1. This is defendants' second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") arising out of judgment and decree dated 24.02.2020 passed by Additional District Judge/Fast Track Court No.2, Ghaziabad, in Civil Appeal No.310 of 2016 dismissing the appeal and confirming the judgment and decree dated 04.11.2016 passed by Additional Civil Judge (Senior Division) Court No.6, Ghaziabad in Original Suit No.948 of 2011 decreeing the suit of the plaintiffs-respondents.
2. The facts of the case, in brief, are that a Civil Suit No.948 of 2011 was filed by the plaintiffs-respondents against defendants-appellants for the relief of mandatory injunction in favour of plaintiffs and directing defendants-appellants to execute sale-deed in respect of plot No.A-74 measuring 200 Sq. Yards, situated in Ganga Vihar Colony (Pink City) Village Sadullabad, Pargana Loni, Tehsil and District Ghaziabad after receiving balance amount of Rs.3,700/-.
3. The case of the plaintiffs, as unfolded in the plaint, are that the defendants - appellants had published an advertisement in the year 1986 for sale of different size of plots after getting the same approved by Ghaziabad Development Authority (in short "GDA") in the name of Pink City, at Ganga Vihar Colony. The plaintiffs, after seeing the advertisement, deposited a sum of Rs.30,800/- on 30.8.1987 and was allotted plot No.A-74 measuring 200 Sq.Yards at the rate of Rs.308/- per Sq. Yard. According to him, at the time of allotment it was made clear by the defendants-appellants that the amount included the development charge, water charge, electricity charge, sewerage charge and other charges. The plaintiffs deposited an amount of Rs.71,961/- till 25.11.1991. When the plaintiffs asked the defendants for the details of deposit made by him and balance amount to be paid, it was informed by defendants-appellants on 21.12.2008 that plaintiffs had deposited Rs.71,961/- till 25.11.1991 and was to deposit balance amount of Rs.3,700/- at the time of execution of sale-deed.
4. After the letter dated 21.12.2008 when the plaintiffs asked the defendants to get the sale deed executed, defendants apprised that as the matter regarding master plan of GDA was under dispute in Writ Petition No.22445 of 2007, as such the sale deed would be executed after the decision in the said matter. It was on 15.11.2009 that the defendants apprised the plaintiffs that Writ Petition No.22445 of 2007 was decided on 26.10.2009 and once completion certificate was granted by GDA, the sale deed would be executed. It appears that after the decision of the writ petition, price of the land escalated and defendants thereafter on one pretext or the other kept on delaying in getting the sale deed executed, as such the plaintiffs on 13.9.2010 gave a registered notice to the defendants for the execution of sale deed, but when the sale deed was not executed, the civil suit was filed on 25.4.2011.
5. The aforesaid suit was contested by the defendants-appellants, who filed their written statement denying the allegations made in the plaint. However, in the special plea, it was accepted that on 30.08.1987 the land in question was allotted to the plaintiffs after they had deposited the booking amount with the defendants. However, it was pleaded that the cost of the plot was Rs.550/- per Sq.Yard and not Rs.308/- per Sq. Yard, as claimed by the plaintiffs. It was further alleged that the plaintiffs were required to pay development charges and the cost did not include the same. It was also alleged that the plaintiffs had misused the old letter pad of defendant No.1-Firm and had pressurized defendant No.3 to execute the letter on 30.12.2008 wherein certain balance was shown while the entire money was alleged to have been paid. It was further averred in para 21 of the written statement that a Civil Suit No.559 of 2010 had been filed by the defendants for declaring the letter dated 30.12.2008 as null and void. Further in para 24, it was averred that on 07.10.2011, booking of the plot made in favour of plaintiffs has been cancelled.
6. The Trial Court framed following issues :
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7. While the plaintiffs filed number of documents and examined himself as PW-1, the defendants did not file any documentary evidence and only defendant No.2 Rajeev Chauhan was examined as DW-1.
