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2014 DIGILAW 1437 (DEL)

Kamla Kumar v. Kamlesh Kumar

2014-05-07

VALMIKI J.MEHTA

body2014
Judgment Valmiki J. Mehta, J. 1. This second appeal is filed under Section 100 CPC against the concurrent judgments of the courts below; of the trial court dated 11.7.2013 and the first appellate court dated 22.11.2013; by which the suit for specific performance and possession filed by the appellant-plaintiff with respect to the agreement to sell dated 28.9.2000 pertaining to the property bearing plot nos.36 and 37 admeasuring 300 sq. yds forming part of K.No.54/29, village Mitraon, Delhi, now known as Gopal Nagar, C-Block, Najafgarh, New Delhi-43, has been dismissed. 2. Right at the outset I must state that the impugned judgments of both the courts below are very surprising by which the suit for specific performance has been dismissed, inasmuch as, out of the three co-owners/three defendants, the defendant no.1 filed his written statement admitting to the transaction laying blame at the door of the defendant nos.2 and 3 for not completing the transaction; thereafter did not appear and was proceeded ex parte, and the defendant nos. 2 and 3 did not file their written statement and ultimately their right to file written statement was closed. There is hence no evidence led on behalf of the respondents/defendants. It may be stated that the order passed for closing the right of the defendant nos. 2 and 3/respondent nos. 2 and 3 was challenged by them in the High Court and this Court in CM (M) No. 824/2007 by the order dated 5.9.2008 confirmed the order closing the right of the respondent nos. 2 and 3/defendant nos. 2 and 3 to file their written statement. 3. Another important aspect to be noted is that entire consideration of Rs.90,000/- under the subject agreement to sell dated 28.9.2000, Ex.PW1/2, has been paid to the respondents/defendants and as stated in the agreement to sell. This is also confirmed by a receipt of the same date which has been filed and proved as Ex.PW1/3. Possession of the property was stated to be delivered under the agreement to sell, however, actual possession remained with the respondents/defendants and consequently, the subject suit for specific performance and possession has been filed by the appellant. 4. The courts below have dismissed the suit for specific performance by holding that the suit is barred by limitation and that in the agreement to sell it is not mentioned that the sale deed will be executed. 4. The courts below have dismissed the suit for specific performance by holding that the suit is barred by limitation and that in the agreement to sell it is not mentioned that the sale deed will be executed. Both these reasons are not only illegal but perverse to say the least. 5. For disposal of this regular second appeal, the following substantial questions of law are framed:- “(i) Whether the courts below have committed grave illegality and perversity in dismissing the suit for specific performance although, the appellant-plaintiff led evidence, and the defendants/respondents did not lead any evidence in view of the fact that the right of defendant nos. 2 and 3/respondent nos. 2 and 3 to file the written statement stood closed? (ii) Whether the courts below have gravely erred and committed a gross perversity and illegality in holding the suit to be time barred though Article 54 of the Limitation Act, 1963 provides that only on the specific refusal to execute the sale deed, the period of limitation commences and which commenced only when the legal notice dated 17.2.2006 was issued, and which is to be read with the aspect of obligation of the respondent/defendant to take necessary permission from the requisite authorities for executing the sale deed? (iii) Whether the judgments of the courts below are illegal and perverse in dismissing the suit for specific performance and possession?” 6. A suit for specific performance is barred by limitation, only if it is filed three years after refusal of the sellers/defendants to execute the sale deed. In the present case, the first categorical refusal only came when the legal notice was sent to the respondents/defendants to execute the sale deed. This legal notice is dated 17.2.2006 and has been proved before the trial court as Ex.PW1/6. The postal receipts and the AD cards with respect to the same have been filed and proved as Ex.PW1/7 to Ex.PW1/12. As per Article 54 of the Limitation Act, period of three years limitation begins on the refusal, and in the present case, once complete consideration has already been received by the respondents/defendants, execution of the sale deed was really a formality. Such a suit cannot be dismissed as barred by limitation, more so when none of the defendants have led any evidence whatsoever. As already stated the defendant nos. 2 and 3/respondent nos. Such a suit cannot be dismissed as barred by limitation, more so when none of the defendants have led any evidence whatsoever. As already stated the defendant nos. 2 and 3/respondent nos. 2 and 3 had forfeited their right to file the written statement and defendant no.1/respondent no.1 had filed her written statement admitting to the transaction in question and further stated that the sale deed could not be executed because of recalcitrance of the respondent nos. 2 and 3/defendant nos. 2 and 3. Also, since the defendants had to take necessary permissions of the requisite authorities for execution of the sale deed, limitation would commence only after permissions are obtained or defendants by notice to the plaintiff refuse to take permissions and which is not so. The suit was therefore within limitation. 7. So far as the aspect that the agreement to sell does not mention execution of the sale deed, and consequently suit for specific performance cannot be decreed, I find the observations of the court below absolutely unfathomable. It is clearly mentioned in paras 3 and 4 of the agreement to sell that the sale deed will be executed and which is to be executed after the sale permissions are obtained by the respondents/defendants i.e their obtaining a no objection certificate from revenue authorities and income tax clearance certificate etc. Therefore, I have really laboured hard to understand as to how the courts below can dismiss the suit for specific performance on the ground that it is not written in the agreement to sell that the sale deed had to be executed. Also, even if the agreement to sell does not mention of execution of the sale deed, it is implicit in every agreement to sell that the transaction has to be completed, and transaction is completed only after execution of the sale deed. Consequently, courts below have seriously erred in holding that the suit for specific performance had to be dismissed allegedly on the ground that the agreement to sell does not provide for execution of the sale deed. 8. In view of the above, all the substantial questions of law are answered in favour of the appellant and against the respondents/defendants. 9. Consequently, courts below have seriously erred in holding that the suit for specific performance had to be dismissed allegedly on the ground that the agreement to sell does not provide for execution of the sale deed. 8. In view of the above, all the substantial questions of law are answered in favour of the appellant and against the respondents/defendants. 9. Appeal is allowed and the suit for specific performance and possession of the appellant-plaintiff will stand decreed and the respondents/defendants will execute the sale deed of the property bearing plot nos.36 and 37 admeasuring 300 sq. yds forming part of K.No.54/29, village Mitraon, Delhi, now known as Gopal Nagar, C-Block, Najafgarh, New Delhi-43 in favour of the plaintiff. In case, any permissions have to be taken by the respondents/defendants for executing the sale deed, they will be liable to take such permissions in accordance with law. In case respondents/defendants fail to execute the sale deed or to take the necessary permissions, the executing court can proceed under Order 21 Rule 32 CPC and all other applicable provisions of law for execution of the sale deed in favour of the appellant-plaintiff. 10. This appeal is allowed with costs of Rs.30,000/- inasmuch as appellant-plaintiff has been forced to initiate the litigation. Costs however will be payable only by respondent no.3 who has contested this second appeal. I am empowered to impose costs in terms of Volume V of the Punjab High Court Rules and Orders (as applicable to Delhi) Chapter VI Part I Rule 15 I may note that the Supreme Court in the judgment in the case of Ramrameshwari Devi & other vs Nirmala Devi & other, (2011) 8 SCC 249 has held that it is high time that in certain litigations, costs must be imposed, and the present case is a fit case for imposition of costs against respondent no.3/defendant no.3.