Delhi District Court
Smt. Geeta Devi Sharma vs Smt. Baikunthi Devi on 10 May, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT JUDGE 13 :
CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
SUIT NO. 70/2016
Unique ID No.02401C1174742006
In re:
Smt. Geeta Devi Sharma
W/o Sh. Puran Chand Sharma
R/o WZ119, Gali No. 11,
Sadh Nagar, Palam Colony,
New Delhi110045.
..... Plaintiff
Versus
1. Smt. Baikunthi Devi
W/o Late Sh. Leela Dhar Sharma
2. Sh. Dinesh Sharma
S/o Late Sh. Leela Dhar Sharma
Both R/o RZF196, Gali No. 19,
Sadh Nagar, Part II, Palam Colony,
New Delhi110045.
.....Defendants
Date of institution of present suit : 18.12.2006
Date of receiving in this court : 04.02.2016
Date of hearing arguments : 04.04.2016
Date of Judgment : 10.05.2016
Suit for Specific Performance, Possession, Permanent Injunction,
Damages and Consequential Relief
JUDGMENT
By this judgment suit filed by the plaintiff against the Defendants for afore stated reliefs shall stand dispose of. The controversy Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 1 of 26 between the parties revolves around the following issues as framed on 20.10.2008 by the Ld. Predecessor of this Court:
1. Whether the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction, in view of the preliminary objection no. 4 in the written statement? OPD
2. Whether the suit is liable to be dismissed as the same has been filed in collusion with Sh. Puran Singh Verma, C/o Verma Property Dealer, Sadh Nagar, Palam Colony, New Delhi, in view of the preliminary objection no. 5 in the written statement? OPD
3. Whether the suit is liable to be dismissed for nonjoinder of necessary party, in view of the preliminary objection no. 6 in the written statement? OPD
4. Whether the plaintiff is entitled for the decree of declaration against defendant nos.1 and 2, as stated in para no. (I) of the prayer clause in the plaint? OPP
5. Whether the plaintiff is entitled for a decree of specific performance against defendant nos. 1 and 2 on the basis of the agreement to sell dated 09.10.2006, as stated in para no.
(ii) of the prayer clause in the plaint? OPP
6. Whether the plaintiff is entitled for the decree of possession against defendant nos. 1 and 2 on the basis of the agreement to sell dated 09.10.2006, as stated in para no. (iii) of the prayer in the plaint? OPP
7. Whether the plaintiff is entitled for the decree of damages against defendant nos. 1 and 2, as stated in para no. (iv) of the prayer in the plaint, if yes, then at what rate and for what period? OPP Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 2 of 26
8. Whether the plaintiff is entitled for interest on damages, if so, then at what rate and for what period? OPP
9. Whether the plaintiff is entitled for the decree of permanent injunction against defendant nos. 1 and 2, as prayed in para no. (v) of the prayer in the plaint? OPP
10. Whether the plaintiff is entitled for the decree of permanent injunction against defendant nos. 1 and 2, as prayed in para no. (vi) of the prayer in the plaint? OPP
11. Whether the plaintiff is entitled for the decree of permanent injunction against defendant nos. 1 and 2, as prayed in para no. (vii) of the prayer in the plaint? OPP
12. Whether the plaintiff is entitled for the decree of permanent injunction against defendant nos. 1 and 2, as prayed in para no. (viii) of the prayer in the plaint? OPP
13. Whether the plaintiff is entitled for the decree of permanent injunction against defendant nos. 1 and 2, as prayed in para no. (ix) of the prayer in the plaint? OPP
14. Relief.
1. The above said points of controversy have come up on the pleadings of the parties.
CASE OF THE PLAINTIFF
2. As per plaintiff, on 9.06.2006 plaintiff through property dealer entered into agreement to sell with defendants No.1 in the presence Defendant No.2 in respect of property bearing House No. F196, Gali No. 19, Sadh Nagar, Palam Colony, New Delhi more specifically shown in the site plan attached with the plaint for total consideration amount of Rs Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 3 of 26 8,50,000/. A sum of Rs.25,000/ paid as part consideration to the defendant no1 on 09.06.2006 and another sum of Rs 1,00,000/ was paid on 10.06.2006 both against acknowledgment and receipt. Plaintiff at the desire of defendant no1 & 2 further paid part payments in three installments of Rs 1,00,000/, Rs 90,000/ and Rs 15,000/ and an agreement to sell was executed on 23.06.2006 agreeing that Sale Deed would be executed within 90 days that is by10.09.2006 upon balance payment. It has been claimed that in all Plaintiff had made part payment of Rs 2,30,000/ (but the way it has been pleaded it comes to Rs 3,30,000/).
