Delhi District Court
Shri Rakesh Kumar Kakkar vs Mrs. Malti Jain on 17 September, 2007
Suit No.31/05 1
IN THE COURT OF SHRI NEERAJ KUMAR GUPTA
ADDL.DISTRICIT JUDGE;DELHI.
Suit No.31/05.
Shri Rakesh Kumar Kakkar,
S/o late Ssh. Nand Lal Kakkar,
R/o D-40, IInd floor,
B.S. Road, Adarsh Nagar,
Delhi-10033. ....Plaintiff.
Versus
Mrs. Malti Jain
W/o Shri Ashwani Jain
R/o D-157, Ashok Vihar,, Phase-I
New Delhi-10052. ....Defendant.
Date of Institution - 12.10.2004
Date on which order reserved - 18.08.2007
Date on which order announced - 17.09.2007.
J u d g m e n t:
The plaintiff has filed the suit wherein he
has claimed the following reliefs:
a) to pass a decree of cancellation of Sale Deed dated
17th June,2004 got executed by the defendant from the plaintiff
which was executed in part performance of Agreement to Sell
dated 17th June, 2004 in respect of property bearing NO.40 in
block D,( SF) on Bhagat Singh road, area measuring 120 sq. yds,
Suit No.31/05 2
out of khasra No.262/258/217/4 situated in the area of village
Bharola, Colony known as Adarsh Nagar, Delhi-10033, by
playing fraud upon the plaintiff , in favour of the plaintiff , in
favour of the plaintiff and against the defendant; or in the
alternative the defendant be directed to pay the balance sale
consideration of Rs.5,00,000/- to the plaintiff with interest.
b) pass a decree of permanent injunction in favour of the
plaintiff and against the defendant, thereby restraining the
defendant, her legal heirs, agents, relatives, assignees, attornies
etc to create third party right in the property bearing NO.40 in
block D, (SF) on Bhagat Singh Road, area measuring 120 sq. yds,
out of khasra NO.262/258/217/4 situated in the area of village
Bharola, Colony known as Adarsh Nagar, Delhi-110033 on the
basis of Sale Deed dated 17th June,2004;
c) pass a decree of mandatory injunction in favour of the
plaintiff and against the defendant, thereby directing the
defendant, his agents, attornies, assignees, bankers, etc to hand
over the original documents pertaining to the suit property
bearing No.40 (SF) in block D on Bhagat Singh Road, area
Suit No.31/05 3
measuring 120 sq. yds out of khasra No.262/258/217/4 situated
in the area of village Bharola, colony known as Adarsh Nagar,
Delhi-110033, to the plaintiff.
(d) award the cost of the suit.
2. The relevant averments for claiming the relief in the
plaint are to the effect that the plaintiff is the owner and in
possession of the second floor of property bearing No.40, block
D, Bhagat Singh Road situated in the area of village Bharola,
Adarsh Nagar, Delhi and the defendant entered into a
negotiation to purchase the said property at a price of
Rs.11,00,000/- on 13.6.2004 and it was mutually agreed that an
agreement to sell will be executed for a total sale price of
Rs.11,00,000/- and the plaintiff will simultaneously execute a
Sale Deed in favour of the defendant after the defendant pays
the amount of Rs.6,00,000/- and the balance amount of sale
consideration of Rs.5,00,000/- will be paid by the defendant
after availing the housing loan from some financial institution
against the property.
Suit No.31/05 4
3. It is also the case of the plaintiff that firstly an
agreement to sell was executed between the plaintiff and the
defendant on 17.6.2004 for a total consideration of
Rs.11,00,000/- and on the same date the defendant paid a sum
of Rs.6,00,000/- out of which a sums of Rs.3,50,000/- was paid
by way of two cheques , one for Rs.1,50,000/- and another for
Rs.1,00,000/- drawn on Dena Bank and Punjab National Bank
respectively, both dated 17.6.2004.
4. It is also the case of the plaintiff that after the
execution of the agreement to sell, the plaintiff executed a Sale
Deed in favour of the defendant on 17.6.2004 itself on the
assurance of the defendant for making balance payment of
Rs.5,00,000/- to be paid on or before 5..8.2004 and it was
decided that the plaintiff shall hand over the vacant peaceful
possession of the suit property to the defendant at the time of
balance payment.
