Judgment:
* (i) IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: July 21, 2017 + CS(OS) 277/2007 RAJIV GUPTA AND ANR. ..... Plaintiffs Through: Mr. Sanjiv Narula, Mr. Abhishek versus Singh, Mr. Saad Shervani Ms. Sudipa Gupta and Mr. Puskar Prechar, Advocates J K KASHYAP J.K. KASHYAP Through: Mr. M. Dutta, Advocate ..... Defendant CS(OS) 2156/2007 Through: Mr. M. Dutta, Advocate ..... Plaintiff (ii) + versus ....Defendants RAJIV GUPTA AND ORS CORAM: HON'BLE MR. JUSTICE SUNIL GAUR Through: Mr. Sanjiv Narula, Mr. Abhishek Singh, Mr. Saad Shervani Ms. Sudipa Gupta and Mr. Puskar Prechar, Advocates % (ORAL) JUDGMENT In the above captioned first suit, decree of possession in respect of suit property and the damages of `13.50 lacs has been claimed by Mr. Rajiv Gupta and his sister from J.K.Kashyap on account of unauthorised CS(OS) 277 & 2156 of 2007 Page 1 of 14 possession of basement, and ground floor of property No.1/14, Shanti Niketan, New Delhi as shown in red colour in the site plan filed along with the plaint and also pendente lite damages @ `5000/- per day. Mr. Rajiv Gupta has further claimed travel expenses of `2 lacs which he had incurred to travel from USA to India and back, to execute the sale deed in pursuance to the Memorandum to Sell of 31st January, 2005. In the above-captioned second suit, J.K. Kashyap has sought specific performance of aforesaid Memorandum to Sell of 31st January, 2005 in respect of half of the subject property and also a formal deed of partition to enable registration of sale deed in respect of suit property. The undisputed facts highlighted by learned counsel for the parties are as under: - One Shri Chandra Prakash Gupta who was the original owner of half portion of the property bearing No.1/14, Shanti Niketan, New Delhi – 110021 (hereinafter referred to as the “suit property”) measuring 600 Sq. Yds., died on 02/01/2000 leaving behind his last will and testament dated 09/03/1995, whereby he bequeathed all his rights, title and interests in the said suit property jointly to Rajiv Gupta and Mrs Chitra Mehta, Defendant No.1 and Defendant No.2 respectively in Suit No.2156/2007. Thus both of them became co-owners of the suit property. The other half portion of the above- mentioned property belongs to N.P. Gupta, defendant No.3 in this suit, who is the uncle of defendant No.1 and 2. Vide Memorandum to Sell dated 31.1.2005, Rajiv Gupta and Chitra Mehta agreed to sell the suit property to J.K. Kashyap, plaintiff in Suit No.2156/2007, for a sale CS(OS) 277 & 2156 of 2007 Page 2 of 14 the time of entering consideration of ` 4.80 crores. He paid ` 50 lakhs to them at into above mentioned memorandum of sale. The remaining sale consideration of ` 4.30 crores was to be paid at the time of completion of sale. He later paid ` 45 Lakhs to Smt Jamila Gupta, step mother of defendants Nos. 1 & 2, vide agreement dated 18th February 2005, and took possession of ground floor and basement of suit property from her. lakhs towards damages CS(OS) No.277/2007 has been filed by Rajiv Gupta and Mrs Chitra Mehta against J.K. Kashyap, seeking recovery of `13.5 for unauthorized use and occupation of the basement and ground floor of the suit property as well as possession of the aforesaid portions. While admitting execution of the Memorandum of Sale dated 31.01.2005 in favour of J.K. Kashyap and receipt of ` 50 lakhs from him, they alleged that since he failed to pay the balance sale consideration of ` 3.80 crores and get the sale deed executed by the last date stipulated in the Memorandum of Sale, there was a breach of the contract on his part. It has also been alleged by them that delivery of the possession of the basement and ground floor by Smt. Jamila Gupta to him also was subject to compliance of all the terms and conditions contained in the Memorandum of Sale dated 31.01.2005 and since he had defaulted in complying with those terms and conditions, he was liable to return the possession of the aforesaid portions to them. In CS(OS) No.2156/2007, plaintiff Shri J.K. Kashyap has sought specific performance of the Agreement to Sell dated 31.01.2005 from Rajiv Gupta and Mrs Chitra Mehta, who are defendant Nos. 1 and 2 in the suit filed by him. Mr. N.P. Gupta, who has no right, CS(OS) 277 & 2156 of 2007 Page 3 of 14 title or interest in the property subject matter of the agreement, but is the co-owner of the other half of property No.1/14, Shanti Niketen has been impleaded as defendant No.3 in the suit. In the above-captioned first suit, vide order of 3rd October, 2007 following issues were framed: - Whether the plaintiffs validly terminated the “(i) Whether the defendant failed to carry out his obligations under the Memorandum to Sell dated 31.1.2005?. OPP (ii) said Memorandum to Sell dated 31.1.2005?. OPP (iii) Whether the plaintiffs are entitled to the possession of the basement and ground floor of the suit property?. OPP to (iv) damages for unauthorised occupation and use of the basement and ground floor?. If so, the extent thereof?. OPP (v) the plaintiffs are entitled the defendant Whether from Relief."
