Transfer of Property Act, 1882 — Sections 52 & 53-A — Claiming ownership right — Neither execution of sale deed nor proof acquiring possession

February 20th, 2013

Transfer of Property Act, 1882 — Sections 52 & 53-A — Claiming ownership right — Neither execution of sale deed nor proof acquiring possession — Entitlement of possession of plaintiff — Agreement to purchase four flats — Possession of three flats handed over to plaintiff — Suit for possession of flat no. 6D with alternative relief of money decree as cost of disputed flat and mesne profits and damages — Held, once there is no registered sale deed in favour of the plaintiff and the plaintiff has failed to even make averment in terms of Section 53-A, therefore, the plaintiff cannot get any relief on the basis of ownership or Section 53-A — No proof of handing over possession of disputed flat to plaintiff — The defendant nos. 3 and 4 had purchased rights in disputed flat under agreement — Plaintiff therefore not entitled to possession of disputed flat from defendant nos. 3 and 4 — Since plaintiff is not entitled to possession of flat, the plaintiff is not entitled to any mesne profit and damages — However, plaintiff is entitled to a money decree with respect to 85% price of flat paid by him to defendant nos. 1 and 2 after deducting 15% of unpaid price of other three flats — Ordered accordingly — Civil Procedure Code, 1908 — Order 7 Rule 7.

HELD: The plaintiff seeks to take benefit of Section 53-A and averments have been made in the plaint. Let us examine as to whether the requirements of Section 53-A have been satisfied by the plaintiff in the facts of the present case. As the discussion hereafter will show that not only the plaintiff has failed to prove the ingredients of Section 53-A, but in fact the plaintiff has found to have made deliberate false statement. The first requirement of Section 53-A is that the proposed buyer such as the plaintiff must aver that it has wholly performed its obligations or it has partly performed its obligations and is willing to perform the balance obligations. The only obligation upon the plaintiff was to pay the price. Whereas the plaint makes an averment that the total agreed price is paid, counsel for the plaintiff today admits and does not dispute that it has come in the evidence that the plaintiff/bank has only paid 85% of the price and not the complete price for all the four flats. The averments made by the plaintiff therefore made in para 4 of the plaint of having paid the agreed price is a deliberate false statement. Therefore, not only has the plaintiff failed to make the averment with respect to the willingness to perform its part of the contract, but it has made a deliberate false statement that it has paid the agreed price whereas balance 15% of the price is still payable.

Therefore, the plaintiff having failed to aver and prove the requirements of Section 53-A cannot have benefit of doctrine of part performance so as to claim back possession of the disputed flat from defendant nos. 3 and 4.

One vital ingredient of the provision of Section 53-A of the Transfer of Property Act is that the plaintiff should have been put in possession pursuant to the agreement Ex.PW1/1. Whereas the case of the plaintiff is that it was put in possession, the defendant nos. 3 and 4 dispute this fact. Let us now therefore examine the aspect as to whether the plaintiff has succeeded in proving that the plaintiff had received possession of the disputed flat no. 6D from the defendant nos. 1 and 2.

There are further two other important facts which lead me to conclude that the flat no. 6D was not in possession of the plaintiff/bank. The first aspect is that if the plaintiff was really in possession of this flat, surely, it would have applied for mutation of this flat no. 6D with the municipal authorities, or at least given an intimation to the municipal authorities with regard to possession of this flat inasmuch as, mutation was sought for of the other three flats in favour of the plaintiff. It was not difficult for the plaintiff/bank to have filed documents to show that it has applied to the municipal authorities for mutation of disputed flat in its name however, I find that the plaintiff has deliberately not filed such document, leading one to the conclusion that the plaintiff/bank was not in possession of flat no. 6D. The second aspect to show that the plaintiff/bank was not in possession of the fourth flat no. 6D, whereas the three other flats taken under the agreement Ex. PW1/1, is that specifically this flat was never allotted by the plaintiff/bank at any time to any of its officers. Therefore, on balance of probabilities I hold that plaintiff/bank never came in actual physical possession of the disputed flat no. 6D. If the plaintiff/bank was in actual physical possession of flat no. 6D, clearly the plaintiff/bank will not be entitled to benefit of doctrine of lis pendens contained in Section 52 of the Transfer of Property Act, Issue nos. 2 to 5 are therefore decided by holding that plaintiff was never in possession of flat no. 6D and therefore, there did not arise any question of surrendering of the possession of the flat no. 6D back to the builders-defendant nos. 1 & 2. The defendant nos.3 and 4 had purchased rights in the disputed flat no. 6D under the agreements dated 26.6.1990 Ex. DW1/1 and Ex. DW1/3 dated 10.8.1990. The plaintiff is therefore, not entitled to possession of the disputed flat from the defendant nos. 3 and 4.

