Delhi District Court
Smt. Usha Devi vs Sh. Dalip Kumar on 9 May, 2023
Suit No. 16496/16 Page 1 of 27
IN THE COURT OF SH. DIVYANG THAKUR, LD. ADJ03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suit No: 16496/16
CNR No. : DLSW01-002537-2015
Smt. Usha Devi
W/o Late Sh. Ramesh Chand
R/o RZ-48, Near Rama Public School,
Gali no.4, Nanak Paon,
Gopal Nagar, Najafgarh,
New Delhi .....Plaintiff
Versus
1. Sh. Dalip Kumar
S/o Sh. Jyoti Prakash
2. Sh. Jyoti Prakash
S/o Late Sh. Fakeer Chand
3. Sh. Dinesh
S/o Sh. Jyoti Prakash
All at Property No.WZ-239A,
Gali no.7, Sadh Nagar,
Palam Colony, New Delhi
All also at:
670, Village Dundahera,
Distt. Gurgaon, Haryana .....Defendants
Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 2 of 27
SUIT FOR RECOVERY OF RS. 19,00,000/ ALONGWITH
PENDENTE LITE AND FUTURE INTEREST
DATE OF INSTITUTION : 08.07.2015
DATE OF FINAL ARGUMENTS : 28.04.2023
DATE OF DECISION : 09.05.2023
JUDGMENT
1. The plaintiffs have filed the present suit seeking recovery of Rs. 19,00,000/- alongwith pendente lite and future interest @ 18% per annum and consequential relief of permanent injunction.
PLAINT
2. The brief fact as mentioned in the plaint are as under:
(i) The plaintiff alongwith her husband purchased a piece of land/plot measuring 22 sq. yds. forming part of property no.WZ-
239A in Gali no.7, Sadh Nagar, Palam Colony, New Delhi which was purchased by them from defendant no.2 in the year 2008 by virtue of a registered sale deed. The husband of plaintiff expired on 18.05.2011 thereby leaving plaintiff and one daughter, who acquired the said plot. Defendant no.2 is the Jeth (brother in law) of the plaintiff and defendant no.1 and 3 are the sons of defendant no.2.
Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 3 of 27
(ii) In the month of July, 2013, defendant no.1 approached the plaintiff and intended to purchase the abovesaid the abovesaid plot from the plaintiff. The plaintiff agreed to said the said plot for a total sale consideration of Rs.30,00,000/- and accordingly, agreement to sell dated 02.08.2013 was entered into between defendant no.1 and plaintiff. The defendant no.1 paid a sum of Rs.1,00,000/- as earnest money out of the total sale consideration and the rest of the amount was agreed to be paid to the plaintiff at the time of execution and registration of the sale deed which was to be executed within the period of 3 months from the date of agreement.
(iii) Thereafter, as per the request of defendant no.1, the daughter of plaintiff also relinquished her share in respect of the said plot in favour of the plaintiff vide relinquishment deed dated 20.11.2013 and as such, the plaintiff became the sole and absolute owner of the said plot and she was competent to sell and transfer the said plot to defendant no.1. The defendants asked the plaintiff to execute and register the sale deed qua the said plot in favour of defendant no.2 and assured the plaintiff that the balance sale consideration of Rs.29,00,000/- would be paid by them as soon as the defendants receive the amount from the builder who Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 4 of 27will raise construction over the said plot. The plaintiff agreed to execute the sale deed in favour of defendant no.2 without receipt of the balance sale consideration of Rs.29,00,000/- and accordingly, the plaintiff executed and got registered the sale deed dated 19.12.2013 qua the said plot. Since the defendants had not paid the balance sale consideration of Rs.29,00,000/- to the plaintiff at the time of execution of the sale deed, the plaintiff had not handed over the possession of the said plot to the defendants as it was agreed that plaintiff would hand over the possession of the plot as soon as the defendants make the entire balance payment to the plaintiff.
