Delhi District Court
Shri Jasbir Singh vs Smt. Veena Rani on 16 February, 2013
C.S No - 665/08
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-09 (DISTRICT CENTRAL) DELHI.
Civil Suit No. : 665/08.
Unique Case I.D. No. 02401C1059872008.
Shri Jasbir Singh
S/o. Late Shri Malkeet Singh,
R/o. 15/127, Geeta Colony,
Delhi-110031. ...............Plaintiff
Versus
Smt. Veena Rani
W/o. Shri Parveen Kumar,
R/o. 18/2, Geeta Colony,
Delhi - 110031. ..........Defendant
Date of institution of the suit : 05.08.2008.
Reserved for judgment on : 08.02.2013.
Date of pronouncement of judgment : 16.02.2013.
SUIT FOR SPECIFIC PERFORMANCE AND CONSEQUENTIAL RELIEF.
JUDGMENT
01. This is a suit for specific performance and consequential relief filed by the plaintiff. Briefly stated facts of the case are:-
(a) Defendant is the owner occupier of property bearing no.18/2 Geeta Colony Delhi-31 and agreed to sell to plaintiff the roof of the ground floor i.e. a part of property bearing no.18/2 Geeta Colony Delhi-31, without roof rights, area measuring 58 square yards with the right to Shri Jasbir Singh Vs. Smt. Veena Rani 1 C.S No - 665/08 construct only the portion on roof of ground floor up to ceiling level only, common stair case, passage & entrance situated at abadi at Geeta Colony, Delhi (herein after called 'the suit property').
(b) On 01.02.2008 an agreement for sale and purchase for a sum of Rs.
12 lacs entered into between the parties and the plaintiff paid a sum of Rs.2 lacs in cash as the earnest money and entered into the agreement with defendant and defendant accepted the payment.
(c) It was greed that the balance payment of Rs.10 lacs will be paid by the plaintiff within the period uptil 02.05.2008 and the defendant will execute the transfer/sale documents as well as hand over the vacant possession to the plaintiff.
(d) In the month of March and April 2008 when plaintiff demanded the original documents from defendant for the suit property to get prepare the sale papers but the defendant did not cooperate and tried to linger on the matter. The plaintiff requested the defendant to transfer the suit property thereby accepting the balance payment of Rs.10 lacs.
(e) On 02.05.2008 plaintiff had reached at the office of the Sub Registrar- VIII at Kishan Kunj, Delhi, and was also present till 5:00 p.m. along with the balance payment but defendant neither informed the plaintiff nor appeared. The plaintiff marked his presence by applying form no.
2.
(f) Till date defendant failed to produce relevant papers of property to plaintiff which makes clear that defendant has no intention to sell the suit property to the plaintiff with malafide intention.
(g) Notice dated 25.07.2008 was issued to defendant through counsel of the plaintiff. The notice was duly served upon the defendant.
(h) On 02.08.2008 plaintiff again reached at the office of Sub Registrar- VIII, Kishan Kunj, Delhi but defendant did not appear.
(i) On 01.08.2008 plaintiff lodged a complaint with SHO Geeta Colony Delhi, regarding the re-sale of the property as threatened by the Shri Jasbir Singh Vs. Smt. Veena Rani 2 C.S No - 665/08 husband of the defendant.
02. Written statement filed by the defendant wherein it is admitted that one agreement was reduced in writing but neither said agreement was acted upon nor implemented. It was further admitted that the payment of Rs.2 lacs was payable by the plaintiff to the defendant. It was further stated that the plaintiff had to pay Rs. 5 lacs within one week, so that the construction of ground floor could be completed and the first floor could be given to the plaintiff. However, it is denied that the plaintiff had paid Rs.2 lacs to the defendant. It is categorically stated that no payment has been made to the defendant by the plaintiff as such the agreement to sell is void- ab-initio. Receipt of notice is admitted but it is stated that the same was duly replied by the defendant through advocate. Rest of the contents of the plaint are denied.
03. Replication filed by the plaintiff to the written statement wherein averments made in the written statement are denied and the contents of the plaint are reiterated and affirmed.
