Delhi District Court
Savita Bhatia vs Ms Sheena Company on 17 January, 2025
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Suit No. 16803/2016
Suit No. 16756/2016
IN THE COURT OF SH. DIVYANG THAKUR, LD. DJ-03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suits No: 16803/2016 and 16756/2016
CNR Nos. : DLSW01-000141-2011 and DLSW01-000468-2013
Memo of Parties in CS No. 16803/2016
1. M/s Sheena and Company (Firm)
Through its Partner
Smt. Meera Batra W/o Sh. Arun Batra
R/o E-20, Defence Colony, New Delhi
2. Smt. Neena Paruthi
W/o Sh. Suresh Paruthi
R/o Z-32, Hauz Khas,
New Delhi
3. Smt. Anju Grover
W/o Sh. Sanjay Grover
R/o B-5, Housing Society
N.D.S.E. Part I
New Delhi
........Plaintiffs
Versus
1. Smt. Savita Bhatia, Widow
2. Mr. Abhishek Bhatia, Son
3. Miss Chetsa Bhatia, Daughter
Legal heirs of late Sh. Rajeev Bhatia
R/o Back portion, 2nd floor flat,
(front terrace above 2nd floor)
81, Poorvi Marg, Vasant Vihar, New Delhi
.........Defendants
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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Suit No. 16756/2016
Memo of Parties in CS No. 16756/2016
1. Smt. Savita Bhatia, Widow
2. Mr. Abhishek Bhatia, Son
3. Miss Chetsa Bhatia, Daughter
Legal heirs of late Sh. Rajeev Bhatia
R/o Back portion, 2nd floor flat,
(front terrace above 2nd floor)
81, Poorvi Marg, Vasant Vihar, New Delhi
.........Plaintiffs
Versus
1. M/s Sheena and Company ( A Partnership Firm)
E-20, Defence Colony, New Delhi
2. Smt. Neena Paruthi
W/o Sh. Suresh Paruthi
R/o Z-32, Hauz Khas,
New Delhi
3. Smt. Anju Grover
W/o Sh. Sanjay Grover
R/o B-5, Housing Society
N.D.S.E. Part I
New Delhi
4. Mrs. Meera Batra
W/o Mr. Arun Batra
R/o E-20, Defence Colony, New Delhi
5. Mrs. Veena Chaudhary
W/o Mr. Vinod Chaudhary
R/o B-5, Housing Society,
N.D.S.E. Part 1, New Delhi
.........Defendants
Date Of Institution: 06.07.2011 / 03.01.2013
Date Of Final Arguments: 08.10.2024
Date Of Decision: 17.01.2025
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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Suit No. 16803/2016
Suit No. 16756/2016
Suit For Possession Of Immovable Property, Eviction,
Compensation And Recovery Of Mesne Profits With Interest /
Suit For Specific Performance And Permanent Injunction
JUDGMENT
BRIEF BACKGROUND OF THE LITIGATION
1. Vide present common judgment, I would decide two suits
namely suit filed by M/s Sheena Company against Smt. Savita
Bhatia which was originally filed before the Ld. Additional
District Judge, Dwarka Courts and numbered as suit no.
232/2011 and titled as ‘M/s Sheena Company Vs. Savita Bhatia
and Anr.’ and the suit filed by Smt. Savita Bhatia against M/s
Sheena Company which was also originally filed before the Ld.
Additional District Judge, Dwarka Courts and numbered as CS
04/2013 and titled as ‘Smt. Savita Bhatia and Ors. Vs. M/s
Sheena Company and Ors.’ Thereafter, to avoid the possibility of
conflicting findings, both the suits were clubbed and tried
together. Thereafter, both the suits have been tried in accordance
with law and the said trial has resulted in the present common
judgment in both the suits.
2. To avoid confusion and for the sake of clarity, the parties
have been referred to by their name throughout the present
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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judgment.
Plaint Of The Civil Suit 16803/2016
3. The Plaintiffs have filed the present suit against the
Defendants seeking (a) a decree of eviction with respect to the
premises being (i) back portion, 2 nd floor flat and (ii) front side
terrace above 2nd floor of building no. 81, Poorvi Marg, Vasant
Vihar, New Delhi; (b) a decree for payment of compensation of
Rs. 5,00,000/- and unpaid arrears of three years mesne profits of
Rs. 7,20,000/- and (c) temporary injunction with respect to the
aforesaid premises and (d) costs of the suit.
4. In the plaint of this suit, the Plaintiff has pleaded that the
Plaintiffs are the owners of immovable property i.e. 2 nd floor
(back portion) flat + front terrace (above 2 nd floor) of building at
81, Poorvi Marg, Vasant Vihar, New Delhi. It is submitted that
there was an oral agreement of tenancy dated 15.05.1993
between late Sh. Rajeev Bhatia and the Plaintiff firm M/s Sheena
and Co. through Smt. Meera Batra, Partner, executed in the
present of her father-in-law Sh. K.L. Batra for a period of three
years on rent at the rate of Rs. 4,000/- per month. It is further
submitted that Sh. K.L. Batra and late Sh. Rajeev Bhatia used to
be close friends and that the Plaintiffs had given the vacant,
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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peaceful and physical possession of the said premises to late Sh.
Rajeev Bhatia who had paid the rent for three years, month to
month, though irregularly and thereafter, the monthly rent for two
portions was increased to Rs. 6,000/- from 15.05.1996. It is
further submitted that late Sh. Rajeev Bhatia had paid Rs.
10,000/- in cash and Rs. 50,000/- vide pay order no. 463699
dated 05.05.1993 drawn on Syndicate Bank, Punjabi Bagh, New
Delhi as security deposit to the Plaintiffs. It is alleged that late
Sh. Rajeev Bhatia did not pay the rent after 31.03.2002 and
defaulted due to his serious illness. It is further submitted that Sh.
K.L. Batra had very good friendly relations with late Sh. Rajeev
Bhatia and had even given a loan of Rs. 12,00,000/- to Sh.
Rajeev Bhatia as a friendly loan on 18.05.1993 as per the receipt
issued by late Sh. Rajeev Bhatia in the presence of two witnesses
for his business purpose which loan was neither repaid nor any
interest was paid on the said amount as promised.
5. It is further submitted that late Sh. Rajeev Bhatia had
legally carried out construction once on the open terrace which
was demolished by the MCD but in the year 2007, again carried
out construction on the open terrace without the knowledge of
the Plaintiffs and a number of meetings were held in this regard
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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between Sh. K.L. Batra and late Sh. Rajeev Bhatia in the years
2007 and 2008 for getting the said flat. Thereafter, the Plaintiff
no. 1 had sent a legal notice dated 30.12.2009 for vacating the
two said portions and for misuse of premises to Sh. Rajeev
Bhatia and his wife Smt. Savita Bhatia to which reply dated
05.01.2010 was received by the Plaintiff no. 1 wherein it was
claimed that Smt. Meena Batra, partner of the Plaintiff no. 1 firm
had entered into an agreement to sell dated 08.05.1993 for the
rear side second floor of the flat and the front side terrace above
the second floor with Sh. Rajeev Bhatia and Smt. Savita Bhatia
and the possession thereof was allegedly given on receipt of
substantial part of sale consideration and it was also claimed that
Sh. Rajeev Bhatia and Smt. Savita Bhatia got the mutation in
respect of the subject portions with the MCD. It is alleged that
Plaintiffs have no knowledge of such mutation and there is no
evidence of ownership or any title.
6. Thereafter, it is averred that Plaintiff no. 1 had sent a letter
dated 12.01.2010 to the Defendants, however, there was no
response from the Defendants to the said letter and in the
meanwhile, Sh. Rajeev Bhatia had expired on 25.04.2010.
Plaintiff has further averred that thereafter, two notices dated
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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12.11.2010 and 25.01.2011 were sent to the Defendants for
vacating the two portions in question and to pay the
damages/mesne profits, but no reply was received by the
Defendants to the said notices also. Subsequently, Plaintiff had
issued legal notice to the Defendants dated 20.04.2011 under
Section 106 of the Transfer of Property Act, 1882 but no reply
was sent by the Defendants to the Plaintiff. Aggrieved, Plaintiff
filed the present suit for possession of immovable property,
eviction of unlawful occupants, compensation and recovery of
mesne profits along with interest before the Court.
Plaint of the Civil Suit 16756/2016
7. The Plaintiffs have filed the present suit against the
Defendants seeking (a) a decree of specific performance of the
agreement to sell dated 18.05.1993 against Defendant no. 1 with
respect to the rear side of the second floor and front side terrace
above the front side flat on the second floor of the property
bearing no. 81, Poorvi Marg, Vasant Vihar, New Delhi or in the
alternative, a decree of mandatory injunction with respect to the
aforesaid suit property; (b) a decree of permanent injunction with
respect to the aforesaid suit property; (c) a decree of declaration
thereby declaring the Plaintiffs as the owners of the suit property
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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and (d) costs of the suit.
8. In the plaint of this suit, the Plaintiffs have pleaded that the
Plaintiff no. 1 is the widow of late Sh. Rajiv Bhatia who had
expired on 25.04.2010 and the Plaintiffs no. 2 and 3 are the son
and daughter of Plaintiff no. 1 and late Sh. Rajiv Bhatia and all
are residents of 81, Poorvi Marg (back portion of second floor
and front terrace above second floor). It is further submitted that
Defendant Sheena and Company is a partnership firm and the
Defendants no. 2 to 5 are the partners in Defendant no. 1
company. It is further submitted that the Plaintiffs are the owners
of rear side second floor flat and the front side terrace above the
front side flat on the second floor of the aforesaid suit property
along with 15% of the undivided, indivisible and impartible lease
hold rights in the land underneath as the same was purchased by
Sh. Rajeev Bhatia and the Plaintiff no. 1 from the Defendant no.
1 vide an agreement to sell dated 08.05.1993. It is further averred
that the Plaintiffs have also been in continuous, uninterrupted and
assertive possession of the suit property with Plaintiff no. 1 and
Sh. Rajeev Bhatia being the owners of the same. It is also
submitted that the Defendant no. 1 was the owner of property no.
81, Poorvi Marg, Vasant Vihar, New Delhi vide an agreement to
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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sell dated 01.05.1980, purchased from Sh. Jagan Nath Endlaw
who had purchased the same vide sub-lease dated 11.01.1972
registered at serial no. 5196 in Addl. Book no. 1, Vol. No. 2952 at
pages 8 to 14 in the office of the Sub-Registrar, New Delhi.
9. It is alleged that the Defendant no. 4 who is a partner in
Defendant no. 1 company had claimed that Defendant no. 1 is the
owner of the aforesaid suit property and had also entered into an
agreement to sell dated 08.05.1993 with Sh. Rajeev Bhatia and
Plaintiff no. 1, thereby selling the suit property to Sh. Rajeev
Bhatia and Plaintiff no. 1 for a total sale consideration of Rs.
1,00,000/-, out of which Rs. 60,000/- was paid at the time of
execution of the agreement to sell vide receipt dated 08.05.1993
and the remaining amount of Rs. 40,000/- was to be paid at the
time of handing over of vacant physical possession of the said
front floor unit on the second floor or by 07.05.1995 whichever
was later and further, in case of delay in the payment of Rs.
40,000/-, an amount of Rs. 1,000/- per month was to be paid as
interest by late Sh. Rajeev Bhatia and Plaintiff no. 1. It is further
averred that thereafter, possession letter was executed by
Defendant no. 1 through its partner Defendant no. 4 and that
thereafter, Plaintiffs were in continuous and actual physical
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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possession of the suit property.
10. It is further submitted that Defendant no. 1 had also
executed a GPA through its partner in favour of Sh. Hitesh
Narula (i.e. real brother of Plaintiff no. 1) authorizing the said
attorney to even sell the suit property and execute sale deed and a
Will was also executed by Defendant no. 4 bequeathing the suit
property to the Plaintiff no. 1 and late Sh. Rajeev Bhatia. It is
thereafter, submitted that late Sh. Rajeev Bhatia and Plaintiff no.
1 got the said portions of the suit property mutated in their names
in the records of the MCD in favour of late Sh. Rajeev Bhatia
and Plaintiff no. 1 being the owners/lawful occupants of the said
portion of the suit property.