Upon consolidation, in the above-captioned second suit, vide order of 8th August, 2011, the following two additional issues were framed: - "(i) Whether the plaintiff in Suit No.2156/2007 is entitled to specific performance of the Memorandum to Sell dated 31st January 2005?. OPP (ii) payable Whether the balance sale consideration the the defendants terms of to in CS(OS) 277 & 2156 of 2007 Page 4 of 14 Memorandum to Sell dated 31st January 2005 comes to Rs.2.80 Crores as alleged in the plaint?. OPP Apart from his own evidence, J.K. Kashyap has got examined Smt. Jamila Gupta and her son-Shabi-Ul-Hasan, who were occupying the basement and ground floor of the subject premises. On the other hand, Rajiv Gupta alone has deposed in support of his case. No other evidence has been led by either side. In the evidence led, the basic document i.e. Memorandum to Sell of 31st January, 2005 has been exhibited as Ex.P-1. The two Memorandums of Understanding (Ex.P-2 & P-3) of same date i.e. 18th February, 2005 were entered upon between J.K. Kashyap and Smt. Jamila Gupta. Memorandum of Understanding (Ex.P-2) was in respect of demand draft of `11 lacs received by her from J.K. Kashyap and second Memorandum of Understanding (Ex.P-3) of same date is in respect of cash payment of `34 lacs, which was received by Smt. Jamila Gupta from J.K. Kashyap. In partial execution of the Memorandum to Sell (Ex.P-1), another Memorandum of Understanding (Ex.DW1/2) of same date i.e. 18th February, 2005 was executed by Smt. Jamila Gupta in token of her receiving the compensation in lieu of vacating the basement and ground floor of the suit property. By this Memorandum of Understanding (Ex.DW1/2), Smt. Jamila Gupta and her son had given up their right to occupy the portion of the subject premises as referred to above. Though there is no dispute about the title of Rajiv Gupta and his sister in respect of suit property, but the original Conveyance Deed of 1st September, 2005 executed by DDA in favour of Rajiv Gupta and his CS(OS) 277 & 2156 of 2007 Page 5 of 14 sister is exhibited as Ex.P-4 and by this document, the suit property was converted from lease-hold to free-hold. The original receipts of payment totalling to `1.44 crores received by Rajiv Gupta and his sister from J.K.Kashyap are on record as Ex.P-5 to P-8. According to Rajiv Gupta and his sister, the balance amount which was payable by J.K. Kashyap in the year 2005 was `3.36 crores, which has not been paid till date. Relevantly, Memorandum to Sell (Ex.P-1) contains forfeiture clause and as per Rajiv Gupta and his sister, the earnest money of `50 lacs received by them stands forfeited as J.K. Kashyap has failed to make the balance payment to enable Rajiv Gupta and his sister to execute the sale deed. The pivotal stand of Rajiv Gupta and his sister is that more than `1 crore is liable to be paid by J.K.Kashyap as damages on account of unauthorized possession of basement and ground floor of the suit property and so, the amount over and above `50 lacs received by Rajiv Gupta and his sister is liable to be adjusted against the outstanding damages and mesne profits. Whereas, the precise stand of J.K.Kashyap is that out of the total sale consideration of `4.80 crores, substantial amount of `2.08 crores has been already paid by J.K. Kashyap to Rajiv Gupta and his sister and J.K. Kashyap has been always ready and willing to pay the balance amount, but the Memorandum to Sell was illegally terminated by Rajiv Gupta and his sister vide legal notice of 12th December, 2005 (Ex.P-16). With the consent of learned counsel for the parties, above titled two suits have been heard together and are being decided by this common judgment. CS(OS) 277 & 2156 of 2007 Page 6 of 14 Learned counsel for J.K. Kashyap vehemently contends that the readiness