Delhi District Court
M/S Shanti Saroop Krishan Lal vs Shri Badri Pershad on 22 April, 2010
1
IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA,
ADDITIONAL DISTRICT JUDGE-08 (CENTRAL)
RCA No. 07/08
M/s Shanti Saroop Krishan Lal
& Company, B-152,
New Subzi Mandi, Azadpur
Delhi.
...........Appellant
Vs.
Shri Badri Pershad
S/o Shri Mela Ram,
C/o M/s Satyanarain & Company,
Fruit Commission Agents,
Sapota Bhatti No. 5, Fruit Market
Kothapet, Gaddinaran Hyderabad (AP)
Second Address: R/o H.No. 2/47,
Prabhat Nagar, Chetanyapuri
Hyderabad (A.P.)
...........Respondent
Date of institution of the appeal : 22.12.08
Date of arguments : 19.4.10
Date of the Judgment : 22.4.10
JUDGMENT
1. The present appeal has been filed by the appellant 2 against the Judgment/decree dt. 13.10.08 passed by the Ld. Civil Judge in the suit No. 540/06/98 whereby the suit of the appellant was dismissed.
2. Brief facts which are necessary for the disposal of the present appeal are that the plaintiff (appellant) has alleged in the plaint that plaintiff is registered partnership firm. The defendant (respondent herein) had business dealings with the plaintiff and had been taking apples from the plaintiff at Delhi, which the plaintiff used to sent to the defendant at his business place at Hyderabad for its sale on commission basis from time to time. The defendant owed a sum of Rs. 1,20,000/- to the plaintiff. The defendant approached to the plaintiff that he is unable to pay the amount and he had two properties bearing No. H-1592 and H-1593, J.J. Colony, Jahangirpuri, Delhi (hereinafter be referred as 'Suit Property') and wanted to sell these properties and also wanted another sum of Rs. 1,00,000/- from the plaintiff. The plaintiff acceded to the request of the defendant, and paid Rs. 1,00,000/- to the defendant by cheque. The total amount to be payable by the defendant to the plaintiff came to Rs. 2,20,000/- on 10.11.95 and defendant agreed to repay the same within the period of six months from 10.11.95 with interest @ 18% per annum. Defendant had also entered into an agreement to sell dt. 10.11.95 with the plaintiff. Defendant also executed a receipt 3 of Rs. 1,00,000/- dt. 10.11.95 and also executed a General Power of Attorney pertaining to the suit property. As per the terms of this agreement to sell of the suit property if the defendant was not able to pay back the amount and hand over the physical possession of the suit property for the next period of three months from the expiry of period of six months w.e.f. 10.11.95, the plaintiff would be at liberty to get the said agreement enforced. Defendant had failed to perform his part of the contract despite the service of notice dt. 13.5.96 and 5.6.96 upon him. It is prayed that the decree of specific performance of the agreement to sell of the suit property be passed in favour of the plaintiff and against the defendant.
In written statement defendant has denied the case of the plaintiff. The defendant has alleged that the defendant has not executed the documents as alleged by the plaintiff. The defendant has no business dealings with the plaintiff. The suit of the plaintiff is based on false and fabricated documents and it be dismissed.
3. Ld. trial court framed the issues and after the trial the suit was dismissed by the impugned judgment/decree dt. 13.10.08.
4. I have heard Ld. counsel for the appellant and Ld. counsel for the respondent and perused the file. Ld. counsel for the appellant has relied upon AIR 2008 SC 1960, (2009) 4 4 SCC 193, (2009) 5 SCC 713 and Ld. counsel for the respondent has relied upon AIR 1998 Delhi 84, AIR 2003 Madras 262, AIR 1992 Kerela 115, AIR 1985 Delhi 45.
Ld. counsel for the appellant has argued that the decision of the trial court on issue No. 5 is absolutely bad in law and is based on conjuncture and surmises. The trial court has passed the decision on the issue No. 5 without appreciating the evidence of PW1. In his affidavit, PW1 has specifically deposed that the agreement to sell and the other documents were actually in respect of the suit property. In view of the wrong decision on issue No. 5, the trial court has also wrongly decided the issue No. 6. It is prayed that the impugned judgment be set aside and suit be decreed.