11. It is alleged that in the month of January, 2010, late Sh.
Rajeev Bhatia and Plaintiff no. 1 had received a legal notice for
eviction dated 30.12.2009 sent on behalf of Defendant no. 1
through its partner Smt. Meera Batra (Defendant no. 4). It is
submitted that the said legal notice was duly replied by the
Plaintiffs dated 05.01.2010 and reply dated 12.01.2010 was sent
by the Defendant no. 1 to the reply dated 05.01.2010. It is alleged
that thereafter, Defendant no. 1 had filed a suit for possession,
eviction and compensation against the Plaintiffs titled as M/s
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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Sheena and Company Vs. Smt. Savita Bhatia and Ors bearing
suit no. 232/2011 before the Court of Ld. ADJ, Dwarka Courts,
New Delhi. It is alleged that the Defendant no. 1 had changed its
stand and given contradictory averments time and again and had
stated that both late Sh. Rajiv Bhatia and the Plaintiff no. 1 were
tenants but of only the back portion flat on the second floor but in
the notice dated 22.04.2011, the Defendant no. 1 had adopted the
stand that there was an oral tenancy only between late Sh. Rajiv
Bhatia and Defendant no. 1 with respect to both the second floor
flat and also the open front terrace above the second floor.
Aggrieved, Plaintiffs have filed the suit for specific performance
and permanent injunction against the Defendants.
Written Statement, Replication, Admission-Denial Of Documents
And Framing Of Issues (Suit filed by Sheena Company against
Savita Bhatia and Ors bearing CS No. 16803/16)
12. A perusal of the Court file reveals that the summons for
settlement of issues along with notice of the application under
Order XXXIX R 1 and 2 of CPC were issued qua the Defendants
on 06.07.2011 and thereafter, reply to the application under Order
XXXIX R 1 and 2 of CPC and Written Statement were filed by
the Defendants to which Replication was also filed by the
Plaintiffs. Thereafter, an application under Order VI R 17 of CPC
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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was filed on behalf of the Plaintiff to which reply was filed by
the Defendants along with an application under Order VII R
14(3) read with Section 151 of CPC. The said application under
Order VII R 14(3) of CPC was allowed subject to payment of
cost and the requisite documents were taken on record.
Thereafter, application under Order VI R 17 of CPC was allowed
vide order dated 24.05.2012 subject to payment of cost and
amended plaint and memo of parties were also taken on record.
Amended WS to the amended plaint was filed by the Defendants
and in the meanwhile, Defendants had filed a petition before the
Hon’ble High Court of Delhi against the order dated 24.05.2012
to which notice was issued and further proceedings were stayed
by the Hon’ble High Court. However, the said petition was
dismissed by the Hon’ble High Court of Delhi as not pressed
vide order dated 03.11.2014. Thereafter, matter was proceeded
for framing of issues.
13. In the WS filed by the Defendants, it is submitted that Smt.
Meera Batra (partner of the Plaintiff firm) is the owner of
property no. 81, Poorvi Marg, Vasant Vihar, New Delhi and had
entered into an agreement to sell dated 08.05.1993 with respect
to the rear side second floor flat and the front side terrace above
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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the front side flat on the second floor of the aforesaid property
executed between Sh. Rajeev Bhatia (deceased husband of
Defendant no. 1 and the father of Defendants no. 2 and 3) and
Defendant no. 1 and the possession thereof, on receipt of
substantial part of sale consideration, was also handed over to Sh.
Rajeev Bhatia and Defendant no. 1. It is further submitted that
under the said agreement, full ownership rights were given to Sh.
Rajeev Bhatia and Defendant no. 1 to construct or re-construct
the said portion and also to alienate the same. It is further
submitted that the aforesaid property is a lease hold property. It is
further submitted that the Defendants are in possession of the suit
property and occupying the suit property as the owners thereof
since May 1993. Relevant paragraph of the ‘Brief Facts’ of the
WS is extracted herein:
“C. This it is also pertinent to mention that under Agreement to
sell dated 08th May 1993 it was mentioned that if the second floor
front side flat is vacated by the then existing tenant within the
period of two years, then Shri Rajeev Bhatia and the defendant
no. 1 shall hand over the possession of the 2 nd floor rear side flat,
and take possession of the front side portion flat on the 2 nd floor,
however, since the tenant of the front side flat of the 2 nd floor did
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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Suit No. 16756/2016not vacate the same, the agreement remained in respect to the
rear side flat of the 2nd floor and front side terrace above the front
side flat of the 2nd floor and Shri Rajeev Bhatia and the defendant
no. 1 have since continued in possession of the same as owner
thereof. That the relevant clauses of the Agreement to Sell are
also reproduced herein-below:-
That the relevant clauses/portions of the said Agreement to
Sell are reproduced hereunder for the ready reference of this
Hon’ble Court:-
“As whereas in the eventuality of the said front portion flat
on the second floor presently tenanted to Mr. Chakorvarty is
relate to another flat (back portion on the same floor which is
being handed over to the vendee in lieu of front portion flat) of
which confirming party No. 2, become owner of the said units on
dissolution of the partnership deed and since there is no
dissolution hence no money is to be received by her and thus it
has authorized vendor to sell and convey the said flat at the back
portion on second floor. In case the front portion flat on the
second floor is vacated by Mr. Chakorvarty in the stipulated
period the vendee will take possession of the same and handover
the possession of back portion flat on the second floor back to
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
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Suit No. 16803/2016
Suit No. 16756/2016Vendor.”
“2. The vendor authorise the vendee to utilize the above
properties in any manner for residential purpose as it likes
whether to keep it or disposed off or assign the rights in it and
construct, re-construct and then sell off, the said possession shall
be part performance of the contract.”
“5. That the vendee will be entitled to common rights,
common facilities, easements, hereditments attached to the said
unit.”
“The transaction relating to the terrace on the top of the second
floor front portion will not be affected whether the front portion
flat is sold or back portion is sold, as it is an independent unit, the
possession of the terrace has already been handed over to the
Vendee. The above said units are all detailed and described here
under.”
“And whereas the Vendor has agreed to sell and the Vendee has
agreed to purchase all that unit detail and described in the
description of the units with undivided, indivisible and impartible
15% lease hold rights in the land underneath and the vendee has
agreed to purchase the same and confirming parties have agreed
to confirm the sale.”
Sheena Company Vs. Savita Bhatia
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“Rs. 40,000/- (Rupees Forty Thousand Only) to be paid against
the handing over of vacant physical possession of the said front
floor unit (presently occupied by Mr. Chakorbarty) on the second
floor, or by 7th May 1995 whichever is later. The Vendee will pay
a sum of Rs. 1,000/- (Rupees One Thousand Only) per month as
interest against the said outstanding amount.””
14. It is further submitted by the Defendants in their WS that
Sh. Rajeev Bhatia and Defendant no. 1 got the said portions of
the suit property mutated in their names in the records of the
MCD in the year 1994 and the said mutation and assessment of
house tax was done by MCD in favour of Sh. Rajeev Bhatia and
Defendant no. 1 being the owners of the said portions of the suit
property.
15. It is alleged by the Defendants that the suit of the Plaintiff
is not maintainable and is liable to be dismissed on the ground
that the Plaintiff, through its partner Smt. Meera Batra W/o Sh.
Arun Batra, had sold the suit property to late Sh. Rajiv Bhatia
and Defendant no. 1 vide agreement to sell dated 08.05.1993. It
is further stated by the Defendants that only an amount of Rs.
40,000/- remained to be paid by the Defendants and late Sh.
Rajiv Bhatia was ready and willing to pay the same, however,
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Plaintiff had refused to accept the same. It is further alleged that
the suit of the Plaintiff is based on a false and fabricated story
and is liable to be dismissed. It is further alleged that the suit of
the Plaintiff is time barred and is also barred by limitation. It is
also alleged that admittedly, the mutation of the suit property
took place in the year 2004 itself and that the Plaintiff, while
alleging itself to be the owner of the property in question, did not
check for years as to how and by whom the property tax was
being paid and this would clearly reveal the falsity of the case
filed by the Plaintiff. It is also alleged that the Plaintiff had
admitted that late Sh. Rajiv Bhatia had stopped paying the rent
since the year 1992, whereas, the present suit was filed in the
year 2011 and the same is completely unbelievable that the
owner of a rented premises would not bother to file any
proceeding against the tenant who had not paid the rent for nine
years and therefore, the present suit is liable to be dismissed on
the ground of limitation. It is alleged that the suit of the Plaintiff
is liable to be dismissed also on the ground that the same is
contrary to the provisions of Sections 91 and 92 of the Indian
Evidence Act as the Plaintiff is barred from taking any plea or to
lead evidence to contradict the terms of the Agreement to Sell.
Sheena Company Vs. Savita Bhatia
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16. It is further alleged that the Plaintiff had adopted
contradictory stands at different times in the suit. It is submitted
that in the notice dated 30.12.2009, the Plaintiff had alleged that
the Defendant no. 1 and late Sh. Rajiv Bhatia had been in
unauthorized occupation of terrace on top of the second floor of
the property in question for the last two years and further alleged
that the Defendant no. 1 and late Sh. Rajiv Bhatia were
trespassers and complete strangers to the Plaintiff. Whereas, in
the notice dated 12.11.2010, the Plaintiff had stated that both late
Sh. Rajiv Bhatia and Defendant no. 1 were tenants but of only
the back portion flat on the second floor and then thereafter, in
the notice dated 22.04.2011, the Plaintiff had adopted the stand
that there was an oral tenancy only between late Sh. Rajiv Bhatia
and the Plaintiff and the same was with respect to both the
second floor flat and also the open front terrace above the second
floor.
17. It is further alleged that the Plaintiff had also changed his
averments with regard to the ownership of the suit property. It is
alleged by the Defendants that there is no prima facie case in
favour of the Plaintiff. The Defendants further allege that the
present suit of the Plaintiff is barred by the provisions of Section
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69 (2) of the Indian Partnership Act, 1932 which specifically bars
filing of the suit by an unregistered partnership firm. It is also
alleged that the alleged partnership deed is forged and fabricated
and was filed at a belated stage. It is further alleged that the
averments made by the Plaintiff with respect to the ownership are
completely contrary to the substantial law of the land.
18. In the Rejoinder, Plaintiff has denied the averments of the
Defendants and reiterated the contents of the plaint. It is alleged
that the Defendants had approbated and reprobated in their self
contradictory defence in their written statement and the
agreement to sell is merely farce and is of no legal consequence.
19. On the basis of pleadings, following issues were framed on
07.07.2015:
(a) Whether the suit is maintainable as framed and presented
before the Court? (OPP)
(b) Whether the suit is barred under any provisions of law;
provisions of CPC in general and the provisions of Specific
Relief Act, in particular? (OPD)
(c) Whether the plaintiffs are entitled to a decree of eviction
and possession of said premises being (i) back portion, 2 nd floor
flat and (ii) front side terrace above 2nd floor of plaintiffs own
Sheena Company Vs. Savita Bhatia
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building at no. 81, Poorvi Marg, Vasant Vihar, New Delhi against
the defendants? (OPP)
(d) Whether the plaintiffs are entitled to a decree of
compensation of Rs. 12,20,000/- against the defendants as
claimed for? (OPP)
(e) Whether the plaintiffs are entitled to a decree of temporary
injunction against the defendants? (OPP)
(f) Relief.
20. No other issue arose or was pressed for. Issues no. (a) and
(b) were treated as preliminary issues and were to be decided
along with the injunction application. Matter was thereafter,
proceeded for arguments on the preliminary issues as well as
arguments on the injunction application. Thereafter, all the
parties were restrained to create any third party right, title or
interest with respect to the suit property i.e. back portion, 2 nd
floor flat, front side terrace above 2nd floor at No. 81, Poorvi
Marg, Vasant Vihar, New Delhi vide order dated 09.05.2016 and
the suit was transferred to the Court where the trial of the
connected suit was pending and matter was fixed for arguments
on the preliminary issues. Thereafter, Ld. Court held that the
preliminary issues were to be taken up for disposal along with the
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remaining issues vide order dated 09.01.2017 and matter was
therefore, proceeded for Plaintiff’s evidence. An application
under Order VII R 14 of CPC was thereafter, filed on behalf of
the Plaintiff. However, vide order dated 25.08.2017, connected
suit i.e. CS No. 16756/16 titled ‘Savita Bhatia Vs. M/s Sheena
Company’ was clubbed with the present suit and the present suit
was considered as the main suit as the same was instituted earlier
than the connected suit.
