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[Cites 30, Cited by 0]

Delhi District Court

Dharam Pal Saini vs . Smt. Prem Chadha Cs 609583/16 on 18 November, 2019

Dharam Pal Saini vs. Smt. Prem Chadha      CS 609583/16



   IN THE COURT OF SH.MANISH YADUVANSHI
    ADDITIONAL DISTRICT JUDGE (CENTRAL):
          TIS HAZARI COURTS: DELHI

CIVIL SUIT No : 609583/2016
(12 YEARS & 7 MONTHS & 5 DAYS OLD)

SH.DHARAM PAL SAINI
son of late Sh. Niranjan
resident of G-55, Pushkar Enclave,
Paschim Vihar,
New Delhi.                              .....Plaintif

               VERSUS

SMT. PREM CHADHA
wife of Sh.Ramesh Chadha
resident of G-54, Pushkar Enclave,
Paschim Vihar,
New Delhi.

also at :
AG-45, Pushkar Enclave
Paschim Vihar,
New Delhi.

      SUIT FOR SPECIFIC PERFORMANCE,
   POSSESSION AND PERPETUAL INJUNCTION

Date of Institution of the suit     :13.04.2007
Date on which judgment was reserved :24.10.2019
Date of decision                    :18.11.2019



Result:Suit dismissed                       Page 1 of 61
 Dharam Pal Saini vs. Smt. Prem Chadha                       CS 609583/16



                          JUDGMENT

1. According to the plaint, the defendant is owner in possession of freehold property no.G­54, Industrial Works Housing Society, Pushkar Enclave, Paschim Vihar, New Delhi ad­measuring 193.16 sqyds. On 13.8.2005, defendant entered into an agreement with the plaintiff for sale of entire second floor (to be constructed) with roof/terrace rights, with common user, rights of stairs and passage forming part of property afore­stated for a valuable consideration of Rs.6,50,000/­ and a sum of Rs.1,25,000/­ was paid by the plaintiff to the defendant as earnest money vide cheque No.493287 dated 16.8.2005 drawn on HDFC Bank Ltd, Punjabi Bagh Branch, New Delhi against a valid receipt duly executed by the defendant. It is averred that as per the terms and conditions of the agreement, the plaintiff was to pay the balance amount of consideration i.e. Rs.5,25,000/­ within a period of ten months from the date of execution of the agreement to sell and/or after completion of the said floor and on receipt of full and final sale consideration amount, the defendant had undertaken to execute the proper sale deed/transfer documents in respect of the above­stated property. It is also averred that on repeated requests of the defendant the plaintiff had also paid to the defendant a further sum of Rs.1,50,000/­ in the following manner :

Result:Suit dismissed Page 2 of 61
Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16
(i) Rs.50,000/­ vide cheque no. 493297 dated 12.9.2005 of HDFC Bank, Panjabi Bagh West, New Delhi; and,
(ii) Rs.1,00,000/­ vide cheque no. 493300 dated 26.9.2005 of HDFC Bank, Panjabi Bagh West, New Delhi.

2. It is further averred that as per the terms of the agreement, the defendant had also agreed that in case the defendant fails to fulfill the obligations under the agreement within the stipulated period then the plaintiff will be at liberty to receive double the amount of the earnest money and in addition also to get the sale/transfer transaction completed through court of law at the cost and expenses of the defendant and to get possession of the second floor. It is averred that defendant had also specifically stated in the agreement that the above­ stated property is free from all sort of encumbrances. It is further averred that the plaintiff personally approached the defendant on several occasions and requested her to complete the construction of the second floor so that he may make the payment of the balance of the sale consideration and she may execute the sale deed in his favour and she always promised to do so as early as possible but the defendant has been avoiding the fulfilling of her obligation under the agreement and that, keeping in view his urgent requirement of accommodation and also the time factor, the plaintiff sent a letter on 23.05.2006 to the Result:Suit dismissed Page 3 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 defendant requesting her to execute the documents of sale by 12.6.2006 as per the terms of the contract for which the defendant was requested to co­operate.

3. It is also averred that the defendant was requested to co­ operate with the plaintiff and apprised him of the date by which the construction will be completed and the sale deed will be executed and possession of the second floor will be handed over to him. It is averred that the above­said letter was sent through Registered Post with AD card as well as through UPC and the same was received by the defendant but no reply was given by her. It is also averred that thereafter, the plaintiff has been contacting the defendant almost on every alternative day to complete the construction as well as to complete the sale transaction because he was experiencing great difficulty and wanted to accommodate his family in the newly constructed house but the defendant showed her disinterest in completion of the construction as well as in the sale transaction and demanded the entire balance amount and accordingly, the plaintiff got prepared three bankers cheques for Rs.60,000/­ and Rs.2,30,000/­ both drawn on SBI, Meera Bagh, New Delhi and for Rs.85,000/­ drawn on HDFC Bank, New Delhi dated 09.6.2006, 10.6.2006 and 09.6.2006 respectively and wanted to give these cheques to the defendant. It is Result:Suit dismissed Page 4 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 further averred that on 11.6.2006, the plaintiff again approached the defendant with folded hands to start the construction so that the same can be completed as per the promise as he was facing great hardship due to lack of accommodation at his disposal.

4. It is averred that the defendant had completed the construction of the basement, ground floor and first floor and there was no reason as to why the construction of the second floor should not be completed. It is further averred that the defendant had also constructed the boundary wall of the second floor upto the height of about six feet and there are no reasons as to why the construction of remaining second floor should not be completed. It is also averred that the defendant had promised to start and complete the construction as early as possible. It is averred that keeping in view the fact that the defendant had always promised to complete the construction but never started remaining construction of the second floor, the plaintiff approached the defendant in the morning of 12.6.2006 and requested her to come to the office of the Sub­Registrar II, Punjabi Bagh, Delhi at 10.00 a.m. so that the remaining amount of the consideration may be paid to her and a draft sale deed may be prepared.

5. It is also averred that the plaintiff had requested the Result:Suit dismissed Page 5 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 defendant that at least a General Power of Attorney be executed with regard to the delivery of possession of the semi construction second floor in favour of the plaintiff and the construction may proceed as per her promises and the defendant promised to come to the said office of the Sub­Registrar II, Punjabi Bagh, at 10.00 am. It was further agreed that on reaching the Sub­Registrar office along with the balance sale consideration of Rs.3,75,000/­, the plaintiff waited for the defendant for several hours and also tried to contact her on telephone but she was not available anywhere and she intentionally did not reach the office of Sub­Registrar. However, the plaintiff had got his presence marked in the office of the Sub­Registrar. It is averred that now the defendant is giving finishing touches to the basement, ground floor and first floor and had abandoned the second floor with ulterior motives and it appears that the defendant wants to wriggle out of the agreement. It is also averred that the plaintiff had tried several times to inspect the premises but the defendant had never allowed him to do so. It is further averred that the plaintiff had organized the meetings of the respectable persons in order to convince the defendant that she is legally bound to fulfill her obligations under the said agreement and the plaintiff was always ready and willing with the requisite amount of money but the defendant always avoided to discuss the matter of agreement with any of the persons and to execute the sale deed. It is averred that after Result:Suit dismissed Page 6 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 exhausting all possible ways to convince the defendant to fulfill her obligation under the said agreement, the plaintiff got a legal notice served upon the defendant on 07.2.2007 under registered post as well as under UPC wherein the plaintiff had given details of the amount paid to the defendant and had invited her attention to the provisions of the said agreement and that, in the said notice plaintiff had also given details of his efforts to get the sale deed executed and has requested the defendant to fulfill her part of obligation under the said agreement but no reply was received to the said notice for more than a month and a Reply dated 09.3.2007 has been received by the counsel for the plaintiff through S.P.Gupta & Associates wherein the defendant has admitted the execution of the agreement to sell as well receipt of the earnest money and further amount as detailed in the Notice of the plaintiff. It is further averred that a proper reply by the plaintiff has been given to the Reply given by the defendant to the Notice of the plaintiff dated 07.2.2007. It is also averred that in the above Reply dated 09.3.2007 the defendant has taken a false plea that the Agreement to Sell dated 13.8.2005 was got executed by the plaintiff as the defendant had taken a loan from the plaintiff and she required further amount of loan in lieu thereof. It is averred that no loan had ever been demanded or paid to the defendant by the plaintiff. It is further averred that in the above­ stated Reply dated 09.3.2007, the defendant has stated that although the Result:Suit dismissed Page 7 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 agreement to sell was executed as referred to in the Notice of the plaintiff dated 07.2.2007 but actually it was not to be enforced and was just executed for the repayment of the loan amount received by the defendant. It is also averred that the reply given by the defendant is a clever device to wriggle out the agreement to sell due to the fact that there is an escalation in the price of the property and the defendant is contacting various property dealers to sell the property to someone else. It is averred that on 16.3.2007 and 18.3.2007, the defendant had brought some prospective buyers of the second floor along with the property dealers who had inspected the property but went away when the fact of agreement to sell dated 13.8.2005 was brought by the plaintiff to their notice. It is also averred that the defendant has got no right to give finishing touches to the construction of the ground floor and first floor and to occupy the same without proceeding with and completing the construction and handing over the possession of the second floor to the plaintiff as per provisions of the above stated agreement to sale.