(iv) Before registration and execution of sale deed in favour of defendant no.2, the defendant no.3 issued two cheques bearing no.800870 for Rs.3,00,000/- and cheque no.800781 for Rs.4,00,000/- both drawn on SBI Bank. However, the defendants asked the plaintiff to present the same for encashment as soon as the defendants asked to do so to the plaintiff as the defendants at that time had shown their inability to arrange the funds for encashment of the said cheques. However, the defendants despite passing of 2 months did not arrange the funds for encashment of the said cheques and the defendants kept on seeking time from Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 5 of 27the plaintiff for presentation of the same for encashment. Due the this reason, the validity period of the said cheques expired and the said fact was informed to the defendants. However, the Defendant assured the plaintiff that she need not to worry and that they will shortly make the entire balance payment to the plaintiff.
(v) The Defendants only paid a sum of Rs.10,00,000/- by way of RGTS in the month of April, 2014 and June, 2014 i.e. Rs.5,00,000/ on each occasion and the Defendants assured the plaintiff to clear the rest of the Rs.19,00,000/- to the plaintiff shortly and at that time, the plaintiff handed over the possession of the said plot to the Defendants. However, despite passing of considerable period, the Defendants failed to make the balance payment of Rs.19,00,000/- to the plaintiff. In the second week of April, 2015 the Defendants refused to make the said payment to the plaintiff and till date is withholding the sum of Rs.19,00,000/- of the plaintiff without any rhyme and reason.
(vi) In order to play fraud upon the Plaintiff and to confuse the issue, the Defendant no.2 in collusion with his sister got filed a civil suit against him which is pending before the court of Ld. ASCJ, Dwarka, New Delhi. As soon as the plaintiff came to Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 6 of 27know about the said suit, the plaintiff has moved an application u/o I R 10 CPC for her impleadment in the said suit as a party.
(vii) Since the defendants were not coming forward to pay the balance sale consideration of Rs.19,00,000/- to the plaintiff, the plaintiff was left with no other option but to issue a legal notice dated 21.04.2015 calling upon the defendant to make the balance payment within a period of 15 days from the receipt of the notice which was duly served upon the defendants but despite service, the defendants failed to comply with the said notice. Hence the plaintiff was left with no option but to file the present suit. WRITTEN STATEMENT, REPLICATION, ADMISSION- DENIAL OF DOCUMENTS AND FRAMING OF ISSUES
3. Summons for settlement of issues were issued upon the defendants on 13.07.2015 which were duly served on 27.08.2015. Thereafter on 04.12.2015, Written Statement was filed on behalf of defendant no.1 and defendant no.2 and 3 separately.
4. In the Written Statement, the defendant no.1 has averred that the suit of the plaintiff is misconceived and instituted with malafide intention and that the suit is liable to be dismissed u/o VII R 11 CPC as the suit has been filed without any cause of Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 7 of 27action. He has also averred that the suit is barred u/o I R 10 CPC for not impleading proper and necessary parties to the suit. He has also averred that the suit of the plaintiff deserves outright dismissal as she has made false submissions before this court. He has further averred that the plaintiff had entered into an agreement to sell with defendant no.1 of the suit property which was purchased by late husband of plaintiff from defendant no.2 in the year 2008 by virtue of a registered sale deed. Before the death of husband of plaintiff Sh. Ramesh Chander, brother of defendant no.2, he had sold the half portion of the property i.e. 11 sq. yds to his real sister namely Smt. Geeta Devi in the year 2011. On 18.05.2011, Sh. Ramesh Chander expired leaving behind plaintiff and one daughter namely Krishna. He has further averred that the plaintiff has projected herself as the absolute owner of the entire suit property and the defendant had no occasion to disbelieve the plaintiff and accordingly, he entered into an agreement to sell with the plaintiff for the total