and willingness of J.K. Kashyap to perform his part of obligation under the Memorandum to Sell cannot be doubted because he had got the property converted from lease-hold to free-hold and had also made substantial payment to Smt. Jamila Gupta and his son, to get the basement and ground floor of the suit property vacated, which needs to be adjusted. Lastly, it is submitted that J.K. Kashyap has been always ready to pay the rest of the outstanding amount, but due to termination of Memorandum to Sell, the balance payment could not be made. On the other hand, learned counsel for Rajiv Gupta and his sister submits that the Memorandum to Sell of 31st January, 2005 is specific and unambiguous qua the liability of J.K. Kashyap to get the basement and ground floor of the subject premises vacated upon payment of money, which though not specified in the Memorandum to Sell (Ex.P-1), but the said amount is not in dispute and has been spelt out in the subsequent Memorandums of Understanding (Ex.P-2 and P-3). Thus, it is submitted that `45 lacs paid by J.K. Kashyap to the unauthorized occupants i.e. Smt. Jamila Gupta and her son, is not liable to be adjusted against the sale consideration and that J.K. Kashyap never had the means to pay the balance of the entire sale consideration and so, J.
K. Kashyap's suit for specific performance of Memorandum to Sell (Ex.P-1) must fail. It is pointed out by learned counsel for Rajiv Gupta and his sister that the Notice terminating the Memorandum to Sell was responded to by J.K. Kashyap vide reply of 21st December, 2005 (Ex.P-18) wherein, apart from claim of set off, J.K. Kashyap had sought Deed of Partition about CS(OS) 277 & 2156 of 2007 Page 7 of 14 which there is no dispute. So, it is submitted on behalf of Rajiv Gupta and his sister that J.K. Kashyap's suit for specific performance deserves to be outrightly dismissed and the suit by Rajiv Gupta and his sister for possession of the suit premises ought to be decreed alongwith damages for the unauthorized use and occupation of the suit premises. Upon hearing and on scrutiny of the evidence on record and the documents relied upon by both the sides, I find that in the Memorandum to Sell of 31st January, 2005 (Ex.P-1), it is clearly stated as under: - "The Basement and Ground Floor is presently occupied by Mrs.Jamila Gupta, second wife of Late Shri C.P.Gupta, her son, daughter-in-law, daughter, son-in-law and their family. The Vendee has agreed to take exclusive responsibility of getting the vacant possession of the Basement and Ground Floor from the aforesaid occupants. The Vendee has, also agreed to bear all the expenses and the monetary consideration to be paid to Mrs. Jamila Gupta/Occupants (her son, daughter-in-law, daughter, son- in-law and their family) for obtaining the vacant possession of the Basement and Ground Floor of the said property and for fulfilling the condition imposed upon Shri Rajiv Gupta by Late Shri C. P. Gupta in respect of Smt. Jamila Gupta in his Will dated 9.03.1995. Further, the Vendee assures the Vendor the amount mentioned hereinabove, the Vendee shall obtain from Mrs. Jamila Gupta/Occupants a valid receipt of the monetary consideration paid to them, proof that all charges, bills, penalties and fines for electricity etc. related to the Basement and Ground Floor have been paid and a Memorandum of Understanding from Smt. Jamila Gupta/occupants relinquishing their rights, interests and that on payment of CS(OS) 277 & 2156 of 2007 Page 8 of 14 claim in respect of the said property and the movable and immovable assets as mentioned in the Will dated 9.03.1995 of late Shri C. P. Gupta. The possession of the Ground Floor and the Basement shall remain with the Vendee subject to execution of all terms and conditions as witnessed in this memorandum."