6. It is further averred that the plaintiff is ready and willing to pay balance sale consideration amount to get the sale deed executed and the defendant is under a legal obligation to execute the sale deed and deliver the peaceful physical possession of the entire second floor Result:Suit dismissed Page 8 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 portion of the suit property to the plaintiff. It is also averred that the plaintiff is entitled to restrain the defendant from parting with the possession of the second floor of the suit property to any person. It is further averred that the plaintiff is also entitled to equitable relief of specific performance of the agreement dated 13.8.2005. Failure of the defendant to do the needful, as requested by the plaintiff, led to filing of the present suit for the relief as mentioned in prayer clause of the plaint.

7. After putting in appearance, the defendant filed written statement wherein preliminary objections were taken to the effect that

(i) the plaintiff has not come to the court with clean hands and has suppressed the material facts; (ii) suit is barred under Section 14 of the Specific Relief Act and that, alleged agreement to sell dated 13.8.2005 is illegal, unlawful, result of fraud, mis­representation, void ab­initio and is a sham document; (iii) the alleged agreement to sell dated 13.8.2005 is not specifically enforceable and is in determinable nature;

(iv) although agreement is no enforceable, yet non­performance of the said agreement admits of compensation as it is provided in the agreement itself and there is stipulation regarding double of the earnest money if agreement is not performed by the defendant; (v) the agreement to sell dated 13.8.2005 is forged document in the sense that it was not executed in the presence of witness shown in the said Result:Suit dismissed Page 9 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 agreement; (vi) about four years back the defendant took loan from Associated India Financial Services Ltd., Delhi and said financial institution was pressing the defendant for repayment of the loan; (vii) plaintiff is defendant's neighbour and being neighbour, he offered any type of help to the defendant; (viii) in the middle of September, 2004, husband of the defendant approached the plaintiff and requested for loan of Rs.3 lacs on interest for a period of six months and plaintiff agreed to advance the loan of Rs.1,35,000/­ to the defendant by way of cheque which was issued by the wife of the plaintiff. Plaintiff also paid Rs.1,20,000/­ more by means of cheque dated 21.9.2014 in the name of son of the defendant and in this way, plaintiff advanced loan of Rs.2,55,000/­ instead of Rs.3 lacs. After taking loan from the plaintiff, the defendant deposited Rs.5 lacs with the above­said Financial Institution; (ix) the defendant returned Rs.35,000/­ on 22.2.205 to the plaintiff and Rs. 35,000/­ on 10.3.2005 to the plaintiff towards repayment of loan amount taken by the defendant. However, the defendant could not pay the remaining loan amount to the plaintiff in time; (x) in the month of August, 2005, the defendant along with her husband requested the plaintiff to advance loan of Rs.6,50,000/­ in all and defendant offered to pay it on interest @ 12 per cent per annum whereas bank rate was 10 per cent per annum (xi) the plaintiff agreed to advance to the defendant loan of Rs.6,50,000/­ in all and agreed to Result:Suit dismissed Page 10 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 charge interest @ 12 per cent per annum. The plaintiff asked the defendant to execute an agreement in his favour for securing the loan taken by the defendant from him. The defendant was in need of money. Firstly, the defendant was hesitant and on her hesitation, the plaintiff assured her that said agreement will not be used in other manner except to secure repayment of loan taken by the defendant from him and the defendant believed the assurance of the plaintiff and agreed to execute sale agreement in his favour but said sale agreement was not to be acted upon and real intention was that agreement was for securing the amount taken by the defendant from the plaintiff; (xii) on 15.8.2005 or near about, the plaintiff asked the defendant to sign a document said to be sale agreement. Before signing the said agreement, the defendant again got assurance from the plaintiff that it shall not be used in any other manner except for securing the repayment of loan taken by the defendant. The plaintiff had given Rs.1,85,000/­ earlier to the date of execution of agreement. The said amount of Rs.1,85,000/­ was taken as a loan from the plaintiff. Prior to the date of execution of sale agreement, the defendant had taken an amount of Rs.2,55,000/­ out of which she had repaid amount of Rs.70,000/­ vide two difference cheques. The defendant handed over two cheques to the plaintiff for Rs.35,000/­ each dated 22.2.2005 and 10.3.2005 as repayment of loan advanced by the plaintiff to the defendant. One cheque of Rs.1,25,000/­ Result:Suit dismissed Page 11 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 was given by the plaintiff to the defendant as a loan and another two cheques of Rs.50,000/­ and Rs.1,00,000/­ were also given by the plaintiff to the defendant as a loan amount but not as a part of sale consideration; (xiii) it was agreed between the defendant and the plaintiff that said sale agreement will not be used by the plaintiff in any other manner except to secure the repayment of loan taken by the defendant from the plaintiff.

8. Real intention between the parties was not to create any title or interest of the property mentioned in the said agreement but it was only with intention to secure the loan amount taken by the defendant from the plaintiff. In fact, a trust was created between the plaintiff and the defendant that said agreement will be only for the purpose of securing the loan amount. The plaintiff had to discharge the said trust; (xiv) at the instance of the plaintiff, defendant signed the document said to be sale agreement on the assurance of the plaintiff that said document shall not be used for any other purpose except to secure repayment of loan. Vivek, son of the defendant and her husband Sh.Ramesh Chadha and other family members were present in the house and at that time, son of the defendant also signed on the said agreement and on one receipt; (xv) the plaintiff did not advance to the defendant the full amount of Rs.6,50,000/­ as agreed by him; and (xvi) Result:Suit dismissed Page 12 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 to the surprise of everybody, the plaintiff sent a letter to the defendant asking for purchase of stamp papers.

9. The defendant along with her husband and son Vivek approached the plaintiff and reminded him that the said Sale agreement was not to be acted upon and said sale agreement was only to secure repayment of the loan. The plaintiff again assured the defendant and his family members that he is not going to act upon the said sale agreement but he has completed certain formalities. He reassured the defendant that the said sale agreement shall not be acted upon except to secure the loan amount. Plaintiff kept silent for near about 9 months and never asserted his right on the said sale agreement. There is no mention regarding the construction of 2nd floor in the said letter regarding non­ construction of 2nd floor; (xv) all of a sudden after about 9 months of reassurance, defendant received one notice sent by the plaintiff through his Advocate asserting his rights on defendant's property on the basis of said sale agreement; (xvi) said notice was duly replied by the defendant's counsel vide reply dated 09.3.2007; (xvii) the plaintiff with malafide intention and against the assurances given by him, has filed the present suit for specific performance against the defendant on the basis of said sale agreement said to be executed on 13.8.2005. Filing of said suit by plaintiff is a clear cut violation of his assurances that said Result:Suit dismissed Page 13 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 agreement dated 13.8.2005 will not be acted upon as sale agreement but the same will be only for purpose of securing the loan amount; (xviii) on inspection of court file, it has been revealed that the plaintiff has forged said agreement by different means with intention to make believe that such agreement was attested by a witness namely Sh. K.K. Mittal resident of G­56, Pushkar Enclave, Paschim Vihar, New Delhi. The plaintiff further forged said sale agreement with intention of causing it to be believed that the sale agreement was attested by Notary Public Sh.H.S. Mehta bearing registration no.1380, appointed by Govt. of India. The plaintiff has again forged said sale agreement with intention causing it to be believed that said stamp paper was purchased by the defendant from the stamp vendor. There is no person in the name of Sh.K.K.Mittal, who is resident of House No. G­56, Pushkar Enclave, Paschim Vihar, New Delhi.

