Delhi District Court
M/S. St. Divyal Overseas Pvt. Ltd vs Shri Vinod Khosla on 13 September, 2013
IN THE COURT OF SH. ANIL KUMAR SISODIA :
ADDITIONAL DISTRICT JUDGE06, WEST DISTRICT
TIS HAZARI COURTS : DELHI.
CIVIL SUIT NO. 55 OF 2012
M/s. ST. DIVYAL OVERSEAS PVT. LTD.
(A Company incorporated under the
Companies Act, 1956),
through its Director, Shri Tri Nath Khera
having its office at 1512/26,
Hari Singh Nalwa Street,
Karol Bagh,
New Delhi110005. ............ PLAINTIFF
Versus
SHRI VINOD KHOSLA
S/o Shri Hari Chand Khosla
R/o 23, Ram Nagar,
Pahar Ganj, New Delhi. ........... DEFENDANT
Date of institution : 11.03.1999
Order reserved on : 13.09.2013
Date of Decision : 13.09.2013
SUIT FOR SPECIFIC PERFORMANCE AND POSSESSION
Suit No.55/12 Page : 1/32
J U D G M E N T :
1. The plaintiff has filed the present suit for specific performance and possession against the defendant.
2. The facts of the case, as stated in the plaint, are that the plaintiff company is engaged in the business of export in garments and under its diversification programme, it entered in the field of construction and development. The defendant is the sole and absolute owner of property bearing no.NB/1, Master Block, Shakarpur, situated in the area of Village Mandavali Fazalpur, Shahdara, Delhi92, admeasuring 118 sq. yds. and forming part of Khasra No.492 (hereinafter referred to as the "suit property"). In February/ March 1995, defendant approached the plaintiff with the proposal to enter into Agreement of Collaboration to develop and reconstruct the suit property as defendant neither had the resources nor had the experience for the same. The plaintiff company accepted the proposal and entered into the Collaboration Agreement dated 02.04.1995 with the defendant. The defendant handedover the possession of the suit property to the plaintiff company for the purpose of Suit No.55/12 Page : 2/32 development and reconstruction. It was agreed between the parties that the existing structure of the suit property would be demolished and basement, ground floor, first floor and second floor will be constructed. It was also agreed that the cost of construction would be borne by the plaintiff company and defendant will contribute by taking into consideration the value of the land prevailing at Rs.16.00 Lacs. It was also agreed that the plaintiff company will also spend similar amount on the construction and a sum of Rs.5.00 Lacs will be paid to the defendant which would be later on adjusted at the time of sale of the property from the share of the defendant. It was also agreed that the building will be sold by mutual consent of the parties and in case of any dispute, the property would be divided amongst the parties, as provided in the Collaboration Agreement. It is further stated that in pursuance of the Collaboration Agreement, the plaintiff company raised construction after demolishing the existing structure and also paid the defendant on various occasions a sum of Rs.7.23 Lacs out of which Rs.3,23,700/ was paid in cash and the defendant signed the ledger entry for such receipt and the sum of Rs.4.00 Suit No.55/12 Page : 3/32 Lacs was paid by way of bearer cheque 600449, dated 03.04.1995, drawn on Syndicate Bank, Nirman Vihar, Delhi. In second week of February 1996, defendant approached the plaintiff and opted for basement and first floor and terrace portion and the plaintiff accepted the offer. On 01.03.1996, defendant gave a pay order to the plaintiff company on account of reimbursement of advance money received by him. In March 1996, the intentions of defendant became malafide and he forcibly entered into the possession of the property and wanted to deprive the plaintiff of its rightful share in the property and was in the process of selling the suit property and the plaintiff filed a suit for injunction against the defendant before Hon'ble High Court of Delhi. The defendant in the said suit for the first time vide his WS dated 29.08.1996 refused to honour the agreement dated 02.04.1995 and the plaintiff was constrained to file the present suit for specific performance for registration of title documents of ground and second floors and obtaining peaceful possession thereof. It has been stated that the defendant in WS alleged that he had disposed off the suit property but the plaintiff did not come across any document Suit No.55/12 Page : 4/32 whereby any part of his property was sold by registered documents and the defendant also failed to produce any such document and as such, the plea raised by the defendant was a false defence. It was stated that the plaintiff has always been ready and willing to perform its part of the agreement and had been repeatedly requesting the defendant to register the sale deed and to deliver the possession to the plaintiff. Finding no other alternative, the plaintiff filed the present suit.
