Delhi High Court
Shankar Chauhan vs Sunil Kumar Goel on 6 January, 2011
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.110/1997
% 6th January, 2011
SHANKAR CHAUHAN ...... Appellant
Through: Mr. Ranbir Yadav,
Advocate.
VERSUS
SUNIL KUMAR GOEL
...... Respondent
Through: Mr. Ajay Kumar,
Advocate with Ms.
Saahiba Lamba,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of the first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 13.3.1997 whereby the suit for specific performance of the respondent/plaintiff was decreed. The property in question is the property bearing No.WZ-899, Pankha Road, New Delhi and the agreement to sell is dated 10.3.1996 whereby the property was agreed to be sold for a sum of Rs.2,55,000/- and of which a sum of RFA No.110/1997 Page 1 of 8 Rs.1,55,000/- was paid in cash on the execution of the agreement to sell. This agreement to sell is in fact not in the format of an agreement to sell but is in fact a receipt of a few lines. This receipt is in Hindi and therefore it is not possible to reproduce the same. This receipt is not an exhibited document before the trial Court and has only been marked as „Mark A‟.
2. There is no dispute that this receipt was executed between the parties. The issue which arose for determination was whether this agreement as comprised in receipt dated 10.3.1996 was cancelled between the parties and the appellant/defendant refunded the amount to the respondent/plaintiff. The trial Court has held that the respondent/plaintiff had not received back the amount which was paid in cash on three occasions and on one occasion by means of a self- cheque and hence the case of the appellant was disbelieved that the agreement/receipt stood cancelled as the same was torn when the transaction was cancelled by return of the moneys.
For disbelieving the appellant that the transaction was cancelled the trial Court has relied upon the inconsistency in deposition of the appellant and the witnesses of the appellant in that whereas the appellant stated that the receipt dated 10.3.1996 was torn by himself, the two witnesses, (one being the father of the appellant) RFA No.110/1997 Page 2 of 8 deposed that the receipt dated 10.3.1996 was torn by the respondent/plaintiff.
3. Before this Court, learned counsel for the appellant has strenuously urged that the very fact that the original receipt/agreement to sell dated 10.3.1996 has not seen the light of the day is itself enough to hold that the agreement as comprised in the said agreement dated 10.3.1996 was brought to an end by consent of the parties. Attention of this Court is invited to Section 114 of the Indian Evidence Act, 1872 and as per the illustration (i) thereto, when a document creating an obligation is in the hands of the obligor, the obligation would stand discharged. On the basis of this provision, it is argued that once the original document as per the stand of the appellant had come in his possession on the agreement being discharged, the same was destroyed and therefore no right can subsist thereunder i.e. the argument is that the receipt/agreement is given at the time of entering into the transaction to the person who gives the amount viz the buyer who pays the moneys is the person in whose possession the receipt/agreement has to be if the transaction is subsisting, and since, the original receipt/agreement is not with the buyer/respondent the same is because the document was given back to the appellant/defendant showing that the transaction was by mutual consent brought to an end/cancelled. It is also urged that it cannot be RFA No.110/1997 Page 3 of 8 seriously disputed that respondent/plaintiff received the amount in cash because even under the original agreement/receipt dated 10.3.1996, the amount which was paid by the respondent/plaintiff to the appellant/defendant was also in cash, meaning thereby that payment of cash is not an unusual method of payment in this case.
4. The learned counsel for the respondent/plaintiff, on the contrary, very strenuously urged that the inconsistency in the evidence of the appellant/defendant himself and other witnesses with regard to destruction of the agreement should be held fatal to the case of the appellant/defendant. It is further urged that it has not been conclusively proved that the self cheque was handed over to Sh. Anil Kumar, the cousin brother of the respondent/plaintiff. It is also urged that once the agreement in question was admitted to have been executed and the amount has been admittedly received by the appellant, the suit for specific performance has been rightly decreed by the Court below.
