* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 2nd April, 2014.

+ CS(OS) 127/2012 & IA No.958/2012 (u/O 39 R-1&2 CPC)

H.K. CHHABRA ..... Plaintiff Through: Mr. Kuldeep Kumar, Adv.

Versus

MANMEET KAUR ...Defendant Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The present suit has been instituted by the plaintiff praying for specific performance of an Agreement to Sell dated 26.05.2010, or in the alternative, for compensation of Rs. 1 Crore, pleading:

(I) that the plaintiff and one Sh. Subhash Dhingra were business partners and owners of property bearing No. 43, Samrat Enclave, Pitampura, in the ratio of 40% and 60% respectively, vide a registered Sale Deed dated 18.01.2010 executed in their favor by Smt. Gurdeep Kaur and Pradeep Kaur;

(II) that subsequently the plaintiff and his partner Sh. Subhash Dhingra sold the aforesaid property to the defendant for a total sale consideration of Rs.48,00,000/- vide a registered Sale Deed dated 29.05.2010;

(III) that thereafter the plaintiff agreed to purchase back from the defendant, the first floor (without roof rights) of the aforesaid property (hereinafter referred to as the suit property) for a total consideration amount of Rs.50,00,000/- and the parties executed the Agreement to Sell dated 26.05.2010 for the said purpose;

(IV) that as per the said Agreement to Sell, the defendant received a sum of Rs.30,00,000/- from the plaintiff as earnest money amount, with the balance being payable at the time of handing over possession of the suit property by the defendant to the plaintiff and execution of sale/transfer documents with regard thereto;

(V) that though the defendant had promised to hand over possession of the suit property upon its construction, which was to be completed within a year, the defendant did not even commence the construction of the first floor and had not even got the building plan sanctioned from the MCD for the said purpose till the time of institution of the suit;

(VI) that 19 months had lapsed since the Agreement to Sell was executed between the parties and the defendant had all along deliberately avoided performance of his obligations under the same;

(VII) that the plaintiff is ready and willing to pay the remaining amount of Rs.20,00,000/- but the defendant is not willing to transfer the suit property in favor of the plaintiff;

(VIII) that on 27.07.2011, the defendant along with her husband Sh. Surjit Singh, in response to a legal notice dated 26.07.2011 got sent by the plaintiff calling upon them to perform their obligations under the contract, agreed to register the Sale Deed by 01.08.2011 and requested the plaintiff to tender the balance payment of Rs.18,00,000/- (at a concession of Rs.2,00,000/- for delay) with the assurance that the cheques so issued for the said purpose would not be presented by them prior to execution of Sale Deed;

(IX) that however the plaintiff was shocked to learn that the cheques so issued by him and one Sh. Jagdish Singh (a relative of the plaintiff) for Rs.10,00,000/- & Rs.8,00,000/- respectively in favour of the plaintiff, had been presented for payment before the agreed date and been dishonored on account of insufficient funds;

(X) that when the plaintiff attempted to bring up the said matter with the defendant, she harassed and intimidated him with the threat that she would put him behind bars under a forged case of cheating;

(XI) that the plaintiff thus filed a Criminal Compliant under Section 200 of the Cr.P.C. against the defendant and her associates, and which is pending disposal before Ms. Manika Sehrawat, MM, New Delhi.

2. Summons of the suit were issued and upon non-appearance of the defendant, the defendant was proceeded ex-parte on 23.02.2012.

3. The plaintiff has led his ex-parte evidence by examining himself as the sole witness. The contents of the affidavit filed by the plaintiff in evidence are a reiteration of the averments in the plaint culled out above. The plaintiff, in addition, has tendered the following documents in evidence to support his case:

• I. Photocopy of Sale Deed dated 18.01.2010 in favor of the plaintiff and his partner, exhibited as PW1/1;

• II. Photocopy of Sale Deed dated 28.05.2010 executed by the plaintiff and his partner in favor of the defendant, exhibited as PW1/2;

• III. Original Agreement to Sell dated 26.05.2010 between the plaintiff and the defendant along with receipt of payment executed by the defendant for Rs.30,00,000/-, exhibited as PW1/3 (Colly.);

• IV. Copy of Legal Notice dated 26.07.2011 sent to the defendant along with postal receipts thereof, exhibited as PW1/4, PW1/4A and PW1/4B respectively;

• V. Original Bank Statement of the plaintiff from 01.07.2011 to 29.07.2011 to evidence the presentation and dishonor of two cheques of Rs.10,00,000/- and Rs.8,00,000/-; exhibited as PW1/5;

• VI. Complaint dated 30.07.2011 addressed to the Station House Officer, Police Station Hauz Khas, exhibited as PW1/6, and;

• VII. Compliant dated 30.07.2011 addressed to the D.C.P/A.C.P, Economic Offences Wing, exhibited as PW1/6A.

