Delhi District Court
Ashish vs Dalawar Singh on 19 November, 2024
IN THE COURT OF SH. RAKESH KUMAR SINGH
DISTRICT JUDGE-02, NORTH-WEST
ROHINI COURT: DELHI.
CS DJ No.575564/2016
Sh. Ashish
S/o Sh. Bhupender Singh
R/o Village Shahbad Mohamadpur
New Delhi-110061.
.......Plaintiff
VERSUS
Dalawar Singh
S/o Sh. Ranjeet Singh
R/o VPO Laadpur
Delhi-110081.
..... Defendant
Date of Institution : 04.06.2011
Date of Arguments : 18.09.2024
Date of Judgment : 19.11.2024
SUIT FOR SPECIFIC PERFORMANCE OF THE
AGREEMENT TO SELL DATED 18.08.2009 AND FOR
PERMANENT INJUNCTION AND IN THE
ALTERNATIVELY FOR RECOVERY OF AMOUNT OF
Rs.13 Lacs WITH INTEREST
JUDGMENT:
1. It is the case of the plaintiff that defendant had entered into an agreement to sale dated 18.08.2009 for selling his 1/6th share in the land bearing khasra Nos.9/1/2(3-10), 2(1-16), 3(4-16), 20/4(4-16), 6/1(1-04), 7/1(1-11), 7/2(0-5), 8(4-16), 9/3(1-2), 13/1(4-8), 63/6(4-16), 7(4-16), 14(1-4), 64/10(1-12), 87/16/2(2-
8), 25/1(2-8), 92/20(4-16), 21(4-16) situated in the revenue estate of Village Laadpur, Delhi-81. The total consideration was Rs.75,00,000/- out of which plaintiff had paid to the defendant Rs. 13 Lacs and balance amount was to be paid at the time of CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 1 of 12 registration of sale deed which was fixed on or before 03.11.2009. The defendant was required to obtain NOC but he protracted the same and therefore the plaintiff himself wanted to apply for NOC before the revenue authority and for this purpose he want to the revenue authority on 02.11.2009 and he was informed that defendant had already entered into another agreement to sell with other person. The plaintiff confronted the defendant who admitted the same but failed to provide any explanation and therefore the plaintiff demanded his money back. The defendant did not return the advance money and as such the plaintiff filed the instant suit for recovery of Rs. 13 Lacs.
2. The defendant appeared to contest the suit. However, the plaintiff came up with an amendment application to include the relief of specific performance of the agreement. This amendment was declined by the Ld. Predecessor but was allowed by the Hon'ble High Court leaving the point of limitation to be decided later on. Defendant has taken a defence of total denial of any such agreement to sell and also raised other miscellaneous issues.
3. On basis of pleadings, the Ld. Predecessor vide order dated 16.08.2017 framed the following issues:
1. Whether the suit of the plaintiff seeking specific performance of the agreement dated 18.08.2009 is within limitation ? OPP.
2. Whether the plaintiff was/is ready and willing to perform his act as per terms and conditions of the agreement dated 18.08.2009? OPP
3. Whether the plaintiff is entitled to a decree of specific performance of agreement dated 18.08.2009? OPP
4. Whether the plaintiff is entitled to any alternative relief if the main relief of specific performance is not granted to him? OPD
5. Relief.
4. Matter was put to trial wherein Sh. Ashish was examined CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 2 of 12 as witness/PW1 who tendered his affidavit vide Ex.P-1 and was cross-examined. The plaintiff also examined one another witness Sh. Jitender as PW-2 and he was cross examined. The defendant side, examined Sh. Dilawar Singh/defendant as DW-1 who filed his affidavit in evidence vide Ex.DW1/A and was cross examined. Final arguments have been heard from both the sides.
On perusal of the record, I now proceed to dispose of the present suit.
5. Now we can take up the issues for consideration.
6. Issue no. 1 relates to bar of limitation regarding prayer of specific performance. It appears that initially the plaintiff had filed the suit just to recover the money given in advance to the defendant as part consideration concerning the agreement to sell dated 18.08.2009. The original suit was filed in the year 2011. Subsequently, in the year 2014 the plaintiff came up with an application for amendment praying for specific performance of the agreement. The Ld. Predecessor had dismissed the application but the Hon'ble High Court allowed the amendment with specific noting that bar of limitation would be decided by the trial court. We are therefore, to see if the relief of specific performance can be treated as within time or not.
