Delhi High Court
Rishi Dev Batra vs Dr. (Mrs.) Anup Suri on 15 March, 2007
Equivalent citations: (2007)207CTR(DEL)689, [2007]289ITR475(DELHI)
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. On the basis of purported agreement to sell cum receipt dated 28.8.2003, the plaintiff has filed the suit for specific performance and perpetual injunction. As per this receipt dated 28.8.2003, the defendant had offered and agreed to sell Kothi No. 8/273, Sunder Vihar, Paschim Vihar, New Delhi ad-measuring 240 sq. yards for a total consideration of Rs. 70 lacs while claiming to have clean and mercantile title. The plaintiff had paid Rs. 5 lacs to the defendant as advance/earnest money which is reflected in this receipt and balance amount of Rs. 65 lacs was to be paid on or before 14.12.2003.
2. It is alleged in the plaint that the defendant had also agreed to get the property converted from leasehold to freehold and balance amount of Rs. 65 lacs was to be paid subject to the fulfillment of aforesaid reciprocal obligation by the defendant. However, the defendant failed to get the suit property freehold and deliberately adopted go-slow tactics with the hidden intentions to wriggle out of the agreement and made various excuses in this behalf, though the plaintiff was always ready and willing to perform his part of the application under the agreement by paying the balance consideration. According to the plaintiff, on account of constant persuasion, the defendant ultimately succeeded in getting the suit property freehold on or about the med of April, 2005. When the plaintiff got this information around 1.5.2005, he immediately approached the defendant in his anxiety to pay the remaining sale consideration but to his utter surprise and dismay, the defendant clamped an arbitrary, illegal, highhanded and morbid demand of an additional payment of Rs. 10 lacs in her bid to blackmail and pressurise him while claiming the so-called escalation in the prices in the vicinity. Shattered and benumbed by such an ominous course of events, the plaintiff immediately got served a legal notice dated 5.5.2005 demanding the defendant to honour the agreement but it failed to cut the ice on account of the adamant and stubborn attitude of the defendant who sent the reply dated 15.5.2005 accusing the plaintiff for breach of contract and levelling false self-contradictory and afterthought allegations. The plaintiff also alleged that the defendant was trying to sell this property to some third party and in these circumstances, the present suit was filed on 1.6.2005.
3. After receiving the summons, the defendant entered appearance through counsel and filed written statement contesting the suit. As per the defendant, the suit of the plaintiff is based on falsehood and forged document. It is alleged that receipt dated 28.8.2003 is tempered with and the words "& freehold basis", which were never written in the said agreement-cum-receipt while signing the same, are added afterwards. This, according to the defendant, is done to cover up his breaches in as much as the plaintiff failed to make the payment of balance consideration of Rs. 65 lacs by 14.12.2003 which was to be given by him under all circumstances and was not conditioned by any obligation on the part of the defendant to get the property freehold. It is stated that it was for the plaintiff to take these steps for getting the property freehold by approaching the authorities and the defendant was to only sign the necessary paper and apply for the same. It is pointed out that when the agreement was entered into, the application for conversion with DDA was already pending and the defendant was already holding the required documents from her children. It was, thus, for the plaintiff to follow up the same with the DDA as it was specifically written in the receipt also that a sum of Rs. 20,000/- was to be deducted from the sale consideration as expenses for conversion. It is stated that one Sh. Devender Kumar along with the plaintiff took the copies of the application and said that they would do the needful before the DDA for conversion of the property from leasehold to freehold. However, in or around mid September, Sh. Devender Kumar, on behalf of the plaintiff, approached the defendant and told her that she should get fresh documents executed from her son and daughter who were in USA and only then the process of conversion can be completed. Although, the defendant was surprised at this, she still contacted her children and asked them to send the fresh power of attorney. Her daughter Shikha Bahl sent a special power of attorney dated 24.10.2003 authorising the defendant to conveyance deed executed. Likewise, the power of attorney executed by son of the defendant was also received from the USA. Sh. Devender Kumar took both these documents but thereafter returned the power of attorney executed by defendant's daughter saying that it was not required and the power of attorney executed by defendant's son Sh. Amit Suri was deposited with the DDA. On 13.12.2003, Sh. Devender Kumar came to the defendant and informed that the plaintiff had suffered heavy losses in his brick business in Orissa and did have the balance consideration and was not in a position to purchase the property. He offered a cheque of Rs. 1 lac but the defendant refused and demanded the entire balance amount by 14.12.2003. Since this amount was not paid, agreement stood cancelled and became null and void.
4. Based on the above said pleadings, the following issues were framed on 8.11.2005:
1) Whether the plaintiff had materially altered and forged exihbit P-1 i.e. Agreement-cum-receipt by adding the words "& freehold basis" as alleged in the written statement and, therefore, the suit is liable to be dismissed as such? OPD
2) Whether the plaintiff has always been ready and willing to purchase the suit property?