3. Summons of the suit were served on the defendant. The defendant contested the present suit by filing the Written Statement raising preliminary objections that the suit is misconceived and not maintainable and is barred u/O 2 Rule 2 CPC. The suit is barred by limitation. The agreement in question was signed on 02.04.1995 and it was never acted upon. The plaintiff had no transaction with the defendant in respect of the Collaboration Agreement for over four years and no fresh cause of action had arisen thereafter. The plaintiff had no cause of action against the defendant as they had given up the project themselves by refusing to make the payment of Rs.5.00 Lacs within 45 days of the Agreement dated Suit No.55/12 Page : 5/32 02.04.1995. The plaintiff has no legal rights against the defendant.
On merits, the contents of the plaint have been denied and it was stated that the suit property was owned by two brothers S/Sh. Banwari Lal and Shiv Charan Lal who had sold their rights to the defendant vide Agreement to Sell dated 17.10.1990 and had also executed affidavit, indemnity bond and Power of Attorney in favour of Mrs. Madhu Khosla. Defendant sold the suit property by similar documents to his sister Mrs. Neena Vaid. Thereafter, his sister executed a GPA in favour of the defendant on 13.11.1994 to manage the property on her behalf and the defendant had entered into the Collaboration Agreement with the plaintiff on the strength of the aforesaid GPA and this fact was disclosed to Sh. T.N. Khera and copy of GPA was also given to him. The defendant did not dispute the filing of the earlier suit by the plaintiff and the contents of the WS filed by him and reiterated the fact that the defendant wanted to construct the property and he was in need of finance and the plaintiff company accepted the offer and proposed to finance the project and with the said object, the Suit No.55/12 Page : 6/32 Collaboration Agreement was executed but it was never acted upon and the plaintiff failed to finance the project. It was also stated that the plaintiff had not paid any consideration while executing the Collaboration Agreement on 02.04.1995. The possession of the property was never handedover to the plaintiff. It was denied that the plaintiff had paid Rs.7,23,700/ to the defendant and it was stated that defendant had not received any money except the sum of Rs.1.00 Lacs which was paid in cash to the plaintiff. The defendant reiterated the facts stated in the earlier WS filed by him and prayed for dismissal of the suit.
4. The plaintiff filed replication denying the contents of the WS in so far as they were contrary to the plaint and a prayer was made for decreeing the suit. The contents of plaint were reiterated and reaffirmed.
5. Following issues were framed on 28.04.2003:
1) Whether the Collaboration Agreement dated 2.4.1995 is a camouflage and is therefore not binding upon the defendant? OPD
2) Whether the plaintiff has failed to perform his part of the contract and the Collaboration Agreement was cancelled by the defendant? OPP Suit No.55/12 Page : 7/32
3) Whether the defendant is not the owner of the suit property and is also not authorised to enter into Collaboration Agreement? OPD
4) Whether the defendant has fabricated and antedated the agreement of sale and other documents in favour of various persons? OPP
5) Whether the Collaboration agreement was kept alive after 45 days of its execution and whether the parties acted thereunder? OPD
6) Whether the plaintiff has no cause of action to file the suit?
OPP
7) Whether the suit is bad for misjoinder of necessary parties? OPP
8) Whether the dispute between the parties was amicably settled on 29.2.1996? OPD
9) Whether the physical possession of the property was handed over to the plaintiff in accordance with Collaboration Agreement and where the developed and reconstructed the property? OPD
10) What amount was paid by the plaintiff under the Collaboration Agreement, if yes, its effect? OPP
11) Whether the suit is barred by limitation?
12) Whether the defendant has disposed of the property in suit? If so to what effect?
13) Whether the plaintiff is entitled to a decree of Specific Performance?