21. Arguments were heard on the application under Order VII
R 14 of CPC moved by the Plaintiff to which reply was duly filed
by the Defendants. Thereafter, vide order dated 25.08.2017,
Plaintiff’s application under Order VII R 14 of CPC was allowed
subject to payment of cost and subsequently, an application under
Order VI R 17 of CPC was filed by the Defendants along with
amended written statement. On the same date, arguments were
also heard on the aforesaid application under Order VI R 17 of
CPC which was also allowed subject to payment of cost.
Subsequently, additional issue was required to be framed and
accordingly, the issues were re-framed vide order dated
07.07.2015 as under:-
1. Whether the suit is maintainable as framed and presented
Sheena Company Vs. Savita Bhatia
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Suit No. 16803/2016
Suit No. 16756/2016before the Court? (OPP)
2. Whether the suit is barred under any provision of law;
provisions of CPC in general and the provisions of Specific
Relief Act, in particular? (OPD)
3. Whether suit of the plaintiffs is barred under Section 53A
of the Transfer of the Properties Act? (OPD)
4. Whether the plaintiffs are entitled to a decree of eviction
and possession of said premises being (i) back portion, 2 nd floor
flat and (ii) front side terrace above 2 nd floor of plaintiff’s own
building at no. 81, Poorvi Marg, Vasant Vihar, New Delhi against
the defendants? (OPP)
5. Whether the plaintiffs are entitled to a decree of
compensation of Rs. 12,20,000/- against the defendants as
claimed for? (OPP)
6. Whether the plaintiffs are entitled to a decree of temporary
injunction against the defendants? (OPP)
7. Relief.
No other issue arose or pressed for by the parties and
matter was proceeded for Plaintiff’s evidence.
Written Statement, Replication, Admission-Denial Of Documents
And Framing Of Issues (Suit filed by Savita Bhatia against
Sheena Company and Ors bearing CS No. 16756/2016)
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
23
Suit No. 16803/2016
Suit No. 16756/2016
22. A perusal of the Court file reveals that the summons for
settlement of issues along with notice of the application under
Order XXXIX R 1 and 2 of CPC were issued qua the Defendants
on 06.02.2013 and thereafter, reply to the application under
Order XXXIX R 1 and 2 of CPC and Written Statement were
filed by the Defendants and thereafter, the matter was transferred
to the Court of Ld. ADJ-05, South-West, Dwarka Courts, New
Delhi. Replication was filed by the Plaintiff. An application was
thereafter filed by the Plaintiff under Section 63 of the Indian
Evidence Act for leading secondary evidence and the matter was
thereafter transferred vide order dated 12.02.2016 to the Court
where the connected suit i.e. CS No. 16803/2016 was pending
and both the suits were clubbed and tried by one Court. Vide
order dated 29.02.2016, the application of the Plaintiff under
Section 63 of the Indian Evidence Act for leading secondary
evidence was dismissed as being premature and issues were
framed on the even date.
23. In the WS filed by the Defendants, it is alleged that the suit
of the Plaintiff is without any cause of action and is liable to be
dismissed under Order VII R 11 of CPC. It is further alleged that
the Plaintiff has not complied with the terms and conditions of
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
24
Suit No. 16803/2016
Suit No. 16756/2016
the agreement to sell dated 08.05.1993 and therefore, the present
suit is not sustainable under law. It is further alleged that the
alleged agreement to sell is not registered and is hit by the
Section 17 of the Registration Act, 1908 and cannot be looked
into for any purpose whatsoever and that the possession of the
Plaintiffs is illegal qua the suit property. It is further alleged that
the suit of the Plaintiffs is time barred and is not maintainable.
The Defendants have further reiterated the contents and
averments of the plaint in civil suit bearing no. 16803/2016 filed
by them against Ms. Savita Bhatia. It is further submitted by
Defendants that the Plaintiffs were inducted in the suit property
as tenants and after termination of tenancy, the suit for possession
was filed by the Defendant no. 1 and that the present suit filed by
Savita Bhatia is the counter blast of that suit. It is further
submitted that a mere agreement to sell does not confer any right,
title or interest in the immovable property. It is also submitted
that the construction made on the open terrace by the Plaintiffs as
tenants in the year 2007 was against the by-laws of Municipal
Corporation. It is further alleged that Sh. K.L. Batra, the father-
in-law of Defendant no. 4 had granted a loan of Rs. 12,00,000/-
to Mr. Rajeev Bhatia which has not been returned till date.
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
25
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Suit No. 16756/2016
Defendants have also submitted that after termination of tenancy
by way of service of legal notice under Section 106 of the
Transfer of Property Act, the status of the tenant remains of a
trespasser or illegal.
24. In the Replication, Plaintiff has denied the averments of
the Defendants and reiterated the contents of the plaint. On the
basis of pleadings, following issues were framed on 29.02.2016:
1. Whether the suit is maintainable as framed and presented
before the Court? (OPP)
2. Whether the suit is barred under any provisions of law;
provisions of CPC in general and the provisions of Specific
Relief Act, in particular? (OPD)
3. Whether the Plaintiff is entitled for a decree in favour of
Plaintiff and against the Defendant directing the Defendant no. 1
to perform the terms of the agreement to sell dated 18.05.1993 as
prayed for in the prayer clause (a) of the plaint? (OPP)
4. Whether the Plaintiff is entitled for a decree of permanent
injunction as prayed for with respect to the suit property being
rear side second floor flat and the front side terrace above the
front side flat on the second floor of the property bearing no. 81,
Poorvi Marg, Vasant Vihar, New Delhi as prayed for in the prayer
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
26
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Suit No. 16756/2016
clause (b) and (c) of the plaint? (OPP)
5. Whether the Plaintiff is entitled for a decree of declaration
thereby declaring the Plaintiff as the owner of the suit property
being rear side second floor flat and the front side terrace above
the front side flat on the second floor of the property bearing no.
81, Poorvi Marg, Vasant Vihar, New Delhi as prayed for in the
prayer clause (d) of the plaint? (OPP)
6. Relief.
No other issue arose or was pressed for and the matter was
proceeded for arguments on preliminary issues with the
connected case i.e. suit bearing no. 16803/2016. Thereafter, all
the parties were restrained to create any third party right, title or
interest with respect to the suit property i.e. back portion, 2 nd
floor flat, front side terrace above 2nd floor at No. 81, Poorvi
Marg, Vasant Vihar, New Delhi vide order dated 09.05.2016 and
the suit was transferred to the Court where the trial of the
connected suit was pending and matter was fixed for arguments
on the preliminary issues. Thereafter, Ld. Court held that the
preliminary issues were to be taken up for disposal along with the
remaining issues vide order dated 09.01.2017 and matter was
therefore, proceeded for Plaintiff’s evidence. An application
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
27
Suit No. 16803/2016
Suit No. 16756/2016
under Order VII R 14 of CPC was thereafter, filed on behalf of
the Defendant. However, vide order dated 25.08.2017, connected
suit i.e. CS No. 16803/2016 titled ‘M/s Sheena Company Vs.
Savita Bhatia and Ors.’ was clubbed with the present suit and the
suit 16803/2016 was considered as the main suit as the same was
instituted earlier than the present suit i.e. CS No. 16756/2016. It
was further directed that the evidence would be led in common in
both the suits.
COMMON EVIDENCE LED BY THE PARTIES IN BOTH
THE SUITS
25. On 21.03.2018, PW-1 Smt. Meera Batra tendered her
evidence by way of affidavit Ex. PW1/1 and relied upon the
documents viz. Copy of partnership deed dated 14.04.1980 as Ex.
PW1/A; self cheques issued by late Sh. Rajeev Bhatia as Ex.
PW1/B (colly); receipt dated 18.05.1993 as Ex. PW1/C; affidavit
of Sh. K.L. Batra and two witnesses as Ex. PW1/D (colly); legal
notice dated 30.12.2009 as Ex. PW1/E; reply dated 05.01.2010 to
legal notice as Ex. PW1/F; letter dated 12.01.2010 as Ex.
PW1/G; copy of notices dated 12.11.2010 as Ex. PW1/H (colly);
copy of legal notices dated 25.01.2011 as Ex. PW1/I (colly);
copy of legal notices dated 20.04.2011 as Ex. PW1/J and Ex.
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
28
Suit No. 16803/2016
Suit No. 16756/2016
PW1/K; copy of legal notice dated 08.06.2011 as Ex. PW1/N
(not mentioned as exhibit in evidence affidavit). Legal notices
dated 20.04.2011 referred to as Ex. PW1/L and Ex. PW1/M are
de-exhibited as copy of legal notices had not been filed on
judicial record (Ld. Counsel for Defendant had objected to the
mode of proof of documents referred to as Ex. PW1/B, Ex.
PW1/C, Ex. PW1/D and Ex. PW1/G).
26. During cross-examination of PW-1, she deposed that the
firm of the Plaintiff is unregistered partnership firm and has no
core business and that the same was made just to take over the
property bearing no. 81, Poorvi Marg, Vasant Vihar, New Delhi
and that the same was acquired by the said firm in April 1980
through GPA, however, the said GPA was not filed on judicial
record. She further deposed that she is the only active partner in
the firm and that she was not aware whether the said firm was
regularly filing income tax return or not. She further stated that
she had not filed the accounting records of the firm. PW-1 further
deposed that one Mr. Chakravarty was the tenant in the second
floor front side flat of the property in question but she did not
remember the year. She further stated that she had no occasion to
issue the rent receipts to any of the tenants as she is the owner of
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
29
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Suit No. 16756/2016
ground floor flat which was never rented out at any point of time.
The witness further deposed that the rear side flat on second floor
of the property in question was in the name of Smt Neena
Paruthi, however, she had not filed any documents on record to
reflect the same. However, the witness denied the suggestion that
the said documents were not filed as the same did not exist and
that the entire property in question was acquired in the name of
the Plaintiff firm. The witness further deposed that the property
in question was divided between all the partners in the year 1980
and that as per the understanding arrived at between the partners
of the firm, the respective partners were independently looking
after their respective flats. PW-1 further deposed that the firm of
the Plaintiff had no role in paying the water and electricity
charges of the respective flats but she was paying house tax with
respect to her flat. She further deposed that Mr. K.L. Batra was
her father-in-law and he knew late Mr. Rajeev Bhatia being
friends, however, she did not know whether there was any
business dealing between the two of them. She deposed that Mr.
K.L. Batra had granted a loan of Rs. 12,00,000/- to late Mr.
Rajeev Bhatia.
27. During further cross-examination, PW-1 deposed that Mr.
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
30
Suit No. 16803/2016
Suit No. 16756/2016
K.L. Batra had not filed any legal proceedings against late Sh.
Rajiv Bhatia for recovery of alleged loan of Rs. 12,00,000/- and
that the Plaintiff company had filed on record a receipt dated
18.05.1993 regarding the said loan. The witness had denied the
suggestions that the said receipt, affidavit of Mr. K.L. Batra Ex.
PW1/D (colly) along with affidavits of Mr. Uday Shankar and
Vinod Khanna were forged and fabricated documents and also
denied that there were numbers of business dealings between Mr.
K.L. Batra and late Sh. Rajiv Bhatia. The witness further deposed
that she has no concern with the second floor rear side flat and
terrace above the second floor of property in question and that
she is pursuing the case on behalf of the Plaintiff company. The
witness had denied the suggestion that no oral agreement of
tenancy ever arrived at between the Plaintiff and late Sh. Rajiv
Bhatia and Defendant no. 1. She further deposed that late Sh.
Rajiv Bhatia had done construction on the front portion of second
floor terrace, however, she voluntarily stated that the said
construction was illegal and the same was demolished by MCD
but the said portion was re-built by Sh. Rajiv Bhatia in the year
2009. The witness further denied the suggestion that late Sh.
Rajiv Bhatia had paid a sum of Rs. 10,000/- in cash and Rs.
