Delhi District Court
Sh. Prakash Malhotra vs Sh. Jitender Malhotra on 17 February, 2017
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT
JUDGEII (CENTRAL):TIS HAZARI COURTS, DELHI
CS No. 488/16
New No. 20482/16
Sh. Prakash Malhotra
S/o Shri Kishan Lal Malhotra
R/o 665, Dr. Mukherjee Nagar,
Delhi110009.
........ Plaintiff
Versus
1. Sh. Jitender Malhotra
S/o Shri Bal Kishan Malhotra,
R/o H.No. 50, Ground Floor,
Old Gupta Colony,
Delhi110009.
2. Sh. Kamal Malhotra
S/o Sh. Bal Kishan Malhotra,
R/o C79, Third Floor,
Gali No.3, Mahendra Enclave,
Delhi.
...... Defendants
Date of Institution: 02.12.2008
Judgment Reserved on: 14.02.2017
Judgment Pronounced on: 17.02.2017
JUDGMENT:
(1) This suit has been filed by the plaintiff Prakash Malhotra against the defendants seeing Decree of Specific Performance of the Agreement dated 23.09.2006 which was subsequently amended on 10.04.2007 in favour of the plaintiff and against the defendants in Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 1 of 32 respect of the shop in the property bearing No.35, Edward Lines, Kingsway Camp, Delhi - 110009; Decree of Possession in respect of the ground, first and second floors of the property out of which the possession of first and second floor was delivered to the plaintiff in part performance of the agreement on receipt of amount of Rs.8 lacs; Decree of Permanent Prohibitory Injunction thereby restraining the defendants, their family members, servants, associates etc. from forcibly dispossessing the plaintiff from the suit property otherwise than following the due process of law.
Plaintiff's Case :
(2) The case of the plaintiff is that the defendants are real brothers who proposed to sell their property bearing shop No. 35, situated at Edward Lines, Kingsway Camp, Delhi110009 measuring 23.8 sq. yds. having built up portion consisting of ground floor, first floor and second floor, for sale consideration of Rs. 60 Lakhs, of the entire building with all the fittings and fixtures, and entered into an agreement to sell and purchase dated 23.09.2006 with the plaintiff. It is pleaded that the defendants received a sum of Rs. 8 Lakhs as earnest money out of the agreed sale price and the balance amount was payable at the time of execution and registration of the sale deed after obtaining necessary sale permission from the Land & Development Office, Govt.
of India and it was also agreed that the defendant would let the property duly mutated in their names and if they were unable to get the sale permission within 90 days, then the plaintiff would pay a sum of Rs.49 Lakhs and on receipt of the said amount of Rs. 49 Lakhs, the defendants Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 2 of 32 would transfer/ deliver the vacant physical possession to the plaintiff with all the fixtures and fittings and shall execute all the other documents and Rs. 3 Lakhs would be payable at the time of execution and registration of the sale deed. It is further pleaded that the defendants could not get the property mutated in their names nor sale permission was obtained however, they further received Rs.2 lakhs on 03.11.2006 and the terms of the agreement were further amended and duly recorded in the receipt dated 10.04.2007 wherein the sale price was agreed to be Rs.62 Lakhs and the defendant further received a sum of Rs.12 Lakhs. According to the plaintiff, on the date of execution of the lease deed, the defendant had received Rs.22 lakhs i.e. Rs. 20 lakhs in cash and Rs.2 lakhs by account payee cheque. It is also pleaded that it was further agreed between the parties that the period of completion of the sale be extended upto 01.06.2008 on which date, the plaintiff was to pay Rs.27 lakhs and the defendants were to execute the registered agreement to sell, General Power of Attorney, Special Power of Attorney etc. and the balance sale price of Rs. 3 lakhs was to be paid at the time of execution and registration of the sale deed. It is further pleaded that all other terms and conditions remained the same and the defendant thus also delivered the vacant physical possession of the first and second floors with staircase and the roof to the plaintiff in part performance of the agreement. It is pleaded that the ground floor was to be delivered at the time of execution and registration of the above documents however, the plaintiff was allowed to go to the roof for the use of toilet till finalisation of the transaction and thus before the date or 10.04.2007, the defendant had received Rs.32 lakhs. It is further pleaded Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 3 of 32 that the defendants also received Rs.2 lakhs on 14.10.2007 and hence in all, the defendants had received Rs.34 lakhs. According to the plaintiff, he was always ready and willing to perform his part of the contract and is still ready and willing to perform his part of the contract/agreement, and as such, the plaintiff asked the defendants in the month of June, 2008 itself to receive the balance amount and to execute the necessary documents but to no avail and the defendant had been putting off the plaintiff on one pretext or the other and in these circumstances, the plaintiff got issued a legal notice dated 07.07.2008 through Shri Narender K. Bhalla, Advocate but the plaintiff was surprised and shocked to receive a reply dated 16.07.2008 from Shri R.K. Sharma, Advocate, sent by Sh. Sanjay Sharma, Advocate whereby the defendants intimated that they had revoked the agreement and had no intention to sell the property to the plaintiff and that the plaintiff was at liberty to collect the part payment. It is further pleaded that the plaintiff was surprised and shocked to receive the said reply and negotiations took place in the office of M/s. Hitkari Properties through whom the bargain was struck where the defendants felt sorry and stated that their father was sick and as such, they required some more time to complete the sale deed. According to the plaintiff, believing the version of the defendants, he granted another few months to the defendants and when again he contacted the defendants, they were still putting him off on one pretext or the other and it is clear that in fact, the defendants have no intention to complete the sale. It is also pleaded that the belief of plaintiff was further fortified when on 27.11.2008, when the plaintiff went to the said property and the defendants threatened him that they would break open Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 4 of 32 the locks of the first and the second floor portions and would forcibly dispossess the plaintiff. It is pleaded that the plaintiff tried to counsel the defendants in this regard as they had already received a sum of Rs.36 lakhs, but the defendants were adamant and repeated those threats and therefore, the plaintiff was left with no alternative then to file the present suit. It is also pleaded that since the defendants threatened the plaintiff to dispossess him from the first and second floors of the property in suit which were handed over to him for part performance of the agreement, the plaintiff in these circumstances is entitled to the decree of permanent injunction, because if the defendants implement their threats, the plaintiff would suffer an irreparable loss and injury which cannot be compensated in terms of money, and this would lead to multiplicity of litigation and hence the present suit.