5. Ordinarily, this Court would not have interfered with the decision of the trial Court once two views are possible, however, this Court is a Court both of fact and law. Sitting in first appeal therefore if injustice is caused by the view as taken by the trial Court, this Court can and does exercise its power of appeal in setting aside the RFA No.110/1997 Page 4 of 8 impugned judgment and decree by interfering with the conclusions of facts and law as arrived at by the trial Court.
6. The most crucial aspect in this case is that no original agreement/receipt dated 10.3.1996 has come on record. Admittedly, only a photocopy of the agreement/receipt dated 10.3.1996 is on the trial Court record. Even this document has not been exhibited but is simply marked as "Mark A". Once a document is not exhibited and simply marked, I fail to understand as to how on the basis of such a document which is not exhibited, the suit for specific performance could have been decreed considering that for specific performance to be decreed it has to be proved as a sine qua non the existence and continued validity of the agreement. An unproved document cannot be the basis of a decree of a suit, more so one so important in nature such as a suit for specific performance. Further, though Section 114 of the Evidence Act may not in one sense be directly applicable, the provision as quoted by the learned counsel for the appellant clearly applies because after all it was very convenient for the respondent/plaintiff to allege that the agreement was lost once the same was destroyed after exchange of cash between the parties for bringing the transaction to an end. If action of the respondent/plaintiff in succeeding in the suit for specific performance is sustained, then the same would mean that even if the original agreement is not filed and RFA No.110/1997 Page 5 of 8 proved on record inasmuch as the same is stated to be destroyed, yet valuable rights in an immovable property can be lost on the basis of a photocopy of document. This is not, in my humble opinion, the legal position more so, when in the facts of the case, it is clear that the exchange of consideration whether from the respondent/plaintiff/buyer to the appellant/defendant under the agreement/receipt dated 10.3.1996 was in cash and the fact that subsequently when the agreement was cancelled, on 30.3.1996, the return of the consideration by the appellant/defendant to the respondent/plaintiff/buyer was also in cash. Non-existence of the original agreement to sell is therefore extremely crucial and vital in a case like the present and which therefore disentitles the respondent/plaintiff to claim the grant of a decree for specific performance. The agreement was clearly destroyed at the time of cancelling the transaction and if the transaction stood there was no reason for the respondent/plaintiff/buyer not to have in his possession the original receipt which was executed. Once an original agreement came back into the hands of the appellant/defendant on the transaction having been cancelled the same was destroyed and the convenient story of alleged loss of the document by the respondent/plaintiff does not inspire any confidence and is thus held as RFA No.110/1997 Page 6 of 8 not proved and in any case lacking credibility for the same to be accepted by the Court.
7. Clearly therefore the agreement to sell had come to an end and it is for that reason that the original has not seen the light of the day and the onus to sustain an unsustainable claim on the basis of a photocopy of the receipt/agreement (which has not been exhibited) was really upon the respondent/plaintiff and which has wrongly been accepted by the trial Court for decreeing the suit of the nature of specific performance which in law in any case is a discretionary relief.
8. In view of the above, I find that the impugned judgment and decree is clearly unsustainable because it grants specific performance of such an agreement whose existence has still not seen the light of the day. The relief of specific performance is discretionary and in the facts of the case where cash is said to have been exchanged both at the time of the original transaction and also at the time of the subsequent accord and satisfaction, the present is not a fit case where relief of specific performance ought to have been decreed. Uncertain situations and uncertain existence of agreements are not really envisaged in the grant of specific performance relating to valuable immovable property.
RFA No.110/1997 Page 7 of 8
9. In view of the above, the appeal is accepted and the impugned judgment and decree dated 13.3.1997 is set aside and the suit of the respondent/plaintiff for specific performance is dismissed, leaving the parties to bear their own costs. Decree sheet be prepared accordingly. Trial Court record be sent back.
JANUARY 06, 2011 VALMIKI J. MEHTA,J
Ne
RFA No.110/1997 Page 8 of 8