14) Whether the present suit is maintainable under the provisions of Order 2 Rule 2 CPC in the light of the earlier suit No.576 of 1996 between the parties on the same cause of action?
Suit No.55/12 Page : 8/32
15) To what relief, the plaintiff is entitled to?
6. Vide order dated 28.04.2013, the suit was consolidated with the earlier Suit pending between the parties and evidence was directed to be led in this suit.
7. Thereafter, the parties were directed to lead their evidence. In support of its case, the plaintiff examined Sh. Tri Nath Khera, as PW1 who filed his examination in chief by way of affidavit Ex.PW1/A. PW1 has also proved on record certified copy of the Resolution passed by Board of Directors of the plaintiff firm dated 24.02.1999 as Ex.PW1/1; Collaboration Agreement dated 02.04.1995 as Ex.PW1/2; copy of Ledgers bearing signatures of the defendant as Ex.PW1/3 and MarkA and MarkB. Thereafter, PE was closed.
8. Defendant, on the other hand, examined himself as DW1 who filed his examination in chief by way of affidavit Ex.DW1/A. Thereafter, DE was closed.
9. I have perused the record carefully including the written submissions filed by the Counsel for the plaintiff and Counsel for the defendant. My findings on the issues are as under: Suit No.55/12 Page : 9/32 ISSUE NO.1
1) Whether the Collaboration Agreement dated 2.4.1995 is a camouflage and is therefore not binding upon the defendant? OPD
10.The onus of proving this issue was on the defendant. The defendant has admitted that he had entered into a Collaboration Agreement dated 02.04.1995 Ex.PW1/2 with the plaintiff. However, the defence taken by the defendant is that the plaintiff had, in fact, financed the project of the defendant and since the defendant was not having sufficient finance for the construction of the property, the plaintiff in order to secure his investment had the Agreement couched in the language of the Collaboration Agreement. It was submitted that in fact, the plaintiff had no experience in the line of the construction of the buildings and the defendant agreed to the suggestion of the plaintiff and the Agreement Ex.PW1/2 was executed.
11.In support of his case, defendant appeared in the witness box as DW1 and filed his examination in chief by way of affidavit Ex.DW1/A wherein he reiterated the same stand. In the cross examination, the defendant admitted the Collaboration Agreement and further admitted that the price of the plot was Suit No.55/12 Page : 10/32 Rs.16.00 Lacs and the plaintiff was to invest Rs.16.00 Lacs i.e. the value equivalent to the value of the plot. Apart from this evidence, the defendant has not led any evidence to substantiate his defence. The defence raised by the defendant is not admissible and is hit by Section92 of the Indian Evidence Act which provides that when the terms of any contract are required to be reduced into writing and the same has been proved in accordance with law, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding or subtracting to the terms of written contract. In the present case, since the defendant has admitted that he had entered into a Collaboration Agreement Ex.PW1/2 with the plaintiff, his oral evidence to show that the Collaboration Agreement was, in fact, an agreement by way of security to the investment of the plaintiff, is inadmissible. Therefore, the issue is decided against the defendant and in favour of the plaintiff. ISSUE NO.3
3) Whether the defendant is not the owner of the suit property and is also not authorised to enter into Collaboration Agreement? OPD
12.The onus of proving this issue was on the defendant. The Suit No.55/12 Page : 11/32 defendant has taken a stand that he was not the owner of the suit property. It was stated that the suit property was owned by his sister Mrs. Neena Vaid and he was acting as a Power of Attorney on her behalf.
The plaintiff has denied the contentions of the defendant and it has been submitted that the plaintiff never informed that he was not the owner of the suit property or that he was merely a Power of Attorney on behalf of his sister. It was further stated that the defendant has forged the documents to cheat the plaintiff and he has not proved on record any document to show that he was not the owner of the suit property.
