Delhi District Court
Sh. Mukat Lal Aggarwal vs Sh. Narender Nagpal on 25 April, 2013
1
IN THE COURT OF SH. JAGDISH KUMAR
JSCC/ASCJ/GUARDIAN JUDGE (East) KKD COURTS DELHI
Suit No. 952/07
UID02402C0028482007
Sh. Mukat Lal Aggarwal,
R/o 25/181/182, Trilokpuri,
Delhi. .....Plaintiff
Versus
Sh. Narender Nagpal,
S/o late Shankar Dass Nagpal,
R/o 18a, MIG Flats, DDA Flats,
Shivam Enclave, Jhilmil,
Shahdara, Delhi32. .....Defendant
Date of institution : 24.10.2007
Date of Arguments : 25.04.2013
Date of Order : 25.04.2013
SUIT FOR RECOVERY OF RS. 50,700/
JUDGMENT
1 This is a suit for recovery of Rs. 50,700/, filed by the plaintiff against the defendant. Brief facts as stated in the plaint are Suit no. 952/07 Page 1 of 12 2 rd that the defendant is owner of property bearing no. 3 F779, Residential Colony, Vaishali, Ghaziabad, U.P. area measuring 4594 sq. meters and having a shop at ground floor (hereinafter called the said property). The defendant approached the plaintiff to sell the above said property and it was settled to purchase the said property for Rs.3,60,000/. Consequently an agreement to sell/Ikrarnama was executed between the parties on 02.06.2005. The defendant received a sum of Rs.10,000/ in cash from the plaintiff as Bayana Rashi at the time of signing the said agreement to sell, and agreed to receive the balance amount of Rs.3,50,000/ at the time of execution of sale deed. The defendant shall also hand over the vacant possession of the said property to the plaintiff upto 31.07.05. It was also orally settled that the defendant shall provide the necessary documents of the said property to the plaintiff for getting the housing loan. After getting the housing loan, the plaintiff shall pay the remaining amount to the defendant. If the defendant shall not provide the said documents upto 31.07.05 to the plaintiff then the defendant shall be faulty and return all the amount which he received from the plaintiff. 2 On 06.06.2005, after executing the agreement to sell, the Suit no. 952/07 Page 2 of 12 3 defendant requested the plaintiff to pay him Rs.30,000/ more as part payment. Considering the urgent requirement of defendant, the plaintiff paid Rs.30,000/ to the defendant on 07.06.05 against the balance consideration amount of Rs.3,50,000/. It is further stated that the defendant has not handed over the requisite papers/documents of the said property to the plaintiff for availing the housing loan as promised by him, despite several request and demands. Since the defendant did not provide the requisite papers/documents to the plaintiff, the plaintiff could not get housing loan. Thereafter, the plaintiff asked the defendant to return the sum of Rs.40,000/ as received by him as earnest money but the defendant has not return the said amount.
3 The plaintiff has issued legal notice dated 22.12.06 to the defendant demanding the amount of Rs.40,000/ alongwith interest. The defendant replied the said notice, wherein, he admitted the receipt of Rs.40,000/ against the consideration amount. The plaintiff has filed the present suit for recovery of Rs.50,700/ including interest and legal expenses.
Suit no. 952/07 Page 3 of 12 4 4 Summons of the suit were served upon the defendant. The defendant has filed written statement taking preliminary objection that the present suit is not maintainable as the plaintiff had not taken any step to perform the agreement or has failed to make further payment of Rs. 3,20,000/ upto 31.07.05.
5 On merits, the facts of agreement to sell between the parties have not been denied by the defendant. It is further stated that all the terms and conditions of agreement to sell were reduced into writing. The handing over of the title documents to the plaintiff by the defendant ought to have been written in agreement to sell dated 02.06.2005 or at the time of the payment of Rs.30,000/. It is denied that the defendant ever agreed to hand over the original titled documents to the plaintiff just for Rs.40,000/. It was further submitted that the plaintiff was never ready with the balance amount of Rs. 3,20,000/. The service of legal notice was not denied by the defendant and it is submitted that the same was replied vide reply dated 28.12.06. On the basis of these submissions prayer is made to dismiss the suit of the plaintiff.
