Delhi District Court
Shri Suresh Mansharamani vs Shri Vidya Sagar Bhagat (Since ... on 10 June, 2022
THE COURT OF MS. SHIVALI SHARMA
ADDITIONAL DISTRICT JUDGE03: WEST DISTRICT
TIS HAZARI COURT: DELHI
CS No. 609188/2016
In the matter of:
Shri Suresh Mansharamani
S/o Shri Mohan Lal
R/o L9, Rajouri Garden,
New Delhi.
..........Plaintiff
Versus
1. Shri Vidya Sagar Bhagat (since deceased)
Through LRs.
(a) Maj.General Shri M P Bhagat (Retd.)
S/o Late Shri Vidya Sagar Bhagat
R/o A157, Second Floor,
Defence Colony,
New Delhi.
(b) Mrs. Pemela Bhagat
W/o Late Maj.Gen.Shri A.S.Bhagat
(c) Kunal
S/o Late Maj.Gen.Shri A.S.Bhagat
(d) Ms Shweta
D/o Late Maj.Gen.Shri A.S.Bhagat
All Residents of:
A157, Ground Floor,
Defence Colony,
New Delhi.
(e) Mrs. Reeta Chopra
W/o Shri Shakti Chopra
R/o Rosilin, Long Island,
New York,USA.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 1/109
2. Dr. Rakesh Verma
S/o Late Shri M P Verma
R/o C11, Rana Pratap Bagh,
Delhi110002.
..........Defendants
Date of institution : 28.02.1989
Date of decision : 10.06.2022
SUIT FOR SPECIFIC PERFORMANCE
JUDGMENT
1. This is a suit for specific performance of agreement to sell dated 03.05.1988 filed by the plaintiff Sh. Suresh Mansharamani against defendant no. 1/ Sh. Vidya Sagar Bhagat. Defendant no. 2 Dr. Rakesh Verma was impleaded as defendant no. 2 on an application under Order 1 Rule 10 CPC made by the plaintiff herein vide order dated 24.04.1990.
Plaintiff's case:
2. The case of the plaintiff as per the amended plaint filed after impleadment of defendant no. 2 is that defendant no. 1/ Sh. Vidya Sagar Bhagat was the owner of residential plot no. 15, Block D, admeasuring 297 sq. yds. situated at Mansarovar Garden, New Delhi (hereinafter referred as the suit land). There were negotiations between plaintiff/Sh. Suresh Mansharamani and defendant no. 1 for Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 2/109 purchase of suit land and a token of Rs. 50,000/ in cash was paid by the Plaintiff to defendant no. 1 on 29.04.1988. Thereafter, on 03.05.1988, a regular agreement to sell was executed between the parties for a total sale consideration of Rs. 16,15,000/. A further sum of Rs. 50,000/ was paid by the plaintiff to the defendant vide cheque no. 541673 dated 03.05.1988.
3. Vide the agreement to sell dated 03.05.1988, defendant no. 1 undertook to obtain clearance from the appropriate authorities under Section 269UC of the Income Tax Act for which the declaration was delivered to him. He also undertook to get clearance under section 26 of ULCR Act, being a vacant plot as well as to obtain a clearance under Section 230A of Income Tax Act and requisite permissions under Section 5 of Delhi Lands (Restrictions on Transfer) Act, 1972. The balance sale consideration of Rs. 15,15,000/ was to be paid by the plaintiff to the defendant no. 1 at the time of registration of sale deed and delivery of vacant and physical possession of the suit land by defendant no. 1 to the plaintiff.
4. Defendant no. 1 approached the plaintiff on 13.05.1988 and informed that he had done the needful for obtaining all requisite permissions. He also stated that he was in dire need of Rs. 50,000/ which could be adjusted against the balance sale consideration. Accordingly, plaintiff advanced another Rs. 50,000/ to defendant no. 1 by way of cheque bearing no. 541674 dated 11.05.1988, thereby leaving balance sale consideration of Rs. 14,65,000/ to be paid.
5. However, defendant no. 1 did not take any action for obtaining the sanction/clearances. Plaintiff issued a telegraphic notice to defendant no. 1 to obtain the necessary approvals and complete the Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 3/109 registration of sale deed in favour of the plaintiff. A legal notice was also issued to this effect to defendant no. 1 through the counsel for the plaintiff. A public notice was also issued in the newspaper Hindustan Times to this effect. However, defendant no. 1 sent a blank registered letter to the plaintiff which was duly replied to. Defendant no. 1 failed to obtained the requisite permissions/sanctions. Despite repeated requests, the defendant no. 1 did not come forward to complete the sale transaction. Hence, the present suit has been filed seeking specific performance of agreement to sell dated 03.05.1988.
6. After filing of the suit, plaintiff came to know that defendant no. 2 had also filed a suit for specific performance against defendant no. 1 on 13.03.1989 titled as Dr. Rakesh Verma Vs. Vidya Sagar Bhagat wherein it has been alleged that defendant no. 1 had agreed to sell the suit land to Dr. Rakesh Verma (defendant no. 2 herein) for a total sale consideration of Rs. 7,42,500/. Defendant no. 2 has also alleged in his suit that he has already made a cash payment of Rs. 5.80 lacs to defendant no. 1 herein towards the said agreement to sell. However, the only payment made through cheque by defendant no. 2 is of Rs. 1 lac made on 07.07.1988 and 15.07.1988 which is much beyond the date of agreement to sell between plaintiff and defendant no. 1 which was executed on 03.05.1988. The entire transaction between defendant no. 1 and defendant no. 2 appears to be a conspiracy to defraud the plaintiff herein. The alleged agreement to sell between defendant no. 1 and 2 is an oral agreement whereas the one between the plaintiff and defendant no. 1 is a written agreement dated 03.05.1988. The transaction, if any, between defendant no. 1 and defendant no. 2 is also later in time as compared to the agreement to sell between plaintiff and defendant no. 1 as the payments, if any, made by defendant no. 2 to defendant no. 1 by way of cheque are only in the month of July 1988.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 4/109
7. The plaintiff has been ready and willing to complete the contract and has the necessary funds but the defendant no. 1 is avoiding the sale. Hence, the present suit is filed seeking relief of specific performance of agreement to sell dated 03.05.1988. Directions are also sought against defendant no. 1 directing him to obtain the necessary permissions/clearances under Section 230A, 269UC of Income Tax Act, Section 26 of ULCR Act and Section 5 of Delhi Land (Restrictions on Transfer) Act, 1972. It is also prayed that defendant nos. 1 and 2 be directed to deliver vacant physical possession of the suit land to the plaintiff and injunction is also sought against the defendants restraining them from selling, alienating or transferring the suit land to any one except the plaintiff.
Case of defendant no. 1/ Sh. Vidya Sagar Bhagat:
8. In his written statement, defendant no. 1 has preliminarily objected to the suit on the ground that the same is barred under section 16, 19 and 20 of the Specific Relief Act as there is no valid and subsisting agreement to sell between the parties. No provision/stipulation regarding obtaining of NOC under Chapter XXC of Income Tax Act, 1961 was made in agreement dated 03.05.1988 as the plaintiff himself undertook to obtain the NOC under Section 269UC from the appropriate authority under Chapter XXC of Income Tax Act, 1961. The plaintiff was also required to file form 37I and for that purpose, he had also obtained the signatures of defendant no. 1 thereon. However, for the reasons best known to him, the plaintiff did not submit the requisite forms with appropriate authorities. Even as per the provisions of the Act, it was the duty of the plaintiff/Buyer to file the copy of the agreement to sell along with Form No. 37I within the statutory period of 15 days from the date of execution of the agreement.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 5/109 Since, the same was not done by the plaintiff, the agreement to sell became void and unenforceable on the expiry of the said period.
9. Under the agreement to sell dated 03.05.1988, defendant no. 1 was required to execute the sale deed within a period of 15 days from the date of receipt of information with regard to permission under Delhi Lands (Restrictions on Transfer), Act, 1972; Urban Lands (Ceiling and Regulations) Act, 1976 and Income Tax Clearance Certificate under Income Tax Act 1961 on the requisition or demand of the plaintiff.
10. However, the plaintiff did not take any steps in this regard and intentionally allowed the agreement to sell to lapse, dissolve and become void. Form 37I under Chapter XXC of Income Tax Act was required to be signed by both the parties and submitted with the appropriate authorities under section 269UC. In case, one of the party fails or neglects to file the same, the other party is required to submit the same along with copy of agreement to sell. However, plaintiff did not make any effort for filing the necessary forms/applications and obtaining requisite permissions as he did not want to continue with the agreement to sale.
11. The plaintiff was not ready and willing to perform his part of the contract and failed to perform the same. He abandoned the contract and he is guilty of breach of the same and is thus not entitled to the relief of specific performance, as prayed.
12. On merits, the agreement to sale between the parties dated 03.05.1988 in respect of the suit land is admitted, however, it is denied that as per the agreement, it was the duty of defendant no. 1 only to obtain the necessary approval/sanctions from the appropriate Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 6/109 authorities. It is stated that there was no such undertaking given by the defendant no. 1 to the plaintiff at the time of entering into the agreement to sell.
13. As regards the sale consideration, it is admitted that the same was finalized at Rs. 16,15,000/, however, it is denied that any cash payment of Rs. 50,000/ was made by the plaintiff to defendant no. 1 on 29.04.1988. It is stated that although, the plaintiff had promised to pay Rs. 50,000/ in cash before signing the agreement to sell and receipt dated 29.04.1988 in this regard was also prepared but later on, he showed his incapability to make the payment in cash and undertook to pay the same by way of cheque. On his assurances and representations, defendant no. 1 had signed the agreement to sell dated 03.05.1988 as well as receipt dated 29.04.1988 without receiving cash amount of Rs. 50,000/. Later on, the plaintiff as promised gave a cheque of Rs. 50,000/ to defendant no. 1 on 11.05.1988. Thus, in all, the plaintiff had only made a payment of Rs. 1 lac to defendant no. 1 against the agreement to sell vide two cheques of Rs. 50,000/ each dated 03.05.1988 and 11.05.1988.
14. Defendant no. 1 admitted receipt of legal notice dated 11.06.1988 but stated that it was received only on 11.07.1988. It is also stated that defendant no. 1 made various requests to the plaintiff to submit the requisite documents with the concerned authorities but he neglected to do the same. It is alleged that the requests in this regard were also made by registered letter dated 20.07.1988.
15. It is categorically denied that defendant no. 1 is guilty of breach of contract. Rather, it is alleged that it was the plaintiff who was at fault and has never performed his part of the agreement.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 7/109
16. As regards defendant no. 2, it is admitted that there was an agreement to sell between the defendant no. 1 and defendant no. 2 but it was only on 15.07.1988. It is also stated that defendant no. 2 has only made a payment of Rs. 95,000/ towards the said agreement to sell vide two cheques dated 15.07.1988. The allegations of conspiracy between the defendant no. 1 and defendant no. 2 are categorically denied. Rather, it is stated that since the plaintiff had committed breach of agreement to sell dated 03.05.1988 and abandoned the same, defendant no. 1 entered into an incomplete oral agreement to sell, the suit land with defendant no. 2 for a consideration of Rs. 17,10,000/. However, as on date, there is no valid or subsisting agreement to sell, the suit land either between the plaintiff and defendant no. 1 or between the defendant no. 2 and defendant no. 1.
17. With these contentions, the suit of the plaintiff has been rebutted.
Case of defendant no.2:
18. Defendant no. 2 also filed his WS wherein the suit has been preliminarily objected to on the ground that the suit does not disclose any cause of action qua defendant no. 2. The suit is also not maintainable under Section 14,16,19 and 20 of the Specific Relief Act, 1963. The suit of the plaintiff is alleged to be fraudulent and collusive having been filed in collusion with defendant no. 1 with a view to aid defendant no. 1 to escape from his liabilities under a prior agreement to sell with defendant no. 2 which was entered into in the month of December 1987 for a total sale consideration of Rs. 7,42,500/ and against which defendant no. 1 already received a part payment of Rs. 5,80,000/. As regards the alleged agreement to sell between the Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 8/109 plaintiff and defendant no. 1, it is stated that the same has been abandoned/terminated. The suit is also alleged to be barred under the provisions of Chapter XXC of Income Tax Act and the provisions of ULCR Act.
19. On merits, again the sale transaction between defendant no. 1 and defendant no. 2 entered in the month of December 1988 has been detailed. The details of payment of Rs. 5,80,000/ made by defendant no. 2 to defendant no. 1 have also been given. Defendant no. 2 has denied the agreement to sell between the plaintiff and defendant no. 1 and it is alleged that even if, there was any such agreement, the same has been abandoned/cancelled both expressly and by conduct of both the parties. Being nonexistent, the alleged agreement to sell dated 03.05.1988. between plaintiff and defendant no. 1, cannot be specifically enforced. Even otherwise, the agreement to sale between defendant no. 1 and defendant no. 2 having been entered into in December 1987 is a prior agreement to the one between plaintiff and defendant no. 1 which is dated 03.05.1988.
20. It is also alleged that in pursuance of the agreement to sell between defendant no. 1 and defendant no. 2, the physical possession of the suit land was also handed over to defendant no. 2 in part performance of the agreement on 02.03.1988. It is stated that plaintiff has no cause of action to disturb the possession of the defendant no. 2 by virtue of the present suit. With these contentions, the suit of the plaintiff has been rebutted.
Replication:
21. Separate replications were filed by the plaintiff to the WS Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 9/109 of defendant no. 1 and defendant no. 2, wherein he reiterated and reaffirmed the averments made in the plaint and denied the averments made in the WS except the admissions made.
Important orders:
22. Before proceeding further, it would be appropriate to highlight important orders passed by my Ld. Predecessor in this case. There is a separate suit bearing no. 744/1989 (New No. 612619/2016) titled as Dr. Rakesh Varma Vs. Vidya Sagar Bhagat & Ors. filed by defendant no. 2 herein against defendant no. 1 herein for specific performance in respect of an agreement to sell between them concerning the suit land. In the present suit, vide order dated 24.04.1990, Dr. Rakesh Verma (plaintiff in the said other suit) was impleaded as defendant no. 2 on an application filed by plaintiff herein (Sh. Suresh Mansharamani). Similarly, plaintiff herein Sh. Suresh Mansharamani was impleaded as defendant no. 2 in the said suit filed by Dr. Rakesh Verma. There after, vide order dated 24.04.1990, passed in the said suit both these suits were clubbed together as both the suits are for specific performance of two separate agreements to sell but in respect of the same property. It was also ordered that henceforth, the proceeding will be recorded in present suit bearing no. 581/1989 (New No. 609188/2016) titled as Suresh Mansharamani Vs. Vidya Sagar Bhagat & Anr.
ISSUES:
23. After completion of pleadings and admission/denial of documents in both the suits, vide order dated 14.03.1995 consolidated issues were framed in both the suits as under: Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 10/109 Suit No. 581/1989 (New No. 609188/2016) titled as Suresh Mansharamani Vs. Vidya Sagar Bhagat & Anr.
(1) Whether there is any valid and subsisting agreement to sale between the plaintiff and defendant no. 1 as alleged? OPP (2) Whether the suit is not barred under Chapter XXC of the Income Tax Act for not having filed statement in form 37I pertaining to agreement to sale dated 03.05.1988 with the appropriate authorities under Chapter XXC of Income Tax Act?OPP.
(3) Whether the plaintiff has performed and has been ready and willing to perform his part of the contract? OPP (4) Whether the plaintiff undertook to obtain the necessary permissions, as alleged? OPD.
(5) Whether the plaintiff is entitled to a decree of specific performance, as prayed? If so on what terms? OPP (6) Relief.
Suit no. 744/1989 (New No. 612619/2016) titled as Dr. Rakesh Verma Vs. Vidya Sagar Bhagat & Anr. (present suit) Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 11/109 (1) Whether defendant no. 1 agreed to sell and plaintiff agreed to purchase plot D15, Mansarovar Garden, New Delhi, as alleged? If so, on what terms? OPP (2) If issue no. 1 is proved in affirmative, whether the plaintiff has performed his part of contract and has been ready and willing to perform his part of the contract? OPP (3)Whether physical possession of the plot in question was delivered by defendant no. 1 to the plaintiff in pursuance to the alleged agreement to sale?OPP (4)Whether any boundary wall to the suit plot was raised by the plaintiff? If so, its effect? OPP (5) Whether the letter addressed to defendant no. 2 by defendant no. 1 regarding possession of the suit property was written under false and fraudulent representation of the plaintiff, as alleged? If so, its effect? OPD1 (6)Whether the suit was rightly valued for the purpose of court fees and jurisdiction? OP (7)Whether the plaintiff is entitled to a decree for specific performance? If so, on what terms?OPP (8) Relief Common issue in both the suits:
(1). Which of the agreement to sale i. e. with the plaintiff in suit no.
744/1989 (Dr. Rakesh Verma) or with the plaintiff in suit no. 581/1989 (Suresh Mansharamni) is prior in point of time and if so, to what effect?OP Parties.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 12/109
24. Vide the same order dated 14.03.1995, it was directed that Sh. Suresh Mansharamani (plaintiff in suit no. 581/1989) will lead his evidence first. Thereafter, Dr. Rakesh Verma (plaintiff in suit no. 744/1989) will adduce evidence. After closure of evidence of both the plaintiffs, Sh. V. S. Bhagat (defendant no. 1 in both the suits) will lead evidence which will be rebutted by the plaintiff in suit no. 581/1989 and suit no. 744/1989.
25. Another important order is order dated 14.03.2013, whereby Ld. Predecessor of this court observed that due to consolidation of the suits, the matters were being delayed and accordingly, it was ordered that the suits shall be tried separately and independently.
26. During the trial, defendant no. 1/Sh. V. S. Bhagat expired on 03.09.2007 and his LRs were brought on record vide order dated 14.01.2010 in the present matter and vide order dated 04.01.2010 in suit bearing no. 744/1989 (New No. 612619/2016) titled as Dr. Rakesh Verma Vs. Vidya Sagar Bhagat & Anr.
COURT OBSERVATION:
27. As observed above, present suit was consolidated for the purposes of evidence with another suit pending between the parties titled as Dr. Rakesh Verma Vs. Vidya Sagar Bhagat bearing no. Civ. DJ. No. 744/1989 (New Number: 612619/2016) vide order dated 24.04.1990. Again vide order dated 14.03.1995, at the time of framing of issues, it was directed that evidence will be recorded jointly in both the cases. However, thereafter, vide order dated 14.03.2013, it was ordered that both the suits should be tried separately and Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 13/109 independently. None of these orders of Ld. Predecessors of this court have been challenged by any of the parties. However, the fact remains that parties in both the suits are common, plaintiff in one suit being defendant no. 2 in the other and vice versa. Defendant no. 1 is Sh. V. S. Bhagat in both the suits. The property involved in both the suits is the same. Both the suits are for specific performance of agreement to sell allegedly executed by the same seller in favour of two different buyers.
In both the suits, the buyers have examined themselves either as plaintiff or as defendant no. 2. The facts of the suit are inter linked as both the buyers are rebutting the case of the others on the same grounds in both suits. Accordingly, in my opinion, for just decision of the case, it is important to consider the evidence led and documents relied upon by all the parties in both the suits while deciding either of the suit. Hence, I shall be discussing the evidence of all the parties in both the suits while deciding the present suit as well as suit filed by Dr. Rakesh Verma/defendant no.2 herein.
28. In addition to these two suits, there was another suit filed by Sh. Vidya Sagar Bhagat (defendant no. 1 herein) against Dr. Rakesh Verma (defendant no. 2 herein) seeking possession of the suit land. This suit bearing no. CS No. 766/2012 was filed in the year 1992 and was decided vide judgment and decree dated 26.08.2013. The effect of the decision of the said suit on the present suits shall be considered and discussed at the appropriate stage.
Admission/denial of documents in the connected Suit titled as Dr. Rakesh Verma vs Vidya Sagar Bhagat bearing Civ DJ No; 612619/2016 (Old No. 744/1989): Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 14/109
29. The admission/denial of the documents was conducted on 28.09.1994. The documents filed by the Dr. Rakesh Verma along with index dated 23.04.1990 (page no. 1 to 48) were put to defendant no. 1/Sh. V. S. Bhagat for admission denial. He admitted eight of these documents which are as under:
(1) Ex. P1: AD Card showing receipt of a letter by defendant no. 1/Sh.
V. S. Bhagat sent from the plaintiff/Dr. Rakesh Verma received on 29.08.1988.
(2) Ex. P2: AD Card showing receipt of a letter by defendant no. 1 sent from the plaintiff/Dr. Rakesh Verma received on 24.09.1988. (3) Ex. P3 : A Legal Notice dated 27.03.1989 written on behalf of defendant no. 1 by his counsel Sh. R. D. Mahant addressed to the plaintiff/Dr. Rakesh Verma.
(4) Ex. P4 : A Legal Notice dated 27.07.1989 written on behalf of defendant no. 1 by his counsel Sh. R. D. Mahant addressed to the plaintiff/Dr. Rakesh Verma.
