Judgment:
Rajiv Sahai Endlaw, J.
1. The application of the plaintiff under Order 12 Rule 6 of the CPC for passing a decree for specific performance of an agreement to sell of immovable property, forthwith is for consideration.
2. The agreement to sell dated 27th February, 2004 of Industrial Shed No. C-25, DSIDC, Industrial Complex, Rohtak Road, Nangloi, New Delhi by the defendant in favour of the plaintiff is not in dispute. As per the said agreement, out of the total agreed sale consideration of Rs. 68 lacs, the plaintiff paid Rs. 12 lacs to the defendant at the time of agreement to sell, a sum of Rs. 25 lacs was agreed to be paid on or before 5th May, 2004 against the defendant handing over the peaceful, vacant and physical possession of the property and executing and registering a deed of sale of the property in favour of the plaintiff and the balance sale consideration of Rs. 31 lacs was agreed to be paid within a period of one year from the date of payment of Rs. 25 lacs, in easy installments on monthly interest at the rate of 1% per month.
3. The plaintiff instituted the suit on 28th September, 2004 on the averments that he on 28th April, 2004 had written to the defendant for completing the sale transaction by 5th May, 2004 failing which the defendant was to pay 1% per month interest on Rs. 12 lacs already paid as well as on Rs. 25 lacs which the plaintiff claimed to have kept in reserve; that on 5th May, 2004 the plaintiff went to the house of the defendant but the defendant was not available; that the plaintiff thereafter went to the office of the sub-Registrar concerned but the defendant did not turn up there also; that the plaintiff in the evening of 5th May 2004 sent a telegram to the defendant for doing the needful; that on 6th May, 2004 a notice was got sent by the plaintiff to the defendant; that on 19th May, 2004 the plaintiff wrote to the police and other authorities; that the defendant met the plaintiff in second week of June, 2004 and orally promised to complete the transaction by 30th June, 2004 on which date the defendant's licencees in the property were stated to be vacating the property; that the defendant, however, still did not fulfill his part of the agreement and threatened to dispose of the property to a third party; that the licencees of the defendant in the property had vacated the property on 23rd July, 2004 but the defendant had still not fulfilled his part of the agreement; that the plaintiff finally got issued notice dated 27th July, 2004 to the defendant but the defendant avoided to receive the same.
4. Vide an ex parte order dated 4th October, 2004, the defendant was restrained from creating any third party interest in the property. The plaintiff could not serve the defendant for 9th February, 2005 and 9th May, 2005. Though the plaintiff applied under Order 5 Rule 20 of the CPC on 18th July, 2005 for substituted service but no orders on the said application were made and the defendant was served at his residential address and appeared before the Court on 16th August, 2005 through counsel.
5. The defendant filed a written statement on 5th October, 2005 and in which the defendant inter alia averred that the plaintiff had instituted the suit to overcome the breach committed by the plaintiff himself; that the plaintiff had not been in a financial position to make payment to the defendant as per the commitment made in the agreement; that the plaintiff had in relation to some other transactions backed out in March, 2004 owing to financial problems; that the plaintiff is a litigant, in the habit of filing frivolous proceedings; that the plaintiff after the execution of the agreement dated 27th February, 2004 had started demanding physical possession of the property prior to making payment of Rs. 25 lacs and execution of the sale deed and which was not in terms of the agreement and was not acceptable to the defendant and the defendant intimated the plaintiff that the defendant will execute the sale deed against payment of Rs. 25 lacs and thereafter deliver vacant possession of the property; that the plaintiff had not been ready and willing to perform his part of the agreement of making payment of Rs. 25 lacs. It was further averred that the plaintiff was to, prior to 1st May, 2004, send to the defendant a draft sale deed for the approval by the advocate of the defendant but the plaintiff in spite of several reminders of the defendant did not send draft sale deed. It was denied that the plaintiff had visited the house of the defendant and it was further stated that in fact it was the defendant who had gone to the Sub- Registrar office and it was denied that the plaintiff reached the Sub-Registrar office. It was further averred that the plaintiff did not even purchase the stamp paper for execution of the sale deed of Rs. 68 lacs. It was further averred that the plaintiff had created false evidence to hide his own breach of failure to pay Rs. 25 lacs. It is further the plea of the defendant that even when the parties met, the plaintiff explained to the defendant his financial difficulty and inability to execute the sale deed immediately. It is stated that the defendant had informed the plaintiff that the defendant could not wait further and had granted time till 15th July, 2004 only to the plaintiff to make the payment but the plaintiff could not abide by the said time also.
6. The defendant while making the aforesaid contest in the written statement, in para D of the preliminary objection stated as under:
D. In any case, the defendant respectfully submits that he is even today willing to honour his contractual commitment. The plaintiff to show his bonafide should be directed to make the balance payment of the contractual amount to the defendant within a period of thirty (30) days along with interest @ 1 % per month, on delayed period. The rate of interest claimed is as per Clause 1 of the Agreement, between the parties.