3) Whether the plaintiff failed to perform his obligations under the Agreement/Receipt dated 28.08.2003?
4) Whether the suit is maintainable in its present form?
5) Whether the plaintiff is entitled to the relief(s) prayed for?
5. Before framing of issues, statement of the plaintiff was also recorded under Order X Rule 1 on 12.9.2005. Both the parties led their evidence. The plaintiff has examined himself as PW1. On behalf of the defendant, two witnesses, namely the defendant herself as DW1 and her brother Col. Chander Jit Anand as DW2, are examined. I have heard the arguments of the counsel for the parties and have gone through the record and documents filed.
6. As all the issues are inter-connected, thus they are being taken for discussion together.
7. It is not in dispute that agreement-cum-receipt dated 28.8.2003 was entered into between the parties. As per this 'agreement receipt', the defendant received a sum of Rs. 5 lacs from the plaintiff in cash against the aforesaid suit property. It further mentions that the price of the property is fixed at Rs. 70 lacs and the balance consideration of Rs. 65 lacs would be paid by the purchaser within 100 days. It further mentions that last date of payment was 'on or before 14.12.2003'. This agreement receipt is printed one, wherein certain blanks are filled. These blanks relate to the earnest money received, names of the parties, description of the property, sale consideration, date by which balance is to be paid etc. The printed version also states that 'in case of lease-hold seller will give Power of attorney in favor of purchaser'. Printed portion includes the assertion that If the purchaser fails to get the sale deed completed within the stipulated period the earnest money stand forfeited and this bargain shall be treated as cancelled. In case the undersigned fails to get the sale deed registered, the sale purchaser will be entitled to a penalty of double the amount advanced against the said property in his/her own name or his/her nominee through the court of law at the cost of the undersigned.
8. Receipt is signed by the defendant as well as two witnesses. Beneath the printed portion, adjacent to the space, where the defendant has signed, following handwriting version appears:
Rs. 20,000/- (Rs. Twenty thousand only) will be deducted fro freehold expenses from the seller if other expenses of F. Hold will be borne by the Purchaser.
up to this stage, there is no dispute about the contents of the 'agreement receipt'. However, in the receipt filed by the plaintiff on record where the words "last date of payment" (in print) appear, it is written in hand 'On or before 14.12.2003' and in continuity it is written '& freehold basis'. Likewise, at the right hand corner on the bottom of this receipt, after the description of seller and purchaser, signatures of Rishi Dev Batra i.e. plaintiff appear. Case of the defendant is that the words '& freehold basis' were not there originally and are added afterwards. Likewise, the plaintiff has also put his signatures later on to make it an agreement which otherwise could not be described as agreement as it was only a receipt and contained the signatures of the defendant alone and thus by these interpolations, the receipt is tampered with.
9. Plea of the plaintiff is that these words were written at the time of signing of agreement and the plaintiff had also signed the receipt at that time and not afterwards. It was the submission of the learned Counsel for the plaintiff that it is not in dispute that the property in question was to be converted into freehold. In the cross-examinations, however, she has alleged that there was oral understanding regarding the conversion but the defendant has failed to prove this oral understanding. It is also argued that since process of conversion had already been initiated and pending at the time of signing the agreement, there was hardly any requirement for reapplying to the DDA by the plaintiff. However, the defendant never gave any papers to the plaintiff to approach the DDA to get the property converted into freehold and this would show that the defendant undertook this task which would also be clear from the fact that her daughter had given her the Special Power of Attorney in her favor.
10. Learned Counsel for the defendant, on the other hand, submitted that in order to prove that aforesaid words were written subsequently, the defendant has produced on record carbon copy of the said agreement receipt which does not contain these words nor signature of the plaintiff. He further submitted that even to the naked eye such interpolation was discernible which was in different ink. His further submission was that even the circumstance would show that it was the plaintiff's obligation to get the said property freehold inasmuch as in the receipt it was specifically written that the balance payment was to be paid within 100 days and the agreement also provided that sum of Rs. 20,000/- as expenses for freehold was to be deducted from the sale consideration.
11. I find force in the contention of the learned Counsel for the defendant. The 'agreement receipt' specifically mentions that 'the balance amount of Rs. 65,00,000/- (Rs. Sixty Five lacs only) will be paid by the purchaser within 100 days (in case of lease-hold seller will give power of attorney in favor of purchaser)'. As the property was leasehold, in view of this stipulation the defendant was to execute the power of attorney in favor of the purchaser. If the property could not be converted into freehold by the specified rate. Another circumstance, which is in favor of the defendant is the mentioning of Rs. 20,000/- as expenses for getting it freehold which was to be deducted from the sale consideration. Had it been the obligation of the defendant to get the property freehold, there was no occasion to have this stipulation. In that event the defendant (seller) could have got the property converted into freehold of her own and was thus not required to pay a sum of Rs. 20,000/- to the plaintiff in the form of deduction from the sale consideration.