(5) Ex. P5: Receipt dated 15.07.1988 executed by defendant no. 1 in favour of the plaintiff/Dr. Rakesh Verma.
(6) Ex. P6 : A letter dated 30.08.1988 written by defendant no. 1 to the plaintiff/Dr. Rakesh Verma.
(7) Ex. P7: A letter dated 26.09.1988 written by defendant no. 1 to the plaintiff/Dr. Rakesh Verma.
(8) Ex. P8: A letter dated 09.09.1988 written by defendant no. 1 to the plaintiff/Dr. Rakesh Verma.
30. Documents mentioned at serial no. 1, 20, 26, 27, 32 and 34 to 37 were categorically denied by defendant no. 1. Remaining documents were neither admitted nor denied by defendant no. 1 on the pretext that they did not pertain to him.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 15/109
38. As regards defendant no. 2/Sh. Suresh Mansharamani, he categorically denied the document appearing at serial no. 14 of the list. Remaining documents are neither admitted nor denied by him.
31. Likewise the documents filed by the defendant no. 1/Sh. V. S. Bhagat along with index dated 23.10.1989 (pages 1 to 82) were put to the plaintiff/Dr. Rakesh Verma for admission/denial. Plaintiff admitted five documents which are as under: (1) Ex. D1: Letter dated 26.08.1988 written by defendant no. 1 to the plaintiff/Dr. Rakesh Verma.
(2) Ex. D2 : Registered cover sent by plaintiff/Dr. Rakesh Verma to defendant no. 1 bearing stamp dated 27.08.1988 (only registered cover has been admitted while the contents are denied). (3) Ex. D3 : Letter dated 30.08.1988 written by defendant no. 1 to the plaintiff/Dr. Rakesh Verma.
(4) Ex. D4 : Registered cover sent by plaintiff/Dr. Rakesh Verma to defendant no. 1 (date unclear) (only registered cover has been admitted while the contents are denied).
(5) Ex. D5 : Letter dated 26.09.1988 sent by defendant no. 1 to the plaintiff/Dr. Rakesh Verma.
32. The documents appearing at pages 3,4,6,7,9 to 13, 21,22,24, 25 and 82 were not admitted by the plaintiff/Dr. Rakesh Verma. Remaining documents were neither admitted nor denied by him on the ground that they did not pertain to him.
Admission/denial of documents in the present suit titled as Shri Suresh Mansharamani vs Vidya Sagar Bhagat and another bearing Civ DJ No; 609188/2016 (Old No. 5811989): Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 16/109
33. The admission/denial of the document in the present case filed by Shri Suresh Mansharamani was conducted on 28.09.1994. Defendant no. 1/Shri V S Bhagat admitted two documents of the plaintiff/Sh. Suresh Mansharamani that are:
(i) Ex.P1: Receipt dated 13.05.1988 for a cheque payment of Rs. 50,000/ against the agreement to sell dated 03.05.1988.
(ii) Ex.P2: Telegram dated 25.06.1988 sent by Sh. Suresh Mansharamani to Sh. V. S. Bhagat informing him that he had not obtained the requisite sanctions/permissions pursuant to agreement to sell dated 03.05.1988 which shows his malafide intentions to not proceed further with the agreement and he should be ready for legal action.
34. The agreement to sale dated 03.05.1988 was also put to Shri V S Bhagat who admitted this documents but denied the presence and signatures of witness no. 2 thereon. This document is Ex.P3 to the extent, it is admitted by defendant no. 1/Sh. V. S. Bhagat.
35. Two documents filed by defendant no. 1/ Sh. V. S. Bhagat that are one letter dated 17.06.1988 written by Sh. V. S. Bhagat to Sh. Suresh Mansharamani and the postal receipt of the same were put to the plaintiff/Sh. Suresh Mansharamani which were denied by him.
36. However, in his evidence recorded in the present suit, Sh. Suresh Mansharamani relied upon the letter dated 17.06.1988 which was exhibited as Ex.PW1/3 in his evidence.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 17/109 EVIDENCE IN THE CONNECTED SUIT TITLED AS DR. RAKESH VERMA VS VIDYA SAGAR BHAGAT BEARING CIV. DJ. NO. 612619/2016 (OLD NO. 744/1989).
EVIDENCE OF PLAINTIFF/DR. RAKESH VERMA.
37. Plaintiff/Dr. Rakesh Verma examined himself as PW1 and stated and reiterated the contents of his plaint in his affidavit Ex.PW1/A and additional affidavit Ex.PW1/B. Certain portions of the affidavit have been disputed by Ld. Counsels for opposite parties on the grounds of being beyond pleadings. The same shall be referred to at appropriate stage. He relied upon the following documents:
(1) Ex. P1: AD Card showing receipt of a letter by defendant no. 1 sent by the plaintiff/Dr. Rakesh Verma received on 29.08.1988. (2) Ex. P2: AD Card showing receipt of a letter by defendant no. 1 sent by the plaintiff/Dr. Rakesh Verma received on 24.09.1988. (3) Ex. P3 : A Legal Notice letter dated 27.03.1989 written on behalf of defendant no. 1 by his counsel Sh. R. D. Mahant addressed to the plaintiff/Dr. Rakesh Verma.
(4) Ex. P4 : A Legal Notice letter dated 27.07.1989 written on behalf of defendant no. 1 by his counsel Sh. R. D. Mahant addressed to the plaintiff/Dr. Rakesh Verma.
(5) Ex. P5: Receipt dated 15.07.1988 executed by defendant no. 1 in favour of the plaintiff/Dr. Rakesh Verma.
(6) Ex. P6 : A letter dated 30.08.1988 written by defendant no. 1 to the plaintiff/Dr. Rakesh Verma.
(7) Ex. P7: A letter dated 26.09.1988 written by defendant no. 1 to the plaintiff/Dr. Rakesh Verma.
(8) Ex. P8: A letter dated 09.09.1988 written by defendant no. 1 to the plaintiff/Dr. Rakesh Verma.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 18/109 (9) Ex.PW1/9 : Original possession handing over document dated 02.03.1988.
(10) Ex.PW1/10 : Certificate dated 07.03.1989 from Bank of Baroda confirming encashment of cheques mentioned in receipt Ex.PW1/9. (11) Ex.PW1/11 : Certificate of Bank of Baroda dated 07.03.1989 supporting the payment of Rs. 5000/ as per cheque no. 100792 paid on 12.07.1988.
(12) Ex.PW1/12 : Bill dated 20.07.1988 issued by Contractor Gurnam Singh confirming the construction on suit land. (13) Ex.PW1/13 : Original cash memo of building material dated 17.05.1988 used for raising construction over suit land. (14) Ex.PW1/14 to Ex. PW1/21 : Receipts of payments made to M/s. Dynamistic Security and Force for the month of April 1988 to November 1988.
(15) Ex.PW1/22 & Ex.PW1/23 : Memos dated 05.08.1988 submitted to District Magistrate, THC and Additional District Magistrate (West), THC, Delhi (16) Ex.PW1/24 : Copy of Letter dated 05.08.1988 being a complaint made to SHO, Kirti Nagar bearing the acknowledgement dated 06.08.1988.
(17) Ex.PW1/25 : Newspaper cutting showing the publication of the notice to General Public published in newspaper Hindustan, New Delhi edition dated 08.08.1988. (deexhibited and marked as Mark A) (18) Ex.PW1/26 to Ex.PW1/34 & Ex.PW1/36 to Ex.PW1/42:
Communications between plaintiff and defendant no. 1 along with postal receipts (Documents Ex.PW1/26, Ex.PW1/29, Exx.PW1/32, Ex.PW1/34, Ex.PW1/36, Ex.PW1/39 to Ex.PW1/41) were deexhibited being copies and were marked as Mark B to Mark I).
(19) Ex.PW1/35 : Letter dated 20.07.1988 written by Sh. Vidya Sagar Bhagat/defendant to Suresh Mansharamani/defendant no. 2 addressed Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 19/109 to the plaintiff/Dr. Rakesh Verma (this document was exhibited as Ex.
PW1/4 being relied upon by Sh. Suresh Mansharamani in his suit bearing Civ. DJ. No. 609188/2016).
(20) Ex.PW1/43 to Ex.PW1/44 : House Tax Receipt dated 19.03.1989 and 20.03.1989.
(21) Ex.PW1/45 : Receipt of DESU dated 21.04.1989. (22) Ex.PW1/46: Telephone Bill mentioning due date as 17.11.1989 installed in the name of Dr. Rakesh Verma/plaintiff at the suit land (This document is deexhibited being a copy and marked as Mark J). (23) Ex.PW1/47 : Meter Reading Certificate of Telephone no. 5345080.
(24) Ex.PW1/47 A: Envelope of Telephone Bill. (25) Ex.PW1/48 : Certified copy of judgment and decree dated 26.08.2013 passed in case no. 766/2012. (26) Ex.PW1/49 : Certified copy of judgment from the court of Sh.
Om Prakash the then Ld. MM, Tis Hazari based on FIR No. 111/1989 under Section 448 of IPC concerning the suit land.
(27) Mark K to Mark O : Certified copies of sale deeds of contemporary period of properties in the same locality as that of the suit land.
38. Dr. Rakesh Verma/PW 1 was duly cross examined on behalf of both the defendants i. e. Sh. V. S. Bhagat/defendant no. 1 and Sh. Suresh Mansharamani/defendant no. 2.
39. PW2 Sh. Praveen Kumar Rana, was summoned to produce certain records from the office of SubRegistrarI, Kashmere Gate but he stated on Oath that the records upto year 1990 have been transferred to Department of Delhi Archive and accordingly, he could Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 20/109 not produce the record.
40. PW 3 is Sh. Gurnam Singh, who deposed that he was in construction business and a government contractor in the year 1988 and his office at that time was at E29B, Rajouri Garden, Delhi. He stated that the bill Ex.PW1/12 had been issued by him and it bears his signatures at point A. He had constructed 2/3 room at D15, Mansarovar Garden including the boundary wall in March 1988.
41. This witness was duly cross examined on behalf of both the defendants.
42. PW4 Sh. Devender Singh, is again a summoned witness from Record Room, Criminal, Tis Hazari. He could not produce the summoned record as it was destroyed as per rules. However, he produced the goshwara register of PSKirti Nagar for the year 1992. He proved the report regarding destruction as Ex.PW4/A and photocopy of goshwara register Ex.PW4/B pointing to the relevant entry at point A. This witness is not subjected to cross examination by any of the defendants.
43. PW5 is Sh. Satpal Singh who identified his signatures on Ex.PW1/14 to Ex.PW1/21 at point A to point H and deposed that these documents pertain to provisions of Watch and Ward (Security). The security was provided by him at D15, Mansarovar Garden, New Delhi in March/April 1988 upto November/December 1988.
44. This witness was cross examined at length by ld. Counsel for both the defendants.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 21/109
45. PW6 is one Sevajit, being a summoned witness from the Department of Delhi Archives. He proved the registered sale deeds of some properties in the area executed during the contemporary period as Ex.PW6/1 to Ex/PW6/5.
46. This witness was cross examined only on behalf of Sh. V. S. Bhagat/defendant no. 1.
47. PW7 is Sh. Ashwini Kumar Gupta, Advocate, Son of Sh. M. L. Gupta who identified the signatures of his father Sh. M. L. Gupta on Ex.PW1/9 at point A.
48. This witness was cross examined on behalf of Sh. V. S. Bhagat/defendant no. 1 and Sh. Suresh Mansharamani/Defendant no.
2. EVIDENCE OF DEFENDANT NO. 1/SH. VIDYA SAGAR BHAGAT.
49. On behalf of defendant no. 1/Shri V S Bhagat, one of his LR/son Major General M.P. Bhagat (Retired) was examined as DW1 vide his affidavit Ex.DW1/A) wherein he reiterated and stated on Oath the contents of the written statement filed by his father Late Sh. V. S. Bhagat, not only in the present case but also, in the case filed by Shri Suresh Mansharamani bearing Civ. DJ. No. 609188/2016 as well as his plaint in the possession suit filed by him against the plaintiff herein being CS No. 766/2012 which was decided vide judgment and decree dated 26.08.2013. He relied upon the followign documents:
(i) Ex.DW1/2 (colly.) : Letters/Greeting Cards sent by Dr. Rakesh Verma to Late Sh. V. S. Bhagat between the year 1988 to 1989.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 22/109
(ii) Ex.DW1/3 : Copy of Agreement to sell dated 03.05.1988 between Late Sh. V. S. Bhagat/Defendant no. 1 and Sh. Suresh Mansharamani/defendant no. 2 herein (this document was exhibited as admitted by Sh. V. S. Bhagat in the suit filed by Suresh Mansharamani bearing Civ. DJ. No. 609188/2016 and is Ex.P3 in the said suit except the signatures of the second witness).
(iii) Ex.DW1/4 : Original Receipt dated 15.07.1988 signed by Sh. V. S. Bhagat at point A.
(iv) Ex.DW1/6 (colly.): Original Letter dated 26.08.1988 signed by Sh. V. S. Bhagat at point A with postal receipts.
(v) Ex.DW1/7 (colly.) : Letter dated 30.08.1988 with postal receipts.
(vi) Ex.DW1/8 (colly.): Letters dated 09.09.1988 (three in number) with postal receipts.
(vii) Ex.DW1/9 (colly.): Copy of Letter dated 16.09.1988, true copy signed by Sh. V. S. Bhagat with original returned envelope.
(viii) Ex.DW1/10 & Ex.DW1/11 : Waste paper received in an envelope.
(ix) Ex.DW1/12 (colly.): Letters dated 26.09.1988 (three in number) along with postal receipts.
(x) Ex.DW1/13 (colly.): Payment Receipt (eight in number).
(xi) Ex.DW1/14 : Copy of reply dated 24.01.1988 given to PS Kirti Nagar.
(xii) Ex.DW1/15 : Copy of complaint dated 13.03.1988.
(xiii) Ex.DW1/16 : Copy of FIR No. 111/1989 dated 19.03. 1989, PS Kirti Nagar.
(xiv) Ex.DW1/17 (Colly.): Copies of complaints made by Sh. V. S. Bhagat to various authority (five in number).
(xv) Ex.DW1/18 (colly.): Letters to MCD, MTNL etc. along with postal receipts/replies given by them.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 23/109
50. This witness was duly cross examined on behalf of the plaintiff/Dr. Rakesh Verma as well as defendant no. 2/Suresh Mansharamai.
51. No other witness was examined on behalf of defendant no. 1/Late Sh. V. S. Bhagat.
EVIDENCE OF DEFENDANT NO. 2/SH. SURESH MANSHARAMANI.
52. Defendant no. 2/Shri Suresh Mansharamani examined himself as D2W1, in support of his case and stated and reiterated on Oath in his affidavit Ex.D2W1/A, the contents of his plaint in the suit filed by him bearing Civ. DJ. No. 609188/2016 titled as Suresh Mansharamani Vs. Vidya Sagar Bhagat & Anr. He did not rely on any documents.
53. This witness was cross examined at length on behalf of the plaintiff/Dr. Rakesh Verma as well as defendant no. 1/Late Sh. Vidya Sagar Bhagat.
54. No other witness was examined on behalf of defendant no. 2/Sh. Suresh Mansharamani.
EVIDENCE IN THE PRESENT SUIT TITLED AS SURESH MANSHARAMANI VS VIDYA SAGAR BHAGAT & ANOTHER
BEARING CIV. DJ. NO. 609188/2016 (OLD NO. 581/1989).
EVIDENCE OF PLAINTIFF/SURESH MANSHARAMANI:
55. Sh. Suresh Mansharamani/plaintiff in the present suit Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 24/109 examined himself as PW1 and stated on Oath that one property dealer namely Sh. Pradeep Dhingra introduced him to defendant no. 1 (Sh. V. S. Bhagat) sometimes in April 1988. Negotiations with regard to sale and purchase of the disputed property ensued between them and were concluded on 29.04.1988. He paid a sum of Rs. 50,000/ to defendant no. 1 in cash and obtained receipt thereof. An agreement to sell was executed between them on 03.05.1988 i. e. Ex.P3. He made a further payment of Rs. 50,000/ by cheque at the time of execution of agreement to sell. Defendant no. 1 again approached him on 13.05.1988 for further money and he paid Rs. 50,000/ by way of cheque vide Ex.P1. Defendant no. 1 was required to obtain permission from Income Tax Authority, permission under Urban Land and Ceiling Act and under Delhi Land (Restrictions on Transfer) Act, but he did not obtain any such permission. He approached defendant no. 1 many times for execution of sale deed but it was of no avail. He was served with a legal notice dated 11.06.1988 and again a telegram dated 25.06.1988 (Ex.P2). A notice was also published in newspaper Hindustan (Ex.PW1/1). Thereafter, he filed the suit against the defendant. Defendant no. 1 sent a letter dated 01.08.1988 which is Ex.PW1/2 and another letter dated 17.06.1988 which is Ex.PW1/3. Defendant no. 1 refused to execute the sale deed on the ground that he had failed to perform his part of contract. He is still willing to purchase the property and to perform his part of the contract.
56. This witness was duly cross examined on behalf of defendant no. 1/Shri V S Bhagat and defendant no.2/Dr Rakesh Verma and during his cross examination he produced one telegram whereby he had informed defendant no. 1 (Sh. Vidya Sagar Bhagat) that he had signed different forms and given them to defendant no. 1 to submit before different authorities. The said telegram is Ex.PW1/DA. He also Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 25/109 relied upon agreement to sell dated 03.05.1988 executed between him and defendant no. 1 which is Ex.P3. During his cross examination, he testified that he had received an intimation from defendant no. 1/Sh. Vidya Sagar Bhagat with regard to delivery of possession of disputed property to Dr. Rakesh Verma/defendant no. 2 vide letter dated 20.07.1988. The said letter is Ex.PW1/4.
57. PW2 Sh. Pradeep Kumar Dhingra is a property dealer who deposed that the transaction of sale of property in question between Sh. V. S. Bhagat/Defendant no. 1 and Sh. Suresh Mansharamani/plaintiff was done through him. 45 days prior to the execution of agreement, a sum of Rs. 50,000/ was paid in cash by plaintiff to defendant no. 1. Total sale consideration was settled at Rs. 16.15 lacs. The agreement was signed by the parties in his presence. A cheque for Rs. 50,000/ was paid on the date of agreement to sell by plaintiff to defendant no. 1. On 45 occasions, he had gone to meet defendant no. 1 and on 2 occasions, plaintiff accompanied him. They requested defendant no. 1 to complete all the formalities for sale of the property in favour of the plaintiff on which defendant no. 1 informed that he was under process of completion of formalities and it will take some time. The plaintiff was dealing in export of garments at the relevant time and had informed him that he had the total amount of consideration available with him. The possession of the property at the time of agreement was with defendant no. 1.
58. This witness was cross examined on behalf of defendant no. 1 but not on behalf of defendant no. 2.
59. PW3/Sh. Pradeep Kumar, deposed that he knew the plaintiff since 1988. At that time, the plaintiff was working as a sole Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 26/109 proprietor of M/s. Rahul Industrial Corporation engaged in export of Readymade Garments. M/s. Rahul Industrial Corporation was the sole proprietorship firm of the plaintiff from October 1985 till November 1993. From February, 1988 till October 1993, he was working as Accounts Manager of the Firm and its annual turn over was between Rs. 23 crores. Later on, the firm was taken over by the company M/s. Rahul Marchandising Ltd. At the time of evidence, PW3 was the director of the company. The banker of the firm was Canara Bank, Rajouri Garden and the firm had about Rs. 89 lacs in fixed deposits with Canara Bank, Rajouri Garden. Plaintiff and members of his family have about 60 percent holding in Rahul Marchandising Ltd. and the annual turn over of the company is about Rs. 16 crores.
60. This witness was duly cross examined on behalf of defendant no.1/Shri V S Bhagat but no cross examination was conducted on behalf defendant no.2/Dr Rakesh Verma.
61. PW4 Sh. O. P. Dhawan, is a witness summoned from Canara Bank, Rajouri Garden. He produced the details of FDRs of M/s. Rahul Industrial Corporation for the period w.e.f. 01.4.1988 to 31.03.1989 which are Ex.PW4/1. He also produced the duly verified statement of bank account in the name of M/s Rahul Industrial Corporation w.e.f. 01.04.1988 to 31.03.1989 which is Ex.PW4/2. He testified that as per records available with the bank, M/s. Rahul Industrial Corporation is a sole proprietorship firm of Sh. Suresh Mansharamani.
62. This witness was cross examined on behalf of defendant no. 2/Dr Rakesh Verma and no cross examination was conducted on behalf defendant no. 1/Shri V S Bhagat.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 27/109
63. No other witness is examined on behalf of plaintiff/Sh. Suresh Mansharamani.
EVIDENCE OF DEFENDANT NO. 1/ SH. V. S. BHAGAT:
64. No witness has been examined in this case on behalf of defendant no. 1/Sh. V.S. Bhagat. The right of Lrs of deceased defendant no. 1 to lead evidence was closed vide order dated 18.05.2013 when he failed to produce any evidence despite repeated opportunities.