Suit no. 952/07 Page 4 of 12 5 6 Replication to the written statement of defendant filed by the plaintiff in which he has denied all the allegations levelled by the defendant and reiterated and reaffirmed the statement made in the plaint.
7 On the pleading of the parties following issues were framed on 01.06.11:
1. Whether the plaintiff is entitled to the relief of recovery of Rs.50,700/ along with 18% per annum interest? OPP.
2. Whether the plaintiff has not complied with the agreement to sell dated 02.06.05? OPD.
3. Relief.
8 The plaintiff has examined himself as PW1 and placed on record the documents Ex. PW1/A to Ex. PW1/E. The defendant has also examined himself as sole witness as DW1. The defendant has not relied upon any document.
9 I have heard the Ld. Counsel for plaintiff as well as of the defendant and perused the file. My issue wise findings is as under: Suit no. 952/07 Page 5 of 12 6 ISSUE NO. 1 & 2 Issue no. 1 Whether the plaintiff is entitled to the relief of recovery of Rs.50,700/ along with 18% per annum interest? OPP.
Issue no. 2 Whether the plaintiff has not complied with the agreement to sell dated 02.06.05? OPD.
Both the issues are taken up together being interconnected. The onus to prove issue no. 1 is on the plaintiff and the onus to prove issue no. 2 is on the defendant. The case of the plaintiff is that an agreement to sale dated 02.06.05 was entered into between them and the defendant has to provide him the original document of the said property. So that he could procure the loan on the basis of documents of the said property. It is admitted position of the parties that document dated 02.06.05, Ex.PW1/A was executed between them. The first question which has to be answered by the court is whether there was any condition in the document Ex.PW1/A to hand over the original papers of the said property to the plaintiff. Suit no. 952/07 Page 6 of 12 7 The Ld. Counsel for defendant argued that the document Ex.PW1/A can not be received into evidence as same is not registered one. As per law the agreement to sale has to be registered in view of Sec. 17(1A) of Registration Act, 1908. Admittedly the document Ex.PW1/A is not a registered document. This document can not effect the immovable property which is the subject matter of this document by virtue of Sec.49 of Registration Act, 1908. However, in view of proviso to Sec.49 of Registration Act, 1908 this document can be received in evidence in a suit for Specific Performance of the Contract as well as for any collateral transaction not required to be effected by registered instrument. Here in the present suit the plaintiff is not seeking any right in the immovable property which is the subject matter of document Ex.PW1/A. The plaintiff is seeking back his money given as earnest money. The document can be looked into for the collateral purpose to ascertain whether it was contemplated by the parties that the said money will be returned or forfeited in certain conditions. The plaintiff stated that it was agreed by the defendant to provide him the original document of the said property so that he could procure loan on those documents. The Ld. Counsel for plaintiff argued and submitted that the defendant has admitted in para 4 of Suit no. 952/07 Page 7 of 12 8 the WS and it was also the condition of the agreement dated 02.06.05 i.e Ex.PW1/A that the defendant will hand over the original documents to the plaintiff. I have perused the document Ex.PW1/A in which it is not a condition, as argued by Ld. Counsel for plaintiff. And if we go by the first lines as stated in the para 4 of the WS which reads as "It is wrong to say that it was not a clause of the agreement dated 02.06.05 that the documents were to handed over for any loan." The meaning of these lines clearly indicates that there was a clause in agreement Ex.PW1/A but from the perusal of document there is no such clause in the document Ex.PW1/A. It is also not a clause in the document Ex.PW1/A, as stated in next lines of para 4 of WS. Now, question arises whether the admission made in the para 4 of the WS can be read against the defendant or not. Sec.91 of the Indian Evidence Act, 1872 says when the terms of a contract, or of a grant, or of any other deposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other deposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary Suit no. 952/07 Page 8 of 12 9 evidence is admissible under the provisions herein before contain. Sec.92 of the Indian Evidence Act, 1872 describes "When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms." Sec.54 