Delhi District Court
Smt. Kiran Bala Mehru vs Late Mr. Dulal Chand Nandi Deceased on 30 January, 2010
1
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL DISTRICT JUDGE -01 (WEST); DELHI
CS No.03A/09/1984 : 29.10.1984
Date of Institution(RBT) : 22.10.2009
Arguments concluded on: 28.01.2010.
Date of decision : 30.01.2010.
In the matter of:
Smt. Kiran Bala Mehru
Wife of Shri R.S.Mehru
R/o C-15A Kailash colony,
New Delhi. ... Plaintiff
Versus
1. Late Mr. Dulal Chand Nandi deceased
represented by his heirs:
a) late Mrs. Shobhana Nandi (wife)
through her LRs
(i) Sh. Bhola Nath Nandi(son)
(ii)Mrs. Anima Dasgupta, (daughter)
wife of Mr. P.K.Dasgupta
R/o C-14A and C-15 Kailash colony,
New Delhi-110048.
b) Sh. Bhola Nath Nandi (son)
c) Mrs. Anima Dasgupta, (daughter)
wife of Mr. P.K.Dasgupta
R/o C-14A and C-15 Kailash colony,
New Delhi-110048.
2. Mrs. Savitri Jain
R/o C-4/112,
Safdarjang Development Area,
New Delhi. .......Defendants
2
Suit for specific performance of agreement for sale and for
possession and/or for damages with interest and costs
JUDGMENT
Point in dispute in this suit of the year 1984 is as to whether decree for specific performance of agreement dt.12.5.1983 by way of execution of sale deed and its registration and for possession of the suit land should or should not be passed in favour of the plaintiff ?
Present suit came to be instituted before Hon'ble High Court of Delhi on 29.10.84, on the basis of valuation of the suit for the purposes of court fee and jurisdiction, which was assessed at Rs.16 lacs.
Case of the plaintiff in brief is that defendant No.1 Dulal Chand Nandi(since deceased) entered into an agreement dt.12.5.1983 with her(plaintiff) and defendant no.2 Smt. Savitri Jain thereby agreed to sell property No.C-14 and C-15 measuring 696.96 sq. yds, Kailash Colony, New Delhi for a total sale consideration of Rs.16 lac. Out of the sale consideration, a sum of Rs.90,000/- was paid at that time i.e. Rs.5000/- vide cheque dt.11.5.1983 and Rs.45000/- by way of another cheque dt.12.5.1983 issued by plaintiff, and similar payment by defendant no.2. Defendant no.1 is agreed to have all necessary permission from competent authorities and that sale deed shall be executed within two 3 months. Possession of the premises was agreed to be delivered on payment of balance sale consideration at the time of execution of the sale deed.
Case of the plaintiff is that although in the agreement, it was recorded that original documents of title had been given to her and defendant No.2, but actually defendant No. 1 received back those documents on the ground that the same would be delivered at the time of execution of the sale deed.
On 13.6.84, defendant No.1 forwarded to the plaintiff a photo copy of Income tax clearance certificate and draft sale deed. In the draft sale deed, defendant no.1 mentioned that balance sale consideration was to be paid in two installments i.e. first installment of Rs.7 lac within 15 days of the receipt of Income tax clearance and Rs.8 lacs at the time of execution of the sale deed, and further that vacant possession of the premises would be delivered within two months of the execution of the sale deed. Plaintiff has alleged that these terms were contrary to the terms of the agreement dt. 12.5.83 and revealed that defendant No.1 was going to back out of the contractual obligations. Plaintiff then sent letter dt.18.6.1984 informing defendant No.1 that the balance sale consideration shall be paid before the Sub 4 Registrar, as already agreed, at the time of execution of the sale deed and against vacant possession and further that no further advance payment would be made. Vide this letter, the plaintiff requested defendant No.1 for execution of the sale deed and handing over possession prior to 30.6.1986, if possible. However, plaintiff did not receive any reply to this letter from defendant No.1. Therefore, vide letter dt.30.6.86, plaintiff again called upon defendant No.1 to take steps for transfer of the property in her favour by execution of the sale deed and also for delivery of vacant possession or that otherwise she would have no option but to file the present suit.
Defendant No.1 replied vide letter dt.5.7.1984 that he was in a position to execute the sale deed. At the same time, he called upon the plaintiff to arrange for balance sale consideration of Rs.15 lacs. Plaintiff again called upon defendant no.1 to execute sale deed latest by 25.7.1984. Vide his letter dt.21.7.84, defendant No.1 sent to the plaintiff a form under Urban Land (Ceiling and Regulation Act) requiring him to execute the same. Vide letter dt.3.8.84, plaintiff sent duly signed application to defendant No.1. Defendant No.1 was also called upon to ensure execution of the sale deed prior to 16.8.84. However, vide letter dt.11.8.84 addressed to the plaintiff, defendant No.1 called upon her to see him personally 5 before 31.8.84 while informing that she had not complied with requirement by signing the prescribed form. Plaintiff replied vide letter dt.22.8.84 that the balance sale proceed shall be paid by way of bank draft before the Registrar and that vacant possession was required to be delivered at the time of payment. Plaintiff sent letter dt.17.9.84 informing defendant No.1 that draft sale deed did not appear to be in consonance with agreement to sell.
It is also case of the plaintiff that defendant No.2 was not forthcoming with her finances and ultimately on 20.9.84 she nominated plaintiff for valuable consideration. Defendant No.1 was informed in this regard. However, defendant No.1 vide letter dt.27.9.84 without making any reference to the aforesaid letter of defendant No.2 informed the plaintiff that defendant No.1 did not accept the genuineness of signatures of the plaintiff and that she should meet her personally, otherwise he would not abide by the terms of the agreement. Hence, this suit with following prayers:-
(a) "that a decree for specific performance of the agreement to sell dt.12th May,1983 be passed in favour of the plaintiff and against defendant No.1 in respect of the property bearing Nos. C-14A and C-6
15, Kailash Colony, New Delhi and the defendant no.1 be ordered and directed to execute the sale deed in favour of the plaintiff or her nominee, on terms and conditions as set out in the agreement.
(b) that in the event of th sale deed not being executed by the defendant No.1 in terms of the orders of this Hon'ble Court, the same be executed by an officer nominated by this Hon'ble Court to do so.
(c) in the alternative to prayer (a) &(b), if for any reasons, this Hon'ble Court does not pass a decree for specific performance of the agreement, the plaintiff prays for a decree for damages against the defendant in the sum of Rs.16 lacs jointly and/or severally.
