Devenderjeet Singh Sethi vs Om Prakash Arora & Ors on 1 July, 2019

[Cites 14, Cited by 2]

Delhi High Court

Devenderjeet Singh Sethi vs Om Prakash Arora & Ors on 1 July, 2019

1. The Plaintiff has filed the present suit for Specific Performance and implementation of the Receipt cum Agreement dated 5th March 2010 in respect of property bearing No. 7/13 Roop Nagar, Delhi, 110007 admeasuring about 515 square yards (hereinafter the "suit property").

2. The case of the Plaintiff as stated in the plaint is that, Plaintiff was searching for some residential property in Roop Nagar area, Delhi and he was informed about the suit property by Property dealers- Shri Gagan CS(OS) 2303/2010 Page 1 of 33 Makkar and Shri Harmeet Singh (hereinafter „the brokers‟). On 21st February 2010, the Plaintiff together with the brokers visited the above said suit property. During the meeting, he was informed that the suit property was jointly owned by Defendant Nos. 1 and 2 and also by Defendant No. 3, who although was not residing in India, but had given his consent to Defendant Nos. 1 and 2 for negotiating and finalization of the sale of the suit property. Plaintiff was shown copies of the title papers of the suit property. On perusal of the same, it transpired that the suit property was originally purchased by Late Shri Jeevan Dass, who is the erstwhile recorded owner of the suit property. He died intestate on 13th March 1979 and all his legal heirs i.e., his sons and daughter released/relinquished their rights in the Suit Property in favour of their mother Smt. Ram Pyari. She thus became the complete owner of the Suit Property. Eventually, she died on 22nd September 1999 leaving behind a registered Will dated 8th January 1981 and by virtue of the said Will, the suit property was bequeathed to all the Defendants. No Objection Certificates were issued by other surviving heirs of Late Smt. Ram Pyari and the Suit Property was mutated in favour of all the Defendants who then became the complete and joint owners of the undivided suit property.

3. After scrutinizing the title documents, Plaintiff expressed his willingness to purchase the Suit Property and telephonically informed Defendant No. 3 about the same. Defendant No.3 assured that he was soon likely to travel to India and also informed that Defendant Nos. 1 and 2 were fully authorized and competent to deal and conclude the sale transaction and issue receipts on his behalf. It was further assured by Defendant Nos. 1 and 2 that they would CS(OS) 2303/2010 Page 2 of 33 secure fresh No Objection Certificates from other legal heirs and furnish the same to the Plaintiff prior to the execution of the Sale Deed.

4. On the basis of the above said assurances, Plaintiff agreed to purchase the entire suit property for a total sale consideration amount of Rs. 10,42,50,000/- (Rupees Ten Crores Forty Two Lakhs Fifty Thousand Only), which was duly confirmed and consented to by Defendant No. 3 telephonically in the presence of Defendant Nos. 1 and 2. In furtherance of the said Agreement, on 5th March 2010, Plaintiff paid a sum of Rs. 5,00,000/- (Rupees Five Lakhs Only) as advance sale consideration and a Receipt-cum-Agreement was signed and executed by Defendant Nos. 1 and 2 acknowledging and confirming the sale transaction of the Suit Property. The said transaction was duly witnessed by the brokers. The final date for payment of the balance sale consideration was agreed to be-on or before 5th October 2010.

5. On 15th June 2010, Plaintiff with a view to further effectuate the agreed sale transaction, made a further payment of Rs.45,00,000/- (Rupees Forty Five Lakhs Only) in cash to Defendant Nos. 1 and 2. The said payment was made by the Plaintiff in the presence of the broker- Shri Harmeet Singh and his cousin namely Shri Hardev Singh Suri. In good faith, the Plaintiff did not insist upon the said Defendants for issuing a receipt of the said payment of Rs.45,00,000/- (Rupees Forty Five Lakhs Only), as Defendant Nos. 1 and 2 represented and assured that Defendant No. 3 was traveling to India shortly and that they would jointly execute and issue the receipt on his arrival. Defendant Nos. 1 and 2 also assured the Plaintiff that they would not cheat CS(OS) 2303/2010 Page 3 of 33 him for the said amount and stated that they had obtained fresh No Objection Certificates from the other legal heirs of Late Smt. Ram Pyari.

6. Defendant No. 3 turned dishonest and started corresponding with Gagan Makkar, the broker via e-mail. He made vague and evasive proposals demanding modification / variation in the sale transaction for increase of the consideration amount. Plaintiff on becoming aware of the same, confronted Defendant Nos. 1and 2 and sent them a legal notice dated 1st September2010 calling upon them to execute the agreement to sell and handover the vacant, peaceful, physical possession of the Suit Property on or before 5th October 2010 as he was ready and willing to perform his part of the Agreement and was ready to pay the balance consideration amount of Rs. 9,92,50,000/- (Rupees Nine Crores Ninety Two Lakhs Fifty Thousand only). Since the Defendants were evading him and had also neglected and failed to reply to the legal notice dated 1st September 2010, the Plaintiff issued a Public Notice dated 22nd September 2010 in the English and Hindi edition of „The Hindustan Times‟. Thereafter, there were several correspondences between the parties, whereby Defendants Nos. 1 and 2 acknowledged the sale transaction; the total sale consideration amount of Rs.10,42,50,000/-; receipt of advance consideration amount of Rs.5,00,000/-; confirmation by Defendant No. 3of the said sale transaction and also acknowledgment of the factum that the balance consideration amount was to be paid on or before 5th October 2010. However, they denied the receipt of Rs.45,00,000/- (Rupees Forty Five Lakhs only). Defendant Nos. 1 and 2 also called upon the Plaintiff to prove his readiness and willingness to complete the sale transaction on or before 5th October 2010, failing which they would forfeit CS(OS) 2303/2010 Page 4 of 33 the advance money paid by the Plaintiff. They also lodged a caveat before the Hon'ble High Court of Delhi on the same date.