On the other hand Ld. counsel for the respondent has argued that there is no infirmity in the impugned judgment of the trial court and the appeal is liable to be dismissed.
5. In order to prove its case plaintiff has examined Shri Surjit Rai Sethi as PW1, Shri Kuldeep Seth from the Punjab and Sindh Bank as PW2, Shri Diwan Chand from the Income Tax office as PW3 and Shri S.P. Tandon as PW4.
PW1 in his affidavit Ex. P1 which is tendered into evidence has supported the case as made out in the plaint. He has proved the documents, agreement to sell as Ex. PW1/8, General Power of Attorney as Ex. PW1/9, affidavit as 5 Ex. PW1/10, receipt as Ex. PW1/11, legal notice dt. 13.5.96 as Ex. PW1/13 and legal notice dt. 5.6.96 as Ex. PW1/20.
As per the case of the appellant, the respondent had entered into an agreement to sell with the appellant in respect of the suit property i.e. H-1592 and H-1593 and it is due to typing mistake and by accidental slip the number of the properties was mentioned in the documents executed between the parties as H-192-93.
In Ex. PW1/8, Ex. PW1/9 and Ex. PW1/10 the number of the properties is mentioned as H-192-93, J.J. Colony, Jahangir Puri, Delhi. PW1 has deposed that in fact the number of properties were H-1592 and H-1593 and it is only due to typing mistake and by accidental slip that the properties were typed as H.192-193 in the document Ex. PW1/8 to Ex. PW1/10.
It has been observed by Hon'ble High Court of Delhi in AIR 1998 Delhi 84:-
"The general rule is that where a contract is expressed in writing oral evidence is inadmissible to explain or vary the terms of the written contract. Although a contract is always to be construed according to the intention of the parties, that intention can only be ascertained from the instrument itself and all other evidence of intention is excluded because 6 when an agreement is reduced into writing the parties thereto are bound by the terms and conditions of it".
In AIR 1996 SC 2025 which has been relied upon by the Hon'ble High Court of Delhi in the aforesaid judgment AIR 1998 Delhi 84, it has been observed by Hon'ble Supreme Court:-
"Once a contract is reduced to writing, by operation of section 91 of the Evidence Act it is not open to any of the parties to seek to prove terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under section 92 of the Evidence Act where the written instrument appears to contain the whole terms of the contract then parties to the contract are not entitled to lead oral evidence to ascertain the terms of the contract. It is only when the written contract does not contain the whole of the agreement between the parties and there is any ambiguity then oral evidence is permissible to prove the other conditions which also must not be inconsistent with the written contract".
Perusal of the alleged agreement to sell Ex. PW1/8 shows it contain the whole of the agreement between the parties and there is no ambiguity in it as to the identification of 7 properties. In view of the aforesaid judgments and section 91 and section 92 of the Evidence Act, the oral evidence is inadmissible to explain or vary the terms of the written contract.
Even for the sake of arguments, if it is assumed that the property number has been incorrectly mentioned due to clerical mistake in Ex. PW1/8 to Ex. PW1/10 then why this mistake has not been subsequently corrected in the legal notice dt. Ex. PW1/13 and Ex. PW1/20 allegedly sent by the appellant to the respondent. In both these notices the properties numbers has been mentioned as H-192-193, J.J. Colony, Jahangirpuri, Delhi. Accordingly, I do not find any merits in the arguments of the appellant that the properties No. H-192-93 has been mentioned in the documents due to typing mistake and by accidental slip. The judgments relied upon by the Ld. counsel for the appellant are not applicable to the facts of the present case.
6. In view of the above discussions, I am of the opinion that as the appellant has failed to prove that there is an agreement to sell in respect of suit property i.e. H-1592 and H-1593, J.J. Colony, Jahangirpuri, between the parties, so relief sought by the appellant in the suit cannot be granted. There is no illegality or infirmity in the impugned judgment/decree dt. 13.10.08 passed by the trial court in suit 8 No. 540/06/98. The appeal is without any merits and it is dismissed. Decree Sheet be prepared.
Appeal file be consigned to Record Room.
Trial Court Record be sent back with the attested copy of this Judgment.
Announced in the open court (Rajneesh Kumar Gupta) today i.e . 22.4.2010 Additional District Judge-08 (Central), Tis Hazari, Delhi