Delhi District Court
Arvind Kumar vs Sh. Jai Narain(Since Diceased) on 22 July, 2023
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02:
NORTH ROHINI COURTS COMPLEX: DELHI
CNR No. DLNT01-009603-2018
CS DJ 60109/2016
(Old CS(OS) no. 844/2006, CS No. 589/16)
IN THE MATTER OF:-
ARVIND KUMAR
S/O SHRI CHANDER PRAKASH
R/O NARELA, DELHI ........Plaintiff
VERSUS
1. SH. JAI NARAIN(SINCE DICEASED)
THROUGH LEGAL REPRESENTATIVES,
(i) SH. SUDHIR RANA S/O SH. JAI NARAIN
(ii) SH. SUJIT RANA S/O SH. JAI NARAIN
BOTH RESIDENTS OF VILLAGE NANGLI, PUNA, DELHI.
2. SH. DEVA NAND
3. SH. PUSHPENDER
4. SH. MUKESH
NO. 2 TO 4 ALL SONS OF SH. PREM SINGH, GRAND SONS
OF DEV RAJ
NO. 2 TO 4 ALL RESIDENTS OF VILLAGE NANGLI PUNA,
DELHI.
5. SH. RAJESH S/O SH. NIRANJAN
R/O VILLAGE NANGLI PUNA, DELHI.
6. M/S PROSPEROUS BUILDCON (P) LTD.
D-26, DEFENCE COLONY, NEW DELHI-110004
ALSO AT
75, SEVENTH FLOOR, HIMALYA HOUSE,
K.G. MARG, NEW DELHI-110001
7. M/S LOGICAL ESTATES (P) LTD.
CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 1 of 34
17-B, ASAF ALI ROAD,
NEW DELHI-110002 .....Defendants
Date of institution : 18.05.2006
Date of Conclusion of Argument : 06.07.2023
Date of Order/Judgment : 22.07.2023
SUIT FOR SPECIFIC PERFORMANCE OF THE AGREEMENT
TO SELL DATED 25.09.2005 ENTERED INTO BETWEEN THE
PARTIES AND FOR DELIVERY OF POSSESSION OF THE SUIT
PROPERTY.
JUDGMENT
1 The facts, in brief, necessary for the disposal of the present suit, for specific performance of the agreement to sell dated 25.09.2005 as disclosed by the plaintiff in the amended plaint, are that the defendants no. 1 to 5 entered into an agreement to sell dated 25.09.2005 with the plaintiff in respect of the land measuring 7 bighas 3 biswas out of Khasra no. 15/18(5-9) and 23(1-14) situated in the revenue estate of Village, Budhpur, Delhi. 2 The plaintiff, in para no. 2 of the amended plaint, has relied upon the following clauses of the agreement to sell dated 25.09.2005 :-
"THAT the period of completion of the said Sale Document is fixed between the parties upto 25.12.2005 from the date of execution of this Agreement to Sell dated.
CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 2 of 34 That the first party shall shall deliver the actual physical vacant possession of the said property unto the second party at the time of registration of the sale documents., That the first party hereby assures and declare that the said property under sale is free from all sorts of encumbrances, sale mortgage, lien, decree, court case, charges etc. etc. and there is no legal defect in the title of the first party. If it is proved otherwise the first party shall be liable to indemnify the second party with costs and expenses., That all the registration expenses of execution of Sale Deed shall pay paid borne by the second party., That the first party had not entered into any sorts of agreement(except second party) with any body/ person(s) for the sale and transfer of the said property.
That the first party shall hand over all previous original documents of the said property to the second party at the time of final payment., That the land if any of the said property upto delivering possession of the said property shall be paid and borne by the first party and thereafter, the same shall be paid by the second party., That the first party shall undertake to appear in all the offices of the DDA/ MCD/ Concerned Registrar Office or any other concerned authority/s as and when required by the second party without any hitch and delay at the cost of the second party."
CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 3 of 34 3 The plaintiff, in the amended plaint, has further stated that out of the total sale consideration of Rs. 42 lacs, a sum of Rs. 4.20 lacs was paid by the plaintiff to the defendants vide separate receipt dated 25.09.2005 and the factum of the receipt of the amount of Rs. 4.20 lacs was also recorded and acknowledged in the agreement to sell. The plaintiff, in the amended plaint, has further stated that as per the local laws, the defendants are required to apply for and obtain the permission to sell the suit property from the Tehsildar(Notifications), in view of the provisions of Section 8 of the Delhi Land(Registration on Transfer) Act, 1972. The plaintiff states that he has always been ready and willing to perform his part of the contract and he requested the defendants to apply for obtaining the requisite no objection/ permission from the concerned authorities but the defendants kept on postponing the matter on one pretext or the other for the reasons best known to them. It has been further stated that the plaintiff served a legal notice dated 12.01.2006 upon the defendants calling upon them to execute the sale deed but despite the service of the legal notice, the defendants failed to execute any sale deed in favour of the plaintiff. The plaintiff has alleged that the prices of the land in the area in question started rising after the agreement dated 25.09.2005 and as such, the defendants are trying to avoid the execution and registration of the sale deed.
CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 4 of 34 4 The plaintiff has further stated that the defendants no. 2 to 5 have projected that they have sold the land in question to defendants no. 6 and 7 vide sale deed dated 23.01.2006 but the sale deed dated 23.01.2006 is not binding upon the plaintiff. It has been further stated that doctrine of Lis Pendence is applicable against the defendant no. 6 and 7.
