Delhi High Court
Raman Kumar vs Neelam Nagpal & Others on 13 September, 2012
Author: V.K.Jain
Bench: V.K.Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : September 13, 2012
+ CS(OS) No. 1743/2010
RAMAN KUMAR ..... Plaintiff
Through : Mr. V.K.Sharma, Adv.
versus
NEELAM NAGPAL & OTHERS ..... Defendants
Through : Mr. Alok Sharma, Mr. Ajit Kumar
Singh, Adv. For D-1.
Mr. Rajesh Anand, Adv. for D-2 to 4.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (ORAL) IA 11389/2010(O.39 R.1 & 2 CPC) The case of the plaintiff is that late Shri K.L.Nagpal, husband of defendant No.1 and the father of defendants 2 to 4 had, vide Agreement to Sell dated 26.04.2004, agreed to sell B-105, Derawal Nagar, Delhi, to him for a consideration of Rs.25 lakhs and the whole of the consideration had been paid to him in his lifetime. In terms of the Agreement to Sell dated 7th August, 2004, the plaintiff claims to have paid Rs.15 lakhs to late Shri K.L.Nagpal on 26th April, 2004, Rs.3 lakhs on 07.08.2004, Rs.2 lakhs on 18 th March, 2005, another Rs.2 lakh on CS(OS)1743/2010 Page 1 of 10 20th March, 2005, Rs.2 lakhs on 21st March, 2007 and Rs.1 lakh on 19 th March, 2008.
This is also the case of the plaintiff that on payment of Rs.3 lakhs on 7th August, 2004 another agreement was executed by late Shri K.L.Nagpal in his favour thereby agreeing that 75% of the rent being received from the above property will be paid to the plaintiff. A General Power of Attorney is alleged to have been executed in favour of the plaintiff on that date. A Will with respect to the aforesaid property is also stated to have been executed by late Shri K.L.Nagpal in favour of the plaintiff on 19th March, 2008. Shri K.L.Nagpal expired on 27th March, 2008. The plaintiff is now seeking a declaration that he is the rightful owner in possession of the aforesaid property. He has also sought a direction to the defendants to execute the sale deed in his favour.
2. The suit has been contested by the defendants who have alleged that the documents relied upon by the plaintiff are forged and fabricated documents. They have denied the transaction set up in the plaint and have also denied the payments alleged to have been made to late Shri K.L.Nagpal from time to time.
3. A perusal of the Agreement to Sell dated 26th April, 2004 filed by the plaintiff would show that the following was the schedule of payment which late Shri K.L.Nagpal is alleged to have agreed with the plaintiff: CS(OS)1743/2010 Page 2 of 10
Amount Month
Rs.3 lakhs August, 2004
Rs.2 lakhs March, 2005
Rs.2 lakhs March, 2007
Rs.1 lakh March 2008
Thus, the seller, according to the plaintiff, agreed to accept the sale consideration in instalments spread-over about four years. Ordinarily, in the absence of special reasons, it is not usual for a person agreeing to sell an immovable property to accept the balance sale consideration in instalments spread over such a long duration and the sale consideration is agreed to be paid within a few months after the agreement is concluded between the parties. There is no explanation as to why late Shri K.L.Nagpal, agreed to accept the sale consideration in instalments spread over almost four years.
4. Admittedly, no payment by way of a cheque or pay order was made by the plaintiff to late Shri K.L.Nagpal. Ordinarily, in transactions for sale of immovable properties at least part-payment is made by way of cheque/draft so as to have unimpeachable documentary evidence of the transaction between the parties. Again, there is no explanation for not making even a part payment by way of cheque or demand draft.