13.A careful perusal of the material available on record would show that the defendant has not placed on record the original documents to show that his sister Neena Vaid was the owner of the suit property nor he has examined Smt. Neena Vaid to prove this fact. The submission of the defendant that he had informed the plaintiff that he was a Power of Attorney of Smt. Neena Vaid before entering into the Collaboration Agreement Ex.PW1/2 also appears to be false as a bare perusal of the Agreement Ex.PW1/2 would show that the defendant Suit No.55/12 Page : 12/32 represented himself to be the owner of the suit property. Therefore, in the absence of any documentary or oral evidence to establish that Smt. Neena Vaid was the owner of the suit property or that the defendant was not authorized to enter into the Collaboration Agreement, I am of the considered opinion that defendant has failed to discharge the onus cast on him. The issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUES NOS.2, 5 & 9
2) Whether the plaintiff has failed to perform his part of the contract and the Collaboration Agreement was cancelled by the defendant? OPP (OPD)
5) Whether the Collaboration agreement was kept alive after 45 days of its execution and whether the parties acted thereunder? OPD (OPP)
9) Whether the physical possession of the property was handed over to the plaintiff in accordance with Collaboration Agreement and whether the developed and reconstructed the property? OPD (OPP)
14.These issues are takenup together as they are interlinked and can be disposed off by common discussion.
The onus of proving issue no.2 has been wrongly placed on Suit No.55/12 Page : 13/32 plaintiff whereas, it should have been on the defendant. Similarly, the onus of proving issues no.5 & 9 has been wrongly placed on the defendant whereas, it should have been on the plaintiff.
15.The case of the plaintiff is that after entering into Collaboration Agreement, the defendant has handed over the the possession of the suit property to the plaintiff and it had developed and reconstructed the property. The defendant, on the other hand, has taken the defence that the plaintiff has failed to perform his part of the contract and the agreement was cancelled.
16.Ld. Counsel for the defendant has submitted that as per Clause 4 of the Collaboration Agreement Ex.PW1/2, the plaintiff was required to pay a sum of Rs.5.00 Lacs to the defendant in two equal installments within 45 days of execution of the agreement. It has been submitted that the plaintiff failed to abide by this term and did not pay Rs.5.00 Lacs to the defendant, as agreed. PW1 admitted in his crossexamination dated 03.03.2010 that he had to pay Rs.5.00 Lacs in cash, as per Agreement and he further admitted that he was to pay Rs.2.50 Lacs at the time of execution of the Agreement and Suit No.55/12 Page : 14/32 Rs.2.50 Lacs within 45 days of the execution of the Agreement. He further admitted that he has not paid Rs.2.50 Lacs to the defendant as the same was not demanded by the defendant. He further stated that he had paid him Rs.2.50 Lacs in installment to the defendant which has been mentioned in the ledger signed by the defendant. It was submitted by the Counsel for the defendant that the plaintiff also did not comply with the terms & conditions of the Agreement and did not act in accordance with the terms contained therein. He submitted that PW1 agreed in the crossexamination that there was no subsequent agreement in writing for deferring the payment and there was no written agreement for payment of Rs.4.00 Lacs and the same was oral understanding. He also admitted that he has not made any payment to the defendant pertaining to the construction material in cash but the same was paid to various suppliers on account of construction. Ld. Counsel for the defendant has submitted that the plaintiff has, thus, failed to perform his part of the Agreement and the Agreement stood cancelled/ revoked for nonperformance by the plaintiff and the said agreement was not acted upon. It was submitted that PW1 admitted that Suit No.55/12 Page : 15/32 he had to invest Rs.16.00 Lacs, as per the Agreement but in his crossexamination, he stated that he has spent more than Rs.17.00 Lacs for the purpose of construction but he failed to prove the same. It was submitted that the defendant had categorically denied his signatures in the Ledger Ex.PW1/3 and the plaintiff did not examine any Handwriting Expert to prove the signatures of the defendant. It was also stated that the plaintiff filed an additional evidence by way of affidavit dated 08.02.2005 and exhibited the copy of Statement of Account as Ex.PW1/6 and copy of Statement of bank account as Ex.PW1/7 but the same was deexhibited and were marked as MarkA and MarkB and even the additional affidavit was not tendered by the plaintiff in his evidence and hence, the plaintiff failed to prove that he had spent more than Rs.17.00 Lacs for the purposes of construction.