5 On the basis of the above said allegations as contained in the amended plaint, the plaintiff has prayed for a decree of Specific Performance of the Agreement to Sell dated 25.09.2005, seeking a direction against the defendants to execute the sale deed in favour of the plaintiff in respect of the suit property. The plaintiff has further prayed that the sale deed dated 23.01.2006 allegedly executed by defendants no. 1 to 5 in favour of the defendant no. 6 and 7 be treated as illegal and not binding upon the plaintiff. The plaintiff has also prayed for the costs of the suit. 6 In the amended written statement filed by the legal heirs of the deceased defendant no. 1 and defendant nos. 2 to 5, the defendants have taken the stand that the Agreement to sell dated 25.09.2015 was executed by the defendants. It has been further stated that the suit property has already been sold by virtue of the sale deed dated 23.01.2006 in favour of the defendants no. 6 and 7 prior to the institution of the present suit and as such, the present suit is not maintainable.
CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 5 of 34 7 It has been further stated that Sh. Mahipal Rana S/o Sh. Chander Bhan had obtained the thumb impressions of the defendants on blank documents on the pretext that he would pay the consideration amount as and when he finds a buyer. It has been further stated that the perusal of the photocopy of the blank agreement reveals that the name of the purchaser has not been mentioned in the above said documents nor the name of the person to whom the payment was made, has been mentioned. The defendants have further stated that no amount of Rs. 4.20 lacs was ever paid by the plaintiff. It has been further stated after a period of three months, Mr. Mahipal informed the defendants that he failed to find any purchaser and he represented that he had destroyed original thumb marked papers. It has been further stated that the defendants believed the words of Sh. Mahipal Rana being a co-villager. The defendants have stated that the plaintiff has misused the blank documents that Sh. Mahipal Rana had represented to have been destroyed by him. It has been further stated that the present suit is without any cause of action. Receipt of the legal notice dated 12.01.2006 has been denied by the defendants. The defendants have further taken the stand that the Doctrine of Lis Pendence does not apply in the present case. The defendants have prayed that the suit of the plaintiff be dismissed being false and frivolous.
CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 6 of 34 8 Written statement has also been filed on record by the defendants no. 6 and 7 stating therein that they were impleaded vide orders dated 23.04.2007 passed by the court on an application u/o I Rule 10 of the CPC which was filed by the plaintiff. It has been further stated that they are the bonafide purchasers for value for agreement to sell dated 23.09.2005. It has been further stated that the transaction of the sale of the property in question by defendants no. 1 to 5 in favour of defendant no. 6 and 7 is not hit by the Doctrine of Lis Pendence. It has been prayed that the suit of the plaintiff be dismissed. It has been prayed that the suit of the plaintiff be dismissed.
9 Separate replications to the separate written statements of the defendants have been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendants.
10 Vide orders dated 19.10.2012, following issues were framed by the Hon'ble High Court of Delhi in the present suit when the matter was pending before the Hon'ble High Court of Delhi:-
1. Whether the plaintiff entered into an agreement to sell dated September 25, 2005 with the defendants no. 1 to 5 for purchase of the sit property viz. Land measuring 7 bighas 3 biswas out of Khasra no. 15/18(5-9), 23(1-14) situated in the Revenue Estate of Village Budhpur, Delhi?OPP.
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2. Whether the aforesaid agreement dated September 25, 2005 is a fabricated one?OPD.
3. Whether the plaintiff paid a sum of Rs. 4,20,000/- to the defendants no. 1 to 5?If so, to what effect?OPP.
4. Whether the defendants no. 6 and 7 are bonafide purchasers of the suit property for value without notice of the agreement to sell with the plaintiff?OPD 6 & 7.
5. Whether the plaintiff is entitled to the relief of specific performance as prayed for?OPP.
6. Relief.
11 Now coming to the evidence, the plaintiff has examined himself as PW1 and in his evidence by way of affidavit Ex. PW1/A on record, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record the receipt dated 25.09.2005 for the amount of Rs. 4.20 lacs as Ex. PW1/1; Original agreement as Ex. PW1/2; copy of the notice dated 12.01.2006 as Ex. PW1/3; postal receipts thereof as Ex. PW1/4 to Ex. PW1/8; AD receipts showing the service of the said notice upon the defendants as Ex. PW1/9 to Ex. PW1/13.
During the cross-examination of PW1, copies of two passbooks from account no. 1009104000005227 have been exhibited as Ex. PW1/D-1/1(colly.) and copies of ITRs have been exhibited as Ex. PW1/D-1/2.
CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 8 of 34 12 Defendant no. 3 Sh. Pushpender has examined himself as DW1 on behalf of the legal heirs of the deceased defendant no. 1 as well as on behalf of the defendants no. 2 to 5 and this witness has filed on record the evidence by way of affidavit Ex. DW1/A on record reiterating and reaffirming the stand as taken by the defendants no. 1 to 5 in their written statements. He has filed on record the copy of blank agreement as Mark DX and copy of the receipt for the amount of Rs. 4.20 lacs as Mark DX-1.
13 Defendants no. 6 and 7 have examined Sh. Kuldeep, Authorized Representative Sh. Kuldeep as DW6 and this witness has filed on record his affidavit as Ex. DW6/A; copies of the board resolutions both dated 22.03.2023 as Ex. DW6/1; certified copy of the sale deed dated 23.01.2006 as Ex. DW6/2 and copy of mutation document dated 27.06.2014 as Mark A. 14 The detailed cross-examination of these witnesses shall be discussed during the later part of this judgment. 15 I have carefully gone through the entire material available on record and heard the rival submissions of all the ld. counsels for the parties.