7. In para 11, it is further stated as under:
The defendant respectfully submits that the plaintiff be called upon to make the balance payment of Rs. 56,00,000/- within a period of fifteen (15) days along with interest @ 1% per month. In case the plaintiff fulfils the said two conditions, then the defendant will execute the Sale Deed in favour of the plaintiff immediately and also hand over vacant physical possession. In case the plaintiff fails to make the payment of the balance amount of Rs. 56,00,000 along with interest 1% with effect from 1st May, 2004 till date, then the defendant should be free to sell the property to any third party. In any case, this commitment on behalf of the defendant demonstrates his bonafide to sell the property to the plaintiff at the same price as committed in February, 2004 when it is a matter of record that by now, that is, September, 2005 the property prices in Delhi have nearly doubled.
The pleas as aforesaid were reiterated in para 13 of the written statement.
8. The plaintiff filed a replication dated 11th November, 2005 wherein the plaintiff generally denied the offer as in the previous paragraphs of the defendant contained in the written statement. The plaintiff denied that he was liable to pay any interest at the rate of 1% per month on the delayed period as alleged and reiterated that there was no breach on his part.
9. On 16th December, 2005, on default of appearance by the advocate for the defendant, the ex parte order dated 4th October, 2004 was confirmed during the pendency of the suit.
10. None appeared on behalf of the plaintiff on 29th March, 2006 and the suit was dismissed for non-prosecution and the interim order vacated. The statement of the counsel for the defendant was recorded that he was prepared to specifically perform the agreement in terms of the agreement. The plaintiff soon thereafter applied for restoration and on 21st August, 2006 the suit was restored to its original position. The plaintiff along with the application for restoration also applied for revival of the interim order and on 26th February, 2007, it was ordered that since with the restoration of the suit interim order also gets revived, the application for the said purpose moved by the plaintiff was infructuous. The plaintiff then filed IA No. 2157/2007 for direction to the defendant to deposit a sum of Rs. 24.03 lacs on account of profits received by the defendant from the premises in dispute from the date of the agreement to sell on wards. The plaintiff also prayed for direction for the defendant to deposit license fee/damages received by the defendant from the occupants of the premises from December, 2006 onwards in this Court. The said application of the plaintiff was dismissed by a detailed order dated 11th September, 2007 and which has attained finality. It was thereafter that in or about February, 2008 that this application under Order 12 Rule 6 of the CPC for a decree for specific performance of an agreement to sell on the basis of the admissions stated to have been made, as set out in paras 6and7 hereinabove, was filed. Though the defendant failed to file reply to the said application in spite of opportunity, the counsel for the defendant orally contested/opposed the application.
11. The counsel for the plaintiff also relies upon admissions contained in the order dated 29th March, 2006 (supra). The plaintiff has in the application stated that he was/is always ready to perform his part of the agreement and was ready to deposit entire balance amount of Rs. 56 lacs in Court in order to perform his part of the agreement. It is also prayed that the defendant should disclose the dues of taxes and other charges in respect to the property and should be directed to clear the same.
12. Under Order 12 Rule 6, where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the court 'may' at any stage of the suit, without waiting for the determination of any other question between the parties make such order or give such judgment as may think fit having regard to such admissions. The events transpiring after the institution of the suit have been set out in detail because the same have relevance to the adjudication of this application.
13. The defendant has in his written statement as well as on 29th March, 2006 definitely stated that the defendant was still ready and willing to perform his part of the agreement. However, a line or a paragraph here or there and without reference to the context cannot be picked for the purposes of a decree under Order 12 Rule 6; of the CPC, the document stated to be containing an admission has to be read as a whole. A meaningful and a reading in entirety of the written statement of the defendant stated to be containing admission on the basis whereof decree is claimed would show that the defendant has seriously contested the readiness and willingness of the plaintiff which under Section 16(c) of the Specific Relief Act, a plaintiff in such suit is statutorily required to aver. Specific performance cannot be enforced in favour of the person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which were to be performed by him. What has to be seen is whether there is an admission by the defendant of the said averment of the plaintiff, so as to dispense with the proof thereof and to enable this Court to, at this Stage only enforce specific performance.
14. A reading of the written statement of the defendant does not show any admission by the defendant of such readiness and willingness of the plaintiff. On the contrary, that is seriously challenged. The plaintiff has given instances of the plaintiff renigating from other purchase of immovable property owing to financial problems, the defendant has called the plaintiff a habitual litigant and has gone to the extent of expressly pleading that in spite of the defendant given time to the plaintiff till 15th July, 2004 to make the payment, the plaintiff could not do so.