EVIDENCE OF DEFENDANT NO. 2/ DR. RAKESH VERMA:
65. Defendant no. 2/Dr. Rakesh Verma examined himself as D2W1 and stated and reiterated on Oath by way of affidavit Ex.D2W1/A, the contents of his WS filed in the present case as well as the plaint in the case filed by him bearing Civ. DJ. No. 612619/2016.
He did not rely on any documents.
66. He was cross examined at length by Ld. Counsel for the plaintiff/Shri Suresh Mansharamani as well as defendant no. 1/Shri V S Bhagat.
67. DW2/A Sh. Sevajit, is a summoned witness from the Department of Delhi Archives. He proved the registered sale deeds of properties is in the area as Ex.DW2/A/A to Ex.DW2/A/E.
68. This witness was cross examined on behalf of plaintiff/Sh. Suresh Mansharamani and Sh. V. S. Bhagat/defendant no. 1.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 28/109
69. DW2/B Sh. Devender Singh, is again a summoned witness from Record Room, Criminal, Tis Hazari. He could not produce the summoned record as it was weeded out as per rules. However, he produced the goshwara register of PSKirti Nagar for the year 1992, photocopy of which is Ex.DW2/B/A pointing to the relevant entry at point A to A.
70. This witness is not subjected to cross examination by any of the defendants.
71. DW2/C Sh. Raj Kumar Singh, is a witness summoned from Bank of Baroda. He was summoned for producing certain records, however, he could not produce the same and stated that the records summoned pertains to Regional Office at Parliament Street, New Delhi. He was cross examined on behalf of the plaintiff as well as defendant no. 1.
72. DW2/D Sh. Dayanand, is a witness summoned from Post Office Sansad Marg, New Delhi. He could not produced the summoned records and stated that the record has already been weeded out.
73. DW2/E Sh. Lalit Arora, is a witness summoned from GPO, New Delhi. He produced the photocopy of post office guide which is exhibited as Ex.DW2/E/A.
74. DW2/F Sh. Manish Kumar, is a summoned witness from BSES, Shankar Road. He did not produce the record and stated that the record pertains to Mansarovar Garden, Moti Nagar Division Office, Delhi and has to be summoned from TPDDL, Mansarovar Garden, Moti Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 29/109 Nagar Division Office, Delhi.
75. DW2/G Sh. Sanjeev Narang, is a witness from Telephone Exchange, Rajouri Garden. He produced the record pertaining to telephone number 25435080 in the name of Dr. Rakesh Verma at D15, Mansarovar Garden, New Delhi which was disconnected on 12.04.2004. The concerned record is Ex.DW2/G/A. He also produced the computer generated records regarding the installation and disconnection of the said telephone number which are marked as Mark A and Mark B respectively.
76. He was duly cross examined on behalf of plaintiff/Dr. Suresh Mansharamani and defendant no. 1/Sh. V. S. Bhagat.
77. DW2/H Sh. Satish Kumar, is a witness summoned from House Tax Department, Karol Bagh Zone, NDMC. He deposed that receipts bearing no. 911081 and 914081 were in the name of Dr. Rakesh Verma in respect of D15, Mansarovar Garden and the photocopy of the same were Mark C and Mark D.
78. He was duly cross examined on behalf of plaintiff/Shri Suresh Mansharamani and defendant no. 1/Shri V S Bhagat.
79. DW2/I Sh. Mahender Kumar, is a summoned witness from office of TPDDL, Inder Puri. He produced the summoned record pertaining to CA No. 60000507800 in the name of Dr. Rakesh Verma at House No. 15, DBlock, Mansarovar Garden, Delhi 110 015 being a domestic connection of 1 KV. He deposed that as per account statement dated 11.02.2018, the said connection was still active. The first receipt in the name of Dr. Rakesh Verma was issued by erstwhile DESU (Now Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 30/109 TPDDL) on 21.04.1989 in the sum of Rs. 150/. Since April 1989, the consumption charges are nbeing received by the service provider till now. The copy of entire K number file is Ex.DW2/I/A.
80. This witness was duly cross examined by plaintiff/Shri Suresh Manshramani and defendant no. 1/Shri V S Bhagat.
81. DW2/J Sh. Rajkumar Singh, is a summoned witness from Bank of Baroda. He produced the letter from Branch Manager dated 17.03.2018 along with copy of Policy to keep the records. The same is Ex.DW2/J/1. He deposed that as per policy, the summoned records has been destroyed.
82. This witness was cross examined only on behalf of defendant no. 1/Shri V S Bhagat.
83. DW2/K Sh. Bala Krishan, is a witness from Hindustan Media Ventures Ltd. He produced the summoned record i.e. page no. 10 of newspaper dated 08.08.1988 (Hindi Edition) which is Ex.DW2/K/1.
84. He was duly cross examined on behalf of plaintiff and defendant no. 1.
85. On an application of defendant no. 2/Dr. Rakesh Verma under Section 151 CPC, he was permitted to place on record, the certified copy of evidenced of PW3/ Shri Gurnam Singh and PW5/Shir Satpal Singh as recorded in case filed by him bearing Civ. DJ. No. 612619/2016 (Old No. 744/1989) titled as Dr. Rakesh Verma Vs. Vidya Sagar Bhagat & Anr.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 31/109
86. No other witness has been examined on behalf of defendant no. 2/Dr. Rakesh Verma.
FINAL ARGUMENTS:
87. Final arguments have been heard at length from Shri Baldev Krishan, Ld.counsel for Dr Rakesh Verma, Sh. Kuljeet Rawal, Ld. counsel for Shri Suresh Mansharamani and Shri J K Bhola, Ld. Counsel for Late Shri V S Bhagat and record has been carefully perused. The written submissions filed on behalf of Dr. Rakesh Verma in the present suit as well as connected suit have also been perused. Various citations relied upon by Ld.counsels have been carefully perused and considered.
MATTERS IN DISPUTE:
88. Before proceeding to give my issue wise findings, I deem it appropriate to ponder, appreciate and give my findings on certain matters in dispute between the parties which have been addressed during the final arguments and shall have bearing on the issue wise findings.
I. Effect of Judgment in the possession suit bearing C.S.No. 766/12 titled as V S Bhagat v s Dr Rakesh Verma.
89. One civil suit bearing CS No. 766/2012 was filed by Sh. V. S. Bhagat against Dr. Rakesh Verma on 23.07.1992 seeking recovery of possession and mesne profits on the pretext that he was the owner of the suit land. The case of Sh. V. S. Bhagat in the said suit was that he had entered into an agreement to sell with Sh. Suresh Mansharamani for a sale consideration of Rs. 16.15 lakhs but he committed breach of Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 32/109 agreement as he was not interested to purchase the suit land and as such, abandoned the agt to sell. This fact was known to Dr. Rakesh Verma who approached Sh. V. S. Bhagat on 15.07.1988 and offered to purchase the suit land for Rs. 17.10 lacs. On the presentation of the Dr. Rakesh Verma, Sh. V. S. Bhagat agreed to sell the suit land to him and received a part payment of Rs. 95,000/ by way of two cheques both dated 15.07.1988. Dr. Rakesh Verma promised to pay balance sale consideration on or before 31.07.1988. Thereafter, the necessary documents of sale were to be executed and physical possession of suit land along with title deed was to be handed over to Dr. Rakesh Verma. It was also agreed that in case of failure of Dr. Rakesh Verma to pay the balance sale consideration on or before 31.07.1988, the amount of Rs. 95,000/ paid by him shall stand forfeited. On the representation of Dr. Rakesh Verma or to avoid future litigation with Sh. Suresh Mansharamani, Dr. V. S. Bhagat signed two copies of a letter drafted by him. Dr. Rakesh Verma failed to pay balance sale consideration and was duly notified by Sh. V.S. Bhagat about the termination of the oral agreement dated 15.07.1988 vide letters dated 30.08.1988, 09.09.1988 and 16.09.1988.
90. Shri V S Bhagat constructed a boundary wall around the suit land upto a height of 3 feet in January 1988 and raised it to a height of 5 and 1/2 feet in October 1988 on two sides and upto 8 feet on the rear side apprehending forcible occupation of the suit land by Dr. Rakesh Verma. He also constructed a room in the said plot and an iron gate was also affixed. On 05.08.1988, Dr. Rakesh Verma filed false complaints against Sh. V. S. Bhagat alleging that the possession of the suit land has been surrendered to him by Sh. V. S. Bhagat. Police came to the spot and found Sh. V. S. Bhagat in possession and no action was taken. Dr. Rakesh Verma again tried to take forcible possession of the Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 33/109 suit land on 05.03.1989 and 12.03.1989 which was duly reported to the police. On 13.03.1989, Dr. Rakesh Verma filed a suit seeking specific performance of an agreement to sell dated 27.12.1987 and obtained an exparte order dated 16.03.1989 and temporary injunction restraining Sh. V. S. Bhagat from dispossessing Dr Rakesh Verma from the suit land on false representations. Thereafter, he took forcible possession of suit land on 18.03.1989 with the help of his brother and other bad elements. Since then, Dr. Rakesh Verma is in wrongful, illegal and unauthorized possession of the suit land. Hence, Sh. V. S. Bhagat filed the suit seeking possession of the suit land and mesne profits @ Rs. 5,000/ per month.
91. The suit was objected to by Dr. Rakesh Verma on the grounds of res judicata, constructive res judicata and being barred under Section 53A of Transfer of Property Act. The suit was challenged alleging the oral agreement to sell between the parties dated 27.12.1988, its part performance by making a part payment as well as on the ground that pursuant to oral agreement to sell, the physical possession of suit land had already been transferred to Dr. Rakesh Verma on 02.03.1988.
92. Following issues were framed in the said suit on 27.08.1999:
1. Whether the plaintiff has no locus standi to bring forward the present suit as alleged in para 1 of the written statement (Preliminary Objections)?
2. (a) Whether the suit is barred by the principles of res judi cata and constructive res judi cata as alleged in para 2 of the written statement (Preliminary objections) ?
(b) Whether the suit is liable to be stayed in view of the pendency of the previously instituted suit no. 744/89 in between the parties as Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 34/109 alleged in para 2 of the written statement (Preliminary Objections) ?
3. Whether the present suit is liable to be stayed for the reasons stated in para 3 of the written statement (Preliminary objections)?
4. Whether the suit is barred by Section 53A of the Transfer of Property Act as alleged in para no. 4 of written statement (Preliminary objections)?
5. (a) Whether the defendant has been put in physical and actual possession of the plot in suit since 2 nd March 1988 in part performance of an agreement to sell in between them and the defendant has been continuously and uninterruptedly in possession thereof?
(b) If so, whether the original title of the plaintiff has come to an end and legally transferred in favour of the defendant as alleged in para 1 of the written statement (Reply on Merits)?
6. Whether the defendant has raised construction on the plot in suit and paid a sum of Rs. 5, 80,000/ to the defendant as alleged in para no. 15 of the written statement (Reply on Merits)? If so, its effect?
7. Whether the plaintiff is entitled to recover possession over the suit property from the defendant?
8. Whether the plaintiff is entitled to recover damages? If so, to what amount?
9. Whether the defendant has always been ready and willing to perform his part of the contract and to pay the balance sale consideration of Rs. 1,62,500/?
10. Relief, if any.
93. Despite repeated opportunities, Sh. V. S. Bhagat failed to Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 35/109 lead evidence in support of his case and the suit was decided vide order and judgment dated 26.08.2013 (certified copy of which Ex.PW1/48 in Dr Rakesh Verma's case). In the absence of any evidence by the plaintiff/Shri V S Bhagat all the issues were decided against the Sh. V. S. Bhagat/plaintiff and in favour of the Dr. Rakesh Verma/defendant.
94. The relevant paragraphs of the judgment dated 26.08.2013 (Ex.PW1/48 in Dr Rakesh Verma's case) are reproduced herein under for the sake of clarity: "10. All these issues are taken up together as they can be disposed off together. It is settled principle of law that the burden of proving his case always rests on the plaintiff and never shifts and the case of the plaintiff must stand on its own legs. In the present case, the plaintiff failed to lead any evidence despite more than sufficient opportunities being given. In the absence of any evidence being adduced by the plaintiff, the plaintiff has failed to prove his case. Accordingly, the issues are decided against the plaintiff and in favour of the defendant.
11. The suit of the plaintiff is accordingly, dismissed. No order as to costs. Decree sheet be prepared accordingly".
95. It is argued by Ld. Counsel for Dr. Rakesh Verma that since the suit for possession bearing CS No. 766/2012 filed by Sh. V. S. Bhagat against Dr. Rakesh Verma has been dismissed vide judgment and decree dated 26.08.2013, all the issues between the parties and the parties claiming through them which were directly and substantially in issue and have been finally decided have become res judicata and no new findings on the said issues can be given in view of the provision as contained in Section 11 CPC under any circumstances. This is more so Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 36/109 as order dated 26.08.2013 (Ex.PW1/48) in Dr Rakesh Verma's case has not been challenged by either of the parties and has attained finality. It is stated that there are specific issues framed in the said suit regarding the defendant being in physical and actual possession of suit land since 02.03.1998 in part performance of agreement to sell between Sh. V. S. Bhagat and Dr. Rakesh Verma. There was also a specific issue to the effect if original title of Sh. V. S. Bhagat had come to an end and legally transferred in favour of Dr. Rakesh Verma. Again, there is specific issue to the effect if Dr. Rakesh Verma had raised construction on suit land and paid Rs. 5,80,000/ to Sh. V. S. Bhagat and if Dr. Rakesh Verma has always been ready and willing to perform his part of the contract and to pay the balance sale consideration of Rs. 1,62,500/. All these issues have been duly considered by the competent court and decided in favour of Dr. Rakesh Verma and against Sh. V. S. Bhagat. The findings on these issues have attained finality and cannot be reagitated in the present suit. The findings are also binding on Shri Suresh Mansharamani as he is claiming through Shri V S Bhagat.
96. Ld. counsel for Dr. Rakesh Verma has relied upon the following decisions of the Superior Courts in support of his arguments:
i). Navin Khilnani Vs. Mashreq Bank Psc. 2008 (146) DLT (DB) 134.
ii). Satyendra Kumar & Ors. Vs. Raj Nath Dubey & Ors. 2016 AIR (SC) 2231.
iii). Rishabh Chand Jain & Anr. Vs. Ginesh Chandra Jain 2016 AIR (SC)2143.
97. Attention of the court has also been drawn to the provision of res judicata as contained in Section 11 CPC.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 37/109
98. Per contra, it is submitted on behalf of Sh. Suresh Mansharamani and Sh. V. S. Bhagat that the judgment dated 26.08.2013 is a judgment in default having been passeddue to the non leading of evidence by the plaintiff of the said suit i. e. Sh.V. S. Bhagat. Neither any evidence was led by either of parties in the said suit nor the matter can be said to be have been heard and finally decided by the said court. Accordingly, the principle of res judicata is not applicable in the present case.
99. It is also argued on behalf of Sh. Suresh Mansharamani that in any case, he was never a party to the suit for possession filed by Sh. V. S. Bhagat against Sh. Suresh Mansharamani and accordingly, the decision in the said case, cannot, in any way, bind Sh. Suresh Mansharamani or said to decide his rights in these two suits.
100. I have heard the submissions in this regard and carefully perused the record and the citations relied upon by the parties.
101. Section 11 CPC deals with the principle of res judicata, the same is reproduced herein under for the sake of clarity: "11. Res judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by the Court.
Explanation I The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 38/109 ...
Explanation IIIThe matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IVAny matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
102. Res judicata, by its very words, means a matter on which the court has exercised its judicial mind and has after arguments and consideration come to a decision on a contested matter. This section requires that there should be a final decision. The expression "heard and finally" decided used in Section 11 is the bone of contention in the present matter. The argument of Ld. Counsel for Dr. Rakesh Verma is that by virtue of judgment dated 26.08.2013 (Ex.PW1/48 in Dr. Rakesh Verma's case, the issues between Dr. Rakesh Verma and Sh. V. S. Bhagat have been heard and finally decided. Whereas , the arguments of Ld. Counsels for Sh. V. S. Bhagat and Sh. Suresh Mansharamani are that the judgment dated 26.08.2013 (Ex.PW1/48 in Rakesh Verma's case) is a judgment by default on the failure of Sh. V. S. Bhagat to produce any evidence to support his case. No evidence was led by either of the parties in the said suit as is clear from judgment dated 26.08.2013 (Ex.PW1/48 in Dr Rakesh Verma's case).
103. To my mind, the expression "heard and finally decided"
in Section 11 means a matter on which the court had exercised its judicial mind and has after arguments and consideration come to a decision. If a dismissal of a prior suit was on the ground affecting the Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 39/109 maintainability of the same; any finding in the judgment, adverse to the defendant would not operate as res judicata in the subsequent suit. But if the dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause, a decision made in the suit on a vital issue involved therein would operate a res judicata in a subsequent suit between the same parties. It is a settled law that observation made by the court when there was no pleading nor evidence, could not operate as res judicata (Reliance in this regard is placed upon the decision of the Apex Court in Ramesh Chandra Vs. Shiv Charan Dass, AIR 1991 SC (262).
104. The mere fact that a matter directly and substantially in issue in a suit was directly and substantially in issue in a former suit, is not sufficient to made it res judicata; it is also essential that it should have been heard and finally decided. It does not mean that there should be an actual finding on the issue in question. It is sufficient if a decree necessarily involves a finding on the issue. Unless there is such a finding, the question of res judicata does not arise. An assumption or inference that a finding is involved in the judgment or a decree is not permissible. In other words, what operates as res judicata is the ratio or what is fundamental to the decision.
105. Where a court records findings on several issues, all of them will be res judicata if the judgment is based on all of them, but it must appear from the judgment that the findings are necessary for just decision. Reliance in this regard is placed upon Laxman ShivashankarVs. Saraswati AIR 1961 (BOM) 218 wherein it is held as under: "...XXXX Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 40/109
5.A finding can operate as res judicata only if it has resulted in a particular decree or order. Where a decree or order is based on only one finding, the finding would have the force of res judicata. Similarly, a finding cannot be res judicata if it has not gone into the making of a decree or order, i.e. if the decree or order was passed in spite of the finding, as where a finding was recorded against a party who succeeded or in favour of a party who failed, on other issues.
XXXXX
13. Where a previous decision is supported on two or more findings all the findings will not necessarily operate as res judicata. Where the previous suit was dismissed on a technical ground which made the suit untenable, findings recorded on the merits would normally be obiter dicta. Similarly, if the Court which decided the prior suit has itself based the decision on only some of the findings recorded by it, or if under the circumstances of the case its decision can be fairly attributed to only some of the findings so recorded, the other findings would not operate as res judicata. In other cases, where the previous decision is based upon, and is attributable to several findings, all the findings will have the force of res judicata."
106. It is also held by Madras High Court in Bathla Pitchireddi and others vs Yallapeddi Bharatasastri 1924 Madras 893(2) that:
"For a finding to become res judicata, it is necessary that the point should have been heard and finally determined. When a Court merely for the purpose of preventing a remand records a conclusion on an issue, not necessary for the decision, we cannot hold that it has finally determined the question. This point was decided by the Madras High Court in Devorakonda Narasamma vs D Kanaya (1) Their Lordships held:
"the words in S.13 of the Code of Civil Procedure has been heard and finally decided by such Court do not apply for an opinion, expressed in the judgment on other issues, not Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 41/109 material for the purpose of the decree, though properly determined under S. 204 of the Code of Civil Procedure, by the Court of first instance."
That is if the decree is not based upon a particular finding, that finding cannot be treated as res judicata. We therefore agree with the Subordinate Judge in thinking that there is no res judicdata in this case, and dismiss the appeal with costs."
107. It is also a settled law that even an exparte decree operates as res judicata. It has also been held in Satyendra Kumar's Case (Supra) that if a determination was by a court of competent jurisdiction, the Bar of Section 11 CPC will remain operative even if the judgment is found to be erroneous and if the parties failed to get rid of an erroneous judgment, they as well as persons claiming through them must remain bound by it.
108. The doctrine of res judicata is based on the interest of public at large that finality should attach to the binding decisions pronounced by a court of competent jurisdiction and the individuals should not be vexed twice over the same kind of litigation. The principle of res judicata applies only when the lis was inter parties and had attained a finality in respect of the issues involved. It will however, have no application in a case where the judgment is not a speaking one. Effect of nonfiling of appeal against the judgment or decree is that it becomes final. This finality can be taken away only in accordance with law and not otherwise.
109. Perusal of the judgment dated 26.08.2013 (Ex.PW1/48 in Dr Rakesh Verma's case) clearly shows that the same has been passed owing to plaintiff's failure to adduce evidence. In the possession suit filed by Sh. V. S. Bhagat, various issues were framed by the court, onus Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 42/109 of some which, was on the plaintiff/Sh. V. S. Bhagat and the onus of the remaining issues was on the defendant/Dr. Rakesh Verma. The onus of proving the issues framed on the basis of pleadings of Dr. Rakesh Verma that are issues no. 1 to 6 and 9 was clearly on Dr. Rakesh Verma. Admittedly, no evidence was adduced by Dr. Rakesh Verma in the said suit. The suit was decided merely because Sh. V. S. Bhagat had failed to support his case by leading evidence. In these circumstances, it cannot be said that the said issues pertaining to the case of Dr Rakesh Verma i.e. issue no. 1 to 6 & 9 have been heard and finally decided by the court. Perusal of the judgment dated 26.08.2013 (Ex.PW1/48 in Dr. Rakesh Verma's case) clearly shows that although, all the issues have been decided in favour of Dr. Rakesh Verma and against Sh. V. S. Bhagat, however, from the judgment, it is amply clear that the findings on all the issues was not necessary for arriving at the decision reflected vide judgment dated 26.08.2013.