7. On 30th September 2010, Plaintiff responded to the reply dated 23rd September, 2010 whereby he denied the averments made by Defendant Nos. 1 and 2 and reiterated his readiness and willingness to make the payment of the balance sale consideration amount. The Plaintiff provided details of three separate Pay Orders / Drafts dated 29th September 2010, drawn in favour of all the three Defendants along with the amounts, the bankers name and the draft numbers. On 1st October 2010, Defendant Nos. 1 and 2 replied to the said letter through their counsel and whereby they made a vague and evasive denial of the facts stated in the Plaintiff‟s reply. Defendant Nos. 1 and 2 also denied that Plaintiff had got the three Pay Orders/Demand Drafts prepared, since no copies thereof were provided and only numbers were mentioned. Plaintiff on receipt of the said response/communication dated 1st October 2010 vide his Reply dated 8th October 2010 reiterated the entire factual position and enclosed the photocopies of the three Pay Orders/Demand Drafts dated 29th September 2010 and called upon the Defendants to intimate in writing the date of arrival of Defendant No. 3 from USA along with copy of his valid travel documents, date of vacation of the Suit Property, status of the No Objection Certificates from all the legal heirs of Late Smt. Ram Pyari, so as to enable him to purchase the requisite stamp papers for the Sale Deed and proceed for execution and registration of the same. Defendant Nos. 1 and 2 vide response dated 18th October 2010 raised vague and evasive proposals, thereby alleging that the Plaintiff had no funds to perform his part of the contract in spite of the fact that the photocopies of CS(OS) 2303/2010 Page 5 of 33 the three Bank Drafts / Pay orders totaling to Rs. 9,92,50,000/- (Rupees Nine Crores Ninety Two Lakhs Fifty Thousand only) were annexed with the Reply /Response dated 8th October 2010. Defendants further raised an untenable bogey of Benami transaction. Thereafter, Plaintiff made all possible efforts to prevail upon Defendants to perform and complete the sale transaction in terms of the duly admitted Receipt-cum-Agreement dated 5th March 2010, but to no effect.

Case of the Defendants

8. Defendant Nos. 1 and 2 deny having received the alleged payment of Rs. 45,00,000/- in cash as alleged by the Plaintiff. Further, they allege that Plaintiff has no source of money and in order to show his readiness and willingness, the photocopies of three drafts worth Rs. 9,92,50,000/- (Nine crore fifty thousand only) were drawn from the account of a company namely Shree Ganesh Jewellery house Ltd., who is not a party or privy to the transaction. Plaintiff was neither the director nor a share holder in the said company. The said company is also not engaged in the business of housing finance. Defendant Nos. 1 and 2 refused to accept the payment on two grounds i.e. the amount tendered by the Demand Drafts was less than the balance consideration due under the Agreement. The demand drafts of Shree Ganesh Jewellery house Ltd. tainted the transaction as the same were hit by section 3 read with section 2(a) of the Benami transaction (Prohibition), Act 1998. Defendant No.3 in the written statement contends that the suit is not maintainable against him as he is not a signatory to the receipt cum agreement dated 5th March 2010. He denied giving consent to Defendant Nos. 1 and 2 for sale of the suit property. It is further contended CS(OS) 2303/2010 Page 6 of 33 that the Plaintiff has no money to purchase the suit property, as the drafts were issued by a third party- Shri Ganesh Jewellery House Ltd., with whom Defendants have no privity of contract.

Proceedings in the Petition

9. On 12th November 2010, summons were issued in the suit and ad-interim injunction was granted directing Defendants to maintain status quo in respect of the suit property. On the said date Defendant Nos. 1 and 2 expressed their willingness to complete the sale transaction, on Plaintiff paying the balance sale consideration of Rs. 45,00,000/- over and above the Demand drafts worth 9,92,50,000/-.

10. On 24th July 2012, on the basis of pleadings of the parties this Court framed the following issues:

"1. Whether the plaintiff is entitled to the relief of specific performance of the Agreement to Sell dated 5.3.2010 in respect of the property bearing No.7/13, Roop Nagar, Delhi-110007? OPP

2. Whether the plaintiff had been ready and willing and is ready and willing to perform his part of the Agreement? OPP

3. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for? OPP

4. Whether the plaintiff has paid a sum of Rs. 45.00 lacs in cash to Defendants No. 1 & 2 on 15.6.2010? OPP

5. Whether the transaction by the plaintiff is a Benami transaction? OPD

6. Relief."

11. On 6th March 2013, on an application filed by Defendant No. 3 the following additional issues were framed:

CS(OS) 2303/2010 Page 7 of 33

"7). Whether the defendant No.3 is not bound by the alleged Receipt-cum-agreement to Sell dated 5.3.2010 signed by the plaintiff and the Defendant No. 1 & 2? (OPD-3)

8). If issue No.7 is decided in the affirmative, whether the present suit is not maintainable against the Defendant No.3?

(OPD-3)"

Evidence led by the Parties

12. Three witnesses deposed on behalf of the Plaintiff, Shri Devenderjeet Singh Sethi, PW-1 (Plaintiff), Shri Harmeet Singh PW-2 (Plaintiff‟s broker) and Shri Gaggan Makkar PW-3(the broker). Defendants cross-examined all three witnesses. On behalf of Defendant Nos. 1 and 2 Shri Vijay Kumar Arora deposed as DW-1, he was cross-examined by the Plaintiff. No evidence was led by Defendant No. 3.

Analysis and Findings Issues No. 4: Whether the Plaintiff has paid Rs. 45 lacs to Defendant Nos. 1 and 2?

13. As noted above, Plaintiff contends that a sum of Rs. 5 lakhs was paid as advance in cash on 5th March 2010 at the time of signing of the Agreement cum Receipt. A further sum of Rs. 45 lakhs was paid in cash on 15th June 2010. Payment of Rs. 5 lakhs is acknowledged, but the receipt of Rs. 45 lakhs is vehemently denied by Defendant Nos. 1 and 2. In order to discharge the onus of proof on this issue, Plaintiff has examined himself and during the cross-examination, he deposed to the following effect:-

"Q. I draw your attention to portion mark X to X of notice Ex CS(OS) 2303/2010 Page 8 of 33 D-1 and will it be correct to say that in the same it is mentioned that you stated that a sum of Rs. 45 lacs was paid as per agreement?

Ans. I say that the language used is not the correct language and in fact there was no agreement and there was a receipt of five lacs only and Rs. 45 lacs were demanded which I paid. Q. Will it be correct to say that as per you there was no proper agreement?

Ans. I say that a receipt was executed which had been filed on record.

