Delhi District Court
Sh Rajiv Kumar vs Mr. Satish Kumar Batra on 21 November, 2014
Rajiv Kr v Satish Kr Batra CS 301/09
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
CS 301/09
Sh Rajiv Kumar
S/o Late Sh.B.K Aggarwal,
Through Power Attorney Holder
Sh Nikhil,
R/o House No. 157, Sector7,
G20, Rohini, Delhi110005. ....... Plaintiff
Versus
1. Mr. Satish Kumar Batra,
S/o Sh R.D Batra,
2. Smt. Sangeeta Batra,
W/o Sh Satish Kumar Batra,
Both R/o 29A, Phase III,
PocketC, Delhi.
3. Sh. Rishi Singh,
S/o Sh. Darshan Singh,
R/o 10A, Pocket C,
Phase III, Ashok Vihar,
Delhi - 110052.
4. Smt Rajni Manuja,
W/o Sh R.K.Manuja,
R/o E1/6/27, Sector15,
Rohini, Delhi110085. ......Defendants
Result: Suit partly decreed Page 1 of 28
Rajiv Kr v Satish Kr Batra CS 301/09
Unique case I.D No.
:
02401C1209282007
Date of Institution : 30.11.2007.
Date of Reserving Judgment : 19.11.2014.
Date of Judgment : 21.11.2014.
SUIT FOR SPECIFIC PERFORMANCE, POSSESSION,
PERMANENT INJUNCTION AND ALTERNATE REMEDY TO
REFUND THE DOUBLE AMOUNT OF EARNEST MONEY.
JUDGMENT
1. The plaintiff Sh Rajeev Kumar through his power of attorney holder Sh Nikhil has filed this suit for Specific Performance, Possession, Permanent Injunction and alternate Remedy to refund the double amount of earnest money. It is in the plaint that the defendants no. 1 & 2 are owners of the property bearing No. 67, BlockI11, Sector 16, Rohini, Delhi110005 (herein after called as the 'suit property') shown in red colour in the site plan (ExPW1/6). It is claimed that the defendants had made an offer to sell the suit property against the sale consideration of Rs. 8,91,000/. After thorough negotiations and discussion, the terms and conditions of sale were settled and accordingly, a receipt Result: Suit partly decreed Page 2 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 (ExPW1/1) was executed on 5.12.2004 in the presence of the witnesses. The earnest money of Rs.50,000/ was paid by the plaintiff to the defendants which fact is acknowledged in the receipt. It is further in the plaint that on 10.1.2005, the plaintiff paid the defendants a sum of Rs.2 lacs which is duly acknowledged in the receipt. It is further claimed that on 11.1.2005 another sum of Rs.50,000/ was paid by the plaintiff to the defendants which fact is also duly acknowledged in the receipt. Accordingly, a total sum of Rs.3 lacs is alleged to have been paid by the plaintiff to the defendants. The plaint further reveals that the defendants had agreed to sign and execute all necessary documents in respect of the suit property in favour of the plaintiff or his nominee on or before 10.1.2005. However, the time was later extended with mutual consent. According to the plaintiff, he, as per the terms and conditions, got prepared six cash orders in favour of defendant no. 1 in respect of balance consideration for purchasing the suit property, the details of which are provided in para 6 of the plaint. Copies of the same were filed with the plaint.
