Delhi District Court
Sh. Ravinder Nath Sahni vs M/S Poddar Construction Co.(P) Ltd on 8 November, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 01
TIS HAZARI COURTS, DELHI.
C.S. No. 174/2011
Unique ID no. 02401C5180392004
Sh. Ravinder Nath Sahni
Son of Sh. S. N. Sahni
R/o 51 Paschami Marg
Vasant Vihar, New Delhi ....Plaintiff
Versus
1. M/s Poddar Construction Co.(P) Ltd.
HS27 Kailash Colony,
New Delhi
2. Ms. Sabina Jajodia
D/O Sh. M. K. Jajodia
R/O 1/17, Shanti Niketan,
New Delhi. ...Defendants
Suit for specific performance
C.S. No. 182/2011
Unique ID no. 02401C6136542004
Ms. Sabina Jajodia daughter of
Sh. M. K. Jajodia resident of
1/17, Shanti Niketan, New Delhi
through her Attorney Mr. Amrit Pal ...Plaintiff
CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr.
CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 1 of 74
2
Versus
Sh. Ravindra Nath Sahni
S/o Mr. S. N. Sahni resident of 51,
Paschimi Marg, Vasant Vihar, New Delhi57
and carrying on business for gain at
803, Akahdeep Buiding, Barakhamba Road,
New Delhi ...Defendant
Suit for possession and injunction
Date of institution of the suit 174/2011 : 19.04.1988
Date of institution of the suit 182/2011 : 21.05.1988
Reserved for judgment on : 10.09.2012
Date of pronouncement of judgment : 08.11.2012
JUDGMENT: These are two cases pertaining to the land comprised in Khasras no. 694 (46); no. 693 (46); and no. 692 (101) of village Kapashera New Delhi, measuring 2.01 acres (hereinafter the suit property). The plaintiff, Shri Ravinder Nath Sahni, seeks specific performance of the Receipt dated 11.08.2004 propounding it as an agreement to sell in suit no. CS/174/2011. In the other suit CS/182/2011 the plaintiff therein, Ms. Sabina Jajodia, has sought a decree of possession and injunction visàvis the same land.
CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 2 of 74 3
2. Vide orders dated 21.04.1989 passed in IA No. 1241/1988 in suit no. 857/1988 the two suits (earlier having nos. 857/1988 and 1241/1988 in the Hon'ble High Court of Delhi) have been consolidated.
3. In this judgment plaintiff refers to the Shri Ravinder Nath Sahni; defendant no. 1 refers to Poddar Constructions Pvt. Ltd. and defendant no. 2 refers to Ms. Sabina Jajodia.
Pleadings of the Suit No. 176/2011
4. The case as propounded by the plaintiff, Shri Ravinder Nath Sahni, is founded on the following bundle of facts:
(i). On the main road connecting Delhi to Gurgaon, and onwards to Rajasthan and even Bombay, commonly known as National Highway no. 8, there were certain agricultural lands on either side. On the SouthEast of the road, is situated village Kapashera, which falls within the Union Territory of Delhi (Tehsil Mehrauli).
(ii). In village Kapashera, a number of pieces of land were purchased by the defendants company or its associate companies. These lands were all near each other.
(iii). The plaintiff also happened to acquire tracts of land in the vicinity of the defendant's land as also lands of its associate CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 3 of 74 4
concerns in village Kapashera, and some of these lands were purchased by the plaintiff himself directly from the villagers while others were purchased by Smt. Veena Sahni, wife of the plaintiff and yet another tract by Sh. Varinder Sahni son of the plaintiff.
(iv). In 1981, one tract land measuring 1.013 acres bearing Khasra nos. 757 & 758 was sold by Ratna Apartments Pvt Ltd. a company of Sarvasri. G. D. O. P. & Rajiv Poddar (associate company of defendant no.1) to the plaintiff for which title was also conveyed. Thereafter, in the year 1983, the plaintiff's wife bought some lands as also plaintiff's son, while some pieces were purchased by the plaintiff from the villagers. In July 1984, the defendants (as also sh. G. P. Poddar) approached the plaintiff to purchase the remaining tract of land with them, which comprised about 12 acres. Accordingly the plaintiff entered into five agreements with the defendants/associate companies, as follows:
i Total Area 1.703 acres, and bearing Khasras no. 698 (42); and no. 701 (317) of village Kapashera New Delhi.
(Ratna Apartments (P) Ltd.) ii Total Area 2.90 acres, and bearing Khasras no. 697 (47); no. 696/I (312); no. 696/2 (14); and no. 695 (46) CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr.CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 4 of 74 5
of village Kapashera New Delhi. (Poddar Construction (P) Ltd.) iii Total Area 2.00 acres, and bearing Khasras no.
765/1 (213); no. 763/2 (24); and no. 766 (416) of village Kapashera New Delhi. (Poddar Construction (P) Ltd.) iv Total Area 3.45 acres, and bearing Khasras no. 699 (416); no. 671/2 (28) no. 670/1 (23); no. 671/1 (28) and no. 672 (416) of village Kapashera New Delhi. (Sagar Construction (P) Ltd).
v Total Area 2.01 acres, and bearing Khasras no. 694 (46); no. 693 (46); and no. 692 (101) of village Kapashera New Delhi. (Poddar Construction (P) Ltd.) The present suit pertains to this property.
(v). The defendants agreed to sell a piece of land measuring 8134.35 square metres (2.01) situated in village Kapashera, Tehsil Mehrauli, bearing Khasara no. 692 (101); 693 (46) and 694 (46) for a total consideration of Rs. 4,70,000/. Out of the total consideration of Rs.4,70,000/ the plaintiff paid to the defendants a sum of Rs.10,000/ on 11.08.1984. A further consideration of Rs.15,000/ was paid on 01.07.1987.
(vi). Possession of the plot was handed over to the plaintiff in CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 5 of 74 6
pursuance of the agreement and has been with the plaintiff thereafter. Thereafter, the plaintiff has enclosed the plot with wire fencing and part boundary and has constructed and superstructure of a farm house on the basis of duly sanctioned plan. Certain crops are growing on a portion of the said plot since 1984.
(vii). Although the agreements aforesaid were entered in 1984, it was found that these properties were all mortgaged with Oriental Bank of commerce and that huge amounts were payable to the said bank and other banks. Because of this difficulty the defendants and his associate companies approached the plaintiff to forbear. Since the plaintiff was already in possession, the plaintiff accepted the defendant's request and waited. In fact, plaintiff arranged to pay huge moneys directly to the bank and also persuaded the bank to try and release these properties. It was for this reason that agreements at Sl. no. i, ii, iii, registration could take place only on 10.08.1987, i.e. exactly three years after the agreement. As far as the farm at Sl. no. iv is concerned, out of the price of Rs.5,65,000/ a sum of Rs.5,00,000/ was paid, from time to time between 1984 to 1985, and the balance of Rs. 65,000/ is to be paid at the time of registration which the Sagar CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 6 of 74 7
Construction Company Pvt. Ltd. has promised to do shortly, and is preparing for it.
(viii). In the year 1987, the construction of Highway no. NH8 started. The new alignment of the Road fell very near the suit property, with the result that the values appreciated. Therefore the defendants started dillydallying. They were not clear in their refusal either. The plaintiff approached them repeatedly, but the defendants put off the plaintiff on one pretext for the other. When in early 1988, the offers to pay the balance money pending completion of formalities were refused, the plaintiff became suspicious and asked the defendants point blank. Here again the answer was evasive.
(ix). Accordingly on 13.04.1988, the plaintiff for the last time requested the defendants to accept the balance price and execute the necessary documents, but the defendants failed to do so.
(x). The plaintiff has always been is ready and willing to do his part i.e. to pay the balance sum of Rs.4,45,000/ and have the sale deed executed and registered in his favour.
5. In this suit, Ms. Sabina Jajodia filed an application for her impledment as a party. By way of an amendment application the plaintiff sought to implead her as defendant no. 2. The said CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 7 of 74 8 applications had been allowed on 25.05.1988.
6. The defendant no. 1 put a contest to the suit by filing its written statement which was subsequently amended.
7. The defendant no. 1 took various preliminary objections as under:
(i). There is no enforceable contract. The receipt does not constitute an agreement. It was subject to execution of a formal agreement to sale. For want of the same there is no binding contract.
(ii). The said receipt/alleged agreement has been terminated by the defendant no. 1 vide letter dated 09th March 1984 as the plaintiff has defaulted in making the balance payment of Rs.
4,60,000/. The earnest money of Rs. 10,000/ was forfeited. As such the alleged agreement stood terminated.
(iii). There is no valid and binding agreement between the parties. The plaintiff has never been ready and willing to perform their part of contract as a condition precedent. For want of the same the defendant no. 1 could not perform their obligation.
(iv). Plaintiff himself is guilty of the breach of the agreement and the defendant no. 1 has been within its right to forfeit the CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 8 of 74 9
earnest money, which it has lawfully done.
8. On merits the defendant no. 1 admitted the execution of receipt and the payment of Rs. 10,000/ However it put the rider that it was subject to execution of a formal agreement to sale and for want of the same there is no binding contract. The receipt of Rs. 15,000/ on 01.07.1987 is denied. The handing over the possession to the plaintiff is also denied. It is alleged that the plaintiff has criminally trespassed into the land and is in unauthorized possession of the same. It is stated that certain parts of land were mortgaged with Oriental Bank of Commerce but it is denied that it hindered the execution of sale deeds. Various other averments on which the plaintiff has propounded his cause of action have been denied in the above terms. The defendant no. 1 prayed for the dismissal of the suit.