property i.e. 22 sq. yds. forming part of Property no.WZ-239A, Gali no.7, Sadh Nagar, Palam Colony, New Delhi for a total sale consideration of Rs.30,00,000/- and out of the said sale consideration, an advance of Rs.1,00,000/- was paid to her but Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 8 of 27due to certain circumstances, the defendant could not make payment and it was agreed between the parties that now the defendant no.2 would purchase the property and the amount of Rs.1,00,000/- being adjusted in that transaction, being family matter. Thereafter, the defendants made a total payment of Rs.10,00,000/- through RTGS and Rs.4,00,000/- in cash on 23.05.2014 to the plaintiff till date. In between, Smt. Geeta Devi filed a suit for permanent injunction against defendant no.2 and in her plaint she disclosed that she has purchased 11 sq. yds. out of 22 sq. yds forming part of property no.WZ-239A in Gali no.7, Sadh Nagar, Palam Colony, New Delhi from the husband of plaintiff. Thereafter, a family meeting was called and it was agreed that the matter should be settled with Geeta Devi and the plaintiff would not claim any further amount from the defendants. Thereafter, the matter was settled with Geeta Devi and payment was also made to her. He has also averred that the plaintiff has played fraud and cheated the defendants by projecting herself the owner of the entire property i.e. 22 sq. yds. forming part of property no.WZ-239 A Gali no.7, Sadh Nagar, Palam Colony, New Delhi. He has also averred that the plaintiff has no right, title and interest left in the property and she has Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 9 of 27already received a total sum of Rs.15,00,000/- qua her share i.e. 11 sq. yds. out of 22 sq. yds. forming part of the suit property.
5. In the Written Statement filed by defendant no.2 and 3, they have also averred on the same lines as defendant no.1 and the same are not reproduced herein for the sake of brevity.
6. On 19.01.2016, after completion of pleadings, following issues were framed :
(I) Whether the plaintiff is entitled to
a money decree in the sum of Rs.19 lakhs?
OPP.
(II) Whether plaintiff is entitled to any
pendente lite or future interest and at what rate and for what period? OPP.
(III) Whether plaintiff is entitled to a
decree of permanent injunction? OPP.
(IV) Relief.
7. On the same date, an application u/o VIII R 1 r/w Section 151 CPC was filed by the plaintiff for striking out the Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 10 of 27defence of the defendant was filed which was dismissed vide order dated 13.05.2016 being not maintainable. An application u/o I R 10 CPC was already filed by Smt. Geeta Devi which was allowed vide order dated 13.05.2016 and plaintiff was directed to amend the plaint. Thereafter, on 22.07.2016 the matter was sent to Mediation Centre for exploring the possibility of settlement between the parties which was received back as 'not settled' on 04.11.2016. Amended memo of parties was filed on the same date. On 19.12.2016, vide order dated 03.10.2016, Hon'ble High Court was pleased to set aside the order dated 13.05.2016 for impleadment of Smt. Geeta Devi as party to the present suit and the matter was adjourned for arguments on the application u/o XXXVIII R 5 CPC. On 02.03.2017, the application u/o XXXVIII R 5 CPC filed on behalf of the plaintiff was dismissed with cost of Rs.2,000/-. Thereafter, the matter was fixed for plaintiff's evidence.
EVIDENCE LED BY THE PARTIES
8. On 23.08.2018, PW Smt. Usha Devi was examined as PW-1. She tendered her examination-in-chief by way of affidavit Ex. PW-1/A. She relied upon the following documents :
Smt. Usha Devi vs Sh. Dalip Kumar & Ors.Suit No. 16496/16 Page 11 of 27
(I) Photocopy of Sale Deed dated 03.09.2008 as Ex.PW-1/1 (OSR);
(II) Photocopy of Agreement to Sell dated 02.08.2013 as Ex.PW-1/2 (OSR);
(III) Photocopy of Relinquishment Deed dated 20.11.2013 be read as Mark 'X' (mentioned as Ex.PW-1/3 in my affidavit);
(IV) Photocopy of two cheques is collectively Mark 'A';
(V) Photocopy of Sale Deed dated 19.12.2013 as Ex.PW-1/4 (certified copy of the same is seen and returned);
(VI) Copy of passbook showing relevant entries as Ex.PW-1/5 (OSR);
(VII) Legal notice dated 21.04.2015 as Ex.PW-1/6;
(VIII)Postal receipts are collectively Ex.PW-1/7; and (IX) Delivery reports as Ex.PW-1/8.
