Delhi District Court
Mrs. Suman Kapoor @ Seema Kapoor vs Mr. Rakesh Kumar on 28 September, 2015
ID No.02401C0455852012
IN THE COURT OF DR. VIJAY KUMAR DAHIYA : ADDL. DISTRICT
JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI
CIVIL SUIT NO. 359/2012
Mrs. Suman Kapoor @ Seema Kapoor,
W/o Shri Kapil Kapoor,
R/o 77, IIIrd Floor, Gadi,
New Delhi - 110 0048. ............. PLAINTIFF
VERSUS
Mr. Rakesh Kumar,
S/o Shri Hira Lal,
R/o C122, Jawhar Park (Ground Floor),
Khanpur, New Delhi.
Also at :
C140, Jawahar Park,
Khanpur, New Delhi. ............ DEFENDANT
Date of Institution : 22.05.2007
Date when the case reserved for order : 24.09.2015
Date of Order : 28.09.2015
J U D G M E N T
1/14 Suman Kapoor vs. Rakesh Kapoor Plaintiff filed the present suit for Specific Performance against the defendant. Brief facts of the case of the plaintiff are like this.
1. The plaintiff is a housewife and the defendant made to understand the plaintiff that defendant is the owner is possession of the property bearing no. C140, Jawahar Park, Khanpur, first floor, New Delhi. (hereinafter referred to as the suit property) and in the month of October, 2001 expressed his intention to sell the suit property for a total sale consideration of Rs. 6,25,000/. The plaintiff informed the defendant regarding her incapacity to pay the total sale consideration in one go, however, defendant informed the plaintiff that she could pay the entire consideration in installments as per the financial position of the plaintiff. The defendant informed the plaintiff that as and when the plaintiff would pay the last installment towards the sale consideration, the defendant would transfer the suit property in the name of plaintiff. The defendant informed the plaintiff that there is no need to enter into an agreement to sell and further told the plaintiff that as and when payment is made, the defendant will issue receipts and will transfer the suit property on payments of last installment. The plaintiff agreed to such proposal. The plaintiff paid an amount of Rs 2.5 lacs on 17.02.2002 through her relative to the defendants but defendant give not any receipt, therefore, plaintiff called defendant and defendant told plaintiff that he forgot to issue receipt. But assured the plaintiff to give receipt after coming back from his village. Thereafter plaintiff called defendant in the month of March, 2002 but defendant told plaintiff that he is still in his village and assured plaintiff to give joint receipt at the time of payment of second installment. The plaintiff went to the house 2/14 Suman Kapoor vs. Rakesh Kapoor of defendant on 23.05.2002 and paid an amount of Rs 50,000/ but defendant did not issue any receipt and called the plaintiff on the next day.
2. The plaintiff again visited the house of defendant on 24.05.2002 but defendant issued a receipt of 2.5 Lacs which defendant received on 17.02.2002 thereafter, plaintiff pointed out that the said receipt did not contain the amount of Rs 50,000/ which plaintiff gave to defendant on 23.05.2002. The defendant told plaintiff that due to oversight the said amount of Rs. 50,000/ could not be detailed in that receipt, therefore, defendant issued another receipt of Rs. 50,000/ on 24.05.2002. The balance amount was to be paid on 25.06.2002 at the residence of defendant and defendant issued a receipt of Rs. 3 lacs including the amount of Rs 25,000/ paid in June 2002, on 21.07.2002. The plaintiff paid an amount of RS 45,000/ to the defendant at his residence on 16.08.2002 and defendant issued a receipt in his own handwriting and signed it. The plaintiff clarified to the defendant to complete the necessary formalities for transferring the suit property to the plaintiff so that necessary sale consideration of Rs 2,55,000/ be handed over to defendant. The plaintiff again gave an amount of Rs. 55,000/ in July, 2005 but defendant never issued any receipt to the plaintiff. The plaintiff demand receipt from the defendant but defendant avoided the issue of receipt on one pretext or the other. The plaintiff was ever ready and willing to perform his part of the contract and issued legal notice to the defendant to transfer the suit property in his name and take the remaining sale consideration. Thereafter, the plaintiff kept meeting the defendant and requested defendant to honour the commitment regarding execution of sale deed but defendant kept evading the execution of sale deed.