(d) that the defendant be ordered and decreed to pay to the plaintiff interest @ 18% per annum with monthly rests on the earnest money and/or sale consideration passed in terms of Clause 6 of the agreement dated 12th May,1983 from the date of the agreement till payment;
(e) that the defendant be ordered and decreed to pay to the plaintiff the costs of the present suit;
(f) to pass such other or further orders as this Hon'ble Court may deem fit and proper in the 7 circumstances of the case."
2. Version of defendant No.1 In this written statement, defendant no.1 has admitted the factum of his ownership in respect of suit property C-14-A and C-15 Kailash Colony, New Delhi, but further pleaded that in the agreement, there was no scope for defendant No.2 to give up her rights in favour of the plaintiff when defendant No.1 was agreeable to sell the property jointly to the plaintiff and defendant No.2.
As further pleaded by answering defendants, given up of right by defendant No.2 in favour of the plaintiff showed conspiracy between them with a view to defraud him(defendant no.1).
As regards execution of agreement to sell dt. 12.5.1983, answering defendant pleaded that Shri K.B. Madan, Chartered Accountant by profession and his immediate neighbour had a eye over some portion of his property since long. Due to his financial difficulties of (defendant no.1) said Shri Madan approached him with intent to buy vacation portion of the property, but taking advantage of the situation, he twisted the matter in the sense that he invited Shri N.K.Jain, Property Dealer, known to him(defendant no.1) and persuaded him (defendant no.1)to sign the paper agreement to sell, as entire property 8 at a low price of Rs.16 lacs. At that time, his wife was also compelled to put her signatures in the original agreement to sell, but they were asked not to divulge the deal to anyone. Shri Madan immediately brought four cheques and handed over the same to him(defendant No.1)and in this way paid him Rs.1 lac.
As further pleaded by answering defendant, it would not be possible for him to complete the deal as per the wording of the agreement. Thereupon, aforesaid Shri Madan and Shri Jain assured them to complete all the formalities at their own costs. They further told that they would There was a suitable flats for the parties and get the sale proceeds invested. They further told that whatever had been recorded in the agreement was merely formality. Case of defendant No.1 is that at the time of signing of the agreement, none of the intending buyers was present and original agreement was already bearing their signatures which created suspicion in his mind. In order to remove suspicion from his mind, Shri Madan also attested the signatures. Defendant has denied that he has always being trying to back out from the contractual obligation.
According to the answering defendant, when Shri Madan asked 9 him to sign forms for requisite permission, there was a proposal to pay another sum of Rs.6 lacs by way of black money, upon which he(defendant No.1)got panicky and refused to accept this sum of Rs.6 lacs. Thereafter, Shri Madan refused to accept him(defendant no.1) in any matter.
Further, it is the case of defendant no.1 that thereafter with the assistance of his son-in-law and another Chartered Account, he got Income tax clearance from Income tax office. Then, draft of the proposed sale deed and copy of Income tax clearance was forwarded to the intending purchaser vide letter dt.13.6.1984. Vide letter dt.13.6.1984, plaintiff refused to accept the modified draft for sale deed and also to pay any advance. Then, answering defendant got prepared the necessary permission for obtaining requisite clearance and requested both the parties to see him personally for signatures on certain documents. Reference has also been made to letter dt.21.7.1984 and 27.7.1984 in this regard. Defendant No.2 came and signed the requisite form for certificate in connection with Urban Land Ceiling, whereas, the plaintiff sent letter dt.3.8.1984. Again vide letter dt.8.11.1984, plaintiff was required to sign form No.8. A fresh draft of sale deed was also forwarded to the plaintiff, as earlier one had not 10 been accepted. Plaintiff was to see the answering defendant on 31.8.1984, but again she did not see him.
It is also case of defendant No.1 that aforesaid Shri Madan has been avoiding payment of Wealth Tax by getting his municipal Tax assessed in his name(defendant No.1) for his own house.
Further, it is case of the defendant that vide letter dt.28.6.1984, defendant No.2 confirmed that she was ready with payment to be made to him(defendant No.1).
According to the answering defendant, nominating the plaintiff vide letter dt.20.9.1984 was with a malafide intention and result of conspiracy between Shri Madan and defendant No.2.
It has also been pleaded by defendant No.1 that plaintiff is not entitled to relief of specific performance, when she failed to perform her obligation. It has also been pleaded that at no time, he agreed to sell the property to only one of the parties. There was no question of completing the deal and that delay for completion of the deal was on account of the facts narrated above and as such he is entitled to damages.
3. Replication Plaintiff filed replication to the written statement of defendant 11 No.1 and controverted the pleas put forth in the written statement and reiterated the version set out in the plaint.
4. Version of Smt. Sobhna Nandi, L.R of defendant No.1 Answering defendant raised preliminary objection to the maintainability of the suit on the ground that agreement to sell was got executed by fraud and deceit and that alleged agreement stood rescinded.
On merits, it is the case of the answering LR that there was no scope in the alleged agreement, for defendant no.2 to give up her rights in favour of the plaintiff when defendant no.1 had specifically agreed to sell the property jointly to plaintiff as well as defendant No.2. She has further pleaded that when the plaintiff refused to accept the modified draft of sale deed or to pay any advance and no help was coming from Shri K.B.Madan and Shri N.K.Jain, defendant no.1 got the requisite clearance. and then requested the parties to see him personally in this regard. The answering defendant has adopted the line of defence as put forth by defendant No.1.
5. Replication Plaintiff filed replication controverting the pleas put forth in the written statement and reiterated the version as set out in the plaint. 12
6. Version of Smt. Anima Dass Gupta, L.R of defendant No.1 The plea put forth by this legal representative of defendant No.1 is that the agreement to sell was result of fraud and that she did not know about its execution although she was staying in the same premises where defendant No.1-father was putting up. The moment she came to know about its fraudulent act, she persuaded her parents to return the money and cancel the agreement.
Further plea put forth by her is that father of the plaintiff took advantage of the old age of her parents and managed to get their signatures on the agreement by using sugar coated door and close door municipal.
7. Replication Plaintiff filed replication controverting the pleas put forth in the written statement and reiterated the version as set out in the plaint.
8. Version of defendant No.2 Answering defendant raised preliminary objection to the maintainability of the suit and no cause of action arose against her and she being neither necessary nor private party to the proceedings.