9. In her cross examination, she has deposed that she had received the property in the year 2013 in the joint name of herself and her husband. She further deposed that they had not purchased the property rather it was taken from Jyoti Prakash, defendant no.2. She had admitted that she had not taken No Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 12 of 27Objection from her daughter prior to entering into Agreement to Sell Ex.PW-1/2. She has denied that her late husband had ever executed any document in favour of her sister in law. She has further deposed that she was not aware of the fact whether she had executed a sale deed of consideration amount of Rs.7,20,000/- in favour of defendant no.2 Jyoti Prakash. She further deposed that the said sale deed was got prepared by defendant no.2 himself and she did not know the contents of the same. She has further admitted that she had received the amount of Rs.10,00,000/- from defendant no.2.
10. On 22.08.2019, Sh. Mandeep Kumar was examined as PW-2. He is a lecturer in the school where the plaintiff works as a 'Mali'. He has deposed that the plaintiff had come to him in August 2013 to show an agreement to sell Ex.PW-1/2 executd between her and her nephew Sh. Dalip Kumar. He further deposed that after going through the same, he told the plaintiff that the amount mentioned in the agreement Ex.PW-1/2 is Rs.30,00,000/-. He further deposed that he was made witness to the agreement and plaintiff had signed the same in his presence and in the presence of defendant no.1on 14.08.2013. He further Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 13 of 27deposed that he was told by both the plaintiff and defendant no.1 that Rs.1,00,000/- had been given and taken.
11. In his cross examination, he has deposed that he was unable to identify the signatures appending at point B on Ex.PW- 1/2.
12. On 04.03.2020, Ms. Hema Dalal, Judicial Assistant, Record Room (Civil), Dwarka Courts, Delhi was examined as PW-3. She had brought the original judicial file bearing Civil Suit no.88/2014 titled 'Geeta Devi vs Jyoti Parkash & Anr.' which was decided on 07.01.2017. The photocopies of the plaint, Written Statement, Replication and order sheets etc. are Ex.PW- 3/A.
13. Thereafter, no other plaintiff witness was left to be examined. Hence, vide separate statement of plaintiff, PE was closed and the matter was listed for DE.
14. On 17.10.2022, Sh. Dalip Kumar was examined as DW-1. He tendered his affidavit of evidence as Ex.DW-1/A. In Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 14 of 27his cross examination, he had admitted that he entered into an agreement to sale with plaintiff on 02.08.2013 with regard to purchase of 22 sq. yards land for a sale consideration of Rs. 30,00,000/-. He has further admitted that the sale deed was registered for a total land of 22 sq. yards and the same was misleading because 11 sq. yards have already been sold to plaintiff's daughter Ms. Krishna without his knowledge. He has further admitted that he had not paid Rs. 29,00,000/- to the plaintiff because the said land has not been handed over to him and registry was done in favour of Sh. Jyoti Prakash. He further deposed that he was not able to take loan and agreement was null and void and that he had not asked the plaintiff to return his token amount of Rs. 1,00,000/- given at the time of agreement. He further denied having any knowledge regarding payment of Rs. 4,00,000/- made to the plaintiff. He further deposed that the said amount of Rs. 4,00,000/- was paid by Sh. Jyoti Prakash and he did not have any receipt of receiving Rs. 4,00,000/- by plaintiff. He further denied having received the legal notice dated 21.04.2015 Ex. PW-1/6 as the address mentioned in the legal notice was not his address. However, he admitted that address mentioned in agreement to sale and purchase Ex. PW-1/2 is the Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 15 of 27same address where legal notice was sent by the plaintiff. He further denied having any knowledge as to whether any reply to the legal notice was sent or not.
