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2008 DAILYLAW 1299 (DEL)

Avtar Singh Narula v. Dharambir Sahni

2008-05-28

Madan B Lokur, Manmohan Singh

body2008
Judgement MANMOHAN SINGH, J. :- This is an appeal preferred by the appellants (Defendants in CS (OS) No. 1890/2006) against the order of the learned Single Judge dated 25th March, 2008 dismissing the application filed by the appellants being I. A. No. 4827/2007 seeking rejection of plaint under O. 7, R. 11 of the Civil Procedure Code (CPC). 2. Briefly stated the facts of the case are that Shri Sajjan Singh was lessee of shop No. 57, Khan Market, New Delhi, the lessor being the Land and Development Officer (L and DO). Shri Sajjan Singh, executed a registered Will dated 25th June, 1964 at Bangkok bequeathing the above said property in favour of his son Shri Avtar Singh Narula, appellant No. 1. Appellant No. 2, Surender Singh Manchanda is an attorney of appellant No. 1. Shri Sajjan Singh died on 11th April, 1966 and left behind two more sons and a daughter besides appellant No. 1/Shri Avtar Singh Narula. 3. Appellant No. 2 on the basis of power of attorney entered into an agreement to sell dated 25th March, 2004 of property bearing Shop No. 57-B situated at Khan Market, New Delhi measuring 59.5 sq. yds. (hereinafter referred to as suit property) with the respondents for a sum of Rs. 50 lakhs, and respondents paid Rs. 2.50 lakhs by cheque and Rs. 2.50 lakhs in cash to the appellants as initial payment. As per the agreement to sell a further sum of Rs. 20 lakhs was to be paid by the respondents to the appellants within two months from the date of mutation of the said property in the name of appellant No. 1. The balance sum of Rs. 25 lakhs was to be paid by the respondents to the appellants at the time of execution of the regular sale deed after obtaining sale permission from the L and DO. The relevant clauses 2 and 7 of the agreement to sell are reproduced below : "Clause 2 A further sum of Rs. Twenty Five Lakhs will be paid by the Second party (i.e plaintiffs) to the attorney of the First Party (i.e. defendant No. 2) within two months from the date of mutation of aforesaid property in the record of L and DO in the name of S. Avtar Singh Narula, for which the First Parry (defendant No. 2) has already applied. The balance sum of Rs. The balance sum of Rs. 25 lakhs (figures scratched) will be paid by the Second Party (Plaintiffs) to the attorney of the First Party at the time of execution of the registration of regular sale deed after obtaining the permission in respect of sale." "Clause 7 "That in case the mutation of aforesaid property is not sanctioned by the Land and Development Office, Nirman Bhavan, in the name of S. Avtar Singh Narual due to any reason within sixty days then the bargain/ agreement shall stand cancelled and the attorney of the first party will be liable to return the advance amount of Rs. 5,00,000/-(Rs. Five lakhs) only to the second party immediately within seven days from the date this fact comes to the notice and then this agreement will be destroyed in the presence of both the parties." 4. In the suit filed by the respondents, it was stated that a legal notice dated 2nd September, 2006 issued by Shri K. C. Bajaj, Advocate for the appellants sought to rescind and cancel the agreement to sell dated 25th March, 2004 relying on clause 7 of the agreement to sell. Along with the said notice, the appellants also returned two demand drafts for a sum of Rs. 2.5 lakhs each. 5. It was alleged by the respondents that the appellants cannot unilaterally cancel the agreement to sell without informing the respondents, the appellants are trying to sell the suit property to somebody else at a higher price and trying to wriggle out of their contractual obligations. It is the appellants who have failed to perform their part of contractual obligations in not obtaining the mutation of the suit property from the L and DO or sanction for permission for sale from L and DO. 6. It is also stated by the respondents that they were always ready and willing to perform their part of the contractual obligations and were always in a position to arrange the balance sale consideration of Rs. 45 lakhs. The respondents have not encashed two demand drafts of Rs. 2.5 lakhs each sent by the appellants along with notice dated 2nd September, 2006. On these broad allegations, the suit was filed for seeking permanent injunction and specific performance of agreement to sell dated 25th March, 2004. 7. 45 lakhs. The respondents have not encashed two demand drafts of Rs. 2.5 lakhs each sent by the appellants along with notice dated 2nd September, 2006. On these broad allegations, the suit was filed for seeking permanent injunction and specific performance of agreement to sell dated 25th March, 2004. 7. An application was filed by the appellants under O. 7, R. 11, C. P. C. with the prayer that the plaint of the plaintiff be rejected as it does not disclose a cause of action in favour of the plaintiff to file the present suit and one of the pleas of the appellants was that suit of the respondents is not maintainable in view of clauses 2 and 7 of the agreement. 