1.1. Thereafter, plaintiff approached the defendants personally and requested them to accept the balance consideration and to execute the sale deed in respect of the suit property and also to hand over the physical and vacant possession of the suit Result: Suit partly decreed Page 3 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 property. However, the defendants had been avoiding to execute the title deed by saying that let them first receive the possession of the suit property and let the DDA to execute a lease deed in their favour. It is now alleged by the plaintiff that he came to know that the lease deed had been already executed in favour of the defendants and the possession of the suit property was already taken by the defendants in the first week of February, 2005. Despite the above, the defendants avoided the execution of lease deed and due to increase in the value of the suit property, the defendants became dishonest and did not have any intention to perform the obligations on their part. Consequently, the plaintiff sent a legal notice dated 31.7.2007 (ExPW1/2) through registered AD/speed post/UPC but the same was not replied to. Accordingly, the plaintiff has valuable legal right, title and interest as accrued in his favour in respect of the suit property on the basis of the agreement to sellcumreceipt dated 5.12.2004. The plaintiff claims that he is still ready and willing to perform his part of the contract. He prays for a decree of specific performance in his favour and against the defendants thereby directing the defendants, their legal heirs, successors, attorneys etc to execute the title deed before the concerned Sub Registrar in respect of the suit property and in the event of their failure to do so, he prays that Court may appoint a Court Commissioner for Result: Suit partly decreed Page 4 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 the said purpose at the costs of the defendants. 1.2. The plaintiff also prays for a decree of possession against the defendants thereby directing the defendants, their legal heirs, agents, servants, attorneys etc to hand over the physical and vacant possession of the suit property.
1.3. The plaintiff also prays for a decree of permanent injunction against the defendants thereby restraining them, their legal heirs, attorneys, servants etc from selling, allienating, transferring, gifting, mortgaging, exchanging or creating any third party interest in the suit property or part with its possession either whole or in part to anybody.
1.4. The plaintiff also prays for damages i.e difference between the contractual price and market price and also return the double amount of the earnest money of Rs. 3 lacs alongwith interest at the rate of 12% p.a in case the relief of specific performance is declined. It is undertaken that deficient Court fee will be paid.
2. The defendants were served and they jointly filed their written statement. They have taken a preliminary objection that the suit has not been filed, signed and verified by any competent and duly authorized person. It is submitted that the person who has allegedly given special power of attorney is named as 'Rajiv Result: Suit partly decreed Page 5 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 Kumar' whereas the person who executed the special power of attorney has signed as 'Rajiv Aggarwal'. Further, the receipt dated 5.12.2004 is said to be manipulated. According to the defendants, the time was essence of the contract and when the said receipt was issued by the defendants, the deal was with one Sh. Rajeev Kumar whom they never met nor he signed or executed any paper. It is admitted that sum of Rs.50,000/ was received as earnest money and that the time was essence of the contract. It is also admitted that the plaintiff was to pay the balance sale consideration on or before 10.1.2005, else the earnest money was to be forfeited. It is alleged that however, the plaintiff was never in a position to perform his part of contract and pay the balance sale consideration as he had no means at his disposal. It is submitted that this fact is established as the plaintiff could make part payment of Rs.50,000/ only on 11.1.2005 and requested for enlargement of time which was enlarged by the defendants upto 25.1.2005. However, since no more time was prayed, the entire amount of Rs. One lac received as earnest money was forfeited. It is submitted that on the back side of the receipt, the defendant no. 1 has, in his own hand writing, specifically written that he received Rs.50,000/ only on 11.1.2005. It is claimed that rest of the writing on the back of the said receipt is a manipulation which has been done by one Sh Result: Suit partly decreed Page 6 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 Manish Gupta, property dealer. It is further claimed that the defendants have never met the plaintiff and that Sh Rajiv Kumar on whose behalf, the present suit has been filed appears to be some fictitious person and that the special power of attorney filed by Sh Nikhil is also bogus.
2.1. On merits, the entire claim of the plaintiff is denied except where specifically admitted and as pointed out above by me in the preceding paragraph. It has been reasserted however, that the first five lines on the top of the last two lines on the back of the receipt are forged and fabricated. They have denied that time was ever extended beyond 25.1.2005. It is further submitted that the cash orders were allegedly got prepared on or after 28.1.2005 and the entire sum does not constitute entire balance sale consideration. It is in the written statement that on inquiry made by the defendants, they came to know that the cash orders were got prepared by depositing cash. However, since no amount was paid within the stipulated period, the amount of Rs. One lac was forfeited. It is further submitted that the cash orders were allegedly got prepared only in the name of first defendant whereas the ownership of the suit property is in the name of both the defendants. It is further submitted that had the plaintiff been in a position to perform his part of the contract, then he would have atleast purchased the requisite non judicial stamp papers to Result: Suit partly decreed Page 7 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 show his readiness to perform his part of contract. Further the defendants claimed to have sold the suit property in September, 2006. They denied that there was any agreement to sell and submitted that only a receipt for earnest money was executed which was point specific to the effect that time was essence of the contract.