15. On 02.03.2023, Sh. Jyoti Prakash was examined as DW-2. He tendered his evidence by way of affidavit Ex.DW-2/A. In his cross examination, he has deposed that he had purchased 22 sq. yds. from the plaintiff for a sum of Rs.7,20,000/- and that he paid the sum of Rs.7,20,000/- to the plaintiff through two cheques amounting to Rs.4,00,000/- and Rs.3,00,000/-. He further deposed that he did not remember from which account the said cheques were issued and that the abovesaid cheques were not encashed. He has admitted that the two cheques of Rs.7,00,000/- were given by his son Dinesh on his behalf to the plaintiff which were in the name of Krishna. He has denied that agreement to sell was already executed between plaintiff and defendant no.1 and on the basis of said agreement, registry was done. He has admitted that he had paid only a sum of Rs.7,20,000/- to the plaintiff and Rs.10,00,000/- more in two installments to the plaintiff through bank transfer. He has further deposed that he had paid Rs. 4,00,000/- in cash to the plaintiff as Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 16 of 27she demanded the same though he had admitted that he had not filed any receipt or document of payment of Rs.4,00,000/- to the plaintiff. He has further admitted receipt of legal notice dated 21.04.2015. He has further deposed that he had purchased 22 sq. yds. from the plaintiff and that had had been cheated by the plaintiff as she was not owner of 22 sq. yds. He further deposed that he paid Rs.7,00,000/- to Smt. Geeta Devi but Smt. Geeta Devi did not hand over any part of property to him. He further admitted that Geeta Devi was not in possession of any part of the property.
16. On 16.12.2022, DW Sh. Sai Dass Bhatia, Judicial Assistant, Record Room (Civil), Dwarka Courts was examined as DW-3. He had brought the original record of Case bearing no.88/2014. The mediation agreement dated 17.09.2014 in CS No.88/2014 is Ex.DW-3/1. In his cross examination, he had deposed that Jyoti Prakash had filed Written Statement in the original record in case bearing no.88/2014, photocopy of which is Ex.DW-3/P1.
17. Thereafter, as no other defendant witness was left to Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 17 of 27be examined, hence vide separate statement of defendant no.2, DE was closed on behalf of all the defendants and the matter was fixed for final arguments.
CONTENTION OF PARTIES
18. Final arguments were heard on 28.04.2023. Ld. counsel for the plaintiff argued that the plaintiff had been able to prove her case on the preponderance of probabilities and that it was admitted by the defendants that they had only paid Rs.11,00,000/- and therefore, they were liable to pay the complete remaining amount of Rs.19,00,000/- to the plaintiff. It was further submitted that all the defendants would be liable to pay the said amount as the sale deed had been executed by the plaintiff in favour of defendant no.2 at the instance of defendant no.1 and the sale consideration had been paid by defendant no.3.
19. Per contra, ld. counsel for the defendants argued that firstly, when it came to the agreement to sell between plaintiff and defendant no.1, there was no privity of contract qua the same between plaintiff, defendant no.2 and defendant no.3. Secondly, it was argued that the agreement to sell did not survive considering the fact that the concerned property was later on sold Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 18 of 27by way of sale deed to defendant no.2. Next, it was argued that the sale deed was in favour of defendant no.2 and therefore, qua the said sale deed, there was no privity of contract between plaintiff and defendant no.1 and 3. Lastly, it was argued that it was the admitted position between the parties that sale consideration had already been paid, and the sale consideration mentioned in the sale deed was Rs.7,20,000/- and therefore, the plaintiff could not present a different case before this court and claim the sale consideration of Rs.30,00,000/-. ISSUE WISE FINDINGS
20. I have perused the record and heard the parties. I would decide all the issues together. The crux of the case of the plaintiff is that the plaintiff had entered into an agreement to sell with defendant no.1 for a sum of Rs.30,00,000/- (said agreement to sell is not disputed as between the parties and was exhibited as Ex.PW-1/2). It is further the case of the plaintiff that Rs.1,00,000/- was paid at the time by defendant no.1. It is further the case that thereafter, a sale deed came to be executed and registered for the same property which was the subject matter of Ex.PW-1/2 but the sale deed was executed and registered in favour of defendant no.2 (again the sale deed is not disputed Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 19 of 27between the parties and is exhibited as Ex.PW-1/4). It is further the admitted case that the plaintiff received Rs.10,00,000/- by way of RTGS in the month of April, 2014 from the defendants. Based on the assumption that the sale consideration for the property was for Rs.30,00,000/-, the present suit has been filed for a recovery of Rs.19,00,000/- against the defendants. I find that after going through the pleadings and the evidence adduced by the parties, all the issues have to be decided against the plaintiff and consequently, the suit has to be dismissed for the following reasons :