15. The defendant has of course made the averments in the written statement as set out in para 11 hereinabove and on the basis whereof the application has been filed. However, the aforesaid averments are not in admission of the readiness and willingness of the plaintiff but in an attempt to call the bluff, allegedly pleaded by the plaintiff. It is the case of the defendant in the written statement that the plaintiff had not been ready and willing and had instituted the suit to cover his own default. It was further the case of the defendant that the plaintiff even then was not ready and willing to perform his part of the agreement. It was in that context that the defendant had pleaded that he was ready and willing subject to the plaintiff within 30 days and at another place it is pleaded within 15, days making the payment along with interest agreed.
16. It is in this light that the events aforesaid during the pendency of the suit become relevant. The so called admissions were made in the written statement filed on 5th October, 2005. The plaintiff immediately on receipt of the written statement did not make any offer to make payments. On the contrary, the plaintiff filed a replication denying the said offer of the defendant. The plaintiff thereafter allowed the suit to be dismissed for non-prosecution. This Court while restoring the suit did not believe the reasons given in the application for restoration but in its inherent jurisdiction restored the suit. Even though the statement of the counsel for the defendant of willingness to sell was recorded even on the date on which the suit was dismissed for non- prosecution and which order was obviously in know of the plaintiff, the plaintiff even while applying for restoration did not state that he accepted the said offer of the defendant. On the contrary, the plaintiff after the restoration of the suit filed and pursued an application for recovery of monies from the defendant and for deposit of earnings of the defendant from the property in this Court and which plea of the plaintiff was misconceived in the light of pronouncement of this Court in Jiwan Dass Rawal v. Narain Dass AIR 1981 Delhi 291. That application of the plaintiff did not find favour with this Court also and was dismissed as aforesaid.
17. It was only thereafter that the application under consideration was filed nearly 2' years after the filing of the written statement and two years after the statement of the counsel for the defendant recorded on 29th March, 2006.
18. The Apex Court in Jugraj Singh v. Labh Singh AIR 1995 SC 945 has held that the readiness and willingness of the plaintiff has to continue till the date of the judgment and decree. Though, in Ram Awadh v. Achhaibar Dubey : [2000]1SCR566 , Jugraj Singh (Supra) was over ruled, but on another aspect and in fact the part of readiness and willingness of plaintiff in a suit for specific performance, till decree was restated. Thereafter in Kumar Dhirendra Mullick v. Tivoli Park Apartments Pvt. Ltd. : (2005)9SCC262 it was reiterated that even after court has passed decree for specific performance, contract between the parties is not extinguished and if it is found that the decree holder is not ready and willing to abide by his obligations under the decree, the agreement/contract can still be rescinded by the court.
19. I find that the statement in the written statement on the basis whereof decree under Order 12 Rule 6 is sought were not in admission of the averments of fact of readiness and willingness of the plaintiff but were in the nature of a counter offer by the defendant. The defendant did not admit the case of the plaintiff but so as to establish his defence made a counter offer. The said counter officer was not an open offer but was limited in time of 30 days of 15 days from the date of filing the written statement. It was open to the plaintiff to accept the said counter offer in terms thereof. However, the plaintiff failed to do so. Moreover as aforesaid, the conduct of the defendant, prima facie, does not show the readiness and willingness of the plaintiff during the pendency of the suit. However, the same shall be subject to finding in trial. All that can be said at this stage is that there is no admission on the basis whereof the plaintiff has become entitled to a decree for specific performance.
20. There is yet another aspect of the matter. The plaintiff has in application offered to deposit the entire balance amount of Rs. 56 lacs only in this Court. The Counsel for the plaintiff has during arguments on inquiry stated that the plaintiff is now willing to buy the property with tenants and is also willing to deposit interest in terms of the agreement in this Court, subject to the decision of this Court.
21. In this regard, it has to be noticed that as per the agreement of the parties besides Rs. 12 lacs already paid, the plaintiff was to pay Rs. 25 lacs at the time of possession and sale deed and was to pay the balance Rs. 31 lacs with interest @ 1% per month within one year. Why such an unusual agreement was entered into is to be found during trial. However, one thing which is clear is that the plaintiff was to pay interest @ 1% per month on Rs. 31 lacs. The plaintiff has, however, not offered to pay the same in the application also or during arguments. This offer of the plaintiff even now is not in terms of the agreement.
22. Though in the facts aforesaid, no reference to any pronouncement on order 12 Rule 6 CPC is necessary but I may notice a dicta of the Division Bench of this Court in Raj Kumar Chawla v. Lucas Indian Services 2006 VI AD (Delhi) 166 laying down principles of applicability of Order 12 Rule 6 of the CPC.
23. Following the aforesaid dicta and in the facts and circumstances discussed above, I do not find the plaintiff to have become entitled to a decree for specific performance forthwith. The application is dismissed with conditional costs of Rs. 10,000/- payable to the counsel for the defendant.