KADEER AHMED vs ZISHAN ZAMA KHAN & ANR.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 21st March, 2024
+ CS(OS) 125/2019, I.A. 3152/2019, I.A. 14020/2019, I.A. 228/2023
KADEER AHMED ….. Plaintiff
Through: Counsel for plaintiff.

versus

ZISHAN ZAMA KHAN & ANR. ….. Defendants
Through: Mr. Abhinay, Ms. Parul Khurana and Ms. Kirti Vyas, Advocates for D1.
Mr. Suresh Sharma, Advocate for D2.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
1. The plaintiff has filed a Suit for (i) Specific Performance of an Agreement of Sale dated 08.02.2016, in respect of the immovable property; and in the alternative, for refund of Rs.80,00,000/- paid with interest; (ii) recovery of Possession of plot ad measuring 550 sq. yds. forming part of Khasra No.642 Min, Madanpur Khadar, Tehsil Kalkaji, Sarita Vihar, New Delhi-110076, as shown in the site plan and (iii) for recovery of flat at 4th Floor with terrace right ad measuring 25 sq. yds. consisting of one bedroom, one kitchen, one toilet and bathroom, one lobby without parking forming part of Khasra No.377, property bearing no.F-145A, Shaheen Bagh, Abul Fazal, Part-II, Jamia Nagar, New Delhi; and in the alternative, for recovery of Rs.2,25,00,000/- along with interest 18% p.a. against the defendant No.1 aside from seeking Permanent Injunction, in respect of the three properties.
2. According to the plaint, the property in respect of which Specific Performance of Agreement to Sell is claimed, is asserted to be owned by defendant No. 2, who had agreed to sell it to the plaintiff through the defendant No. 1 being his Authorized Representative for the sale consideration of Rs.2,25,00,000/-. Part payment of 80,00,000/- is stated to have been paid while the balance sale consideration is claimed to have been paid by transfer of two immovable properties, located at Sarita Vihar and Jamia Nagar, belonging to the plaintiff, to defendant No. 1.
3. At the time of institution of the Suit, this Court had observed in Order dated 13.03.2019 as under:
“4. According to the plaint, the property, specific performance of Agreement of Sale whereof is claimed, is owned by the defendant no.2. It is the case of the plaintiff, that the defendant no.l had agreed to sell the same to the plaintiff as authorised representative of the defendant no.2. The plaintiff however, nowhere in the plaint has disclosed the authority of the defendant no.l to agree to sell the property of the defendant no.2 and has not filed any document also in this regard. Moreover, out of the part sale consideration claimed to have been paid of Rs.2,25,00,000/-, save for Rs.80,00,000/-, the balance sale consideration is pleaded to have been paid by transfer of two immovable properties aforesaid at Sarita Vihar and Jamia Nagar, of the plaintiff. However the said properties also have been transferred, as per the documents filed, to the defendant no. l and not to the defendant no.2. It is not understandable as to why, in payment of part sale consideration for the property of defendant No. 2, transfer of two of the aforesaid properties would be made to the defendant no. l and not to the defendant no.2.

5…….The senior counsel for the plaintiff, on enquiry, under instructions states that the plaintiff has subsequently learnt that the defendant no.l had misrepresented to the plaintiff that the defendant no.l was authorised by the defendant no.2.

6. However it is not so pleaded in the plaint. Moreover, even if it is so, the claim of the plaintiff can only be against the defendant no. l and not against defendant no.2.

7. The senior counsel for the plaintiff, on enquiry, under instructions states that the plaintiff confines the claim in this suit, to against the defendant no. l only and gives up the claim insofar as against the defendant no.2.

8. Observing that the plaintiff in such a situation needs to file a clearer plaint, I commenced dictating this order. After more than half order was dictated, the senior counsel for the plaintiff states that he is now instructed to state that the plaintiff will find a Power of Attorney executed by the defendant no.2 in favour of the defendant no. 1.

9. The argument earlier made, of misrepresentation, and the statement now made, of the plaintiff being able to file the Power of Attorney from defendant no.2 to the defendant no.l, are self-contradictory and such flip-flop on the part of plaintiff does not inspire confidence.”