3. No rejoinder was filed.
4. During the proceedings, the plaintiff filed an application under Order 1 Rule 10 read with section 151 CPC for impleadment of Sh Rishi Singh as third defendant as the suit property was sold to him. The application was allowed on 7.12.09. Sh Rishi Singh was deemed served vide order dated 12.8.2010 and on his non appearance, he was proceeded against exparte on the same date. Further, in between dates, the plaintiff had filed another application under Order 1 Rule 10 CPC on 5.7.2010. This application was for impleadment of one Smt. Rajni Manuja, to whom the suit property was further sold by defendant no. 3. The said application was allowed on 12.8.2010 itself. The said forth defendant was duly served and on account of her non appearance, she was proceeded against exparte on 16.3.2011.
Result: Suit partly decreed Page 8 of 28Rajiv Kr v Satish Kr Batra CS 301/09
5. On 13.4.2011, following issues were settled for adjudication on evidence of the parties viz:
1. Whether present suit is not maintainable having been filed by a person not competent and duly authorized to file the same ?OPD.
2. Whether plaintiff is entitled for a decree of specific performance, possession and permanent injunction as prayed for or refund of double of the amount as prayed for ?
3. Relief.
6. The plaintiff in his evidence has examined himself as PW 1. His affidavit is ExPW1/A. He was duly cross examined by the defendants. The plaintiff also examined his attorney Sh Nikhil as PW 2 whose affidavit in evidence is ExPW2/A. The plaintiff has deposed in accordance with the pleadings besides relying on the receipt ExPW1/1, he relies on legal notice sent through his counsel which is ExPW1/2. He also relies on acknowledgment card sent to defendants no. 1 & 2 by post which are ExPW1/3 collectively. Proof of despatch although on record, was never proved by the plaintiff. He relies on the special power of attorney executed by him in favour of PW 2 as ExPW1/4. He relies on certified copy of agreement to sale and purchase between Result: Suit partly decreed Page 9 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 defendants no. 3 & 4 which was initially exhibited as ExPW1/5. The plaintiff has lastly relied on ExPW1/6 i.e the site plan. 6.1. PW 2 has also deposed in accordance of the pleadings in his affidavit ExPW2/A and has relied on receipt ExPW1/1 and has also relied on other documents so relied by the plaintiff as PW 1. This witness was also cross examined. No other witness was examined from the side of the plaintiff.
7. On behalf of defendants no. 1 & 2, first defendant has appeared as DW 1 and has filed his affidavit ExDW1/A. According to him, he alone is conversant about the facts of the case and that defendant no. 2 is his wife. He has produced his defence on oath in his affidavit. He has further deposed that writing between Mark A to Mark A on the back of ExPW1/1 is not in the hand writing of the deponent and is result of forgery and fabrication by Sh Manish Gupta, property dealer. During cross examination, this witness was shown certified copy of agreement to sell and purchase ExDW1/P1 which was executed between defendants no. 1 & 2 of the first part and defendant no. 3 of the second. This document has been admitted. No further witness was examined at the behest of the defendants. As stated earlier, the remaining defendants were proceeded against exparte.
Result: Suit partly decreed Page 10 of 28Rajiv Kr v Satish Kr Batra CS 301/09
8. I have heard Sh S.R Goel, ld. Counsel for the plaintiff and Sh Bakshi Sri Rang Singh, ld. Counsel for defendants no. 1 & 2. I have also gone through the written submissions that have been filed by ld. Counsel for the parties. My issue wise findings are as under:
Issue No. 1. Whether present suit is not maintainable having been filed by a person not competent and duly authorized to file the same ? OPD.
