Delhi District Court
Smt. Shweta Yadav vs Sh. Surender Kumar on 6 January, 2015
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 350/14
Case I.D. Number : 02402C0096292011
IN THE MATTER OF :
Smt. Shweta Yadav
Widow of Late
Sh. Shalu Yadav and
Master Gauransh and Yashita
both minors through her mother
Shweta Yadav all R/o H. No. 51A,
Gali No. 2, Shree Ram Nagar
Shahdara, Delhi110032
Who is their mother and Natural
guardian and her interest is not
Averse to the interest of the minors. ........ Plaintiff
VERSUS
Sh. Surender Kumar
S/o Sh. Mam Chand R/o 4/1558/1,
Mahavir Block, Bhola Nath Nagar,
Shahdara, Delhi110032. ........ Defendant
CS No. 350/14 page 1 of 17
Shweta Yadav Vs. Surender Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Date of Institution of suit : 28.03.2011
Received in this Court :22.08.2014
Date of argument : 06.01.2015
Date of Judgment/Order : 06.01.2015
Decision : Suit is dismissed with cost
Suit for specific performance and injunction
J U D G M E N T
1. Vide this judgment I shall decide the suit for specific performance of
agreement to sell dated 19.04.2011 and permanent injunction in respect of
property No. 4/1558/A, Land Area measuring 100 sq. yards out of khasra No.
3612/2224/636 situated in Village Chandrawali @ Shahdara in the abadi of
Mahavir Block, Bhola Nath Nagar, IllaquaShahadara, Delhi32 ( hereinafter
called the suit property) filed by the plaintiff against the defendant. In the
alternative the plaintiff has prayed for recovery of Rs. 4 lakh along with
interest @ 24% per annum and liquidity damages of Rs. 8 lakh.
2. The brief facts of the case as stated in the plaint is that an agreement
to sell regarding the suit property was entered between the deceased husband
of the plaintiff and the defendant which was not within the knowledge of the
plaintiff or any family member. The husband of the plaintiff expired in April,
2010. In December, 2010 when the plaintiff was searching the documents, she
found the agreement to sell dated 19.04.2010 entered with the defendant. On
CS No. 350/14 page 2 of 17
Shweta Yadav Vs. Surender Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
11.12.2010 the plaintiff approached to the defendant with the balance payment
and requested to execute the sale deed. The plaintiff time and again requested
the defendant to execute the document but of no avail. Legal Notice dated
12.01.11 issued to the defendant which was also replied as the defendant failed
to execute the documents, this suit is filed by the plaintiff against the
defendant.
3. The defendant has contested the present suit by filing the written
statement wherein taken preliminary objections such as this suit is not
maintainable, plaintiff has no locus standi to file this suit, there is no cause of
action for filing of this suit, the plaintiff has not come to the court with clean
hands and suppressed the material facts, this suit is barred under Order 7 Rule
11 CPC. As further contended, the defendant has lost the original title deed
from his possession and made a complaint with PS Moti Nagar. The
defendant further denied regarding any agreement to sell as alleged in the
plaint along with other material contentions therein and prayed to dismiss the
suit with cost.
4. Replication has been filed on behalf of the plaintiff wherein the
contents of the plaint have been reiterated and the assertions of the defendant
to the contrary have been controverted.
5. On the basis of the pleadings of the parties, the following issues have
been framed vide order dated 22.03.2012:
(1) Whether the plaintiff is entitled to decree for specific performance
CS No. 350/14 page 3 of 17
Shweta Yadav Vs. Surender Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
of agreement to sell dated 19.04.2011 and possession of property No.
4/1558/A measuring 100 sq. yards out of khasra No. 3612/2224/636, Village
Chandrawali, Shahdara, Delhi32 ? OPP
(2) Whether the plaintiff is entitled to decree for permanent
injunction ? OPP
(3) Whether the plaintiff is entitled to the alternative relief for
recovery of Rs. 4 lakh along with interest @ 24% per annum and
recovery of Rs. 8 lakh as damages ? OPP
(4) Whether the agreement to sell dated 19.04.2011is forged and
fabricated ? OPD
(5) Relief.
The case was thereafter fixed for plaintiff's evidence.