Q. You have claimed that you have paid a sum of Rs. 45 lacs in cash, can you disclose the source thereof?

Ans. The cash stands reflected in the accounts in my personal name as cash in hand. It is incorrect to suggest that I never had a sum of Rs. 45 lacs as cash in hand in my personal account. I have demanded receipt of the payment made on June 15,2010 of Rs. 45 lacs for which no receipt was issued, orally between the period upto 1st Sept, 2010, when a written notice were sent.

Q. Can you tell the specific dates, time and the person from whom you demanded the receipt during the intervening period as in the previous answer. Kindly also tell the mode as to whether the talks took place in person or on telephone? Ans. I have talked on telephone to Sh. Om Parkash and Sh. Vijay in this regard on 5 to 10 occasions and I have also visited their house for about 3 or 4 occasions, asking them to adjudicate the receipt which was to be executed jointly by the said two persons as well as by Sh. Maniktala their elder brother but they represented that Maniktala is not in the country and is in USA. I cannot tell the exact date or time of conversion on phone or meetings at their residence and the meetings were in the evening. It is incorrect to suggest that I have never met or conversed telephonically with Sh. Om Prakash and Vijay Kumar in this regard. It is incorrect to suggest that no payment of Rs. 45 lacs was ever made by you.

Q. I draw your attention to para 5 of notice Ex D-1 dated

14.9.2010 and will it be correct to say that in the same it is mentioned that you had paid the sum of Rs. 45 lacs after, CS(OS) 2303/2010 Page 9 of 33 disposing of one of your property?

Ans. Yes. It is so mentioned.

Q. Will it be correct to say that the earlier statement made by you that you made the payment in cash from lying in your personal account as cash in hand will be a false statement?

Ans. After disposing of the property some amount was transferred as cash in hand in my personal account and payment was made accordingly. So, I say that both the statements are correct.

Q. Can you give the description of the property sold?

Ans. Second and third floors of property bearing No. A/151, Gujrawala Town, Delhi -110009.I do not remember the exact date or month in which the said property was sold. I even cannot say whether the said property was sold prior to 15.6.2010 or thereafter. I can produce the copy of the agreement with regard to sale of the said property, which is not in my possession now. The agreement was entered into between myself and M/s Sh. Ganesh Jewellery House Ltd. The agreement was approximately for a sum of Rs. 14 to 15 crores. The counsel for the defendants No. 1 & 2 calls upon the witness to produce the said agreement as well as details of personal accounts and income tax returns for the years 2008 till date.

Q. I suggest it to you that the agreement between you and M/s Shree Ganesh Jewellery House Ltd. was in any case not entered before 15.6.2010, alleged date of payment of Rs. 45lacs. Question is objected to on the ground that it is repetition of earlier question.

Ans. It may be that it was not entered before 15.6.2010 and as already stated by me the agreement is to be referred in this regard. The payment with regard to the transaction between me and Shree Ganesh Jewellery Ltd. was made by way of cheque only. I am not in a position to tell without referring to my records as to how many points and to what extent the payments totaling to Rs. 14 to 15 crores was received by me from Shree Ganesh Jewellery Ltd.

Q. You have stated that you have received a total consideration CS(OS) 2303/2010 Page 10 of 33 amount of Rs. 14 to 15 crores from Shree Ganesh Jewellery House Ltd. Can you tell in which account the cheqeus were deposited by you?

Ans. I have not stated that I have receipt the total amount of Rs. 14 to 15 crores and have only stated that the consideration amount of the transaction was 14 to 15 crores. The deal with M/s Sh. Ganesh Jewellery House Ltd. was simultaneous to the deal with the defendant and the balance sum of Rs. 9.92 crores were received by way of Bank Draft from Shree Ganesh Jewellery House directly in the name of three defendants equally. Since the defendant did not honour the deal, the deal with M/s Shree Ganesh Jewellery House Ltd.

Q. Can you tell as to where, when and to whom the payment of Rs. 45 lacs as alleged was made by you?

Ans. The payment of Rs. 45 lacs was made on 15.6.2010 in the evening at the house of defendants to Sh. Om Prakash and Sh. Vijay Arora at the ground floor in the drawing room of the house.

It is correct to suggest that the defendants have issued a receipt for a Rs. 5 lacs only.

Q. I suggest it to you that it was a token receipt only?

Ans. I am unable to understand the context in which the word Token is used. I can only say that the receipt be referred to. It is incorrect to suggest that I never went to the house of defendants on 15.6.2010.

I have brought the record which was asked to be brought on the previous date i.e. Income Tax Return for the Assessment years 2010-2011, 2011-12, 2012-13 and 2013-14 and the agreements, letter of intent to purchase real estate i.e. A-151, Gujrawal Town Part-I, Delhi, communication dated 25th Sept,2010, receipt cum agreement with M/s Sh. Ganesh Jewellery House Ltd. Letter dated 5th Oct, 2010 and cancellation deed dated 5th Oct, 2010. Ld. Counsel for defendant No. 1 & 2 submitted that he has only called for the agreement and not the other correspondence which as, per the counsel for the plaintiff forms part and parcel of complete agreement (counsel for the defendant has perused the records so brought).It is incorrect to suggest that I have not brought the income tax returns for the CS(OS) 2303/2010 Page 11 of 33 assessment years 2008-09 and 2009-10 because it would have been shown I did not have the cash in hand. Vol. These returns have no connection with the deal.

Q. Are you in possession of any document to show that you had a sum of Rs. 45 lacs in cash available with you?

Ans. It is reflected in my income tax return for the years 2010- 11 in which Rs. 5 lacs have been show to have been paid to Sh. Om Prakash Arora and Ors. and a sum of Rs. 45 lacs is shown to have been paid to Sh. Om Prakash Arora and others for the assessment year 2011-12, thus totaling to Rs. 50 lacs. The cash in hand is shown in the computation of total income and balance sheet annexed with the returns.

Q. I suggest it to you that the said cash in hand and the source are not reflected in the aforesaid returns (since a question has been asked concerning the returns of 2010-11 and 2011-12 the same are marked Ex PW 1/D-l & D- 2).

Ans. It is incorrect.

Q. Please show me from the return 2011-12, the source of Rs. 45 lacs in cash?

Ans. It has been shown as cash receipt from Dhawan Security Ltd. At point A in return Ex PW 1/D-2.

Q. Whether the said amount was received in by cash or by cheque?

Ans. It was received in cash.

Q. I suggest to you that no concern by the name of Dhawan Security Pvt. Ltd exist and it is fake entry?

Ans. It is incorrect. I can produce document to show that it is genuine concern.

