Delhi District Court
M/S Sparrow Agro Forest Ltd vs Smt. Virender Kaur on 31 August, 2017
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST, SAKET
COURTS, NEW DELHI
Presiding Officer: Ms. Neelofer Abida Perveen, ADJ04
Suit No.133/16
CIS No. 9870/16
In the matter of :
M/s Sparrow Agro Forest Ltd,
Through its Managing Director,
Sh. Arvind Kumar Bansal,
Address: Purani Mandi, Narnaul,
DistrictMahendragarh, Haryana. .....Plaintiff.
Vs
1.Smt. Virender Kaur W/o Gurmit Singh @ Bunti
2. Gurmit Singh @ Bunti (deceased) through LRs:
2A. Sh. Tajender Singh S/o Late Gurmit Singh 2B. Ms. Jasmit Kaur D/o Late Gurmit Singh All 12B are:
R/o 29C, Second Floor, Hari Nagar, Ashram, New Delhi110014. ......Defendants.
Date of institution : 30.09.2002 Date on which order was reserved : 28.08.2017 Date of pronouncement of the order : 31.08.2017
Vide this judgment, I shall decide the present suit instituted by the plaintiff on 28.02.2002 seeking possession of basement and FF Portion of House no: 55, Hari Nagar, Ashram, New Delhi by way of CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 1 of 91
specific performance of agreement dated 28.10.1997 or in the alternative for recovery of Rs. 24,15,000/ with interest pendenelite and future @ 24% and damages in the amount of Rs. 2,95,702/ and an application u/s 33 of the Stamp Act filed on 7.3.2007.
1. The plaintiff has instituted the suit for possession and specific performance on a set of facts that the plaintiff, a Public Limited Company had established its office at House no.55, Hari Nagar, Ashram, New Delhi110014 in the basement of the disputed premises at the above mentioned address and installed the following furniture and fixtures in the building at its own cost gradually.
Sr. No. Articles Price
(1) (2) (3)
1. Cordless Telephone 3500.00
2. Folding Chair, Table 3115.00
3. Cabin and Counter 10,000.00
4. DO 5,00.00
5. DO 6300.00
6. Almirah 1200.00
7. Cabin and Counter 6000.00
8. Do 4000.00
9. Chairs 3650.00
10. Almirah 2410.00
11. Do 1245.00
12. Table Light 740.00
13. Mobile Phone 21000.00
14. Ceiling Fan 1160.00
15. Cabin Counter 5500.00
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
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16. Telephone 1 6000.00
17. Do 585.00
18. Revolving Chair 10050.00
19. Jute Matting Table 2464.00
20. Fan, Brief Case, E/Wood Wall 8135.00
Clock
21. Telephone Set 352.00
22. Bed Matress 1350.00
23. Telephone Set 1550.00
24. Cabin and Counter 65175.00
25. DO 19782.00
26. DO 10400.00
27. DO 6245.00
28. DO 5800.00
29. DO 1100.00
30. Telephone Set 1650.00
31. Cabin Counter 2000.00
32. Collar 1000.00
33. Cabin and Counter 3467.00
34, Telephone Set 1100.00
35. Office Furniture 5300.00
36. Almirah 1 no. 2700.00
37. Table 2 Nos. 4000.00
38. Chair 6 Nos. 1650.00
39. Ply 3127.00
40. Diwan 6X4 2100.00
41. Revolving Chair 2 Nos. 3400.00
42. Table 5X5 1 No. 2000.00
43. Sofa Set 1 No. 5100.00
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
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44. Office Chair 10 Nos. 3350.00
45. Diwan 6X3 1 No. 1600.00
46. Sofa 1 NO. 2750.00
47. Table 1 No. 800.00
48. Matress 1 No. 850.00
49. Folding Bed 2 Nos. 700.00
50. Sliding gate 1 no. 2387.00
51. Typewriter 1 no. 3300.00
52. Paint 500.00
53. Clothes 335.00
54. Wall Clock 150.00
55. Tube Set 2 Nos. 260.00
56. Board 1 No. 1256.00
57. Electrical Items 840.00
58. Chairs 5 Nos. 850.00
59. Cabin Counter 5000.00
60. Sign Board 906.00
61. Glass 240.00
62. Scening 535.00
63. Sign Board 270.00
64. By cycle 838.00
65. Calculator 100.00
66. Wall Painting 1 No. 450.00
67. Office counter 1600.00
68. Sign Board 144.00
69. DO 1916.00
70. Table 1 No. 2000.00
71. Chair (E) 1 No. 1100.00
72. Steel fur 400.00
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
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73. Chair 1 No. 230.00
74. Electric Item 2238.00
75. Glass 3"6'X2 440.00
76. Stove 1 No. 290.00
77. Jug 1 No. 250.00
78. Crockery Mise 1390.00
That the plaintiff company utilised a portion of the premises i.e. 1st Floor as the residence of the Regional Manager, Smt. Geeta Bansal and the then Director Sh. Arvind Bansal of plaintiff company who kept the following articles in the residential portion:
Sr. No. Articles Price
1. Dewan Bed 7000.00
2. Dining Table 6000.00
3. T.V Table 800.00
4. With Glass Centre Table 38000.00
5. Collen 2 Nos. 4000.00
6. Folding Bed 2 Nos. 700.00
7. Fridge 6000.00
8. Mattress, Bed Sheet and Sofa 400.00
Cushion
9. Philips Mixy 2500.00
10. Dressing Table with glass 3500.00
11. Children toys 5000.00
12. Crockery 5000.00
13. Photo album & Video cassette of 5000.00
marriage
14. Dinner Set 8500.00
15. Curtains with pipe 400.00
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
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16. Glass 500.00
17. Ring Gold 3500.00
18. Chain Gold 15000.00
19. Hand Ring Gold 22000.00
20. Steel Press 1400.00
21. Godrej Almirah 1500.00
22. Emergency Lights 2400.00
23. Four Ceiling Fans Rs.600 each 2400.00
24. Door Closure 650.00
25. Sign Board of company with Tube 1400.00
Lights
26. Shoes and Sandals and Socks 2000.00
That defendant no.1 agreed to sell the basement portion of the premises in the month of July, 1997 for a consideration of Rs.11,50,000. As per requirements and desire, the defendant no.1 obtained the sale price from the plaintiff in installments against receipts/vouchers of the plaintiff company. That in the October 1997 the defendant no.1 agreed to sell 1st Floor of the premises also to the plaintiff for a sum of Rs.13,00,000/. The site plan of the disputed property is schedule 1 to the present suit. That as per the desire and requirements of the defendant no.1 the consideration against sale of 1st Floor of the premises at the above mentioned address was also paid by the plaintiff to the defendant no.1. That by 30.3.1998 the plaintiff had paid Rs.20,05,000 to the defendant no.1 against which the defendant no.1 also gave a written note/agreement acknowledging the receipt of the amount of Rs.20,05,000 by 30.3.1998. That subsequently the plaintiff paid Rs.4,10,000/ to the defendant CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 6 of 91
(Rs.3,10,000/ on 8.6.1998 and Rs.1,00,000 on 8.8.1998), against the receipt/vouchers out of the remaining balance sale price. In this way defendant no.1 has been paid Rs.24,15,000 by the plaintiff against the agreed sale price of Rs.24,50,000. The balance of the consideration for the aforesaid sale to be paid to the defendant no.1 by the plaintiff is Rs.35,000/. That in order to execute the sale deed towards the sale of the above mentioned properly defendant no.1 was required to obtain certain documents, namely, the income tax clearance and the documents of clear title, approved site plan of his building, necessary approval from DDA and the Municipal Corporation and Town Planning Department and NFC (Non Encumbrance Certificate of the Registrar). The plaintiff requested defendant no.1 on 29.5.1999 and then time and again to obtain the aforesaid documents in order to execute the said sale deed with endorsement to police. The plaintiff requested the defendant no.1 to do the same without any loss of time. This request was again reiterated on 6.12.1999 both by registered A.D and courier. However every time the defendant no.1 refused to accept notice. That since 8.8.1998 defendant no.1 has been lingering on the matter of extension and registration of the sale deed on one pretext or the other. Plaintiff has been requesting defendant no.1 time and again to do his part of the job but in vain. That plaintiff has always been ready and willing to get the sale deed executed on payment of balance sale price/consideration but defendant no.1 has been lingering on the matter on one pretext or the other. That the defendant no.1 is failing to perform her part of the agreement, thereby shirking off from discharging her legal obligation because of CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 7 of 91some malafide intention. That defendant no: 1 did not obtain the aforsaid requisite documents for the execution of the sale deed and is delaying the matter unnecessarily to great prejudice of the plaintiff. That the defendant no: 2 husband of the defendant no: 1 is strong and influential person and claims to have got the support of muscle power. He was threatening time and again to interfere in possession of plaintiff on one pretext or the other. The staff of the company of plaintiff always apprehended harassment and unlawful victimization on the part of the defendant whose entry had been banned by them. They had put their locks on the premises and now the plaintiff has learnt that all the goods mentioned in paras 2 and 3 have been removed by defendants on or about on the night of 19.09.2002. The goods are worth Rs. 2,95,702/ This has also been duly complained to the police. This shows that the defendants have turned dishonest and are not ready to perform their part of the agreement. That the defendant no: 1 has obtained whole of the consideration price except Rs. 35000/ and is under an obligation to execute the saledeed on receipt of the balance sale price of Rs. 35000/. The plaintiff is obliged to execute the aforesaid sale deed and get it registered by virtue of the agreement to sell dated 28.10.1997. The saledeed was to be executed on or before 30.09.1999 which was to be date of the execution and registration of the saledeed of both floors i.e. the basement and first floor of the suit property. That the plaintiff has come to know through reliable sources that the defendants have now planned to alienate the suit property to someone else. The plaintiff being in possession of the suit property in entitled to retain the CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 8 of 91possession of the same. The defendants have no right to interfere in the possession of the same in any manner whatsoever. The plaintiff has issued a legal notice dated 29.05.1999 to Defendant No: 1to execute the sale deed by 30.09.1999 in favour of the plaintiff but the defendants are conniving with other to defeat the valuable right of the plaintiff to utilize and enjoy the said property. If the defendants succeed in their evil designs, the plaintiff would suffer irreparable loss and injury. Therefore, the plaintiff is entitled of permanent injunction against the defendant. That the plaintiff issued another legal notice dated 06.12.1999 to the defendant no: 1 to fix the date for the execution and registration of the sale deed but the defendant no: 1 refused the delivery of all the notices on one protest or the other. It is clear from the report of the postman that the defendants have deliberately avoided the services of the notices sent by the plaintiff for execution of the sale deed. That the defendant no: 1 has deliberately caused a breach of the terms of agreement dated 28.10.1997 and is liable to execute the sale deed in favour of the plaintiff. If the defendant fails to execute the sale deed on one ground or the other, she is liable to repay the money already paid to her by the plaintiff along with interest pendentlite and future interest at the rate of 24% per annum till the date of its realization. So the plaintiff is entitled to a decree of specific performance, further of permanent injunction against the defendants and in favour of permanent injunction against the defendants and in favour of the plaintiff or in the alternative a decree for recovery of money with interest pendente lite and future interest at the rate of 24% per annum CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 9 of 91till the date of realization. That the plaintiff presented himself before the Registrar with balance price and price for stamp and registration charges on 30.09.1999. However, the defendant did not turn up. The plaintiff got up will registered on the said date of mark his presence before the Registrar. That the cause of action to file the present suit accrued on 28.10.1997 when the agreement to sell was executed by the parties i.e. plaintiff and defendants. The cause of action against the defendants arose on several dates on which payments were made against the consideration of the sale in dispute. The cause of actions further arose on 28.10.1997 when agreement to sell was executed between the parties. It also arose on 30.09.1999 when the plaintiff presented before the Registrar for execution of the sale deed. It also arose on 29.05.1999 when the defendant was called upon to execute the saledeed by 30.09.1999 and balance amount was sought to be tendered. It also arose on 06.12.1999 when the legal notice was sent to the defendant no: 1 and on various dates when the defendant no: 1 avoided the service of the said notice which was sent to the defendant no: 1. It also arose on 30.09.1999 when the defendant was supposed to execute the saledeed. The cause of action is still continuing and shall continue to subsist till the defendant no: 1 specifically performs its part of the agreement dated 28.10.1997 i.e. by executing the sale deed in favour of the plaintiff or, alternatively, refunds the consideration towards the sale already i.e. Rs. 24,15,000/ along with 24% interest pendentelite and future interest thereon.
