Delhi District Court
Gautam Seth vs . Om Prakash on 5 September, 2019
Gautam Seth Vs. Om Prakash
CS No. 16436/16
IN THE COURT OF SHRI TARUN YOGESH
ADDL. DISTRICT JUDGE:03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 16436/16
CNR No. DLSW010010542014
In the matter of
Sh. Gautam Seth
S/o Late Sh. D. C. Seth
R/o G54, Vikaspuri,
New Delhi. ... Plaintiff
Versus
Sh. Om Prakash
S/o Late Sh. Jai Dayal
R/o Village Paprawat,
New Delhi. ... Defendant
Date of Institution of suit : 07.05.2014
Date on which judgment was pronounced : 05.09.2019
SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT DATED
25.09.2013 AND PERMANENT INJUNCTION
JUDGMENT
1. Plaintiff Shri Gautam Seth has filed suit for specific performance of agreement to sell and purchase dated 25.09.2013 in respect of land measuring 1 bigha and for restraining defendant, his legal heirs, successors, assignees, etc. from forcefully dispossessing the plaintiff from the suit property.
2. Brief facts set out in the amended plaint are narrated below:
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2.1 Defendant being absolute owner in possession of land
measuring 2 bighas out of khasra No. 43/17/18/23/1 and 24 situated in Village Paprawat, New Delhi is stated to have approached plaintiff in the first week of May 2013 for selling aforesaid 2 bighas out of total 15 bighas 8 biswas of land for total sale consideration of Rs. 74,00,000/. 2.2 The deal was finalized and usual documents of conveyance like agreement to sell and purchase, receipt, possession letter, deed of Will, etc., all dated 09.05.2013 were prepared/typed upon two nonjudicial stamp papers purchased on 10.05.2013 which were signed by Shri Lekh Raj and Shri Amar Preet Singh as marginal/attesting witnesses. Defendant, however, refused to sign and retained the documents with him on the pretext of showing the documents to his advocate. 2.3 Defendant, thereafter, executed fresh documents in favour of plaintiff in the presence of aforesaid witnesses and executed fresh receipt of Rs.20,00,000/ in respect of remaining 1 bigha of land and plaintiff's suit for specific performance and permanent injunction is confined to the second piece of land measuring 1 bigha on the basis of agreement to sell and purchase dated 25.09.2013 for total sale consideration of Rs.20,00,000/ by reserving his right to file separate suit for specific performance of contract/agreement dated 09.05.2013 before Hon'ble High Court of Delhi in respect of the first plot measuring 1 bigha of land. 2.4 Copies of agreement to sell and purchase, deed of Will, receipt and possession letter, all dated 25.09.2013 have been filed along with plaint as Annexure 'B' to Annexure 'E' and plaintiff has also averred about physical possession of suit property delivered by defendant at the time of executing the documents.
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2.5 It is averred that defendant despite being left with no right, title
or interest in the property is trying to resell the property to third party and approached the plaintiff along with 45 associates on 23.12.2013 seeking return of documents dated 25.09.2013 and turned down plaintiff's request to execute registered sale deed in his favour.
2.6 Plaintiff has also stated about application dated 30.12.2013 filed in the office of LAC/ADM (SouthWest) for not issuing NOC regarding suit property and eventually filed suit for specific performance of agreement dated 25.09.2013 with additional relief of permanent injunction by restraining defendant, his legal heirs, successors, etc. from forcibly dispossessing him from the suit property after withdrawing the earlier suit for permanent and mandatory injunction bearing Civil Suit No.91/14 which was filed in the Court of Ld. Senior Civil Judge, Dwarka Courts, New Delhi.
3. Defendant Shri Om Prakash has filed amended written statement contesting plaintiff's suit based on unregistered agreement to sell, GPA, receipt and Will for seeking dismissal of suit with cost by referring to Section 35 of the Indian Stamp Act, 1899; Section 17 (1A) of the Indian Registration Act, 1908 and Section 53A of the Transfer of Property Act, 1882.
