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DELHI HIGH COURT
Valmiki J. Mehta, J.
Sobhag Narain Mathur —Plaintiff
versus
Pragya Agrawal & Ors. —Defendants
CS(OS) No.176 of 2007
Decided on 4.2.2016
For the Plaintiff:Mr.Aman Lekhi, Senior Advocate with Mr.Arjun Harkauli and Mr.Satyawan Shekhawat, Advocates
For the Defendants:Mr.Pradip Diwan, Senior Advocate with Mr.Vikas Mahajan, Mr.Deshraj, Mr.Davender Kaushik, Mr.Rohan Gupta and Mr.S.S.Rai, Advocates
IMPORTANT POINT
When there is no final contract/agreement to sell enforceable in law, suit for specific performance is not maintainable.
Headnote:(A) Contract Act, 1872—Section 10—Agreement for sale of property—Document in question cannot be said to be an agreement as per intention of parties because parties had intended a formal document to be entered into which only would be actual contract between parties—Price is the most vital aspect for a seller of an immovable property—In addition to the aspect as to how price is to be paid and in what instalments, dates thereof have to be co-related to date of agreement to sell and final execution of sale deed. (Paras 8, 10 and 11)
(B) Specific Relief Act, 1963—Sections 16(c) and 20—Specific performance of contract—Agreement for sale of plots—Once there is no contract between parties and which can be enforced at law as an agreement to sell, High Court under Order 20 Rule 5 CPC does not have to go into any other aspect of readiness and willingness, alleged dishonest conduct of defendants or who is guilty of breach of contract inasmuch as the minute Court takes that course of action, Court would be presuming a contract/agreement to sell enforceable in law to exist but the same does not exist—Since there is no final contract/agreement to sell enforceable in law, present suit for specific performance is not maintainable and same accordingly dismissed. (Paras 20 and 21)
Result: Suit dismissed.
Valmiki J. Mehta, J.—This is a suit for specific performance filed by the plaintiff Sh. Sobhag Narain Mathur who is the proposed purchaser. Defendant no.1 Smt. Pragya Agrawal, the owner of the suit property is the proposed seller. The subject matter of the agreement to sell as propounded by the plaintiff are four contiguous plots admeasuring 82.5 sq metrs each and situated in the Local Shopping Center, Madangir, New Delhi. The Agreement to Sell in question is a Receipt dated 7.12.2006 and which document as per the plaintiff is a complete agreement to sell as required by law hence entitling the plaintiff to specific performance on account of the plaintiff being ready and willing to perform his part of the contract and defendants breaching the contract contained in the Receipt-cum-Agreement to Sell dated 7.12.2006.
2. On behalf of the defendants, defendant no.2 being the husband of the owner/defendant no.1, signed the Receipt dated 7.12.2006. The stand of the defendants is that the document being the Receipt dated 7.12.2006 is not a complete contract, of an agreement to sell, in the eyes of law. There are also other issues raised by the defendants with respect to the plaintiff not being ready and willing to perform his part of the contract assuming that the Receipt dated 7.12.2006 is a contract as per law, as to who is guilty of breach of contract i.e whether the plaintiff or the defendants, and as to whether the plaintiff is entitled to the discretionary relief of specific performance, but, in my opinion, decision on these issues are not called for in the facts of the present case in view of Order XX Rule 5 of the Code of Civil Procedure, 1908 (CPC) and that the decision with respect to the first issue in the case; whether or not the Receipt dated 7.12.2006 is a complete contract as required in law for it to be an agreement to sell capable of being enforced through the subject suit for specific performance; is sufficient for disposal of the suit.
3. The following issues were framed by this Court on 14.11.2007:-
“1. Whether document dated 7th December, 2006 titled as ‘Bayana Receipt’ does not constitute an Agreement to Sell? If so, its effect? OPD.
2. Whether the defendants are entitled to forfeit the part payment of Rs.20 lacs as alleged in the written statement? OPD
3. If issue No.1 & 2 are decided in the negative, whether plaintiff is entitled to specific performance of the document dated 7th December, 2006 with all consequential benefits? OPP
4. Relief.”
Issue No.1
4. As stated above the first issue is being decided at the outset inasmuch as only if there is a complete contract in the eyes of law would there arise the issue of grant of specific performance.
5. Let me therefore reproduce, at this stage, the document dated 7.12.2006 which is relied upon by the plaintiff as being a complete contract in the eyes of law i.e the same is an agreement to sell as required by law capable of being specifically enforced by this Court. The original document dated 7.12.2006, Ex.P6/Ex.DW1/X is in vernacular language and I am reproducing the English translation of the same given by the plaintiff since basically there is no dispute that this is the correct English translation of the document dated 7.12.2006, the same reads as under:-
“Bayana Receipt
Date: 7.12.2006
I, Pragya Aggrawal w/o Sh. Manoj Agrawal, resigning at R/o 58A/4 Sainik Farms, New Delhi-110062. I have agreed to sell my plots no.A,B, C,D Local Shopping Centre, Madangir, area is 82.5 meters per plot, altogether 330 meter, approximately 400 guz, to S.N. Mathur, s/o Late Sh. Swarup Narainji Mathur r/o 152/10 Swarup Narain Mathur Marg Civil Lines Ajmer for a total consideration of Rs.6,20,00,000/- (Six crores, twenty lacs), I hereby acknowledge the acceptance of Rs.20 lacs in cash as bayana. The remaining payment of Rs.6 crores shall be paid by 15.2.2007. Instalments towards the same as part payment will be decided as per this agreement on the day of payment of 10% ba
