through their advocate Sh. Dinesh Garg sent letter dated 29th March, 2010 alleging claim of ownership of defendant Nos.3 and 4 of the first floor of the property but as per plaintiff it was wrongly claimed therein that they had 50% share in the land underneath.
9. It is alleged by the plaintiff that after having knowledge about the agreement to sell dated 7th February, 2010 by defendants Nos.1 and 2 in favour of plaintiff, defendant Nos. 3 and 4 filed a suit for partition and injunction in this Court being C.S. (OS) No.649/2010 on 7th April, 2010 which was two days before the date by which plaintiff had to pay the balance sale consideration take possession and get the necessary transferred document executed and registered in favour of the plaintiff.
10. Plaintiff says that when plaintiff approached defendant nos.1 and 2 for completion of the transaction, they told plaintiff that defendant Nos.3 and 4 had informed defendant No.1 and 2 that the suit for partition had been filed and in view thereof they will not receive the balance sale consideration and handover possession in view of status quo order granted by the Court on 9th April, 2010.
11. It is alleged by the plaintiff that since defendant Nos.1 and 2 had entered into legal and valid agreement to sell dated 7th February, 2010 with plaintiff for sale of the above property. The defendant Nos.3 and 4 filed the above suit being CS(OS) No.649/2010 against defendant Nos.1 and 2 with respect to the property.
12. It is mentioned that the abovementioned suit was listed before the Joint Registrar on 12th July, 2010 when plaintiff and his counsel appeared before the Joint Registrar, it was informed that the Court file had not been sent by the registry and the suit was renotified for 9th August, 2010. On inquiry as to why the file had not reached the Court of Joint Registrar, it was found that some fresh application had been filed by defendant Nos.1 and 2 and defendant Nos.3 and 4 which had come up before the Court on 9th July, 2010. The plaintiff checked the web site of this Court and found that defendant Nos.1 and 2 on the one hand and defendant nos. 3 and 4 on the other hand entered into a settlement and shockingly defendant Nos.1 and 2 agreed to give 45% share not only in the land underneath the property but also the constructed portion to defendant Nos.3 and 4 which defendant Nos.3 and 4 had not even claimed in the suit.
13. Local Commissioner was also appointed to inspect the property and suggested the possible modes of partitioning the property as per record of the case now the matter is still pending.
14. Therefore, as per plaintiff, the defendant Nos. 1 and 2 in collusion with defendant Nos. 3 and 4 in order to defeat the rights of plaintiff acquired under agreement to sell dated 7th February, 2010 from defendant Nos.1 and 2 despite application I.A. No.6415/2010 in above suit of plaintiff under Order I Rule 10 CPC being pending and plaintiffs also having filed reply to the same on 1st July, 2010 did not bring to notice of the Court on 9th July, 2010. In the joint application being I.A. No.7006/2010 and the preliminary decree was passed after recording the statement of the parties and allowing of joint application in the said suit.
15. Now in the said case, there are two pending applications being I.A. No.4451/2010 under Order XXXIX Rule 1 and 2 CPC filed by the plaintiff and I.A. No.6415/2010 under Order I Rule 10 CPC filed by Ajit Pal Singh, plaintiff in the present case.
16. Though both cases were listed from time to time. However, parties in the present case have made their submission only in injunction application being I.A. No.9382/2010 filed by Ajit Pal Singh, plaintiff in the present case as well as in I.A. No.15497/2010 under Order XXXIX Rule 4 CPC. Therefore, orders were reserved in these applications. Pending applications in CS(OS) No. 649/2010 will be considered after passing the order in the applications.
17. As per the case of the plaintiff that he has all through been and is still ready and willing to perform his part of contract and that the breach is on part of the defendant Nos.1 and 2. It is also alleged by the plaintiff that in view of valid agreement and plaintiff being ready and willing to pay balance consideration he is entitled for a decree and alternatively he is entitled to a decree for damages for Rs.5.69 crores which is different in market price at the time of agreement and date of suit which includes Rs.50 lac paid by plaintiff to defendant Nos.1 and 2 as advance part sale consideration.