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
31
Suit No. 16803/2016
Suit No. 16756/2016
50,000/- by pay order bearing no. 463699 dated 05.05.1993
towards the consideration of agreement to sell dated 08.05.1993
and that after having received the same, agreement to sell dated
08.05.1993 was executed between late Sh. Rajiv Bhatia,
Defendant no. 1 and Plaintiff company. The witness deposed that
she did not have any knowledge of execution of agreement to
sell, GPA executed in favour of Mr. Hitesh Narula, affidavit,
possession letter, Will, receipt, all dated 08.05.1993. The witness
further deposed that the Plaintiff company has no records for the
meetings held between the Plaintiff company and late Sh. Rajiv
Bhatia and voluntarily stated that the same was all oral. She
further deposed that she did not have any knowledge as to
whether any notice in writing was given to Mr. Rajiv Bhatia by
the Plaintiff company for enhancement of the rent in the year
1996. Thereafter, the witness PW-1 was discharged.
28. On 09.01.2019, PW-2 Smt. Neena Paruthi had tendered her
evidence by way of affidavit exhibited as Ex. PW2/1 and during
cross-examination, she deposed that Smt. Meera Batra is her
sister-in-law and that she did not know whether partnership firm
was registered or not. She further deposed that the property in
question was divided amongst the partners in the year 1980 and
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
32
Suit No. 16803/2016
Suit No. 16756/2016
after division, the property was maintained by the firm. She
further deposed that the firm did not file income tax or other
statutory returns. She further deposed that she had not negotiated
with Mr. Rajiv Bhatia for letting out the suit property, however,
the negotiation was made by Mr. K.L. Batra verbally. She had
deposed that she was not present during the said negotiation. The
witness denied the suggestion that the suit property was
purchased by Mr. Rajeev Bhatia vide agreement to sell dated
08.05.1993 and that she was one of the signatories of agreement
to sell. She voluntarily stated that the property was never sold. It
was further deposed by the witness that she did not know in
whose names the electricity and water connections were installed
in the suit property and who was depositing the house tax of the
same. It is further stated that the possession of the suit property
was handed over to Mr. Rajeev Bhatia in the year 1993. She
further deposed that she did not know as to whether after division
of the property in question, the title documents of the respective
shares were executed in the names of respective owners by the
Plaintiff firm.
29. On the even date, PW-3 Sh. K.L. Batra had tendered his
evidence by way of affidavit exhibited as Ex. PW3/1 and during
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
33
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Suit No. 16756/2016
cross-examination, he deposed that the Plaintiff firm is an
unregistered partnership firm with seven partners and that the
negotiation for tenancy of suit property was made in his presence
between Mrs. Meera Batra and late Sh. Rajeev Bhatia. He further
deposed that firstly, he had negotiated with Mr. Rajeev Bhatia
and thereafter, he had negotiated with Neena Paruthi. However,
he did not know the exact date but deposed that it was
somewhere in the year 1993. The witness further deposed that the
Plaintiff company did not use to maintain its account and there
was no business of the said firm and that the said firm also did
not maintain any accounts pertaining to the rental income from
property in question. The witness voluntarily stated that the
accounts were not maintained as there was only one tenant in the
property. He further deposed that no rent receipt was ever issued
by the Plaintiff to the Defendants or late Mr. Rajeev Bhatia. The
witness denied the suggestion that the said rent receipts were not
issued as Mr. Rajeev Bhatia was never inducted as a tenant in the
suit property. The witness further denied the suggestion that late
Sh. Rajeev Bhatia had purchased the suit property vide
agreement to sell dated 08.05.1993 and that Mr. Rajeev Bhatia
was put into possession of the suit property as he had paid
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
34
Suit No. 16803/2016
Suit No. 16756/2016
substantial consideration amount under the aforesaid agreement
to sell. The witness voluntarily stated that there exist no
agreement to sell dated 08.05.1993 in his knowledge. He further
deposed that he had not taken any legal action against Mr. Rajeev
Bhatia for recovery of loan of Rs. 12,00,000/-. The witness stated
that the said loan was given by him in cash and that he had
arranged the said amount after selling his agricultural land and
that he had not filed any document on record to show the said
loan transaction. The witness deposed that he had also purchased
two properties from late Sh. Rajeev Bhatia at Mussoorie.
30. No other witness was examined on behalf of the Plaintiff
and PE was closed vide separate statement of Ld. Counsel for
Plaintiff on 16.03.2019 and matter was proceeded for
Defendant’s evidence.
31. On 03.02.2020, DW-2 Sh. Virender Kumar Gaur, Meter
Inspector, Delhi Jal Board was examined and the record brought
by him was exhibited as Ex. DW2/A and he was duly cross
examined and discharged. On the even date, DW-3 Sh. Akhilesh
Kumar, Engineer, BSES and DW-4 Sh. Krishan Singh, Zonal
Inspector, Assessment and Collection Department were examined
and the record brought by them was exhibited as Ex. DW3/A and
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
35
Suit No. 16803/2016
Suit No. 16756/2016
Ex. DW4/A respectively. They were duly cross examined and
discharged. Thereafter, an application was moved on behalf of
the Defendants under Section 65B of the Indian Evidence Act for
permission to lead secondary evidence of an agreement to sell
dated 08.05.1993 on the ground that the said documents were
seized by the Income Tax Department in the year 2000.
Subsequently, the said application was dismissed and disposed
off vide order dated 17.08.2022 and additional affidavit of
evidence of DW-1 was filed on behalf of the Defendants.
32. Accordingly, on 19.09.2022, DW-1 Ms. Savita Bhatia had
tendered her evidence by way of affidavit exhibited as Ex.
DW1/A and also tendered additional affidavit of evidence
exhibited as Ex. DW1/B and relied upon the following
documents:
(a) Copy of agreement to sell dated 08.05.1993 as Mark A;
(b) Copy of affidavit of Ms. Meera Batra dated 08.05.1993 as
Ex. DW1/3 (OSR);
(c) Copy of possession letter dated 08.05.1993 as Ex. DW1/4
(OSR);
(d) Copy of Will dated 08.05.1993 as Ex. DW1/5 (OSR);
(e) Copy of Receipt dated 08.05.1993 as Ex. DW1/6 (OSR);
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
36
Suit No. 16803/2016
Suit No. 16756/2016
(f) Copy of Election ID of Defendant no. 1 as Ex. DW1/7
(OSR);
(g) Copy of Election ID of late Sh. Rajeev Bhatia as Ex.
DW1/8 (OSR);
(h) Copy of House tax receipt of the suit property as Ex.
DW1/9 (OSR);
(i) Copy of receipt of Delhi Jal Board as Ex. DW1/10 (colly)
(OSR);
(j) Copy of electricity bill of BSES as Ex. DW1/11 (OSR);
(k) Copy of acknowledgment dated 20.04.2000 issued by Dy.
Director of Income Tax regarding seizure of original agreement
to sell of the suit property dated 08.05.1993 as Ex. DW1/12
(OSR);
(l) Copy of site plan of the suit property as Mark B and
(m) Copy of GPA dated 08.05.1993 issued in favour of Mr.
Hitesh Narula as Mark C.
The witness has further relied upon various notices, replies
and rejoinders exhibited by the Plaintiff i.e. PW-1 in her evidence
from Ex. PW1/E to Ex. PW1/N.
33. During cross-examination, DW-1 has deposed that her late
husband and Plaintiff no. 4’s father were known to each other and
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
37
Suit No. 16803/2016
Suit No. 16756/2016
he used to consider her husband as his son. It is further deposed
by her that late Sh. K.L. Batra had never given the suit property
on rent to her late husband. The witness has denied the
suggestion that the suit property was given on rent by Sheena and
Company to her late husband for a period of three years at the
rate of Rs. 4,000/- per month in the year 1993 and also denied the
suggestion that the condition of tenancy was that no additional
construction would be done on the suit property. She further
voluntarily deposed that they had purchased the suit property
from late Sh. K.L. Batra and had specifically chosen to purchase
the front portion and terrace because they wanted to construct a
duplex in the said property. It was further deposed by the witness
that she could not say if Neena Pruthi was staying in the suit
property as a tenant as she received vacant possession of the suit
property. The witness denied the suggestion that the rent was
increased from Rs. 4,000/- to Rs. 6,000/- and her late husband
had given a pay order of Rs. 50,000/- and cash of Rs. 10,000/- to
late Sh. K.L. Batra. The witness voluntarily stated that the money
was paid by her late husband to late Sh. K.L. Batra at the time of
purchasing the suit property.
34. The witness further denied the suggestion that in the year
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
38
Suit No. 16803/2016
Suit No. 16756/2016
1993, late Sh. K.L. Batra had given any loan to her late husband
against which any receipts were issued. The witness further
denied that late Sh. K.L. Batra had issued a notice for eviction to
her but admitted that she had replied to one legal notice issued by
Mr. Batra but that was a different notice and not a notice of
eviction. The witness voluntarily deposed that the mutation of the
suit property was done with full knowledge of late Sh. K.L.
Batra.
35. Thereafter, no other witness was examined on behalf of the
Defendants and DE was closed vide separate statement of Ms.
Savita Bhatia dated 25.04.2023. Thereafter, an application under
Section 65 of the Indian Evidence Act was filed on behalf of the
Defendant no. 1 which was disposed off vide order dated
26.09.2023 with an observation that the parties can agitate the
questions of admissibility, relevance and probative value at the
stage of final arguments. Hence, the trial was concluded and
matter was proceeded for final arguments.
CONTENTIONS OF PARTIES
36. Written submissions were filed on behalf of both the
parties. Ld. Counsel appearing for Sheena Company has
submitted that Sheena Company is the owner of the suit premises
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
39
Suit No. 16803/2016
Suit No. 16756/2016
by virtue of unregistered partnership deed which was entered into
by seven partners for ownership and control of the entire
property and Plaintiffs no. 2 and 3 were allotted the suit property
by virtue of the same partnership deed. It is further submitted that
Savita Bhatia has not come before the Court with clean hands
and has filed the suit titled Savita Bhatia Vs. Sheena Company as
a counter blast to the suit filed by Sheena Company. It is alleged
that the contention of Savita Bhatia for specific performance is
unfounded and has forged the agreement to sell with unrealistic
and impractical conditions and that the suit filed by Savita Bhatia
is time barred. It is further submitted that Section 53A of the
Transfer of Property Act is not attracted to the suit property in
any form or manner and hence, is not a bar on the plaint. It is
further alleged that Savita Bhatia is a trespasser in the suit
property and that the agreement to sell in question was not
brought before the Court and hence, the same cannot be relied
upon in any event. It is further contended that the Defendants i.e.
Savita Bhatia and Ors have relied upon electricity connections
and mutations which reflect their name as against Sheena
Company. In respect of the same, it is argued by Ld. Counsel for
Sheena Company that the same would only show the possession
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
40
Suit No. 16803/2016
Suit No. 16756/2016
of Savita Bhatia over the suit property but not the ownership as
the formalities of the agreement to sell in question have not been
complied with. It is further alleged that the Defendant Savita
Bhatia is not in possession of the alleged agreement to sell, rather
it is the contention of Savita Bhatia that the same was seized in a
raid on 19.04.2000 and an alleged document with relation to this
was relied on by Savita Bhatia. It is also submitted that the
alleged agreement to sell relied upon by Savita Bhatia would in
no way be admissible either by virtue of Section 53A of the
Transfer of Property Act or for specific performance. It is further
submitted that the Defendant Savita Bhatia has also alienated one
portion of the tenanted premises to a third party even though, she
did not have any right to do so.
37. Per contra, Ld. Counsel for Savita Bhatia has submitted
that the agreement to sell dated 08.05.1993 was executed
between Savita Bhatia and her late husband Mr. Rajeev Bhatia
with Sheena Company. It is alleged that the suit filed by Sheena
Company is false and frivolous as no rent or house tax receipts of
the suit property were filed by Sheena Company. It is also alleged
that the arrangement of payment of security amount of Rs.
60,000/- against monthly rent of Rs. 3,000/- per month is an
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
41
Suit No. 16803/2016
Suit No. 16756/2016
unusual arrangement against market trend and trade practice and
therefore, the same is a concocted story by Sheena Company. It is
submitted that no complaint was filed by Sheena Company
against the alleged construction and in her examination on
05.05.2018, PW-1 stated that the respective owners of the portion
may have issued rent receipts to the tenants, however, PW-2
Neena Paruthi / owner of second floor back portion admitted in
her examination on 09.01.2019 that no rent receipts were ever
issued by her. It is also alleged that no additional or concrete
evidence was adduced by Sheena Company to prove that any
such tenancy ever existed between the parties. It is also submitted
that PW-3 Sh. K.L. Batra deposed in his examination that the
tenancy was negotiated between Rajeev Bhatia and Neena
Paruthi (PW-2), however, PW-2 admitted the suggestion that she
had not negotiated with late Sh. Rajeev Bhatia for letting out the
suit property. It is further alleged that the Defendants Sheena
Company have denied that there were multiple business
transactions between late Sh. Rajeev Bhatia and Mr. K.L. Batra,
however, PW-3 Mr. K.L. Batra in his examination dated
09.01.2019 had agreed to a suggestion that he had purchased two
properties from late Sh. Rajeev Bhatia in Mussoorie. It is alleged
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
42
Suit No. 16803/2016
Suit No. 16756/2016
that the Defendants Sheena Company have taken contradictory
stands and have not approached the Court with clean hands.