Defendant's case :
(3) The defendants no.1 to 2 filed their common written statement wherein it is pleaded that the plaintiff has not come with clean hands and has suppressed material facts from this Court. It is pleaded that the suit is not maintainable as there was no valid agreement to sell existing at the time of filing the suit and no cause of action in favour of the plaintiff and against the defendants for filing the present suit. It is also pleaded that the plaintiff himself is guilty of violation of the agreement dated 23.09.2006 and has not performed the obligations on his part and cannot take advantage of this own wrongs since the present suit filed by the plaintiff against the defendant is not maintainable as Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 5 of 32 agreement dated 23.09.2006 has expired on 23.12.2006 and was no more in existence and as such not enforceable in law. (4) On merits, the defendants have denied all the allegations made against them by the plaintiff and it is pleaded that in so far as the obtaining of sale permission from the authority concerned and mutation of the property in their names is concerned, it was the plaintiff who as per clause 3 of agreement dated 23.09.2006 has not paid the expenses for the said purposes. The defendants have not denied the receipt of money on 03.11.2006 and it is pleaded that the defendants were compelled to sign the already typed papers under the heading receipt under pressure and coercion from the dealer with M/s. Hitkari Properties and other and the same was not read over to the defendants and their signatures and thumb impression were obtained on the same by pressure, coercion and fraud. The receipt of amount on the said date and on the following date is not denied but it is pleaded that the defendants have not gone into the contents dated 14.10.2007 which are not in their handwriting. It is pleaded that in fact any subsequent documents after the expiry of the agreement to sell dated 23.09.2006 are not at all relevant and are redundant. It is also pleaded that M/s. Hitkari Property Dealer have kept all original document with them and have not returned the same and have exercised the pressure and coercion on the defendants. It is pleaded that the plaintiff has never performed his part during the subsistence of agreement dated 23.09.2006. However, issue of the notice through advocate of the plaintiff dated 07.07.2008 is not denied with was duly replied to by the defendants through their counsel vide reply dated 16.07.2008. It is pleaded that in fact no agreement to Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 6 of 32 sell was in existence on the said date and hence the agreement having expired, stands revoked. It is further pleaded that in fact the possession of first and second floor of the suit property was never given to the plaintiff and the possession of first and second is still with the defendants as they have stored their goods on the said floors and on the Ground and Basement floors, they are having the photo studio shop. It is pleaded that the staircase from the basement goes upto ground, first and second floor which is form the inside of the main shop on the ground floor as is apparent from the site plan.
ISSUES FRAMED:
(5) The plaintiff filed his replication to the respective written statement of the defendants. Thereafter on the basis of the pleadings of the parties, vide order dated 25.08.2010 the Ld. Predecessor of this Court (Hon'ble Delhi High Court) has framed the following issues:
1. Whether the plaintiff is entitled to a decree for specific performance of Agreement to sell of 23rd September, 2006 (as amended on 10th April, 2007) in respect of the suit property? (OPP)
2. Whether the plaintiff is entitled to possession of the suit premises upon succeeding in proving issue no.1? (OPP)
3. Whether the aforesaid Agreement to Sell of 23 rd September, 2006 stands rescinded? (OPD)
4. Relief.
EVIDENCE:
(6) In order to prove his case the plaintiff has examined three witnesses i.e. plaintiff Prakash Malhotra himself as PW1; Ramesh Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 7 of 32 Chander Batra as PW2 and Shri Ram Batra as PW3. On the other hand, the defendant no.1 Jitender Malhotra has examined himself as DW1 and the defendant no.2 Kamal Malhotra as DW2. (7) For the sake of convenience, the details of the witnesses examined by the parties and their deposition are put in a tabulated form as under:
Sr. Details of the witness Deposition
No.
Plaintiff's Witnesses:
1. Sh. Prakash K. PW1 Sh. Prakash K. Malhotra is the plaintiff who in his
Malhotra (PW1) examination in chief by way of affidavit Ex.PW1/A, has
corroborated what has been earlier stated in the main plaint. He has placed his reliance on the following documents:
1. Original Agreement dated 23.09.2006 which is Ex.P1.
2. Receipt of Rs. 8 lacs which is Ex.P2.
3. Receipt of Rs. 2 lacs dated 03.11.2006 which is Ex.P3.
4. Receipt of Rs.22 lacs dated 10.04.2007 which is Ex.P4.
5. Legal notice dated 07.07.2008 along with UPC and AD cover which is Ex.P5.
6. Reply sent by the defendants which is Ex.P6.
In his cross examination by the Ld. Counsel for the defendants, the witness has deposed on the following aspects: That he is fifth class pass and cannot read, write and speak English.
That he had understood the contents of the suit and the contents of his affidavit Ex.PW1/A which are correct.
That the affidavit was prepared by his counsel after which he signed it on the same date and was attested on the same day in Delhi High Court.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 8 of 32 That he did not sign in any register or document or on a book on that day.
That the affidavit was already prepared and typed by his advocate and then he signed it and he did not tell his advocate what to write in the said affidavit.
That the suit property is lease hold property and the defendants were required to seek the permission to sell the suit property from L&DO within 90 days from the date of the execution of agreement to sell Ex.P1.
That he did not give any money to the defendants towards the expenses for getting mutation sanctioned and obtaining sale permission from L&DO.