5. It is also the case of the plaintiff that the defendant
failed to pay the balance price of Rs.5,00,000/- and on 6.8.2004
the plaintiff asked the defendant to pay the balance sale
Suit No.31/05 5
consideration but the defendant did not paying any heed to the
request as the defendant was in possession of the original Sale
Deed with respect to the suit property.
6. It is also the case of the plaintiff that the plaintiff had
always been ready and willing to perform his part of contract
and is still ready and willing to do so and it is the defendant
who had committed breach of contractual obligation by not
paying the sale consideration of Rs.5,00,000/- and it transpired
to the plaintiff that by virtue of the Sale Deed the defendant is
going to transfer the suit property at a huge premium and as
such it has a grave apprehension that the defendant may forcibly
dispossess the plaintiff from the suit property and further may
create third party interest therein.
7. It is also the case of the plaintiff that on 15.9.2004
the plaintiff issued a legal notice upon the defendant to pay the
balance sale consideration , which notice was duly received but
still the defendant did not pay the amount and as there was
some defect in the facts mentioned in the notice dated
15.9.2004 the plaintiff rectified the same vide notice dated
Suit No.31/05 6
4.10.2004.
8. An averment has also been made in the plaint that it
was for some reason the Hon'ble Court holds that performance
of Agreement to Sell dated 17.6.2004 can not be done in view of
section 53-A of Transfer of Property Act, the sale deed dated
17.6.2004 executed between the parties be cancelled and the
defendant be directed to return all original documents
pertaining to the suit property.
9. It is also an averment in para 10A of the plaint that
the Sale Deed was executed by the defendant by playing fraud
upon the plaintiff and as such it is liable to be cancelled.
10. The defendant has contested the case in person. In
her written statement she controverted the allegations made in
the plaint and had taken the plea that the sale deed is legal,
valid and is duly registered and is for consideration as the
cheques as find mentioned in the plaint were duly got encashed
by the plaintiff and the suit property was purchased by the
plaintiff from one Shri S.R. Chauhan on 15.5.2001 for a total
Suit No.31/05 7
consideration of Rs.1,24,000/- and was sold by way of registered
sale deed in favour of the defendant..
11. It is also in averment in the written statement that the
plaintiff had also executed a GPA in favour of Shri Pradeep
Chauhan, son of Shri Narender Singh Chauhan for a
consideration amount of Rs.2,50,000/- on 5.7.2002 and has
executed , Will and affidavit also in this regard.
12. It is stated in the written statement that the
agreement dated 13.6.2004 to the effect that the property is
being sold for a sum of Rs.11,11,000/- is fraudulent because the
property was running under the control of Mr. Pradeep
Chauhan, GPA holder and some other GPA holder and that the
agreement dated 13.6.2004 was materialized by Singla property
dealer without the knowledge of Shri Pradeep Chauhan and
rather Singla property dealer had introduced Ravinder Kumar
@ Ravi Rana proprietor of M/s. Mahadeva property who had
disclosed that the plaintiff had sold the property to Shri
Pradeep Chauhan for a consideration of Rs.2,50,000/- and the
property is under the control of Shri Pradeep Chauhan, who is in
Suit No.31/05 8
possession of the original documents as well as registered GPA,
Will, Sale Deed etc.
13. It is also stated in the written statement that on
17.6.2004 the plaintiff cancelled the GPA as well as registered
Will in the office of Sub Registrar , Pitampura, vide registration
slip NO.573 and 574 in the presence of Shri Pradeep Chauhan
who also witnessed the said transaction and after the
cancellation of the registered Will and GPA in presence of Shri
Pradeep Chauhan, the plaintiff executed a Sale Deed in favour
of the defendant when Shri Pradeep Chauhan was also present
and the original document of the property as well as the
documents in possession of Shri Pradeep Chauhan were handed
over to the defendant, and thereafter the defendant became the
sole and absolute owner of the said property and even the
possession of the said property was handed over to the
defendant by the said previous owners.