110. In these circumstances, I am of the considered opinion that the judgment dated 26.08.2013 (Ex.PW1/48) does not operate as res judicata on the present matters and the present matters have to be decided on the basis of evidence led herein.
II. Findings on proof and nature of document dated 02.03.1988 relied upon by Dr. Rakesh Verma.
111. In his case, Dr. Rakesh Verma has relied upon one document dated 02.03.1988 which is Ex.PW1/9 (in Dr Rakesh Verma's case). Dr. Rakesh Verma filed his suit on 13.03.1989. The initial plaint dated 13.03.1989 finds no mention of this document dated 02.03.1988. WS to the original plaint was filed by Sh. V. S. Bhagat on 20.04.1989 and is completely silent on this document dated 02.03.1988. Since, this Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 43/109 document was not put to the defendant along with the original plaint, it was not rebutted or admitted by Sh. V. S. Bhagat in his initial written statement. Thereafter, replication was filed by Dr Rakesh Verma on 08.03.1990 wherein there is a mention on page 4 that " the payment of Rs. 1,00,000/ in March 1988 was made in two installments, Rs. 50,000/ paid on 01.03, 1988 and Rs. 50,000/ was on 02.03.1988. The handing over of the possession was duly recorded in writing. It is relevant to note that the defendant admits that plaintiff is in possession of the property which is borne out by various documents". This was the only mention of the date of 02.03.1988 in the replication without categorical statement regarding execution of document dated 02.03.1988. The document dated 02.03.1988 was however brought on court record alongwith an index of additional documents filed by Dr. Rakesh Verma which is dated 23.04.1990.
112. After impleadment of defendant no.2/Shri Suresh Mansharamani in Dr Rakesh Verma's case an amended plaint was filed by Dr Rakesh Verma in his suit which is dated 27.01.1992. The document dated 02.03.1988 is referred to in the amended plaint in paragraph no. 6(c) which reads as under: "6 (c) : The plaintiff submits that after the agreement between him and defendant no.1 pursuant to which and in part performance whereof he was put in possession of the suit property on 02.03.1988 a document acknowledging the handing over of possession was executed by defendant no.1 and the plaintiff."
113. In his written statement to the amended plaint, Sh. V. S. Bhagat responded in the following words: "6 (c). Para 6 (c) of the plaint is wrong and is denied. It is Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 44/109 wrong and is denied that the plaintiff was ever put into possession of the plot in question in part performance of the oral agreement to sell or otherwise. It is absolutely false that this defendant ever acknowledged that the possession of the plot was handed over by the defendant to the plaintiff at any time."
114. Defendant no. 2/Sh. Suresh Mansharamani did not file his written statement and accordingly, there is no rebuttal to document dated 02.03.1988 on behalf of Sh. Suresh Mansharamani in the pleadings of Dr. Rakesh Verma's case.
115. These are the complete pleadings on record qua the document dated 02.03.1988 (Ex.PW1/9 in the suit filed by Dr Rakesh Verma).
116. This document was put to defendant no. 1/Sh. Vidya Sagar Bhagat during admission/denial of documents conducted on 28.11.1994 which he had specifically denied.
117. Let us now consider the form/manner of preparation of this document dated 02.03.1988 (Ex.PW1/9 in Dr Rakesh Verma's case). This document, in original, is on record, perusal of which shows that it is prepared only on a strip of paper which is not even half of an A4 size sheet. The contents of the document are being reproduced herein under for the sake of clarity wherein the portions mentioned in hand are underlined while those typed are not underlined.
" 020388 1988 Handed over possession of D15, Mansarovar Garden to Dr. Rakesh Verma. Balance Rs. 4,42,500/ Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 45/109 to be paid out of total sale price Rs.7,42,500/.
Vidya Sagar Bhagat Dr. Rakesh Verma
Party No. 1 Party No.2
Witnesses
1. M. L. Gupta
2388
2. Vijay Mohan (Vidya Sagar Bhagat) "
2388
118. In this document, the signatures of Shri Vidya Sagar Bhagat and Dr. Rakesh Verma are affixed over the hand written words, Party no. 1 and Party no. 2 while there are no signatures on the printed name of the Sh. Vidya Sagar Bhagat.
119. Dr. Rakesh Verma who is relying on the document had addressed two fold arguments qua the same. First is regarding the proof of execution of the document while the second is regarding the nature of the document. I shall be dealing with these two arguments/aspects separately.
120. Regarding the execution of document dated 02.03.1988 (Ex.PW1/9 in Rakesh Verma's case), it is argued on behalf of Dr. Rakesh Verma that this document has not been specifically denied by Sh. V. S. Bhagat in his pleadings nor the same is challenged during the evidence of the parties. Dr. Rakesh Verma, on the other hand, has specifically proved this document by relying upon it in his affidavit in evidence filed not only in the present suit but also suit filed by Sh. Suresh Mansharamani. Dr. Rakesh Verma/PW1 in the present suit has Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 46/109 specifically deposed in para no. 6 of his evidence affidavit(Ex.PW1/A) on page no. 4 that the original possession handing over document dated 02.03.1988 which also reiterates the main terms of the agreement was duly signed by the defendant Sh. Vidya Sagar Bhagat in his presence and in the presence of attesting witnesses. Similar is the deposition of Dr. Rakesh Verma in para no. 6 on page no. 3 of his evidence affidavit Ex.D2W1/A filed in case bearing no. 609188/2016 (Old No. 581/1989) titled Suresh Mansharamani Vs. Dr. Vidya Sagar Bhagat & Anr. Dr. Rakesh Verma has also examined Sh. Ashwini Kumar Gupta as PW7, being the son of the attesting witness to the document Ex.PW1/9 namely Sh. M. L. Gupta who had duly identified the signatures of his father as an attesting witness on the document Ex.PW1/9. Per contra, the evidence led on behalf of Sh. V. S. Bhagat by his son/LR Maj. Gen. M. P. Bhagat (Retired)/DW1 by way of affidavit Ex.DW1/A is completely silent on this document Ex.PW1/9. Accordingly, it is submitted that the execution of the document dated 02.03.1988 (Ex.PW1/9) has been duly proved on record. It is also argued that merely because there are some hand written portions on the document (Ex.PW1/9), it is not sufficient to hold that it is a manipulated document. In this case, Sh. V. S. Bhagat who was a very cautious man had deliberately signed immediately after the printed text of the document (Ex.PW1/9) in place of his typed name in order to ensure that nothing was inserted between the texts after his signatures.
121. This document is however, disputed by the counsels for Sh. V. S. Bhagat as well as Sh. Suresh Mansharamani. As far as Sh. Suresh Mansharamani is concerned, he is neither a party to the document dated 02.03.1988 (Ex.PW1/9) nor there are any pleadings of Sh. Suresh Mansharamani qua this document. Even during the admission/denial of documents conducted on 28.11.1994, he had Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 47/109 neither admitted nor denied the document stating that he was not a party to it and it does not pertain to him. Accordingly, his arguments on this document are practically of no consequence and accordingly, are not being discussed herein. Even otherwise, Ld. Counsel for Sh. V. S. Bhagat has argued on similar lines.
122. On behalf of Sh. V. S. Bhagat, it is submitted that the document dated 02.03.1988 (Ex.PW1/9) has been specifically and categorically denied by Sh. V. S. Bhagat at the time of admission denial of documents conduced on 28.11.1994. Sh. V. S. Bhagat has also denied the execution of any such document in his written statement to the amended plaint. Prior to that there was no occasion for Sh. V. S. Bhagat to deny this document as it was neither relied upon by Dr. Rakesh Verma nor placed on court record along with his original plaint. This document dated 02.03.1988 (Ex.PW1/9) did not see the light of the day till 23.04.1990 i. e. when Index of additional documents was filed by Dr. Rakesh Verma. Dr.Rakesh Verma has also miserably failed to explain as to why this document pertaining to the year 1988 was not relied upon by him at the time of filing of the suit on 13.03.1989. It is further submitted that the document dated 02.03.1988 (Ex.PW1/9) in itself is prepared in a very cryptic matter as the name of Sh. Vidya Sagar Bhagat is typed at one place while his signature is appended at other place. The document is also prepared on a piece of paper and not even a complete sheet of paper giving an indication of manipulation of the same. The evidence of PW7, being the son of Sh. M. L. Gupta, is again of no support to the proof of this document as he has merely identified the signatures of Sh. M. L. Gupta and has categorically testified that he has no knowledge about the execution of this document. Even otherwise, the document (Ex.PW1/9) merely mentions the names of the witnesses without giving their parentage and addresses. PW7 did not file any Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 48/109 relationship proof with Sh. M. L. Gupta. Accordingly, there is nothing on record to connect PW7 with the alleged witness to the document Ex.PW1/9 namely Sh. M. L. Gupta. In these circumstances, the material on record is highly insufficient to give a finding that the execution of the document (Ex.PW1/9) has been duly proved on record.
123. I have heard the submissions made and carefully perused the record. In the present matter, both the contesting parties that are Dr. Rakesh Verma and Sh. V. S. Bhagat are well educated persons having good standing professionally. While Dr. Rakesh Verma is a reputed Cardiologist, Sh. V. S. Bhagat was a retired Army Officer. The contentions of the parties on this document (Ex.PW1/9) have to be considered in the light of their educational and professional background. While evaluating the pleadings and evidence of the parties on the document dated 02.03.1988 (Ex.PW1/9 in Dr. Rakesh Verma's case), court has to be mindful of the fact that this is not a case where some illiterate persons had made some documents which are under scrutiny. Rather, both the parties to the documents are well read persons.
124. Firstly, I do not understand the form of creation of document Ex.PW1/9. As observed above, the document is prepared on a piece of paper which is not even half of an A4 sheet. The other documents relied upon by the parties are type written letters prepared on full scale paper sent through registered posts. However, this document on a small piece of paper is an only exception. It is not the case of Dr. Rakesh Verma that the document (Ex.PW1/9) was prepared in a hurry or at a time when not even one full sheet of paper was available with the parties. In fact, Dr. Rakesh Verma has not even pleaded either in his original plaint or the amended plaint regarding the Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 49/109 circumstances which led to the execution of this document. There are no pleadings of Dr. Rakesh Verma as regards the place where this document was typed or executed. There is no pleadings or evidence of Dr. Rakesh Verma as to the persons in whose presence the document (Ex.PW1/9 in Dr. Rakesh Verma's case) was executed. He has not explained who were these witnesses Sh. M. L. Gupta and Sh. Vijay Mohan who had witnessed the document (Ex.PW1/9 in Dr. Rakesh Verma's case) and in what circumstances, they were present at the time of execution of this document. The document itself gives a very cryptic look as a small portion has been type written at the top most corner on a piece of paper while the name of Sh. V. S. Bhagat is typed at the bottom with quite a lot of space in between. Interestingly, the name of Dr. Rakesh Verma is not in the type written form on the document (Ex.PW1/9) although he has signed the documents as party no. 2 written in hand. The alleged signatures of Sh. V. S. Bhagat are also placed on the document at such a place in between leaving no space for the signatures of party no. 2 which appears to have been adjusted in the small space left towards the right side of the document. The manner in which the document is prepared is sufficient to create a doubt on the authenticity of document (Ex.PW1/9). Seen from the eyes of a prudent person, the document (Ex.PW1/9) clearly appears to be a manipulated document which has not been prepared with the consent of both the parties. My findings on this aspect are fortified by specific denial of this document by Sh. Vidya Sagar Bhagat during admission denial conducted on 28.11.1994. Unfortunately, Sh. Vidya Sagar Bhagat could not examine himself as a witness in the present suit as he had expired which resulted in the argument on behalf of Dr. Rakesh Verma that this document (Ex.PW1/9) has not been rebutted in the evidence led on behalf of Sh. Vidya Sagar Bhagat. However, mere failure of rebuttal of this document in evidence led on behalf of Sh. Vidya Sagar Bhagat by Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 50/109 his son/LR is not sufficient to ignore the specific denial of the same by him during his lifetime.
125. It is also interesting to note that Dr. Rakesh Verma neither relied upon the document (Ex.PW1/9)in his original plaint nor filed the same on record at the time of filing of the suit. When specifically questioned during the course of arguments as to why this document was not relied upon in the original plaint, it was submitted on behalf of Dr. Rakesh Verma that as per advice of earlier counsel, they had not filed document on record hoping that defendant/Sh. V. S. Bhagat would admit their case and there would be no requirement for filing of the same. However, when Sh. V. S. Bhagat controverted the case of Dr. Rakesh Verma in his written statement filed to the original plaint, Dr. Rakesh Verma relied upon the document while filing his replication.
126. I have already reproduced the pleadings of the parties qua this document. Even in the replication filed by the defendant, against the WS to the original plaint, Dr. Rakesh Verma merely stated that the handing over of the possession was duly recorded in writing, however, no details of document dated 02.03.1988 (Ex.PW1/9) was given. It is not even mentioned in the replication as to on which date the handing over of the possession was duly recorded in writing. It is also noteworthy that the document dated 02.03.1988 (Ex.PW1/9) was not filed on record even with the replication which was filed on 05.02.1990 but after almost more than two months of filing of the replication along with index of additional documents dated 23.04.1990. The explanation put forth by Dr. Rakesh Verma that the document dated 02.03.1988 (Ex.PW1/9) was not filed along with the initial plaint in the hope that Sh. V. S. Bhagat would not contradict his case is highly unbelievable and does not inspire the confidence of the court. It is obvious that Dr. Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 51/109 Rakesh Verma came before the court only after dispute had arisen between him and Sh. V. S. Bhagat. In these circumstances, there is no clarity that on what basis Dr Rakesh Verms was hoping that Shri V S Bhagat would not contradict his claim and he would not be required to file the document dated 02.03.1988 (Ex.pW1/9 in Dr. Rakesh Verma's case).
127. It is also noteworthy that when Dr Rakesh Verma examined himself as PW1 in the case filed by him, he stated in his affidavit that document Ex.PW1/9 was prepared at the spot at the time of handing over of the possession of the suit land to him by Shri V S Bhagat on 02.03.1988. Although, this deposition of Dr Rakesh Verma is beyond his pleadings still if we consider it to be a correct fact, it is again bereft of necessary details. Admittedly, the suit land was a vacant plot on 02.03.1988. Then how a type written document was prepared at the spot on 02.03.1988 remains unexplained. This is sufficient to doubt the testimony of Dr Rakesh Verma on this aspect which is nothing but a desperate attempt by him to improve his case.
128. In view of the reasons given above, I have no hesitation in holding that the execution of the document dated 02.03.1988 (Ex.PW1/9 in Dr. Rakesh Verma' case) has not been duly proved on record and accordingly, it cannot be held to bind the parties to it.
129. Having held that the due execution of document dated Ex.PW1/9 has not been proved on record, there is no requirement for discussing the nature of the said document. However, since arguments have been addressed at length on the nature of the document I deem it appropriate to give my findings on the same as well.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 52/109
130. It is argued on behalf of Dr Rakesh Verma who has put forth the document Ex.PW1/9 and relied upon it that as per his case an oral agreement to sell was executed between him and Shri VS Bhagat qua the suit land on 27.12.1987. Pursuant to the said agreement certain payments were made by Dr Rakesh Verma to Shri V S Bhagat. After receiving part payment Shri VS Bhagat had handed over the possession of the suit land to Dr Rakesh Verma on 02.03.1988 and executed document Ex.PW1/9. As per Dr Rakesh Verma document Ex.PW1/9 is not only a possession handing over document but also receipt of part sale consideration of Rs. 3 lacs given by Dr Rakesh Verma to Shri V S Bhagat as well as a document reducing the oral agreement to sell into writing. Document dated 02.03.1988 (Ex.PW1/9) categorically records the address of the property under sale i.e. D15, Mansarover Garden; total sale consideration of Rs. 7,42,500/; the payment of Rs. 3 lacs and balance remaining of Rs. 4,42,500/; the name of the seller Vidya Sagar Bhagat as party no.1 and the name of the buyer Dr Rakesh Verma as party no.2. It also records the handing over of the possession of the suit land by Shri VS Bhagat to Dr Rakesh Verma on 02.03.1988. Accordingly, all the essential ingredients of an agreement to sell can be fairly taken out from the document dated 02.03.1988 (Ex.PW1/9). In support of his arguments ld.counsel for Dr Rakesh Verma has relied upon the decision of the Apex Court in Alka Bose vs Parmatma Devi and ors. 2009 AIR (SC) 1527, wherein it has been held that mere form or manner of drafting of an agreement would not be a decisive factor, real intention and conduct of the parties in proceeding in terms of the same would decide whether a concluded contract came into existence or not.
131. Per contra, it is submitted on behalf of Shri V S Bhagat Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 53/109 that the document dated 02.03.1988 (Ex.PW1/9) is in the form of a receipt as defined in Section 2(23) of the Indian Stamp Act, 1899 as it includes a memorandum as regards the acknowledgment of receipt of money i.e. Rs. 3 lacs as per the arguments of Ld.counsel for Dr Rakesh Verma. It is submitted that such like receipts are required to bear revenue stamp as per Schedule 1 to the Indian Stamp Act, 1899. However, no revenue stamp has been affixed on document dated 02.03.1988 (Ex.PW1/9). Accordingly it is not a valid document. It is further stated that the document dated 02.03.1988 (Ex.PW1/9) does not record the terms and conditions of the alleged agreement to sell between the parties. Although it records the sale consideration to be 7,42,500/. However, there is no mention as to in respect of what transaction the said sale price has been fixed. Shri Vidya Sagar Bhagat and Dr Rakesh Verma have been mentioned as party no.1 and party no.2 on document dated 02.03.1988 (Ex.PW1/9). However, there is no clarity as to what are the rights and liabilities of party no.1 to the agreement and what are rights and liabilities of party no.2 to the agreement. In these circumstances, the document dated 02.03.1988 (Ex.PW1/9) cannot be said to be a memorandum in writing of the alleged oral agreement to sell between the parties executed on 27.12.1987.
132. Before giving a finding on the nature of the document dated 02.03.1988 (Ex.PW1/9), it is important to consider as to how the purporter of the document Dr Rakesh Verma has referred to it in his pleadings and evidence. As discussed above, this document finds no mention in the original plaint filed by Dr Rakesh Verma. In the replication to the original written statement there is no clear mention of this document but there is a hint about a document stating that the handing over of the possession was duly recorded in writing. In his Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 54/109 amended plaint, Dr Rakesh Verma referred to the document stating that a document acknowledging the handing over of the possession was executed by Shri V S Bhagat in his favour. While giving his evidence, Dr Rakesh Verma/PW1 deposed that the actual, physical vacant and peaceful possession of the suit land was handed over to him by Shri Vidya Sagar Bhagat on the site on 02.03.1988 and document confirming the delivery of possession by Sh. Vidya Sagar Bhagat to him and also confirming the total agreed sale consideration of Rs. 7,42,500/ and the remaining balance to be paid i.e. Rs. 4,42,500/ was got prepared by Shri Vidya Sagar Bhagat on his own and handed over to him at the time of handing over possession of the suit land. He relied on this document calling it the original possession handing over document dated 02.03.1988 which also records the main terms of the agreement as Ex.PW1/9.
133. Thus, clearly Dr Rakesh Verma substantially improved his case qua the document dated 02.03.1988 (Ex.PW1/9). While initially in the year 1989, this document was not relied upon. Then, in the year 1990 and 1992, it was referred to as a document recording handing over of possession. However, in the year 2013, when the evidence affidavit was filed he referred to this document as one recording terms and condition of oral agreement to sell between the parties.
134. A bare perusal of document dated 02.03.1988 (Ex.PW1/9) by a layman or a prudent person of reasonable understanding would give an impression that the same is a document showing handing over of the possession of the suit land and nothing more than that as it starts with words " Handing over possession of
-". This document also records that the balance sale consideration is Rs. 4,42,500/ to be paid out of the total sale price of Rs. 7,42,500/.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 55/109 However, it does not mention as to when and by what mode the payment of Rs. 3 lacs has been made by one party to the other. It also does not record in clear terms as to in respect of what this sale price has been fixed. The terms and conditions of the alleged agreement to sell i.e. the time by which the agreement has to be acted upon and the payment has to be made are also not mentioned in document dated 02.03.1988 (Ex.PW1/9). In these circumstances, in my considered opinion even if document dated 02.03.1988 (Ex.PW1/9) is considered as duly executed it can, at the most, evidence the handing over of the possession of the suit land by Shri Vidya Sagar Bhagat to Dr Rakesh Verma and nothing more than that.