6. In support of the case, the plaintiff examined herself as PW1 by way of
affidavit Ex. PW1/A. By way of his affidavit of evidence, the plaintiff has
reiterated the facts mentioned in the plaint. The witness has also relied upon
the relevant documents i.e. Agreement to sell dated 19.04.2010 Ex. PW1/1 ,
copy of Legal Notice dated 11.01.2011 Ex. PW1/4, Registry and UPC Slip Ex.
PW1/5 and PW1/6 respectively, application for Delivery Certificate dated
14.02.2011 Ex. PW1/7, reply by Postal Department dated 28.02.2011 Ex.
PW1/8, Reply to the Legal Notice dated 11.02.2011 Ex. PW1/9 and
Receipt/GPA, Agreement to Sell and two Affidavits, all dated 10.09.1990 are
Ex. PW1/9 ( Colly). The witness was discharged as she was not cross
CS No. 350/14 page 4 of 17
Shweta Yadav Vs. Surender Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
examined despite opportunity.
Other witness Sh. Surender Kumar was examined as PW2 vide affidavit
Ex. PW2/A who deposed regarding the agreement to sell Ex. PW1/1. PW3
Budh Singh, Sr. Manager Central Bank of India, Shahadara Branch, Delhi was
examined as PW3. As no other witness remained to be examined on behalf of
plaintiff, PE was closed and case was fixed for DE.
7. The defendant failed to lead any evidence despite opportunity and
accordingly the DE was closed.
8. I have heard the Ld. Counsel for the plaintiff and considered the
relevant material on record along with provisions of law. None appeared for
the defendant to address the final arguments. My findings on the above said
issues are as follows :
(1) Whether the plaintiff is entitled to decree for specific
performance of agreement to sell dated 19.04.2011 and possession of
property No. 4/1558/A measuring 100 sq. yards out of khasra No.
3612/2224/636, VillageChandrawali, Shahdara, Delhi32 ? OPP
(2) Whether the plaintiff is entitled to decree for permanent
injunction ? OPP
(3) Whether the plaintiff is entitled to the alternative relief for
recovery of Rs. 4 lakh along with interest @ 24% per annum and
recovery of Rs. 8 lakh as damages ? OPP
CS No. 350/14 page 5 of 17
Shweta Yadav Vs. Surender Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
(4) Whether the agreement to sell dated 19.04.2011is forged and
fabricated ? OPD
9. The brief and relevant facts for filing of the suit along with the defence
of the defendant is mentioned at the outset. The onus to prove the issue No. 1
to 3 i.e. regarding entitlement of the reliefs as prayed in the suit was upon the
plaintiff though the onus to prove the issue No. 4 was upon the defendant. All
these issues are examined and adjudicated together being inter related.
10. It is well settled that a suit has to be tried on the basis of the pleadings
of the contesting parties which is filed in the suit in the form of plaint and
written statement and the nucleus of the case of the plaintiff and the
contesting case of the defendant in the form of issues emerges out of that.
Being a civil suit, this suit is to be decided on the basis of preponderance of
probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in
183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe
as under:
"A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that
the Power of Attorney Ex. PW3/1 and the Will Ex. P1
were duly executed by the deceased Sh. Sohan Singh.
The Power of Attorney is after all a registered Power of
Attorney, and more importantly, the original title
CS No. 350/14 page 6 of 17
Shweta Yadav Vs. Surender Kumar
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
documents of the subject property are in the possession
of the respondent No. 1 and which would not have been,
if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "
CS No. 350/14 page 7 of 17 Shweta Yadav Vs. Surender Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities
11. Section 101 of the Evidence Act, 1872 defines " burden of proof" which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party.
12. Section 20 of the Specific Relief Act, 1963 provides that jurisdiction to CS No. 350/14 page 8 of 17 Shweta Yadav Vs. Surender Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so. The specific performance is an equitable relief and Section 20 of the Act preserves judicial discretion. The relief U/S 20 is not automatic as the Court is required to see the totality of the circumstances which are to be assessed by the Court in the light of facts and circumstances of each case. The party who seek specific performance being an equitable relief must come to the court with clean hands and while exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties and the motive behind the litigation.
