Delhi District Court
Sh. Rohtash Singh vs Sh. Shamsher Singh on 24 December, 2010
IN THE COURT OF SH. RAKESH KUMAR : ADJ03 (C) : DELHI
Suit No.1302/2008
Unique Case ID No.02401C0411772008
Sh. Rohtash Singh,
S/o Sh. Daya Nand,
R/o H. No.30A, BlockB,
Gopal Nagar, Near Nanak Piao,
Najafgarh, New Delhi110043. .....Plaintiff.
V E R S U S
1. Sh. Shamsher Singh,
S/o Sh. Chattar Singh,
R/o Village & P.O. Mitraoun,
New Delhi - 43.
2. Sh. Om Pal,
Gali No.4 & 5, BlockAB,
Near Railway Factory,
Gopal Nagar, Najafgarh,
New Delhi - 43. .....Defendants.
Date of filing of suit. : 18.03.2008.
Date of Arguments. : 08.12.2010.
Date of Order. : 24.12.2010.
O R D E R
1. This order of mine shall dispose off an application U/o 12 R 6 r.w. Sec.151 CPC moved on behalf of plaintiff interalia making a Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 1 of pages 15 prayer for passing of a decree of possession in favour of the plaintiff and against the defendant no.1 in view of the admissions made by the defendants in the Written Statement as well as at the time of Admission & Denial of documents. The application is supported by the affidavit of plaintiff Sh. Rohtash Singh.
2. The instant suit for Specific Performance and Permanent Injunction has been filed by aforesaid plaintiff against the aforementioned defendants and the same is pending adjudication.
3. It is stated in the application that the defendant no.1 has entered into Bayana Agreement/Agreement to Sell dated 08.01.2008 in respect of property no.80, 83 Chetan Vihar, Gopal Nagar, Najafgarh, New Delhi measuring 312 sq. yds. for a total sale consideration in the sum of Rs.19,34,400/ and a sum of Rs.5,00,000/ as earnest money was accepted and acknowledged by the defendant no.1, duly witnessed by the defendant no.2. Further during the admission and denial of the documents on 02.04.2009, the Bayana Receipt has been duly admitted and as such this document is an admitted document of the defendant no.1 and according to Bayana Receipt, the defendant no.1 has assured the plaintiff that he is the owner of the property under Sale and that the property is free from all sorts of encumbrances like, sale, gifts, mortgage etc. The Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 2 of pages 15 defendant no.1, as per this documents, has claimed himself to be the sole and absolute owner of the suit property and received the Earnest Money from the plaintiff as owner of suit property/plot and as per this document, the property documents were to be given by the defendant no.1 to the plaintiff at the time of execution of Sale Deed before the concerned authority. The plaintiff by believing the versions of defendants paid the earnest money. It is also stated in the application that the defendant no.1 has filed his Written Statement in the Court on 24.05.2008 and in para 6 of Preliminary Submissions, it has been stated that the property is in the name of Sh. Yogesh Kumar, which means and establishes this fact that the defendant no.1 was not the sole and absolute owner of the suit property, accordingly, the defendant no.1 was not competent to enter into any agreement with the plaintiff in respect of suit property. The defendant no.1 as such was not at all competent to enter into Bayana Agreement in respect of suit property and to receive the sum of Rs.5,00,000/ as earnest money from the plaintiff. Further in para no.2 of para wise reply of Written Statement, the defendant no.1 has admitted the fact of receiving Rs.5 Lakhs from the plaintiff out of total sale consideration of Rs.19,34,400/ on 08.01.2008 in respect of above said property. The defendants have admitted the entire documents and complaints Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 3 of pages 15 etc. filed by the plaintiff with the suit and accordingly, the defendants have admitted the entire claim of the plaintiff mentioned in the suit. Further in para 5 of the Written Statement on merits, the defendant no.1 has stated that "the defendant no.1 was always ready and willing to complete the deal as per agreement dated 08.01.2008." The defendant no.1, who claimed himself to be the sole and absolute owner infact as per submissions made in the Written Statement is not the owner of suit property and hence defendant no.1 in collusion with defendant no.2 have played fraud upon the plaintiff by falsely claiming himself to be the owner of suit property. Further in para 9 of the Written Statement, the defendant no.1 again claimed himself to be the owner and further admitted that he cannot execute Registered Sale Deed. The Bayana Receipt nowhere shows that the suit property is situated in unauthorized colony and the Registered Sale Deed can be executed. The defendants are bound to Bayana Agreement which they have entered with the plaintiff by wrongly claiming ownership thereof. The defendants as such are liable to pay/refund the Double the amount of Bayana to the plaintiff because the defendants are title less persons and cannot give any title in favour of the plaintiff. The defendants have acted fraudulently.