3. On 31.08.2006 Defendants illegally got issued legal notice to Plaintiff thereby canceling the agreement. Plaintiff not only immediately sent reply but also met Defendants along with property dealer and where it was agreed that Defendant No.1 would execute the sale Deed on 11.09.2006 (10.09.2006 was stated to be Sunday). Plaintiff and her husband along with property dealer by giving prior information to the defendant no1 & 2 had visited the office of SubRegistrar, Kapashera on 11.09.2006 with balance payments and got the receipt for registration of the sale deed from the office of the SubRegistrar but the defendant no1 & 2 deliberately and willfully did not come to the office of SubRegistrar.
4. In the same evening when plaintiff, her husband and property dealer confronted the defendants no1 & 2, they disclose their intention of not selling the property to plaintiff and that defendant no2 has already got the sale deed executed in his favor from defendant no1. When Plaintiff demanded her money back, Defendant no.2 on behalf of defendant no1 had issued account payee cheque bearing no271909 dated 6.10.2006 for a sum Rs. 2,30,000/ drawn on HDFC Bank Ltd. D5, Mahavir Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 4 of 26 Enclave, Dabri Road, Palam, New Delhi (it is not clear on which date this cheque was given whether on 11.09.2006 or on 6.10.2006).
5. On 9.10.2006 Defendant No.2 agreed to sell the said suit property at the same consideration amount and adjusting the already paid sum of Rs 2,30,000/ as part payment and executed the agreement dt 9.10.2006 in his own handwriting and handed over the possession of one room and kitchen on the first floor of the suit property following which Plaintiff kept her articles/goods in the said room and had agreed to execute sale deed and agreed to execute Sale Deed on 12.10.2006 and hand over possession of remaining portion failing which he will pay double the amount (though it is not explained as to how all of sudden Defendant No.2 agreed to sell the property when just two days ago he refunded the part payment by way of cheque No.271909 for Rs 2,30,000/). Subsequently, Plaintiff and her husband were denied access to that room, were threatened and her articles/goods were removed and possession of one room and kitchen was taken back.
6. As per direction, instruction and order of the Defendants, the said cheques bearing No. 271909 for Rs 2,30,000/ was presented for encashment but was dishonored with remarks stop payment by drawer (it is further not understandable as to why cheques were presented when Defendant has agreed to sell the property). After dishonouring of the cheque, Plaintiff and her husband met the defendants and Defendants No.2 executed paymentcumpromise that he would pay the balance amount of Rs 1,30,000/ by 10 th December 2006 and the husband of the Plaintiff executed receiptcumpromise that on receipt of balance payment of Rs 1,30,000/ he would return the cheque bearing No. 271909 for Rs 2,30,000/ (here Plaintiff is silent that Defendant Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 5 of 26 paid Rs 1,00,000/ though paymentcumpromise reflects so otherwise there would not have been talk of return of "balance" payment of Rs 1,30,000/).
7. Defendants did not make the 'balance' payment of Rs 1,30,000/ by 10th December 2006 with dishonest intention and therefore illegal and mischievous act and conduct of the Defendants have revived the contract dt 09.10.2006. Hence, the present suit for declaration (not in title), specific performance, possession, injunction and consequential relief.
CASE OF THE DEFENDANTS
8. Defendants are defending the case stating that Plaintiff has filed the present suit for specific performance of the agreement which has been canceled by the parties and Plaintiff had received back the money. It has been admitted that agreement to sell dt 23.06.2006 was entered into by which Defendants had agreed to sell the property and a total sum of Rs 1,25,000/ was received. Plaintiff did not make part payment of Rs 2,05,000/ in three installments. Plaintiff never paid Rs 90,000/ and Rs 25,000/. As per Defendant Plaintiff paid Rs 25,000/ on 9.06.2006, Rs 1,00,000/ on 10.06.2006. Plaintiff issued two cheques bearing No.034986 and 034987 for Rs 50,000/ each which were duly encahsed but another cheque bearing No.034988 for Rs 75,000/ drawn on State bank of Patiala was returned unpaid with remark "insufficient fund". So Plaintiff paid total sum of Rs 2,25,000/ out of which she has taken back Rs 10,000/ by way of cheque.
9. When the cheque for Rs 75,000/ was dishonoured, Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 6 of 26 Defendants issued legal notice dt 31.08.2006 for cancellation of the agreement intimating that earnest money of Rs 25,000/ stood forfeited and balance could be taken back any time. Plaintiff was defaulter in making the payment as the cheque bearing No.034988 dt 02.08.2006 for Rs 75,000/ issued in part payment towards the agreement was returned unpaid and since Plaintiff had no capacity to pay, therefore, agreement to sale was canceled.