3/14 Suman Kapoor vs. Rakesh Kapoor The defendant made numerous oral promises in person and in the presence of witnesses, and on the telephone, assuring the plaintiff of his intention to abide by the receipts and spirit of agreement to sell but the defendant did not take a single step to honor his specific written agreement. The plaintiff, therefore, become apprehensive and inquired from the local property dealer and it transpired that defendant is trying to dispose of the suit property. Hence the plaintiff filed the present suit.
3. Defendant was summoned and defendant filed written statement raising preliminary objection that suit is barred by limitation. Time was the essence of the contract but plaintiff after execution of draft on 23.05.2002 did not pay the remaining sale consideration on 25.06.2002 therefore, the contract came to an end and defendant is at liberty to sell the suit property as per his sweet will. The other receipts never issued by defendants as alleged. On merits it is stated that plaintiff was not having capacity to pay the remaining sale consideration. The defendant never agreed to receive the sale consideration through installments as alleged. The plaintiff never performed his part of contract and she was not having capacity to pay the balance sale consideration and plaintiff herself admitted in his pleadings that she did not have capacity to pay the amount in one go. As per agreement the sale consideration was to be paid on 25.06.2002. It is further submitted that defendant never agreed for installment for extending the period beyond the stipulated period as contended in receipt dated 23.05.2002. The plaintiff was not having capacity to pay, therefore, plaintiff committed breach of the agreement and the deal stood cancelled. It is denied that defendant received any amount except Rs 50,000/ on 23.05.2002 against 4/14 Suman Kapoor vs. Rakesh Kapoor receipt. Other receipt are forged by plaintiff. The defendant never received the amount of Rs 2.5 Lacs as alleged.
4. It is further submitted that if receipt was not issued what prevented the plaintiff from keeping silence for number of years, which show the allegation of plaintiff are false and incorrect. It is further submitted that allegation of payment to defendant in the month of March is incorrect as plaintiff has not got issued a receipt despite having a bitter experience with defendant as alleged in the various paras of the plaint. It is further submitted the defendant never received any amount of Rs 2.5 Lacs on 17.02.2002 therefore, there is no question of issuing a receipt of Rs 2.5 Lacs on 24.05.2002. The alleged receipts are forged and fabricated by plaintiff. It is denied that defendant agreed for payment of sale consideration through installment. It is further denied that defendant called plaintiff for the third installment as defendant was in need of money in the month of June. It is further denied that plaintiff paid an amount of Rs 25,000/ on 21.07.2002 to the defendant and defendant issued a receipt. It is further denied that defendant received an amount of Rs 40,000/ on 16.08.2002 from the plaintiff and issued a receipt in his handwriting and signed the said receipt. It is further submitted that defendant issued only one receipt dated 24.05.2002 for an amount of Rs 50,000/ and except this receipt, no other receipt was executed on 24.05.2002. The defendant further submitted that the last date of completion of sale agreement was 25.06.2002 but plaintiff failed to perform his part of the contract. It is further denied that defendant told plaintiff that it would take sometime for getting the paper executed and plaintiff told defendant that the amount of Rs 2,55,000/ will be paid at the time of 5/14 Suman Kapoor vs. Rakesh Kapoor execution of sale documents. The plaintiff has not given any date and time when plaintiff informed the defendant to perform his part of the contract.
5. It is further denied that defendant received any amount in the month of July, 2005 and plaintiff was denied the receipt. The plaintiff has pleaded that amount was given to defendant in July 2005 but defendant not issued a receipt as defendant was out of town is self contradictory as when defendant was not present in the house, how any amount can be given to defendant by plaintiff. It is further denied that any legal notice was served by plaintiff on the defendant. It is further denied that plaintiff ever asked defendant to receive balance sale consideration and execute the sale deed in his favour. The defendant denied each and every allegation as levelled in the plaint.
6. The plaintiff filed replication denying each and every allegation as levelled in the written statement and reiterated the averments made in the plaint.