On merits, defendant No.2 admitted factum of ownership of 13 defendant no.1 in respect of the suit property. She admitted that she was also a party to the agreement to sell and further that she nominated the plaintiff to deal with the suit property. She has admitted other averments made in the plaint and further pleaded that she as well as plaintiff were interested to purchase the property, but defendant No.1 unnecessarily took time in correspondence and did not execute the sale deed or deliver possession. It further transpired that there was no necessity to seek permission in connection with urban and Ceiling, in view of decision by Hon'ble Apex Court. Accordingly, the answering defendant prayed for dismissal of the suit.
9. Replication to the written statement of defendant no.2 Plaintiff filed replication controverting the preliminary objection by defendant No.2. Plaintiff further alleged that defendant No.2 was not coming forward as a result of which ultimately she nominated her in terms of agreement to sell, for valuable consideration.
10. Points for consideration From the pleadings of the parties, following issues were framed on 23.9.1999.
1. Whether the agreement to sell dt.12.5.1983 was got executed by misrepresentation? If so its effect. OPD-1 14
2. Whether Shri D.C.Nandi (defendant No.1) executed a Registered will dt.17.5.1983? If so, its effect on the present case?OPP
3. Whether the agreement to sale was validly repudiated cancelled by defendant No.1? OPD-1.
4. Whether the defendant no.1 has committed the breach of agreement?OPP
5. What is the legal effect of non signing and verifying the written statement as filed by defendant No.1? OPP
6. Whether the plaintiff is entitled to relief for specific performance of the Agreement to sell dt. 12.5.83? OPP.
7. Whether the plaintiff is entitled for decree of damages against defendants 1(b) and 1(c) in the event issue No.5 is answered against the plaintiffs?OPP
8. Whether any nomination by the defendant No.2 in favour of the plaintiff in respect of the Agreement to sell can be enforced by the plaintiff? OPD-1.
9. Relief.
11. Evidence In order to prove her case, plaintiff tendered into evidence her affidavit Ex.P1 alongwith certain documents mentioned therein as PW1.
Shri K.B.Madan, stepped into the witness box as PW2 and tendered into evidence his affidavit Ex.P2.
PW3 is Shri Tridib Banerjee from HDFC Bank who has been 15 examined to depose about deposits by Shri K.B.Madan with the said bank and also proved certificate Ex.PW3/1.
PW4 Shri Ashok Mukhi is Manager from Central Bank of India examined to prove certain certificates issued to Shri K.B.Madan.
On the other hand, Smt. Anima Dass Gukpta appeared as D1W1 and tendered into evidence her affidavit Ex.R1.
No evidence has been led by defendant No.2.
Arguments heard. File perused.
12. Issue no.5 The onus to prove this issue was upon the plaintiff. Available on record is the written statement of defendant No.1. In her replication, plaintiff has denied that this written statement bears signatures of defendant No.1. The other objection raised in the replication is that the written statement does not bear any verification clause.
A perusal of written statement would reveal that it does not bear any verification clause. Whereas Or.VI, R.14 CPC provides that every pleading shall be signed by the party, Order VI, R.15 CPC provides that every pleading shall be verified at the foot by the party. The verification 16 clause is further required to be signed by the person making it. In addition thereto, the person verifying the pleading is required to furnish an affidavit in support of the pleadings.
Plaintiff raised objection in this regard at the very outset while filing replication to the written statement. Object of verifying a pleading is to fix on the party verifying the same responsibility for the statements- averments contained in it. However, want of verification does not have the effect of making the pleading void. It merely amounts to an irregularity.
ld. counsel for the plaintiff has submitted that written statement purported to have been filed on behalf of defendant no.1 does not bear signatures of defendant No.1, as even as per admission of his daughter Smt. Anima Dass Gupta D1W1 in her cross examination and as such no reliance can be placed on this written statement. Learned counsel further submitted that as a result suit of the plaintiff deserved to be decreed at the outset and the opposite party deserves to be dealt with in accordance with law for fraud played in this regard .
A perusal of statement of D1W1- daughter of defendant No.1- would reveal that in her cross examination, she displayed ignorance if 17 her father had filed written statement in the suit. In her cross examination she admitted that the original written statement filed on behalf of her father-defendant No.1 does not bear his signatures. She further admitted that signatures appearing at point C on the written statement are not of her father. This admission by D1W1 in her cross examination is not being disputed/challenged by learned counsel Shri Arvind Singh, As rightly contended by learned counsel for the plaintiff, as a result of this admission on the part of D1W1, it can safely be said that there is no written statement on behalf of defendant no.1 At another stage, as regards written statement filed by her father, D1W1 denied that it was bearing signatures of her father at point C. Therefore, no reliance can be placed on this written statement.
Issue No. 5 is therefore decided in favour of the plaintiff and against the defendants( excluding defendant No.2). 13. Issues No.1, 3 and 8
1. Whether the agreement to sell dt.12.5.1983 was got executed by misrepresentation? If so its effect. OPD-1
3. Whether the agreement to sale was validly repudiated cancelled by defendant No.1? OPD-1.
8. Whether any nomination by the defendant No.2 in favour of 18 the plaintiff in respect of the Agreement to sell can be enforced by the plaintiff? OPD-1.
As regards specific performance of a contract, it is well settled that the contract being the foundation of the obligation the order of specific performance is to enforce that obligation.
Jurisdiction to order specific performance of a contract is based on the existing of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them.
Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract.
In this case, first it is to be seen whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it.
The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts 19 direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The acceptance must be absolute, and must correspond with the terms of the offer. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is , of course, on the plaintiff.
If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be material if the agreement is rescinded.
Ld. Counsel for the plaintiff has contended that the ground of challenge, as available in the issue, was mis-representation and not that the agreement to sell was not signed by defendant No.1, the plaintiff or defendant no.2.
Ld. counsel further submitted that so far as the plea of mis- representation is concerned, defendant have not led any evidence in proof thereof and as such this issue should be decided against the 20 defendant and in favour of the plaintiff.
ld. counsel for the plaintiff has further submitted that Smt. Anima Dass Gupta, one of the LRs of the defendant No.1, the only witness from the opposite side, admitted in her cross examination that she was not made to understand the contents of the written statement filed by her and further that written statement dt.27.4.89 was not drafted or prepared at her instruction. Therefore, contention of the ld. counsel is that no reliance can be placed even in the written statement of the defendant No.1.
