Delhi District Court
Sh. Rajinder Pal Kohli vs Sh. D. C. Jai Singh on 30 July, 2013
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL.
DISTRICT JUDGE CENTRAL-09: TIS HAZARI COURTS DELHI
CS No. 521/09 & CS No. 368/13.
UID No. 02401C0367772009 & UID No. 02401C0363662013.
Sh. Rajinder Pal Kohli
S/o late Sh. C. L. Kohli
31/3 West Patel Nagar
New Delhi-110 008
........... Plaintiff
Versus
Sh. D. C. Jai Singh
S/o late Sh. Chhabil Dass
29/72 First Floor
West Patel Nagar
New Delhi-110 008
......... Defendant
Date of institution of suit : 17.08.2009.
Date of reserving for judgment : 23.07.2013.
Date of judgment : 30.07.2013.
JUDGMENT
1. The is a suit for specific performance of the collaboration agreement dated 21/11/2008 or in the alternative for recovery of Rs. 16,52,500/- filed by the plaintiff.
2. Brief facts of the case are :
a) Plaintiff is carrying on his business of builder. Defendant is the owner of entire roof rights of first floor and above out of free hold property bearing no. 29/72, West Patel Nagar, New Delhi measuring CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 1 100 sq. yards. The defendant approached the plaintiff for construction of entire second and entire third floor with terrace roof rights and the plaintiff agreed to the same on the terms and conditions mutually agreed upon. A collaboration agreement dated 21/11/2008 was executed between the parties incorporating the terms and conditions.
b) The plaintiff paid to the defendant and the defendant has received from the plaintiff a sum of Rs. 4 lacs. The last cheque no. 392267, dated 12/11/2008 for Rs. 1 lac was got encashed by the defendant on 09/04/2009. After about 5 months, amount of Rs. 50,000/- was paid to the defendant by the plaintiff in cash on 21/11/2008.
c) The defendant also executed a general power of attorney dated 21/11/2008 nominating, constituting and authorizing the plaintiff for the management and control of the built up entire third floor with terrace roof rights out of aforesaid property and to do the act, deeds and things on behalf of the defendant as mentioned in the said GPA which was duly registered with the Sub Registrar-II, Delhi.
d) According to the collaboration agreement dated 21/11/2008, the construction of second and third floors was to be started only after handing over the possession of the property by the defendant to the plaintiff and the construction work was to be completed within nine months.
e) The defendant after receiving the earnest money of Rs. 50,000/- on 10/09/2008 from the plaintiff, asked the plaintiff to start construction work in anticipation of the execution of collaboration agreement and the GPA and handing over the possession of the property.
f) Plaintiff started construction and raised two walls 12'x10' in length on one side and two walls 12'x25' on the other side of the house on second floor. All these walls were raised to 10' height. Both the CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 2 collaboration agreement and GPA were executed on 21/11/2008 and the plaintiff gave the defendant a sum of Rs. 14,50,000/- and Rs. 11 lacs.
g) After receiving the whole amount of Rs. 15 lacs on 21/11/2008, the defendant locked the door and did not allow the plaintiff to continue the construction work for the reasons best known to the defendant. The plaintiff repeatedly requested the defendant to hand over the possession of the property to the plaintiff to enable him to start the construction work but the defendant did not hand over the possession of the property to the plaintiff.
h) Plaintiff wrote to the defendant letter dated 12/02/2009 followed by reminder dated 06/03/2009 requesting the defendant to hand over the possession of the property to the plaintiff but the defendant did not hand over the possession. The plaintiff has always and is still ready and willing to perform his part of the contract.
i) Plaintiff served upon the defendant a notice dated 04/05/2009 through his counsel calling upon the defendant to hand over the possession of the property no. 29/72, West Patel Nagar, roof of first floor or in the alternative to pay the amount of Rs. 16,47,000/- along with interest. The notice was duly served upon the defendant but the defendant failed to comply with the above notice. An evasive reply dated 18/05/2009 was sent by the defendant through his counsel based on totally false and fabricated stories.
