(O&M) Sangeeta Malhotra Etc. vs Rama Kansal And Ors.

RSA-3443-2006 (O&M) -1-


IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

RSA-3443-2006 (O&M)
Reserved on :- 13.10.2026

Pronounced on :- 02.11.2026
Uploaded on :- 05.11.2026


Smt. Sangeeta Malhotra and others ....Appellants
Versus
Smt. Rama Kansal and others ....Respondents

CORAM:- HON’BLE MRS. JUSTICE AMARJOT BHATTI

Present:- None for appellant No. 1.

Dr. Pankaj Nanhera, Senior Advocate assisted by
Mr. Sanjay Kumar, Advocate,
Mr. Aman Mehta, Advocate,
Mr. Sachin Jangra, Advocate,
Mr. Anurag Mor, Advocate and
Mr. Shubham Kumar, Advocate
for the appellants No. 2 to 4.

Mr. Rohit Nagpal, Advocate with
Mr. Rahul Dhanda, Advocate
for respondent No. 1.

Mr. Abhinav Sood, Advocate with
Ms. Mehndi Singhal, Advocate and
Mr. Akshay Sharma, Advocate
for respondent No. 2.

*

AMARJOT BHATTI, J.
CM-8836-C-2022
This is an application filed under Order 22 Rule 4 and 11 read
with Section 151 CPC for impleading legal heirs and representatives of
Smt. Rama Kansal (respondent No. 1).