9. The onus of proving this issue remained on the defendants. Defendants no. 3 & 4 are exparte. Only defendants no. 1 & 2 have taken this plea in their written statement. The plea seems to have been abandoned as affidavit of DW 1 ExDW1/A merely states that suit has not been signed, verified and filed by a proper or competent person. As to how the competence of power of attorney/PW2 Sh Nikhil has been challenged is silent in the affidavit. Although, it is in the written statement of the said defendants that copy of special power of attorney supplied to them is neither notarized nor registered and that it does not bear signature of even the attesting witness and even the person who has signed has named himself as Rajiv Aggarwal instead of Rajiv Kumar. However, the perusal of original power of attorney ExPW1/4 reveals that it is duly Result: Suit partly decreed Page 11 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 notarized document. That it is not witnessed by anyone and that the person executing the same is named as Rajiv Kumar S/o late Sh B.K. Aggarwal, but signed as Rajiv Aggarwal, in itself is sufficient to prove that the plaintiff Sh Rajiv Kumar being son of late Sh B.K Aggarwal could have signed as Rajiv Aggarwal. The power of attorney specifically authorizes the power of attorney holder/PW2 Sh Nikhil to file the present suit at the behest of PW 1. Going further, even in the cross examination of PW 2, who is the actual attorney of the plaintiff, nothing useful to defence has emanated. On the contrary, in the cross examination, the witness categorically states that the power of attorney ExPW1/4 was executed in Delhi may be at Rohini or at Tis Hazari Courts. He also categorically deposed that besides him, his brother had also signed the same. He also deposed that one Mr. Jain, Advocate had identified them before the Notary Public. No contrary suggestion had been given to this witness on the aforesaid aspect and as such that said testimony remains unchallenged. So far as PW 1 is concerned, nothing has been asked from him in respect of execution of power of attorney ExPW1/4. Only a suggestion was given to the witness to the effect that he did not file the suit but his brother filed the same. Of course, the suggestion was admitted by the witness, Result: Suit partly decreed Page 12 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 however, it does not make any beneficial impact towards discharging the onus of the issue. In the result, this issue is decided against the defendants and in favour of the plaintiff.
Issue no. 2 Whether plaintiff is entitled for a decree of specific performance, possession and permanent injunction as prayed for or refund of double of the amount as prayed for ?
10.As stated earlier in this judgment, multi faceted reliefs have been prayed. It is settled law that while seeking a decree of specific performance, relief of recovery and possession need not be asked. Even otherwise, it is admitted fact that the property in suit has been sold twice. Firstly, it was sold by virtue of document ExDW1/P1 which is an agreement to sell and purchase duly registered before the Sub Registrar concerned on 20.9.06. The present suit is filed much later on 1.12.2007. Subsequent thereto, the document ExPW1/5 which is an agreement to sell and purchase between defendants no. 3 & 4, would reveal that suit property was sold again on 18.3.2010 by virtue of the said registered document. These defendants no. 3 & 4 have remained exparte.
11.So far as the relief of Permanent Injunction is concerned, the Result: Suit partly decreed Page 13 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 same becomes infructuous by virtue of the fact that the defendants no. 1 & 2 have admittedly transferred/sold the suit property to defendant no. 3 even prior to filing of the suit.
12.This leaves the Court with the relief of specific performance and damages that have been prayed by the plaintiff. The onus to prove the issue was on the plaintiff. The primary document before me constituting the contract in this case is ExPW1/1 regarding which even the plaintiff himself seems to be confused. I say so as in para 3 of the plaint, the plaintiff refers the said document as only 'a receipt' executed on 5.12.2004 while in the same plaint in para 13, the plaintiff refers this document as 'Agreement to SellcumReceipt' dated 5.12.2004. In the affidavit ExPW1/A, the plaintiff again refers this document as only 'a receipt'. Similar is the position in the affidavit of PW 2 Sh Nikhil.
