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2018 Supreme(Del) 3216
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Urvashi Aggarwal & Anr. - Appellants
Versus
Kushagr Ansal & Ors. - Respondents
Rfa 100 of 2016 & Cm Appls. 11818 of 2016, 482 of 2017, 21290 of 2018
Decided On : 12-11-2018
For the Appellants :Mr. Shanti Bhushan and Mr. Anil Sapra, Senior Advocates with Mr. Shyam Agarwal, Ms. Akansha & Mr. Sarthak Katyal, Advocates
For the Respondent:Mr. Sachin Datta, Senior Advocate with Mr. Vikas Tiwari & Mr. Amir Jamal, Advocates
Headnote:
The Court held that the suit for specific performance of an agreement to sell was barred by limitation and the Plaintiffs were not entitled to the relief of specific performance. The Court also held that the Plaintiffs were liable to refund the sum of Rs.60,000/- paid by them to the Defendants along with simple interest @ 24% per annum from 31st January, 1975.
Fact of the Case:
The Plaintiffs filed a suit for specific performance of an agreement to sell dated 5th October, 1974 in favour of the Plaintiffs, and the Defendant No.5-Mr. Rajeev Chander Aggarwal. The suit property is a house in a posh locality of South Delhi, which explains the long drawn litigation between the parties. The background facts leading to the filing of the present suit date back to an agreement to sell executed on 5th October, 1974 in favour of the Plaintiffs, and the Defendant No.5 by Mrs. Suraj Kumari-Defendant No.1. The suit property i.e. House No.82, Jorbagh, New Delhi consists of the Ground Floor, First Floor, and Second Floor. The father-in-law of Mrs. Urvashi Aggarwal-Plaintiff No.1 took the First and Second Floors of the suit property on rent. Plaintiff No.2-Mr. Sanjeev Chander Aggarwal and the Defendant No.5-Mr. Rajeev Chander Aggarwal are the sons of Plaintiff No.1. The father-in-law of Mrs. Urvashi Aggarwal passed away in 1973 and subsequent to his death, the tenancy of the first floor was transferred to one firm by the name M/s Vinod Industries Pvt. Ltd. (hereinafter, ‘M/s Vinod Industries’). Mrs. Urvashi Aggarwal’s husband was the Managing Director of this Company and Mrs. Urvashi Aggarwal was one of the directors. The rent being paid was a sum of Rs.500/-p.m. by M/s. Vinod Industries to Mrs. Suraj Kumari – Defendant No.1. For the purpose of brevity and easy understanding, Mrs. Urvashi Aggarwal-Plaintiff No.1, Mr. Sanjeev Chander Aggarwal and proforma Defendant No.5-Mr. Rajeev Chander Aggarwal are together referred to as the purchasers.
Finding of the Court:
The Court held that the suit for specific performance of an agreement to sell was barred by limitation and the Plaintiffs were not entitled to the relief of specific performance. The Court also held that the Plaintiffs were liable to refund the sum of Rs.60,000/- paid by them to the Defendants along with simple interest @ 24% per annum from 31st January, 1975.
Issues: Whether the suit is within limitation? Whether the suit is not bad for mis-joinder of parties to the cause of action? Whether the Agreement to sell dated 5/10/74 was amended and varied by the parties with regard to payment of Rs.50,000/- upto 31/10/74 and the balance sale consideration in instalments of Rs.7,000/- commencing from January 1975 till full payment of the sale consideration as alleged? If so, to what effect? Whether time for payment was not the essence of the contract as alleged by the plaintiff? Whether the plaintiff was put into proprietory possession of the entire suit property by defendant no.1 as alleged in para 15 of the plaint? Whether there is a subsisting Agreement to sell capable of specific performance as alleged? Whether the plaintiff has been ready and willing to perform the Agreement to sell? Whether the Agreement to sell was breached, repudiated, abandoned, and given up, as alleged by the defendants? Whether the plaintiffs are entitled to specific performance of the Agreement to sell dated 05.10.1974 and to what other relief or relief’s are the plaintiffs entitled to and against whom?
Ratio Decidendi: The Court held that the suit for specific performance of an agreement to sell was barred by limitation and the Plaintiffs were not entitled to the relief of specific performance. The Court also held that the Plaintiffs were liable to refund the sum of Rs.60,000/- paid by them to the Defendants along with simple interest @ 24% per annum from 31st January, 1975.