7. The order of Hon'ble High Court nowhere suggests that it was directing the amendment to relate back to the date of original institution of the suit. In the original suit there is a paragraph no. 14 which purportedly talks about readiness and willingness of the plaintiff to perform his part of the agreement. This paragraph is produced as under:
"14. That it is stated that the plaintiff on 03 rd November, 2009 ready and willing to execute the sale transaction but the defendant failed to communicate his readiness and willingness to get the NOC and selling the property.CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 3 of 12
Rather the defendant has played fraud upon the plaintiff."
8. Taken singularly and at face value, paragraph no. 14 of the original suit will show that plaintiff was ready and willing to perform the sale transaction. However, Section 16 of the Specific Relief Act is not a mere formality when it creates a personal bar for obtaining the relief by saying that a person who fails to aver and prove his readiness and willingness shall not be entitled for the relief of specific performance. The case is governed by the un-amended law when making of averment was mandatory. Such averment cannot be equated with a simple mentioning of the expression "ready and willing". The plaintiff was required to properly make averments regarding his willingness and readiness. These two terms are clearly different and therefore require different meaning. The plaintiff however has simply used the words in paragraph 14. The usage of expression by the plaintiff has not even differentiated between readiness and willingness. If we read some subsequent paragraphs of the original suit, it will clarify that the plaintiff was never ready and willing for execution of the sale deed. Paragraph no. 15, 16 & 17 of the original suit are reproduced as under:
"15. That the plaintiff was under the impression that another person namely Sh. Rajesh was claiming specific performance against the suit land and due to this reason, the plaintiff had agreed to take his earnest money and therefore, suit was filed for recovery only. Since now during the course of hearing in the bail application matter in FIR no. 222/2013 registered at P.S. Kanjhawala, Delhi, the plaintiff has come to know that said Sh. Rajesh was not claiming specific performance of his agreement dated 23.07.2008 against suit land and his confined his suit to the recovery of amount, therefore, the plaintiff is ready to pay the balance agreed CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 4 of 12 consideration amount to the defendant provided unencumbered title is transferred to the plaintiff by execution of the sale deed.
16. That it is apparent that the defendant was never ready or willing to sell the property but to cheat the plaintiff.
17. That since the plaintiff is ready and willing to pay the balance agreed consideration amount to the defendant, therefore, the defendant cannot create third party interest in respect of the suit property and hence the plaintiff is also praying for permanent injunction against alienation or creation of third party interest by the defendant in respect of the suit property."
9. The aforesaid paragraphs show that after 03.11.2009 the plaintiff was requesting the defendant to return his money and defendant was making excuses and even the plaintiff served a legal notice for the refund of the amount. If the plaintiff was insisting upon return of earnest money, there cannot be any question of his willingness to complete the sale transaction.
10. Then in the year 2014, the plaintiff came up with amendment application taking a ground that he has come to know that some other person namely Rajesh was not insisting on specific performance against the instant defendant in respect of his own agreement to sell, therefore, he himself now wants execution of the sale deed. He claimed that only because he was under a belief that the said Rajesh would be asking for specific performance that he did not pray for specific performance of agreement in the original suit. This is completely frivolous. No such averment was ever made in the original suit as to why the plaintiff was not praying for the specific performance. It is clear that there is no reason to relegate the plaintiff back to the date of original suit so far as the amendment is concerned. It is one thing CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 5 of 12 to say that a plaint can be amended before framing of issues but it is entirely another thing to say that in all eventualities the amendment will relate back to the original institution date. It is held that the amendment made in the plaint in this case shall be treated as effective from the date when the amendment application was filed in the year 2014.
11. The time for execution of sale deed was 03.11.2009. As per the plaintiff himself, he had already come to know about another agreement entered into by the defendant and therefore he was of the view that defendant was never inclined to execute the sale deed. This apparently happened on 02.11.2009. Article 54 of the Schedule appended to Limitation Act provides for two starting points of limitation i.e. either the fixed date of performance or the refusal by the opponent to perform. In either of these situations, the starting point of limitation would be 02.11.2009 or 03.11.2009. Counted from these dates, a three years period would have expired much prior to the filing of amendment application. Consequently the suit so far specific performance is concerned is clearly barred by limitation. Issue no. 1 is decided against the plaintiff.