Once issue nos. 2 to 5 are decided in favour of the defendant nos. 3 and 4, the defendant nos. 3 and 4 would not be liable to pay any damages to the plaintiff. The issue then arises is whether defendant nos. 1 and 2 will be liable to pay damages as claimed by the plaintiff. In a suit such as the present really the damages, if any, payable to the plaintiff would be the difference in the market price of the flat on the date of the breach. The plaintiff was bound to show the market price of the disputed flat no. 6D on the date of the breach i.e. when alleged illegal possession was taken as per the plaintiff in July, 1993. This price has to be proved to be higher than the value of the flat as found in Ex.PW1/1 dated 29.11.1989. Damages are always granted on or around the date of breach. The plaintiff, I note has miserably failed to show the value of the flat no. 6D on the date of the alleged breach i.e. in July, 1993. Plaintiff has filed valuation of certain flats to show the value of the flat in July, 1996 i.e. more than 3 years later, but this evidence, being the valuation report, is legally irrelevant.

Since the plaintiff is not entitled to possession of the flat, the plaintiff is also not entitled to any mesne profits.

The issue which next arises is that, can this Court grant a lesser relief to the plaintiff than as prayed for by applying Order 7 Rule 7 CPC. Though this aspect has not been argued on behalf of the plaintiff before me, however, I invoke my powers under Order 7 Rule 7 CPC and pass a money decree with respect to 85% of the price of the flat no. 6D paid by the plaintiff to the defendant nos. 1 and 2. This 85% price of the flat no. 6D as per the counsel for the plaintiff is Rs.20,70,000/-. I would ordinarily decree the suit of the plaintiff/bank against the defendant nos. 1 and 2 for a sum of Rs. 20,70,000/-, however, from this value of Rs. 20,70,000/- the defendant nos. 1 and 2 will be held entitled to adjustment of 15% of the unpaid price of the flats 3B, 7C and 7D, being the three other flats which were agreed to be purchased vide Ex.PW1/1 dated 29.11.1989 (and admittedly with respect to which flats plaintiff is enjoying ownership and possession rights), inasmuch as only 85% of the prices of these flats have been paid by the plaintiff to the defendant nos. 1 and 2. The total 15% for each of the three flats totals to Rs.11,40,000/- (as given by the counsel for the plaintiff) and therefore, this amount is liable to be reduced from the figure of Rs. 20,70,000/-. The plaintiff therefore will be entitled to a money decree against defendant nos. 1 and 2 for a sum of Rs. 9,30,000/-. The plaintiff will also be entitled to interest at 12% per annum simple pendente lite and future till payment on this amount of Rs. 9,30,000/- against defendant nos. 1 and 2.

In view of the above discussion, suit of the plaintiff against the defendants is dismissed so far as the relief of possession of Flat no. 6D, 10, Mandi House, Bhagwan Dass Road, New Delhi is concerned. The suit for damages of the plaintiff against defendant nos. 1 and 2 is also dismissed. The suit of the plaintiff for mesne profits is also dismissed against the defendants. The plaintiff will however be entitled to money decree for a sum of Rs. 9,30,000/- along with interest thereon pendente lite and future till payment at 12% per annum against the defendant nos. 1 and 2 till realization. Parties are left to bear their own costs. Decree sheet be prepared.

Indian Bank v. Taj World Fame Builders, CS (OS) 1214/1996(29/08/2012), 2012(132) DRJ 162 [Valmiki J. Mehta, J.]

Entry Filed under: Judgements,Property Laws