Delhi District Court
Manisha Sood vs Madhubala on 29 April, 2024
IN THE COURT OF SH. SOMITRA KUMAR,
DISTRICT JUDGE-6 (EAST DISTRICT),
KARKARDOOMA COURTS, DELHI
Civil Suit No. 2979/2016
Unique ID No.: DLET01-008681-2016
In the matter of:-
Smt. Manisha Sood
W/o Sh. Anil Sood,
R/o 3185, Paradise Enclave,
Sector-50D, Chandigarh-160047
Through Attorney
Sh. Anil Sood ............Plaintiff
VS.
1. Smt. Madhubala
W/o Late Sh. Sudhir
2. Ms. Shivani
D/o Late Sh. Sudhir
Both R/o C-120,
Kirpal Apartments,
44, I.P. Extension,
Delhi-110092.
3. Ms. Meena Tiwari,
W/o Col. S. K. Tiwari,
R/o M-48, Darpan Colony,
Gwarlior, M.P. ...........Defendants
Date of institution of the suit : 29.05.2006
Arguments concluded on/
Date of Reserving judgment : 19.04.2024
Date of pronouncement : 29.04.2024
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JUDGMENT
1. The plaintiff filed a suit against the defendants for specific performance of contract, possession, permanent injunction, damages, refund of earnest money and cancellation of documents executed by defendants no.1 and 2 in favour of defendant no.3 etc. CASE OF PLAINTIFF:
2. The present suit was initially filed by the plaintiff against defendants no. 1 and 2 praying for relief of specific performance of contract dated 16.02.2005, permanent injunction, and damages. In the original plaint, the plaintiff has pleaded as under:
(i). Defendants no. 1 and 2 along with one Smt. Darshana (now deceased) entered into an agreement to sell and purchase with the plaintiff in respect of built-up property bearing Flat No. 120, Ist Floor, comprising two bed rooms, one drawing-cum-dinning room, kitchen, toilet bath and balcony etc. situated at the layout plan of Kirpal Co-operative Group Housing Society Ltd. built on plot No. 44, fitted with electricity, tap water with meters (hereinafter referred to as "the suit property") for a total consideration Rs.23,70,000/-. The defendants received a sum of Rs. 2,50,000/- in cash out of aforesaid total consideration as earnest money from the plaintiff on 16.02.2005.
(ii). As per the agreement, it was agreed between the plaintiff and the defendants that the plaintiff will pay the balance amount of Rs. 21,20,000/- to the defendants after 15 days CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 2 of 63 when they would hand over/provide the conveyance deed and mutation letter from the DDA. However, when no response was received, the plaintiff personally met the defendants and requested to comply with the terms and conditions of the agreement to sell dated 16.02.2005 and the defendants assured that documents would be handed over to the plaintiff very soon. Thereafter, when the plaintiff once again did not receive any response from the side of the defendants, the plaintiff again approached the defendants on 27.04.2006, however, this time the defendants flatly refused to comply with the terms and conditions of the agreement to sell dated 16.2.2005 and threatened the plaintiff that they are going to sell the suit property to some other third person very soon. Upon inquiry from the locality, the plaintiff came to know that the defendant will sell, transfer, and dispose off the suit property to a third person.
(iii). Defendants have deliberately and intentionally did not perform their part of the contract as per the agreement dated 16.02.2005, and also failed to execute the sale documents in favour of the plaintiff. Defendants failed to perform clause No. 4 of the Agreement to sell dated 16.02.2005. The plaintiff is ready and willing to pay the balance amount of Rs.21,20,000/- as agreed till today. As per the terms and conditions of the agreement to sale dated 16.02.2005, the defendants are liable to pay the double amount of the amount received by them, to the plaintiff in case of any default committed by them.
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(iv). Defendants have caused mental as well as physical harassment to the plaintiff, thus, the plaintiff claims damages to the tune of Rs.50,000/- from the defendants. Defendants have no right or authorization under law to sell, transfer, and dispose off the suit property to any third person except to the plaintiff as the same would lead to multiplicity of litigation and shall prejudicially affect the rights of the plaintiff as per the agreement dated 16.2.2005.
(v). In view of the aforesaid pleading, the plaintiff prayed for the relief of specific performance of contract dated 16.02.2005 in respect of the suit property, permanent injunction, and damages etc. against the defendants.
3. On 13.11.2006, the plaintiff filed an application I.A. No. 13928/2006 under Order 1 Rule 10 of CPC for impleadment of Smt. Veena Tiwari and three other persons stating that the suit property has been sold by defendants no. 1 and 2 to Smt. Veena Tiwari, therefore, she is a necessary and property party to the present proceedings. However, in the course of argument, the plaintiff confined her prayer to the impleadment of only Smt. Veena Tiwari in the present suit.
4. Vide order dated 10.03.2008, the application I.A. No. 13928/2006 under Order 1 Rule 10 of CPC was allowed and Smt. Veena Tiwari was impleaded as defendant no. 3 in the present suit.
5. On 10.03.2008, the plaintiff filed an application I.A. No. 4859/2008 under Order 6 Rule 17 of CPC for amendments of the plaint.
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6. Vide order dated 20.10.2009 the application under Oder 6 Rule 17 of CPC filed by the plaintiff for amendments of the plaint was allowed and amended plaint, praying for the additional relief of possession, refund of earnest money, and cancellation of documents executed by defendants no.1 and 2 in favour of defendant no.3 in respect of the suit property etc, was taken on record.
7. In the amended plaint, the plaintiff has additionally pleaded as under:
(i). On 19.05.2006, when the plaintiff visited the suit property, she came to know that the defendants are trying to sell the property to some third person. Therefore, the plaintiff moved an application under section 151 CPC before the Court seeking direction that the defendants shall not create any third party right, interest in the suit property by selling off the same to a third person, and aforesaid I.A. 6411/2006 was listed on 29.5.2006 and the counsel of the defendants submitted at Bar that the suit property stands allegedly sold by executing an "Agreement to sell and other documents" in favour of defendant no 3, who is sister of the counsel for defendants No.1 and 2, prior to the filing of suit.
(ii). In view of the statement made by the counsel of the defendants, the Hon'ble High Court of Delhi directed defendants not to register a sale deed or formal documents of title in favour of the said person or any other person and shall also maintain status quo with regard to possession till the next date of hearing. CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 5 of 63
(iii). Defendants filed their reply in I.A. 6411/2006 before the Hon'ble High Court of Delhi on 03.07.2006 and submitted that the property has been sold to defendant no.
3/Smt. Veena Tiwari and later on 21/8/2006 filed certain documents allegedly to be of sale and purchase which are one alleged receipt of full and final payment and the other alleged letter of possession both dated 1.05.2006, and further filed certain more documents on 08.11.2006 which are one alleged General Power of Attorney dated 23.2.2006 and an alleged agreement to sell dated 27.04.2006. The defendants also filed a copy of a receipt showing payment of Rs. 24 lacs as consideration amount.
(iv). From the aforesaid receipt, it is apparent that the alleged sale is ante-dated as cheque no. 702564 and 702565 are allegedly dated 27.4.2006 and 1.5.2006 respectively have been encashed only on 01.06 2006 and 19.6.2006 whereas the cheque bearing no. 702561 is of 1.5.2006 and the cheque bearing no.702562 is of 02.05.2006 and cheque bearing no.702563 is of date 10.5.2006 and that too in the name of counsel of the defendants and thus it is clear that the alleged sale is ante-dated just to override the orders of the Court.
(v). The suit property has been sold by defendants no. 1 and 2 to defendant no. 3 by executing bogus documents i.e. agreement to sell dated 25.08.2006, will dated 25.8.2006, GPA dated 25.8.2006 and SPA dated 25.08. 2006 having no sanctity in the eyes of the law despite a stay order operating in favour of the plaintiff granted in I.A.No. CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 6 of 63 6411/2006, and the same is extended till further orders vide order dated 06.09.2006.
(vi). The subsequent purchaser i.e. defendant No.3 has since then given the suit property on rent of Rs. 8,500/- per month to one Sh. Sashmit Anand C/o ICICI Bank in connivance with the office bearer of the society i.e. Kirpal Cooperative Group Housing Society Ltd.
(vii).The Society executive committee was intimated by the plaintiff about the filing of the suit and injunction granted by the court verbally on the telephone and later on through a representation dated 14.07.2006, 19.07.2006 and 01.08.2006, despite that the society. executive committee connived with the defendants and transferred the possession and tenant of the alleged subsequent purchaser i.e. defendant no.3 moved into the flat from the month of October 2006.
(viii).The society through its Secretary Sh. N. C. Jain along with defendants and Smt. Meena Shukla and Sh. Ashish Tripathi together has connived to defraud and frustrate the suit of the plaintiff by engineering an alleged second sale in defiance of the order of the Court.
(ix).The alleged document dated 27.04.2006 through which defendants no. 1 and 2 entered into an agreement to sell in favour of defendant No.3 has been executed on a non- judicial stamp paper of Rs.100/- issued from Delhi bearing No. A939876 allegedly purchased in the name of Mrs. Rajiv Bala from the stamp vendor Mohd. Gufran and is also attested by one notary Zaki Ahmed Khan in CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 7 of 63 the Hon'ble Supreme Court of India. The said stamp paper was issued to the stamp vendor only on 11.5.2006 by the Delhi Treasury therefore, the said agreement to sell could not be executed on 27.04.2006 as alleged because the said stamp paper was not in existence on the said date and the said document has been duly manufactured and is ante-dated and the document has been falsely executed and witnessed and identified on the date of 27.04.2006.
(x). In order to further create evidence and lend sanctity to the alleged document, the said document was allegedly received by the management of Kirpal Co-operative Group Housing Society Ltd. in back date i.e. 2.5.2006 by the then President and Secretary of the Society.
(xi). In view of the aforesaid pleadings in amended plaint, the plaintiff in amended plaint prayed for the relief of specific performance of the contract, possession, permanent injunction, damages, refund of earnest money and cancellation of documents dated executed by defendants no.1 and 2 in favour of defendant no.3 in respect of the suit property etc. WRITTEN STATEMENT ON BEHALF OF DEFENDANTS NO. 1 AND NO. 2
8. Upon service of summons for settlement of issues of this suit, defendant no. 1 and 2 contested this suit by filing their written statement. In the written statement of the defendants, they took preliminary objections as follows:
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(i). In the present suit the Plaintiff has filed on the basis of an unregistered alleged Agreement to sell dated 16.02.2005 which has no value in the eye of Law in view of the Section 17 (1)(A) of the Indian Registration Act and Section 23A of Indian Stamp Act. If such a document is not registered then the same is not admissible in Evidence. Further, stamp duty to the tune of Rs.900/- of the transaction is to be paid for such Registration.