4. When the matter was listed for ex-parte hearing on 01.11.2013, this Court adjourned the matter directing the plaintiff to satisfy it regarding whether a decree for specific performance can be granted with respect to a first floor, when no construction at all has been raised by the defendant on the plot in question and there is no first floor in existence. The plaintiff, to address the query posed by this Court, relies on Canara Bank Vs. K.L. Rajgariha 157 (2009) DLT 344, Silvey Vs. Arun Varghese AIR 2008 SC 1568 and M.K. Sehgal Vs. Mohinder Kaur MANU/DE/8651/2006. However, a perusal of the judgments reveals that none of them bear any relevance to the issue flagged by this Court on 01.11.2013. I may also notice that Canara Bank supra has been overruled vide judgment dated 08.05.2012 of the Division Bench of this Court in RFA(OS) NO.47/2009 titled K.L. Rajgarhia Vs. Canara Bank, though S.L.P. No.26205/2012 thereagainst stands granted.

5. The Agreement to Sell dated 26.05.2010, of which specific performance is sought, simply provides for sale of the suit property for a consideration of Rs.50,00,000/- and records that the "second party (plaintiff) shall pay balance amount of Rs.20,00,000/- to the first party (defendant) at the time of completion of construction work and handing over the possession of the complete constructed property under sale to the second party (plaintiff)". There are no other terms or details in the Agreement pertaining to the nature, extent or scale of such "construction work" to be undertaken for bringing into existence the suit property agreed to be sold. The Agreement also fails to specifically mention the party on whom the responsibility of construction and obtaining necessary sanctions/approvals therefor would rest or the time frame within which the construction is to be completed (though the plaintiff has pleaded that the defendant had agreed to hand over the suit property within a year, there is no mention of the same in the Agreement). In fact, the Agreement does not even record whether the land upon which the suit property was to be constructed was vacant or if there was already any construction thereupon.

6. In my opinion, an agreement bereft of such vital particulars, even if assumed to be not attracting Section 29 of the Indian Contract Act, 1872 which renders such agreements void for uncertainty, definitely cannot be permitted specific enforcement.

7. It is to be noted that though Section 14(3)(c) of the Specific Relief Act, 1963 empowers the Courts to grant enforcement of any contract which entails the construction of any building or the execution of any other work on land, but the proviso thereto stipulates that for the Courts to exercise such power, such building or other work must be described in the contract in terms sufficiently precise to enable the Court to determine the exact nature of the building or work.

8. It is evident that the Agreement to Sell dated 26.05.2010 is woefully short of details or particulars to enable this Court to even vaguely determine the nature of the building or work, if any, which is required to be undertaken to bring the suit property into existence. The prayer for specific performance therefore has to be necessarily refused.

9. The plaintiff has in the alternative sought compensation of Rs.1 crore on account of increase in the price of the suit property. However, no evidence has been led to support such a claim. Though the Agreement to Sell dated 26.05.2010 also permits the plaintiff, in the event of breach by the defendant, "to recover the double amount of earnest money", but the plaintiff has not placed any reliance on the said clause for award of the compensation sought and further even such a clause for payment of a liquidated sum requires some proof of damages (see my judgment in Praveen Oberoi Vs. Raj Kumari MANU/DE/0056/2014). In such circumstances, the plaintiff cannot be held to be entitled to anything more than refund of the amount already advanced under the Agreement, and the receipt of which by the defendant stands proved as Exhibit PW1/3. The rate of interest accompanying repayment however shall be a notch above the prevailing market rate to factor in any damages flowing from increase in property prices in the interregnum. I may also notice that though the plaintiff has made a claim for Rs.1 crore but has neither valued the suit for the said relief nor paid any court fees thereon.

10. The plaintiff is accordingly permitted recovery of Rs.30,00,000/- paid as earnest money under the Agreement to Sell along with interest from the date of such payment viz. 26.05.2010 till realization of the amount, at 14% per annum. The plaintiff shall also be entitled to costs of the suit with the counsel"s fees quantified at Rs.15,000/-.

Decree Sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

APRIL 02, 2014. aa