Delhi District Court
Sh. Balkishan vs Smt. Ram Pyari Sharma on 2 January, 2012
Balkishan v. Ram Pyari Sharma
IN THE COURT OF SH. SANJAY SHARMA, JSCC-
CUM-ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No.374/08 (Old No.1460/84)
Unique Case ID No.02401C0866012005
Sh. Balkishan
S/o Sh. Prithvi Nath Bansal
R/o House No.8985/5,
Ambala City.
Haryana. ......Plaintiff
Versus
Smt. Ram Pyari Sharma
Through her LR
Sh. Charanjit Sharma
S/o Sh. N. D. Sharma
R/o II-E/88, Lajpat Nagar,
New Delhi - 110024. .....Defendant
Date of filing of the suit : 13.09.1984
Date of reserving order : 09.11.2011
Date of pronouncement : 02.01.2012
JUDGMENT
1. This is a suit for specific performance of an agreement to sell dated 28.08.82 in respect of the property no. II-E/88, Lajpat Nagar, New Delhi (Hereinafter referred as 'the suit property').
2. Precisely stated, the defendant is an owner / lessee of the suit property vide perpetual lease deed. The suit property is a single storey-ed house built over land measuring 100 sq. yds. The defendant had entered into an agreement to sell in respect of the suit property with the plaintiff for sale consideration of Rs. 2,10,000/- vide agreement to sell dated 28.08.1982. The said agreement was registered before the Sub - Registrar, New Delhi on Suit no. 374/08/84 page 1of 41 Balkishan v. Ram Pyari Sharma 30.08.1982.
3. According to the plaintiff, he paid advance amount of Rs. 95,000/- and balance amount of Rs. 1,15,000/- was to be paid to the defendant at the time of registration of the conveyance deed. It is further case of the plaintiff that it was agreed and stipulated in the agreement that "actual physical possession of the suit property will be delivered to the plaintiff at the time of registration of sale deed, the defendant will obtain sale permission from the Land & Development Office, New Delhi and Income Tax Authorities and shall inform the plaintiff, at least 15 days before the date of registration of sale deed and further, the defendant shall execute sale deed in favour of the plaintiff within three years from the date of the said agreement." It is stated that he had requested the defendant to obtain sale permission / clearance for sale of the suit property. The defendant had been postponing the matter on one or other pretext. The defendant has not applied for sale permission till date. It is further case of the plaintiff that on 20.08.1984, he had received information that the defendant was contemplating to sell the suit property. The plaintiff reached to Delhi and contacted the defendant. The defendant told that she was not interested in selling the suit property to the plaintiff and further, that she was negotiating sale of the suit property at much higher price. The defendant had refused to sell the suit property to the plaintiff.
4. The case of the plaintiff is that he has always been ready and willing to purchase the suit property by making payment of the balance amount. He has been ready to perform his obligations under the said agreement. The Suit no. 374/08/84 page 2of 41 Balkishan v. Ram Pyari Sharma defendant has refused to perform her part of the agreement and hence, the plaintiff filed this suit for specific performance.
5. In her written statement, the defendant stated that she was not aware that any agreement to sell has been executed with the plaintiff. The defendant is an old lady. The defendant has a small house / the suit property and she is residing therein along with her married son. The defendant never harboured any intention to the suit property for the reason that she cannot buy any other property for residence at Rs. 2,10,000/-. It is stated that it is un-imaginable that the defendant would have agreed to sell the suit property at Rs. 2,10,000/- whereas the market value of the suit property is Rs. 4,50,000/- to 5,00,000/-. It is stated that the defendant did not know the plaintiff personally. She had no negotiation with the plaintiff for any agreement to sell in respect of the suit property, personally or through any one.