(ii). No cause of action had arisen to the plaintiff to file the present suit of specific performance as according to the plaintiff the alleged agreement itself Plaintiff could have claimed specific performance only fifteen days after the defendants handed over the conveyance deed and mutation letter of their flat to the plaintiff upon its receipt from DDA and the same has not been receive by the defendants till date. The Plaintiff could not have filed the present suit even in view of the alleged agreement to sell filed by them, therefore, the suit is not maintainable and is liable to be dismissed. Thus, the alleged agreement to sell falls within the category of contingent contract within the meaning of the Indian Contract Act and could not have been enforced.
(iii). Defendants had neither executed the alleged agreement to sell filed by Plaintiff nor they had received any money from Plaintiff in this regard. Handwritten entries in the alleged agreement to sell are also not in the handwriting of the defendants. The signatures of the defendants and late Darshan existing on the alleged agreement to sell are CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 9 of 63 not their signatures and an attempt has been made to forge the signatures of defendants in this document.
(iv). The suit property was purchased by the father of defendant No.1 with the help of Mr. Anil Sood who is engaged in property dealing business with his Plaintiff wife. Even at the time of filing of the present suit Plaintiff and her husband owned two flats No. 137 and 63 in the Kirpal Apartments. Later, however, the Plaintiff sold flat No. 63 and rented out flat No. 137.
(v). In the alleged agreement to sale it is mentioned that the transaction of the alleged agreement to sale has been finalized by M/s Manish Software and Services. This concern belongs to the Plaintiff and her husband. Thus, by the alleged agreement, Plaintiff has claimed herself to be a buyer as well as property commission agent also. In view of these contents, the alleged Agreement to sell is a void contract.
9. It is further pleaded by defendants no. 1 and 2 in their written statement as under:
(i). The suit property was purchased by Shri Inder Narain Sharma, father of defendant No.1 and late Smt. Darshana.
The suit property was inherited by the defendants and the late Smt. Darshana by the Will of Shri Inder Narain Sharma. The defendants and late Smt. Darshana decided to sell the suit property as in the suit property defendant No.1 lost her husband, her father and her young married daughter, and the defendants had also borrowed huge amounts for their household and medical expenses.
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(ii). The defendants requested Anil Sood to get the suit property converted from lease hold to free hold from DDA. Mr. Anil Sood had taken all original papers of suit property, twenty-five thousand as DDA charges etc and had also obtained signatures of the defendants and late Smt. Darshana on blank and typed plain and stamp paper which were done by them in good faith. Mr. Anil Sood had applied to DDA in February 2005 for a conveyance deed, however, when no progress was made in the matter of the conveyance deed, Defendants contacted their lawyer to ascertain the position of the conveyance deed. Due to the efforts of the lawyer of the defendants conversion of the suit property from lease hold to freehold was approved by DDA in February 2006 and the defendants started complying with the formalities. Mr. Anil Sood who wanted to grab the suit property by hook or crook to sell it as a property dealer had become annoyed after the defendants had told him not to interfere in the matter of the suit property. Due to this, he had created many obstacles so that freehold be not approved. Once it was approved Mr. Anil Sood in connivance with the dealing official of DDA stalled the execution of the conveyance deed.
(iii). In the meantime, the defendants had finalized a deal of sale of their flat to Smt. Veena Tiwari w/o Retd. Col. Shiv Kumar Tiwari. Retd. Col. Shiv Kumar Tiwari had got an appointment at Delhi as a consultant in a Road Construction Firm but he had to go to Bombay for an urgent knee operation at Lilawati Hospital. It was CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 11 of 63 mutually agreed between the defendants and Mrs. Veena Tiwari that upon the return of Mrs. Veena Tiwari to Delhi from Bombay sale transaction will be made. On 27.4.2006 the defendants got a letter of DDA intimating them of approval of their execution of the conveyance deed in which original papers of Flat 120 were asked by DDA upon this the defendants searched original documents but did not find them, they contacted Mr. Anil Sood and asked him to return their original papers. Sh. Anil Sood told the defendants that he will see and return their papers in his possession in a few days. Mrs. Veena Tiwari was insisting upon the immediate sale and possession of the suit property as her operated husband badly needed immediate accommodation. Therefore, the defendants completed the sale transaction with Veena Tiwari by way of sale agreement and after receiving the entire consideration amount handed over possession of the suit property to Mrs. Veena Tiwari. Mr. Anil Sood instead of returning the original papers of the defendants filed the present suit in this Hon'ble High Court of Delhi on the basis of a fabricated Agreement to sale.
(iv). Counsel for defendants while going through the supplementary list of this day noticed the listing of the present case and rushed to the court of Justice Manju Goel in the Hon'ble High Court of Delhi where it was listed and appeared in the suit. Counsel later told the defendants about this suit due to which it became certain that Anil Sood would not return her papers. Defendant No.1 as such lodged a report in P.S. Mandwali in this CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 12 of 63 regard. The plaintiff also sent a letter to DDA through her advocate not to issue a conveyance deed to the defendants in view of this suit.
(v). The plaintiff and her husband Anil Sood have mentally tortured the defendants. The plaintiff has not issued any legal notice to defendants before filing his suit. The question of payment of compensation or any money for default does not arise as no agreement existed between the defendants and the plaintiff. The suit was filed by Plaintiff with ulterior motives to try to grab suit property of the defendants after she came to know that the execution of the conveyance deed had been approved by DDA and now she or her husband may not be able to force the defendants to give their flat to them and there will be no obstacle in sale.
(vi) Rest, all the allegations made in the plaint were denied by the defendant no. 1 and 2.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 3
10. Defendant no. 3 filed written statement twice, firstly on 15.05.2008, after the impleadment of defendant no. 3 in the present suit and secondly on 04.05.2010 after amendments in the plaint were allowed. Defendant no. 3 pleaded as follows in the amended written statement:
(i). Defendant no. 3 has purchased the suit property from its absolute owners defendants Nos. 1 and 2 after paying them entire consideration, and defendant no. 3 after CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 13 of 63 getting vacant possession of above property are in peaceful possession of the same.
(ii). Defendants Nos. 1 and 2 had executed Agreement to sell and power of attorney in favour of Defendant No. 3 and since power of attorney and agreement to sell are required to be registered by Delhi Government Rules and Indian Registration Act and as such the same was got duly registered by Registrar after paying required stamp duty of more than thirty thousand. As the sale by way of Power of Attorney has been duly recognized by the Government of Delhi, as such Defendant No. 3 is a bonafide purchaser of suit property.
(iii) The husband of Defendant No. 3 has retired from Indian Army after serving the nation with pride and they do not own any other property except the above flat of 120, Kirpal Apartments.
(iv). Defendant No. 3 repeated the contentions of defendants no. 1 and 2 in her written statement regarding the plaintiff and her husband dealing in property, having purchased and sold many properties in Kirpal Apartments itself including flat No. B-68 being sold during the period of filing of the present suit by the plaintiff, and being owner of Flat No. 135 of Society which has been given on rent by the plaintiff.
(v). The alleged Agreement to sell upon which plaintiff has filed instant suit is a fabricated document. The said agreement is though not binding on defendant no. 3 but is also an invalid document and is a nullity in the eye of law because Defendants No. 1 and 2 have already denied that CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 14 of 63 the same was ever executed by them; Defendants No. 1 and 2 have brought report of Ex. C.B.I. Handwriting officer that the alleged signatures of defendants No. 1 and 2 on both papers of alleged agreement are different; an agreement to sell is required to be a registered document under Indian Registration Act but the alleged agreement to sell filed by the plaintiff is an unregistered document;
that in all other dealings of properties, plaintiff and her husband have used at least notarized Agreement to sell supported with necessary documents i.e. G.P.A., will and Receipt but in the present case the alleged agreement to sell is neither notarized nor it is supported by any necessary document because it was never executed.
(vi). The husband of the plaintiff namely Anil Sood was pursuing the matter of the issuance of the conveyance deed of the suit property with D.D.A. and as such he was having a fiduciary relationship with Defendants No. 1 and 2 and later when the conveyance deed was likely to be issued to them, plaintiff stalled the same by sending copy of the instant suit to D.D.A.
(vii).The agreement to sell between defendant no. 1 and 2, and defendant no. 3 was indeed executed on 27.04.2006 and duly entered in the notary register on that date. No sale deed has been registered in favour of defendant no. 3 in respect of the suit property. The defendant no. 3 being the absolute owner of the suit property has every right to rent out her said property.
(viii).Rest, all the allegations made in the plaint were denied by defendant no. 3 stating most of the averments are CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 15 of 63 related to defendants Nos. 1 and 2 only and as such suit as a whole has no binding character for defendant no. 3.
REPLICATION
11. In replication to written statement of defendant no. 1 and 2, the plaintiff reiterated the contents of the plaint and made necessary denials of the defendant's averment in the written statement of defendant no. 1 and 2. Additionally, it is submitted that the amendment to the plaint by the plaintiff was allowed vide order dated 20.10.2009 and the amended plaint filed along with application no. 4859/2008 was taken on record and the defendants were granted four weeks time to file written statement, however, the defendants did not file written statement and Ld. Counsel for the defendants have made a statement that no separate written statement is to be filed on behalf of defendant no.1 and 2. Therefore, the averments of the plaintiff in the amended written statement have gone unrebutted, and by virtue of the provisions of Order VIII Rule 5 CPC, it is incumbent upon the defendants to specifically deny the pleadings and if they do not deny then the same shall be taken to be admitted; that WS filed by the defendant no.1 and 2 is not in accordance with the provisions of the High Court Rules and the Code of Civil Procedure, 1908 as the same is not supported with any affidavit.
12. In replication to written statement of defendant no. 3, the plaintiff reiterated the contents of the plaint and made necessary denials of the defendant's averment in the written statement filed by defendant no. 3. Additionally, the plaintiff has inter alia pleaded that the defendant no. 1 and 2 are not the absolute owner of the suit property. It is further averred that in view of the CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 16 of 63 existence of the agreement to sell dated 16.02.2005, all the subsequent agreements related to the suit property with any party are null and void in the eyes of the law; that defendants no. 1 and 2 transferred the title in favor of the defendant no. 3 in utter violation of the stay order dated 29.05.2006 of Hon'ble High Court of Delhi passed in the present suit and as such all the documents pertaining to the suit property executed in favour of defendant no.3 are null and void and defendant no.3 is a conspirator along with defendant no.1 and 2.
FRAMING OF ISSUES
13. After competition of pleadings of the parties following issues were framed on 02.11.2010:-
1. Whether the plaintiff is entitled to specific performance of agreement of 16th February, 2005? OPP
2. Whether the plaintiff is entitled to the damages of Rs.
50,000/-? If so, with what rate of interest and for what period ? OPP
3. Whether this suit is not maintainable as per preliminary objection (A) taken in the written statement? OPD
4. Whether the agreement to sell is forged and fabricated? OPD
5.Relief.