10. The plaintiff has filed replication to the written statement of the defendant, wherein plaintiff has denied the objections raised by the defendant. The plaintiff denied the preliminary objection raised by the defendant and stated that the present suit is well within the limitation. Plaintiff also denied that agreement to sell dated 13.8.2005 is illegal, unlawful, result of fraud, mis­representation, void, ab­initio or otherwise or is a sham document. Plaintiff further denied that there Result:Suit dismissed Page 14 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 is no stipulation about the construction of the second floor. It is further stated that the second floor is required to be constructed as per the first floor and no further specifications regarding the nature of the work to be done were required to be specified. Plaintiff further denied that the Agreement cannot be enforced by way of present suit. It is stated by the plaintiff that provision for the payment of twice of the amount as earnest money as compensation for non­performance was added by way of abundant precaution to ensure the fulfillment of the obligation by the defendant. It is denied by the plaintiff that plaintiff is getting any advantage over the defendant or that the alleged circumstances under which the agreement was signed by the defendant indicate any situation of dominance on the part of the plaintiff over the defendant or that the plaintiff gave any assurance as alleged to the defendant or that there was any occasion for the defendant to believe that alleged assurance or that the plaintiff had given an assurance that the agreement to sell is in fact not an agreement to sell but a document to ensure that return of the alleged amount of loan which is alleged to be promised to be given to the defendant by the plaintiff.

11. It is further stated in the replication that had the defendant felt betrayed as alleged, then she would have sought appropriate legal remedy against the plaintiff. The plaintiff further denied that the total Result:Suit dismissed Page 15 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 sale consideration of Rs.6,50,000/­ was not adequate at the time when the agreement came into existence or that cost of construction would have been Rs.10,00,000/­ or any other amount or than Rs.3,00,000/­ or that the cost of construction would have been Rs.950/­ per sqft. It is further stated by the plaintiff that cost of construction was hardly Rs.350/­ per sqft. at the relevant time. It is further denied by the plaintiff that defendant had taken any loan from any bank or was required to make payment of the alleged loan to any financial institution. The plaintiff has affirmed that he is the neighbour of the defendant and has been rendering all sorts of help to the defendant whenever so demanded by the defendant. The plaintiff has further denied that in the middle of September, 2004 or any other date, the husband of the defendant or any other person approached the plaintiff for getting a loan of Rs.3,00,000/­ or any other amount on interest for a period of six months or for any other number of months or that the plaintiff agreed to advance loan to the defendant or that the plaintiff paid a sum of Rs.1,35,000/­ to the defendant by means of cheque dated 17.9.2004 or that plaintiff paid any other sum of Rs.1,20,000/­ by cheque dated 29.9.2004 in the name of the son of defendant as amount of the loan out of Rs.6,50,000/­ as alleged by the defendant or that in this way or in any other way, the plaintiff paid a sum of Rs.2,55,000/­ as amount of loan or that after taking the alleged amount of loan, the Result:Suit dismissed Page 16 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 defendant deposited a sum of Rs.5,00,000/­ or any other amount on 25.9.2004 or any other date with any financial institution.

12. It is further submitted by the plaintiff that cheque of Rs.1,35,000/­ was taken from the wife of plaintiff by the defendant and a sum of Rs.1,20,000/­ was taken by son of the defendant from the plaintiff. It is also submitted that the amount was given through crossed cheques as there was some emergency in the family of defendant for medial reasons. It is further denied by the plaintiff that amount of Rs.35,000/­ or any other amount was returned to the plaintiff on 22.2.2005 or on any other date. Plaintiff also denied that Rs.35,000/­ was returned on 10.3.2005 as repayment of loan amount. It is denied by the plaintiff that on 15.8.2005 or near about the plaintiff asked the defendant to put her signature on a document said to be a Sale Agreement or that before putting up the signatures, the defendant got any assurance from the plaintiff that this document will not be used in any other manner except for securing the repayment of the loan allegedly taken by the defendant or that the plaintiff had given a sum of Rs.1,85,000/­ as the part of the loan or that a sum of Rs.1,85,000/­ was taken as loan from the plaintiff by the defendant. It is also denied by the plaintiff that a sum of Rs.2,55,000/­ was taken as loan by the defendant from the plaintiff or that a sum of Rs.70,000/­ was returned Result:Suit dismissed Page 17 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 by the defendant to the plaintiff by means of two different cheques as repayment of loan. The plaintiff has also denied a sum of Rs.1,25,000/­ was given by the plaintiff to the defendant as amount of loan and other two cheques for Rs.50,000/­ and Rs.1,00,000/­ were also given by the plaintiff to the defendant as amount of loan or that the said amount were not given as amount of consideration for the sale of the second floor according to the provisions of the Agreement to Sell. The replication filed by the plaintiff is more or less a re­iteration, re­ narration and re­assertion of the contents of the suit plaint as correct. No new fact has been incorporated therein.

13. Thereafter, on the basis of pleadings on record, vide order dated 24.10.2007, the following issues were framed:­ I. Whether the alleged Agreement to Sell and earnest money receipt were executed and signed by the defendant as an Agreement to Sell with regard to the property? OPP II. Whether the Agreement to Sell and earnest money receipt as alleged were executed and signed by the defendant for security of repayment of the loan? OPD III. Relief.

Result:Suit dismissed Page 18 of 61

Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16

14. Thereafter, plaintiff led evidence. The plaintiff tendered his evidence by way of affidavit and exhibited the same as Ex.P­1. PW­1 further exhibited original Agreement to Sell dated 13.8.2005 as Ex.PW­1/1, receipt dated 13.08.2005 as Ex.PW­1/2, receipt of the payment of further amount to the defendant as Ex.PW­1/3 and office copy of letter dated 23.5.2006 as Ex.PW­1/5, its postal receipts as Mark A and Mark B (which are exhibited as Ex.PW­1/6 and Ex.PW­1/7 in the affidavit of evidence and the same were de­ exhibited). PW­1 further exhibited copies of the cheques dated 09.6.2006, 10.6.2006 and 09.6.2006 as Mark X, Mark Y and Mark Z respectively, legal notice dated 07.02.2007 as Ex.PW­1/7A and postal receipts and UPC of the same as Ex.PW­1/8 and Ex.PW­1/9 respectively, the reply dated 21.3.2007 as Ex.PW­1/11 and postal receipts and UPC of the same as Ex.PW­1/12 and Ex.PW­1/13 respectively. PW­1 further exhibited the copy of site plan as Ex.PW­ 1/14 and its courier receipt as Ex.PW­1/15. PW­1 was duly cross­ examined by the learned counsel for the defendant and discharged vide order dated 09.2.2011.

15. Plaintiff also got examined Sh.Shiv Kumar Mittal as PW­2 who tendered his evidence by way of affidavit which is Ex.PW­ Result:Suit dismissed Page 19 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 2/1. PW­2 was duly cross examined by the learned counsel for the defendant and discharged vide order dated 23.4.2012. Vide separate statement of same date i.e. 23.4.2012, plaintiff's evidence was closed.

16. Thereafter, the defendant led evidence. The defendant examined herself as DW­1 and tendered her evidence by way of affidavit which is Ex. DW­1/A. DW­1 exhibited the application given to Notary Public as Ex.DW­1/1. DW­1 further exhibited the relevant entries of register of Notary Public as Ex.DW­1/2. DW­1 further exhibited the copy of complaint dated 03.5.2007 running into 13 pages as Ex.DW­1/4. DW­1 was duly cross examined by the learned counsel for the plaintiff and was discharged vide order dated 24.11.2014.

17. Defendant also got examined DW­2 Shri Harinder Singh Mehta, who is an advocate by profession and deals in preparation of documents of sale/lease deed. DW­2 brought the register dated 13.8.2005 summoned by the defendant, however, deposed that there is no entry in the register as to any agreement to sell or any other document showing attestation of those documents regarding sale of any property by Smt.Prem Chaddha. DW­2 denied his signature at point X on agreement to sell Ex.PW­1/1 and submitted Result:Suit dismissed Page 20 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 that somebody has tried to imitate his signature at point A. However, he submits that stamp of attestation with date are his seal. DW­2 also denied signature at point X on receipt dated 13.8.2005 on Ex.PW­2/2 although the seal at point X­1 and the stamp at points X­2 and X­3 are his seal and stamp. DW­2 further submits that he never signed this receipt towards attestation nor there is any entry in his register regarding the said receipt. DW­2 was duly cross examined by the learned counsel for plaintiff and discharged vide order dated 13.5.2014.