6. According to the defendant, she is a primary school teacher in the DESU School, Rajghat, Delhi. She is not financially capable to purchase any other property for her residence in Delhi in view of rising prices. It is stated that even two - three rooms flats are not available in Delhi at Rs.2,10,000/- whereas the suit property is an independent house in South Delhi. It is stated that the defendant is an old lady and not well versed with the court procedures and thus, she had constituted Sh. Kewal Krishan s/o Sh. Kailash Nath as her attorney to watch her interest in some court cases vide General Power of Attorney dated 14.08.1981. Sh. Kewal Krishan is son of her cousin. He had Suit no. 374/08/84 page 3of 41 Balkishan v. Ram Pyari Sharma been residing with the defendant since 1973 till sometime before the execution of the alleged agreement to sell. The defendant had faith in him. He had often asked the defendant to sign certain papers and taken the defendant along with him, at short notice.
7. According to the defendant, Sh. Kewal Krishan had obtained her signatures on papers on the pretext that they were necessary for prosecuting the pending cases and further, for moving some applications, and for such reasons. Sh. Kewal Krishan had appended his signatures on page no. 3 of the said agreement to sell as a witness to the execution of the said agreement to sell. The case of the defendant is that Sh. Kewal Krishan in conspiracy with the plaintiff has played fraud upon the defendant and obtained her signatures at certain places on the alleged agreement to sell. It is stated that her signatures on the first and last page of the alleged agreement to sell are genuine. It is stated that her signature on the reverse side of page no.1 under the seal of the stamp vendor are also genuine whereas other signatures at two places under the seal of Registrar and page no.2 as well as on its reverse side thereof are not signatures of the defendant.
8. The case of the defendant is that Sh. Kewal Krishan had obtained signatures of the defendant on the typed copy of the alleged agreement on page no.1 and 3 as well as on reverse side of page no.1 at the time of purchase of the stamp paper in her name and then, got some one else to sign for the defendant before the Registrar at other places. It is stated that Sh. Kewal Krishan had taken the defendant from the school in a hurry and asked her to sign Suit no. 374/08/84 page 4of 41 Balkishan v. Ram Pyari Sharma at certain places and thereafter, he had left the defendant in the school. The defendant learnt from the plaint that she had entered into an agreement to sell in respect of the suit property. It is stated that the said Sh. Kewal Krishan has sold agricultural land of the defendant in Ambala to minor sons of the plaintiff on the strength of forged power of attorney dated 23.04.1982.
9. It is further case of the defendant that Sh. Kewal Krishan forged a power of attorney dated 23.04.1982 in his name on behalf of Smt. Brij Rani / the defendant's maternal grand - mother whereas Smt. Brij Rani had expired on 03.02.1972 at Delhi in the defendant's house. It is stated that in the said sale deed, it has been shown that the sale consideration was paid to Smt. Brij Rani before the Registrar, Naraingarh at the time of execution of the sale deed whereas Smt. Brij Rani had expired on 03.02.1972 long before the alleged execution and registration of the sale deed. The defendant has filed a criminal complaint against Sh. Kewal Krishan, the plaintiff and his two sons namely Sh. Sandeep Kumar and Sh. Sanjeev Kumar etc. U/s 403/464/465/ 467/468/472/120B read with Section 34 of the Indian Penal Code before the Court of Ld. M.M. at New Delhi. It is stated that Sh. Dwarka Nath / the defendant's brother filed a suit for permanent injunction against Sh. Kewal Krishan, the plaintiff and his said sons etc. before the Court of Senior Civil Judge at Ambala on 13.06.1982 in respect of said agricultural land of Smt. Brij Rani. The defendant filed her written statement in the said suit on 03.05.1985 and thereafter, the defendant filed a criminal complaint against the said persons and revoked the power of attorney granted to Sh. Kewal Krishan vide letter dated 04.06.1985. It is Suit no. 374/08/84 page 5of 41 Balkishan v. Ram Pyari Sharma stated that Sh. Kewal Krishan and the plaintiff have conspired to procure sale deeds of various properties fraudulently and deceitfully. It is the case of the defendant that no amount whatsoever was ever paid by the plaintiff. The plaintiff never approached the defendant at any point of time. The defendant never intended to sell the suit property. The suit is liable be dismissed.