135. In view of the over all evidence on record and the reasons given above, I have no hesitation in holding that Dr Rakesh Verma, purporter of document dated 02.03.1988 (Ex.PW1/9 in Dr. Rakesh Verma's case) has miserably failed to prove the due execution of the same and accordingly, the alleged second party to the document Shri V S Bhagat cannot be bound by it. It is also held that even if document dated 02.03.1988 (Ex.PW1/9 in Dr. Rakesh Verma's case) is considered as duly executed, it can, at the most, evidence the handing over of the possession of the suit land by Shri Vidya Sagar Bhagat to Dr Rakesh Verma and nothing more than that.
III. Findings on the fact if there was an agreement to sell, the suit land by Sh. V. S. Bhagat to Dr. Rakesh Verma, if so, what was the date of the agreement and what were the terms and condition thereof.
136. The case of Dr. Rakesh Verma is that an oral agreement to Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 56/109 sell was entered into between him and Sh. V. S. Bhagat in December 1987 for a total sale consideration of Rs. 7,42,500/. It is also his case that he had made payments of part consideration total amounting to Rs. 5,80,000/ before the filing of the suit for specific performance by him. He is seeking specific performance of this agreement to sell dated 27.12.1987. His pleadings qua this agreement to sell are important and relevant portions are reproduced herein under: "SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT TO SELL DATED 27.12.1987 XXXX
3) That the defendant on or about December 1987 agreed to sell the above mentioned land in issue to the plaintiff for a total consideration of Rs. 7,42,500/.... the plaintiff paid a sum of Rs. 1.00 lakh on 27.12.1987 as part payment, Rs. 1.00 lakh in two installments in February 1988, Rs. 1.00 lakh in two installments in March 1988 and Rs. 1.80 lakh in April 1988. the plaintiff also paid a sum of Rs. 1.00 lakh to the defendant by cheque no. 100792 dated 07.07.1988 for Rs. 5,000/ , Rs. 50,000/ by cheque no. 100793 and Rs.100794 on 15.07.1988 as further part payments of sale proceeds on a land in issue and receipt for the said payment was signed and executed by the defendant and given to the plaintiff's brother Sh. Sudhir who has signed the same as a witness. A copy of the said receipt dated 15.07.1988 is hereby annexed and filed as annexure A. xxxxx
7). That the cause of action arose to the plaintiff against the defendant in December 1987 when the defendant agreed to sell the land in issue to the plaintiff and received payments towards the sale consideration thereafter.
Xxxxx Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 57/109
10). The plaintiff, therefore, most humbly prays that this Hon' ble Court may be pleased to
a). Grant a decree of specific performance of agreement between the parties whereby the defendant agreed to sell the land measuring 297 sq. yds. at plot no. D15, Mansarovar Garden, New Delhi to the plaintiff....".
138. This pleading of Dr. Rakesh Verma qua the oral agreement to sell dated 27.12.1987 is same in his original plaint dated 13.03.1989 as well as the amended plaint dated 27.01.1992.
139. Similar pleadings have been made by Dr. Rakesh Verma in his written statement dated 27.01.1992 filed in the suit for specific performance filed by Sh. Suresh Mansharamani wherein he was impleaded as defendant no. 2. The relevant portion is reproduced herein under for the sake of clarity: " Preliminary objection no. 3 on page 3.
3. That the suit of the plaintiff is fraudulent and collusive and has been filed in collusion with defendant no. 1 with a view to aid the defendant no. 1 to escape from his liabilities under the prior agreement to sell between the defendant no. 1 and the answering defendant which was entered into in December 1987 whereby the defendant no. 1 agreed to convey the subject property to the answering defendant for a sale consideration of Rs. 7,42,500/ and thereafter, received a total amount of Rs. 5,80,000/.
Paragraph no. 1 on reply on merits on page 3 .........
By an oral agreement concluded in December 1987, the defendant no. 1 agreed to sell the subject property to the answering defendant for a total consideration of Rs. 7,42,500/ pursuant to the said agreement, the answering defendant paid the amount of Rs. 1.00 lakh in cash on 27.12.1987 and further payment of Rs.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 58/109 1.00 lakh in two installments in February 1988 and Rs. 1.00 lakh in two installments in March 1988. .....The answering defendant paid a further amount of Rs. 1.80 lakh in April 1988 to defendant no. 1 in cash in April 1988 making a total of Rs. 4,80,000/.
thereafter, the answring defendant paid a sum of Rs. 1.00 lakh to the defendant no. 1 in the following manner:
i). Cheque no. 100792 dated 07.07.1988 on Bank of Baroda for Rs. 5,000/ ,
ii) Cheque no. 100793 dated 15.07.1988 on Bank of Baroda Rs. 50,000/
iii) Cheque no. 100793 dated 15.07.1988 on Bank of Baroda Rs. 50,000/.
......
That in acknowledgement of the aforesaid cheque payment, defendant no. 1 issued a receipt acknowledging the same as part payment of the sale consideration of subject property".
140. Perusal of these pleadings of Dr. Rakesh Verma clearly shows that the same are vague and devoid of necessary and complete details. While in the title of the suit, Dr. Rakesh Verma has mentioned suit for specific performance of agreement to sell dated 27.12.1987, however, in the entire body of the plaint including the paragraph on cause of action as well as the prayer clause, this date is missing and it is only mentioned vaguely that it was somewhere in the month of December, 1987. In the prayer clause, even the said month and year have not been mentioned. This is not only in the plaint originally filed by Dr. Rakesh Verma in the year 1989 but also in the subsequent pleadings in the year 1992 i. e. his amended plaint in his suit and his written statement in the suit filed by Sh. Suresh Mansharamani. It is also important to note that these vague pleadings are continuing even after filing of the written statement by Sh. V. S. Bhagat to the original plaint wherein he categorically denied any oral agreement to sell between the parties in the month of December, 1987. Even, the Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 59/109 payment details are incomplete as no dates of cash payments have been mentioned.
141. Now, let us consider the stand of Sh. V. S. Bhagat on this averment of Dr. Rakesh Verma regarding oral agreement to sell dated 27.12.1987.
142. Sh. V. S. Bhagat filed his written statement to the original plaint filed by Dr. Rakesh Verma categorically denying any oral agreement to sell qua the suit land between the parties in December 1987 for a sale consideration of Rs. 7,42,500/ as alleged by Dr. Rakesh Verma. Sh. V. S. Bhagat has also specifically denied having received any payment by cash as alleged by Dr. Rakesh Verma. It is the case of Sh. V. S. Bhagat that he had entered into an oral agreement for sale of the suit land with Dr. Rakesh Verma for a total sale consideration Rs. 17,10,000/ and under that oral agreement, Dr. Rakesh Verma paid a total sum of Rs. 95,000/ to Sh. V. S. Bhagat by means of two cheques both dated 15.07.1988. In this regard, receipt dated 15.07.1988 was also executed which has already been relied upon by Dr. Rakesh Verma and admitted by Sh. V. S. Bhagat during admission denial of the documents. This receipt is Ex.P5 in Dr. Rakesh Verma's case. It is also the case of Sh. V. S. Bhagat that except for this payment of Rs. 95,000/ pursuant to the oral agreement to sell dated 15.07.1988, no further payment was made by Dr. Rakesh Verma. This stand of Sh. V. S. Bhagat is same in his WS to the amended plaint in Dr. Rakesh Verma's suit as well as in his written statement in Sh. Suresh Mansharamani's suit. This was also the stand taken by Sh. V. S. Bhagat in his suit for possession filed against Dr. Rakesh Verma bearing CS. No. 766/1992. He has also Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 60/109 explained the circumstances in which the oral agreement was executed between him and Dr. Rakesh Verma when Sh. Suresh Mansharamani had failed to honor his commitment under the agreement to sell dated 03.05.1988.
143. Except for his ocular testimony, Dr. Rakesh Verma has not led any other evidence to prove the oral agreement to sell with Sh. V. S. Bhagat allegedly entered into on 27.12.1988. He has also failed to bring on record any documentary evidence to show that the payments of alleged cash amounts were made by him to Sh. V. S. Bhagat in pursuance of the oral agreement to sell dated 27.12.1988. He himself is relying upon a receipt dated 15.07.1988 (Ex.P5 in Dr. Rakesh Verma's case) which categorically records receipt of Rs. 95,000/ as against Rs. 5,80,000/ alleged by Dr. Rakesh Verma. It is also interesting to know that the receipt (Ex.P5 in Dr. Rakesh Verma's case) does not mention the date of the oral agreement to sell between the parties for sale of the suit land. Accordingly, the said receipt Ex.(P5 in Dr. Rakesh Verma's case) is of no support to the contention of Dr. Rakesh Verma that it was issued qua the part payment received pursuant to oral agreement to sell dated 27.12.1987. This is more so as Shri Vidya Sagar Bhagat has categorically denied any such agreement to sell between the parties executed in the month of December 1987. It is also interesting to note that not only the pleadings of Dr Rakesh Verma i.e. the plaint dated 13.03.1989 and the amended plaint dated 27.01.1992 are devoid of necessary details regarding the oral agreement to sell between the parties in the month of December 1987 but even his affidavit in evidence dated 21.05.2013 simply mentions in para no. 6 that the agreement to sell the suit land for a sale consideration of Rs. 7,42,500/ was executed between him and Shri V S Bhagat in the month of December 1987. Very cleverly in his affidavit in evidence, Dr Rakesh Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 61/109 Verma had stated on page 2 & 3 paragraph no. 6 that after finalizing the terms of agreement to sell and entering into the said agreement to sell, a part payment of a sum of Rs. 1 lac was paid by him to Shri Vidya Sagar Bhagat in cash and the same was accepted and acknowledged by him on 27.12.1987 as per receipt. However, no such receipt has been filed on record by Dr Rakesh Verma to support his deposition to this effect. Also, no such receipt dated 27.12.1987 finds mention in his pleadings. This clearly points towards the falsity of his contentions.
144. Another line of argument on behalf of Dr Rakesh Verma is that the terms of oral agreement to sell dated 27.12.1987 were reduced into writing vide possession slip dated 02.03.1988 (Ex.PW1/9 in Dr Rakesh Verma's case). This argument has already been dealt with by me while discussing the evidence on this document in "II" above. Dr Rakesh Verma has not only failed to prove due execution of this document dated 02.03.1988 but also this document cannot be said to be a memorandum of the oral agreement to sell between the parties entered into in the month of December1987. This document has been reproduced hereinabove and it does not mention about existence of any prior agreement to sell between the parties executed in the month of December1987.
145. In addition to this, there are various communications between the parties which have been placed on record by Dr Rakesh Verma in his suit. Perusal of the communications written by Shri Vidya sagar Bhagat to Dr Rakesh Verma i.e. letter dated 26.08.1988 (MarkE), Letter dated 30.08.1988 (Ex.P6), Letter dated 09.09.1988 (Ex.P8) and letter dated 26.09.1988 (Ex.P7) clearly show that the stand of Shri V S Bhagat even prior to filing of the suit was that the oral agreement to sell between the parties was executed on 15.07.1988 for a sale Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 62/109 consideration of Rs. 17,10,000/. On the other hand in his own letters to Sh. V. S. Bhagat, that are letter dated 13.08.1988 (Ex.PW1/16), Letter dated 20.08.1988 (EX.PW1/29), Letter dated 27.08.1988 (Mark F), letter dated 22.09.1988 (Mark I & J) and letter dated 08.08.1988, Dr. Rakesh Verma has again mentioned vaguely about an agreement to sell between the parties in the month of December 1987 and part payment of Rs. 5,80,000/ without mentioning the specific date of agreement to sell or the specific dates on which the payment of part sale consideration was made to Sh. V. S. Bhagat. Thus, even his own documents relied upon by Dr. Rakesh Verma are of no consequence as they are equally vague as his pleadings.
146. In view of the above discussion and considering overall evidence on record, I have no hesitation in holding that Dr. Rakesh Verma has miserably failed to prove execution of any oral agreement to sell between him and Sh. V. S. Bhagat on 27.12.1988 or any other date in December 1987 for a sale consideration of Rs. 7,42,500/. At the most, it can be held that Sh. V. S. Bhagat had orally agreed to sell the suit land to Dr. Rakesh Verma on 15.07.1988 for a sale consideration of Rs. 17,10,000/ as admitted by Sh. V. S. Bhagat, but even this agreement is denied by Dr Rakesh Verma leading to a conclusion that no agreement to sell of the suit land between Shri V S Bhagat and Dr Rakesh Verma has been proved on record.
IV. Nature of possession of Dr. Rakesh Verma over the suit land:
147. It is an admitted fact on record that as on date, Dr. Rakesh Verma is in possession of the suit land. A suit for possession was filed by Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 63/109 Sh. V. S. Bhagat against Dr. Rakesh Verma being CS No. 766/1992, however the same was dismissed vide order dated 26.08.2013.
148. It is the case of Dr. Rakesh Verma that he was put in possession of the suit land by Sh. V. S. Bhagat in part performance of agreement to sell dated 27.12.1987 after receiving part sale consideration of Rs. 3 lacs out of total sale consideration of Rs. 7,42,500/. Dr. Rakesh Verma is primarily relying upon the possession slip dated 02.03.1988 (Ex.PW1/9 in Dr. Rakesh Verm's suit) in support of his contention in this regard. This document has already been dealt with above wherein it is held that Dr. Rakesh Verma has failed to prove execution of receipt dated 02.03.1988.
149. In addition to this, Dr. Rakesh Verma has relied upon the testimonies of PW3 Sh. Gurnam Singh and PW5 Sh. Satpal Singh (examined in Dr. Rakesh Verma's case to support his contention that he was in possession of the suit land since 02.03.1988 and had not only made construction there on but had also engaged guards for securing the suit land. Dr. Rakesh Verma also proved on record that he had telephone connection in his name at suit land as proved by Sh. Sanjeev Narang examined as DW2/G in Suresh Mansharamani's case and electricity connection as proved by Sh. Mahender Kumar examined as DW2/I in Suresh Mansharamani's case. This also shows the possession of Dr. Rakesh Verma on suit land since 02.03.1988. It is also submitted that Sh. Satish Kumar examined as DW2/H in Suresh Mansharamani's case has also proved that Dr. Rakesh Verma had been paying the house tax of the suit land.
150. Per contra, it is the case of Sh. V. S. Bhagat that he had never handed over the possession of the suit land to Dr. Rakesh Verma Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 64/109 and after obtaining exparte injunction in his suit vide order dated 16.03.1989, he had tresspassed into the suit land on 18.03.1989 with the help of his brother and some unlawful elements. A police complaint was also made by Sh. V. S. Bhagat on the tresspass into the suit land by Dr. Rakesh Verma on which an FIR bearing no. 111/1989 dated 19.03.1989 P.S.Kirti Nagar u/s 448 IPC was registered against the Dr. Rakesh Verma. Thus, it is alleged on behalf of Shri V S Bhagat that Dr Rakesh Verma is in unauthorized possession of the suit land w.e.f. 18.03.1989.
151. As discussed above, the document dated 02.03.1988 (Ex.PW2/9) is of no support to the case of Dr. Rakesh Verma in this regard. Perusal of deposition of PW3/Shri Gurnam Singh shows that he has relied upon bill Ex. PW1/12 and deposed that the same have been issued by him for construction of 23 rooms at the suit land including the boundary wall in March1988. This bill Ex. PW1/12 is dated 20.07.1988 issued in the name of Dr Rakesh Verma specifying the construction of boundary wall and three rooms at the suit land. However, in his cross examination this witness admitted that he was known to Dr Rakesh Verma and used to meet him on social visits as well as on account of medical issues. He also stated that he was not aware about the residential address of Dr RaKesh Verma in the year 1988 whereas the bill Ex.PW1/12 mentions the residential address of Dr Rakesh Verma. This witness could not produce any document to show that he was in construction business or a government contractor in the year 1988. The testimony of PW3 regarding the construction on the suit land has not been supported with any site plan showing the extent of construction at the spot nor the bill Ex.PW1/12 has been supported by any document to show that payment against the same had been made by Dr Rakesh Verma to PW3. Clearly, this witness is known to Dr Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 65/109 Rakesh Verma as admitted by him. Accordingly, the sole testimony of PW3 cannot be relied upon to give a finding to the effect that Dr Rakesh Verma was in possession of the suit land since 02.03.1988. This is moreso as the document dated 02.03.1988 has failed to survive the test of evidence.
152. PW5 Shri Satpal Singh has deposed about having provided security at the suit land in MarchApril 1988 uptil December 1988. The bills executed by him are Ex.PW1/14 to Ex.PW1/21. However, he failed to produce any duty slip regarding the security guards that were deployed at the suit land. This witness also failed to produce any document showing his connection with the proprietorship concern Dynamistic Security & Force (Regd) of which bills are placed on record. He also admitted during his cross examination that he had neither seen the property documents nor visited the suit land while raising the bills for providing security guards. Some of these bills mention payment through cheques however Dr Rakesh Verma has miserably failed to prove these payments by producing his bank account statement showing clearance of the cheques in the account of PW5. Thus, even the testimony of PW5 is not duly supported by documents and is thus, not reliable.
153. As regards the telephone and electricity connections in the name of Dr Rakesh Verma at the suit land admittedly the first receipt regarding the electricity connection was issued on 21.04.1989 and not prior to that. As regards connection of MTNL the documents placed on record are cryptic and unclear. While the document Ex.DW2/G/A mentions one date of 23.03.1989. The document markB mentions the installation date as 28.04.1987. These documents and contradictions in them have not been clarified in the examination or cross examination of Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 66/109 DW2/G (examined in Suresh Mansharamani case). Even Dr Rakesh Verma has nowhere deposed the date when he had taken the MTNL telephone connection at the suit land. Accordingly, these witnesses and the documents produced by them are not sufficient to give a finding that Dr Rakesh Verma is in possession of the suit land since 02.03.1988 as alleged by him.
154. As regards the receipts of house tax department placed on record that are MarkC & D relied upon by DW2/H (examined in Suresh Mansharamani's case) they are dated 19.03.1989 and 20/25.03.1989 i.e. after the date of 18.03.1989 when the possession is alleged to have been taken over by Dr. Rakesh Verma as per the case of Sh. Vidya Sagar Bhagat.
155. Another argument put forth by Dr Rakesh Verma is that one letter dated 20.07.1988 written by Shri V S Bhagat to Shri Suresh Mansharamani record that at the time of entering into the agreement to sell dated 03.05.1988 between Shri V S Bhagat and Suresh Mansharamani, Shri Suresh Mansharamani was informed that Dr Rakesh Verma was already in possession of the suit land under a prior agreement to sell. This document is duly relied upon by Shri Suresh Mansharamani and exhibited as Ex.PW1/4 in his case and is admitted by Shri V S Bhagat in Dr Rakesh Verma's case as Ex.PW1/35. This letter clearly evidences that Shri Rakesh Verma is in possession of the suit land under an agreement to sell executed much prior to 03.05.1988.
156. In my opinion, the admission of letter dated 20.07.1988 made by Shri V S Bhagat has to be understood in the light of the explanation given by him in his pleadings and evidence qua the same and it cannot be read in isolation.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 67/109
157. During admission/denial of documents conducted on 28.11.1994 Shri V S Bhagat admitted the contents of the letter dated 20.07.1988 but denied that any copy of the same was endorsed/posted to Dr Rakesh Verma.
158. Dr Rakesh Verma referred to the letter dated 20.07.1988 in para no.6 (c) of his amended plaint as under: "... The plaintiff was not aware initially as to with whom the defendant no.1 was negotiating, but subsequently came to know that he was negotiating with the defendant no.2 when plaintiff came to know about the same, he protested to the defendant no.1 in no uncertain terms and requested him to drop the matter and some correspondence issued which has to be filed on record by the plaintiff. Ultimately, the plaintiff received a copy of letter dated 20.07.1988 addressed by the defendant no.1 to the defendant no.2 and copy of which had been marked to the plaintiff under registered post.