9. The plaintiff filed the replication to the written statement of the defendant no. 1 in which he denied the material averments of written statement by which the defendant no. 1 has put a challenge to his claim and reiterated the averments of his plaint.
10. The defendant no. 2 in her written statement denied the claim of the plaintiff and claimed it to be bonafide purchased without notice of the alleged agreement. She set up facts in its defence which are akin to her separate suit. The defendant no. 2 prayed for the dismissal of the CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 9 of 74 10 suit.
11. The plaintiff filed the replication to the written statement of the defendant no. 2 in which he denied the material averments of written statement through which the defendant no. 2 has put a challenge to his claim and reiterated the averments of his plaint.
Pleadings of Suit No. 182/2011
12. The plaintiff in suit no. 182/2011 (henceforth the defendant no.
2), Ms. Sabina Jajodia, has propounded her case on the following facts:
(i). M/s Poddar Construction Company Pvt. Ltd. was the sole and absolute owner and in possession of entire area of agricultural land (Farm Land) bearing Khasra no. 693 (406) and 694 (406) measuring approximately 1.80 acres equivalent to 8 bighas 12 biswas situated at Rajokri Road in vilage Kapashera, Tehsil Mehrauli, New Delhi. At all the material times and until as hereinafter stated one M/s Sagar Construction Private Limited was sole and absolute owner in possession of an area of 2.01 acres equivalent to 1 bigha 1 biswas bearing Khasra no. 692 (11) situated at Rajokri Road, village Kapashera, Tehsil Mehrauli, New Delhi.
(ii). By and under an agreement to sell dated 12.04.85 executed by the said M/s Poddar Construction Co. Pvt. Ltd. in CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 10 of 74 11
favour of the defendant no. 2, the said plots of land bearing Khasra no. 693 (406) and 694 (406) was agreed to be sold for a total consideration of Rs.2,30,000/ and on the terms as mentioned therein. An amount of Rs.1,00,000/ was paid vide cheque no. 047798 dated 11.04.85 under the said agreements to sell to the said M/s Poddar Construction Co. Pvt. Ltd. to the account of the defendant no. 2 and the balance amount of Rs. 1,30,000/ was to be paid at the time of execution of registration of the sale deed before the SubRegistrar, New Delhi after fulfilling the formalities mentioned in the agreement to sell by the said M/s Poddar Construction Co. Pvt. Ltd. Thereafter, on 28th May, 1986 a regular sale deed in respect to the said land Khasra no. 693 (406) and 694 (406) was executed by the said Poddar Construction co. Pvt. Ltd. in favour of the defendant no. 2 and duly registered in the office of the Sub Registrar, New Delhi, as no. 5061 Additional Book no. 1 Volume no. 5500 pages 4854 dated 28.05.1986. As mentioned in the sale deed itself, a balance amount of consideration of Rs.1,30,000/ was also paid to M/s Poddar Construction Co. Pvt. Ltd. by cheque no. 282332 dated 19.05.86 drawn on State Bank of India in favour of M/s Poddar Construction Co. Pvt. Ltd. for Rs.1,30,000/. CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 11 of 74 12
Simultaneously with the execution and registration of the sale deed, the defendant no. 2 was put in possession of the said plots of land by M/s Poddar Construction Co. Pvt. Ltd. Thus, the defendant no. 2 until as hereinafter stated being the sole and absolute owner had been in possession of the said two plots of land by and under the said Sale Deed duly executed by M/s Poddar Construction Co. Pvt. Ltd. in favour of the defendant no.
2.
(iii). The defendant no. 2 in or around March, 1988 also applied for mutation of the said two plots of land and accordingly on 08.04.1988 mutation was effected in favour of the defendant no. 2 as is evident from the copy of the mutation records duly translated in English issued to the defendant no. 2 dated 08.04.88 which is filed with the plaint.
(iv). By and under a sale deed dated 28.05.86 executed by M/s Poddar Construction Co. Pvt. Ltd in favour of the defendant no. 2 in the office of the Sub Registrar, New Delhi, duly registered against Registration no. 5058 in Additional Book no.1 volume no. 5500 at pages 3943 dated 28.05.86 all rights, title and interest upto and upon the piece of farm land measuring 2.01 acres equivalent to 1 bigha 1 biswas bearing Khasra no. 692 CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 12 of 74 13
(11) situated at Rajokri Road, Village Kapashera, Thsil Mehrauli, New Delhi was sold by said M/s Sagar Construction Private Limited to the defendant no. 2 for a total consideration of Rs.23000/. That the said sum of Rs. 23000/ was paid to M/s Sagar Construction Private Limited Vide Draft no.282335 dated 19.05.86 drawn on State Bank of India simultaneously with the execution and registration of the sale deed in favour of the defendant no. 2. As mentioned in the sale deed it self simultaneously with the execution and registration of the sale deed the defendant no. 2 was put in possession of the said plot bearing no. Khasar no. 692 (11) and the defendant no. 2 until as hereinafter stated being the sole and absolute owner was in possession of the said plot of land. A copy of the registered sale deed dated 28.05.86 in respect of the said plot of land is filed with the plaint.
(v). As already mentioned above, the entire physical possession of the three plots of said land had been handed over to the defendant no. 2 by M/s Poddar Construction Co. Pvt. Ltd/Sagar Construction (P) Ltd., simultaneously with the execution and the registration of the respective sale deeds on 28th May, 1986 and thus the defendant no. 2 was in continuous possession of the said CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 13 of 74 14
three plots of land (referred to as 'the said land') until as hereinafter stated. However, on or about 2nd April, 1988 when the defendant no. 2's attorney visited the said three plots of land to his surprise it was found that certain constructions had been raised on a portion of the said land which were wholly unauthorised and the defendant no. 2 had no knowledge or information of such unauthorised construction. On enquiry the defendant no. 2's attorney came to know that the said unauthorised construction had been raised by the defendant. Therefore, on coming to know of the same, the defendant no. 2 through her attorney complained to defendant of the same. The defendant no. 2 asked the plaintiff to remove the same but to no avail. The defendant is a bonafide purchaser for a valuable consideration and without any notice of the agreement to sell as propounded by the plaintiff. The plaintiff is a trespasser in the suit land and the defendant no. 2 is entitled to recover the possession from him. Hence the suit.
13. The plaintiff denied the averments of the suit of defendant no. 2 by filing his written statement.
14. As preliminary objections plaintiff stated that the suit was liable to be stayed under Order 10 CPC; the suit has not been properly CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 14 of 74 15 valued; the suit is bad for misjoinder of parties; and the suit is bad for nonjoinder of M/S Poddar Construction Company Pvt. Ltd. On merits the plaintiff denied the averments of the plaint in the same terms on which he has instituted his own suit.
15. The defendant no. 2 filed the replication to the written statement of the plaintiff in which she denied the material averments of written statement through which the plaintiff has put a challenge to her claim and reiterated the averments of her plaint.
Issues
16. On the pleadings of the parties the following issues have been framed on 02.08.1995:
1. Whether the plaintiff is entitled to the relief of specific performance on the facts and circumstances of the case? OPP
2. Whether the suit is barred by limitation?
3. Whether the suit for specific performance is not maintainable as alleged in Preliminary objections of the written statement of the defendant no.1?
4. Whether the agreement dated 11.08.1984 was terminated by the defendant no. 1?
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5. Whether the defendant no. 2 is a bonafide purchaser for valuable consideration in pursuance of the instrument dated 28.05.1986 and had no notice of the agreement dated 11.08.84 and if so what is the effect?
6. Whether the plaintiff is entitled to a decree of cancellation cancelling the instrument dated 28.05.1986 in favour of defendant no.2?
7. Whether the plaintiff in suit no. 1241/88 is entitled to relief of possession?
8. Relief.
17. Plaintiff has examined himself as PW1. Shri Sunder Kumar Bansal is PW2. Shri N. S. Vashisht is PW3.
18. Shri Rajiv Poddar is DW1 in evidence of the defendant no. 1. The defendant no. 2 has examined Shri Amrit Pal as DW2.
19. I have heard Shri P. K. Jain, Ld. Counsel for the plaintiff. Shri S.P. Kalra, Ld. Senior Advocate with Shri Rajeev Kapoor, Advocate, Counsel for defendant no. 1 and 2 has addressed the final arguments.
Plaintiff's Arguments
20. Briefly stated, the Ld. Counsel for the plaintiff has submitted that the receipt dated 11.08.1984, which is Ex. P1, exhibits all CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 16 of 74 17 ingredients requisite of an Agreement to Sell. An agreement to sell must necessarily contain the full particulars of seller and buyer; proper and complete description/details of the demised property; sale consideration; advance paid; obligations/conditions to be filled by the parties; stage of payment of balance sale consideration and; period of performance; attestation by witness. All these ingredients are present in Ex. P1. It has been written and witnessed by Sh. S. K. Bansal, Advocate, who also appeared in evidence as PW2. It is though an admitted document, it has also been proved by Sh. S. K. Bansal appearing as PW2 who has written the same in his handwriting and is thus a witness to the transaction. Agreement Ex. P1 is an admitted document and amounts to a concluded contract duly enforceable under the law. The following judgments have been relied upon on this aspect by the plaintiff:
1). Nanak Builders vs. Vinod Kumar AIR 1991 DELHI 313.
2). Parveen Arora vs. Raj Karni Mehra 189(2012) DLT 52 DB.
3). CIT vs. Panipat Woollen & General Mills
AIR 1976 SC 640.
4). Round The Clock Stores Ltd. Vs.
CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 17 of 74 18
Aggarwal Entertainment (P) Ltd dated judgment of Hon'ble High Court of Delhi passed on 29.02.08 in CS (OS) No. 1194 of 2006.
5). V. B. Dharmvat vs. Shree Jagadguru Tontadrya & Ors. JT 1999 (9) SC 469.