That the defendant had not taken the sale permission from L&DO within 90 days then he was to take said permission.
That he never applied to L&DO for sale permission of the suit property.
That he did not give any notice in writing that he had the arrangement of Rs. 49 lacs and the defendants should execute the relevant documents but he had orally told the defendants about the same.
That in fact the agreement to sell was of Rs. 60 lacs and out of the aforesaid amount he had given advance of Rs.8 lacs on one occasion and thereafter, paid another Rs.2 lacs on other occasion and the balance amount which remained to be paid was Rs. 50 lacs.
That when he arranged 50 lacs then he requested the defendant to execute the relevant documents but the defendants refused to execute the documents on the pretext that the amount of the agreement to sell should be increased. That the amount of Agreement to sell was thereafter increased to Rs.62 lacs out of which he has already paid Rs.34 lacs to the defendants. That he does not remember the said date when the said amount of Rs. 50 lacs was available with him but the said amount was ready in the beginning of the year 2007.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 9 of 32 That after understanding the contents of para 3 of the affidavit the witness stated that the word lease deed is wrongly typed and the same refers to the agreement dated 23.09.2006.
That he does not remember the dates when the amount of Rs. 12 lacs as mentioned in para 3 of the affidavit were given to the defendants. That he had paid only Rs.2 lacs vide cheques of Rs.1 lac each and remaining amount in cash. That after confronted in para 7 of the plaint wherein it is mentioned that he had paid to the defendants Rs. 36 lacs and he asked, which of his statement is correct i.e. whether he had paid Rs.36 lacs or Rs. 34 lacs, the witness answered that he had paid only Rs. 34 lacs and his this statement is correct.
That when the said consideration amount was increased from 60 to 62 lacs, the only document which was executed in this regard, was the receipt which was executed in the office of the property dealer at Kingsway Camp in the office of Mr. Batra.
That he does not remember how many pages were prepared.
That the said receipt was signed by both the parties but he does not recollect at how many places on the said receipt the signatures were appended.
That two witnesses had also signed the said receipt out of them one was Mr. Batra and name of the other witness who was male, he does not remember.
That he does not know where the second witness resides but he was available in the office of Mr. Batra.
That he does not recollect exactly whether the witnesses had put their thumb impression or not. That the receipt was typed in the office of property dealer and the original receipt was with him (witness).
That he does not recollect if anything else was written in hand on the receipt.
That revenue stamp was also affixed on the receipt and the parties had signed upon the revenue stamp.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 10 of 32 That he does not recollect whether the revenue stamps were fixed on the first page, second page, or on the last page.
That in the receipt Ex.P4 there is mention about the aforesaid cheque Rs.20 lacs were also given by him to the defendants on 11.04.2010 as mentioned in para 5 of his affidavit.
That the said amount was paid on 14.10.2007. That a separate receipt of the aforesaid amount was also prepared.
That he does not recollect if the aforesaid receipt was in one page or two pages but the said receipt was signed by plaintiff and defendants. That he does not recollect if the said receipt was witnessed or not.
That he does not recollect if any revenue stamp was affixed on the said receipt or not.
That he is not aware as to when for the first time the defendants informed him that they will not execute the contract and had repudiated the same. That the defendant had informed him before 1 st June, 2008 that they will not execute the contract and had repudiated the same.
That he does not remember the exact month when the defendant had informed him about the aforesaid facts.
That there is basement in the property in question and at point A on the site plan Ex.PW1/D1 there is rolling shutter at the ground floor. That the stairs from the ground floor to the upper floors starts from inside the ground floor of the property which is at point B. That he has got the key of the said door but the defendants had broken the lock and did not allow him to go.
That he does not have the keys of the rolling shutter which is located at point A on Ex.PW1/D 1. That the keys of the same is with the defendant and he never had the keys of the rolling shutter in the part, which is located at point A on Ex.PW1/D1.
That perhaps in April, 2007 the keys of the door were given to him by the defendants.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 11 of 32 That no receipt regarding the handing over of the keys of the door was executed.
That the receipt regarding handing over the possession of the first and second floor was executed.
That no articles of the defendants were lying on the first and second floors when the possession of the same was handed over to him.
That he was explained the contents of the legal notice Ex.P5 before the same was sent by his counsel.
That the aforesaid incident of breaking the lock of the door and restraining him from entering the property in question took place in the end of year 2007.
That he did not lodge any complaint in this regard with the police nor filed any case.
2. Sh. Ramesh Chander PW2 Sh. Ramesh Chander Batra is the Property Dealer Batra (PW2) who in his examination in chief by way of affidavit Ex.PW2/A, supported the case of the plaintiff and has deposed on the following aspects:
1. That he is carrying business of property dealer under the name & style of M/s. Hitkari Property Dealers at Kingsway Camp.
2. That the defendants wanted to sell their Shop No. 35, Edward Lines, Kingsway Camp, Delhi and the plaintiff was interested to buy the same and hence an Agreement to Sell and Purchase was entered between them on 23.09.2006 in his presence.
3. That the original documents were placed with him for due performance of the Agreement till the finalization of the transaction.
4. That the Agreement Ex.P1 and the receipts Ex.P 2 & Ex.P4 were executed by the defendants in his presence.
5. That besides him, Sh. Pravesh Kumar Sachdeva also signed on both the occasions.
In his cross examination by the Ld. Counsel for the defendants, the witness has deposed on the following aspects: That he is graduate and is doing the business of property dealer since 8 years.
That he does not remember the date when his affidavit was prepared.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 12 of 32 That the affidavit was prepared by Sh. S.C. Singhal, Advocate at his instance.
That he does not remember the date when he signed the affidavit but he had signed the same at his office i.e. Shop no. 27, Hudsun Lane, Kingsway Camp.
That the plaintiff Prakash Malhotra had brought the affidavit for his signatures.