18. Along with the suit, the plaintiff also filed an application being I.A. No.9382/2010 under the provisions of Order XXXIX Rule 1 and 2 read with Section 151 CPC seeking interim orders. The same were listed before court while issuing summons, court also directed the defendants to maintain status quo with regard to suit property.
19. The defendants No.1 and 2 are contesting the suit as well as the application. The main contention of the defendant Nos. 1 and 2 has been that :
(i) The plaintiff was not ready and willing to perform his part of contract and that as a matter of fact, the plaintiff had no money to pay the sale consideration and as such, is not entitled to the interim relief. Time was the essence of the contract.
(ii) The time of sixty (60) days lapsed on 7/8th April, 2010, as the plaintiff failed to pay the balance sale consideration of Rs.6,81,00,000/- (Rupees Six Crores Eighty One Lac Only) by the said date.
(iii) There was no stay against sale by any Court till such expiry date of 7/8th April, 2010.
(iv) The plaintiff did not purchase the stamp papers nor documents of sale drafted and is thus, not entitled to specific performance or to any interim relief.
20. In addition to the above, defendants No.1 & 2 have contended that time was the essence of the agreement dated 7th February, 2010. As per Clause 11 of the agreement, time of 60 days was agreed between the parties for completion of the terms and conditions including for making the full and final payments and registration of sale deed. Since the plaintiff failed to pay the said amount within 60 days, the said agreement stood cancelled/expired by efflux of time. Therefore, defendants No.1 & 2 were no longer bound by the terms of the agreement.
21. It is the contention of Mr. R.S. Chauhan learned counsel appearing on behalf of defendants No.1 and 2 that since the value of the immovable property was appreciating every day, therefore, the main intention of the plaintiff was somehow to delay the transaction in order to make the payment in time. The plaintiff even failed to produce any evidence of his readiness and willingness to pay the balance amount of Rs.6.81 crore as per the agreement. It is submitted that during the 60 days’ period, the plaintiff did not contact or intimate defendant Nos.1 and 2, nor sent any intimation for the purpose of making the balance payment. As regards the issuance of letter dated 29th March, 2010 is concerned, it is stated by defendants No.1 & 2 that the said letter is a manipulated one. The alleged letter was sent just 10 days prior from the date of expiring of 60 days’ period to make the balance payment. The defendants have received only 6 blank papers in the envelope sent by the plaintiff. The defendants’ application under Section 340 Cr.P.C. is pending against the plaintiff for filing the wrong affidavit along with the plaint. The plaintiff has also failed to file the bank account statement in order to prima-facie show that the funds were available with the plaintiff. As plaintiff was never ready to perform his part of the contract, sending of alleged letter dated 29th March, 2010 was even meaningless. Thus, the plaintiff is not entitled to relief claimed in the application.
Contentions of Defendants No.3 & 4
22. It is contended by them that there is no privity of contract between the plaintiff and defendants No.3 & 4. It is stated that there is a malafide on the part of the plaintiff from the very beginning, as in the public notice got published by the plaintiff in The Hindustan Times dated 29th March, 2010 an impression was given by him to the public that he has entered into an agreement for the purchase of the entire built-up suit property, although, admittedly he did not enter into the agreement to purchase the entire property. Defendants No.3 & 4 through their Advocate on 29th March, 2010 replied to the public notice claiming their 50% share in the land underneath. By means of alleged agreement, the intention of the plaintiff to grab the entire property of the defendants, infact, he was also aware about the inter-se dispute amongst the defendants with regard to the title and possession and interest of defendants No.3 & 4 and a preliminary decree for partition has been passed in the suit filed by defendants No.3 & 4 against defendants No.1 & 2. Thus, the agreement to sell is not capable of specific performance, as the defendants No.1 & 2 had no title or interest in respect of the property as agreed to be sold. The suit property is a dwelling house of the family and none of the co-sharers had a right to sell his/her share to any outsider. Since the plaintiff is an outsider, he is not entitled either to purchase the share of a co-sharer or to join possession with defendants No.3 & 4. The defendant No.3 is not a party to the agreement to sell and he has preferential right to acquire the rights and interest of defendants No.1 & 2 if they propose to transfer the same at any point of time and had pre-emption rights which they have claimed.