13. In a suit for Specific Performance, the plaintiff has to prove a valid sale agreement; the breach of the contract by the defendant and readiness and willingness of the plaintiff to perform his part of the contract. The relevant provision of law i.e. Section 16 (c ) of the Specific Relief Acts mandates readiness and willingness on the part of the plaintiff as a condition precedent to seek specific performance. Section 16 (c ) is reproduced hereunder: " Section 16. Personal bars to relief Specific performance of a contract cannot be enforced in favour of a person XXX XXX XXX ( C) who fails to aver and prove that he has performed or has CS No. 350/14 page 9 of 17 Shweta Yadav Vs. Surender Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation. For the purposes of clause ( c ), where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
14. As held by Hon'ble Delhi High Court in RFA No. 83/2007, the readiness and willingness are two separate issues. The former depends upon the availability of the requisite funds whereas the later depends on the intention of the purchaser. The readiness has to be proved by the purchaser by leading evidence relating to the availability of the funds whereas the intention has to be inferred from the various circumstances on record. If there is not availability of the funds with the purchaser, he can be none suited on the ground of non readiness alone. If the plaintiff is able to show and prove the availability of balance sale consideration with him at the time fixed for performance in the agreement, it is an indication of his readiness but his willingness/intention to perform cannot be inferred from readiness alone. It is CS No. 350/14 page 10 of 17 Shweta Yadav Vs. Surender Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. the duty of the Court to find out which party has not performed his part of the contract and the Court has to take into consideration the human probabilities, ordinary course of human conduct and commonsense to draw necessary inference. The Court has to minutely examine the conduct of the parties in order to ascertain the truth.
15. In N. P. Thirugnanam Vs. Dr. R. Jagan Mohan Rao, ( 1995) 5 SCC 115, the Supreme Court held that the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances to adjudge the " readiness" and "
willingness" of the plaintiff. The amount of balance sale consideration must be proved to be available with the purchaser right from the date of execution till the date of decree. The Court upheld the dismissal of the suit for specific performance on various grounds inter alia that the plaintiff was dabbing in real estate business without means to purchase the suit property and the very contract was speculative in nature.
In R. C. Chandiok V. Chunni Lal Sabharwal, (1970) 3 SCC 140, the Supreme Court held that " readiness" and " willingness" cannot be treated as a straitjacket formula. It has to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.
16. It is noted that the defendant has denied any transaction with the deceased husband of the plaintiff. The plaintiff examined herself as PW1 in support of the case and deposed regarding the execution of the notarized CS No. 350/14 page 11 of 17 Shweta Yadav Vs. Surender Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. agreement Ex. PW1/1. At the outset, it is observed that the contention of the plaintiff in the plaint is vague and not specific. The plaintiff has not detailed either the date of agreement to sell, date of death of her husband, when she came to know regarding the agreement in the month of December, 2010 at the time of searching documents, who were the witnesses to the agreement, regarding the payment and mode of proof etc. No explanation is furnished by the plaintiff in this respect even at the time of final arguments. As noted by the plaintiff/PW1 herself, she was not present when the alleged agreement Ex. PW1/1 was executed and therefore she is not aware further regarding the factum of payment etc. Reliance by the plaintiff on the testimony of PW2 as a witness to the agreement to sell Ex. PW1/1 is also beyond pleadings. The PW2 appears to be foreign object for the case. Moreover, from the testimony of the PW2, it cannot be ruled out that he is an interested witness who deposed at the instance of the plaintiff. It can be held that the testimony of the PW1 regarding the execution of the agreement is merely hearsay evidence and accordingly not reliable. The matter is further aggravated as it appears that the contents of the plaint were kept vague and not specific so that the version of the plaintiff may be upgraded and the lacuna if any, in the case may be filled up.