12. Issue no. 2 relates to readiness and willingness to perform on the part of plaintiff. We have seen aforesaid that the plaintiff was never ready and willing to perform his part else he would not have been repeatedly insisting the defendant to return his earnest money. Additionally, the plaintiff during his cross-examination has accepted that he has not filed any document showing that he was having Rs. 62 Lacs in his possession at the relevant point of time. No doubt, there is no necessity that a plaintiff furnishes any demand draft or deposit the amount in court to show his readiness but certainly on a mere bald averment he cannot claim CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 6 of 12 his readiness. A plaintiff has to show some kind of material such as availability of amount in his bank account or availability of such movable or immovable property which he can dispose immediately to arrange for the funds or even affidavits of his friend/relatives ready to give him money. Nothing has been done by the plaintiff in this case to show that he was having or could have arranged the balance sale consideration of Rs. 62 Lacs at the relevant point of time. Issue no. 2 is therefore decided against the plaintiff.
13. Issue no. 3 relates to relief of specific performance. We have seen above that not only the plaintiff was not ready and willing to perform the agreement which could create bar of Section 16 but also the relief of specific performance is barred by limitation. As such, plaintiff cannot claim the relief for specific performance of agreement dated 18.08.2009. Consequently, the issue no. 3 is decided against the plaintiff.
14. Issue no. 4 relates to entitlement of plaintiff for alternate relief of money recovery. For this to happen the plaintiff needs to establish that there was an agreement with the defendant and further he has given Rs. 13 Lacs to the defendant as earnest money. We have to see if both these points have been established by the plaintiff or not. Plaintiff has examined himself as PW-1 along with his brother-in-law namely Sh. Jitender as PW-2. Defendant has examined himself as DW-1 and one Tarun as DW-2.
15. The agreement to sell dated 18.08.2009 is available on record. The defendant is claiming that he never entered into this agreement. He says that initially he had entered into an agreement with one Rajesh on 23.03.2009 which was to be concluded by 23.07.2009. He states that plaintiff and Rajesh are CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 7 of 12 in collusion and have prepared this false agreement to sell dated 18.08.2009. He however does not dispute that the agreement bears his thumb impression. He is claiming that Rajesh had got his thumb impression on several papers and have misused the same.
16. The question is as to whether the aforesaid claim of the defendant should be accepted or not. In the cross-examination the defendant has specifically accepted that he did not file any complaint with police in respect of obtaining his thumb impression on blank papers. He has also accepted in the cross- examination that he did not file any civil suit to get the documents cancelled which have been misused by Rajesh. This court is of the view that simply by making a bald allegation that his thumb impression were obtained on blank papers, defendant cannot discredit the document. If the defendant was genuine, he ought to have taken criminal as well as action against the said Rajesh. Having not done so, the defendant has taken a risk of probabilities going against him.
17. One thing needs to be taken note of is that the best person who could have said anything about obtaining thumb impression on blank document was Rajesh. It has not been explained anywhere as to why the defendant could not summon the said Rajesh as a witness in defence. No doubt, he might not have supported the defendant in testimony. However, Evidence Act recognizes such type of situation and allows a party to put leading question if his witness does not support him. The defendant could have extracted truth from the said Rajesh by examining him as a witness in this case. The defendant has not done so. It is not the case of defendant that Rajesh would not have been amenable to the summons of this court. Therefore, a CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 8 of 12 mere bald assertion about misuse a blank signed document cannot be accepted.
18. There is another reason also not to believe the defendant. Though the defendant is claiming that he is an illiterate person but this court is of the view that even an illiterate person in Delhi is aware about the stamp papers. First page of the agreement to sell is written on stamp paper. If anyone asks even an illiterate person to put his thumb impression on stamp paper, such person will definitely decline the same. There is no explanation as to why and how the defendant could have put thumb impression on blank stamp paper on the asking of Rajesh. There is no material available on record to show that defendant was having blind faith on the said Rajesh. There is a further document which is receipt. This receipt is though typed but has a revenue stamp. The thumb impression of defendant is appearing on the revenue stamp crossing over the page. Meaning thereby the defendant put the thumb impression only when the revenue stamp was already affixed on the paper. The defendant accepts his thumb impression on this receipt also. It is completely unbelievable that a person does not know the impact of putting thumb impression on a revenue stamp. This court is unable to believe in the version of defendant.
19. Ld. Counsel for defendant has however pointed out some lacunae in the testimony of plaintiff and his witness and claims that the same improbabilizes the plaintiff's case. This court however considers that once the defendant accepted putting thumb impression on the document, it was for him to have specifically proved that no content was written on the document when he put his thumb impression thereon. The defendant has completely failed in this respect.
CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 9 of 1220. Be that as it may, the contentions of Ld. Counsel for defendant can also be dealt with here. Firstly, he argues that 02.11.2009 was a holiday and therefore the plaintiff could not have gone to the revenue authority on that day. I think this was required to be put to the plaintiff but the defendant did not do so during the cross-examination. He put this question to another witness who replied that he could not say anything. Since it was the plaintiff who had gone on 02.11.2009 to the revenue department, the question regarding holiday was irrelevant so far as other witnesses is concerned. In the absence of any opportunity of explanation given to the plaintiff by the defendant, this argument of Ld. counsel cannot hold water. Further the defendant was required to establish on record that not only 02.11.2009 was holiday but on that the revenue office was also closed. But the defendant has not done so by any cogent means. Simply by making submission during the arguments cannot justify anything. Even otherwise, this is immaterial so far as refund of money is concerned.
21. Ld. Counsel for defendant has argued that plaintiff was not aware about the transaction as he himself stated in the cross- examination that everything was done by his brother in law Jitender. He further submits that on the other hand Jitender contradicted this during his cross-examination by saying that plaintiff had entered into the agreement and he was present as a witness. However, cross-examination of Jitender itself shows that everything was done by him and he had complete knowledge about all the transactions. Even the cross-examination of plaintiff specifically shows that Jitender had acted as middle man. This court does not find any material contradiction on this count between the two witnesses. It is not uncommon for relatives to CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 10 of 12 take part in the discussion related to property transaction and the active relatives are always at forefront and it may happen several times that the actual purchasing person may simply put his signature after final discussion. We cannot avoid the reality by taking shelter into minor improvisation or contradiction happened during the cross-examination of the witnesses. A counsel for opponent always tries to create some or the other kind of confusion during cross-examining a witness and therefore the testimony of every witness needs to be holistically read.
22. Ld. Counsel for defendant has also argued that the documents i.e. agreement to sell and receipt have not been established on record because there is no proper compliance of Section 67 of Evidence Act. It seems that the PW-2 Jitender is the attesting witness of the document and he claims that the document was prepared and thumb impression was put by the defendant. He claims that he was present at that time. Defendant has not brought any cogent material on record to show that Jitender was not present at that point of time. In such circumstances, simply because Jitender is related to the plaintiff, his testimony cannot be discarded. This court is of the view that the documents are properly established on record.
23. The defendant during the cross-examination of PW-2 has unnecessarily tried to introduce the confusion by confining the witness with multiple photocopies of the same agreement to sell. There is no proof that those photocopies were actually copied from the original and therefore the same could not have been relied upon by the defendant. Those photocopies cannot be treated as evidence at all and therefore any type of misadventure on the part of the defendant cannot be appreciated.
24. Once we accept that defendant had entered into the CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 11 of 12 agreement to sell dated 18.08.2009 and had received Rs. 13 Lacs from the plaintiff vide the receipt, he is liable to refund the said amount unless he justifies the retention thereof. In the instant case neither in the WS nor in the evidence, there is any proposition advanced by the defendant that for any reason he is entitled to retain the amount. It is not as it he is unaware about the proposition that a proposed seller can retain the earnest money in case he deems the proposed buyer in default. In the cross-examination itself while answering about the agreement entered into with Rajesh, the defendant has stated that since Rajesh had not performed his part of agreement, he did not return his money to him. It is clear that had the defendant intended to blame any kind of default on the plaintiff, he would have asserted about retaining the earnest amount. He has not done so and therefore he cannot retain the amount.
25. If the defendant cannot retain the amount, the natural corollary is that he has to refund the same to the plaintiff. The plaintiff therefore would be entitled for the alternative relief of refund of the earnest money. The issue no. 4 is decided accordingly in favour of plaintiff.
26. In view of the aforesaid, the suit is partly decreed in favour of the plaintiff and against the defendant for a sum of Rs. 13 Lacs which shall carry a simple interest of 6% per annum from the date of institution of the suit i.e. 04.06.2011 till realization of the amount. Decree be prepared accordingly.
Announced in the Open Court RAKESH Digitally signed by
on 19th day of November, 2024 KUMAR
RAKESH KUMAR SINGH
Date: 2024.11.19
SINGH 16:08:31 +0530
(RAKESH KUMAR SINGH)
District Judge-2 (North-West)
Rohini Courts: Delhi
CS DJ No. 575564/2016 Ashish. vs. Dalawar Singh Page 12 of 12