SHRI DEEWAN ARORA v. SMT. TARA DEVI SEN & ORS.

SMT. TARA DEVI SEN & ORS. …….. Defendants Through : None. CORAM: HON’BLE MR. JUSTICE S. RAVINDRA BHAT Whether the Reporters of local papers may be allowed to see the judgment? To be referred to Reporter or not? Whether the judgment should be reported in the Digest? Yes. Yes. Yes. HON’BLE MR. JUSTICE S.RAVINDRA BHAT

1. This suit for specific performance was filed by the plaintiff (hereafter, Deewan), against the first defendant (hereafter, Tara Devi) seeking a decree of specific performance in terms of the Agreement to Sell dated 14.02.2008 that was allegedly executed by her in respect of C-515, Avantika, Rohini, Sector-1, Delhi-110085 (hereafter “the suit property”), in Deewan’s favour, along with a direction to the third defendant, GE Money Housing Finance (hereafter, GE Money), to hand over all the documents of the suit property on repayment of home loan taken by the defendant for the purchase of the suit property.

2. According to the suit averments Tara Devi is the owner of the suit property, which is a freehold property that she had purchased through a valid sale deed dated, 27.07.2007 from CS (OS) 1095/2008 one Tajinder Singh S/o Mahendra Singh, and had executed an agreement to sell on 14.02.2008 in Dewan’s favour for a sale consideration of Rs. 23,50,000/-. It is alleged that a sum of Rs. 8,00,000/- was paid to her in cash on 14.02.2008 by Deewan, and it was agreed that she would handover vacant physical possession of the suit property to him by 10.04.2008, which condition was complied with. It is further alleged that it was agreed between the parties that the balance consideration of Rs. 15,50,000/- was to be paid by Deewan to her on or before 10.05.2008. Accordingly a sum of Rs. 9,30,000/- was again paid in cash on 02.05.2008. Deewan alleges further that, when on 03.05.2008 he visited Tara Devi and her husband (the second defendant) at their house to pay the balance of the consideration amount, they were not there and could not be traced. Later it was discovered that the property was mortgaged with GE Money against a home loan of Rs. 13,50,000/- , whereas in terms of the agreement to sell, the suit property was stated to be free from all encumbrances, such as sale, mortgage, gift, lien, lease, litigation dispute, notification, acquisition, attachment, etc.

3. It was also agreed that if it is proved otherwise, Tara Devi, shall indemnify Deewan in full, to the extent of loss sustained by him. It is stated that Deewan approached GE Money and volunteered to repay the pending loan amount in full requesting that the original documents pertaining to the suit property should be handed over to him, which request was declined.

4. The defendants were served through affixation of summons, and by publication; they did not, however appear in the proceedings. By order dated 09.02.2009 the first and the second defendants were proceeded ex-parte and the third defendant’s right to file a written statement was closed, as it had failed to file it for almost six months. An ad interim injunction was also granted by the Court against GE money restraining it from creating any third party rights or parting with the possession of the suit property. Further, on 16.07.2009 GE Money was also proceeded ex-parte.

5. Two affidavits in evidence were filed in support of Deewan’s case, his own (Ex. PW1/A) and that of one Ajay Pal (Ex. PW2/A), who allegedly is the witness to agreement to sell. The averments made in the plaint were affirmed in both the affidavits. The original of the CS (OS) 1095/2008 Agreement to Sell dated 14.02.2008 is exhibited as Ex. PW-1/1 and the original copy of the Sale deed dated, 27.07.2007 executed by Tajinder Singh if favour of Tara Devi is exhibited as Ex. PW- 1/2. The plaintiff has also filed two receipts for advance cash payments on two occasions, for Rs. 2,00,000/- on 24.02.2008 and Rs. 9,30,000/- on 02.05.2008, both bearing endorsement of the second defendant, exhibited as Ex. PW-1/3 (Colly).

6. The Court has carefully considered the averments in the plaint and the documents produced in support of the suit. Deewan has, in the opinion of this Court, established the existence of the alleged agreement to sell dated 14.02.2008. However, it is noteworthy that the said agreement to sell is an unregistered document which purports to also convey possession to the vendee (Deewan). By the Registration and Other Related laws (Amendment) Act, 2001, Section 17 of the Registration Act, 1908 was amended, by inserting the following provision (requiring compulsory registration of certain instruments): "(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882(4 of 1882) shall be registered if they have been executed on or after the commencement of he Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A…” The same amendment inserted Item 23A in the schedule to the Stamp Act, which required payment of 90% of stamp on the transaction value, at the stage of execution and registration of an agreement to sell, wherever the sale was to be in the Union Territory. The overall effect of these two amendments is that such documents which mention that possession is given, are to be appropriately stamped and registered. The agreement to sell, in this case, is not so stamped; it is also unregistered.

7. The above observations are, however, not dispositive, since the Court has to independently examine whether even otherwise the material on record entitles the plaintiff to the decree sought for by him. Two important considerations always weigh with the Court while adjudicating a claim for specific performance of an agreement to sell of an immovable property. One, whether the plaintiff had pleaded and proved readiness and willingness to perform his CS (OS) 1095/2008 part of the contract and two, whether the equities of the case demand that such a decree be made (see Yohanan vs. Ram Latha, 2005 (7) SCC 534; Suryanarian Upadhayay vs. Ram Roop