Judgment Plaintiff Sumit Kumar filed suit for specific performance of contract dated 12.3.2007 pleaded therein that an agreement dated 12.3.2007 was executed between the plaintiff and co-defendant No.1. It is pleaded that at the time of execution of agreement plaintiff paid Rs. 1 lac (Rupees one lac only) as an advance amount to co-defendant No.1. It is pleaded that in addition plaintiff also paid Rs. 5 lacs (Rupees five lacs only) to co-defendant No.1. It is further pleaded that plaintiff has performed his part of contract and balance amount of Rs. 39 lacs (Rupees thirty nine lacs only) was to be paid to co-defendant No. 1 at the time of execution of sale deed which was to be executed on or before 31.7.2011. It is pleaded that plaintiff is still ready and willing to perform his part of contract dated 12.3.2007. It is also pleaded that plaintiff requested co-defendant No. 1 to execute the sale deed as per terms of agreement and on dated 27.6.2011 plaintiff requested co-defendant No.1 to remain present at Shimla to execute the sale deed in favour of the plaintiff. It is pleaded that co-defendant No. 1 is under legal obligation to execute the sale deed in favour of the plaintiff on the basis of agreement dated 12.3.2007. It is pleaded that cause of action arisen on dated 12.3.2007 when agreement to sell flat No. 9 was executed between plaintiff and co-defendant No.1. It is pleaded that cause of action further arisen on dated 25.7.2011 when plaintiff submitted an application before the Sub Registrar Shimla and further pleaded that cause of action again arisen on dated 1.8.2011 when plaintiff issued legal notice to the co-defendant No.1 asking her to perform her part of agreement. It is also pleaded that further cause of action arisen in favour of plaintiff in first week of August 2011 when co-defendant No.1 refused to execute the sale deed in favour of the plaintiff. Plaintiff sought the following relief. (1) That decree for specific performance of contract on the basis of agreement dated 12.3.2007 be passed. (2) That defendants be directed to hand over the possession of flat to the plaintiff and to execute the sale deed. (3) That defendants or their representatives be restrained by way of passing decree of permanent prohibitory injunction not to interfere in any manner in the ownership and possession of plaintiff in flat. (2) That defendants be directed to hand over the possession of flat to the plaintiff and to execute the sale deed. (3) That defendants or their representatives be restrained by way of passing decree of permanent prohibitory injunction not to interfere in any manner in the ownership and possession of plaintiff in flat. (4) That any decree as Court deem just and proper be also passed. (5) That in alternative decree for recovery of earnest money received along with interest of 12% per annum be passed in favour of plaintiff. 2. Per contra written statement filed on behalf of the co-defendant Sudesh Dogra pleaded therein that present suit is bad for non-joinder of necessary parties. It is pleaded that Ms. Urvashi Dogra is owner of the property in dispute. It is further pleaded that co-defendant No. 1 by way of family settlement transferred the property in dispute in the name of her daughter Ms. Urvashi Dogra who thereafter transferred the said property in the name of her sister Sunita Anand by way of gift. It is pleaded that however possession of premises remained with Ms. Urvashi Dogra. It is pleaded that both daughters are aware about the existence of agreement. It is pleaded that Ms. Urvashi Dogra and Sunita Anand are necessary parties. It is admitted that an agreement to sell was executed inter se the plaintiff and co-defendant No. 1 on dated 12.3.2007. It is pleaded that co-defendant No. 1 is not owner of flat in question and therefore she is not in a position to execute the sale deed. Prayer for dismissal of suit is sought. 3. Plaintiffs also filed replication and re-asserted the allegations mentioned in plaint. 4. On dated 4.5.2012 Ms. Urvashi Dogra was impleaded as co-defendant No. 2 in present suit. During the pendency of civil suit Ms. Sunita Anand filed application under Order 1 Rule 10 CPC read with Section 151 CPC for impleading her as co-defendant and same was registered as OMP No. 299 of 2012. Hon’ble High Court of H.P. on dated 27.12.2012 dismissed the application filed by Sunita Anand under Order 1 Rule 10 CPC read with Section 151 CPC. Co-defendant No. 2 did not file any separate written statement despite opportunity granted. 5. As per the pleadings of parties the following issues were framed on dated 23.5.2013:- 1. Hon’ble High Court of H.P. on dated 27.12.2012 dismissed the application filed by Sunita Anand under Order 1 Rule 10 CPC read with Section 151 CPC. Co-defendant No. 2 did not file any separate written statement despite opportunity granted. 