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Along with application, death certificate of Smt. Rama Kansal
– respondent No. 1 has been annexed as Annexure R-2 and copy of Will as
Annexure R-3. As per death certificate, respondent No. 1 expired on
07.10.2022.
In view of aforesaid factual position, present application is
allowed and Sh. Vijay Kumar Kansal s/o late Sh. Jai Bhagwan Kansal is
hereby impleaded as respondent No. 1(i) in present regular second appeal.
Amended memo of parties filed along with application is taken on record.
Registry is directed to do the needful. Power of Attorney on behalf of
respondent No. 1(i) is also filed along with application and same is also
taken on record.
CM-10773-C-2023
This is an application filed under Order 22 Rule 10 read with
Section 151 CPC for substitution of applicants Mr. Subhash Chander and
Mrs. Santosh Devi being partners at M/s Uni Developers as appellants in
place of appellants No. 3 to 7.
It is submitted that CM bearing No. 4813-C of 2007 was
disposed of by this Court vide order dated 17.11.2007, whereby M/s Uni
Developers along with its five partners were made appellants No. 2 to 7 in
present regular second appeal. That registered deed of admission-cum-
retirement dated 12.04.2017 was executed, whereby applicant Subhash
Chander was admitted as a partner to partnership firm and other partners
i.e. Jitender Singh, Amit Thakran, Pawan Sharma and Mahesh Sharma
retired and Mr. Santokh Singh was continuing partner. Later, on dated
21.10.2019, another deed of admission-cum-retirement was executed
whereby said Santokh Singh took retirement and new partner Mrs. Santosh
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Devi was admitted and at present, appellant No. 2 M/s Uni Developers is
having Mr. Subhash Chander and Mrs. Santosh Devi as its continuing
partners. It is, therefore, requested that present application be allowed and
Mr. Subhash Chander and Mrs. Santosh Devi be impleaded as appellants
No. 3 and 4 in place of appellants No. 3 to 7.
Heard. In view of the facts and circumstances brought on
record, particularly the deeds of admission-cum-retirement dated
12.04.2017 and 21.10.2019 i.e. Annexures A-15 and A-16 reflecting the
change in constitution of partnership firm, this Court finds that applicants
are entitled to represent M/s Uni Developers in the present appeal.
Consequently, application is allowed and Sh. Subhash Chander and Smt.
Santosh Devi are permitted to be substituted in place of erstwhile partners
of M/s Uni Developers as appellants No. 3 and 4 in present regular second
appeal.
Latest amended memo of parties already filed along with
application is taken on record. Registry is directed to tag the same at
appropriate place.
Main case (O&M)
1. Appellants Smt. Sangeeta Malhotra and others filed regular
second appeal against impugned judgment and decree dated 27.05.2006
passed by learned Additional District Judge, Fast Track Court, Gurgaon,
vide which appeal preferred by Smt. Sangeeta Malhotra and Smt.
Rageshwari Mattoo i.e. defendants No. 1 and 2 in main suit was dismissed
and judgment and decree dated 22.09.2003 passed by learned Civil Judge
(Senior Division), Gurgaon, decreeing the suit filed by plaintiff Smt. Rama
Kansal in a suit for specific performance of sale agreement dated
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02.08.1993 has been upheld.
2. It is matter of record that M/s Unitech, Real Estate Division
and others filed application under Order 22 Rule 10 CPC for impleading
them as appellant on the basis of sale deed dated 06.01.2006 in their favour
and accordingly, their application was allowed by Coordinate Bench vide
order dated 17.11.2007 and they were arrayed as appellants No. 2 to 7 in
the present appeal, now as appellants No. 2 to 4.
3. Brief facts of the case are, Smt. Rama Kansal wife of Vijay
Kumar Kansal filed suit for possession by way of specific performance of
sale agreement dated 02.08.1993 against Smt. Sangeeta Malhotra through
her mother and General Power of Attorney holder Smt. Rageshwari Mattoo
and others taking the stand that defendant No. 1 Sangeeta Malhotra was
allottee of residential plot no. No. l-31 measuring 502.32 sq. yards situated
in South City, Gurgaon from defendant No. 3 M/s Unitech, Real Estate
Division, New Delhi on payment of full sale consideration as well as
registration charges etc. Said plot was described with specific boundaries
as detailed in plaint. Defendant No. 1 Smt. Sangeeta Malhotra through her
General Power of Attorney holder and mother Smt. Rageshwari Mattoo –
defendant No. 2 agreed to sell the suit property in favour of plaintiff Smt.
Rama Kansal for sale consideration of Rs. 7,78,596/- vide sale agreement
dated 03.08.1993. Defendant No. 2 duly signed said agreement on
receiving a sum of Rs. 78,596/- from plaintiff as earnest money. Plaintiff