10. In his replication, the plaintiff controvert-ed the contentions of the defendant and re-affirmed the facts stated in the plaint. It is stated that the defendant is a highly educated lady. The defendant is a Head Mistress of the School. It is stated that the value of the suit property was not more than Rs. 2,10,000/- at the relevant time. The defendant along with Sh. Kewal Krishan had approached the plaintiff at Ambala in the year 1981-82. It is stated that negotiation in respect of the land in Ambala had taken place with Sh. Kewal Krishan in the presence of the defendant and further, the defendant was present at the time of execution of the sale deed by Sh. Kewal Krishan as General Power of Attorney of Smt. Brij Rani at Naraingarh. It is stated that after sale of agricultural land to the plaintiff, the defendant and Sh. Kewal Krishan had approached the plaintiff in July, 1982 and informed him that the defendant was interested in selling her house at Lajpat Nagar, New Delhi. The plaintiff was interested in purchasing a house in New Delhi and therefore, the plaintiff expressed his interest and he had already seen the house. The defendant had quoted the price of the suit property at Rs. 2,50,000/-. The plaintiff had no knowledge of the market value of the properties in New Delhi and therefore, he had come to Delhi with the defendant and Sh. Kewal Krishan. The plaintiff enquired Suit no. 374/08/84 page 6of 41 Balkishan v. Ram Pyari Sharma market value of the suit property from property dealers in the company and presence of the defendant and Sh. Kewal Krishan. The property dealers had informed that the market value of the suit property was not more than Rs.2,00,000/- and thus, the defendant had agreed to sell the suit property at Rs.2,10,000/- and the plaintiff had agreed to purchase the house at the said price.
11. According to the plaintiff, the defendant had demanded advance amount of Rs.1,00,000/-. The plaintiff had gone to Ambala with the promise to return within 2/3 days. The plaintiff could arrange a sum of Rs.95,000/- and returned to Delhi on 27.08.1982 with Sh. Raghunath Sarup. The plaintiff met the defendant and Sh. Kewal Krishan. The defendant had promised to accompany the plaintiff to the office of Sub-Registrar on the next day 28.08.1982. On 28.08.1982, the plaintiff with Sh. Raghunath Sarup reached to the defendant's residence where they met the defendant and Sh. Kewal Krishan. The defendant had asked the plaintiff to pay the said amount on the pretext that it would not be safe to take the said amount to the office of the Sub- Registrar and accordingly, the plaintiff paid the said amount to the defendant and thereafter, the plaintiff, the defendant, Sh. Raghunath Sarup and Sh. Kewal Krishan left for the office of the Sub-Registrar. On the way, the defendant had stated that she had to record her presence in the school. The plaintiff after recording her presence in the school, left the school and they reached the office of Sub-Registrar at Asaf Ali Road. It is stated that the defendant had purchased the stamp, got the agreement to sell typed, signed it at all the places in the presence of witnesses and presented for registration before the Sub-Registrar, New Delhi. It is stated Suit no. 374/08/84 page 7of 41 Balkishan v. Ram Pyari Sharma that the defendant had accepted the execution of the said agreement to sell and the said agreement to sell was duly registered. The defendant had executed the said agreement with free will. She had full knowledge of the agreement. The defendant had refused to receive the notice. It is stated that the defendant has good terms with Sh. Kewal Krishan and assisting her.
12. On 13.02.1986, statement of the defendant was recorded.
13. Statement of the defendant is as under:
"I used to sign in Hindi as well as in English. I had studied up to 8th Class. I have seen the original agreement to sell dated 28th August, 1982 and I state that the signatures encircled red and marked A, B, C and D on this document are mine. I further state that the signatures encircled red and marked X.1, X.2 and X.3 are not my signatures. I never received the sum of Rs.95,000/- mentioned in this agreement to sell."