14. On 24.08.2011, an application under Order XIV Rule 5 of CPC filed by the plaintiff was allowed and the following additional issue was framed:-
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 17 of 63 (4A) Whether the plaintiff is entitled to a decree of cancellation of the agreement to sell, GPA, Will etc. all dated 25.08.2006 executed in favor of defendant no.3? OPP PLAINTIFF'S EVIDENCE
15. In support of its claim the plaintiff examined fourteen witnesses.
(i). The plaintiff examined herself as PW1. During examination in chief, the plaintiff viz. PW1 Smt. Manisha Sood had deposed in the line of plaint of this suit and tendered affidavit Ex.PW1/X in her evidence and relied upon the documents exhibited as Ex.PW-1/1 to Ex.PW-1/45 and also tendered supplementary affidavit Ex. PW-1/Y. However, in the documents exhibited as Ex. PW-1/1 to Ex. PW-1/45, it was clarified by Ld. Predecessor Judge that there is no document on record marked as Ex. PW1/7, Ex. PW1/8 or Ex. PW1/9 and the documents described in examination in chief affidavit Ex. PW1/X as Ex. PW1/14, Ex. PW1/27, Ex. PW1/29-34 and Ex. PW1/38-45 are marked as Mark A to Mark P. PW-1/Smt. Manisha Sood was cross-examined at length by Ld. Counsel for the defendants. During cross-examination, PW1/plaintiff deposed that she did not get issued any legal notice to the defendants calling upon them to execute the sale deed or pay her double the earnest money in terms with the agreement Ex.PW-1/3.
She further deposed on the day she had executed agreement to sell Ex.PW-1/3, the suit property was not freehold property and that even on the day when she filed the suit, the suit property was not freehold. She again said that when she filed this CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 18 of 63 suit, she got issued conveyance deed in favour of defendants. She deposed that she intended to purchase the suit property for personal residence.
She admitted that during the period between the agreement to sell and the filing of this suit, they sold away one ground floor flat of three bedrooms in the same society in which the suit property is located. She volunteered to state that she had undergone spinal surgery and they needed a ground floor or first floor flat and purchased the said flat but they had to sell away the same as for the education of their children and they shifted to Pitampura. She further admitted that during the said period her husband also purchased and sold a few other flats in the same society as her husband was working as a property dealer.
She deposed that except the agreement to sell Ex.PWI/3, no other document like receipt, Will or power of attorney were executed at the time of entering into the agreement.
She further deposed that the agreement to sell Ex. PW1/3 was got drafted by her husband; that the stamp paper on which the agreement was executed was purchased by her husband; that the handwritten portion on first page and para-12 of Ex.PW1/3 is in the handwriting of her husband.
She deposed that she is aware that defendants 1 and 2 were owners of the suit property since when their father purchased the suit property, her husband was property dealer from seller's side.
She deposed that it is the Ld. Counsel for defendants who approached her husband and requested him to get the conveyance deed issued as the Ld. Counsel for defendants was not able to CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 19 of 63 obtain the same and it is from the personal account of the Ld. Counsel for defendant in UCO Bank, Supreme Court that the demand draft in favour of DDA was got issued for the purposes of conversion and conveyance deed.
She further deposed that it is mentioned in the agreement to sale, Ex. PW1/3 that in case defendants No. 1 and 2 do not execute any sale deed in her favour then she shall be entitled to get double amount of Rs. 2,70,000.
She admitted that on behalf of Defendant No. 3 an offer was made for return of double the amount involved in Ex PW1/3. She voluntarily stated that the Ex.PWI/3 was executed between her and defendant No. 1 and 2 and accordingly no such offer could be made or accepted as offer was made by defendant No. 3 to whom defendant No. 1 and 2 had sold the property. She further deposed that even that offer was made after one and half year of sale of suit property to defendant No. 3.
She further deposed that she had filed an application for comparison/verification of signatures of defendant No. 1 and 2. She admitted that a report on the said signatures is the part of record filed by defendant No. 1 and 2. She denied that she had withdrawn said application after filing of the report by defendant no. 1 and 2.
She further deposed that she came to know about the sale of the suit property by defendants No. 1 and 2 to defendant No. 3 on the date when she got a stay order in her favour.
She further deposed that she does not have any individual bank account in Delhi and no independent individual source of CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 20 of 63 income at the time of execution of the agreement. She voluntarily stated that she was working with her husband and was paid for the same.
She deposed that she does not know if along with agreement to sell, Will, power of attorney and receipt are executed and cannot say if all these were executed at the time of transaction of any immovable property by her.
She deposed that all proprieties related documents were prepared by her husband and she used to sign them. She denied the suggestions that the agreement to sell of the present property filed by her is a forged documents signed by her only at the behest of her husband and do not bear the signatures of defendants 1 and 2 or late Ms. Darshna or the witness Ms. Meena Shukla mentioned therein.
She deposed that it may be true that copy of the agreement to sell which she gave in the society bears her signatures in the pen on the first page (face of stamp paper) and the signatures of the defendants on the second page. She further denied the suggestions that her husband was assisting the defendants in getting the conveyance deed from DDA and for this purpose he had procured the signatures of the defendants on many blank papers.
She deposed that at the time of execution of agreement to sell she was holding a bank account but she does not know if it was in her individual name or not. She deposed she does not know the name of the bank, but it can be Punjab National Bank or Vaish Cooperative Bank.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 21 of 63 She denied that the conveyance deed in respect of the suit property was not issued on the date of filing of the suit. It was issued in January 2006 and was given to Ld. counsel for the defendants. She further deposed that the conveyance deed may not have been issued in view of the interim stay granted in her favour in the present suit.
She deposed that she cannot say if any second copy of the agreement to sell was prepared or exchanged with the defendants. She denied the suggestion that except her signatures, all the signatures on the agreement to sell are forged, and therefore she did not get their signatures tallied or verified with their admitted signatures and she had withdrawn her application for verification of signatures of defendants because of the said reason and she was apprehensive that the signatures might not tally. She further denied the suggestion that she along with he husband had fabricated the agreement to sell and filed a false suit to usurp the property of defendants 1 and 2 and late Ms. Darshna.
(ii). Plaintiff examined her husband/SPA Sh. Anil Sood as PW2. During examination in chief, PW-2/Sh. Anil Sood tendered affidavit Ex.PW2/X in his evidence and relied upon the documents marked as Mark PW-2/A to Mark PW-2/I. PW2/Sh. Anil Sood deposed in his affidavit Ex. PW2/X in para 16 to 20 that they shifted to Pitampura on 18.03.2006; that in April 2006, Ld. Counsel for defendants informed him that defendants no. 1 and 2 want to cancel the deal as they are not getting any property to purchase as rates of property has gone up; that around 15.04.2006, he, plaintiff, Mr. R.K. Saxena, Mrinal Bhattacharya, and Mr. Raja Banerjee went to defendant no. 1 and CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 22 of 63 2 house; and that on 27.04.2006 defendant no. 1 flatly refused to comply with the terms and conditions of agreement to sell dated 16.02.2005.
PW-2/Sh. Anil Sood was cross-examined at length by Ld. Counsel for the defendants. During cross-examination PW-2/Sh. Anil Sood deposed that he used to work as a property dealer and now he stopped it. He further deposed he was software engineer and his software company was running in the name of Manish Software & Services and that he was working as a property dealer also under the same name. He deposed that in clause 12 of agreement to sell Ex. PW1/3, where it is stated that the deal is finalized through Manish Software & Services.
He denied the suggestions that he had sold a ground floor flat in Kirpal Apartments for Rs. 11 lacs immediately before filing of the suit ;
He deposed that he owned a flat in Kirpal Apartments in his own name and sold the same in February 2015 and also deposed that there was a flat in Kirpal Apartments in his father's name also and after his sad demise it was transferred to his mother's name who sold it probably in 2013.
He further deposed that the agreement to sell was executed at the residence of the defendants counsel on 16.02.2005 between 12 noon to 1.00 pm; that he got the agreement to sell prepared; that he did not become a witness to the agreement to sell in view of clause 12 i.e. finalization of deal through Manish Software & Services which is his proprietary concern.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 23 of 63 He further deposed that generally in a sale transaction, four documents are executed i.e. agreement to sell, Will, receipt and power of attorney. However, only the agreement to sell was executed. He voluntarily stated that the rest of the documents are executed at the stage of final payment when the possession is also transferred.
He further deposed that no copy of agreement to sell was given to the society. He voluntarily stated that the stage of the final agreement never came in view of non-fullment of conditions of the agreement to sell by the defendants.
PW2 denied the suggestions that he had given photocopy of the agreement to sell Ex.PW1/3 in the society office and in that copy on the first page of photocopy having non-judicial stamp had pen signatures of his wife i.e. plaintiff alone and second page had alleged signature of all the defendants and late Ms. Darshna.
He further denied the suggestions that he had filed any application before this court for verification and comparison of signatures of the defendants on the agreement to sell with their original signatures.
He admitted that he had given a letter about the pendency of this suit to the DDA requesting not to execute conveyance deed of this property. Then, he voluntarily stated that the documents in relation to the present suit had been given by Ld. counsel for the defendants to the DDA.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 24 of 63 He further deposed that he did not give any notice to the defendants for execution of the sale deed in furtherance of the agreement to sell.
He denied the suggestion that he withdrew Rs. 2.5 lacs from his over-draft account on 16.02.2005 as he did not have sufficient funds on that day.
He deposed that his account is over draft account and all his savings are in the form of fixed deposits and that he cannot say there was sufficient balance in the joint account of the plaintiff and him. He voluntarily stated that there was sufficient amount/money to pay the sale consideration in view of his money in his other accounts as well as in FDs and securities.
He deposed that he had got suit property sold to the father of the defendant Madhu Bala and had facilitated the seller, whereas, the buyer was facilitated by some other person/property dealer.
He deposed that his submission in para 8 of the affidavit Ex. PW2/X regarding corrections in agreement to sell Ex. PW1/3 having been made by Sh. Vijay Kumar Shukla are correct.
He denied the suggestions that he fabricated the agreement to sell in question and also he had already sold a flat at ground floor for a consideration of Rs.11 lacs in the same society before the sale of above property. Further denied the suggestions that Secretary of the society Mr Joshi had offered me Rs.6 lacs i.e. double of the earnest money on behalf of defendant No. 3 Smt. Veena Tiwari before filing of the present suit at the house of the President of the society. He voluntarily stated that Rs.7 lacs were CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 25 of 63 offered by Sh. V K Shukla, Ld. Counsel for the defendants at the house of the President of the society and at that time Mr. R.K. Saxena, a resident of the society were also present there. He further deposed that it was agreed that Rs.7 lacs shall be payable within 10 days from the date of the meeting and the same were not paid within the time, as settled. Further denied the suggestions that he had filed the suit to blackmail the defendants.