had given demand draft of Rs. 78,000/- and remaining sum of Rs. 596/-
was received in cash. The negotiation regarding sale of plot was going on
for the last 5-6 days and terms were orally finalized on 30.07.1993 and
written sale agreement was prepared on 02.08.1993. Thereafter, agreement
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to sell was got typed by defendant No. 2 on 03.08.1993. By inadvertent
nd
mistake, date on agreement was mentioned as 02 of August instead of
rd
03 of August. As per terms of agreement, sale deed was to be executed up
to 31.10.1993 and in case of delay on the part of either party, term of
interest @24% per annum on delayed payment from either side was to be
imposed as per sale agreement. Defendant No. 2 had agreed to get the
name of plaintiff transferred in record of defendant No. 3 as purchaser and
expenses to be incurred by way of transfer fee chargeable by defendant No.
3 were to be borne by defendants No. 1 and 2 for substituting the name of
plaintiff as re-allottee of plot in question. The security amount, stamp and
registration charges already deposited by defendant No. 1 with defendant
No. 3 was to be treated as deposit of amount by plaintiff for getting the sale
deed completed and it was agreed by plaintiff to pay the same to defendant
No. 1 or to her General Power of Attorney Holder – defendant No. 2 on the
completion of said transfer. As per usual practice of defendant No. 3-
company, they allowed the transfer of plot from the name of original
allottee to the transferee on charging their prescribed fee to be charged by
them for transfer of such plot and defendant No. 3 had been regularizing
such transfer after charging Rs. 90/- per sq. yard on such plots for
substituting the name of transferee as allottee of said plot without any
hindrance and objection. Plaintiff always remained ready and willing to
perform her part of sale agreement and she had always been ready with
money for making the payment of balance sale consideration as well as
other charges. She got prepared demand drafts no. 001846 in the sum of
Rs. 1,00,000/-, No. 001857 in the sum of Rs. 1,00,000/-, No. 001858 in the
sum of Rs. 70,000/-, No. 001860 in the sum of Rs. 1,00,000/- and No.
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001861 in the sum of Rs. 1,00,000/-, total amount of Rs. 4,70,000/- dated
17.10.1993 in the name of defendant No. 2, the General Power of Attorney
holder of defendant No. 1, drawn on Nepal S.B.I. Bank Limited,
Kathmandu, as the said amount was arranged from her brother Sh. Som
Manglik. The remaining amount of sale consideration and other expenses
etc. were also ready with plaintiff, but defendant No. 2 had shown her
inability to complete the transfer up to 31.10.1993 and she had requested
that transaction would be completed within a week after 31.10.1993. She
had also requested that transfer charges to be charged by defendant No. 3
which were agreed to be paid by transferor may also be paid out of this
amount as the same will be adjusted in balance sale consideration.
Defendant No. 2 asked the plaintiff to prepare draft for a sum of Rs.
45,257.40/- in the name of defendant No. 3 as charges for transfer fee for
transfer of said plot in the name of plaintiff as she had got said amount
calculated from defendant No.3. On the request of defendant No. 2,
plaintiff got prepared draft of Rs.28,000/- bearing DDR No. 7397822
drawn on Canara Bank payable at Jammu dated 02.11.1993 and a cheque
for a sum of Rs. 1,32,000/- drawn on United Western Bank Limited, Pushp
Vihar, New Delhi dated 02.11.1993, both in the name of defendant No. 2.
There was another bank draft for a sum of Rs. 45,257.40/- drawn on Canara
Bank, New Delhi, bearing draft no. 133490 dated 02.11.1993 in the name
of defendant No. 3 and balance amount of Rs. 24,742.60/- was agreed to be
paid in cash at the time of transfer of said plot in the name of plaintiff.
Defendant No. 2 further requested that some liquidated cash amount will be
required by her for some miscellaneous expenses and her personal need.
Plaintiff was ready and willing to perform her part of sale agreement and
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breach of said sale agreement has been committed by defendants No. 1 and
2 themselves. Defendant No. 2 knew that amount as per sale agreement
was ready with plaintiff, then she tried to wriggle out of said agreement,
perhaps by that time market price of such plots had started showing
indication of increase in rates and defendant No. 2 avoided to transfer the
plot under lame excuse. Plaintiff kept all the drafts and cheques intact for a
long time waiting for defendant No. 2 to complete the transaction. Plaintiff
requested defendant No. 2 and also sent registered letter dated 01.12.1993
to defendant at her given address, but she avoided to receive the same by