23. The learned counsel for the plaintiff, on the contrary, has argued that whatever claim made by defendants No.3 & 4 in the written statement, are totally contrary to the Will as well as the agreement executed in between the plaintiff and defendants No.1 & 2. It is also submitted that time was not the essence of the contract in respect of the sale of the immovable property.
24. According to the counsel, it was defendants No.1 & 2 who have now attempted to wriggle out of their obligations under the agreement to sell in connivance with defendants No.3 & 4. Preliminary decree was passed on the basis of connivance with defendants No.1 and 2 after execution of agreement to sell. The said orders were passed at the back of the plaintiff as his application for impleadment was pending and it was not brought to the notice of the court about the factum of filing of application of impleadment. The said decree was obtained by the defendants in order to defeat the rights of the plaintiff.
The said defendants have also not been able to show any document to prove that the suit premises was vacant and they were ready to give the vacant and physical possession to the plaintiff on or before the date stipulated for making the balance payment, therefore, they cannot allege that the plaintiff was not ready and willing to fulfill his obligation under the contract.
The plaintiff vide letter dated 29th March, 2010 (supra) indicated his ready and willingness to make the balance payment to the defendants on handing over vacant and physical possession of the suit premises. Therefore, the arguments of the defendants that the plaintiff not have sufficient means to make the balance payment are wholly misplaced and without any basis. Even otherwise, the question regarding financial capacity of the plaintiff and ready and willingness of the parties to the contract, are the subject matter of trial and require evidence to be lead by the respective parties for the court to come to the conclusion, as to which party was responsible for the breach of the obligation.
25. It is argued by the plaintiff that since the plaintiff has made payment of a huge amount and that the present suit is for specific performance of the agreement, therefore, if the interim injunction as prayed for, is not confirmed, the plaintiff’s right qua the suit property would be gravely prejudiced and effected. Therefore, balance of convenience is clearly in favour of the plaintiff. In case, the defendants are permitted to deal with the property and create further 3rd party right, the plaintiff would suffer irreparable loss and thus the plaintiff is entitled for the relief claimed and ex parte order be made absolute during the pendency of the present suit.
26. The plaintiff has relied upon the following judgments in support of his arguments:
a) Swarnam Ramchandran (Smt.) & Another, reported in (2004) 8 SCC 689.
b) Azhar Sultana Vs. B. Rajamani 7 Ors. reported in AIR 2009, SC 2157.
c) Gurdial Kaur (D) by L.Rs. Vs. Piara Singh (D) by L.Rs. reported in AIR 2008 SC 2019.
d) Sukhbir Singh & Ors. Vs. Brij Pal Singh & Ors., reported in JT 1996 (6) SC 389.
e) Ayang Rinpoche Vs. Suraksha Gupta, reported in 2008
(151) DLT 678.
f) Ansal Properties & Industries (Pvt.) Ltd. Vs. Rajinder Singh & Anr., reported in 41 (1990) DLT 510.
27. Apart from the said arguments, the plaintiff during the course of hearing, has relied upon the photocopies of the two bank drafts dated 19th November, 2010 and 20th November, 2010 for the sum of Rs.3.40 crore each in favour of defendants No.1 & 2. Copies of these bank drafts were filed in Court on 22nd November, 2010, though the suit was filed on or about 16th July, 2010. The learned counsel for the plaintiff has also referred copy of the Memorandum of Understanding, allegedly executed on 3rd February, 2010 with M/s Maja Health Care Division, who promised to give finance to the plaintiff for purchase of the said property. On the strength of these documents, it was argued by the learned counsel for the plaintiff that the plaintiff was ready with the payment and to perform his part of the contract as the defendants have refused to perform their part, the plaintiff is entitled for an interim order as prayed for.