3. Defendant filed written statement cum counter claim wherein it is stated that the defendant after going through the collaboration agreement made certain additions and alterations in draft. The defendant was told that the final agreement will be prepared and it would require registration. The defendant was further told by the plaintiff that general power of attorney would also be required to be CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 3 executed and registered to facilitate the effective performance of collaboration agreement. Thereafter, on 21/11/2008 the defendant was taken to the office of Sub-Registrar-II, Janak Puri, New Delhi where the plaintiff suggested that the general power of attorney is required to be registered. There were bunch of papers and when the defendant wanted to go through the same he was told by the plaintiff that the additions and alterations made in the draft have also been made in final drafting and in case, the defendant would go through those documents it would take time and the plaintiff would not be able to present the documents within time. In such circumstances, the defendant signed the documents. After 2-3 days, the plaintiff came to the property of the defendant, engaged labour and started demolition on second floor. The plaintiff has demolished room and verandah. On asking of the defendant as to why he was getting demolition done, the plaintiff told him that the work was time bound and it would take some time in registration of document and other follow-up action. During the course of the work, employee of MCD visited the property of the defendant and they stopped the work of the plaintiff. After about a month, the plaintiff gave photocopy of registered documents to the defendant. On perusal of general power of attorney the defendant was shocked and suprised to note the mentioning of payment of Rs. 11 lacs to him. Upon enquiry, the plaintiff told him about some typing mistake. The plaintiff betrayed the confidence of the defendant and suppressed the material fact willfully and got the signatures of the defendant by misrepresentation and playing fraud as the representation made by the plaintiff were false to his knowledge and the plaintiff got the signatures of the defendant under misrepresentation. Receipt of notice issued by the plaintiff is admitted. It was also informed to the plaintiff that defendant was not interested in the deal. It is further stated that the CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 4 roof of the first floor of the defendant's property was also damaged as cracks have crept in the roof of property of defendant. It is further admitted that the plaintiff had paid Rs. 4 lacs to the defendant as per details given in collaboration agreement and after adjusting the said amounts toward the loss, the plaintiff was called upon to pay the amount of damage of Rs. 2 lacs for which the present counter claim has been filed. On the face of facts that the documents were got signed by the plaintiff by playing fraud, therefore, the defendant revoked/cancelled the deal. The fraud having been played by the plaintiff at the very inception which fact has vitiated the transaction itself. Rest of the contents of the plaint are denied and the defendant has prayed the dismissal of suit. In counter claim, the defendant has claimed a decree of Rs. 2 lacs on account of damages from the plaintiff.
4. Replication to the written statement and written statement to the counter claim filed wherein averments made in the written statement cum counter claim are denied and the contents of the plaint are re- iterated and affirmed. It is further stated that the general power of attorney was signed by the defendant only after reading the same throughly and after receiving the amount of Rs. 11 lacs from the plaintiff. Copy of general power of attorney was also given to the defendant before getting the same registered before the Registrar. With these pleadings, the plaintiff has sought dismissal of the counter claim.
5. My ld predecessor by order dated 10/12/2009 framed following issues :
"i) Whether defendant has suppressed the material facts ? OPP.
ii) Whether the plaintiff is entitled for the decree of specific performance of the collaboration agreement ? OPP.
iii) Whether the plaintiff in alternative is entitled for the CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 5 recovery of amount as claimed ? OPP.
iv) Whether the defendant is entitled for counter claim ? OPD.
v) Whether plaintiff is entitled for the interest ? If so, at what rate and for which period ? OPP.
vi) Relief."