18. Defendant also got examined DW­3 Shri Kamal Katoch, Naib Tehsildar, who brought the summoned record i.e. register of stamp vendor Pushp Lata Sharma being licence no. 232, Address 69/3A, Moti Nagar, New Delhi with relevant entry bearing no.15204 dated 13.8.2005 in the name of Mrs. Prem Chadha wife of Sh.Ramesh Chadha. DW­3 exhibited the copy of same as Ex.DW­ 3/A. DW­3 was duly cross examined by the learned counsel for the plaintiff and discharged vide order dated 03.5.2013.

19. Defendant also got examined DW­3 Shri Vivek Chadha who tendered his evidence by way of affidavit which is Ex.DW­3/1. DW­3 was also duly cross examined by the learned counsel for the Result:Suit dismissed Page 21 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 plaintiff and discharged vide order dated 11.2.2015.

20. Defendant also got examined DW­4 Shri Ram Singh as an expert who proved his valuation report. As per his report, the prevailing market value of the second floor in the year 2017 was Rs.2,19,23,420/­ as per market rate and Rs.2,16,96,590/­ as per circle rates. He also proved the cost of construction for the second floor as per circle rate in the year 2018 as Rs.10,76,270/­ and the cost of land in the said year was Rs.2,06,20,320/­. He also proved that in the year 2005 the value of the second floor was Rs.37,12,200/­. He also proved the value of the second floor as per circle rates in the year 2005 as Rs.28,34,325/­. He also deposed that the the value of the second floor in the year 2005 as per L&DO rats was Rs.24,77,000/­. This witness was also duly cross examined by the learned counsel for the plaintiff and discharged vide order dated 18.12.2017.

Defendant's evidence was closed vide order dated 21.12.2017.

21. This Court has heard Shri C.L. Dhawan, Advocate for the plaintiff and Sh.K.C.Maini, Advocate for the defendant. The written submissions on record have been also perused carefully in the light of Result:Suit dismissed Page 22 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 facts and evidence adduced on record.

22. It is argued on behalf of the plaintiff that he has proved his case by proving the agreement to sell Ex.PW­1/1 and receipt Ex.PW­1/2 as well as the letter Ex.PW­1/5 by which the defendant was apprised about execution of the agreement to sell and also about its expiry that was to take place on or before 12.6.2006. Vide the same letter, the defendant was asked to do the needful but despite service of the said letter, the defendant did not prefer to give any reply to it.

23. It is submitted that the plaintiff has also proved registered legal notice Ex.PW­1/7 by which the defendant was again made aware of the proceedings and asked to do the needful in compliance of the agreement to sell Ex.PW­1/1. It is contended that the reply given by the defendant to this legal notice which is Ex.PW­1/10 is false and frivolous.

24. It is also argued that the cross examination by the defendant offered to PW­1 could not bring out any incriminating facts against plaintiff.

Result:Suit dismissed Page 23 of 61

Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16

25. It is submitted that PW­2 has proven the execution of the agreement to sell Ex.PW­1/1 as he was one of the witness to its execution. On the other hand, it is contended that though the onus to prove that agreement to sell was a "security agreement" was on the defendant but, the defendant has failed to discharge it. In the same context it is submitted that evidence of DW­4 in respect of valuation report was never called for or required and otherwise also the agreement to sell in respect of the floor to be constructed by the defendant was for a total sale consideration of Rs.6.50 lakhs and not nearly for roof of the first floor of G­54, Pushkar Enclave, Paschim Vihar, Delhi.

26. It is also argued that PW­1 has merely described on 23.4.2012 that the present cost of construction of the floor at that time was Rs.12­13 lakhs stating that the sale consideration of construction of second floor on 13.8.2005 as per Ex.PW­1/1, therefore, appears to be quite plausible.

27. It is also contended that the defendant has not asked even a single question from either the plaintiff or his other witnesses that the second floor was to be constructed by the plaintiff and therefore, the said fact also proves that Ex.PW­1/1 was executed for sale of second Result:Suit dismissed Page 24 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 floor of the subject property which was to be actually constructed by the defendant who was to be paid a sum of Rs.6.50 lakhs by the plaintiff towards sale consideration of the same.

28. It is contended that the evidence of plaintiff has established the fact that the plaintiff always remained ready and willing to honor the terms of Ex. PW­1/1 and also paid Rs.2,75,000/­ towards it. It is submitted that plaintiff was always ready with the balance amount of Rs.3,75,000/­ and was always in sound financial position to make such payment.

29. It is contended that on the contrary, the defendant always neglected to honor the terms of Ex.PW­1/1 and that the plaintiff had even visited the office of concerned Sub­Registrar on 12.6.2006 alongwith balance sale consideration.

30. Regarding the objection of defendant that property in question was mortgaged at the time of execution of Ex.PW­1/1, the same is said to be contrary to own stand of defendant to the effect that no agreement to sell was ever executed while on the other hand, a plea of mortgage of the property is taken. Both are said to be contrary to each other. It is submitted that plea of security agreement is not tenable Result:Suit dismissed Page 25 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 and is also hit by Section 92 of the Evidence Act.

31. It is also submitted that otherwise also, the defence set up by defendant has been disbelieved by the law courts during previous litigation. Reference is made to the plaintiff's suit for recovery of Rs.1,25,000/­ against son of the defendant filed in the year 2007, wherein the defendant's son Sh.Vivek Chadha filed his written statement. The said case is stated to have been decreed on 29.3.2014 being Suit No. 101/2014.

32. Reference is also made to a Civil Appeal No.55/2014 filed by defendant's son titled as "Vivek Chadha versus Dharam Pal Saini", which is also dismissed on 20.4.2015 by the Court of Sh.Jagdish Kumar, learned ADJ­06, (West) Delhi. The plaintiff then filed an execution petition in which the defendant's son paid the decretal amount in the executing court.

33. Reference is also made to a suit for recovery of Rs.65,000/­ filed by plaintiff's wife Ms.Ratna Saini against this defendant in which she filed her written statement. This suit was dismissed on 23.3.2013. An appeal was preferred being RCA No. Result:Suit dismissed Page 26 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 11/2013 which was allowed on 15.07.2014 by the Court of Ms.Sujata Kohli, learned ADJ(West), Delhi. Against this judgment, this defendant filed a regular second appeal being RSA No.327/2014 which was dismissed on 11.11.2014.

34. It is submitted that payment of Rs.2,75,000/­ out of Rs.6,50,000/­ was made by way of cheques of Rs.1,25,000/­, Rs.1,00,000/­ and Rs.50,000/­. Reference is made to three cheques which the plaintiff prepared towards payment of remaining amount being cheque of Rs.60,000/­ dated 09.6.2006 drawn on State Bank of India, Meera Bagh, New Delhi, cheque of Rs.2,30,000/­ dated 10.6.2006 drawn on State Bank of India, Meera Bagh, Delhi and cheque of Rs.85,000/­ drawn on HDFC Bank.

35. It is also argued that the defendant has admitted of having executed receipt Ex.PW­1/2 during his cross examination and that the said receipt is towards the part sale consideration. The contents of the receipt are therefore relied upon by the plaintiff in support of his case.

36. It is contended that anything stated orally by the defendant in her evidence which is contrary to the written terms of contract is hit by Section 92 of the Evidence Act.

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Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16

37. It is also pointed out that admittedly, the defendant never challenged the agreement Ex.PW­1/1 and that no action was ever initiated against plaintiff for his alleged assurance that it will not be used in any manner except as security.

38. It is also contended that the defendant's witness admitted that site plan Ex.PW­1/4 which is the site plan of second floor and terrace plan of the subject property has been signed by his mother at point X and is a duly sanctioned plan. Attention of Court is drawn to testimony of PW­4 Sh.Ram Singh who is a registered valuer wherein he admitted that the defendant informed him that agreement has been executed by the defendant with plaintiff for construction of second floor.