13.Section 2 (b) of Contract Act defines the contract as an agreement enforceable by law. Section 10 of the Contract Act says that all agreements are contracts if they are made by the free consent of the parties competent to contract, for a lawful consideration and with a lawful object and are not hereby expressly declared to be void. Section 11 to 30 of that Act deal Result: Suit partly decreed Page 14 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 with the questions of persons competent to contract, lawful consideration/object and void contracts. Enforcing specific performance of contracts presupposes than the agreement is between the parties competent to enter into it and is with their free consent and is founded upon consideration that is not unlawful. The contracts that are merely voidable are not excluded from the operation of Chapter II of the Specific Relief Act, 1963. Thus, a party entitled to avoid it must treat it as a valid contract. The Legislature requires that there must always be a contract before the Court and it must be a complete contract to both. In Sankhi Sha v Mahamaya Prasad Singh AIR 1934 Patna 518, it has been held that in an action for specific performance, the plaintiff has necessarily to prove the existence of a concluded contract between himself and the defendant and also that he was ready and willing at all material dates to perform his part of the contract.
14.Admittedly in the present case, the terms and conditions in ExPW1/1 have been varied on 11.1.2005 when the time for going upon the same was extended till 25.1.2005. Very interestingly, the plaintiff seems to be avoiding to provide a definitive date of extension of the contract as would be Result: Suit partly decreed Page 15 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 evident from para 5 of the plaint wherein he states that the time period for execution of the documents in favour of the plaintiff and making the payment was extended with mutual consent of both the parties. The plaintiff does not provide the date till when the terms as contained in receipt ExPW1/1 were extended w.e.f 10.1.2005 or for that matter 11.1.2005. The first light on the said date is actually thrown by the defendants in their written statement wherein they say in para 2 of the preliminary objections that the time was enlarged by defendant no. 1 upto 25.1.2005. As stated earlier, no replication has been filed to controvert this aspect. More over, it is in the cross examination of PW 1, "that time for executing the same was fixed as 25.1.2005 as detailed on the back of ExPW1/1". What comes out from the above analysis of the evidence before me is that the parties to the suit did not extend the time any further beyond 25.1.2005.
15.Before adverting back to the discussion above, I must first point out here as to what the parties were intending while executing the receipt ExPW1/1. The defendants acknowledged the receipt of sum of Rs.50,000/ from Sh Rajiv Kumar being advance/Bayana towards sale of their property i.e the suit property for a total sum of Rs.8,91,000/.
Result: Suit partly decreed Page 16 of 28Rajiv Kr v Satish Kr Batra CS 301/09 The defendants had agreed to sign necessary documents in favour of the plaintiff or his nominee by 10.1.2005, at the time of receipt of balance consideration of Rs.8,41,000/. The defendants further undertook and agreed that if the purchaser i.e. the plaintiff herein fails to pay the balance consideration on or before the due date, his earnest money of Rs.50,000/ shall be forfeited. The rest of the printed terms on what appears to be a format of the receipt have been intentionally deleted by cutting them and substituted by phrase, "mention in note".
16. This note is between points C1 to C2. It reveals that amount of Rs.50,000/ will be paid at the time of possession letter, Rs. 20,000/ and Rs.30,000/ will be paid at the time of lease deed completion. This document is admittedly in the hand writing of property dealer Sh. Manish Gupta whom none of the parties have examined. What comes from the above is that the defendants as on the date of execution of receipt ExPW1/1 were neither in possession of the suit property nor any lease deed had been executed by the DDA in their favour. It would be evident from the document ExPW1/5 that the suit property was being sold by defendant no. 3 to defendant no. 4 while reciting the previous transaction about its sale and Result: Suit partly decreed Page 17 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 purchase. On page 3, it is provided that defendants no. 1 & 2 had purchased /acquired the suit property through DDA by virtue of registered perpetual lease deed dated 7.7.06. The date of obtaining actual possession of the suit property by defendants no. 1 & 2 is not provided in the evidence. However, in any case, it has to be subsequent to 7.7.06. The above observation finds support from the cross examination of DW 1 wherein he submits that he had taken the possession of the property/flat after 25.1.2005. The fact that the dead line agreed by the parties for execution of the terms of receipt ExPW1/1 was 25.1.2005, is evident from the cross examination of DW 1 wherein he was suggested by the plaintiff himself that, "It is correct that earlier the time for balance payment was fixed as 20.1.2005 and it was extended upto 25.1.2005".