2. The defendants put in appearance and filed written statement raising the preliminary objection that the suit is not CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 10 of 91maintainable, that the suit not properly valued for the purposes of court fees and jurisdiction. That the relief of specific performance has been valued for a sum of Rs. 24,15,000/ the alleged agreement relied upon by the plaintiff in the present suit shows that the total consideration was agreed to be Rs. 24,50,000/. The plaintiff has not valued the relief of specific performance in accordance with law and as such the plaint is liable to be rejected. That the plaintiff has not valued the suit for the purpose of court fee and jurisdiction with respect to the relief of possession. It is submitted that the plaintiff has prayed for possession of the basement and first floor portion of House No. 55, Hari Nagar Ashram, New Delhi110014. That under the present suit the claim of the plaintiff has been that he was in the possession of the suit premises even prior to the date of alleged agreement dated 28.10.1997. It has been further alleged that the plaintiff has made various payments in pursuance of the agreement dated 28th October, 1997. That the case of the plaintiff as set out in para no: 13 of the plaint that defendants have broke open the locks of the plaintiff and removed its goods and in these premises the plaintiff has prayed for relief of possession. The reading of the plaint clearly suggests that the relief of possession as claimed is not as a consequential relief to the relief of specific performance. Relief of possession is an independent and substantiative relief claimed in the present suit and as such this relief should have been valued for the purpose of court fee and jurisdiction at the market value of the suit premises. However, the plaintiff has not valued the relief of possession at all and as such the plaint of the plaintiff is liable to be CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 11 of 91rejected. That the present suit as filed is liable to be dismissed on the ground of misjoinder and non joinder of the parties. The plaintiff has prayed, in substance, the relief of specific performance and possession. The case of the plaintiff has been that the defendant no: 1 is the owner of the suit premises. The relief of specific performance or the possession, even as per the case of the plaintiff, cannot be granted against the defendant no: 2. There is no case made out whatsoever against the defendant no: 2 who has been impleaded to the present lis just in order to harass the defendants and as such the present suit is liable to be dismissed. That the present suit is further liable to be dismissed on the ground that the alleged sale agreement dated 28th October, 1997 is not stamped. Without prejudice to the other rights and contentions of the defendants it is submitted that the alleged agreement should have been written and executed and stamped in accordance with the provisions of Indian Stamp Act. As the alleged agreement is not stamped the same is liable to be impounded by this Hon'ble Court. That the plaintiff alongwith the plaint has filed a copy of the site plan. The site plan is not according to the site. Its correctness is highly disputed. The defendants are filing a separate site plan which is according to the site. The site plan filed by the plaintiff suggests as if the plaintiff was in the possession of the entire first floor. That the entire first floor of the premises in question is in two different and independent parts having no connection whatsoever with each other. There are two separate entrances to the two different portions of the first floor. That the plaintiff has deliberately and intentionally filed the said incorrect site CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 12 of 91plan with ulterior motives and in order to harass the defendants. As the plaint is not accompanied with the true and correct site plan, the present suit is liable to be dismissed. That the present suit is further liable to be dismissed on the ground that the plaintiff has prayed for equitable reliefs in the present suit. It is the settled preposition of law that persons claiming on equitable relief must come with clean hands. The plaintiff has filed the present suit on the basis of false, frivolous, forged and manipulated documents and as such the present suit is liable to be dismissed. The present suit is nothing but a bundle of lies. That the alleged letter dated 20 th, September, 2002 purported to have been written by the plaintiff company to the Commissioner of Police does not bear any acknowledgement or receipt at the hands of the Police Authorities. No postal receipt or other mode of service has been provided by the plaintiff. The letter in question is further unusual. No complaint or even the copy of this letter has been given to the local police authorities. It is very unusual that any complainant will straight away make his complaint to the commissioner of Police without moving the lower authorities. The same clearly suggests that this alleged letter dated 20 th, September, 2002 is nothing but an after thought. That the alleged sale agreement dated 20 th, October, 1997 is not stamped. It may further be seen that in the said agreement it has been alleged that "two lower floors of the building i.e. basement and first floor are on rent with M/s Sparrow Agro Forest Ltd., Hissar, since May, 1995. The said line in the document is totally false and the same clearly suggests that the document is a sham document. It may be submitted that the plaintiff i.e. M/s Sparrow Agro Forest ltd CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 13 of 91came in existence only in March, 1997 and as such it could not have been in possession of the suit premises in the capacity of tenant or otherwise since May, 1995. Even otherwise the document has been typed in the most unusual manner. The line spacing and the margin in the document clearly suggest as if the document has been typed on the paper already signed. The typing is such so as to cover a particular matter in a particular given space. Bare perusal of the name and address of the vendor and the vendee would suggest that how the space on the paper has been adjusted. That from the document the address of the defendants have been given as 323/6, Hari Nagar Ashram, New Delhi whereas to the own knowledge of Shri Arvind Bansal, Director of the plaintiff company, the defendants have never been resident of 323/6, Hari Nagar Ashram, New Delhi. To the specific knowledge of the plaintiff, the defendants are resident of 29C, Second Floor, Hari Nagar Ashram, New Delhi. That the plaintiff has furnished the false address just in order to avoid service of notice, summons or any other documents. That the document titled as "Agreement" further suggest that it is a false document. The tenure of the document goes to show that the same is receipt alleged to have been executed by the defendant no: 1. The alleged receipt is dated 30th March, 1998 but the same declare as if the defendant no: 1 has received a sum of Rs. 20,00,000/ till 31 st March, 1980. It is not understood that how a person on 30 th March, 1998 can execute a document to the effect that he has received a particular amount by 31st March, 1998, the same clearly suggests that the alleged document is false and fabricated. That the voucher annexed by the plaintiff at CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 14 of 91page no: 33 dated 29th, July, 1997 is further false and frivolous. There has been an apparent cutting on the date of the said voucher. The said voucher suggests as if a sum of Rs. 40,000/ has been paid to the defendant no: 1. No such amount was ever paid by the plaintiff to the defendants. The document is further unusual as in the debit column a sum of Rs. 40,000/ has been shown. However, in the credit coloumn only a sum of Rs. 30,000/ has been shown. Further, no cheque number has been mentioned in the credit side to the voucher. That the voucher for a sum of Rs. 60,000/ placed at serial no: 34 is again a false document. There is an apparent cutting in the column of date of the said voucher. Even otherwise no such cash payment was ever made to the defendants, as claimed in the said voucher. The voucher in question bears the loan account which has been strucked down and building amount has been written thereon. That the voucher for a sum of Rs. 1,.00,000/ placed at serial no: 35 is again a false document. There is an apparent cutting in the date of the same. The column of credit side has not been filled up. There has been no such payment made by the plaintiff to the defendant. That the voucher for a sum of Rs. 5,00,000/ alleged to have been given on 01st August, 1997 is further false. No such payment was ever made by the plaintiff to the defendants. That the voucher for a sum of Rs. 2,50,000/ alleged to have been given on 30 th August, 1997 is further a false document. No such payment was ever made by the plaintiff to the defendants. Again there is cutting on the said voucher which suggests that the dates have been put later on after the preparation of the documents and in order to adjust the accounts. The voucher for CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 15 of 91Rs. 50,000/ placed at page no: 30 does not bears the signatures of defendant no: 1. No such cash payment of Rs. 50,000/ was ever made by the plaintiff to any of the defendants. The document is totally false. There is a cutting on the same in the date as well as in the words written in the debit column. A bare perusal goes to show as if the date 16.06.1997 has been changed to 16.09.1997 in order to meet out the case of the plaintiff according to which the alleged agreement for basement floor was entered into in the month of July, 1997. That the voucher dated 19 th, September, 1997 in a sum of Rs. 50,000/ does not bears the signatures of any body. The said voucher has been prepared so as to make out the case of payment of Rs. 20,05,000/ as alleged in the plaint. The said document has been prepared only for this purpose. Even otherwise one such payment was ever made to the defendants by the plaintiff. That the voucher placed at page no: 40 is further false. In the debit column it shows as if a payment of Rs. 1,00,000/ has been made to the defendant no: 1. However, in the column showing the total amount only a sum of Rs. 10,000/ has been shown. Further, in the credit column only a sum of Rs. 50,000/ has been shown. All the suggest that how this document has been manipulated by the plaintiff. That the voucher dated 25 th October, 1997 for a sum of Rs. 10,000/ is further false. No such payment was ever made by the plaintiff to the defendants. The voucher dated 28th, October, 1997 showing the payment of Rs. 40,000/ suggests that it has been paid on account of the basement floor, however, the alleged agreement to sell dated 28 th, October, 1997 mentions that the said amount of Rs. 40,000/ has been paid as CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 16 of 91earnest money for the first floor. That the plaintiff has placed on record the voucher dated 17.11.1997 showing a payment of Rs. 1,00,000/ in favour of the defendants on building account. That the plaintiff who was the tenant under the defendants had given an interest free loan of Rs. 3,00,000/ to the defendants in order to enable the defendants to make out an additional floor on the premises. At the time of giving the said loan, the plaintiff has got signed some blank documents from the defendant and now it has been found that the blank documents got signed by the plaintiff has been misused by the m and has been manipulated in order to make out the present story. That the plaintiff has also placed on record various other vouchers and almost in all vouchers there is a cutting in the dates or in the other columns. These documents have been written in an unusual manner. No such payment has been made by the plaintiff to the defendants except a loan of Rs. 3,00,000/. It is submitted that the plaintiff was getting the blank voucher signed at the time of payment of rent those vouchers have now been misused by the plaintiff. The voucher placed at page no: 49, dated 08 th August, 1998 suggests as if the payment of Rs. 1,00,000/ has been made towards the ground floor of the property in question. It is nowhere the case of the plaintiff that there was any transaction between the parties regarding the ground floor of the property in question. All the vouchers placed by the plaintiff are false documents. That the plaintiff has also placed on record a receipt alleged to have been executed by the defendant no.1 in favour of the plaintiff on 29th July ,1997 thereby acknowledging the receipt of a CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 17 of 91sum of Rs.1,00,000/. However, as per the vouchers placed on record it is only a sum of Rs.40,000/ which is claimed to have been given by the plaintiff to the defendant no.1 on 29 th July, 1997. As per the own case of the plaintiff a sum of Rs.40,000/ was paid to the defendants. However, the alleged receipt suggest as if a sum of Rs.1,00,000/ has been received as on 29 th July , 1997. It is submitted that both the documents are false documents. It may further be submitted that once the said receipt was executed by the defendant no.1 there was no occasion to sign the voucher or if the voucher was signed by the defendant no.1 there was no need of executing a separate receipt for the same. This clearly suggests that the blank documents of the defendant no.1 has been misused by the plaintiff. That the plaintiff has again placed on record a receipt dated 01 st August, 1997 thereby claiming as if the defendant no.1 has been paid a sum of Rs.5,00,000/ with respect to the receipt dated 29 th July, 1997 and 1st August 1997 it is submitted that both these receipts have been addressed to the defendant no.1 and signed by the plaintiff as writer of the document. However, the wording of the document suggests as if the writer of the document has received the alleged amount. All this clearly suggests that how all these documents have been prepared by the plaintiff. The plaintiff has further placed on record one letter alleged to have been written by Saroj Saini, Advocate, on 29th May, 1999 which is in the form of a legal notice. The same does not bear signatures of any person. The same has been addressed to the defendant no.1 at a wrong address. Neither the defendant no.1 nor the defendant no.2 has ever been occupying the CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 18 of 91said premises and they are resident of 29C, second floor, Hari Nagar Ashram, New Delhi. In the said notice in para no.2 at item no.7 chairs have been shown to the value of Rs.2,650/ whereas in the complaint the same has been shown at Rs.3,650/. Similarly, in the item no.14 a quantity has been mentioned as 2 whereas no such quantity has been mentioned in the plaint. Similarly, at item no.17 the value has been shown in the notice as Rs.565/ where in the plaint the same has been increased to Rs.585/. The falsity can further been seen from the fact that at serial no.28 in the said notice it has been claimed that there was telephone set to the value of Rs.1,100/ whereas in the plaint the claim and counters have been shown for Rs.1,100/. Similarly there are several discrepancies in the said documents. It may further be noted that in the para no.3 of the notice at item no.4 glass centre table has been shown to the value of Rs.3,800/ whereas in the plaint the same has been claimed to be worth Rs.38,000/. Further in the said notice it has been claimed that the defendants have put the locks on the lock of the plaintiff in the suit premises. No such averment has been made in the plaint.
All the aforesaid discrepancies clearly suggests that the documents have been prepared by the plaintiff only with a view to file the present suit otherwise all the documents are false and forged one.
The plaintiff has also placed on record a document alleged to have been a legal notice dated 6 th December, 1999 wherein the plaintiff has pleaded in para no.14 of the same that on 3 rd June, 1999 the defendants have broken the locks of the plaintiff. No such CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 19 of 91averment has ever been made in the plaint. It is further not understood that if the defendant broke open the locks on 3 rd June 1999 then how the plaintiff has claimed in the suit that the locks of the plaintiff were broken open on 19 th September 2002. And why no complaint on 3rd June, 1999 or otherwise was ever made to the police authorities and why no action was taken against the defendants at that point of time. The present suit as filed is liable to be dismissed on the ground that the same is hopelessly barred by the law of limitation. The alleged sale agreement is dated 28 th October 1997 of which the plaintiff is seeking the specific performance. In the said agreement it has been stated that agreement to sell the basement floor in between the parties was entered into in the month of July , 1997. Further, in the alleged legal notice dated 6th December 1999 it has been mentioned in para no.14 that the possession of the first floor of the suit premises was forcibly taken by the defendants from the plaintiff and the plaintiff is out of the possession since 3 rd June 1999. The present suit has been filed in the last week of September, 2002. The present suit has not been filed within the period of limitation as prescribed under the law and as such the suit of the plaintiff is hopelessly barred by law of limitation and is liable to be dismissed. That the present suit as filed is not maintainable. It is submitted that a suit for specific performance can be maintained under section 10 of the Specific Relief Act only in pursuance of any contact. There has been no contract whatsoever in between the parties for the sale of the suit property and as such for the want of any contract and between the parties the suit is liable to be dismissed. On merits, it is denied CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 20 of 91that Sh. D.N Saini is the director for the plaintiff company or that he has been authorized vide resolution dated 18 th September 2002 or of any other date. It is contended that to the knowledge of the plaintiff Sh. Arvind Bansal and his wife Smt. Geeta Bansal are the directors of the plaintiff company. It is the said Sh. Arvind Bansal who has always been dealing with the defendants and the plaintiff company was inducted as a tenant only through the said Sh. Arvind Bansal. That the plaintiff has deliberately not stated as to when it established its office in the suit property. The answering defendants have no concern with the articles alleged to have been installed in the basement of the suit property. However, it is submitted that the said detail is contrary to the detail mentioned in the alleged legal notice dated 29th May 1999. There are lots of discrepancies in these two documents. The defendant has no concern whatsoever with alleged articles. Whatever articles have put by the plaintiff company in the suit premises in the capacity of a tenant were removed by them at the time of vacating the suit premises. It is denied that the plaintiff company utilized a portion of the first floor as residence of Regional Manager Smt. Geeta Bansal and the then director Sh. Arvind Bansal. It is submitted that the said Sh. Arvind Bansal was residing in the said portion of the first floor in the capacity of the tenant through another company M/s Neelgiri Forest Ltd., even prior to the date when the plaintiff company came in existence. The said Sh. Arvind Bansal got the confidence of the defendants. He had also got married with the said Smt. Geeta Bansal earlier known as Geeta Rani. Later on the said Sh. Arvind Bansal formed the plaintiff company and his CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 21 of 91tenancy was attorned in favour of the plaintiff company. The rent of the premises was being paid in cash by the said Sh. Arvind Bansal who was getting the blank voucher signed from the defendants. The said Arvind Bansal, director