159. In response to these averments Shri V S Bhagat stated in para 6(c) of the written statement to the amended plaint as under: "6 (c)... Para 6 (c) of the plaint is wrong and is denied. It is wrong and is denied that the plaintiff was ever put into possession of the plot in question in part performance of the oral agreement to sell or otherwise. It is absolutely false that this defendant ever acknowledged that the possession of the plot was handed over by this defendant to the plaintiff..... For the first time, this defendant agreed to sell his plot in question to Shri Mansharamani vide agreement to sell dated 03.05.1988 for a sale consideration of Rs. 16,15,000/. Since Shri Mansharamani, the defendant no.2 herein committed gross breach of the terms of the agreement and failed to make the payment as undertaken by him and also he ceased to be interested in getting the sale transaction completed, the agreement to sell was consequently rescinded.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 68/109 After the termination/repudiation of the contract with Shri Mansharamani, the plaintiff who has been in very friendly terms with this defendant and in fact looking after medically the son of the defendant, prevailed upon this defendant to agree to sell the plot in suit to him for a sum of Rs. 17,10,000/ and paid a sum of Rs. 95,000/ as part payment towards the sale consideration which in fact was earnest money. .... It is absolutely false that the plaintiff was not aware of the agreement to sell dated 03.05.1988 with Shri Mansharamani in fact the plaintiff knew about the agreement to sell with Shri Manshramani from the day it was entered into. It is absolutely false that the plaintiff ever protested against the agreement to sell which this defendant has entered into with Shri Mansaramani. It is wrong and is denied that the plaintiff received a copy of the letter dated 20.07.1988 addressed by this defendant to defendant no.2 and a copy of which was marked to the plaintiff under registered AD post. The factum and validity of the alleged letter is denied. The facts are that subsequent to the repudiation or the termination of the agreement to sell with Shri Mansharamani of which plaintiff had full knowledge this defendant approached with a malice and deceit in his heart to trap this defendant into a bargain and grab the plot and with that deceitful intention approached this defendant and represented to him that though the agreement to sell between this defendant and Shri Suresh Mansharamani had already been abandoned and repudiated/rescinded, yet to avoid any dispute in future at the hands of Shri Mansharamani and to forestall any suit or legal action at the hands of Shri Mansharamani a letter should be sent by this defendant to Shri Mansharamani by which it should be intimated to him that the possession of the plot had already been delivered to Dr Rakesh Verma. The plaintiff further represented to this defendant that if this defendant signs such a letter and the letter was sent to Shri Suresh Mansharamni then in that event Shri Suresh Mansharamani would not dare to seek any specific performance of the agreement to sell entered into between him and this defendant. This defendant who had reposed faith in the plaintiff/Dr Rakesh Verma believed the said representation made by the plaintiff and agreed to the same. Acting thereupon, this defendant signed the letter which was drafted and brought by Dr Rakesh Verma. The plaintiff obtained the signatures of this defendant on the said letter Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 69/109 (two copies) and told this defendant that he would dispatch the said letter to Shri Suresh Mansharamani. The plaintiff proved very clever when he took the letter after obtaining the signatures of this defendant with a promise that he would dispatch the second copy to Shri Mansharamani under certificate of posting. It has now been revealed that instead of sending the second copy of the letter to Shri Suresh Mansharamani under certificate of posting, he retained the copy with him to use it for deceitful purpose. This defendant came to know of this fraud perpetrated and practice when the plaintiff produced a photo state copy of that letter in the court in the suit filed by him against this defendant being suit no. 744/1989. It is absolutely false that copy of the said letter was sent by this defendant either by registered post or by certificate of posting. It is the entire act of the plaintiff. It is denied that this defendant even confirmed or communicated to Shri Mansharamani that the physical possession of the property was with the plaintiff under a prior agreement. The truth of the matter is that letter purporting to be dated 20.07.1988 was drafted by the plaintiff himself and brought by him to this defendant for obtaining signatures on the representation that if any suit was filed by Shri Mansharamani for specific performance it could be forestalled and successfully defended by writing such a letter to Shri Mansharamani...."
160. Similar explanation is given by son/Lr of Shri V S Bhagat,Maj. Gen. M P Bhagat (Retd.) in his evidence as DW1 in Dr Rakesh Verma's case. Para 8 of his affidavit Ex. DW1/A is reproduced hereinunder: " 8...I say that Dr Rakesh Verma in fact had no intention whatsoever to honour the commitments, promise and obligations and intended to trap my father into bargain to grab the suit plot. I further say that with this deceitful intention Dr Rakesh Verma represented to my father that though the agreement to sell between my father and Shri Suresh Mansharamani had already been abandoned and repudiated yet to avoid any dispute in future at the hands of Shri Suresh Mansharamani, a letter should be signed by my father by which it should Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 70/109 be intimated to Shri Suresh Mansharamani that the possession of the same plot had already been delivered to Dr Rakesh Verma. I further say that Dr Rakesh Verma represented that if ,my father signed such a letter and the letter was sent to Suresh Mansharamnai then in that even Mr Suresh Mansharamni would not dare to seek any specific performance of agreement to sell executed between my father and Shri Mansharamani. I further say that my father believed the said representation and acted thereupon signed the said letter which was drafted by Dr Rakesh Verma. I further say that after having obtained the signatures of my father on the said letter (two copies) Dr Rakesh Verma told my father that he had despatched the said letter to Suresh Mansharamani. I further state that Dr Rakesh Verma proved very clever when he took the letter after obtaining the signatures of my father with a promise that he would despatch the second copy to Suresh Mansharamnai under certificate of posting. I further say that it has now been revealed that instead of sending the second copy to Suresh Mansharamnai under certificate of posting, Dr Rakesh Verma retained/sent the copy to himself to use it for deceitful objective. I further say that my father came to know about this fraud when Dr Rakesh Verma produced the photostate copy of the letter in the court in suit filed by him against my father."
161. Thus, the admission of Shri V S Bhagat qua letter dated 20.07.1988 is not a clear and direct admission but is explained by the circumstances in which the said letter was written. Considering the explanation offered by Shri V S Bhagat, the admission regarding prior possession of Dr Rakesh Verma in letter dated 20.07.1988 cannot be of any help to Dr Rakesh Verma.
162. Another line of argument of Ld. Counsel for Dr. Rakesh Verma is that criminal complaint for trespass into the suit land by Dr. Rakesh Verma was made by Sh. V. S. Bhagat on which FIR bearing no. 111/1989 dated 19.03.1889 PS Kirti Nagar, U/s 448 IPC was Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 71/109 registered against Dr. Rakesh Verma. In the said matter, Dr. Rakesh Verma had already been discharged by Ld. MM vide order dated 2.03.1992. Certified copy of this order is already Ex.PW1/49 in Dr Rakesh Verma' suit and the factum of discharge has already been proved by Shri Devinder Singh who is examined as PW4 in Dr Rakesh Verma's case through photocopy of the goshwara register which is Ex. PW4/B. This order of discharge has attained finality as it was never challenged by anyone and thus in the present suit Shri V S Bhagat cannot be permitted to re agitate the said issue. Since the allegations of tress pass into the suit land made against Dr Rakesh Verma have been found to be false by Ld. MM, the obvious conclusion is that Dr Rakesh Verma is in possession of the suit land by virtue of handing over the possession to him on 02.03.1988 by Shri V S Bhagat in pursuance to agreement to sell dated 27.12.1987.
163. I find no merit in the submissions made by Ld.counsel for Dr Rakesh Verma in this regard. The findings of criminal courts are not binding on the Civil Courts. Even otherwise, admittedly in FIR no. 111/1989 PS Kirti Nagar, Dr Rakesh Verma has been discharged as prima facie no case was made out against him. There has been no trial in the said FIR nor any findings has been given on the merits of the documents relied upon by the parties that are Shri V S Bhagat and D Rakesh Verma. In these circumstances, no such inference can be drawn from the order of discharge as argued by Ld. counsel for Dr Rakesh Verma. Even otherwise, it is again repeated for the sake of clarity that Dr Rakesh Verma has miserably failed to prove any oral agreement to sell between him and Shri V. S. Bhagat entered into on 27.12.1987. Accordingly, any argument of Dr Rakesh Verma that he was put in possession of the suit land pursuant to the said agreement to sell has no validity in the eyes of law and cannot be used to give any findings in his Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 72/109 favor in this regard.
164. In view of the reasons given above, I have no hesitation in holding that Dr. Rakesh Verma has miserably failed to prove on record that he is in possession of suit land since 02.03.1988. Besides, it has already been held that Dr. Rakesh Verma has failed to prove any oral agreement to sell qua the suit land between him and Sh. V. S. Bhagat. Accordingly, his possession over the suit land cannot be deemed to be in part performance of the agreement to sell dated 27.12.1987 as alleged by him.
165. As regards the entitlement of Sh. V. S. Bhagat or his legal heirs to receive back the possession of the suit land from Dr. Rakesh Verma, the same is not been touched by me as it is not a subject matter of the two suits before me.
V. Findings on proof and nature of agreement to sell dated 03.05.1988 relied upon by Shri Suresh Mansharamani:
166. Sh. Suresh Mansharamani has filed his suit for specific performance bearing Civ. DJ. No. 609188/2016 (Old No. 581/1989) titled as Suresh Mansharamani Vs. V. S. Bhagat & Anr. relying upon an agreement to sell dated 03.05.1988 executed between him and Sh. V. S. Bhagat. The agreement to sell dated 03.05.1988 is a written document prepared on a stamp paper of 2 rupees duly signed by Sh. Vidya Sagar Bhagat being first party/seller and Sh. Suresh Mansharamani being second party/buyer. This document was put to Sh. Vidya Sagar Bhagat during admission denial of documents conducted on 28.11.1994 wherein he admitted the said along with his signatures thereon. However, he disputed the signatures of witness no. 2 namely Sh. Javed Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 73/109 Yaar Khan stating that at the time of execution of the said agreement to sell there was no witness no. 2 present nor he had signed the agreement at that time. This agreement to sell dated 03.05.1988 was exhibited as Ex. P3 (in Suresh Mansharamani's case) to the extent admitted by Sh. Vidya Sagar Bhagat. There is another photocopy of the agreement to sell dated 03.05.1988 on record which is bearing only the signatures of witness no. 1 and is blank at the place meant for signatures of witness no. 2.
167. During the course of arguments also, the execution of this document/agreement to sell dated 03.05.1988 (Ex. P3 in Suresh Mansharamani's case) is not disputed on behalf of Sh. V. S. Bhagat. The only submission made on the document is that it was not bearing the signature of witness no. 2 at the time of its execution.
168. However, on behalf of Dr. Rakesh Verma, this document has been strongly opposed and challenged. It is stated that as per the case of Dr. Rakesh Verma, the agreement dated 03.05.1988 executed between Sh. V. S. Bhagat and Sh. Suresh Mansharamani was a fake, sham and manipulated document prepared only to help Sh. V. S. Bhagat to wriggle out from the earlier agreement to sell qua the suit land executed between Sh. V. S. Bhagat and Dr. Rakesh Verma on 27.12.1987. It is argued that the contention of Dr. Rakesh Verma in this regard is fortified by the fact that Sh. V. S. Bhagat had categorically disputed the signatures of the second witness on the said document. This dispute clearly points towards the manipulation of the document by Sh. Suresh Mansharamani in connivance with Sh. V. S. Bhagat. It is also stated that Sh. Suresh Mansharamani could not give straight answers when questioned about preparation of agreement dated 03.05.1988 and purchase of the stamp papers. This also reflects that Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 74/109 agreement dated 03.05.1988 is sham and manipulated. Accordingly, it is submitted that agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case) is neither duly proved on record nor it is a reliable document to give any finding in favour of Sh. Suresh Mansharamani.
169. Per contra, it is argued on behalf of Sh. Suresh Mansharamani that neither the execution nor the nature of document i. e. agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case) has been disputed by Sh. Vidya Sagar Bhagat. There are two parties to the said agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case) that are Sh. Suresh Mansharamani, the purporter of the said document and Sh. V. S. Bhagat who has admitted his signatures on the same as well as the contents of the agreement. In these circumstances, the challenge to the said document being put forth by a third party i. e. Dr. Rakesh Verma is of no effect. It is a settled law that an agreement to sell is not required to be witnessed by even a single witness. Accordingly, even if witness no. 2 had signed the agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case) after its execution and before filing it on court record, it does not make any difference. It is not a case where witness no. 2 had appeared before the court and deposed that the agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case) was executed in his presence. Once, there is no dispute/challenge to the execution or contents/nature of the document, these technical objections are of no consequence.
170. I have heard the submissions made in this regard and carefully perused the records.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 75/109
171. Section 54 of Transfer of property Act, 1882 defines a contract for sale in terms that it is a contract to the effect that sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on the said property. There is no legal requirement whereby an agreement to sell or a contract to sale is required to be witnessed by two witnesses or even a single witness. Only in cases where the buyer wants to take the benefit of Section 53 A of the Transfer of Property Act, 1882, the agreement to sell is required to be in writing and registered. Even in the said provision, there is no requirement of attestation of the agreement to sell by two witnesses.
172. In the present case, both the parties to the agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case) are admitting/ not disputing the execution and contents of the same. In these circumstances, merely because the signatures of witness no. 2 have been taken at a later time after the execution of the document, it does not make the document invalid. Accordingly, I find no merit in the objections to this effect raised by Dr. Rakesh Verma to the agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case).
173. In view of the reasons given above, it is held that the execution of agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case) has been duly proved on record.
174. Let us now consider the nature of the agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case). Perusal of the document shows that it is an agreement to sell the suit land by Sh. V. S. Bhagat to Sh. Suresh Mansharamani for a total sale consideration of Rs. 16,15,000/. The document duly records the description of the Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 76/109 suit land and the details of registered sale deed dated 30.11.1964, on the basis of which Sh. V. S. Bhagat had acquired the ownership rights therein. It also records that out of the total sale consideration of Rs. 16,15,000/, Sh. V. S. Bhagat has already received Rs. 1 lac being the earnest money and part of sale proceeds (Rs. 50,000/ in cash and Rs. 50,000/ vide cheque no. 541673) from Sh. Suresh Mansharamani. It also records the conditions, after fulfillment of which, the balance payment of Rs. 15, 15,000/ has to be made and sale deed has to be executed. It further records that at the time of execution of sale deed, the vacant possession of the suit land would be handed over to Sh. Suresh Mansharamani at the spot and original ownership document shall also been given to him. The consequences for default on part of either of the parties have also been provided in the same.
175. Considering the contents of document i. e. agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case), it can safely be concluded that it is a document by which Sh. V. S. Bhagat had agreed to sell the suit land to Sh. Suresh Mansharamani for a sale consideration of Rs. 16,15,000/ with defined terms and conditions.
176. Another objection to the agreement to sell dated 03.05.1988 raised by Dr. Rakesh Verma is that it records that the suit land is free from encumbrances but the suit land was in the possession of Dr. Rakesh Verma under a prior agreement to sell making it an encumbered property. Arguments have been addressed at length on the meaning of the term "Encumbrances" and various citations have been relied upon. However, these arguments need not be dealt with in view of my findings on Matters in Dispute II, III, IV above as per which Dr. Rakesh Verma has not only failed to prove any prior agreement to sell the suit land between him and Sh. V. S. Bhagat but also his possession Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 77/109 over the suit land prior to 03.05.1988.
177. In view of the reasons given above, it is held that execution of agreement dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case) has been duly proved on record and the document in essence is an agreement to sell the suit land by Sh. V. S. Bhagat to Sh. Suresh Mansharamani.
VI. Effects of provisions of Income Tax Act, The Urban Land (Ceiling and Regulation Act, 1976 and the Delhi Lands (Restriction on Transfer) Act, 1972 on the two agreement to sell put forth by Sh. Suresh Mansharamani and Dr. Rakesh Verma.
178. There are certain objections in the two suits for specific performance filed by Dr. Rakesh Verma and Sh. Suresh Mansharamani regarding the compliances of certain legal provisions. Before proceeding further, it would be apposite to go through the said provisions and find out the effect of the same on the two cases for specific performance.
179. Chapter XXC of the Income Tax Act, 1961 deals with the provisions for purchase by Central Government of Immovable properties in certain cases of transfer. Section 269 UC provides for restrictions on transfer of immovable property and reads as under: "269UC. Restrictions on transfer of immovable property: (1) Notwithstanding any thing contained in the Transfer of Property Act, 1882 (4 of 1882), or in any other law for the time being in force, [no transfer of any immovable property in such area and of such value exceeding five lakh rupees, as Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 78/109 may be prescribed,] shall be effected except after an agreement for transfer in entered into between the person who intends transferring the immovable property (hereinafter referred to as the transferor) and the person to whom it is proposed to be transferred (hereinafter referred to as the transferee) in accordance with the provisions of sub section (2) at least [four months] before the intended date of transfer.
(2) The agreement referred to in subsection (1) shall be reduced to writing in the form of a statement by each of the parties to such transfer or by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties.
(3) Every statement referred to in subsection (2) shall,
(i) be in the prescribed form;
(ii) set forth such particulars as may be prescribed; and
(iii) be verified in the prescribed manner, and shall be furnished to the appropriate authority in such manner and within such time as may be prescribed, by each of the parties to such transaction or by any of the parties to such transaction acting on behalf of himself and on behalf of other parties.
[(4) Where it is found that the statement referred to in sub section (2) is defective, he appropriate authority may intimate the defect to the parties concerned and give them an opportunity to rectify the defect within a period of fifteen days from the date of such intimation or within such further period which, on an application made in this behalf, the appropriate authority may, in its discretion, allow and if the defect is not rectified within the said period of fifteen days or, as the case may be, the further period so allowed, then, notwithstanding anything contained in any other provision of this Chapter, the statement shall be deemed never to have been furnished.]"
180. Pursuant to this provision Forms 34A and 34B were required to be submitted before the income tax authority, however, it is submitted on behalf of Sh. Suresh Mansharamani that these forms have been omitted by the IT (21st Amendment) Rules, 2021 w.e.f. 29.07.2021. Accordingly, now no such compliance is required to be Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 79/109 made under Section 269UC of the Income Tax Act, 1961.
181. However, the fact remains that at the time when alleged agreements to sell between Sh. V. S. Bhagat and Dr. Rakesh Verma or Sh. V. S. Bhagat and Sh. Suresh Mansharamani were executed in the year 1987 or 1988. The said provision was in force and both the buyer and the seller were required to comply with the law as in force on that date.
182. Further, Section 230A of Income Tax Act, 1961 provided for certain restrictions on registration of Transfer of immovable properties in certain cases. However, this provision has already been repealed by the Finance Act of 2001 we.f. 01.06.2001 and since till the said date, neither of the parties have proceeded for registration of sale deed, this provision was not applicable at that time and stands repealed as on date.
The Urban Land (Ceiling and Regulation Act, 1976):_
183. Section 5 of ULCR Act of 1976 provides a restriction on the Transfer or vacant land held by a person in excess of the ceiling limit until a statement under Section 6 is furnished and a notification regarding the excess vacant land held by him has been published under Section 10(1) and the transfer made in contravention of this provision shall be null and void.
184. This section puts a responsibility on the seller to obtain a notification regarding the excess vacant land prior to transfer by way of sale, mortgage, lease or otherwise the vacant land held by them. In the present case, admittedly, the suit land was a vacant land in the year Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 80/109 19871988 when the two alleged agreements to sell were executed between the parties. Accordingly, the seller Sh. V. S. Bhagat was required to obtain notification under this Act.
The Delhi Land (Restriction on Transfer) Act, 1972:
185. Section 5 of Delhi Land (Restrictions on Transfer) Act provides for obtaining of certain permissions from the competent authority in case owner of a land which is proposed to be acquitted and in relation to which a declaration under Section 6 of the Land Acquisition Act, 1894 has been made. There are no such pleadings or evidence on record to conclude that this provision was applicable to the suit land.
186. Having given my findings on the matters in dispute, now, I shall proceed to give my issue wise findings: Common issue in both the suits:
(1). Which of the agreement to sale i. e. with the plaintiff in suit no.
744/1989 (Dr. Rakesh Verma) or with the plaintiff in suit no. 581/1989 (Suresh Mansharamni) is prior in point of time and if so, to what effect?OP Parties.
187. The onus to prove this issue was on all the parties. As held above, the written agreement to sell dated 03.05.1988 (Ex.P3 in Suresh Mansharamani's case) executed between Sh. V. S. Bhagat and Sh. Suresh Mansharamani qua the suit land has been duly proved on record. Per contra, Dr. Rakesh Verma has miserably failed to prove an oral agreement to sell dated 27.12.1987 between him and Sh. V. S. Bhagat as held above. Similarly, the document dated 02.03.1988 Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 81/109 (Ex.PW1/9 in Dr. Rakesh Verma's case) is also not duly proved on record nor it is an agreement to sell the suit land. As held above, at the max, there can be said to be an oral agreement to sell dated 15.07.1987 between Dr. Rakesh Verma and Sh. V. S. Bhagat as admitted by Sh. V. S. Bhagat but even this agreement is not proved on record as Dr Rakesh Verma is denying the same.
188. In view of the reasons given above and my findings on the two agreements to sell relied upon by the parties, I have no hesitation in holding that it is duly proved on record that the agreement to sell dated 03.05.1988 executed between Sh. V. S. Bhagat and Sh. Suresh Mansharamani (plaintiff in suit no. 581/1989 is prior in point of time. This issue is, accordingly, answered.
Suit no. 581/1989 (New No. 609188/2016) titled as Suresh Mansharamani Vs. Vidya Sagar Bhagat & Anr.
ISSUE No.1 (1) Whether there is any valid and subsisting agreement to sale between the plaintiff and defendant no. 1 as alleged? OPP ISSUE No.2 (2) Whether the suit is not barred under Chapter XXC of the Income Tax Act for not having filed statement in form 37I pertaining to agreement to sale dated 03.05.1988 with the appropriate authorities under Chapter XXC of Income Tax Act? OPP.
& ISSUE No. 4 (4) Whether the plaintiff undertook to obtain the necessary Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 82/109 permissions, as alleged? OPD.
189. These issues are being taken together as they are inter connected and require similar discussion and appreciation of facts and evidence on record.