17.The above would therefore, imply that the purchaser/plaintiff herein was very much aware of the fact that the seller/defendants no. 1 & 2 did not have a perfect title qua the suit property as on 5.12.04. Perhaps an allotment letter had been issued in the name of said defendants prior to execution of the receipt. However, this fact has not seen the light of the day as no such allotment letter has been produced on record.
Result: Suit partly decreed Page 18 of 28Rajiv Kr v Satish Kr Batra CS 301/09 This brings me to the fact that the defendants as on the date of execution of receipt were having imperfect title over the property in question. It would be important for this Court to see as to whether this aspect still provides benefit to the plaintiff for seeking a decree of specific performance by virtue of Section 13 (1) (a) of the Specific Relief Act 1963. This is a case where the vendor/defendants no. 1 & 2 herein have, subsequently to the contract i.e receipt ExPW1/1, acquired interest in the immovable property which they intended to sell to the purchaser/plaintiff herein. By virtue of Section 13(1)(a) aforesaid the purchaser may compel such vendor to make good the contract out of such interest. This introduces the doctrine of feeding the grant by estoppel. It is common law that where a representation is a term of the contract or of a transfer made for consideration, the promisee or transferee need not rely upon the doctrine of representation embodied under Section 115 of the Indian Evidence Act, instead he can rely upon two other doctrines - the doctrine of the common law, "estoppel by deed" coupled with the 'doctrine of feeding the estoppel' and the 'doctrine of equity', that equity treats that as done which ought to be done.
17.1. In both these doctrines, knowledge on the part of the promisee or transferee that the transferor did not have the Result: Suit partly decreed Page 19 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 authority to transfer the property which he purported to transfer is immaterial and does not deprive of the benefit of the doctrine except when the contract or transfer is illegal or invalid.
17.2. Estoppel by deed is based on the principle that when a person has entered into a solemn engagement by a deed under his hand and seal as to certain facts, he shall not be permitted to deny any matter which he has so asserted. It is a common law that this doctrine is merely a rule of evidence and does not perfect the title of the transferee. Thus, under the doctrine of estoppel by deed, knowledge of the truth on the part of the transferee is material only when the transfer is invalid in law and not otherwise.
18. I will also state that under Section 43 of the Transfer of Property Act 1882, the transferor of the subsequently acquired property takes place automatically as in the English law but it takes place at the moment the transferee exercises the option that the interest shall stand transferred to him. Section 43 does make reference to the fraudulent or erroneous representation by the transferor to the effect that he is authorized to transfer the interest which he professes to transfer. However, this does not constitute a deviation from Result: Suit partly decreed Page 20 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 the English law as such a representation is implied in the doctrine of estoppel by deed upon which the doctrine of feeding the estoppel is based. The same is position under the doctrine of equity that equity treats that as done which ought to be done . The equity therefore, creates a personal obligation which compels the transferor to perform his contract when he is able to do so on the acquisition of the subsequent interest.
19.Reverting back to the facts as constituted in receipt ExPW1/1, the plaintiff knew that the defendants did not have a perfect title in the suit property. However, on the basis of the doctrines discussed above and the admitted fact that later on the defendants not only obtained the lease deed of the suit property in their favour from the DDA but also obtained possession thereof, would provide the benefit of Section 13(1)
(a) of the Specific Relief Act 1963 to the plaintiff. The argument of ld. counsel for the plaintiff that the defendants had no right to enter into the terms and conditions constituted in receipt ExPW1/1 as they were not in possession of the suit flat on 5.12.2004, has therefore, no force. On the contrary, that submission is self destructive and contrary to the plaintiff's case. It can not be sustained.