of the plaintiff company, further advanced on behalf of the plaintiff an interest free loan of Rs.3,00,000/ to the defendants, At the time of granting this loan the said Sh. Arvind Bansal further got some blank document signed by the defendants. Later on it was found that the plaintiff company is cheating the public at large and they have have taken the public deposits for various purpose including the defendants and they were unable to repay the said amount. The defendant no.1 further received a notice from the income tax authorities sometimes in the month of September 1999 under section 131 of the Income Tax Act regarding the alleged cash payments claimed to have been made by the plaintiff to the defendant no.1. Accordingly, the defendant no.1 realizing the fraud being played by the plaintiff upon the defendant had immediately informed the local police authorities and lodged a complaint dated 17th September, 1999 thereby informing that the plaintiff had got the certain blank documents signed from the defendants and those documents have been forged and fabricated by them and further that those forged documents are being used as genuine one against the defendants. The said complaint was made to the SHO, PS Srinwaspuri on 17 th September, 1999. The apprehension of the defendants came true when they were served with the summons of the present suit and found that the plaintiff has forged, fabricated and manipulated those blank documents and has misused CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 22 of 91the same in the present suit. It is denied that the defendant no.1 agreed to sell the basement portion of the premises in the month of July1997 or on any other date. It is further denied that the consideration was agreed to be Rs.11,50,000/. There has been no such agreement. Neither the defendant nor anybody on behalf of the defendant no.1 has ever agreed to sell the said basement portion or any other portion to the plaintiff for a consideration of Rs.11,50,000/ or for any other consideration. It is categorically denied that the defendant no.1 received any payment from the plaintiff much less the payments in installments against receipts/vouchers, as alleged by the plaintiff or at all, neither the defendant no.1 has agreed to sell the said basement floor nor any payment has ever been received. It is denied that in the month of October, 1997 the defendant no.1 agreed to sell first floor of the premises, as alleged or at all, the answering defendant has never agreed to sell the said first floor, as claimed or at all. It is categorically denied that the defendant no.1 agreed to sell the said first floor for Rs.13,00,000/ or for any other consideration. The alleged site plan is totally false and frivolous. The same is not according to the site. The correctness of the said site plan is highly disputed. The true and correct site plan of the suit property is being placed on record by the defendants. The reliance by the plaintiff on the site plan which is not according to the site further shows that the person who has filed the present suit is not well conversant with the facts and circumstances of the case and that the present suit has been filed on the basis of false documents. It is denied that as per desire and requirements of the defendant no.1 the alleged consideration was CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 23 of 91also paid by the plaintiff to the defendant no.1. There was no such agreement in between the parties nor the plaintiff has made any payment to the answering defendants or to any body claiming through the defendants. The story of the plaintiff is totally false and frivolous and as such denied. It is denied that by 30 th March 1998 the plaintiff paid a sum of Rs.20,05,000/ to the defendant no.1. It is further denied that the defendant no.1 has given any written note/agreement thereby acknowledging the receipt of Rs.20,05,000/ by 30th March, 1998 as alleged at all. The alleged agreement placed on record suggests as if the defendant no.1 has received the said amount by 31st March, 1998. The said document is a false document and the averments made in the para under reply are false and frivolous to the own knowledge of the plaintiff. The blank document obtained from the defendants at the time of grant of interest free loan of Rs.3,00,000/ have been misused by the plaintiff. Each and every allegations made in the para under reply is totally false and frivolous and as such is denied. It is denied that subsequently the plaintiff paid a sum of Rs.4,10,000/ to the defendant no.1. It is denied that the defendant no.1 has been paid any amount less the amount of Rs.24,15,000/ . It is denied that the defendant no.1 is to be paid a whatsoever in between the parties for the sale of the suit property,as alleged or at all. It is denied that in order to execute the alleged sale deed the defendant no.1 was required to obtain any document, as alleged or at all. It is reiterated that there has been no agreement in between the parties as alleged or at all. There arise no question of obtaining any approval or permission, as alleged in the para under CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 24 of 91reply. It is denied that the plaintiff requested the defendant no.1 on 29th May , 1999 or on any other date to obtain the said documents or to execute the sale deed, as alleged or at all. It is categorically denied that the plaintiff requested the defendant no.1 again on 6 th December 1999 as alleged or served upon the defendants. As a matter of fact they were sent on an address where the defendants do not reside. The same was done purposely and intentionally so that the said letters should not reach the defendants. It is denied that every time the defendant no.1 has refused to accept the said notice. It is denied that the plaintiff has always been ready and willing to get the sale deed executed. It is submitted that when there is no agreement for execution of any sale deed or for the sale of the suit property there arises no question of readiness and willingness of the plaintiff. It is denied that the defendant no.1 is failing to perform her part of the agreement as there is no such agreement. It is further denied that the answering defendant did not obtain the requisite documents, as alleged or at all. It is reiterated that there has been no agreement in between the parties and there arise no question of execution of the sale deed in favour of the plaintiff. It is denied that the defendant no.2 is strong and influential person or claims to have got the support or much power. It is denied that the defendant no.2 ever threatened to interfere in the possession of the plaintiff. It is further denied that the staff of the plaintiff always apprehended harassment and unlawful victimization on the part of the defendants. It is denied that the defendant no.2 has removed the goods of the plaintiff on the night of 19th September 2002. The same is further contrary to the alleged fact CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 25 of 91contained in para no.14 of the alleged notice dated 6 th December , 1999 wherein it has been claimed that on 3 rd June, 1999 the defendant has put its own lock and had broken open the locks of the plaintiff. It is denied that the defendants have removed the goods of the plaintiff much less the goods worth Rs.2,95,702/. It is submitted that the plaintiff company has been defaulter company and it has cheated the public at large as they are not returning the deposits of the public. In those circumstances where the public was pressing the plaintiff company very hard for their dues and further various depositors have made complaints to the local police, the plaintiff company, has by its own vacated the suit premises and removed its belongings and gave the vacant and peaceful possession to the defendant. It is denied that the defendant no: 1 has obtained the entire consideration except Rs. 35,000/ or that the defendant no: 1 is under obligation to execute the sale deed, as alleged or at all. The existence of the alleged agreement to sell dated 28 th October, 1977 is denied. It is denied that under the said agreement the sale deed was to be executed on or before 30 th, September, 1999. It is denied that the plaintiff has come to know through reliable sources that the defendants have now planned to alienate the suit property to some one else. It is denied that the plaintiff being in possession of the suit premises in entitled to retain the possession of the same. The claim of the plaintiff that it is in the possession of the suit premises is contrary to stand of the plaintiff in para no. 13 wherein it has been stated that the defendants have broken open their locks. It is further submitted that if the premises are in possession of the plaintiff then CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 26 of 91why the relief of possession has been claimed in the suit. The same shows the illegal and dishonest intention on the part of the plaintiff and the fact that how he is misusing and abusing the process of this Hon'ble Court. That the plaintiff is not in the possession of the suit premises. The alleged legal notice dated 29 th May, 1999 or 06th December, 1999, their existence, legality, validity and service is highly disputed and totally denied. It is denied that the defendants are conniving with any other person, as alleged or at all. It is further denied that the plaintiff would suffer any loss much less irreparable loss or injury, as alleged or at all. It is denied that the defendant no: 1 caused breach of terms of the alleged agreement dated 28 th, October, 1997. It is denied that any sale deed is to be executed in favour of the plaintiff through the defendants. It is denied that the plaintiff is entitled for any money alleged to have been paid by it to the defendants. The interest of claim does not arise in the absence of any payment. That the plaintiff is not entitled for any decree much less a decree of specific performance or permanent injunction as alleged or at all. The suit of the plaintiff being false and frivolous is liable to be dismissed. It is denied that the plaintiff presented himself before the Registrar with balance amount on 29 th September, 1998 or on any other date. The alleged notice dated 06th December, 1999 requires the defendant to execute the sale deed by 30th September, 1999 the presence of the plaintiff on 29th, September, 1998 is not understood. The suit of the plaintiff is contended to be without any cause of action and dismissal of the suit is prayed for.
3. Upon completion of pleadings the following issues are CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 27 of 91framed on 21.12.2009.
(1) Is the suit filed within the period of limitation. OPD (2) Does the plaintiff prove that he paid sum of Rs.
24,15,000/ as claimed, to the first defendant. OPP (3) Does the plaintiff prove that the agreement relied on is an enforceable agreement (to sell the basement and the first floor of house no: 55, Hari Nagar, Aasharam, New Delhi.) and was entered into with the first defendant on 02.10.1997 ? OPP (4) Whether the plaintiff proves the allegations pertaining to illegal removal of goods and articles, stored in the suit property, as alleged; OPP (5) Does the plaintiff prove readiness and willingness to perform his part of contract as on the date of filing of the suit and that such willingness is continuing. OPP (6) Relief.
4. The plaintiff had examined Sh. D.N. Saini as PW1. PW1 besides the affidavit in evidence has tendered into evidence the following documents: S. DOCUMENTS EXHIBIT NO 1 Copy of the Sale Agreement dated 28.10.1997 Ex. P1 in original.
2 Copy of Agreement / Receipt dated 30.03.1998 Ex. P2 for Rs. 20,05,000/ in original.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 28 of 913 Copy of Receipt dated 29.07.1997 for Rs. Ex. P3 40,000/ for payment made by the plaintiff to the defendant in original.
4 Copy of Receipt dated 30.07.1997 for Rs. Ex. P4 40,000/ for payment made by the plaintiff to the defendants in original.
5 Copy of Receipt dated 16.08.1997 for Rs. Ex. P5 1,00,000/ for payment made by the plaintiff to the defendants in original.
6 Copy of Receipt dated 01.08.1997 for Rs. Ex. P6 5,00,000/ for payment made by the plaintiff to the defendants in original 7 Copy of Receipt dated 30.08.1997 for Rs. Ex. P7 2,50,000/ for payment made by the plaintiff to the defendants in original.
8 Copy of Receipt dated 28.10.1997 for Rs. Ex. P8 40,000/ for payment made by the plaintiff to the defendants in original.
9 Copy of Receipt dated 10.12.1997 for Rs. Ex. P9 1,00,000/ for payment made by the plaintiff to the defendants in original.
10 Copy of Receipt dated 22.12.1997 for Rs. Ex. P10 20,00,000/ for payment made by the plaintiff to the defendant in original 11 Copy of Receipt dated 21.01.1998 for Rs. Ex. P11 2,00,000/ for payment made by the plaintiff to the defendant in original 12 Copy of Receipt dated 06.03.1999 for Rs. Ex. P12 50,000/ for payment made by the plaintiff to the defendant in original 13 Copy of Receipt dated 30.03.1998 for Rs. Ex. P13 1,55,000/ for payment made by the plaintiff to the defendant in original CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 29 of 9114 Copy of Receipt dated 08.06.1998 for Rs. Ex. P14 3,10,000/ for payment made by the plaintiff to the defendant in original 15 Copy of Receipt dated 08.08.1998 for Rs. Ex. P15 1,00,000/ for payment made by the plaintiff to the defendant in original 16 Copy of Receipt dated 29.07.1997 for Rs. Ex. P16 1,00,000/ for payment made by the plaintiff to the defendant in original 17 Copy of Receipt dated 01.08.1997 for Rs. Ex. P17 5,00,000/ for payment made by the plaintiff to the defendant in original 18 Affidavit by way of evidence of Sh. D.N. Saini Ex. P18 (PW1).
19 Copy of the resolution dated 21.09.2002 in Ex. P19 favour of Sh. D.N. Sani, PW1 20 Copy of the amended plaint amended with the Ex. P20 permission of the Court 21 Copy of the affidavit duly signed and verified Ex. P21 by Sh. D.N. Saini (PW1) in supported of the amended plaint 22 Copy of list of articles lying at House no: 55, Ex. P22 Hari Nagar, Ashram, New Delhi110014 in the basement 23 Copy of list of articles lying at House no: 55, Ex. P23 Hari Nagar Ashram, New Delhi110014 in the 1st floor 24 Copy of Receipt dated 16.09.1997 for Rs. Ex. P24 50,000/ against the amount paid by the plaintiff to the defendant.
25 Copy of Receipt dated 19.09.1997 for Rs. Ex. P25 50,000/ against the amount paid by the plaintiff to the defendant CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 30 of 9126 Copy of Receipt dated 25.10.1997 for Rs. Ex. P26 1,00,000/ against the amount paid by the plaintiff to the defendant 27 Copy of site plan of the disputed building Ex. P27 28 Copy of Receipt dated 25.10.1997 for Rs. Ex. P28 10,000/ against the amount paid by the plaintiff to the defendants 29 Copy of Receipt dated 17.11.1997 for Rs. Ex. P29 1,00,000/ against the amount paid by the plaintiff to the defendants 30 Copy of legal notice dated 29.08.1999 sent to Ex. P30 Smt Virender Kaur by Advocate Saroj Saini on behalf of the plaintiff.
31 The postal receipts in original Ex. P31 32 Copy of legal notice dated 06.12.1999 sent on Ex. P32 behalf of the plaintiff to the defendant no: 1 by Sh. R.S. Saini, Advocate.
33 The courier receipt in original Ex. P33 34 Registered AD card in original Ex. P34 35 Complaint dated 20.09.2002 sent to the Ex. P35 Commissioner of Police, New Delhi 36 Complaint dated 26.12.2002 sent to the Ex. P36 Commissioner of Police, New Delhi 37 Complaint dated 16.03.2003 sent to the Ex. P37 Commissioner of Police, New Delhi 38 Complaint dated 19.04.2004 sent to the Ex. P38 Commissioner of Police, New Delhi 39 Copy of criminal complaint no: 2360/1/2003 Ex. P39 filed by the plaintiff in the court of Ld. M.M., New Delhi.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 31 of 9140 True copy of the report dated 03.03.2004 filed Ex. P40 by the DCP in the court of Ld. MM, New Delhi in connection with Criminal Complaint no:
2360/1/2003
41 Copy of Will dated 30.09.1999 registered in the Ex. P41 office of SubRegistrar VII, New Delhi Additional affidavit along with criminal complaint is tendered as Ex. P43 to P44. The plaintiff has also examined Sh. Natha Ram as PW2, Sh. Arvind Kumar Bansal as PW3 and Ms. Geeta Bansal as PW4 and thereafter closed the evidence of the plaintiff.
5. Defendant has stepped into the witness box as DW1 and tendered into evidence her affidavit. Defendant no: 2, the husband of defendant no: 1 died during the pendency of the proceedings and LRs were brought on record as per amended memo of parties dated 07.03.2017.
6. My issue wise findings are as under All the issues being interlinked and interconnected, findings on one having consequential bearing on the other, are taken up together for discussion except issue no.4.
It has been a practice with me to gather at the outset the facts on which there is no contest between the parties to the lis or what in other words would be the admitted case of the parties as the starting point or preface to the discussion of the issues at hand. This is one peculiar case in which I find such an endeavor as an exercise in futility as practically there are no admitted facts to be sieved at the very outset which would facilitate the further discussion except that CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 32 of 91the defendant no.1 is the owner of the property described as bearing no.55, Hari Nagar, Ashram, New Delhi and that the defendant had inducted the plaintiff as a tenant over the basement and first floor of property described as bearing no.55, Hari Nagar, Ashram, New Delhi. It is the contention of the plaintiff that the defendant no.1 had entered into an agreement to sell with the plaintiff in respect of the Basement and First Floor of Property bearing no.55, Hari Nagar, Ashram, New Delhi against consideration and that the plaintiff has paid to the defendant no.1 as an aggregate an amount of Rs.24,15,000 towards the sale consideration agreed upon and the balance sale consideration in the amount of Rs.35,000 is to be paid upon the execution and registration of sale deed in favour of the plaintiff by the defendant no.1 in respect of Basement and First Floor of Property bearing no.55, Hari Nagar, Ashram, New Delhi. The defendants deny that any agreement to sell in respect of any portion of property bearing no.55, Hari Nagar, Ashram, New Delhi was entered into with the plaintiff and that any amount has been received by the defendants as payment towards the sale consideration in respect of Basement and First Floor of Property bearing no.55, Hari Nagar, Ashram, New Delhi. It being the positive assertion of the plaintiff that the defendant no.1 entered into agreement to sell with the plaintiff for the sale of the basement and first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi, the onus probandi is upon plaintiff to prove that the parties entered into an agreement to sell as alleged.
It is from paras 4 to 8 of the plaint that the plaintiff has set up the agreement to sell. I shall reproduce vertbatim the case set up CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 33 of 91by the plaintiff under paras 4 to 8 of the plaint.
"4. That defendant no.1 agreed to sell the basement portion of the premises in the month of July, 1997 for a consideration of Rs.11,50,000/. As per requirements and desire, the defendant no.1 obtained the saleprice from the plaintiff in instalments against receipts/vouchers of the plaintiff company."
" 5. That in the October 1997 the defendant no.1 agreed to sell 1st Floor of the premises also to the plaintiff for a sum of Rs.13,00,000.00. The site plan of the disputed property is Schedule I to the present suit."
6. That as per the desire and requirements of the defendant no.1 the consideration against sale of 1st Floor of the premises at the above mentioned address was also paid by the plaintiff to the defendant no.1."
"7. That by 30.3.1998 the plaintiff had paid Rs.20,05,000/ to the defendant no.1 against which the defendant no.1 also gave a written note/agreement acknowledging the receipt of the amount of Rs.20,05,000/ by 30.03.1998."
