Delhi District Court
Manish Kumar Jha vs Binita Gupta on 23 December, 2024
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
CS DJ ADJ 15351/2016
CNR No. DLSW010002172016
INTHE MATTER OF:
Manish Kumar Jha
S/o Gopal Jha A-405-B
Gali No. 12, Mahavir Enclave-11,
New Delhi-110059 ...............Plaintiff
Versus
1. Binita Gupta
W/o Shiv Kumar Gupta
R/o A-362, Gali No. 11
Mahavir Enclave, Part-II
New Delhi-110059
2. Shiv Kumar Gupta
S/o Ram Parkash Gupta
R/o A-362, Gali No. 11,
Mahavir Enclave, Part-II,
New Delhi-110059 ..............Defendants
Date of Institution : 16.02.2016
Date of arguments : 18.11.2024
Date of judgment : 23.12.2024
Digitally
signed by
SHILPI SHILPI
JAIN
M
M Date:
JAIN 2024.12.23
16:33:18
CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 1 of 53 +0530
SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT TO
SELL AND PURCHASE EXECUTED BETWEEN THE
PLAINTIFF AND THE DEFENDANTS AND FOR PERMANENT
INJUNCTION
JUDGMENT
INDEX FACTUAL BACKGROUND ...................4 ISSUES ...................9 EVIDENCE GIVEN BY PARTIES ...................10 SUBMISSIONS OF THE PARTIES .................14 ISSUEWISE ANALYSIS & FINDINGS .................16
- Burden of Proof .................17
- Testimony of Interested Witness .................19
- Relevancy, Admissibility and Appreciation of Expert Evidence .................33
- International Admissibility Rules:
Daubert Standards .................34
- Indian courts on Daubert Standards .................35
- Prohibition u/s 269SS of the Income Tax Act .................39
- Law on Specific Performance before and after amendment of 2018 .................40
- Whether 2018 amendment applicable Retrospectively or Prospectively? .................49
- Readiness and Willingness .................50 CONCLUSION .................54 Digitally signed by SHILPI SHILPI JAIN M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 2 of 53 M Date:
JAIN 2024.12.23 16:33:32 +0530
1. Present suit for specific performance of agreement to sell and purchase executed between the plaintiff and defendants for permanent injunction filed by the plaintiffs against defendants with the following relief:
a) A decree for specific performance of the agreement to sell and purchase dated 17/08/2015 executed between the plaintiff and the defendant may kindly be passed in favour of the plaintiff and against the defendant and thereby the defendant be directed to execute the sale deed/title documents pursuant to the agreement dated 17/08/2015 after receiving the balance of Rs. 3,00,000/-
(Rupees Three Lakhs Only) w.r.t. the suit property i.e. L- TYPE SHOP ON GROUND FLOOR WITHOUT ROOF RIGHTS ON BUILT UP PROPERTY BEARING NO. A-362, AREA MEASURING 9' X 9' SQ. FEET APPROX., KHASARA NO. 7/3, SITUATED IN THE AREA OF VILLAGE MIRZAPUR, DELHI ESTATE DELHI, ABADI KNOWN AS MAHAVIR ENCLAVE, PART-II, GALI NO. 11, NEW DELHI-59 in the favor of the plaintiff;
b) Pass a decree of permanent injunction in favour of the Plaintiffs and against the Defendant thereby restraining the Defendant, her heirs, successors, Assignees, attorneys, representatives from creating any kind of third party interest whatsoever w.r.t. the suit property in favour of anybody, except the Plaintiffs;
c) A decree for permanent injunction may kindly be passed in favour of the plaintiff and against the defendant including their agents, assignees, attorney, successors, heirs, etc thereby directing them not to disposes the plaintiff from the suit property forcibly and otherwise bay way of putting locks upon the shutters of the suit property;
d) It is further prayed that in the alternative to the prayer 1) if the said relief for any reason is not granted and without prejudice to the same a decree for Rs.8,00,000/- with interest thereon at the rate of 18% per annum from the date of the suit till payment may kindly be passed in favour of the plaintiff and against the defendant;
Digitally signed by SHILPI SHILPI JAIN M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 3 of 53 M Date:
JAIN 2024.12.23 16:33:43 +0530
e) This suit may kindly be decreed in favour of the plaintiff and against the defendants as aforesaid with costs and compensation as this court deems fit and proper in the facts and circumstances of the case.
f) May kindly pass such or other further order(s) as the hon'ble Court may deem fit in the interest of justice and in light of facts and circumstances of the present case.
FACTUAL BACKGROUND:
2. It is averred that, in the month of July 2015, the defendants have approached to the plaintiff and have expressed the need of money for the construction/repair work for their property i.e. BUILT UP PROPERTY BEARING NO. A-362, AREA MEASURING 9' X 9' SQ.
FEET APPROX., KHASARA NO. 7/3, SITUATED IN THE AREA OF VILLAGE MIRZAPUR, DELHI ESTATE DELHI, ABADI KNOWN AS MAHAVIR ENCLAVE, PART-II, GALI NO. 11, NEW DELHI- 59, (hereinafter referred to as the "said property"). Defendants further offered the plaintiff for the purchase of one shop in the said property so that defendants could arrange amount for the construction work. It is further averred that, the defendants being neighbors and known to the plaintiff for last many years, the plaintiff agreed upon the offer the defendants and agreed to purchase the aforesaid property/shop for a sum of Rs. 11,00,000/- and defendants had entered into an agreement to sell and purchase vide "Bayana Receipts" dated 01/07/2015 for L-TYPE SHOP ON GROUND FLOOR WITHOUT ROOF RIGHTS ON BUILT UP PROPERTY BEARING NO. A-362, AREA MEASURING 9' X 9' SQ. FEET APPROX., KHASARA NO. 7/3, SITUATED IN THE AREA OF VILLAGE MIRZAPUR, DELHI ESTATE DELHI, ABADI KNOWN AS MAHAVIR ENCLAVE, PART-II, GALI NO. 11, NEW DELHI- 59, Digitally signed by SHILPI SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 4 of 53 M JAIN Date:
JAIN 2024.12.23 16:33:55 +0530 (hereinafter referred to as the "suit property"), for a total consideration of Rs. 11,00,000/- (Rupees eleven lakhs only).
3. It is further averred that, against said sale consideration, the plaintiff has paid to the defendants a sum of Rs. 3,00,000/- (Rupees three lakhs only) as earnest money on 01.07.2015. It is further averred that, date of execution of the documents was scheduled to be on or before 15.01.2016 but, in the meanwhile, defendants further asked for some more payment as the same was stated to be needed for the construction of the floors upon the plot of aforesaid property. It is further averred that, on repetitive request by both defendants, the plaintiff further made a payment to the tune of Rs. 5,00,000/- to the defendants on 17.08.2015 and after getting this part payment, the defendants further executed one Agreement to Sell dated 17.08.2015 by which the defendants no. 2 acknowledged the receipt of the total sum of Rs. 8,00,000/- from the plaintiff and agreed to execute the documents of title/sale deed in favour of the plaintiff on getting the remaining sum of Rs. 3,00,000/- from the plaintiff on or before 15.01.2016. It is further averred that, on getting this amount, the defendants also handed over possession of the aforesaid shop/property to the plaintiff as almost 75% of the consideration amount has been obtained by the defendants from the plaintiff and that on 17.08.2015, the plaintiff taken the possession of the suit property and put his locks over the property.
4. It is further averred that, on 06/01/2016, son of the defendants were found trying to remove the locks of the plaintiff from the aforesaid shop/property without any authority and permission from the plaintiff and when the plaintiff objected to the same, the son of the defendants started Digitally signed by SHILPI SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 5 of 53 M JAIN Date:
JAIN 2024.12.23 16:34:03 +0530 quarreling with the plaintiff which reflected malafide intention of the defendants behind the aforesaid transaction w.r.t. the suit property. It is further averred that, such unexpected behavior from the defendants created doubts in the mind of the plaintiff. It is further averred that, the defendant has received a total sum of Rs. 8,00,000/- (Rupees Eight Lakhs Only) against the agreement to sell of the suit property to the plaintiff but the defendant failed to come forward for executing the sale deed and also failed to hand over the original documents of the suit property to the plaintiff and had not come for the said purpose despite the fact that the plaintiff was ready to perform his part of the agreement.
5. It is further averred that, in such circumstances, the plaintiff has sent a legal notice dated 07.01.2016 to the defendant through his Advocate on 08.01.2016 and the said notice duly served upon the defendant. However, despite the receipt of the legal notice, the defendants failed to turn for the execution of the title documents w.r.t. the suit property in favour of the plaintiff. It is further averred that, when the plaintiff asked the reason for not executing the sale deed/title documents the defendant no. 1 categorically told the plaintiff that the price of suit property has increased manifold and as such she has decided not to sell the property at the agreed amount and that is why she is exploring the possibility to sell the said property at a higher amount to somebody else. It is further averred that, in such circumstances the plaintiff was apprehending that the defendants may sell the said property or create third party interest on the same and may cause irreparable loss to the plaintiff which cannot be retrieved at all.