getting false report from postman and sent it back to plaintiff showing it to
be unserved. In fact, defendant No. 2 was very much in the knowledge of
contents of said letter. She cleverly avoided receipt of registered letter and
instead issued legal notice to plaintiff dated 06.12.1993 which was received
by plaintiff in the first week of January, 1994 from her counsel taking a
false plea about her readiness and willingness and making false allegations
against plaintiff regarding breach of sale agreement. Said notice was
replied by plaintiff on 10.01.1994 through her counsel and she was duly
told that entire balance sale consideration was ready with plaintiff in terms
of sale agreement and again requested her to complete the transaction in
short time. Again another legal notice was sent through registered post
dated 28.06.1994 through her counsel, requesting defendants to complete
the transaction. Defendant No. 2 sent reply refusing to transfer the said
property in terms of sale agreement. Finally, present suit was filed.
4. Notice of the suit was given to defendants. Defendants No. 1
and 2 filed their joint written statement taking preliminary objection that
suit filed by plaintiff is misconceived and there was no enforceable contract
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between the parties. On merits, it was admitted that defendant No. 1 was
the allottee of residential plot from defendant No. 3 and entire
consideration was already paid. Defendants admitted the contents of para
no.2 of the plaint except the fact that defendants did not do what they were
required to do till the date of expiry of sale agreement. Denying the facts
narrated in plaint, defendants took the stand that plaintiff never informed
defendants that payable amount was ready in the shape of bank drafts till
notice dated 06.12.1993 was got issued by defendant No. 2 and vide reply
dated 10.01.1994 to said notice, plaintiff for the first time disclosed that she
had prepared bank drafts and arranged funds. Stand taken by plaintiff is
inconsistent and contradictory. In fact, plaintiff was not ready with balance
sale consideration. Reply to notice dated 10.01.1994 was duly answered
vide their communication dated 04.03.1994. It was denied that answering
defendants procured false report from postman. On the basis of agreement
to sale, plaintiff cannot say that he had stepped into the shoes of allottee of
said plot. Answering defendants took the plea of clear collusion between
plaintiff and defendant No. 3. Facts narrated in plaint are incorrect. Time
was essence of agreement and non-compliance of terms had resulted into
this situation. Plaintiff was notified to take back her earnest money at the
first instance when notice was issued by answering defendants dated
06.12.1993. False and frivolous litigation had been started by plaintiff.
However, plaintiff can receive the refund of amount paid to answering
defendants at any time she chooses to receive. Finally, defendants prayed
that suit filed by plaintiff may be dismissed.
5. Defendant No. 3 filed written statement taking preliminary
objection that defendant No. 3 was not necessary party to present suit.
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Main dispute is between plaintiff and defendants No. 1 and 2. Smt.
Sangeeta Malhotra – defendant No. 1 had filed suit for mandatory
injunction against defendant No. 3 to register a sale deed of plot No. 31-1
measuring 420 sq. meters in her favour. As per record, Ms. Sangeeta
Mattoo and now Smt. Sangeeta Malhotra is the allottee of suit property.
Answering defendant was not aware of any agreement to sell regarding
which present suit has been filed. It was further confirmed that defendant
No. 1 had paid entire sale price of said plot. It was further stated that
defendant No. 1 submitted General Power of Attorney with answering
defendant, whereby defendant No. 2- Smt. Rageshwari Mattoo was
authorized to look after and manage the suit property. Registration of sale
deed in favour of defendant No. 1 was pending as there was order of status
quo. It was prayed that suit filed by plaintiff may kindly be dismissed.
6. In replication, plaintiff denied the facts stated in written
statements and reiterated her claim in the plaint. From the pleadings of the
parties, following issues were framed by the trial Court on 19.07.1995 :-
(1) Whether the plaintiff had always been ready and willing to
perform her part of contract as alleged? OPP
(2) Whether the civil court at Gurgaon has no jurisdiction to try
the suit? OPD
(3) Whether the plaintiff has committed breach of contract? OPD
(4) In case issue no.1 is not proved, whether the plaintiff is
entitled to refund of the amount claimed in the suit? OPD
(5) Whether the defendant no.3 is unnecessary party. If so its
effect? OPD
(6) Relief.