4. Jurisdiction of the court has been disputed by defendant by insisting market price of suit property being more than Rs.3,00,00,000/ and defendant, in addition, has also denied execution of alleged GPA, agreement to sell, receipt, Will by stating about good family relations with the plaintiff for last more than 20 years and contending that his signatures were obtained by plaintiff on the pretext of settlement being explored between parties in Appeal No. 160/2006 titled "Tara Chand & Ors. Vs. Page 3 /11 DOD: 05.09.2019 Gautam Seth Vs. Om Prakash CS No. 16436/16 Ram Singh & Ors" and Appeal No. 161/2006 titled "Tara Chand & Ors. VS. Ms. Upasana & Ors." which were pending in the Court of Ld. Deputy Commissioner, SouthWest District, Kapashera, Delhi for disputing alleged agreement to sell, etc. as forged and fabricated documents which were never executed at any point of time.
5. Plaintiff's averments were denied in corresponding para of reply on merits and plaintiff thereafter filed replication reiterating averments in his plaint.
6. Plaintiff's application under Order XXXIX Rules 1 and 2 CPC was allowed on 07.09.2015 by restraining defendant from creating third party interest in the suit property till pendency of suit and following issues were settled on 08.12.2015 on the basis of pleadings:
1. Whether the suit is maintainable as framed and presented before the Court? ... OPP
2. Whether the suit is barred under any provisions of law; provision of CPC in general and the provisions of the Specific Relief Act, in particular? ... OPD
3. Whether the plaintiff is entitled to a decree of specific performance of contract/agreement dated 25.09.2013 as prayed for in prayer clause (a) of the plaint? ... OPP
4. Whether the plaintiff is entitled to a decree for permanent injunction in favour of the plaintiff and against the defendant as prayed in prayer clause (b) of the plaint? ... OPP
5. Relief.
7. Plaintiff Shri Gautam Seth has examined himself as PW1 in Page 4 /11 DOD: 05.09.2019 Gautam Seth Vs. Om Prakash CS No. 16436/16 support of his case by tendering affidavit Ex.PW1/A in evidence and relied upon documents viz. (i) copy of khatoni Ex.PW1/1; (ii) agreement to sale & purchase Ex.PW1/2; (iii) deed of WILL Ex.PW1/3; (iv) possession letter Ex.PW1/4; (v) receipt dated 25.09.2013 Ex.PW1/5; (vi) site plan Ex.PW 1/6 and (vii) copy of application dated 30.12.2013 Ex.PW1/7.
8. His crossexamination was recorded on 16.03.2017 and plaintiff's evidence was closed on the same day on the basis of his statement.
9. Defendant Shri Om Prakash on the other hand has deposed as DW1 by tendering his affidavit Ex.DW1/A in evidence and relied upon Statement of Account referred as Ex.DW1/1 for disputing plaintiff's contention about payment of Rs.20,00,000/ against alleged agreement dated 25.09.2019.
10. Crossexamination of defendant by plaintiff's counsel was recorded on 19.12.2017 and 07.04.2018. No other witness was examined and defendant's evidence was closed on 23.05.2018.
11. Advocate Shri Paramvir Singh for plaintiff and Advocate Shri Himanshu Upadhyay for defendant have addressed their submissions and matter was reserved for judgment but plaintiff in the meantime filed application under Order XVIII Rule 17 CPC on 01.05.2019 for reopening plaintiff's evidence.
12. Submissions were heard and plaintiff's application for reopening evidence was opposed by defendant's counsel by referring to judgment of Hon'ble Karnataka High Court titled Rabiya Bi Kassim M. Vs. The Countrywide Consumer ILR 2004 KAR 2215.
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13. It is significant to note that plaintiff's evidence was closed on the basis of his statement recorded on 16.03.2017 without pressing application under Section 45 of the Indian Evidence Act, 1872 for obtaining opinion of handwriting expert upon disputed signatures of defendant and another application for summoning and examining attesting witnesses namely Shri Lekh Raj and Shri Amar Preet Singh.