190. Plaintiff/Sh. Suresh Mansharamani has filed the present suit seeking specific performance of an agreement to sell dated 03.05.1988 executed between him and Sh. V. S. Bhagat qua the suit land. The execution of this agreement to sell between the parties has not been disputed by Sh. V. S. Bhagat at any stage. The agreement to sell dated 03.05.1988 is an admitted document being Ex. P3 in Suresh Mansharamani's case. As held in my findings on Matters in DisputeVFindings on proof and nature of agreement to sell dated 03.05.1988 relied upon by Shri Suresh Mansharamani, the execution of agreement to sell dated 03.05.1988 (Ex.P3) is duly proved on record. From the contents of the document, it is clearly an agreement to sell the suit land by Sh. V. S. Bhagat to Sh. Suresh Mansharamani.
191. Now, the issues before this court are whether this agreement to sell was valid and subsisting at the time of filing of the present suit by Sh. Suresh Mansharamani i.e. on 28.02.1989 and as on date and which of the party was responsible for obtaining requisite permissions/sanctions and what was the effect of not applying/obtaining the same.
192. Let us consider the contentions of the parties in this regard.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 83/109
193. Before proceeding further, it is apposite to reproduce the clause of Agreement to sell dated 03.05.1988 (Ex.P3) which is in dispute.
" That as early as it is possible the first party after receipt of requisite permissions under Delhi Land (Restriction on Transfer) Act, 1972 and under Urban Land (Ceiling and Regulation) Act, 1976 and Income Tax Clearance Certificate from authority concerned shall inform the second party and within a period of 15 days from the said information, the first party shall execute the sale deed, to have the same registered in favour of the second party or his nominees, after receipt of requisite permissions from authorities concerned without any hitch, on receipt of the balance sum of Rs. 1515,000/ before SubRegistrar, Delhi and simultaneously, the first party shall deliver its vacant possession to the second party on the spot".
194. Clearly, as per Plaintiff/Sh. Suresh Mansharamani, the agreement to sell (Ex.P3) is a valid and subsisting agreement and that is the reason why he had filed the suit for specific performance qua the same. It is also submitted on behalf of Sh. Suresh Mansharamani that clearly as per the wordings contained in agreement to sell (Ex.P3), the entire responsibility of completing the requisite formalities with the concerned authorities was on the seller/Sh. V. S. Bhagat. Any ocular testimony on his behalf contradicting the terms of the written agreement dated 03.05.1988 (Ex.P3) can not be relied upon.
195. Per contra, as per the written statement filed by Sh. Vidya Sagar Bhagat, there was no valid and subsisting agreement to sell between the parties and accordingly, the suit for specific performance of agreement (Ex.P3) was not maintainable. The relevant portions of written statement to the amended plaint filed by Sh. V.S. Bhagat are reproduced herein under for the sake of clarity: Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 84/109 " 2. That no provisions/stipulation regarding obtaining of NOC under Chapter XXC of Income Tax Act, 1961 was made in the agreement dated May 3, 1988 as the plaintiff undertook upon himself to obtain No Objection Certificate under Section 269 (U) (C) from the Appropriate Authority under Chapter XXC of the Income Tax Act, 1961. The plaintiff was required to file Form 37I and for that purpose he obtained the signatures of the defendant thereon. The plaintiff though obtained the signatures of the defendant on the said form, yet for the best reasons best known to him, it appears, that he did not file the said form with the Income Tax Authorities as required under Section 269 (U) (C)of the Income Tax Act, 1961 read with Rule 48 L of Income Tax Rules. Even, if it be assumed for the sake of argument though not admitted that the plaintiff did not undertaken upon himself to file statement in form No. 37I with the Appropriate Authority, even then it is submitted that the plaintiff on his own was required to submit the statement and file a copy of the agreement to sell along with Form No. 37I, within the statutory period of 15 days from the date of execution of the agreement. Since the statement in Form No. 37I along with copy of the agreement to sell was not submitted to the Appropriate Authority within the prescribed statutory period of 15 days, the agreement on the expiry of the period became void and unenforceable. Since, the statement in Form 37I was not filed prior to the institution of the suit and even thereafter, the plaintiff is estopped and barred from filing the present suit for specific performance, besides being liable to be prosecuted under Section 276 AB of the Act.
It is significant to submit that under the agreement to sell dated 03 May, 1988, the defendant was required to execute the sale deed within a period of 15 days from the date of receipt of the information with regard to permission under Delhi Lands (Restriction on Transfer) Act, 1972, Urban Lands (Ceiling & Regulations) Act, 1976 and Income Tax Act, 1961, on the requisition/demand of the plaintiff. Since the defendant was not required to obtain the No Objection Certificate under Chapter XXC of the Income Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 85/109 Tax Act, 1961 and it was the plaintiff who had undertaken upon himself to do so, it was for this reason that no such certificate was required to be obtained by the defendant. Assuming through not admitting that no such obligation as referred to above was undertaken by the plaintiff even then in that case the plaintiff on his own was required to submit Form 37I and Call upon the defendant to sign the form jointly with him or otherwise. Further, assuming through not admitting that the defendant was required to obtain the NOC under Chapter XXC even then the plaintiff was required and in any case should have called upon the defendant to apply and submit Form 37I and offer to join the statement by signing the same. The plaintiff did neither of the above things and did not taken any step in this behalf and intentionally allowed the agreement to sell lapse and dissolve and become void. Even otherwise the agreement to sell in the absence of stipulation regarding NOC under Chapter XXC is vague, uncertain and lacking in essential and vital terms is incomplete/and/or vague and consequently void or enforceable. With regard to other permissions, the requisite applications were required to be filed with the concerned authorities under Delhi Lands (Restriction on Transfer) Act, 1972 and Urban Lands (Ceiling and Regulations) Act, 1976 and even Form No. 37I are required to be signed by both the seller and the purchaser. At no point of time, the plaintiff signed any application/form for obtaining the requisite permissions under the Act of 1972 and the Act of 1976 and admittedly the plaintiff did not sign any form No. 37I and nor any steps were taken by the plaintiff for signing and submitting the said form and applications etc. the necessary consequence was that the agreement stood terminated. The provision of Chapter XXC of the Income Tax Act, 1961 are mandatory and it was obligatory on the part of both the parties to sign the Form 37I, and submit the same to the Appropriate Authority under Section 269 (U) (C) and if one party fails or neglect to sign, the other party is required to submit the statement and file copy of the agreement to sell on his own.
It is significant to state that the plaintiff at no point of time even stated that the had signed the Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 86/109 forms/applications for obtaining the necessary permissions and nor he ever called upon the defendant to sign any forms/applications. In fact, the plaintiff after having entered into an agreement and paid the amount, had a second thought to abandon the agreement and so did not take any step whatsoever to sign the requisite forms and applications and nor called upon the defendant to get his signatures thereon in order to obtain the requisite permissions.
The plaintiff thus did not take any stops and failed to perform his obligation and part of the contract. Since the agreement to sell became void and unenforceable after the expiry of statutory period of 15 days for nonfiling of statement in Form No. 37I, under Chapter XXC of the Income Tax Act, 1961, the agreement to sell became void and unenforceable and consequently no suit for specific performance.
3. That the plaintiff was not ready and wiling to perform his part of the contract. In any case, the plaintiff failed to perform his part of the contract, the plaintiff failed to perform his part of the Contract within the statutory period of 15 days and even thereafter. The plaintiff abandoned the contract and even other wise committed breach thereof. The plaintiff being guilty of breach of the contract, nonperformance of his obligation, is not entitled to bring the present suit and the same is liable to be dismissed summarily."
196. As per the contents of the written statement filed by Sh. V. S. Bhagat, it was the plaintiff/Sh. Suresh Mansharamani who had abandoned the agreement to sell dated 03.05.1988 because of which there was no valid and subsisting agreement between the parties of which specific performance could be sought. It is also stated in the written statement that although the responsibility for obtaining the Income Tax Clearance Certificate was of the seller/Sh. Vidya Sagar Bhagat but it could be done only after the buyer/Sh. Suresh Mansharamani tendered a draft sale deed to him which was never Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 87/109 done by him. Because of this lapse on the part of Sh. Suresh Mansharamani, Sh. V. S. Bhagat could not file Form No. 34 under Section 230 A of Income Tax Act, 1961. It is also stated that Sh. Suresh Mansharamani failed to tender the balance sale consideration to Sh. V.S. Bhagat. Sh. V. S. Bhagat also sent various letters to him in this regard but Sh. Suresh Mansharamani ignored the same and accordingly, abandoned the agreement to sell dated 03.05.1988.
200. On behalf of Dr. Rakesh Verma, it is argued that the agreement to sell dated 03.05.1988 between Sh. V. S. Bhagat and Sh. Suresh Mansharamani was contingent upon of obtaining permissions and sanctions from various authorities under Income Tax Act, 1961; Urban Land Ceiling and Regulation Act, 1976 as well as Delhi Land (Restrictions on Transfer) Act, 1972. However, as admitted by Sh. Suresh Mansharamani in his evidence, no such steps were taken for obtaining such permissions/sanctions either by Sh. V. S. Bhagat or by Sh. Suresh Mansharamani. Accordingly, the agreement to sell dated 03.05.1988 (Ex.P3) stood abandoned and there was no valid and subsisting agreement at the time of filing of the present suit.
197. I have heard the submissions made on behalf of the parties and carefully perused the records.
199. Sh. Suresh Mansharamani/plaintiff in the present case was examined as PW1 and he relied upon a telegram dated 25.06.1988 which is an admitted document Ex.P2. Perusal of the said document shows that vide the said telegram, he had informed Sh. V. S. Bhagat that he had not obtained requisite permissions under relevant Acts which was indicative of his malafide intention of non fulfilling his part of the contract. However, vide this telegram, Sh. V. Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 88/109 S. Bhagat was not called upon to complete the necessary formalities but was merely informed that Sh. Suresh Mansharamani would be filing a suit against him.
200. Sh. Suresh Mansharamani/PW1 also relied upon one letter dated 17.06.1988 written by Sh. V. S. Bhagat to him which is Ex.PW1/3. Perusal of said letter shows that vide this letter, Sh. V. S. Bhagat had informed Sh. Suresh Mansharamani that he is required to file agreement to sell before income tax authorities for obtaining NOC certificate and that he had taken duly signed Form - 37I from Sh. V. S. Bhagat promising that he would submit the necessary papers with the department but he had not done so till date giving an impression that he was not interested in the deal. Accordingly, the agreement became void and was not enforcable because of breach of agreement committed by him as well as his lack of interest in completing the deal. Sh. V. S. Bhagat, vide letter dated 17.06.1988 (Ex.PW1/3) also called upon Sh. Suresh Mansharamani to collect the amount which he had paid to him in pursuance of agreement to sell dated 03.05.1988. The receipt of this letter is not denied by Sh. Suresh Mansharamani. Rather, he has relied upon this document and proved it as Ex.PW1/3. When specifically confronted with this letter during his cross examination on behalf of Sh. V. S. Bhagat, Sh. Suresh Mansharamani testified that he had not received letter dated 17.06.1988 (Ex.PW1/3).
201. Again, during the cross examination of Sh. Suresh Mansharamani, he admitted that during the time when agreement to sell was executed between him and Sh. V. S. Bhagat, no objection certificate was required from the appropriate authority under Section XXC of Income Tax Act for any transaction beyond Rs. 5 lacs. He also Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 89/109 admitted that there was mandatory requirement for the parties to file statement in Form37I of Chapter XXC of Income Tax Act, within 15 days from the agreement to sell. He also admitted that he had not filed any such statement before the appropriate authorities. To explain his nonfiling of the requisite form, he stated that he had handed over the requisite forms duly signed, to Sh. V. S. Bhagat who assured him on 13.05.1988 that he will obtain requisite permissions from the concerned authorities. He further testified that on enquiry when he came to know that Sh. V. S. Bhagat had not made the necessary compliances, he issued a legal notice to him through his counsel. However, this legal notice has not been placed on record by Sh. Suresh Mansharamani to support his explanation in this regard. Sh. Suresh Mansharamani/PW1 has also admitted that he himself had never approached the concerned authorities in this regard. He also admitted that he never approached Sh. V. S. Bhagat or requested him to file the requisite forms with the concerned authorities.
202. Sh. Suresh Mansharamani also admitted letter dated 20.07.1988 (Ex.PW1/4) whereby he had been called upon by Sh. V. S. Bhagat to provide him with the necessary documents but even after the receipt of the said letter, he did not take any steps for completion of agreement to sell dated 03.05.1988.
203. Perusal of agreement to sell dated 03.05.1988 (Ex.P3) clearly shows that certain legal requirements were required to be completed before the agreement to sell could be acted upon. Admittedly, the said legal requirements have not been complied with. As per paragraph no. 4 on page no. 1 of agreement to sell (Ex.P3), responsibility of obtaining the requisite permissions has been fixed on the seller/Sh. V. S. Bhagat. As discussed in "Matters in dispute VI"
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 90/109 above, the law has changed qua some of these provisions wherein certain sections have been repealed/deleted. However, the fact remains that these provisions were in force at the time when the agreement to sell dated 03.05.1988 (Ex.P3) was entered into between the parties. Subsequent deletion of relevant provisions cannot be pleaded as a ground for noncomplying with the same. There are specific communications made by Sh. V. S. Bhagat to Sh. Suresh Mansharamani for compliance of requisite formalities vide letter dated 17.06.1988 (Ex.PW1/3) and letter dated 20.07.1988 (Ex.PW1/4). These letters also clarify that the responsibility of making the requisite compliances had shifted to Sh. Suresh Mansharamani as Sh. V. S. Bhagat had already handed over the signed forms to him. Despite receipt of the said letters, Sh. Suresh Mansharamani preferred to remain silent and neither reverted back to these letters nor made any effort to ensure that the necessary formalities were complied with. In these circumstances, it is amply clear that Sh. Suresh Mansharamani abandoned the agreement to sell dated 03.05.1988. Even if, it is considered that the default was of Sh. V. S. Bhagat as the responsibility of complying with necessary formalities were initially fixed upon him by the agreement to sell (Ex.P3), the continuous silence of Sh. Suresh Mansharamani on this aspect is a contributing default because of which the agreement to sell dated 03.05.1988 stood abandoned.
204. In view of the reasons given above and the evidence on record, I have no hesitation in holding that Sh. Suresh Mansharamani had failed to prove the existence of a valid and subsisting agreement to sell between him and Sh. V. S. Bhagat. The agreement (Ex.P3) stood abandoned due to default and callous attitude of both the parties. But, more because of Sh. Suresh Mansharamani who failed to Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 91/109 take any action in this regard despite repeated communications to him by Sh. V. S. Bhagat.
205. In view of reasons given above, this issue is decided against the plaintiff/Sh. Suresh Mansharamani and in favour of defendant/Sh. V. S. Bhagat.
ISSUE No. 3(3) Whether the plaintiff has performed and has been ready and willing to perform his part of the contract? OPP
206. The onus to prove this issue was on the plaintiff/Sh. Suresh Mansharamani.
207. For deciding the issue of readiness and willingness of the plaintiff to perform his part of the contract, I am guided by the decision of our own Hon' ble High Court of Delhi in Om Prakash Aggarwal Vs. Rajkumar Mittal order dated 28.02.1019 CS (OS) 1284/11 wherein the legal position on this aspect has been summed up in following words: "Section 16(C) of the Specific Relief Act, 1963
13. In a suit for specific performance, the plaintiff has to prove a valid sale agreement; the breach of the contract by the defendant; and readiness and willingness of the plaintiff to perform his part of the contract.
14. Section 16(c) of the Specific Relief Act mandates "readiness" and "willingness" on the part of the plaintiff as a condition precedent to seek specific performance. Section 16 (c) is reproduced herein under: Section 16 - Personal bars to relief: Specific performance of a contract can not be enforced Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 92/109 in favour of a person xxx xxx xxx
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendants.
Explanation for the purposes of clause (c)
(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendants or to deposit in court any money except when so directed by the court.
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
15. The "readiness" and "willingness" are two separate issues. The former depends on the availability of requisite funds whereas the letter depends on the intention of the purchaser.
(emphasis supplied)
16. The "readiness" has to be shown by the purchaser by documents relating to the availability of the funds whereas the intention has to be inferred from his conduct and circumstances.
17. If there is no availability of funds with the purchaser, he can be nonsuited on the ground of nonreadiness alone.
18. If the plaintiff is able to prove the availability of the balance sale consideration with him at the time fixed for performance in the agreement, it is an indication of his readiness but his willingness/intention to perform can not be inferred from readiness alone.
19. When the parties enter into an agreement relating to an immovable property, they amicably agree on the sale consideration, earnest money as well as the payment of the balance sale consideration. If both the parties are ready and willing, they usually complete Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 93/109 the transaction within the stipulated time in the following manner: 19.1 The purchaser makes arrangement for the balance sale consideration within the stipulated time.
19.2 If the purchaser has to take loan from a bank or other financial institution, the purchaser has to complete all the formalities and obtain the loan before the stipulated date.
19.3 The purchaser informs the seller about the arrangement having been made.
19.4 The purchaser drafts the sale deed and sends the draft sale deed to the seller for approval.
19.5 The seller approves the draft sale deed and returns it back to the purchaser.
19.6 The purchaser purchases the requisite stamp duty for the sale deed.
19.7 The purchaser prepares the sale deed on the requisite stamp parpers.
19.8 Both the parties fix the date, time and place for payment of balance sale consideration, execution of sale deed, registration of the sale deed and handing over of the possession.
19.9 The parties complete the sale transaction on the agreed date, time and place.
19.10 In normal parlance, both the parties remain in touch either personally or through the property dealer.
20. The problem arises when one of the parties turns dishonest. However, the party in breach purports to be ready and willing and creates false evidence to that effect. At times, both the parties visit the office of Sub Registrar on the last day of performance for obtaining a receipt of having attended the office of the Sub Registrar to later on contend that they were ready and willing to perform and were waiting for other party. If Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 94/109 the seller is in breach, he creates false evidence of readiness to avoid specific performance by the purchaser and to illegally forfeit the earnest money. On the other hand, if the purchaser is in breach, he creates false evidence of readiness and willingness to file a case of specific performance.
21. It is the duty of the court to find out which party has not performed and is trying to wriggle out of the contract.
22. The court has to take into consideration the ordinary course of human conduct and common sense to draw necessary inference. Drawing presumption is the backbone of the judicial process.
23. The silence or absence of correspondence by any party may be indicative of his dishonest intention. The dishonest intention of the seller can be inferred where the purchaser repeatedly contacts the seller for providing copies of the title documents or approval of the draft sale deed or fixing time for payment of balance sale consideration or execution/registration of the sale deed but the seller does not respond or avoids contact. On the other hand, the dishonest intention of the purchaser can be inferred where the purchaser does not contact the seller for approval of the sale deed and fixing the date, time and place for payment of balance sale consideration and execution/registration of the sale deed and unilaterally visits the office of the Sub Registrar to prepare a false ground that he was ready and willing to complete the sale. At times, the dishonest purchaser relies on an application for loan to the bank or financial institutions without completing the necessary formalities for taking the loan in order to create a false ground of readiness. By the time the suit is finally decreed, the purchaser would get the property at the price fixed in the agreement although the prices would have increased manifold. The court has to minutely examine the conduct of the parties in order to ascertain the truth. The purchaser would not be entitled to a decree merely because he had the sale consideration with him and had visited the office of the SubRegistrar before the time fixed in the agreement.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 95/109
24. Upon refusal of the seller to complete the sale in terms of the agreement, the purchaser is expected to issue a notice to place on record the refusal on the part of the seller to furnish copies of the documents or giving a response to the draft sale deed or fixing the schedule for execution and registration of sale deed. The purchaser can also notify the date and time for visiting the office of the SubRegistrar along with proof of the balance sale consideration to the seller. The purchaser is also expected to immediately file a suit for specific performance. Any delay in this regard may indicate his intention that he was not ready and willing and the court may refuse to grant specific performance.
25. In a rising market, the purchaser makes a profit by the delay. He may tie down a seller by creating false excuses and use the money for buying some other property. If the purchaser is in a property trade, he may tie down several properties and then decide on which one he can make more profit on. These factors have to be taken into consideration by the Court for deciding the "readiness" and "willingness"
26. Once a seller has entered into an agreement to sell an immovable property, he is looking for the sale consideration within the period stipulated in the agreement. If he does not get the money within the stipulated period, his plan to use the money for whatever purpose he has intended would get frustrated. He may have a plan to buy some other property or for some other purpose. Secondly, the delay in completion of sale also causes injustice to the seller as the property prices keep on increasing in normal parlance. As such, more the delay, the seller may suffer loss due to rise in property price and greater is the profit which the purchaser would derive by trying down a property and not paying the sale consideration within the stipulated period."
208. The Apex court has also held in N.P. Thirugnanam Vs. Dr. R. Jagan Mohan Rao (1995) 5SCC 115 that the court must take Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 96/109 into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances to adjudge the readiness and willingness of the plaintiff. The amount of balance sale consideration must be proved to be available with the purchaser right from the date of execution till the date of decree. The continuous readiness and the willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance.