04. My ld. Predecessor vide order dated 04.02.2009 framed following issues:-
1. Whether the agreement between the parties is without consideration ?
2. Whether the plaintiff is maintainable in view of that the agreement is not a registered agreement ?
3. Whether the plaintiff has no locus standi to file the present suit ?
4. Whether the plaintiff is entitled to specific relief ?
5. Whether the plaintiff is entitled to specific performance of the agreement & the injunctions ?
05. To prove its case, the plaintiff examined himself as PW-1 and tendered his evidence by way of affidavit Ex.PW-1/X. He further relied upon Shri Jasbir Singh Vs. Smt. Veena Rani 3 C.S No - 665/08 documents, agreement to sell dated 01.02.2008 as Ex.PW-1/A, Registration form no.2 as Ex.PW-1/B, copy of notice dated 25.07.2008 as Ex.PW-1/C, postal receipt as Ex.PW-1/D, UPC receipt as Ex.PW-1/E, courier receipt as Ex.PW-1/F, AD card as Ex.PW-1/G, copy of notice dated 30.07.2008 as Ex.PW-1/H, postal envelope as Ex.PW-1/I, copy of complaint received by PS Geeta Colony, Delhi as Ex.PW-1/J. PW-1 cross examined at length by ld. counsel for the defendant. Plaintiff further examined Sh. Ram Kishan. This witness was also cross examined by ld. counsel for the defendant. My ld. predecessor by order dated 19.10.2011 closed P.E. In defence, defendant examined herself as DW-1 and tendered her evidence by way of affidavit Ex.DW-1/A. She further relied upon documents, certified copy of application submitted before Metropolitan Magistrate, Karkardooma Courts, Delhi as Ex.DW-1/1, copy of petition under Section 13 (i) (ia) of Hindu Marriage Act is Ex.DW-1/2. The witness was cross examined at length by the ld. counsel for the plaintiff. Thereafter by separate statement defendant closed D.E.
06. I have gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. I have also heard Sh. Sunil K. Kalra, ld. counsel for the plaintiff and Sh. Sachet Sharma, ld. counsel for the defendant. My issue wise findings are :-
Issue No.1, 3, 4 and 5.
1. Whether the agreement between the parties is without consideration ?
3. Whether the plaintiff has no locus standi to file the present suit ?
4. Whether the plaintiff is entitled to specific relief ?
5.Whether the plaintiff is entitled to specific performance of the agreement & the injunctions ?
07. I am going to dispose of these issues by common findings as Shri Jasbir Singh Vs. Smt. Veena Rani 4 C.S No - 665/08 facts pertaining to these issues are interlinked to each other. In view of the issues framed, the onus to prove issue no.1 and 3 must be upon the defendant, whereas the onus to prove issue no.4 and 5 must be upon the plaintiff. During cross examination, it is stated by PW-1 that he purchased the stamp paper for execution Ex.PW-1/A from Mr. Grover. However perusal of noting at the back of Ex.PW-1/A shows that the same was purchased from Sh. Avtar Singh. The said stamp paper is in the name of Ms. Veena Rani. Now the question arises, how the plaintiff could purchase the stamp paper in the name of the defendant. It is not the case of the plaintiff that he was authorised by the defendant to purchase stamp paper in the name of the defendant. During cross examination, he has further stated that he did not remember in whose name the stamp paper was purchased. He has further stated that he purchased the stamp paper on 01.02.2008 but noting at the back of Ex.PW-1/A states that it bears the date 08.01.2008. He has admitted that PW-1 had family relations with the defendant for last more than 18 years. He has further admitted that parties were using trust upon each other. He has further stated that he had not seen the ownership documents of the defendant before entering into agreement. He has further stated that the agreement was written at Grover's office at Geeta Colony. He has further admitted that he has not obtained the signatures of any witness nor he has obtained signature of said Grover who typed the said agreement. He has further stated that the agreement was signed at the residence of the defendant and the payment of Rs.2 lacs was paid but except PW-1, defendant and defendant's husband, there was none. He has further stated that he is running a business of electrician. The amount of Rs.2 lacs was lying with him. He has further stated that he is income tax payee. He has further stated that the said amount was not withdrawn by him from bank as the same was lying with him at his home. He has further stated that he has shown in his income tax return Rs.2 lacs given to the defendant but the said income tax return not filed in court. A suggestion was given that he had Shri Jasbir Singh Vs. Smt. Veena Rani 5 C.S No - 665/08 neither paid Rs.2 lacs to defendant that is why he did not show Rs.2 lacs in income tax department and also income tax return not filed in the court and the suggestion was denied. He has further stated that he can produce his income tax return in the court. He has further stated that he was having arrangement of Rs.12 lacs. The balance amount of Rs.10 lacs was