38. It is submitted that Savita Bhatia had proved the
documents being GPA executed by Mrs. Meera Batra in favour of
Mr. Hitesh Narula. It is further submitted that the Plaintiff Savita
Bhatia has proved an affidavit executed by Mrs. Meera Batra
thereby confirming execution of agreement to sell of the suit
property with Mrs. Savita Bhatia and Mr. Rajeev Bhatia, further
confirming the appointment of Mr. Hitesh Narula as his GPA and
handing over of peaceful and vacant possession of the suit
property. It is also submitted that the Plaintiffs Savita Bhatia and
others have also proved the possession letters issued by Mrs.
Meera Batra on behalf of Defendant no. 1 for respective portions
of the suit property and a Will executed by Mrs. Meera Batra.
Receipt of Rs. 60,000/- issued by Mrs. Meera Batra against sale
consideration of the suit property has also been proved by Savita
Bhatia. It is also submitted that the Plaintiff Savita Bhatia has
placed on record a letter dated 20.04.2000 issued by Sh. A.K.
Pandey, Deputy Director Income Tax (Inv.), Ranchi thereby
confirming that the said agreement to sell was seized by him
from bank locker of late Sh. Rajeev Bhatia. It is further submitted
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
43
Suit No. 16803/2016
Suit No. 16756/2016
that the Plaintiff Savita Bhatia has examined DW-2 Sh. Virender
Kumar Gaur, Meter Inspector, Delhi Jal Board to prove water
connection of the suit property in the name of Sh. Rajeev Bhatia
and further examined DW-3 Sh. Akhilesh Kumar, Engineer,
BSES to prove that the electricity connection was in the name of
late Sh. Rajeev Bhatia and Smt. Savita Bhatia and DW-4 Zonal
Inspector, SDMC to prove that the property is assessed and
mutated in the name of Sh. Rajeev Bhatia and Smt. Savita
Bhatia. Ld. Counsel for Savita Bhatia has relied upon a judgment
passed by Hon’ble Supreme Court of India in Rathnavathi and
Anr. Vs. Kavita Ganashamdas (2015) 5 SCC 223; (2015) 2 SCC
(CIV) 736; 2014 SCC ONLINE SC 860. It is submitted that the
Plaintiff Savita Bhatia has always been ready to pay the
remaining part of the sale consideration but Defendants Sheena
Company have refused to accept the same.
FINDINGS
39. The following observations and inferences can be drawn
from the evidence adduced by the parties and the pleadings on
record:-
(a) A Landlord-Tenant Relationship or an Agreement Purchaser?
This is a case where the parties have diametrically opposite
Sheena Company Vs. Savita Bhatia
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stories:- whereas Sheena Company claims to have the
relationship of landlord-tenant with Savita Bhatia (through her
predecessor-in-interest, deceased husband, Rajeev Bhatia), the
story put forward by Savita Bhatia is that she was inducted into
the property as an agreement purchaser from the very inception;
that there was never any relationship of landlord-tenant between
the parties, that an agreement to sell was entered into with
Sheena Company in performance of which she entered into
possession of the suit property. This agreement to sell
propounded by Savita Bhatia is vehemently and categorically
denied by Sheena Company in the pleadings as well as in the
evidence adduced. In a nutshell, this is a case where the parties
admit no portion of the other’s case. Therefore, the very first
point of adjudication in the present case, is to come at a finding
as to whether Sheena Company has been able to prove that there
was a landlord-tenant relationship with Rajeev Bhatia? It is the
undisputed position in law, that the burden of proof to prove the
landlord-tenant relationship, in the first instance would be upon
Sheena Company, and not on the other party. Therefore, the next
port of call is to see whether Sheena Company has discharged its
burden.
Sheena Company Vs. Savita Bhatia
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(b) The Case of Sheena Company and the Evidence adduced
The term “lease” is defined in the Transfer of Property Act, 1882.
A perusal of the same would show that the payment of rent by the
tenant to the landlord is a sine qua non for inferring the existence
of a lessor-lessee relationship.
“Section 105 – Lease defined
A lease of immoveable property is a transfer of a
right to enjoy such property, made for a certain time,
express or implied, or in perpetuity, in consideration
of a price paid or promised, or of money, a share of
crops, service or any other thing of value, to be
rendered periodically or on specified occasions to the
transferor by the transferee, who accepts the transfer
on such terms.
Less or, lessee, premium and rent defined. –The
transferor is called the less or, the transferee is called
the lessee, the price is called the premium, and the
money, share, service or other thing to be so rendered
is called the rent.”
The pleadings of Sheena Company in the plaint disclose
that in a nutshell, the substance of their pleadings is that they are
the owners of the 2nd floor back portion flat and front terrace
above 2nd floor at 81, Poorvi Marg, Vasant Vihar, New Delhi.
There was an oral agreement of tenancy with late Rajeev Bhatia
commencing from 15.05.1993 for a period of 3 years, at the rate
of Rs 4000 per month. Rajeev Bhatia, it is claimed, entered upon
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the tenancy and paid rent for 3 years, though irregularly, and
thereafter, the rent was increased to Rs 6000 per month from
15.05.1996. Rajeev Bhatia, it is claimed, paid Rs 10,000 cash and
Rs 50,000 vide pay order no 463699 dated 05.05.1993 as security
deposit. He continued to pay rent upto 31.03.2002, though
irregularly and thereafter defaulted. The plaintiff sent various
legal notices, starting in the year 2009 for vacation of the
premises, but the tenants denied the same and propounded an
agreement to sell. There are additional pleadings that Rajeev
Bhatia was given a friendly loan of Rs 12,00,000 by Sh KL
Batra, which was allegedly never paid back and never pursued.
To prove their case, Sheena Company adduced the
evidence of 3 witnesses, who have deposed in their affidavits, on
the same lines as the pleadings, and also proved certain
documents, which shall be referred to presently.
It is pertinent to note that the initial legal notice was sent
on 30.12.2009 which is Ex PW1/E. It is the case of the plaintiff
that this was the very first legal notice sent to the defendant. The
relevant portion of the pleadings in the plaint read ” that late
Rajeev Bhatia legally made construction once on the open terrace
which was demolished by the Municipal Corporation of Delhi
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but in the year 2007 he again made construction on the open
terrace without the knowledge of the plaintiffs. A number of
meetings were held between Shri K L Batra on behalf of the
plaintiffs and late Shri Rajeev Bhatia in the year 2007 and 2008
for getting the said flat and the said terrace vacated and arrears of
mesne profits to be paid but late Shri Rajeev Bhatia turned
greedy and insisted on being paid a heavy compensation for
vacating the above said two portions (viz. Flat and terrace with
illegal construction) of the plaintiffs. The plaintiffs own the entire
building including these two above said portions. Stalemate
continued. Shri Rajeev Bhatia was not enjoying good health and
was continuously ill.
6. That the plaintiff no 1 sent legal notice dated 30.12.2009 for
vacating the two said portions and for misuse of premises to Shri
Rajeev Bhatia (then alive, now deceased) and his wife Smt Savita
Bhatia throught its advocate….dated 30.12.2009…stating therein
that both of them were in unauthorized occupation of the subject
said two portions of the building situated at no 81 Poori marg,
Vasant Vihar, New Delhi and that they are trespassers and they
have no right to occupy the terrace, requiring them to vacate the
portions and also to pay mesne profits…..”
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A reading of the notice Ex PW 1/E would show that the
same reads that “that both of you are in unauthorized occupation
of terrace on top of 2nd floor of her firm’s property no 81, poorvi
Marg, Vasant Vihar, New Delhi without any authority from the
owner firm (Sheena & Co) or without any right, unlawfully for
the last two years…….you are, according to her, trespassers and
have no right to occupy the terrace. You are rank strangers to the
firm and the owner/firm has not given any authority……”
Right off the bat, the aforesaid legal notice, which as per
the plaintiff, forms one part of the cause of action, strikes a
discordant note. There is no mention of any tenancy and in fact
Savita Bhatia and Rajeev Bhatia are referred to as “complete
strangers”. Even more curious is the fact that though in the plaint,
it is mentioned that Rajeev Bhatia had not paid rent since 2002,
and that talks were going on for the vacation of both the flat and
terrace, in the legal notice Ex PW1/E, there is absolutely no
mention of a flat, even though the address of Savita and Rajeev
Bhatia is mentioned as 2nd Floor, Back Portion Flat, 81, Poorvi
Marg. The lack of specificity in this crucial notice which begins
the story certainly casts a tall shadow over the claims of a
tenancy by Sheena Company. It is not understandable as to how
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Sheena Company could have omitted to mention any fact of the
tenancy in this notice, when it is specifically their case, that the
flat as well as the terrace were given on tenancy to Rajeev
Bhatia. It would have been a different matter if it was their case
that it was only the flat which was given on rent and that Rajeev
Bhatia had encroached and trespassed into the terrace. However,
it is specifically the case of Sheena Company that both the flat
and the terrace were leased out to Rajeev Bhatia. Reference is
invited in this regard to para no 2 of the plaint which states that
“there was an oral agreement of tenancy between late Shri Rajeev
Bhatia and the plaintiff firm M/s Sheena and Co….for a term of 3
years ….for the month to month tenancy for the said second floor
flat and open front terrace above second floor…”
This contradiction, in my opinion, shakes the foundation of
the case of Sheena Company. It is their case that it was an oral
tenancy. In such cases, the corroborative evidence and the oral
evidence also must be of a higher standard, as it is only the
circumstantial evidence that is available to convince the court of
law.
What is even more crucial, is the inherent impossibilities
of the case of the plaintiff. Firstly, it is to be noticed, that Sheena
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Company has not placed on record a single scrap of evidence
showing the payment of monthly rent. It is claimed that rent was
being paid from 15.05.1993 till 31.03.2002, i.e. for the better part
of a decade, yet it is testified by all three of the witnesses of
Sheena Company examined as PW-1, PW-2 and PW-3, that the
partnership firm maintained no accounts, or that the witnesses are
not sure whether accounts were maintained or not. PW-1, 2 and 3
also testify that no rent receipts were ever issued to Rajeev
Bhatia. PW-1 deposed during cross examination that the plaintiff
firm was made just to take over the property bearing no 81,
Poorvi Marg, Vasant Vihar, New Delhi and that it was
maintaining its accounting and other financial records. However
she was not aware whether the firm was regularly filing its
income tax return or not. Certainly, no accounting or financial
records were ever produced before the court. There is no
evidence of the income being enjoyed from the rent from the
premises of 81, Poorvi Marg, though it is the case of the firm that
the main business was to take over and enjoy income from the
property situated at 81, Poorvi Marg, New Delhi. It does not
seem to be their case, that they were reporting their income from
the rent being paid by their tenants to the authorities. PW-1
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further deposes that “I do not remember the year but one Mr
Chakarvarty was the tenant in the 2nd floor front side flat of
property bearing no 81, Poorvi Marg, Vasant Vihar, New Delhi,
however the respective owners may have issued the rent receipts
to the tenants. I had no occasion to issue the rent receipts to any
of the tenant as I am the owner of ground floor flat which was
never rented out at any point of time. From the day of creation of
plaintiff firm, I am only managing the affairs of the firm…. “.
What comes out that PW-1 who claims to be managing the
affairs of the firm discloses that no rent receipts were ever issued
by the firm to any of the tenants. Though she claims that the
accounts of the firm were maintained, no such accounts were
ever produced.
The only payment made by Rajeev Bhatia to the firm upon
which the parties agree upon is Rs 10,000 cash and Rs 50000 by
pay order paid in May,1993. As per the plaintiff firm, this is the
security deposit for the tenancy. However, I find this claim hard
to swallow. It is not believable that the security deposit would be
more than the annual rent of the year 1993 (which would be as
per the plaintiff, Rs 48000). As a common practice, the security
deposit is usually one or two months rent. Though, the aforesaid
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sum of security deposit looks accurate in today’s world, if
adjusted for inflation, Rs 60,000 would amount to approximately,
Rs 4,50000 in today’s terms. It is highly unbelievable that such
security deposit would be paid by any tenant.