21. The defendant no. 1 claims termination of Agreement dated 11.08.1994, Ex. P1, for two reasons: i.e.:
a) Failure of plaintiff to execute further agreement to sell;
and,
b) Failure of plaintiff to pay balance sale consideration.
22. This stand of the defendant no. 1 is without any justification for the reason firstly that the parties are bound by terms and conditions of Agreement dated 11.08.1994 (Ex. P1), which is an admitted document; and secondly that while all the terms and conditions are clearly mentioned, there is no condition for execution of any further or formal agreement to sell in Agreement dated 11.08.1994 (Ex. P1). Letter dated 26.11.1984 Ex. P2 also does not mention any other condition except as mentioned in Ex. P1 and thirdly the letters dated 20.02.1985 and 09.03.1985 are in the nature of after thoughts in as much as no such claim for execution of any further agreement to sell has been made within the prescribed period of six months as mentioned CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 18 of 74 19 in Agreement dated 11.08.1994 (Ex. P1) and fourthly no effort has ever been made by the defendant no. 1 for execution of any such further agreement before 20.02.1985. No plea as to why defendant no. 1 did not call upon the plaintiff to execute further agreement to sell within six months i.e. before 10.02.1985 and at the time of execution of receipt dated 31.07.1987 Ex. PW 1/30 or thereafter. Further admittedly, no letter/notice sent claiming termination of Agreement dated 11.08.1994 and no reply sent inspite of receipt of series of letters from the plaintiff. On the contrary the request letter dated 28.07.1987 (Ex. PW1/34) was written by defendant no. 1 to the plaintiff requesting for further payment of Rs. 15,000/ which is Ex. PW 1/34.
23. The possession of the plaintiff has been admitted by defendant no.1 in his original written statement dated 17.08.1988 in para 10 and the only counter plea is that the said possession is unauthroized. However no date has been mentioned as to when the plaintiff trespassed into the land in question. Plaintiff is in and claims possession since the date of agreement vide receipt dated 11.08.1984 Ex. P1.
24. On the issue no. 1 as to the entitlement of plaintiff to the relief of specific performance when the agreement to sale has been duly proved and it has also come on record that the plaintiff had always been CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 19 of 74 20 willing and is willing to perform his obligations under Ex. P1 and there being no explanation from the for insisting for execution of a formal agreement to sell the case of the plaintiff is clinched. To add to the same is the fact that the plaintiff paid a further sum of Rs. 15,000/ on the demand of defendant no. 1 in furtherance of the agreement to sell and that the defendant no. 1 had also given in writing to give another plot/property to the plaintiff in case for any reason the suit property could not be given also fortify that the agreement has been subsisting as a valid agreement to sell and it is only subsequently the defendant no. 1 had taken a 'U' turn malafidely. Evidence of PW2 only adds corroboration to the plaitniff's evidence and cements the same.
25. The plea of limitation on which the issue no. 2 has been framed is coming out of the air. A collective reading of the agreement Ex. P1 and the receipt of Rs. 15,000/ as Ex. PW1/30 clearly spell out that the agreement was in force and valid. Article 54 of the Limitation Act is attracted in the matter and the suit is thus within limitation.
26. The issue no. 3 has its foundation in the preliminary objections as to there being no enforceable contract; the receipt not constituting an agreement; want of a formal agreement to sale and thus no binding contract; termination by the defendant no. 1 vide letter dated 09th March 1984 on account of the plaintiff having defaulted in making the CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 20 of 74 21 balance payment of Rs. 4,60,000/ and consequent forfeiture of the earnest money of Rs. 10,000/ are the defences the onus of which is on the defendant no. 1 to discharge. Apart from the letters dated 20.02.1985 and 09.03.1985 there is nothing on record to suggest cancellation of the agreement Ex. P1. The further demand and acceptance of Rs. 15,000/ amounts to exhibiting the validity and currency of the agreement. The defendant no. 1 in the written statement denied the receipt of the said sum but admitted the same as Ex. PW1/30 in his evidence.
27. The defences are per se false on the face of it. The sale to the defendant no. 2 is a camouflage. There is nothing to show that the defendant no. 2 is a bonafide purchaser for a valuable consideration in pursuance of the instrument dated 28.05.1986 and had no notice of the agreement dated 11.08.84. The alleged sale to the defendant no. 2 is at almost half the agreed consideration in Ex. P1 and there is no reason or justification for the same. There are host of other circumstances which go to show that the transaction is only on paper.
28. The defendant no. 2 or her next friend/guardian at the relevant time have shied away from appearing in the witness box and as such there is in fact no evidence as far as the case of defendant no. 2 in her suit for possession and injunction is concerned. CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 21 of 74 22
29. The plaintiff relied upon Sargunam (dead) Vs. Chidambaram and another, AIR 2005 SC 1420 to cite that non mention of the agreement to sell in the sale deed proved to fatal and this authority clinches that the defendant no. 2 failed to prove that she was bona fide purchaser of suit premises for value without notice and the agreement to sell in favour of defendant no 2 is a concocted document. The case of Subhra Mukherjee and another Vs. Bharat Coking Coal Ltd and others, AIR 2000 SC 1203 has bee relied upon to bring home the point that a person who attacks a transaction as sham, bogus and fictitious must prove the same. Further the plaintiff relies upon Jagan Nath Vs. Jagdish Rai and others, (1998) 5 SC 537 to cite that the initial burden to show that the subsequent purchaser of suit property covered by earlier suit agreement was bona fide purchaser for valuable without notice of the earlier suit agreement lies on such subsequent transferee. On the same point of law plaintiff has referred to Joginder Singh and others Vs. Nidan Singh AIR 1976 P&H 120.
30. On the aspect of the defendant no. 2 or her guardian not entering into the witness box reliance has been placed upon Janki Vashdeo Bhojwani & Another vs. Indusind Bank Ltd & Others, (2005)2 SC cases 217 to submit that Power of attorney holder can not depose for CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 22 of 74 23 principal in respect of matters of which only principal can have personal knowledge and in respect of which principal is liable to be cross examined. In the similar vein the case of Sarita Rani Vs. Deepak Raj & Ors JT 2000(10) SC 27 has been relied upon to cite on the aspect of the bona fide purchaser not entering the witness box and its consequences.
31. The case law R.K. Mohammed Ubaidullah and others Vs. Hajee C. Abdul Wahab (D) by Lrs., (2006) 6 SC cases 402 has been relied upon to cite that unless such purchaser has made appropriate inquiries he can not establish his bona fides. If such an inquiry is not made, it would mean that the purchaser willfully refrained from making the inquiry or grossly neglected to do so. Such purchaser can not establish his bona fides as a purchaser in can not establish his bona fides as a purchaser in good faith.
32. Case of Dr. Govinddas and another Vs. Smt. Shantibai and others, AIR 1972 SC 1520 has been relied upon to cite that the facts are similar and Sabina Jajodia's family which already owned a farmhouse in the vicinity cannot be bonafide if it failed to make even the basic inquiries. Reliance is also placed upon Ram Niwas (dead through Lrs Vs. Smt. Bano and Others, AIR 2000 SC 2921 on the CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 23 of 74 24 same lines. Also relied upon is Dhadi Dalai vs. Basudeb Satpathy AIR 1961 Orissa 129 as to the obligations of a bonafide purchaser. As to the effect of entry in Revenue records case of Suraj Bhan vs. Financial Commissioner AIR 2007 SC 539 is relied upon.
33. The case of Kedar Nath & Ors Vs. ram Parkash & Ors., 76 (1998) DLT 755 (FB) has been relied upon to cite that amendment does not give right to plead inconsistent or in variance with the original pleadings. On this aspect the case of Gurdial Singh and Others vs. Raj Kumar Aneja and Others, AIR 2002 SC 1003 is also relied upon.
Defendants' Arguments
34. On behalf of the defendants it is submitted that to qualify for grant of relief of specific performance the plaintiff must show conduct which is free of any blame or blemish. As the plaintiff seeks the relief the burden on his shoulders is very heavy, to the extent of absolute. In this case the conduct of the plaintiff is full of blemish who just after paying Rs. 10,000/ and defaulting in his obligation to pay the balance sum and other obligations under the agreement to sell is seeking specific performance of the agreement to sell.
35. In all there were five transactions and when the defendants had CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 24 of 74 25 carried out the remaining four transactions there was no reason on its part to default in the fifth transaction. The plaintiff is trying to take advantage of his own wrongs.
36. In fact, there is no enforceable contract between the parties. The receipt does not constitute an agreement. More so, it was subject to execution of a formal agreement to sell and in the absence of the same want of the same there is no binding contract. The Income Tax Authorities could not grant a 'No Objection Certificate' merely on the basis of agreement to sell. The defendant no. 1 has time and again requested the plaintiff to execute a formal agreement but the plaintiff played truant. Thus it is the plaintiff who has frustrated the agreement and on account of this conduct he is not entitled.
37. While filing the suit, the plaintiff very conveniently ignored to mention the letters sent by the defendant no. 1. Even in his correspondence he blew only his own trumpet, but did not meet the letters of the defendant. This goes to reflect his conduct. However, per chance the plaintiff filed all the letters written by the defendant no. 1 on record and thus he stood exposed. Ex. PW1/D7 and Ex. PW1/D8 totally expose the conduct of the plaintiff.
38. The execution of other sale deeds in the contemporary four transactions was not withheld due to any default on the part of the CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 25 of 74 26 defendant no. 1 but it was solely due to the reason that the plaintiff had no funds to meet his obligation. The instant transaction also sails in the same boat.
