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2014 DIGILAW 803 (DEL)

Parti Fibers v. Saroj Chawla

2014-03-07

V.K.SHALI

body2014
JUDGMENT V.K. Shali, J. 1. This is a suit for specific performance filed by the plaintiff against the defendants. 2. Briefly stated the facts of the case are that the plaintiff is a private limited company duly incorporated under the Companies Act, 1956, having its registered office at B-769, Sector-I, Avantika, Rohini, Delhi-85. The suit has been filed through one Munish Kumar Sharma, Director of the plaintiff company, who is duly authorized to sign, verify and institute the present suit vide a Board Resolution dated 19.5.2004. It was alleged in the plaint that defendant Nos.1 and 2 are the owners of plot No.177, Block No.10, Golf Links, New Delhi by virtue of a conveyance deed dated 7.1.2002 executed by the Land & Development Office, New Delhi. The defendants are alleged to have agreed to sell the aforesaid property to the plaintiff for a total consideration of Rs.4,75,00,000/- vide agreement to sell dated 18.6.2003. It is alleged that along with the agreement to sell the defendant Nos.1 and 2 were paid an advance of Rs.45 lacs vide a pay order No.294871 dated 17.6.2003 drawn on Allahabad Bank, Bhera Enclave, New Delhi for which a receipt was issued. The balance consideration of Rs.4,30,00,000/-was to be paid by the plaintiff to the defendants at the time of handing over the vacant and physical possession of the suit property. The entire transaction was to be cleared within a period of three months from the date of signing of the agreement, which period was fixed as 16.9.2003. It has been alleged in the plaint that both the plaintiff and the defendants later on agreed that the period to complete the transaction be extended till 6.10.2003. The plaintiff alleges that as the defendants did not come forward to perfect the title of the plaintiff consequently they were forced to file the present suit for specific performance. It was also noticed by the plaintiff that one Vinod Chawla, who was claiming himself to be the 50 per cent owner of the suit property had got an advertisement inserted in Hindustan Times on 25.6.2003 because of which they were constrained to file the suit and implead Vinod Chawla also as a party. The plaintiff has alleged that he was ready and willing at all times to complete the transaction in terms of the agreement to sell and he had sufficient liquidity in this regard. 3. The plaintiff has alleged that he was ready and willing at all times to complete the transaction in terms of the agreement to sell and he had sufficient liquidity in this regard. 3. The defendant Nos.1 and 2 admitted that they had entered into an agreement to sell with the plaintiff on 18.6.2003. It is also agreed by them that the aforesaid agreement was extended till 6.10.2003 by executing a supplementary agreement dated 16.9.2003. However, it is denied by them that the plaintiff was ready and willing at all times to perform his part of the obligation in terms of the agreement or that he had sufficient liquidity in this regard. It is stated by them that defendant No.3 Vinod Chawla, who happens to be the paternal uncle of plaintiff No.1 and brother-in-law of defendant No.2 was actually in league with the plaintiff and had filed a false suit for claiming partition in respect of this very property. The said suit was bearing No.1485 of 2003 and it is in this suit that defendant No.3, as the plaintiff, had obtained a restraint order. However, the defendants had taken a plea that non-perfection of the title by defendant Nos.1 and 2 in favour of the plaintiff had nothing to do with the said suit as the plaintiff was not having sufficient liquidity and was not ready and willing to perform his part of the obligation. 4. The averments made in the written statement were denied by the plaintiff in the replication. On the pleadings of the parties following issues were framed on 28.2.2007:- “1. Whether the plaint is signed and the suit is instituted by duly authorized person? OPP 2. Whether the plaintiff was ready, willing and able to perform the obligations under the Agreements to Sell dated 18.6.2003 and 6.10.2003? OPP 3. Whether the plaintiff is entitled to specific performance of the said Agreements? OPP 4. Relief.” 5. The plaintiff was directed to file his affidavit of examination-in-chief within six weeks and the matter was directed to be listed before the Joint Registrar on 3.5.2007 for the purpose of fixing up dates of trial. The record of the case shows that neither the list of witnesses nor evidence by way of affidavit was filed on behalf of the plaintiff despite the fact that the matter was listed before the Joint Registrar on 3.5.2007, 5.9.2007 and 30.1.2008. The record of the case shows that neither the list of witnesses nor evidence by way of affidavit was filed on behalf of the plaintiff despite the fact that the matter was listed before the Joint Registrar on 3.5.2007, 5.9.2007 and 30.1.2008. On 30.1.2008 affidavit of one Munish Sharma was filed and his statement was recorded as PW-1, however, his cross-examination could not be completed as the affidavit of this witness was not given to the opposite side, that is, defendant Nos.1 and 2 timely. The matter was adjourned to 18.7.2008. Thereafter the matter was adjourned to 5.11.2008, 16.1.2009, 19.5.2009, 10.9.2009, 9.2.2010, 23.2.2010, 6.4.2010, 12.5.2010, 31.8.2010, 3.12.2010, 25.3.2011, 3.8.2011 and 17.11.2011 when the cross-examination of the witness could not be recorded either on account of absence of the witness or on account of the fact that the counsel for the plaintiff was not available. Ultimately on 30.4.2012, the court noted that despite last opportunity, the witness PW-1 was not present and the court was constrained to impose a cost of Rs.5,000/- and gave last and final opportunity to the parties. The matter was adjourned to 31.1.2013 on which date the witness was again not present and another opportunity was given to the plaintiff. The matter was adjourned to 2.8.2013 on which date, the court noted that no further indulgence is required to be given to the plaintiff as despite expiry of more than three years, the testimony of PW-1 could not be completed because of the absence of the said witness. Consequently, the evidence of the plaintiff was closed and the matter was listed for defendants evidence on 20.11.2013. The defendants did not adduce their evidence on the ground that essentially the onus of all the issues was on the plaintiff and as the plaintiff has failed to adduce any evidence to discharge of his onus consequently, the defendants were not required to produce any evidence. The evidence of the defendants was closed. 