5. As per the pleadings of parties the following issues were framed on dated 23.5.2013:- 1. Whether plaintiff is entitled for a decree of specific performance of contract on the basis of agreement to sell dated 12.3.2007? OPP 2. Whether the suit is bad for non-joinder of parties? ……OPD 3. Whether the suit in the present form is not maintainable? …..OPD 4. Whether the agreement sought to be enforced is not enforceable in view of the suit filed by Smt. Sunita Anand? ……OPD 5. Relief. 6. Oral evidence examined by parties:- Sr.No. Name of witness PW1 Shri Sumit Kumar PW2 Shri M.R.Bhardwaj PW3 Rajinder Singh DW1 Ms. Urvashi Dogra 7. Documentary evidence produced by parties:- Exhibit Description of document Ext.PW1/A Agreement to sell dated 12.3.2007 Ext.PW1/B Letter issued to Sub Registrar-cum- Tehsildar District Shimla (H.P.) dated 25.7.2011 by Sumit Kumar. Ext.PW1/C Affidavit given by Sumit Kumar. Ext.PW1/D Legal notice given by plaintiff to Ms.Sudesh Dogra Ext.PW1/E Postal receipt Admitted plaint of CS No. 26/1of 2011 titled Ms.Sunita Anand vs. Ms.Urvashi Dogra. Written statement filed by Ms. Urvashi Dogra and others in CS No. 26/1 of 2011 titled Ms.Sunita Anand vs. Ms.Urvashi Dogra and others. 8. Court heard learned counsel appearing on behalf of the parties and perused the entire record carefully. 9. Testimonies of oral evidence adduced by the parties:- 9.1 PW1 Sumit Kumar has stated that defendants are known to him. He has stated that he intended to purchase the flat at Shimla. He has stated that agreement Ext.PW1/A dated 12.3.2007 was executed which bears his signatures and also bears signatures of co-defendant No. 1 and witnesses Rajvir Singh and Rajender Kumar. He has stated that after execution of agreement Ext.PW1/A defendant disclosed that there were some tenants in flats and some time was required for their vacation. He has stated that thereafter co-defendant told that some family dispute had occurred and she was not in a position to execute the sale deed and further stated that codefendant No. 1 sought some time for execution of sale deed and thereafter date 31.7.2011 was fixed for execution of sale deed. He has stated that thereafter co-defendant told that some family dispute had occurred and she was not in a position to execute the sale deed and further stated that codefendant No. 1 sought some time for execution of sale deed and thereafter date 31.7.2011 was fixed for execution of sale deed. He has stated that co-defendant No. 1 agreed that she would sell the flat in question for consideration amount of Rs. 45 lacs (Rupees forty five lacs only). He has stated that he paid Rs.1 lac (Rupees one lac only) as advance. He has stated that he had also paid an amount of Rs. 5 lacs (Rupees five lacs only) as part payment of sale consideration amount. He has stated that thereafter he contacted co-defendant No.1 in July 2011 and co-defendant No.1 told him to reach Shimla on dated 25.7.2011. He has stated that thereafter he reached Shimla and again contacted co-defendant No.1 who told him to reach in office of Sub Registrar Shimla on dated 25.7.2011. He has stated that thereafter he reached in office of Sub Registrar Shimla on dated 25.7.2011 in the morning at 10 AM along with balance sale consideration amount but defendant No.1 did not come to execute the sale deed. He has stated that thereafter he contacted co-defendant No.1 by way of mobile but mobile of co-defendant No. 1 was switched off. He has stated that thereafter he filed an application before Sub Registrar to mark his presence in office and further stated that in addition he also executed an affidavit in token of his presence in the office of Sub Registrar Shimla on dated 25.7.2011 Ext.PW1/C. He has stated that thereafter he came back to Delhi and served a legal notice through his Advocate upon co-defendant No.1 and postal receipt is Ext.PW1/E. He has stated that co-defendant No. 1 did not respond to legal notice and further stated that he was and is always willing to perform his part of agreement. He has stated that co-defendant No. 1 did not comply the terms and conditions of agreement and his suit be decreed as prayed for. He has denied suggestion that he did not pay the remaining amount of sale consideration of Rs.39 lacs (Rupees thirty nine lacs only). He has denied suggestion that he was not ready and willing to perform his part of agreement. He has denied suggestion that he did not pay the remaining amount of sale consideration of Rs.39 lacs (Rupees thirty nine lacs only). He has denied suggestion that he was not ready and willing to perform his part of agreement. He has stated that he does not know that flat in dispute was gifted to Ms. Sunita Anand. He has denied suggestion that he did not serve any notice upon co-defendant No.1. He has denied suggestion that he could not arrange sale consideration amount. He has stated that he was not aware that market value of flat in question is about 65 lacs (Rupees sixty five lacs only). 