7. In order to prove the suit, plaintiff examined Robin Vargis,
Clerk, Unitech Ltd. as PW1, Ramesh Bhandari, Clerk as PW2, Kanta Murti
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as PW3, Anjana Bhamli as PW4 and Vijay Kansal as PW5. Thereafter,
learned counsel for plaintiff closed the evidence vide separate statement
recorded on 14.09.1998.
8. In order to rebut the case of plaintiff, defendants examined
C.L. Mattoo as DW1 and Col. S.K. Dhar as DW2. Learned counsel for
defendants No. 1 and 2 vide separate statement closed evidence on dated
16.05.2000. However, despite the case being called several times, no one
appeared on behalf of defendant No. 3 and accordingly, he was proceeded
against ex parte vide order dated 16.05.2000.
9. After hearing the arguments advanced by learned counsel for
both the parties, suit filed by plaintiff was decreed vide judgment and
decree dated 22.09.2003 passed by learned Civil Judge (Senior Division),
Gurgaon. Feeling aggrieved of the said judgment and decree, appeal was
preferred by defendants No. 1 and 2, which was dismissed by First
Appellate Court vide judgment and decree dated 27.05.2006. Feeling
aggrieved of the said judgment and decree, present regular second appeal
has been preferred by appellants.
10. Learned Senior counsel representing appellants No. 2 to 4
argued that judgment and decree dated 22.09.2003 passed by learned Civil
Judge (Senior Division), Gurgaon and judgment and decree dated
27.05.2006 passed by learned Additional District Judge, Fast Track Court,
Gurgaon are not on sound footing. There was no proper appreciation of the
facts and evidence on record. Terms and conditions of agreement to sell
dated 02.08.1993 (Ex.P2) were not rightly considered by the Courts below.
In fact, relief granted by learned trial Court is beyond the accepted terms
and conditions of said agreement to sell. It was wrongly observed by the
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Courts below that time was not the essence of agreement. Learned Senior
counsel representing appellants No. 2 to 4 referred to agreement to sell
dated 02.08.1993 (Ex.P2), whereby in clause (2), it was specifically
mentioned that time limit for transfer of said plot was mutually agreed as to
on or before 31.10.1993. The Courts below has laid undue emphasis on
clause (5), where it was mentioned that in case of default, second party i.e.
purchaser/vendee had a right to get the amount refunded with 24% interest
per annum and in case of default on the part of purchaser/vendee, then the
first party i.e. seller/vender was entitled to interest @24% per annum on the
balance amount. The time fixed for the execution and registration of sale
deed was expressly provided as on or before 31.10.1993. There was no
evidence on record to show that on or before the aforesaid date, respondent
No. 1/plaintiff Rama Kansal was ready with balance sale consideration and
other expenses to perform her part of agreement to sell. After the passing of
fixed date, plaintiff was not justified in filing suit for specific performance
of agreement to sell dated 02.08.1993 (Ex.P2).
10.1 Secondly, learned Senior counsel for appellants No. 2 to 4
raised the issue that respondent No. 1/plaintiff was never ready and willing
to honour the terms and conditions of aforesaid agreement to sell. Learned
Senior counsel for contesting appellants referred to the judgment of
Supreme Court of India in Civil Appeal No. 4703 of 2022 [Arising out
of SLP(C) No. 19463 of 2018], decided on July 12, 2022 in case titled
“ U.N. Krishnamurthy (Since Deceased) Thr. Lrs. versus A.M.
Krishnamurthy ” cited in 2022 SCC OnLine SC 840 , where in para No.
46, it was observed as under :-