That he himself did not go to Sh. S.C. Singhal, Advocate for preparation of the affidavit. That he had given the details to Sh. S.C. Singhal Advocate about the contents of the affidavit. That he cannot tell whether the affidavit was prepared on the same date when he signed it or not.
That he had signed the affidavit at two places against at two places.
That he had also signed the affidavit on the front page and after signing the affidavit he gave it to the plaintiff, who in turn gave it to the counsel. That he himself did not visit the court for any purposes after signing the affidavit nor the attestation on the affidavit was not carried out in his presence.
That he does not remember the exact date when, for the last time, he saw the original or photocopy of the documents Ex.P1, Ex.P2 & Ex.P4. That he had seen the original documents earlier but on the day he signed the affidavit, he did not see the said original documents.
That he had signed the agreement to sell and a receipt in Sept, 2006 and thereafter the documents remained with him.
That he had signed another receipt in April, 2007 and thereafter another receipt was also executed but he dos not recollect whether he had signed the said receipt or not.
That he handed over the original documents to the plaintiff when he demanded the same.
That he partly remember what was written in agreement to sell Ex.P1.
That in the agreement to sell it was agreed that the remaining payment was to be paid in 90 days. That in the agreement to sell it was also agreed that the defendant will get the mutation sanction Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 13 of 32 in their names and shall obtain sale permission. That the said agreement it was also written that in case the sale permission is not granted then after paying Rs. 49 lacs, plaintiff was to take possession of the suit property.
That the plaintiff never give Rs. 49 lacs to the defendants.
That the parties with mutual understanding extended the time and the plaintiff had offered Rs. 49 lacs to the defendants.
That the plaintiff was prepared to pay the entire amount but he does not remember the date when plaintiff offered Rs.49 lacs to the defendants. That the plaintiff had offered to pay Rs.49 lacs to the defendants in his presence in his office, where meeting used to take place.
That no actual amount was offered and only verbally talks were held in his presence. That he never saw the sum of Rs. 49 lacs with the plaintiff.
That the plaintiff had the money with him and that is why he had offered the said amount and the plaintiff had told him that he had arrangement of money with him but he did not disclose the source of amount.
That the receipt Ex.P2 and Ex.P4 were prepared in his office and the receipts were got prepared by them.
That in the first receipt an advance of Rs. 8 lacs was shown to have been given.
That the third receipt was prepared lastly i.e. after the execution of Ex.P2 & Ex.P4.
That he does not remember that any receipt was executed in between the period when the receipt Ex.P2 & Ex.P4 were executed.
That Sh. Sriram Batra is his father and Sh.
Pravesh Sachdeva is their typist.
That the Receipt Ex.P3 bears the signatures of his father Sriram Batra at point A and the signatures of Mr. Pravesh Sachdeva at point B. That the aforesaid receipt was also typed and prepared in his office but he does not remember the exact date when the aforesaid receipt was prepared.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 14 of 32 That the receipt Ex.P2 and Ex.P3 might have been prepared on different dates.
That he cannot definitely tell whether the said receipts Ex.P2 and Ex.P3 were typed and prepared on the same date or on different dates. That the sale consideration was enhanced from Rs. 60 lacs to 62 lacs in April 2007 by the plaintiff because defendants also wanted time to complete the transaction as their business was going on. That the receipt of Rs.2 lacs as mentioned in his affidavit is executed in October, 2007 but he does not remember the exact date.
That Mr. Pravesh Sachdeva had also signed the receipts Ex.P2 & Ex.P4 as a witness in his presence.
That he does not recollect whether the receipt Ex.P4 was prepared on one page or two pages or more than that.
That generally the receipt is prepared on one page.
That the receipt Ex.P4 was signed by both the defendants.
That he does not remember the name of the witnesses who signed the receipt but it could have been signed by his father or Mr. Pravesh Kumar Sachdeva besides him.
That he does not remember whether there were two witnesses or three witnesses who signed the receipt Ex.P4.
That he does not remember whether the defendants had also put their thumb impression on receipt Ex.P4.
That the revenue stamp was duly fixed on the receipt.
That he does not remember how many revenue stamps were affixed on the receipt and what was the denomination.
That the defendants had put their signatures on the revenue stamp.
That he does not remember, if some contents of the receipts were written by hand or not. That he does not remember if after execution of the receipt Ex.P4 some addition or alteration were made thereon or not.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 15 of 32 That he does not remember whether he had signed as a witness on the receipt of Rs.2 lacs which was executed in October, 2007.
That the receipt of Rs.2 lacs was also prepared in their office but he does not remember whether it was typed on computer or on typewriter. That the receipt of Rs.2 lacs could have been typed, computer typed or in handwriting. That he does not remember if the said receipt of Rs.2 lacs was prepared on a separate paper or on an old document.
3. Siri Ram Batra PW3 Siri Ram Batra has in his examination in chief by (PW3) way of affidavit Ex.PW3/A, supported the case of the plaintiff to the effect that the receipts Ex.P2 and Ex.P3 were executed in his presence and bear his signatures at point A. In his cross examination by the Ld. Counsel for the defendant, the witness has deposed on the following aspects: That he understand English and he can read, write and speak English.
That his affidavit Ex.PW3/A was prepared by Sh.
S.C. Singhal, Advocate on his instructions. That on the same day, when his affidavit was prepared, two more affidavits were prepared. That the said two persons were also present at the time of preparation of their affidavits in the chamber of Sh. S.C. Singhal, Advocate. That their names are Sh. Prakash Malhotra and Sh. Ramesh Chander Batra.
That the affidavits were signed on the same date when they were prepared.
That the said affidavits were also attested on the same day in the chamber of Sh. S.C. Singhal, Advocate in Delhi High Court.
That the Oath Commissioner was sitting in the chamber of Sh. S.C. Singhal, Advocate. That he lastly saw the xerox copy of the receipts on the day when his affidavit was prepared. That most probably both the receipts were executed in September, 2006.