During the course of hearing, learned counsel for Rajiv Gupta and his sister had asserted that Rajiv Gupta and his sister have received `1.44 crores only. To show that J.K. Kashyap had paid `2.08 crores odd to Rajiv Gupta and his sister, it was pointed out by learned counsel for J.K. Kashyap that over and above `1.44 crores, `45 lacs paid by J.K. Kashyap to Smt. Jamila Gupta and her son and the conversion charges of `17.60 lacs paid by J.K.Kashyap ought to be adjusted towards the payment due and the payment of `2 lacs made by J.K. Kashyap to Rajiv Gupta for his travel to and fro from USA to India for facilitating the execution of the sale deed also needs to be adjusted towards the sale consideration. The emphasis of learned counsel for J.K. Kashyap is that in the Memorandums of Understanding (Ex.P-2 & P-3), both of 18th February, 2005, it is clearly mentioned that payment of `45 lacs made by J.K. Kashyap to Smt. Jamila Gupta was part of the total sale consideration as envisaged in the Memorandum to Sell of 31st January, 2005. Attention of this Court is also drawn to cross-examination of Rajiv Gupta to point out that he has categorically admitted in the cross- examination that the payment of `45 lacs made by J.K. Kashyap to Smt. Jamila Gupta was part of the Memorandum to Sell and was included in CS(OS) 277 & 2156 of 2007 Page 9 of 14 the net sale consideration of `4.80 crores. It was also pointed out by learned counsel for J.K. Kashyap that Rajiv Gupta in his cross- examination has not denied the Memorandums of Understanding (Ex.P-2 & P-3) wherein it was clearly spelt out that the payments made by J.K. Kashyap to Smt. Jamila Gupta and his son were part of the sale consideration. To prove the readiness and willingness, J.K. Kashyap has placed on record his bank statement (Ex.PW1/77) to show that he had enough money to pay the balance of the sale consideration i.e. `2.80 crores. To show the capacity to pay the balance sale consideration, attention of this Court was also drawn to property documents (Ex.PW1/78). In a suit for specific performance, plaintiff has to prove the validity of Sale Agreement, breach of said Agreement by defendant and readiness and willingness of plaintiff to perform his part of the Sale Agreement. It has been so reiterated by Supreme Court in Man Kaur (Dead) by LRs. V. Hartar Singh Sangha, (2010) 10 SCC512 As the issues framed in both the suits are overlapping, so all the issues are taken up together for decision. The core issue which covers the other ancillary issues is whether J.K. Kashyap is entitled to specific performance of Memorandum to Sell of 31st January, 2005 (Ex.P-1). To seek specific performance of Agreement to Sell, it has to be primarily seen that the Agreement to Sell is validly executed. In the instant case, there is no dispute that the Memorandum to Sell of 31st January, 2005 (Ex.P-1) is clear, specific and unambiguous and is a validly executed document. Now, it has to be seen as to who had committed breach of CS(OS) 277 & 2156 of 2007 Page 10 of 14 Memorandum to Sell of 31st January, 2005 (Ex.P-1). As noted hereinabove, Memorandum to Sell of 31st January, 2005 (Ex.P-1) clearly provides that the monetary compensation has to be paid by J.K.Kashyap to Smt. Jamila Gupta and her family, who were occupying the basement and ground floor of subject property. Merely because a stray line has come in the cross-examination of Rajiv Gupta that payment of `45 lacs made by J.K. Kashyap to Smt. Jamila Gupta and her family was part of Memorandum to Sell and was included in the net price, would not justify an inference that the failure to perform the Memorandum to Sell was on the part of Rajiv Gupta. It is settled legal position that oral evidence in the face of documentary evidence is not to be preferred except when it is shown to be vitiated by fraud. In this regard, Section 92 of the Indian Evidence Act, 1872 can be referred to with advantage. It is not the case of J.K. Kashyap that his case falls in any of the Provisos to Section 92 of the Indian Evidence Act, 1872. In fact, the failure to perform the obligations under the Memorandum to Sell of 31st January, 2005 (Ex.P-1) is on the part of J.K.Kashyap as he is the one, who had raked up the issue of adjustment of `45 lacs paid by him to Smt. Jamila Gupta whereas as per the Memorandum to Sell of 31st January, 2005 (Ex.P-1) the said amount was not liable to be adjusted. The subsequent Memorandums of Understanding (Ex.P-2 & Ex-P-3) do not bind Rajiv Gupta, nor has he been confronted with these Memorandums of Understanding and so, they are of no avail to defeat the claim of Rajiv Gupta. Upon scrutiny of entire evidence on record, this Court is of the CS(OS) 277 & 2156 of 2007 Page 11 of 14 considered opinion that the breach of Memorandum to Sell of 31st January, 2005 (Ex.P-1) was