17.The plaintiff, on the other hand, placed reliance on the Statement of Account and copy of Statement of bank account and the Ledger Account Ex.PW1/3 and stated that the defendant had wrongly denied his signatures and has given false statement on oath. It was submitted that the Court can Suit No.55/12 Page : 16/32 itself look to the signatures of the defendant on the Ledger and compare the writings. Reliance was also placed in this regard on the judgment of Lalit Popli Vs. Canara Bank & Ors. (2003) 3 SCC 583.
18.A careful perusal of the evidence available on record would show that even though Clause2 of the Agreement Ex.PW1/2 states that defendant had given the peaceful and vacant possession of the suit property to the plaintiff for the purposes of development and construction, there is nothing on record to show that the possession of the suit property was actually and physically handedover to the plaintiff. The plaintiff has not led any evidence nor has examined any witness to prove this fact. In fact, in view of the admission of PW1 in his cross examination dated 03.03.2010 that he had not even paid Rs.2.50 Lacs to the defendant at the time of execution of the Agreement, it is highly improbable that the defendant would have handedover the actual and physical possession of the suit property to the plaintiff. Although, PW1 in his cross examination has stated that the payment was not made as it was not demanded by the defendant but this defence cannot be Suit No.55/12 Page : 17/32 believed. It is unbelievable that a person entering into a Collaboration Agreement with the Builder would not like to have even the first installment of the payment. PW1 has also admitted that there was no such document to show that defendant did not demand the payment or the payment was deferred on the request of the defendant. No other oral evidence is also available to substantiate the claim of the plaintiff. Similarly, the plaintiff has not been able to prove on record that it had carriedout the construction of the suit property. The Statements of Account and the Ledger have not been duly proved by the plaintiff. Merely filing a document and putting an exhibit mark on the same does not amount to the proof of the contents of the documents, more particularly, when the defendant specifically denied his signatures on the Ledger Account produced by the plaintiff. The plaintiff could have examined other witnesses in whose presence the payments were made or even the persons such as the suppliers of the building material to whom the payments were allegedly made by the plaintiff to show that the plaintiff had made the payments and had acted upon the agreement Ex.PW1/2.
Suit No.55/12 Page : 18/32
19.The fact that the plaintiff was not in possession of the suit property is also corroborated by the report of the Local Commissioner who had visited the suit property on 22.03.1996 to execute the Commission. Perusal of the said report would show that defendant was found to be in possession of first, second and third floors of the suit property and the ground floor and basement were in possession of one Maheshwari and Pandit respectively and the defendant had arranged the keys from those two persons to enable the Local Commissioner to execute the Commission. This report has never been objected to by the plaintiff and it clearly establishes that the plaintiff was not in possession of the suit property even in March, 1996. There is even no complaint on record from the side of the plaintiff that his possession was forcibly taken by the defendant at any point of time prior to the filing of the suit for injunction or after the possession was handedover by the defendant in pursuance of the Collaboration Agreement Ex.PW1/2. This fact clearly establishes that the actual physical possession of the suit property was never handedover to the plaintiff at any point of time. If the plaintiff had been given the actual physical Suit No.55/12 Page : 19/32 possession of the suit property and thereafter, the defendant would have repossessed the suit property, it would have been the natural conduct on the part of the plaintiff to lodge complaint or protest against dispossession but there is no such complaint or protest on the part of the plaintiff which shows that the plaintiff was never put in possession of the suit property in pursuance of the Collaboration Agreement Ex.PW 1/2 and once the plaintiff was not in possession of the suit property, the question of development and reconstruction of the suit property by the plaintiff does not arise.
20.Therefore, in view of the aforesaid discussion, I am of the considered opinion that the Collaboration Agreement Ex.PW 1/2 was never actually acted upon and it was not kept alive after 45 days of its execution and neither of the parties acted under it. Hence, these issues are decided in favour of the defendant and against the plaintiff.