SHILPI M JAIN CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 6 of 53 Digitally signed by SHILPI M JAIN Date: 2024.12.23 16:34:12 +0530
6. It is further averred that, it is provided in the agreement to sell that if the defendant fails to perform his part of the agreement the defendant shall be liable to pay the double amount of the deposit made by the plaintiff, that is Rs. 16,00,000/- with interest thereon, but this remedy is to be invoked only if the transaction could not be completed through court of law by filing the suit for specific performance and such a suit etc. will be at the cost and risk of the defendant, thus the right available with the plaintiff is in addition to the relief of specific performance as regards compensation for the breach of the agreement by the defendant.
7. In his WS, defendants stated that the plaintiff has no locus- standi to file the present suit against the defendants, therefore the Plaintiff is not entitled to get any discretionary relief from this Court. It is further stated that the suit of the plaintiff is not maintainable against the defendants as the defendants has never made or signed the documents filed by the plaintiff along with the plaint from page no. 13 to17 and that these documents are forged and fabricated only made with the ulterior motive to grab the property of the defendants. It is further stated that the defendants have never ever made or sign any property bayana receipt or never entered to the agreement to sale/bayana with the plaintiff and plaintiff may be prosecuted under the proper law for preparing forged documents against the defendants. It is further stated that, Plaintiff has not come to this court with clean hands and has suppressed material facts, to file the present suit malafidely with the intention to harass, humiliate or torture the Defendants with the sole motive to grab the property of the defendants. It is further stated that the plaintiff along with his father who is a property dealer and other fellows of Land Mafia have many times tried to attack on the defendants and their children with the sole motive to grab Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 7 of 53 SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:34:25 +0530 the suit property and many complaints have been filed against them by the defendants and their children. Therefore, the suit of the Plaintiff is liable to be dismissed.
8. It is further stated that, defendant no. 1 is the legal, lawful and exclusive owner and in possession of the suit property and there is no right title or interest of the plaintiff on the suit property. It is submitted that the defendants have never ever signed any bayana receipts and never agreed to sale any property to the plaintiff and have never entered to any sale agreement or never received any consideration amount thereto. It is denied on behalf of defendants that in furtherance of the sale transaction, the defendants have received a sum of Rs. 3,00,000/- as bayana/advance/ earnest money from the plaintiff against the "Bayana Receipt" dated 01.07.2015 duly signed by the defendant no.2 in presence of common known witnesses. By this agreement defendants were agreed to sell the aforesaid /suit property /shop for a sum of Rs. 11,00,000/- to the plaintiff and the date of execution of the documents was scheduled to be or before 15.01.2016. It is submitted that defendants have never entered in any agreement nor signed any bayana receipt and the defendants have prepared the forged false and frivolous documents. It is further submitted that, the defendants have never ever talked about the sale of the said shop then question of handed over the possession of the shop/property or to pay the 75% of the consideration amount does not arise.
9. It is further stated that, the notice of the plaintiff has been properly replied by the defendants through their counsel thereby requesting the plaintiff to withdraw the legal notice which is based on the cooked up story, but inspite of that the plaintiff has filed the suit to fulfill Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 8 of 53 SHILPI M SHILPI JAIN M JAIN Date:
2024.12.23 16:34:33 +0530 his illegal desire. It is further submitted that, the plaintiff has no locus standi and cause of action to file the present suit and that the cause of action has never been arisen in the favour of plaintiff and against the defendants. It is further stated that, the plaintiff is not entitled to any relief as the suit of the plaintiff is based on the false, fabricated and concocted story and based on forged documents.
10. No replication to the written statement of defendant was filed on behalf of the plaintiff.
ISSUES
11. On the basis of pleadings of parties, following issues were framed by Ld. Predecessor of this Court vide order dated 12.05.2016 :-
i. Whether the documents filed by the plaintiff in support of his plaint are forged and fabricated? OPD ii. Whether the plaintiff is entitled to decree of specific performance on the basis of Agreement to Sell and Purchase dated 17.08.2015? OPP iii. Whether the plaintiff is entitled to decree of permanent injunction with regard to L Type shop, without roof rights at the ground floor on built up property bearing no.A-362, Area measuring 9'x9' Sq. ft. khasra no.7/3, situated in the area of village Mirzaur, Delhi Estate Delhi, abadi known as Mahavir Enclave, Part-II, Gali no.11, New Delhi-59, (hereinafter referred to as the suit property)? OPP iv. Whether the plaintiff is entitled to a decree of Rs.8 lacs with interest thereon? OPP v. Relief.
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2024.12.23 16:34:42 +0530 EVIDENCE GIVEN BY PARTIES
12. In support of its case, plaintiff examined six witnesses. PW1 Sh. Manish Kumar Jha, s/o Sh. Gopal Jha, R/o A-405B Gali no.12, Mahavir Enclave, New Delhi-59 tendered his evidence by way of affidavit Ex.PW 1/A and relied upon the following documents:
Sl. Particulars of Documents Exhibits/Mark No.
1. Original Bayana Receipt dated Ex.PW1/A 01.07.2015
2. Original agreement to sell dated Ex.PW1/B 17.08.2015
3. Office copy of legal notice dated Ex.PW1/C 07.01.2016
4. Original Postal receipts Ex. PW1/D (colly)
5. Original attendance slip at Sub Registrar Ex. PW1/E Office-IX (Kapashera) PW1 was cross-examined by Ld. Counsel for defendants at length and discharged.
13. PW-2 Sh. Ram Punit Jha S/o Sh. Mahadev Jha, Rio. R-92, Chanakya Place, Part-II, New Delhi-110059 tendered his evidence by way of affidavit Ex. PW2/A. He relied upon the documents already Ex. PW1/A and Ex.PW1/B. PW2 was cross-examined by Ld. Counsel for defendants and discharged.
14. PW-3 Sh. Anil Kumar Jha, S/o Gunakant Jha r/o E-566 Gali no. 79 Mahavir Enclave Part-3, D K. Mohan Garden, Delhi-59 tendered Digitally signed by SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 10 of 53 SHILPI JAIN M JAIN Date:
2024.12.23 16:34:52 +0530 his evidence by way of affidavit Ex. PW3/A. He relied upon the documents already Ex. PW1/A and Ex.PW1/B. PW3 was cross-examined by Ld. Counsel for defendants and discharged. The court has observed during the cross-examination of DW3 that the Ld. Counsel for the defendants was taking too much time in asking the question and he was directed to ask the question without taking too much time.
15. PW-4 Sh. Jaipal Singh S/o Sh. Bharat Singh r/o A-449 A Block Gali no. 12, Mahavir Enclave Part II Delhi-59 tendered his evidence by way of affidavit Ex. PW4/A. He relied upon the documents already exhibited/proved in the deposition of PW1. PW4 was cross-examined by Ld. Counsel for defendants. The court has observed during the cross- examination of DW4 that the Ld. Counsel for the defendants was taking too much time in asking one question and he was warned to ask the question without taking any unnecessary long time between one question and another but, as Ld. Counsel for defendants did not change his demeanour, high right to cross-examine the witness (PW4) was closed. However, after allowing the application under Order XVIII Rule 17 CPC moved by defendants for recalling the PW4, which was closed vide order dated 08.08.2017, one opportunity was granted to defendants to further cross-examine PW4. Thereafter, PW4 was further cross-examined by Ld. Counsel for defendants and discharged.
16. PW-5 Sh. Gopal Jha S/o Sh. Ram Swaroop Jha age about 58 yrs r/o A-405 B Gali no.12, Mahavir Enclave, Part II, Delhi tendered his evidence by way of affidavit Ex. PW5/A. He relied upon the documents already exhibited/proved in the deposition of PW1. PW5 was not cross- examined by Ld. Counsel for defendants despite opportunity. However, Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 11 of 53 SHILPI M SHILPI JAIN M JAIN Date:
2024.12.23 16:35:01 +0530 after allowing the application under Order XVIII Rule 17 CPC moved by defendants for recalling the PW5, which was closed vide order dated 08.08.2017, one opportunity was granted to defendants to further cross-
examine PW5. Thereafter, PW5 was cross-examined by Ld. Counsel for defendants and discharged.
17. PW-6 Sh. Rajesh Verma S/o Late Sh R.N. Verma, R/o. D-2, Jansatta Apartments, Sector-9, Vasundhara, Ghaziabad (Handwriting Expert) tendered his evidence by way of affidavit Ex. PW6/A. He relied upon his Handwriting/ Signature Examination Report, which bears his signatures on each page at points 'X' and was exhibited as Ex. PW6/1 (13 pages). PW6 was cross-examined by Ld. Counsel for defendants at length and discharged.
18. Thereafter, plaintiff closed its evidence and the matter was listed for defendant's evidence.
19. Four witnesses were examined on behalf of defendant in support of his defense. DW1 Sh. Shiv Kumar Gupta, S/o Sh. Ram Prakash Gupta, R/o A-362, Gali No. 11, Mahavir Enclave, Part-II, New Delhi-59 tendered his affidavit dt. 24.04.2018 Ex.DW1/A and he relied upon the reply sent by him to the legal notice of the plaintiff which is marked as Mark A. DW1 was cross-examined by Ld. Counsel for defendants at length and discharged.
