Delhi District Court
Sh. Mohinder Singh vs Sh. Vipin Aggarwal on 21 May, 2011
IN THE COURT OF SH. RAKESH KUMAR : ADJ03 (C) : DELHI
Suit No.08/09
Sh. Mohinder Singh,
S/o Sardar Joginder Singh,
R/o 18/21, W.E.A. Arya Samaj Road,
Karol Bagh, New Delhi - 110005. .....Plaintiff.
V E R S U S
Sh. Vipin Aggarwal,
S/o Late Sh. Babu Lal,
nd
R/o 907, 2 Floor, Gali Inder Wali,
kutcha Pati Ram, Bazar Sita Road,
Delhi - 110006. .....Defendant.
J U D G M E N T
1. The instant suit for Specific Performance, Possession and Permanent Injunction has been filed by the aforesaid plaintiff against the above named defendant interalia making the following prayers:-
(a). to pass a decree for a specific performance of the Agreement dated 10.08.2008 with respect to the property bearing no.907, 2nd Floor, Gali Inderwali, Kutcha Pati Ram, Bazar Sita Ram, Delhi-110006 in favour of the plaintiff by directing the defendant to execute proper sale deed in favour of the plaintiff;
(b). to direct the defendant to deliver the peaceful vacant possession of the Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.1 of pages 12 property as a part performance of the said Agreement.
(c). to appoint any other person on behalf of the defendant to execute the sale deed in favour of the plaintiff in the event of exparte proceedings against the defendant.
(d). to restrain the defendant from transferring the suit property or to part with the same by creating third party interest in any manner whatsoever till the execution of the Sale Deed in favour of the plaintiff.
(e). other alternative relief by directing the defendant to pay double amount of earnest money and 18% interest on the part payment of Rs.5,00,000/-
recoverable till the date of filing of the present suit. Further interest @ 18% may also be granted on the entire amount till the date of passing of the decree and its realization.
2. As per plaint, the defendant was willing to sell the property bearing no.907, 2nd Floor, Gali Inderwali, Kutcha Pati Ram, Bazar Sita Ram, Delhi-110006 (hereinafter called the suit property) at the price of Rs.15 Lacs for which the plaintiff agreed to purchase the same and accordingly the plaintiff and defendant entered into an Agreement-cum-Bayana receipt dated 10.08.2008 by payment of Rs.2,00,000/- as an earnest money and Rs.5,00,000/- as a part payment out of total sale consideration amount fixed between the vendor and vendee i.e. parties to this suit. The aforesaid money was Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.2 of pages 12 duly received by the defendant in the presence of witnesses and the defendant put his signatures on the revenue stamp affixed on Bayana Receipt and also put his thumb impression accordingly. In terms of the Agreement- cum-Receipt, the vendor agreed for the performance of this Agreement within three months from the date of execution of the said receipt. The parties agreed to specifically perform the said stipulated conditions of bayana-cum-agreement receipt, if any unforeseen circumstances emerged which may be beyond the control of the parties, the party at fault either pay double amount of the earnest money or on the fault/default of the other party, the amount shall be forfeited. It was also agreed by the defendant to pay 18% interest P.A on the money (Rs.5Lakhs) received as a part payment. It is further averred that the plaintiff was always ready and willing to perform the said agreement for that the plaintiff personally went to the defendant to pay the rest part payment of Rs.8,00,000/- but the defendant avoided to receive the same due to ulterior motive to make the plaintiff defaulter. Therefore, the plaintiff through his statutory notice dated 05.11.2008 sent the Bank Draft No.247109 dated 04.11.2008 of Rs.8,00,000/- drawn on Laxmi Vilas Bank Ltd., Janpath, New Delhi and also requested the defendant to execute regular sale deed in favour of the plaintiff and to give intimation for the date fixed for the same but the Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.3 of pages 12 said notice returned back to the plaintiff with the remarks on the registered envelop that the defendant left without address. The notice sent by UPC also returned back with the illegible remarks. As stated above, the defendant/ vendor shall execute the proper conveyance deed in favour of the vendee/plaintiff by receiving the balance amount of Rs.8,00,000/- as the time was an essence of the said Agreement but the defendant has failed to abide by the terms and conditions stipulated in the Agreement. Though the plaintiff was always ready and willing to perform his part, therefore, the plaintiff sent a banker's cheque/draft of the like amount to the defendant with the request to execute the sale deed in favour of the plaintiff but it is no avail. It is further averred that the plaintiff is having apprehension that the suit property may be transferred to a third party by the defendant or the defendant may create third party interest in respect of the same. The cause of action in favour of the plaintiff and against the defendant for filing the present suit arose firstly on 10.08.2008 when the parties entered into an agreement-cum-bayana receipt and the defendant received earnest money as well as part payment from the plaintiff to the tune of Rs.2,00,000/- and Rs.5,00,000/- being earnest money and part payment respectively. The cause of action also arose against the defendant as the defendant after expiry of three months failed to execute Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.4 of pages 12 the sale deed despite of readiness and willingness of the plaintiff to get execute the same. The cause of action is still continuing as the plaintiff requested the defendant to perform his part as per the agreement/bayana receipt by execution of sale deed in favour of the plaintiff. This Court has territorial jurisdiction to try and entertain the present suit. The suit has been properly valued for the purpose of court fee and jurisdiction.