It is also highly unbelievable, that such princely amount
(for the year 1993) of Rs 4000 which was allegedly being paid
per month is not accounted for by the plaintiff’s firm and vague
allegations are made that the rent was being paid but
“irregularly”.
It is also the case of the plaintiff firm that rent was paid till
the month of March 2002, and in fact, was increased to 6000 per
month in the year 1996. There is no evidence adduced to show
such payments.
Even though, as per the case of the plaintiff firm, no rent
was paid after 2002, no steps were taken to realize the rent or
vacate the property for more than seven years after the defaults
began. This is also highly unbelievable.
On the other hand, Savita Bhatia, apart from her own
evidence, has brought forth evidence of DW-2 from Delhi Jal
Board proving that they were enjoying the water connection at
the suit property in name of Rajeev Bhatia, and also the evidence
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of DW-3 to show that they were having electricity connection in
name of Rajeev Bhatia and Savita Bhatia at the suit property.
Evidence of DW-4 from MCD has also been adduced showing
that the property was mutated and assessed by the municipal
authorities in name of Rajeev Bhatia. These actions of Rajeev
and Savita Bhatia which were taken much before the arising of
the present dispute are inconsistent with that of a person who
finds themselves a tenant. On the other hand, the payment of
such huge amount of “security deposit”, the lack of evidence to
show the payment of rent, the lack of any protest by the plaintiff
firm while Rajeev Bhatia and Savita Bhatia went about obtaining
water and electricity connections in their name at the suit
property, the lack of effort to realize the alleged rent after 2002,
are actions that are inconsistent with the claims of a landlord.
On the facts, I find therefore, even if the alleged Agreement to
Sell relied upon by Savita Bhatia is taken out of the equation, (to
which document I shall presently advert to), that the plaintiff
firm, Sheena Company, has failed to prove that there was a
relationship in the nature of a landlord-tenant between them and
Rajeev and Savita Bhatia. For this reason in and of itself, the suit
for eviction and consequential reliefs, filed by Sheena Company
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must fail.
(c) The Suit of Sheena Company is also barred by Section 69 of
the Indian Partnership Act, 1932
Section 69 reads as:
“Effect of non-registration
(1) No suit to enforce a right arising from a contract
or conferred by this Act shall be instituted in any court
by or on behalf of any person suing as a partner in a
firm against the firm or any person alleged to be or to
have been a partner in the firm unless the firm is
registered and the person suing is or has been shown
in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract
shall be instituted in any court by or on behalf of a
firm against any third party unless the firm is
registered and the persons suing are or have been
shown in the Register of Firms as partners in the firm.
(3) The provisions of sub- sections (1) and (2) shall
apply also to a claim of set- off or other proceeding to
enforce a right arising from a contract, but shall not
affect,-
(a) the enforcement of any right to sue for the
dissolution of a firm or for accounts of a dissolved
firm, or any right or power to realise the property of a
dissolved firm, or
(b) the powers of an official assignee, receiver or
court under the Presidency- towns Insolvency Act,
1909 (3 of 1909) or the Provincial Insolvency Act,
1920 (5 of 1920) to realise the property of an
insolvent partner.”
It is the admitted fact (by PW-1 during the cross
examination) that the plaintiff firm is unregistered. It is also the
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case of the plaintiff firm in the plaint that the contract of oral
tenancy was between the firm and Rajeev Bhatia for the lease of
immovable property owned by the firm in its name. In my view,
therefore, Section 69(2) of the Indian Partnership Act, 1932 bars
the institution of the present suit. Merely because the partners of
the firm were impleaded later on as plaintiffs no 2 and 3 does not
cure this defect because the contract (as averred in the plaint
itself) was between Sheena Company i.e. the unregistered
partnership firm and the third party Rajeev Bhatia and not
between Neena Paruthi or Anju Grover and Rajeev Bhatia, and to
argue otherwise is futile and contrary to all pleadings and
evidence. It is the admitted fact by PW-1 that the sole business of
the partnership was to manage the immovable property at 81,
Poorvi Marg and enjoy the income thereof. Sheena Company has
also proved the partnership deed of the unregistered firm as Ex
PW1/A. It is has not been averred or proved that the partnership
has subsequently dissolved and that the suit property was
thereafter owned by Neena Paruthi. Therefore, the institution of
the suit of Sheena Company is itself barred and for this reason
also the suit fails.
(d) The Case of Savita Bhatia for Specific Performance of the
Sheena Company Vs. Savita Bhatia
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Agreement to Sell dated 08/05/1993
Before proceeding to assess the case of Savita Bhatia, note
may be taken in brief of the law governing specific performance
of contracts.
In Kamal Kumar v. Premlata Joshi, 2019 SCC OnLine SC
12, the Hon’ble Supreme Court of India has held as under:
“10. It is a settled principle of law that the grant of
relief of specific performance is a discretionary and
equitable relief. The material questions, which are
required to be gone into for grant of the relief of
specific performance, are First, whether there exists a
valid and concluded contract between the parties for
sale/purchase of the suit property; Second, whether the
appellant has been ready and willing to perform his
part of contract and whether he is still ready and
willing to perform his part as mentioned in the
contract; Third, whether the appellant has, in fact,
performed his part of the contract and, if so, how and
to what extent and in what manner he has performed
and whether such performance was in conformity with
the terms of the contract; Fourth, whether it will be
equitable to grant the relief of specific performance to
the appellant against the defendant in relation to suit
property or it will cause any kind of hardship to the
defendant and, if so, how and in what manner and the
extent if such relief is eventually granted to the
appellant; and lastly, whether the appellant is entitled
for grant of any other alternative relief, namely, refund
of earnest money etc. and, if so, on what grounds.”
On the aspect of readiness and willingness, the
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position of law regarding the requirements to be proved by
the plaintiff in a suit for specific performance and the
implication of the said terms are well settled by a catena of
judgments.
In Devenderjeet Singh Sethi v. Om Prakash Arora and
Others 2023 SCC OnLine Del 2231, Hon’ble High Court of
Delhi has observed as under:
“The distinction between “readiness” and “willingness”
and the method of ascertaining the same has been
explained by the Apex Court in J.P. Builders v. A.
Ramdas Rao, (2011) 1 SCC 429. It was observed that
readiness pertains to the financial capacity of the
appellant while willingness is determined through the
conduct of the appellant who is in turn seeking specific
performance.
43. Kerala High Court in George M. Mathews @
George v. Muhammed Haneefa Rawther RFA No.
156/2014 decided on 08.02.2023, while relying on J.P.
Builders (Supra) stated that “while readiness refers to
the financial capacity of the appellant/vendor to pay the
sale consideration, willingness is a different component
referable to the conduct of the vendor. Therefore, it is
not axiomatic that one who is ready is automatically
willing to perform the contract. Per contra, one who is
ready with the funds can still be unwilling to perform
the contract for different reasons altogether, say for
example, the vendor deems the transaction not
feasible/profitable for commercial reasons.”
44. Furthermore the appellant may have had the
financial capacity at the time of entering into the
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Agreement, but to be successful in a decree for Specific
performance, continuous readiness and willingness
from the date of the contract to the time of the hearing,
to perform the contract on his part has to be proved as
held by the Apex Court in H.P. Pyarejan v. Dasappa
(Dead) By L.Rs., (2006) 2 SCC 496. Failure to make
good these averment brings with it and leads to the
inevitable dismissal of the Suit. In Motilal Jain v.
Ramdasi Devi, (2000) 6 SCC 420, the Apex Court had
expounded the same principle that the averments in the
plaint must reflect the readiness and willingness on the
part of the appellant.”
In J.P. Builders and Another Vs. A. Ramadas Rao and
Another, (2011) 1 Supreme Court Cases 429, Hon’ble Supreme
Court has observed as under:
“Readiness and willingness
20. Section 16 of the Specific Relief Act, 1963
provides for personal bars to relief. This provision
states that:
“16. Personal bars to relief-Specific performance
of a contract cannot be enforced in favour of a
person-
(a) who would not be entitled to recover
compensation for its breach; or
(b) who has become incapable of performing, or
violates any essential term of, the contract that on
his part remains to be performed, or acts in fraud
of the contract, or wilfully acts at variance with, or
in subversion of, the relation intended to be
established by the contract; or
(c) who fails to aver and prove that he has
performed or has always been ready and willing to
perform the essential terms of the contract whichSheena Company Vs. Savita Bhatia
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performance of which has been prevented or
waived by the defendant.
Explanation-For the purposes of clause (c),-
(i) where a contract involves the payment of
money, it is not essential for the plaintiff to
actually tender to the defendant or to deposit in
court any money except when so directed by the
court;
(ii) the plaintiff must aver performance of, or
readiness and willingness to perform, the contract
according to its true construction.”
21. Among the three clauses, we are more
concerned about clause (c). “Readiness and
willingness” is enshrined in clause (c) which was
not present in the old Act of 1877. However, it was
later inserted with the recommendations of the 9 th
Law Commission’s Report. This clause provides
that the person seeking specific performance must
prove that he has performed or has been ready and
willing to perform the essential terms of the
contract which are to be performed by him.
22. The words “ready” and “willing” imply that
the person was prepared to carry out the terms of
the contract. The distinction between “readiness”
and “willingness” is that the former refers to
financial capacity and the latter to the conduct of
the plaintiff wanting performance. Generally,
readiness is backed by willingness.
23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan
Rao at SCC para 5, this Court held: (SCC pp. 117-
18)
“5… Section 16(c) of the Act envisages that the
plaintiff must plead and prove that he had
performed or has always been ready and willing to
perform the essential terms of the contract which
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are to be performed by him, other than those terms
the performance of which has been prevented or
waived by the defendant. The continuous readiness
and willingness on the part of the plaintiff is a
condition precedent to grant the relief of specific
performance. This circumstance is material and
relevant and is required to be considered by the
court while granting or refusing to grant the relief.
If the plaintiff fails to either aver or prove the
same, he must fail. To adjudge whether the
plaintiff is ready and willing to perform his part of
the contract, the court must take into consideration
the conduct of the plaintiff prior and subsequent to
the filing of the suit along with other attending
circumstances. The amount of consideration which
he has to pay to the defendant must of necessity be
proved to be available. Right from the date of the
execution till date of the decree he must prove that
he is ready and has always been willing to perform
his part of the contract. As stated, the factum of his
readiness and willingness to perform his part of
the contract is to be adjudged with reference to the
conduct of the party and the attending
circumstances. The court may infer from the facts
and circumstances whether the plaintiff was ready
and was always ready and willing to perform his
part of the contract.”
24. In P.D’Souza v. Shondrilo Naidu this Court
observed: (SCC p. 654, paras 19 and 21)
“19. It is indisputable that in a suit for specific
performance of contract the plaintiff must
establish his readiness and willingness to perform
his part of contract. The question as to whether the
onus was discharged by the plaintiff or not will
depend upon the facts and circumstances of each
case. No straitjacket formula can be laid down in
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this behalf…..
21…. The readiness and willingness on the part of
the plaintiff to perform his part of contract would
also depend upon the question as to whether the
defendant did everything which was required of
him to be done in terms of the agreement for sale.”
25. Section 16(c) of the Specific Relief Act, 1963
mandates “readiness and willingness” on the part
of the plaintiff and it is a condition precedent for
obtaining relief of grant of specific performance. It
is also clear that in a suit for specific performance,
the plaintiff must allege and prove a continuous
“readiness and willingness” to perform the
contract on his part from the date of the contract.
The onus is on the plaintiff.
26. It has been rightly considered by this Court in
R.C. Chandiok v. Chuni Lal Sabharwal that
“readiness and willingness” cannot be treated as a
straitjacket formula. This has to be determined
from the entirety of the facts and circumstances
relevant to the intention and conduct of the party
concerned.
27. It is settled law that even in the absence of
specific plea by the opposite party, it is the
mandate of the statute that the plaintiff has to
comply with Section 16(c) of the Specific Relief
Act and when there is non-compliance with this
statutory mandate, the court is not bound to grant
specific performance and is left with no other
alternative but to dismiss the suit. It is also clear
that readiness to perform must be established
throughout the relevant points of time. “Readiness
and willingness” to perform the part of the
contract has to be determined/ascertained from the
conduct of the parties.”