20. DW2 Smt. Vinita Gupta W/o. Sh. Shiv Kr. Gupta, R/o. A- 362, Gall No.11, Mahavir Enclave, Part-ll, New Delhi tendered her Digitally signed by SHILPI SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 12 of 53 M JAIN Date:
JAIN 2024.12.23 16:35:13 +0530 evidence by way of affidavit Ex.DW2/A and also relied upon following documents:
Sl. Particulars of Documents Exhibits/Mark No.
1. Documents i.e. GPA, Gift deed, Ex. DW2/1 Affidavit, all dated 10.08.2015 (Colly) (OSR)
2. Reply to legal notice . Mark A DW2 was cross-examined by Ld. Counsel for plaintiff and discharged.
21. DW3 Sh. B N Srivastava, S/o Late Sh. Hriday Narayan, age 77 years, R/o 1-114, Vikas Puri, New Delhi-110018 tendered her evidence by way of affidavit Ex.DW3/A and also relied upon following document:
Sl. Particulars of Documents Exhibits/Mark No.
1. Handwriting expert report dt. 28.01.2019 Ex. DW3/1 along with photographs and CD (Colly) (Objected to by the Ld. Counsel for defendant as no certificate u/s 65 B of Indian Evidence Act filed in support of above exhibited documents)
22. DW3 was cross-examined by Ld. Counsel for plaintiff and discharged. DW4 Ms. R. Veeramani, JA/Ahlmad in the court of Ms. Vaishali Singh, Ld. JMFC, Mahila Court-05. Dwarka Courts (SW), New Delhi was summoned witness and has brought the judicial file of case State Vs. Shiv Kumar, FIR no. 192/16, PS Dabri u/s 354/325/506/509/34 IPC. The copy of same is Ex.DW4/1 (colly.) running in 8 pages. DW4 was cross-examined by Ld. Counsel for plaintiff and discharged.
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23. Thereafter, DE was closed and matter was listed for final arguments.
SUBMISSIONS OF THE PARTIES
24. Ld. Counsel for plaintiff submitted that, defendants have already taken Rs. 8 lacs out of total sale consideration of Rs. 11 lacs qua the suit property hence, decree of specific performance may be passed in favour of the plaintiff for execution of sale deed on payment of remaining amount of Rs. 3 lacs. It is also submitted that, as per the agreement to sell dt. 17.08.2015 final sale deed was to be executed on 15.01.2016 but defendant forcefully took possession of the suit property on 06.01.2016 and present suit is filed without any delay on 16.02.2016. It is also submitted that, plaintiff was always ready and willing to finalize the sale transaction between the parties and it is defendant's intention which turned bad and they declined to execute the agreement to sell rather, forged and fabricated the documents to deprive the plaintiff from his valid right. It is also submitted that, only defense of defendant in the entire suit is that Ex.PW1/B i.e. agreement to sell dt. 17.08.2015 is forged and fabricated which was first time pointed out in the WS only. It is further submitted that, the plaintiff has already examined all the witnesses to agreement to sell and receipt and there is no suggestion by the defendant to PW1 w.r.t.
the non payment qua the agreement to sell.
25. Per contra, Ld. Counsel for defendant disputed the claim made by the plaintiff. It is stated that Ex.PW1/A as well as Ex.PW1/B i.e. receipt and agreement to sell are forged and fabricated having no evidentiary value in the eye of law. It is also submitted that, Ex.PW1/E Digitally signed by SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 14 of 53 SHILPI JAIN M JAIN Date:
2024.12.23 16:35:40 +0530 i.e. receipt has no relevance as same is for the purpose of inspection only. It is also submitted that, defendant duly replied to the legal notice i.e. Ex.PW1/C wherein dispute was raised. It is also submitted that, PW1 failed to prove his case rather, in his entire testimony deposed that his father is in the knowledge of actual fact, not him. It is further submitted that, on the other side PW5 i.e. father of plaintiff specifically made submission in criminal case 10030/2017 that defendant has taken loan. Ld. Counsel for defendants submits that, contention of plaintiff is contradictory and cannot be relied upon. It is also submitted that, even otherwise relief for specific performance cannot be granted as cash transaction is an unaccounted transaction and in violation of Sec. 269SS IT Act. It is further submitted that, neither there is any valid agreement to sell nor plaintiff was having any willingness and readiness to perform the contract. Hence, present suit is to be dismissed. Lastly, it is submitted that, none of the witness could prove the claim of the plaintiff hence, cannot be relied upon. It is further submitted that, no bank statement is produced before the court to show the plaintiff's capacity. It is also submitted that, in case of possession, an ATS has to be registered which is not a case over here. It is also submitted that, expert witness i.e. DW3 already disprove the signature of defendant. It is also submitted that, opinion of expert witness i.e. PW3 is based on copy, not on original hence, cannot be relied upon. It is also submitted that, father of plaintiff in criminal case no. 10030/2017 specifically deposed that there was some loan transaction only. Lastly, it is submitted that, plaintiff has also examined independent witness and testimony of the same is duly corroborated with the version of plaintiff. Ld. Counsel for defendant relied upon the following judgments in support of his contentions:
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a) I.S. Sikandar (Dead) by LRs vs. K. Subramani & Ors. (2013) 15 SCC 27;
b) Dilbagh Kaur Chandok Through LRs Daljeet vs. State & Anr. Crl.
L.P. 231/2017 dt. 06.02.2019;
c) Shenbagam & Ors. vs. K K Rathnavel Civil Appeal No. 150/2022
d) U N Krishnamurty (since deceased) Thr. LRs vs. A M Krishnamurthy 2022 SCC OnLIne SC 840;
e) N P Thirugnanam (D) by LRs vs. Dr. R Jagan Mohan Rao & Ors.
AIR 1996 SC 116;
f) C.S. Venkatesh v. A S C Murthy (D) by LRs & Ors.
26. In rebuttal, it is submitted by Ld. Counsel for plaintiff that the defendant never challenged financial capacity of plaintiff and same is beyond the pleading. It is also submitted that, none of the PWs was impeached by the defendants and only defense of the defendants is mentioning of inspection in Ex.PW1/E. It is further submitted that, defendant duly admitted his practice of signing in English as well as in Hindi. Lastly, it is submitted that, plaintiff has also examined independent witness and testimony of the same is duly corroborated with the version of plaintiff.
27. Submission heard. Record pursued.
ISSUEWISE ANALYSIS & FINDING ISSUE NO. 1: Whether the documents filed by the plaintiff in support of his plaint are forged and fabricated? OPD
28. In present matter, entire claim of plaintiff is based upon Ex. PW1/A and Ex. PW1/B i.e. Bayana Receipt dated 01.07.2015 and Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 16 of 53 SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:35:54 +0530 agreement to sell dated 17.08.2015. It is submitted that, plaintiff paid Rs. 8,00,000/- out of 11,00,000/- as earnest money and part payment to the defendant but, defendants breached the same and refused to execute sale deed on due date. While, on the other side, defendants disputed the execution of above documents. It is submitted that, Ex.PW1/A as well as Ex.PW1/B i.e. receipt and agreement to sell are forged and fabricated having no evidentiary value in the eye of law. Onus of this issue is upon defendants.
BURDEN OF PROOF:
29. In Anil Rishi v. Gurbaksh Singh1 Hon'ble Supreme Court of India discussed law on onus and burden of proof in following terms:
"8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"101. Burden of proof. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had 1 (2006) 5 SCC 558 Digitally signed by SHILPI SHILPI JAIN M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 17 of 53 M Date:
JAIN 2024.12.23 16:36:01 +0530 been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
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15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words "active confidence" indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
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19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
30. In view of settled law as laid down by Hon'ble Supreme Court India, since plaintiff is claiming relief of specific performance on the basis of Exh. Pw1/A and Exh. Pw1/B, he must prove that said documents/agreement exist. If he discharges that onus and makes out a Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 18 of 53 SHILPI SHILPI M JAIN M Date:
JAIN 2024.12.23 16:36:10 +0530 case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
31. To discharge his onus Plaintiff examined one witness of Ex.
PW1/A and both witnesses of Exh. PW1/B as PW2 and PW3. Plaintiff further examined PW6 as expert witness to testify signature of defendant on Ex. PW1/A and EX. PW1/B. TESTIMONY OF INTERESTED WITNESS:
32. In his deposition, PW2 duly confirmed the execution of PW1/A and PW1/B in his presence and other witness. During the course of arguments, Ld. counsel for defendant submitted that, testimony of PW2 can't be relied upon as he is son in law of Sh. Gopal Jha i.e. father of plaintiff. But, this court is not inclined to accept the plea taken by Ld. Counsel for defendant. No doubt, in law, an interested witness refers to someone who has a stake or interest in the outcome of a legal proceeding. This interest could be financial, personal, or related to their relationship with one of the parties involved in the case but, merely closed relationship with the plaintiff can't be sole ground to discredit the testimony. Some, material has to be brought on record to show that, he has some interest in the subject matter. Reliance is placed upon Laltu Ghosh vs The State Of West Bengal2
12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well settled that a related witness cannot be said to be an 'interested' witness 2 AIR 2019 SUPREME COURT 1058 Digitally signed by SHILPI SHILPI JAIN M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 19 of 53 M Date:
JAIN 2024.12.23 16:36:19 +0530 merely by virtue of being a relative of the victim. This Court has elucidated the difference between 'interested' and 'related' witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752; Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three Judge bench decision in State of Rajasthan v. Kalki (supra): "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be "interested"..."