(iii). PW-3, Sh. Shiv Shakti Singh, Data Entry Operator from the Office of Sub-Registrar VIII, Geeta Colony, Delhi-31 as PW- 3 was summoned. However, he was only partly examined in chief and he was never cross-examined by the defendants. Therefore, the examination of PW-3 was never completed.
(iv). PW-4 Sh. Ajay Gupta, Secretary, Kirpal Cooperative Housing Society as PW-4 was also the summoned witness. However, he was only partly examined in chief and he was never cross-examined by the defendants. Therefore, the examination of PW-3 was never completed.
(v). Plaintiff also examined Sh. Rajiv Ranjan, UDC, Treasury office, Divisional Commissioner, Revenue Department, Tis Hazari Court as PW-5 who was also the summoned witness. He brought the original record maintained from 25.04.2006 to 30.06.2006 for the movement of the stamp paper sr. no.A939876 of Rs.100/- and placed on record as a copy of the same Ex.PW- 5/1 (OSR). He also brought original vendor sale register maintained in his office and placed on record a copy of the same as Ex. PW-5/2 (OSR). He also brought original reply of RTI application bearing ID no. 356 having F. No. CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 26 of 63 1(1)/RTI/DT/DC/06-07/558 dated 26.07.2007, already Ex.PW- 1/37 (Colly).
He deposed that as per the record maintained in my office Ex. PW5/1, the same serial of stamp was issued from the double lock to single lock on 08.05.2006 for day to day issue to the vendors. He further deposed that as per record Ex. PW5/2, the above said stamp paper was issued to stamp vendor Gurfan on 11.05.2006 for further sale in the market.
(vi). Plaintiff also examined Sh. Ram Tirath, LDC/Record Keeper from Sub-Registrar-VIII, Geeta Colony as PW-6 who was also the summoned witness. He brought the deed of Will dated 25.08.2006 executed by Smt. Madhubala in favour of Smt. Veena Tiwari registered vide registration no. 3687 in Addl. Book No. 3 Volume No. 765 on page 51 to 52 and copy of the same Ex. PW-6/A (OSR) and also brought deed of Will dt. 25.08.2006 executed by Ms. Shivani in favour of Smt. Veena Tiwari registered vide registration no. 3684 in Addl. Book No. 3 Volume No. 765 on page 45 to 46 and copy of the same Ex. PW-6/B (OSR).
(vii). Plaintiff also examined Ms. Babita Pandey, Dy. Manager from Punjab National Bank, Branch CGHS, Patparganj, Delhi as PW-7, tendered her evidence affidavit Ex.PW-7/1 and relied upon the document i.e. statement of account of Sh. Anil Sood bearing A/c No. 3979009300002529 w.e.f. 15.02.2005 to 16.02.2005, Ex.PW-7/A. During her cross-examination, PW-7 deposed that Rs. 2,50,000/- were paid in cash to Mr. Anil Sood against overdraft account.
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(viii). Plaintiff also examined Sh. Dharambir Singh, UDC from Group Housing Society, DDA, Vikas Sadan, INA, New Delhi as PW-8, tendered his evidence affidavit Ex.PW-8/X and relied upon the documents Ex.PW-8/A to Ex.PW-8/H. However, as per the observation of Ld. Predecessor Judge, the documents Ex. PW8/A to Ex. 8/H were not found on record. It is also observed that Ex. PW8/F is already exhibited as Ex. PW1/28 and Ex. PW8/E bears Mark PW1/32)
(ix). Plaintiff also examined Sh. C.B. Joshi, resident of Kirpal Apartment, as PW-9, tendered his evidence affidavit Ex.PW-9/A During his cross-examination, PW-9 deposed that Smt. Manisha Sood with her husband used to reside in her flat no. 137 in the society and they were doing the business of property dealing inside/outside the society and sold flat no. 64/68, three bed rooms set in the year 2006.
(x). There was no witness with nomenclature PW-10 who was examined in the present matter.
(xi). Plaintiff also examined SI Ravinder Kumar from PS Mandawali, Delhi as PW-11. He tendered his evidence affidavit Ex.PW-11/A and relied upon the documents, official order dated 04.03.2016 (OSR) Ex.PW-11/1 and DD No. 36B dated 04.05.2006 Ex.PW-11/2 (OSR).
During his cross-examination, PW-11 deposed that he has not brought the NCR register as the summoned record has already been destroyed and placed on record order Ex.PW-11/1. He further deposed that the DD entry consists of missing and the details were recorded in NCR.
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(xii). Plaintiff also examined Sh. Ritesh Goswami, Assistant Manager from ICICI Bank, Branch City Centre, Gwalior Branch, Madhya Pradesh as PW-12 who was the summoned witness, tendered his evidence affidavit Ex.PW-12/A. He relied upon the statement of account w.e.f. 01.04.2006 to 31.08.2006 of saving bank account no. 019701504432 in the name of Sh. Shiv Kumar Tiwari and Ms. Veena Tiwari, Ex.PW-12/1.
(xiii). Plaintiff also examined Sh. M.S. Mishra, Secretary as PW- 13 who was the summoned witness, tendered his evidence affidavit Ex.PW-13/A. He relied upon documents Ex.PW-13/1 to Ex.PW-13/4, wherein Ex. PW13/3 is letter dated 14.07.2006 of the plaintiff to the Kirpal Cooperative Group Housing Society informing the society about the stay order of Hon'ble Court of Delhi regarding the suit property, Ex. PW13/2 is another letter from the plaintiff to Kirpal Cooperative Group Housing Society in reference to her letter dated 14.07.2006 complaining that work of suit property did not stop despite her letter dated 14.07.2006, Ex. PW13/1 a letter submitting copy of order of Hon'ble High Court of Delhi granting stay in respect of the suit property, Ex. PW13/4 copy of the registered agreement to sell dated 25.08.2006 executed in favour of Smt. Veen Tiwari by Smt. Madhu Bala and Smt. Shivani Saxena.
In this affidavit PW13/A, the PW13 deposed that case book pertaining to the period of the year 2006 may have been weeded out by the previous management; that gate pass are not returned by tenants in Society Office and nor are required by Society; and that membership of society was provided to Mrs. Veena Tiwari on the basis of registered agreement to sell.
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(xiv). Plaintiff also examined Sh. Anand Walia, Clerk, UCO Bank, Supreme Court Branch, New Delhi as PW-14. He tendered his evidence affidavit Ex.PW-14/A. He relied upon documents Ex.PW-14/1 to Ex.PW-14/3. Ex. PW14/1 is statement of account bearing A/c no. 020701000-13723 in the name of Mr. Vijay Kumar Shukla from the period 02.02.2006 to 31.08.2006.
In his affidavit Ex. PW-14/A, PW14 deposed in para 3 that voucher dated 28.02.2005 for pay order by Mr. Ashish Tripathi Advocate on which pay order was made in favour fo DDA for Rs. 19,550/- on 28.02.2005 is not available with the Bank as the same got destroyed in a Major Fire break out in 2012 in the bank During his cross-examination, PW-14 deposed the name of Sh. Ashish Tripathi in para no.3 of his affidavit was mentioned only because in the summons order a voucher allegedly in the name of Ashish Tripathi was called, however, no such voucher is available due to fire in the bank.
(xv). Thereafter, vide order dated 15.05.2018 plaintiff's evidence was closed.
DEFENDANT'S EVIDENCE
16. The defendants examined three witnesses.
(i). Sh. V.N. Sehgal was examined as DW-1 as an expert witness. He tendered his evidence by way of an affidavit Ex. DW-1/A and relied upon the documents certified copy of the agreement to sell and purchase dated 16.02.2005, Ex.DW-1/1 and his original report dated 08.03.2008 Ex.DW-1/2. In his affidavit Ex. DW1/A, based on the report Ex. DW-1/2, DW1 deposed that the signatures of Madhubala, Shivani and Darshana as existing CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 30 of 63 on the first page of the document marked as Q1, Q2 and Q3 respectively do not match with their signatures on the second page marked as A1, A2 and A3.
DW-1 was cross-examined at length by Ld. Counsel for the plaintiff. During cross examination, DW1 deposed he has done training in document expertise in many countries such as U.K. Germany, FBI in USA. He deposed that he has not brought any document to show that he has taken training in handwriting examination. He deposed that he has written a book in this regard. He deposed that he examined a certified copy of the agreement to sell dated 16.02.2005 as given to him by the Counsel for the defendants and he did not seek the original of the same for comparison of the signatures as it was not necessary. He also deposed that he has mentioned the signatures of defendant no. 1, defendant no. 2, and late Ms. Darshana on the front page (page 1) of the certified copy of the agreement to sell dated 16.02.2005 Ex. DW1/1 as the questioned signature and signature of the said persons on page 2 of Ex. DW1/1 as admitted signature and compared the same. He further deposed he did not identify the admitted signature of Ms. Madhu Bala/defendant no. 1, Ms. Shivani/Defendant no. 2 and late Ms. Darshana at instance of any one for the purpose of comparison of signature. He further deposed that he never called Ms. Madhu Bala and Ms. Shivani to take their original signature for comparison of the signature on the Ex. DW1/1 as it was not necessary. He denied the suggestion that he did not follow the well-established norms, rules and regulations for the examination of handwriting. He denied the suggestion that he has given the opinion on the instruction of Sh. V.K. Shukla or given a wrong opinion to benefit the defendants. CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 31 of 63
(ii). Defendant no. 2, Ms. Shivani Saxena, was examined as DW-2. She tendered his evidence by way of an affidavit Ex. DW- 2/A. DW-2 was cross-examined at length by Ld. Counsel for the plaintiff. During cross examination Ms. Shivani Saxena admitted that vakalatnama, filed in the case on behalf of her and her mother bears their signatures at points X & Y respectively. She further admitted that the written statement of this case, filed on behalf of her and her mother, bears her signatures at points A&B and the signatures of her mother at points C & D. She has admitted that along with her written statement, there is no supporting affidavit or attestation.
She deposed that agreement to sell, Ex.PW1/3 does not bear her signatures, her mother's signatures, or her Mosi Darshna's signatures on both pages. She denied the suggestion that she is intentionally denying her signatures, signatures of her mother and her Mosi, at points A to F, respectively, on the agreement to sell, i.e. Ex.PW1/3. She further denied the suggestion that there was a transaction for sale for total consideration of Rs.23.70 lakhs and she along with her mother and Mosi, had received part payment of Rs.2.50 lakhs at the house of Sh. Vijay Kumar Shukla.