"8. That subsequently the plaintiff paid Rs.4,10,000/ to the defendant (Rs.3,10,000/ on 08.06.1998 and Rs.1,00,000/ on 08.08.1998), against the receipt/vouchers out of the remaining balance sale price. In this way defendant no.1 has been paid Rs.24,15,000/ by the plaintiff against the agreed sale price of Rs.24,50,000/. The balance of the consideration for the aforesaid sale to be paid to the defendant no.1 by the plaintiff is Rs.35,000/."
7. A contract for sale or an agreement to sell is an agreement CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 34 of 91that a sale of specified property shall take place on terms settled between the parties. The Transfer of Property Act contains a definition of an Agreement to Sell as a contract for sale under Section 54 in Chapter III and the same is reproduced hereunder for ready reference:
Contract for sale A contract for the sale of immovable property is a contract that a 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 such property."
The Section infact incorporates the definition of sale of immovable property which is a transaction by which ownership in immovable property is transferred in exchange for a price paid or promised or part paid and part promised. A contract for the sale of immovable property on the other hand is an agreement that a sale of the specified immovable property shall take place along the terms as agreed between the parties on some date in the future. An agreement to sell in itself does not create any interest in or charge on such property. However merely because the immovable property does not come to become vested in another person or ownership in the immovable property is not transferred under an agreement to sell, an agreement to sell is not an inconsequential agreement, giving rise to no legal obligations. An agreement to sell like any other agreement entered into of the free will and volition of the parties and for a legal consideration and a lawful object is enforceable at law. The parties to an agreement to sell are bound by the terms of the agreement and a suit to enforce the terms settled is maintainable on the strength of an CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 35 of 91
agreement to sell. Before jumping to the facts and circumstances of the present case it would be instructive to first comprehend the binding force behind an agreement to sell for as the statute provides it confers no right upon any party in the immovable property. A visit to the various definitions assimilated u/s 2 of the Contract Act culminating in the penultimate definition of contract is often instructive when seized of a lis calling upon the specific performance of an agreement. Under Section 2(h) of the Contract Act, an agreement enforceable by law is a contract. An agreement is defined as a promise, set of promises forming the consideration for one another and it is an offer or a proposal which upon acceptance becomes a promise. At the heart of the agreement therefore lies the proposal. When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal. When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise. The person making the proposal is called the "promisor", and the person accepting the proposal is called the "promisee". The proposal must be sufficiently definite to permit the conclusion of the contract by mere acceptance. Since a contract is concluded by the mere acceptance of an offer, the terms of the intended or proposed agreement must be indicated with sufficient definiteness in the offer itself. The terms of the offer must therefore be definite and certain. It is the consideration that binds the contract. The definition clause of the Contract Act provides that when, at the CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 36 of 91
desire of the promiser, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise. In terms of section 10 of the Contract Act, all agreements are contracts, if they are made by the free consent of parties competent to contract for a lawful consideration and with a lawful object and are not expressly declared to be void under the various provisions of the Contract Act. Section 10 of the Contract Act is reproduced hereunder for ready reference "All agreements are contracts if they are made by the free consent of parties competent to contract for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Nothing herein contained shall affect any law in force in India and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents."
Therefore an agreement to sell made of free consent of the parties and for valuable consideration is an enforceable contract, I.e, to say that in case one of the parties fails to perform his part of the promise or the reciprocal promise, such a party can be called upon by the court to specifically perform its promise or reciprocal promise. Damages and specific performance are both, remedies available upon breach of obligations by a party to the contract; the former is a substitutive remedy, and the latter a 'specific' remedy. Under the Common Law, as also under Indian law, damages is the presumptive CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 37 of 91
remedy, the remedy of specific performance being granted by way of exception. Specific performance is equitable relief, given by the Court to enforce against a defendant, the duty of doing what he agreed by contract to do. Thus, the remedy of specific performance is in contrast with the remedy by way of damages for breach of contract, which entail pecuniary compensation for failure to carry out the terms of the contract. A mature legal system endeavors to provide not merely a remedy for every right infringed but also an adequate remedy and the specific performance of a contract is envisaged towards this end of fostering an effective remedial action. When the law does not order specific performance as a presumptive remedy for breach of contract, it encourages the parties to break the contract when the cost of performance is greater than the value of performance on the ground that it is sometimes economically efficient for contract to be broken. Also, the thrust of the law of damages fails to take account of notions of sanctity of contract and the resulting moral obligation to honor one's promises. However, claim for specific performance is a remedy available as an exception. Specific performance is available when there is no standard for ascertaining the actual damage caused by non performance of the promise, or compensation in money would not be adequate relief for nonperformance and even then the relief is subject to the several provisions of the chapter 3 of the Specific Relief Act and the relief is not available as a matter of right but is discretionary. The plaintiff seeking the relief must first satisfy the Court that the normal remedy of damages is inadequate, the presumption being that in cases of contracts for transfer of immovable property, damages will CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 38 of 91
not be adequate. Even in these cases, specific performance is not always granted, it being a discretionary remedy.
8. Adverting to the case at hand under paragraph 4 of the plaint as reproduced above the plaintiff has set up an agreement to sell entered into by the defendant no.1 in respect of basement portion of the premises bearing no.55, Hari Nagar, Ashram, New Delhi. The agreement to sell is purported to be entered into in the month of July 1997. The plaintiff contends that the total sale consideration agreed upon between the parties for the basement was in the amount of Rs.11,50,000. Beyond these details the plaintiff does not divulge as to mode and the manner of payment to be made whether in lump sum or in installments. It is also not apparent as to whether any amount was paid as earnest money or as part payment in the month of July 1997 when the defendant no.1 had agreed to sell the basement portion to the plaintiff. Whether the parties in the month of July 1997 had agreed upon any schedule of the performance of the respective reciprocal premises, the payments to be made and the execution of the sale deed, is not stated and spelled out in unambiguous terms. The plaintiff was in possession of the premises in the status of a tenant in July 1997. The plaintiff does not allege that upon the entering into of the agreement to sell the possession of the plaintiff is in part performance of the agreement to sell. The most important aspect of the agreement to sell i.e the future date on which it is agreed between the parties to execute the sale deed is also not set up. Definite contours of a concluded contract cannot be deciphered from the averments set down under para 4 of the plaint. The plaintiff has left CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 39 of 91
the pleadings amorphous and vague. The plaintiff further contends that the sale price was obtained by the defendant no.1 from the plaintiff in installments. Whether it was agreed between the parties in July 1997 that the payments shall be made by the plaintiff to the defendant no.1 as and when required and desired by the defendant no.1 is not clearly stated in the pleadings. The plaintiff does not plead that the parties to the contract had agreed that part payments/payment of the sale consideration shall be made to the proposed vendor by the proposed vendee as and when so demanded and in the amounts as demanded by the proposed vendor. Within what time frame the entire payment shall be made and sale deed shall be executed tentatively even is not suggested in the pleadings to have been agreed between the parties to the agreement. What is pleaded is that the defendant no.1 obtained the payment towards sale consideration as per requirements and desires, what therefore emerges is that there was no agreement in July 1997 between the parties to the agreement to sell as to the performance of the reciprocal promises between the parties. The tenor of the case set up would suggest as if the total sale consideration was agreed upon in July 1997 without payment of any advance/token/earnest and subsequently as and when the defendant no.1 desired she asked for payments from the plaintiff in non specified amounts as the plaintiff does not state emphatically any manner/schedule of payment agreed upon between the parties in the month of July 1997. The plaintiff does also not state as to whether the agreement to sell was reduced into writing or whether it was an oral agreement to sell.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 40 of 91Moving further down to para 5 of the plaint the plaintiff sets up a second agreement to sell which pertains to the first floor of the property bearing no: 55, Hari Nagar, Ashram, New Delhi. The omission to specify the date on which the parties had entered into the agreement in no manner cripples the contract if the essential ingredients and the terms and conditions of a concluded contract are sufficiently elucidated. The agreement is for the sale / purchase of first floor of property bearing no: 55, Hari Nagar, Ashram, New Delhi for a sum of Rs. 13 lacs. Besides identifying the property, the subject matter of the Agreement to Sell and the total sale consideration agreed upon, no other terms and conditions are disclosed to have been agreed upon by the parties, for the transaction does not conclude the sale / transfer of the immovable property but is an agreement of the terms and conditions upon which the transfer / sale shall be effected on a future date between the parties. Moreover what I find particularly intriguing is why would the defendant no.1 agree to such an erratic incoherent module of receiving payment, odd amounts scattered over a period. The circumstance set up of the parties agreeing only on the total sale consideration to be paid without laying down any programme of staged payments or lumpsum payment at some future date or happening of a certain event, is highly unnatural and not probable conduct of reasonable ordinary men entering into an agreement to sell in respect of immovable property.
9. The relief of specific performance must be specifically claimed. The plaintiff shies away from clarifying as to whether the agreement was oral or in writing. A written contract is to be CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 41 of 91specifically pleaded and proved by producing the document for the inspection of the court. When the plaintiff claims specific performance of a particular agreement, the suit could be decreed for specific performance of only that agreement, and not any other. An agreement of sale of immovable property is not required to be in writing and oral agreements are also enforceable. In contra distinction to a sale deed which is required by law to be in writing signed by the party and registered, no format is prescribed for a contract for sale of immovable property and like any other contract a contract for sale of immovable property may be written or may be oral. An agreement to sell or a contract to sale need not be reduced into writing. An oral agreement to sell which would satisfy all the essentials of a concluded contract would be enforceable at law. As opposed to a sale deed, an agreement to sell need not be written, signed and registered. Whereas sale is a transfer of ownership in exchange for a price paid, or promised or part paid and part promised and u/s 54 is stipulated to be executed and registered in the manner prescribed u/s 54 of the Transfer of Property Act, no form is laid down in respect of a contract for sale. However, where the plaintiff seeks a decree for specific performance of an oral agreement of sale of immovable property, heavy burden lies on him to prove, first, that there was consensus ad idem between the parties and the oral agreement for sale was concluded. Secondly, that the vital fundamental terms for the sale of immovable property were concluded between the parties orally and any written agreement, if any, to be executed subsequently would only be a formal agreement incorporating such terms which had CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 42 of 91already been settled and concluded in the oral agreement. Whether there was such a concluded oral contract would be a question of fact. The burden of proof is heavy upon a person who intends to get an oral agreement specifically enforced through a Court of law. When a plaintiff institutes a suit seeking specific performance of an agreement to sell the ingredients of Section 10 are first and foremost to be pleaded and satisfied, as the substantive rules determining the existence of a valid contract are laid down in the Contract Act. A plaintiff, claiming specific performance of a contract, has to show that the conditions for the validity of the contract sought to be enforced, are satisfied in a particular case as set out. It has been stated in Halsbury Laws of England as under:
"Where it is sought to enforce specific performance of a contract, the Court must be satisfied (1) that there is a concluded contract which would be binding at law if all proper formalities had been observed and in particular that the parties have agreed expressly a impliedly on all the essential terms of the contract; and (2) that the terms are sufficiently certain and precise that the Court can order and supervise the exact performance of the contract."
What are the essential terms in the context of an agreement to sell upon which parties to the agreement are in agreement or ad idem must necessarily include the identity of the property which is the subject matter of the agreement to sell, the definiteness of the consideration the certainty in the manner of performance particularly the event upon the happening of which transfer of interest in the immovable property shall take place.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 43 of 91The essentials of an agreement to sell are enunciated by the Hon'ble Delhi High Court in the case of Braham Singh v Sumitra and Others [2011 (125) DRJ 570] as under:
"4. Some of the essential ingredients of an Agreement to Sell an immovable property are (i) identity of vendor and purchaser (ii) complete description of the property subject matter of the agreement (iii) amount of consideration to be paid by the purchaser to the seller
(iv) time within which the agreement is to be performed and (v) earnest money if any paid to the vendor, if one of these essential ingredients are missing, the agreement between the parties would not amount to concluded contract........"
To the similar effect are the observations of the Hon'ble Delhi High Court in the case of Amarjeet Singh versus Sharda Obhrai [2006 (92) DRJ 61] which read as under:
10. "........ four ingredients must be contained in a document if it is to be effective or efficacious as an Agreement to Sell viz (i) particulars of consideration; (ii) certainty as to party; (iii) certainty as to the property to be sold; and (iv) certainty as to other terms relating to probable cost of conveyance, time etc. In the absence of any of these constituents, all the obligations contemplated under Section 16 for the specific performance of Immovable property would not arise."
11. The pleadings are not emphatic and clear cut. From the set of pleadings as reproduced above the coming into existence of a concluded contract agreement for sale is not borne out. The definite contours of a concluded contract are not borne out from the CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 44 of 91pleadings. The essential ingredients that need necessarily constitute a concluded contract for sale of immovable property are not pleaded categorically and spelled out clearly. In the affidavit in evidence, PW1, deposing as the director of the plaintiff has affirmed on oath as follows:
8. I say that the defendant no.1 agreed to sell the basement portion of the premises in the month of July, 1997 for a consideration of Rs.11,50,000/. I further say that as per requirements and desire, the defendant no.1 obtained the sale price from the plaintiff in instalments against receipts/vouchers of the plaintiff company. The plaintiff made the payment to the defendants vide the vouchers/receipts which are Exhibits P3 to P7 and which are already on record at Serial nos.5 to 9 and page Nos.33 to 37 of the list of original documents filed by the plaintiff and they have been admitted by the defendants. The payments were also made through the vouchers which are already on record at serial no.1012 (page no.3840) of the list of original documents filed by the plaintiff, may be exhibited as Exhibits P24 to P26. The payments on these vouchers were actually made by the plaintiff to the defendants and on the receipt of the money Smt. Virender Kaur, the defendant no.1/Vendor actually signed the said documents in my presence.
9. I say that in the October 1997, the defendant no.1 agreed to sell 1st floor of the premises also to the plaintiff for a sum of Rs.13,00,000.00. The site plan of the disputed property is schedule I to the present suit. The said site plan which is duly signed by me and the same is on record and may be exhibited as Exhibit P27. An CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 45 of 91
agreement to this effect was reduced to writing on 28.10.1997. This agreement was explained and read over to the defendant no.1 in my presence and which the defendant no.1 understood the same to be correct and, thereafter, she put her signature on the same in presence of Sh. Arvind Bansal, Sh. Natha Ram, the attesting witnesses who also signed the said agreement at the same time and also in my presence. The copy of the said agreement is already on record at serial no.3 and page no.31 of the list of original documents filed by the plaintiff and the same is exhibited as Exhibit P1. I also signed the aforesaid agreement (Exhibit P1) at the same time.
10. I say that as per the desire and requirements of the defendant no.1 the consideration against sale of 1st Floor of the premises at the above mentioned address was also paid by the plaintiff to the defendant no.1. The payments were made by the plaintiff to the defendants through vouchers/receipts which are already on record and exhibited as Exhibits P8 to P17 at serial no.14 and page no.41A and Serial Nos. 16 to 24 and page no.43 to 51 of the list of original documents filed by the plaintiff. These documents have been admitted by the defendants. The payments were also made through the vouchers/receipts which are on record at serial no.13 (page no.41) and serial no.15 (page no.42) of the list of original documents filed by the plaintiff. The said vouchers/receipts may be exhibited as Exhibit P28 and P29 respectively. I further say that the payment on these vouchers were actually paid by the plaintiff to the defendants and on the receipt of the money Smt. Virender Kaur, the defendant no.1/vendor actually signed the said documents. I CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 46 of 91further say that the payment made on 17.11.1997 vide the receipt, which may be exhibited as Exhibit P29 was made through a demand draft bearing no.796700 dated 17.11.1997 and drawn on Indian Bank, Branch Hissar.