209. Thus the law is quite well settled that a buyer has to prove his continuous readiness and willingness to perform his part of contract from the date fixed for execution of the sale agreement till the date of the decree. It is also well settled that having the capacity to make the payment of sale consideration is indicative of readiness of the buyer to perform his part of the agreement.
210. In the present case, the readiness and willingness of Sh. Suresh Mansharamani has to be gathered not only from his ablity to pay the remaining sale consideration to Sh. V. S. Bhagat at the time of filing of the suit till today but also, his willingness to ensure that all the other requisite compliances as detailed in agreement sell dated 03.05.1988 (Ex.P3) were duly complied with. As held in my findings on issues no. 1, 2 and 4 above, Sh. Suresh Mansharamani has miserably failed to show his willingness to get the requisite formalities completed before execution of sale deed.
211. As regards his financial readiness and wilingness, Sh. Suresh Mansharamani has miserably failed to plead on record that he had ever informed Sh. V. S. Bhagat that he was ready with the balance sale consideration. Despite receipt of letter dated 17.06.1988 (Ex.PW1/3) and letter dated 20.07.1988 (Ex.PW1/4) from Sh. V. S. Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 97/109 Bhagat, Sh. Suresh Mansharamani kept quite and did not offer the balance sale consideration to Sh. V. S. Bhagat. There is no pleading of Sh. Suresh Mansharamani as what he was doing to ensure that the agreement to sell (Ex.P3) was acted upon after receipt of letter dated 20.07.1988 till the filing of the present suit on 28.02.1989. This silence of Sh. Suresh Mansharamani is sufficient to hold that he was neither ready nor willing to perform his part of the contract.
212. Sh. Suresh Mansharamani has also placed on record certain bank account statements of the sole proprietorship firm namely M/s. Rahul Industrial Corporation (Ex.PW4/2) and produced bank witness PW4 who gave the details of FDRs & KDRs in the name of M/s. Rahul Industrial Corporation (Ex. PW4/1) to show his financial capability to make the payment of the balance sale consideration to the defendant to Sh. V. S. Bhagat at the relevant time.
213. Perusal of statement of account (Ex.PW4/2) shows that the balance in the account was never sufficient to make a payment of Rs. 14,65,000/ which was the balance sale consideration as per his case. It is argued on behalf of Sh. Suresh Mansharamani that the bank account of M/s. Rahul Industrial Corporation was a current account with over draft facility and accordingly, Sh. Suresh Mansharamani was in a position to raise money to the tune of remaining balance sale consideration as and when required. However, this argument is of no support to the case of Sh. Suresh Mansharamani as nothing has come on record to the effect as to what was the overdraft limit of the current account maintained by M/s. Rahul Industrial Corporation. Fact remains that Sh. Suresh Mansharamani himself never deposed about his capability to pay the balance sale consideration of Rs.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 98/109 14,65,000/ during his examination as PW1. As regards the list of FDRs in the name of Sh. Suresh Mansharamani, proprietor of M/s. Rahul Industrial Corporation (Ex.PW4/1), perusal of the same shows that these FDRs are dated between 26.08.1988 till 28.03.1989. There is no clarity from the statement as the what was the maturity date of these FDRs/KDRs. Even the total of these FDRs is not equal to the balance sale consideration amount and is not sufficient to show the financial capability of Sh. Suresh Mansharamani to perform his part of agreement to sell.
214. In view of the reasons given above and considering overall evidence on record, I have no hesitation in holding that Sh. Suresh Mansharamani has miserably failed to prove on record his readiness and willingness to perform his part of the contract under agreement to sell dated 03.05.1988 (Ex.P3). This failure is not only a failure to bring on record his financial capability to honor the agreement but also a failure to prove his willingness to act upon the agreement by showing any overt act done by him in pursuance of the same.
215. This issue is, accordingly, decided against the plaintiff/Sh. Suresh Mansharamani and in favour of defendant no. 1/Sh. V. S. Bhagat.
ISSUE No. 5(5) Whether the plaintiff is entitled to a decree of specific performance, as prayed? If so on what terms? OPP
216. The onus to prove this issue was on the plaintiff/Sh. Suresh Mansharamani. In view of my issue wise finding given on Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors. 99/109 issues no. 1, 2, 4 and 3 above, plaintiff/Sh. Suresh Mansharamani is not entitled to a decree of specific performance primarily because there was no valid and subsisting agreement to sell at the time of filing of the suit and secondly, because Sh. Suresh Mansharamani has failed to prove his readiness and willingness and financial capacity to go ahead with the agreement to sell dated 03.05.1988.
217. It is also noteworthy that in the present suit, there is another reason for which the discretionary relief of specific performance cannot be granted in favour of Sh. Suresh Mansharamani. Reason being that as per own case of plaintiff/Sh. Suresh Mansharamani, he had made a payment of Rs. 1.5 lakh only out of the total agreed sale consideration of Rs. 16,15,000/ which is barely about 9.2 % of the total sale consideration. The grant of specific performance is a discretionary relief and discretion of granting the same has to be exercised with great caution. Court is not bound to grant such relief merely because it is lawful to do so. But the discretion of the court is not arbitrary rather it should be guided by judicial principles and based on sound and reasonable grounds. It has been held by our superior courts in a catena of judgments that where a minimal percentage of total sale consideration has been paid by the buyer to the seller, this discretion should not be exercised in favour of the buyer except in exceptional circumstances.
218. It has been held by our own Hon' ble High Court of Delhi in Jitender Kumar Vs. Vijender Kumar RFA No. 275/2014 Order dated 12.11.2018 as under: " This court, therefore, holds that the respondent/plaintiff has failed to prove his financial capacity or readiness to go ahead with the subject Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
100/109agreement to sell.
In my opinion, there is another reason why the respondent/plaintiff is not entitled to specific performance in as much as the respondent/plaintiff has only paid a nominal amount of Rs. 50,000/ out of total sale consideration of Rs. 11,00,000/ i.e. barely about 4.5% of the total sale consideration. The grant of specific performance is a discretionary relief and this has been so held by the Supreme court in a number of judgments and one such judgment being the judgment of the Supreme Court in the case of Saradamani Kandappahn Vs. Mrs. Rajalakshmi, 2011 (12) SCC 18. I have had an occasion to examine this judgment of the Supreme Court along with other related aspects in the judgment in the case of M/s. Hotz Industries Pvt. Ltd. Vs. Dr. Ravi Singh (Since decd. Through Lrs) & Ors., 2018 SCC online (Del) 7618, and wherein this court has held that payment of nominal consideration of 5%, 10% or 20% will not entitle grant of discretionary relief of specific performance because even if the proposed seller on the suit being decreed much later than the date of agreement to sell gets only the sale price with interest, and that with this amount the seller cannot purchase an equivalent property which he would have purchased many years earlier when the agreement to sell was entered into. Today, we are in the year 2018 and the subject Agreement to Sell was of the year 2004, and therefore, for the price of the property in the year, an equivalent property in the year 2018 surely cannot be purchased"
219. These aspects have also been discussed in detail by Hon' ble High Court of Delhi in HOTZ Industries Pvt. Ltd. Vs. Dr. Ravi Singh CS (OS) No. 1261/1995 order dated 28.02.2018 2018 SCC Online (Del). Relevant paragraphs of the judgment are reproduced Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
101/109herein under:
" 22.(i) A reading of the ratio of the aforesaid judgment of this court in the case of Jinesh Kumar Jain (Supra) shows that a proposed buyer as a plaintiff when only has paid a very limited amount of consideration, then such a plaintiff may not ordinarily be entitled to the discretionary relief of specific performance when the grant of specific performance is being decided after a long period of time having elapsed after entering into the agreement to sell and the suit for specific performance coming up for final disposal. The logic is very simple that from the balance sale consideration which has to be paid by the plaintiff/proposed buyer under an agreement to sell to the defendant/proposed seller, even by adding thereto interest, surely the defendant/proposed seller from the balance sale consideration plus interest can not purchase a property of an equivalent type as would have been purchased by receipt of the sale consideration at the time when the agreement to sell was entered into many many years earlier.
(ii) As a result of rise in the prices of the property, that in the facts of the present case this Court can taken judicial notice that prices of properties in Delhi, and that prices in the year 1995 would be far far lesser than the prices of the property today in the year 2018, and that too more so with the fact of the suit property being situated in one of the prime colonies of the Delhi being Maharani Bagh, grant of specific performance will severely and gravely prejudice the defendants. On a conservative estimate the value of the suit property as on today would be at least around 20 times more than what was the price of the suit property in the year 1995 and that therefore, with the balance sale consideration payable to the defendants as on today even with interest, the defendants will not be able to purchase the property as the defendants could have purchased with the value of the balance sale consideration in the year 1995. "
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
102/109220. Applying the ratio of above two decisions of Hon' ble High Court of Delhi on the facts of the present case, since merely 9.2% of the sale consideration has been paid by the plaintiff/Sh. Suresh Mansharamani to the defendant/Sh. V. S. Bhagat in the year 1988, even if, Sh. Suresh Mansharamani is found entitled to a decree of specific performance, the said discretion cannot and should not be exercised in his favour directing Sh. V. S. Bhagat to execute the sale deed of the suit land in the year 2022 at a sale consideration fixed in the year 1988. Needless to say, in the present case, Sh. Suresh Mansharamani has miserably failed to even prove his entitlement to the exercise of discretion in his favour regarding the relief of specific performance.
221. In view of the reasons given above and overall evidence on record, this issue is decided against the plaintiff/Sh. Suresh Mansharamani and in favour of defendant no. 1/Sh. V. S. Bhagat.
DAMAGES:
222. Although, no issue has been framed in this regard but since there is an admitted agreement to sell between the parties under which part sale consideration has flowed from buyer/Sh. Suresh Mansharamani to the seller/Sh. V. S. Bhagat, I deem it appropriate to give my findings qua the same.
223. Before giving my findings on the issue in hand, it is necessary to discuss the relevant provisions of law and their interpretations as given by the Superior Courts in respect of claims of parties to damages in such like agreements for sale of immovable properties.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
103/109224. The relevant provision is contained in Section 74 of The Indian Contract Act 1872 which is reproduced herein under for the sake of clarity: 74: ''Compensation for breach of contract where penalty stipulated for when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for''.
225. Even at the cost of repetition it is stated that as per Section 74 of the Indian Contract Act 1872, the party complaining the breach is entitled to receive from the party who has broken the contract a reasonable compensation and in the case in hand, the plaintiff/buyer has been held to be the party who is responsible for breach of the contract as per my findings given in Issues no.1, 2, 4 & 3 above.
226. Section 74 of the Indian Contract Act,1872 has been interpreted by our Superior Courts in respect of the property transactions as is the case in hand in various decisions.
227. The Constitution Bench Judgment of the Apex Court reported as ''Fateh Chand vs Balkishan Dass,(1964) 1 SCR 515'' has dealt with Section 74 of the Indian Contract Act, 1872, at length. Para 10 of the judgment is relevant and read as under: ''10. Section 74 of the Indian Contract Act deals with the measure of damages in two Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
104/109classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a contract containing a convenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by Section 74 reasonable compensation not exceeding the penalty stipulated for. In assessing damages the court has, subject to the limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of the case.
Jurisdiction of the court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated; but compensation has to be reasonable, and that imposes upon the court duty to award compensation according to the settled principles. The Section undoubtedly says that the aggrieved is entitled to receive compensation from the party who has broken the contract, whether or not actual damages or loss is proved to have been caused by the breach. Thereby it merely dispenses with the proof of "actual loss or damage", it does not justify the award of compensation when in consequence of the breach of contract no legal injury at all has resulted, because compensation for breach can be awarded to make good loss or damages which naturally arose in the usual course of things, or which the parties knew when they made the contact, to be likely to result from the breach".
228. Relying upon the judgment of Fateh Chand (Supra), our own High Court in ''Anand Singh Vs. Anurag Bareja RFA No. 480/2011 dated 28.11.2011 held as under: Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
105/109''3. It is therefore, clear that a seller under an agreement to sell, when he has received monies under the agreement to sell, can not forfeit such amount, unless loss is pleaded and proved by him. It is the respondents/defendants who have to plead and prove entitlement to forfeiture on account of loss having been caused on account of breach of contract by the appellant/proposed buyer. Thus even assuming the appellant/plaintiff/proposed buyer is guilty of breach of contract, yet, the respondents/defendants will have to raise appropriate pleadings with respect to loss, get an issue framed, and thereafter lead evidence on such issue to show that losses have been caused to them on account of breach of agreement to sell by the appellant/plaintiff/proposed buyer, entitling the forfeiture of the amount.
229. In Anand Singh's case (Supra) the buyer was held guilty of breach of contract, still the seller was not permitted to forfeit the entire advance amount paid to him and suit of the plaintiff/ buyer for refund of advance money of Rs.10,00,000/ was decreed for a sum of Rs. 9,50,000/ alongwith interest @ 12% per annum simple.
230. Similarly, in Vandana Jain Vs. Rita Mathur & Ors. RFA No. 38/2018 decided on 20.04.2018; it has been held that forfeiture of the advance amount paid to the seller is allowed only to the extent of loss caused to the seller on account of the breach of contract by the buyer.
231. Law has been well settled in the above referred decisions that the plaintiff has to specifically plead and prove the Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
106/109loss suffered by him on account of breach of contract by the defendant. Issue is required to be framed on this aspect and evidence led by the parties. Only thereafter, the court has to decide if the seller is entitled to forfeit any amount of the advance paid or the buyer is entitled to receive any compensation.
232. In the present case, indubitable position which has emerged from record is that there is no pleading of either plaintiff/Sh. Suresh Mansharamani or the defendant no. 1/Sh. V. S. Bhagat qua any loss having been caused to them on account of nonexecution the contract (Ex.P3). There is also no issue framed on this aspect and obviously no evidence led on behalf of either of the parties to show how breach of contract had caused loss to them entitling them to receive compensation.
233. In view of the discussion and reasons given above, I have no hesitation in holding that the plaintiff/Sh. Suresh Mansharamani has miserably failed to prove his right to receive any sum towards the damages and defendant no. 1/Sh. V. S. Bhagat has also failed to prove his right to forfeit the part sale consideration amount already received by him from Sh. Suresh Mansharamani/plaintiff.
234. Having held that none of the parties is entitled to receive any compensation from the other for non execution/breach of agreement (Ex.P3), this court is still required to balance the interests of both the parties as a part portion of sale Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
107/109consideration has been admittedly given by plaintiff to the defendant no. 1 for purchase of a property, which transaction could not fructify. Equity demands that no one should be unjustly enriched at the cost of other. Retaining of the advance amount paid by the plaintiff to the defendant no. 1 would amount to unjust enrichment of the defendant at the cost of the plaintiff.
235. In view of the law laid down in the decisions cited above, merely because the plaintiff/buyer has been at fault, it would not be lawful for the defendant/seller to forfeit the entire amount of the earnest money as it would amount to a penalty.
236. Now in this case, there is a dispute between the buyer Sh. Suresh Mansharamani/plaintiff and seller Sh. V. S. Bhagat/defendant no. 1 regarding the amount of sale consideration which has been paid by plaintiff to defendant no. 1 under the agreement to sell dated 03.05.1988 (Ex.P3). While Sh. V. S. Bhagat/defendant no. 1 is admitting only receipt of Rs. 1,00,000/; as per Sh. Suresh Mansharamani, he had paid Rs. 1,50,000/. Sh. V. S. Bhagat is relying only on the ocular testimony of his son/LR Major General M. P. Bhagat (Retired) who is examined as DW1 in is the suit filed by Dr. Rakesh Verma to support his contention in this regard. Per contra, Sh. Suresh Mansharamani is relying on his own testimony as PW1; testimony of the property dealer through whom deal was finalized namely Sh. Pradeep Kumar Dhingra who is examined as PW2; Agreement to sell (Ex.P3) which records payment of Rs. 1,00,000/ (Rs. 50,000/ in cash and Rs. 50,000/ by cheque) as well as receipt (Ex.P1) which records a further payment of Rs. 50,000/. Weighing the evidence of both the parties on the scale of preponderance of probabilities, I have no hesitation in holding that from the documents on record, it is duly proved that part Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
108/109payment of Rs. 1,50,000/ was made by the plaintiff to the defendant no. 1 qua agreement to sell (Ex.P3). Mere ocular testimony of DW1 (In Dr. Rakesh Verma's case) is not sufficient to ignore the written documents proved and admitted on record i. e. agreement (Ex. P3) and Receipt (Ex. P1).
237. Considering the overall facts of the case, I am of the opinion that justice requires that the defendant no. 1/Sh. V. S. Bhagat refunds the earnest money/part payment of Rs. 1,50,000/ to the plaintiff. This amount will carry a future interest @ 10% p.a. (simple) from the date of decree till its realization. This issue is accordingly, decided in favour of the plaintiff and against the defendant no. 1 holding that the plaintiff is entitled to a money decree for a sum of Rs. 1,50,000/ with future interest @ 10% (simple) p.a. from the date of decree till its realization. Pendente lite interest is not awarded as the litigation is pending since last 33 years due to default and delays by all the parties.
238. Before parting, it would be appropriate to point out that defendant no. 1/Dr. Rakesh Verma has proved on record sale deeds of various properties in the area during the contemporary period to prove the point that the value of the suit land at the relevant time was around 78 lakhs and not Rs. 1617 lakhs. But, in view of my findings above, these documents have become irrelevant and are thus not touched upon in the judgment.
239. It is also noteworthy to mention that during the course of arguments Ld. counsel for Dr. Rakesh Verma has vehemently argued that the receipt dated 02.03.1988 allegedly executed by Shri V S Bhagat in favour of Dr Rakesh Verma (Ex.PW1/9 in Dr Rakesh Verma's case) Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
109/109has been considered by Hon'ble High Court of Delhi as well as the Apex Court not once but twice. However, no doubt has been expressed on its authenticity. Accordingly, at the stage of final arguments this receipt dated 02.03.1988 (Ex.PW1/9) cannot be challenged.
240. Perusal of the record shows that the challenge which Ld. counsel for Dr Rakesh Verma has been referring to was a result of an order dated 08.01.2019 whereby Ld. Predecessor of this court allowed an application filed by Shri Surseh Mansharamani u/s 45 of Indian Evidence Act in Dr Rakesh Verma's case seeking permission to obtain expert opinion of handwriting expert qua signatures of Shri V S Bhagat on receipt dated 02.03.1988 (Ex.PW1/9). The said order was challenged by Dr Rakesh Verma before Hon'ble High Court of Delhi by way of C.M.(Main) 620/2019. Vide order dated 11.09.2019, the said order of Ld. Predecessor of this court was set aside by Hon'ble High Court of Delhi. This order was then challenged before the Apex Court by way of an SLP wherein vide order dated 11.11.2019, the Apex court gave liberty to the petitioner Shri Suresh Mansharamani to file a review petition before Hon'ble High Court of Delhi. Again a Review Petition was filed before Hon'ble High Court of Delhi bearing Review Petition no. 492/2019. The said review has also been dismissed by Hon'ble High Court of Delhi vide order dated 05.01.2022. The said order was again challenged by way of an SLP which also stands dismissed.
241. Contention of Ld. Counsel for Dr Rakesh Verma is that since the document dated 02.03.1988 (Ex.PW1/9) has already been challenged till the Apex Court with no findings against the same, it cannot be challenged now at the final stages by either of the parties. I have perused all the orders of the Superior Courts. I do not find any merit in this contention of Ld.counsel for Dr Rakesh Verma as it is Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
110/109specifically observed by Hon'ble High Court in order dated 11.09.2019 that :
" The suit being of 1989 vintage, defendants no.1 & 2, if they intended to challenge the said receipt, ought to have done so in their pleadings, and ought to have lead evidence of any expert whom they chose. Whether the same has been done or not, is an issue which the trial court will adjudicate on the basis of pleadings and evidence on record. ''
242. Thus, clearly the question of validity/authenticity/nature of document dated 02.03.1988 (Ex.PW1/9) has not been considered or decided by the Superior Courts. Rather there is a clear observation that such questions have to be adjudicated at the stage of final hearing of these cases.
RELIEF:
243. In view of my issue wise findings given above, the suit of the plaintiff qua the relief of specific performance stands dismissed. However, plaintiff/Sh. Suresh Mansharamani is held entitled to a money decree of Rs. 1,50,000/ (Rupees One Lakh fifty Thousand Only) with future interest @ 10% p. e. (Simple) from the date of decree till its realization. Pendente lite interest is not awarded as the litigation is pending since last 33 years due to default and delays by all the parties.
244. No order as to costs.
245. Decree sheet be prepared accordingly.
Civ DJ No. 609188/2016 Suresh Mansharamani Vs. Vidya Sagar Bhagat & Ors.
111/109File be consigned to record room.
Digitally signed by SHIVALIAnnounced in the presence of the SHARMA
SHIVALI
counsel for both the parties SHARMA
Date:
2022.06.10
on: 10.06.2022. 18:56:34
+0530
(SHIVALI SHARMA)
ADJ03/WEST/THC/DELHI
10.06.2022.
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