28. The learned counsels for the defendants have argued that the plaintiff cannot take advantage of these documents, as these documents are manipulated and managed by him and are not genuine document and he is the guilty of forgery of the same.
29. Admittedly, these documents were not filed along with the plaint, nor any reference was made in the plaint. The copies of the two bank drafts were filed on 22.11.2010. The Memorandum of Understanding was filed in Court on 09.02.2012. These documents might not be given importance at this stage as those have to be proved at the time of trial in order to show his readiness and willingness to perform his obligation as per agreement. Since, both parties are relying upon their case on these documents, therefore, it has become necessary to examine the same carefully.
30. Mr. Garg, learned counsel for defendants No.3 & 4 has argued that after filing of these documents, the defendants made an inquiry with regard to the authenticity of the said documents and after the inquiry, defendant no.4 has filed an affidavit dated 25.02.2012 in which specific statements were made as per the material available on record that the said documents were manipulated and not genuine and these have been produced before the Court in order to mislead and the plaintiff is guilty of manipulating the said documents. The details of the said documents filed by the plaintiff are given as under:-
A) (i) Copy of Demand Draft No.160536 dated 19th November, 2010, for Rs.3,40,00,000/- drawn in favour of defendant No.2 and (ii) Copy of Demand Draft No.160790 dated 20th November, 2010, for Rs.3,40,00,000 in favour of defendant No.1.
B). Copy of Memorandum of Understanding allegedly executed on 3rd February, 2010, with M/s. Maja Healthcare Division promising to give finance to the plaintiff for purchase of the suit property.
31. Specific Relief Act, 1963:
“Section 16. Personal bars of relief: Specific performance of a contract cannot be enforced in favour of a person :
a. Who would not be entitled to recover compensation for its breach; or
b. Who has become incapable of performing, or violates any essential turn of, the contract that on his part remains to be performed, or acts in fraud of the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
c. Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendants.
Explanation – for the purpose of clause (c) –
a. Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court.
b. The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
32. It has been held in number of cases that the plaintiff is bound to prima facie prove his readiness and willingness even to obtain the interim relief. Some of the decisions on this aspect are referred as under:-
a) In Sanjay Passy Vs. Iqbal Chand Khurana and Anr., 2010 (117) DRJ 209 it was held as under:
“27. The plaintiff is correct in saying that time should not be considered as of the essence of the contract, in respect of sale of immovable property. However, the rule does not mean that when called upon to issue an equitable relief – even a temporary injunction, the court has to disregard express stipulations for time, contained in the contract. A party’s conduct, in the performance of its express obligations, is an important aspect which has to be considered when deciding whether ad-interim injunction should be granted. Here, the record would disclose that the original agreement stipulated the payment of the entire amount in September, 2008. The parties extended this time, by agreement, to 7th April, 2009, with a grace period of two months. The plaintiff’s inability to show that he approached the defendant vendors, at or just before the stipulated time, therefore, is a material factor for the court to conclude that a prima facie case does not exist.”
29. There were observations in the judgments cited by the applicant-plaintiff, to indicate that the court should not insist that the plaintiff should establish, that at all stages, he had the amount necessary to complete the transaction. On the other hand, there are decisions relied on by the vendors and the third defendant, that even to entitle an ad-interim order, there must be some prima facie material in the plaintiff’s favour. The material here suggests that the plaintiff had borrowed Rs.5 crores in 2008 (the copy of a communication filed by the defendant); his brother had been sanctioned working capital limit for commercial purposes, and he (i.e. the plaintiff’s brother) was in possession of substantial funds. There is a letter given by plaintiff’s brother that by such funds and amounts could be given to him (the plaintiff). Yet, these, in the opinion of the court, do not add up to prima facie readiness and willingness on the plaintiff’s part, to entitle him to an order of injunction for the duration of the proceeding. This court is mindful of the circumstance, in this context that even though time is not deemed to be of the essence of the contract, the prevailing circumstances, in the realty sector is such that property prices are escalating almost on a daily basis. This aspect would be necessity, caution the courts in their approach to grant injunctions on routine basis.