14. On the pleadings of the parties, following issues were framed on 13.02.1986:
1. Whether the agreement to sell dated 28th August, 1982 was executed by the defendant in favour of the plaintiff?
2. Whether the plaintiff has been and is ready and willing to perform his part of the contract?
3. Whether the defendant committed the breach of contract?
4. Whether the plaintiff is not entitled to the Suit no. 374/08/84 page 8of 41 Balkishan v. Ram Pyari Sharma decree for Specific Performance of the agreement to sell dated 28th August, 1982 on account of various grounds mentioned in the written statement?
5. Whether the plaintiff is entitled to a decree for Specific Performance of the agreement to sell in the facts and circumstances of the present case?
6. Relief.
15. In the evidence, the plaintiff stepped into the witness box as PW-7 and examined Sh. Sri Chand, SDO, Drainage Sub-Division, Kurushetra, Haryana (PW-1), Sh. Ram Singh, Stamp Vendor (PW-2), Sh. Ishwar Chander Garg (PW-3), Sh. M. M. Gandhi, an official from the State Bank of India, Ambala (PW-4), Sh. S. K. Kaushik, an official from the office of the Sub-Registrar, Asaf Ali Road, New Delhi (PW-5), Sh. J. P. S. Kataria, Sub-Registrar (PW-6) and Sh. V. K. Sakhuja, Hand Writing Expert (PW-8) whereas Sh. Chanranjit Sharma, LR of the defendant appeared as DW-1 and examined Sh. Ram Singh Saini (DW-2), Sh. Naveen Kumar (DW-3) and Smt. Geeta Rani, Head Mistress, DESU Primary School (DW-4).
16. Ex.PW-4/1 and Ex.PW-4/2 are the certified copies of the statement of account of M/s Bansal Construction Co. and M/s H. K. Bansal & Co. for the period from 01.04.1981 to 31.08.1982. Ex.PW-5/1 is the Agreement to sell dated 28.08.1982. Ex.PW-8/1 is the report of the Handwriting expert. Ex.DW-1/P1 is the certified copy of the judgment dated 18.11.1978 passed by the Court of Sh. D. S. Bawa, SJIC in suit no. 374/77. Ex.DW-1/P2 is the certified copy of the sale deed in respect of the property no.I-B/139, Lajpat Nagar, New Delhi.
Suit no. 374/08/84 page 9of 41 Balkishan v. Ram Pyari Sharma
17. I have heard arguments of Sh. Rajendra Dhawan, Advocate for the plaintiff and Sh. Charanjit Sharma, Lr of the defendant in person. I have perused written arguments filed by Sh. Charanjit Sharma, Lr of the defendant.
18. On careful assessment of the evidence on record in the light of the pleadings and arguments addressed / filed, issue-wise finding is as under:
ISSUE NO.1:
19. Ld. Counsel for the plaintiff argued that the plaintiff has been able to prove that agreement to sell dated 28.08.1982 was executed between the plaintiff and the defendant in respect of the suit property for sale consideration of Rs.2,10,000/-. He argued that the defendant in her written statement and statement recorded before the Court on 13.02.1986 admitted her signature at Point A, B, C and D and denied her signatures at Point X.1, X.2 and X.3. He argued that the defendant was an educated lady and employed as a teacher. He argued that the defendant had purchased the stamp paper and executed the said agreement to sell. He argued that the said agreement to sell is a registered instrument. He argued that the stamp vendor (PW-2) stated that he had sold the said stamp paper to the defendant. He argued that the defendant examined the said stamp vendor as DW-2 but his examination in chief was recorded partly. He argued that the DW-2 did not appear either for his remaining examination in chief and cross examination and therefore, the evidence of DW-2 cannot be read in evidence. He argued that the defendant has challenged the testimony of Suit no. 374/08/84 page 10of 41 Balkishan v. Ram Pyari Sharma the PW-2 on two grounds. Firstly, the statement of the PW-2 recorded on 21.05.1990 is unsigned and secondly, signatures of the PW-2 taken on the receipt of diet money dated 29.01.1990 and the signatures of the DW-2 are different. He argued that the DW-2 has not stated that he had not appeared as PW-2 in this case. Rather, he stated that he cannot tell whether he had appeared as a witness or not. He argued that the statement of a witness recorded on oath before the court wouldn't lose its evidentiary value only for the reason that it remained unsigned.