6. To prove his case the plaintiff has examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/P. He further relied upon document Ex. PW1/1 to Ex. PW1/12. Plaintiff further examined UDC, from the office of Sub Registrar-II, Janak Puri, New Delhi as PW2. He further examined Sh. Pawan Kumar as PW3 who tendered his evidence by way of affidavit Ex. PW3/A. All the witnesses were cross-examined by the ld counsel for the plaintiff. In defence defendant examined himself as DW1 and tendered his evidence by way of affidavit Ex. DW1/A. He further relied upon document Ex. DW1/1 to Ex. DW1/24. Defendant further examined LDC, Karol Bagh Zone, Property Tax Department, Karol Bagh, Delhi. All these witnesses cross-examined by ld counsel for the plaintiff. Thereafter, by separate statement, ld counsel for the defendant closed DE.
7. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. I have also gone through the written arguments submitted by both the parties. In written arguments, defendant further relied upon Dr. Jyoti Prakash Tayal Vs. Mohinder Singh & Ors 139 (2007) Delhi Law Times 214; M/s. Burn and Company Ltd. Vs. The State of West Bengal AIR 1976 Calcutta 389 and Shukla Chakraborty VS. Sudeep Mitra 172 (2010) Delhi Law Times 583. I have also considered all these judgments. My issuewise findings are :
Issues No. 1, 2 and 3Issue No. 1 : Whether defendant has suppressed the CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 6 material facts ? OPP.
Issue No. 2 : Whether the plaintiff is entitled for the decree of specific performance of the collaboration agreement ? OPP.
Issue No. 3 : Whether the plaintiff in alternative is entitled for the recovery of amount as claimed ? OPP.
Since facts pertaining to these issues are interconnected to each other, therefore, I am gong to dispose of these issues by common findings. Ex. PW1/P is similar to the averments made in the plaint. During cross-examination, it is admitted that the contract between the parties took place which was reduced into writing as Ex. PW1/1. It is further admitted by PW1 that he had to demolish the existing structure and thereafter had to construct second and third floor after demolishing the existing structure. He has further admitted that the clause 27 of Ex. PW1/1 is correct. He has further admitted that the third floor was to be constructed by him as per clause 27 mentioned in Ex. PW1/1. He has further stated that he could produce the document regarding the payment of Rs. 11 lacs mentioned in Ex. PW1/2 but he did not bring those documents. A suggestion was given that no such payment was ever made to the defendant. He has further admitted that he received the reply of the notice from the defendant which is Ex. PW1/11. He has further admitted that before executing the contract covered by Ex. PW1/1, the permission from the MCD was necessary. He has further admitted that the contract was time bound. PW3 stated in Ex. PW3/A about the collaboration agreement and the facts pertaining thereto. He also deposed about special power of attorney and Will in favour of the plaintiff. He has admitted that he was present in the meeting held between the parties and all the terms and conditions of the collaboration agreement were settled at that time. He has further CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 7 stated that whatever payment was settled, the same was mentioned in the said agreement. It is further stated that at the time of collaboration agreement, the plaintiff had given payment of Rs. 11 lacs. He has further admitted that whatever amount was payable by the plaintiff to the defendant was mentioned in the collaboration agreement. A question put to him that neither Rs. 11 lacs were paid by the plaintiff to the defendant nor it was written in the collaboration agreement Ex. PW1/1. He has stated that Rs. 11 lacs were paid by the plaintiff to the defendant which were decided settled and written in the collaboration agreement when it was confronted with Ex. PW1/1 then there it was not written and he has stated that amount of Rs. 11 lacs is written at page no. 3 of document Ex. PW1/2. He has admitted that Ex. PW1/2 is not a collaboration agreement.