14. It is also stated by the defendant that the defendant
applied for bank loan and the property was visited by the
Manager, Dena Bank, Ashok Vihar Branch and a loan of
Suit No.31/05 9
Rs.3,10,000/- was granted to the defendant on 4.8.2004.
15. With regard to the manner in which the plaintiff again
came into possession of the premises, it is stated that the
defendant allowed the plaintiff to stay for some more days in the
premises on verbal request being made by the plaintiff in this
regard but again the possession was handed over to the
defendant on 5.8.2004 and the plaintiff just trespassed over the
possession of the premises on 18.9.2004 and the defendant
lodged a complaint with the police of P.S. Adarsh Nagar and the
same was registered vide diary No.4570.
16. With regard to the agreement dated 17.6.2004 it is
stated that the said agreement is illegal and was a fraudulent one
on the basis of which Ravinder Kumar and the plaintiff received
a huge amount from the defendant on 5.8.2004.
17. In order to show that the defendant came into
possession by virtue of the Sale Deed dated 17.6.2004, she had
stated about the visit of the bank manager for sanctioning the
loan on 4.8.2004, making an application for mutation on
Suit No.31/05 10
16.8.2004 and the property was mutated in her name in the
record of the MCD on 17.8.2004, the transfer of electricity
connection in the name of the defendant and the fact that it is
the defendant who had been making the payment of electricity
bills and in the sale deed, as well as in the cancellation
documents pertaining to Pradeep Chauhan, the address
mentioned by the plaintiff is not of suit property but some other
address.
18. Further averment with regard to trespass by the
plaintiff is to the effect that another complaint was made on
26.10.2004 when the defendant was threatened and abused and
demand of exorbitant money was made.
19. The defendant had also taken the objection that the
suit is without any cause of action and is liable to be dismissed
under order 7 Rule 11 CPC and the documents on the basis of
which the plaintiff has based his suit are hit by the provisions of
Section 17 of the Indian Registration Act being required to be
registered under the law and being unregistered the same can
not be read in evidence by virtue of section 49 Registration Act.
Suit No.31/05 11
IT is also stated in the written statement that the factum of
cancellation of GPA etc on the same date on which the Sale
Deed was presented for registration was not disclosed to the
defendant when after delivering the original documents,
Rs.6,00,000/- in cash was taken out on 16.6.2004.
20. It is denied that the plaintiff is the owner or is in
possession of the suit property as the possession of the plaintiff is
of a trespasser and it is stated that the Sale Deed represents the
full consideration amount. It is denied that any further sum is
liable to be paid or that the plaintiff is entitled for any relief and
as after the execution and registration of the Sale Deed, the
plaintiff has left with no concern in the property. It is the
plaintiff who had played fraud upon her and being the absolute
owner of the property, she can deal with the property in the
manner she likes and the plaintiff has no right, title or interest in
the said property. Rest of the allegations in the plaint are denied
specifically.
21. On the pleadings of the parties my predecessor had
framed the following issues on 16.12.2005:
Suit No.31/05 12
1.Whether the present suit is not maintainable in as much as the plaintiff has already executed sale deed in favour of the defendant and delivered the possession of the suit property to the defendant? OPD
2. Whether the plaintiff is entitled to the relief of cancellation of sale deed dated 17.6.2004? OPP
3. Alternatively, if issue No.2 is decided against the plaintiff, whether the plaintiff is entitled to recover any amount from the defendant? If so to what account? OPP
4. Relief.
22. I have heard the learned counsel for the plaintiff and the defendant in person and have perused the record.
23. Plaintiff in support of his case has examined himself as PW-1, Shri Om Prakash Gupta as PW-2, Shri Ravinder Kumar as PW-3, S.I. Haroon Ahmad as PW-4 and ASI Dalbir Singh from PS Adarsh Nagar as PW-5. On the other hand defendant had examined herself as DW-1 and thereafter her evidence was closed.