7. On 19.03.2008, the following issues were framed by Ld. Predecessor of this court :
(1) Whether the suit of the plaintiff is barred by
law of limitation ? (OPD)
(2) Whether the time was the essence of the
contract of sale of the suit property ? If so, its effect ? (OPD) 6/14 Suman Kapoor vs. Rakesh Kapoor (3) Whether the plaintiff was ready and willing to perform her part of the contract regarding which the specific performance has been claimed ? (OPP) (4) Whether the plaintiff is entitled to the decree for a specific performance or in the alternative for the recovery of the amount as prayed for with interest, its period and quantum ?
(OPP)
(5) Relief.
8. The plaintiff examined herself as PW1 and tendered her evidence by way of affidavit as Ex.PW 1/A. She has proved the original receipts dated 24.05.2002 as Ex.PW 1/1 and Ex.PW 1/ 2, receipt dated 21.07.2002 Ex.PW 1/3, receipt dated 16.08.2002 Ex.PW 1/ 4, carbon copy of legal notice dated 29.08.2006 as Ex.PW 1/5, postal receipt Ex.PW 1/6 and A.D. Card Ex.PW 1/7. The plaintiff examined Shri Sanjay Rana as PW2 and tendered his evidence by way of affidavit as Ex.P2.
9. The defendant examined himself as DW1 and tendered his evidence by way of affidavit as Ex.DW 1/A. ISSUES NO. 2, 3 & 4
10. These issues are overlapping each other and are disposed of by the common order. The onus to prove this issue is on the plaintiff and plaintiff appeared as PW1 and reiterated the averments of the plaint and, interalia, testified that plaintiff entered into an agreement to sell of the suit 7/14 Suman Kapoor vs. Rakesh Kapoor property for Rs 6,25,000/ and paid an amount of Rs2.5Lacs on 17.02.2002 but defendant did not issued any receipt thereafter defendant was paid an amount of Rs 50,000/ on 23.05.2002. PW1 further testified but defendant issued two receipt on 24.05.2002 for an amount of Rs 2.5 Lacs and Rs 50,000/.The plaintiff further paid an amount of RS 25,000/ through Ex. PW1/3 and another amount of Rs 40,000/ on 16.08.2002 through Ex. PW1/4. PW1 further testified that thereafter in July 2005 plaintiff paid Rs 55,000/ to defendant but defendant issued no receipt. The defendant failed to execute sale deed after receiving the balance consideration.
11. During the course of arguments Ld. Counsel for plaintiff has contented that plaintiff was and is ever ready and willing to perform his part of contract but defendant failed to perform his part of performance of the agreement, the defendant is not the owner of the suit property as alleged in WS, as such defendant is obliged to return the amount taken from the plaintiff by claiming to be the owner of the suit property. The signatures of the defendant is available on all the receipts and in the absence of any expert evidence, the court is empowered the compare the signature/handwriting of the defendant as per mandate of law. In this regard reliance is placed upon "State of Gujarat vs. Vinaya Chandra Chhota Lal" AIR 1967 SC 778, "Lalit Popli vs. Canara Bank" (2003) 3 SCC 583. The agreement for specific performance can be entered into orally as per law laid down in "Alka Bose vs. Parmatma Devi " (2009) 2 SCC 582. Therefore suit be decreed.
12. Per contra Ld. Counsel defendant has contended that plaintiff failed to prove that he was ever ready and willing to perform his 8/14 Suman Kapoor vs. Rakesh Kapoor part as except his oral statement and time barred receipt Ex. PW1/1 there is no evidence to prove that plaintiff was ever ready and willing to perform his part of contract. In this regard he has relied upon Ved Prakash Kharbanda Vs. Vimal Bindal 198 (2013) DLT 555. It is further argued that plaintiff has no capacity to pay as alleged in plaint but plaintiff allegedly paid an amount of Rs 2.5 on 17.02.2002 which raise suspicious regarding the plaintiff approaching this court with suppression of facts. In this regard, reliance is place upon "Yashwant Laxman Pai Raikar vs. Laxman V. Singhal"
2010(3) Civil Court Cases 233 (Bombay). It is further contended that receipt Ex. PW1/1 can't be termed as agreement to sell therefore it can't be enforced specifically. In this regard relevance is place upon "A. Yellappa Sastri vs. Gunda Shankara Lingam (died) by LR" 2010 (4) Civil court cases 929 (AP). The suit is barred by limitation as receipt Ex. PW1/1 was executed in 2002 whereas suit is filed in 2007, therefore suit be dismissed in this regard, reliance is placed upon "S.Kanaka Durga Manikyhamba Vs. Ramapragada Surya Prakasa Rao" 2010(3) Civil Court Cases 508 (A.P).