with his cousin brother. He has further admitted that on 02.05.2008 he did not carry the cash amount to the office of Sub Registrar but voluntary stated that he was carrying his cheque book. He has further stated that he did not purchase stamp paper for executing the sale deed. A suggestion was given that since there was no agreement in between him and the defendant on 02.05.2008 as such he did not purchase any stamp paper. He has further stated that he visited to the office of Sub Registrar alone. He did not remember whether he had sent any notice to the defendant giving him time to execute the documents for sale in his favour on 01.08.2008. He has further admitted that on 01.08.2008 he was having no money with him at the spot. He has further admitted that he was having no cheque book at the time of visit to the Sub Registrar Office on 01.08.2008. He denied the suggestion that he was neither having any arrangement of money nor he had entered into an agreement with the defendant. He has further stated that his cousin is not a money lender nor his cousin had asked any guarantee from him to help him. His cousin is having farm house business as well as mobile showroom at Main Road, Patpar Ganj, but he was unable to tell whereabouts of farm house of his cousin. He did not know the name of wife of his cousin. However his cousin is having two sons but he could not tell the real name, but he used to say Bhaji because they are elder to him. Both sons of cousin are unmarried. He was not able to tell the house number of his cousin. However, his house was situated in the same street and now they have shifted to other address. He could not tell the house number of his cousin which was situated in his gali.
08. During cross examination, DW-1 stated that there was no such Shri Jasbir Singh Vs. Smt. Veena Rani 6 C.S No - 665/08 agreement dated 01.02.2008 executed between her and the plaintiff. A suggestion was given by ld. counsel for the plaintiff to DW-1 that agreement dated 01.02.2008 was executed between her and the plaintiff and she received the payment of Rs.2 lacs and the suggestion was denied. First of all execution of Ex.PW-1/A has not been proved by the plaintiff properly. It is the case of PW-1 that this document was executed on 01.02.2008. It is the case of PW-1 that stamp paper for executing this document was purchased on 01.02.2008 but noting at the back of the stamp paper mentions the date 08.01.2008 and also as already observed by this court, what was the need of the plaintiff to purchase the stamp paper in the name of the defendant. Thus, the plaintiff was having malafide intention since the very inception who purchased the stamp paper without any authorisation on behalf of the defendant, in the name of the defendant. Noting regarding the date i.e. 08.01.2008 at the back of the stamp paper shows that the plaintiff had in his mind regarding execution of document from the defendant on 08.01.2008 or prior to that but it is not the case of the plaintiff in his plaint or in his evidence that any negotiation between the parties were taking place prior to 01.02.2008 or there was any intention expressed by the defendant to execute any document in favour of the plaintiff prior to 01.02.2008 or on 08.01.2008. Moreover, it is also stated by PW-1 that the stamp paper was purchased from one Sh. Grover whose address is also disclosed as 13 Block. Geeta Colony, Delhi, but the noting at the back of the stamp paper mentions that the same was purchased from Sh. Avtar Singh whose license number is 258, at Seelampur Colony, Delhi. Moreover, no separate receipt for making payment of Rs.2 lacs has been executed. It is admitted case of PW-1 that he did not withdraw this amount from any where. He has stated that he had shown in his income tax return of payment of Rs.2 lacs given to the defendant but neither said income tax return has been brought on the record nor any application moved by the plaintiff to bring on the record the said income tax return. It is admitted case of PW1 that he is an income tax Shri Jasbir Singh Vs. Smt. Veena Rani 7 C.S No - 665/08 payee, then definitely he must have withdrawn the said amount from either his bank or from any legal source, but nothing has been disclosed. It is admitted case of PW-1 that neither on 02.05.2008 nor on 01.08.2008 he was carrying the amount of Rs.10 lacs to the Sub Registrar office. It is case of PW-1 that he was having cheque book but it is not stated anywhere that in his bank account on these two dates the said amount was lying. It is further stated by PW-1 that he supposed to arrange the said amount from his cousin, but neither said cousin appeared as a witness to support the case of the plaintiff nor his correct address is disclosed by PW-1 despite the fact that it his case that he was living in the same Gali. In such circumstances, this court is of the considered opinion that PW-1 is not coming forward with correct facts. PW-1 is also not able to state from whom such a big amount of Rs.2 lacs was collected by him.