39. It has been sought to be demonstrated from the testimony of the defendant that the different pleas taken at different stages that defendant has not approached this Court with clean hands. It is otherwise contended that even if the false plea of defendant is assumed to be correct then also she came to know about Ex.PW­1/1 through notice dated 07.2.2007 and despite it, she did not ever sought cancellation of the agreement to sell and the receipt, which is enough to Result:Suit dismissed Page 28 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 show that it is defendant only who had executed these documents without challenging their authenticity.

40. In support of the above arguments, the plaintiff has relied upon the following judgments:

(a) Rakesh Kumar & anr versus Hindustan Everest Tool Ltd.

reported as (1988) 2 SCC 165 ­ this case has been relied upon that non­reply to material assertion is to be treated as acceptance of it. It is urged that Ex.PW­1/5 was not replied to despite service, therefore, it contents are to be taken as correct.

(b) Hira Lal Kapoor versus Prabhu Choudhury reported as (1988) 2 SCC 172 ­ this judgment is also relied upon as to the aspect as held in the case of Rakesh Kumar, supra.

(c) Nirmala Anand versus Advenk Corporation (P) Ltd. & Ors. reported as (2002) 5 SCC 481 ­ this judgment is cited on the point that in the case of contract of sale of immovable property, the grant of relief of specific performance is the rule and its refusal is an exception and that the defendant cannot take advantage of his Result:Suit dismissed Page 29 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 own wrong and then take plea that decree for specific performance would be an unfair advantage to the plaintiff.

(d) Azhar Sultana versus B.Rajamani & Ors reported as (2009) 17 SCC 27 ­ this judgment is cited on a point that it is not necessary that the entire amount of consideration should be kept ready and the plaintiff must file proof in respect thereof.

(e) Sukhbir Singh & Ors versus Brij Pal Singh & Ors reported as (1997) 2 SCC 200 ­ this judgment is cited on the point that it is not a condition that the purchaser should have ready cash with him and the fact that the purchaser attended the Sub­ Registrar office to have the sale deed executed and waited for the seller is a positive fact to prove that the purchaser has necessary funds/consideration.

(f) Tanu Goyal & anr versus Girish Chopra & Ors reported as (2014) 143 DRJ 543 ­ this judgment is cited on the point that a seller of mortgaged property cannot be permitted to wriggle out from an otherwise binding agreement to sell by refusing to take steps for making the property free from mortgage. In such case, Result:Suit dismissed Page 30 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 the plaintiff has a choice to either have the mortgaged discharged by paying balance sale consideration to the mortgagee bank including by payment of additional amount, if any, claimed by the mortgagee bank and have the sale deed executed and to initiate proceedings for recovery of additional amount paid from the defendants.

41. On the other hand, it is argued on behalf of the defendant that in order to disprove the case of the plaintiff and discharge the burden of issue no.2, the defendant has appeared in witness box as DW­ 1 and has also produced Sh.Harinder Singh Mehta, Advocate and Notary (DW­2) who produced his register where there was no entry regarding attestation of agreement to sell on 13.8.2005. He proved the certified copy of entries in his register. He proved Ex.DW­1/1 and Ex.DW­1/2.

42. It is submitted that DW­3 Sh.Kamal Katoch proved register of stamp vending of Smt.Pushpa Lata which is Ex.DW­3/A. According to the defendant, this register does not bear her signature. It is contended that perusal of register clarifies that there are signature of plaintiff on it.

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43. Reference is made to next witness Sh.Vivek Chadha who was re­numbered as DW­3 only but is, in effect, DW­4. Reference is also made to expert witness Sh.Ram Singh who is examined as DW­4 and that as per valuation report, prevailing market value of second floor in the year 2017 was Rs.2,19,23,240/­ as per "market rate" and Rs.2,16,96,590/­ as per "circle rate". It is claimed that the witness proved that cost of construction for second floor as per circle rate in the year 2017 was Rs.10,76,270/­ and the cost of land in that year alone was Rs.2,06,20,320/­. The witness proved that in the year 2005, the value of second floor was Rs.37,12,200/­ and as per circle rate, it was Rs.28,34,325/­. As per the L&DO rates, this value was Rs.34,77,000/­.

44. It is submitted that on the other hand, the plaintiff could not prove that Ex.PW­1/1 was executed and intended to be used as agreement to sell. These documents being exhibited as Ex.PW­1/1 and Ex.PW­1/2 are stated to be forged documents. It is claimed that defendant has proved that these documents were not executed and signed by the defendant and her son at Janakpuri and that the stamp paper used in Ex.PW­1/1 was not purchased by the defendant. It is contended to be disproved that these documents were got attested by Result:Suit dismissed Page 32 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 the notary public Sh.H.S.Mehta as the same are forged and certificate of attestation is missing.

45. It is further contended that PW­1 and PW­2 have made contradictory statements and PW­2 fails to state that Ex.PW­1/1 was read over and explained to the defendant. According to the witness, the cost of the one floor (at the relevant time) was Rs.12­13 lakhs. It is pointed out that the witness did not remember the date, month and year when he was asked to visit Janakpuri for execution of Ex.PW­1/1. He did not even remember as to who typed the agreement to sell or whether it was typed in the chamber or in the open or was already typed when he reached Janakpuri. It is submitted that absence of his name on Ex.PW­1/1 shows that he was not present at Janakpuri. He admits in his cross examination that stamp paper was not purchased in his presence.

46. It is also pointed out that as per plaintiff's case, Ex.PW­ 1/1 and Ex.PW­1/2 were executed simultaneously whereas, as per his deposition, no other document was prepared in his presence except Ex.PW­1/1.

47. Learned counsel for defendant submits that comparison of Result:Suit dismissed Page 33 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 affidavit in evidence of PW­1 and the replication qua the issue of preparation and execution of Ex.PW­1/1 would show material contradictions.

48. It is urged that DW­1 was suggested that when the plaintiff brought Ex.PW­1/1 for signature of her son Sh.Vivek Chadha was also present and he also signed the agreement. The witness then volunteered that he and his son signed it as security agreement. According to Mr.Maini, Advocate, this tantamounts to an admission that the defendant and her son had signed Ex.PW­1/1 at her residence and not in Janakpuri.

49. Learned counsel for defendant also referred to plaintiff's case as per which the consideration in Ex.PW­1/1 is Rs.6,50,000/­ whereas cost of construction in 2005 was Rs.6,42,676/­ as per L&DO rate. However, as per PW­2, the rate of calculation at present was Rs.12­13 lakhs for one floor. It is pointed out that in the replication, plaintiff has set up a case that in the year 2005, the cost of construction was Rs.305/­ per sqft, which, on calculation would come to Rs.5,60,000/­ only. It is thus contended that the plaintiff's conduct is reflective to be such which disentitles him from any relief. In this Result:Suit dismissed Page 34 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 reference, it is also urged that as per PW­1, he saw title documents of defendant while executing Ex.PW­1/1 even though the same were in possession of Associated India Financial Services.

50. It is submitted that the plaintiff is aware of the fact that the suit property was already mortgaged and defendant even produced the entire loan file after obtaining it under the Right to Information Act. Thus, the defendant, it is argued, never intended to sell the property in question, and therefore, signed the agreement on the assurance that it will remain only a security for repayment of loan.

51. Learned counsel for the defendant has further argued that the agreement to sell Ex.PW­1/1 is not capable of being specifically enforced in view of the provisions of the Specific Relief Act, 1963. It is submitted that Section 20 of the Act provides for discretionary power to a Court to pass a decree for specific performance or not and that it is not a case wherein the plaintiff has proven that he is entitled for the discretionary relief. It is so as the agreement to sell dated 13.8.2005 stands unproved according to law. Regardless to the above, it is also contended that the intent of the parties was that the plaintiff shall advance a loan of Rs.6.50 lacs only to the defendant and the defendant shall pay interest at the rate of 12 per cent per annum. It was Result:Suit dismissed Page 35 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 further agreed that the defendant will sign the agreement with the assistance of the plaintiff that it will not be considered as agreement to sell as the agreement remained and was always to be considered as a security for repayment of the loan.