Q. Can you tell as to why Dhanwan Securities Pvt. Ltd.

made you the payment of 50 lacs?

Ans. I asked for a loan from him and he obliged.

Q. I draw your attention to Ex D-1 i.e. notice dated 14.9.2010sent by you to the defendants. Is it correct that in the same it is mentioned that you paid money outside the house and the money was taken by the defendants inside the house?

Ans. It is incorrect. It is specifically mentioned that 'my client thus honoring, the commitment gave you Rs. 45 lacs CS(OS) 2303/2010 Page 12 of 33 in cash and which you immediately took in custody and parcel in inside your house'. Vol. the money was paid in the drawing room and it was taken by the defendants in the other room inside the house. It is wrong to suggest that an amount of Rs. 45 lacs was never paid. It is incorrect to suggest that no objection certificates were already shown to me or that the defendants never agreed to obtain and supply the no objection certificate from the other legal heirs of late Ram Pyari. It is incorrect to suggest that the three drafts alleged to have been prepared in the name of the defendants by Sh. Ganesh Jewellery House Ltd were forged and fabricated.

Q. Do you have any document in your possession to show that the said three drafts were prepared and were later on got cancelled?

Ans. The documents are already on court record.

Q. Can you tell the date of the cancellation of the drafts as stated by you?

Ans. It was on 11th Oct, 2010.

Q. Have you produced any document with regard to the alleged cancellation?

Ans. I rely upon the application moved by the Defendants to summon Standard chartered bank and thereafter dropping the same by the defendants.

Further cross examination deferred.

It is incorrect to suggest that after making initial payment of Rs. 5 lacs, I did not have the requisite money to pay the balance amount or I had no intention to fulfill my part of the obligations or that I was never ready and willing to perform my obligations or that for that purpose I had come up with the story of payment of Rs. 45 lacs in cash. I have no knowledge regarding complaint, if any, filed by defendants No. 1 & 2 against Sh. Ganesh Jewellers Ltd with Registrar of the Companies. The original drafts dated 29.9.2010 were received by me through courier most probably on 30.09.2010."

14. On the basis of the admitted facts and on a reading of the above CS(OS) 2303/2010 Page 13 of 33 testimony and the highlighted portions in particular, it emerges that there is no receipt on record to prove that Plaintiff himself made the payment of Rs. 45 lakh in cash to Defendant Nos. 1 and 2. It is also noteworthy that in the notices dated 1st September 2010 (Ex. PW-1/2) and 14th September 2010 (Ex. D-1) issued by the Plaintiff, he had only mentioned the month in which the payment was made without giving any specific date. Subsequently in the reply dated 30th September 2010 (Ex. Pw 1/13) Plaintiff for the first time alleged the date of payment as 15th June 2010. Shri Gaggan Makkar PW-3, in his cross examination has stated that the aforesaid payment was made in March 2010 and that he also informed Defendant No. 3 verbally about the aforesaid payment in March 2010 itself. Relevant portion of PW-3‟s cross- examination is reproduced hereunder:

"Q. Was any further amount paid beside the Rs.5 lacs by the plaintiff?

Ans. So far as I recollect , the plaintiff and the broker Shri Harmeet Singh told me that they have paid a further sum of Rs.45 lacs to given to D1 and D2. I was not available on the date of said payment and I was told about the payment having been paid after two days by Shri Harmeet Singh.

Q. Can you tell date, month and year of the alleged payment of Rs. 45 lacs.?

Ans. It was in the month of March, 2010.

Q. Can you tell the mode of payment of the alleged amount of Rs. 45 lacs?

Ans. I was only told about the payment being made but not the mode of payment i.e. by cheque, draft or cash. Q. Did you tell defendant No.3 about the payment of Rs.45lacs in March 2010 as stated by you, to Defendant No.3through e-mail? Ans. I do not remember whether any email was sent. Whatever email has been exchanged had been already placed on record. Vol. I can at least say that defendant No.3 was told about the CS(OS) 2303/2010 Page 14 of 33 same verbally on telephone by me, many a times about the same. Q. I put it to you that no payment of Rs.45 lacs as alleged was ever made, nor anything was told to you about the same, nor you ever told by any mode to the defendant No.3?

Ans. It is correct."