8. The Trial Court vide judgment dated 04.11.2016 decreed the suit of the plaintiffs and declared the cancellation order dated 07.10.2011 issued by defendants-appellants as null and void and directed the defendants to execute the sale deed for the land in question. Aggrieved by the said order, defendants-appellants filed Civil Appeal No.310 of 2016 before Additional District Judge/Fast Track Court No.2, Ghaziabad, challenging the order of the Trial Court wherein the Lower Appellate Court formulated following points for determination :
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9. The Lower Appellate Court vide judgment dated 24.02.2020 dismissed the appeal of defendants-appellants and confirmed judgment of the Trial Court. Hence this appeal.
10. Sri S.K.Verma, learned Senior Counsel appearing for the appellants submitted that allotment letter dated 30.08.1987 and approval letter dated 21.12.2008, which were basis of the suit, are unregistered document and did not contain any terms and conditions of alleged agreement and thus could not find the basis for present suit. It was further contended that both the documents being photostat copies were not admissible in evidence. It was also contended that letter dated 21.12.2008 was issued by defendants-appellant No.3, and as she was not authorized by the other partners thus, it was not binding on the other partners.
11. Sri Verma then contended that suit for mandatory injunction was barred and the plaintiffs - respondents should have filed suit for specific performance of alleged agreement dated 30.08.1987. Moreover, the documents dated 30.8.1987 and 21.12.2008 were unregistered, thus became inadmissible in evidence in view of Section 49 of the Registration Act, 1908 (in short "Act, 1908"). Further reliance has been placed upon decision in Hyderabad Stock Exchange Ltd. vs. Ranganath Rathi and Co. AIR 1958 Andhra Pradesh 43; Bansal Buildcon (P.) Ltd. vs. Satya Narain Gupra and Anr. 2006 (4) AWC 3829; State of Punjab and Anr. vs. Phoola Singh and others 2010 SCC Online P&H 4417; Nangineni Radhakrishna Murthy vs. Kanneganti Nagendramma (died) by L.Rs. 2006 SCC Online AP 818 and Rajendra Kumar vs. Mahendra Kumar Mittal and others AIR 1992 Allahabad 35.
12. It was further contended that the suit was barred by provisions of Section 41(e) and (h) of the Specific Relief Act, 1963 (in short "Act, 1963"). Reliance has been placed upon decision in Subhash Chand Sharma vs. Nanda, 1997 (2) AWC 645.
13. Lastly it was contended that both the Courts below did not deal with the question of point of limitation and in the present case Article 113 of the Limitation Act would apply and the limitation would be three years. Reliance has been placed upon Gunwantbhai Mulchand Shah and Ors. vs. Anton Elis Farel and Ors. AIR 2006 SC 1556.
14. Replying to the arguments of the appellants' counsel, Sri Suresh Chandra Verma learned counsel for the respondents submitted that the defendants had allotted the plot in question in favour of plaintiffs on 30.8.1987 and booking amount was paid, which fact is accepted to both the parties and only sale deed was to be executed. It was further contended that there was no written agreement executed between the parties and thus no suit for specific performance was filed, as it was the obligation on the part of defendants after receiving the money to have executed the sale deed in favour of plaintiffs for the plot allotted to them as Section 39 of Act, 1963 mandates that to prevent breach of an obligation, when it is necessary to compel the performance of certain act, which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of.
15. In the present case, as it was an obligation cast upon the defendants after receiving the money and allotting plot No.A-74 to the plaintiffs to have executed the sale deed, but he kept on lingering and on 21.12.2008 had accepted that an amount of Rs.70,000/- and odd had already been deposited by the plaintiffs and balance amount of Rs.3,700/- was to be paid at the time of execution of sale deed. He further submitted that the argument raised by counsel for the appellants to the extent that suit for specific performance was maintainable and not of mandatory injunction, cannot be accepted as no written agreement was executed between the parties which was to be enforced, and it was the allotment, which was made in the year 1987 and receipt/acknowledgement being issued by the defendant, the sale deed was to be executed upon receiving the balance amount, which the plaintiffs were always ready to pay and get the sale deed executed.