39. The plaintiff has admitted in his cross examination that a formal agreement to sell was necessary to obtain the sale permission from the Income Tax Department. Despite this he did not cooperate despite oral requests of the defendant no. 1 and letters Ex. PW1/D7 and Ex. PW1/D8. He conveniently ignored the same.
40. The plaintiff has failed to meet the basic requirements of the case as there is no valid, enforceable or concluded contract between the parties. The said receipt/alleged agreement has been terminated by the defendant no. 1 vide letter dated 09th March 1984 as the plaintiff has defaulted in making the balance payment of Rs. 4,60,000/ and the earnest money of Rs. 10,000/ was forfeited. Thus even if there was an agreement in the eyes of law, it stood terminated.
41. The plaintiff has neither averred nor proved that he had/has been ready and willing to perform his part of contract as a condition precedent. Thus the requisites of section 16(b) and (c) of the Specific Relief Act are not met. Similarly he has not met the conditions of section 20 of the Specific Relief Act by exhibiting his blemish less conduct throughout.
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42. When the plaintiff had executed formal agreement to sell in some of the other transactions, what prevented him from executing the same in the similarly placed fifth transaction? This speaks for itself that the plaintiff's has pressed into service a false case. For want of the same the defendant no. 1 could not obtain the IT clearance though its conduct through shows that it was always ready and willing to do so and even called upon the plaintiff to come forward, even after the elapse of 6 months as laid down in the receipt. In fact, the plaintiff himself is guilty of the breach of the agreement and the defendant no. 1 has been within its right to forfeit the earnest money, which it has lawfully done. The only reason for the defendant no. 1 to cancel the deal had been the failure on the part of the plaintiff to perform his part of the contract.
43. The plaintiff has not said even a single word in his evidence regarding his readiness and willingness to perform the agreement. He has led no evidence to show the funds available to meet the obligation in terms of the agreement.
44. The relief of specific performance is discretionary in nature and thus the conduct of plaintiff assumes relevance. His conduct disentitles him for the relief. His case has foundation in false averments and concealment of material facts.
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45. The suit is also hit by the bar of limitation. The plaintiff became aware of the cancellation lastly on 11.03.1985 as he has acknowledged by the letter dated 09.03.1985 in the his letter of above date and thus the suit of the plaintiff instituted in April 1988 is clearly beyond limitation as the limitation was only available upto 10.03.1998. The plea of payment of Rs. 15,000/ to extend the limitation is not available to the plaintiff firstly for the reasons that foundation for same has not been made in the pleadings. Order 7 Rule 6 CPC makes it obligatory upon a party to state the grounds of exemption from limitation law where the suit is instituted after the expiration of the period. This has not been done. There is noncompliance of the provision under 6 Rule 1 and 9 CPC also. The documents Ex. PW1/30 has not even remotely referred to in the pleadings. The effect of acknowledgement and thus extension of limitation is not available in the present case as there subsists no relationship of a debtor and creditor in the present case. Section 18 and 19 of the Limitation Act are attracted in the facts of the present case.
46. It is established beyond doubt that the defendant no. 2 is a bonafide purchased without notice. The evidence of DW1 has stood unimpugned on this aspect. Sale deed favouring the defendant no. 2 has been admitted by the plaintiff and he cannot reverse his stand now. CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 28 of 74 29 Under the same the possession has been handed over to the defendant no. 2 and the plaintiff has illegally trespassed into the property. The report of the Local Commissioner supports the possession of the defendant no. 2 as the construction is stated to be of recent time. The fact that the plaintiff was not in possession is established by Ex. PW1/D9 to Ex. PW1/D12.
47. On the preponderance of probabilities, it is the case of the defendants which is established whereas the plaintiff's case has no legs to stand.
48. The case law in Spring Valley Finance vs. Smt. Parkash Kaur 148 (2008) DLT 767 supports the arguments of defendant on the point of limitation and readiness and willingness to perform the obligations of plaintiff under the contract.
49. In Citadel Fine Pharmaceuticals Vs. Ramaniyam Real Estates Pvt. Ltd., VIII (2011) SLT 336 it is held that where the plaintiff purchaser failed to discharge its part of contract within time and the same is cancelled by vendor after expiry of time, the plaintiff purchaser is not entitled to any relief in suit of specific performance.
50. Reliance has been placed upon Sita Ram vs. Radhey Shyam VIII (2007) SLT 550 to cite that person seeking benefit of specific relief must manifest his conduct has been blemish less throughout. In CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 29 of 74 30 the similar vein reliance has been placed upon Rahat Jain vs. Hafiz. Mohd Usman AIR 1983 ALL. 343.
51. On the point of limitation the case of Roshan Lal Kuthiala vs. Raja Ram Yogendra Chandra AIR 1996 HP 14 has been cited. The case of Shah Manmali Misrimal vs. K. RAdhkrishnan AIR 1972 MADRAS 108 has been cited on similar point.
52. Case of Ram Parkash Arora vs. M. L. Khanna AIR 1983 NOC 79 (DELHI) has been relied upon to cite that it is the duty of the plaintiff to disclose in plaint that the suit is within limitation and the provisions under Order 7 Rule 6 and Order 6 Rule 5 have been discussed. On limitation aspect and failure to plead necessary facts extending the limitation the case law of Kalyan Mal vs. Ahmad Uddain Khan AIR 1934 PC 208 has been relied upon.
53. Reliance has been placed by the defendants on Ram Sarup Gupta vs. Bishan Narain Inter College AIR 1987 SC 1242 to submit that the object of pleadings is to give notice to the adversary as to the kind of case it has to meet and a fair trial demands that other party is not taken by surprise. Abubakar Abdul Inamdar vs. Harun Abdul Inamdar AIR 1996 SC 112 has been relied upon to cite that no amount of evidence can fill up the deficiency of pleadings which are CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 30 of 74 31 the foundations of claim of a party.
54. To meet the objection of plaintiff as to the validity of the stamp papers on which the sale deed of defendant no. 2 has been written case of Thiruvengada Pillai vs. Navaneethammal AIR 2008 SC 141 has been relied upon to state that NJS papers have no expiry period.
55. The case of Laxmi Prosad Bhattarjee vs. Amulya Chandra Guin AIR 1989 CALCUTTA 71 has been relied upon to cite that contract between vendore and vendee was not enforceable on date of sale to other person hence section 19 of the Specific Relief Act does not apply.
56. Case of Brij Kishore vs. Mushtari AIR 1976 Allahabad 399 has been relied upon to submit that once the pleadings are amended, the original text is to be ignored for all purposes.
57. In the rebuttal arguments, Ld. Counsel for the plaintiff refuted the arguments of defendants.
58. Parties have also filed their respective written arguments.
59. No other point has been argued or urged.
60. I have considered the submissions and the material on record. My findings on various issues are as under: Issue no. 2. Whether the suit is barred by limitation?
61. I am taking up this issue first, as the issue of limitation goes to CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 31 of 74 32 the root of the matter and if decided against the plaintiff, there would be no need to go into the other issues, as they this issue would eclipse them, making them nonest.
62. The relevant article of the Limitation Act which is attracted in the instant case is Article 54. It reads as under:
54. For specific per Three years The date fixed for the formance of a con performance, or, if no tract. such date is fixed, when the plaintiff has notice that perfor mance is refused.
63. The limitation once starts to run it does not stop. This is the prescription of section 9 of the Limitation Act, which reads as under: '9. Continuous running of time-- Where once time has begun to run, no subsequent disability or inabil ity to institute a suit or make an application stops it:
Provided that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the ad ministration continues.'
64. The case of the defendants is that the plaintiff has not pleaded any facts to claim exemption from the law of limitation as no relevant facts have been set up as required under Order 7 Rule 6 CPC. To eluci date what the mandate and intent of the said provision it is reproduced CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 32 of 74 33 as under: "Order 7 Rule 6 CPC. Grounds of exemption from limitation law--Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed:
Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint."
65. The above provision is clear that if the plaintiff seeks exemption from the law of limitation, he has set up the grounds for such exemp tion. However the proviso limits the rigours of the same by affording an opportunity to claim exemption when if he sets up grounds which are not inconsistent with the grounds set out in the plaint.
66. In the present case the plaintiff has given chronological order of the various events viz. the entering into the deal and various subse quent facts. The date of receipt/agreement Ex. P1 is 11.08.1984. The suit has been instituted on 19.04.1988. Ex. P1 provides for date of per formance as within six months after its execution during which period the defendant no. 1 had to obtain permission under the Income Tax and other laws. The fact of the matter is that income tax clearance has not been obtained by the defendant no. 1, who was under an obligation to obtain the same in terms of Ex. P1. Till the same is done, the plaintiff CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 33 of 74 34 is handicapped in the performance of his part of obligation i.e. the pay ment of balance sale consideration and getting the sale deed regis tered. Whether the nongrant of permission to sell is on account of the default or neglect etc. on the part of the plaintiff is a different matter al together and it would be considered while considering other issues, the fact remains that the Income Tax Clearance is conspicuous by absence. It is the sinequanon or condition precedent.
67. In Rojasara Ramjibhai Dahyabhai v. Jani Narottamdas Lal lubhai (dead by LRs.) and another AIR 1986 SC 1912 it has been held that in a suit for specific performance of an agreement to sell the land subject to obtaining the permission about the use of land prior to execution of sale deed, the contract is not contingent but was specifi cally enforceable and that the suit filed within three years from the date of permission is not barred by limitation.