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“46. It is settled law that for relief of specific performance, the
plaintiff has to prove that all along and till the final decision
of the suit, he was ready and willing to perform his part of the
contract. It is the bounden duty of the Plaintiff to prove his
readiness and willingness by adducing evidence. This crucial
facet has to be determined by considering all circumstances
including availability of funds and mere statement or averment
in plaint of readiness and willingness, would not suffice.”

On this point, he has further put reliance on another judgment
of Supreme Court of India in Civil Appeal Nos. 7825-7828 of 2013, D/d
31.07.2026 in case titled “ V.N.A.S. Chandran versus S. Venila and
others ” cited in 2026(3) RCR(Civil) 804 , where again it was observed that
‘ in a suit for specific performance of contract, the plaintiff is required to
demonstrate continuously his readiness and willingness to perform his part
of contract which includes availability of funds at all material times.’
Learned Senior counsel for contesting appellants took the
stand that Rama Kansal-plaintiff was not ready with balance sale
consideration. On or before the date fixed i.e. 31.10.1993, she never
communicated to appellant/defendant No. 1 that she was ready with
balance sale consideration and calling upon the vendor to perform her part
of agreement to sell. At the time of execution and registration of sale deed,
respondent No. 1/plaintiff was required to pay Rs. 7 lacs along with other
expenses for transfer of property in her favour. Respondent No. 1/plaintiff
Rama Kansal has referred to bank drafts dated 17.10.1993, total amounting
to Rs. 4,70,000/- prepared from Nepal S.B.I. Bank Limited, Kathmandu.
The other two demand drafts, one to the tune of Rs. 28,000/- and other to
the tune of Rs. 45,257.40/- were prepared on 02.11.1993 i.e. after the date
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fixed for execution and registration of sale deed. There was no evidence
with regards to the balance sale consideration. Therefore, it cannot be said
that respondent No. 1/plaintiff was ready with balance sale consideration to
honour her part of agreement to sell dated 02.08.1993 (Ex.P2). It was
appellant No. 1/defendant No. 1 who had issued legal notice dated
06.12.1993 and Smt. Rama Kansal, plaintiff/purchaser was given the offer
to get back the earnest money already paid by her. Therefore, there was no
lapse on the part of Smt. Sangeeta Malhotra or her GPA Smt. Rageshwari
Mattoo – defendants No. 1 and 2 in main suit. Without considering the
aforesaid factual position, learned trial Court has wrongly decreed the suit
filed by respondent No. 1/plaintiff granting her the relief of specific
performance of agreement to sell dated 02.08.1993 and without proper
appreciation of the facts and evidence on record, appeal preferred by
defendants No. 1 and 2 was wrongly dismissed vide impugned judgment
and decree dated 27.05.2006 passed by learned Additional District Judge,
Fast Track Court, Gurgaon.
10.2 It is pointed out that appellants No. 2 to 4 purchased the
property on 06.01.2006 and accordingly, they have stepped into the shoes
of appellant/defendant No. 1 – Smt. Sangeeta Malhotra, the original
owner/allottee of the property in dispute. They are bonafide purchasers for
valuable consideration.
In the light of this, it is submitted that facts of case and legal
preposition were not rightly appreciated by the Courts below. Therefore,
judgment and decree dated 22.09.2003 passed by learned Civil Judge
(Senior Division), Gurgaon and judgment and decree dated 27.05.2006
passed by learned Additional District Judge, Fast Track Court, Gurgaon
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may kindly be set aside by accepting present appeal.
11. On the other hand, learned counsel representing respondent
No. 1/plaintiff argued that appellants No. 2 to 4 are claiming themselves to
be the subsequent purchasers of property in dispute vide alleged sale deed
dated 06.01.2006. The civil appeal no. 55 of 2003/2004 was decided on
27.05.2006 by the Court of learned Additional District Judge, Fast Track
Court, Gurgaon. There was no effort on their part to be impleaded as party
before the First Appellate Court. During the pendency of regular second
appeal, they had filed application under Order 22 Rule 10 CPC for
impleading them as appellants. Appellants No. 2 to 4 neither have any
concern with agreement to sell dated 02.08.1993 (Ex.P2) executed between
Smt. Sangeeta Malhotra through her GPA holder/mother Smt. Rageshwari
Mattoo on the one hand and Smt. Rama Kansal – plaintiff/respondent No.1,
the purchaser on the other hand nor they were party to the litigation.
11.1 Learned counsel representing respondent No. 1/plaintiff
argued that in the case in hand, terms and conditions of agreement to sell
dated 02.08.1993 (Ex.P2) clearly shows that time was not essence of
contract. In case of default, there was clause (5) in aforesaid agreement to
sell, whereby in case of default in making payment, there was specific
clause to pay interest on the amount involved in present transaction. The
vendor was not in a position to forfeit the amount or to cancel the
agreement to sell dated 02.08.1993. (Ex.P2).
11.2 It is further argued that right from the beginning, default was
on the part of Smt. Sangeeta Malhotra, represented through her
GPA/mother Smt. Rageshwari Mattoo. In fact, they were requesting for
time to perform their part of agreement to sell. On 31.10.1993, there was a
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holiday (i.e. Sunday). Smt. Rama Kansal had issued letter dated 01.12.1993
(Ex.P5) through registered post showing willingness to perform her part of
agreement to sell as well as preparation made by her for payment of
balance sale consideration. It was Smt. Sangeeta Malhotra represented
through her mother and GPA Smt. Rageshwari Mattoo who had changed
her mind, as a result, she did not receive the said letter and in return issued
legal notice dated 06.12.1993 and by referring to her communication dated
25.10.1993 offered to refund the earnest money when the date fixed for
execution and registration of sale deed was yet to come i.e. 31.10.1993.
The correspondence between the parties clearly shows that it was
appellant/defendant No. 1 Smt. Sangeeta Malhotra through her GPA
holder/mother Smt. Rageshwari Mattoo who avoided the performance of
her part of agreement to sell, whereas, respondent No. 1/plaintiff was fully
prepared with balance sale consideration which is duly proved on record by
examining witnesses i.e., Anjana Bamli as PW4, Kanta Murti as PW3 and
Robin Vargis, Clerk, Unitech Ltd. as PW1. Respondent No. 1/plaintiff was
having balance sale consideration along with other expenses to purchase
the property in dispute, but it was Smt. Sangeeta Malhotra through her
GPA holder/mother Smt. Rageshwari Mattoo who refused to perform her
part of agreement to sell. Learned counsel representing respondent
No.1/plaintiff further informed the Court that after passing of decree in
favour of plaintiff balance sale consideration is already lying deposited
with Executing Court.
In the light of this, it is argued that facts of case and evidence
on record were rightly appreciated by the Courts below. There is no
perversity in the findings given by the trial Court or the First Appellate
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Court. Therefore, regular second appeal preferred by appellants may kindly
be dismissed.
12. Learned counsel representing respondent No. 2 conceded that
during the pendency of aforesaid litigation, appellants No. 2 to 4 have
purchased the property in dispute and same has been transferred in their
name.
13. I have considered the arguments and have gone through the
record carefully with the able assistance of learned counsel(s) representing
all the parties. Initially, appeal was preferred by Smt. Sangeeta Malhotra
through her GPA holder Sh. Sunil Panwar. Later on, as per order dated
17.11.2007, M/s Uni Developers and its partners were arrayed as appellants
No. 2 to 7 by the orders of Coordinate Bench, now appellants No. 2 to 4.
They claimed to have purchased the suit property on 06.01.2006 and got it
transferred in their name in the record of M/s Unitech, Real Estate
Division, New Delhi. Thereafter, they applied for raising construction and
claimed to have raised construction also. Civil suit was filed by Smt. Rama
Kansal on 16.09.1994 on the basis of one agreement to sell dated
02.08.1993 (Ex.P2) against Sangeeta Malhotra, the vendor, Smt.
Rageshwari Mattoo, mother of vendor being her GPA holder and M/s
Unitech, Real Estate Division, New Delhi, who had allotted the plot in
favour of Smt. Sangeeta Malhotra. The suit was decreed granting relief of
specific performance of agreement to sell dated 02.08.1993 vide judgment
and decree dated 22.09.2003. Feeling aggrieved, Smt. Sangeeta Malhotra
and Smt. Rageshwari Mattoo filed civil appeal in the year 2004 which was
dismissed by learned First Appellate Court vide judgment and decree dated
27.05.2006 and accordingly, judgment and decree passed by learned trial
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RSA-3443-2006 (O&M) -17-