09. Section 16 (c) of Specific Relief Act 1963 makes a provision that it is the duty of the plaintiff/ purchaser of property to plead and prove that he was always willing and ready to perform the essential terms of contract which was to be performed by him. It is correct that it is not the case of specific performance filed by the plaintiff but the plaintiff is seeking recovery of the amount and the court has to look into whether the plaintiff was ready and willing to complete his part of contract and was not guilty of breach of contract.
10. The Hon'ble Delhi High Court in a recent case titled as Neha Khalxo Vs. Saramma Kuriakose 188 (2012) Delhi Law Times 164 has relied upon :
"14. This case is squarely covered by the principles of law laid down by the Supreme Court in the following cases:-
His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526 - The Supreme Court held as under:-
"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his Shri Jasbir Singh Vs. Smt. Veena Rani 8 C.S No - 665/08 financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.2.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiffs part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract." (Emphasis supplied) N.P. Thirugnanam v. R. Jagan Mohan Rao, AIR 1996 SC 116 - The Supreme Court held that to adjudge whether the plaintiff was ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances.
The amount of balance sale consideration must be proved to be available with the purchaser right from the date of execution till the date of decree. The Court upheld the dismissal of the suit for specific performance on various grounds inter alia that the plaintiff was dabbing in real estate business without means to purchase the suit property and the very contract was speculative in nature. The relevant findings are reproduced hereunder:-
"5. ...Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit alongwith other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove Shri Jasbir Singh Vs. Smt. Veena Rani 9 C.S No - 665/08 that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract." (Emphasis supplied) Conduct of the plaintiff
15. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the Supreme Court noted as under:-
"1. For many centuries, Indian society cherished two basic values of life i.e. „Satya' (truth) and „Ahimsa' (non- violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice- delivery system which was in vogue in pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up.
Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
In Padmawati and Ors. v. Harijan Sewak Sangh, 154 (2008) DLT 411, this Court noted as under:
"6. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Courts. One of the aim of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person."
"9. Before parting with this case, I consider it necessary to pen down that one of the reasons for over- flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is Shri Jasbir Singh Vs. Smt. Veena Rani 10 C.S No - 665/08 dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must b e made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrong doer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts." (Emphasis supplied) I agree with the findings by the learned Judge in Padmawati's case (supra) and wish to add a few words. There is another feature which has been observed and it is of unscrupulous persons filing false claims or defences with a view that the other person would get tired and would then agree to compromise with him by giving up some right or paying some money. If the other party is not able to continue contesting the case or the Court by reason of falsehood falls into an error, the wrong succeeds. Many times, the other party compromises, or at other times, he may continue to fight it out. But as far as the party in the wrong is concerned, as this Court noted in Padmawati's case (supra), even if these litigants ultimately lose the lis, they become the real victors and have the last laugh.
In the present case, the conduct of the plaintiff does not appear to be honest. The plaintiff has raised a false plea with the hope that the plaintiff can, with the Court delays, drag the case for years and the other side would succumb to buy peace. If the other side does not so settle in the end, they are hardly compensated and remains a loser."
11. In Bishambhar Nath Agrawal Vs. Kishan Chand and others IR 1998 Allahabad 195, the Hon'ble High Court has held that :
"...................He was suggested at the close of his cross-examination that they had no arrangement of money for taking the sale deed and that Vishnu Ram Nagar and Permanand Puri also had no arrangement of money. He of course, made a denial of the suggestions but his denial can Shri Jasbir Singh Vs. Smt. Veena Rani 11 C.S No - 665/08 hardly be taken at its face value"
12. Similarly, in the present case also plaintiff is not able to prove that he was having arrangement of money for the execution of the sale deed.
