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2012 Supreme(Del) 137
High Court of Delhi
PRADEEP NANDRAJOG & PRATIBHA RANI, JJ.
V.N. Verma
Versus
Veena Mahajan
RFA(OS) 86 of 1998
Decided on : 18-01-2012
For the Appellant:Rana Ranjit Singh, Jaswant Singh, Advocates.
For the Respondent:P.S. Bindra, Ashok Gurnani, Abhay Kumar, Advocates.
Headnote:
Civil Procedure Code, 1908 - Order 1 Rule 10, Order 16 Rule 11 - Specific performance - Agreement to sell - Impledement of party - A party claiming impleadment must have an interest in the pending litigation of a kind in which presence of the party is necessary to settle all the questions in the suit - Principle relating to impleadment in physical properties are equally applicable to contractual rights - Agreement for sale does not create any right, title or interest in the property and the action is one in personam against the seller - Applicant had knowledge of the pending suit and attempted to alter the status at site by erecting a boundary wall and constructing a chowkidar room, when the decree is passed - Presence of a person who claims to have entered into a subsequent agreement to sell with the seller, would not be a necessary party as his presence is not necessary to settle all the questions which arise in the suit - Application is dismissed.
Specific Relief Act, 1963 - Sections 12 & 15 - Non-performance of agreement to Sell - Responsibility of appellant - Appellant had accepted a sum of Rs. 20,000/- towards part sale consideration after expiry of 7 days - Stand taken by the appellant that the Agreement to Sell stood terminated is wholly fallacious - It is appellant turned dishonest after having received more than half of the sale consideration - Refusal to grant decree of specific performance of the Agreement to Sell of the property and granting compensation to the seller while granting decree of specific performance to the buyer on account of escalation in the price of the property is a principle rooted in equity that no party should have an undue advantage over the other - There can be no equity in favor of a dishonest person - Appellant would not be entitled to the impugned decree being set aside - Decree upheld and appeal dismissed.
Specific Relief Act, 1963 - Sections 12 & 15 - Reasonable condition - Court, in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance - Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case.
Specific Relief Act, 1963 - Sections 12 & 15 - Specific performance - While balancing equities in adjudicating cases relating to specific performance of Agreement to Sell of the property the consideration required to be kept in mind is who is the defaulting party - There is no binding precedent to the effect that in all cases where there had been an escalation of prices, the court should either refuse to pass a decree on specific performance of contract or direct the plaintiff to pay a higher sum - Relevant would it be to highlight that Courts exercise equitable discretion in matters pertaining to specific performance and thus conduct of a party would always be relevant.
PRADEEP NANDRAJOG, J.
CM No.2058/1998
1. While admitting the appeal on September 23, 1999 it was directed that CM No.2058/1998 would be taken up for hearing at the time of final hearing of the appeal.
2. Arguments were heard in the appeal and the application, on January 04, 2012.
3. We decide CM No.2058/1998 first.
4. The respondent Veena Mahajan filed a suit on 29.04.1988 seeking specific performance of an agreement to sell dated February 14, 1986 alleging that she had paid the appellant Sh. V.N. Verma a sum of Rs.40,000/-under the agreement to sell where under the appellant was obliged to sell plot bearing No.40, Chitra Vihar to her for a total sale consideration of Rs.1,50,000/-and that the balance sale consideration in sum of Rs.1,10,000/-had to be paid when the appellant was in a position to deliver vacant possession of the plot to her. That thereafter, on January 21, 1987 she paid a further sum of Rs.10,000/-to the appellant. She received a letter dated August 25, 1987 from the appellant informing her that the appellant was in a position to discharge his contractual obligations within seven days and thus called upon her to pay the balance consideration and get the transfer affected. Since the plot in question had only been allotted to the appellant and formal document conveying title to him by DDA had not been executed, it was agreed that after the lease deed was executed by DDA in favour of the appellant, necessary payment would be made by her to the appellant. Thereafter, at the request of appellant, she paid further sum of Rs.15,000/-to him on September 29, 1987 and on November 20, 1987 she paid further sum of Rs.5,000/-. Thus, balance amount payable was Rs.70,000/-which had to be paid after perpetual lease deed was executed in favour of the appellant. On November 30, 1987 the perpetual lease deed was executed in favour of the appellant, but the appellant started resiling and did not come forward to execute the necessary documents transferring title to her and receive balance sale consideration. On January 24, 1988 she served a telegraphic notice upon the appellant requiring him to accept the balance sale consideration in sum of Rs.70,000/-and execute the necessary documents. In response, vide reply dated January 29, 1988, the appellant alleged that the balance sale consideration had to be paid within seven days of the allotment of the plot to him, which allotment was made on August 25, 1987, and since it was alleged that she did not do so, an allegation which was wrong, and for which proof was the two payments received by the appellant on September 29, 1987 and November 20, 1987, averring that she was always ready and willing to perform her obligations under the agreement to sell, the suit was filed praying specific performance of the agreement to sell.
5. Vide CM No.2058/1998 applicants Meena Rani Gupta and Nalini Gupta seek impleadment as respondents in the appeal urging that before CS(OS) No.553/1988 was filed by the respondent Veena Mahajan on 29.04.1988, the appellant V.N. Verma entered into an agreement to sell the suit property to one Kamlesh Gupta on 21.01.1988 and having received full sale consideration handed over possession of the property to her. On 26.11.1990 Kamlesh Gupta handed over possession of the property to the applicants under an agreement to sell of even date and since then the applicants are in possession of the property. Applicants claim knowledge of the suit filed by the respondent for the first time on 07.12.1998. It is asserted that the presence of the applicants is necessary to decide all issues which arise in the suit. Applicants state that they have paid Rs.3,60,000/-to Kamlesh Gupta. Applicants also claim benefit under a Will executed by Kamlesh Gupta as also claim that Kamlesh Gupta executed a power of attorney in favour of one Vinod Kumar Gupta. It is alleged in the application that the applicants were in the process of constructing a boundary wall and a caretaker room on th
