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2015 Supreme(Del) 2289
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
MOHAN MADAN - Plaintiff
Versus
SMT. SHEEL GULATI - Defendant
CS(OS) No. 357/2006
Decided on : 19th August, 2015
Mr. Avneesh Garg, Advocate
The plaintiff's failure to prove readiness and willingness to perform the contract, as required by Section 16(c) of the Specific Relief Act, 1963, led to the dismissal of the suit.
Headnote:
specific performance - property dispute - Agreement dated 5.10.2005 - Sections 16(c) of the Specific Relief Act, 1963, Section 2(d) of the Indian Contract Act, 1872, Section 63 and 65(a) of the Indian Evidence Act, 1872
Fact of the Case:
The plaintiff filed a suit for specific performance of an Agreement dated 5.10.2005 for a property in Delhi. The defendant refused to accept further payments after a cheque for Rs.10 lacs bounced. The plaintiff did not file a replication to the defendant's written statement.
Finding of the Court:
The court found that the plaintiff failed to prove payment of the entire sum and readiness and willingness to perform the contract. The plaintiff was held guilty of breach of contract for non-payment and speculative litigation.
Issues: The issues included whether the plaintiff paid the earnest money, whether the plaintiff is entitled to specific performance, and whether the plaintiff is entitled to the declaration.
Ratio Decidendi: The court held that the plaintiff's failure to file a replication amounted to deemed admission of the defendant's plea. The bounced cheque and lack of proof of readiness and willingness led to the dismissal of the suit.
Final Decision: The suit for specific performance was dismissed, and the defendant was awarded actual costs incurred in the litigation.
VALMIKI J. MEHTA, J (ORAL)
1. The subject suit being decided by this judgment is a suit for specific performance filed by the plaintiff, Sh.Madan Mohan against the defendant, Smt. Sheel Gulati. Plaintiff seeks specific performance of the Receipt-cum-Agreement dated 5.10.2005 with respect to the property bearing no. BN-53, Shalimar Bagh (East), Delhi. The agreed total sale consideration was Rs.2.39 crores of which plaintiff claims that he paid a sum of Rs.25 lacs on the date of execution of the Agreement to Sell dated 5.10.2005. In terms of the Agreement to Sell, plaintiff had to pay further sums of Rs.50 lacs upto 20.1.2006 and Rs.25 lacs upto 20.2.2006. The case of the plaintiff is that when he went to the defendant for making payment of these amounts, the defendant refused to accept the same and therefore the plaintiff is entitled to specific performance. Plaintiff pleads that he sent a Legal Notice dated 24.1.2006 to the defendant and thereafter filed the subject suit. Plaintiff also pleads that he has always been and is even today ready to perform his part of the contract and make the payments as per the agreed schedule.
2. Defendant has filed the written statement praying for dismissal of the suit on the ground that out of the amount of Rs.25 lacs which was paid under the Receipt-cum-Agreement dated 5.10.2005, a sum of Rs.10 lacs was paid by means of a cheque drawn of one Sh. Dharampal Malik in favour of the defendant, but, this cheque bounced on presentation. Defendant states that on bouncing of the cheque, the defendant through her lawyer got issued a Legal Notice dated 19.10.2005 mentioning about the factum of dishonour of cheque and asking the plaintiff to abide by the terms of the Agreement dated 5.10.2005 and which the plaintiff failed to do. The defendant denies that the plaintiff ever approached the defendant with either the amount of Rs.50 lacs as on 20.1.2006 or the further amount of Rs.25 lacs on 20.2.2006.
Defendant has denied that the plaintiff has always been or continues to be ready and willing to perform his part of the contract.
3. I may note that the plaintiff has not filed any replication to the written statement filed by the defendant, and this aspect is being noted because this aspect will have bearing on the decision of the suit.
4. In the suit, the following issues were framed on 12.8.2008:-
“1. Whether the plaintiff is entitled to the declaration, as prayed? OPP
2. Whether the plaintiff is entitled to specific performance of Agreement dated 5.10.2005? OPP
3. Did the plaintiff pay the earnest money to the defendant, as alleged? OPP
4. Relief.”
5. Issue Nos.1 to 3
All the three issues are taken up together because they are related to each other and will include discussion on the issue of whether under the Agreement dated 5.10.2005 out of the amount of Rs.25 lacs, an amount of Rs.10 lacs was paid by cheque which bounced, and also as to whether plaintiff is entitled to the relief of specific performance by the plaintiff showing that it is the defendant who has committed breach of contract and the plaintiff has always been ready and willing to perform his part of the contract.
6. The first aspect to be examined is whether under the Agreement dated 5.10.2005, did the plaintiff pay the entire sum of Rs.25 lacs to the defendant in cash or whether the defendant was only paid Rs.15 lacs because the plaintiff had given a cheque of Rs.10 lacs which had bounced on presentation.
7(i). On behalf of the plaintiff, it is argued that the total amount of Rs.25 lacs was paid in cash on the date of execution of the Agreement dated 5.10.2005 and that this is acknowledged by the defendant in terms of the Agreement (Ex.P-1) itself, whereas, the case of the defendant is that the second original of the Agreement dated 5.10.2005, Ex.D-1, at its back side contains an endorsement that there is a cheque of Rs.10 lacs issued of one Sh. Dharampal Malik dated 4.10.2005 of Nainital Bank Limited bearing no. 518934.
(ii) W