13. It may be noted that plaintiff has tried to prove his case that defendant executed documents Ex. PW1/1 and Ex. PW1/2 for Rs 2.5 Lacs and Rs 50,000/ on 24.05.2002. The amount of Rs 2.5 Lacs was received by defendant on 17.02.2002 but receipt was executed in 24.05.2002 thereafter defendant received Rs. 25,000/ and Rs. 45,000/ through Ex. PW1/3 & Ex. PW1/4 respectively and thereafter Rs 50,000/ was paid in cash in July 2005 but defendant did not lead any evidence. The defendant denied all receipt 9/14 Suman Kapoor vs. Rakesh Kapoor except Ex. PW1/1 of Rs 50,000/ through which the sale deed was to be executed on 25.06.2002. It is relevant to mention here that plaintiff has pleaded in his pleadings that defendant has agreed to receive the sale consideration by way of installment, which facts defendant has denied but plaintiff has alleged to have given Rs 2.5 Lacs to defendant on 17.02.2002 for which receipt was issued by defendant on 24.05.2002. Therefore plaintiff has led proof contrary to his pleadings in as much as plaintiff failed to prove as to how she was having an amount of Rs. 2.5 Lacs on 17.02.2002 by borrowing from his relatives, whereas she pleaded that defendant agreed for receiving sale consideration in installments. The plaintiff did not lead any evidence as to how she arranged Rs 2.5 Lacs on 17.02.2002, therefore plaintiff could not prove the source of the money paid by plaintiff to defendant. In addition to, it may be noted that plaintiff has tried to prove that plaintiff has paid further amount of Rs 25,000/ and Rs 45,000/ through Ex. PW1/3 and Ex. PW1/4 which documents namely Ex. PW1/2, Ex. PW1/3 and Ex. PW1/4 have been denied by defendant. The plaintiff could not prove that there documents were signed by defendant as the application of plaintiff for having handwriting expert was dismissed. It may be noted that in the absence of any evidence regarding handwriting expert, this court is empowered to compare the admitted handwriting 'signature of the defendant' with that of the disputed handwriting and signature as per the mandate of section 73 of the Indian Evidence Act; same is the ratio of judgment relied upon by Ld. counsel for the plaintiff in this regard. This court has scanned the admitted signatures of document Ex. PW1/1 with that of disputed signatures of defendant on document Ex. PW1/2 to Ex. PW1/4 and on the bare perusal of these documents it is clear that neither the signature nor the handwriting of 10/14 Suman Kapoor vs. Rakesh Kapoor Ex. PW1/1 is tallying with signatures as contained in Ex. PW1/2 to Ex. PW1/4. The comparison of the two sets of script as aforesaid reveal apparent dissimilarities in the extent of freedom, strokes, continuity, flow, impressions of per lift, tremor etc suggesting that the disputed signatures, handwriting is not tallying with admitted signature/handwriting of the defendant. There are difference in line quality, movement and pen position, space, style and hesitation tremor in the disputed signatures and admitted signatures of defendant. Therefore the receipt Ex. PW1/2 to Ex. PW1/4 are forged and fabricated as the same are not proved to have been executed by defendant. The plaintiff except his self serving statement could not lead any evidence on record to prove that defendant executed these receipts Ex. PW1/2 to Ex. PW1/4 as PW2 has admitted that no agreement took place in his presence as he was a child at that time. So far as readiness and willingness is concerned the plaintiff has led no evidence to prove that she was ever ready and willing to perform his part of contract. As per the case of plaintiff she made part payment upto July 2005 but last payment as alleged by plaintiff was made on 16.08.2002 through Ex. PW1/4 which has already been held to be forged, and suit was filed in 2007. Although plaintiff has tried to prove that last payment was made in July 2005 But defendant had not issued any receipt but no evidence was led by plaintiff to prove that any payment in cash was made in July 2005, therefore plaintiff failed to prove that after 16.08.2002 as