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20. This takes me to revert back to the aspect of contract. It is in the evidence of PW 1 that receipt in question was executed by Sh. Manish Gupta. He admits that he was not present at the time of execution of the receipt. He volunteers that the receipt was signed by Sh. Manish Gupta on his behalf. He only admits that the contents on the reverse side of the receipt were written before him. The reverse side was not signed by PW 2. He admits the contents of front page of document ExPW1/1. He also admits that some portion was deleted on this page. In his cross examination dated 24.1.12, he demolishes his case by saying that he had not given any power of attorney to Sh Manish to buy a plot for him. He further states that he never entered into any deal in writing and in any form with said Sh Manish. This implies that at the time of execution of ExPW1/1 only the property dealer Sh Manish Gupta and the defendants no. 1 & 2 were present. Neither the attorney/PW 2 was present nor the plaintiff was present. PW 2 therefore, does not have any personal knowledge of what transpired on 5.12.2004. Similar is the position qua PW 1.
21. So far as PW 2 is concerned, he was not present at the time of execution of receipt. He could not tell who else was present at Result: Suit partly decreed Page 22 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 the time of its execution. However, he states further that, "I can not tell who else was present on 5.12.2004 besides Sh. Manish and the plaintiff". This can not be the case as the plaintiff himself states that he was never present at the time of the deal.
22. The defendants have not denied the execution of the above receipt on 5.12.2004. They have not denied to have received a sum of Rs.50,000/ in cash on the said date. This brings me to the event/development which occurred a few days later on 10.1.2005. On 10.1.2005, according to both the PWs, they paid an amount of Rs. 2 lacs as part payment as per endorsement between point A1 to AZ on the back of the receipt itself. This document, according to the defendants, is a manipulation only. The evidence reveals that PW 1 met the first defendant for the first time when he went to pay Rs.2 lacs at the residence of defendant no. 1. However, he could not provide its address. According to him, Sh Manish Gupta i.e property dealer was in the house.
23. According to PW 2, he met the defendant no. 1 for the first time when he went to pay Rs.2 lacs at the residence of defendant no. 1 where his wife was present. He was Result: Suit partly decreed Page 23 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 accompanied with plaintiff and Sh Manish. This is a contradiction as according to PW1, Sh Manish Gupta was already present in the house. This witness also could not give the number of the house. He could not tell as to from where his brother collected Rs.2 lacs. The fact remains that despite payment of Rs.2 lacs no signature were made by this witness either on the front or at the back side of ExPW1/1. This witness has already said that plaintiff had not gone on the date of execution of the receipt still he is seen to be saying in the cross examination that he does not know whether the front page of ExPW1/1 was filled by Sh Manish or plaintiff. According to him, portion between A1 to AZ duly encircled in red and was written in his presence and same was written by Sh Manish. This fact has been denied and in any case Sh Manish has not been produced in support of the above averment. The witness admits that there are no signature of any person between portion A1 to AZ but however, it is duly signed at the bottom. The witness further stated that according to him, writing between point A1 to AZ and point B to B1 is of the same person. If it be so, said writing would be of Sh Manish Gupta, property dealer. However, as stated earlier, he has not been examined. It would be interesting to note that writing between point B to B1 has been Result: Suit partly decreed Page 24 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 subsequently made on 11.1.2005. There ought to have been some signature below the writing between point A1 to AZ while the same was being executed on the back of receipt ExPW1/1 on 10.1.2005. It is not the case here. The signatures appearing of defendants no. 1 & 2 at point X1 and X2 are below the writing from point B to B1 which creates doubt. More over, it may be clear from the portion between point B to B1 that balance amount was to be paid i.e Rs.50,000/ on 11.1.2005 and the remaining by 25.1.2005. The signature at point X3 bears the date 11/1/5. This element therefore, creates doubt about the manner in which the writings on the back side of ExPW1/1 were made.