16. I have heard learned counsel for the parties and perused the material on record.
17. It is accepted to both the parties that Plot No. A-74 was allotted to the plaintiffs on 30.08.1987 after an amount of Rs.30,800/- was deposited and a receipt was issued by the defendants in favour of the plaintiffs. According to the plaintiffs, the plot in question was allotted at the rate of Rs.308/- per Sq. Yard, which included the development charges, while the defendants claimed to have allotted the plot at the cost of Rs.550/- per Sq. Yard excluding the development charges. Apart from this, there is no dispute as to the allotment of land made in favour of plaintiffs by the defendants. It is also not in dispute that plaintiffs had deposited the total sum of Rs.71,961/- till 25.11.1991 with the defendants and the sale deed was not executed due to the fact that in the year 2006, in the master plan of Ghaziabad, the land in question which was for residential purpose was wrongly shown as land meant for "public purpose". The said fact was challenged in Writ Petition No.22445 of 2007, which was decided by this Court on 26.10.2009 in favour of defendants. This fact was communicated by the defendants through their letter dated 15.11.2009 wherein it was made clear that once no objection certificate is received from GDA, the sale deed would be executed in favour of the allottees. Similarly, on 21.12.2008, defendant no.3, who is the partner of defendant no.1-Firm had acknowledged the receipt of the payment of Rs.71,961/- and balance amount of Rs.3,700/- was payable at the time of execution of sale deed. After the judgment of this Court dated 26.10.2009, plaintiffs had tried to get the sale deed executed from the defendants which they avoided on one pretext or the other till a legal notice was given by the plaintiffs on 13.9.2010 and thereafter suit was filed on 25.04.2011 for mandatory injunction. The plaintiffs-respondents not only filed the receipt and the allotment made in the year 1987 before the Trial Court, but also filed the letter issued by defendant No.3 on 21.12.2008 to substantiate his claim along with other documentary proof such as newspaper cutting wherein advertisement was published for the scheme launched by defendants in the year 1986 as well as other documents, but no documentary evidence was filed by defendants supporting their claim.
18. Both the Courts below found and recorded categorical finding on the basis of the documents as well as oral testimony of PW-1 and DW-1 that no registered or unregistered agreement was executed between the parties for the sale of plot in question, while the same was allotted on 30.8.1987 in favour of plaintiffs and receipt of Rs.30,800/- was issued by the defendants in favour of plaintiffs which has been accepted to both the parties.
19. Further, the plaintiffs had deposited more than Rs.70,000/- till 1991 i.e. total Rs.71,961/-, which included the cost of the plot as well as development charges. The receipt of the said amount was admitted by one of the partners of the Firm Smt. Asha Rani Chauhan on 21.12.2008, but she was not produced as a defence witness and only defendant no.2 Rajiv Chauhan, the other partner of the Firm was examined, who had admitted defendant No.3 to be his mother and the witness to the letter dated 21.12.2008 Sri Anoop Singh as his father and Sachin Singh as his brother. The fact that Suit No.559 of 2010 filed by the defendants for declaring document dated 21.12.2008 as null and void is of no use as the claim of the defendant-appellant No.2 falls flat when defendant No.3 was neither produced before the Court nor her statement was recorded claiming that the said document was executed under duress. The attesting witness to the said document were never examined before the Court below.
20. Furthermore, the only dispute is in regard to the rate of the land/plot in question. On the one hand, plaintiffs claim it to be at the rate of Rs.308/- per Sq. Yard, while defendants claim it at the rate of Rs.550/- per Sq. Yard excluding development charges. As it is not in dispute that the project of Pink City was launched by defendants in the year 1986 and there were more than 280 plots carved out in the said project of various sizes and sale deed was executed for number of plots by the defendants in favour of the various allottees, but the defendants failed to bring on record the sale deed executed in favour of any of the allottees to substantiate his claim that the land was sold at the rate of Rs.550/- per Sq. Yard excluding development charges, while plaintiffs have established their case on the basis of allotment letter dated 30.8.1987 as well as acknowledgement of the payment and balance amount by one of the partners of the Firm i.e. defendant No.3 on 21.12.2008, on the basis of which both the Courts below had rightly decreed the suit of plaintiffs. Moreover, it was after filing of the suit on 25.04.2011 that the defendants cancelled the allotment made in favour of plaintiffs on 07.10.2011, which also prove admission of the fact that the plot in question was allotted to the plaintiffs on the rate claimed by them.