3. The defendant contested the suit by filing his Written Statement wherein it is claimed that the suit of the plaintiff is liable to be dismissed U/o VII Rule 11 CPC as the defendant never executed bayana receipt/MOU dated 10.08.2008 and the defendant never intended to execute any such document and the plaintiff has forged and fabricated the same. Therefore, the plaintiff is liable to be prosecuted U/s 340 Cr.P.C. The plaintiff has forged and fabricated insufficiently stamped unregistered document and has committed perjury and has played a fraud and cheating upon the defendant. The plaintiff has not come to the Court with clean hands and has suppressed the material facts from the Court. As the defendant came to know from the service of the summons of the Court, the defendant was shocked, stunned and surprise to see the act of cheating and fraud played upon the defendant by the plaintiff and thereafter he gave complaint to the Commissioner of Police, DCP Vigilance as well as to SHO Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.5 of pages 12 concerned. The defendant never entered into an agreement with the plaintiff nor executed the document and nor received any payment from the plaintiff, therefore, the instant case is nothing but an abuse of the process of law. The instant suit has been filed by the plaintiff with the malafide intention to grab the property of the defendant. It is denied that the defendant was willing to sell the property bearing no.907, 2nd Floor, Gali Inderwali, Kutcha Pati Ram, Bazar Sita Ram, Delhi-110006 at the price of Rs.15 Lacs or that plaintiff agreed to purchase the same. It is further denied that the plaintiff and the defendant entered into an agreement/bayana receipt dated 01.08.2008 by payment of Rs.2 Lacs as an earnest money and Rs.5 Lacs as part payment out of total sale consideration amount as alleged falsely or that the aforesaid money was duly received by the defendant in the presence of the witnesses or that the defendant put his signature and thumb impression as alleged falsely. It is further denied that in terms of the agreement-cum- receipt the vendor agreed for the performance of this agreement within three months from the date of execution of the said receipt or that the parties agreed to specifically performed the said stipulated condition of Bayana-cum- agreement receipt, if any unforeseen circumstances emerged which may be beyond the control of the parties, the parties at fault either pay double amount of the Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.6 of pages 12 earnest money or on the fault of the other party, the amount shall be forfeited as alleged or that it was also agreed by the defendant to pay 18% interest per annum on the money (Rs.5 Lacs) received as a part payment. It is also denied that the plaintiff was always ready and willing to perform the said agreement, for that the plaintiff personally went to the defendant to pay the rest part payment of Rs.8 Lakhs or that the defendant avoided to receive the same due to ulterior motive to make the plaintiff defaulter or that the plaintiff through statutory notice dated 05.11.2008 sent the bank draft dated 04.11.2008 of Rs.8 Lakhs as alleged. It is stated that the defendant never received notice nor UPCs. It is denied that the defendant/vendee shall execute the proper conveyance deed in favour of the plaintiff/vendee by receiving balance amount of Rs.8 Lakhs as time was the essence of the said agreement. It is denied that the plaintiff is having apprehension that the suit property may be transferred to the third party by the defendant or the defendant may create third party interest as alleged. It is submitted that the defendant has purchased the property by dint of hard efforts as he had to run from pillar to post in order to get loan from Citi Finance Branch, Pushp Vihar, New Delhi and the defendant is making the payment of the loan amount and the original documents of the property are lying in the bank as mortgaged.
Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.7 of pages 12
4. In this case during the course of proceedings the plaintiff filed an application U/s 45 of Evidence Act thereby making a prayer that applicant/plaintiff may be permitted to appoint competent writing expert to compare the signatures and thumb impression of the defendant from the document filed by the plaintiff and from the document wherein the signature of the defendant obtained and furnished in person before this Court. This application was contested by the defendant by filing the reply. The said application was allowed by the court vide order dated 05.06.2010 and the plaintiff was permitted to get the alleged signature and thumb impression on the said disputed document, compared with the admitted signature and thumb impression of the defendant from a Handwriting Expert on his own expenses and file the report of the Expert. Thereafter, the defendant started remaining absent and as such vide order dated 20.09.2010, he was proceeded against exparte.