52. An alternate argument has been also made to the effect that even if it is held that Ex.PW­1/1 is duly proven, then also the agreement is incapable of being specifically enforced. It is so as the agreement shows that the second floor was to be constructed. However, the agreement is silent on the aspect as to who will construct the second floor and within how much period. There are no prescribed terms for construction of the second floor and it is also silent as to what will be the covered area of the said floor; how many rooms it will constitute of besides kitchen, toilets, bathrooms etc. It is also submitted that even mention of electrical facilities is to be provided or not is not mentioned in the agreement. Thus, the terms of construction of the second floor are not prescribed therein to enable this court to determine the exact nature of work and hence it is not specifically enforceable under Section 14 of the Specific Relief Act, 1963.

53. It is further submitted that the defendant is still in possession of the suit property and the plaintiff has failed to show Result:Suit dismissed Page 36 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 substantial interest in the performance of the agreement itself. Thus, as per the terms of the agreement, compensation in money for non­ performance of the agreement is an adequate relief. Further, the agreement itself gives plaintiff an unfair advantage over the interest of the defendant and if the contract is ordered to be enforced then it will cause great hardship to the defendant. It is so as the market value of the property in dispute is more than Rs.2 crores and the sale consideration in Ex.PW­1/1 is only Rs.6.50 lacs. Moreover, as per PW­2. the defendant shall have to spend a sum of Rs.12 lacs for the construction of the second floor, hence, performance of the contract will be inequitable.

54. It is also submitted that the plaintiff was never interested in enforcement of the contract which is evident in view of para 21 of the legal notice vide which the defendant was called upon to not to occupy the basement, ground and first floors and to deliver their possession to any person.

55. It is also submitted that as per Ex.PW­1/1, the period for execution of the sale documents stands mentioned as 10 months whereas as per practice, all agreements to sell are generally only for Result:Suit dismissed Page 37 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 two months. In this case, the plaintiff never asked the defendant to construct the second floor and after 9­1/2 months i.e. on 23.5.2006, the plaintiff sent the first letter to the defendant in this context, which is otherwise stated to be false and frivolous.

56. It is also contended that the plaintiff never disclosed about the loan transactions and it is only the defendant who disclosed that prior to execution of Ex.PW­1/1, the defendant had taken a loan from the plaintiff although the cheques towards it were in the name of son of the defendant and one cheque was issued by the plaintiff's wife in favour of the defendant. It is therefore submitted that the plaintiff's intentions are dishonest and that he has not come to the Court with clean hands.

57. It is also urged that the suit is not maintainable as the defendant has produced certified copy of the original title documents and has proven the fact that the suit property was mortgaged prior to 13.8.2005 i.e. the date of Ex.PW­1/1. These certified copies are stated to be admissible in evidence under Section 165 of the Indian Evidence Act.

58. In order to support the contention that Ex.PW­1/1 and Result:Suit dismissed Page 38 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 Ex.PW­1/2 are without certificate of attestation as per Notary Public Act, judgment in AIR 2014 SC 1304 is cited stating that under Section 8 of the Notaries' Act No.53 of 1952, absence of certificate of notarization of a document relied upon makes its execution as suspicious.

59. Regarding the other contentions qua the agreement being not capable of specific performance, the following judgments are cited :­

(a) Prem Kumar Bansal versus Ambrish Garg reported as 2016 (3) Civil Court Cases 409 (Delhi) (DB)­This judgment is cited on the point that the agreement in question had no indication as to how the condition i.e. reconstruction is to be effected and thus in the absence of such details, the condition of reconstruction is per se unenforceable. Clause 10 of the agreement in question was under scrutiny before the Hon'ble Division Bench. It was observed that Section 14(3) provides an exception to Section 14(1)(d) of the Specific Relief Act by stating that a contract for "enforcement of a contract for the construction of any building or execution of any other work on land" [Section 14(3)(c)] can be given effect through specific Result:Suit dismissed Page 39 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 performance if three conditions are fulfilled i.e. (a) 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, (b) 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 non­performance of the contract is not an adequate relief, and (c) the defendant has in pursuance of the contract obtained possession of the whole or any part of the land on which building is to be constructed or other work is to be executed.

(b) Smt.Bhagwan Devi & anr versus Beni Bai & ors reported as AIR 2006 Allahabad 251 ­ In this case, the question involved was whether sale deed in question were not intended to convey any ownership rights but were obtained by the buyer to secure repayment of the loan from the seller. The Court found that obtaining a sale deed from the borrower was the usual mode of securing the loans advanced by Sh.Ram Rastogi. The sale deeds were not intended to convey any ownership right but were obtained for the purpose of money lending business to secure repayment of the loan. Ram Charan Lal i.e. the husband of the plaintiff who was the owner of the houses in question borrowed Result:Suit dismissed Page 40 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 money from Sh.Ram Rastogi who was a money­lender and could not repay it. Thus, he executed sale deeds of the two houses in favour of Mr.Rastogi. The Hon'ble Court found that Sh.Ram Charan Lal continued to be in possession of the properties in dispute. It was therefore found that the sale deeds were obtained to secure the loan.

(c) Ganga Bai versus Smt.Chhabbu Bai reported as AIR 1982 SC 20 ­ This judgment is cited on Section 92(1) of the Indian Evidence Act on the point that the Sub Section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatsoever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.

(d) Dada Rao versus Ram Rao reported as 2000 RLR (NSC) Result:Suit dismissed Page 41 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 21 ­ This judgment is cited on the point that if by a sale agreement, parties agree that if any party backs out, then it would be liable to damages. Then on backing out, other party can not claim specific performance

(e) Ram Bilas (dead) through LRs & anr versus Karim Khan & anr reported as 2017 (1) Apex Court Judgments 252 (SC) ­ This judgment is cited on the point that the sale deed executed in favour of the defendant was only a mortgage as a security for repayment of the loan taken by the plaintiff. It was held that inadequacy of the sale consideration indicated that the plaintiff not intended to sell the property to the defendant and the Trial Court had rightly held and declared the same to be a mortgage as a security for repayment of loan taken by the plaintiff.

(f) Joseph Johan Peter Sandy versus Veronica Thomas Rajkumar reported as 2013 (3) Civil Court Cases 270 (SC) ­ In this judgment, it is held that (ii) Signing blank paper theory ­ Document typed on stamp papers ­ Name and address of the scribe not appearing in the document ­ Scribe not examined ­ When there is theory of signing blank papers then scribe is the best person to reveal the correct position with respect to whether Result:Suit dismissed Page 42 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 blank papers were signed or whether the executant had come to him for the execution of the document with the attesting witnesses and scribe could have explained who had brought the non judicial stamp paper for the document ­ Held, document is clouded with suspicion.

(g) Sadasivam versus K Doraisamy reported as AIR 1996 SC 1724 ­ In this case the plaintiff filed suit for declaration that sale deed of a property executed by him in defendant's favour was not a genuine document. The suit was filed shortly after execution of the sale deed. He also filed another suit restraining the defendant from interfering with plaintiff's possession. His deceased father had bequeathed his one half share in the property by executing a Will in favour of the defendant and the plaintiff was a signatory to it. The defendant filed a suit on the basis of the Will for declaration of half right in the property. It was held that in the facts and circumstances, it did not appear that the plaintiff executed the sale deed for repayment of debts incurred by him or out of legal necessity. The sale deed was in plaintiff's possession and the parties never intended to act upon it. It was executed by the plaintiff in defendant's favour ­ a near relation, out of plaintiff's dissatisfaction for his son and in fact, no Result:Suit dismissed Page 43 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 consideration passed.

(h) Mahiruddin versus Mustt.Rythun Nessa reported as AIR 1998 Guwahati 22 ­ This judgment pertains to relief of cancellation of sale deed on the ground that the amount of consideration was nominal and below the market value of the land;

(i) Mrs.Roopa Benatra versus Ms.Reena Sabharwal reported as AIR 2013 (NOC) 182 (Bom) ­ This judgment is on the relief sought for cancellation of the Will on the ground that names of the attesting witnesses were not typed on the Will though they claim to have prior intimation of it and it was held that though the Will was signed by the Testatrix, it was not executed by her; AND

(j) Richhpal Singh versus Sandhura Singh reported as 2013 (3) Civil Court Cases 242 (P&H) ­ In this judgment, it was held that Agreement to sell ­ specific performance ­ scribe not examined ­ only scribe could have deposed about the content of the agreement having been read over and explained to the executant.