She deposed that the deal of her flat with Smt. Beena Tiwari had been done before passing of the status quo order by the Hon'ble High Court of Delhi but she does not remember the date. She denied the suggestions that she is deposing falsely to support defendant No.3. Mrs. Beena Tiwari. She further denied the suggestion that she had falsely denied the agreement to sell, CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 32 of 63 executed in favour of Ms. Manisha Sood and during the continuance of the stay order of Hon'ble High Court of Delhi, she and her mother had executed a false agreement to sell and thereafter, executed the sale documents in favour of Mrs. Beena Tiwari to deprive the plaintiff and defraud the plaintiff and bypass the order of the Hon'ble High Court of Delhi.
She deposed that Mr. Anild Sood had taken papers from them for getting our flat freehold done by DDA, and when he could not get it done, then, she had requested Mr. Shukla and he had got it done.
She admitted that her father as per her memory died in the year 1996 and her father expired before coming to flat in question.
She further denied the suggestion that the earlier transaction as referred in para no.5 of her affidavit was done in between her, her mother, her Mosi at one side and the plaintiff on the other.
She deposed that they had vacated the suit property, i.e., C- 120, Kripal Apartment, IP Extension, Delhi in the year 2006 but she did not remember the month and date. She further admitted that she had shifted in the Ghaziabad property after 13.07.2006 after vacating the suit property.
She further denied the suggestions that her mother had falsely claimed that the property document is missing, however, the same document was with her and her mother and she and her mother had handed over the original documents to Mrs. Beena Tiwari on 01.05.2006.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 33 of 63 She deposed that she did not remember whether the cheque received from Mrs. Beena Tiwari was deposited in the Bank on the next day or not.
(iii). The defendants examined Sh. Mahesh Gupta, office clerk, Kripal Apartments as DW-3. He tendered his evidence by way of an affidavit Ex. DW-3/A and relied upon the documents attested copies Mark A to Mark E which are copies of sale deeds of flats bearing no. C-29 Ground Floor dated 25.02.2002, B-137 Second Floor dated 05.02.2015, B-63 Ground Floor dated 01.05.2006, Flat No. A-21 sixth floor dated 19.07.2013, and copy of notarized of the agreement to sell and GPA both date 17.04.1996 of Flat No. - 121 First Floor, of Kirpal Apartment, I.P. Extension, Patparganj, Delhi-110092 respectively.
DW-3 was cross-examined by Ld. Counsel for the plaintiff. During cross examination Sh. Mahesh Gupta admitted that the documents mentioned in para 6 of his affidavit Ex. DW3/A i.e. copy of sale deed in respect of flat bearing no. B-63, Ground Floor, Kirpal Apartment, was not executed on 20.04.2006 rather the same was executed on 01.05.2006.
(iv). Thereafter, vide order dated 13.02.2019, the defendant's evidence was closed.
FINAL ARGUMENTS:
17. Final arguments were advanced at length by Sh.
Manvender Mukul, Ld. Counsel for the plaintiff and Sh. Vijay Kumar Shukla, Ld. Counsel for the defendants. Written submissions and additional written submissions were also filed by both sides.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 34 of 63
18. During the argument, the Ld. Counsel for the plaintiff reiterated the case of the plaintiff as averred in the plaint. It further submitted that the Plaintiff/PW1 and PW2/Sh. Anil Sood deposed in favour of valid execution of the agreement to sell and purchase dated 16.02.2005 by all the parties to it, whereas DW2/Defendant no. 2 denied execution of the said agreement. Defendant no. 1 did not come forward to depose regarding the execution of the said agreement and Smt. Darshana passed away before the filing of the suit. It is submitted that the two persons i.e. Smt. Madhubala and Late Smt. Darshana never disputed their signature to the agreement to sell and purchase dated 16.02.2005. It is only defendant no. 2. Ms. Shivani who disputed the signatures of herself, defendant no. 1, and Late Smt. Darshana and DW2/Ms. Shivani was found to be unbelievable in view of contradictions in her testimony before the Court. It is also submitted that the agreement to sell and purchase dated 16.02.2005 was prepared by Sh. Anil Sood, the Ld. Counsel Sh. V. K. Shukla made corrections on the second page of the agreement in question and Ms. Meena Shukla was the sole witness to the said agreement. The defendants chose not to call witnesses Smt. Meena Shukla and Ld. Counsel Sh. V.K. Shukla. It is submitted that in view of this, the plaintiff is successful in proving the agreement to sell and purchase dated 16.02.2005.
The arguments were also advanced regarding contradictions in the testimony of DW2/defendant no. 2 regarding the death of her father in the suit property, the date of handing over the possession of the suit property to defendant no. 3 and shifting to their flat in Ghaziabad after vacating the suit property on 13.07.2006, the recitals in the agreement to sell dated CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 35 of 63 25.08.2006 Ex. PW1/6, handwritten possession letter dated 01.05.2006 and police complaint dated 04.05.2006 filed by defendant no. 1.
It was argued that no affidavit of defendants no. 1 and 2 was filed in support of their written statement. The DW2/defendant no. 2 denied her as well as the signatures of her mother/defendant no. 1 and her aunt Late Smt. Darshana on the agreement to sell and purchase dated 16.02.2005. It is submitted that as per law, DW2/defendant no. 2 cannot deny the signature of others on the said agreement. DW2/defendant no. 2 in her evidence did not mention that she had sold the property to defendant no. 3. It is also submitted that in para (B), para (E) and para (H) of preliminary objections in written statement of defendant no. 1 and 2, the defendant no. 1 and 2 termed the said agreement to sell and purchase as contingent contract and void contract in view of the prior requirement of conveyance deed in the matter. In view of this, the defendant no. 1 and 2 admitted the agreement to sell and purchase dated 16.05.2005.
It is further submitted that the defendants never filed any suit for declaration or counterclaim with respect to the agreement to sell and purchase dated 16.02.2005 for its declaration as null and void as they alleged it being a forged and fabricated document.
The other arguments of the Ld. Counsel for the plaintiff relates to the preparation of ant-dated documents such as the agreement to sell dated 27.04.2006 on the stamp paper that was not available in the market on the date of the said agreement and receipt of documents by the Kirpal Co-operative Group Housing Society in back date (i.e. 02.05.2006) in order to bypass stay CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 36 of 63 order of Hon'ble High Court of Delhi. It is also submitted that all the cheques paid for the alleged purchase of the suit property by defendant no. 3 were encashed after the grant of the stay order by the Hon'ble High Court of Delhi.
Ld. Counsel of the plaintiff also argued that when the defendants with the aid of their Ld. Counsel failed to get the suit property converted from lease hold to free hold from DDA till December 2015 which was a necessary condition as per Clause 3 of the agreement to sell and purchase dated 16.02.2005, the plaintiff through her husband got the conveyance deed issued from DDA on 06.02.2006 and handed over the same to the Ld. Counsel for the defendants. However, after the issuance of the Conveyance Deed, defendant No. 1 flatly refused to honour the agreement to sell and purchase dated 16.02.2005. It is submitted that the plaintiff's effort in obtaining the Conveyance deed from the DDA and filing of the suit immediately after refusal of the defendant no. 1 to honour the terms and conditions of the agreement to sell and purchase dated 16.02.2005 clearly shows the readiness and willingness of the plaintiff to perform the said agreement to sell and purchase dated 16.02.2005.
It is further submitted that there is no legal mandate to issue pre-suit in every case and in the facts of the present case, there was no need for the plaintiff to issue the legal notice as the plaintiff was in regular touch with the defendant no. 1 and 2 and on the refusal of the defendant no. 1 to honour the agreement to sell in question on 27.04.2006, the present suit was immediately instituted.
The arguments were also advanced regarding violation of the stay order by defendants in the execution of registered CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 37 of 63 documents viz. Agreement to sell, Power of Attorney, Will etc. all dated 25.08.2006 as well as putting the suit property on rent in October 2006, thereby, changing the possession of the suit property again vide letter dated 25.10.2006 Mark PW2/H. The arguments were also advanced by the SPA of the plaintiff regarding the alleged professional conduct of Ld. Counsel for the defendants in the entire transaction relating to the present matter.
Ld. Counsel for the plaintiff also impugned the report/opinion Ex. DW1/2 of expert Sh. V.N. Sehgal submitting that the said opinion was given based on examination and comparison of signatures on a certified copy of the agreement to sell and purchase dated 16.02.2005 instead of the original agreement and that the said opinion on handwriting was given by said expert who is a chemical examiner.
The Ld. Counsel for the plaintiff relied on the judgments of Hon'ble High Court of Judicature of Madras in Munusamy Chetty (deceased) vs. Ponnusamy Naidu (S.A. No. 630/2012 and M.P. No. 1/2012, DoD: 07.07.2022) and the Hon'ble High Court of Delhi in S. Randhir Singh Chandhock vs. Atma Ram Naryan Dhingra & Ors. (I.A. No(s) 579/08, 845/08 and 844/08 in CS(OS) No.927/2007, DoD: 20.03.2008); Kuldeep Kapoor vs. Susanta Sengupta (126) 2006) DLT 149; Rajesh Jain vs. Sh. Devender Kumar Saigal & Ors. (CS(OS) No. 1565/2006, DoD:
01.06.2012,) and judgment of Hon'ble Supreme Court in Iqbal Singh Marwah & Anr vs. Meenakshi Marwah (2005) 4 SCC
370.
In view of the above submissions, Ld. Counsel for the plaintiff submitted that the plaintiff has duly proved the CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 38 of 63 execution of the agreement to sell and purchase dated 16.02.2005, payment of the earnest money, as well as continuous readiness and willingness of the plaintiff to perform her obligations under the agreement in question therefore, the plaintiff is entitled to the specific performance of the agreement to sell and purchase dated 16.02.2005.
19. Per contra, Ld. Counsel for the defendants reiterated the case of the defendants as averred in the written statements. It is argued by the Ld. Counsel for the defendants that no notice was given by the plaintiff to the defendants before filing the present suit. It is further submitted that the agreement to sell in question Ex. PW1/3 is an unregistered document and the same has also not been notarized by notary public. It submitted that defendant no. 1 and defendant no. 2 in para (C) of preliminary objections in written statement specifically denied the execution of the alleged agreement and receipt of any money from the plaintiff in this regard and defendant no. 2/DW2 also denied the execution of the said agreement as well as receipt of any consideration for the same in her cross examination. It also submitted that the witness Smt. Meena Shukla to the said agreement to sell was not examined by the plaintiff during evidence. Further, the plaintiff did not seek any expert verification of the signatures of the defendants on the said agreement to sell. It is also submitted that the witness Sh. R.K. Saxena was mentioned in the list of witnesses, however, he was not examined by the plaintiff.
The Ld. Counsel also relied upon the report of expert witness DW1/Sh. V.N. Sehgal was examined by the defendants and it is submitted that as per the report/opinion Ex. DW1/2 of CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 39 of 63 the said expert signatures on both the pages of the agreement to sell dated 16.02.2005 are of different persons.