Court was upheld, directing defendants to do the needful in two months
time. It is further not disputed that execution proceedings also started. The
decree holder claimed that she has already deposited entire balance sale
consideration before the Executing Court. Present regular second appeal
was filed on 11.09.2006 by Smt. Sangeeta Malhotra through her GPA
holder Sh. Sunil Panwar. Thereafter, M/s Uni Developers and its partners
filed application under Order 22 Rule 10 CPC dated 26.05.2007 and by
allowing that application by the Coordinate Bench, they were arrayed as
appellants No. 2 to 7 vide order dated 17.11.2007, now appellants No. 2 to
4. It cannot be ignored that regular second appeal was filed by Smt.
Sangeeta Malhotra when she had already sold the property to M/s Uni
Developers and its partners allegedly on 06.01.2006. During the pendency
of first appeal M/s Uni Developers and its partners did not make any effort
to be impleaded as party to the litigation. Smt. Sangeeta Malhotra filed
regular second appeal when she was allegedly left with no interest in the
suit property. At this stage M/s Uni Developers and its partners filed
application to be impleaded as party to the litigation as subsequent
purchasers. After their impleadment, Smt. Sangeeta Malhotra – appellant
No. 1/defendant No. 1 stepped aside and present appeal has been argued by
learned counsel representing appellants No. 2 to 4. While deciding present
appeal, it cannot be ignored that appellants No. 2 to 4 are neither having
any concern with agreement to sell dated 02.08.1993 (Ex.P2) nor they were
party to the litigation before the trial Court and First Appellate Court. They
have dropped in during the pendency of regular second appeal.
14. The case of respondent No. 1/plaintiff Smt. Rama Kansal, now
represented through legal heir was based on agreement to sell dated
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02.08.1993 (Ex.P2). Said agreement to sell was signed by Smt. Rageshwari
Mattoo being GPA holder of her daughter Smt. Sangeeta Malhotra, first
party and Smt. Rama Kansal -purchaser being second party and it was
attested by two witnesses. The execution of agreement to sell dated
02.08.1993 (Ex.P2) and its terms and conditions are not disputed. As per
the terms of agreement to sell dated 02.08.1993 (Ex.P2), property in
question is consisting of Plot No. I-31 with specific boundaries measuring
502.32 sq. yards in South City, Gurgaon Haryana with Unitech Limited
which was owned by Smt. Sangeeta Malhotra. It is further not disputed that
she had paid the entire consideration for allotment of said plot to Unitech
Limited, New Delhi. Therefore, title of property in question is not disputed.
Smt. Rama Kansal – respondent No. 1/plaintiff, now represented through
her legal heir agreed to purchase the said plot for a sum of Rs. 7,78,596/-,
out of which earnest money was paid to the tune of Rs. 78,596/-. Payment
of earnest money is not disputed. Balance sale consideration of Rs. 7 lacs
were to be paid at the time of transfer of property. As per clause (2) of
agreement to sell, date fixed for transfer of said plot was on or before
31.10.1993.
15. The first question which is raised during the course of
arguments is whether time was essence of agreement to sell. In order to
appreciate this fact, terms and conditions detailed in agreement to sell dated
02.08.1993 (Ex.P2) are to be read as a whole. Relevant clause (2) and
clause (5) runs as under :-
xxxxxx
2. That the time limit for the transfer of the said plot has been
st
mutually agreed to as on or before 31 October 1993.
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xxxxxx
5. That in case FIRST PARTY fails to get plot transferred in the
name of the SECOND PARTY within the time limit stated above,
SECOND PARTY has the right to get amount paid refunded with
24% interest per annum. Similarly if the SECOND PARTY fails
to make the final payment within the agreed time limit then the
FIRST PARTY will be entitled to an interest at 24% per annum
on the balance amount from the due date of payment to the
actual date of payment.