16 My issueswise findings on the issues framed on 15.04.2015 by the Hon'ble High Court of Delhi are as under:
16.1 ISSUES NO. 1, 2 and 316.1.1 All these issues are being taken up together as the same are connected interse and overlap each other. The onus to CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 9 of 34 prove issues no. 1 and 3 has been placed upon the plaintiff but the onus to prove issue no. 2 has been placed upon the defendants.
16.1.2 The factual controversy involved in the present suit is within a narrow compass. The defendants no. 1 to 5 have denied the execution of the receipt dated 25.09.2005 Ex.
PW1/1 on record and the execution of the agreement to sell Ex. PW1/1 on record. The defendants no. 1 to 5 have taken the stand that Mr. Mahipal Rana, who was a co-villager had got the signatures and thumb impressions of the defendants on certain blank papers on the pretext of finding some prospective buyer. The defendants have further taken up the plea that the plaintiff has misused the blank documents that Mahipal Rana had represented to have been destroyed by him. The defendants no. 1 to 5 have placed on record the photocopies of the agreement to sell dated 25.09.2005 and the photocopy of the receipt dated 25.09.2005 as Mark DX and Mark DX1. In the agreement to sell and the receipt placed on record by the defendants no. 1 to 5, the name of the buyer is absent and the same has neither been typed nor the same has been written in hand.
16.1.3 During the course of final arguments, ld. counsel for the plaintiff has argued that the plaintiff has been able to prove the agreement to sell dated 25.09.2005 Ex. PW1/2 on CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 10 of 34 record executed on the stamp paper of Rs. 50/- bearing no. 570060 and the receipt Ex. PW1/1 as well for the amount of Rs. 4.20 lacs. Ld. counsel for the plaintiff has further argued that the photocopy of the agreement to sell Mark DX on record placed on record by the defendants is not bearing any number of the stamp paper and the same is not bearing the name of the purchaser even on the back side. It has been further argued that the stand of the defendants has changed from the original written statement which was filed on record by them and their stand in the amended written statement is all together different. It has been further argued that PW1 has been able to prove his readiness and willingness to perform his part of the contract as he already paid an amount of Rs. 4.20 lacs as the earnest amount. It has been further argued that certain bank account statements and ITRs were also filed on record by the plaintiff in the form of Ex. PW1/D-1/1 and Ex. PW1/D-1/2. It has been further argued by the plaintiff that the legal notice dated 12.01.2006 was not answered and replied by the defendants no. 1 to 5 which raises a presumption against them.
16.1.4 Whereas, on the other hand, in the written final arguments filed on record by the defendants no. 1 to 5, it has been argued that the plaintiff has utterly failed to prove on CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 11 of 34 record the agreement to sell and the receipt dated 25.09.2005 Ex. PW2/1 and Ex. PW1/1 on record. It has been further argued that the plaintiff has utterly failed to prove his case, if the cross-examination of the plaintiff i.e. PW1 is carefully gone through. It has been further argued that the plaintiff has failed to examine Sh. Mahipal Rana and Sh. Rajesh Khatri who were the alleged witnesses in the agreement to sell and the receipt dated 25.09.2005. It has been further argued that the plaintiff has failed to examine the typist Sh. Yashpal who had allegedly typed the agreement to sell and the receipt dated 25.09.2005. It has been further argued that the bank statement of the IDBI Bank, Shalimar Bagh, for the period from 12.08.2011 to 06.06.2017 Ex. PW1/D-1/1 placed on record by PW1 show that the plaintiff was having merely the balance of Rs. 24,582/-. It has been further argued that the plaintiff filed the income tax returns for the years 2010-2011 to 2014- 2015 and the same were exhibited as Ex. PW1/D-1/2. It has been further argued that going by the bank balance and the ITRs of the plaintiff, it is apparently clear that the plaintiff was not having any capacity to pay the earnest amount of Rs. 4.20 lacs, what to talk of the balance amount of Rs. 37.80 lacs. It has been further argued that in his cross- examination, the plaintiff has shown his ignorance about CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 12 of 34 the applicability of Section 33 of the Delhi Land Reforms Act. It has been further argued that the cross-examination of the plaintiff clearly proves that the agreement to sell and the receipt were never executed by the defendants and that the plaintiff was never ready and willing to perform his part of the contract or to pay the earnest amount. In this regard, the defendants have relied upon the ratio of the authority titled as Ritu Saxena Vs. J.S. Grover And Anr. cited as (2019)9SCC132, wherein, the Hon'ble Supreme Court of India, in paras no. 2,14 and 15 thereof, has held as under:-
" 2) The husband of the appellant, who as an employee of M/s. GE Capital Services India Ltd., was in occupation of the said residential premises on a monthly rent of Rs.13,000/- to be paid by the tenant i.e. M/s. GE Capital Services India Ltd. since September 2002 to the landlord.
On the expiry of the existing lease, the Agreement of Lease was extended for 11 months from September 01, 2004 but before the expiry of the lease, the appellant claims to have entered into an Agreement of Purchase the said property for a total sum of Rs.50 lakhs. A sum of Rs.1 lakh by cheque was paid to the defendants. It was agreed that all further relevant documents such as Agreement to Sell, Sale Deed, Will, Possession Certificate and No Objection Certificate for the purpose of transferring the said property shall be executed. The Agreement reads thus:
"I, J. S. Grover S/o G. S. Grover, resident of M-12 (First Floor) Kailash Colony, New Delhi 48 have agreed in principle and in terms to sell my house (for a consideration of Rs. 50 lacs) which is a freehold joint property in my name and in my wife's name Smt. Veena CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 13 of 34 Grover, known as house bearing no.272, Gulmohar Enclave New Delhi 1100049.