Further, it has been contended on behalf of the plaintiff that as per law of pleadings, defendant is required to specifically deny the averments made in the plaint, but in this case in her written statement, Smt. Anima Dass Gupta did not specifically deny the averments put forth by the plaintiff, that too parawise, and rather she opted to submit written statement by putting forward her pleas in general. Therefore, contention of the Ld.counsel is that defendant No.1 has failed to establish the plea of mis-representation in execution of the agreement to sell dt.12.5.1983.
On the other hand, ld.counsel Shri Arvind Singh has submitted that defendant has brought ample evidence on record that defendant 21 no.1 and his wife Smt. Shobhna were not made to understand the contents of the agreement and rather they were made to sign, while defendant No.1 was in financial difficulty, and as such it stands established that this is a case of misrepresentation. Learned counsel has further submitted that there were other family members staying with defendant no.1 and his wife, but at the time of execution of the agreement to sell and receipts none of them was present, and that PW2 used to accompany son in law of defendant No.1 but he never apprised him of any such agreement, which creates doubt about execution of these document.
Learned counsel has referred to the signatures of Sh. K.B. Madan underneath the words attested and then to the evidence of Sh. K.B. Madan wherein he stated that Sh. D.C. Nandi, after having left his house returned after some time and told him that he did not personally know Sh. N.K. Jain, Smt. Savitri Jain and Kiran Bala Mehru and as such, as a matter of precaution he asked him (PW2) to attest their signatures and presence and as a result he attested in red ink. Contention of learned counsel is that in this situation, when presence of plaintiff and defendant No.2 at the time of execution of the agreement does not stand established, plaintiff is not entitled to decree of specific 22 performance.
At the outset, it may be mentioned here that in para No.1 of written statement purporting to be of defendant No.1, execution of the agreement to sell stands admitted. It stands pleaded in this para that he was agreeable to sell the property jointly to the plaintiff and defendant No.2.
Smt. Sobhana Nandi, widow of defendant No.1, arrayed as his legal representative No.1 did not dispute execution of the agreement to sell. She pleaded that her husband was agreeable to sell the property jointly to the plaintiff and defendant no.2.
Defendant No.2 has filed separate written statement admitting the execution of the agreement by defendant No.1 in her favour and in favour of the plaintiff. She further pleaded and thereby admitting version of the plaintiff that she (answering defendant) had nominated the plaintiff to deal with the property. She is alleged to have so nominated the plaintiff having regard to the delay in execution of the sale deed, as is available from para 4 of her written statement.
PW2 Sh. K.B. Madan is father of the plaintiff. He has testified in his affidavit Ex.P2 in line with the testimony of his daughter (PW1- plaintiff).
23
According to PW2 on 12.05.83, his daughter - plaintiff entered into agreement to sell Ex.PW1/4 with defendant no.1, in respect of the suit property, for a total sale consideration of Rs.16 lacs. Further, according to him, defendant no.1 agreed to sell the suit property to his daughter (plaintiff) and defendant no.2 or their nominees. This agreement to sell was executed at his residence C- 15/A where defendant no.1 and his wife Smt. Shobhna Nandi had come to sign the same. Smt. Savitri Jain and her husband Sh. N.K. Jain had also come to sign the agreement. The witness further testified about signing of this agreement by defendant no.1 at points A to E, by his wife at point F, by the attesting witnesses at point G, H, I, J, K & L; by the plaintiff at points M to P; by the witness himself at point Q. As regards payment, PW2 testified that his daughter- plaintiff and defendant no.2 paid a sum of Rs.10,000/- in equal share, by way of earnest money and a sum of Rs.90,000/- in equal share, by way of part payment, to defendant no.1, through cheques. Further, according to the witness receipt executed in this regard by defendant no.1 was signed in his presence, same is Ex.PW1/5. The witness has also proved other receipts Ex.PW1/6 in respect of payment of Rs.90,000/-. According to the witness, defendant no.1 has signed on 24 the revenue stamp at point A whereas Sh. N.K. Jain and Smt. Shobhna Nandi signed the same at point B & C as attesting witness.
It is in cross examination of PW2 that defendant no.1 was his neighbour. According to him, Ex.PW1/4 was executed at his residence on 12.05.83 at about 7.00 p.m. This is in consonance with the statement made by his daughter - PW1 that defendant no.1 and his wife had come to their house in the late evening of 12.05.83.
Letter Ex.P5 After the execution of the agreement to sell, defendant No.1 started correspondence with father of the plaintiff.
In her cross examination D1W1 initially stated that she could not identify signatures on the correspondence exchanged by the parties.
First letter sent by him is dated 15.2.1984 Ex.P5. No correspondence took place between him and the plaintiff or defendant No.2 or PW2 Sh.K.B.Madan, prior thereto. In this letter, which stands admitted by the defendant, defendant No.1 admitted about the financial difficulties he was facing during those days, as a result whereof he agreed to sell the property.
In this letter, defendant No.1 alleged that it was sometime in April,1983 that he had expressed his desire to dispose of the suit 25 property in order to get rid of financial difficulties which he was facing for quite some time and as such he sought his assistance i.e. assistance of Shri K.B.Madan. In the next sentence, defendant No.1 alleged that taking advantage of his old age, Shri K.B.Madan got signed some document from him on 11.5.1983 at about 8.30 P.M. at his residence, residence of Shri K.B. Madan in presence of Shri N.K.Jain, property dealer, and that none other than him(defendant no.1) his wife, Shri K.B.Madan and Shri N.K.Jain was present there. He further mentioned in this document that contents of the documents were not made clear to him.
Defendant No.1 did not take any step to lodge any kind of protest with defendant No.2 or her husband Sh.N.K.Jain or plaintiff or her father -PW2 during the period from May, 1983 to March, 1984 i.e. after execution of the agreement, receipt of money by way of earnest money and part payment. There is nothing on record to suggest as to why he did not earlier lodge any such protest, as contained in Ex.P5.
Since vide this letter Ex.P5, the defendant no.1 also called upon Shri K.B.Madan to complete all the formalities by 31.3.1984, it cannot be said that it was a case of mis-representation. Had it been a case of any kind of misrepresentation, he would not have requested for taking 26 of further steps in pursuance of the agreement to sell.
For the aforesaid reasons, there is no merit in the contention raised by Shri Arvind Singh, counsel for LRs of the defendant that in the end of letter Ex.P5, when defendant No.1 requested Shri K.B.Madan to furnish him copy of the document got signed from him and his wife, it can be said that defendant No.1 was not made clear of the contents of the agreement.