XXXX
14. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. Union Territory of Pondicherry, (2010) 1 SCC 199:
"23. We are of the considered view that in cases where the Court is called upon to deal with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be Digitally signed by SHILPI M SHILPI JAIN CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 20 of 53 M JAIN Date:
2024.12.23 16:36:28 +0530 pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
(emphasis is mine)
33. Further, PW3 also confirm the execution of PW1/A and Exh. PW1/B in his presence. He specifically deposed that, he was called by defendant No. 1 and 2 at the time of execution of above agreements and plaintiff paid Rs. 8,00,000/- to the defendants. No suggestion to dispute the said fact made by defendants during cross examination rather, Ld. predecessor of this court observed that, counsel for the defendants was taking too much time in asking the question.
34. On Careful consideration of the testimony and cross examination of PW2 and PW3 , this court find the same, consistent and reliable, and therefore reject the contention of the defendants that the testimony of PW2 must be disbelieved because he is close relative of the plaintiff and hence interested witnesses.
35. Plaintiff further examined, PW6 as expert witness to testify the disputed signature of defendants on Ex. PW1/A and PW1/B. For the purpose of clarification, examination in chief is reproduced herein:
'1. That the I have been engaged for more than 22 years in the profession of examining the disputed Handwritings, Finger Digitally signed by SHILPI SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 21 of 53 M JAIN Date:
JAIN 2024.12.23 16:36:36 +0530 Prints, Voice identification, Video and rendering his opinion to his clients as an Expert.
2. That I initially trained under my father Late RN Verma who had educated himself and had successfully completed a course from Institute of Applied Sciences Chicago, USA, from where he Graduated. The course under taken by him covered exami-
nation of Hand Writings, Finger Prints. Questioned Docu- ment, Police Photography and Investigation. That the Depo- nent trained himself under late Sh.R.N.Verma between 1991 to 1994 on theory as well as practical courses and in 1995 I com- pleted one year course from The College of Questioned Docu- ments Examiners, Shimla, which was a Course in Hand Writ- ing Finger Print and Ink Examination. I became Member of International Association for Identification (IAI) in 2000 and appointed as Member of Voice Identification and Acoustic Analysis Committee (VIAS) at IAI, This committee was in- volved in Development of Acoustic Analysis Development Pro- cedure. Deponent Got Trained on Computer Systems, Net- work, Audio Video During 1994 to 2001 through various Courses and constantly upgrading. With Above said Qualifi- cation and Experience I Qualify to submit report on the sub- jects with reference to India Evidence Act Section 45 and I have given opinion in more than 400 cases.
3. That in this matter I was engaged to Examine Questioned Doc-
ument which is Property Bayana Receipt (प्रॉपटीर् बयाना रसीद) dated 01.07.2015 Ex PW1/A bearing purported signatures of Shri Shiv Kumar signed as "िशव कुमार in hindi it has been marked as A1 and Smt Vineeta Gupta signed as "िवनीला गुप्ता signed as A2 in Hindi. Questioned Document two is "Agree- ment to Sell/ Biana" dated dated 107.80.2015 Signed Signa- ture "िशव कुमार" in Hindi marked B, B1, B2 and B3 I have been provided Original Document for Examination. Standard Digitally CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 22 of 53 signed by SHILPI SHILPI M JAIN M Date:
JAIN 2024.12.23 16:36:44 +0530 Documents of Shri Shiv Kumar are "SS" and of Smt. Vinita Gup are "VS" when combined detail given in report.
OPINION 1 The Questioned SQ and Standard SS Signatures Signed as िशव कुमार when compared on Technical points and Formation it is found that these are same in right formed and left formed and proved that are Genuine signatures It means signatures on Property Bayana Raceipt (प्रॉपटीर् बयाना रसीद) dated 01.07 2015 Ex PW1/A and Agreement to Sell / Biana" dated dated 07 80 2015 as mentioned in para one are genuine Signature of Shri Shiv Kumar beyond doubt.
OPINION 2:
The Questioned VQ and Standard VS Signatures Signed as िवनीता गुप्ता when compared on Technical points and For- mation it is found that these are same in right formed and left formed and proved that are Genuine signatures. It means sig- natures on Property Bayana Raceipt (प्रॉपटीर् बयाना रसीद) dated 01.07.2015 Ex PW1/A as mentioned in para one is genuine Signature of Smt Vinita Gupta beyond doubt.
4. That the detail of reasons and observation on the basis of which I have formed my above mention opinion are mentioned in my report dated 16.12.2017, which is correct, signed by me and be taken as part of this affidavit, I had also the above men- tioned signatures from the above referred door also exposed the above mentioned signature from the above referred docu- ments and got prepared their enlarged photographs which were developed and printed under my instructions and are free from any retouching or alteration, hence are the true produc- tion of the signatures under examination, which fact can be Digitally signed by SHILPI M SHILPI JAIN CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 23 of 53 M JAIN Date:
2024.12.23 16:36:50 +0530 and are established by comparing them their counterpart orig- inal documents and are collectively Exhibit No. Ex.PW6/1'
36. PW6 was cross examined at length. For the purpose of clarification, relevant cross examination of PW6 is reproduced herein:
'It is wrong to suggest that the report Ex. PW6/1 filed by me is false and fabricated and the same was prepared at the instance of the plaintiff. It is wrong to suggest that the Marks S1 and S2 in my report have not been taken from the written statement filed by the defendants. At this stage, witness is being confronted from the written statement and the report filed by him, it was found that the admitted signatures S1 and S2 have not been taken from the written statement. Voltr. The same have been taken from the ordersheet dated 12.05.2016 of this Court in the present suit. It is correct that the admitted signature Mark S3 has not been taken from the Vakalatnama of the defendant filed in the present suit. Voltr. The same has been taken from the application u/O. 18 Rule 17 CPC filed by the defendant in the present suit. It is wrong to suggest that the report Ex. PW6/1 has not been prepared carefully and the same has been prepared at the instance of the plaintiff.
I have obtained a Certificate in Questioned Document Examination from the college of Questioned Document Examination and Ink Examination, Shimla. I have done no course in Forensic Science. However, I have undergone a training in Forensic Science for three years under my father. I have not filed any document on record qua undergone training in Forensic Science, although, I have brought the original documents with me today. I have not received any certificate of practical training/project from any government department. I have appeared approximately in 200 cases in Delhi Courts including NCR as an Handwriting and Finger Print Expert.
Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 24 of 53 SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:38:21 +0530 I have not checked the degree of Enlargement of Photographs submitted by me in the court. Voltr. Photographs have been taken from the 13 megapixel camera. It is correct that volunteer portion is not mentioned in my report Ex. PW6/1. I have examined four disputed of the defendant Shiv Kumar i.e. on "Mark B, B-1, B-2 and B-3". I have compared these four disputed signatures with the admitted signatures of the defendant on "Mark S- 1and Mark SP-1". I have examined the standard signatures inter-se, however, the same is not mentioned in my report. It is correct that there is consistency in the standard signatures of the defendant. "No attempt at disguise' is found in the specimen signatures. I have examined the speed and skill of the disputed signatures of the defendant Shiv Kumar. It is incorrect that the speed and skill of the disputed signatures of the defendant Shiv Kumar is superior to that of standard signatures. Voltr. Speed cannot be superior or inferior, it can be written as slow, medium and fast. It is incorrect that the pictorial appearance of the disputed signatures is different from the standard signatures. It is incorrect that the formation of individual letters is apparently different in disputed and standard signatures. It is incorrect that the body part of letter 'Sh' of Shiv Kumar, which is now marked as Mark X1 on documents marked as Mark B, B-1, B- 2 and B-3" is elongated and big in disputed signatures whereas it is small and round in standard signatures and the same are marked as Mark-X2 on documents Mark-S1 and Mark SP-1 and in the Mark SP-1 letter 'Sh' is marked as X-2 (colly). Voltr.
It is in same range.
It is correct that in the disputed signatures which are marked as Mark B, B-1, B-2 and B-3, of defendant Shiv Kumar shows curvature in letter 'Va', however, it is straight in all the standard signatures marked as S-1 and SP-1. Voltr. However all the questioned signatures have variations in the curves. The said fact is not mentioned in my report particularly, however, the same is covered when it is stated that there is natural Digitally signed by SHILPI SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 25 of 53 M JAIN Date:
JAIN 2024.12.23 16:38:32 +0530 variations in the signatures of the defendant Shiv Kumar and that the body part of letter 'Va' of Shiv Kumar, which is now marked as Mark X1/A on documents marked as Mark B, B-1, B-2 and B-3", the same are marked as Mark-X2/B on documents Mark-S1 and Mark SP-1 and in the Mark SP-1 letter 'Va' is marked as X-2/B (colly).