An unjustified interim order, at the behest of a casual purchaser, can lead to oppression of the owner or vendor, or even a third party purchaser and cause economic hardship.”
b) In the case of Sanjeev Kumar Mittal Vs. State, 174 (2010) DLT 214, the court held as under:
“6.6. If there is falsehood in the pleadings (plaint, written statement or replication), the task of the Court is also multiplied and a lis that could be decided in a short time, then takes several years. It is the legal duty of every party to state in the pleadings the true facts and if they do not, they must suffer the consequences and the Court should not hold back from taking action.
c) In the case of H.P. Pyarejan v. Dasappa, (2006) 2 SCC 496, at page 504, the court held as under:
“13. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.
16. In our opinion, therefore, the judgment of the High Court suffers from serious infirmities. It suffers from the vice of exercise of jurisdiction which did not vest in the High Court under the law. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial questions of law. Interference with finding of fact by the High Court is not warranted if it involves reappreciation of evidence (see Panchugopal Barua v. Umesh Chandra Goswami and Kshitish Chandra Purkait v. Santosh Kumar Purkait). The High Court has not even discussed any evidence. No basic finding of fact recorded by the courts below has been reversed much less any reason assigned for taking a view contrary to that taken by the courts below. The finding on the question of readiness and willingness to perform the contract which is a mixed question of law and fact has been upset. It is statutorily provided by Section 16(1)(c) of the Act that to succeed in a suit for specific performance of a contract the plaintiff shall aver and prove that he has performed and has always been ready and willing to perform the essential terms of the contract which were to be performed by him other than the terms the performance of which has been prevented or waived by the defendant.
d) In the case of Uma Bai Vs. Nilkanth Dhondiba, JT 2005 (IV) SC 292, the court held as under:
“31. It is well-settled that the conduct of the parties, with the view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or the statement made in the examination-in- chief would not suffix. The conduct of the plaintiff- respondents must be judged having regard to the entirety of the pleadings as also the evidence brought on record.
32. In terms of Form Nos.47 and 48 appended to Appendix A of the Code of Civil Procedure, “the plaintiff must plead that he has been and still is ready and willing specifically to perform the agreement on his part of which the defendant had had noticed” or “the plaintiff is still ready and willing to pay the purchase- money of the said property to the defendant”. The offer of the plaintiff in the instant case is a conditional one and, thus, does not fulfil the requirement of law.”
e) In the case of Aniglase Yohannan v. Ramlatha, (2005) 7 SCC 534, at page 540 , the court held as under :
“12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.”
f) In the case of K. Narendra v. Riviera Apartments (P) Ltd., (1999) 5 SCC 77, at page 92 the court held as under :
“33. The Court has further proceeded to hold:
All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties).”
Para 35, right hand side 17th line, “Added to all this is the factum of astronomical rise in the value of the land which none of the parties would have fore contemplated at the time of entering into the agreement.
Para 38, “However, in our opinion the present one is a fit case where the respondents should be awarded some compensation in spite of its specific performance being refused.”
33. Let me now examine the present case in view of the facts and law in the present case as well as on the basis of rival submissions made by the parties on the aspect of readiness and willingness to perform the part of the plaintiff as claimed by him to make payment of the balance sale consideration. At this stage, the court has to take the prima facie view as no doubt financial capacity of the plaintiff are the subject matter of trial and it has to be proved by leading evidence of the parties, however, in the present case, the plaintiff in the matter from the day one has alleged that he has sufficient fund and was ready and willing to fulfill his obligation. In fact, he has placed the following documents which are strongly challenged by the defendants by alleging that there are all manipulating documents which have been filed only in order to show funds though the plaintiff had no fund/balance consideration at the appropriate date A) (i) Copy of Demand Draft No.160536 dated 19th November, 2010, for Rs.3,40,00,000/- drawn in favour of defendant No.2 and (ii) Copy of Demand Draft No.160790 dated 20th November, 2010, for Rs.3,40,00,000 in favour of defendant No.1.