15. There is thus an apparent conflict and contradiction in the above said testimony regarding the alleged date of payment. The cross examination of PW-1 also reveals that the Plaintiff has tried to give an explanation regarding the source of the funds for the alleged payment of Rs. 45 lacs alleged to have been made to Defendant Nos. 1 and 2 on 15th June 2010. The explanation given is however riddled with conflict. Initially PW-1 tried to explain the course of the funds being part of the sale consideration he received from Shree Ganesh Jewellery House Ltd. under a letter of intent dated 16th August 2010 for the proposed sale of Plaintiff‟s property bearing no. A-51, Gujrawala Town, Part-I, Delhi. This version is ex facie false, as the alleged date of payment predates the letter of intent. Moreover, there are further contradictions in the stand of PW-1 on this aspect. In the notice dated 14th September 2010Ex. D-1, it has been mentioned that the aforesaid payment of Rs. 45 lacs was made after disposing of one of the properties. During the cross examination, PW-1 reaffirmed the said statement when he was confronted with the said notice. He also admitted that the property sold for arranging the funds is the same which finds a mention in the letter of intent i.e. property bearing no. A-151, Gujrawala Town, Part-I, Delhi. When he was confronted as to whether the date of execution of Letter of Intent was later than the alleged date of payment, his response was vague and unconvincing. Thereafter, during the cross examination on 28th October CS(OS) 2303/2010 Page 15 of 33 2014, Plaintiff claimed that the amount of Rs. 50 lacs shown in the income tax return for the year 2011-2012 [EX. PW-1/D2], was used to pay the Defendants. When he was questioned regarding the source of the said amount, he claimed that the same was received in cash from Dhawan Securities Ltd. On further probe, PW-1 responded by saying that the said payment was made by Dhawan Securities Pvt. Ltd. as a loan. When PW-1 was given a suggestion that there was no concern by the name of Dhawan Securities Pvt. Ltd. and the entry of cash receipt was fake, he stated that he can produce documents to show that Dhawan Securities Pvt. Ltd. is a genuine concern. However no witness was produced before the Court to corroborate the said stand and clear the doubt. The Plaintiff has been deviating his stand, whenever he faced an uneasy situation, contradicting his earlier stance. The explanation for the source of funds as a loan transaction is incomplete variation of the stand taken by him in the legal notice. There is also no plausible explanation given by the Plaintiff for not taking a receipt for the aforesaid payment of Rs. 45 lacs. Plaintiff has relied upon Ex. PW- 1/2 wherein Plaintiff demands the issuance of the receipt duly executed by the Defendants and also the original title documents of the property along with the No Objection Certificates from other legal heirs of Smt. Ram Pyari. On the other hand, in Ex. D-1, Plaintiff sought production of title documents and presence of Defendant No. 3 and execution of proper receipt. There was no demand for receipt of Rs. 45 lacs. Likewise Ex. PW-1/13 also makes no demand for the receipt of Rs. 45 lacs. In the plaint, the Plaintiff has averred that he did not insist for issuance of receipt for the payment of Rs. 45 lacs for the reason that Defendant Nos. 1 and 2 represented and assured him that all the Defendants would jointly execute and issue a receipt for the alleged CS(OS) 2303/2010 Page 16 of 33 payment of Rs. 45 lacs. These statements are also inconsistent and contradictory. In Ex. PW-1/2 and D-1, the Plaintiff makes a reference for execution of a consolidated receipt of Rs. 50 lacs, whereas in Ex. PW-1/13 and the plaint he has stated that the execution of receipt of Rs. 45 lacs was to be done on the arrival of Defendant No. 3. These contradictions become conspicuous in view of the averments made in para 9 of the plaint wherein Plaintiff has asserted that Defendant Nos. 1 and 2 were duly authorized and competent to deal and conclude the sale transaction and also to issue formal receipts for the same. In view of the above, the ostensible reason given by the Plaintiff that the formal receipt for Rs. 45 lacs was to be executed after the arrival of Defendant No. 3 from USA, is belied. If Defendant Nos. 1 and 2 were authorized to issue the receipt acknowledging the receipt of Rs. 5 lacs there was no reason for the Plaintiff to not insist for a receipt executed by them for the alleged payment of Rs. 45 lacs. This is also contrary to what a reasonable and prudent person would do. There are several other discrepancies in the stand of the Plaintiff that are striking and cannot go unnoticed. In Ex. PW-1/2, it is mentioned that Plaintiff along with Harmeet Singh (the broker) visited the suit property and made the payment of Rs. 45 lacs. Ex.D-1 on the other hand mentions that the payment of Rs. 45 lacs was made outside the house of Defendants. PW-1 during the cross examination stated that the money was paid in the drawing room and it was then taken by the Defendant in another room inside the house. These discrepancies are also visible in respect of stand of the Plaintiff regarding the presence of the persons at the time of the alleged payment. Ex. PW-1/2 mentions presence of Plaintiff and Harmeet Singh; Ex. PW-1 mentions presence of only the Plaintiff; Ex. PW-1/13 seems to suggest that the payment was made in CS(OS) 2303/2010 Page 17 of 33 presence of the Plaintiff, Harmeet Singh and other witnesses; In the plaint it is averred that the payment was made in the presence of Plaintiff, Harmeet Singh and Plaintiff‟s cousin. Ex. PW 1/A, mentions the presence of Plaintiff, Harmeet Singh and Plaintiff‟s cousin namely Hardev Singh. There is a progressive improvisation in the oral evidence produced before the Court, which suggests a desperate attempt to prove that the payment of Rs. 45 lacs. The discrepancies and inconsistencies in the statements of PW-1 completely demolish his case. These glaring contradictions in the testimony of PW-1 regarding the date of payment, place of payment, source of funds etc. lead to only one conclusion that the Plaintiff has falsely claimed to have made payment of Rs. 45 lacs to Defendant Nos. 1 and 2 in cash. The stand of the Plaintiff is a flagrant and blatant lie and it leads to an inescapable conclusion that the Plaintiff had in reality, not made the payment of Rs. 45 lacs, as is now being contended in the present suit. Accordingly, it is held that the Plaintiff did not make the aforesaid payment to Defendant Nos. 1 and 2. Thus, Issue no. 4 is decided against the Plaintiff and in favour of the Defendants.

Issue No. 2: Whether the Plaintiff has been ready and willing to fulfill his part of the obligations under the Agreement?

16. Now coming to the pivotal question in the present suit. Whether the Plaintiff is and was ready and willing to perform its obligation under the Agreement? It is well settled that in a suit for specific performance of a contract for sale, it has to be proved that the party who is seeking a decree CS(OS) 2303/2010 Page 18 of 33 for specific performance of the contract for sale, must always be ready and willing to complete the transaction. The requirement of readiness and willingness has to be viewed and determined from the facts and circumstances of each case. Readiness and willingness must be in accordance with the terms and conditions of the contract. The findings on Issue No. 4 thus have a direct bearing on Issue No. 2.In fact Issue No. 2 can be decided in light of the findings given on Issue No. 4.

17. It has been held that Plaintiff has falsely claimed to have paid Rs. 45 lacs towards the sale consideration, thus the question that arises for consideration is whether asking the Defendants to execute the sale deed on receipt of the balance consideration, after adjusting the disputed amount would tantamount to show that the Plaintiff was not ready and willing to perform his part of the agreement. Since it has been held that the Plaintiff did not make the payment of Rs. 45 lacs towards sale consideration, the tender of the balance amount of Rs. 9,92,50,000/-was obviously short of the actual payment due under the agreement between the parties.

18. It is now well settled in law that readiness and willingness to perform the contract has to be in accordance with the terms therein and it is a condition precedent for the grant of decree for specific performance. This readiness and willingness has to be continuous from the date of execution of the contract, till the time the suit is decided. A person who falsely alleges that a payment has been made and attempts to prove the same at the stage of trial and is then unsuccessful, cannot be said to be ready and willing to fulfill his obligation under the contract.