24. Issue No.2: Whether the plaintiff is entitled to the relief of cancellation of sale deed dated 17.6.2004? The burden Suit No.31/05 13 to prove this issue is on the plaintiff. Plaintiff has not disputed that he has executed the Sale Deed dated 17.6.2004 Ex.DW1/1 registered as document No.22397 in additional book No.1, volume NO.4888 on paged 153 to 158 with the office of Sub Registrar-VI, Pitampura, Delhi and was for a consideration. The consideration amount mentioned in the sale deed is Rs.2,50,000/- and it is not disputed and rather it is admitted case of the plaintiff that the said amount was received by way of two cheques i.e. Cheque No.655841 dated 17.6.2004 drawn on Dena Bank, Wazirpur, Delhi for a sum of Rs.1,50,000/- and another cheque No.dated 17.6.2004 drawn on Punjab National Bank, Ashok Vihar, Wazirpur, Delhi for a sum of Rs.1,00,000/-. In clause 3 of the Sale Deed it is specifically mentioned that the vendor had handed over the actual vacant peaceful physical possession of the same . So the sale deed, cancellation of which has been sought, is a duly registered document and is for consideration and the consideration amount mentioned in the sale deed has been received.
25. The only averment mentioned in the plaint as well as in the affidavit filed by the plaintiff by way of evidence with Suit No.31/05 14 regard to cancellation of sale deed is that it was obtained fraudulently by the defendant as the defendant had promised to pay a sum of Rs.5,00,000/- . Since the defendant had failed to abide by the promise by further making Rs.5,00,000/-, the sale deed was got executed in fraudulent manner. No particulars of fraud has been mentioned and it is settled principle of law that whenever a fraud is pleaded, all the particulars of, fraud are not only to be pleaded specifically but rather are to be proved also.
26. In the present case, plaintiff had not at all pleaded the particulars of fraud exercised upon him for executing the Sale Deed. Rather it is the own case of the plaintiff as set out in the plaint that it was agreed between the parties that out of total consideration of Rs.11,00,000/- after payment of Rs.6,00,000/- a sale deed will be executed by the plaintiff in favour of the defendant and since the defendant has to pay the balance amount of Rs.5,00,000/- after obtaining loan from a bank , the balance of Rs.5,00,000/- will be paid on 5.8.2004.
27. Whether or not, the balance was liable to be paid will Suit No.31/05 15 be discussed while deciding the issue No.3 but the sole question which arises for consideration is as to whether non payment of an amount will render the sale deed itself liable for cancellation . A document can be cancelled only when it has been got executed by way of fraud or it is disclosed that the person who had executed the said deed had no title over the property and could not have conveyed the rights in the property to the vendee. Non payment of part of consideration amount cannot be a ground of cancellation of sale deed.
28. A bare perusal of the sale deed goes to show that the sale consideration referred in the same is Rs.2,50,000/- and it is already held that it is the admitted case of the plaintiff that the said amount has been paid, and there is no mention in the Sale Deed that any further amount is liable to be paid or that the sale deed will become effective only on payment of further amount. As such any evidence tried to be led against the contents of the registered document will be otherwise hit by section 91 and 92 of the Evidence Act. Even the property having been sold at a lesser price cannot be a consideration for cancellation or setting aside the same and the fact remains that in the present case it is Suit No.31/05 16 not the pleading that the consideration was less. On the other hand it is the own case of the plaintiff that certain other payment as find mention in the sale ded were also paid by the defendant to the plaintiff.
29. Plaintiff has examined PW-3 Ravinder Kumar and he had not at all stated otherwise that any fraud was committed at the time of execution of the sale deed.
30. A bare perusal of the notices sent by the plaintiff to the defendant i.e. Ex.PW1/4 dated 15.9.2004 and Ex.PW1/7 goes to show that averment in the same is that the plaintiff will execute a sale deed for the sum of Rs.2,50,000/-. The same amount had been repeated in Ex.PW1/7 though plaintiff has stated that it is a rectified notice. So it is the own case of the plaintiff that the consideration amount for execution of sale deed was Rs.2,50,000/- which admittedly had been paid and as such no ground for cancellation of sale deed is made out. Issue NO.2 is decided against the plaintiff.
31, Issue No.1 :Whether the present suit is not Suit No.31/05 17 maintainable in as much as the plaintiff has already executed sale deed in favourof the defendant and delivered the possession of the suit property to the defendant? . This issue has two parts. Execution of sale deed by the plaintiff in favour of the defendant and the second part is the delivery of possession.