11. I say that by 30.03.1998 the plaintiff had paid Rs.20,05,000/ to the defendant no.1 against which the defendant no.1 also gave a written note/agreement acknowledging the receipt of the amount of Rs.20,05,000/ by 30.3.1998. The same is already on record at serial no.4 and page no.32 of the list of original documents filed by the plaintiff and is exhibited as Exhibit P2. This document was got typed at the instructions of the vendor/defendant no.1 , Smt. Virender Kaur which was read over to her on 30.03.1998 in the presence of Smt. Geeta Bansal and thereafter the attesting witnesses who put their signatures were Smt. Geeta Bansal and Sh. Uday Singh. I further say that the defendant no.1, Smt. Virender Kaur was made to understand the contents of the same and, thereupon, she put her signatures on the said written note agreement. This document has been admitted by the defendant in their statement of admissions and denials.
12. I say that, subsequently, the plaintiff paid Rs.4,10,000/ to the defendant (Rs.3,10,000/ on 8.6.1998 and Rs.1,00,000/ on 8.8.1998), against the receipts/vouchers out of the remaining balance sale price. In this way defendant no.1 has been paid Rs.24,15,000/ by the plaintiff against the agreed sale price of Rs.24,50,000/. The balance of the consideration for the aforesaid sale to be paid to the defendant no.1 by the plaintiff is Rs.35,000/. The payment of CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 47 of 91Rs.3,10,000/ was made by the plaintiff to the defendant no.1/vendor through the voucher/receipt which is exhibited as Exhibit P15. These vouchers/receipt have been admitted by the defendants in their statement of admissions and denials. I further say the payment on these vouchers were actually paid by the plaintiff to the defendants and, on the receipt of the money, Smt. Virender Kaur, the defendant no.1/vendor actually signed the said documents. These exhibits are already on record at serial no.21 and 22 and page nos.48 and 49 of the list of original documents filed by the plaintiff. The witness fails to bring out the essential elements of a contract for sale as allegedly entered into between the parties in respect of the basement portion of the premises. The deposition is restricted as to the identity of the property and the total sale consideration. The witness does not assert that the parties had settled all the essential terms and conditions including the mode/manner of performance of their respective reciprocal promises and within what time frame. An agreement that the immovable property is agreed to be sold at a particular price is not a concluded agreement to sell in itself unless the parties set down the date/event on the happening of which the transfer shall be effected and the payment shall be made. It only emerges from the deposition of this witness that neither had the parties agreed on a future date on which the transfer shall take place nor was any part payment made as on the date that the parties had agreed upon the total sale consideration payable, even the manner in which the proposed vendee shall discharge his obligations is not agreed upon.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 48 of 9112. Though the witness not does specify the terms as regards the payment to be made for the purchase of the basement of property bearing no. House no: 55, Hari Nagar, Ashram, New Delhi however it is the case of the plaintiff that the plaintiff has disbursed the entire agreed sale consideration against the purchase of the basement and that this payment was made as per the desire and wishes of the proposed vendor and the proposed vendor had acknowledged the payments by issuing receipts. It is not deposed to by the PW1 that at the time of entering into the agreement to sell, the parties had agreed that the sale consideration shall be paid sporadically as and when demanded by the proposed vendor and in the amount as demanded by the proposed vendor and that the entire payment shall be paid on or before such date on the happening of which the sale deed shall be got registered in favour of the plaintiff by the defendant no.1 in respect of the basement of property bearing no. House no: 55, Hari Nagar, Ashram, New Delhi.
The plaintiff relies upon receipts Ex.P3 to P7 and Ex.P 24 to P26 as documentary evidence proving the payments made to the defendant no.1 towards the agreed sale consideration for the basement of property bearing no. House no: 55, Hari Nagar, Ashram, New Delhi. Upon closer scrutiny of these receipts it is revealed that there is a cutting and overwriting on Ex.P3 against the date column, purportedly the receipt is dated 29.7.1997. The agreement in respect of the basement is alleged to have been entered into between the parties in the month of July 1997, no date is specified in the oral deposition. It is not clear as to whether the oral agreement to sell was CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 49 of 91entered into before 29.7.1997 or on the date that the first part payment is alleged to have been made. As per Ex.P3 an amount of Rs.40,000/ is debited from the building a/c of the plaintiff as payment made to the defendant no.1 for purchase of office building. Under the same receipt an amount of Rs.30,000/ is credited to the building a/c and the receipt is countersigned by the cashier, Accountant and Authorized Signatory of the plaintiff. Against the space earmarked for the Authorised Signatory, there appear two signatures , one in blue ink and one in green ink. There is again a cutting and overwriting in the date column of Ex.P4, which is to the effect that an amount of Rs.60,000/ is paid to defendant no.1 for purchase of office building basement. The space between the words "Kaur" and "agt" on this receipt is also unnatural. Under the same receipt "SCL A/C" of the plaintiff is credited in the amount of Rs.60,000/ as cash received from Sparrow Credit & Leasing Ltd. On Ex.P5 again there is an overwriting in the date column. The voucher is in respect of cash paid to Varinder Kaur against purchase of the basement of the building and is drawn against the building a/c. It is signed by the Authorised Signatory and the cashier and is in the amount of Rs. One lac. Ex.P6 is dated 1.8.1997 and is in respect of cash paid as part payment to Varinder Kaur against purchase of office building basement, drawn on building a/c and signed by the cashier and accountant and the authorised signatory. On Ex.P7, there is again a cutting in the date column, the date is filled in a different hand and ink then the rest of the document, it is in respect of amount paid to the defendant for the purchase of the basement property and part CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 50 of 91payment of Rs.2,50,000/ is made, signed by the cashier, accountant and authorised signatory. There is again a overwriting in the date column in Ex.P24, and in fact after the overwriting it is hard to decipher the date of preparation of the voucher, there is cutting at 2 places against the debit column. An amount of Rs.50 thousand is debited from the building account as payment made to the defendant for the purchase of basement; and it bears the signatures of the cashier, accountant and there appears to be two signatures against the space earmarked for the authorised signatory. There is no cutting or overwriting against the date column in Ex.P25, though there is overwriting in the name of defendant and it is in respect of the Rs.50,000 debited from the building a/c being the amount paid to the defendant for purchase of basement as part payment made on 10.9.1997 and is signed by the cashier, the accountant and the authorised signatory. There is no cutting/overwriting in the date column on Ex.P26, though the voucher number is ovewritten. Rs. One lac is shown to be debited from the building account as paid to the defendant for purchase of 55, Hari Nagar, Ashram, it is not specified that the payment is in respect of the basement thereof and the amount of Rs.1 lac is recorded as part payment. There is a credit entry of Rs.50,000/ to the a/c of Bansal Account by cash received to Mr. A.K. Bansal from Command Office, Hisar. The aggregate of the amount reflected under Ex.P3 to P7 and Ex.P24 to Ex. P26 is Rs.11,50,000/ the total sale consideration alleged by the plaintiff as made to the defendant no.1 for the purchase of the basement of property described as bearing no.55, Hari Nagar, Ashram, New Delhi.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 51 of 91Further there are 2 more vouchers tendered as Ex.P28 and Ex.P8 which are also in respect of amounts paid to the defendant no.1 by the plaintiff from its building a/c for purchase of basement of the building. Ex. P8 is dated 28.10.1997 and Ex.P28 is dated 25.10.1997, and the amounts stated to be paid are Rs.40,000 and Rs.10,000 respectively, these vouchers are also signed by the cashier, accountant and 2 authorised signatories, the signatures of the defendant no.1 however appearing on Ex.P28 are not complete. If the amounts under these two vouchers are added the total amount paid as against the basement adds upto Rs.12 lacs; over and above the agreed sale consideration. Moreover 2 receipts tendered as Ex.P16 and P17 dated 29.07.1997 and 1.8.1997 which in the oral deposition are relied upon as documentary evidence of part payments made towards the first floor of house bearing no.55, Hari Nagar, Ashram, New Delhi, the contents of the document however are contradicting the oral deposition, for Ex.P16 and Ex.P17 are receipts qua payments made against purchase of basement and the amounts received are Rs.1 lac and Rs. 5 lac respectively. The documentary evidence therefore would reflect that as an aggregate a sum of Rs.18 lacs was paid by the plaintiff to the defendant no.1 for purchase of the basement of property bearing no.55, Hari Nagar, Ashram, New Delhi, whereas it is the case of the plaintiff that the total sale consideration agreed between the parties in respect of the basement portion of property bearing no. 55, Hari Nagar, Ashram, New Delhi was Rs.11,50,000/ terms of agreement to sell entered in July 1997. This discrepancy, contradiction was to be set right and explained by the plaintiff CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 52 of 91however the plaintiff makes no such endeavour in the pleadings and deposition in chief and allows the ambiguity to prevail to the peril of the merit of the claim of the plaintiff.
As the vouchers being relied upon the plaintiff contain several overwriting and cuttings and most importantly in the dates of the vouchers, the cuttings and overwritings could alone be proved by examining the person who prepared the vouchers. The plaintiff has examined its Director as well as the authorised signatory,Sh. A.K. Bansal and Ms. Geeta Bansal. All the witnesses examined have further confounded the confusion by making disparate statements. The vouchers are prepared in different handwritings and are signed by the cashier, the accountant and the authorised signatory. The authorised signatories are examined and are not in agreement as to who prepared these vouchers. The names of the cashier and the accountant are not forthcoming. The Director of the plaintiff company deposing as PW1 has deposed to the effect that the payments were actually made as against the vouchers and that the vouchers were signed by the defendant no.1 in his presence. This deposition on oath of PW1 is beyond pleadings as the plaintiff does not aver in the plaint that the payments were made and vouchers were signed in the presence of the Director of the plaintiff. Who are the authorised signatories who have signed the receipts is not clarified in the pleadings or in the evidence, whether PW1 is one of the authorised signatories signing the vouchers or not is not disclosed to the court. Besides the then Director of the plaintiff examined as PW1, the plaintiff company has also examined the present Director, and the CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 53 of 91then Managing Director, Sh. Arvind Bansal and Ms. Geeta Bansal as PW3 and PW4. PW3 does not depose to the effect that he signed the vouchers in his capacity as authorised signatory or that the payment was made in his presence or that the vouchers are signed in his presence. PW3 however has identified one of the authorised signatories as his wife, the then MD of the plaintiff examined as PW4. PW4 also alleges to have signed the vouchers, however does not allege that the defendant no.1 received the payments in her presence or she signed in her presence. Besides PW4, the vouchers bear the signatures of the cashier and the accountant, not named, not examined Who prepared these vouchers remains the million dollar question and has gone unanswered. The witnesses fielded on behalf of the plaintiff are called upon to explain and disclose as to who prepared the vouchers in the course of their cross examination. PW3 deposes as follows: " Ex.P3 does not contain my writing, same is my reply for Ex.P4,P5,P6, P7,P8,P9,P10,P11,P12,P13,P14,P15,P24,P26,P28, and P29. I cannot recognise the writing on these documents.........." On this aspect, PW4 deposes as follows:
"The voucher Ex.P3 has been filed by an official of the plaintiff company and has been signed by me. I do not remember the name of the official who filled the voucher. The official in charge of the duty in the normal course of business must have filled the voucher. I do not remember whether the voucher was filled on my instructions or I signed upon a already filled voucher. It is wrong to suggest that I have fabricated these vouchers at the instance of my CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 54 of 91
husband and D.N. Saini. These vouchers used to be retained in the office of plaintiff company at the basement of the suit property...."
PW1 deposes to the following effect in the course of cross examination on this aspect:
"It is wrong to suggest that Ex.P3 was filled up after obtaining the signatures of defendant no.1. Ex.P3 does not bear my signatures and it was not executed in my presence. It is correct that there is overwriting in the date on document Ex.P3. It does not bear the signature of Gurmeet Singh. It is wrong to suggest that Ex.P3 is forged and fabricated document.
It is wrong to suggest that Ex.P4 does not bear my signature, but I do not remember if it was executed in my presence or not. It is wrong to suggest that I am not deliberately disclosing the true facts. It is correct that the word "loan account" has been struck off and "building account" has been mentioned. It is correct that there is overwriting in the date on Ex.P4. It is wrong to suggest that the document was filled up after obtaining the signatures of defendant no.1. It is wrong to suggest that no amount was paid to defendant no.1 and mentioned in Ex.P3 and Ex.P4.
It is correct that Ex.P5 to Ex.P9 and Ex.P11 to Ex.P17, Ex.P24, Ex.P25, Ex.PW26, Ex.P28 and Ex.P29 to not bear my signatures. I do not remember if these documents were prepared in my presence or not. It is correct that Ex.P5 to Ex.P17 and Ex.P25, Ex.P26, Ex.P28 and Ex.P29 do not bear the signatures of Gurmeet Singh. It is wrong to suggest that I am not disclosing the true facts regarding these documents.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 55 of 91
It is correct that there are over writing in the dates on documents Ex.P5, Ex.P12 and Ex.P24.
It is correct that document Ex.P7 there are two dates as 30.08.1997 and 01.09.1997. It is correct that there is cutting in Ex.P24 and it is no initialed by anyone. It is correct that Ex.P24 does not bear the signatures of defendant no.1. (Vol.) It bears the signature of Gurmeet Singh. It is wrong to suggest that Ex.P24 does not bear the signature of Gurmeet Singh. It is correct that Ex.P25 does not bear the signatures of defendant no.1 or Gurmeet Singh. It is wrong to suggest that Ex.P26 does not bear the signatures of defendant no.1. (Vol.) I cannot say who had signed as Virender Kaur on Ex.P26.
Ex. P28 bears the signatures of defendant no.1. It is wrong to suggest that the same does not bear the signature of defendant no.1. It is correct that there is over writing in figures at point A on Ex.P28. It is correct that Ex.P29 does not the bear the signature of Virender Kaur. It is wrong to suggest that the word "building account" has been struck off and over there "first floor" has been written. It is correct that in Ex.P10 the word "building account" and date has been written in different pen then the portions marked as Mark A and Mark B. It is correct that on the document Ex.P11, the date and the word "ground floor" has been written from different pen from the other contents of the said document. It is correct that the word property has been struck off and thereafter word "building" has been written over it from different pen. It is wrong to suggest that Ex.P30 portion Mark A and CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 56 of 91
Mark B has been written from different pen with regard to other contents of document. It is correct that on Ex.P15 the word "building account" has been written in different pen.
It is correct that the document Ex.P1 mentions the amount of Rs.40,000/ towards first floor whereas the document Ex.P8 mentioned the amount of Rs.40,000/ towards basement. It is wrong to suggest that the agreement as per me was only with respect to basement and first floor and not with regard to the ground floor. (Vol.) I had stated groundcumfirst floor. It is wrong to suggest that my voluntary statement is false. It is correct that Ex.P11 and Ex.P15 only mentions the ground floor. It is wrong to suggest that these documents Ex.P5 to Ex.P17, Ex.P24, Ex.P25, Ex.P26, Ex.P28 and Ex.P29 are forged and fabricated documents and the same are filled up after obtaining the signatures. It is wrong to suggest that no amount was paid to defendant no.1 as mentioned in documents Ex.P5 to Ex.P17, Ex.P24, Ex.P25, Ex.P26, Ex.P28 and Ex.P29."