ISSUE NO.4
4) Whether the defendant has fabricated and antedated the agreement of sale and other documents in favour of various persons? OPP
21.The onus of proving this issue was on the plaintiff but perusal Suit No.55/12 Page : 20/32 of the evidence led by the plaintiff would show that except for his bald averments made in the affidavit Ex.PW1/A, the plaintiff has not examined any witness nor has placed on record any evidence of any other nature to prove that the defendant have fabricated and antedated the Agreement of Sale and other documents in favour of various persons. The defendant had filed an affidavit accompanied by the five different Agreements in favour of five persons to show that he had sold the different portions of the suit property to different persons in compliance of the orders of the Hon'ble High Court dated 18.09.1998. From the record, it is apparent that the plaintiff made no attempt to examine these persons as witnesses who could have proved that the copies of the documents placed on record by the plaintiff were forged and not genuine or that they were antedated. Hence, in my considered opinion, the plaintiff has miserably failed to discharge the onus cast on him and the issue is accordingly decided against the plaintiff and in favour of defendant.
ISSUE NO.6
6) Whether the plaintiff has no cause of action to file the suit?
OPP
Suit No.55/12 Page : 21/32
22.The onus of proving this issue has been wrongly placed on the plaintiff whereas, the onus of proving this issue should have been on the defendant. In view of my findings on issues no.2, 5 and 9 hereinabove, since it has been held that the Collaboration Agreement Ex.PW1/2 was not acted upon and the plaintiff failed to perform his part of the contract and physical possession of the suit property was never handedover to the plaintiff and the plaintiff did not carryout the development and construction of the suit property, this issue is also decided in favour of the defendant and against the plaintiff. ISSUE NO.7
7) Whether the suit is bad for misjoinder of necessary parties? OPP
23.The onus of proving this issue has been wrongly placed on the plaintiff whereas, the onus of proving this issue should have been on the defendant who has alleged that he has sold the suit property to different persons. However, perusal of record shows that defendant has failed to prove any sale documents vide which he had sold the different portions of the suit property to different persons. He has also not examined any of the persons who had allegedly purchased the different portions Suit No.55/12 Page : 22/32 of the suit property from the defendant and who could have easily corroborated the stand taken by the defendant. Hence, in my considered opinion, the defendant has failed to discharge the onus cast on him. The issue is accordingly decided in favour of the plaintiff and against the defendant. ISSUE NO.8
8) Whether the dispute between the parties was amicably settled on 29.2.1996? OPD
24.The onus of proving this issue was on the defendant. Defendant has taken a defence that the dispute between the parties was amicably settled on 29.02.1996 when the defendant paid Rs.1.00 Lac by way of pay order and cash of Rs.2.00 Lacs to the plaintiff and thereafter there had been no occasion for the parties to approach each other. It was further stated that the said settlement was made when the plaintiff had threatened to create trouble by dragging the defendant into the litigation if he did not return the sum of Rs.1.00 Lac paid on 03.04.1995.
25.The defendant in his statement has reiterated this fact and the plaintiff has denied any settlement with the defendant although, the receipt of Rs.1.00 Lacs by demand draft was admitted by PW1 in his crossexamination dated 03.03.2010. In the cross Suit No.55/12 Page : 23/32 examination, DW1 admitted that the compromise with the plaintiff was oral and he did not have receipt of the payment of Rs.2.00 Lacs to the plaintiff in lieu of compromise. The defendant has not examined any witness to prove the oral compromise with the plaintiff. Hence, in the absence of any corroborative evidence and specific denial by the plaintiff that the matter was amicably settled on 29.02.1996, I am of the considered opinion that the defendant has failed to discharge the onus cast on him and the issue is accordingly decided against the defendant and in favour of the plaintiff. ISSUE NO.10
10) What amount was paid by the plaintiff under the Collaboration Agreement, if yes, its effect? OPP
26.The onus of proving this issue was on the plaintiff. The plaintiff has alleged that he had spent more than Rs.17.00 Lacs in pursuance of the Collaboration Agreement Ex.PW1/2. The plaintiff has stated that it had made various payments to the defendant, as per the Statement of Account Ex.PW1/6 and Statement of Bank Account Ex.PW1/7 (subsequently de exhibited and marked as MarkA and MarkB at the time of tendering of affidavit on 02.02.2010).