It is incorrect that in the disputed signatures which are marked as Mark B, B-1, B-2 and B-3, of defendant Shiv Kumar, letter 'Ka' is readable as letter 'Ma' whereas in standard signatures, it is clearly readable as 'Ka'. That the body part of letter 'Ka' of Shiv Kumar, which is now marked as Mark X1/B on documents marked as Mark B, B-1, B-2 and B-3", the same are marked as Mark-X2/C on documents Mark-S1 and Mark SP-1 and in the Mark SP-1 letter 'Ka' is marked as X-2/C (colly).
Ques: Is it correct that the letter (matra) 'Oo' is written in continuation with the ending of vertical stroke in letter 'Ka' in disputed signatures but it is separate in standard signatures of defendant Shiv Kumar in documents marked as Mark B, B-1, B-2 and B-3"?
Ans: It is in continuation in documents marked as Mark B, B- 1and B-2, but it is separate in B-3. However, it is separate in all the standard signatures of the defendant Shiv Kumar marked as S-1 and SP-1.
It is correct that the said fact is nowhere been recorded in my report Ex. PW6/1.
That the body part of letter 'Oo' of Shiv Kumar, which is now marked as Mark X1/C on documents marked as Mark B, B-1, B-2 and B-3", the same are marked as Mark-X2/D on documents Mark-S1 and Mark SP-1 and in the Mark SP-1 letter 'Oo' is marked as X-2/D (colly).
Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 26 of 53 SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:38:44 +0530 Ques: Is it correct that letter 'Ma' has been written in one operation of pen in disputed signatures marked as Mark B, B- 1, B-2 and B-3" but in two operations in the standard signatures marked as Mark S-1 and SP-1? Ans: There is only pen lift and pen pause variations.
It is incorrect that the said fact is nowhere recorded in my report.
That the body part of letter 'Ma' of Shiv Kumar, which is now marked as Mark X1/D on documents marked as Mark B, B-1, B-2 and B-3", the same are marked as Mark-X2/E on documents Mark-S1 and Mark SP-1 and in the Mark SP-1 letter 'Ma' is marked as X-2/E (colly).
Ques: Is it correct that there is either closed or open loop in the etter 'Ra' in the standard signatures marked as Mark S-1 and SP-1 but there is no loop in the letter 'Ra' found in the disputed signatures of the defendant Shiv Kumar marked as Mark B, B-1, B-2 and B-3"?
Ans: There are small loops found in the disputed signatures as well. However, there are loops in standard signatures. That the body part of letter 'Ra' of Shiv Kumar, which is now marked as Mark X1/E on documents marked as Mark B, B-1, B- 2 and B-3", the same are marked as Mark-X2/F on documents Mark- S1 and Mark SP-1 and in the Mark SP-1 letter 'Ra' is marked as X- 2/F (colly).
XXXXXXXX It is correct that letter 'RA' in the signature of Shiv Kumar Gupta has diagonal ending in disputed signature but curved ending in standard signature. That the body part of letter 'RA' of Shiv Kumar, which is now marked as Mark X1/F on documents marked as Mark B, B-1, B-2 and B-3", the same are Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 27 of 53 SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:38:54 +0530 marked as Mark-X2/G on documents Mark-S1 and Mark SP-1 and in the Mark SP-1 letter 'RA' is marked as X-2/G (colly).
I have examined one disputed, two standard and rest of the specimen signatures of the defendant Binita Gupta. It is wrong to suggest that retouching is observed in the cup part of 'VA' of the partial signature of defendant Binita Gupta in letter 'Vinita' which is marked as X3/A in disputed signatures. Voltr. It has been signed on the stamp therefore, some variation is there in the formation. It is wrong to suggest that I am deposing falsely in this regard.
It is wrong to suggest that retouching is observed in the partial signature of defendant Binita Gupta in letter 'Vinita' which is marked as X3/A in disputed signatures in the letters 'NA', 'TA', 'GA'. Voltr. It has been signed on the stamp therefore, some variation is there in the formation. It is wrong to suggest that I am deposing falsely in this regard. It is wrong to suggest that formation of cup of letter 'VA' is different in disputed signature marked as A-2 and standard signature marked as S2 and SP2.
It is wrong to suggest that the upper part of matra 'EE' of letter 'VA' is angular in disputed signature marked as A-2 and round in standard signature marked as S2 and SP2. It is wrong to suggest that I am deposing falsely in this regard. It is wrong to suggest that initial part 'NA' joins the vertical stroke nearly at the top in the standard signature marked as S2 and SP2 and in the middle in the disputed signature marked as A2. It is wrong to suggest that I am deposing falsely in this regard.
The letter 'TA' is round in standard signature marked as 52 and SP2 whereas it is angular in disputed signature marked as Mark A2. The partial signature of the defendant Binita Gupta, the letter "Vinita' in the standard signature is marked as S2 is marked as X4 and the standard signature marked as SP2 is now marked as X4/A (colly).
Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 28 of 53 SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:39:04 +0530 It is correct that the base of initial stroke in letter 'GA' as round big loop in disputed signature marked as A2 whereas it is written differently in the standard signature marked as S2 and SP2. Again said. Both the loops of letter 'GA' in disputed signature marked as A2 as well as standard signature marked as S2 and SP2 are same.
It is correct that half letter 'PA' is in angular stroke in disputed signature marked as A2. It is wrong to suggest that there is bold formation in the half letter 'PA' is found in standard signatures marked as S2 and SP2. All the signatures are having angular formation of half letter 'PA'. It is wrong to suggest that I am deposing falsely in this regard. It is correct that the initial part of letter 'TA' is represented by a small curved stroke but it is incorrect that the same is closed to the bottom of the vertical stroke in disputed signature marked as A2. It is correct that in the standard signature marked as S2 and SP2, the initial part of letter 'TA' is represented in big angular stroke. It is incorrect to suggest that there are fundamental differences in respect of the writing characteristics, however, there are variations found in the individual formations of the letters in disputed as well as standard signatures. It is wrong to suggest that I am deposing falsely and the report filed by me is prepared at the behest of the plaintiff.'
37. Careful perusal of above testimony reveals that, same is consistent to the plea taken by plaintiff. However, in entire cross-
examination defendant nowhere disputed admitted signature of defendant on S1, S2 and S3.
38. Ld. counsel for defendant vehemently disputed the signature of defendants on Exh. PW1/A and Ex. PW1/B. He also examined DW3 as expert witness to disprove signature of Defendants. Examination of Chief Digitally signed by SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 29 of 53 SHILPI JAIN M JAIN Date:
2024.12.23 16:39:12 +0530 as well as Cross examination of DW3 is reproduced herein for sake of clarification:
'1. That I am working as Handwriting and Fingerprints Expert of over 45 years and have received training in this science from an Expert of Delhi late Mr. M.K.Mehta, during year 1967-68. I have also done one year Certificate Course in Fo- rensic Science from University of Delhi, in year 1970. I have so far given opinion/evidence in around 4000 cases in differ- ent courts of law in States of U.P., Punjab, Haryana, Delhi.
2. That in the present case, I have examined the disputed signa-
tures of Binita Gupta in Hindi on photocopy and original of Biyana Receipt dt. 01.7.15, Εx. PW1/1 and compared the same with the comparative/specimen signatures of Binita Gupta, detailed in enclosed report of dt. 28.01.19. The dis- puted signatures have been marked as Q-1 & Q-2 and com- parative/specimen as A-1 to A-5 and Y-1 to Y-10 on the pho- tographic enlargements. I have also examined the disputed signature of Shiv Kumar, original Biyana Receipt dt.1.7.15 and on pages of Agreement to Sell and compared the same with the specimen of Shiv Kumar taken in court. The disputed signatures have been marked as D- 1, D-2 to D-5 and the specimen as S-1 to 8-13 on the photographic enlargements.
3. That in my opinion the disputed signatures of Binita Gupta, marked as Q-1 & Q-2 are FORGED by method of imitation forgery and have not been written by the writer of the com- parative signatures, marked as A-1 to A-5 and Y-1 to Y-10. I am also of the opinion that the disputed signatures of Shiv Kumar, marked as D-1, D-2 to D-5 have not been written by the writer of the specimen signatures marked as S-1 to S-13. The disputed and the comparative signatures have been writ- ten writers. by DIFFERENT writers.
Digitally signed by SHILPI SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 30 of 53 M JAIN Date:
JAIN 2024.12.23 16:39:21 +0530
4. The reasons for my opinion have been given in my report dt. 28.01.19, Ex. DW/1, which bears my signature on each page and is correct. The photographs have been marked as Ex. DW /2 to Ex.DW / ,The markings photographs are in my hand. done on the photographs are in my hand.