4. The defendant no.1 contested the application by filing the reply Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 4 of pages 15 of the application, whereas, defendant no.2 was proceeded against exparte vide order dated 08.09.2009.
5. In his reply to the application under consideration, the defendant no.1 has submitted that there was an agreement of sale dated 08.01.2008 in respect of property bearing Khasra No.80, 83, Chetan Vihar, Gopal Nagar, Najafgarh, Delhi consisting 312 sq. yds. for a total sale consideration of Rs.19,34,400/ and a sum of Rs.5,00,000/ has been paid as earnest money. But the plaintiff failed to honour the agreement by not making the payment of the balance amount by the stipulated date i.e. 23.02.2008, wherein the time was the essence of the agreement, as admitted by the plaintiff in the suit and the rejonder. In his said submissions, he has placed reliance upon a judgment reported as 2006 (133) DLT 260 titled as Express Tower Vs. Mohan Singh. Further in para 6 of the Written Statement, the defendant no.1 has raised objection, "The plaintiff failed to raise the plea/averment in the suit that the plaintiff has a title" on this account the suit is not maintainable as held by the Hon'ble Apex Court in case reported as AIR 2002 SC 390 titled as C. Balasubba Ready Vs. Lakshmi Narasamma. Further Hon'ble High Court in case reported as AIR 1988 Delhi 153 titled as State Bank of India Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 5 of pages 15 Vs. Midland Industries & Ors. has held that objection can not be treated as admission under Order 12 R 6 CPC. Further most of the documents filed by the plaintiff are created after filing the suit, hence irrelevant and not admissible as evidence, as Order 7 R 18 gives protection against submission of false document being created after institution of suit. The plea of the plaintiff that the defendant has played fraud on the plaintiff is false and denied and further this allegation of the plaintiff defeat the suit of specific performance as a fraud agreement can not be enforced. In his said submissions he has placed a reliance upon judgment reported as 2008 (149) DLT 303 titled as Daljeet Singh Anand Vs. Harjinder Singh Anand. Further the plaintiff is residing in unauthorized colony named Gopal Nagar, Najafgarh, Delhi and the plots in question are also located in the same colony. It is categorically submitted that the defence in this case is set up and it require evidence for determination of issue, so provision of Order 12 R 6 CPC are not applicable as held by the Hon'ble High Court in case reported as 2006 AIR (Del) 320 titled as Cosmo Ferrites Ltd. Vs. Universal Commercial Corporation.
6. Rule 6 of Order XII of Code of Civil Procedure reads as under: R.6. Judgment on admissions.-(1).
Where admissions of fact have been Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 6 of pages 15 made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2). Whenever a judgment is pronounced under subrule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the said judgment was pronounced.
The object of Order XII Rule 6 CPC is vide enough to afford relief dehors the pleadings.
In 1997 AIHC 3774 (Delhi), it was held, "the provisions of Order XII Rule 6 CPC has to be exercised very carefully and sparingly and only in exceptional circumstances."
In AIR 2000 SC 2740, it was held, "the object of the Rule 6 is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. The Court should not unduly narrow down the meaning of this Rule, as the object is to enable a party to obtain Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 7 of pages 15 speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed."