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60. Findings on the above issues are as under :­ ISSUE No.1 Whether the alleged Agreement to Sell and earnest money receipt were executed and signed by the defendant as an Agreement to Sell with regard to the property? OPP

61. Onus of the issue is upon the plaintiff. The relevant document in this regard is the document Ex.PW­1/1 which is the Agreement to Sell dated 13.8.2005 and the other relevant document is Receipt dated 16.8.2005 which is Ex.PW­1/2. On both these documents, the first party to Ex.PW­1/1 and the executant of Ex.PW­ 1/2 i.e. the present defendant, has admitted her signatures during admission/denial of documents on 24.10.2007.

62. Ex.PW­1/1 recites that the defendant agreed with the plaintiff to sell and transfer entire second floor (to be constructed) with roof/terrace rights with common use rights of stairs and passages with the freehold proportionate rights of the land in respect of the suit property i.e.G­54, built on land measuring 193.16 sqyds situated in the lay out plan of Industrial Workers' Co­operative House Building Society Ltd, known as Pushakar Enclave, Pascvhim Vihar, New Delhi for a total sale consideration of Rs.6,50,000/­ and that the second party Result:Suit dismissed Page 45 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 (plaintiff) agreed to purchase the same for the said consideration amount. It further recites that the defendant received Rs.1,25,000/­ by way of cheque dated 16.8.2005 and that the balance sale consideration amount of Rs.5,25,000/­ shall be paid by the second party to the first party within the period of 10 months from the date of execution of the agreement and/or after completion of the said floor after which the defendant will execute the sale deed in favour of the plaintiff or his nominees and also hand over physical possession with documents at the time of final payment. The agreement also stipulates that if the plaintiff failed to pay the balance amount within the specified period, the earnest money shall be forfeited and if the defendant backed out from her part of the agreement, she will pay double the amount of the earnest money.

63. The receipt Ex.PW­1/2 is towards part sale consideration of Rs.1,25,000/­. Both these documents were notarized on 13.8.2005 by Sh.H.S.Mehta­DW­2.

64. It would be seen that the Agreement to Sell has been witnessed by two witnesses ­ one of whom is shown to be Vivek Chadha son of Sh.Ramesh Chadha who has not been examined whereas the other attesting witness is also unexamined.

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65. It is a defence of the defendant that the Agreement to Sell is not specifically enforceable and otherwise also the same is denied in para 3 of the Preliminary Objections in the written statement.

66. On the other hand, the DW­1 i.e. the defendant herself claims that she took a loan from Associated India Financial Services Ltd and the officials of the same were pressing her for repayment of the loan for which she had approached the plaintiff. It is specifically deposed that in August 2005, the defendant and her husband requested the plaintiff to advance a loan of Rs.6,50,000/­ again at the interest of 12 per cent per annum for which she was asked to execute an agreement in favour of the plaintiff for securing the loan. She, therefore, signed the agreement.

67. This is a departure from the contents of para 3 of the Preliminary Objections of the written statement. In her cross examination dated 21.10.2014, DW­1 stated the following :

"It is correct that no loan agreement was executed between me, my husband and the plaintiff. Vol. It was oral. I had only signed agreement Ex.PW­1/1 in good faith and Result:Suit dismissed Page 47 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 assured me that he will not misuse the said paper. I have seen Agreement to Sell Ex.P­1/1 and I came to know about its execution on 24.10.2007 at the stage of admission/denial of the documents and the same is reply to the document/Receipt Ex.PW­1/2."

68. The above analysis of evidence suggests that the defendant was aware even at the time of filing of the written statement that she had executed some agreement in favour of the plaintiff though she may not have known its nomenclature till 24.10.2007. Thus, the defendant ought to have stated so at the first instance when she was disclosing her defence.

69. Admittedly, the defendant has not replied to the legal notice despite the fact that she as well as her son namely Sh.Vivek Chadha ­ DW­3 are admitting receipt of the same.

70. Learned counsel for the plaintiff has cited the judgment in the case titled Rakesh Kumar & another (supra) in this context urging the Court to take contents of the notice Ex.PW­1/5 as correct and has likewise also relied on the judgment in Hira Lal Kapoor Result:Suit dismissed Page 48 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 (supra). Both these judgments have no factual application to the facts of this case. It can not be lost sight of the fact that the question involved in the issue under determination is whether the above documents were signed by the defendant as an Agreement to Sell. Nevertheless, though the judgments are factually applicable yet the ratio is.

71. Contents of the documents show that they are indeed executed in respect of transfer of the property in question. Oral evidence to the contrary is that the Agreement and the Receipt were signed only to secure repayment of the loan.

72. It can be clearly seen that the execution of these documents by DW­3 is not denied by DW­1. In her words ­ "I identify the signatures of my son Vivek Chadha at point A on the said Agreement to Sell Ex.PW­1/1. I have identified the signatures of my son at point A on Ex.PW­1/2."

73. The fact that the document Ex.PW­1/1 was signed in the manner averred by the plaintiff is also established from the below mentioned testimony of DW­1 dated 24.11.2014 :

Result:Suit dismissed Page 49 of 61
Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 "I have seen Ex.PW­1/1 i.e. Agreement to Sell which I had signed and the fact of this is referred in my affidavit in para 9 of this affidavit Ex.DW­1/A."

74. It is another matter that the witness again introduced oral testimony against the contents of the document that she signed it as a security document against loan. This is subject matter of issue No.2.

75. She also submits that, "it is correct that when the plaintiff brought the agreement Ex.PW­1/1 for signatures, my son Sh.Vivek Chadha was also present and he also signed the same agreement."

76. Elsewhere in her cross­examination dated 24.11.2014, the witness/DW­1 further affirms this fact by stating that ­ "Similar is my reply in respect of the Receipt Ex.PW­1/2 which I had signed along with Ex.PW­1/1. I have seen my written statement which is signed by me at points A and B and is of dated 26.5.2007. It is correct that I was very much aware about the facts of the present case.

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Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16

77. So far as DW­3 (DW­4) is concerned, Sh.Vivek Chadha admits that Ex.PW­1/1 is signed by him as witness no.1. Likewise, he admitted that Receipt Ex.PW­1/2 is signed by him at point A and by his mother i.e.DW­1 at point P.

78. Some confusion regarding notarization of the two documents is created by DW­2 who is the concerned Notary Public. He brought his register dated 13.8.2005 stating that there is no entry in it regarding any Agreement to Sell or any other document showing attestation of those documents regarding sale of any property by Smt.Prem Chadha. After going through Ex.PW­1/1, he submitted that it did not bear his signature and somebody has tried to imitate his signatures at point X and his signatures at point X­1 on the Receipt Ex.PW­1/2.

79. Strangely enough, he admitted that seal and stamp of attestation with date are his seal, stamp of attestation and stamp of date and affirmed in his cross examination that he had not employed any clerk with him at the relevant time and that the seal and stamps used to be in his exclusive possession. His entire cross­examination shows that his record register was not maintained properly and that there were Result:Suit dismissed Page 51 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 several lines left blank between entries and also cancellation of entries without assigning any reason. His testimony is not trustworthy for the above reasons.

80. Sh.Kamal Katoch ­ DW­3 brought register of Stamp Vendor namely Pushap Lata Sharma and the relevant entry no.15204 dated 13.8.2005 against which the non­judicial stamp paper of Rs.100/­ used for preparing Ex.PW­1/1 was sold is duly proven as Ex.DW­3/A. It is in the name of this defendant.

81. The contention of the defence that without certificate of attestation as per Section 8 of the Notaries' Act No.53 of 1952 and reliance upon the judgment in AIR 2014 Supreme Court 1304 will, therefore, have no bearing in this case as testimony of the Notary Public/DW­2 has been disbelieved.

82. Resultantly, this issue is decided in favour of the plaintiff and against the defendant.

ISSUE No.2 Whether the Agreement to Sell and earnest money receipt as alleged were executed and signed by the Result:Suit dismissed Page 52 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 defendant for security of repayment of the loan? OPD

83. The onus of this issue lay on the defendant alone. Evidence oral against a written document attracts bar of Sections 91 and 92 of the Indian Evidence Act. The relevant three pleas of the defendant are ­

(a) that the plaintiff has not come to this Court with clean hands and hence, not entitled to the equitable relief;

(b) that the documents in questions were signed as security for repayment of the loan from the plaintiff; and

(c) that the property in question was mortgaged and the title deeds of the suit property were deposited with Associated India Financial Services Ltd.