B). Copy of Memorandum of Understanding allegedly executed on 3rd February, 2010, with M/s. Maja Healthcare Division promising to give finance to the plaintiff for purchase of the suit property.
34. I do not want give final finding on these documents at this stage of the matter except the same have been examined for the purpose of deciding the present application, the same speak for themselves. It is necessary to discuss the said documents herein below:-
(a) The Demand Draft No.160536 was got prepared out of the account of Lalit Madan on 19th November, 2010 for Rs.3,40,00,000/- in favour of defendant No.2. The said demand draft was got cancelled and thereafter, another demand draft No.160790 was obtained for the same amount in favour of defendant No.1. Copies of the same are already placed on record on 22nd November, 2010. It indicates that the said attempt was made by the plaintiff in order to show the funds before the Court which, in fact, is not proved as per the certificate filed by the defendants. The suit was filed on 15th July, 2010 and the bank drafts were got made on 19/20th November, 2010. Mr. Dinesh Garg, learned counsel for defendants No.3 & 4 has also informed that the said bank drafts were got prepared from Lalit Madan who is the Real Estate Operator and is a party to so many litigations pending in this Court. In fact, it is done by the plaintiff in order to show his readiness and willingness with the balance amount of Rs.6,81,00,000/-.
(b) Similarly, with regard to the Memorandum of Understanding, allegedly, executed by M/s Maja Healthcare Division on 3rd February, 2010, the same was filed in the Court, for the first time, on 9th February, 2012. It appears from the said documents that the Stamp Paper No.X-073374 was used for making the said MOU which was issued by the Treasury on 17th March, 2011. I agree with the submission of Mr. Garg that there was no occasion for the plaintiff to execute the MOU on 3rd February, 2010. It appears prima facie that the said document has been filed by the plaintiff by putting the ante-date in order to show his readiness and willingness to pay the balance consideration of Rs.6,81,00,000/-.
35. It is stated by the learned counsel for defendants No.3 & 4 that his clients have received information from the office of the Divisional Commissioner, Delhi Treasury under the RTI Act who has confirmed that the stamp paper used for the said Memorandum of Understanding dated 3rd February, 2010 was sold by the Treasury only on 17th February, 2011 to the Stamp Vendor. Copy of the said letter dated 21st February, 2011 along with the photocopy of the stamp papers’ sales register has been filed along with the affidavit of defendant No.4.
36. In reply to the affidavit of defendant no.4, the plaintiff has filed his counter-affidavit as well as the affidavit of Mr. Harshit Kochchar on behalf of M/s Maja Health Care Division on 3rd May, 2012. Mr. Harshit Kochchar, who is the authorized signatory of M/s Maja Health Care Division, has deposed that there was an understanding between the company and the plaintiff to the effect that the company had to provide funds to the tune of Rs.8-9 crore to the plaintiff as and when required by him for the purchase of the suit property and in lieu of the funds provided by the company to the plaintiff for development of project, both the parties will share the profits in the ratio of 50:50 after deducting/return of the entire amount invested by the company. The said company arrived the understanding on 3rd February, 2010.
37. The plaintiff in his counter-affidavit has stated that the defendants are making the frivolous allegations with regard to the two bank drafts dated 19th November, 2010 and 20th November, 2010. It is stated in the affidavit that after filing the present suit, defendants No.1 & 2 approached the plaintiff and offered to settle the matter with enhanced amount and requested to release the further amount, as they were interested to purchase a property in Gurgaon so that they can vacate the suit property and handover the peaceful vacant possession to the plaintiff. Believing their representation, the plaintiff prepared the demand draft bearing No.160536 dated 19th November, 2010 for an amount of Rs.3.40 crore in favour of defendant No.2 and when he approached defendants No.1 & 2, they wanted to purchase the property in the name of Ms. Shashi Kaura, i.e. defendant No.1, hence they requested that the bank draft be prepared in her name. Therefore, the same was cancelled and the fresh demand draft was prepared for the same amount in the name of defendant No.1 on 20th November, 2010. It is submitted that before handing over the bank draft, the plaintiff requested defendants No.1 & 2 to handover the original title documents in respect of the suit property by way of security. However, defendant No.2 refused to do so. Therefore, the demand draft was not handed over to defendant No.2.