In this transaction I acknowledge the receipt of Rs. 1 lac as advance money by cheque number 044386 dt.
18.7.2004 issued from ICICI Bank Vasant Vihar New Delhi and agree to furnish all the further relevant document such as Agreement to Sale, Sale Deed, Will, Possession Certificate, NOCs etc. for the purpose of transferring the above said property in the name of Ritu Saxena at present residing at 272, Gulmohar Enclave New Delhi 110049 and a permanent resident of B-377 Indira Nagar Lucknow, U.P.
-sd-
18.7.2004 (J. S. Grover)"
14) We do not find any merit in the present appeals. The judgment in A. Kanthamani was in an appeal filed by the defendant against the concurrent finding of fact recorded by the courts below granting decree of specific performance of the Agreement. This Court has not interfered with the findings of fact recorded even after reappreciation of evidence.
15) Coming to the facts of the present case, the sole document relied upon by the appellant to prove her readiness and willingness is the approval of loan on July 30, 2004 by the ICICI. Such approval was subject to two conditions, viz., furnishing of income tax documents of the appellant and the property documents. M/s. ICICI has sent an Email on May 12, 2005 to the husband of the appellant requiring an Agreement to Sell on a stamp paper of Rs.50/- to be executed between the parties, as per the legal opinion sought from the empaneled lawyer, without which ICICI will not be able to disburse the loan.
Admittedly, no agreement was executed on stamp paper, therefore, the appellant could not avail loan of Rs.50 lakhs from ICICI. Independent of such loan, there is mere statement that appellant and her husband have income of Rs.80 lakhs per annum unsupported by any documentary evidence. Such statement will be in the nature of ipsi dixit of the appellant and/or her husband and is without any corroborating evidence. Such self- serving statements without any proof of financial resources cannot be relied CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 14 of 34 upon to return a finding that the appellant was ready and willing to perform her part of the contract. The appellant has not produced any income tax record or the bank statement in support of her plea of financial capacity so as to be ready and willing to perform the contract. Therefore, mere fact that the bank has assessed the financial capacity of the appellant while granting loan earlier in respect of another property is not sufficient to discharge of proof of financial capacity in the facts of the present case to hold that the appellant was ready and willing to perform her part of the contract. Such is the finding recorded by both the courts below as well. "
16.1.5 The defendants no. 6 and 7, who claim themselves to be the bonafide purchasers for value, without any notice of the alleged execution of the agreement to sell and receipt dated 25.09.2005, in the written final arguments, have argued that the property in question has already been purchased by them by virtue of the registered sale deed dated 23.01.2006 executed by defendants no. 1 to 5 for a valid sale consideration and the possession of the suit property has already been taken over by the defendants no. 6 and 7. It has been further argued that defendants no. 6 and 7 were subsequently added as the defendants in the present suit by way of an application u/o VI Rule 17 of the CPC and the Doctrine of Lis Pendence is not applicable against the defendant no. 6 and 7 as the sale deed dated 23.06.2006 was executed even prior to the institution of the present suit. It has been further argued that the alleged agreement to sell Ex. PW1/2 on record is an unregistered agreement and as CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 15 of 34 such, there was no occasion for defendant no. 6 and 7 to know about the execution thereof. It has been further argued that no title deeds were ever taken by the plaintiff from the defendants no. 1 to 5 at the time of alleged execution of the agreement to sell. It has been further argued that PW1, in the cross-examination, has admitted that the defendants no. 6 and 7 are the bonafide purchasers for value without any notice of the agreement to sell dated 25.09.2005. It has been further argued that the case of the defendants is covered by Section 19(b) of the Specific Relief Act, 1963. The above said defendants have relied upon the ratio of the judgment titled as Padmakumari Vs. Dasayyan cited as (2015)5Scale409, wherein, the Hon'ble Supreme Court of India, in para no. 20 thereof, has held as under:-
" 20. The last contention urged is whether defendant Nos. 12 to 15 (the appellants herein) are protected under Section 19(b) of the Specific Relief Act as they being the bona fide purchasers. Learned counsel for defendant Nos. 12 to 15 has rightly invited our attention that the non-compliance of the contract regarding payment of balance consideration to defendant Nos. 1 to 11 on the part of the plaintiff within nine months is an undisputed fact and further the agreement of sale is not registered, as is evidenced from the encumbrance certificate obtained by defendant Nos. 12 to 15 before they entered into an agreement (Exhibit B-1). Both the Courts below have erroneously recorded an erroneous finding on the non existent fact holding that the agreement of sale in favour of the plaintiff is a registered document CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 16 of 34 which, in fact, is not true. The same is evidenced from the encumbrance certificate. More so, defendant Nos. 12 to 15 before entering into the agreement with defendant Nos. 1 to 11 have made proper verification from the competent authority to purchase the part of the suit schedule property and got the agreement of sale (Exhibit B-1) executed in their favour, from defendant Nos. 1 to 11 and thereafter, they got the sale deed registered by paying sale consideration amount. As could be seen from the agreement of sale and registered sale deed, which is marked as Exhibit B-3, it is very clear that defendant Nos. 12 to 15 have paid the sale consideration amount of the property, therefore, the reliance placed upon Section 19(b) of the Specific Relief Act as they being the bona fide purchasers, the specific performance of contract cannot be enforced against the transferees. Defendant Nos. 12 to 15 being the transferee as they have purchased the suit schedule property for value and have paid the money in good faith and without notice of the original contract. "
The defendants no. 6 and 7 have further relied upon the ratio of the authority titled as Md. Mustafa Vs. Haji Md. ISA And Others cited as AIR 1987 Patna 5, wherein, the Hon'ble High Court of Patna in paras no. 27, 28 and 29, has held as under:-
"27. So, far the burden of proof regarding the plea of the purchasers being bona fide purchasers without notice of the prior contract is concerned, it is well settled that to defeat a suit for specific performance of contract, the burden Initially lies on the subsequent purchasers to prove want of notice, but this burden is somewhat light and even a mere denial may suffice for shifting the burden upon the plaintiff to prove that the purchasers had the knowledge about his prior contract before he purchased the property. In any event, when both the parties have given evidence, CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 17 of 34 the question of burden loses its importance and the question is ultimately one of appreciating evidence.