10. When earnest money was forfeited, Plaintiff started threatening and pressurising through bad elements to transfer the suit property in her name and in connivance with her husband, property dealer and two unidentified persons forced the Defendant No.2 to execute the alleged undertaking dt 9.10.2006. Complaint in this regard was made to police. Plaintiff pressurised the Defendants by sending goons who coerced and extracted the cheques for Rs 2,30,000/. The payment for the same was stopped as the amount of Rs 2,30,000/ was not due as Plaintiff had paid total sum of Rs 2,25,000/ out of which Rs 10,000/ was taken by her son from the Defendant No.2 when Plaintiff and her husband was in need of money for medical treatment.
11. The agreement dt 9.10.2006 has been denied to have been executed freely but under the circumstances mentioned above and witnesses therein have been inducted later on. Paymentcumpromise was executed by the Defendant No.2 and Defendant returned Rs 1,00,000/ in cash to the husband of the Plaintiff and promised to return the balance amount of Rs 1,30,000/ (it has not been explained as to how after the alleged undertaking dt 9.10.2006 situation changed towards execution of paymentcumreceiptcumpromise). The husband of the Plaintiff had agreed to return the aforesaid cheque for Rs Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 7 of 26 2,30,000/ to the defendants.
12. As per Defendant Rs 10,000/ was already paid to the son of the Plaintiff and Rs 1,20,000/ was ready with the Defendants to pay the same to the husband of the Plaintiff and on several contact on phone husband of the Plaintiff avoided to receive the payment on the pretext of being out of town, after which Defendant got prepared banker's cheque No.008460 dt 17.12.2006 for Rs 1,20,000/ and deposited the same in the account of the Plaintiff. As there was no agreement dt 9.10.2006 legally valid executed voluntarily with free will/consent, therefore, suit is liable to be dismissed.
CASE IN REPLICATION
13. Plaintiff in replication reiterated the averments of the plaint and denied the contents of the written statement. Plaintiff specifically pleaded that no relief of declaration has been sought (though the first prayer of the plaint is of declaration) but did not deny specifically or otherwise dishonouring of cheque for Rs 75,000/, her son taking back Rs 10,000/ or receipt of Rs 1,00,000/ in cash at time of execution of payment cumpromise.
PROCEEDINGS
14. Initially Plaintiff has also impleaded property dealer and the SubRegistrar as Defendants No.3 and 4 respectively However, Defendant No.4 was dropped from the case by Plaintiff on 20.01.2007 and vide order dt 1.06.2007 Defendant No.3 was held to be not necessary party and accordingly he was also dropped from the array of Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 8 of 26 Defendants. Subsequently Defendants No.1 and 2 were proceeded against exparte vide order dt 24.10.2007 and exparte evidence was recorded. On application of the Defendant exparte proceedings were set aside vide order dt 29.08.2008. Thus evidence recorded during exparte proceedings are not being taken into consideration.
EVIDENCE OF PARTIES
15. In support of her case Plaintiff examined PW1 Sh Naresh Kumar the Assistant Ahlmad from the Ld. MM who brought the record of criminal complaint case No.163/07 u/s 406/420/506/34 IPC and Complaint case No.1906/1 under section 406/420/506/120B/34 IPC .In both the case FIR was directed to be registered against the Defendants.
16. PW2 Sh Umesh Kumar an UDC from the Sub Registrar Office who brought the record regarding receipt No.50850 dt 11.09.2006 for Rs 12/ issued in favour of Smt Geeta Devi for inspection of the record form the year 1997 to 2006 of BOOK No.1.
17. PW3 Constable Yashveer Singh brought the original general complaint registered for the year 2006 by PS Dabri wherein at serial no. 38 entry was made of complaint filed by Plaintiff against Defendants regarding property dispute on 11.11.2006 and at serial No. 46 entry of complaint by Plaintiff against Defendant No.2 on 2nd January 2007 for extending threat was entered.
18. PW4 ASI Jai Narayan from Vigilance Office brought original letter No. 2581/HASR/Vigilance dt 7.08.09 signed by Commissioner of Police, Vigilance Delhi Ex PW4/A. Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 9 of 26
19. PW5 is the Plaintiff herself and she deposed on the lines of her plaint and she also deviated even from her own pleading which has been noted during the course of recording of findings on issues. She was cross examined by the defendants.
20. PW6 Shri Puran Chand Verma the property dealer almost deposed on the lines of the plaint, however, with regard to photograph of possession he differed with PW5.
21. Defendants in support of their case examined only defendant No.2 as DW1 and deposed on the lines of written statement. He was also cross examined by the Plaintiff.
22. To avoid repetition respective testimonies of the witnesses as per requirement have been discussed while recording issue wise findings.