Letter Ex.P6 Then, there is letter dt.15.3.1984 Ex.P6 from the side of plaintiff to defendant No.1. This letter stands admitted by the defendant at the time of admission and denial of the documents. Vide this letter addressed to defendant No.1, Shri K.B.Madan through Shri S.C. Chabbra, Advocate represented that he(defendant no.1) had entered into agreement to sell with Smt. Savitri Jain and Smt. Kiran Bala Mehru and also received a sum of Rs.1 lac. Defendant No.1 was also reminded about the fact that it is he who was to obtain all the necessary permission. Vide this letter, defendant no.1 was further called upon to obtain the requisite clearance from Income tax authorities and to get the sale deed executed.
27
Letter Ex.P1 The next letter dt.13.6.1984 is Ex.P1, from defendant No.1 to the plaintiff.
D1W1 volunteered in her cross-examination that she could identify signatures of her father. Then she admitted that letter Ex.P1 was bearing signatures of her father. She also admitted signatures of her father on AD receipts on Ex.PW1/9 and Ex.PW1/10.
However, significant to note that this letter stands admitted by the defendant at the time of admission and denial of documents. As per this document, defendant No.1 sent to the addressee photo copy of Income tax clearance on form 43A. At the same time, he sent to her draft copy of the sale deed to be got registered with the Sub Registrar, New Delhi and requested her to take necessary action. It is significant to note that this fresh proposal on behalf of defendant No.1 putting forth changed terms and conditions for sale of the property were never accepted by the plaintiff or defendant No.2 and as such remained only a proposal. In this regard, reference to letter Ex.P1 is of significance.
Letter Ex.P1 came to be replied vide letter dt.18.6.84 Ex.D1/1. 28 This document was so exhibited at the time of admission and denial of the documents, and on having been admitted by the plaintiff. In this letter Ex.D1/1, defendant no.1 was so apprised of the fact that balance payment could be made by bank draft only against vacant possession. Defendant No.1 was also asked to confirm clearance from Urban Land Ceiling obtained by him(defendant no.1) . At the same time, he was requested to communicate for registration of the document and for delivery of the document preferably by 30.6.1984.
Ex.PW1/8 is copy of the aforesaid letter Ex.D1/. Copy of this letter was also endorsed to defendant no.2-the co-purchaser. It appears to have been so endorsed to her, in view of copy of letter Ex.P1 endorsed by defendant No.1 to her(defendant No.2) so that defendant No.2 could make arrangement for payment of her share for the balance sale consideration.
Subsequent letter dt.30.6.1984 is Ex.D1/2. This document filed by the defendant stands admitted by the plaintiff. This letter was sent while reminding defendant No.1 and also calling upon him to get the sale deed registered and hand over the vacant possession latest by 30.6.84.
Then, there is letter dt.21.7.1984 Ex.P2. This letter stands 29 admitted by the defendant at the time of admission and denial of the documents. This letter was sent by defendant No.1 to the buyers, while putting forward his version that he was to apply for permission for transfer under Urban Land Ceiling and Regulation Act in the prescribed form and that the buyers were to sign the same. Therefore, he called upon both of them to see him immediately at his residence to comply with the requirement. At the same time he annexed to the letter Form 8 with copy of proposed sale deed.
Admittedly, defendant No.1 obtained Income Tax Clearance and apprised the plaintiff and defendant No.2 about the same.
Had defendant No.1 and his wife been made to sign the agreement without apprising them about its contents, defendant No.1 would have straightway called upon the plaintiff and defendant No.2 to receive back the earnest money and the amount of part payment. He was not at all required to correspond with the other party, have Income Tax clearance and approach them with fresh proposal.
This court finds merit in the contention of learned counsel for plaintiff that although defendant No.1 was so corresponding with the buyers and he obtained Income Tax clearance, he did it only with intent to avoid the transaction and not with an intent to perform his part of the 30 agreement.
Evidence of D1W1-daughter-L.R of defendant No.1 Smt. Anima Dass Gupta, Legal Representative of defendant no.1 has filed her affidavit Ex.R1.
Written statement filed by Smt. Anima Dass Gupta, on 27.04.89 is to the effect that the alleged agreement to sell was fraudulently obtained at her back and without her knowledge, although, she was staying at the same premises. Further, according to the answering legal representative, her father was about 90 years of age at that time and not keeping well. Plaintiff's father induced her parents (answering defendant's parents) to keep the deal a secret. The alleged agreement was thus got signed by way of fraud, deceit and unfair inducement. The answering L.R. further pleaded in the written statement that the moment this fraudulent act came to her notice, she persuaded her parents to return the money and cancel the agreement. Had she earlier come to know of this agreement to sell, it would have been rejected outrightly, as further pleaded by her.
It is also case of the answering L.R. of the defendant, in the written statement that father of the plaintiff took advantage of the old age of her parents and managed to get their signatures by using sugar 31 coated words.
14. Contention While referring to this version of the answering defendant, learned counsel for the plaintiff has contended that since the version put forth by the defendant in her affidavit Ex.R1 is beyond pleadings to a great extent, no reliance can be placed on her testimony by way of her affidavit.
Learned counsel for the plaintiff has further contended that a perusal of statement of D1W1 would reveal that she has displayed ignorance on almost all significant facts of the case and that in view of her ignorance about the same, no reliance can be placed on her testimony.
On the other hand, learned counsel Sh.Arvind Singh has referred to decision in Sh. Ningawwa vs. Byrappa Shiddappa Hireknrabar and others, AIR 1968 Supreme Court 956(V 55C 190); Central National Bank Ltd. vs. United Industrial Bank Ltd,AIR 1954 SC181; Rattan Lal Ahluwalia vs. Jai Janinder Parshad, AIR 1976 Punjab and Haryana, 200; Partap and another vs. Smt. Puniya Bai and others, AIR 1977 MP 108; Gitabai wife of Sriniwas vs. Dayaram 32 Shankar and others, AIR 1970 Bombay 160; Smt. Surasaibalini Debi vs. Phamindra Mohan Majumdar, AIR 1965 SC 1364, and contended that this is a case where execution of the agreement to sell by defendant No.1 in favour of the plaintiff and defendant No.2, as a result of misrepresentation, stands established and as such no reliance can be placed thereon.