In 2004 Vol. 106 (4) Bom. LR 53, it was held, "a decree can be passed under O. 12 R 6 on the basis of an admission, whether it is contained in the pleadings or elsewhere. Such an admission may be in writing or may even be oral. No particular form of admission is necessary."
In 2000 AIHC 3398, it was held, "Failure to plead facts which constitute a valid defence must be read as admissions made as contemplated by Order XII R 6 CPC."
In Narender Kumar Vs. Vishnu Kumar Nayyar AIR 1994 Dehi 209, it was held, "the specific admission on the part of the tenant to the averments of the landlord in the petition with regard to the rent deed which is signed by the tenant is sufficient. Mere assertion that the person who instituted the proceeding is not owner would not raise any triable issue."
In 2006 V AD (DELHI) 667 titled as Charanjit Singh Vs. Kehar Singh it was held in para no.8 as under: "8. It is also a settled principle of Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 8 of pages 15 civil jurisprudence that judgment on admission is not a matter of right and rather is a matter of discretion of a Court. Where the defendant has raised objection which will go to the very root of the case, it would not be appropriate to exercise this discretion. The use of the words 'May' and 'make such orders' or 'give such judgment' spells out that power under these rules are discretionary and use of discretion would have to be controlled in accordance with the known judicial cannons."
The Hon'ble High Court of Delhi in IA No. 5912/2004 in CS (OS) 1578 of 2002 titled as Express Towers Vs. Mohan Singh decided on 22.8.2006 (MANU/DE/8926/2006), has held as under: "19. It is no more res integra that before a court can act under order 12 rule 6, admission must be clear and unambiguous. When the admission is not clear and unequivocal and the pleadings of the parties raise serious preliminary pleas which are likely to nonsuit a party, a court in its discretion can refuse to pass a decree."
Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 9 of pages 15 In RFA No. 724/2005 titled as Charanjit Singh Vs. Kehar Singh decided on 11.5.2006 (MANU/DE/8646/2006), it has been held by Hon'ble Delhi High Court that: "6. The powers under order 12 rule 6 of the Code has to be exercised judicially on the facts and circumstances of each case. The admission on the basis of which the Court wishes to pass a decree has to be unambiguous, clear and unconditional. There is no doubt that in a suit there can be more than one decree passed at different stages and each decree being separate and independent is enforceable in accordance with law, was the principle stated by MANU/SC/0505/ 1970 Chanchal V. Jalaluddin. Admission understood in its common parlance still must be a specific admission. There is very fine distinction between unambiguous and specific admission on the one hand and vague averments of facts which, if proved, could even tantamount to an admission on the part of a party to the suit. The Court has to consider the need for passing a decree on admission under these provisions only in the cases of first Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 10 of pages 15 category and normally decline in the cases of the later category."
7. I have given my thoughtful consideration to the submissions made by Ld. counsel for the plaintiff. I have also perused the entire relevant material placed on record.
8. It is the case of the plaintiff that defendant no.1 has entered into Bayana Agreement/Agreement to Sell dated 08.01.2008 with the plaintiff in respect of property no.80, 83 Chetan Vihar, Gopal Nagar, Najafgarh, New Delhi measuring 312 sq. yds. for a total sale consideration in the sum of Rs.19,34,400/ and a sum of Rs.5,00,000/ as earnest money was accepted and acknowledged by the defendant no.1, duly witnessed by the defendant no.2. The execution of the said Bayana Agreement/Agreement to Sell dated 08.01.2008 and receiving of Rs.5,00,000/ by the defendant no.1 from the plaintiff is not denied, rather, it is claimed by the defendant no.1 that since the plaintiff failed to perform its part of said Bayana Agreement i.e. by not making the payment of the balance amount by the stipulated dated i.e. 23.02.2008, the said agreement came to an end and the plaintiff lost his earnest money of Rs.5,00,000/.