24. The next event of substantial importance according to the plaintiff is of 28.1.2005. It is this date on which he got executed some pay orders, copies of which have been filed. The dates of all pay orders are 28.1.2005, 29.1.2005 and 30.1.2005. It will be further apparent that all these pay orders are only for a accumulative value of Rs.2,60,000/ which, if plaintiff's case is taken to be correct, would still leave an amount of Rs.5,60,000/. In any case, preparation of these pay orders after the dead line i.e 25.1.2005, is in consequential when the time was not extended by further Result: Suit partly decreed Page 25 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 amendments to ExPW1/1. The receipt ExPW1/1 and the terms thereof ended by efflux of time i.e on 25.1.2005. It is nobody's case that either of the parties have gone to the office of Sub Registrar concerned for execution of title deed on 25.1.2005. Even otherwise, there is no question of execution of any title deed on 25.1.2005 as defendants no. 1 & 2 were yet to receive the possession of the suit flat from the DDA. As stated earlier, the lease deed was executed much later on 7.7.06. Accordingly, the defendants could not have executed any document of title on 25.1.2005 for want of perfect title qua the suit property. This would imply that on 25.1.2005, neither the plaintiff nor the defendants were in a position to fulfill their part of terms and conditions constituted in ExPW1/1. In the given circumstances, forfeiture of earnest money which admittedly in this case is Rs.one lac was improper on the part of defendants no. 1 & 2 for want of perfect title on 25.1.2005.
25. In view of the aforesaid, there is no force in the submission of the plaintiff that he is entitled to specific performance of the terms and conditions as constituted in receipt ExPW1/1. The reliance placed by the plaintiff in this case on Metropolis Travels & Resorts (I) Pvt Ltd v Sumit Kalra & Anr. 98(2002) Result: Suit partly decreed Page 26 of 28 Rajiv Kr v Satish Kr Batra CS 301/09 DLT 573 (DB) in respect of implication of non compliance of terms of legal notice is misplaced. In the result, it has to be held that plaintiff is not entitled for the decree of specific performance as prayed for. So far as the question of refund of double the earnest money is concerned, I have already pointed out that the admitted case on behalf of defendants no. 1 & 2 is that they had received a sum of Rs.one lac on two occasions in installments of Rs.50,000/ each. The factum of payment of Rs. 2Lacs has not been proved for the reasons aforestated. I have already pointed out that on first page of receipt ExPW1/1, certain pretyped conditions of the contract were omitted and substituted with note between point C1 to C2. One such condition that had been deleted is the liability of the defendants to pay double of the earnest money on account of their failure to perform their part of contract. Once the said condition had been deleted by the mutual consent of the parties, there is no question for this Court to award any damages to that extent. However, as stated earlier, the defendants no. 1 & 2 could not have forfeited the earnest money of Rs. One lac and therefore, the said amount requires to be awarded to the plaintiff. The issue is accordingly decided in above terms.
Result: Suit partly decreed Page 27 of 28 Rajiv Kr v Satish Kr Batra CS 301/09
Issue No. 3. Relief.
26.In view of the findings on issue no. 1 & 2, suit of the plaintiff so far as it pertains to the relief of specific performance, possession and permanent injunction is hereby dismissed. It is however partly decreed for a sum of Rs. One lac which shall be payable by defendants no. 1 & 2 to the plaintiff together with interest at the rate of 9% p.a w.e.f 11.1.2005 till realization. The order is subject to payment of deficient Court fee, if any. Parties to bear their own costs.
27. Decree sheet be prepared accordingly.
28. File be consigned to record room.
Announced in open Court. (Manish Yaduvanshi) Dated: 21.11.2014. ADJ06(Central)Delhi Result: Suit partly decreed Page 28 of 28