The defendant contends that no amounts were ever received by the defendant no.1 from the plaintiff towards sale consideration of the basement or any other portion of property bearing no. House no:
55, Hari Nagar, Ashram, New Delhi and that the plaintiff being tenant used to pay the rent in cash and obtain signatures of the defendant no.1 on blank vouchers which were to be filled by the plaintiff for receipt of rental and that the plaintiff has mainpulated and fabricated the receipts/vouchers as payments towards purchase of property of the defendant no.1. Forgery and fabrication is to be proved by the person who alleges a document to be forged and fabricated, CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 57 of 91
particularly where the signatures are admitted. However in the facts and circumstances of the present case, the plaintiff seeking specific performance of agreement to sell on the ground that the entire sale consideration in respect of basement stands paid, it is the plaintiff who is to prove the payments made to explain and clarify the cutting and overwriting and the other discrepancies found evident on the face of the document. The plaintiff has failed to discharge the onus. It is not proved as to who prepared these vouchers, in whose writing are the several cuttings and overwritings. The dates on which the payments were made are not stated in the pleadings and the oral evidence of the witnesses and the foundational fact that it was agreed between the parties to the agreement to sell in the month of July 1997, at the time of entering into the agreement to sell and laying down the terms and conditions upon which the sale deed shall be executed in respect of the basement of property bearing no. House no: 55, Hari Nagar, Ashram, New Delhi that the payment shall be made on the dates of the vouchers and in the amounts of the vouchers in the fashion as borne out from Ex.P3 to P7 and Ex.P24 to Ex.P26. Ignoring the overwriting and cuttings in dates in terms of Ex.P3 to P7 and Ex.P24 to Ex.P26 payments were made on 29.7.1997, 30.7.1997, 16.8.1997, 1.8.1997, 30.8.1997, 16.9.1997, 19.9.1997, 25.10.1997. It is by 25.10.1997 that the entire sale consideration in respect of the basement had exchanged hands, it is highly improbable circumstance that the plaintiff, the proposed vendee had performed its part of the agreement without any agreement as to the performance of the promise on the part of the CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 58 of 91
proposed vendor. In the oral deposition no date is mentioned as agreed upon by the parties for the execution of the sale deed in respect of the agreement to sell. Moreover the last voucher in the series dated 25.10.1997, Ex.P26, refers to the payment made as part payment and not the last and final payment of the entire agreed sale consideration.
13. Ex.P8 to Ex.P17 and Ex.P28 and Ex.P29 are the vouchers relied upon as evidence of payments made for the purchase of the 1st floor of the property bearing no. House no: 55, Hari Nagar, Ashram, New Delhi Ex.P8 is dated 28.10.1997 and is in respect of Rs.40,000/ paid in cash to the defendant no.1, for building payment against basement. The entry reads as follows: "Cash paid to Mrs. Virender Kaur W/o Sh. Gurmeet Singh for Building Payment (Basement)"
Ex. P9 is dated 10.12.1997 and is in the amount of Rs. One lac drawn on the building account being the amount paid to the defendant no.1 for the purchase of first floor of property bearing no. House no: 55, Hari Nagar, Ashram, New Delhi. There is a suspicious cutting on this document as it appears that the word basement has been cut out and smudged and the word 1st Floor is written above the cutting Ex. P10 is dated 22.12.1997 and is in the amount of Rs.2 lacs paid from the building a/c by way of DD after cutting the word cash of the same date in favour of the defendant no.1, however it is not mentioned that the amount is a payment towards the sale consideration for the 1st floor or any other portion of property bearing no. House no: 55, Hari Nagar, Ashram, New Delhi. Ex.P11 is dated CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 59 of 91
21.1.1998 which is for Rs.2 lacs paid by cash from the building a/c paid to the defendant no.1 as part payment for the building bearing no. House no: 55, Hari Nagar, Ashram, New Delhi and in brackets it is written "ground floor" whereas ground floor has never been the subject matter of any agreement to sell alleged by the plaintiff. There is an overwriting in the date column of Ex.P12 under which an amount of Rs.5 lacs is entered to have been debited from the building a/c towards cash paid to the defendant no.1 against building part payment made on 5.3.1998. It is not specified which portion. Further there is a credit entry also made under the same receipt in the amount of Rs.5 lacs in the OBC Bank A/c of the plaintiff Ex.P13 is dated 30.3.1998 and is in the amount of Rs.1,55,000/ being amount paid to the defendant no.1 as building payment, no particular portion of property bearing no. House no: 55, Hari Nagar, Ashram, New Delhi is mentioned, it would appear as if it is for the entire building and there is a credit entry of the same amount credited to the Indian Bank A/C of the plaintiff by way of cheque. Ex.14 is dated 8.6.1998 and is in respect of a sum of Rs. 3,10,000/ drawn from the building a/c paid to the defendant no.1 as part payment for 1st floor. The property is not described. Ex.P15 is dated 8.8.1998 and is in respect of Rs. One lac paid to the defendant no.1 from the building a/c as building part payment towards ground floor not the subject matter of the agreement to sell. Ex.P16 is dated 29.7.1997 and is a receipt in amount of Rs. 1 lac received by the defendant no.1 signed by the Director of the plaintiff and the defendant no.1 drawn on the letterhead of the plaintiff and is in respect of basement of property bearing no.55, Hari CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 60 of 91
Nagar, Ashram, New Delhi as advance/part payment made in cash. Ex.P17 is dated 1.8.1997. Further when the amounts reflected under all the receipts, and vouchers are summed up the aggregate is a sum of Rs.30,15,000/ and not a sum of Rs.24,15,000/ alleged to have been paid by the plaintiff towards purchase of the basement and ground floor of property described as bearing no.55, Hari Nagar, Ashram, New Delhi, against a total agreed consideration of Rs.24,50,000/. The documentary evidence is to the effect that payments over and above the agreed sale consideration were received by the defendant no.1. The entire edifice sought to be wrought on the strength of the vouchers/receipts, crumbles under the weight of unexplained cutting, overwriting, in congruities and contradictions with the oral deposition.
14. Moreover the evidence is to be appreciated considering that the plaintiff is a public limited company. The property is being acquired by a company, a separate legal entity that works not on the oral promises and words of its office bearers, but through record. If a company is to acquire an asset, the record should duly reflect the resolve to acquire, the entering into of the agreement to sell on behalf of the company of its representative duly authorized and the payments made duly accounted for. The lackaddisical and slip shod manner in which the vouchers appear to be prepared does not reflect that the vouchers/receipts are prepared in the ordinary course of business of the plaintiff company. The plaintiff company has not produced any record/account books of the plaintiff company to prove the entering into of oral or writtenagreement to sell by the plaintiff company with CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 61 of 91defendant no.1 in respect of basement and first floor of property bearing no.55, Hari Nagar Ashram, New Delhi. The payments under the vouchers/receipts are debited from the building a/c of the company. No such account book maintained in the ordinary course of business is produced and proved. In the pleadings the plaintiff does not even contend that the transaction and the payments are duly reflected in the record of the plaintiff company. The present director of the plaintiff company in the course of cross examination makes the following revelation in respect of the record of the plaintiff company: "The record of the plaintiff company was lost in 2002 owing to some theft in the premises. I have not lodged any police complaint for the same......"
15. PW3, further has deposed to the effect that: "I am associated with the plaintiff company since its inception. The Income Tax Returns of the plaintiff company for the years 1996 to 2003 have been filed with the concerned authorities. The accounts of the plaintiff company used to be audited for the aforesaid period. I am not having in my power and possession the books of accounts of the plaintiff company for the aforesaid period. The same might be in possession of the plaintiff company. I have not brought the same today. The audit reports and the balance sheets of the plaintiff company for the aforesaid period are also available with it."
The then director of the plaintiff company deposes as follows: "From 1997 to 1999, I was the Director of the plaintiff CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 62 of 91company. The plaintiff company had offices at 45 places at Haryana apart from the offices at Delhi and Hissar. From 1997 to 1999, I was residing at Hissar. Even in the year 2002 I was residing at Hissar. I was looking after the business of plaintiff company from Hissar between 1997 to 2002. At Delhi, Mr. Arvind Kumar Bansal was looking after the business of plaintiff company. Mr. Arvind Kumar Bansal was also Director in the plaintiff company. It is correct that in 1997, Mr. Arvind Kumar Bansal alongwith his family was residing at the portion of first floor.
Books of accounts were kept at Delhi office. (Vol. As our Chartered Accountant was in Delhi). The office of the Chartered Accountant namely Mr. Baljeet Singh was situated somewhere near Paschim Vihar. The business conducted at Hissar was also bee accounted by the Chartered Accountant at Delhi. The final balance sheet was prepared at Hissar. The Chartered Accountant at Delhi and Hissar were different. The books of accounts were audited at Delhi. Books of accounts were kept at Delhi. I used to examine the books of accounts at Delhi. Minutes books were kept at Delhi as well as at Hissar. There was only one set of Minutes. It was circulated as per the meetings held at Delhi and Hissar. I have not brought the Minutes books today. The Minutes Books are in power and possession of the company management."
The then director alleges no such theft in which the record is stolen/removed. Plaintiff has set up a case that the defendant has locked the plaintiff out of the premises and the goods of the plaintiff are lying at the suit premises locked by the defendants. The plaintiff CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 63 of 91has given a detailed list of articles lying in the basement and first floor of premises bearing no.55, Hari Nagar, Ashram, New Delhi which are locked by the defendant no.1 w.e.f. 19.09.2002 as follows: Sr. No. Articles Price (1) (2) (3)
1. Cordless Telephone 3500.00
2. Folding Chair, Table 3115.00
3. Cabin and Counter 10,000.00
4. DO 5,00.00
5. DO 6300.00
6. Almirah 1200.00
7. Cabin and Counter 6000.00
8. Do 4000.00
9. Chairs 3650.00
10. Almirah 2410.00
11. Do 1245.00
12. Table Light 740.00
13. Mobile Phone 21000.00
14. Ceiling Fan 1160.00
15. Cabin Counter 5500.00
16. Telephone 1 6000.00
17. Do 585.00
18. Revolving Chair 10050.00
19. Jute Matting Table 2464.00
20. Fan, Brief Case, E/Wood Wall 8135.00 Clock
21. Telephone Set 352.00
22. Bed Matress 1350.00
23. Telephone Set 1550.00 CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 64 of 9124. Cabin and Counter 65175.00
25. DO 19782.00
26. DO 10400.00
27. DO 6245.00
28. DO 5800.00
29. DO 1100.00
30. Telephone Set 1650.00
31. Cabin Counter 2000.00
32. Collar 1000.00
33. Cabin and Counter 3467.00
34. Telephone Set 1100.00
35. Office Furniture 5300.00
36. Almirah 1 no. 2700.00
37. Table 2 Nos. 4000.00
38. Chair 6 Nos. 1650.00
39. Ply 3127.00
40. Diwan 6X4 2100.00
41. Revolving Chair 2 Nos. 3400.00
42. Table 5X5 1 No. 2000.00
43. Sofa Set 1 No. 5100.00
44. Office Chair 10 Nos. 3350.00
45. Diwan 6X3 1 No. 1600.00
46. Sofa 1 NO. 2750.00
47. Table 1 No. 800.00
48. Matress 1 No. 850.00
49. Folding Bed 2 Nos. 700.00
50. Sliding gate 1 no. 2387.00
51. Typewriter 1 no. 3300.00
52. Paint 500.00 CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 65 of 9153. Clothes 335.00
54. Wall Clock 150.00
55. Tube Set 2 Nos. 260.00
56. Board 1 No. 1256.00
57. Electrical Items 840.00
58. Chairs 5 Nos. 850.00
59. Cabin Counter 5000.00
60. Sign Board 906.00
61. Glass 240.00
62. Scening 535.00
63. Sign Board 270.00
64. By cycle 838.00
65. Calculator 100.00
66. Wall Painting 1 No. 450.00
67. Office counter 1600.00
68. Sign Board 144.00
69. DO 1916.00
70. Table 1 No. 2000.00
71. Chair (E) 1 No. 1100.00
72. Steel fur 400.00
73. Chair 1 No. 230.00
74. Electric Item 2238.00
75. Glass 3"6'X2 440.00
76. Stove 1 No. 290.00
77. Jug 1 No. 250.00
78. Crockery Mise 1390.00 Sr. No. Articles Price CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 66 of 911. Dewan Bed 7000.00
2. Dining Table 6000.00
3. T.V Table 800.00
4. With Glass Centre Table 38000.00
5. Collen 2 Nos. 4000.00
6. Folding Bed 2 Nos. 700.00
7. Fridge 6000.00
8. Mattress, Bed Sheet and Sofa 400.00 Cushion
9. Philips Mixy 2500.00
10. Dressing Table with glass 3500.00
11. Children toys 5000.00
12. Crockery 5000.00
13. Photo album & Video cassette of 5000.00 marriage
14. Dinner Set 8500.00
15. Curtains with pipe 400.00
16. Glass 500.00
17. Ring Gold 3500.00
18. Chain Gold 15000.00
19. Hand Ring Gold 22000.00
20. Steel Press 1400.00
21. Godrej Almirah 1500.00
22. Emergency Lights 2400.00
23. Four Ceiling Fans Rs.600 each 2400.00
24. Door Closure 650.00
25. Sign Board of company with Tube 1400.00 Lights
26. Shoes and Sandals and Socks 2000.00 CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 67 of 91The plaintiff does not mention that the record of the plaintiff was also lying at the basement being used as the registered office of the plaintiff and account books / other record of the company are also lying locked nor has called upon the defendant to produce the same as lying in its custody at the basement. Adverse inference in the facts and circumstances therefore comes to be drawn that there is no record of the plaintiff company maintained in the ordinary course of business in respect of the agreement to sell and the payments made as alleged by the plaintiff.
16. In para 7 of the pleadings and para 11 of the affidavit in evidence, the plaintiff has introduced a document executed by the defendant no.1 dated 30.3.1999, acknowledging the receipt of sum of Rs.20,05,000/ from the plaintiff till 31.3.1998. The defendant no.1 denies having received any such amounts in pursuance to any such agreement to sell and having ever executed any such receipt/acknowledgement/document dated 30.3.1998. The document itself is captioned as an agreement. The defendant no.1 under the agreement has declared to "abide by the same". There is no elucidation of the "same" and what is alluded to by the term "same". Interestingly on 30.3.1998 the defendant no.1 is making a statement that she has received a sum of Rs.20,05,000/ from the plaintiff till 31.3.1998. The credibility of such a statement is inherently questionable and is rendered suspect. This amount of Rs.20,05,000/ acknowledged on 30.3.1998 to have been received till 31.3.1998 is received against the building part payment of 55, Hari Nagar Ashram, New Delhi i.e. basement and first floor only as per terms and CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 68 of 91conditions already finalised. When and what terms and in what manner already finalised, whether orally or by way of a written document is not specified. The plaintiff besides this consolidated receipt/acknowledgment/ agreement has also tendered into evidence individual vouchers/receipts in respect of payments made for the purchase of the basement and first floor of the suit property. When the amounts under the receipts/vouchers till 31.3.1998 are added up, as per the receipts/vouchers Ex.P3Ex.P13, Ex.P16, Ex.P24 to Ex.P 29, it emerges that the plaintiff has in effect paid to the defendant a sum of Rs.21,05,000 and not Rs.20,05,000/ as is acknowledged to have been received till 31.3.1998. Not only is the recital ambiguous and unnatural, it is also contradicted by the other documentary evidence relied upon by the plaintiff.
