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2019 Supreme(Del) 1442
IN THE HIGH COURT OF DELHI
Prathiba M. Singh, J.
Simmi Dhawan - Appellant
Vs.
Navin Malhotra And Others - Respondents
Civil Suit (Os) No. 984 of 2014, 75 of 2017, Interlocutory Application No. 8291 of 2017, 17118 of 2018
Decided On : 07-05-2019
Kajal Chandra, Adv., S.C. Singhal, Adv.
The main legal point established in the judgment is that the entitlement to specific performance is based on the existence of an admitted agreement and the fulfillment of the sale consideration, while the claim for damages requires evidence to establish the factum and quantum of loss.
Headnote:
Specific Performance - Agreement to Sell - CS(OS) 984/2014 - [Specific Performance, Agreement to Sell] - [Indian Contract Act, 1872, Section 73, Section 74] - The court granted a decree of specific performance in favor of the Plaintiff, Mrs. Simmi Dhawan, against the Defendant, Mr. Naveen Malhotra, in respect of the property. The Defendant's claim for damages was dismissed due to lack of evidence to establish the factum and quantum of loss.
Fact of the Case:
Mrs. Simmi Dhawan filed a suit seeking specific performance of an agreement to sell a property. She claimed to have paid the entire sale consideration to the Defendant, Mr. Naveen Malhotra, and sought possession of the property. The Defendant alleged the existence of a Memorandum of Understanding (MoU) with a higher sale consideration, leading to a dispute.
Finding of the Court:
The court found that the agreement to sell was an admitted document, and the sale consideration had been paid. The Defendant's claim of a higher sale consideration in the MoU was not proven, and the court granted a decree of specific performance in favor of the Plaintiff. The Defendant's claim for damages was dismissed due to lack of evidence.
Issues: The main issues included the entitlement to specific performance, possession, and permanent injunction, as well as the existence and validity of the MoU, and the claim for damages.
Ratio Decidendi: The court held that the Plaintiff was entitled to specific performance as the sale consideration had been admitted and the MoU was not proven. The Defendant's claim for damages was dismissed due to lack of evidence to establish the factum and quantum of loss.
Final Decision: CS(OS) 984/2014 was decreed in favor of the Plaintiff, granting specific performance. CS(OS) 75/2017 was dismissed. Actual costs were awarded to Mrs. Simmi Dhawan.
JUDGMENT :
Prathiba M. Singh, J.
Cs(Os) 984/2014
1. The Plaintiff - Smt. Simmi Dhawan has filed the present suit being CS(OS) 984/2014 seeking specific performance of agreement to sell dated 23rd December, 2013. On 29th August, 2018, arguments were heard on behalf of the parties and judgment was reserved. However, it was thereafter brought to the notice of the Court that another connected suit between the same parties, being CS(OS) 75/2017 was also pending and evidence was underway in the said matter. In CS(OS) 75/2017, evidence has since been concluded. Accordingly, the present judgment would be disposing of both the suits. At the time when submissions were heard in CS(OS) 984 /2014, the Defendants were duly represented by Mr. S.C. Singhal, Advocate. After hearing submissions, judgment was reserved. However, once evidence in CS(OS)75/2017 concluded, Mr. Singhal Ld. Counsel has sought discharge in the said suit and has, accordingly, been discharged.
2. The case of the Plaintiff- Mrs. Simmi Dhawan is that vide agreement to sell and purchase dated 23rd December, 2013, the Defendant - Sh. Naveen Malhotra @ Navin Malhotra had agreed to sell the front portion of the two and a half storied building - freehold property bearing no. No.B-24, land area measuring 305 sq.yds. approx., along with front half portion of Garage, situated in the residential colony known as 'Kailash Colony' at Village Zamrudpur, on Lajpat Nagar and Kalkaji Link road, in Delhi (hereinafter "suit property"). As per the said agreement, the agreed sale consideration was a sum of Rs.6.5 crores along with brokerage, etc.
3. Mrs. Dhawan's case is that she has paid the entire sale consideration to the Defendant, however, since the property was mortgaged with M/s Indiabulls Housing Finance Ltd., Mr. Malhotra sought time to obtain the original documents from Indiabulls and thereafter register the sale deed, in her favour. On 25th January, 2014, M/s Indiabulls and Mr. Malhotra entered into a settlement and the loan account of Indiabulls was finally settled. The "No Dues Certificate" was also issued by Indiabulls on 14th February, 2014. After the issuance of the No Due Certificate, Mrs. Dhawan claims to have again approached Mr. Malhotra for executing the sale deed.
4. However, Mr. Malhotra got issued notice dated 22nd March, 2014 alleging that there existed an MOU dated 23rd December, 2013 between the parties. As per the said MOU, the sale consideration for the property was Rs.13.50 crores. Thus, it was alleged in the notice that only a sum of Rs.7.02 crores had been paid by Mrs. Dhawan and since the remaining amounts were not paid by her, Mr. Malhotra had forfeited the entire amount paid by Mrs. Dhawan. It was under these circumstances that the suit came to be filed. Mrs. Dhawan seeks the following relief’s.
"(a) Pass a decree of Specific Performance in favour of the Plaintiff and against the Defendants No. 1 directing him to specifically perform and enforce the Agreement to sell and purchase dated 23.12.2013 in respect of the Suit Property bearing No.B-24, land area measuring 305 sq.yds. approx., along with front half portion of Garage, situated in the residential colony known as 'Kailash Colony' at Village Zamrudpur, on Lajpat Nagar and Kalkaji Link road, in Delhi;
(b) Pass a decree of possession in favour of the Plaintiff and against the Defendant no.1 directing him to deliver the vacant and peaceful physical possession of the Suit property bearing No.B-24, land area measuring 305 sq.yds. approx., along with front half portion of Garage, situated in the residential colony known as 'Kailash Colony' at Village Zamrudpur, on Lajpat Nagar and Kalkaji Link road, in Delhi to the Plaintiff.
(c) Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendant No.1 & 2 restraining them or their agents, assignees, relatives, representatives or anybody claiming through them from selling, leasing, disposing off, alienating, parting or creating any third party int