CS(OS) 2303/2010 Page 19 of 33

19. At the time of injunction, the Plaintiff has attempted to abandon the said plea by stating that notwithstanding the controversy pertaining to payment of Rs. 45 lakhs, he is ready and willing to make the payment of the balance amount of Rs. 10,37,50,000/- with interest at the rate of 6 % p.a. However, later on, Plaintiff resolutely defended his contention. He led evidence to prove the same. Having been unsuccessful in this effort, the tender of the deficient balance consideration manifests lack of intent of the buyer to fulfill the obligations under the contract. There have been several cases where in similar circumstances it has been held that once a party is unable to prove a false plea of having paid a sum of money, due under the contract, then it is not entitled to a decree of specific performance. The Supreme court in Ram Kumar Aggarwal v. Thawar Das, AIR 1999 SC 3248 held as under:

"7. .... A person who falsely alleges to have paid Rupees 2,000/- and also attempts at proving the plea at the stage of the trial cannot be said to have been ever ready and willing to pay Rupees 7,000/- which under the contract it was his obligation to pay. The present one is not a case where a plea as to payment was raised bona fide but abandoned at or before the trial for in-ability to prove.

8. Plea under Section 53-A of the Transfer of, Property Act raises a mixed question of law and fact and therefore cannot be permitted to be urged for the first time at the stage of second appeal. That apart, performance or willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance. Thawar Das having failed in proving such willingness protection to his possession could not have been claimed by reference to Section 53-A of the Transfer of Property Act."

(emphasis supplied) CS(OS) 2303/2010 Page 20 of 33

20. Relying upon the aforesaid judgment, the Punjab and Haryana High Court in Malkiyat Singh v. Om Prakash, AIR 2004 P& H 253 held as under:

"12. Now the question arises for consideration is whether the conduct of the plaintiff by claiming the payment of Rs. 15,700/- towards the sale consideration and by asking defendant No. 1 to execute the sale deed on receipt of the remaining amount after adjusting the same, will tantamount to readiness and willingness of the plaintiff to perform his part of the agreement? The answer in my opinion, is in negative. Because in the notice as well as the plaint, the plaintiff has not offered the balance sale consideration to defendant No. 1. Since it was held that the amount of Rs. 15,700/- was not paid towards the sale consideration, therefore, while offering less amount of sale consideration after adjusting the aforesaid amount of pronote and receipt, the plaintiff cannot be held to be ready and willing to perform his part of the agreement. This conduct of the plaintiff would preclude him from getting an equitable relief. It is well settled that it is condition precedent for grant of decree for specific performance that the plaintiff must show his continuous readiness and willingness to perform his part of the contract in accordance with its terms from the date of the contract to the date of hearing."

(emphasis supplied)

21. Thus, tender of amount less than what was actually due, exhibits that the Plaintiff was not ready and willing to perform his part of the agreement. Since the Plaintiff has not performed its obligation in conformity with the terms of the contract, it is manifest that the Plaintiff was not ready and willing to complete the transaction. However, the Court in the succeeding paras has also evaluated the conduct and other facets of the case to determine whether the Plaintiff was genuinely interested and ready to complete the transaction. Readiness to perform the obligations by the CS(OS) 2303/2010 Page 21 of 33 intending purchaser is a critical factor that needs to be proved by the party who is seeking a decree of specific performance. The intending purchaser must necessarily prove his financial capacity which is a pre-requisite for seeking specific performance as per Section 16 (c) of the Specific Relief Act, 1963. Readiness has been understood, interpreted and explained by the Supreme Court in several decisions to mean the „financial capacity of the intending purchaser'. The intending purchaser must have the financial means and capacity to pay the balance sale consideration. The Supreme Court in N.P. Thirugnanam (D) by L.Rs. v. Dr. R. Jagan Mohan Rao (1995) 5 SCC 115 held as under:

"5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act 1963 (for short, 'the Act'). Under Section 20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available.

CS(OS) 2303/2010 Page 22 of 33

Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of the contract."

(emphasis supplied)

22. The Plaintiff has also relied upon certain case laws such as Raghunath Rai v. Jageshwar Prashad Sharma, 1999 (50) DRJ 751 to contend that in order to prove that a Plaintiff is ready and willing to perform his obligation under the contract, the intending purchaser need not produce the money or vouch a concluded scheme for financing the transaction. Learned counsel has argued that it is not a condition precedent that the purchaser should have ready cash with him to prove its readiness. It is sufficient for the purchaser to establish that he has the capacity to pay and it is not necessary that he should always carry the money with him. There is no quarrel on the proposition canvassed by the Plaintiff. However, as discussed above, readiness and willingness has to be ascertained on the basis of the facts and circumstances of the case. This Court in Baldev v. Bhule, 2012 132 DRJ 247, has held that the financial capacity has to be strictly proved, Self- serving statements cannot discharge the burden of proving existence of financial capacity. Similar views have been expressed in several other decisions such as M/s Hotz Industries Pvt. Ltd. v. Dr. Ravi Singh, 2018 SCC Online (Del) 7618 and Manohar Lal Khetrapal and Ors. vs. Hari Chand and Ors., MANU/DE/2934/2018. In the present case, the Plaintiff has tried to show its readiness and willingness on the basis of the copies of CS(OS) 2303/2010 Page 23 of 33 three demand drafts of equal amounts drawn in favor of three Defendants totaling to Rs. 9,92,50,000/-. This according to him was the balance consideration amount payable. Mr. Arun Vohra, Learned counsel for the Plaintiff argued that firstly the details of three drafts were furnished to Defendant Nos. 1 and 2 and later the photocopies of the same were also sent to them. He argued that the same is undisputed as per reply dated 30th October 2010 (Ex. PW1/13) and further, in Ex. PW 1/18, wherein Defendants admit having received the details of the three drafts. Later in Ex. PW 1/21 Defendant Nos. 1 and 2 also admit having received the photocopies of the three demand drafts. He argues that since Defendant Nos. 1 and 2 were not willing to complete their part of the obligations under the contract, they raised a false plea of Benami transaction to wriggle out of the contract. Mr. Sudhir Nandrajog has strenuously argued that Defendant Nos. 1 and 2 were well entitled to refuse the tender under the drafts. Firstly, because the amount offered was falling short by Rs. 45 lacs. Secondly, because the demand drafts were drawn from the account of a third party to the transaction namely, Shree Ganesh Jewellery House Ltd. Lastly, Mr. Nandrajog also referred to the provisions of the Benami Transaction Act, 1988 and urged that going forward with the transaction would have been unlawful as the Defendants could not have accepted the payment that was not coming from the account of the intending purchaser. Countering the argument of Mr. Nandrajog, Mr. Arun Vohra learned counsel for the Plaintiff has argued that there is no prohibition in law for a third party to make the payment on behalf of the Plaintiff. Pertinently, since the Plaintiff was having financial arrangement and dealings with Shree Ganesh Jewellery House Ltd., the payment under the demand draft at his behest cannot be CS(OS) 2303/2010 Page 24 of 33 termed as a Benami transaction.