15. Discussion In her cross examination D1W1 admitted to have been brought as legal heirs of her parents. As regards her own written statement, the witness again displayed ignorance if she had filed any such written statement after the demise of her parents. However, when she was confronted with her written statement filed in her suit, she admitted that it was bearing her signatures at point S. Later on, the witness came forth with the version that when she had filed the above written statement she knew about all the facts of the documents pertaining to the suit. However, she could not tell if all the facts had been disclosed by her in her written statement. In the next breath she replied to have signed written statement on 27.04.89 at point S without knowing its contents. She volunteered that she was not made to understand its 33 contents. Then she stated that this written statement was not drafted or prepared at her instructions.
In view of this version available in the cross-examination of D1W1-Smt.Anima Dass Gupta, there is merit in the contention of learned counsel for the plaintiff that no reliance can be placed on the written statement filed by her.
Sh. Arwind Singh, Advocate has referred to decision in Sh. Rameshwar Singh and another vs. Sh. Bajit Lal Pathak and others- respondents, AIR 1929 Privy council 95. In this case, it was held that inconsistent pleas and not proving the pleas raised indicates falsity of defence. The decision referred to by the learned counsel goes against the legal representatives of defendant No.1.
As regards her own affidavit, D1W1 stated in her cross examination that the same might have been prepared by her Advocate.
In her cross examination recorded on 01.04.08 the witness volunteered that she had absolutely no knowledge about the facts of this case. That being so, it becomes difficult to place any reliance even on her affidavit.
A perusal of statement of D1W1 would reveal that she displayed 34 ignorance about execution of agreement and receipts, or about their attestation by attesting witnesses. She also displayed ignorance about issuance of cheques by the plaintiff and defendant no.2.
When the witness was confronted with agreement Ex.PW1/4, she admitted that the same was bearing the signatures of her mother but denied that the same was bearing the signatures of her father.
It may be mentioned here that on 02.06.05, counsel for the defendant produced on record the original agreement to sell in pursuance to the notice issued by the plaintiff U/O 12 Rule 8 CPC.
But D1W1 displayed ignorance if the original agreement dt.12.05.83 was in her possession or that it was produced after the plaintiff had led evidence and proved its carbon copy Ex.PW1/4. In her cross examination D1W1 could not tell as to when for the first time she had come to know about the deal having been entered by her father, the plaintiff and defendant no.2.
One of the pleas put forth by defendant No.1 and his legal representatives is that defendant No.1 and his wife were compelled to sign the agreement to sell and also asked not to divulge the deal to anyone-even their son, daughter or son in law who were residing with them.
35
This plea put forth by the them is not believable, firstly, because on return to their house, defendant No.1 and his wife could very conveniently apprise other family members about any pressure exerted by the plaintiff or her father. They could report the matter to police. But no such step was taken by defendant no.1 and his wife. Secondly, a perusal of correspondence between defendant No.1 and the opposite side would reveal that defendant No.1, at no point of time, alleged that he or his wife had been compelled to sign the agreement to sell or restrained from divulging about the deal to their family members. Why PW2 had to attest signatures of plaintiff, defendant No.2 and Sh.N.K.Jain, one of the attesting witnesses ?
In his cross examination, PW2 Sh.K.B.Madan has explained that he had signed / put initials at several places on Ex.PW1/4, wherever there were cuttings.
PW2 further explained that after the agreement had been signed by defendant no.1, his wife, defendant no.2, plaintiff and the attesting witnesses and 5 minutes after living his house defendant no.1 returned and told that he did not personally know the plaintiff, defendant no.2 and N.K. Jain, the attesting witnesses, and as such, he (the witness) as a measure of precaution, put his signatures in red ink while attesting 36 the signatures of plaintiff, defendant no.2 and N.K. Jain, the attesting witness. The witness denied the suggestion put forth by counsel for opposite side that Ex.PW1/4 was not signed in his presence.
As observed above, had the plaintiff or defendant No.2 not signed the agreement to sell or had they not been present at the time of its execution, defendant no.1 would have made it a ground to resile from the agreement and return the money already received.
A perusal of correspondence between defendant No.1 with the opposite side would reveal that at no point of time, defendant No.1 allege that the agreement to sell was not signed by the plaintiff or defendant No.2. Even otherwise, PW2 has duly explained having written word "attested" and having put his signatures in red ink on the agreement to sell. Cheques issued by plaintiff and defendant No.2 were given to defendant No.1 on 11.5.1983 and 12.5.1983. Had they not been present there, it remains unexplained from the side of defendant No.1 as to how the cheques could be issued by them. From the nature of evidence available on record it cannot be said that plaintiff and defendant No.2 did not execute the agreement to sell on the given date, time and place or that defendant No.1 and his wife were made to execute the same by misrepresentation or without disclosing them its 37 contents.
Receipts Ex.PW1/5 and 6 As regards receipt Ex.PW1/5, Sh.K.B.Madan stated that the same is in his handwriting of N.K. Jain, whereas the other receipt Ex.PW1/6 is in his own handwriting. He denied in his cross examination that the two cheques were got deposited in the account of defendant no.1 or that the amount was withdrawn and kept by him (witness).
In her cross examination, the witness identified signatures of her parents on receipt Ex.PW1/5, which is in respect of payment of Rs.10,000/-. Though, she displayed ignorance about payment of Rs.90,000/- by the plaintiff and defendant no.2 to her father on 12.05.83, she, on seeing receipt Ex.PW1/6 identified signatures of her mother at point A, but displayed ignorance if the same was made signatures of her father.
In her cross examination RW1 admitted that in May, 1983 her father was having a bank account. However, she displayed ignorance if her father had personally gone to the bank, filled up deposit challans and deposited all the four cheques, of the value of Rs. One lac. As 38 regards the passbook, the witness replied that she was not having any passbook in respect of said bank account of her father.
In her cross examination the witness stated that she and her husband had asked her father not to sell the suit property to the plaintiff and defendant no.2 and therefore, her father was not prepared to sell the suit property to them at any point of time and as such, there was no question of delivery of possession. This goes to show that defendant No.1 opted not to complete the transaction only under pressure of his daughter.
From the evidence available on record and discussed above, this court finds that defendant No.1 voluntarily agreed to sell the suit property to plaintiff and defendant No.2 vide the agreement to sell dated 12.5.1983 on receipt of Rs.1 lacs towards earnest money and part payment of sale consideration of Rs.16 lacs.