14. It is also pertinent to note that plaintiff in para 2 of application under Order XVIII Rule 17 CPC has stated that attesting witnesses could not be examined as they were not in touch whereas plaintiff's application for summoning 'Status Report' was dismissed vide order dated 21.07.2018 by observing that report bearing No. ADM/SouthWest/ Land Status Report 5346 dated 23.10.2015 was not relevant for deciding plaintiff's suit for specific performance of agreement to sell dated 25.09.2013.
15. Para 10 of the judgment of Hon'ble Karnataka High Court passed in Rabiya Bi Kassim M. (Supra) by referring to judgment of Hon'ble Supreme Court of India in Arjun Singh's case being relevant is extracted below:
"As discussed above, in the facts of the case on hand, we are of the opinion that making an interlocutory application to reopen the case and record further evidence after the matter is reserved for pronouncement of judgment is not permissble. We answer the question referred for decision by holding that no application can be filed after the final arguments have been heard and the matter is posted for judgment.
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The Single Bench decision of this Court in
LAXMINARAYAN ENTERPRISES v. LAXMINARAYAN
TEXTILES is not applicable in view of the decision of the Supreme Court and as stated above."
16. Plaintiff's application under Order XVIII Rule 17 CPC for reopening evidence filed on record after submissions were addressed by ld. counsels and matter was reserved for judgment is not maintainable and is accordingly dismissed.
17. My issuewise finding on the basis of pleadings and evidence led on judicial file are recorded below:
18. Issue No.1: Whether the suit is maintainable as framed and presented before the Court? ... OPP 18.1 Plaintiff Shri Gautam Seth has filed suit for specific performance of agreement to sell and purchase dated 25.09.2013 with additional relief of permanent injunction on the basis of agreement to sell and purchase, possession letter, receipt and deed of Will referred as Ex.PW1/2 to Ex.PW1/5 by insisting physical possession of suit property which was delivered by defendant at the time of executing the documents. 18.2 Defendant, on the other hand, has contested plaintiff's suit by disputing alleged forged and fabricated documents which were never executed by him.
18.3 It is pertinent to note that agreement to sell and purchase dated 25.09.2013 filed on record and relied upon by plaintiff has been prepared upon stamp paper of Rs.50/ without paying 90% of stamp duty for conveyance of immovable property in the nature of part performance as per Article 23A of Schedule I of the Indian Stamp Act, 1899 inserted by Page 7 /11 DOD: 05.09.2019 Gautam Seth Vs. Om Prakash CS No. 16436/16 the Registration and Other Related Laws (Amendment) Act, 2001 (48 of 2001).
18.4 Defendant Shri Om Prakash has categorically denied payment of alleged Rs.20,00,000/ in cash and plaintiff other than his affidavit Ex.PW1/A and alleged agreement to sell and purchase and receipt has failed to examine any witness in support of his contention about payment of Rs.20,00,000/ in cash. The only document filed on record is copy of statement of account of M/s Pride Properties verifying remittance of Rs.2,50,000/ vide cheque No. 605280 which was transferred/paid to defendant on 08.12.2012 much prior to alleged agreement to sell dated 25.09.2013.
Finding: Since plaintiff Shri Gautam Seth has filed suit insisting physical possession of land measuring 1 bigha on the basis of alleged agreement to sell and purchase, receipt, possession letter, etc. so plaintiff's suit insisting right and title in the property on the basis of agreement to sell and purchase prepared on stamp paper of Rs.50/ is not maintainable in view of Article 23A of Schedule I of the Indian Stamp Act, 1899 read with Section 17(1A) of the Registration Act, 1908 and Section 53A of the Transfer of Property Act, 1882 in the absence of requisite 90% of stamp duty and compulsory registration of instrument for the purpose of part performance. Issue No.1 is therefore decided against the plaintiff.