20. Ld. Counsel for the plaintiff further argued that the PW-3 has proved that the agreement to sell was executed by the plaintiff and the defendant, and registered in his presence on 28.08.1982. He argued that PW-5 has proved registration of the agreement to sell Ex.PW-5/1. He argued that the PW-5 was the Sub-Registrar, Asaf Ali Road, New Delhi in August, 1982. He argued that the PW-5 has stated that the defendant had appeared before him at the time of execution of the said document and admitted execution before him. He argued that the PW-5 stated that the defendant had signed at places X.1, X.2 and X.3 in his presence. He argued that the PW-8 Handwriting expert has opined in his report Ex.PW-8/1 that the signatures at places X.1, X.2 and X.3 on the agreement to sell dated 28.08.1982 matches with the signatures of the defendant at places A, C and D on the agreement to sell. He argued that the plaintiff had paid an advance amount of Rs.95,000/- to the defendant and this fact was mentioned in the agreement to sell and acknowledged at the time of registration of the document. He argued that the plaintiff has been able to prove due execution of the agreement to sell Ex.PW-5/1. He Suit no. 374/08/84 page 11of 41 Balkishan v. Ram Pyari Sharma argued that the defendant has taken the plea that the said agreement is forged one. He argued that the defendant has not led any evidence to prove the said agreement is forged and fabricated. He argued that the defendant never filed any suit for cancellation of the agreement to sell. He argued that the DW-1 has even denied the signatures admitted by the defendant. He argued that minor variations in the depositions are not enough to doubt veracity of the testimony of the witnesses in view of the fact that the witnesses were deposing after 20-21 years.
21. Finally, Ld. Counsel for the plaintiff argued that the defendant denied execution of the agreement to sell and admitted her signatures at page no.1, reverse of the page no.1 and page no.3 of the agreement to sell and therefore, the onus of proof had shifted to the defendant. He argued that the defendant has not been able to discharge burden of proof and giving undue importance to minor variations in the testimony of the PWs. He argued that the defendant has not offered any explanation for appending her signatures on the agreement to sell Ex.PW-5/1. He argued that the plaintiff has discharged the onus of proof in respect of issue no.1.
22. Sh. Charanjit Sharma, Lr of the defendant submitted that the plaint was typed on 16.04.1984 and therefore, the plaintiff has made false averment that the defendant was contemplating to sell the suit property on 20.08.1984. He argued that there is no explanation for dropping the witness from the office of Deputy Commissioner, Ambala on 29.01.1990. He argued that the defendant had not executed the alleged agreement to sell.
Suit no. 374/08/84 page 12of 41 Balkishan v. Ram Pyari Sharma He argued that the said agreement does not bear signatures of the defendant at point M, X.1, X.2 and X.3. He argued that there is no reasonable explanation for fixing three years period for execution of sale deed. He argued that the plaintiff has not examined Sh. Kewal Krishan and Sh. Raghunath Saroop. He argued that the PW-6 Sub - Registrar denied the factum of payment before him. He argued that signature of Ram Singh taken on 29.01.1990 is different from signature of DW-2 Ram Singh affixed on depositions dated 10.10.2008. He argued that the plaintiff impersonated someone else as Ram Singh and examined him as PW-2 on 21.05.1990.