28. In view of the principles of law stated above, it cannot be said in the present case that defendants 2 and 3 shall be deemed to have notice about the alleged agreement between the plaintiff and Md. Isa as the plaintiff was in possession of only 1/7th of the building purchased by the defendants. In any event, the initial burden of proof regarding want of knowledge of the alleged prior agreement of the plaintiff has been discharged by D.W. 9 who is the father and guardian of the purchasers by stating on oath that he had absolutely no knowledge about the said agreement before he purchased the building in question from Md. Isa. Ordinarily one cannot expect any corroboration of such a denial and, in face of this denial, it was for the plaintiff to prove that in fact defendants 2 and 3 or their father had knowledge about his alleged agreement. The plaintiff (P.W. 2) himself is the solitary witness who has deposed on this point and he too has made only a vague and general statement in his examination-in-chief that these defendants and their father were aware of his agreement, but he has not explained as to how they could know about it. In the absence of any statement regarding any circumstance from which he could gather about their knowledge, it is difficult to accept his bald evidence in face of the denial of D.W. 9. The mere fact that D.W. 9 was also a resident of the same locality is not such a circumstance which alone can lead to the irresistible conclusion that he must be aware of the said agreement, specially when the locality is a big one comprising of a large number of houses. In such circumstances, the learned Subordinate Judge was quite justified in holding that defendants 2 and 3 and their father had no prior knowledge about the alleged agreement. When they had no prior knowledge about the said agreement, they cannot be bound by it and the plaintiff cannot enforce his agreement as against them, even if his agreement would have been a valid and genuine document, because a bona fide purchaser for value without notice cannot be bound by any prior agreement between his vendor and the plaintiff.
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29. Thus, in any view of the matter, the plaintiff is not entitled to a decree for specific performance of contract. He also cannot claim a refund of the consideration money of the agreement, in view of the finding that his agreement is not genuine and valid."
16.1.6 Going by the pleadings, the evidence led by the parties and the above said rival contentions of the parties to the present lis, the vital question to be considered by this court is as to whether, the plaintiff has been able to prove due and valid execution of the agreement to sell and the receipt dated 25.09.2005 Ex. PW1/2 and Ex. PW1/1 on record. This court has to further consider and see as to whether the plaintiff has been able to prove by way of cogent and reliable evidence that he had paid an amount of Rs. 4.20 lacs to the defendants no. 1 to 5 as the earnest amount and that he was having the capacity to pay the balance sale consideration to the extent of Rs. 37.80 lacs. The plaintiff is also required to prove his readiness and willingness on this part to perform his part of the contract. This court has also to consider as to whether the defendants no. 1 to 5 have been able to prove that the agreement to sell and the receipt dated 25.09.2005 were not executed properly and that the signatures of the defendant were obtained on blank papers. This court has to further consider as to whether the defendants no. 6 and 7 have been able to prove that they are the bonafide CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 19 of 34 purchasers of value without having any notice of execution of the Ex. PW1/1 and Ex. PW1/2.
16.1.7 Now coming to the evidence, the plaintiff i.e. PW1, in the cross-examination, states that during the financial year 2005-2006, has annual income was Rs. 50-60 lacs. PW1 further states that during the financial year 2004-2005 also, his annual income was Rs. 50-60 lacs. PW1 further states that in the financial year 2006-2007, his annual income was about Rs. 1 crore. PW1 further states that he had not filed any income tax returns showing his above said income and he had paid the income tax for the first time in the year 2005-2006. However, PW1 is unable to tell as to how much income tax was paid by him in the year 2005-2006 even by approximation. PW1 further states that he would produce the income tax returns for the year 2005-2006 on the next date. By way of volunteer, PW1 further states that he would file his entire income tax return from the date of commencement of the filing of the same till the current year on the next date.
PW1 admits it to be correct that he has not mentioned his complete address either in the memo of parties or in his evidence by way of affidavit. PW1 further states that he does not know his sale of the agricultural land in Delhi is governed u/s 33 of the Delhi Land Reforms Act. PW1 CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 20 of 34 further states that during the period of July 2005 to December 2005, he had got some agreements signed for some companies for sale of agricultural land in Delhi. PW1 is unable to tell the names of the companies for which the agreements were got signed by him.
PW1 does not remember if he had filed CS(OS) 1229/2006 in the Hon'ble High Court of Delhi titled as Om Shivam Farms Pvt. Ltd. Vs. Rajpal And Ors.. By way of volunteer, PW1 states that the suit was filed in the Hon'ble High Court of Delhi but he does not remember its number.