That the receipt Ex.P3 was also witnessed, besides him, by Mr. Pravesh.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 16 of 32 Defendants witnesses
4. Sh. Jitender DW1 Sh. Jitender Malhotra is the defendant no.1 himself Malhotra (DW1) who in his examination in chief by way of affidavit Ex.DW1/A has corroborated what has been earlier stated in the written statement.
In his crossexamination by the Ld. Counsel for the plaintiff, the witness has deposed on the following aspects: That he left his studies while he was in XI class and he is doing the work of photography in the shop in question.
That his brother Kamal Malhotra who is XII pass is also working with him.
That he knew Sh. Sriram Batra of Hitkari Property Dealers for the last 25 years who was friendly with his father since 30 years. That basically his father and Sh. Sriram Batra were friends and there was no relationship between them.
That Sriram Batra had also done business of property dealer alongwith his father. That the said business was in the name of Hitkari Property Dealers in the premises in question. That the said business was carried on by his father and Sriram Batra for 7 to 8 years. That before starting the business of property dealing his father was doing the business of selling the vegetable and fruits in the shop in question.
That at that time their family had good relations with Shri Sriram Batra and as on date their relation with Shri Sriram Batra are not good. That the relation between his father and Shri Sriram Batra spoiled five years before the death of his father on 15.12.2008.
That in Kingsway Camp area there are about 78 property dealers.
That they approached Shri Sriram Batra to sell the property in question with the idea to fetch good price.
That Shri Siriram Batra would have taken commission on the sale of the property in question.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 17 of 32 That in fact they had approached one or two property dealers in the Kingsway Camp area and the said property dealers approached Sh. Sriram Batra and told him that the shop is on sale and enquired whether he had any client.
That Sriram Batra directly approached them and called him through messenger at his office and there he told him as to why he was going to other property dealers for the sale of shop in question and further stated that he would get a buyer. That one of the property dealers who had asked Shri Sriram Batra regarding the aforesaid fact was Sahini Properties.
That the shop in question has not been mutated in their name.
That he and his brother never personally applied for mutation of the shop in question.
That Sh. Sriram Batra had applied for the mutation.
That he does not remember whether he or his brother had signed the mutation application. That he or his brother also never applied for permission to sell the property to L&DO. That after sending the reply dated 16.07.2008 (Ex.P6) he and his brother never wrote letter or sent notice to Shri. Sriram Batra to return the original documents.
That he had gone personally to Shri Sriram Batra and had requested him to return the original documents.
That he does not remember the date, month and the year when he personally approached Shri Sriram Batra for return of the documents. That the total amount which they received from plaintiff was Rs.34 lacs.
That the receipts Ex.P2, Ex.P3 and Ex.P4 bear his signatures as well as the signatures of his brother Kamal Malhotra.
That he and his brother had also affixed thumb impression on documents Ex.P4.
That his thumb impression on document Ex.P4 is at point C and the thumb impression of his brother on documents Ex.P4 is at point D. That when he signed the document Ex.P1, the same was already typed and he signed the Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 18 of 32 aforesaid document after going through the contents of the same.
That the said document was witnessed by Sh. R.C. Batra and his son but the witnesses did not sign in his presence.
That Ex.P2 was already typed when he signed the same and the witnesses of the said documents did not sign in his presence.
That he had signed the document Ex.P2 after going through the contents of the same. That he could not understand the contents of the said documents Ex.P2 and Ex.P3.
That the receipt Ex.P4 was typed when he signed the same at point A and put his thumb impression at point C. That the portion Mark E to E on the document Ex.P4 was not there when he signed the said document at point A. That he does not recollect whether he received any amount on 14.10.2007 when he signed on the revenue receipt at Point A on the back of the document Ex.P4.
That he is not sure whether the date encircled F on the back of the document Ex.P4 is in his handwriting or he had put the said date. That the affidavit Ex.DW1/A was prepared by his counsel in his office on his instructions. That he had instructed his counsel to incorporate in the affidavit "the defendant did receive the stated amount on 10.04.2007 and 14.10.2007 but under pressure or coercion".
That the pressure and coercion as stated above mean that Shri Sriram Batra was not returning original documents without signing on Ex.P4 on 10.04.2007 and 14.10.2007.
That he does not remember whether he received payment on 10.04.2007 and 14.10.2007. That whatever is written in his affidavit in this regard is correct.
That on 10.04.2007 he and his brother received Rs.22 lacs at the time of signing of Ex.P4. That he does not remember whether he received Rs.2 lacs on 14.10.2007 at the time of signing at point A on the back of the document Ex.P4, on the said date.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 19 of 32
5. Sh. Kamal Malhotra DW2 Sh. Kamal Malhotra is the defendant no.2 himself (DW2) who in his examination in chief by way of affidavit Ex.DW2/A has corroborated what has been earlier stated in the written statement.
In his crossexamination by the Ld. Counsel for the plaintiff, the witness has deposed on the following aspects: That he has seen the documents Ex.P1, Ex.P2, Ex.P3 and Ex.P4 and they all bear his signatures at point B. That he knows Shri Ram Batra who was the friend of his father upto 2003 and both of them were partners and since there was some dispute in 2003, they stopped talking to each other. That his father died in 2008.
That he was married in 1996 and the same was attended by Mr. Sh. Ram Batra.
That there was no litigation between his father and Sh. Ram Batra.
That his father was doing business of vegetable of fruit seller in the shop which is on the ground floor of the property in question.
That Shri Ram Batra alongwith his father was doing property dealer business on the first floor of the property in question.
That his father was not well educated and so far as he knew, he (his father) was educated upto 8th or 10th class.
That his father had been signing in English. That he does not know if Shri Ram Batra was doing the property dealing business and his father was only assisting him but states that they used to work together.