68. In view of the above judgment, the limitation starts from the date of obtaining the permission albeit the parties have fixed an upper peri od of 6 months from the date of agreement for performing the respec tive obligations. However the condition of obtaining the income tax clearance is the pivot or the prime wheel and other conditions can be performed only when the said condition has been complied with. Thus considered on this aspect the case is within limitation. CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 34 of 74 35
69. Looked from another perspective, the plaintiff has pleaded fur ther payment vide Ex. PW1/30 in furtherance of agreement but has not specifically pleaded that it is an acknowledgement extending the period of limitation. The stand of the defendants is that though it was neces sary to plead exemption from limitation as provided by Order 7 Rule 6 of the Code of Civil Procedure, which was a necessity to plead but there is no question of extension of limitation as the acknowledgement is only in case of a debt. It is not applicable to a suit for specific per formance. The stand of the plaintiff is to the contrary.
70. Section 18 of the Limitation Act deals with the acknowledge ment and its effect. It goes as under: "18. Effect of acknowledgement in writing. -- (1) Where, before the expiration of the prescribed pe riod for a suit or application in respect of any prop erty or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he drives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.
(2) Where the writing containing the acknowledge ment is undated, oral evidence may be given of the time when it was signed; but subject to the provi sions of the Indian Evidence Act, 1872 (1 of CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 35 of 74 36
1872), oral evidence of its contents shall not be re ceived.
Explanation. -- For the purposes of this section,
-- (a) an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for pay ment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to setoff, or is addressed to a person other than a person entitled to the property or right;
(b) the word "signed" means signed either person ally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right."
71. The original receipt/agreement Ex. P1 is dated 11.08.1984. The performance has been fixed within six months of its execution, during which time the parties have to perform their respective obligations. The receipt dated 31.07.1987 , Ex. PW1/30, is for Rs. 15,000/ executed by the defendant no. 1. It mentions that the said sum of Rs. 15,000/ is in continuation of receipt dated 11.08.1984 (Ex. P1). It also mentions the particulars of the suit property. It also states that if the suit property could not be registered in favour of the plaintiff then alternative land would be provided to the plaintiff out of another property whose CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 36 of 74 37 particulars have been mentioned.
72. I do not subscribe to the argument of defendants that an acknowledgment can only be in respect of a debt. Such a view would do injustice to the language of section 18 of the Limitation Act. The said provision talks of property or right and not of any debt alone.
73. In fact, as the law envisages, an acknowledgment is admission of a jural relationship.
74. The receipt Ex. PW1/30 is not only a continuation or acknowledgment of the receipt Ex. P1, it by incorporating a new condition of providing alternative property to plaintiff amounts to novation of contract.
75. So far as the objection of defendants under Order 7 Rule 6 CPC is concerned, the answer to same can be given by referring to the judgment Ram Sarup Gupta v. Bishun Narain Inter College AIR 1987 SC1242, which has been cited by the defendants.
"...The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr.CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 37 of 74 38
in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal..."
76. Thus when the defendants have duly understood the case of the plaintiff, there is no failure of justice on account of noncompliance of Order 7 Rule 6 CPC in strict terms.
77. The above issue is answered in favour of the plaintiff and the suit is held to be within limitation.
Issue no. 3. Whether the suit for specific performance is not maintainable as alleged in Preliminary objections of the written statement of the defendant no.1?
& Issue no. 4. Whether the agreement dated 11.08.1984 was terminated by the defendant no. 1?
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78. I am taking up these issues together as they are interlinked and cannot be discussed in isolation.
79. The receipt dated 11.08.1984 is an admitted document and it is Ex. P1. Ex. P2, anther admitted document is a letter dated 26.11.1984 of the defendant no. 1 confirming the above document. The execution of agreement Ex. P1 and the receipt of Rs. 10,000/ has been admitted by the defendant no. 1, however a legal objection has been made that Ex. P1 cannot be construed as an agreement to sale as it is merely a receipt. The plaintiff has taken the contrary stand and has pressed into service various case law on this aspect as noted above. To appreciate this point, the contents of the Ex. P1 are reproduced below: "RECEIPT Received with thanks from Mr. Ravinder Nath Sahni son of Sh. S. N. Sahni R/o 3 Akashdeep Barakhamab Road, New Delhi. The sum of Rs.
10,000/ only vide cheque no. 182710 dated 11.08.1984 on Punjab & Sind Bank New Delhi towards advance for the sale of 2.01 acres agricultural land bearing Khasara no. 692 (101), 693 (46), 694 (4.6) situated at village Kaparsera, Tehsil Mahruli, New Delhi including facilities, fencing, appurtenances with sanction plan and 60' feet vide Road, user free of cost agreed to be sold for Rs.4,70,000/. The seller will obtain income tax, urban land clearance and declaration of clear title CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 39 of 74 40
within 6 months. The buyers will pay the balance consideration within 6 months or within 60 days of obtaining incentives, urban land and title clearance certificate at the time of execution & registration of the sale deed otherwise advance will be forfeited. The sale deed in favour of nominee or nominees or buyers.
New Delhi Dated 11th August 1984 For Poddar Constructions (P) Ltd.
Sd/ Director"
80. It is the settled law that the nomenclature of a document is immaterial and these are the contents of a document that determine what it purports to be. The requisites of an agreement to sell and purchase an immovable property are that it should contain the particulars of seller and buyer; identification and particulars of the property which is the subject matter of sale and purchase; the sale consideration; earnest money paid; various obligations of the respective parties and the period of performance.
81. A look at the above receipt shows the following:
(i). Particulars of seller and buyer: Poddar Constructions (P) Ltd and Mr. Ravinder Nath Sahni respectively;
(ii). Identification and particulars of the property which is the subject matter of sale and purchase: 2.01 acres agricultural land CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr.CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 40 of 74 41
bearing Khasara no. 692 (101), 693 (46), 694 (4.6) situated at village Kaparsera, Tehsil Mahruli, New Delhi including facilities, fencing, appurtenances with sanction plan and 60' feet vide Road, user free of cost
(iii). The sale consideration: Rs.4,70,000/
(iv). Earnest money paid: Rs. 10,000/ which the receipt acknowledges.
(v). Various obligations of the respective parties and the period of performance: (a). The seller will obtain income tax, urban land clearance and declaration of clear title within 6 months. (b). The buyers will pay the balance consideration within 6 months or within 60 days of obtaining income tax clearance, urban land and title clearance certificate at the time of execution & registration of the sale deed otherwise advance will be forfeited. (c). The sale deed in favour of nominee or nominees or buyers.
82. Under section 3 of the Transfer of Property Act the terms 'attestion' has been defined to mean "in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has been the executant sign or affix his mark to the instrument, or has seen some other person sign CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 41 of 74 42 the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary." In the present case no particular law has been cited before me that to show that an agreement to sell is required to be attested in a particular manner akin to a Will or a deed of adoption. In this case the execution of Ex. P1 is not disputed. The witness PW2 has deposed that the said instrument is in his handwriting. Ex. P2 and various correspondences exchanged between the parties, leave no room for the doubt visàvis the execution of P1. Thus in these facts and circumstances the attestation aspect of Ex. P1 fades into insignificance.
83. PW1 has been put question in cross examination on this aspect and he replied that he had entered into two agreements to sell and three agreementcumreceipt, and in his mind there is no difference between the two sets of documents. The accompanying transactions all corroborate that though Ex. P1 had been christened as 'Receipt' it was in its nature an agreement to sell and the parties deemed it to be so. CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 42 of 74 43 Thus all roads lead to one destination that Ex. P1, in sum and substance is an agreement to sell. As such the objection of the defendant no. 1 that Ex. P1 does not conform to be an agreement to sell and purchase is only an art for art's sake objection. The case law cited by the plaintiff on this aspect fully supports this inference in the particular facts and circumstances of the case.
84. In his evidence, PW1 has deposed that the agreement P1 could not be carried out further for want of requisites clearance like under the Income Tax Act and as such the defendant no. 1 had defaulted in its obligation under the agreement Ex. P1. There was no obligation stipulated in Ex. P1 to execute any formal agreement, as per the stand taken by the defendant no. 1. PW1 has also deposed that it had carried out all his obligations under the agreement and even paid a sum of Rs. 15,000/ in furtherance of the same as per the demand of the defendant no. 1 and this is corroborated by the receipt Ex. PW1/30. Per contra, the cross examination of PW1, amongst others, pertains to the fact that that the IT clearance could not be received for want of a formal agreement to sell. PW1 has admitted in his cross examination as, "it is correct that an existence of an Agreement to Sell is essential, for obtaining clearance in Form 34(A) from the Income Tax Authorities." This stand of the plaintiff shows that there was something more than CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 43 of 74 44 what meets the eye.
85. The witness DW1 was cross examined by the plaintiff on this aspect. He denied that the receipt Ex. P1 itself constitutes an agreement to sell. He also referred to two other cases in which the plaintiff has executed a formal agreement to sell. The witness DW1 has however admitted the suggestion that the defendant no. 1 did not apply for ITCC and NOC i.e. title clearance from the Tehsildar on the basis of receipt Ex. P1.
86. It is seen that the parties tried to outwit each other as far as execution of a formal agreement to sale was concerned. The plaintiff banked upon the plea that no such condition had been envisaged in the Ex. P1 whereas the defendant no. 1 had stated that it was a pre requisite by IT Authoriteis. In the cross examination the plaintiff as PW1 admitted the same to be an essential requirement for obtaining ITCC. Be that as it may, the fact remains that by any standards, the request or demand of the defendant no. 1 to execute a formal agreement to sell was nothing which would have put any burden on the shoulders of the plaintiff. Nothing has been shown on record that it would have been onerous to the plaintiff. There is no justifiable reason put forward by the plaintiff to not comply with this request of the defendant no. 1. Though in the letters of the agreement Ex.P1 there CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 44 of 74 45 was no stipulation that a formal agreement is to be executed, but when by the own admission of the PW1 in his cross examination that it was a necessary requirement, he could have very well conformed with the agreement Ex. P1 in its spirit and rendered the necessary assistance to the defendant no. 1 to ensure that the permission from Income Tax Department is received and the terms of the agreement are carried out. This obstinacy is without any explanation.