It is also submitted that in the original plaint as well as in the amended plaint filed by the plaintiff, the place of execution for the alleged agreement to sell and purchase dated 16.02.2005 Ex. PW1/3 was not mentioned and it was only in the evidence by affidavit of PW1/plaintiff the place of execution of the said agreement was mentioned as the house of Advocate of the defendants. It is submitted that the said evidence regarding the place of execution of the said agreement to sell is beyond the pleadings and no evidence can be looked into that is not part of the pleadings.
It is also submitted that during cross examination of PW1 and PW2, it has been admitted that the PW2/Sh. Anil Sood got the alleged agreement to sell typed and stamp paper for the same also purchased by him. It is further admitted by PW2 in his cross examination that in other deals, he took four documents namely agreement to sell. GPA, Will, receipt etc. however, in the present matter, he had not got executed other documents except the agreement to sell as the deal was not finalized.
It is also submitted by Ld. Counsel for the defendants that the other witnesses, except PW1 and PW 2, examined by the plaintiff were not concerned with proving the alleged agreement to sell and purchase dated 16.02.2005 Ex. PW1/3.
It is also submitted that as per section 20 of the Specific Relief Act, 1963, the grant of specific performance of the contract is a discretionary relief and for the grant of the same, CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 40 of 63 agreement to sell of the which the plaintiff is seeking specific performance should be free from any doubt.
Ld. Counsel for defendants contended that in the absence of an agreement to sell in a suit for a specific performance, the Court shall not make a contract for parties, therefore, the present suit for a specific performance is not maintainable.
The Ld. Counsel for the defendants submitted that the additional issue no. 4A cannot be decided in a suit for specific performance and the plaintiff was required to file either a counter claim or a separate suit for declaration/cancellation and pay the court fees for relief of declaration/cancellation of the documents dated 25.08.2006.
The Ld. Counsel for the defendants relied on the judgments of the Hon'ble Supreme Court in Satish Kumar vs. Karan Singh & Ors (C.A. No. 7385/2013, DoD: 21.01.2016); Lakshmi Sreenivasa Cooperative Building Society Vs. Puvvada Rama (Dead) by LRs and Ors 2018(9) SCALE 317; Bachhaj Nahar vs. Nilima Mandal & Anr (2008) 17 SCC 491; Biraji@Brijraji & Anr. Vs. Surya Pratap & Ors (C.A. No(s). 4883-4884 of 2017, DoD: 03.11.2020); Balram Singh Vs. Kelo Devi (C.A. No. 6733 of 2022, DoD: 23.09.2022); Laxmibai (Dead) through LRs vs. Bhagwantbura (dead) through LRs AIR 2013 SC 1204; G.T. Girish vs Y. Subba Raju (D) by LRs and Anr (2022)2 SCALE 151; Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr 2011 STPL (Web) 879 SC; Shakeel Ahmed vs. Syed Akhlaq Hussain (C.A. No. 1598/2023, DoD: 01.11.2023); and Ghanshyam vs. Yogendra Rathi (2023) AIR SC 2754.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 41 of 63 The Ld. Counsel for the defendants also relied on the judgment of the Hon'ble High Court of Delhi in Imtiaz Ali vs. Nasim Ahmed (1987) AIR (Delhi) 36 and G. Ram vs Delhi Development Authority (2002) 7 AD (Delhi) 241 In view of the above submission, Ld. Counsel for the defendants submitted that the agreement to sell and purchase dated 16.02.2005 Ex. PW1/3 has not been duly proved by the plaintiff and the same is a forged and fabricated document. Further, the plaintiff has also failed to prove the payment of earnest money to defendant no. 1. Therefore, the plaintiff is not entitled to either to specific performance of the agreement to sell and purchase dated 16.02.2005 or refund of earnest money, and the suit of the plaintiff be dismissed.
FINDINGS:
20. I have considered the submissions and perused the record carefully. The written arguments filed by the plaintiff and defendant have also been perused carefully. The issue wise findings, in this suit, are as follows:
ISSUE No. 1:
1. Whether the plaintiff is entitled to specific performance of agreement to sell of 16th February, 2005? OPP
21. The onus to prove the said issue was on the plaintiff. In a suit for the specific performance of a contract, the Court is required to see whether there is a valid agreement binding on both the parties and whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963.
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22. In Kamal Kumar V Premlata Joshi & Ors, Civil Appeal No. 4453 Of 2009, 7th Of January 2019, Hon'ble Supreme Court laid down as under:
"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 plaintiff 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 plaintiff 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 plaintiff 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 plaintiff; and lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.
In our opinion, the aforementioned questions are part of the statutory requirements (See Sections 16 (c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and the forms 47/48 of Appendix A to C of the Code of Civil Procedure). These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts."
(Emphasis supplied)
23. Therefore, a valid and concluded agreement to sell is a sine qua non for a suit of specific performance and the burden to prove the same is upon the plaintiff who desires the Court to decree the suit of specific performance based on such an agreement.
24. In the present case, the plaintiff based her suit of specific performance on the agreement of sell and purchase dated CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 43 of 63 16.02.2005 Ex. PW1/3. Plaintiff deposed that the defendant no. 1 and 2, and Late Smt. Darshana, and witness Smt. Meena Shukla signed the said agreement to sell. The defendants denied signing and execution of the agreement to sell dated 16.02.2005 in their written statement. Further, defendant no. 2 deposed that neither she nor her mother/defendant no. 1 nor her aunt Late Smt. Darshana signed the aforesaid agreement to sell.
25. Thus, it was incumbent upon the plaintiff to prove agreement to sell and purchase dated 16.02.2005 Ex. PW1/3 as per section 67 of the Indian Evidence Act, 1872, which is reproduced hereinbelow:
67. Proof of signature and handwriting of person alleged to have signed or written document produced.
If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
26. As per section 67 of the Indian Evidence Act, 1872, the agreement to sell and purchase dated 16.02.2005 which the plaintiff alleges to be signed by defendant no. 1, defendant no. 2, and Smt. Darshana, the plaintiff is required to prove the signature of said persons on said agreement to sell.
27. It is seen that the agreement to sell and purchase dated 16.02.2005 Ex. PW1/3 is neither a notarized nor a registered document. Defendant no. 1 and Defendant no. 2 denied the execution of the said agreement to sell and purchase dated 16.02.2005 in their written statement. Further, defendant no.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 44 of 63 2/DW2 in her testimony before the Court denied having signed said agreement.
28. In order to prove the said agreement to sell and purchase dated 16.02.2005 Ex. PW1/3, the plaintiff examined herself as PW1, and her husband Sh. Anil Sood as PW2. During cross examination, PW1/Smt. Manisha Sood deposed that she might have filed with the Society a copy of the agreement in question with only her signature on the first page and the signature of the defendants on the second page. It is further deposed by the PW1/Smt. Manisha Sood that she filed an application for comparison/verification of the signature of defendants on the agreement in question. However, PW2/Sh. Anil Sood denied the suggestion that he had filed an application for verification of the signature of the defendants. He also deposed that no copy of agreement to sell was given to the society. Thus, there were contradictions in the testimony of PW1 and PW2.
29. It is further seen that the plaintiff gave different versions when she was examined under Order X on 06.09.2006 before the Court regarding the payment of earnest money to defendant no. 1/Smt. Madhu Bala. Plaintiff first stated on oath that she had paid a sum of Rs. 2,50,000/- by cheque to Smt. Madhu Bala at the time of signing of the agreement. Thereafter, the plaintiff stated that she had drawn a cash amount from the Vaish Cooperative Bank and paid it to Smt. Madhu Bala. The plaintiff again stated that she had withdrawn the amount from our account in Punjab National Bank and also stated that my husband had withdrawn the amount from the Bank. No consistent statement was given by the plaintiff regarding the payment of earnest money to defendant CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 45 of 63 no. 1. Although, PW7/Ms. Babita Pandey, Dy. Manager, Punjab National Bank, Branch CGHS, Patparganj, Delhi proved the withdrawal of Rs. 2,50,000/- from the overdraft account of the husband of the plaintiff on 16.02.2005, however, in view of contradictory statements made by the plaintiff during her examination under Order X, the testimony of PW7 in no way establishes that the money which was withdrawn from the overdraft account of Sh. Anil Sood was actually paid to defendant no. 1 at the time of execution of the agreement to sell and purchase dated 16.02.2005.
30. Further, the plaintiff did not obtain any expert opinion to compare and verify the signatures of defendant no. 1, defendant 2, and Late Smt. Darshana on the agreement to sell and purchase dated 16.02.2005 Ex PW1/3. During her cross examination, plaintiff/PW1 admitted that she moved an application for comparison/verification of the signature of the defendants. However, the perusal of the record shows that an application dated 15.01.2011, I.A. No. 1011/2011, was filed by the plaintiff under section 151 of CPC for seeking direction to the defendants to produce documents viz. agreement to sell, Power of Attorney, Will all registered on 25.08.2006 before the concerned Sub Registrar-VIII, Gita Colony, Delhi and alleged Payment receipt and alleged Possession Letter both dated 01.05.2006 in favour of defendant no. 3. In para 8 and 9 of the said application, it is averred by the plaintiff since defendants have denied execution of agreement to sell dated 16.02.2005 in favour of the plaintiff and denied their respective signatures on the said agreement to sell, the onus is on the plaintiff to prove signature of defendants no. 1 and 2 in evidence and for the said purpose, comparative CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 46 of 63 documents executed by defendants are required, and therefore, had sought the direction of the Court to defendants to produce the aforesaid documents in the Court so that their signatures could be verified and compared with agreement to sell and purchase dated 16.02.2005. However, it is a matter of record that the said application was dismissed as "not pressed" vide order dated 24.01.2011 in view of the submission of Ld. Counsel for the plaintiff. Thereafter, there was no attempt from the side of the plaintiff to seek expert opinion to compare and verify the signatures of defendant no. 1 and 2, on the agreement to sell dated 16.02.2005 Ex. PW1/3 with specimen signature of said defendants available on the judicial file.
31. It is also seen that other witnesses from PW3 to PW14 who were examined by the plaintiff are not the witnesses to the agreement to sell and purchase dated 16.02.2005 Ex. PW1/3 and the said witnesses are not in any way connected with proving valid execution of the alleged execution of the agreement to sell and purchase dated 16.02.2005 Ex. PW1/3. In view of this, the testimonies of the said witnesses from PW3 to PW14 do not aid the plaintiff in discharging her onus to prove the agreement to sell and purchase dated 16.02.2005 Ex. PW1/3.