17. As mentioned, PW1 was not aware regarding the agreement between her deceased husband and defendant Ex.PW1/1 and she came to know regarding the agreement only in the month of December, 2010 when she was CS No. 350/14 page 12 of 17 Shweta Yadav Vs. Surender Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. searching some documents. Again this contention regarding searching documents is vague. Nothing is either produced or deposed by the plaintiff regarding the factum of payment of Rs. 4 lakh as claimed in the plaint. There is nothing on record in this respect except the bald averments. Interestingly, PW2 also not deposed anything regarding the earnest money of Rs. 4 lakh allegedly paid to the defendant. In fact PW2 has deposed nothing but reproduced the contents in the affidavit of PW1. The testimony of the PW2 along with the case of the plaintiff was totally shattered during the cross examination of PW2 as he deposed contrary to the claim of the plaintiff/PW1. Interestingly, except the PW2 there was no other witness to the agreement Ex.PW1/1 wherein in usual course it is found that there are two witnesses to the agreement to sell entered into between the parties. There was no explanation in this respect too on behalf of the plaintiff during arguments. The PW2 also appears to have acted an advocate and admittedly nothing was done and no steps were taken after 19.04.10 as there was no information from the plaintiff side regarding the agreement. On the one hand the plaintiff /PW1 claimed to know regarding agreement only in December, 2010 though the PW2 deposed that he informed the plaintiff regarding the agreement at the time of death of her husband i.e. 30.04.2010. The claim of the plaintiff is accordingly falsified in view of the contradiction in the testimony of PW1 and PW2 and cast shadow accordingly.
18. It is reiterated that whether the earnest money was paid by cash or CS No. 350/14 page 13 of 17 Shweta Yadav Vs. Surender Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. cheque is neither detailed in the plaint nor proved. In fact nothing is on record either deposed or proved regarding any payment. No income tax return is placed on record by the plaintiff. Moreover, such transaction, if any in cash is violative of the provisions of Income Tax Act. Section 269(SS) of the Income Tax Act prohibits any person from taking or accepting from any other person any loan or deposit in any other way than by cheque or bank draft where the amount is more than Rs. 20,000/. Similarly Section269(T) prohibits the repayment of any loan or deposit other than by way of cheque or bank draft, if amount is more than Rs. 20,000/.These provisions have been extended to loans between two individual as well and in such cases, the Income Tax assessing officer can levy penalty as high on the amount itself. The whole idea behind this clause is to counter act tax evasion. In this case, plaintiff failed to show any reason or ground for alleged transaction in violation of provisions of Income Tax Act. Such payment was not reflected in the income tax return or any records maintained by the plaintiff. The plaintiff cannot be permitted to gain from the illegal act violating any law of the land.
19. I have gone through the judgment titled as Sanjay Mishra Vs. Kanishka Kapoor @ Nikki & Anr, 2009(3) Civil Court Cases 563 (Bombay) and ratio of the case squarely applies in the facts of this case. The relevant para No. 13 of the judgment reads as under: 13" In the present case, there is a categorical admission that the amount allegedly advanced by the CS No. 350/14 page 14 of 17 Shweta Yadav Vs. Surender Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
applicant was entirely a cash amount and that the amount was "unaccounted". He admitted not only that the same was not disclosed in the Income Tax Return at the relevant time but till recording of evidence in the year 2006 it was not disclosed in the Income Tax Return. By no stretch of imagination it can be stated that liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to section 138 of the said Act. The alleged debt cannot be said to be a legally recoverable debt."
20. I have gone through the judgment reported AIR 2008( NOC) 2495( KAR.) which is squarely applicable in the facts and circumstances of the case. Further the judgment reported as 2009 (107) DRJ 271 squarely applies in the facts and circumstances of this case. The plaintiff has not filed even a single document to show the availability of cash in such large volume along with the source of the same. Further there is no explanation as to why such large sum of money was transacted in cash etc.
21. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the CS No. 350/14 page 15 of 17 Shweta Yadav Vs. Surender Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi. same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
CS No. 350/14 page 16 of 17 Shweta Yadav Vs. Surender Kumar Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
22. In view of the testimony of the PWs, documents on record, the pleadings of the parties and examining the case of the plaintiff on the basis of preponderance of probabilities, it is established that the plaintiff failed to prove the case and discharge the onus. This court does not find any merit or substance in the suit of the plaintiff. The plaintiff has categorically failed to prove the execution of agreement to sell Ex. PW1/1 along with payment of any earnest money. This court is of the considered opinion that this suit is liable to be dismissed and plaintiff is not entitled for any relief as prayed in the suit. The issue No. 1 to 4 are decided against the plaintiff. Relief.
In view of aforesaid discussion and findings, this court of the considered view the plaintiff is not entitled for any relief as prayed in the suit. The suit of plaintiff is accordingly dismissed with costs. Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in open Court on this 06th day of January, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 350/14 page 17 of 17 Shweta Yadav Vs. Surender Kumar