21. Now coming to the argument raised by Sri S.K.Verma, learned Senior Advocate as far as documents dated 30.8.1987 and 21.12.2008 which he claims to be unregistered document and could not form basis of the present suit, cannot be accepted, as on 30.8.1987 the defendants had issued a receipt allotting plot No.A-74 in favour of plaintiffs, which need not be registered as it was an acknowledgement of the fact by the defendants that plot A-74 was allotted in favour of plaintiffs and sale deed was to be executed, which is quite distinct from Section 54 of Transfer of Property Act, 1882. Reliance placed by learned Senior Counsel on various authorities are in relation to the agreement to sale which was executed between the parties wherein the Court had held that suit for specific performance would lie and not suit for mandatory injunction while in the present case there is no written agreement executed between the parties which is accepted to both the parties from the pleadings, and it was only on the basis of allotment letter and the admission of defendant on 21.12.2008 that the suit for mandatory injunction was filed which was rightly decreed by both the Courts below, as it cast an obligation upon the defendants and to prevent its breach, the Courts below rightly decreed the suit compelling specific performance of the requisite act.
22. The second argument of learned senior counsel that the defendant No.3 Smt. Asha Rani Chauhan had issued letter dated 21.12.2008 and she was not authorised by the other partners and thus was not binding cannot be accepted, as it is an admitted fact that she was one of the partners of the Firm at the time of execution of the document. Neither she was examined before the Trial Court nor she denied execution of the said document while on the other hand defendant No.2 Rajeev Chauhan in his cross examination had accepted the fact that she was his mother and was partner of the Firm. Moreover, the other two attesting witnesses to the said document, Sri Anoop Singh (father of defendant No.2) and Sachin Singh (brother of defendant No.2) were not produced before the Trial Court.
23. In the partnership business, all the partners are jointly and severally liable for the act of the Firm, and in the present case once it was accepted that defendant No.3 was the partner of the Firm, acceptance and approval letter dated 21.12.2008 was binding on the defendant-Firm and all its partner.
24. As far as question of limitation is concerned, defendant No.3 on 21.12.2008 had accepted the fact that plaintiffs had already deposited Rs.71,961/- and balance amount of Rs.3,700/- was payable at the time of execution of sale deed. It was further said that when plaintiffs had tried to get the sale deed executed, he was informed that as the matter regarding master plan was engaging attention of the High Court, the sale deed would be executed after the decision in Writ Petition No.22445 of 2007. Further, the defendants on 15.11.2009 had informed that the matter was decided in favour of the Firm on 26.10.2009 and once the completion certificate was issued by GDA, sale deed would be executed. Plaintiffs thereafter on 13.9.2010 had required the defendants to execute the sale deed which he did not respond and thus suit was filed on 25.4.2011 which was well within the period of limitation when the cause of action arose in the year 2009. Thus, the argument of the counsel for the appellant cannot be accepted.
25. Lastly it was contended that the suit was barred by provision of Section 41(e) and (h) of Act, 1963. As it has already been discussed in the preceding paragraphs that after the plot was allotted in the year 1987 and admission as to the receipt of the amount as well as balance amount was made in the year 2008, the suit for mandatory injunction was filed by plaintiffs-respondents as it caste an obligation upon defendants to execute the sale deed. After receiving the money and allotting the plot, no suit for specific performance lie. Thus the suit is not barred by the provisions of Section 41(e) and (h) of Act, 1963.
26. The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :
"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:
"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:
(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;
(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;
(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."
26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."
27. Having considered the case of the appellants, I find that no substantial question of law arises and both the Court below had recorded categorical finding against the defendants-appellants which warrants no interference by this Court. The appeal stands dismissed.
Order Date :- 11.01.2021 KA