16.1.8 PW1 admits it to be correct that no copy of the NOC signed by him was prepared. PW1 further states that one Sh. Rajinder Khatri and Sh. Mahipal Rana were the links to introduce him to Sh. Jai Narain and Sh. Pushpender in the month of September 2005. PW1 further states that Rajesh Khatri was well known to him and he, in turn, knew Mahipal Rana. PW1 has denied the suggestion that Mahipal Rana had got the blank agreement signed from the defendants on the pretext of finding a purchaser. PW1 further states that the amount of Rs. 4.20 lacs paid by him, comprised of 8 packets of Rs. 500/- denominations and two packets of Rs. 100/- denominations. PW1 further states that the commission was payable to Rajesh Khatri and Mahipal Rana in the said deal. PW1 admits it to be correct that at that CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 21 of 34 time, Rajesh Khatri was working as a property dealer but he does not know whether he was a small time agent or not. In the next cross-examination done on 12.07.2017, PW1 placed on record copies of the two passbooks from his account no. 1009104000005227 maintained with IDBI Bank Ltd., BT 2, Shalimar Bagh, Delhi for the period from 12.08.2011 to 06.07.2017 showing the balance of Rs. 24,582/- on 06.06.2017 as Ex. PW1/D-1/1. PW1 further states that he had also brought the three passbooks of his account no. 601410100015859 with Bank of India at 189 A, Main Bazar, Narela for the period from 01.01.2005 to 26.03.2009 showing the balance of Rs. 0/- amount on 26.03.2009. PW1 has further stated that he had also brought the two passbooks of his account no. 602010110001600 maintained with Bank of India, Plot no. 12, Sabzi Mandi Branch, Azadpur, Delhi for the period from 11.07.2008 to 05.05.2012 which showed that there was a zero balance on 05.05.2012. PW1 further states that as per the copies of the income tax returns filed by him against PAN no. ATLPK3498G for the AY 2008-2009, an income tax of Rs. 1,084/- was paid; for AY 2010-2011, an income tax of Rs. 2,790/- was paid; for AY 2011-2012, an income tax of Rs. 1,300/- was paid; for AY 2013-2014, an income tax of Rs. 61,572/- was paid; for AY 2014-2015, an income tax of Rs.
CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 22 of 34 79,215/- was paid. PW1 placed on record the copies of the above said income tax returns as Ex. PW1/D-1/2(colly.). PW1 admits it to be correct that at the time of filing of the suit, he did not rely on any proof of the availability of the money with him at that time for the period from September 2005 till date. PW1 further states that the stamp paper for execution of the agreement to sell was purchased in the names of he himself and Sh. Jai Narain from Rohini Courts on 24/25.09.2005. PW1 admits it to be correct that he had himself got typed the agreement from a typist known to him at Rohini Court on 24.09.2005 and the name of the typist was Yashpal. PW1 further states that Yashpal was not available at the time of the deposition in the court. PW1 admits it to be correct that the said typist is an old acquaintance of him. PW1 further states that Sh. Rajesh Khatri was with him at the time of purchasing of the stamp paper and he might have signed the register at the time of purchase of the stamp paper. PW1 admits it to be correct that after getting the stamp paper typed, at Rohini, no photocopy of the same was prepared at that time. PW1 admits it to be correct that at the time of typing of the paper some portions of the same were left behind. PW1 admits it to be correct that the blank portions left at the time of typing, were not subsequently got typed. PW1 further states CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 23 of 34 that the stamp paper purchased by him was of the denomination of Rs. 100/-. PW1 admits it to be correct that the payment of Rs. 100/- was paid by Sh. Rajesh Khatri from his pocket. PW1 further states that he had got the purpose of the stamp paper mentioned on the reverse and the purpose was land purchase. PW1 admits it to be correct that the stamp paper showed that the same had been purchased only in the name of Jai Narain. PW1 further states that he is not sure about the denomination of the stamp paper on account of lapse of time and it could be Rs. 50/- instead of Rs. 100/-. PW1 further states that Rajesh Khatri was not a good friend of he himself and his relations remained the same with him.
16.1.9 In the next cross-examination done on 29.08.2017, PW1 states that for the first time, he had filed the income tax returns for the year 2008-2009. PW1 admits it to be correct that he had statement before the court on 15.12.2016 that his annual income for the FY 2005-2006 was Rs. 50-60 lacs. PW1 admits it to be correct that he had also stated that his annual income for the FY 2006-2007 was about Rs. 1 crore. PW1 admits it to be correct that he has not filed any proof of his income along with the plaint. PW1 admits it to be correct that he has not filed any proof of the quantum of CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 24 of 34 commission paid to him by Parker Group, Max Heights in the court.
PW1 further states that he met Mahipal Rana for the first time at Narela in the year 2005 when he had come over to Narela along with Sh. Rajesh Khatri at his Shivam Plywood Shop at Rajiv Colony, Arya Samaj Road, Narela, Delhi. PW1 further states that he does not know if Mahipal Rana was doing his independent property business in the village of Nanglipoona, Budpur, Kadipur, Delhi. PW1 further states that he does not know if Mahipal Rana had purchased a stamp paper of Rs. 50/- in September 2005 for using the same as agreement in his property business. PW1 admits it to be correct that he did not obtain any document with regard to the suit property from the concerned revenue authorities in the year 2005. In the next cross-examination done on 19.09.2017 by ld. counsel for the defendants no. 6 and 7, PW1 admits it to be correct that he had not informed the SDM about the stated agreement to sell with the defendants no. 1 to 5. PW1 admits it to be correct that he had not taken possession of the suit land at the time of signing of the agreement to sell. PW1 admits it to be correct that he had not given any notice to defendant no. 6 and 7 including the notice dated 12.01.2006. PW1 admits it to be correct that he does not CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 25 of 34 know if defendant no. 6 and 7 had conducted a complete due diligence of the title and the legal right of the vendors before executing the sale deed. PW1 admits it to be correct that the suit property has been sold to defendant no. 6 and 7 vide sale deed dated 23.01.2006.