32. So far as the first part is concerned, as already held while deciding issue NO.2 that the sale deed was executed is not in dispute. Case of the plaintiff is that before entering of the sale deed an agreement was entered into between the parties on the same date i.e on 17.6.2004 whereby the defendant at the time of execution of sale deed is to pay a sum of Rs.6,00,000/- which the defendant had paid by virtue of two cheques as afore mentioned and Rs.3,50,000/- in cash and the balance of Rs.5,00,000/- was to be payable by 5.8.2004 after the defendant take a loan qua the same property from a bank. The case of the defendant is that no such agreement dated 17.6.2004 was entered into and her signatures on the same were obtained fraudulently and she has argued that the version of the plaintiff that the agreement was entered prior to the execution of the sale deed is incorrect as the suggestion given by the plaintiff to the Suit No.31/05 18 defendant itself is that the sale deed was executed and thereafter the agreement was entered into.
33 The case of the plaintiff simply rests on agreement dated 17.6.2004 Ex.PW1/2 and otherwise he has no case as he is demanding the money and other reliefs, on the basis of the agreement dated 17.6.2004.
34 If the case of the plaintiff is taken as it is that firstly the agreement Ex.PW1/2A was executed and thereafter sale deed was executed, though, the case put by him is that the agreement dated 17.6.2004 Ex.PW1/2A was entered into after the sale deed, then it has to be seen as to whether the said agreement will have any effect after the sale deed is executed. 35 Without any hesitation it can be said that such an agreement will be hit by section 17 & 50 of the Registration Act having been entered into after the execution of the sale deed. BY virtue of the sale deed which is duly registered and the rights, title and interest in the property stand duly transferred by the plaintiff in the name of the defendant. Any subsequent Suit No.31/05 19 agreement modifying the terms of a document which is compulsorily registrable. ( sale deed in the present case) has to be registered one. Only by virtue of a registered document, the terms of a document compulsorily registrable can be modified or varied and not otherwise. This is the effect of combined reading of section 17 & 50 of the Registration Act. The same are reproduced as under:
17- Documents of which registration is compulsory:- ( 1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act NO.XVI of 1864, or the Indian Registration Act, 1866 or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property;
(b) other non testamentary instruments which purport o operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.Suit No.31/05 20
(c) non-testamentary instruments which
acknowledge the receipt or payment of any
consideration on account of the creation,
declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or extinguish, whether in present or in future, any right, title of interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property) Provided that the ( State Government ) may, by order published in the ( official Gazettee), exempt from the operation of this sub section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees) Suit No.31/05 21 50- Certain registered documents relating to land to take effect against unregistered documents: (1) Every document of the kinds mentioned in clause (a), ( c), and (d) of section 17 sub section (1), and clauses (a) and
(b) of section 18, shall, if duly registered , take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.
(2) Nothing in sub section (1) applies to leases exempted under the proviso to sub section (1) of section 17 or to any document mentioned in sub section (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act.
36. The agreement to sell relied upon by the plaintiff is admittedly an unregistered document and as such the suit will not be maintainable on the basis of such a document. Let us examine the effect of the document in case it is entered into Suit No.31/05 22 prior to the execution of the sale deed. The contention of the plaintiff is that by virtue of agreement Ex.PW1/2A it was agreed that sale deed will be executed and possession will not be handed over as the balance sum of Rs.5,00,000/- was to be paid on or before 5.8.2004. If that was the contention already agreed between the parties, then since the sale deed, which was executed in pursuance of the said agreement, the terms thereof ought to have been mentioned in the sale deed. No such terms as mentioned in the agreement relied upon finds mention in the sale deed. Rather the consideration amount shown in sale deed is Rs.2,50,000/- though it is the own case initially set up by the plaintiff that a sum of Rs.6,00,000/- was paid to him before he executed the sale deed.