5. That I took the photographs of the above mentioned (disputed and the comparative/specimen signatures) with Cannon dig- ital camera and copied the files, on C.D. Ex. DW / from properly maintained computer and are restored in computer. I got photographs prepared from a Colour Lab. under my su- pervision. That the computer out put containing the infor- mation mentioned in my affidavit, was produced by my com- puter during the period over which, the Computer was used by me and I was having lawful control over the use of com- puter and the information contained in the electronic record reproduced from information fed into the computer in the or- dinary course of its operations and nothing material has been concealed.' CROSS EXAMINATION OF DW3 'I do not have any license to practice as a examiner. (vol. There is no provision for registration of Handwriting Expert. The evidence of the handwriting expert is done u/s 45 of Indian Evidence Act.) I cannot tell the exact date, month of year when defendant approached me for the purpose of examination.
At this stage, witness is referred to point no. A to A Ex.DW3/1 (colly.).
Q1. Do you have any document or proof to show that you were present in court on 17.11.2017?
Ans. I need to go through the court record. At this stage, court record is referred to DW-3 and on perusal of the same, his answer is as follows:
Digitally signed by SHILPI M SHILPI JAIN CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 31 of 53 M JAIN Date:
2024.12.23 16:39:28 +0530 Ans. I have taken photographs of specimen signature from the court record. However, I do not remember the exact date. I do not know whether I was present in the court on 17.11.2017 or not. I do not remember about the same. Q2. I put it to you that you were not present in the court on 17.11.2017?
Ans. I cannot say.
Q3. Have you taken any leave before taking specimen from the court record?
Ans. I have not taken. (vol. Advocate may have taken). It is wrong to suggest that I do not bear qualification as mentioned in Ex.DW3/1 (colly.). It is correct that I have not seen defendant while signing any document. It is wrong to suggest that Ex.DW3/1 (colly.) is false and without any basis and prepared at the instance of defendants. It is wrong to suggest that there is no imitation or forgery or pen-lifting, retouching, tremors, pen pause, slow and drawn movement as mentioned in Ex.DW3/1 (colly.). It is wrong to suggest that the signatures in Bayana Receipt dt. 01.07.2015 and agreement to sell dt. 17.08.2015 are similar. It is wrong to suggest that Ex.DW3/1 (colly.) is prepared without verifying the originals. It is wrong to suggest that the details of equipments from which the photographs are taken are not given in the evidence by way of affidavit as well as in Ex.DW3/1 (colly.). It is wrong to suggest that the contents of the Ex.DW3/A are false and fabricated and given at the instance of defendants. It is wrong to suggest that I am deposing falsely.'
39. At this stage, it is imperative to discuss Relevancy, admissibility and appreciation of Expert Evidence.
RELEVANCY, ADMISSIBILITY AND APPRECIATION OF EXPERT EVIDENCE:
Digitally signed by SHILPI M SHILPI JAIN CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 32 of 53 M JAIN Date:
2024.12.23 16:39:40 +0530
40. An expert witness is a person with specialized knowledge or experience in a particular field who is called upon to provide their expertise in legal proceedings. They are used to help the court understand complex technical or scientific issues.
41. In 1993, the US Supreme Court, in its landmark judgment Daubert v. Merrell Dow Pharmaceuticals, Inc.3 had identified four non- definitive and non-exhaustive factors that were thought to be illustrative of characteristics of reliable scientific knowledge. They are - • testability or falsifiability, • peer review, • a known or potential error rate, and • general acceptance within the scientific community.
42. Section 45 of the Indian Evidence Act, 18724 specifies, relevancy of expert witnesses' opinions. Although, the standard of proof that is applied to the admission of scientific evidence and expert testimony is similar in civil and criminal matter but, requisite degree of proof may differ. Section 47 of the IEA5 states that the evidence pertaining to 3 509 U.S. 579 (1993) 4 Section 39(1) of Bhartiya Sakshya Adhiniyam, 2023 Opinions of experts (1) When the Court has to form an opinion upon a point of foreign law or of science or art, or any other field, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or any other field, or in questions as to identity of handwriting or finger impressions are relevant facts and such persons are called experts.
5Section 41(1) of Bhartiya Sakshya Adhiniyam, 2023 Opinion as to handwriting and signature, when relevant. (1) When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
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2024.12.23 16:39:52 +0530 handwriting may be admissible from anyone who is not professionally trained, provided that they are acquainted with the handwriting in question.
43. The evidentiary value of the opinion of an expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Mere assertion without mentioning the data or basis is not evidence, even if it comes from an expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.
INTERNATIONAL ADMISSIBILITY RULES: DAUBERT STANDARDS
44. Essentially, Daubert requires that the judge shall delve into the scientific field concerned and examine its reliability, assessing 'whether the reasoning or scientific methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be properly applied to the facts in issue.'
45. In Kumho Tire Co. v. Carmichael6, it was held that Daubert applies not only to scientific knowledge but also testimony based on Explanation.--A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
6526 U.S. 137 Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 34 of 53 SHILPI M SHILPI JAIN M JAIN Date:
2024.12.23 16:40:02 +0530 "technical" and other specialized knowledge, such as engineering, blacksmith, etc. The three rulings together are referred to as Daubert trilogy. The "intellectual rigor" test enunciated in Kumho means that an expert's outstanding qualifications will not make the expert's opinion admissible unless the expert has a valid basis for how and why a conclusion was reached. Experts must be prepared to establish that their conclusions were reached by methods that are consistent with how their colleagues in the relevant field or discipline would proceed to establish a proposition if they were presented with the same facts and issues.
INDIAN COURTS ON DAUBERT STANDARDS:
46. Often, Indian courts have taken help of legal transplants and international precedents from other jurisdictions, most predominantly, Daubert, to define admissibility criteria within Indian jurisprudence.
Daubert itself emphasizes that the factors listed to assist judges in determining 'whether the reasoning or methodology underlying the testimony is scientifically valid' were neither exclusive nor decisive.
47. In Ramesh Chandra v. Regency Hospital7, the Supreme Court categorically laid out the conditions that govern the admissibility of expert evidence as Expert must be heard, Area of expertise must be a recognised one; The evidence must be based on reliable principles; He must be qualified in the area of specialisation, either by education or by way of experience.
7AIR 2010 SUPREME COURT 806 Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 35 of 53 SHILPI SHILPI M JAIN M Date:
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48. It is settled law that, an expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.
49. Section 73 of the Indian Evidence Act8 further empowers a court to compare the disputed signatures with the admitted signatures but the same cannot be done on a casual perusal or a mere glance, particularly without even recording an analysis of the characteristics of the admitted signatures as compared to those of the disputed one.
8Section 72 of Bhartiya Sakshaya Adhiniyam, 2023 Comparison of signature, writing or seal with others admitted or proved. (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
(3) This section applies also, with any necessary modifications, to finger impressions Digitally signed by SHILPI M SHILPI JAIN CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 36 of 53 M JAIN Date:
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50. Hon'ble Supreme Court of India in its Full bench judgment in Chennadi Jalapathi Reddy vs Baddam Pratapa Reddy (Dead) Through LRs9 laid down that:
8. By now, it is wellsettled that the Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the Court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect, reference may be made to a long line of precedents that includes Ram Chandra and Ram Bharosey v. State of Uttar Pradesh, AIR 1957 SC 381, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210, and S. Gopal Reddy v. State of Andhra Pradesh, (1996) 4 SCC 596.
We may particularly refer to the decision of the Constitution Bench of this Court in Shashi Kumar Banerjee (supra), where it was observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said case, the Court chose to disregard the testimony of the handwriting expert as to the disputed signature of the testator of a Will, finding such evidence to be inconclusive. The Court instead relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the Will.
9. On the other hand, in Murari Lal v. State of Madhya Pradesh, (1980) 1 SCC 704, this Court emphasised that reliance on expert testimony cannot be precluded merely because it is not corroborated by independent evidence, though the Court must still approach such evidence with caution and determine its 9 AIRONLINE 2019 SC 970 Digitally CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 37 of 53 signed by SHILPI M SHILPI JAIN M JAIN Date:
2024.12.23 16:40:27 +0530 creditworthiness after considering all other relevant evidence. After examining the decisions referred to supra, the Court was of the opinion that these decisions merely laid down a rule of caution, and there is no legal rule that mandates corroboration of the opinion evidence of a handwriting expert. At the same time, the Court noted that Section 46 of the Indian Evidence Act, 1872 (hereinafter "the Evidence Act") expressly makes opinion evidence open to challenge on facts.
In Alamgir v. State (NCT, Delhi), (2003) 1 SCC 21, without referring to Section 46 of the Evidence Act, this Court reiterated the observations in Murari Lal (supra) and stressed that the Court must exercise due care and caution while determining the creditworthiness of expert evidence.
10. In our considered opinion, the decisions in Murari Lal (supra) and Alamgir (supra) strengthen the proposition that it is the duty of the Court to approach opinion evidence cautiously while determining its reliability and that the Court may seek independent corroboration of such evidence as a general rule of prudence. Clearly, these observations in Murari Lal (supra) and Alamgir (supra) do not go against the proposition stated in Shashi Kumar Banerjee (supra) that the evidence of a handwriting expert should rarely be given precedence over substantive evidence.
51. Careful perusal of testimony of expert witnesses as well as other witness to Exhb. PW1/A and Ex. PW1/B and material available on record, this court is of the opinion that, Exhb. PW1/A and Ex. PW1/B are genuine.