9.2 PW2 M.R. Bhardwaj SDM Theog has stated that he has brought the summoned record. He has stated that on dated 25.7.2011 he was posted as Tehsildar in urban Shimla. He has stated that on dated 25.7.2011 plaintiff Sumit Kumar appeared before him and marked his presence and plaintiff also filed an application Ext.PW1/B. 9.3 PW3 Rajinder Singh has stated that plaintiff is known to him and co-defendant No.1 Sudesh Dogra is also known to him. He has stated that agreement Ext.PW1/A was executed in his presence and he is marginal witness of agreement. He has stated that parties have signed the agreement in his presence. He has stated that other marginal witness has signed the agreement in his presence. He has stated that agreement Ext.PW1/A was executed at Shimla on dated 12.3.2007 and a sum of Rs. 1 lac (Rupees one lac only) was paid by the plaintiff to co-defendant No.1 at the time of execution of agreement Ext.PW1/A as earnest money. He has denied suggestion that he did not come to Shimla and he has also denied suggestion that he had signed agreement Ext.PW1/A at Noida. He has stated that agreement was relating to sale of flat by co-defendant No.1 in favour of the plaintiff. 9.4 DW1 Ms. Urvashi Dogra has stated that she is owner of flat in question. She has stated that agreement was executed by plaintiff and by her mother in the year 2007. She has stated that agreement was for consideration amount of Rs.45 lacs (Rupees forty five lacs only). She has stated that total amount of Rs. 6 lacs (Rupees six lacs only) paid by plaintiff and remaining amount of Rs. She has stated that agreement was executed by plaintiff and by her mother in the year 2007. She has stated that agreement was for consideration amount of Rs.45 lacs (Rupees forty five lacs only). She has stated that total amount of Rs. 6 lacs (Rupees six lacs only) paid by plaintiff and remaining amount of Rs. 39 lacs (Rupees thirty nine lacs only) is not paid by plaintiff which was to be paid by July 2011 as per terms of agreement. She has stated that her mother had transferred the flat by way of family settlement in the year 2008 to her and thereafter she gifted the flat to her sister Sunita Anand in the year 2009. She has stated that thereafter her sister had given GPA in favour of her mother and thereafter flat in question was gifted back to her and she is still owner of flat in question. She has stated that in case plaintiff would give balance amount along with interest then she would execute the sale deed. She has stated that plaintiff did not come forward to execute the sale deed as per terms of agreement. She has stated that balance sale consideration amount is only Rs. 39 lacs (Rupees thirty nine lacs only). She has stated that she is ready to receive the remaining sale consideration amount of Rs.39 lacs (Rupees thirty nine lacs only). She has stated that she is ready to execute the sale deed in favour of the plaintiff after the receipt of sale consideration amount along with interest in the office of Sub Registrar. Findings upon issue No.1 10. Submission of learned Advocate appearing on behalf of the plaintiff that plaintiff is entitled for decree of specific performance of contract on the basis of agreement to sell dated 12.3.2007 is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused agreement Ext.PW1/A placed on record. It has been specifically mentioned in condition No. 4 of agreement that case No. 38 of 2004 is pending before Hon’ble High Court of H.P. relating to suit property and sale deed will be executed only if case No. 38 of 2004 is decided in favour of seller namely Mrs. Sudesh Dogra. There is no evidence on record in order to prove that case No. 38 of 2004 has been decided in favour of Mrs. Sudesh Dogra. There is no evidence on record in order to prove that case No. 38 of 2004 has been decided in favour of Mrs. Sudesh Dogra by Hon’ble High Court of H.P. No certified copy of decision of case No. 38 of 2004 has been placed on record. It is held that decision of case No. 38 of 2004 in favour of Sudesh Dogra by Hon’ble High Court of H.P. is the pre-condition for execution of sale deed in favour of plaintiff. The pre-condition relating to decision of Case No. 38 of 2004 in favour of seller Mrs. Sudesh Dogra mentioned in agreement dated 12.3.2007 Ext.PW1/A is not proved on record. In view of the fact that pre-condition of decision of case No. 38 of 2004 in favour of Sudesh Dogra not proved on record in present case it is not expedient in the ends of justice to direct the defendants to execute and register the sale deed of flat No. 9 situated in third floor at Brockhurst Chhota Shimla Tehsil and District Shimla. 