(I) On a perusal of Ex.PW-1/4 (registered sale deed dated 19.12.2013), I find that the same conclusively proves that the plaintiff has sold the property in question to defendant no.2, for a sum of Rs.7,20,000/- on which stamp duty of Rs.43,200/- has been paid. The sale deed clearly mentions that the total sale consideration of the property, as agreed between the parties is Rs.7,20,000/-. Even if the recital with respect to the payment of the said sale consideration through cash is ignored and even if the plaintiff could have been allowed to prove that no consideration had ever been received, at the same time, the plaintiff cannot be allowed to plead and prove that the sale Smt. Usha Devi vs Sh. Dalip Kumar & Ors.Suit No. 16496/16 Page 20 of 27
consideration mentioned in the sale deed is not the sale consideration which was agreed upon between the parties. In Vipen Kumar Parwanda vs. Gunjan Kumar and Another 2023 SCC OnLine Del 2448 the Hon'ble High Court of Delhi, while dealing with the provisions of Section 91 and 92 of the Indian Evidence Act, had observed that :
41. At this juncture, it is apposite to set out herein below Sections 91 and 92 of the Evidence Act:
"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
..."
"92. Exclusion of evidence of oral Smt. Usha Devi vs Sh. Dalip Kumar & Ors.Suit No. 16496/16 Page 21 of 27
agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement of statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for purpose of contradicting, varying, adding to, or subtracting from, its terms;
Proviso (1) - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.
..."
......it is settled law that written instruments are entitled to a much higher degree of credit than oral evidence. When the parties deliberately put their agreement into writing, it is conclusively presumed between Smt. Usha Devi vs Sh. Dalip Kumar & Ors.Suit No. 16496/16 Page 22 of 27
themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory. Ergo, the court can only look at the writing alone in order to construe what the terms of the contract are and what the intention/objective/purpose of the instrument.
......
......Further, on a plain reading of Section 92 of the Indian Evidence Act, 1872 and on going through the principles governing disposition of property, there cannot be an iota of doubt that consideration for a contract or disposition of property is 'term' of the contract, for no contract would be valid without consideration. The Hon'ble Madras High Court in the matter of K.M. Rajendran v. Arul Parkasam reported as 1998 SCC OnLine Mad 170 had held that even though under the Proviso (1) to Section 92 of the Indian Evidence Act, it is open to the party to the agreement to lead evidence to vary he or she is precluded from varying the consideration amount either less or more than what is specified in that agreement.
Smt. Usha Devi vs Sh. Dalip Kumar & Ors.Suit No. 16496/16 Page 23 of 27
"20. Regarding variation of consideration mentioned in Ex. A-1 a Division Bench of this Court in a decision reported in K.S. Narasimhachari v. Indo Commercial Bank, AIR 1965 Mad 147 has observed thus:--
"Proviso (1) to Section 92 of the Evidence Act says that any fact may be proved which would invalidate any document or which would show want or failure of consideration. It is well recognised that under the terms of the proviso while it will be competent to the party to a contract to adduce evidence to prove want of consideration or failure of consideration or a difference in kind of consideration specified in the document, it will not be competent for him to prove a variation of the consideration recited in the document. Consideration specified in a document will be one of the terms of the contract evidenced by it. Thus, where consideration although specified to be of a particular kind; e.g. cash can and will be shown to be for different kind or it can be shown that it is false and that there was really no consideration. But this is different from a case where a party admits the passing of consideration specified in the document, but attempts to show that the consideration Smt. Usha Devi vs Sh. Dalip Kumar & Ors.Suit No. 16496/16 Page 24 of 27
was either less or more than what is specified. This, the party is not allowed to do."