87. Now a look at various documents tendered by the parties in evidence. Ex. P3 is a letter dated 09.03.1985 (though the date is typewritten as 9th Feb, 1985, it is the admitted case of the parties that it is dated 09.03.1985), which has been written by the defendant no. 1 to the plaintiff. Ex. P4 is another letter dated 20th Feb, 1985 of the defendant no. 1 to the plaintiff and it is accompanied with a typed draft agreement to sell which is Mark 'B'. In fact PW1 in his examination in chief has deposed regarding the sending of draft agreement and tenders the document in his evidence as Mark 'B'. Ex. P5 is a letter dated 08.01.1987 of the defendant no. 1 to the Oriental Bank of Commerce.
88. The record shows that the parties entered into a war of letters. Ex. PW1/2 is a letter dated 22.02.2985 of plaintiff to the defendant no.
1. Ex. PW1/3 is the postal receipt of its posting. Ex. PW1/4 is a letter dated 26.02.2985 of plaintiff to the defendant no. 1. Ex. PW1/5 is the CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 45 of 74 46 postal receipt of its posting. Ex. PW1/7 is a letter dated 11.03.2985 of plaintiff to the defendant no. 1. Ex. PW1/8 is the postal receipt of its posting and Ex. PW1/9 is the AD card. Ex. PW1/10 is a letter dated 20. 05.1985 of plaintiff to the defendant no. 1. Ex. PW1/11 are the postal receipts of its posting and Ex. PW1/12 is the AD card. Mark 'C' is a letter dated 13.06.1985 of plaintiff to the defendant no. 1. Ex. PW1/13 is a letter dated 16.08.1985 of plaintiff to the defendant no. 1. Ex. PW1/14 is the postal receipt and Ex. PW1/15 is the AD card. Mark 'D' is a letter dated 18.10.1985 of plaintiff to the defendant no. 1. Ex. PW1/16 is the postal receipt of its posting and Ex. PW1/17 is the AD card. Mark E is a letter dated 25.10.1985 of plaintiff to the defendant no. 1 and the Ex. PW1/18 is the postal receipt. Ex. PW1/18 is also marked upon a UPC certificate dated 26.10.1985. Ex. PW1/19 is a letter dated 29.12.1986 of plaintiff to the defendant no. 1 and Ex. PW1/20 is the postal receipt. Registered AD. Cover is Ex. PW1/21. Ex. PW1/22 is the contents of a telegram sent by the plaintiff to the defendant no. 1. Ex. PW1/23 is a letter dated 02.06.1987 of the plaintiff to the defendant no. 1 and Ex. PW1/24Ex. PW1/26 are the postal receipts whereas Ex. PW1/2729 are the AD cards. Ex. PW1/30 is a receipt for Rs. 15,000/. Ex. PW1/31 is a letter dated 29.04.1987 of Shri R. S. Sharma, Advocate to the plaintiff. Ex. PW1/32 is a court CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 46 of 74 47 order dated 03.04.87. Ex. PW1/33 is the Public Notice published at the instance of plaintiff in the Hindustan Times dated 23.10.1985. Ex. PW1/34 is a slip requesting payment of Rs. 15,000/ to the bearer. Ex. PW1/35 is a letter dated 25.09.1987 of plaintiff to the defendant no. 1 and Ex. PW1/37 is the postal receipt. Ex. PW1/38 is the AD Card. Ex. PW1/39 is the extracts from the Revenue Record. Mark E is the contents of a telegram and Ex. PW1/40 is the receipt of telegraph office. Ex. PW1/41 is a letter dated 03.02.1987 of plaintiff to Oriental Bank of Commerce. Ex. PW1/42 is a letter dated 03.03.1987 of plaintiff to Oriental Bank of Commerce. Mark F is letter dated 10.08.1987 of the defendant no. 1 to the Oriental Bank of Commerce. Ex. PW1/43 to Ex. PW1/57 are photographs which have been objected to by the defendants for mode of proof for want of negatives.
89. Ex. PW1/D1 is a letter dated 05.02.1985 of plaintiff to the defendant no. 1. Ex. PW1/D2 to Ex. PW1/D5 are the sale deeds of the remaining four properties. Ex. PW1/D6 to Ex. PW1/D12 are the various agreements to sell.
90. Ex. DW1/4 is a letter dated 29.10.1984 of the defendant no. 1 to the plaintiff. Ex. DW1/5 is again a copy of the same letter dated 29.10.1984 of the defendant no. 1 to the plaintiff and Ex. DW1/6 is the AD Card. Ex. DW1/7 is an AD Card. Ex. DW1/8&9 are letters dated CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 47 of 74 48 06.11.1984 of the plaintiff to the defendant no. 1. Ex. DW2/1 is an agreement to sell between the defendants. Ex. DW2/2 and Ex. DW2/3 are the sale deeds in favour of the Defendant no. 2.
91. An interesting fact which emerges from the correspondence between the parties is that the parties tried to pass the buck and in most of the letters either did not acknowledge the letters of the other party or even when acknowledged scuttled the point raised by the other party. In Ex. PW1/D1 which is a letter dated 05.02.1985 of plaintiff to the defendant no. 1, the plaintiff has tried to enlarge the scope of the agreement Ex. P1 by incorporating various conditions which were not in the original agreement. It's clause 2(d) (iv) also puts a question mark on the factum of physical possession of the plaintiff visàvis the suit property.
92. Ex. PW1/2 is a letter dated 22.02.2985 of plaintiff to the defendant no. 1 in which he seeks a declaration from the defendant no. 1 for the purposes of mutation. In letter Ex. PW1/4 which is dated 26.02.2985 the plaintiff seeks from the defendant no. 1 for obtaining IT Clearance and other obligations. Ex. PW1/7 is another letter dated 11.03.2985 of plaintiff to the defendant no. 1 in which the matter as previously stated is reiterated with a further request to demarcate and fencing the suit property. Ex. PW1/10 is a letter dated 20. 05.1985 of CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 48 of 74 49 the plaintiff to the defendant no. 1 in which amongst others the demand for poles and fencing is reiterated. Mark 'C' is the letter dated 13.06.1985 of plaintiff to the defendant no. 1reiterating the contents of Ex. PW1/10. Ex. PW1/13 is a letter dated 16.08.1985 of plaintiff to the defendant no. 1 as a reminder to carry out its obligations. Mark 'D' is a letter dated 18.10.1985 of plaintiff to the defendant no. 1 drawing attention to the previous letters and seeking compliance and also enclosing a copy of the Public Notice Ex. PW1/33. Mark E is a letter dated 25.10.1985 of plaintiff to the defendant no. 1 in the nature of a reminder. Ex. PW1/19 is a letter dated 29.12.1986 of plaintiff to the defendant no. 1 drawing the attention of the defendant to the previous letters and requesting compliance. Ex. PW1/22 is the contents of a telegram sent by the plaintiff to the defendant no. 1 seeking compliance of agreement. Ex. PW1/23 is a letter dated 02.06.1987 of the plaintiff to the defendant no. 1 reiterating the contents of the telegram. Similarly the various letters as mentioned above have been sent by the defendant no. 1 to the plaintiff to execute a formal agreement to sale.
93. These series of correspondence exchanged between the parties goes to show that the parties had taken a position against each other. They made reciprocal demands upon the other party but none of the parties abandoned their respective positions and stalemate continued. CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 49 of 74 50
94. DW1 stated in his cross examination that the receipt Ex. P1 was cancelled by its letter dated 09.03.1985. He denied the suggestion to the contrary.
95. Now the interesting documents are Ex. PW1/30 and Ex. PW1/34 as these documents made the situation became fluid again. Ex. PW1/30 is nomenclatured as a 'Receipt' and is executed bearing date as 31.07.1987. DW1 has admitted in the cross examination that there are in his handwriting and signed by him at points A, B and C. The witness DW1 admitted the suggestion that the defendant no. 1 never informed the plaintiff of there being any difficulty in execution of sale deed in pursuance of Ex. P1 and he volunteered to state that the defendant no. 1 had cancelled the receipt Ex. P1 and there was no deal left between the parties.
96. Cross examination of the DW1 on the aspect of documents Ex. PW1/30 and Ex. PW1/34 show the seesaw variations and it is like blowing hot and cold. The execution of documents is denied at the time of admission denial by the defendant no. 1. The position is reversed in the cross examination. DW1 in his cross examination attempted to come out of the documents Ex. PW1/30 and Ex. PW1/34 by taking contradictory stands, though the admitted the documents and having been executed in his own hands. He even talked contrary to CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 50 of 74 51 records when he responded to the question in cross examination that Ex. PW1/30 and Ex. PW1/34 pertain to the suit land and the transaction in question and tried to recluse himself by stating that he had told the plaintiff that he had already sold the land in question to the defendant no. 2. This stand is belied by the documents Ex. PW1/30 where it is not so stated. Had that been so, where was the occasion for the defendant no. 1 to execute Ex. PW1/30 and to get a payment of Rs. 15,000/. Further, the witness DW1 has admitted that the Khasara nos. 692, 693 and 694 are mentioned in Ex. PW1/30. These Khasra nos. are same as Khasara no. 692 (101), 693 (46), 694 (4.6) as stated in Ex. P1. DW1 has also admitted having offered alternative land to the plaintiff vide Ex. PW1/30. In his cross examination the witness DW1 is totally cornered as far as Ex. PW1/30 is concerned and all his attempts to come out of same only exhibited his false stand with more prominence and amplitude. It the land mentioned in Ex. PW1/30 had already been sold to the defendant no. 1, there was no question of execution of the said document as one cannot have the cake and eat it too.