32. In this connection, it is also pertinent to note that other witnesses, namely Mr. R.K. Saxena, Mrinal Bhattacharya, and Mr. Raja Banerjee were mentioned in the list of witnesses filed by the plaintiff. The said witnesses as per the deposition in the evidence by way of affidavit Ex. PW2/A of PW2/Sh. Anil Sood accompanied the plaintiff and Sh. Anil Sood to the house of the defendants around on 15.04.2006 after the Ld. Counsel for the CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 47 of 63 defendants informed the plaintiff that defendants no. 1 and 2 wanted to cancel the deal. The said three witnesses, if they were examined, could have thrown light on the nature and circumstances of the transaction that was allegedly entered into by the plaintiff and defendant no. 1 and 2. In fact, PW2 in his cross examination named Mr. R.K. Saxena as the person in whose presence an offer of a refund of Rs. 7 lakhs was made by Advocate V.K Shukla on behalf of the defendants. Further, the evidence by way of an affidavit of Mr. R.K. Saxena as plaintiff witness was filed. However, the plaintiff failed to examine the said witnesses.
33. Further, as recorded in the order dated 25.11.2017, Smt. Meena Shukla was summoned to depose before the Court. However, the plaintiff refused to examine her. Smt. Meena Shukla was the sole witness to the agreement to sell and purchase dated 16.02.2005, and her examination and cross examination could have been useful in bringing out the truth in the matter.
34. Therefore, in view of the fact that the agreement to sell and purchase dated 16.02.2005 Ex. PW1/3 is neither a registered nor notarized document, no witness to the said agreement was examined to prove the said document, the plaintiff did not obtain any expert opinion regarding the execution of the agreement to sell and purchase by the defendants, there is no independent corroboration of the testimony of the PW1 and PW2.
35. It is further seen that in the amended plaint, the plaintiff prayed for the relief of refund of earnest money in case her claim for specific performance is refused. In the agreement to sell and purchase dated 16.02.2005 on which the plaintiff relies upon, it CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 48 of 63 has been provided in clause 7 that in case of default on the part of defendants no. 1 and 2, and Smt. Darshana to execute the sale documents before the concerned Sub-Registrar within the fixed period as per this Agreement, the defendants shall be liable to pay double the amount of the earnest money to the plaintiff. Therefore, on the part of the plaintiff, it was reasonably expected to raise the demand for the refund of double the amount of earnest money by sending a legal notice or otherwise after defendant no. 1 allegedly refused to honor the terms and conditions of said agreement to sell on 27.04.2006. However, there is nothing on record that shows that the plaintiff demanded a refund of double the amount of earnest money from the plaintiff.
36. As regards the contention raised by the plaintiff that in view of non-examination of defendant no. 1 on behalf of the defendants, adverse inference should be drawn against the defendants, the Court is of the opinion that the onus to prove the valid execution of the agreement to sell and purchase dated 16.02.2005 was on the plaintiff. Defendants No. 1 and 2 denied the execution of the said agreement to sell in their written statement. Further, defendant no. 2 denied the execution of the said agreement in her deposition before the Court. Defendant no. 2/DW2 in her evidence by way of affidavit DW2/A deposed that signature of defendants no. 1 & 2, and Smt. Darshana are forged and defendants no. 1 & 2, and Smt. Darshana never met the plaintiff and never took any money from the plaintiff. When the factum of execution of the agreement to sell and purchase in question was denied by the defendants, it was for the plaintiff to discharge said burden by placing on record cogent and credible CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 49 of 63 evidence such as by examining a handwriting expert to compare and verify the signatures of the defendant no. 1 and 2, and Smt. Darshana on the said agreement. In view of the failure of the plaintiff to discharge the burden of proving the agreement to sell in question, the Court is not inclined to accept the contention of plaintiff regarding adverse inference due to non-examination of defendant no. 1 as the defendant witness.
37. In view of the lack of evidence of any witness or an expert proving the signatures of defendants no. 1 and 2 and Smt. Darshana on the agreement to sell and purchase dated 16.02.2005 Ex. PW1/3, there are only testimonies of PW1 and PW2 on one hand and that of DW1 on the other hand. However, on the basis of the testimony of plaintiff/PW1 and PW2 alone, it is not proved that the agreement to sell and purchase dated 16.02.2005 Ex. PW1/3 has been validly executed. Apart from the testimony of the plaintiff and her husband, the plaintiff has not led any evidence to prove the said agreement. The plaintiff did not get the said agreement examined by a handwriting expert to support her claim that defendant no. 1, defendant no. 2, and late Smt. Darshana duly executed the said document. Further, the Order X examination of the plaintiff regarding payment of earnest money also raised doubt about the credibility of the claim of the plaintiff regarding the agreement to sell and purchase dated 16.02.2005 and payment of earnest money thereof. Therefore, on the basis of evidence led by the plaintiff and on the preponderance of probabilities, it is not proved that there was an execution of the agreement to sell and purchase dated 16.02.2005 between the plaintiff and defendant no. 1, defendant no. 2, and late Smt. Darshana.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 50 of 63
38. It is well settled law that the plaintiff's case must stand on its own legs and the plaintiff must prove his case on merits and any lacuna in the defendant's case cannot be a ground for granting relief to the plaintiff. Of course, test in the civil suit would be the preponderance of probability but it is never a preponderance of mere possibility.
39. In view of the aforesaid discussion, it is not established by the plaintiff that defendant no. 1, defendant no. 2, and late Smt. Darshana executed the said agreement to sell and purchase dated 16.02.2005. As the validity of the agreement to sell and purchase dated 16.02.2005 could not be established by the plaintiff, the plaintiff is not entitled to any relief arising from the said agreement including the relief of specific performance of the contract. Therefore, this issue is decided against the plaintiff and in favour of the defendants.
ISSUE No. 2:
2. Whether the plaintiff is entitled to the damages of Rs.
50,000/-? If so, with what rate of interest and for what period ? OPP
40. The onus to prove the said issue was on the plaintiff. In view of the finding on issue no. 1, the plaintiff has failed to prove the execution of the agreement to sell and purchase dated 16.02.2005. As the factum of execution of the agreement to sell and purchase dated 16.02.2005, therefore, the plaintiff is also not entitled to any relief of damages which is connected to the breach of said agreement to sell. In view of this, this issue is also decided against the plaintiff and in favour of the defendants.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 51 of 63 ISSUE No. 3:
3. Whether this suit is not maintainable as per preliminary objection (A) taken in the written statement? OPD
41. The onus to prove the said issue was on the defendants. As per preliminary objection (A) an objection was raised by the defendants as to the admissibility of the Agreement to Sell dated 16.02.2005 on the ground that this document filed by the plaintiff is unregistered and insufficiently stamped. It is submitted by the defendants that as per section 17(1A) of the Indian Registration Act, 1908, and section 23A of the Indian Stamp Act, 1899 [both of the aforesaid provisions as inserted by the Registrations and Other Related law (Amendment) Act, (48 of 2001)] all contracts for the transfer of immovable Property for consideration in the nature of part performance are required to be registered compulsorily after the commencement of the above Act. If such a document is not registered the same is not admissible in evidence. Further, a stamp duty of Rs. 900/- of transaction is to be paid for such registration.
42. Therefore, the maintainability of the suit is challenged on the ground of admissibility of the Agreement to Sell and Purchase dated 16.02.2005 on twin grounds i.e. firstly, it is unregistered and secondly, proper stamp duty has not been paid on the said agreement.
43. The Court shall first discuss, the objection as to whether there is a requirement of mandatory registration of Agreement to Sell dated 16.02.2005 for maintainability of present suit for specific performance.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 52 of 63
44. Section 17 of the Registration Act, 1908 enumerates the list of documents that require registration. Section 17(1)(b) of the Act provides for the registration of non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
45. Section 17(2)(v) of the Act provides that nothing in clauses
(b) and (c) of Sub-section (1) of Section 17 applies to any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but, merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest. As per proviso to Section 49 of the Registration Act, 1908, even if a document is legally required to be registered as per the Indian Registration Act or Transfer of Property Act, 1882 but is not registered, then in such a case, such an unregistered document may be received as evidence of a contract in a suit for specific performance under Specific Relief Act.
46. In Vinod Kumar & Anrs. Vs. Ajeet Singh IA No. 20617/2012 in CS (OS) 2661 /2012 DoD 01/10/2013, the Hon'ble High Court of Delhi held that an agreement to sell the property itself does not create any right or title over the property.
An Agreement to Sell is not required to be registered and the same is receivable in evidence in a suit for Specific Performance under chapter II of Specific Relief Act.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 53 of 63
47. Similarly, in Sukhwinder Kaur Vs. Amarjeet Singh AIR 2012 P&H 1997, Hon'ble Punjab and Haryana High Court observed that a conjoint reading of Section 17(2)(v) and proviso of Section 49 of the Act leaves no room for doubt that agreement to sell itself does not create any right or title over the property, hence, an agreement to sell is not required to be registered and the same is receivable in evidence in a suit for specific performance under Chapter II of the Specific Act Relief, 1877.
48. Further, the Hon'ble High Court of Delhi in the case titled as Rishi Raj & Ors. Vs. Rakesh Yadav & Ors. RFA 700/2016 decided on 22.05.2018 relying upon the judgment of Sukhwinder Kaur (Supra) and Vinod Kumar (Supra), observed that it is permissible in law to seek specific performance of an unregistered agreement to sell, when possession of the property has not been handed over.
49. In the present matter, Ld Counsel for defendants placed reliance upon the judgment of the Hon'ble Supreme Court titled as Balram Singh vs. Kelo Devi (Civil Appeal No. 6733/2022, DoD: 23.09.2022). However, the facts of the said judgment is distinguishable from the present case. In Balram Singh(supra), the plaintiff filed a case for a permanent injunction based on unregistered agreement to sell restraining the defendant from disturbing her possession in the suit property and the defendant also filed a counter claim seeking a decree of possession.
50. In the present case, the plaintiff was neither in possession of the suit property nor she had taken over the possession of the suit property in pursuance of the agreement to sell dated CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 54 of 63 16.02.2005. Therefore, the bar of section 17(1A) of the Registration Act, 1908 is not applicable to the present case.
51. In this connection, it is pertinent to refer to a recent judgment titled as R. Hemalatha vs. Kashthuri (Civil Appeal No. 2535/2023 ((@SLP( C) 14884/2022), Dod: 10.04.2023), wherein the Hon'ble Supreme Court of India held as under:
"13. Under the circumstances, as per proviso to Section 49 of the Registration Act, an unregistered document affecting immovable property and required by Registration Act or the Transfer of Property Act to be registered, may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument, however, subject to Section 17(1A) of the Registration Act. It is not the case on behalf of either of the parties that the document/ Agreement to Sell in question would fall under the category of document as per Section 17(1A) of the Registration Act. Therefore, in the facts and circumstances of the case, the High Court has rightly observed and held relying upon proviso to Section 49 of the Registration Act that the unregistered document in question namely unregistered Agreement to Sell in question shall be admissible in evidence in a suit for specific performance and the proviso is exception to the first part of Section 49."