In this case the admission and denial of the documents was conducted on 02.04.2009 and the Bayana Receipt dated 08.01.2008 Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 11 of pages 15 has been duly admitted by the defendant no.1. Perusal of the said Bayana Receipt revealed that the defendant no.1 has assured the plaintiff that he is the owner of the property under Sale and that the property is free from all sorts of encumbrances like, sale, gifts, mortgage etc. and received the Earnest Money from the plaintiff as owner of suit property/plot and the property documents were to be executed by 23.02.2008. It is also mentioned in the Bayana Receipt that in case the buyer denied to the purchase of the property, the earnest money of Rs.5,00,000/ would be forfeited and in case the seller denied to sell the property, double amount of the earnest money i.e. Rs.10,00,000/ would be given to the buyer. On the other hand in para 6 of Preliminary Submissions of his Written Statement, the defendant no.1 has stated that the property is in the name of Sh. Yogesh Kumar, which proofs that he was not the sole and absolute owner of the suit property and as such he was not competent to enter into any agreement with the plaintiff in respect of suit property or to receive the sum of Rs.5,00,000/ as earnest money from the plaintiff. The factum of execution of Bayana Agreement/Agreement to Sell dated 08.01.2008 and receipt of earnest money of Rs.5,00,000/ out of total sale consideration of Rs.19,34,400/ has not been denied by the defendant no.1 and by the said admissions and the admission Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 12 of pages 15 that the property is in the name of Sh. Yogesh Kumar, it is proved on record that the defendant no.1 has admitted the claim of the plaintiff. The clear and unambiguous admission of factum of execution of Bayana Agreement and receipt of earnest money of Rs.5,00,000/ by the defendant no.1 while claiming himself as sole and absolute owner of suit property and lateron the claim/stand of the defendant no.1 in Written Statement that he is not the owner, rather, it is one Yogesh Kumar, who is the owner and he is not competent to execute the sale transaction shows that the defendant no.1 despite of the fact that he was not competent to execute the sale transaction in favour of plaintiff executed the Bayana Agreement and received the earnest money of Rs.5,00,000/ and it is clear cut admission on the part of defendant no.1. Thus, plaintiff is entitled for the decree for the amount of Rs.10,00,000/ (i.e. double the earnest money of Rs.5,00,000/) U/o 12 R 6 CPC on the basis of aforesaid clear and unambiguous admissions of the defendant no.1. The plea of the defendant no.1 that the submissions raised in the Written Statement can not amount to the admission as the same is merely objection, is not tenable in view of the clear admission on the part of the defendant no.1. The authorities referred by Ld. counsel for defendant are not applicable in the present set of circumstances. As such, I hereby pass a decree for Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 13 of pages 15 the sum of Rs.10,00,000/ (Rs. Ten Lakh Only) (i.e. double the amount of Rs.5,00,000/ given by the plaintiff to the defendant no.1 as earnest money) in favour of plaintiff and against the defendant no.1 U/o 12 R 6 CPC on admissions. Decree stands passed accordingly.
9. Decree Sheet be prepared.
10. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open court (RAKESH KUMAR)
today on 24.12.2010) ADDL. DISTRICT JUDGE03 (C)
Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 14 of pages 15
Suit No.1302/2008
Sh. Rohtash Singh Vs. Sh. Shamsher Singh & Ors.
08.12.2010
Present: Ld. counsels for the parties.
Some clarifications sought.
Now, put up on 24.12.2010 for orders.
(RAKESH KUMAR)
ADJ03 (C)/DELHI/08.12.2010
24.12.2010
Present: As before.
Vide a spearate order, suit of the plaintiff is decreed U/o 12 R 6 CPC.
Decree Sheet be prepared.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ03 (C)/DELHI/24.12.2010 Rohtash Singh Vs. Sh. Shamsher Singh & Another (Suit No.1302/08) Page No. 15 of pages 15