37 If there was a condition that the possession will not be handed over at the time of execution of sale deed, there was no occasion to mention in the sale deed that possession has also been handed over to vendee. The plaintiff neither in his plaint nor in his affidavit by way of evidence, i.e examination in chief, has at all explained as to whether such an averment was made in the sale deed and in the cross examination when he was Suit No.31/05 23 confronted with the said clause he admitted that such a clause finds mention in the sale deed but gave an evasive reply that the sale deed was not typed in his presence. It is also not his case that the sale deed was got typed by the defendant. Rather it has come in his testimony that before entering into sale deed he had got cancelled earlier documents i.e. GPA, Will, Agreement to Sell etc which he had executed in favour of Pradeep Chauhan prior to agreement with the defendant and a sum of Rs.6,00,000/- was paid by the defendant to Pradeep Chauhan. Even a bare perusal of first clause itself of agreement Ex.PW1/2A shows that it is specifically mentioned that a sum of Rs.6,00,000/- had been paid in cash at the time of execution of document Ex.PW1/2A i.e. agreement to sell.
38 A bare perusal of notice Ex.PW1/4 dated 15.9.2004 shows that there is an averment in the same that a sum of Rs.2,50,000/- paid by the defendant to the plaintiff and the cheque was returned back by the plaintiff to the defendant. The same fact do not find mention in the notice Ex.PW1/7 which the plaintiff has termed to be a rectified notice but the fact remains that in the subsequent notice Ex.PW1/7 there is no mention that Suit No.31/05 24 the averment made in the earlier notice was incorrect one. The fact also remains that even in his cross examination he has admitted that a sum of Rs.6,00,000/- was paid by the defendant to Pradeep Chauhan and got the documents executed by the plaintiff in his favour cancelled. So even if Ex.PW1/2A was executed prior to the execution of sale deed, which is not the case, still , it will have no effect.
39. Undoubtedly, if the case of the plaintiff is taken to be true that the document was executed prior to the execution of the sale deed, then he having himself mentioned in the sale deed that possession has been handed over will amount and mean to say that the conditions required in the agreement had been fulfilled and that is why he had handed over the possession. Even otherwise by virtue of section 50 of the Registration Act, such a document willcease to have any effect.
40. If the document is executed after the execution of the sale deed since it limits the conditions set out in the sale deed i.e. the interest of the defendant in the suit property . This document by virtue of clause (b) of section 17 of the Registration Suit No.31/05 25 Act, ought to have been registered and no suit can be based on a document which is not registered one. As such suit could not have been filed on the basis of such a document.
41. So far as the actual possession is concerned, first of all no evidence contrary to the terms of the sale deed can be led as the same would be hit by section 91 & 92 of the Evidence Act. Moreover, the defendant had proved document Ex.DW1/14 by which the loan, after the purchase of the property in favour of the defendant, was sanctioned by Dena Bank . Naturally, bank will grant a loan only after visiting the property and confirming the facts mentioned in the document and in the present case, plaintiff in his cross examination has not disputed the visit of the bank official and has rather come up with the plea that he has arranged keys of the premises from Ravinder Kumar and got inspected the premises by the manager of Dena Bank on 15.7.2004. It clearly goes to show that visit was paid and secondly it also goes to show that it is the own case of the plaintiff that he even do not have the keys of the premises on 15.7.2004. Defendant has also proved order dated 17.8.2004, Ex.EW1/19 whereby the MCD had mutated the property in the Suit No.31/05 26 name of the defendant and the plaintiff in his cross examination had agreed that after the date of execution of sale deed, he had not paid the house tax. It may be pertinent to mention here that the liability to pay the house tax is on the person who is in possession of the property unless agreed otherwise. It is not the case set up by the plaintiff that defendant had agreed to pay the house tax and the plaintiff had admitted that he had never paid the house tax.
42. Defendant had also stated that she had applied for change of electrical connection in her name with the NDPL, which was changed on 9.9.2004 and thereafter it is the defendant who is making the payment and the bills are in her name. Bills exhibited by her in this regard are Ex.DW1/20 and Ex.DW1/21. Plaintiff in his cross examination has stated that he had not paid any electricity bill.
43. Defendant has categorically stated in her affidavit that the electricity consumption for the month of March,April, May and June,2004 was nil and when on 18.9.2004 the plaintiff illegally trespassed and thereafter electricity consumption was Suit No.31/05 27 572 units for 4.9.2004 to 6.11.2004. In this regard she has proved on record the bill Ex.DW1/22. Her contention in this regard is fortified by the bill, Ex.DW1/20, for the period May and June,2004 which clearly goes to show that during these period, the plaintiff was not in possession and the averment of the defendant that the plaintiff came into possession as requested by the plaintiff stands proved.