5. This Court had thus, noted that the suit property was claimed to be owned by the defendant No. 2 but the Agreement to Sell in favour of the plaintiff was executed by defendant No. 1 alleging to be the Authorized Representative of defendant No. 2, but no authority whatsoever was initially placed on record. Moreover, it was also observed that the balance sale consideration by way of two properties, was also made allegedly by the plaintiff to the defendant No. 1, without disclosing how he had the authority to enter into these Agreements To Sell.
6. Learned Senior Counsel on enquiry, under instructions had stated that the plaintiff had subsequently come to know that the defendant No. 1 had unauthorizedly represented himself as that he was authorized by the defendant No.2. However, there was no such fact mentioned in the plaint and he subsequently changed the stand and claimed that Power of Attorney had been executed by the defendant No. 2 in favour of the defendant No. 1. It was observed by this Court that contradictory pleas were being set-up by the plaintiff. Learned Senior Advocate on behalf of the plaintiff had thus, sought to confine his reliefs in the Suit against the defendant No. 1. The matter was thereafter, listed for consideration on the request of the learned counsel for the plaintiff.
7. Thereafter, the application bearing I.A. No. 5772/2019 under Order VI Rule 17 CPC has been filed on behalf of the plaintiff along with some documents but eventually, this application was withdrawn on 31.07.2019. Thereafter, the present application bearing I.A. No. 14020/2019 under Order VI Rule 17 CPC, has again been filed by the plaintiff, seeking to correct the defects as was noted in the Order dated 13.03.2019 and 23.04.2019.
8. By way of this amendment application, the plaintiff intends to assert that the defendants are joint owners of the suit property for which reliance is placed on the Judgment and Decree dated 08.09.2014, passed by this Court in CS(OS) No. 1873/2012. Further, the defendant No. 2 vide Power of Attorney dated 18.12.2015, had authorised defendant No. 1, to deal with his undivided equal share in the property on the basis of which defendant No. 1 had entered into the Agreement to Sell, in respect of the suit property measuring 300 sq. yds. The plaintiff seeks to add by way of amendment, that the defendant No. 1 had informed the plaintiff that the suit property belonged to defendant No. 1 and defendant No 2 and special Power of Attorney was executed in favour of defendant No. 1, making him competent to deal with the suit property.
9. Before considering the amendment application, it is pertinent to consider whether the plaint discloses any cause of action.
10. According to the plaintiff, he had entered into an Agreement to Sell dated 08.02.2016, for purchase of the property ad measuring 300 sq.yds. Madanpur Khadar, Tehsil Kalkaji, Sarita Vihar, New Delhi-110076, for a total sale consideration of 4,20,00,000/-.
11. Before even going into the Agreement to Sell, a pointed question has been put to learned counsel for the defendant Nos. 1 and 2 as well as to the plaintiff, to show the documents of title in favour of the defendant No. 1 and 2, to establish their locus in the first place to enter into an Agreement to Sell. The plaintiff was also pointedly asked to show the documents of title in respect of the suit property for which he was seeking execution of the Sale Deed pursuant to the Specific Performance of Agreement to Sell.
12. The only document of title that the plaintiff has been able to produce is the settlement arrived at inter se the defendants No. 1 & 2 in CS(OS) 1873/2012. It was a Suit for Specific Performance of Contract in respect of Suit property, Permanent and Mandatory Injunction filed by defendant Nos. 1 and 2 as the plaintiffs against some defendants, wherein the parties arrived at an inter se settlement, according to which the defendants in the said Suit, agreed to sell 400 sq. yds. of suit property for a given sale consideration.
13. The defendant Nos. 1 and 2 as well as the plaintiff, are relying on the said Judgment recording the Settlement inter se the defendants, to assert that they have a title in the suit property. The Settlement recorded vide Order dated 28.09.2014 entered by the defendant Nos. 1 and 2 with other parties, only is in respect of the Agreement to Sell for a given sale consideration and merely because parties have entered into an Agreement to Sell does not confer any title on them sans any Title documents; Agreement to Sell is only for execution of the requisite sale documents.
14. The said Settlement reads as under:
“4. A composite settlement has been arrived at between the parties. The plaintiffs and defendants no. l to 3 settled the matter before Delhi High Court-Mediation and Conciliation Centre. As per the said settlement, Defendants no. l to 3 agreed to sell 400 sq. yards of the suit property to the plaintiffs, for a total sale consideration of Rs.2.51 crores, out of which Rs.55.00 lakhs stand paid by plaintiffs and duly acknowledged by defendants no. l to 3. It is also agreed that out of the total sale consideration deposited by the plaintiffs with the Registrar General of this Court, Rs.1.00 crore shall be released in favour of defendants no.l to 3 and the balance Rs.96.00 lalchs shall be paid by the plaintiffs to defendants no.l to,3 in the following agreed manner:

(i) Rs.21.00 lakhs within thirty days from today;
(ii) Rs.75.00 lakhs within six months from today.

5. Defendants no. l to 3 will hand over vacant possession of the 400 sq. yards of the property in question to the plaintiffs on receipt of Rs. 1.00 crore.

6. In case, payment is not made by the plaintiffs to defendants no. l to 3, possession of 400 sq. yards shall be handed back to defendants no. l to 3 by the plaintiffs.