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In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram
Thapar (1996) 4 SCC 526 wherein it was observed as under:
“2. There is a distinction between readiness to perform the
contract and willingness to perform the contract. By
readiness may be meant the capacity of the plaintiff to
perform the contract which includes his financial position
to pay the purchase price. For contract, the conduct has to
be properly scrutinised. There is no documentary proof
that the plaintiff had ever funds to pay the balance of
consideration. Assuming that he had the funds, he has to
prove his willingness to perform his part of the contract.
According to the terms of the agreement, the plaintiff was
to supply the draft sale deed to the defendant within 7 days
of the execution of the agreement, i.e., by 27.2.1975. The
draft sale deed was not returned after being duly approved
by the petitioner. The factum of readiness and willingness
to perform plaintiff’s part of the party and the attending
circumstances. The court may infer from the facts and
circumstances whether the plaintiff was ready and was
always ready and willing to perform his part of the
contract. The facts of this case would amply demonstrate
that the petitioner/plaintiff was no ready no capacity to
perform his part of the contract as he had no financial
capacity to pay the consideration in cash as contracted and
intended to bit for the time which disentitles him as time is
the essence of the contract.”
It is the case of Savita Bhatia that her deceased husband
entered into the written agreement to sell dated 08.05.1993 and a
sum of Rs 10000 in cash and 50000 by pay order was paid for the
suit property and a sum of Rs 40000 remained to be paid as the
total sale consideration was Rs 1,00,000. The vacant possession
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of the property was handed over to them and their family has
been residing in the suit property since 08.05.1993 and for the
first time on 30.12.2009 they came to know that Sheena
Company was not acknowledging the agreement to sell to which
notice she and had replied, setting out the facts in detail. The
defence of Sheena Company is simpliciter denial of the
agreement to sell.
Therefore, the first port of call would be to decide whether
the Agreement to Sell dated 08.05.1993 was validly executed
between the parties or not.
The first issue to be decided herein is whether the
secondary evidence of the said agreement which has been
marked as Mark A is admissible or not. It is the case of Savita
Bhatia that the said original agreement document was seized by
the Income Tax Authorities, that the summons of this court
remained unserved on the concerned Income Tax Officer and that
the said original could never be traced despite all reasonable
efforts and that therefore, the photocopy would be admissible
under Section 65 of the Indian Evidence Act.
The said provision reads as :
“Secondary evidence may be given of the existence,
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cases:-
(a) When the original is shown or appears to be in the
possession or power–
of the person against whom the document is sought to
be proved, or of any person out of reach of, or not
subject to, the process of the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66,
such person does not produce it;
(b) when the existence, condition or contents of the
original have been proved to be admitted in writing by
the person against whom it is proved or by his
representative in interest;
(c) when the original has been destroyed or lost, or
when the party offering evidence of its contents
cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be
easily movable;
(e) when the original is a public document within the
meaning of section 74;
(f) when the original is a document of which a certified
copy is permitted by this Act, or by any other law in
force in1[India] to be given in evidence;
(g) when the original consists of numerous accounts or
other documents which cannot conveniently be
examined in Court and the fact to be proved is the
general result of the whole collection.”
In cases (a), (c) and (d), any secondary evidence of the
contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but
no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general
result of the documents by any person who has
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examined them, and who is skilled in the examination
of such documents.
Presumably, Savita Bhatia, relies upon Section 65(c) for
supporting her case of admissibility of the agreement to sell. In
her affidavit by way of evidence she testifies that ” the Income
tax Department, Ranchi on 19.04.2000 in furtherance of an
investigation had ordered for opening of Locker No 1217 in the
ANZ Grindlays Bank, Chanakyapuri Branch, New Delhi and the
abovesaid original Agreement to Sell, along with other
documents were seized by the concerned officer. An
acknowledgment dated 20.04.2000 issued by the said Officer
acknowledging seizure of the original documents in Ex DW 1/27.
The said document was never returned back to the Deponent or
her deceased husband till date.
…..that I had previously filed an application before this Hon’ble
Court for issuance of notice to Sh AK Pandey, Deputy Director,
Income Tax (INV), Ranchi to produce the original Agreement to
Sell but the notices issued by this Hon’ble Court were received
back unserved. Thereafter I tried my level best to get the exact
location of the file/officer but could not trace the same as the
matter with the Income Tax Department was around 17 to 18
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years old…….”
This version has not been challenged in the cross
examination of the said witness DW-1 by Sheena Company and
therefore, when the version put forward by the witness is not
challenged, generally unless there are suspicious circumstances,
the Court would generally believe the same. It is the matter of
record that summons were issued to the concerned Income Tax
Department and received back unserved as can be seen from the
ordersheet dated 25.07.2019. Moreover, there are other
circumstances that enhance the probative value and admissibility
of the said agreement Mark A. Firstly, the contemporaneous
documents of even date of 08.05.1993 have been produced in
original i.e. Affidavit, Possession letter, Will and Receipt, Ex
DW1/3, DW1/4, DW1/5 and DW1/6 respectively. These
documents have not been challenged by Sheena Company. The
relevant witnesses PW-1, PW-2 and PW-3 have not stated
explicitly that the said documents do not bear their signatures and
their purported signatures have been forged. They never
attempted to invite this Court’s comparison with their admitted
signatures nor produced the evidence of the handwriting expert to
dispute these signatures. The forgery of signatures on such
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documents would have normally invited prosecution under the
onerous provisions of Section 467 of the erstwhile Indian Penal
Code which would have been then applicable, and which
provision carried the maximum sentence of life imprisonment as
one of the penalties. It is the admitted position that no criminal
complaint was ever lodged by Sheena Company or PW1, 2 & 3
for forgery on a valuable security.
Moreover, the contents of the Agreement to sell also show
that is a carefully thought out and drafted document. During
cross examination PW-1 admitted that one Mr Chakrovarty used
to be their tenant in the building of 81, Poorvi Marg, New Delhi.
This fact corresponds with the clauses of the Agreement to Sell
dated 08.05.1993 which state that if Mr Chakrovarty vacates the
front side flat on the second floor then the same will be handed
over to Rajeev Bhatia. It is unlikely that such a far fetched and
well thought out conspiracy could have been hatched by Rajeev
and Savita Bhatia and that they forged the signatures of the
partners of the firm Sheena and Company with such
thoroughness and impeccability that the said partners have not
even thought it worth their while to get the same compared and
examined by any expert.
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Furthermore, the details of payment mentioned in the said
agreement correspond with the details mentioned by Sheena
Company as the “security deposit” allegedly paid by Rajeev
Bhatia. I have already found that it was unbelievable that such
huge amount would have been paid by a tenant and that the
relationship of landlord and tenant could not be proved. The fact
that Sheena Company has put forward a palpably false story,
fortifies the claim of Savita Bhatia qua the genuineness of the
agreement Mark A dated 08.05.1993. I therefore, find that the
said document is admissible and having high probative value and
proves that there was an agreement of sale of the suit property
entered into between the parties, with the terms as stated in the
said document.
The next point to be examined is if the purchaser i.e.
Rajeev Bhatia and his successor in interest Savita Bhatia et all
have been ready and willing to perform this portion of the
contract. As per the relevant clause it is stipulated that ” And
whereas in the eventuality of the said front portion flat on the
second floor presently tenented to Mr Chakrovarty is not vacated
in a period of two years, the transaction will relate to another flat
(back portion on the same floor which is being handed over to
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the Vendee in lieu of front portion flat) (Emphasis Supplied) of
which confirming party no 2 becomes owner of the said unit on
disolution (sic) of the partnership deed and since there is no
dissolution hence no money is to be received by her and thus it
has authorised vendor to sell and convey the said flat at the back
portion on second floor. In case the front portion flat on the
second floor is vacated by Mr Chakrovarty in the stipulated
period the Vendee will take possession of the same and handover
the possession of back portion flat on the second floor to the
Vendor. …….
……….3) Rs 40,000/- …to be paid against the handing over of
vacant physical possession of the said front floor unit presently
occupied by Mr Chakrovarty on the second floor or by 7th May
1995 which ever is later…..”
Though there is evidence to show that one person named
Mr Chakrovarty was a tenant and occupying the front portion flat
on the second floor whereas the back portion flat was handed
over to Rajeev Bhatia, no evidence has been led by either party to
show that he vacated the said flat within the stipulated period of
two years. It is the admitted position that Rajeev Bhatia and his
successors in interest have been in settled possession of the back
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portion flat which was handed over on 08.05.1993 and that they
have never shifted to Mr Chakrovarty’s flat (so termed for
convenience of understanding). The only available inference to
be drawn is that Mr Chakrovarty never vacated the flat within the
period of two years or that even if he did, Rajeev Bhatia never
asked for or got the possession of the flat being occupied by Mr
Chakrovarty thereafter, as there is no evidence adduced of any
such demand. If the flat was never vacated by Mr Chakrovarty,
then the stipulation in the agreement was that the said agreement
would become applicable on the same terms for the back portion
flat being handed over to Rajeev Bhatia and his family at the
time of the execution of the agreement. In either case, there is no
evidence to show that after two years, Rajeev Bhatia agitated for
completing the sale transaction by urging Sheena Company to
accept the payment of Rs 40,000 and hand over the front side
flat, or in the other case where the property was not vacated by
Mr Chakrovarty within 2 years i.e. by 08.05.1995, by urging
Sheena Company to accept Rs 40,000 and execute the sale
documents of the back portion flat of which he was already in
possession of since 08.05.1993. There is no evidence of
“willingness” of Rajeev Bhatia to complete the terms of the sale
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at the relevant times which would be on 08.05.1995 and
thereafter. Moreover, there is also no proof of the “readiness” to
pay the not-inconsiderable sum of Rs 40,000 (by 1995 standards)
at the relevant time by Rajeev Bhatia. The said readiness and
willingness cannot be merely assumed or presumed but has to be
proved by cogent evidence which has not been brought forward
and the onus of which was firmly upon Savita Bhatia. The only
inference to be drawn is that no steps were taken by the vendee
for completion of sale after the execution of the agreement to sell
dated 08.05.1993. Merely obtaining the electricity and water
connection and mutation of their names in the municipal records
cannot suffice as proof of willingness and readiness. The conduct
of the vendee in the present case is wholly lacking. Therefore,
though, she has been able to prove the execution of the valid
contract, in absence of proof of readiness and willingness to
execute the terms of the contract by making the balance payment
and demanding execution of sale deed, the relief of specific
performance cannot be granted. The fact that the vendee has been
in settled possession of the suit property or that he has got it
mutated in his name with the municipal authorities cannot change
the fact that the onus to prove readiness and willingness has not
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been discharged.
As Savita Bhatia could not prove readiness and
willingness, though having successfully proved the execution of
the contract, her suit for specific performance has to fail.
(e) The Availability of the defence under Section 53A of the
Transfer of Property Act, 1882 to Savita Bhatia
The issue qua the availability of the defence under Section
53 A to Savita Bhatia has also been framed in the suit where she
is the defendant. The said section reads as :-
“53A. Part performance
Where any person contracts to transfer for
consideration any immoveable property by writing
signed by him or on his behalf from which the terms
necessary to constitute the transfer can be ascertained
with reasonable certainty,
and the transferee has, in part performance of the
contract, taken possession of the property or any part
thereof, or the transferee, being already in
possession, continues in possession in part
performance of the contract and has done some act in
furtherance of the contract,
and the transferee has performed or is willing to
perform his part of the contract,
then, notwithstanding that 2[***] where there is an
instrument of transfer, that the transfer has not been
completed in the manner prescribed therefore by the
law for the time being in force, the transferor or any
person claiming under him shall be debarred from
enforcing against the transferee and persons claiming
under him any right in respect of the property of
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possession, other than a right expressly provided by
the terms of the contract:
Provided that nothing in this section shall affect the
rights of a transferee for consideration who has no
notice of the contract or of the part performance
thereof.]”