23. After hearing arguments of the Counsel for parties and going through the pleadings, evidence and material on record, issue wise findings are as under:
ISSUE No. 1: Whether the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction, in view of the preliminary objection no. 4 in the written statement? OPD
24. Onus to prove this issue is upon the defendant. Plaintiff has filed the present suit for specific performance, possession, declaration, permanent injunction, damages and consequential relief. Plaintiff has valued the suit for the purpose of court fee and jurisdiction for the relief of specific performance and possession @ Rs.8,50,000/ and for the relief of Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 10 of 26 declaration @ Rs.200/ and for the purpose of permanent injunction @ Rs.130/ each. Plaintiff has accordingly paid the court fees.
25. Defendant no. 2 examined himself as DW1 and in examinationin chief he has not uttered a single word in respect of valuation of the present suit. Once defendant himself has not stated single word in his evidence certainly plaintiff is not required to crossexamine DW1 on the said aspect.
26. As per the Court Fees Act and Suit Valuation Act, plaintiff is required to value the suit for specific performance in terms of Section 7(x)
(a) of the Court Fees Act and in terms of Section 8 of the Suit Valuation Act, value the suit for both the purposes should be same.
27. As per Section 7(x)(a) of the Court Fees Act, the plaintiff is required to value the suit in accordance with consideration amount agreed between the parties. It is the case of the plaintiff that defendant has agreed to sell the property for total consideration amount of Rs.8,50,000/ and therefore, in the suit for specific performance plaintiff has accordingly valued the suit for Rs.8,50,000/ for relief of specific performance and possession which is a consequential relief. So far as relief of declaration and permanent injunction is concerned, plaintiff has accordingly valued the suit @ Rs.200/ and Rs.130/.
28. No fault could be found with the valuation of the suit. Accordingly, issue no. 1 is decided against the defendants and in favour of the plaintiff.
Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 11 of 26 ISSUE No. 2: Whether the suit is liable to be dismissed as the same has been filed in collusion with Sh. Puran Singh Verma, C/o Verma Property Dealer, Sadh Nagar, Palam Colony, New Delhi, in view of the preliminary objection no. 5 in the written statement? OPD
29. Onus to prove this issue is upon the defendant. It has already been seen that defendant has examined only one witness i.e. defendant no. 2 as DW1 and in his entire examinationinchief by way of affidavit Ex. DW1/A the said witness has deposed only one single line that plaintiff has filed case against him and defendant no. 1 in collusion with PW6 in order to extract money from him. No suggestion to the contrary has been given to the said witness by the plaintiff. The evidence led by the defendant is not sufficient to prove collusion of the plaintiff with property dealer. Collusion involves chain of events where the specific role has to be assigned to the perpetrator. No doubt defendant has alleged that plaintiff in connivance with her husband, Sh. Puran Chand and other person forced him to execute the undertaking Ex. PW1/10. It has been further deposed by DW1 that he had lodged complaint with the police, copy of which is Mark D1 and D2. The police complaints Mark D1 and D2 has not been proved in accordance with law but the same can be read against the party producing the same. In the first complaint i.e. Mark D1 which is infact undated there is no allegation against the property dealer Puran Chand Verma. The averment with regard to Puran Chand Verma is that he had brought this deal to her and professed himself to be the property dealer and running business as proprietor under the name and style of Verma properties. Although complaint has been made against Puran Chand Verma also but in the complaint nowhere it has been mentioned that threatening was extended by the said Puran Chand Verma. In the next complaint Mark D2 which is dated 10.10.2006 name of Puran Chand Verma has been mentioned as accused persons who along Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 12 of 26 with other persons forced him to write possession letter in favour of Smt. Geeta Devi, again the allegation is general. No specific role has been assigned to Puran Chand Verma.
30. The cumulative effect of testimony of DW1 is not sufficient to write finding of collusion between plaintiff and Puran Chand Verma. Accordingly, issue no. 2 is also decided against the defendant and in favour of the plaintiff.
ISSUE No. 3: Whether the suit is liable to be dismissed for non joinder of necessary party, in view of the preliminary objection no. 6 in the written statement? OPD
31. Onus to prove this issue is upon the defendant. In para 6 of the preliminary objection of written statement, the defendant has pleaded that suit is liable to be dismissed for non joinder of Sh. Puran Chand Sharma (husband of the Plaintiff) as necessary party.
32. As per plaint almost everywhere husband of the plaintiff has accompanied the Plaintiff so much so that paymentcumpromise and receiptcumpromise Ex PW2/1 and PW2/2 was executed in his presence and between him and Defendant No.2. Relief of declaration qua these documents has also been claimed by the Plaintiff.