Prohibition u/s 269SS of The Income Tax Act Digitally signed by SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 38 of 53 SHILPI JAIN M JAIN Date:
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52. It is well settled law that, Section 269SS prohibits any person from taking or accepting from any other person any loan or deposit other than by an account payee check or by account payee bank draft, if the amount or aggregate amount referred to in clause (a) together with the amount or aggregate amount referred to in clause (b) is twenty thousand rupees or more. But, If person violates Section 269SS, then he is liable to a penalty under Section 271D of the Income Tax Act. As such, defendant can't take plea against cash receipt/payment of part sale consideration.
53. Another point of argument pressed upon by defendant is about statement in criminal case 10030/2017. But, this court also doesn't find any merit in the submission made by defendant that, in Cr. Case 10030/2017, father of plaintiff specifically deposed that, 'one property case is pending against the accused persons which as been filed by me. The case is on the issue that accused persons has taken loan from my son Manish Kumar' as firstly, testimony of father of plaintiff in Cr. Case 10030/2017 is non specific w.r.t. dispute and transaction. Secondly, father of plaintiff was examined as PW5 in present proceeding but, no such conformation is made with this respect. Thirdly, nature of criminal proceedings is unclear. Hence, Issue No. 1 decided in favour of plaintiff and against the defendant.
ISSUE NO. 2: Whether the plaintiff is entitled to decree of specific performance on the basis of Agreement to Sell and Purchase dated 17.08.2015? OPP Digitally signed by SHILPI SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 39 of 53 M JAIN Date:
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54. Before going ahead, it is imperative to discuss the Law on specific performance before 2018 amendment and its applicability on the fact of present matter.
LAW ON SPECIFIC PERFORMANCE BEFORE AND AFTER AMENDMENT OF 2018
55. To highlight the change some of the provisions of the Act, 1963 and the Amendment Act, 2018 are contrasted hereinbelow:
Secti Act of 1963 Act as amended, effective on on 01.10.2018 Secti 10. Cases in which specific 10. Specific performance on 10 performance of contract in respect of contracts.
enforceable-
The specific performance of Except as otherwise provided in a contract shall be this Chapter, the specific enforced by the court performance of any contract may, subject to the provisions in the discretion of the court, be contained in subsection (2) enforced- of section 11, section 14 and section 16.
(a) when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.
Explanation: Unless and until the contrary is proved, the court shall presume-
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 40 of 53 SHILPI SHILPI JAIN M M Date:
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(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:
(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.
Secti 14. Contracts not specifically 14. Contracts not on 14 enforceable.- specifically enforceable.-
(1) The following contracts cannot The following contracts be specifically enforced, namely,- cannot be specifically enforced, namely:--
(a) a contract for the non-
performance of which (a) where a party to the compensation is an adequate contract has obtained relief; substituted performance of contract in accordance with
(b) a contract which runs into such the provisions of section minute or numerous details or 20;
which is so dependent on the personal qualifications or volition (b) a contract, the of the parties, or otherwise from performance of which its nature is such, that the court involves the performance of cannot enforce specific a continuous duty which the performance of its material terms; court cannot supervise;
(c) a contract which is in its nature (c) a contract which is so determinable; dependent on the personal qualifications of the parties
(d) a contract the performance of that the court cannot which involves the performance of enforce specific a continuous duty which the court performance of its material cannot supervise.
terms; and (2) Save as provided by the Arbitration Act, 1940, no Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 41 of 53 SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:40:59 +0530 contract to refer present or future (d) a contract which is in its differences to arbitration shall be nature determinable. specifically enforced; but if any person who has made such a contract (other than arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.
(3) Notwithstanding anything contained in clause (a) or clause
(c) or clause (d) of sub-section (1), the court may enforce specific performance in the following cases:
(a) where the suit is for the enforcement of a contract,-
(i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once:
PROVIDED that where only a part of the loan has been advanced the vendor is willing to advance the remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a company;
(b) where the suit is for,-
(i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or Digitally signed by SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 42 of 53 SHILPI JAIN M JAIN Date:
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(ii) the purchase of a share of a partner in a firm;
(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land:
PROVIDED that the following conditions are fulfilled, namely,-
(i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and
(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.
Secti 16. Personal bars to relief.- 16. Personal bars to relief.- on 16 Specific performance of a Specific performance of a contract cannot be enforced in contract cannot be favor of a person- enforced in favour of a person-
(a) who would not be entitled to recover compensation for its (a) who has obtained breach; or substituted performance of contract under section 20;
(b) who has become incapable of or performing, or violates any Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 43 of 53 SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:41:16 +0530 essential term of, the contract that (b) who has become on his part remains to be incapable of performing, or performed, or acts in fraud of the violates any essential term contract, or willfully acts at of, the contract that on his variance with, or in subversion of, part remains to be the relation intended to be performed, or acts in fraud established by the contract; or of the contract, or wilfully acts at variance with, or in
(c) who fails to aver and prove that subversion of, the relation he has performed or has always intended to be established been ready and willing to perform by the contract; or the essential terms of the contract which are to be performed by him, (c) who fails to prove that other than terms of the he has performed or has performance of which has been always been ready and prevented or waived by the willing to perform the defendant. essential terms of the contract which are to be Explanation: For the purposes of performed by him, other clause (c),-
than terms of the (i) where a contract involves the performance of which has payment of money, it is not been prevented or waived essential for the plaintiff to by the defendant. actually tender to the defendant or Explanation.-For the to deposit in court any money purposes of clause (c),- except when so directed by the court; (i) where a contract involves the payment of (ii) the plaintiff must aver money, it is not essential for performance of, or readiness and the plaintiff to actually willingness to perform, the tender to the defendant or contract according to its true to deposit in court any construction. money except when so directed by the court; (ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction. Digitally signed by SHILPI M CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 44 of 53 SHILPI JAIN M JAIN Date: 2024.12.23 16:41:25 +0530 Secti 20. Discretion as to decreeing 20. Substituted on 20 specific performance.- performance of contract.- (1) The jurisdiction to decree (1) Without prejudice to the specific performance is generality of the provisions discretionary, and the court is not contained in the Indian bound to grant such relief merely Contract Act, 1872 (9 of because it is lawful to do so; but 1872), and, except as the discretion of the court is not otherwise agreed upon by arbitrary but sound and the parties, where the reasonable, guided by judicial contract is broken due to principles and capable of non-performance of correction by a court of appeal. promise by any party, the party who suffers by such (2) The following are cases in breach shall have the which the court may properly option of substituted exercise discretion not to decree performance through a specific performance: third party or by his own (a) where the terms of the contract agency, and, recover the or the conduct of the parties at the expenses and other costs time of entering into the contract actually incurred, spent or or the other circumstances under suffered by him, from the which the contract was entered party committing such into are such that the contract, breach. though not voidable, gives the (2) No substituted plaintiff an unfair advantage over performance of contract the defendant; or under sub-section (1) shall (b) where the performance of the be undertaken unless the contract would involve some party who suffers such hardship on the defendant which breach has given a notice in he did not foresee, whereas its writing, of not less than non-performance would involve thirty days, to the party in no such hardship on the plaintiff; breach calling upon him to or perform the contract within (c) where the defendant entered such time as specified in the into the contract under notice, and on his refusal or circumstances which though not failure to do so, he may get rendering the contract voidable, the same performed by a makes it inequitable to enforce third party or by his own specific performance. agency : Provided that the party who suffers such Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 45 of 53 SHILPI M SHILPI JAIN M JAIN Date: 2024.12.23 16:41:33 +0530 Explanation 1: Mere inadequacy breach shall not be entitled of consideration, or the mere fact to recover the expenses and that the contract is onerous to the costs under subsection (1) defendant or improvident in its unless he has got the nature, shall not be deemed to contract performed through constitute an unfair advantage a third party or by his own within the meaning of clause (a) or agency. hardship within the meaning of (3) Where the party clause (b). suffering breach of contract Explanation 2: The question has got the contract whether the performance of a performed through a third contract would involve hardship party or by his own agency on the defendant within the after giving notice under meaning of clause (b) shall, except sub-section (1), he shall not in cases where the hardship has be entitled to claim relief of resulted from any act of the specific performance plaintiff subsequent to the against the party in breach. contract, be determined with (4) Nothing in this section reference to the circumstances shall prevent the party who
existing at the time of the contract.
has suffered breach of (3) The court may properly contract from claiming exercise discretion to decree compensation from the specific performance in any case party in breach.
where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.
Secti 21. Power to award compensation 21. Power to award on 21 in certain cases- compensation in certain cases.-
(1) In a suit for a specific performance of a contract, the (1) In a suit for specific plaintiff may also claim performance of a contract, compensation for its breach, the plaintiff may also claim Digitally CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 46 of 53 signed by SHILPI SHILPI M JAIN M Date:
JAIN 2024.12.23 16:41:39 +0530 either in addition to, or in compensation for its substitution of, such performance. breach in addition to such performance.