23. The Court has given its thoughtful consideration on this issue. The demand drafts marked D to F, are concededly from the account of Shree Ganesh Jewellery House Ltd. Whether accepting the payment under the demand drafts would have amounted to Benami transaction is a separate question which would be discussed later in the judgment. On the question of readiness and willingness to complete the transaction, the explanation offered by the Plaintiff for issuing third party demand drafts is palpably shrouded with mystery. The Plaintiff has tried to demonstrate his readiness by stating that the funds were made available under the letter of intent dated 16th August 2010 executed between the Plaintiff and Shree Ganesh Jewellery House Ltd. whereby Plaintiff proposed to sell his property bearing No. A/151, Gujrawala Town, Part-I, Delhi -110009. On the strength of the aforesaid transaction, the Plaintiff has attempted to exhibit the financial capacity to complete the transaction. In the plaint, there is no specific averment with respect to the financial arrangement between the Plaintiff and Shree Ganesh Jewellery House Ltd. The said transaction was mentioned in the letter dated 14th September 2010 (Ex. D-1) which was produced on record by the Defendants. When the Defendants raised the plea of Benami transaction in their written statement, the Plaintiff brought out the fact of financial arrangement and dealing with the said company. During the cross- examination of PW-1, certain documents described as Letter of Intent dated 16th August 2010, reply dated 25th September 2010, receipt cum agreement dated 30th October 2010, letter dated 5th October 2010 and cancellation deed dated 5th October 2010 were produced. The said documents have not been CS(OS) 2303/2010 Page 25 of 33 proved in accordance with law and have no evidentiary value. It is also significant to note that the demand drafts in question were subsequently cancelled. The Plaintiff has offered unconvincing explanation by stating that since the transaction with Defendant Nos. 1 and 2 could not be completed as envisaged amongst the parties, the Plaintiff requested for mutual cancellation of the sale transaction. These unproved documents are ex-facie self-serving and have been filed before the Court in a brazen attempt to prove readiness, when the Plaintiff realized that it had failed to discharge the onus of proof. It is also germane to note that the Plaintiff has not examined any independent witness to prove the aforesaid transaction. Plaintiff did not care to summon any witness on behalf of Shree Ganesh Jewellery House Ltd., who could come before the Court to vouch for the transaction that was purportedly executed between Plaintiff and Shree Ganesh Jewewllery House Ltd. Defendants on the other hand examined Sh. Prabhash Kumar, Assistant Manager Standard Chartered Bank [D1W2] who brought the summon record and exhibited the statement of current account of Shree Ganesh Jewellery House Ltd [Ex. D1W2/A]. The said witness also exhibited the copies of the three demand drafts in question and also a letter dated 8th October 2010 [Ex. D1W2/E] written by Shree Ganesh Jewellery House Ltd. to the Branch Manager Standard Chartered Bank requesting for the cancellation of the three demand drafts. Thus, there is no doubt that the amount that was offered under the three demand drafts tendered by the Plaintiff were not drawn from the account of the Plaintiff but from the account of a party alien to the transaction. In absence of any credible explanation and proof before the Court in the nature of documents or oral testimony, it remains doubtful that the Plaintiff had the financial means to CS(OS) 2303/2010 Page 26 of 33 fulfill its obligations. The proposed sale transaction between Plaintiff and Shree Ganesh Jewellery House Ltd., has not been proved. No witness has stepped into the box on behalf of the Plaintiff, who could successfully prove that there was indeed a transaction as the Plaintiff has propounded. In absence of proof, offering demand drafts drawn from the account of Shree Ganesh Jewellery House Ltd. raises suspicion. It was fundamentally important for the Plaintiff to have produced unassailable evidence to prove its readiness. Failure to lead evidence fosters the doubt expressed by the Defendants that Plaintiff was not interested in purchasing the property. Plaintiff just pretended that he is willing to go forward in the deal by sending the copies of the drafts. When the Plaintiff found itself caught up on account of the name mentioned in the demand drafts, he contended that he had entered into a sale transaction for his property bearing number A-151, Gujrawala Town, Part-I, Delhi, in anticipation for concluding the transaction with the Defendants. This stand is unproven and is dubious. There is myriad of inconsistencies in the explanation given for Shri Ganesh Jewellery House Ltd. issuing the demand drafts. The story put forth has been falsified because of lack of evidence. The authenticity of the documents evidencing the proposed sale of property could not be established. The explanation given in oral testimony has no merit. The narrative of the Plaintiff is not straightforward and truthful and it invariably leads the Court to a conclusion that Plaintiff‟s conduct is not bonafide or honest. Plaintiff‟s argument is that since the demand drafts were prepared and offered to the Defendants, the obligation under law and the contract stood complied with. However the demand drafts are controversial, as they were issued by an entity that is stranger to the contract. This entity that is not even remotely connected with CS(OS) 2303/2010 Page 27 of 33 the transaction issued the demand drafts and scarcely few days later, it got them cancelled. Plaintiff contends that the third party was making payment at his behest. To make good this assertion, complicated and intricate sale transaction is suggested, which makes the matter worse for the Plaintiff. Plaintiff thus has failed to discharge the onus of proof. The apprehension of the Defendants that the Plaintiff is indulging in a Benami transaction gets compounded, since Plaintiff failed to produce the third party in the Court to prove his stance. The result of this failure is that the Plaintiff‟s narrative remains uncredible and incoherent. The dismal evidence lead by the Plaintiff does not prove his readiness or willingness. Accordingly, it is held that the Plaintiff was not ready and willing to fulfill its obligation under the contract. Thus Issue no. 2 is decided against the Plaintiff and in favour of the Defendant.