33. It is no longer resintegra that necessary party is one whose presence is indispensable to the constitution of the suit and without whom no effective order can be passed. A proper party is one in whose absence an effective order can be passed but whose presence is necessary for a complete and final decision on the question involved in the proceedings.
Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 13 of 26
34. Two tests have been laid down for determining the question whether a particular party is necessary to a proceedings ( AIR 1953 SC
521):
(i) There must be right to some relief against such party in respect of the matter involved in the proceeding in question; and
(ii) It should not be possible to pass an effective decree in absence of such a party.
35. In the present case admittedly paymentcumpromise and receiptcumpromise was executed by Puran Chand Sharma husband of the Plaintiff but that was done for and on behalf of Plaintiff and therefore if the validity of these documents are or are not disturbed, Puran Chand Sharma will not be affected. It is the right of the Plaintiff which is going to be affected. Thus in the opinion of this court Puran Chand Sharma was only an agent for plaintiff and therefore he is neither necessary party nor proper party for the purpose of the present case.
In view thereof, issue no. 3 is also decided against the defendant and in favour of the plaintiff.
ISSUE No. 4: Whether the plaintiff is entitled for the decree of the declaration against defendant no1 & 2 as stated in para no(i) of the prayer clause in the plaint ? OPP
36. Onus to prove this issue lies upon the plaintiff. In para (I) of the prayer clause of the plaint, Plaintiff has asked for relief of declaration to the effect that "paymentcumpromise" and "receiptcumpromise" be declared as null and void. Plaintiff in para no21 & 22 has pleaded that when the cheque bearing no271909 dated 06.10.2006 for a sum of Rs 2,30,000/ drawn on HDFC Bank was dishonored, plaintiff and her Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 14 of 26 husband approached the Defendants No. 1 & 2, defendant no2 on behalf of defendant no1 had executed the paymentcumpromise in which defendant no2 has promised to return the balance payment to the plaintiff. The husband of the plaintiff had executed receiptcumpromise whereby agreeing to return the aforesaid cheque to the Defendants No 1 & 2 when the defendants no1 & 2 would make the balance payment of Rs. 1,30,000/ on or before 10th December 2005, but the defendants did not honour the transaction.
37. Plaintiff as PW5 in her examination in chief by way of affidavit Ex. PW5/A has deposed in para 13 as follows: "That the husband of the deponent was called in the P.S. Dabri at 11 p.m. when he reached to P.S., the defendant No. 2 was present with two advocates and police officials finding the husband of the deponent alone they got signed without making payment, compromised and receipt compromise from the husband of the deponent under threat and pressure without knowledge, consent or authority of the deponent. The copy of the same was earlier exhibited as Ex. PW2/1 and Ex. PW2/2 by the husband of the deponent during exparte evidence and the husband of the deponent lodged the complaint for the same, the deponent identified the signature of her late husband on Ex. PW2/1 & 2 as she is conversant with the signature of her late husband."
38. From the pleading as noted above and testimony as quoted above it is clear that plaintiff has taken contradictory and completely Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 15 of 26 different stand with regard to circumstances in which said paymentcum promise and receiptcumpromise was executed. The deposition made in the affidavit is diametrically opposite to the averment made in the pleading by the plaintiff. They are not in conformity with each other. In these circumstances the testimony of plaintiff does not inspire confidence.
39. Interestingly, in response to objection that Plaintiff has not paid the court fees upon the relief of declaration as the documents has value of Rs 1,00,000/, Plaintiff in replication claimed that she has not sought any relief of declaration. Plaintiff in her plaint as well as in her affidavit Ex PW5/A has not denied the receipt of Rs 1,00,000/ as mentioned in the said paymentcumreceiptcum promise Ex PW2/1 and Ex PW2/2 (exhibited at the time when defendant was proceeded against exparte and was subsequently also marked as MarkB & C in the testimony of DW1). Strangely in the cross examination of DW1 no suggestion either on the lines of pleading or on the lines of evidence of PW5 about paymentcumreceiptcum promise Ex PW2/1 and ExPW2/2 was given. In fact Plaintiff has not at all cross examined DW1 on this document whereas DW1 categorically deposed that aforesaid receipt MarkB & C was executed on payments of Rs 1,00,000/ in cash to the husband of the Plaintiff. Repeatedly it has been pleaded that the said receipt was executed for making the balance payment of Rs. 1,30,000/ by the defendants to the plaintiff. The repeated use of the word 'balance' ipsofacto proves that plaintiff had received a sum of Rs. 1,00,000/ and the receipt was executed for making the 'balance' payment of the Rs. 1,30,000/. No ground has been pleaded in the plaint as to why the said payment cum promise and receipt cum promise be declared null and void. Going by the plaint the payment cum promise and receipt cum Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 16 of 26 promise was executed voluntarily but going by the evidence of PW5 it is deposed to have been executed under force and coercion.