19. Issue No.2: Whether the suit is barred under any provisions of law; provision of CPC in general and the provisions of the Specific Relief Act, in particular? ... OPD Finding : Issue No.2 is also decided in favour of defendant and against the plaintiff as plaintiff's suit on the basis of alleged agreement to sell and Page 8 /11 DOD: 05.09.2019 Gautam Seth Vs. Om Prakash CS No. 16436/16 purchase dated 25.09.2013 has been filed in contravention of Article 23A of Schedule I of the Indian Stamp Act, 1899 read with Section 17(1A) of the Registration Act, 1908 and Section 53A of the Transfer of Property Act, 1882 inserted by the Registration and Other Related Laws (Amendment) Act, 2001 (48 of 2001).
20. Issue No. 3: Whether the plaintiff is entitled to a decree of specific performance of contract/agreement dated 25.09.2013 as prayed for in prayer clause (a) of the plaint? ... OPP 20.1 Plaintiff Shri Gautam Seth during his crossexamination by defendant's counsel has deposed that agreement to sell and purchase Ex.PW1/2 was drafted much prior to the date of execution mentioned in the agreement and admitted about another agreement entered with all joint owners of the properties but could not recollect the exact date of the previous agreement. He has also deposed that other joint owners/co bhumidars were not consulted at the time of execution of agreement to sell and purchase and denied the suggestion disputing agreement to sell, deed of Will, possession letter and receipt as forged and fabricated documents. 20.2 Defendant Shri Om Prakash (DW1) on the other hand has denied execution of alleged agreement to sell, receipt, Will by disputing alleged forged and fabricated documents and deposed that no consideration amount was ever received from plaintiff. Defendant, however, has admitted receipt of Rs.2,50,000/ from plaintiff during his crossexamination by claiming that he was entitled to receive Rs.3,00,000/ from the plaintiff against another transaction. 20.3 Testimony of DW1 during his crossexamination and relevant entry in the statement of account of M/s Pride Properties showing Page 9 /11 DOD: 05.09.2019 Gautam Seth Vs. Om Prakash CS No. 16436/16 remittance of Rs.2,50,000/ vide cheqie No. 605280 is however not relevant in the facts of the present case as the amount was transferred/paid to defendant on 08.12.2012 much prior to alleged agreement to sell dated 25.09.2013.
20.4 Attesting witnesses namely Shri Lekhran and Shri Amar Preet Singh were not examined by plaintiff before closing his evidence on 16.03.2017 and no evidence has been led on record verifying payment of Rs.20,00,000/ in cash to defendant other than mere bald testimony of plaintiff Shri Gautam Seth (PW1) who upon being subjected to cross examination has deposed that alleged agreement was drafted much prior to the date of execution and also deposed that agreement to sell was not filed by him (along with plaint) being computer typed document. Finding : Plaintiff therefore could neither prove execution of agreement to sell and purchase dated 25.09.2013 nor prove alleged payment of Rs.20,00,000/ in cash to defendant. Issue No.3 is therefore decided against the plaintiff.
21. Issue No.4: Whether the plaintiff is entitled to a decree for permanent injunction in favour of the plaintiff and against the defendant as prayed in prayer clause (b) of the plaint? ... OPP Finding : Since alleged agreement to sell and purchase was executed upon stamp paper of Rs.50/ without requisite 90% of stamp duty as per Article 23A of the Indian Stamp Act, 1899 and alleged agreement to sell and purchase dated 25.09.2013 has not been registered so plaintiff is not entitled to any relief on the basis of part performance in the absence of compulsory registration of instrument as per Section 17 (1A) of the Registration Act, 1908 read with Section 53A of Transfer of Property Act.
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Issue No. 4 is therefore decided against the plaintiff.
22. Relief: Plaintiff's suit for specific performance of agreement to sell and purchase dated 25.09.2013 in respect of land measuring 1 bigha and for restraining defendant, his legal heirs, successors, assignees etc. from forcefully dispossessing him from the suit property is therefore dismissed.
23. Decree sheet be prepared accordingly.
24. File be consigned to record room after due compliance.
Digitally signed TARUN by TARUN
YOGESH
YOGESH Date: 2019.09.12
16:31:57 +0530
Announced in the open Court (Tarun Yogesh)
On 05.09.2019 ADJ03/South West
Dwarka / New Delhi
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