Suit No.55/12 Page : 24/32 The defendant, on the other hand, has admitted that he had only received a payment of Rs.1.00 Lac from the plaintiff in cash. He specifically denied that had signed on any ledger maintained by the plaintiff or had received any money from the plaintiff in cash. He also stated that the plaintiff had initially given a cheque of Rs.1.00 Lac on his insistence and the plaintiff after making cash payment took back the cheque and changed the amount to Rs.4.00 Lacs after taking it back and got it encashed on 10.07.1995. In the Written Statement also, the defendant reiterated that he had not received any other amount except a sum of Rs.1.00 Lac. The plaintiff has also not been able to prove the payment of any other amount to the defendant as the record pertaining to the cheque bearing no. 600449 in dispute was destroyed and the plaintiff further failed to prove the Statements of Accounts and Statement of bank account as well as the Ledger produced by him in accordance with law and therefore, the same are inadmissible in evidence. The plaintiff has been able to only prove the payment of Rs.1.00 Lac to the defendant which the defendant had admittedly returned to the plaintiff by way of pay order on 29.02.1996, as has been Suit No.55/12 Page : 25/32 admitted by PW1 in his crossexamination. Therefore, in my considered opinion, no amount is due and outstanding against the defendant and the plaintiff has failed to discharge the onus cast on it. The issue is accordingly decided against the plaintiff. ISSUE NO.12 :
12) Whether the defendant has disposed of the property in suit?
If so to what effect?
27.The defendant has taken a defence that he has already disposed off the suit property. In compliance of the orders dated 18.09.1998 wherein defendant was directed to discover on oath all the documents relating to sale of property in dispute in Suit No. 112/12 (Old No.576/96), defendant filed affidavit alongwith photocopies of some documents and deposed that he had sold the suit property to six different persons, as per the Agreements mentioned therein. Defendant has reiterated his stand in his defence evidence and has testified that the entire suit property was sold by him as Attorney of his sister Mrs. Neena Vaid to Shri Anil Kumar Maheshwari, Sh. Anil Verma, Sh. Babu Ram, Sh. Vinod Kumar & Ms. Preeti Nandi and filed the copies of the documents as MarkX1. He testified that the suit property was disposed off even before the filing of the suit Suit No.55/12 Page : 26/32 and he is not in possession of the suit property. The plaintiff in its written arguments has stated that the defendant has failed to prove the documents of sale and the documents produced by him are forged and fabricated and antedated. It was also stated that the documents produced by the defendant are incapable of transferring title in the suit property. Reliance was placed on the judgment of M.L. Aggarwal Vs. Oriental Bank of Commerce 2006 (128) DLT 407 wherein it was held that the sale of the immovable property can only be by registered deed and immovable property cannot be purchased by mere Power of Attorney or Agreement to Sell. It was also stated that the defendant in his crossexamination has testified that he has sold the entire building for Rs.6,25,000/ whereas, the value of the land itself was assessed @ Rs.16.00 Lacs in the Collaboration Agreement dated 02.04.1995. It was further stated that the defendant has also testified that he has also not shown the consideration in his Income Tax Receipts and he has no account of the sale consideration and hence, the contentions of the defendant are evidence of fraudulent conduct of the defendant.
Suit No.55/12 Page : 27/32
28.In the absence of defendant producing and proving the documents vide which the different portions of the suit property were sold to different persons and even the conduct of the defendant in not examining those persons as witnesses shows that defendant has failed to discharge the onus cast on him. The issue is accordingly decided against the defendant and in favour of the plaintiff.
ISSUE NO.13
13) Whether the plaintiff is entitled to a decree of Specific Performance?
29.The onus of proving this issue is on the plaintiff. The plaintiff has claimed the relief of specific performance of the Agreement to Sell. However, in view of my findings on issues no.2, 5, 9 and 10 hereinabove, I am of the considered opinion that the plaintiff has failed to discharge the onus cast on it and the issue is accordingly decided against the plaintiff and in favour of the defendant.