13. In Erikkil Thavatha Basheer Vs. Poopurambath Kaithal Khadeeja AIR 2001 Kerala 346, it was held by Hon'ble High Court that :
"..................During examination, he has admitted that he was having bank accounts in three different banks. But he has not produced the pass books in respect of the accounts or other documents. In the circumstances it cannot be found that the appellant was ready and willing to perform his part of the contract"
14. In B. Rajamani Vs. Mrs. Azhar Sultana and others AIR 2005 Andhra Pradesh 260 it was held by Hon'ble High Court that :
"..............It has been consistently held that mere assertion in the plaint that plaintiff is ready and willing to perform the contract is not sufficient. The plaintiff must not only aver and also prove that he/she has been always ready and willing to perform part of the contract. Mere use of the words in a mechanical manner would not be sufficient. There must be acceptable cogent and convincing evidence before the Court, before compliance with the provision is recorded in favour of the plaintiff."
19. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao, (AIR 1996 SC 116) (supra), the Supreme Court laid down as under :
Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to Shri Jasbir Singh Vs. Smt. Veena Rani 12 C.S No - 665/08 perform his part of the contract."
15. In the present case also, as already observed, the plaintiff is not able to disclose that the plaintiff had withdrawn the amount of Rs. 2 lacs from any bank. In such circumstances, this court has to draw presumption against the plaintiff in view of illustration (g) of Section 114 of Indian Evidence Act, 1872, inasmuch as the burden to prove the arrangement of fund was upon the plaintiff as per Section 106 of Indian Evidence Act, 1872.
In such circumstances, this court has to observe that PW-1 made a statement regarding payment of Rs.2 lacs in cash to the defendant, not convincing, especially in view of the fact that Rs.2 lacs is not a small amount, as it is the case of PW-1 himself that he is running a business of electrician. He is also not able to produce any journal entry or book entry to show that he was having Rs.2 lacs to be paid to the defendant. Moreover, the court has to observe a natural conduct also. Whenever a person is going to pay such a huge amount of Rs.2 lacs, then definitely he would also involve an impartial third person to be a witness for such a huge payment, especially when he was going to make a payment of Rs.2 lacs in cash. Even no such document that the plaintiff had withdrawn the said amount from his business, has been brought on the record. Moreover, the plaintiff also not able to prove that on the proposed date of execution of sale deed i.e. on 02.05.2008 and 01.08.2008 he was able to make payment of Rs.10 lacs to the defendant inasmuch as it is own case of the plaintiff that he did not carry that amount to the office of Sub Registrar to make payment of the amount to the defendant.
16. Our own Hon'ble High Court held in Smt. Raj Rani Bhasin and others V. S. Kartar Singh Mehta AIR 1975 Delhi 137 :
"10. A distinction may be drawn between readiness to perform the contract and willingness to perform the contract. BY readiness may be meant the capacity of Shri Jasbir Singh Vs. Smt. Veena Rani 13 C.S No - 665/08 the plaintiff to perform the contract. This includes his financial ability to pay the purchase price. We will assume for the sake of argument that the plaintiff respondent could have raised the money to pay the purchase price if he wanted to do so. But the more important question is whether he was willing to perform his part of the contract even if he had the financial capacity to do so. It is here that the plaintiff's conduct has to be properly scrutinised..........."
17. Moreover, in earlier judgment, the Hon'ble Delhi High Court has held in Mahesh Kumar Wadhwa Vs. Bimal Lutra 2009 (107) DRJ 271 passed by the Hon'ble High Court wherein it was observed :
"D. There is also no explanation as to why
such large sums of monies were transacted in
cash.
E. The plaintiff has not filed a single
document to show the availability of cash in
such large volume with him on the dates alleged.