From the evidence discussed above, it transpires that defendant No.2 opted to receive the money paid by her by way of earnest money and part payment towards sale consideration, only because defendant No.1 delayed execution and registration of sale deed and delivery of possession. In view of the above discussion, when written statement of defendant No.1 is excluded from consideration, it can safely be said 39 that defendant No.1 did not even want to contest this suit instituted by the plaintiff.
Nomination by defendant No.2 in favour of plaintiff A perusal of agreement to sell Ex.PW1/4 would reveal that there is provision for execution and registration of sale deed in favour of the nominee or nominees as well.
Correspondence between the parties has been placed on record. Its perusal would reveal that defendant No.1 did not object to execution of the sale deed and registration thereof in favour of the plaintiff on the ground that defendant no.2 had withdrawn or assigned her interest in favour of the plaintiff.
In view of the relinquishing of right by defendant No.2 in favour of plaintiff on receipt of money paid by her by way of earnest amount and part payment, defendant No.2 was justified in nominating plaintiff and as such she rightly nominated the plaintiff in terms of the agreement to sell. Defendant No2. did not create right in favour of any third person. When defendant No.2, in terms of the agreement to sell, ultimately opted to receive the amount paid by her to plaintiff and as such plaintiff stepped into the shoes of defendant No.2 for completion of the transaction of sale. Issue No.8 therefore goes against 40 defendants(excluding defendant No.2).
In view of the above findings, this Court also comes to the conclusion that the agreement to sell was not validly repudiated or cancelled by defendant No.1. As a result of above findings issue no.1 and issue No.3 therefore goes against defendants (excluding defendant No.2) and in favour of plaintiff.
Issue No.2.
Whether Shri D.C.Nandi (defendant No.1) executed a Registered will dt.17.5.1983? If so, its effect on the present case? OPP Learned counsel Sh.Arvind Singh has argued that in this case execution of the will dt. 17.5.1983 does not stand established. In this regard, learned counsel has referred to decision in Girja Datt Singh vs. Gangotri Datt Singh, AIR 1955 SC 346; Kanthi Ram Bora vs. Dom Bora(deceased) and his heirs and legal representatives Mt. Dhukpali Bora and others, AIR 1975 Gauhati 50;
Available on record is a Will stated to have been executed by defendant No.1 in respect of the suit property in favour of his wife.
D1W1 has denied execution of any Will by her father. She admitted that vide this Will her father had deprived her of her assets. In 41 this regard, she volunteered that it was so done without the consent of her father and under coercion. According to the witness, her father told her that it was so done under coercion. Had it been so, she could easily tell as to when she was so told by her father. But, she could not tell the date, month or year when her father so told her. In the next breath she stated that he so told her a year prior to his death. D1W1 admitted in his cross examination that her father was in a perfect state of mind and disposing state of mind when he disclosed her about coercion but in the next breath stated that her father was not well during the period 1983 to 1987.
Execution of this Will has not been proved on record in accordance with the provisions of Evidence Act, by examining any of the attesting witnesses, but as noticed above, D1W1 has admitted that she was deprived of any share in the property of her father. Surprisingly, this document was never pleaded by defendant No.1 in his own written statement or by his legal representatives in their written statements.
According to the witness, she learnt about the Will when the property dealers started visiting the suit property 2/3 years after the execution of agreement to sell. This document saw the light of day on 42 29.09.05 when it was produced in Court for the first time by counsel for LRs of defendant no.1.
But the fact remains that it has come in evidence that defendant No.1 accompanied Sh. N.K. Jain, husband of defendant no.2 to the office of Sub Registrar, in connection with execution of a Will and opted not to accompany his own family members, including his daughter and son in law, speaks volumes against the latter two. This issue accordingly goes in favour of the plaintiff and against the defendants (excluding defendant No.2).
Issue No.4,6 and 7
4. Whether the defendant no.1 has committed the breach of agreement?OPP
6. Whether the plaintiff is entitled to relief for specific performance of the Agreement to sell dt. 12.5.83? OPP.
7. Whether the plaintiff is entitled for decree of damages against defendants 1(b) and 1(c) in the event issue No.5 is answered against the plaintiffs?OPP As noticed above, onus to prove these issues was on the plaintiff.
16. Readiness and Willing As regards readiness, learned counsel for plaintiff has referred to 43 the aforesaid correspondence between the parties and contended that it stands established that plaintiff has always been ready and willing to perform her part of the agreement, but it is defendant No.1 who was under pressure of his daughter and son in law not to perform his part of the agreement.
On the other hand, Sh.Arvind Singh, learned counsel has contended that plaintiff was not having money with her and as such it cannot be said that she was ready and willing to perform her part of the agreement. In His Holiness Acharya Swami Ganesh Dassji vs. Shri Sita Ram Thapar, AIR 1996 SC 2095, Hon'ble Apex Court observed that by readiness is meant the capacity of plaintiff to perform the contract which includes his financial position to pay the purchases price and for determining his willingness to perform his part of the contract. The conduct has to be properly scrutinized. Learned counsel has also referred to decision in Sh. B.Rajamani vs. Mrs. Azhar Sultana & Ors, 2005(2) Civil Court Cases 696(A.P); and in Ms. Mohini vs. Ms.Vidhyawanti Rathore,2004(3)Civil Court cases 480(M.P).
In Ms.Mohini's case(supra) court found that there was no documentary proof that plaintiff was having funds to pay the balance 44 consideration. Accordingly, plaintiff not considered to be ready and willing to perform his part of the contract and order of refund of earnest money came to be passed.
It is significant to note that written statement of defendant No.1 has been excluded from consideration. As a result, it transpires that defendant No.1 neither intended to contest nor contested the suit filed by the plaintiff or the averments put forth by her.
Even otherwise, from the correspondence between the parties, already discussed above, it would transpire that the plaintiff and defendant No.2 were willing to perform their part of the agreement, and when defendant No.2 relinquished her rights, by way of nomination, in favour of plaintiff, the latter was always willing to perform her part of the agreement. In the correspondence, defendant No.1 never opposed execution and registration of the sale deed on the ground that plaintiff was not ready and willing to perform her part of the agreement.
PW3 Sh. Tridib Banarjee is from HDFC Bank, Greater Kailash, New Delhi. According to him, certificate Ex.PW3/1 in respect of saving bank account and Fixed Deposit account of K.B. Madan came to be issued by him on the basis of record available with bank. In his cross examination, the witness stated that the certificates also bear 45 signatures of Sh. Vijay Kumar, Assistant Manager.