The reading of aforesaid clauses together clearly indicate that
in case of default, there was a clause to pay the money with interest @24%
per annum. Therefore, strictly speaking, there was no specific deadline to
perform the said agreement to sell, only penal interest was to be paid on the
amount in case of default in performance of agreement to sell dated
02.08.1993. The dispute started soon after the date fixed when the plaintiff
Rama Kansal wrote letter dated 01.12.1993, Ex.P5 and thereafter, the
process of writing letters/notices and its reply thereto started. Within a
period of less than one year civil suit was also filed.
16. Even if the date fixed for transfer of property is considered up
to 31.10.1993, the correspondence between the parties cannot be ignored.
In the case in hand, there is letter dated 01.12.1993 (Ex.P5) sent through
registered post, post receipt is Ex.P6 and registered A.D. is Ex.P7. As per
record, postmaster visited on the given address to serve the letter on
04.10.1993, 06.12.1993, 07.12.1993 and 08.12.1993 and when the
addressee did not meet, finally it was returned to sender. On the other hand,
Smt. Rageshwari Mattoo issued legal notice dated 06.12.1993 (Ex.D3),
whereby making reference to their meeting on 25.10.1993 mentioned that
purchaser failed to pay balance sale consideration of Rs. 7 lacs, therefore,
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violated the terms and conditions of agreement to sell and offered to return
back the advance money of Rs. 78,596/- and further requested the
purchaser Smt. Rama Kansal to intimate her bank account number so that
said amount could be transferred in her account. Said letter was received by
Smt. Rama Kansal and was replied back on 10.01.1994 (Ex.P13) further
pressing upon that she was ready and willing to perform her part of
agreement to sell and also referred to her letter dated 01.12.1993 and
telegrams sent by her (Ex.P5 to Ex.P12). Aforesaid correspondence
between Smt. Rama Kansal and Smt. Rageshwari Mattoo being GPA
holder of Smt. Sangeeta Malhotra clearly indicates that Smt. Rama Kansal
was calling upon the vendor to perform her part of agreement to sell,
whereas, from the very beginning Smt. Rageshwari Mattoo being GPA
holder of Smt. Sangeeta Malhotra insisted to get the refund of earnest
money already paid by her. There is nothing on record to show that she
took any positive step to perform her own part of agreement to sell.
Considering her act and conduct, she cannot be permitted to take benefit of
her own inaction. Rather she was not ready and willing to proceed further
to transfer the plot in favour of plaintiff/respondent No. 1.
17. Apart from the aforesaid correspondence between the parties,
respondent No. 1/plaintiff examined witnesses to establish that she was
ready with balance sale consideration and regarding this fact, Smt.
Rageshwari Mattoo being GPA holder of Smt. Sangeeta Malhotra was duly
informed. There is testimony of Anjana Bhamli PW4, sister-in-law of
Rama Kansal who confirmed that plaintiff had approached her husband i.e.
brother of Rama Kansal for financial help and accordingly, bank drafts to
the tune of Rs. 4,70,000/- were got prepared from Nepal S.B.I. Bank
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Limited, Kathmandu branch, Ex.PW4/7 to Ex.PW4/10. There is testimony
of Sh. Kanta Murti PW3 who has proved on record bank drafts dated
02.11.1993, one bank draft to the tune of Rs. 45,257.40/- in favour of M/s
Unitech Ltd., New Delhi and another bank draft to the tune of Rs. 28,000/-
in favour of Smt. Rageshwari Mattoo, which are Ex.PW3/1 and Ex.PW3/2
respectively. The respondent No. 1/plaintiff had made all arrangements to
pay balance sale consideration. It has further come on record that when
defendants did not come forward to perform their part of agreement to sell,
aforesaid bank drafts were got cancelled. Respondent No. 1/plaintiff led
sufficient evidence on record to show that Smt. Rama Kansal was ready
and willing to perform her part of agreement to sell. On the other hand,
Smt. Rageshwari Mattoo sent legal notice dated 06.12.1993 calling upon
Rama Kansal to get the refund of her earnest money. Aforesaid factual
position has been rightly considered and appreciated by the Courts below.
18. It is rightly pointed out by learned counsel representing
respondent No.1/plaintiff that appellants No. 2 to 4 cannot raise the issue of
readiness and willingness on the part of respondent No. 1/plaintiff to
perform her part of agreement to sell. This issue could be raised only by the
vendor Smt. Sangeeta Malhotra – appellant/defendant No. 1. Any
transaction which has taken place during the pendency of aforesaid
litigation is hit by the principles of lis pendence . Therefore, stand taken by
appellants no. 2 to 4 claiming themselves to be the bonafide purchaser is
not justified especially when they had no concern with agreement to sell
dated 02.08.1993, Ex.P2 nor they were party to the litigation before the
Courts below.
19. In the light of aforesaid factual position, I do not find any
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perversity in the consistent findings given by the Courts below.
Accordingly, by upholding the judgment and decree dated 22.09.2003
passed by learned Civil Judge (Senior Division), Gurgaon as well as
judgment and decree dated 27.05.2006 passed by learned Additional
District Judge, Fast Track Court, Gurgaon, present Regular Second Appeal
stands dismissed.
20. Pending miscellaneous application(s) if any, shall stand
disposed of accordingly.

02.11.2026 (AMARJOT BHATTI)
lalit
JUDGE
Whether speaking/reasoned: Yes/No

Whether reportable: Yes/No
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