Issue No. 5

24. The factual rendition relating to the demand drafts need not be reiterated as the same has been noted in detail above. It is an admitted fact that there is no documentary evidence before the Court, which could show that there was a genuine transaction for sale purchase of the property bearing No. A-151, Gujrawala Town, Part-I, Delhi -110009. None of the documents in support of this purported transaction have been proved before the Court. There are no minutes of meeting of Shree Ganesh Jewellery House Ltd., for purchase or cancellation of the deed relating to the above noted property. There is also no document to show that Shree Ganesh Jewellery House Ltd. is engaged in the business of housing finance so as to justify that the amount tendered by way of the demand drafts was at the behest of the Plaintiff. The CS(OS) 2303/2010 Page 28 of 33 Plaintiff has argued that the demand drafts that were produced by the bank witness [D1W2/D] were different from the demand drafts filed by the Plaintiff [Mark D-F]. However, the Court need not go into this question, as the fact remains that without a corroborative theory for issuing the demand drafts it becomes an unimpeachable fact that the Plaintiff was not buying the property with his own money.

25. The essence of a Benami transaction is the intention of the parties concerned. The question whether a particular sale is Benami or not, is largely a question of fact. For determining this question, there cannot be any straight jacket formula that can be uniformly applied in all the situations. However, in the present case, the source of the purchase money is evidently linked to a third party and not the intending purchaser. The Defendants have proved that the purchase money that was being offered was coming from a person other than the Plaintiff in whose favour the property was intended to be transferred. Plaintiff had the opportunity to prove to the contrary and establish that notwithstanding the source of money, the purchase of the property was intended for its benefit. The true character of the intending transaction should have been proved by leading evidence that could unmistakably prove that notwithstanding the contribution of the purchase money, Plaintiff was intended to be the actual owner of the property. Plaintiff has however miserably and undeniably failed to prove the surrounding circumstances including its relationship with Shree Ganesh Jewellery House Ltd., or the motive behind the issuance of the demand drafts by Shree Ganesh Jewellery House Ltd. and also the subsequent conduct leading to the cancellation of the demand drafts. Thus, in absence CS(OS) 2303/2010 Page 29 of 33 of any cogent justification, it is held that Plaintiff has not discharged the burden of proof, which shifted on him, when the Defendants linked the source of the sale consideration to a third party. Accordingly, Issue No. 5 is decided in favour of the Defendants and against the Plaintiff.

Issues No. 7 and 8

26. The onus of proof for the aforesaid issues was on Defendant No. 3. The aforesaid two additional issues were framed on an application, being IA No. 3824/2013 filed by Defendant No. 3. The background regarding framing of these issues is that Defendant No. 3 is not a signatory to the Receipt-cum- Agreement to sell dated 5th March 2010. Defendant No. 3 however has not led any evidence in support of the aforesaid issues. Be that as it may, the stand of Defendant No. 3 as stated in the written statement is sufficient for the Court to give its finding on the aforesaid issues. Defendant No.3 has inter alia averred that he never gave his consent to sell his undivided share in the suit property and there is no privity of contract between the Plaintiff and the answering Defendant and the receipt cum agreement dated 5th March 2010 does not confer any right in favour of the Plaintiff or a corresponding obligation on Defendant No.3. Further allegations have been made qua Defendant Nos. 1 and 2, to the effect that the said Defendants persuaded Defendant No.3 to sell his 1/3rd undivided share in the suit property. Defendant Nos. 1 and 2 have not been transparent in their dealing and have committed breach of trust and the consent given by a Defendant No.3 was under misrepresentation. However, at the same time the Defendant No.3 unequivocally admits that he had consented to sell his share in the suit property, and the consent was subsequently withdrawn. Further, there is a CS(OS) 2303/2010 Page 30 of 33 categorical admission on behalf of Defendant No. 3 for agreeing to sell his 1/3rd undivided share in the following words:

"That it is further submitted that, the answering Defendant alleged to have agreed/consented to sell his share in the suit property on a total sale consideration of Rs. 10.5 crores but in the month of July, 2010, the answering Defendant came to know that the Defendant No. l & 2 in collusion with the said broker and the Plaintiff and without the knowledge of the answering Defendant in fact agreed to sell the suit property for Rs.16.5 crores. However, it was represented to the answering Defendant that the Plaintiff has agreed to purchase the suit property for a sum of Rs. 10,42,50,000/-However, at the time of giving consent to sell the suit property, it was made clear by the answering Defendant to the Defendant No. l & 2 that the deal should be transparent between the parties but the Defendant No. l & 2 acted contrary to what was agreed between the parties and misrepresented to have finalized the deal on Rs. 10,42,50,000/- with the purpose to cause unlawful gains to themselves and loss to the answering Defendant.

27. It is settled position of law that there can also be an oral agreement to sell as held by the Supreme Court in Brij Mohan and Ors v. Sugra Begum and Ors., (1990) 4 SCC 147, that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. Further, in Alka Bose v. Parmatma Devi and Ors., (2009) 2 SCC 582, the Supreme Court held as under:

"All agreements of sale are bilateral contracts as promises are made by both - the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor CS(OS) 2303/2010 Page 31 of 33 agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Section 10 of the Act provides all agreements are contracts if they are made by the free consent by the parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void under the provisions of the Contract Act. The proviso to Section 10 of the Act makes it clear that the section will not apply to contracts which are required to be made in writing or in the presence of witnesses or any law relating to registration of documents. Our attention has not been drawn to any law applicable in Bihar at the relevant time, which requires an agreement of sale to be made in writing or in the presence of witnesses or to be registered. Therefore, even an oral agreement to sell is valid....."

28. Defendant No. 3 has not led any evidence to prove that the consent was allegedly withdrawn. Thus, in view of the aforesaid categorical, unambiguous and unequivocal stand in the written statement and without any evidence to the contrary, it is held that the Defendant No. 3 is also bound by the receipt cum agreement to sell dated 5th March 2010 and the present suit is maintainable against Defendant No. 3. Hence, both the issues are decided against Defendant No. 3 and in favor of the Plaintiff.

Issue Nos. 1 and 3

29. In view of the findings given on Issues No. 2, 4 and 5, there is no reason or ground to grant relief of specific performance in respect of the suit CS(OS) 2303/2010 Page 32 of 33 property in favour of the Plaintiff. Plaintiff is also not entitled to a decree of permanent injunction. Issue Nos. 1 and 3 are decided against the Plaintiff and in favour of the Defendants.

Issue No. 6

30. For the aforegoing reasons, the suit is dismissed and Defendants shall be jointly entitled to recover the cost of the suit from the Plaintiff, which is assessed to be Rs. 3 lacs. The interim stay granted vide order dated 12th November 2010 stands vacated and the pending applications are disposed of.

SANJEEV NARULA, J.

July 01, 2019 nk CS(OS) 2303/2010 Page 33 of 33

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