7. Defendants no. l to 3 have no objection if the plaintiffs carry out construction over the suit land, however, it is made clear that no special equities will flow in favour of the plaintiffs, however, the plaintiffs shall not sell the property in question to any third party till the final payment is made.

8. Simultaneously, the plaintiffs have also entered into a settlement with defendants no.5 to 9 with regard to 600 sq. yards of the property in question. This part of the settlement, as agreed, is as under:
(i) The plaintiffs shall pay Rs.5.40 crores to the defendants no.5 to 9. Out of Rs.5.40 crores, Rs.20.00 lakhs already stand paid to defendants no.5 to 9 on 28.8.2014 i.e. at the time of settlement before Delhi High Court Mediation and Conciliation Centre;

(ii) Out of Rs.2.30 crores, Rs.57.00 lakhs shall be released to defendants no. l to 3 and the balance Rs.i.73 crores or any other figure (as interest would have accrued on the initial deposit of Rs.2.85 crores), shall be release in favour of defendants no.5 to 9. After deduction of 1.73 crores, amount, if any, shall be released to Mr. Mohd. .Ashhar, Attorney of plaintiff).

(iii) Balance amount of Rs.2.90 crores or such other amount, which remains to be paid out of Rs.5.40 crores, shall be paid by the plaintiffs to defendants no.5 to 9 within six months from the date of settlement before the Mediation Centre.

(iv)Possession of 600 sq. yards shall be handed over to the plaintiffs on receipt of Rs. 1.73 crores.

(v) Defendants no . l to 3 shall hand over and execute all the title documents or any other document with respect to 600 sq. yards of the property to defendants no.5 to 9 on receiving the balance sum of Rs.57.00 lakhs i.e. full and final payment from the Registry and thereafter defendants no. 5 to 9 shall hand over and execute all the title documents or any other document in favour of the plaintiffs on receiving full and final payment i.e. 5.40 crores.

(vi) In case, payment is not made by the plaintiffs to defendants no.5 to 9, possession of 600 sq. yards shall be handed back to defendants no.5 to 9 by the plaintiffs.

(vii) Defendants no.5 to 9 have no objection if the plaintiffs carry out construction over the suit land, however, it is made clear that no special equities will flow in favour of the plaintiffs. In addition to that, the plaintiffs shall not sale out the property in question to any third party till the final payment is made.”

15. Though the said Order dated 29.08.2014, records the settlement in respect of Agreement To Sell, there is not a single document by way of the Sale Deed or a title document, till date filed by either of the parties in favour of the defendants. The Agreement to Sell does not confer any ownership unless the Conveyance Deed is executed, as has been held in the Case of Jiwan Dass Rawal vs. Narain Dass; AIR 1981 Del 291; Satish Kapoor vs. Ishwari Assudani, 2012 SCC OnLine DEL 1808 (DB) and Sunil Kapoor vs. Himmat Singh, (2010) 167 DLT 806 and also in the celebrated Judgments of Suraj Lamps and Industries (P) Ltd. v. State of Haryana, (2012)1 SCC 656.
16. Without even going into the controversy of whether the Agreement to Sell dated 08.02.2016, which is the subject matter of the present suit, was executed by defendant No. 1 as the owner or as an authorized representative of defendant No. 2, or whether the defendant No. 1 had an authority to enter into any Agreement to Sell for and on behalf of himself as well as the defendant No. 2, the only pertinent question is where are the Conveyance Deed/Title documents, in respect of the suit property.
17. Neither the plaintiff nor the defendants are able to explain the chain of title documents. Their claims are based purely on Agreement to Sell, without even disclosing about who at some point of time, may have been the original owner.
18. Learned counsel for the plaintiff on specific query, has even today not been able to produce or even explain about existence of any title document. In the absence of any title document showing the ownership of the defendants or any other person in the suit property, there is no question of any Suit for Specific Performance being maintainable, purely on inchoate documents in the nature of Agreement to Sell and Receipt. The present Suit fails to disclose any cause of action in respect of the Specific Performance of Contract.
19. The plaintiff has also sought in the alternative, Recovery of Rs.2,25,00,000/-, which had been paid by him under the Memorandum of Understanding (MOU) dated 04.04.2016. However, the plaintiff himself has placed on record a cheque dated 08.02.2019 in the sum of Rs.2,25,00,000/- issued by defendant No. 2, in favour of the plaintiff, thereby reflecting that any amount that may have been paid by the plaintiff, stands returned.
20. There is no cause of action disclosed in the present Suit and the proposed amendments would also not introduce any cause of action. The plaint fails to disclose any cause of action. Thus, the amendment application is dismissed.
21. Also, the Suit does not disclose any cause of action and is hereby, rejected.

(NEENA BANSAL KRISHNA)
JUDGE
MARCH 21, 2024/RS

CS(OS) 125/2019 Page 1 of 9