11. Another submission of learned Advocate appearing on behalf of the plaintiff that possession of flat in dispute be also handed over to the plaintiff is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that mere agreement of sale of immovable property does not create title, interest or charge in immovable property. (See AIR 1981 Delhi 291 titled Jiwan Dass Rawal vs. Narain Dass. See AIR 1987 Delhi 36 titled Imtiaz Ali vs. Nasim Ahmed. See AIR 1981 Calcutta 404 titled Amulya Gopal Majumdar vs. United Industrial Bank Ltd. and others. . See AIR 1995 Allahabad 316 titled Indira Fruits and General Market Meerut vs. Bijendra Kumar Gupta and others) Hence it is held that plaintiff is also not entitled for possession of flat in dispute. Even as per Section 54 of Transfer of Property Act contract of sale of immovable property itself does not create any interest or charge upon the immovable property. It was held in case reported in AIR 1994 Bombay 228 titled Crest Hotel Ltd. and another vs. The Assistant Superintendent of Stamps and another that contract of sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties. It was held in case reported in AIR 1994 Bombay 228 titled Crest Hotel Ltd. and another vs. The Assistant Superintendent of Stamps and another that contract of sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties. It was held that merely contract does not by itself create any interest in or charge in the property. It was further held that an agreement to sell is merely a document creating a right to obtain another document of sale on fulfillment of the conditions specified in agreement. It was held that on the strength of agreement only buyer does not become owner of the property and ownership remain with seller. It was held that ownership shall be transferred to buyer only on execution of sale deed by seller. It was also held that what the buyer gets from an agreement for sale is only a right to obtain a sale deed executed in his favour. 12. Submission of learned Advocate appearing on behalf of the plaintiff that plaintiff is also entitled for decree of permanent prohibitory injunction as prayed for in the relief clause is rejected being devoid of any force for the reasons hereinafter mentioned. There is no recital in agreement dated 12.3.2007 Ext.PW1/A placed on record that possession of flat was delivered to the plaintiff. In absence of recital in agreement that possession of flat was delivered to plaintiff it is not expedient in the ends of justice to grant relief of injunction in favour of plaintiff as sought in relief clause of plaint. 13. Another submission of learned Advocate appearing on behalf of plaintiff that in alternative plaintiff is also legally entitled for recovery of Rs. 6 lacs (Rupees six lacs only) along with interest is accepted for the reasons hereinafter mentioned. It is proved on record that plaintiff has paid Rs. 6 lacs (Rupees six lacs only) as earnest money. Plaintiff has specifically stated when he appeared in witness box that he paid Rs. 6 lacs (Rupees six lacs only) to co-defendant No.1 namely Sudesh Dogra. Ms. Sudesh Dogra did not appear in witness box for the purpose of cross examination. Hence adverse inference is drawn against Sudesh Dogra under Section 114 (g) of Indian Evidence Act. Plaintiff has specifically stated when he appeared in witness box that he paid Rs. 6 lacs (Rupees six lacs only) to co-defendant No.1 namely Sudesh Dogra. Ms. Sudesh Dogra did not appear in witness box for the purpose of cross examination. Hence adverse inference is drawn against Sudesh Dogra under Section 114 (g) of Indian Evidence Act. It was held in case reported in AIR 1999 SC 1441 titled Vidyadhar vs. Mankikrao and another that if party does not enter into the witness box then adverse inference should be drawn against that party. (Also see 1999(1) S.L.J. 724 titled Iswar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera and another) Even DW1 Urvashi when appeared in witness box has admitted that agreement dated 12.3.2007 was executed between the plaintiff and codefendant No. 1 for consideration amount of Rs. 45 lacs (Rupees forty five lacs only). DW1 Urvashi has admitted that out of Rs. 45 lacs (Rupees forty five lacs only) an amount to the tune of Rs. 6 lacs (Rupees six lacs only) was paid by plaintiff. In view of the fact that co-defendant No. 1 did not appear in witness box for the purpose of cross examination and in view of the fact that DW1 Urvashi had admitted that plaintiff had paid Rs. 6 lacs (Rupees six lacs only) to co-defendant No. 1 Court is of the opinion that it is expedient in the ends of justice to grant decree of recovery of Rs. 6 lacs (Rupees six lacs only) along with interest at the rate of 6% per annum. Issue No. 1 is party decided in favour of