38. As regards the other documents filed by defendants No.1 & 2 with regard to MoU which were received from the office of the Divisional Commissioner, Delhi Treasury, Tis Hazari, it is reiterated by the plaintiff that the understanding between the plaintiff and the said company reflected in the Memorandum of Understanding dated 03.02.2010 is correct and the affidavit of the authorized signatory of the company is also filed. It is stated by the plaintiff in the counter-affidavit that the plaintiff has filed the RTI application with various departments to ascertain the further details about the stamp paper for which the defendants have raised the doubt. Plaintiff sought time to file additional reply.
39. On 15th May, 2012, the plaintiff has filed additional affidavit in which he has stated that he has received the response against the RTI application submitted by him in the office of the Divisional Commissioner, Delhi Treasury, Tis Hazari, Delhi on 12th April, 2012 and the department has responded as under:-
“This department receives the non-judicial Stamp Papers in sealed packets from the Govt. printing presses. When these packets are sold to licensed vendors in some cases wrongly printed papers, papers in torn condition, without numbers or with same serial numbers are found. Whenever such instances/papers came to knowledge they are cancelled and communicated to the Govt. printing press.”
40. In view of the said response, it is stated in the additional affidavit that defendant No.4 has wrongly stated in her affidavit that the stamp paper on which the MoU dated 3rd February, 2010 has been prepared, was sold by the Treasury only on 17th March, 2011 to the stamp Vendor. It is stated in the affidavit that it is possible that the stamp paper might have been sold in 2010 and even otherwise the said aspect relating to the stamp paper can only be decided during the course of trial. As far as the understanding between the parties is concerned, the plaintiff was always ready and willing to fulfill his obligations at any point of time and even if, it is assumed that the stamp paper on which the Memorandum of Understanding dated 3rd February, 2010 was made, was issued in the year 2011, yet the MOU between the parties does not become unenforceable. The documents merely become deficient in stamp duty and the same can still be read for collateral purposes and the plaintiff can always cover up the deficiency in the stamp paper.
41. In view of the statement made by the plaintiff on filing of two affidavits dated 3rd May, 2012 and 15th May, 2012 as well as the affidavit of Mr. Harshit Kochchar, authorized representative of the company, prima-facie, this Court is not inclined to accept the explanation and justification given by the plaintiff on the following reasons:-
(a) In the affidavit of Mr. Harshit Kochchar, it has not been stated that as to whether the Memorandum of Understanding was typed on the stamp paper or not and on what the said document was finally prepared about the understanding between them on 3rd February, 2010.
(b) Further, in the affidavit, it is stated that the said understanding between the plaintiff and the company arrived in lieu of sharing of profits in the ratio of 50:50 after the development of the project by both the parties. Nothing was mentioned by the plaintiff in the plaint in this regard if there was an understanding between them otherwise the same could have been mentioned in the agreement to sell or in the pleadings of the plaintiff. The said MOU was only filed during the course of hearing of interim application though the plaintiff had an opportunity to file the same alongwith replication as in the written statement of the defendants, a specific challenge was made by them about non-availability of balance consideration.
(c) As regards the counter-affidavit of the plaintiff dated 3rd May, 2012 filed in response to the affidavit of defendant No.4, the justification given by the plaintiff regarding the cancellation of the two bank drafts is also unbelievable. In case, the explanation given by the plaintiff regarding the two bank drafts is believed, even then, after cancellation of both said bank drafts why the plaintiff has filed the photocopies of the same in court. Rather it appears clearly that same have been filed only to satisfy that the plaintiff has got the capacity to pay the balance amount.