It makes the position clear that even though under the Proviso (1) to Section 92, it is open to the party to the agreement to lead evidence to vary he or she is precluded from varying the consideration amount either less or more than what is specified in that agreement." [Emphasis supplied] Applying the principles as enunciated in the aforesaid judgment of Vipen Kumar Parwanda (Supra), it becomes clear that the whole suit of the plaintiff is misplaced in law. The plaintiff herself has averred that the sale deed was executed by her in favour of defendant no.2. There are no allegations of fraud or coercion. The plaintiff has never pleaded for cancellation of the said sale deed and therefore, the plaintiff can not be allowed to plead and prove that in fact, the sale consideration was Rs.30,00,000/- or that it was something other than the consideration amount mentioned in the sale deed. The pleadings and evidence adduced by the plaintiff to the contrary are therefore, hit by the provisions of Section 91 and 92 of the Indian Evidence Act and are therefore, inadmissible and the same Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 25 of 27would go to the root of the case of the plaintiff. (II) The plaintiff has also relied on the agreement to sell Ex.PW-1/2 for pleading that the present suit is premised on the said agreement and therefore, recovery of Rs.19,00,000/- should be allowed. Even if it is assumed that the aforesaid contention is correct (which it is not), the said agreement itself provides for the consequences of non-performance. In Clause 8 of the said agreement, it is clearly provided that if the party no.1 (plaintiff herein) could not execute the agreement, then the said party will pay double amount of the earnest money to party no.2 (defendant no.1 herein) and if the said party no.2 fails to pay the balance consideration amount, then the amount of earnest money would be forfeited. Therefore, the present suit, even if it was based on the aforesaid agreement to sell between plaintiff and defendant no.1 has to fail as the said agreement does not give the plaintiff the right to recover balance sale consideration but merely gives the plaintiff the right to forfeit Rs.1,00,000/- paid by defendant no.1 to the plaintiff.
(III) However, even otherwise, once it is the admitted position that after the execution of the agreement to sell (Ex.PW-1/2) dated 02.08.2013, the plaintiff has executed the sale deed in Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 26 of 27favour of defendant no.2, then the said agreement Ex.PW-1/2 axiomatically stands nullified and revoked as the plaintiff was no longer in any position to execute the sale deed in favour of defendant no.1 in terms of Ex.PW-1/2. Therefore, the plaintiff's insistence that the sale consideration was Rs.30,00,000/- and that the plaintiff has a right to recover the same as per Ex.PW-1/2 is also a misplaced contention and cannot be countenanced, as the said agreement to sell loses any value in the eyes of law. (IV) Even otherwise, the plaintiff does not seem to have come with clean hands. It is settled law that a person who seeks equity must do equity. If the plaintiff's contention that the actual sale consideration was Rs.30,00,000/- was considered and allowed by this court, it would mean that the court of law has approved the bypassing and avoidance of stamp duty and registration fees by the parties. Once the sale deed shows that the certain sale consideration has been arrived at between the parties and that sale stamp duty has been paid ad valorem on the said sale consideration, then effect has to be given to the same and the parties cannot then come to the court of law seeking to enforce their rights on the basis of such sale deed while pleading that in fact, the sale consideration was more than the sale consideration Smt. Usha Devi vs Sh. Dalip Kumar & Ors.
Suit No. 16496/16 Page 27 of 27actually shown in the sale deed. If such claims are allowed, then the purpose of the stamp duty and registration laws would be nullified which can not be the position.
RELIEF
20. Consequently, all issues are decided against the plaintiff and the suit of the plaintiff is dismissed. Parties to bear their own costs.
21. Decree sheet be prepared accordingly.
22. File be consigned to Record Room after due compliance.
Announced in the open court (Sh. Divyang Thakur)
On 09.05.2023 ADJ-03/South West
Dwarka / New Delhi
09.05.2023
Smt. Usha Devi vs Sh. Dalip Kumar & Ors.