40. The result of this dichotomy is that plaintiff and her version and evidence cannot be believed qua these documents Ex PW2/1 and Ex PW2/2 also marked as Mark B & C. Hence, in view thereof, issue no4 is hereby decided against the plaintiff and in favour of defendants.
ISSUE No. 5: Whether the plaintiff is entitled for a decree of specific performance against defendant 1& 2 on the basis of the agreement to sell dated 09.10.2006 as stated in para (ii) of the prayer clause in the plaint ? OPP
41. Onus to prove this issue upon the plaintiff. In para 21 and 22 of the plaint Plaintiff has set out her case for specific performance by pleading that since defendants did not make the "balance" payment of Rs 1,30,000/ therefore the malafide, illegal and dishonest act of the Defendants has revived the agreement dt 9.10.2006.
42. Irrespective of question whether the agreement dt 9.10.2006 was entered voluntarily as claimed by Plaintiff or under fear, pressure or coercion as claimed by defendant, the use of the word "revival" presupposes that agreement dt 9.10.2006 was canceled by parties on agreeing to receive back the payment of Rs 2,30,000/ and in pursuant to the said agreement (to cancel) husband of the plaintiff has received the sum of Rs 1,00,000/ and paymentcumreceiptcum promise Ex PW2/1 & ExPW2/2 also marked as Mark B & C was executed by the husband of the Plaintiff and defendant No.2. thus, there can be no question of revival unless there is cancellation of agreement.
Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 17 of 26
43. A contract can be discharged either by actual performance or by impossibility of its performance or by agreement or by breach of it.
44. Section 62 of the Indian Contract Act prescribes that if parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. Thus, section 62 implement what is known as doctrine of novation.
45. When the parties to a contract agree to substitute the existing contract with a new contract, that is called novation. In the well known case of Scarf V Jardine (1882) 7 AC 345 Lord Selborne explained the meaning and effect of novation in the following words:
".........there being a contract in existence, some new contract is substituted for it either between the same parties or between different parties, the consideration mutually being the discharge of the old contract......"
46. Plaintiff herself has pleaded novation not in so many words but the way she has pleaded her case give rise to application of doctrine of novation. It has already been noted above that nothing has been explained in plaint or in evidence as to why cheque bearing No.271909 dt 6.10.2006 for Rs 2,30,000/ was presented subsequent to new contract dt 9.10.2006.
47. In the plaint it has been claimed that when the cheque dt 6.10.2006 was dishonored, plaintiff and her husband met defendants and paymentcumreceiptcumpromise Ex PW2/1 and Ex PW2/2 also marked Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 18 of 26 as Mark B & C came to be executed. In the said Ex PW2/1 and Ex PW2/2 it has been mentioned that an amount of Rs 1,00,000/ in cash was being returned out of total sum of Rs 2,30,000/ and balance Rs 1,30,000/ would be paid on or before 10th December 2006 and agreement to sell stands canceled. It was further undertaken by the husband of the Plaintiff that he would return the cheque bearing No.271909 on receipt of balance payment of Rs 1,30,000/.
48. Thus, in the facts and circumstance as stated above old contract/agreement to sell of the property (be it of 23.06.2006 or of 9.10.2006) stood canceled and substituted with new agreement of refund in consideration of cancellation of former agreements to sell. It is not the case of the Plaintiff that she is not bound by the act of her husband or that her husband has acted beyond his implied authority. In fact perusal of the plaint gives the impression that Ex PW2/1 and PW2/2 was executed in her presence. No doubt in her evidence Plaintiff has changed her stand qua these documents Ex PW2/1 and Ex PW2/2 by saying that same was obtained at Dabri Police station by the defendants, police men and his advocates. But this version has already been held herein before as untrustworthy and beyond pleadings. Therefore, Ex PW2/1 and Ex PW2/2 is binding upon the Plaintiff and amounts to discharge of agreement to sell suit property (be it of 23.06.2006 or of 9.10.2006) and substituted by new contract for refund of balance payment by 10 th of December 2006 breach of which, if any, gives remedy to Plaintiff to sue for recovery with damages.
49. Case of the Plaintiff is also covered by Section 63 of the Indian Contract Act which provides that every promisee may dispense with or remit, wholly or in part, the performance of the promise made to Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 19 of 26 him, or may extend the time for such performance or may accept instead of it any satisfaction which he thinks fit.