12. Furthermore, it is specifically stated that if the expenses incurred in getting the property freehold are more than Rs. 20,000/-, balance has to be borne by the purchaser (the plaintiff). This, coupled with the fact that the words '& freehold basis' are written with different pen, clinches the issue in favor of the defendant. Except for these words, all other blanks, which are filled, are in different ink which is dark blue colour whereas these words are in black colour/black blue colour. The defendant has placed on record the carbon copy of this agreement receipt. The placement of handwriting portion, handwriting, the construction of the words thereon clearly indicates that it is the carbon copy of the agreement receipt. The comparison of the original agreement receipt produced by the plaintiff and the carbon copy produced by the defendant abundantly and unequivocally proves it. In the carbon copy produced by the defendant, the words '& freehold basis' do not exist. This carbon copy does not contain the signatures of the plaintiff either, beneath his name written as purchaser. It can, thus, safely be concluded that these additions are made afterwards. Once, we reach this conclusion, answer to other questions is not difficult to find. It becomes manifest that the plaintiff, in his attempt to sustain his plea that he was not in default in making the payment by 14.12.2003, made out such a case. endeavor was to throw the burden upon the defendant by alleging that it was for the defendant to get the property freehold and since it was not done, the plaintiff was not under obligation to make payment of balance amount.
13. This plea of the plaintiff also stands falsified by his conduct as well. The balance payment was to be made by 14.12.2003. The plaintiff did not write any letter asking the defendant to fulfilll the said obligation so that he could pay the money. In fact, there is no correspondence between the parties from 14.12.2003 till 5.5.2005, when for the first time legal notice is sent by the plaintiff to the defendant. Thus for almost one and half years, the plaintiff kept mum. It would be of interest to note that though the plaintiff alleges that he was willing to perform his part of the contract, he has not been able to prove that he had sufficient money with him to make payment of Rs. 65 lacs which was the balance consideration. In his cross-examination, not only he has admitted that he had not written any letter to the defendant after execution of the agreement till issuance of the notice by his counsel, he has also accepted the suggestion that at no point of time he had Rs. 65 lacs in his bank account. He has only pleaded that he could have arranged this money as his father had lot of money. He had further stated that he started business of property dealing nearly 16 years back in the name of Batra Properties which was carried on for six or seven months and was closed. Someone else was carrying on business in his name. He has admitted that Mr. Ramesh was looking after the Batra Property business. Though he has denied the suggestion that Mr. Ramesh had filled the agreement in his presence before it was signed but at other place he has stated that it was probably Mr. Ramesh who in his handwriting added the expression '& freehold basis'. He is evasive about the carbon copy of this agreement. When his statement was recorded under Order 10 Rule 1 CPC on 12.9.2005, he categorically stated that there was no carbon copy along with this agreement but when he appeared as witness, in his cross-examination he stated that 'I do not remember if there was any carbon copy attached to this agreement'. While denying that it was not his job to get the property converted into freehold, he mentioned that the defendant had already spent Rs. 20,000/- for getting the property freehold. If the defendant had spent this amount, there was no question of the plaintiff recovering this amount from the defendant by adjusting the sum from the sale consideration as mentioned in the receipt. This also proves that the plaintiff had no money to pay the balance consideration and that is why he kept quiet all this period. He thus even failed to perform his obligation under the agreement by making balance consideration available. All the issues are accordingly answered against the plaintiff and in favor of the defendant.
14. I may note here that the defendant's counsel had submitted that even if there was breach on the part of the defendant, the plaintiff was not entitled to decree of specific performance inasmuch as the agreement stated that in the event of such breach, the plaintiff would be entitled only to double the amount as compensation. Learned Counsel for the plaintiff had argued that notwithstanding such a clause, the plaintiff could seek the relief of specific performance and referred to the judgment of the Supreme Court in P.D 'Souza v. Shondrilo Naidu AIR 2004 SC 4472 and of Madras High Court in Sangali Solagan v. Nagamuthu Malavadi and Ors. Learned Counsel for the defendant had, on the other hand, relied upon two judgments of Madras High Court in S.K. Panchaksharam Mudaliar (died) and Ors. v. T.V. Kanniah Naidu and Ors. and Janab M.H.M. Yakoob (died) and Ors. v. M. Krishnan (died) and Ors. . However, in view of my above discussion and finding upon the issues, it is not necessary to discuss this aspect.
15. The consequence would be to hold that the plaintiff is not entitled to any relief. The suit is hereby dismissed with costs.