16.1.10 Defendant no. 3 Sh. Pushpender has examined himself as DW1 and in the cross-examination, DW1 states that Mahipal is a co-villager and known to him for many years. DW1 states that Mahipal is not his friend. DW1 further states that no agreement was signed by any of the family members. However, Mr. Mahipal had stated that there was a party to purchase the property and in September- October 2005, Mr. Mahipal had come with some papers and the documents were signed by his brother namely Deva Anand, Jai Narain, Mukesh and Rajesh. DW1 has denied the suggestion that he himself or his family members had signed Ex. PW1/2 for the purposes of selling the suit property to the plaintiff. By way of volunteer, DW1 states that the document that he had signed, was not having any name of the purchaser with pen. DW1 has denied the suggestion that the plaintiff had paid the earnest money of Rs. 4.20 lacs to him or to his family members pursuant to Ex. PW1/2. DW1 has denied the suggestion that they sold CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 26 of 34 the property to the defendant no. 6 and 7 for a better consideration.
16.1.11 The defendants no. 6 and 7 have examined their authorized representative Sh. Kuldeep as DW6 and in his cross- examination, DW6 has denied the suggestion that he was aware of the agreement to sell dated 29.05.2005 having been executed in between the plaintiff and the defendants for the sale of the property prior to the execution of the sale deed dated 23.01.2006. DW6 has denied the suggestion that he was aware of any deal regarding the sale of the property in between the plaintiff and the defendants for the sale of the property prior to execution of the sale deed dated 23.01.2006.
16.1.12 As stated herinabove, in order to obtain the relief from the court, it was incumbent upon the plaintiff to prove the due and valid execution of the agreement to sell and the receipt dated 25.09.2005. Going by the cross-examination of PW1, it is evidently and apparently clear that PW1 has failed to examine either Sh. Mahipal Rana or Sh. Rajesh Khatri who are the two witnesses in the Agreement to Sell and the receipt dated 25.09.2005. PW1, in the cross-examination, states that Mr. Rajesh Khatri and Sh. Mahipal Rana were the link to introduce to Sh. Jai Narain and Sh. Pushpender in the month of September 2005. PW1 further states that CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 27 of 34 Rajesh Khatri was well known to him and Mr. Rajesh Khatri, in turn, knew Mahipal Rana. The fact remains that PW1 has failed to examine either Rajesh Khatri or Mahipal Rana in order to prove the agreement to Sell Ex. PW1/2 on record.
16.1.13 Otherwise also, it has to be seen that in the cross-
examination done on 15.12.2016, PW1 claims that Rajesh Khatri was well known to him and he introduced Mahipal Rana to him but in the cross-examination done on 12.07.2017, PW1 states that Rajesh Khatri was not a good friend of him and his relations remained the same with him. As such, I am of the opinion that because of the material contradictions in the testimony of PW1, on this aspect of the matter, otherwise also, the testimony of PW1 becomes unreliable and untrustworthy.
16.1.14 PW1 in the cross-examination, states that the alleged agreement to sell Ex. PW1/2 was got typed by him from the typist Sh. Yashpal at Rohini Courts and he was an old acquaintance but the plaintiff has utterly failed to summon and examine even the typist Sh. Yashpal who had allegedly typed the agreement to sell dated 25.09.2005. 16.1.15 The plaintiff i.e. PW1, in the cross-examination, time and again states that Ex. PW1/2 was executed on a stamp paper of Rs. 100/- but in the same cross-examination, PW1 states CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 28 of 34 that the agreement to sell might have been executed on a stamp paper of Rs. 50/-. PW1, in clear cut words, in the cross-examination, states that on the back side of the agreement to sell, he had got mentioned the purpose of the stamp paper which was land purchase but a perusal of Ex. PW1/2 reveals that there is no such purpose has been mentioned on the back side of Ex. PW1/2.
16.1.16 PW1, in the cross-examination, admits it to be correct that at the time of typing of the stamp paper some portions of the same were left blank and the portions which were left blank, were not typed subsequently. PW1 claims that the payment of Rs. 100/- was done by Rajesh Khatri from his pocket. The admission on the part of PW1 to the effect that certain portions of the agreement to sell were left blank, to my mind, gives credence to the stand of the defendants to the effect that the name of the purchaser etc. were left blank in the agreement to sell and in the receipt dated 25.09.2005.
16.1.17 During the cross-examination of DW1, DW1 has stuck to the point that neither he himself nor any of his family members had signed Ex. PW1/2 because the document that he had signed was not having the name of the purchaser written with pen.
CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 29 of 34 16.1.18 Going by the above said cross-examination of PW1 and the testimony of DW1, I have no hesitation to hold that the plaintiff has utterly failed to prove the due and valid execution of Ex. PW1/1 and Ex. PW1/2 which are the receipt and the agreement to sell, both dated 25.09.2005. 16.1.19 The next question is as to whether the plaintiff has been able to prove that he had paid an amount of Rs. 4.20 lacs to the defendants no. 1 to 5 on 25.09.2005 or that he was having the capacity to pay the aforesaid amount of Rs. 4.20 lacs or to pay the balance sale consideration of Rs. 37.80 lacs.