The present director of the plaintiff does not allude in his affidavit in evidence to the Agreement/Receipt/Acknowledgement dated 30.3.1998. The then director of the plaintiff in respect of Ex.P2 in para 11 reproduced supra in the affidavit in evidence has deposed to the effect that Ex.P2 was got typed on the instructions of defendant no.1, it was read over to her on 30.3.1998 in the presence of PW4, appearing as attesting witness, and that she put her signatures after understanding the contents thereof. This part of the deposition is clearly beyond pleadings. This document does not bear the signatures of PW1 and in the pleadings it is not alluded to even that the document is executed in the presence of the Director of the plaintiff, who signed as attesting witness. Smt. Geeta Bansal examined as PW4 however does not depose that the document Ex.P2 is executed in her CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 69 of 91presence and she signed the same as attesting witness. This witness does not even identify her signatures on Ex.P2. This document, therefore, is not proved to have been executed as a receipt by defendant no: 1 towards payments received by defendant no: 1. Moreover, the entire payment in respect of the basement portion is made by the plaintiff by 25.10.1997. The plaintiff did not agitate the non performance of the part of the promise to be performed by the defendant no.1, i.e. the registration of the sale deed in respect of the basement of the suit property. It is a highly improbable circumstance that the proposed vendee under an agreement to sell even after making the payment of the entire sale consideration would not insist upon the execution of the sale deed and initiate no action in this regard.
17. The entire case of the plaintiff setting up the agreement to sell and part performance thereof on the part of the plaintiff has been stated in paras 4 to 8 of the plaint as reproduced supra,and the plaintiff has not specified as to whether the agreement to sell entered into in July 1997 in respect of the basement was a written agreement to sell or oral agreement to sell, similarly in para 5 where the plaintiff sets up the agreement to sell in respect of the first floor of the property bearing no.55, Hari Nagar, Ashram, New Delhi it is not categorically stated whether the agreement entered into in the month of October 1997 in respect of the first floor of property bearing no. 55, Hari Nagar, Ashram, New Delhi is oral or written. The plaintiff introduces the vouchers of the receipts of different dates and the acknowledgement dated 30.3.1998, however the plaintiff from paras 4 CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 70 of 91to 8 does not aver that written contract had also come into existence for the sale/purchase of the basement/first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi. It is in para 14 of the plaint that the plaintiff for the first time makes a passing reference to agreement to sell dated 28.10.1998. It is pertinent that before para 14, there is not a whisper of any agreement to sell dated 28.10.1998. In paras 4 and 5 where the plaintiff has set up the agreements to sell in respect of the basement and the ground floor, the plaintiff mentions that the agreements were entered into in the month of July 1997 and October 1997 respectively, however the plaintiff, has not put a date to the event and it is as a first instance that the plaintiff makes reference of an agreement to sell dated 28.10.1997 in para 14 without giving out any further details. Though contents of a document need not be pleaded, however where the suit is for the specific performance of the contract, the essential terms of the contract which were agreed upon need to be categorically stated and to that extent the contents of the document are to be pleaded necessarily for what is to be performed is specifically the promise agreed to be performed. I shall reproduce contents of para 14 where the plaintiff introduces an agreement to sell dated 28.10.1997 which reads as under: "That the defendant no.1 has obtained whole of the consideration price except Rs.35000/ and is under an obligation to execute the sale deed on receipt of the balance sale price of Rs.35,000/. The plaintiff is obliged to execute the aforesaid sale deed and get it registered by virtue of the agreement to sell dated 28.10.1997. The sale deed was to be executed on or before 30.9.1999 CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 71 of 91which was to be date of the execution and registration of the sale deed of both floors i.e. the basement and first floor of the suit property."
The heading of the suit reads itself as a suit for specific performance of agreement to sell dated 28.10.1997, however the prayer clause skips the date or any reference to agreement to sell dated 28.10.1997. The plaintiff under the prayer clause does not seek the specific performance of an agreement to sell dated 28.10.1997. The plaintiff has kept the execution of agreement to sell on 28.10.1997 under wraps and furtively makes a passing reference to an agreement to sell dated 28.10.1997 for the first time after having set out the entire cause of action in paras 4 to 8, i.e. in para 14 of the plaint, there is no continuum of action pleaded connecting the transaction set out in paras 4 to 8 and the agreement to sell introduced abruptly in para 14. What is still not clear from the contents of para 14 is as to whether the agreement to sell entered into between the parties on 28.10.1997 is written or oral, the plaintiff does not make a categoric assertion and keeps the court a guessing as to whether the agreement to sell dated 28.10.1997 is oral or written. When the plaintiff examines its director as PW1, for the first time it stands elucidated that the agreement to sell in respect of the basement portion of the premises was entered into in the month of July, 1997 for a consideration of Rs.11,50,000 and in October 1997 the defendant no.1 agreed to sell the first floor of the premises for a sum of Rs.13,00,000 and that an agreement to this effect was reduced to writing on 28.10.1997 which was explained and read over to the CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 72 of 91defendant no.1 in the presence of PW1 and the same was understood to be correct by the defendant no.1 and thereafter she had put her signatures on the agreement to sell dated 28.10.1997 in the presence of the attesting witnesses who signed the agreement at the same time and in the presence of PW1, a deposition that finds no support from the pleadings and is clearly beyond pleadings.
18. The original agreement to sell is tendered as Ex.P1. An objection was raised by the defendant in the written statement that the agreement to sell is liable to be impounded as it is not written on a sufficiently stamped paper. The plaintiff has also filed, at the fag end of the proceedings after the conclusion of the evidence of the parties when the matter was listed for arguments, an application under Section 33 of the Indian Stamps Act for impounding of Ex.P1. Under Article 23A of schedule 1A of the Indian Stamp Act, conveyance in the nature of part performance in any Unioun Territory under section 53A of the Transfer of Property Act 1882, is chargeable to a stamp duly of 90% as is chargeable on a conveyance. An agreement to sell itself may be oral or written and there is no format prescribed by law, however, where the proposed vendee is put in possession of the premises by way of part performance of the agreement to sell and the proposed vendee takes up the part performance as a shield to dispossession in a suit instituted by the proposed vendor for recovery of possession, in terms of section 53A, the agreement to sell in the part performance of which the proposed vendee entered possession is required to be in writing and stamped in accordance with Article 23A of the schedule to the Act. Such is not CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 73 of 91the case at hand. The plaintiff does not even contend that the plaintiff is put in possession of the suit property by way of part performance of agreement to sell dated 28.10.1997, Ex. P1. The plaintiff was in possession of the property in his capacity as a tenant and continued to be in possession thereof the plaintiff does not contend to have been put in possession in part performance of agreement to sell dated 28.10.1997. The suit is not instituted by the proposed vendor for recovery of possession for the interplay of possession as part performance in terms of Section 53A. Ex. P1 is therefore, not covered under Act 23A of the Schedule to the Indian Stamp Act and is per se not in admissible in evidence. The application of the plaintiff u/s 3536 of Indian Stamp Act is also disposed off accordingly. The defendant has contended that besides the document itself being inadmissible in evidence the document purported to be an agreement to sell entered into between the plaintiff and the defendant no.1 is forged and fabricated document as the forgery and fabrication is evident to the naked eye as the format of the document itself is unnatural which strikes at the first instance as there is no space provided for the signatures of the proposed vendor and the vendee and the witnesses and in fact the signatures of the proposed vendor are found at the very edge of the document in a very unnatural manner which goes on to show that the document is prepared upon a previously signed blank document and is not duly executed of the free will and volition of the parties. The contentions of the defendant are not ill founded for the agreement to sell is not formatted in the usual, generally acceptable ordinary manner of writing deeds and CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 74 of 91documents. It contains 2 paragraphs, typed in single space format, there is no space left for appending of the signatures by the executant and the other parties to the execution of the document. The signatures of the executant are at the very bottom edge of the document. There are several cuttings and correction carried out in hand. These cuttings are not counter signed by the executant. Below the signatures, no date appears. There is no space left along the margins. The typing starts from the very top edge of the page bearing no margin along the right hand edge of the page. PW1 in his deposition in chief has asserted for the first time that the agreement was explained and read over to the defendant no.1 in the presence of PW1 and that the defendant no.1 signed this document only after accepting its contents to be correct and that the signatures were appended by defendant no.1 in the presence of 2 attesting witnesses namely PW3, Sh. Arvind Bansal and PW2, Sh. Natha Ram, who also signed the document in his presence. It is not disclosed as to who got it typed and drafted and prepared. PW3 in his cross examination has deposed as follows:
"Agreement Ex.P1 was executed in my presence at the residence of defendant no.1. I do not remember the address. I along with D.N. Saini and Natha Ram were present at the time of execution of the agreement.
..... I do not know as to where the agreement P1 was typed nor I know who typed the same. On the day Ex.P1 was executed in my presence............ I have got prepared one site plan in respect of the suit property at the time of/before the execution of agreement to sell Ex.P1. We have not mentioned about the site plan in the CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 75 of 91
agreement to sell. I had gone through the agreement to sell before signing the same. We have not consulted the said agreement with any lawyer......"
The presence of PW4 at the time of execution of the document is not affirmed by the parties to the document, however, PW4 has also owned up her presence at the time of execution of Ex.P1 and has deposed as follows: "....The agreement Ex.P1 was executed in my presence. I do not know where it was executed. Me, my husband and one Natha Ram were present at that time. I cannot say if anybody else was also present at that time. I do not know at all if any other document was executed on that day, it is an old affair. The negotiation for purchase of property were held between me, my husband and the defendant no.1. I do not know if we have seen the title documents of the suit property during negotiation......"
Sh. Natha Singh the other attesting witness in his deposition in chief as PW2 has deposed that the agreement was got typed by Smt. Virender Kaur at her own instructions and of her free will and the same was read over to her and understood by her. In his cross examination PW2 has made the following deposition on this aspect:
"About 45 documents were prepared in my presence. I had signed on 2 or 3 documents only. A receipt of Rs.40,000/ was executed in my presence on 28.10.1997. The receipt was signed by defendant no.1, Sh. Arvind Bansal and one accountant whose name I am unable to recall. Sh. Gurmeet Singh had not signed any document.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.Page 76 of 91
I do not remember if Smt. Geeta Bansal had signed on any document or not. (Again said) she had signed on the document. I do not remember how many signatures are put by Smt. Geeta Bansal. I do not remember how many signatures were put by defendant no.1 on the documents.
The agreement was not typed in my presence. Defendant no.1 and Sh. Gurmeet Singh had come with the agreement. The parties had negotiations before the agreement was prepared. I am not aware if the negotiations had taken place only on 28.10.1997 or even prior to it. I cannot tell the names of the parties who had negotiated prior to 28.10.1997 nor I am aware of the terms of negotiations. Sh. D.N. Saini and Sh. Arvind Bansal had paid Rs.40,000/ in cash in my presence. (Vol.) They had made some payments earlier also. The amount was in the denomination of Rs.100/. It is wrong to suggest that there was no such meeting on 28.10.1997 in my presence. It is wrong to suggest that no document was executed on 28.10.1997 or at any other point of time in my presence. It is wrong to suggest that no payment was made by the plaintiff to the defendant in my presence. It is wrong to suggest that agreement Ex.P1 has been fabricated by Sh. D.N. Saini in collusion with Sh. Arvind Bansal and myself. It is wrong to suggest that there was no transaction in respect of the property in question ever transacted in my presence. It is wrong to suggest that I have filed the false affidavit at the instance of Sh. D.N. Saini. It is wrong to suggest that the agreement Ex.P1 was not got typed by defendant no.1 nor she signed in my presence or otherwise."
The aforestated testimony of the attesting witness does CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 77 of 91not inspire confidence as the witness is found wavering in his stand whereas in his examination in chief the attesting witness categorically asserts that the document was got typed, read over to accepted as correct and signed by defendant no.1 in his presence, in the cross examination denies that the agreement is got typed in his presence. The then Director of the company examined as PW1 has in his cross examination deposed to the following effect: "..Agreement to sell was got prepared by defendant no.2. Ex.P1 was never seen by me before the signatures were appended on Ex.P1. The draft was finalized by Mr. Arvind Bansal and me. There were no improvements or corrections made in the draft. The draft was finalized without any corrections and signed. When Ex.P1 was executed, Mr. Arvind Bansal, Mr. Natharam and I were present. Defendant no.1 was also present. The meeting took about 11 ½ hours. Again said, five persons were present during the meeting. Defendant no.2 was also present. No one left during the meeting. None came from outside during the meeting.
Rs. 40,000/ were paid at the time of execution of Ex.P1. Receipt of Rs.40,000/b was acknowledged on Ex.P1. No separate receipt was issued. The payment was received and acknowledged on a voucher of plaintiff company annexed with Ex.P1. The payment of Rs.40,000/ was duly shown in the books of accounts of plaintiff company. The agreement is signed by four persons. I cannot say if there was a loan transaction between plaintiff and defendant no.1. It is wrong to suggest that defendant no.2 did not get the draft of Ex.P1 prepared. It is wrong to suggest that the Ex.P1 was never executed. It CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 78 of 91is wrong to suggest that there were no negotiations for selling the suit property.
The title documents of the suit property were not verified by the plaintiff. The copy of the title documents were seen by me which was given to me by the defendants. Defendants had given copy of General Power of Attorney with respect to the suit property. I do not have the said copy at present. It may be lying in the office at Delhi. I do not remember if the copy of GPA was filed with the suit. It is wrong to suggest that defendants did not give the copy of the title documents to the plaintiff. I do not remember if the GPA was in favour of defendant no.1 or defendant no.2. It is wrong to suggest that I had not seen the copies of title documents and therefore, same have not been filed alongwith the suit nor mentioned in the plaint. The defendant had delivered the photocopy of the Registry to me. I do not remember if I had filed the copy of the Registry or not. No photocopy of the Registry is available on the court record. It is wrong to suggest that I am not in possession the copy of the Registry and therefore I did not file the photocopy of the Registry on the court file. It is wrong to suggest that as no agreement to sell was executed between me and defendant no.1, there was no occasion of defendant no.1 to supply me the copy of the Registry. I do not remember the house number in which the defendants were residing. I cannot say if defendants were residing in 29C, Second Floor, Hari Nagar, New Delhi. I have not seen the property No.323/6, Hari Nagar, New Delhi and therefore I cannot tell it was a godown or the residential property or vacant plot. It is wrong to CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 79 of 91suggest that I am not disclosing the correct facts and I am aware of the fact that 323/6, Hari Nagar is a godown and not a residential house. It is correct that the agreement in July 1997 with respect to the basement was a verbal agreement. It is wrong to suggest that there was no verbal or written agreement in July, 1997....." It is correct that Ex.P1 does not bear the signature of Gurmeet Singh. It is wrong to suggest that the document was typed after obtaining the signatures. The document was got typed by Gurmeet Singh. It is wrong to suggest that I had got it typed and not Gurmeet Singh. It is wrong to suggest that no consideration much less Rs.13 lakhs was ever fixed between the plaintiff and defendant no.1 with regard to the sale and purchase of the first floor of the property in question for any purpose whatsoever. It is wrong to suggest that no amount has been paid by the plaintiff to defendant no.1 towards the alleged consideration of the first floor of proeprty in question..."