8. Contents of Ex. DW1/A are similar to the averments made in the written statement. During cross-examination, it is admitted case of DW1 that GPA Ex. PW1/2, SPA Ex. PW1/3, Deed of Will Ex. PW1/4 and affidavit Ex. PW1/5 bears his signatures and thumb impression. Thus, execution of these documents is admitted. He has admitted that the letter of possession was not issued to him. He has further admitted that the plaintiff had given Rs. 4 lacs but he denied that the plaintiff gave Rs. 11 lacs on 28/11/2008 in cash. The document i.e. GPA Ex. PW1/2 is perused wherein it is mentioned that the executant had already received a sum of Rs. 11 lacs from the general attorney. However, in this document nowhere it is mentioned that the amount was received in cash. It is also not mentioned in this document when the said amount was received by the executant. Moreover, no separate receipt was prepared or executed. Moreover, this court further observed in Ex. PW1/1 i.e. in collaboration agreement the entire detail of payment of Rs. 4 lacs has been mentioned. Ex. PW1/1 was CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 8 executed on 21/11/2008 and Ex. PW1/2 i.e. GPA was also executed on 21/11/2008 i.e. on the same day when Ex. PW1/1 was prepared then why this amount was not mentioned in that document and mentioned separately in Ex. PW1/2. Such reason has not been explained. Moreover, nothing has been brought on the record by the plaintiff to prove the payment of Rs. 11 lacs. In Bishambhar Nath Agrawal Vs. Kishan Chand and others IR 1998 Allahabad 195, the Hon'ble High Court has held that :
"...................He was suggested at the close of his cross-examination that they had no arrangement of money for taking the sale deed and that Vishnu Ram Nagar and Permanand Puri also had no arrangement of money. He of course, made a denial of the suggestions but his denial can hardly be taken at its face value"
Similarly, in the present case also plaintiff is not able to prove that he was having arrangement of money for payment of consideration as mentioned in Ex. PW1/2. No bank statement of relevant time or any similar document proved by the plaintiff to prove the factum of arrangement of such huge amount of Rs. 11 lacs. Even no income tax return of the relevant year brought by the plaintiff.
In Erikkil Thavatha Basheer Vs. Poopurambath Kaithal Khadeeja AIR 2001 Kerala 346, it was held by Hon'ble High Court that :
"..................During examination, he has admitted that he was having bank accounts in three different banks. But he has not produced the pass books in respect of the accounts or other documents. In the circumstances it cannot be found that the appellant was ready and willing to perform his part of the contract"
Moreover, the Hon'ble Delhi High Court held in Mahesh Kumar Wadhwa Vs. Bimal Luthra 2009 (107) DRJ 271 passed by the Hon'ble High Court wherein it was observed :
CS No. 521/09 & CS No. 368/13Rajinder Pal Kohli Vs. D. C. Jai Singh Page 9
"D. There is also no explanation as to why
such large sums of monies were transacted in
cash.
E. The plaintiff has not filed a single
document to show the availability of cash in such large volume with him on the dates alleged.
In a recent judgment in Mahavir Singh Vs. Joginder Singh 2012 VIII AD (DELHI) 249, in para 5, the Hon'ble Delhi High Court has held :
"5. Keeping in view the fact that neither the original documents have been filed nor has the plaintiff explained the source of the huge amounts, he claims to have paid in cash to the defendant, no prima facie, case is made out either with respect to the execution of the agreement for sale of the suit property or with respect to the payment of Rs. 56,50,000/- except to the extent of Rs. 5 lac which has been admitted by the defendant, whose case is that the aforesaid amount was taken by him as loan from the plaintiff."
Obviously Rs. 11 lacs is not a small amount. When Rs. 4 lacs could be paid by the plaintiff to the defendant through cheques then what prompted the defendant to make payment of Rs. 11 lacs through cash only, though in Ex. PW1/2, nothing has been mentioned as such. Even it is not mentioned that the payment was made in cash. It is also not brought before this court where from the plaintiff made arrangement for such a huge amount and why this amount was paid in cash, though such an amount could be paid through bank draft or cheque as similarly the payment of Rs. 4 lacs was made through cheque, is unexplained in Ex. PW1/1. In such circumstances, this court is of the considered opinion that the plaintiff is not able to prove the payment of Rs. 11 lacs to the defendant.