CS(OS)1743/2010 Page 3 of 10
5. During the course of arguments on last hearing, I specifically asked the learned counsel for the plaintiff as to what was the source of payments alleged to have been made by the plaintiff to late Shri K.L.Nagpal, from time to time. An affidavit has been filed today in which it is alleged that the plaintiff had deposited two chit funds scheme with late Shri K.L.Nagpal and had deposited Rs.3 lakhs with him upto September, 2003 which he had to take from him. There is no averment to this effect in the plaint or in the Agreement to Sell filed by the plaintiff. If the plaintiff had to take Rs.3 lakhs from late Shri K.L.Nagpal, at the time of execution of the Agreement to Sell in his favour in April, 2004, this amount would have been adjusted, at the time of agreement itself, towards part-payment of the sale consideration. Moreover, no document has been filed by the plaintiff to show that he had to take Rs.3 lakhs from late Shri K.L.Nagpal by September, 2003.
It has been next alleged in the affidavit that the mother of the plaintiff sold jewellery sometimes in March, for purchase of the suit property. The affidavit is silent as to whom the jewellery was sold. There is no document evidencing sale of jewellery worth Rs.6 lakhs by the mother of the plaintiff sometimes in March-April, 2004. The affidavit does not disclose whether the payment for purchase of the jewellery was received in cash or by way of a cheque/pay order. The affidavit is silent as to where the money was kept if it was received in cash, before it was paid to late Shri K.L.Nagpal.
CS(OS)1743/2010 Page 4 of 10
It is next alleged in the affidavit that the plaintiff had received Rs.3 lakhs from one Ved Prakash at the time of purchase of this property. The affidavit does not disclose on which date the payment was allegedly received by him from Ved Prakash. There is no documentary proof of any payment having been received. The affidavit is silent as to whether this payment is received by cash or by way of cheque.
It is also alleged in the affidavit that the plaintiff borrowed Rs.2.5 - 3 lakhs from relatives and friends. Again, the affidavit does not disclose the particulars of relatives and friends from whom he claims to have taken loan of Rs.2.5 - 3 lakhs. No break up has been given as to how much amount was received from whom and when. The affidavit is conspicuously silent as to whether the aforesaid loan was taken in cash or by way of a cheque/draft.
It is alleged in the affidavit that the second payment of Rs.3 lakhs in August-September, 2004 was made from the chit fund scheme being run by late Shri K.L.Nagpal. A perusal of the receipt of Rs.3 lakhs filed by the plaintiff dated 7th August, 2004 would show that there is absolutely no indication in the aforesaid document that this amount was received by way of adjustment of the amount which was payable to the plaintiff in the chit fund account. This document purports to be a receipt of payment of cash recovered from the plaintiff and not a receipt of CS(OS)1743/2010 Page 5 of 10 adjustment of any amount which was payable by the seller to the purchaser. Again, there is no explanation from this apparent contradiction.
It is alleged in the affidavit that the balance amount of Rs.7 lakhs was paid by the plaintiff from his earnings by selling namkeens etc. and he was paying Rs.2 lakhs per annum to late Shri K.L.Nagpal. The plaintiff has not placed on record his Income-Tax Returns to indicate what was his income during the relevant years. He has not disclosed as to where the money was kept before it was paid by him to late Shri K.L.Nagpal. As noted earlier, the payment is alleged to have been made in instalments, of Rs.2 lakhs on 18th March, 2005, Rs.2 lakh on 20th March, 2005, Rs.2 lakh on 21st March, 2007 and Rs.1 lakh on 19th March, 2008. Thus, Rs.4 lakhs are alleged to have been paid in the financial year 2004-2005. If the plaintiff was not earning that much amount during the said financial year, he obviously could not have paid that amount to late Shri K.L.Nagpal. The plaintiff has not filed any bank statement or passbook to show that he had cash deposit in his bank account to make payment to late Shri K.L.Nagpal. Though it is stated in the affidavit that the plaintiff was paying Rs.2 lakh per annum to late Shri K.L.Nagpal, no payment is alleged to have been made in the financial year 2005- 2006. In these circumstances, I find it difficult to accept even prima facie, that the whole of the sale consideration was paid to late Shri K.L.Nagpal, in cash. CS(OS)1743/2010 Page 6 of 10
6. There are yet another aspects of the case which needs consideration in this regard. Admittedly, documents of title of the suit property are not in possession of the plaintiff. There is no explanation as to why the plaintiff did not insist on the original documents of title being handed over to him, before paying the whole of the sale consideration agreed between the parties. The learned counsel appearing for the defendants maintains that the original documents are with the defendants and he is carrying the same to the Court. He has also pointed that even photocopies of the documents of title are not with the plaintiff. This is yet another indicator which creates serious doubt on the truthfulness of the case set up in the plaint.