It is the cross examination of PW4 Sh. Ashok Mukhi from Central Bank of India has proved certificate Ex.PW4/1 relating to FD account of Sh. K.B. Madan. He has also proved two other certificates Ex.PW4/2 & Ex.PW4/3, in addition to statement of account Ex.PW4/4 that balance in the account of Sh. K.B.Madan, as on 16.10.06 i.e. at the time of issuance of Ex.PW4/2, was Rs.10,71,733.89. Sh. K.B. Madan was also maintaining other FDR accounts in their bank, as stated by the witness. Witness has also deposed about FD, copy Ex.PW4/5 issued by their bank in favour of M/s. Madan Associates Pvt. Ltd. for a sum of Rs.50,75,832/- with date of maturity as 09.01.07 a sum of Rs.1,52,275/- was payable by way of interest on the said FDR.
In view of the evidence available on record, there is merit in the contention of learned counsel for plaintiff that for payment of the balance sale consideration, plaintiff was at liberty to have financial assistance from her father who was all the times with her and in favour of execution and registration of the sale deed in her favour.
From the material available on record, it is held that plaintiff has always been ready and willing to perform her part of the agreement.
Is it a case of Unfair advantage to the plaintiff? 46 Sh.Arvind Singh, Learned counsel for LRs no.1(B) and 1(C) of defendant no1 submitted that as per case of the plaintiff the total sale consideration was Rs.16 lacs but by way of earnest money and part payment only a sum of Rs.one lac was paid by plaintiff to defendant no.2 to Sh. D.C. Nandi, and that from this payment of small amount, it can be said that Sh. D.C. Nandi was in urgent need of money and in the given facts and circumstances, plaintiff cannot be allowed to have unfair advantage in seeking decree of specific performance. In support of this contention learned counsel has referred to decision in Bal Krishan & another Vs. Bhagwan Dass (dead) of LRs and another AIR 2008 SC 1786 and Sirgiman (deceased) of LRs Vs. Chidambaram & Anr. 2005 (1) SCC 141 (SC).
In Bal Krishan's case (supra) Hon'ble Apex Court, observed that relief of specific performance lies in the discretion of the court and that court is not bound to grant such a relief merely because it is lawful to do so.
In Niwas Builders vs. Chanchalaben Gandhi (since deceased through legal heirs) 2003 (3) Civil Court cases 99 (Bombay), Hon'ble Court observed that it is to be borne in mind as to whether a party is 47 trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance; that there may be other circumstances on which parties may not have any control; the totality of the circumstances is required to be seen.
In the present case, as held above, defendant No.1 did not execute sale deed or get the same registered in favour of the plaintiff although plaintiff was always ready and willing to perform her part of the agreement. Written statement of defendant No.1 has been excluded from consideration. Version put forth by his legal representatives has not been accepted. Once defendant No.1 agreed to sell the suit land and did not rescind the contract for any valid reason, simply because the agreement pertains to the year 1983 and prices of property have soared up, it cannot be said that specific performance of the agreement would cause any undue hardship to his legal representatives or provide any unfair advantage to the plaintiff or that for any such reason plaintiff is not entitled to the relief of specific performance or that she can be compensated with payment of damages in lieu of specific performance of the agreement.
All these three issues are therefore decided in favour of the plaintiff and against the defendants (excluding defendant no.2). 48
Issue No.9 (Relief) In view of the above findings, suit of the plaintiff is decreed in her favour and against the legal representatives of defendant No.1, and by way of decree for specific performance of the agreement dated 12.5.1983, they are called upon to execute sale deed and get the same registered in favour of the plaintiff on payment of the balance sale consideration in terms of the agreement to sell, and also to deliver possession of the suit property, within one month, failing which plaintiff shall be at liberty to get the same executed and registered with the assistance of the Court, in accordance with law.
Decree sheet be prepared and file be consigned to record room.
Misc. Application No. M-27/08-366 of 2009 (under Sec.195 Read with under Sec.340 Cr.P.C.) In this application Smt.Anima Das Gupta, one of the legal representatives of defendant No.1 has prayed for initiating proceedings against the plaintiff and her father Sh.K.B.Madan on the ground that signatures of the plaintiff have been forged on various documents as is available from the documents proved during evidence.
2. The application has been opposed by filing reply and denying the 49 allegation that signatures of the plaintiff on various documents have been forged.
3. In the course of arguments, learned counsel for the applicant has contended that from the evidence it would transpire that actually father of the plaintiff signed as Kiran Bala Mehru and as such even the signatures on the agreement dt. 12.5.1983 can be said to have been put by him and not by the plaintiff, therefore, proceedings under Section 340 Cr.P.C. be initiated against the plaintiff and her father.
4. On the other hand, learned counsel for respondent-plaintiff has submitted that some letters sent to defendant No.1 came to be signed by her father and the father signed "for" the daughter, and as such there is no merit in the contention of counsel for the applicant. Learned counsel has also referred to orders dt.21.8.2007 and 10.10.2008 passed during the trial dismissing the applications filed on behalf of the applicant declining her request for exercising powers under Section 45 of Evidence Act .
A perusal of order dt. 21.8.1007 would reveal that the Trial Court observed therein that opinion of handwriting expert on the proposal document was not required. While order dated 10.10.2008 request of the applicant for framing of additional issue pertaining to signatures of 50 the plaintiff also came to be dismissed.
So far as the agreement dt.12.5.1983 is concerned, as held above, it was signed by the plaintiff and defendant No.2 and attested by others.
5. It is in evidence of the plaintiff that she has ratified all acts done by her father in respect of the agreement to sell.
Letter Ex.PW1/16 dated 3.8.1984 would reveal that it was sent by father of the plaintiff to defendant No.1 on behalf of the plaintiff. Word "for" stands pre-fixed to the signatures of father of the plaintiff. Most of the correspondence which took place between defendant No.1 and the plaintiff and her father stands admitted at the time of admission and denial of documents. Therefore, decision in case titled as Lalit Popli vs. Canara Bank and others,(2003)3 SCC 583; cited by learned counsel for the applicant does not come to the aid of the applicant.
6. In view of the above findings, this Court does not find any ground for initiating contempt proceedings or getting any case registered against the plaintiff or her father. The application is hereby dismissed.
Announced in open Court (Narinder Kumar) Today:30.01.2010 Additional District Judge-01(West)/Delhi