16.1.20 It has to be seen that PW1 claims in the cross-examination that in the financial year 2005-2006, his annual income was Rs. 50 lacs- Rs. 60 lacs and that in the financial year 2006- 2007, his annual income was Rs. 1 crore but he has not filed on record to show his income, as has been categorically admitted by him in his cross-examination done on 29.08.2017. PW1 again admits it to be correct in his cross examination that he has not filed any proof of the availability of Rs. 4.20 lacs with him in the year 2005. PW1 claims in the cross-examination that he can file the income tax returns in the court for the year 2005-2006 and the subsequent income tax returns as well but he has placed on record the income tax returns for the financial year 2010- CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 30 of 34 2011 to the financial year 2014-2015 Ex. PW1/D-1/2. PW1 admittedly paid an amount of Rs. 2,790/- as the income tax in the financial year 2010-2011, an amount of Rs. 1,300/- for the financial year 2011-2012. PW1 has also placed on record the copies of his various bank accounts in the form of Ex. PW1/D-1/1 which shows that in the bank accounts of the plaintiff, either the balance was zero or a very minimal amount.
16.1.21 As such, I am of the opinion that so far as the financial capacity of the plaintiff is concerned, the case of the plaintiff is squarely covered by the ratio of the judgment titled as Ritu Saxena Vs. J.S. Grover and Anr. cited as (2019)9SCC132. In the case in hand as well, the plaintiff has failed to produce any income tax record of the relevant time or the bank statement in support of his plea of financial capacity so as to be ready and willing to perform his part of the contract. I have no hesitation to hold that not even a single iota of evidence has been placed on record by the plaintiff to show that either he was having the amount of Rs. 4.20 lacs which was allegedly paid by him as the earnest money to the defendants or that he was having the balance sale consideration ready with him to the extent of Rs. 37.80 lacs. To my mind, the plaintiff has utterly failed to prove the CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 31 of 34 readiness and willingness on his part to perform his part of the contract.
16.1.22 In the light of the above said discussion, I am of the opinion that the plaintiff has failed to prove issue no. 1 and 3 in his favour and accordingly, issues no. 1 and 3 are decided against the plaintiff. Issue no. 2 is decided in favour of the defendants no. 1 to 5.
16.2 ISSUE NO. 416.2.1 Defendants no. 6 and 7 claim themselves to be the bonafide purchasers for value without any notice of the alleged agreement to sell dated 25.09.2005. As such, the onus to prove this issue has been placed upon the defendants no. 6 and 7.
16.2.2 Defendants no. 6 and 7 claim that they have purchased the suit property by virtue of the registered sale deed dated 23.01.2006 from the defendants no. 1 to 5. The stand of the defendants no. 1 to 5 is also to the same effect. PW1, in the cross-examination, admits it to be correct that he does not know if defendants no. 6 and 7 had conducted a due diligence of the title and legal right of the vendors before executing the sale document. PW1 admits it to be correct that the suit property has already been sold to defendant no. 6 and 7 by virtue of the sale deed dated 23.01.2006. PW1 admits it to be correct that he had not CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 32 of 34 informed the SDM about the agreement to sell with the defendants no. 1 to 5. PW1 admits it to be correct that he had not taken the possession of the suit land at the time of signing of the alleged agreement to sell. PW1 admits it to be correct that he had not given any notice to defendant no. 6 and 7 including the notice dated 12.01.2006. 16.2.3 In the light of the unequivocal admission on the part of PW1, I am of the opinion that it has been rightly argued by the ld. counsel for the defendant no. 6 and 7 in the written final arguments that the agreement to sell dated 25.09.2005 was not a registered document and as such, there was no occasion for defendant no. 6 and 7 to have a notice thereof. To my mind, it has been rightly argued by defendant no. 6 and 7 that even the possession of the suit property was not taken over by the plaintiff. I am of the opinion that the case of the defendant no. 6 and 7 is squarely covered by the ratio of the judgments titled as Padmakumari Vs. Dasayyan cited as (2015)5Scale409 and Md. Mustafa Vs. Haji Md. ISA And Others cited as AIR 1987 Patna 5.
16.2.4 Going by the ratio of the above stated judgments relied upon by the ld. counsel for defendant nos. 6 and 7 and the cross-examination of PW1, I have no hesitation to hold that the defendants no. 6 and 7 have been able to prove that they are bonafide purchasers of the suit property for value CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 33 of 34 without notice of the agreement to sell and that they are protected by Section 19(b) of the Specific Relief Act. Accordingly, this issue i.e. issue no. 4 is decided in favour of defendant nos. 6 and 7.
16.3 ISSUE NO. 5 and 616.3.1 In the light of the findings on issue no. 1 and 3, the plaintiff is not entitled for any relief. As such, issues no. 5 and 6 are decided against the plaintiff.
16.3.2 The suit of the plaintiff is hereby dismissed. No orders as to the costs. Decree Sheet be prepared accordingly by the Reader of the court.
17 File be consigned to Record Room, after necessary Digitally signed RAJ by RAJ KUMAR compliance. Date:
KUMAR 2023.07.22 16:43:09 +0530 (Raj Kumar) Addl. District Judge-02, North Announced in the open Court. Rohini Court Complex, Rohini (Judgment contains 34 pages) Delhi/22.07.2023 CS DJ 60109/2016 Arvind Kumar Vs. Jai Narain And Ors. Page No. 34 of 34