One attesting witness in his deposition in chief alleges that the document was got typed on the instructions of defendant no.1 however in cross examination states that the document is not typed in his presence; PW1 states that it was got typed by the deceased defendant no. 2. The cutting and overwriting in the text is in the same ink as the signatures of PW1. If the document is got typed by the deceased husband of defendant no.1; It is not understandable as to why the corrections are not initialled. A payment of Rs.40,000/ is stated to have been made to the defendant no.1 as earnest money against voucher of same date; The voucher dated 28.10.1997, Ex.P8 CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 80 of 91for an amount of Rs.40,000/ is as per the statement contained in the voucher against purchase price for basement whereas the document states that the entire payment in respect of the basement has been received from the plaintiffs by the defendant no.1; Besides Ex.P8, there is no other voucher dated 28.10.1997. Again it is to be kept in perspective that it is the plaintiff company that entered into the agreement to sell and PW1 has signed as the Director of the plaintiff company that entered into the agreement to sell and PW1 has signed as the Director of the plaintiff company and not in his personal capacity. However the document does not bear the seal of the Director of the company and that the plaintiff company had resolved to acquire the suit property from the defendant no.1 and had authorised the Director, PW1 to enter into an agreement to sell with the defendant no.1. These material facts could alone be substantiated upon the production of the record of the plaintiff company.
19. Who prepared the agreement to sell is a relevant question in the circumstances considering the unnatural manner in which the document is drafted. There is no unanimity as amongst the witnesses as to who got prepared the document. In their cross examinations the witness asserting that the document was typed, read over, accepted as correct of defendant no.1 in their presence have denied that the document was typed in their presence. PW1 a signatory to the document deposes that no cuttings and over writing / corrections were made, however, there are several corrections made in the ink in the body of the document, and not counter signed by the alleged executant of the document. What is also material is that if this CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 81 of 91document had come into existence on 28.10.1997 then why is this document not referred to in the subsequently dated document, Ex. P2, purported to be an acknowledgment of the receipt of payments made to the defendant no: 1 towards the sale consideration captioned as agreement dated 30.03.1998. Moreover under the document it is recorded that as on 28.10.1998 the entire sale consideration of Rs. 11,50,000/ in respect of the basement of the property bearing no: 55, Hari Nagar, Ashram, New Delhi has been paid to the defendant no:1, it is also stated that earnest money for the purchase of the first floor of the property of Rs.40,000/ has been received by the defendant no.1. This amount of Rs. 40,000/ is shown to be tendered as Ex. P8 and though in the oral deposition it is claimed to reflect payment made towards the purchase of the First Floor of property bearing no: 55, Hari Nagar, Ashram, New Delhi , however, the voucher itself as per the contents of the voucher is in respect of basement of property bearing no: 55, Hari Nagar, Ashram, New Delhi and not as earnest money for the First Floor of the property as bearing no: 55, Hari Nagar, Ashram, New Delhi. Further if the earnest money is paid on 28.10.1997, the plaintiff in the course of oral deposition of PW1 has also relied upon rent receipts dated 29.07.1997 and 01.08.1997, Ex. P16 and Ex P17, receipts issued in respect of payments received towards sale consideration for the first floor of the property bearing no: 55, Hari Nagar, Ashram, New Delhi and the aggregate amount is Rs. 6 lacs. Though the contents of Ex.P16 and Ex.P17 does not support the oral deposition however since it is the director of the plaintiff alleging that Ex.P16 and Ex.P17 are in lieu of payments CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 82 of 91made for purchase of first floor, it is for the plaintiff to explain as to under what circumstances, when a payment of Rs.6 lacs has exchanged hands towards the sale/purchase of the first floor as on 29.7.1997 and 1.8.1997, has the agreement to sell dated 28.10.1997 recording that earnest money is paid in the sum of Rs.40,000/ on 28.10.1997. The witnesses remain unmindful of the contradictions in their depositions and the documentary evidence and make no attempt to explain them. The oral deposition, the documentary evidence remains irreconcilable, the documentary evidence does not support the oral deposition and the oral deposition is contrary to the contents of the written document which is relied upon by the plaintiff itself and the plaintiff does not bother to explain the contradictions simmering at the surface. I, therefore, come to the conclusion that the plaintiff has failed to prove that the terms and conditions of the agreement to sell entered into between the parties in July 1997 in respect of the basement of property bearing no: 55, Hari Nagar, Ashram, New Delhi and in October, 1997 in respect of First Floor of property bearing no: 55, Hari Nagar, Ashram, New Delhi, were reduced into writing by way of agreement to sell dated 28.10.1997 duly executed between the parties. The admission of the signatures at the bottom edge of Ex. P1 by defendant no: 1 is of no help to the plaintiff and the onus probandum does not shift upon the defendant no: 1 to prove that the document is forged and fabricated. The document is not set up in the pleadings and is not supported by oral and other documentary evidence lead, particularly the receipts/vouchers and document dated 30.3.1998 Ex.P2, and taking into consideration the peculiar manner in CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 83 of 91which the document has come to be drafted I find that the plaintiff has failed to prove the execution of agreement to sell dated 28.10.1997 as the failure to disclose the relevant record if in existence works to the disadvantage of the plaintiff. It is for the plaint to stand on its own legs. It is the duty of the plaintiff to produce and rely upon all relevant evidence in order to discharge the onus cast upon the plaintiff.
20. In view of the aforestated discussion and the failure of the plaintiff to plead all the essential ingredients of a concluded agreement to sell alleged to have come into existence in July 1997 and October 1997, the failure of the plaintiff to prove the vouchers and receipts relied upon by disclosing and examining the author thereof in view of the cuttings and overwriting thereon and the contradictions in the oral evidence and the documentary evidence as whereas the receipts Ex 16 and Ex 17 and vouchers Ex.P8 and Ex.P28 are stated to be in respect of payments made for first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi, the contents of the document on the contrary state that the payment is made against basement; and the differential in the payment alleged to have been made and as computed on the basis of the documentary evidence in support thereof; the contradictions in respect of the oral deposition as regards Ex.P2, the incompatibility of the amount mentioned in Ex.P2 with the aggregate in terms of the receipts and vouchers relied upon, the failure of the plaintiff to plead that the terms of oral agreement to sell entered into in July 1997 and October 1997 were reduced to writing by way of agreement to sell dated 28.10.1997, Ex. P1, the CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 84 of 91unnatural manner in which Ex. P1 is formatted and written, the contradictions in the oral deposition in respect of the drafting thereof and the cuttings and corrections appearing thereon, the divergence in the contents of the receipts and vouchers and Ex. P1 and for the failure of the plaintiff company to produce the relevant record as regards the resolution for acquisition of property, the authorization for entering into agreement to sell, besides the account books particularly in respect of the building a/c in support of payment made, I have no hesitation in returning the finding that plaintiff has failed to establish on a preponderance of probabilities that an enforceable concluded contract for sale of basement and first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi had come into existence in July 1997 or in October 1997, and the plaintiff has failed to prove that the plaintiff has made any payments against voucher/receipt to the defendant no.1 towards the purchase of the basement and first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi and that the plaintiff has failed to substantiate that the plaintiff has paid a sum of Rs.24,15,000/ or any other amount to the defendant no.1 in performance of its part of agreement to sell/purchase of basementfirst floor of property bearing no.55, Hari Nagar, Ashram, New Delhi and that the plaintiff is entitled to specific performance of agreement to sell in respect basement and first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi on the part of the defendant no.1 upon receiving the balance sale consideration of Rs.35,000/ by way of execution of sale deed in respect of basement and first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi, the issue CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 85 of 91no.2 and 3 are consequently decided against the plaintiff and in favour of the defendant.
21. As has been noted in the earlier part of the discussion that the relief of specific performance is a discretionary relief guided by Section 10 and 16 of the Specific Relief Act, specific performance of a contract cannot be enforced in favour of a person 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 the terms the performance of which has been prevented or waived by the defendant. The plaintiff alleges that the plaintiff had entered into an agreement to sell with the defendant no.1 in respect of the basement of property bearing no.55, Hari Nagar, Ashram, New Delhi in the month of July 1997 and in respect of first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi in the month of October 1997 and that the terms of the agreement were reduced into writing by way of an agreement to sell dated 28.10.1997 and that the plaintiff as on 28.10.1997 had paid the entire sale consideration as regards the basement of property bearing no.55, Hari Nagar, Ashram, New Delhi and that the first floor was agreed to be sold upon payment of consideration of Rs.13 lacs and that till date the plaintiff has paid to the defendant no.1 a sum of Rs.24,15,000/ and has always been ready and willing to perform his part of the agreement to sell and pay the balance amount of sale consideration i.e. a sum of Rs.35,000/ and that the defendant no.1 is liable to be directed to execute a sale deed in favour of the plaintiff in respect of the basement and first floor of property bearing no.55, Hari Nagar, CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 86 of 91Ashram, New Delhi upon acceptance of the balance sale consideration amount of Rs.35,000/. The plaintiff has however failed to establish the coming into force of a concluded and enforceable agreement to sell in respect of basement and first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi and has also failed to prove that the plaintiff had made any payments to the defendant no.1 for the purchase of the basement and first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi. In view thereof there arises no question of the plaintiff being ready and willing to perform his part of an agreement to sell as alleged. Moreover the defendant in the course of cross examination of the present director of the plaintiff company demonstrated that the plaintiff company is defunct and has no bank account existing in its name and therefore, the plaintiff company is incapable of performing its part of the agreement in terms of the case set up by the plaintiff itself and the plaintiff has infact lead no documentary evidence to establish its readiness & Willingness in terms of the own case of the plaintiff. The relevant portion of the cross examination of PW3 is as follows:
" The plaintiff company has no bank account in operation for the last 2 years. There is no transaction in the plaintiff company. There is no sale, purchase income or loss in the plaintiff company. As of today the plaintiff is a defunct company.
As a consequence of findings returned on issues no.2 and 3, issue no.5 is also decided against the plaintiff and in favour of the defendant.
22. The suit of the plaintiff for specific performance of CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 87 of 91agreement to sell entered into between the plaintiff and the defendant no.1 in respect of basement and first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi in the month of July 1997 and October 1997 is contended to be hopelessly time barred by the defendant. It is Article 54 of the schedule to the Limitation Act that lays down the period of limitation in respect of a suit for specific performance of a contract. The period of limitation prescribed is 3 years and the period of limitation is to be computed from the date fixed for the performance which is to be specifically enforced and where no such date is fixed, then the period is to be computed from the date when the plaintiff has notice that the performance is refused. The plaintiff relies upon Ex.P1 an agreement to sell dated 28.10.1997 executed in pursuance to the oral agreements to sell entered into in the month of July and October 1997 under which the date of performance has been fixed as 31.3.1999. However, the plaintiff has failed to substantiate that the plaintiff had entered into an agreement to sell with the defendant no.1 in respect of the basement portion of property bearing no. 55, Hari Nagar, Ashram, New Delhi in July 1997 and an agreement to sell in respect of the first floor of the property bearing no. 55, Hari Nagar, Ashram, New Delhi in the month of October 1997 and that the terms of the agreement to sell in respect of the basment of first floor of property bearing no. 55, Hari Nagar, Ashram, New Delhi were reduced into writing on 28.10.1997 and agreement to sell dated 28.10.1997 was duly executed between the parties. The plaintiff has not pleaded that the parties had agreed in July and October 1997 upon a date for execution of sale deed and payment of sale consideration.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 88 of 91The period of limitation therefore is to commence w.e.f the date since when the plaintiff has notice of refusal to perform on part of defendant no.1. It the case of the plaintiff that the defendant no.1 has been lingering on the matter of execution and registration of the sale deed on one pretext or the other and on 19.9.2002 the defendants have locked the premises after removing the goods of the plaintiff worth Rs.2,95,702/ from the premises and it is from this act of the plaintiff the plaintiff has acquired definitive notice that the performance is refused by the defendant and therefore the suit of the plaintiff is within limitation. The relief of specific performance is a discretionary relief and is not to be granted merely because it would be lawful to do so. Even if the suit for specific performance is demonstrated to be instituted within the prescribed period of limitation however, the conduct of parties to the agreement is also relevant to determine the enforceable of the contract at the instance of the party seeking the enforcement thereof. It is to be considered as to whether the party claiming specific performance has been diligent enough is approaching for the enforcement of the promise or is guilty of delay and laches. As per the own case of the plaintiff the agreement to sell is entered into in the month of July 1997 and October 1997 and the defendant has been delaying the execution of the sale deed since 8.8.1998. The plaintiff approaching the court on 30.9.2002 for specific performance of the agreement to sell in respect of the basement and first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi is certainly not diligent enough and the claim of the plaintiff for enforcement of the obligations as per the own case of CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 89 of 91the plaintiff confirmed and coming into existence in July and October 1997 is clearly hit by delay and laches. Moreover the plaintiff has failed to prove the coming into existence of a valid and concluded agreement to sell in respect of the basement and first floor of the property bearing no.55, Hari Nagar, Ashram, New Delhi, therefore there is no occasion to embark upon a discussion as to whether the claim of the plaintiff is stale or suffers from delay and laches or within the prescribed period of limitation. Issue no.1 is accordingly disposed.
23. Issue no.4.
Issue no.4 is not pressed at the time of arguments. The present director of the plaintiff examined as PW3 who is the person who was inducted as the tenant over the basement and was residing till 2002 over the first floor has not deposed to the effect that any articles were removed. PW4 was in Narnaul and goods are not removed in her presence. The PW1 was the Director of the plaintiff only from 1997 to 1999 and PW1 was residing at Hisar in the year 2002 and was looking after the business of the plaintiff company from Hisar and it was PW3 who was looking after the business of the plaintiff company at Delhi who has not made any deposition in respect of the removal of the goods, in his presence. The oral depositions are deficient and no documentary evidence of the existence of goods, the valuation of goods and removal of goods is lead. The issue no.4 is therefore decided against the plaintiff and in favour of the defendants.
24. Relief.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
Page 90 of 9125. In view of the discussion above and the issuewise findings returned, the suit of the plaintiff for specific performance of agreement to sell in respect of basement and first floor of property bearing no.55, Hari Nagar, Ashram, New Delhi is accordingly dismissed.
Parties are left to their own cost.
Decree sheet be prepared accordingly.
File be consigned to the record room.
Pronounced in the open Court (Neelofer Abida Perveen) on this 31st, August 2017. Addl. District Judge04, SouthEast, Saket Court, New Delhi.
The judgment contains 91 pages all checked and signed by me.
CS No.133/16 (CIS No.9870/16) M/s Sparrow Agro Forest Pvt. Ltd. V/s Smt. Virender Kaur And Anr.
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