44. Learned counsel for the plaintiff had argued that after the lodging of FIR, the Investigating Officer did not deem it fit to present a charge sheet as the defendant had failed to prove that she ever came into possession and in this regard the Investigating Officer had recorded the statement of various neighbours to the effect that the plaintiff and his family continued to remain in the premises before and after the execution of the sale deed.
45. A bare perusal of the report Ex.PW5/1 goes to show that the case set up was that it is the plaintiff and his family members who were in possession through out and the defendant never came into possession. It is also noticed that whenever the Suit No.31/05 28 witness has failed to say anything, the Investigating Officer had put him questions in such a form so that the answer is given suitable to the plaintiff. However, there is another statement of one Yogesh Suri who had categorically stated that the family of the plaintiff remained at his house for about 15-20 days after the selling of the house and thereafter they went to reside at the suit property. So this witness demolished the version that the family of the plaintiff remained with him.
46. Learned counsel for the plaintiff had argued that this witness has stated only about the family of the plaintiff and not about the plaintiff himself. It will be impossible to believe that for 15-20 days the family members who were otherwise residing with the plaintiff would shift and all of a sudden they will come back and again it is found that after the witness has concluded, specific question suitable to the plaintiff were asked and it is only then the specific answer was made that plaintiff had never resided with Yogesh Suri.
47. So this document will be of no help to the plaintiff and needless to say FIR had already been recorded and the Suit No.31/05 29 report Ex.PW5/1 is still to pass the scrutiny of the court where the challan would be filed. It cannot be treated as a sacrosanct document as on date. So issue No.2 is decided against the plaintiff and in favour of the defendant.
48. Issue No.3- Alternatively, if issue No.2 is decided against the plaintiff, whether the plaintiff is entitled to recover any amount from the defendant, if so to what account? A bare perusal of the plaint will reveal that the plaintiff has not at all pleaded that any agreement was entered into prior to 17.6.2004 or that a sum of Rs.11,000/- was received by him or that the sale consideration initially was fixed for Rs.11,11,000/- and he has simply stated that agreement to sell was to entered into for the first time on 17.6.2004 which was a sum of Rs.11,00,000/-. It is the defendant who had stated that the agreement for a sum of Rs.11,11,000/- was entered into fraudulently on 13.6.2004 and sum of Rs.11,000/- paid by the defendant to the plaintiff. The said fact , stands admitted by the plaintiff, as he in his affidavit filed by way of evidence in para 3 has stated that the negotiations took place on 13.6.2004 and price settled was Rs.11,11,000/- when a formal agreement was Suit No.31/05 30 executed by the plaintiff in favour of the defendant and the defendant paid a sum of Rs.11,000/- to the plaintiff. He has proved the photo copy of the agreement as Ex.PW1/1. So this averment was suppressed by the plaintiff in his plaint and was admitted in his deposition. Said agreement is also exhibited as Ex.PW1/D7.
49. A bare perusal of the agreement will show that the balance consideration of Rs.11,00,000/- is to be paid within 30 days from the date of agreement to sell is entered before the Sub Registrar at the time of registration, otherwise the document will be considered as cancelled. It is also mentioned in the said agreement that Rs.6,00,000/- will be paid up to 17.6.2004 and the balance will be paid after that.
50. Since such an agreement was already entered into , there was no need to enter into any other agreement to sell and it is also to be seen that in the agreement to sell dated 17.6.2004, Ex.PW1/2 there is no mention of the earlier agreement nor there is any recital as to why the earlier agreement is being superceded or that there had been change in Suit No.31/05 31 the terms and conditions between the parties.