8. The appellants sought rejection of the plaint on the grounds that on the date of filing of the suit there was no cause of action in favour of the plaintiffs as there was no concluded agreement between the parties in view of clause 7 of the agreement; the agreement was void under Section 20 of Contract Act as both the parties were under a bilateral mistake of fact that appellant No. 1 had a clear title to the suit property and was therefore competent to transfer the same whereas at the time of agreement he had no title to the suit property and the plaintiff could not seek performance of the agreement in view of the provision of Sections 13 and 17 of the Specific Relief Act, 1963. 9. The application was resisted by the respondents, who contended that the plaint cannot be rejected on the ground of obtaining of probate certificate, as it is a mere formality. The very purpose of filing of the present suit for specific performance by the respondents shows that the respondents till this date are ready and willing to perform their part of contract. Also the mutation of the suit property within stipulated time in favour of the respondents was the appellants' responsibility. The provisions of Sections 13 and 17 of the Specific Relief Act, 1963 do not even prima facie apply to the present case, as it is beyond doubt that the appellants are the absolute owners of the suit property. 10. Also the mutation of the suit property within stipulated time in favour of the respondents was the appellants' responsibility. The provisions of Sections 13 and 17 of the Specific Relief Act, 1963 do not even prima facie apply to the present case, as it is beyond doubt that the appellants are the absolute owners of the suit property. 10. On the basis of the averments made in the pleadings and in the application under O. 7, R. 11, C. P. C., the learned Single Judge by an order dated 25th March, 2008 has come to the conclusion that the plaint cannot be rejected under O. 7, R. 11. It is against this order that the present appeal is preferred by the appellants. The point that arises for consideration in the appeal before us is whether the order passed by the learned Single Judge rejecting the application filed under O. 7, R. 11, C. P. C. is correct or it requires any interference or not. 11. The learned Single Judge while rejecting the application of the appellants held that Section 17 of the Specific Relief Act, 1963 applies only when specific performance to sell any immovable property is sought by the Vendor. This Section has no application when the specific performance of an agreement to sell is asked by the Vendee. Furthermore, the rigors of Section 17 would apply in case the vendor would have no title to the property which he has contracted to sell to the vendee. In the present case, appellant No. 1 on whose behalf agreement to sell was executed by appellant No. 2 became owner of the suit property under the registered Will dated 25th June, 1964 of his late father Shri Sajjan Singh who expired on 11th April, 1968. 12. The learned Judge further observed that : "A reading of the agreement to sell dated 25-3-2004 of which specific performance is sought by the plaintiffs in the present suit would show that mutation of the suit property in the record of the L and DO was to be got done by the defendants themselves and they cannot take advantage of their own default in not getting the property mutated in the record of the L and DO within the time period stipulated in the said agreement. This question of breach cannot be ascertained in the absence of evidence of the parties on this aspect of the matter." 13. It is settled law that the provisions of O. 7, R. 11 are procedural and they are designed and aimed at preventing vexatious and frivolous litigations. The power of rejecting the plaint has to be exercised by Courts sparingly and cautiously and the Court has jurisdiction, in a proper case, to reject the plaint. While rejecting a plaint, the Court has to confine itself only to the averments made in the plaint and is not supposed to look into the defence taken up by a defendant and the Court may not even examine or declare upon the correctness of the contents or otherwise, of the plaint. However, if after examination of the plaint and documents filed by the plaintiff, the Court finds that the suit is not maintainable, it must reject the plaint under the said provision. 14. In the present case, in hand, the position is otherwise as we find that the following are admitted position between the parties :- (a) That the execution of agreement is not denied by the appellants. (b) That it was for the appellants to obtain the sanction from L and DO for mutation of property in the name of appellant No. 1 which is not obtained within the stipulated time as provided in the agreement to sell. (c) That the respondent No. 1 was always ready and willing to pay the balance amount as per the terms and conditions of the agreement. (d) That there was a cause of action for the plaintiff to approach the Court for specific relief. 15. In view of the abovesaid circumstances, we are of the view that there is a valid reason for filing the suit and there are triable issues involved wherein evidence of the party is required. Hence the contention of the appellants cannot be accepted. Thus, the application of the appellants under O. VII, R. 11, C. P. C. was not maintainable and order passed by the learned Single Judge is sustained. 16. There is no force in the appeal and the same is liable to be dismissed. No costs. Appeal dismissed.