84. Regarding point (a) above, the DW­1 or for that matter her son ­ DW­3, have not made any specific deposition although DW­ 1 did say in para 14 of Ex.PW­1/A that the plaintiff has filed this suit with dishonest and malafide intentions which is clear cut violation of his assurances that the agreement dated 13.8.2005 is only a sham document and which was not to be acted upon as Sale Agreement. She also states that the Sale Agreement is forged by the plaintiff by using different means. Her entire testimony to that effect in paras 15 and 16 of her affidavit in evidence stands disproved in view of findings Result:Suit dismissed Page 53 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 of this Court on issue No.1.

85. What more is to be considered with respect to this point under determination pertains to valuation of the suit property and cost of construction at the relevant time. All the evidence led on this aspect on either side and the entire cross­examination of the witnesses of both the sides conducted by their Advocates is found to be misdirected for the simple reason being that it has to be the personal volition of a Seller regarding the value, he/she claims in return of a Sale Transaction. Its adequacy or inadequacy can never be an issue for consideration by this Court for pure and simple reason that the defendant has failed to produce best evidence. Despite the above recorded admission of the defendant that she was aware of all the facts of this case, admittedly, she or her son/DW­3 never took any action against the plaintiff for alleged misuser of Ex.PW­1/1 even though receipt of the notices Ex.PW­1/5 and Ex.PW­1/11 are admitted in the evidence of DW­1.

86. It is not to the parlance of ordinary human behaviour to execute an Agreement to Sell instead of a simple Loan Agreement for a value much less than her property itself. This Court can not overlook the fact that DW­3, by his own admission, has studied upto B.A. (2nd Result:Suit dismissed Page 54 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 year) from a prominent college i.e. Swami Shradhanand College Alipur, Delhi. It is neither expected of him nor comprehensible by this Court that he would have signed these documents without going through their contents.

87. To urge, therefore, that the plaintiff has come to the Court with unclean hands is not acceptable.

88. So far as point (b) above is concerned, the best evidence for the defendant could have been some kind of a complaint made to the appropriate authorities, the moment the alleged real intention of the plaintiff became clear to her. Admittedly, neither DW­1 nor DW­3 raised any protest at all.

89. The facts pertaining to previous litigation between the parties or their relatives are irrelevant for determination of the present issue. Merely because there have been transactions of loan previously between the parties to this lis, it can not be said that the plaintiff was habitual of advancing loans and getting executed the documents for sale of properties with an intention only to secure repayment of the loan. Thus, the judgments on the point cited by the defendant in Smt.Bhagwani Devi & anr (supra); Ganga Bai (supra), Rambilas Result:Suit dismissed Page 55 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 (supra); Joseph Johan Peter Sandy (supra) or Mahiruddin (supra) have no relevance to the facts of the present case.

90. The defendant has not even produced her husband to corroborate or support her testimony. The silence of the defendant after having received the legal notice Ex.PW­1/5 much before filing of the suit is a relevant fact going against her. There is no material before the Court to, therefore, concluded on the preponderance of probabilities that the documents in question were signed as mere security documents.

91. So far as point (c) above is concerned, again best evidence has been withheld. No previous loan transaction has been proved on record and admittedly no documents have been filed. In the words of DW­1 ­ " I have not filed any document in support of the fact of having loan from Associated India Financial Services Ltd about 9 years back."

92. Elsewhere in her cross­examination dated 21.10.2014, DW­1 stated that ­ Result:Suit dismissed Page 56 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 "We needed loan in that particular year (2004) as the same was to be deposited in Citi Financial Bank. Myself and my son Vivek had taken a loan of Rs.10­11 lacs from the said bank. In the year 2004, there was a liability of Rs.10­11 lacs on us and that is why we needed some help from the plaintiff. I have not placed any letter or any document establishing the fact of loan liability of Rs.10­11 lacs on me as well as my son towards the aforesaid bank."

93. In the words of DW­3 Vivek Chadha ­ "I am not aware if I had taken a loan along with my mother from Associates India Financial Services Ltd. Again said ­ I had taken a loan along with my mother from Associated India Financial Services Ltd. It is correct that I have no idea if any document regarding the said loan has been placed on the file or not."

94. The above recorded wavering answers of DW­3 demolishes the claim of DW­1 that title deeds of the suit property were mortgaged and therefore there was no question of handing over the Result:Suit dismissed Page 57 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 same to the plaintiff at any point of time and thus the intention to actually sell the property was missing. The best evidence has been thus withheld.

Resultantly, issue No.2 is decided against the defendant.

ISSUE No.3 R E L I E F

95. The question which now arises is whether discretionary relief of granting specific performance can be awarded to the plaintiff or not.

96. Section 14(1)(d) of the Specific Relief Act, 1963 stands substituted by Act No.18 of 2018. The original Section 14(1)(c) is still in place as Section 14(1)(d). A contract which is in its nature determinable cannot be specifically enforced.

97. Further, a contract the performance of which involves the performance of a continuous duty which the court can not supervise can also not be enforced.

98. This suit was instituted on 13.4.2007 and the Specific Result:Suit dismissed Page 58 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 Relief (Amendment) Act 2018 (Act No.18 of 2018) which came into force with effect from 01.10.2018 can not be held to be retrospective in nature. Thus, Section 14(3) of the unamended Specific Relief Act 1963, provides an exception to Section 14(1)(d).

99. Enforcement of a contract in the construction of any building or execution of any other work of land can be given effect through specific performance if three conditions are fulfilled i.e. (a) building or other work described in the contract is sufficiently precise;

(b) that the plaintiff has substantial interest in performance of the agreement and it is of such a nature that compensation in terms of money would be inadequate; and (c) the defendant has obtained possession of whole or any part of the land on which the building is to be constructed or other work is to be executed.

100. In the present case, none of the three essential conditions as described above are fulfilled. The defendant has categorically relied upon the judgment in Prem Kumar Bansal (supra). Upon scrutiny of the Agreement to Sell Ex.PW­1/1, in the light of the said judgment, it can be clearly observed that nature and extent of construction etc are not provided at all in Ex.PW­1/1 thereby attracting Section 14(1)(c) as well as (d) of the unamended Specific Relief Act, 1963. In view Result:Suit dismissed Page 59 of 61 Dharam Pal Saini vs. Smt. Prem Chadha CS 609583/16 thereof, this Court is of the view that the contract Ex.PW­1/1 is not specifically enforceable.

101. The question that arises now is whether compensation can be awarded to the plaintiff in view of Section 21 of the Specific Relief Act? Admittedly, the defendant never repaid back the Earnest money received by her.

102. Section 21 of the Specific Relief Act, 1963 has been already amended by Act No.18 of 2018. However, in both the cases, it is essential for the person seeking specific performance of the contract to claim compensation for its breach and if the Court decides that specific performance ought not to be granted but there is a breach and that plaintiff is entitled to compensation for such breach, it must award such compensation accordingly after determining it under Section 73 of the Indian Contract Act, 1872.

103. It is, however, subject to Sub Section (5) of Section 21 of the Specific Relief Act, 1963, according to which no compensation shall be awarded under this Section unless the plaintiff has claimed such compensation in the plaint. The plaintiff has not made any such prayer in the plaint.

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104. The next question arising for consideration is as to whether the Court may grant refund of the Earnest money under Section 22 of the Specific Relief Act, 1963? Here also, the person seeking specific performance has to first ask for such relief which is apparent from Section 22(2) of the Specific Relief Act, 1963.

105. In the given circumstances, prayer clause (i) can not be granted to the plaintiff. As regards grant of relief of decree of perpetual injunction as in para (ii) of the prayer clause, the same can not be granted to the plaintiff in view of refusal of relief No.(i).

RESULT

106. In the result, the suit of the plaintiff is dismissed

107. Parties are left to bear their own costs.

108. Decree sheet be drawn up accordingly in the above terms.

109. File be consigned to the record room. 

Announced in the open                   (MANISH YADUVANSHI)
Court on 18.11.2019                   ADDL. DISTRICT JUDGE-11
                                            CENTRAL DISTRICT
                                    TIS HAZARI COURTS, DELHI.



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