the plaintiff. Findings upon Issue No.2 14. Another submission of learned Advocate appearing on behalf of the defendants that suit is bad for nonjoinder of necessary parties is rejected being devoid of any force for the reasons hereinafter mentioned. Agreement dated 12.3.2007 Ext.PW1/A was executed between the plaintiff and co-defendant No.1. It is proved on record that thereafter Hon’ble High Court of H.P. impleaded Ms. Urvashi Dogra as codefendant No. 2 vide order dated 4.5.2012. It is proved on record that thereafter Hon’ble High Court of H.P. vide OMP No. 299 of 2012 dismissed the application of Sunita Anand to be impleaded as co-defendant. It is proved on record that thereafter Hon’ble High Court of H.P. impleaded Ms. Urvashi Dogra as codefendant No. 2 vide order dated 4.5.2012. It is proved on record that thereafter Hon’ble High Court of H.P. vide OMP No. 299 of 2012 dismissed the application of Sunita Anand to be impleaded as co-defendant. It is proved on record that agreement was executed between the plaintiff and co defendant No.1 only and it is well settled law that liability of agreement is personam in nature in accordance with law. Since signatories of agreement Ext.PW1/A dated 12.03.2007 are only the plaintiff and co-defendant No. 1 it is held that present suit is not bad for non-joinder of necessary parties. Issue No. 2 is decided against the defendants. Findings upon issue No.3. 15. Submission of learned Advocate appearing on behalf of defendants that suit in present form is not maintainable is also rejected being devoid of any force for the reasons hereinafter mentioned. Plaintiff has filed the suit for specific performance on the basis of agreement Ext.PW1/A dated 12.3.2007. It is well settled law that suit for specific performance of agreement can be filed on the basis of agreement. It is proved on record that written agreement was executed inter se the parties. However written agreement Ext.PW1/A relating to execution of sale deed could not be executed due to pre-condition mentioned in agreement that sale deed would be executed only if case No. 38 of 2004 pending in Hon’ble High Court of H.P. is decided in favour of vendor. There is no evidence on record in order to prove that Hon’ble High Court of H.P. had decided case No. 38 of 2004 in favour of Mrs. Sudesh Dogra. Issue No. 3 is decided against the defendants. Findings upon issue No.4 16. Submission of learned Advocate appearing on behalf of the defendants that agreement is not enforceable in view of suit filed by Sunita Anand titled Ms.Sunita Anand vs. Ms. Urvashi Dogra is rejected being devoid of any force for the reasons hereinafter recorded. Court is of the opinion that Sunita Anand and Urvashi Dogra are not signatories to agreement Ext.PW1/A dated 12.3.2007 executed between the plaintiff and co-defendant No.1. Even it is not proved on record that Sumit Kumar is co-party in civil suit filed by Ms. Sunita Anand before the Civil Court. Court is of the opinion that Sunita Anand and Urvashi Dogra are not signatories to agreement Ext.PW1/A dated 12.3.2007 executed between the plaintiff and co-defendant No.1. Even it is not proved on record that Sumit Kumar is co-party in civil suit filed by Ms. Sunita Anand before the Civil Court. It is well settled law that judgments are of two types i.e. judgment in-rem and judgment in-personam. It is well settled law that judgment inpersonam could not be enforced against third person who is not party in civil suit. It is held that civil suit filed by Sunita Anand could only be enforced against Urvashi and Sudesh Dogra and could not be enforced against the plaintiff because plaintiff is not co-party in civil suit filed by Sunita Anand titled Ms.Sunita Anand vs. Ms.Urvashi Dogra. In view of above stated facts issue No. 4 is decided against the defendants. Relief. 17. In view of findings upon above issues civil suit filed by plaintiff is partly decreed. Relief No.1, relief No.2 and relief No. 3 declined. However alternative relief is granted and decree for recovery of Rs. 6 lacs (Rupees six lacs only) is passed in favour of plaintiff and against the defendants jointly and severally. In addition interest at the rate of 6% per annum qua decreetal amount is also awarded from the date of institution of suit till recovery of decreetal amount in favour of plaintiff against defendants as per Section 34 of Code of Civil Procedure 1908 in the absence of contractual rate of interest in agreement Ext.PW1/A dated 12.03.2007 in favour of plaintiff. Condition of 12% interest per annum in agreement Ext.PW1/A is unilateral only in favour of vendor only. Parties are left to bears their own costs. Learned Registrar (Judicial) will prepare the decree sheet strictly in accordance with law. Civil suit stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.