51. Most important aspect is that in the agreement to sell dated 17.6.2004 it is mentioned that a sum of Rs.6,00,000/- has been paid in cash in advance from the second party. Though it is the case of the plaintiff himself that on 17.6.2004 he had received a sum of Rs.3,50,000/- in cash and a sum of Rs.2,50,000/- by way of cheque. It is the own case of the plaintiff that the receipt with regard to the amount received in cash and by cheque Ex.PW1/2A was so received after the execution of the agreement dated 17.6.2004. If that is so then the plaintiff had received a sum of Rs.6,00,000/- in cash and then again a sum of Rs.3,50,000/- in cash and a sum of Rs.2,50,000/- by way of cheque. In any case, the plaintiff had also admitted in his cross examination that a sum of Rs.6,00,000/- was paid by him to Shri Pradeep Chauhan, the documents in whose favour were cancelled on the same day with regard to the suit property. It has come in evidence that it was paid on the same day. It has also come in evidence of the plaintiff that the amount of cheques i.e. Rs.2,50,000/- was paid by him to Pradeep Chauhan after they were encashed as such, even as per the case of the plaintiff Suit No.31/05 32 amount reflected in various agreements is not the correct picture and again at the cost of repetition it is stated that in the sale deed he has mentioned the consideration amount to be only Rs.2,50,000/- which demolishes the earlier agreement in totality
52. Another factor in this regard is the notice dated 15.9.2004 Ex.PW1/2. In the same the plaintiff had stated that the amount received by way of cheque was refunded back. Though this notice was rectified but in the rectified notice Ex.PW1/7 there is no averment that earlier averment made in this regard was based on some misconception. As such it is absolutely clear that the agreement dated 17.6.2004 was never entered into and the same has also been denied by the defendant.
53. Not only the plaintiff has suppressed receiving of Rs.11,000/- and the agreement to sell dated 13.6.2004 but the fact remains that in his notices Ex.PW1/4 and Ex.PW1/7 he had not made any reference to the agreement to sell dated 17.6.2004. He has mentioned the date as 15.6.2004 and there is no averment in the plaint or in his deposition that the said fact Suit No.31/05 33 was wrongly mentioned in the notices. So it is clear that the plaintiff is trying to make out a case and is giving different dates regarding execution of different agreements, different figures of money received by him, different figures regarding the consideration amount and as such he is not entitled to any further sum and it cannot be said that the agreement dated 17.6.2004 was entered into.
54. The arguments advanced by the learned counsel for the plaintiff that the defendant has admitted that the sale was initially for a sum of Rs.11,11,000/- and it is the own case of the defendant that she had paid only a sum of Rs.6,00,000/- and Rs.11,000/- and as such a sum of Rs.5,00,000/- is due stands proved is untenable. It is the own suggestion of the plaintiff to the defendant which she had admitted that a sum of Rs.6,00,000/- was paid to the plaintiff by the defendant on 16.6.2004. It is the own case of the plaintiff that a sum of Rs.6,00,000/- was paid on 17.6.2004 for which receipt Ex.PW1/2A was executed. Even otherwise, the question of balance amount do not arise. The defendant had categorically denied the execution of the agreement to sell Ex.PW1/2 and has Suit No.31/05 34 stated that her signatures were obtained on the same fraudulently and the defendant has stated that she had paid a sum of Rs.11,11,000/- to the plaintiff and she had explained that she had paid a sum of Rs.11,000/- on 13.6.2004, a sum of Rs.6,00,000/- on 16.6.2004 and Rs.2,50,000/- by way of cash on 17.6.2004 and further amount on the same date in cash. Even otherwise issue No.1 has been decided against the plaintiff. And the suit is based on an agreement to sell and the suit has been held to be not maintainable, issue No.3 has to be decided against the plaintiff. Accordingly issue No.3 is decided against the plaintiff.
55. Relief. So far as relief of mandatory injunction to the effect that defendant should return back the sale deed is concerned, the issues No.1 to 3 have been decided against the plaintiff and it has been held that agreement dated 17.6.2004 is not enforcible , relief cannot be granted. So far as relief of permanent injunction is concerned, the plaintiff in this regard had not given any particulars nor had shown any overt act on behalf of the defendant for the same either in the plaint or in his affidavit filed by way of evidence, which is a bare reproduction Suit No.31/05 35 of the plaint, the plaintiff is not entitled to such relief.
56. In view of the findings on issues No.1 to 3, the suit of the plaintiff is dismissed. There is no order as to costs. Decree sheet be prepared and the file be consigned to record room. Announced in open court ( Neeraj Kumar Gupta) 17th September,2007 Addl. District Judge, Delhi Suit No.31/05 36