5. In support of his case plaintiff himself appeared in the witness box as PW-2 and besides him he also examined one more witness i.e. Sh. Syed Sarfraz Ahmed (Handwriting Finger Print Expert) as PW-1 and therefater, the plaintiff's evidence was closed.
6. In its evidence tendered by way of affidavit Ex.PW2/A PW-2 has reiterated the contents of the plaint and has also proved on record the following documents:-
Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.8 of pages 12
(i). Bayana Receipt/MOU dtd.10.08.08.: Ex.PW2/1.
(ii). Notice dated 05.11.2008. : Ex.PW2/2.
(iii). Envelop. : Ex.PW2/2A.
(iv). UPC. : Ex.PW2/3.
(v). Envelop. : Ex.PW2/3A.
(vi). Copy of Cheque No.247109. : MarkPW2/X PW-1 Sh. Syed Sarfraz Ahmed (Handwriting Finger Print Expert) in his evidence tendered by way of affidavit Ex.PW1/A has deposed that on his careful comparison and examination of the disputed signature and left thumb impression and admitted signatures and left thumb impression of Vipin Aggarwal in the present matter, he has come to the conclusion that the signatures in English Script marked Q-1 and interse comparison with A-1 to A-3 of the same writer and both sets of signatures and further observed that left thumb impression marked D-1 are tally with S-1 both are loop type location position two sets of left thumb impression numerical and de-numerical each reproduction photographic enlargements both are same type. He proved on record his detailed report dated 25.11.2010 as Ex.PW1/1. He also proved the six enlarged photographs of the disputed and admitted signatures and left thumb impression on the basis of which he gave his scientific report and opinion as Ex.PW1/2 to Ex.PW1/7 and negatives thereof as Ex.PW1/8 to Ex.PW1/13.
7. Since the evidence led by the plaintiff remained Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.9 of pages 12 uncontroverted and unrebutted on record as the defendant neither appeared to cross examine the said witnesses nor led any evidence in their defence. As such plaintiff is entitled for the decree in his favour and against the defendants. But it is to be seen as to for what relief the plaintiff is entitled for. In this case the plaintiff has proved on record the receipt of Rs.2 Lakh as Bayana/earnest money and Rs.5 Lakh as part payment towards the sale of the aforesaid property by proving on record the document Ex.PW2/1 i.e. Bayana Receipt/MOU dated 10.08.2008 but the defendant has been failed to show that the said documents was forged and fabricated one, as alleged by him in the Written Statement, as he neither appeared to cross examine the witnesses of the plaintiff nor led any evidence in support of his said claim. Rather, the Expert Witness examined by the plaintiff strengthen the case of the plaintiff, who supported the version of plaintiff by proving on record the document Ex.PW1/1 i.e. report dated 25.11.2010. After considering all the facts and circumstances of the case I my of the considered view that it will not be proper if directions for execution of further sale document is made in favour of the plaintiff from the defendant as it will create unnecessary multiplicity of litigation. In these circumstances, it will be more appropriate if the plaintiff is awarded the alternative relief in the form of money decree. As such, a decree for Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.10 of pages 12 the recovery of Rs.9,00,000/- (Rs. Nine Lakhs Only) (i.e. Rs.4,00,000/- towards the double amount of bayana money of Rs.2,00,000/- and Rs.5,00,000/- paid by the plaintiff to the defendant as part payment) alongwith interest @ 8% per annum from 10.08.2008 (i.e. the date of execution of bayana receipt/MOU dated 10.08.2008) till the realization of the said amount is passed in favour of the plaintiff and against the defendant. Cost of the suit is also awarded to the plaintiff. Deficient court fee, if any, be filed within the period of fifteen days from the date of this judgment.
8. Decree Sheet be prepared accordingly.
9. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR) Court today on 21.05.2011) ADDL. DISTRICT JUDGE-03(C) DELHI Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.11 of pages 12 Suit No.08/09 Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal 21.05.2011 Present: As before.
Vide a separate judgment, suit of the plaintiff is decreed.
Decree Sheet be prepared after filing of deficient court fee, if any.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ-03 (C)/DELHI/21.05.2011 Sh. Mohinder Singh Vs. Sh. Vipin Aggarwal (Suit No.08/09) Page No.12 of pages 12