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Judgment
Rajiv Sahai Endlaw, J.
IA No. 15915/2012 (of M/s. Sanskar Projects & Housing Ltd. for impleadment).
The plaintiffs have sued for specific performance of an Agreement of Sale of immovable property. Though the Agreement to Sell is of the year 2004 and purports to in part performance thereof deliver possession of the property to the plaintiffs but is unregistered. Thus as per Section 17(1A) of the Registration Act, 1908, the benefit of Section 53A of the Transfer of Property Act, 1882 would not be available to the plaintiffs. The applicant claims to have vide Agreement to Sell of the year 2010 agreed to purchase the same property from the ex-wife of the defendant. The applicant also claims to have been put into possession of the property in part performance of the Agreement to Sell. The Agreement relied upon by the applicant also is unregistered.
The plaintiffs as well as the defendant have opposed the application for impleadment by filing replies thereto. However adjournment is sought on behalf of the counsel for the defendant which is denied and the counsel for the plaintiffs and the counsel for the applicant have been heard.
It has been put to the counsel for the plaintiffs as to how the presence of the applicant cannot be said to be necessary and proper in as much as the applicant is also averring a title to the property and as to how any effective relief even if the plaintiffs were to succeed, can be given in the absence of the applicant.
The counsel for the plaintiffs has relied on Kasturi Vs. Iyyamperumal and Others, where a three Judge Bench of the Supreme Court has held that persons seeking addition in a suit for specific performance of a contract for sale, who are not claiming under the defendant but are claiming adversely to the defendant''s title do not fall in any of the categories enumerated in Section 19 of the Specific Relief Act and are neither necessary nor proper parties to the suit. It was further held that the plaintiff, after succeeding in the suit for specific performance, will have to separately sue such persons asserting rights as owner of the property.
The counsel for the plaintiffs herein states that the plaintiffs are not desirous of impleadment of the applicant and even if the applicant has any rights, the plaintiffs are taking the risk of, after succeeding in the present suit, dealing with the applicant qua the property.
Per contra, the counsel for the applicant has relied on Capt. Suresh Gulati Vs. Shri Rajiv Chawla and Others, where a Single Judge relying on the subsequent judgment of the Supreme Court in Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawer (Raj.) Thru Smt. Mankanwar Chordia (Dead) and Others, had allowed impleadment.
It appears that the defendant as well as his ex-wife are both claiming to be the owners of the property.
A perusal of the judgment of the Apex Court in Sumtibai shows the same to be a two Judge Bench judgment and further shows that the issue therein was not of impleadment but of the right of the heirs of the defendant in that suit for specific performance to file an additional written statement. The heirs of the defendant in the additional written statement wanted to plead that the defendant was not the sole owner of the property, the suit for specific performance of sale of which the suit was filed, but they also had a share in the property. Upon Kasturi being relied upon to defeat the right of additional written statement, the Supreme Court made the observations relied upon by the Single Judge in Suresh Gulati supra.
A perusal of the facts in Suresh Gulati also shows that in that case the plaintiff himself had applied for impleadment of a person whom the defendant in that case was pleading to be the owner of the property. It was thus the dominus litis in the suit who was himself seeking a right of impleadment. Here, the position is otherwise.
I fail to see as to how this Bench can differ from the binding precedent in Kasturi which applies on all fours to the facts of the present case. As aforesaid, the factual position in the judgments relied upon by the counsel for the applicant is different.
The application is therefore dismissed.
IA No. 19957/2011 (of the plaintiff u/O 12 R-6).
The plaintiff seeks decree for specific performance on admissions. However a perusal of the written statement shows that it is the plea of the defendant that the Agreement to Sell of which specific performance is sought was got registered exercising undue influence, of which particulars have been stated.
No case for decree on admissions is made out. The application is dismissed.
IA No. 14393/2012 (of the defendant u/s. 151 CPC for dismissal of the suit).
Though the counsel for the defendant seeks adjournment to argue but a perusal of the application shows that dismissal of the suit for specific performance is sought on the ground of the Agreement to Sell containing a clause of the purchaser, in the event of default by the seller, being entitled to double the amount of earnest money paid.
The question is no longer res integra. The Supreme Court in Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, has held that existence of such a clause in the Agreement to Sell is not a bar to specific performance.
The application is accordingly dismissed.
CS(OS) 501/2009.
Though there is an amended written statement dated 6th February, 2012 on record but a perusal of the order sheet does not show the same having been permitted to be filed. The same be taken off from the Part-I file.
On the pleadings of the parties the following issues are framed:-
(i). Whether the Agreement to Sell was got executed from the defendant under undue influence as pleaded? OPD
(ii). If the above issue is decided against the defendant, whether the plaintiff has been ready and willing to perform his part of the Agreement to Sell? OPP
(iii). Whether the discretion implicit in the grant of the relief of specific performance is to be exercised in favour of the plaintiff? OPP
(iv). What is the effect if any of the Clause 12 of the Agreement to Sell? OPPr
(v). Whether the plaintiff had paid earnest money of Rs. 5 lacs to the defendant at the time of Agreement to Sell? OPP
(vi). What is the effect if any of the dishonour of the cheque given for earnest money? OPPr
(vii). Whether the market value of the property at the time of Agreement to Sell was much more than the consideration shown in the Agreement and if so, the effect thereof? OPPr
(ix). Relief.
No order issue arises or is pressed.
The parties to file their list of witnesses within 15 days.
The plaintiffs to file affidavits by way of examination-in-chief of all their witnesses within four weeks. List before the Joint Registrar on 9th May, 2013 for fixing the dates of trial.