50. The effect of the provision of Section 63 is that the party who has right to demand the performance of a contract may, apart from other, accept any other satisfaction instead of performance. Here Plaintiff has agreed to be satisfied with the refund of entire money paid by her to the Defendant instead of performance of the agreement to sell of the suit property. Once she through her husband had agreed to refund of money paid, the agreement to sell stood discharged and therefore performance thereof cannot be sought by Plaintiff. The only remedy available in case of breach of promise made in Ex PW2/1 and Ex PW2/2 was to sue for recovery and damages.
51. When case of the Plaintiff is analyzed from other aspect, that also disentitle the Plaintiff from obtaining the relief of specific performance. Defendants got served legal notice dated 31.08.2006 Ex PW1/4. In para 4 of the said notice defendant had averred that a cheque of Rs 10,000/ bearing no239132 dated 03.07.2006 was given to the Plaintiff as the same was required by her. Plaintiff in the reply Ex PW1/5 to the corresponding para has admitted the averment of para no4 of the notice. In the very said reply she has also admitted that the cheque for Rs 75,000/ dishonored but has pleaded that as Defendants failed to hand over the possession of one room after receipt of Rs 2,00,000/ as agreed orally, so the cheque for Rs 75,000/ was got dishonoured. Thus, it could be seen that the story of possession being one of the condition agreed orally subsequently has not at all been pleaded by the plaintiff in her plaint nor did she aver about the dishonor of cheque of Rs. 75,000/ or of Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 20 of 26 having received sum of Rs 10,000/ as admitted in the said reply. The taking back of Rs. 10,000/ reduces the part payment to Rs. 2,20,000/ which has not at all been pleaded by the plaintiff. In order to seek discretionary relief plaintiff is required to speak the truth. This amounts to not coming to the court with clean hands.
52. Defendants have denied the execution of the agreement dt 09.10.2006 voluntarily. It was stated to be executed under fear, force and compulsion. Plaintiff in the complaint made to police on 13.11.2006 mark 'B' has stated that in the evening of 11.09.2006 when plaintiff met defendants following Defendants failure to come to Sub Registrar Office, defendants said that they did not want to sell the property as the defendant no2 had got the property transferred in his own name and therefore, entire dealing would be done by defendant no2. It has been further stated that defendant No.2 issued cheque for Rs. 2,30,000/ dated 06.10.2006 and when the said cheque was presented for encashment it returned with the remarks "payment stopped by the drawer". When defendant no2 was asked about this stop payment, he expressed his inability to repay and on the same very day he delivered the possession of one room and kitchen on the first floor of the suit property to the plaintiff stating that if he would not be able to repay Rs. 2,30,000/ by 12.10.2006 in that event he would deliver the possession of remaining portion and execute the sale deed of the property after receiving the balance payment.
53. As per this complaint the aforesaid promise was made by the defendant no2 after the dishonoring of the cheque. It has come on record that the said cheque was dishonored on 17.10.2006 then, how it is Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 21 of 26 possible for defendant no2 that he would make such promise of payment by 12.10.2006 or execute agreement dt 9.10.2006. From the complaint dt 13.11.2006 Mark B it is also evident that plaintiff has not spoken about the agreement dated 09.06.2006 made in writing by Defendant No.2. Plaintiff's complete silence about the agreement to sell dated 09.06.2006 in her first complaint to police makes it possible that subsequently said agreement was forcibly written. Even in the subsequent complaint dated 20.11.2006 to police plaintiff is silent about the written agreement dated 09.10.2006. Plaintiff has come to this court for the specific performance of the written agreement to sell dated 09.10.2006 which defendant has denied to have been voluntarily executed. Plaintiff's silence about the written agreement dated 09.10.2006 in both of her complaints to police does lend credence to the submission of the defendant about the agreement got written forcibly. These complaints have been filed on record by the Plaintiff and therefore this document can be read against Plaintiff. Even otherwise Plaintiff herself summoned PW3 with record of having made such complaint to Police.
54. The sequence of event as narrated by the plaintiff does lend credence to the version of the defendant. One fails to understand as to how when defendants have agreed to return the payment made earlier amounting to Rs 2,30,000/ and in fact issued the cheque for said amount on 06.10.2006, all of sudden turned around to execute the new agreement to sell dated 09.10.2006. This anomaly has not been explained by the plaintiff. On oral inquiry during the course of arguments it was explained that since the cheque was dishonored as the defendants had no intention to make the payment therefore, defendants executed the agreement to sell dated 09.10.2006. But this explanation is not fitting into Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 22 of 26 the circumstance because the aforesaid cheque was dishonored on 17.10.2006. Therefore, if the explanation is taken into consideration then the said new agreement to sell should have been executed after 17.10.2006 and not on 09.10.2006 as has been alleged by the plaintiff. There is no other explanation as to how all of sudden defendant no2 executed the agreement to sell dated 09.10.2006, when particularly, cheque for repayment was given to the plaintiff.