F. A party who transacts in such casual manner, does so at his own peril. The purport of Order 37 is to provide benefit of summary procedure to plaintiffs who take care to have their transactions properly documented in accordance with law. The summary procedure is intended to encourage due recording / documentation in the course of trade / commerce. A person who while lending / advancing money makes as proper valid bill of exchange hundi, promissory note or a contract was intended to be bestowed advantage of quicker recovery of money without protracted trial. A party to avail of such significant benefit ought to take care in the making and execution of the document and lend money by cheque only, so as to eliminate defences of denial. The abridgement of procedure of trial for adjudication of factual disputes in Order 37 is an exception and cannot be extended to cases where the document itself is suspect or leaves scope for denial of receipt of money. The banking sector has developed immensely in the country over the years, with all having access to the banks. In these modern times transactions in large sums of monies, in cash and through non banking channels will always remain open to challenge and cannot claim preference in procedure for adjudication. To hold otherwise would be to give encouragement to such transactions, which otherwise need to be curbed. With the introduction of Section 138 in Shri Jasbir Singh Vs. Smt. Veena Rani 14 C.S No - 665/08 the Negotiable Instruments Act, judicial notice can be taken of the fact that normally post dated cheques in refund of monies lent/advanced are taken. Even if the plaintiff was lending money in cash, the plaintiff in the normal course would have been expected to take cheques for refund.
All these circumstances, in the present case lead me to the conclusion aforesaid. Nothing said here should however be understood as laying down that Order 37 CPC would not be applicable wherever transaction is in cash. If the cash is explained and supported by other documents, action would lie. However, in this case notwithstanding specific plea in leave to defend application that the plaintiff had no means and had not disclosed the said monies in his income tax returns, the plaintiff has in his reply evaded answering the said pleas and also not filed any document to controvert the same.
There cannot be two stands permitted to any party, one for purposes of taxation and other for litigation."
18. In a recent judgment in Mahavir Singh Vs. Joginder Singh 2012 VIII AD (DELHI) 249, in para 5, the Hon'ble Delhi High Court has held :
"5. Keeping in view the fact that neither the original documents have been filed nor has the plaintiff explained the source of the huge amounts, he claims to have paid in cash to the defendant, no prima facie, case is made out either with respect to the execution of the agreement for sale of the suit property or with respect to the payment of Rs. 56,50,000/- except to the extent of Rs. 5 lac which has been admitted by the defendant, whose case is that the aforesaid amount was taken by him as loan from the plaintiff."
19. In such circumstances, the plaintiff is not able to explain the payment of Rs.2 lacs or arrangement of Rs.10 lacs for the purpose of the transaction as stated in the suit. Moreover, the another factor the court has to take into account is that it is admitted case of the plaintiff himself that he did not purchase the necessary stamp papers to finalise the transaction. Thus, the plaintiff was not having any intention to complete the transaction which further implied that the plaintiff was well aware that the agreement Shri Jasbir Singh Vs. Smt. Veena Rani 15 C.S No - 665/08 Ex.PW-1/A is only a sham document as no such transaction as stated in the agreement Ex. PW-1/A was took place between him and the defendant. In such circumstances issue no. 1, 3, 4 and 5 are all answered against the plaintiff and in favour of the defendant.
Issue No.2.
Whether the plaintiff is maintainable in view of that the agreement is not a registered agreement ?
20. Since neither of parties have led any evidence to prove this issue, therefore this issue is answered against the defendant as it is the defendant who raised objections for the framing of this issue. Therefore, this issue is answered against the defendant.
Relief.
21. In view of the observations made herein above, the suit of the plaintiff is dismissed. There is no order of costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court today on 16.02.2013.
(Jitendra Kumar Mishra) ADJ-09 (District Central), Tis Hazari Courts/Delhi 16.02.2013 Shri Jasbir Singh Vs. Smt. Veena Rani 16 C.S No - 665/08 Civil Suit No.: 665/08 16.02.2013 Present: Plaintiff in person.
Sh. Sachet Sharma, ld. counsel for the defendant along with defendant in person.
Vide separate judgment announced in the open court today, the suit of the plaintiff is dismissed. There is no order of costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Jitendra Kumar Mishra) ADJ-09 (District Central), Tis Hazari Courts/Delhi 16.02.2013 Shri Jasbir Singh Vs. Smt. Veena Rani 17