7. The case of the plaintiff is that the entire sale consideration was paid by him on 19th March, 2008. The present suit has been filed on 30th August, 2010. There is no explanation from the plaintiff as to why he waited for more than two years to come to the Court seeking specific performance of the agreement alleged to have been executed between him and late Shri K.L.Nagpal. If there is unexplained and unreasonable delay in seeking specific performance of an Agreement to Sell to an immovable property, that by itself may be a sufficient ground to deny specific performance considering the fact that the relief of specific performance is a discretionary relief and a person is not entitled to specific performance of an Agreement as a matter of right even if he is not otherwise able to prove execution of such an Agreement. The following view taken by Supreme CS(OS)1743/2010 Page 7 of 10 Court in Mrs. Saradamani Kandappan v. S. Rajalakshmi and Ors (2011) 2 SCC 18 is pertinent in this regard:-
"(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. Courts will also 'frown' upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser."
This is yet another reason, why prima facie I am of the view that the Agreement to Sell set up in the plaint cannot be allowed to enforce through the process of the Court.
9. For the reasons stated hereinabove, no prima facie case has been made out by the plaintiff for grant of ad interim injunction restraining the defendants from creating third party interest in the suit property. The application is, therefore, dismissed. The observations made in this order being prima facie and tentative, made with a view to decide this application, would not affect the decision of the suit on merits.
CS(OS)1743/2010 Page 8 of 10 IA 11716/2012(u/S.151 CPC for directions to take off w.s. of D-2 to D-4 from the record) This is an application for taking the written statement of defendants 2 to 4 off the record on the ground that the written statement is neither signed nor verified by the defendants and that is why the Division Bench vide its order dated 4th May, 2012 in FAO(OS) No. 8082/2012 was pleased to permit the plaintiff to move this Court for taking the written statement off the record.
The learned counsel for the plaintiff states that the written statement of defendants No.2 to 4 besides being defective was also not filed within the prescribed period of ninety days and for this reason also, it is liable to be taken off the record. A perusal of the previous orders would show that IA 4558/2011(O.VIII R.10 CPC) was filed by the plaintiff for closing the rights of defendants 2 to 4 to file the written statement on the ground that they had filed the written statement on 2nd July, 2011 and, therefore, had not been filed within the prescribed time. The Court directed the written statement to be taken on record subject to payment of Rs.5,000/- as costs. The order dated 19th December, 2011 was challenged by the plaintiff by way of FAO(OS) No. 188/2012. The learned counsel for the plaintiff/appellant stated before the Division Bench that since the written statement was defective, he would like to move this Court for the written statement of defendants 2 to 4 to be taken off record. The appeal was then dismissed as withdrawn. As a result of these orders, the order dated 19 th December, 2011, to the CS(OS)1743/2010 Page 9 of 10 extent delay in filing the written statement by defendants 2 to 4 was condoned became final and it is no more open to the plaintiff to contend that the written statement, being delayed cannot be taken on record. The only plea which is open to the plaintiff to contend that the written statement is otherwise defective being unsigned and unverified. On a perusal of the written statement of defendants No.2 to 4, I find that it has been signed by the learned counsels and not by defendants No. 2 to 4 and has not been verified at all. The defendants 2 to 4 are permitted to file a properly and signed written statement within two weeks subject to payment of Rs.10,000/- as costs.
This application stands disposed of in terms of this order. CS(OS) 1743/2010 Replication be filed within two weeks.
The parties to appear before the Joint Registrar on 5th November, 2012 for admission/denial of documents.
The matter be listed before Court on 28th February, 2013 for framing of issues.
V.K.JAIN, J SEPTEMBER 13, 2012 'sn' CS(OS)1743/2010 Page 10 of 10