97. Ex. PW1/35 is a letter dated 25.09.1987 of plaintiff to the defendant no. 1 making requests to comply with the terms of agreement. In his cross examination, PW1 was suggested that he had CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 51 of 74 52 no funds to make the entire payment, which has been denied. PW1 stated that he did not remember whether any acknowledgement in writing of handing over the possession of the suit property was entered into.
98. Evidence has to be weighed and not counted. When both the parties have led the evidence the question of onus fades into oblivion and the entire evidence has been appreciated as a whole. While appreciating the evidence, it is the duty of the Court to sift the grain from the chaff. The court has to appreciate the evidence in its total gist and not to pick one some scattered sentences, else one may miss the wood for the trees. The final picture has to emerge on the basis of the entire chain of evidence, and testing the same on the altar of preponderance of probabilities.
99. Considering the pleadings of the parties and the evidence of PW1 and DW1 on this touchstone the scheme of facts which emerges is that the execution of agreement Ex. P1 and the acceptance of earnest money of Rs. 10,000/ is admitted. Then there followed a series of correspondence between the parties wherein they tried to outwit each other by calling upon the adversary to make certain compliances. However, a new situation emerged and a receipt dated 31.07.1987 (Ex. P30) was executed by the defendant no. 1 wherein the CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 52 of 74 53 previous agreement Ex. P1 was not only acknowledged but further payment of Rs. 15,000/ had been accepted in its continuation.
100. Thus the final picture which emerges is on the rival pleadings and gist of evidence Ex. P1 is duly established on record and so also Ex. PW1/30. Both these documents, irrespective of their nomenclature, are akin to an agreement to sale and purchase as they all have the essential ingredients. It is not established in evidence that Ex. P1 has been terminated at any stage. On the contrary Ex. PW1/30 and acceptance of Rs. 15,000/ in its continuation speaks of the subsistence and continuance of Ex. P1. The suit of the plaintiff is thus very much maintainable.
101. In view of the above discussion, the finding on the issue nos. 3 and 4 are returned against the defendant no. 1.
Issue no. 5. Whether the defendant no. 2 is a bonafide purchaser for valuable consideration in pursuance of the instrument dated 28.05.1986 and had no notice of the agreement dated 11.08.84 and if so what is the effect?
& Issue no. 7. Whether the plaintiff in suit no. 1241/88 is entitled to relief of possession?
102. Before adverting to the issues framed in this case, it is necessary to deal with one objection of the plaintiff regarding the evidentiary val CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 53 of 74 54 ue of attorney. The main plank of arguments of the Ld. Counsel for the plaintiff is that the attorney cannot give evidence in place of principal.
103. Giving evidence is a sacrosanct duty--a function which cannot be delegated, else it would attract the objection of hearsay. This posi tion of law has been crystallized in section 60 of the Evidence Act, 1872 as under: "60. Oral evidence must be direct --Oral evidence must, in all cases whatever, be direct; that is to say
--
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds :
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the au thor is dead or cannot be found, or has become in capable of giving evidence, or cannot be called as a CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr.CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 54 of 74 55
witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, re quire the production of such material thing for its inspection."
104. In the leading case of Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha (2010) 10 SCC 512 it has been held as under:
12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowl edge of the transaction can only give formal evi dence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or han dled any transactions, in pursuance of the power of attorney granted by the principal, he may be exam ined as a witness to prove those acts or transactions.
If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evi dence in place of his principal for the acts done by the principal or transactions or dealings of the prin cipal, of which principal alone has personal knowl edge.
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(d) Where the principal at no point of time had per sonally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attor ney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney hold er. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this re quirement. Where all the affairs of a party are com CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 56 of 74 57
pletely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such at torney holders are a husband/wife exclusively man aging the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and in firm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
105. In Om Parkash vs. Inder Kaur 156 (2009) DLT 292 (DB) it has been held that any person is a good witness if he deposes about facts where are in his personal knowledge, whether he is father or at torney or a son or a neighbour; what law requires is that deposition must be of facts within knowledge of witness to which witness has privity. Other relevant cases on the above aspect are Capt. Praveen Davar (Retd) vs. Harvansh Kumari 2010 (119) DRJ 560; Satnam Channan vs. Darshan Singh 2006 (2) RCR (Civil) 615 (P&H) and Vinay Jude Dias vs. Renajeet Kaur AIR 2009 Delhi 70.
106. The ratio of law as propounded in the above judgments is that the sine qua non for a person to give evidence is that he must have had the occasion to witness certain facts. If he has so witnessed and deposes about such facts, his evidence is not hit by the fact whether he is an Attorney or not.
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107. In this view of the law, the question whether the evidence of DW2 is hit by the doctrine of 'hearsay' or not has to be tested on the altar of his being privy to the facts or not. This is essentially a question of fact.
108. It is not required for any party to compulsorily enter into the witness box to prove its case. It is not a ritual which must be performed as a sine qua non. A case may have a cluster of facts, as cause of action is a bundle of facts, which are required to be established. Entering into the witness box to depose orally is not the only mode of proving the facts; it is only one of the modes. The facts in issue or relevant facts may be proved by one or more of the following modes:
(i). oral admissions (express or deemed) of the adversary either in pleadings or in cross examination; or
(ii). admissions of documents relevant to the controversy;
(iii). by statutory presumptions; or
(iv). by bringing person(s) into the witness box who are privy to any transaction or part of transaction; or
(v). by party itself entering into the witness box; or
(vi). by adverse inference on account of any party not producing a document or fact in its power and possession; or
(vii). in any other mode or by any other means recognized by CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 58 of 74 59
the law.
109. Thus is not always incumbent upon a party to enter the witness box, if the facts can be proved by other evidences, and in such an eventuality nonappearance of a party into the witness box cannot be taken as a circumstance against it. However, if certain facts are within the personal and especial knowledge of a party, and if it shies away from entering into the witness box, it can be taken as a circumstance against it.
110. The outcome or result of a case is an aggregation of the entire facts tendered in evidence coupled with their test on the touchstone of law. Hon'ble High Court of Delhi in Kerala Agro Industries Corporation Limited vs. Beta Engineers 188 (2012) DLT 373 has held that "...a civil case is decided on balance of probabilities. A civil court puts all the evidence which have been led in a melting pot so as to determine the final picture which has to emerge...".
111. Thus in scientific parlance, the judgment rendering process consists of what different points a party is required to prove to get a verdict in its favour; what evidence on each point in issue has been led by the adversary parties; what weight is to be attached to such evidence and which version is more probable and finally taking a collective assessment what generates the final outcome. I am stating all this to CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 59 of 74 60 make discernible, the method which has to be adopted in the odyssey in reaching the final judgment.
112. Now I propose to deal with the issues under consideration.
113. The defendant no. 2 has to establish that the transaction of the sale and purchase of the suit property entered into between her and the defendant no. 1 is without notice of any transaction on which the plaintiff has founded his cause of action. The defendant no. 2 has to establish that she has exercised due diligence and has acted in a bonafide manner and that with such degree of care and circumspection it could not have the knowledge of the agreement to sale between the plaintiff and the defendant no. 1.
114. The witness DW2 is the only witness pressed into service by the defendant no. 2. The defendant no. 2 was a minor at the time when the transaction in question of purchase of suit property between the defendants was conducted and her father, Shri M. K. Jajodia, acted as her next friend/guardian to do the things on her behalf. The witness DW2 has tendered on record his power of attorney as Ex. DW2/P1.
115. DW2 stated in his cross examination that he has not represented the defendant no. 2 anywhere except the instant case. The witness denied having any knowledge of the bank accounts, income tax assessment etc. He even denied having any knowledge about the CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 60 of 74 61 Poddar Family and Jajodia Family living in the vicinity. He could not answer various questions about the facts and circumstances regarding the agreement to sell and sale deeds of the suit property or regarding the payments made.
116. The witness DW2 stated that the defendant no. 2 did not make any attempt to find out as to who was the owner of the surrounding properties and reasoned that the defendant no. 2 was only interested in her (the suit property) property.
117. DW2 stated that he was not associated with the drafting of greement to sell or sale deeds. He stated that Ex. DW2/2 and Ex. DW2/3 have not been signed by the defendant no. 2 or her father.
118. In his cross examination DW2 has stated that his affidavit in evidence was prepared on the instructions of Shri M. K. Jajodia. This sole fact by itself puts a question mark on the testimony of DW2.
119. In the course of cross examination DW2 has admitted the fencing of the suit property as well as the superstructure belonging to the plaintiff.
120. It emerges from the reading of the testimony of DW1 is that he is only a witness for name sake, whereas he had no opportunity to see or witness the transaction that had taken place between the defendant no. 1 and 2 regarding the sale of suit property. He is not privy to any CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 61 of 74 62 fact in issue or relevant fact. His constant refrain to various questions put to him in the cross examination is 'I do not know'. Of course, the witness is speaking the truth as the entire set of facts and circumstances point out that he has not been involved in the transaction in question.
121. The pleadings are foundation of the case of a party. The evidence establishes the same. A trial is a search for the truth and the right to cross examination of a witness is an essential part of the same. Giving evidence is no empty formality. Right of cross examination is also equally vital as it is an opportunity to the adversary to test the rival facts as to their veracity.
122. There is no other evidence (either by way of admissions of adversary or adverse inferences or presumptions) on record to establish the case of the defendant no. 2. The witness of defendant no. 1, i.e. DW1, has been impugned in his cross examination about the transaction between the defendants visàvis the suit property. Merely the title deeds of the suit property registered with a statutory authority does not confer upon them a veil of sanctity or a presumption of genuineness as to the transaction.