(2) If, in any such suit, the court decides that specific performance (2) If, in any such suit, the ought not to be granted, but that court decides that specific there is a contract between the performance ought not to parties which has been broken by be granted, but that there is the defendant, and that the a contract between the plaintiff is entitled to parties which has been compensation for that breach, it broken by the defendant, shall award him such and that the plaintiff is compensation accordingly. entitled to compensation for that breach, it shall award (3) If, in any such suit, the court him such compensation decides that specific performance accordingly.
ought to be granted, but that it is not sufficient to satisfy the justice (3) If, in any such suit, the of the case, and that some court decides that specific compensation for breach of the performance ought to be contract should also be made to granted, but that it is not the plaintiff, it shall award him sufficient to satisfy the such compensation accordingly. justice of the case, and that some compensation for (4) In determining the amount of breach of the contract any compensation awarded under should also be made to the this section, the court shall be plaintiff, it shall award him guided by the principles specified such compensation in section 73 of the Indian accordingly.
(4) In determining the
(5) No compensation shall be
amount of any
awarded under this section unless
compensation awarded
the plaintiff has claimed such
under this section, the court
compensation in his plaint:
shall be guided by the
PROVIDED that where the principles specified in
plaintiff has not claimed any such section 73 of the Indian
compensation in the plaint, the Contract Act, 1872 (9 of
court shall, at any stage of the 1872).
proceeding, allow him to amend
(5) No compensation shall
the plaint on such terms as may be
be awarded under this
just, for including a claim for such
section unless the plaintiff
compensation.
Digitally
signed by
CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 47 of 53 SHILPI SHILPI
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+0530
Explanation: The circumstance has claimed such
that the contract has become compensation in his plaint:
incapable of specific performance
Provided that where the
does not preclude the court from
plaintiff has not claimed
exercising the jurisdiction
any such compensation in
conferred by this section.
the plaint, the court shall, at
any stage of the proceeding,
allow him to amend the
plaint on such terms as may
be just, for including a
claim for such
compensation.
Explanation.-The
circumstances that the
contract has become
incapable of specific
performance does not
preclude the court from
exercising the jurisdiction
conferred by this section.
56. In the matter of Global Music Junction Pvt. Ltd V. Shatrughan Kumar Aka Khesari Lal Yadav & ORS10, Hon'ble High Court of Delhi discussed in detail the scope of Specific Performance before and after amendment as follows:
'This Court is of the view that the Amendment Act, 2018 introduces a paradigm shift in law regarding contractual enforcement in India. A glaring instance of the legislative shift is the amendment of Section 14 of Act, 1963 which deletes the earlier sub-clause (a) which prescribed that the contracts for the non-performance of which compensation in money was an adequate relief would not be specifically enforced, meaning thereby that the plea that a party could be compensated in monetary terms as damages for breach 10 FAO(OS) (COMM) 7/2023 Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 48 of 53 SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:41:54 +0530 of the contract and resultant refusal of interim injunction on the said ground, is no longer a ground to refuse specific performance of the contract. Consequently, the Amendment Act, 2018 does away with the primacy given to damages as a relief over specific performance. It shifts the focus from the previous default remedy of award of damages for breach of contract to enforcing specific performance of contracts.' WHETHER 2018 AMENDMENT APPLICABLE RETROSPECTIVELY OR PROSPECTIVELY?
57. Recently, in M/s Siddamsetty Infra Projects Pvt. Ltd. Versus Katta Sujatha Reddy & Ors11 as decided on November 08, 2024, Hon'ble Supreme Court of India recalled its 2022 judgment which held that the 2018 amendment to the Specific Relief Act, 1963, will apply only prospectively to transactions effected after the date when the amendment came into force (01.10.2018). Meaning thereby, 2018 Amendment shall be applicable retrospectively.
58. The next issue is whether the plaintiff is entitled to a decree for specific performance for PW1/A and PW1/B. READINESS AND WILLINGNESS:
59. Readiness and willingness broadly refer to the capacity and preparedness of a party to a lis to perform his part of the contract. The aforesaid requirement is one of the essential ingredients under Section 16 of the Specific Relief Act, 1963. It is clear that in order to prove readiness 11 Review Petition (C) No. 1565 of 2022 in C.A. No. 5822 of 2022 Digitally CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 49 of 53 signed by SHILPI M SHILPI JAIN M JAIN Date:
2024.12.23 16:42:02 +0530 and willingness, the burden is on the purchaser to prove that he was always ready and it is only the vendor who refused to perform the contract for extraneous consideration. Readiness insofar as a purchaser/plaintiff is concerned boils down to the question whether he was possessed of the necessary funds to pay the sale consideration. It must be shown that the readiness and willingness on the part of the plaintiff is continuous, right from the date of contract till the decree. Readiness and willingness is a matter to be established from the overall conduct of the plaintiff and not a rhetoric of assertion. The compliance of readiness and willingness has to be in spirit and substance; and not in letter and form. To test whether a party has performed his obligations, one has to see the pith and substance of his plea.
60. The legal position has been succinctly laid down by the Hon'ble Supreme Court in Aniglase Yohannan v. Ramlatha & others12 as follows:
'It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale.
Lord Campbell in Cork v. Ambergate etc. and Railway Co., (1851) 117 ER 1229 observed that in common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of 12 (2005) 7 SCC 534 Digitally CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 50 of 53 signed by SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:42:11 +0530 the plaintiffs, and that they were disposed and able to complete it had it not been renounced by the defendant.
The basic principle behind Section 16(c) read with Explanation
(ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief.
The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.
Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey and Ors., AIR (1994) SC 105 that the plaintiff had substantiated his plea.'
61. Coming to the facts, this court noticed that the plaintiff had specifically pleaded that he was and is ready and willing to perform his part of the contract. This case will first consider the 'readiness' of the plaintiff, which essentially refers to his financial capacity, as referred earlier. More importantly, out of Total 11,00,000/-, plaintiff already paid Rs. 8,00,000/- to the defendant and issued legal notice as early as 07th Jan 2016 i.e. before the scheduled date of execution of final Sale Deed. Perusal of said legal notice (Exh. PW1/ C) reveals that, plaintiff requested defendants to appear before the office of Sub registrar on schedule date of execution of sale Deed i.e. 15.01.2016. Ex. PW1/E reveals that, plaintiff was duly present at the sub registrar office on 15.01.2016 which further confirms the fact of readiness and willingness in favour of plaintiff.
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62. Another point of argument addressed by Ld. Counsel of defendants is that, it is defendant no. 1 who is exclusive owner of suit property by virtue of Exh. DW2/A (Colly). Admittedly, no title document of defendant no. 1 produced by any of the party. Thus, court had not gone into validity of said title documents as no declaratory relief sought by plaintiff. The following observation of the Hon'ble Supreme Court in Anathula Sudhakar v. P.Buchi Reddy (Dead) By Lrs & Ors13, is apposite in this context:
"29. .......No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues, is a proposition that is too well settled."
63. Thus, considering overall facts and circumstances of present matter this court is of the opinion that, in absence of title deed in favour of defendant no. 2, relief of specific performance cannot be granted. But, since, genuinity of Ex.PW1/A and Ex.PW1/B and readiness and willingness of plaintiff is established plaintiff shall be held entitle for full refund of Rs. 8,00,000/- alongwith simple interest @8% per annum from date payment till date of actual realization. The aforesaid conclusion is also bolstered by the fact that specific performance can only be granted when title is not disputed and essential terms of contract are fully established. Issue No. 2 stands disposed off accordingly.
ISSUE NO. 3: Whether the plaintiff is entitled to decree of permanent injunction with regard to L Type shop, without roof rights at the ground floor on built up property bearing no.A-362, Area measuring 9'x9' Sq. ft. khasra no.7/3, situated in the area of village Mirzaur, Delhi Estate Delhi, 13 (2008) 4 SCC 594 Digitally signed by CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 52 of 53 SHILPI SHILPI JAIN M M Date:
JAIN 2024.12.23 16:42:29 +0530 abadi known as Mahavir Enclave, Part-II, Gali no.11, New Delhi-59, (hereinafter referred to as the suit property)? OPP
64. In terms of above discussion, this issue is strike off as become infructuous.
ISSUE NO. 4: Whether the plaintiff is entitled to a decree of Rs.8 lacs with interest thereon? OPP
65. As already discussed in detail in issue no. 2, this issue is decided in favour of plaintiff. Plaintiff shall be held entitled for full refund of Rs. 8,00,000/- alongwith simple interest @8% per annum from date payment till date of actual realization.
ISSUE NO. 5: Relief.
66. Decree of Rs. 8,00,000/- passed in favour of plaintiff and against the defendants. Plaintiff shall also be entitled for simple interest @8% per annum from date payment till date of actual realization.
67. No order as to cost.
68. Decree sheet be prepared accordingly.
Announced in open court Digitally signed by SHILPI M SHILPI JAIN on 23.12.2024 Date:
M JAIN 2024.12.23 16:42:41 +0530 (SHILPI M JAIN) District Judge-05, South West District Dwarka Courts, New Delhi CS No. 15351/16 Manish Kumar Jha Vs. Binita Gupta Page No. 53 of 53