9. However, the plaintiff is successfully able to prove the execution of Ex.
PW1/1. Therefore, the parties have to be bound by this document as it is the admitted document by both the parties. In such circumstances, the plaintiff is entitled for decree for specific performance of the collaboration agreement in accordance with the strict terms of the CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 10 collaboration agreement Ex. PW1/1 as mentioned therein. Therefore, issue no. 2 is disposed of in terms of these observations. However, issue no. 1 and 3 are answered with the observations that the defendant has not suppressed any material facts as plaintiff is not able to prove any suppression of material facts during cross-examination of DW1. But in case the specific performance of collaboration agreement becomes impossible or is not possible due to any reason then the plaintiff is entitled for recovery of the amount of Rs. 4,00,000/- along with Rs. 33,000/- which was paid by the plaintiff by way of stamp duty along with Rs. 4,400/- paid by the plaintiff to the bank for preparation and registration of collaboration agreement, general power of attorney along with Rs. 1,10,000/- to the broker i.e. total a sum of Rs. 5,47,400/- as the plaintiff had incurred such an amount as mentioned in the plaint. But here this court pass directions to the parties that impossibility of specific performance of agreement should not be on part of either of the parties i.e. party should not create any such situation that performance of collaboration agreement Ex. PW1/1 becomes impossible. In such circumstances, parties have to obtain a certificate atleast from one architect and two structured engineers with certification to the effect that specific performance of the agreement becomes impossible i.e. the same cannot be performed by any means. However, in case the plaintiff is able to remove such obstacle on his own expenses then the performance of collaboration agreement Ex. PW1/1 shall be carried in all circumstances. Thus, issue no 3 is answered with these observations. The cost for performance of Ex. PW1/1 shall be borne by the plaintiff in accordance with Ex. PW1/1. Moreover, if there are additional expenditures to be incurred then those shall also be borne by the plaintiff himself.
CS No. 521/09 & CS No. 368/13Rajinder Pal Kohli Vs. D. C. Jai Singh Page 11
10. Issue No. 4
Whether the defendant is entitled for counter
claim ? OPD.
Onus to prove issue no. 4 is upon the defendant. To prove issue no. 4, the defendant has proved Ex. DW1/1 to Ex. DW1/24 to prove the damages. He has brought report of M/s. R. Dayal and Associates Ex. DW1/1 to prove the damages. However, this report has not been proved in accordance with the law as no witness from M/s. R. Dayal and Associates has been summoned or brought by the defendant. Therefore, the defendant is not able to prove the damages. Therefore, defendant is not entitled for any decree as counter claim. Therefore, issue no. 4 is being answered against the defendant.
11. Issue No. 5.
Whether plaintiff is entitled for the interest ? If so, at what rate and for which period ? OPP.
Onus to prove issue no. 5 is is upon the plaintiff. The plaintiff in this case has claimed interest @ 12% p.a. This court is of the considered opinion that this is reasonable rate of interest which has been claimed by the plaintiff inasmuch as all nationalized banks are charging interest at this rate of interest and moreover the money of the plaintiff as allowed as alternative relief during disposal of issue no. 3 blocked in the transaction and, therefore, the plaintiff is entitled for interest on decree amount @ 12% p.a. from the date of filing of the suit till realization. Thus, this issue is being answered in favour of the plaintiff.
12. Issue No. 6.
Relief.
In view of the observations made herein above, the suit of the plaintiff is partly decreed in favour of the plaintiff and against the defendant in terms of paras 8 & 9 of this judgment. The counter claim CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 12 of the defendant is dismissed. There is no order of cost. Plaintiff shall be entitled for the proportionate costs of the suit. Decree sheet for the suit and counter claim be prepared accordingly and separately. Copy of this judgment be also placed in civil suit no. 368/13. File be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 30.07.2013. Additional District Judge-09 Central District, Tis Hazari Courts Delhi CS No. 521/09 & CS No. 368/13 Rajinder Pal Kohli Vs. D. C. Jai Singh Page 13