123. It is virtually a case of no evidence on the part of the defendant no. 2. No assistance has been rendered by the testimony of the defendant no. 1, who is also one of the parties to the transaction, to the CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 62 of 74 63 defendant no. 2 regarding the transaction which the defendant no. 2 wants to establish.
124. Though the witness DW2 may not be helpful to the defendant no. 2 in propagation of its case, it cannot escape from the consequences if her witness has admitted any fact which goes contrary to her interest. Once a party has elected to tender a particular witness or document in evidence, it cannot recluse from the consequences which may follow from the answers given by the said witness in his cross examination. This is for the reason that the adversary has no choice as to the selection of witness by the opposite party, but once a witness has been tendered the said opposite party bound by its own witness.
125. The witness DW2 failed to establish the bonafides of the transaction the sale and purchase of the suit property between the defendants. He also failed to prove that the transaction entered into between defendant no. 2 and the defendant no. 1 is without notice of any transaction between the plaintiff and the defendant no. 1. It is established on record that the defendant no. 2 resides in the vicinity of the suit property, and thus it can be inferred that they could have the notice of transaction between the plaintiff and defendant no. 1. The defendant no. 2 also failed to prove that it she had exercised due diligence and had acted in a bonafide manner with due care and CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 63 of 74 64 caution befitting an ordinary prudent man and that there was no way it could not have the knowledge of the agreement to sale between the plaintiff and the defendant no. 1. The defendant no. 2 also failed to prove that she had been delivered the possession of the suit property at any point of time.
126. On the face of it, the transaction between the defendants does not inspire confidence. The suit property at a consideration of Rs. 2,30,000/ on 12.04.1985 has gone for less than half the consideration fixed @ Rs. 4,70,000/ vide agreement Ex. P1 dated 11.08.2004. No circumstances have been propounded to bring home that there was drastic fall in prices or sale was under some distress or any other equivalent reason.
127. The transaction between the defendants per se appears to be collusive in nature. Interestingly, the defendant no. 1 has stated in its written statement about reserving the right to seek possession of the suit property. This is strange as once the defendant no. 1 had sold the suit property to the defendant no. 2 where the right is left with it to seek repossession. Ostensibly, this averments has creped in the pleadings out of the subconscious mind of the defendant no. 1, and is reflective of the fact that the transaction as propounded is a camouflage. This is further corroborated by the execution of agreement CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 64 of 74 65 Ex. PW1/30 by the defendant no. 1 and acceptance of Rs. 15,000/ under it and in continuance of the agreement Ex. P1. Among the host of other infirmities the defendants have failed to establish the transfer of possession of the suit property from defendant no. 1 to the defendant no. 2.
128. A collective appreciation of the evidence on record goes to establish that the transaction of sale as recorded in Ex. DW2/1; Ex. DW2/2 and Ex. DW2/3 is sham and a camouflage.
129. The findings on the issue nos. 5 and 7 are thus returned against the defendant no. 2.
Issue no. 1. Whether the plaintiff is entitled to the relief of specific performance on the facts and circumstances of the case?
& Issue no. 6. Whether the plaintiff is entitled to a decree of cancellation cancelling the instrument dated 28.05.1986 in favour of defendant no.2?
130. Before, I discuss the established facts and circumstances of the case to determine these issues, it would be necessary to discuss the relevant statutory law on this aspect.
131. Section 16 of the Specific Relief Act reads as under: "16. Personal bars to relief--Specific performance of a contract cannot be enforced in favour of a per son --
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(a) who would not be entitled to recover compen sation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be estab lished by the contract; or
(c) who fails to aver and prove that he has per formed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.
Explanation. -- For the purposes of clause (c), --
(i) where a contract involves the payment of mon ey, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
132. The relief of specific performance is not a matter of right, it is a discretionary relief. Section 20 of the Specific Relief Act has prescribed as under: "20. Discretion as to decreeing specific perfor mance--(1) The jurisdiction to decree specific per formance is discretionary, and the court is not CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 66 of 74 67
bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may property exercise discretion not to decree specific performance: --
(a) where the terms of the contract or the conduct of the parties at the time of entering into the con tract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to en force specific performance.
Explanation 1. -- Mere inadequacy of considera tion, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2. -- The question whether the per formance of a contract would involve hardship on the defendant within the meaning of clause (b) CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 67 of 74 68
shall, except in cases where the hardship has re sulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. ( 3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered loss es in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
133. In the present case the plaintiff, though averred, has not proved its readiness and willingness to perform its part of obligation under the agreement Ex.P1 or Ex PW1/30. Thus it was incumbent upon the plaintiff to prove that it has the requisite finances at the contemporary time, when the contract was to be executed, to meet the financial obli gation in further of his obligation under the contract. The plaintiff has not proved its financial capacity to show that at the relevant time it had the funds ready with it or having such arrangement made to discharge his financial capacity.
134. Readiness and willingness is not merely an empty phrase, with out any life or soul. These words must be backed by financial capacity. The evidence on this aspect has to come from the plaintiff himself as CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 68 of 74 69 the facts as to its finances are within his especial knowledge of the plaintiff and under section 106 of the Evidence Act, 1872 the yoke to burden to prove lies heavily on his shoulders. The fact of the matter is this evidence is conspicuous by absence. The mere fact that the plain tiff has been able to complete the other transactions between the par ties does not raise a presumption that the plaintiff had the financial ca pacity to meet the obligation under the agreement Ex. P1 or Ex. PW1/30. There ought to be positive evidence to this effect.
135. Under these facts and circumstances, and taking cue from the provision of section 16 and 20 of the Specific Relief Act, 1872 it would be appropriate to consider the relief within the meaning of sec tion 21 and 22 of the Specific Relief Act, which read as under: "21. Power to award compensation in certain cas es. -- (1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitu tion of, such performance.
(2) If, in any such suit, the court decides that spe cific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation ac cordingly.
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(3) If, in any such suit, the court decides that spe cific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.
(4) In determining the amount of any compensa tion awarded under this section, the court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872.
(5) No compensation shall be awarded under this section unless the plaintiff has claimed such com pensation in his plaint:
Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation. -- The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the ju risdiction conferred by this section.
22. Power to grant relief for possession, partition, refund of earnest money, etc-- (1) Notwithstand ing anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for --
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(a) possession, or partition and separate posses sion, of the property, in addition to such perfor mance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or de posit paid or made by him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub section (1) shall be granted by the court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief under clause (b) of subsection (1) shall be without preju dice to its powers to award compensation under Section 21."
136. Besides not proving the readiness and willingness backed by financial muscle, the conduct of the plaintiff is also not without his share of blame. His uncooperative conduct in signing a formal agreement to facilitate obtaining ITCC may be a pointer to the fact that he was gaining time to muster the funds. His getting the possession of the suit property is also shrouded in mystery and his correspondence does not support the factum of his getting the physical possession of the suit property in terms of agreement to sell. On the face of it the CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 71 of 74 72 physical possession of the suit property has not been handed over to him under the agreement Ex. P1. However, taking a collective assessment of the conduct of the parties, it can be said that he is more sinned against than sinning. Thus in the totality of facts and circumstances, he is not entitled a decree of specific performance, but compensation in lieu thereof.
137. Thus in view of the above discussion the issue no. 1 is answered in the above terms.
138. As the transaction between the defendants is an outcome of collusion and fraud with a view to defeat the claim of the plaintiff, the documents of transaction are liable to be cancelled. The issue no. 6 is answered accordingly.
RELIEF
139. In view of my findings on the above issues and it being the duty of the Court to balance the rights and obligations of the parties, in my view the cognizance has to be taken of various general and particular factors. The general factors are escalation in the prices of properties; inflation, interest factor and such other attendant factors. The particular factors are the opportunity cost (had the plaintiff invested his funds elsewhere in equivalent investment), time spent in litigation which is more than two decades, the relative conduct of the parties etc. The CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 72 of 74 73 scales have to be evenly balanced so that no body derives undue advantage over the other and no one is deprived of his rightful due. The economies have to be fairly matched.
140. In my considered opinion, in view of the facts and circumstances of the case the interest of justice would be served by decreeing the suit of the plaintiff as under:
(i). The defendant no. 1 shall pay an amount equivalent to the 20% (twenty percent) of the actual current market value of the suit property bearing Khasra nos. 694 (46); no. 693 (46); and no. 692 (101) of total area 2.01 acres, and village Kapashera, New Delhi, to the plaintiff within a period of six months from today and while receiving the said amount the plaintiff shall simultaneously hand over the vacant and peaceful physical possession of the suit property to the defendant no. 1.
(ii). The defendant no. 1 is directed to refund the sale consideration of Rs. 2,30,000/ to the defendant no. 2 with simple interest @ 15% per annum which interest shall be calculated from the date of the receipt of the said sum till the date of actual and final payment.
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(iii). The SubRegistrar concerned shall cancel the Sale Deeds Ex. DW2/2 and Ex. DW2/3 forthwith and the necessary entry be made in the relevant Revenue Records also.
(iv). The suit for possession and injunction of defendant no. 2 is dismissed.
(v). The parties shall bear their own costs.
141. Decree sheet be drawn accordingly.
142. A copy of this judgment duly signed be placed in the files of both the suits. A copy of decree be also placed in both the files.
143. After necessary compliance, the file be consigned to the Record Room.
Announced in the Open Court On this 8th day of November 2012 (MAN MOHAN SHARMA) ADJ (Central)1, Delhi CS 176/2011 Ravinder Nath Sahni vs. Poddar Constructions & Anr. CS 182/2011 Sabina Jajodia vs. Ravinder Nath Sahni Page 74 of 74