ISSUE NO.11
11) Whether the suit is barred by limitation?
30.The onus of proving this issue is on the defendant. Defendant Suit No.55/12 Page : 28/32 has claimed that the present suit is barred by limitation. It was submitted by Counsel for the defendant that the Collaboration Agreement stood cancelled on 02.04.1995 itself as the plaintiff did not make the payment of Rs.2.50 Lacs nor made another payment of Rs.2.50 Lacs after 45 days, as agreed and the possession of the property was never handedover to the plaintiff as the construction was made by the defendant. It was submitted that the suit filed on 11.03.1999 is highly belated and is barred by limitation. Ld. Counsel for the plaintiff, on the other hand, has submitted that the suit is within limitation as the plaintiff for the first time came to know that defendant has denied to perform his part of the Agreement when he filed the Written Statement in the earlier suit for permanent injunction filed by the plaintiff on 04.09.1996 and hence, the suit filed on 11.03.1999 is well within time.
31.Article54 of the Schedule to the Limitation Act, 1963 provides a period of limitation as three years for specific performance of a contract and according to this Article, the period of limitation begins to run when the date fixed for performance, or if no such date is fixed when the plaintiff has noticed that performance is Suit No.55/12 Page : 29/32 refused. Admittedly, in the present case, the plaintiff became aware of the intentions of defendant not to honour the Collaboration Agreement Ex.PW1/2 in February, 1996 when, according to the plaintiff, the defendant backedout of his option and tried to grab the property and tried to sell the suit property to third party and the plaintiff company through its lawyer issued two public notices in the two national daily newspapers National Herald and The Statesman on 28.02.1996. Therefore, the cause of action for filing the suit for specific performance accrued to the plaintiff in February, 1996 itself and even if the limitation is calculated from the date of publishing of the public notices by the plaintiff, the present suit has been filed beyond the period of limitation of three years and hence, is barred by limitation.
ISSUE NO.14
14) Whether the present suit is maintainable under the provisions of Order 2 Rule 2 CPC in the light of the earlier suit No.576 of 1996 between the parties on the same cause of action?
32.The onus of proving this issue was on the defendant. The defendant has submitted that the present suit is barred u/O 2 Suit No.55/12 Page : 30/32 Rule 2 CPC. It was submitted by the Counsel for the defendant that the plaintiff had earlier filed a suit for permanent injunction without seeking the leave of Court for subsequently filing the suit for specific performance. The present suit is also based on the same cause of action as the earlier suit and hence, the suit of the plaintiff is barred under Order 2 Rule 2 CPC. Ld. Counsel for the defendant has also placed reliance on the judgment of Hon'ble Supreme Court in Virgo Industries (Engg.) Pvt. Ltd. Vs. Venture Tech Solutions Pvt. Ltd. 2012 (4) CLJ 73 SC. Plaintiff, on the other hand, has submitted that the cause of action for filing the two suits is entirely different and the suit is not barred u/O 2 Rule 2 CPC.
33.A bare perusal of the plaints in the two suits filed by the plaintiff would show that the present suit is based on the same cause of action, the parties to the suit are the same and the plaintiff while filing the suit for permanent injunction did not obtain leave from the Court for subsequently filing the suit for specific performance. It is also pertinent to note here that both the suits are based on the same Collaboration Agreement Ex.PW1/2 and the same set of facts. Hence, the present suit for Suit No.55/12 Page : 31/32 Specific Performance for registration of the Sale Deed which has been filed during the pendency of the suit for permanent injunction for which leave to sue was not granted is hit by the provisions of Order 2 Rule 2 CPC. Therefore, the issue is decided against the plaintiff and in favour of the defendant. ISSUE NO. 15 (RELIEF)
34.In view of my findings on the aforesaid issues, the plaintiff is not entitled to any relief. The suit of the plaintiff is accordingly dismissed. No orders as to costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court Dated : 13th September, 2013. (ANIL KUMAR SISODIA) ADJ06 (WEST DISTRICT) TIS HAZARI COURTS, DELHI.
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