That he and his brother many times demanded back the original documents from Mr. Shri Ram Batra since the deal could not be fanalised. That neither any letter nor any notice was got issued to Shri Ram Batra in this respect. That till date the original documents are Shri Ram Batra.
That they received Rs. 34 lacs from the plaintiff. That he does not remember how much amount was received and on which date.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 20 of 32 That neither any possession was given by them to the plaintiff nor there was any lock/ door in existence on first floor of the suit property in question.
That he is not aware in whose name the property stands in the record of the MCD and L&DO. That they have not paid the house tax of the property in question for many years.
That till his father was alive, he might have paid the tax but they have not paid tax.
That they did not get the property in question mutated in their name since the plaintiff failed to make the payment.
That thereafter, it was the plaintiff who was to get mutation sanctioned in their name but he also failed to do so.
That he can read and understand Ex.P1. That the defendants were to obtain sale permission from the Lessor and the expenses were to be paid by the plaintiff in advance. That the Clause 3 of the Agreement Ex.P1 does not contain the condition of payment in advance. That orally it was told that the payment shall be made in advance.
That he was told the expenses would be Rs. 3 lacs by Shri Ram Batra and the same was also undertaken to be paid by the plaintiff. That he has seen receipt Ex.P2 according to which they had received Rs. 8 lacs.
That at the time of signing of the receipt the contents of the receipt were not read over to them but Rs. 8 lacs were given to them.
That he has seen receipt Ex.P3 according to which they had received Rs. 2 lacs.
That at the time of signing of the receipt, the contents of the receipt were not read over to them but Rs.2 lacs were given to them.
That he has read over the receipt Ex.P4 which bears his signatures.
That at the time of signing of the receipt Ex.P4, they were given a bag and after reaching home they counted and found that the said bag contained Rs.20 lacs in cash and there were two cheques of Rs. 1 lac each.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 21 of 32 That the receipt Ex.P4 was signed by them on all places on the same day.
That he cannot tell if the receipt Ex.P4 was signed on all the places on the same day or on different dates.
That he is in the business of photography. That the Revenue Receipt at Mark B & A dated 14.10.2007 i.e. the back of Ex.P4 bears his signature as well as the signature of his brother. That when he signed the Revenue Receipt on the writing dated 14.10.2007 they had received Rs. 2 lacs as mentioned therein.
That they had received the notice Ex.P5 and also replied the said notice through Sh. Sanjay Sharma Advocate.
That they never wrote any letter to the plaintiff that the plaintiff did not make the payment of expenses towards mutation and permission to sell. That they did not inform Mr. Sanjay Sharma, Advocate regarding the payment of expenses towards mutation and permission to sell. That they only sent the reply to the notice but at the time of sending the reply to the notice, they did not sent the money.
That they offered the money in the notice and the money was lying with them.
That as per the direction of the Hon'ble High Court they deposited the money in Court. That he did not have the cash in his bank account or otherwise.
That he purchased gold of the said amount but he does not have any documentary proof that he purchased gold of the said amount.
That he had purchased some gold from Mr. Gurpreet Chawla and some gold from another person known to him namely Raju.
That at the time when the amount was deposited in the court, Mr. Gurpreet Chawla was doing the business of property dealing and before that he was doing the business of gold.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 22 of 32 FINDINGS & OBSERVATIONS:
(8) I have heard the arguments advanced before me by the Ld. Counsels for both the parties and considered the written memorandum of arguments filed by them. I have also gone through the testimonies of the various witnesses and records of the case. My findings on the various issues are as under:
Issue No.1: Whether the plaintiff is entitled to a decree for specific performance of Agreement to sell of 23 rd September, 2006 (as amended on 10th April, 2007) in respect of the suit property? (OPP) Issue No.2: Whether the plaintiff is entitled to possession of the suit premises upon succeeding in proving issue no.1?
(OPP) Issue No.3: Whether the aforesaid Agreement to Sell of 23 rd September, 2006 stands rescinded? (OPD) (9) All the above issues are clubbed together for the sake of convenience involving common discussion and being interlinked. Onus of proving the issues no.1 and 2 was upon the plaintiff and that of the defendant upon the defendants.
(10) In order to prove his case the plaintiff Prakash Malhotra has examined himself as PW1; Ramesh Chand Batra as PW2 and Shri Ram Batra as PW3, whereas the defendants have examined themsleves as DW1 and DW2. While the case of the plaintiff is that pursuant to the agreement and having received Rs.34 lacs, the defendants have given him the possession of the first floor of the property in question but later on the defendants become dishonest and broke open the locks of the Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 23 of 32 doors of the first floor of which possession was given to the plaintiff.
The defendants have denied the said allegations. Though they have admitted that they received Rs.34 lacs from the plaintiff but denied that the possession of the first floor had been handed over to the plaintiff at any point of time or that they break open the locks and entered into possession of the same.
(11) I have considered the rival contentions and at the very Outset I may observe that the plaintiff has filed his case on the basis of the alleged Agreement to Sell dated 23.09.2006 (Ex.P1), receipt dated 23.09.2006 (Ex.P2), receipt dated 03.11.2006 (Ex.P3) and receipt dated 10.04.2007 (Ex.P4) all of which are unregistered documents. In this regard I may observe that none of the above documents are legally enforceable documents can be received as evidence of any transaction affecting such property or conferring such powers. As per the provisions of Section 17 (1A) of the Indian Registration Act, 1908 the document containing contract to transfer for consideration, any immoveable property for the purpose Section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after such commencement then they shall have no effect for the purposes of said Section 53A. Further, Section 49 of Indian Registration Act, 1908 effect of non registration of document required to be registered - no document require by Section 17 to be registered shall (a) affect any immovable property comprising therein or (b) confer any power of adopt, (c) be received as evidence of any transaction affecting such property of conferring such power, unless it has been registered.
Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 24 of 32 (12) Secondly, coming next to the provisions of Section 2 (10) of the Indian Stamp Act which provides that:
"..... 2. Definitions: In this Act, unless there is something repugnant in the subject or context, .......
(10) "Conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule 1......."
(13) Therefore, the documents i.e. Agreement to Sell dated 23.09.2006 (Ex.P1), receipt dated 23.09.2006 (Ex.P2), receipt dated 03.11.2006 (Ex.P3) and receipt dated 10.04.2007 (Ex.P4) are "Conveyance" within the meaning of Section 2 (10) of the Indian Stamp Act and have to be duly stamped and Section 35 of the Act makes it inadmissible in evidence.
(14) Thirdly, while the case of the plaintiff is that the initial agreement was for Rs.60 lacs and neither any mutation was done nor any permission was obtained by the defendants within 90 days and hence the defendants were to execute further document such as sale etc. on payment of Rs.49 lacs and for delivery of the possession but nothing was done. It is submitted that the in between the plaintiff has paid Rs.2,00,000/ and ultimately on 10.4.2007 the defendants further received Rs.22 lacs (i.e. Rs.20 lacs by cash and Rs.2 lacs by cheque) and the terms were revised. It is further submitted that the defendant also delivered the vacant possession of the first and second floor of the property in question to the plaintiff but thereafter the defendants did not act any further, however, another amount of Rs.2 lacs was given on Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 25 of 32 14.10.2007 as per receipt Ex.P4 totaling to Rs.34 lacs but the defendant initiated no action for permission and mutation. It is also submitted that therefore, a notice Ex.P5 was issued to the defendants which was replied vide Ex.P6 where specific plea was taken by the defendants that they have rescinded the agreement and were no more interested to sell the property as their circumstances have changed, though it was mentioned the plaintiff may collect the amount by prior appointment but such appointment was not sent with the reply. Ld. Counsel for the plaintiff has pointed out that the Hon'ble Court had even directed the defendant to deposit Rs.34,00,000/ received by them within six weeks vide order dated 25.8.2010 but the said amount was not deposited within six weeks and thereafter vide order dated 13 January 2011 it was directed that the defendant will deposit Rs.34,00,000/ with the Registrar General on the said day itself and the said amount is lying deposited in the Hon'ble High Court of Delhi which has been converted to fixed deposits. It is argued that there is no ground as to why the decree of specific performance be not granted in favour of the plaintiff as the plaintiff already paid a substantial amount of Rs.34,00,000/ to the defendants and was ready and willing to pay the balance amount but the defendants did not act at all for getting sale permission or mutation of the property in their names and the defendants have no right to rescind /revoke the agreement and no reason has been given in the reply dated 16.7.2008 and all plea of coercion, fraud or signing without reading taken in the written statement are unbelievable and afterthought, hence the plaintiff is entitled for a specific performance of the agreement to sell dated 23.9.2006 read with receipt Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 26 of 32 dated 10.4.2007 i.e. Ex.P1 and Ex.P4. It is submitted that though the possession was given to the plaintiff of first and second floor and the ground floor possession was to be given at the time of execution of the sale deed but the defendants have forcibly taken back the possession which is now with them. The case of the defendants on the other hand is that it is the plaintiff who had failed to perform his part of the agreement and comply with the essential terms and conditions of the agreement to sell.
(15) I have considered the rival contentions and I may observe that it is an admitted case of the defendants that the plaintiff has agreed to purchase the suit property for a sum of Rs.60 lacs with all the fittings and the fixtures and the defendants had received Rs.8 lacs from the plaintiff as earnest money out of the agreed sale price and had also executed a separate receipt for the said amount. However, according to the defendants, the plaintiff had assured and undertaken to get the mutation sanctioned in their names only after which they shall obtain the sale permission from the lessor. The Agreement to Sell Ex.P1 itself makes it clear that the expenses for getting the mutation sanctioned, were to be paid by the second party i.e. the plaintiff and the remaining sale price shall be paid within 90 days subject to the condition that the first party i.e. the defendants shall pay Rs.49 lacs but if the sale permission is not granted before that time, then the second party i.e. the plaintiff shall pay Rs.49 lacs on expiry of 90 days to the first party i.e. the defendants who shall then deliver the vacant possession of the shop to the plaintiff with all fittings and fixtures and shall execute the documents in favour of the plaintiff and shall get these documents Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 27 of 32 registered in the office of Sub Registrar concerned. I may observe that obtaining the sale permission from the principal lessor is a condition precedent to the payment of the remaining amount. The only condition being that if it is not granted before 90 days, then the second party (plaintiff) shall pay a sum of Rs.49 lacs upon the expiry of 90 days to the first party (defendants) who shall then deliver the vacant possession of the said shop to the plaintiff. There is nothing on record to show that the said application for obtaining the sale permission had been filed before the principal lessor nor the second party i.e. the plaintiff had the readiness and willingness to pay the remaining amount of Rs.49 lacs and hence the question of delivery of possession of the first floor of the property in question to the plaintiff, does not arise. Grant of mutation in favour of the defendants and grant of sale permission by the principal lessor, is a condition precedent which has not been fulfilled. Hence, under these circumstances, the Specific Performance of the Agreement in question Ex.P1 cannot be granted in the absence of any such application to the Principal Lessor or grant of permission more so when the defendants had rescinded the contract vide their communication/ reply dated 18.07.2006 which is Ex.P6. Therefore, the parties having failed to obtain the sale permission for getting the mutation done, which is a condition precedent for entering onto the sale of the premises in question, the prayer of the plaintiff for specific performance cannot be granted.