on the part of J.K. Kashyap. Such a view is reinforced from the fact that the readiness and willingness to perform the Memorandum to Sell of 31st January, 2005 (Ex.P-1) was lacking on part of J.K. Kashyap. It is so said because to show the readiness and willingness, J.K. Kashyap has relied upon the bank statement (Ex.PW- 1/77) which reveals that his bank balance upto September, 2005 was insufficient to pay balance sale consideration. Pertinently, J.K. Kashyap was called upon by Mr. Rajiv Gupta to execute the sale-deed vide letter of 28th November, 2005 (Ex.P-14). It is pertinent to note that upon receipt of the aforesaid letter, J.K. Kashyap had, for the first time, frivolously sought Registered Partition Deed alongwith sanctioned building plans. The evidence on record is lacking regarding J.K. Kashyap having the bank balance of `3.36 crores in November, 2005 and about his readiness to immediately dispose of immovable property in his possession. The conduct of J.K. Kashyap clearly shows that he had no intention to perform the Memorandum to Sell of 31st January, 2005 (Ex.P-1), which was rightly cancelled by Rajiv Gupta. From the evidence on record, it becomes abundantly clear that J.K. Kashyap had paid `1.44 crores out of sale consideration of `4.80 crores. As noted hereinabove, Memorandum to Sell (Ex.P-1) contains forfeiture clause and as per Rajiv Gupta and his sister, the earnest money of `50 lacs received by them stands forfeited as J.K. Kashyap has failed to make the balance payment to enable Rajiv Gupta and his sister to execute the sale deed. So far as balance payment of `94 lacs received by Rajiv Gupta CS(OS) 277 & 2156 of 2007 Page 12 of 14 is concerned, I find that it is liable to be adjusted towards damages, which Rajiv Gupta is entitled to on account of unauthorized occupation of basement and ground floor. Such a view is being taken while keeping in view the prevalent rentals in the area for the period in question. As already held above, the amount of `17.60 lacs spent by J.K.Kashyap to get the property converted from lease-hold to free-hold and the amount of `45 lacs paid by him to Smt. Jamila Gupta and the travel expenses of Rajiv Gupta purportedly footed by J.K. Kashyap are not liable to be adjusted. Infact, the balance sale consideration, which was payable by J.K. Kashyap to Rajiv Gupta was `3.36 crores and not `2.80 crores as claimed by J.K.Kashyap. The evidence on record persuades this Court to hold so and that there was no readiness and willingness on part of J.K. Kashyap to pay the balance of the sale consideration to Rajiv Gupta. Insofar as the claim of Rajiv Gupta and his sister for a decree of pendent lite and future damages @ `5,000/- per day or `1,50,000/- per month on account of unauthorized occupation of basement and ground floor is concerned, I find that there is no tangible evidence to justify payment of damages as sought. However, in the facts and circumstances of this case, I deem it appropriate to grant consolidated damages to the tune of `94 lacs for the unauthorized occupation of basement and ground floor of subject premises during the pendency of the suit, till its vacant physical possession is restored to Rajiv Gupta and his sister. In view of aforesaid, the first three issues originally framed in the above-captioned first suit on 3rd October, 2007 are answered in favour of CS(OS) 277 & 2156 of 2007 Page 13 of 14 Rajiv Gupta and against J.K. Kashyap and the fourth issue is partly answered in favour of Rajiv Gupta in light of the findings returned in the preceding paragraphs. Accordingly, it is held that J.K.Kashyap had failed to carry out his obligation under Memorandum to Sell of 31st January, 2005 (Ex.P-1) and that Rajiv Gupta had validly terminated the Memorandum to Sell of 31st January, 2005 (Ex.P-1). Consequentially, the two additional issues framed in the above-captioned second suit are answered against J.K. Kashyap and in favour of Rajiv Gupta by holding that the balance sale consideration payable by J.K. Kashyap to Rajiv Gupta was `3.36 crores and not `2.80 crores. Thus, it is held that J.K. Kashyap is not entitled to specific performance of the Memorandum to Sell of 31st January, 2005 (Ex.P-1) and as a consequence thereof, it is held that Rajiv Gupta and his sister are entitled to vacant physical possession of basement and ground floor of the suit property forthwith. While answering the aforesaid issues, the suit of Rajiv Gupta and his sister is hereby decreed and the suit of J.K. Kashyap is accordingly dismissed while leaving the parties to bear their own costs. Decree-sheet for vacant physical possession of basement and ground floor in favour of Rajiv Gupta and his sister be promptly drawn. Both the suits are accordingly disposed of. JULY21 2017 s CS(OS) 277 & 2156 of 2007 (SUNIL GAUR) JUDGE Page 14 of 14