In Vasanthi vs. Venugopal (D) thr. L.Rs.:
MANU/SC/0290/2017, the Hon'ble Supreme Court has
elaborated on the requirements for the application of this
defence. The relevant portion is excerpted below :
“17. Reverting to the availability of the protection of
Section 53A of TP Act to the original Defendant and
on his death, to the present Respondents, to reiterate,
the evidence on record does proclaim that the
agreement for sale dated 20.5.1975 had indeed been
executed between the predecessors-in-interest of the
vendors of the Appellant/Plaintiff and the
Respondents herein, pursuant whereto, an amount of
Rs. 26,000/- in all had been paid by the proposed
purchaser and the possession of the suit property had
been handed over to him in consideration thereof. As
a matter of fact, at the time of execution of said
agreement, the suit property was in occupation of a
tenant of the proposed seller i.e. the predecessor-in-
interest of the vendors of the Appellant/Plaintiff and
that following a compromise, the tenant delivered
possession of the suit property to the predecessor-in-
interest of the present Respondents and since
thereafter, they are in occupation thereof. The
evidence on record, however, does not in very clear
terms establish that the Appellant/Plaintiff had
conscious notice or knowledge of this agreement for
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sale at the time of her purchase. Admittedly as well,
neither the predecessor-in-interest of the Respondents
nor they had taken recourse to law for specific
performance of the agreement. This assumes
importance in view of the averment made in the
written statement that even prior to the demise of the
predecessor-in-interest of the vendors of the
Appellant/plaintiff, he did not comply with the
requests of the original Defendant to get the sale deed
executed and his legal heirs, after his demise, also
adopted the same non-cooperative stance.
18. Section 53A of T.P. Act and Section 16 of the
Specific Relief Act, 1964 (sic 1963) (for short,
hereinafter to be referred to as “Act, 1963”), being of
significant relevance are extracted hereunder:
53A. Part performance.–Where any person
contracts to transfer for consideration any
immoveable property by writing signed by him or on
his behalf from which the terms necessary to
constitute the transfer can be ascertained with
reasonable certainty,
and the transferee has, in part performance of the
contract taken possession of the property or any part
thereof, or the transferee, being already in possession,
continues in possession in part performance of the
contract and has done some act in furtherance of the
contract,
and the transferee has performed or is willing to
perform his part of the contract,
then, notwithstanding that [***] where there is an
instrument of transfer, that the transfer has not been
completed in the manner prescribed therefor by the
law for the time being in force, the transferor or any
person claiming under him shall be debarred from
enforcing against the transferee and persons claiming
under him any right in respect of the property ofSheena Company Vs. Savita Bhatia
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possession, other than a right expressly provided by
the terms of the contract:
Provided that nothing in this Section shall affect
the rights of a transferee for consideration who has no
notice of the contract or of the part performance
thereof.
(Emphasis supplied)
16. Personal bars to relief.–Specific performance of a
contract cannot be enforced in favour of a person–
(a) who would not be entitled to recover
compensation for its breach; or
(b) who has become incapable of performing, or
violates any essential term of, the contract that on his
part remains to be performed, or acts in fraud of the
contract, or willfully acts at variance with, or in
subversion of, the relation intended to be established
by the contract; or
(c) who fails to aver and prove that he has performed
or has always been ready and willing to perform the
essential terms of the contract which are to be
performed by him, other than terms the performance
of which has been prevented or waived by the
Defendant. Explanation.–For the purposes of clause
(c),–
(i) where a contract involves the payment of money, it
is not essential for the Plaintiff to actually tender to
the Defendant or to deposit in court any money except
when so directed by the court;
(ii) the Plaintiff must aver performance of, or
readiness and willingness to perform, the contract
according to its true construction.
(Emphasis supplied)
19. As would be patent from the above quotes, the
protection of a prospective purchaser/transferee of his
possession of the property involved, is available
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subject to the following prerequisites:
(a) There is a contract in writing by the transferor for
transfer for consideration of any immovable property
signed by him or on his behalf, from which the terms
necessary to constitute the transfer can be ascertained
with reasonable certainty;
(b) The transferee has, in part performance of the
contract, taken possession of the property or any part
thereof, or the transferee, being already in possession,
continues in possession in part performance of the
contract;
(c) The transferee has done some act in furtherance of
the contract and has performed or is willing to
perform his part of the contract.
20. In terms of this provision, if the above pre-
conditions stand complied with, the transferor or any
person claiming under him shall be debarred from
enforcing against the transferee and person(s)
claiming under him, any right in respect of the
property of which the transferee has taken or continue
in possession, other than a right expressly provided by
the terms of the contract, notwithstanding the fact,
that the transfer, as contemplated, had not been
completed in the manner prescribed therefor by the
law for the time being in force. Noticeably, an
exception to this restraint is carved out qua a
transferee for consideration, who has no notice of the
contract or of the part performance thereof.
21. On a perusal of the evidence adduced, it transpires
that the sale deed dated 26.6.1982 had been proved on
behalf of the Appellant/plaintiff. PW1 Subramanian,
the husband of the Appellant/Plaintiff in his testimony
has stated that at the time of purchase, when he
enquired about the possession of the original
Defendant, his vendors told him that he was in
occupation of the premises as a tenant and that after
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the purchase, as he (original Defendant) refused to
pay the rent, the application before the Rent
Controller, Cuddalore was filed for his eviction
therefrom and it was in that proceeding, that the
original Defendant disclosed about the agreement for
sale, whereafter the suit had to be filed seeking
declaration of title and possession. This witness
categorically denied about his knowledge of such
agreement for sale at the time of purchase.
22. PW2 Deenadayalan, one of the sons of the
original owner Ramnathan Chettiar on oath affirmed
the execution of the sale deed dated 26.6.1982 in
favour of the Appellant/Plaintiff for a consideration of
Rs. 35,000/-. Though, this witness admitted the
agreement for sale between the original Defendant
and his father, he mentioned that on enquiry, his father
had told him that the agreement had lapsed as the
purchase was not made within time. This witness also
categorically stated that he did not disclose about the
agreement for sale to the Appellant/Plaintiff and
instead had disclosed to her husband that the original
Defendant was only a tenant in possession of the suit
property.
23. As against this, the Respondents, amongst others
sought to rely on the testimony of DW1 to the effect
that he had always been ready and willing to perform
the contract and also in the reply to the notice sent by
the vendors of the Appellant/Plaintiff conveying the
cancellation of the agreement, he reiterated his
readiness and willingness to get the sale deed, on the
basis of the agreement for sale, executed.
24. The attendant facts and the evidence on record,
though demonstrate that an agreement for sale of the
suit property had been entered into on 20.5.1975
between the predecessor-in-interest of the vendors of
the Appellant/Plaintiff and the original Defendant and
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that an amount of Rs. 26,000/- had been paid by the
latter for which the possession of the suit property had
been delivered to him, to reiterate, adequate evidence
is not forthcoming to convincingly authenticate that
the proposed purchaser and thereafter his heirs i.e. the
present Respondents, had always been ready and
willing to perform his/their part of the contract, which
amongst others, is attested by his/their omission to
enforce the contract in law. His/their readiness and
willingness to perform his/their part of the contract is
also not pleaded in the written statement in clear and
specific term as required. Further the materials on
record also do not testify in unequivocal terms that at
the time of purchase, the Appellant/Plaintiff had the
knowledge/information of such agreement for sale or
the part performance as claimed, so as to repudiate her
transaction to be neither bona fide nor one with notice
of such contract or the part performance thereof, as
comprehended in the proviso to Section 53A of the
T.P. Act.
25. The fact that at the first instance, the
Appellant/Plaintiff had filed an application before the
Rent Controller, Cuddalore for eviction of the original
Defendant as a tenant, also attests her ignorance at
that point of time of the agreement for sale and his
occupation of the premises in part performance
thereof.
26. This Court in Shrimant Shamrao Suryavanshi and
Anr. v. Pralhad Bhairoba Suryavanshi by Lrs. and Ors.
MANU/SC/0093/2002MANU/SC/0093/2002 : (2002)
3 SCC 676, while tracing the incorporation of Section
53A in the TP Act, vide Act of 1929, acting on the
recommendations of the Special Committee on the
issue, had ruled that mere expiration of the period of
limitation for bringing a suit for specific performance
would not debar a person in possession of an
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immovable property by way of part performance from
setting up a plea, as contemplated therein in defence
to protect his possession of the property involved. It
was however underlined that if the conditions
precedent, as enumerated, in Section 53A of the Act,
are complied with, the law of limitation would not
come in the way of the said person to avail the benefit
of the protection to his possession as extended thereby
even though a suit for specific performance of a
contract by him had gone barred by limitation.
Explicitly therefore, though mere expiry of the period
of limitation for a suit for specific performance may
not be a bar for a person in possession of an
immovable property in part performance of a contract
for transfer thereof for consideration to assert the
shield of Section 53A of T.P. Act, it is nevertheless
imperative that to avail the benefit of such protection,
all the essential pre-requisites therefor would have to
be obligatorily complied with.
27. In A. Lewis and Anr. v. M.T. Ramamurthy and
Ors. MANU/SC/8086/2007MANU/SC/8086/2007 :
(2007) 14 SCC 87, it was propounded that the right to
claim protection Under Section 53A of T.P. Act would
not be available, if the transferee remains passive
without taking effective steps and abstains from
performing his part of the contract or conveying his
readiness and willingness to that effect.
28. Added to this, to reiterate, is the proviso to Section
53A of T.P. Act which excludes from the rigour of the
said provision a transferee for consideration, who has
no notice of the contract or of the part performance
thereof.
29. In the contextual facts, as obtained herein, the
materials on record do not unmistakably demonstrate
that the original Defendant during his lifetime and on
his demise, his heirs i.e. the Respondents had been
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always and ever ready and willing to perform his/their
part of the contract and that the Appellant/Plaintiff
had notice either of the agreement for sale or the fact
that the original Defendant had been in occupation of
the suit premises by way of part performance of the
contract.
30. Apropos, Section 16 of the Act, 1963, specific
performance of a contract cannot be enforced in
favour of a person who, inter alia, fails to aver and
prove that he has performed or has always been ready
and willing to perform the essential terms of the
contract which are to be performed by him unless
prevented or waived by the other party thereto. As
mentioned hereinabove, though there is an averment
in the written statement that before the death of the
predecessor-in-interest of the vendors of the
Appellant/plaintiff, the original Defendant had
requested him to execute the sale deed and after his
demise, he made similar demands with them,
evidence is jejune to irrefutably establish the
readiness and willingness of his, during his lifetime
and after his death, of the Respondents, to perform
his/their part of the contract. It is also not the case of
either the original Defendant or the present
Respondents that his/their performance of the contract
had been either prevented or waived by either the
vendors of the Appellant/Plaintiff or their
predecessor-in-interest at any point of time.”
Therefore, the requirement of readiness and willingness
also applies to the Defendant claiming the protection under
section 53A of the Transfer of Property Act. It would be
incongruous to find that specific performance cannot be granted
due to the lack of proof of readiness and willingness and at the
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same time, to find that the protection under section 53A is
available to the same party.
Therefore, as I have already found that Savita Bhatia and
her predecessor in interest have not been able to prove their
readiness and willingness, therefore the defence of part
performance is not available to her.
(f) Savita Bhatia, has also prayed for declaration of title,
however, I find that a plaintiff in a suit for specific performance
cannot at the same time seek declaration of title, and moreover,
there are no pleadings in the suit to allow this Court to adjudicate
the issue of the better title as between the parties. Therefore, such
declaration cannot be granted. Consequently, the permanent
injunction as prayed for can also not be granted.
(g) In sum and substance, therefore, the following conclusion is
arrived at – the issues as framed in the suit titled ” Sheena
Company v. Savita Bhatia” are decided as following – issues
1,2,4,5 and 6 are decided against the plaintiff Sheena Company
and in favour of the defendant Savita Bhatia, issue no 3 is
decided against the defendant Savita Bhatia and in favour of the
plaintiff Sheena Company. The issues as framed in the suit titled
“Savita Bhatia v. Sheena Company” are decided as following –
Sheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company
82
Suit No. 16803/2016
Suit No. 16756/2016
issues 1 & 2 are decided in favour of the plaintiff Savita Bhatia
and against the defendant Sheena Company, issues 3,4 and 5 are
decided against the plaintiff Savita Bhatia and in favour of the
defendant Sheena Company.
RELIEF
40. Consequently, both the suits are ordered to be dismissed.
Parties to bear their own costs.
41. Decree sheets be prepared accordingly in both the suits.
42. Files be consigned to Record Room after due compliance.
Digitally signed
by DIVYANG
DIVYANG THAKUR
THAKUR Date:
2025.01.17
15:27:01 +0530Announced in the open court (Sh. Divyang Thakur)
On 17.01.2025 DJ-03, Dwarka
New DelhiSheena Company Vs. Savita Bhatia
Savita Bhatia Vs. Sheena Company