52. In the present case, it is the case neither of the plaintiff nor of the defendants that in consequence of execution of the agreement to sell dated 16.02.2005, the plaintiff in part performance of the said agreement had taken possession of the suit property or part thereof in accordance with the provision of section 53A of the Transfer of the Property Act, 1882 . Therefore, in the present case, the agreement to sell dated 16.02.2005 would not fall within the category document as per section 17(1A) of the Registration Act, 1908.
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53. In view of above, it is no longer res integra that an agreement to sell, even though not registered, can form the basis for the institution of a suit for specific performance. The contention of defendants that the agreement to sell dated 16.02.2005 cannot be enforced for want of registration, is untenable and misconceived.
54. Now adverting to the second limb of preliminary objection (A) of written statement, with regard to the agreement to sell being not properly stamped. Section 35 of the Indian Stamp Act, 1899 clearly excludes from evidence any instrument chargeable with duty unless it is duly stamped. It bars acting upon a document which is deficient in stamp duty meaning thereby there is no evidentiary value of such an instrument. Section 35 of the Indian Stamp Act 1899 reads as under:
"35. Instruments not duly stamped inadmissible in evidence etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped. Provided that-
(a) any such instrument not being an instrument chargeable with a duty not exceeding ten naye paise,only or a bill of exchange or promissory note, or acknowledgment or delivery order, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, it stamped, would be admissible in evidence against him then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
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(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters, and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 ;
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the [Government], or where it bears the certificate of the Collector as provided by section 32 or any other provisions of this Act."
55. In the present case, the agreement to sell dated 16.02.2005 is on stamp paper of Rs.50/-. Article 23A of Schedule 1 of the Indian Stamp Act, 1899 which provides for payment of stamp duty on "CONVEYANCE IN THE NATURE OF PART PERFORMANCE" is not attracted as the instant suit of the plaintiff is not based on the part performance under Section 53A of the Transfer of Property Act, 1882.
56. Therefore, the payment of stamp duty on the agreement to sell dated 16.02.2005 would fall under the ambit of residuary clause (c) of Article 5 of Schedule I of the Indian Stamp Act, 1882 wherein Article 5 provides for payment of stamp duty on "AGREEMENT OR MEMORANDUM OF AGREEMENT" and clause (c ) of Article 5 relates to agreement not otherwise provided for. Reliance in this regard is placed upon the judgment titled as Vinod Kumar & Anr. Vs. Ajeet Singh IA No. 20617/2012 in CS (OS) 2661 /2012 dt. 01/10/2013 wherein Hon'ble Delhi High Court observed as under:-
"11. Now, with regard to the submissions that the agreement was not properly stamped, as per Article 23A of Schedule 1A of ISTA, I may state without hesitation that Article 23A also was CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 57 of 63 not attracted inasmuch as it applies to the contracts for transfer of properties under Section 53A of the Transfer of Property Act. As noted, the plaintiffs suit is not based on the part performance under Section 53A of the T.P. Act and the agreement to sell could not be said to be conveyance in the nature of part performance as envisaged in Article 23A. As per Section 2(10) of ISTA, conveyance includes conveyance of sale and other instruments by which property, whether movable or immovable, is transferred intra-vivous and which is not otherwise specifically provided for by Schedule-I. By any interpretation, such an agreement to sell cannot be termed as conveyance as defined in Section 2(10) of ISTA. That being so, and the agreement to sell in question not creating any right, title or interest over the suit property, except that of the cause of action asking for the execution of the sale deed, Article 23A was not attracted and thus, the provisions of Sections 33 of ISTA is not attracted. As there is no Article in Schedule-I specifically providing for agreement to sell of immovable property, it would come within the ambit of residuary clause (c) of Article 5 of Schedule 1 of ISTA, which is extended to union territory of Delhi by Delhi Amendment Act of 2001. The stamp duty as per residuary clause (c) of Article 5 thereof is Rs.50/-. The agreement to sell in question being on stamp paper of Rs.10/-, is seen to be deficient of Rs.40/-only and as per Section 35 proviso
(a), the same would become admissible in evidence on payment of penalty equivalent to 10 times of the deficient portion of the stamp duty. The deficiency being of Rs.40/- only, the penalty payable comes to Rs.400/- and thus, this penalty and the deficiency of Rs.40/- i.e.Rs.440/- would be payable by the plaintiff for seeking admissibility of this agreement. The plaintiff would be required to do the needful in this regard."
57. The agreement to sell dated 16.02.2005 is on stamp paper of Rs.50/- which is in due compliance of residuary clause (c) of Article 5 of Schedule I of the Indian Stamp Act, 1899. There is no deficiency of the stamp duty. The contention of the defendants regarding insufficient stamp duty is without any basis and is liable to be rejected.
58. In view of the aforesaid discussion, issue no. 3 is decided in favour of the plaintiff and against the defendants and it is held said agreement to sell dated 16.02.2005 was not required to be CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 58 of 63 registered under the Registration Act, 1908, and was also not required to be stamped with Rs. 900/- to be read in evidence. However, in view of the finding on issue no. 1 the said agreement to sell and purchase dated 16.02.2005 has not been proved, therefore, the finding on issue no. 3 does not have any bearing on the decision of the present suit.
ISSUE No. 4:
4. Whether the agreement to sell is forged and fabricated?
OPD
59. The onus to prove the said issue was on the defendants. The evidence that has been led by the defendants to prove the same is the testimony of DW2/Ms. Shivani who in her deposition denied her signature on the agreement to sell dated 16.02.2005 and the signature of her mother Ms. Madhubala/defendant no. 1 and her aunt late Smt. Darshana, and further deposed that the signatures of aforesaid persons on the agreement to sell in question Ex. PW1/2 has been forged. Further, the defendants led the evidence of expert Mr. V.N. Sehgal, the Ex-Director, CFSL, and Ex-official Chemical Examiner, the Central Bureau of Investigation (CBI). The expert Mr. V. N. Sehgal examined the signatures of defendant no. 1, defendant no. 2, and Late Smt. Darshana from the certified copy of the agreement to sell dated 16.02.2005 Ex. DW1/1 obtained from the Hon'ble High Court of Delhi. The report of expert Sh. V.N. Sehgal was filed in the Court by the defendants. The expert was examined as defendant witness DW1 and his report was exhibited as Ex. DW1/2.
60. However, the methodology that was adopted by the said expert suffers from several infirmities. Firstly, the said examiner CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 59 of 63 examined only the certified copy of the agreement to sell dated 16.02.2005 despite the availability of the original document in the court file. It has come on record in the cross-examination of DW1/Sh. V.N Sehgal that he examined a certified copy of the agreement to sell dated 16.02.2005 as given to him by the Ld. Counsel for the defendants and he did not seek the original of the document for comparison of the signatures as the Examiner considered the same was not necessary.
61. Secondly, the said Examiner adopted the methodology of taking the signatures of defendant no. 1, defendant no. 2 and late Smt. Darshana on page 1 of the certified copy of the agreement to sell dated 16.02.2005 Ex. DW1/1 as the questioned signature and signature of the said persons on page 2 of Ex. DW1/2 as admitted signature and compared the same. It has come on record in the cross-examination of DW1/Sh. V.N Sehgal that he did not identify the admitted signature of Ms. Madhu Bala/defendant no. 1, Ms. Shivani/Defendant no. 2 and late Smt. Darshana for the purpose of comparison of signatures and he had mentioned signatures on one page as admitted and signatures on the front page as questioned. The expert also deposed that he never called Ms. Madhu Bala and Ms. Shivani to take their original signature for comparison of signatures on the Ex. DW1/2 as he did not deem it necessary. The plaintiff during cross examination of expert DW1/1 gave a suggestion that he did not follow the well- established norms, rules and regulations for the examination of handwriting. Further, during cross examination of DW1/Sh. V.N Sehgal, the plaintiff raised credible doubt about the expertise of DW1 to render an expert opinion on handwriting as he has not CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 60 of 63 placed on record any qualification or experience as handwriting expert.
62. It is not the case of the defendants that they have signed on one page of the said agreement to sell dated 16.02.2005 and their signatures have been forged on the other page. Defendants have denied their signature in toto. A handwriting expert is required to give his expert opinion on a signature by comparing a disputed signature with an admitted signature, which was not done in the present case.
63. In view of the above discussion, the expert opinion Ex. DW1/2 of DW1/Sh. V.N Sehgal cannot be relied upon to arrive at any definitive conclusion regarding the genuineness of the agreement of sell dated 16.02.2005. Further, the testimony of the defendant witnesses DW2 regarding the denial of the signing of the agreement to sell dated 16.02.2005 Ex. PW1/3, does not conclusively establish the allegation of forgery of the said agreement to sell.
64. Indeed, the agreement to sell and purchase dated 16.02.2005 filed along with the plaint has not been proved by the plaintiff. However, the defendants have also not led any cogent and conclusive evidence to prove that the agreement to sell dated 16.02.2005 Ex. PW1/3 as placed on record by the plaintiff is a forged or fabricated document. Therefore, it is not proved that the agreement to sell and purchase dated 16.02.2005 as placed on record by the plaintiff is a forged and fabricated document. The issue is decided accordingly.
CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 61 of 63 ISSUE No. 4A:
(4A) Whether the plaintiff is entitled to decree of cancellation of agreement to sell, GPA, Will etc. all dated 25.08.2006 executed in favour of defendant no.3 ? OPP
65. The onus to prove the said issue was on the plaintiff. The relief regarding cancellation of the agreement to sell, GPA, Will etc. all dated 25.08.2006 was dependent on the grant of relief of specific performance of the agreement to sell dated 16.02.2005 to the plaintiff. In view of the finding of issue no. 1, the relief of specific performance of the agreement to sell dated 16.02.2005 has been declined to the plaintiff. Therefore, the plaintiff does not have any right, title and interest in the suit property, thus, any right of the plaintiff to declare any document qua the suit property as cancelled and null and void does not arise.
66. Further, the contention of the plaintiff that the said documents were executed and registered in violation of status quo order dated 06.09.2006 of the Hon'ble High Court of Delhi is a matter which is under consideration before this Court in a separate application/petition bearing no. MISC DJ/50/2018 under Order XXXIX Rule 2A of CPC filed by the plaintiff and the same shall be dealt with and decided in the the aforesaid application.
67. Thus, this issue is also decided against the plaintiff and in favour of the defendants.
RELIEF
68. In view of my aforesaid findings, the suit of the plaintiff is hereby dismissed. The parties are to bear their own cost.
69. Decree sheet be prepared accordingly.
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70. The file be consigned to the record room after due compliance.
Digitally signed by SOMITRA SOMITRA KUMAR Announced in open Court KUMAR Date: 2024.04.29 on this 29th Day of April, 2024 16:53:21 +0530 (SOMITRA KUMAR) District Judge-06, East District KKD Courts, Delhi CS No. 2979/16 Manisha Sood vs. Madhubala & Ors. Page No. 63 of 63