of the Transfer of Property Act, 1882 define the contract for sale of immovable property as "A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property." The Sec.54 of the Transfer of Property Act, 1882 requires how a sale of immovable property, is to be made. It can be made only by a registered instrument if the value of the immovable property is rupees hundred and upwards. So as per settled legal preposition the sale of immovable property is required to be made only through a written contract. If that written contract is an agreement to sale then it requires registration U/Sec.17 (1A) of Registration Act, 1908. If it is a Suit no. 952/07 Page 9 of 12 10 conveyance deed then it is required to be registered U/Sec.17 of the Registration Act, 1908. If the agreement to sale is not registered then it is not receivable in evidence to effect the immovable property, which is subject matter of the agreement to sale, except for the purpose of specific performance or collateral purposes. The document Ex.PW1/A can be received in evidence for the purpose of collateral purposes such as whether there was any condition to provide the original documents to the plaintiff by the defendant for the procurement of loan. The oral testimony, as asserted by the plaintiff in the plaint and admitted by the defendant in WS, can not be received in the evidence in view of Sec.91 and Sec.92 of Indian Evidence Act, 1872, as contrary to the terms of agreement to sale Ex.PW1/A. So, the admission made by the defendant in para 4 of the WS can not go beyond the terms of document Ex.PW1/A. Where it is not a condition that the defendant will provide the original documents of the said property to the plaintiff. The question is answered accordingly.
The next question is whether the earnest money is refundable or forfeitable. The document Ex.PW1/A can be received Suit no. 952/07 Page 10 of 12 11 in evidence to ascertain this fact also. There is a clause in agreement to sell Ex.PW1/A which says that if the seller backs from the agreement then he will pay double of the amount of earnest money to the purchaser. If purchaser backs from the agreement then seller will forfeit the earnest money. As I have held above that there was no clause in the agreement Ex.PW1/A to provide the original document of the said property to the plaintiff (purchaser) to procure the loan. Then it was the duty of the purchaser(plaintiff) to offer the remaining amount of Rs.3,20,000/ to defendant and get execute the conveyance deed. Admittedly, the plaintiff has not visited the Registrar office on 31.07.05, the due date of execution of sale deed. He has also not stated anywhere in the plaint that he has offered to pay the remaining consideration amount to the plaintiff. The assertion of the plaintiff in para 4 of the plaintiff that he has requested the defendant to provide the original documents also seems not trust worthy because there is no date, month and year mentioned on which occasion he has requested to the defendant for supplying the documents. Even otherwise these assertions has not stated in the document Ex.PW1/B legal notice. The legal notice was issued on 22.12.06. There is no explanation by the plaintiff why he had issued Suit no. 952/07 Page 11 of 12 12 the legal notice after about 17 months. Despite that the defendant vide document Ex.PW1/E, the reply to the legal notice, has replied that he was still ready to execute the sale deed subject to penalty of Rs.25,000/ in addition to the agreed sale consideration. The demand of the defendant seems to be genuine because about 17 months were lapsed from the date when the sale deed has to be executed. So, I am of the view that defendant was entitled to forfeit the earnest money. The plaintiff is not entitled for recovery of earnest money. Both the issues are decided in favour of the defendant and against the plaintiff.
RELIEF So, in view of my issue wise findings the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Announced in open Court (JAGDISH KUMAR)
on 25.04.2013) JSCC/ASCJ/GJ(East)
Karkardooma Courts
Delhi
Suit no. 952/07 Page 12 of 12
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Suit no. 952/07
25.04.13
Present: Counsel for plaintiff.
Counsel for defendant.
Arguments heard. Put up for order at 4.00 p.m.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East) KKD
COURTS/25.04.13
25.04.13
Present: None for plaintiff.
Proxy counsel for defendant.
Vide separate judgment, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/25.04.13 Suit no. 952/07 Page 13 of 12 14 Suit no. 952/07 Page 14 of 12