(d) As regards the MOU, there is hardly any justification given by the plaintiff in the additional affidavit dated 15th May, 2012. There is no valid explanation in this regard. The fact of the matter is that the copy of the Memorandum of Understanding dated 3rd February, 2010 was filed in the Court on 9th February, 2012 when the interim application was being heard, and when the inquiry was made by defendants No.3 & 4, it was found that the stamp paper according to the record was sold by the Treasury to the Stamp Vendor on 17th March, 2011, i.e. after the date of the alleged MOU. There is hardly any justification to show that even the stamp paper has been issued in the year 2011, yet the Memorandum of Understanding between the parties does not become unenforceable. The question before this Court at this stage is as to whether the correct and proper document has been filed or not by the plaintiff in Court in order to show his bonafide for the purpose of his readiness and willingness to perform his part in view of challenge made by the defendants. Grant or refusal of the interim order is purely a discretionary relief. Incase the court comes to conclusion that the proper document is not filed on the basis of relief is sought, no relief should be granted to the party who produced it.
42. The plaintiff is a builder and he is involved in various cases pending in this court as alleged by the defendants. Admittedly, the plaintiff did not enter into any agreement to purchase the entire property but had entered into an agreement only with defendant Nos.1 and 2 to purchase the part of the property, there was no valid justification for the plaintiff to issue the public notice dated 29th March, 2010 stating therein that he had entered into an agreement to purchase the entire property.
43. At the same time, it also appears, prima-facie, even the defendants’ conduct is also blameworthy. With malafide intention on their part, they just two days prior to the date of expiry of sixty days as mentioned in the agreement filed a suit for partition and injunction being CS(OS) No.649/2010. In the said suit, the defendant Nos.1 and 2 have arrived at settlement, whereby the defendant Nos.1 and 2 have agreed to give 45% share in the property and land underneath to the defendant No.3 against the lesser share claimed. It appears to this court that the matter was settled with ill motive and with malafide intention at the time when the plaintiff’s application under Order I Rule 10 CPC was still pending , it was apparently not brought to the notice of the court about the pending application of the plaintiff under Order 1 Rule 10. The matter was settled by the defendants at the back of the plaintiff who did not have any notice before the settlement arrived between them. It is clear that the same was done in order to defeat the right and interest of the plaintiff. Defendants No.1 & 2 who have received the sum of Rs.50 lac from the plaintiff on 07.04.2010, used the said amount for more than two years and three months.
44. In order to strike the balance, at this stage, they have to deposit the same along with interest @ 12% per annum from the date of receipt of the amount till the date of deposit, as a security without prejudice.
45. However, the fact remains that the present suit has been filed by the plaintiff who has obtained the interim orders and is pressing for confirmation of the same on the basis of documents which are not clear, cogent and doubtful on the aspect of readiness and willing to perform his part to pay balance consideration. Thus, it is necessary that the trial on these documents also be conducted. But in the meanwhile, while disposing of these two applications, due to the peculiar facts and circumstances of the present case, the interim order dated 20th April, 2010 is vacated subject to the following conditions:
(a) To deposit a sum of Rs.50 lac by defendant Nos.1 and 2 received from the plaintiff, along with interest @ 12% per annum from the date of receipt of the amount till the date of deposit, with the Registrar General of this Court within four weeks as a security amount. The plaintiff is granted liberty to withdraw the said amount against furnishing a security to the satisfaction of the Registrar General.
(b) An undertaking shall be given by defendants No.1 and 2 within four weeks that they shall not dispose of the suit property without the permission of the Court and shall also inform the buyer about the pending disputes between the parties.
(c) Similar undertaking shall be filed by defendants No.3 & 4 not to dispose of any portion of the suit property, which is the subject matter of agreement dated 7th February, 2010, without the permission of the Court.
46. Trial of the suit be expedited. Evidence of the parties shall be recorded by the retire judicial officer to be appointed by the court at the time of framing of issues who will try to complete the evidence of the parties within 6-9 months.
47. The pending applications are accordingly disposed of.
CS (OS) No.1448/2010
List the matter before the Joint Registrar for admission/ denial of documents on 16th August, 2012 and thereafter, the same will be listed before the Court on 13th September, 2012 for framing of issues and directions for trial.
MANMOHAN SINGH, J.
JULY 06, 2012