55. There is other discrepancy which has also not been explained. Plaintiff has pleaded that she received possession of one room and kitchen on the first floor of the suit property and Plaintiff has exhibited photographs Ex PW1/12 to Ex PW1/16 and it has been deposed by her that the negatives have been stolen by defendant after breaking open of the room. PW6 property dealer also relied upon the said photographs Ex PW1/12 to Ex PW1/16 and deposed that photograph was taken by digital camera. Both version for absence of negative are irreconcilable and makes the case of the Plaintiff untrustworthy.
56. The cumulative effect of all above referred pleading and evidence is that Plaintiff has not been able to prove by reliable evidence that agreement to sell dt 9.10.2006 was executed voluntarily. Normally it is the party who alleges force/coercion carries the onus to prove but in the present case Plaintiff herself has created such situation which put onus upon the Plaintiff to prove that agreement dt 9.10.2006 was executed voluntarily. Plaintiff herself has brought her case within the doctrine of novation as contemplated in Section 62 of the Indian Contract Act which discharged the former agreement to sell, even if it is assumed that such agreement was there. The facts of the case also make out case for Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 23 of 26 application of Section 63 of the Indian Contract Act as per which performance of agreement to sell was dispensed with by Plaintiff by agreeing to accept refund of money paid instead of performance. Concealment of fact and material differences in the stand of the Plaintiff has also been noted above.
In view of the above, issue No.5 is hereby decided against the Plaintiff and in favour of the Defendants ISSUE No. 6: Whether the plaintiff is entitled for the decree of possession against defendant nos. 1 and 2 on the basis of the agreement to sell dated 09.10.2006, as stated in para no. (iii) of the prayer in the plaint? OPP
57. In view of the findings recorded on issues no. 4 and 5, issue No.6 is hereby decided against the Plainitff and in favour of Defendants.
ISSUE No. 7: Whether the plaintiff is entitled for the decree of damages against defendant nos. 1 and 2, as stated in para no. (iv) of the prayer in the plaint, if yes, then at what rate and for what period? OPP
58. Onus to prove this issue is upon the Plaintiff. It has already been held above that the agreement to sell dt 9.10.2006 was canceled so there cannot be damages for breach of said agreement. As far as agreement for refund is concerned, it has already come on record that a sum of Rs 1,00,000/ was received on the day of execution of the Ex PW2/1 and Ex PW2/2 and balance payment of Rs 1,20,000/ has been credited into the account of Plaintiff. DW1 specifically deposed that he was ready with money but husband of the Plaintiff was avoiding to receive the same and therefore finding no option he got prepared bankers cheque and credited into the account of Plaintiff. DW1 has not at all been crossed examined on this aspect.
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59. It is settled law that a party cannot take advantage of his own wrong. It stood proved as DW1 was not cross examined on this point that husband of the Plaintiff made himself unavailable and prevented the Defendants No.2 from making the payment and therefore defendant deposited the amount in the account of Plaintiff. In any case entire amount has already been refunded and therefore there is no breach of agreement to refund and Plaintiff is not entitled to damages.
Hence, the issue No. 7 is hereby decided against the Plaintiff and in favour of Defendants ISSUE No. 8: Whether the plaintiff is entitled for interest on damages, if so, then at what rate and for what period? OPP ISSUE No. 9: Whether the plaintiff is entitled for the decree of permanent injunction against defendant nos. 1 and 2, as prayed in para no. (v) of the prayer in the plaint? OPP ISSUE No. 10: Whether the plaintiff is entitled for the decree of permanent injunction against defendant nos. 1 and 2, as prayed in para no. (vi) of the prayer in the plaint? OPP ISSUE No. 11: Whether the plaintiff is entitled for the decree of permanent injunction against defendant nos. 1 and 2, as prayed in para no. (vii) of the prayer in the plaint? OPP ISSUE No. 12: Whether the plaintiff is entitled for the decree of permanent injunction against defendant nos. 1 and 2, as prayed in para no. (viii) of the prayer in the plaint? OPP ISSUE No. 13: Whether the plaintiff is entitled for the decree of permanent injunction against defendant nos. 1 and 2, as prayed in para no. (ix) of the prayer in the plaint? OPP
60. In view of the findings recorded on issues No. 4, 5 and 7, issues No. 8 to 13 are hereby decided against the Plaintiff and in favor of the Defendants.
Suit no. 70/16 Geeta Devi vs. Baikunthi Devi Page No. 25 of 26 RELIEF In view of the findings recorded herein before on all issues, suit of the Plaintiff is hereby dismissed. Cost of the suit is awarded in favor of the Defendants.
Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ13(Central)/THC
(Judgment contains 26 pages) Delhi/10.05.2016
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