Final Decision: The Court dismissed the appeal and affirmed the Trial Court judgment in the above terms. All pending applications were disposed of. In the facts there shall be no order as to costs.
Prathiba M. Singh, J.
1. The present appeal arises out of the judgment dated 23rd December, 2015 passed by the Trial Court by which the relief of specific performance sought by the Appellants/Plaintiffs was rejected and the suit was dismissed.
2. The background facts leading to the filing of the present suit date back to an agreement to sell executed on 5th October, 1974 in favour of the Plaintiffs, and the Defendant No.5 by Mrs. Suraj Kumari-Defendant No.1. The suit property is a house in a posh locality of South Delhi, which explains the long drawn litigation between the parties.
3. The suit property i.e. House No.82, Jorbagh, New Delhi consists of the Ground Floor, First Floor, and Second Floor. The father-in-law of Mrs. Urvashi Aggarwal-Plaintiff No.1 took the First and Second Floors of the suit property on rent. Plaintiff No.2-Mr. Sanjeev Chander Aggarwal and the Defendant No.5-Mr. Rajeev Chander Aggarwal are the sons of Plaintiff No.1. The father-in-law of Mrs. Urvashi Aggarwal passed away in 1973 and subsequent to his death, the tenancy of the first floor was transferred to one firm by the name M/s Vinod Industries Pvt. Ltd. (hereinafter, ‘M/s Vinod Industries’) Mrs. Urvashi Aggarwal’s husband was the Managing Director of this Company and Mrs. Urvashi Aggarwal was one of the directors. The rent being paid was a sum of Rs.500/-p.m. by M/s. Vinod Industries to Mrs. Suraj Kumari – Defendant No.1. For the purpose of brevity and easy understanding, Mrs. Urvashi Aggarwal-Plaintiff No.1, Mr. Sanjeev Chander Aggarwal and proforma Defendant No.5-Mr. Rajeev Chander Aggarwal are together referred to as the purchasers.
4. On 5th October, 1974, the purchasers entered into an agreement to sell with Mrs. Suraj Kumari for sale of the entire property. It is the case of the purchasers that the total sale consideration was Rs.1,85,000/- out of which Rs.20,000/- was paid by the purchasers at the time of the agreement, and thereafter, another Rs.50,000/-was to be paid in instalments. Along with the execution of the agreement to sell, a power of attorney was also executed authorising Mrs. Urvashi Aggarwal to take action on behalf of the owner against the tenant of the ground floor, Mr. A. C. Deb. It is further the Plaintiffs’ case that a sum of Rs.40,000/-and Rs.10,000/-thereafter, was paid to the seller-Defendant No.1 and that the purchasers were put in proprietary possession of the suit property. It is the case of the Plaintiffs that after the payment of Rs.70,000/-, since the purchasers were put in proprietary possession, there was no requirement to pay any rent and hence Vinod Industries stopped paying rent. After the demise of Mr. A.C. Deb in 1985, his family vacated the ground floor in September, 1987. The Defendant No.4 i.e. son of the seller -Mrs. Suraj Kumari occupied the ground floor and altercations took place sometime in 1987. This led to disputes between the parties and the purchasers then demanded the specific performance of the agreement to sell dated 5th October, 1974.
5. Various offers appear to have been exchanged between the parties, but there was no settlement. Thus, a suit was filed by the Plaintiffs seeking the following relief’s:
“(a) decree this suit for specific performance and direct the defendants to execute the sale deed for property at 82 Jor Bagh, New Delhi and for possession of Ground Floor in favour of the plaintiffs and Shri Rajiv Chander Aggarwal, Performa defendant No. 5.
(b) Issue a prohibitory injunction to the defendants, restraining them from occupying or permitting any one else to occupy the ground floor of the property at 82, Jor Bagh, New Delhi.
(c) Issue a mandatory injunction to the defendants directing them to remove the wall constructed in place of the side gate of the property at 82, Jor Bagh, New Delhi.
(d) Award cost of this suit to the plaintiffs”
6. The suit was registered on 21st October, 1987 and an ad-interim injunction order was passed in the following terms:
“I.A. No.8029/87:
Notice for t
