Sh. K.L. Sethi Vs. Sh. S. Kishan Singh - Court Judgment

Excerpt:
- - 3. prima facie finding this weakness in the case of the plaintiff, while confirming the interim order restraining the defendant from dealing with the property, condition was imposed on the plaintiff to file undertaking to the court in the form of affidavit, to, in the event of failing in his suit, make good to the defendant, the loss caused to the defendant by injunction restraining the defendant from dealing with his property. the result is that the plaintiff, even if unsuccessful, goes scot free. the courts, even after finding the claim to be prima facie not made out and to be vexatious and specious, cannot be silent spectators and allow their process to be abused and ought to ensure that the loss occasioned to other party is made good in the same proceedings.rajiv sahai endlaw, j.1. the plaintiff seeks modification of the order dated 6th april, 2009 to the extent directing the plaintiff to furnish undertaking to this court to, in the event of failing in his case for specific performance, pay to the defendant the difference of the admitted agreed price of rs. 1,82,50,000/- and rs. 2.50 crores which was disclosed by the counsel for the plaintiff himself on 6th april, 2009 to be the present market value of the property. 2. the said order was made because in this case, the plaintiff, out of agreed sale consideration of rs. 1,82,50,000/- has paid only rs. 10 lacs to the defendant. the written agreement to sell dated 4th july, 2007 provides that the balance rs. 1,72,50,000/- shall be paid by the plaintiff to the defendant within 90 days of 4th july, 2007; that the defendant shall execute sale deed/document in favour of the plaintiff at the time of receiving full consideration and also deliver vacant, peaceful, physical possession of property and title documents of property. it is also a term of the agreement that if the defendant does not pay the balance consideration, then earnest money of rs. 10 lacs shall be forfeited and agreement stand cancelled. admittedly the balance sale consideration was not paid within 90 days; according to the plaintiff because the defendant did not get freehold conversion and according to the defendant because the plaintiff had no money. there is no term in the agreement to sell requiring the defendant to get free hold conversion before receiving balance consideration. execution of sale deed or other document at the time of receiving balance consideration was envisaged. prima facie it appears that had freehold conversion had taken place within 90 days, sale deed would have been executed and if not, other documents which could be executed even without such conversion.3. prima facie finding this weakness in the case of the plaintiff, while confirming the interim order restraining the defendant from dealing with the property, condition was imposed on the plaintiff to file undertaking to the court in the form of affidavit, to, in the event of failing in his suit, make good to the defendant, the loss caused to the defendant by injunction restraining the defendant from dealing with his property.4. it has been held by this court in delhi automobile ltd. v. economy sales : 55(1994)dlt39 that the court while granting interim orders can impose conditions on party seeking the same. 5. in fact, even in absence of such injunction, owing to applicability of section 52 of transfer of property act, the defendant will not be able to freely deal with his property, owing to mere pendency of this suit.6. the disposal of such suits takes long. it is thus felt that in cases where the plaintiff is prima facie not found entitled to the relief of specific performance, but at the same time, owing to procedure prescribed for disposal thereof, it cannot be dismissed summarily, provision should be made for compensating the defendant for loss caused by the plaintiff, by mere filing and pendency of such suit. the measure of damages adopted in this case is the loss to the defendant for being unable to sell at price prevailing today. the defendant in a given case may be requiring to urgently sell his property for other requirements of money for business or personal. the signing of an agreement to sell becomes necessary as purchaser cannot be expected to arrange for monies and spend money on stamp paper for sale deed without certainty of seller being bound. however, it is often found that property brokers and investors, posing as purchaser enter into agreements, with no intention to pay the balance sale consideration within the time stipulated and merely to find an actual buyer and to take advantage of the general trend of increase in prices. the sole motive of such persons is to, by entering into agreement, prevent the seller from selling to others, freeze the price and to profiteer from same. the hard reality is that the sellers, even if the agreement provides that the same shall stand cancelled, on non-payment are unable to sell to others even after default by purchaser; for others do not want to purchase a property with potential litigation. 7. the defendant cannot be compelled to institute separate proceedings for recovery of losses suffered owing to an action of the plaintiff which on trial is found to be false. the measure of damages in the present case was on the basis of the difference in the agreement price and the prevalent prices as per the plaintiff himself. without the undertaking specifying quantum of damages, it would be vague and unenforceable. on the contrary, if damages are left to be computed in a separate proceeding, experience shows that the defendant, after contesting suit for specific performance for long, rarely institutes proceedings for recovery of damages. it would be too cumbersome to ask the defendant to do so. the result is that the plaintiff, even if unsuccessful, goes scot free. often, the sellers, if unable to contest for long will be coerced into settling with such plaintiff, to their prejudice and disadvantage.8. justice cannot be the casualty in the game of litigation. the courts, even after finding the claim to be prima facie not made out and to be vexatious and specious, cannot be silent spectators and allow their process to be abused and ought to ensure that the loss occasioned to other party is made good in the same proceedings. mere costs of litigation are not enough. 9. the apex court in s.p. chengalvaraya naidu v. jaganath has already noticed that property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely.10. imposition of such condition on a plaintiff in another suit for specific performance, by this court has already been upheld by the division bench in order dated 27th january, 2009 in fao (os) no. 19/2009.11. in the circumstances, no case is found for modification/recall as prayed. the application is dismissed.