(16) Fourthly, there is nothing on record to show that the plaintiff had the necessary resources or the balance sale consideration amount and hence the plaintiff have failed to comply with the terms and Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 28 of 32 conditions of the sale / purchase, it does not seem probable that the plaintiff would have got the possession of the first floor even before the execution of the sale deed. On his part, the plaintiff has failed to adduce any evidence to show that he had the balance sale consideration or had offered to pay the said amount to the defendants. It is clear that for the failure of the parties to obtain the sale permission from the principal lessor within 90 days, the sale could not have been affected and it is only after the defendants obtained the sale permission that the plaintiff was to pay Rs.49 lacs and hence the readiness and willingness of the plaintiff to complete the sale formalities is not borne out from the record. There is nothing on record to show that the plaintiff had taken any steps before the L&DO by making his own efforts, when the defendants had failed to take the sale permission within 90 days and admittedly event the plaintiff had not applied with the L&DO to obtain the permission for sale or to establish that he was in possession of the balance consideration to be paid to the defendant and therefore, it is writ large that the plaintiff has failed to establish that he was in possession of the first floor of the property in question at any point of time or was ready and willing to conclude the sale transaction. Reliance in this regard is placed on the judgment passed by the Hon'ble Apex Court in the case of N. P. Thirugnanam Versus Jagan Mohan Rao & Ors reported in AIR 1996 SC (116) wherein it has been held that the amount to be paid must be proved to be available. (17) Fifthly, the defendants have not denied and rather admitted the legal notice dated 07.07.2008 sent to them by the plaintiff through Sh. N.K. Bhalla Advocate which is Ex.P5 which they had given their Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 29 of 32 reply dated 16.07.2008 which is Ex.P6 wherein they have made it clear to the plaintiff that they are no more interested in sale of the property in question and the plaintiff is at liberty to collect the part payment made to them towards the same on any convenient date and time within prior information. While rescinding the contract/ agreement Ex.P1 vide their reply to the notice Ex.P6 dated 16.07.2008, the defendants have specifically stated and I quote as under:
"...... As per the information transpired, the alleged agreement to sell dated 23/9/2006 towards the sale of shop no. 35, Edward Lines, Kingsway Camp, Delhi - 110009 has since been rescinded by our client. The same stands revoked and is of no consequence. Your client was well intimated in advance that the circumstances have changed and that out clients were not intended to sell the above property to your client any more. Despite the same, your client persuaded our clients to be available at Sub Registrar's office on 2/6/2008. There also, it was made clear to your client that our clients are no more interested in sale of the said property. It was very well intimated to your client that he is at liberty to collect the part payment made to our clients, towards the same, on any convenient date and time, with prior information to that aspect.
Please be informed that the said property is not available for sale any more....."
(18) It is writ large from the above that the agreement to sell Ex.P1 has been revoked/ rescinded and the defendants have offered to pay the plaintiff the part payment received by them to the plaintiff. (19) Lastly, even otherwise, it is settled law that where compensation is sufficient relief then Specific Performance will not Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 30 of 32 be granted. In the present case, there is a specific Clause in Agreement to Sell Ex.P1 dated 23.09.2006 which shows that in case if the first party (i.e. the defendants) fails to perform their part of the contract they shall pay Rs. 16 lacs to the second party i.e. the plaintiff as damages and refund of the earnest money.
(20) This being the background, I hereby hold that the plaintiff is not entitled to any relief of Specific Performance, Possession and Permanent Injunction as asked for in the plaint. However, the plaintiff is entitled to the recovery of Rs.34 lacs (Rupees Thirty Four Lacs) from the defendants. Further, I hold that the interest of justice would be served if the plaintiff is held entitled to the interest on the amount of Rs. 34 Lacs @ 6% per annum from the date of filing of the suit till the date of decree and further interest @ 12% from the date of decree till the date of realization along with Costs of the suit. It is evident from the record that a sum of Rs.34 lacs is already lying deposited with the Delhi High Court in the form of an FDR and hence the said FDR be released to the plaintiff as per rules. (21) All the issues are accordingly disposed off.
Relief:
(22) In view my above discussion, I hereby hold that the plaintiff is not entitled to any relief of Specific Performance, Possession and Permanent Injunction as asked for in the plaint. (23) However, the plaintiff is entitled to the recovery of Rs.34 lacs (Rupees Thirty Four Lacs) from the defendants along with interest @ 6% per annum from the date of filing of the suit till the Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 31 of 32 date of decree and further interest @ 12% from the date of decree till the date of realization along with Costs of the suit. It is evident from the record that a sum of Rs.34 lacs is already lying deposited with the Delhi High Court in the form of an FDR and hence the said FDR be released to the plaintiff as per rules.
FINAL CONCLUSIONS:
(24) In view my findings on the various issues, I hereby hold that the plaintiff is not entitled to any relief of Specific Performance, Possession and Permanent Injunction as asked for in the plaint. (25) However, the plaintiff is entitled to the recovery of Rs.34 lacs (Rupees Thirty Four Lacs) from the defendants along with interest @ 6% per annum from the date of filing of the suit till the date of decree and further interest @ 12% from the date of decree till the date of realization along with Costs of the suit. It is evident from the record that a sum of Rs.34 lacs is already lying deposited with the Delhi High Court in the form of an FDR and hence the said FDR be released to the plaintiff as per rules.
(26) Suit of the plaintiff is accordingly Partly Decreed. Decree Sheet be prepared accordingly.
(27) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 17.02.2017 ADJII(CENTRAL)/ DELHI Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 32 of 32
Prakash Malhotra Vs. Jitender Malhotra & Anr.CS No. 488/2016
17.02.2017 Present: Ms. Kirti Attri Advocate for the plaintiff.
Sh. K.P. Singh Advocate along with the defendant no.1 Jitender Malhotra in person.
Vide my separate detail order dictated and announced in the open court, the suit of the plaintiff is Partly Decreed. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(Dr. Kamini Lau) ADJII(Central)/ 17.02.2017 Prakash Malhotra Vs. Jitender Malhotra & Anr., CS No. 488/16 Page No. 33 of 32