alleged, any payment was made to defendant. But plaintiff did not issue any notice to defendant upto 29.08.2006, which notice has been denied by defendant, but even if it is presumed for sake of arguments that plaintiff issue legal notice to defendant, that is issued after four years of the alleged payment. The plaintiff failed to prove as to what stopped him for issuing 11/14 Suman Kapoor vs. Rakesh Kapoor notice in between, therefore, except his self serving statement, plaintiff led no evidence to prove that plaintiff was ever ready and willing to perform his part. Therefore plaintiff is not entitled to seek specific performance of this contract or any amount paid as earnest money. In this regards, I found support from Ved Prakash Kharbanda (supra). The adverse inference could have been drawn against plaintiff if other evidence is on record to infer that plaintiff is ready and willing, but in the absence of other evidence, this presumption u/s 114 of the Indian Evidence Act regarding service of legal notice is not going to advance the case of plaintiff.
14. Furthermore the plaintiff is alleged to have paid an amount of Rs 2.5 Lacs on 17.02.2002 for which the receipt was executed by defendant on 24.05.2002 but plaintiff is alleged to have paid 40% of sale consideration at the time of execution of agreement to sell/receipt and for paying rest of the amount plaintiff took such a longtime, therefore plaintiff has suppressed the material facts from this court. In this regard reliance is rightly placed upon by defendant on Yeshwant case (supra). The receipt/agreement to sell contains the recital of the terms and condition, therefore it can not be treated that this is not the agreement to sell. The ratio of A.Y. Shastri (supra) is distinguishable to the facts of the present case, but in Alka Bose the Hon'ble Supreme Court has held that an oral agreement can be entered into between the parties. Therefore these issues are decided against the plaintiff and in favour of the defendant.
ISSUE NO.2
12/14 Suman Kapoor vs. Rakesh Kapoor
15. The onus to prove this issue is on the defendant. Defendant has admitted that Ex. PW1/1 was executed by him which contained the recital that the sale deed is to be executed by 25.06.2002. Otherwise receipts through which plaintiff claimed that time to execute sale deed was extended have been found to be forged. Therefore as per the terms and conditions of EX P1/1 time is the essence of the contract. Therefore this issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO.1
16. The onus to prove this issue is on the defendant. Defendant has admitted that he executed Ex. PW 1/1 on 24.05.2002. That suit is filled in the year 2007. The plaintiff has tried to prove that defendant was in need of payment of sale consideration in July 2005 but plaintiff failed to prove that any amount was paid by the plaintiff to defendant as no documentary or oral evidence has been placed on record in this regard. Therefore as per the case of plaintiff, she made last payment on 16.08.2002 through Ex. PW 1/4 but Ex. PW 1/2 to Ex. PW 1/4 are found to have been forged, but even if it is presumed for the sake of argument that Ex. PW 1/2 to Ex. PW 1/4 are genuine, even then the suit of the plaintiff is barred by time as the alleged receipt are of to 2002 whereas suit is filled in the year 2007. It may be noted that Ex. PW 1/1 is admitted document which bears the date of 24.05.2002, therefore limitation for filling the present suit come to an end on 24.05.2005 as such this suit is hopelessly barred by limitation. So it the ratio of S. Kanaka Durga (supra). This issue is decided in favor of defendant and against the plaintiff.
13/14 Suman Kapoor vs. Rakesh Kapoor RELIEF
17. From the above discussion I am of the opinion that plaintiff is not entitled to any relief therefore the suit of the plaintiff is hereby dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT, On 28th day of September, 2015.
(DR. VIJAY KUMAR DAHIYA)
ADJ(CENTRAL07)/DELHI
28.09.2015
14/14 Suman Kapoor vs. Rakesh Kapoor
15/14 Suman Kapoor vs. Rakesh Kapoor