6. I have heard the learned counsel for the plaintiff as well as the learned counsel for the defendants. At the outset, it may be stated that if one reads the issues, the onus of issue No.1, whether the plaint is signed and instituted by a duly authorized person, was on the plaintiff. No evidence in this regard has been produced by the plaintiff and consequently this issue is to be decided against the plaintiff. 7. At the outset, it may be stated that if one reads the issues, the onus of issue No.1, whether the plaint is signed and instituted by a duly authorized person, was on the plaintiff. No evidence in this regard has been produced by the plaintiff and consequently this issue is to be decided against the plaintiff. 7. The second issue was whether the plaintiff was ready, willing and able to perform his part of the obligation under the agreement to sell dated 18.6.2003 and 6.10.2003. No witness has been examined by the plaintiff on record. The testimony of PW-1, Munish Sharma, who is the Director of the plaintiff company, although his affidavit in chief has been filed and he has been partly examined but his testimony cannot be read in evidence for want of completion of his statement as the witness did not appear despite numerous opportunities having been given to the plaintiff. Consequently, it is a case where neither evidence has been produced by the plaintiff nor he has discharged the onus with regard to showing his readiness and willingness. The readiness and willingness which has to be established by the plaintiff is not only in terms of the agreement to sell on the date when the suit is filed by the plaintiff but on all the dates subsequent thereto. 8. In the instant case, the agreement dated 18.6.2003 has been admitted by defendant Nos.1 and 2 but their defense was that the plaintiff was not ready and willing to perform his part of the obligation in terms of the said agreement. One of the important components of readiness and willingness to perform his part of the obligation is that the plaintiff must be able to show to the court that he had sufficient liquidity at the time when the agreement was to be performed. Further, when he comes to the court seeking specific performance of the agreement the plaintiff has to show that there was sufficient resource or liquidity available with him at that time also. In terms of the agreement, the plaintiff had paid a sum of Rs.45 lacs to defendant Nos.1 and 2 by way of earnest money and the balance amount of Rs.4,30,00,000/- was to be paid at the time of signing of the agreement and perfecting his title when vacant and peaceful physical possession of the suit property was to be delivered to him. In the instant case, it has nowhere been shown by the plaintiff that it had sufficient amount available with it to the tune of Rs.4,30,00,000/-in order to pay defendant Nos.1 and 2. Even at the time when the suit was filed, no documentary evidence has been produced to show that it had sufficient bank balance in this regard. Therefore, this issue has to be decided by the court against the plaintiff. 9. It was contended by the learned counsel for the plaintiff Mr. Gurnani that even though the plaintiff had not adduced any evidence with regard to the proof of these issues still a judgment on the basis of admission can be passed in favour of the plaintiff for specific performance. In this regard, he contended that the agreement dated 18.6.2003 is not in dispute as the same was admitted by defendant Nos.1 and 2 in their written statement, therefore, as regards the readiness and willingness, the court can draw an inference that the plaintiff being a company was ready and willing to perform its contract. In this regard, the learned counsel for the plaintiff has also relied upon Mohan Lal Ahuja & Others vs. Tarun Chandra; 157 (2009) DLT 216 and Sunrise Construction vs. Veena Wahi; 2009 (111) DRJ 710 and drawn my attention to the paragraphs where the readiness and willingness in the facts of those cases has been dealt with. 10. I have carefully considered the submissions made by the learned counsel for the plaintiff and have gone through the judgments also. The said two judgments cited by the learned counsel are of no help in the instant case. In these two judgments, the facts of the case are totally different inasmuch as these were cases where the parties had adduced their respective evidence and the court had to martial the evidence in order to find as to whether the plaintiff, in the light of the evidence produced by him in these cases can be considered to be ready and willing to perform his part of the obligation or not. In the instant case, there is not even an iota of evidence produced by the plaintiff to show that he was ready and willing to perform his part of the obligation. Under these circumstances, the reliance placed by the learned counsel for the plaintiff on the aforesaid judgments is totally misconceived. 11. In the instant case, there is not even an iota of evidence produced by the plaintiff to show that he was ready and willing to perform his part of the obligation. Under these circumstances, the reliance placed by the learned counsel for the plaintiff on the aforesaid judgments is totally misconceived. 11. The third issue is as to whether the plaintiff is entitled to a decree of specific performance or not. Since the plaintiff has failed to prove the first two issues obviously the decree of specific performance could not be passed in his favour. 12. For the reasons mentioned above, I feel that as the plaintiff has failed to prove any of the issues for grant of relief of specific performance, therefore, the suit has to be necessarily dismissed. I, accordingly, dismiss the suit. No order as to costs.