23. Sh. Charanjit Sharma argued that Sh. Naveen Kumar s/o Sh. Raghunath Swaroop (DW-3) stated that his father had never come to Delhi during his life time as he was a cancer patient and the cancer was detected in the year 1982 and further, his father was not able to travel by car or bus on 28.08.1982. He argued that the plaintiff has stated in his replication that he had already seen the house whereas in his cross - examination, he stated that he had come in contact with the plaintiff for the first time on 27.08.1982. He argued that the plaintiff stated that he had made the payment before the Sub - Registrar whereas the Sub - Registrar stated that no money transaction had taken place in his presence. He argued that the plaintiff admitted in his cross - examination that he does not have any receipt of the earnest money of Rs. 95,000/-. He argued that the plaintiff stated in his cross examination recorded on 15.03.1995 that the suit property is three side open plot whereas in his cross - examination recorded on 24.05.2008, he stated that it was two side open property. He argued that Suit no. 374/08/84 page 13of 41 Balkishan v. Ram Pyari Sharma in his replication, the plaintiff stated that he had ascertained market value of the suit property by making enquiry from local property dealers whereas in his cross - examination, he stated that he had not made any enquiry from any one with regard to market value of the suit property. He argued that the plaintiff stated that talks had taken place at the shop of his relative Sh. Jyoti Prasad Gupta in Sadar Bazar at 5.00 or 5.30 p.m. on 27.08.1982 and thereafter, he had accompanied Kewal Krishan and the defendant to have a look at the suit property and they had crossed Yamuna river. He argued that Yamuna river does not fall between the Sadar Bazar and Lajpat Nagar.
24. Sh. Charanjit Sharma submitted that the plaintiff stated that thereafter, he had gone to the house of Sh. Kewal Krishan with the defendant in Gandhi Nagar and price of the suit property was settled there and then he had returned to Ambala and came back at 8.00 am or 8.30 am to Delhi. He argued that it is not possible to return to Delhi from Ambala within 8-10 hours at that time. He argued travel time from Ambala to Delhi at that time was 6-7 hours. He argued that PW-6 stated that the document was already bearing signatures of the parties. He argued that the Handwriting report is unsigned and it cannot be read in evidence. He argued that the PW-8 Handwriting Expert is not qualified to give opinion. He argued that the Hon'ble High Court of Delhi has passed strictures against the PW-8 Handwriting expert in Lalit Popli v. Union of India & Ors. 75 (1998) DLT 269 and his evidence is no evidence in the eyes of law.
25. In his written arguments, it is submitted that the Suit no. 374/08/84 page 14of 41 Balkishan v. Ram Pyari Sharma page no.2 of the agreement to sell Ex.PW-5/1 was added later on as perusal of the said agreement shows that the page no.3 has been overwritten on page no.2. It is submitted that PW-2 stamp vendor stated that he does not know Ram Pyari Sharma. The said PW-2 was examined as DW-2 wherein he stated that he had not appeared as a witness in this case earlier. The plaintiff impersonated someone else as stamp vendor since signature of DW-2 is different from signatures on the receipt dated 29.01.1990. The PW-3 stated that he had not seen the defendant signing and he had not attested the signatures of Ram Pyari at any place. The plaintiff impersonated someone as Raghunath since his son DW3 stated that he was a cancer patient and he never visited Delhi.
26. In written arguments, Sh. Charanjit Sharma submitted that the plaintiff admitted that he had not issued any notice/letter to the defendant for executing sale deed. It is submitted that DW-4 Head Mistress stated that no teacher or staff is allowed to leave the school after marking presence in school register. It is submitted that the plaintiff has failed to prove payment of Rs.95,000/-. It is submitted that the plaintiff had never visited Delhi and therefore, he was unable to give the location and particulars of the road and travel time from Ambala to Delhi. It is submitted that the plaintiff has failed to prove that Sh. Raghunath Swaroop had ever visited Delhi and signed as a witness to the said agreement to sell. It is submitted that there is no documentary evidence to show that the defendant had taken leave from the school for execution of the agreement on 27.08.1982. It is submitted that the plaintiff must have impersonated someone else for execution and registration Suit no. 374/08/84 page 15of 41 Balkishan v. Ram Pyari Sharma of the said agreement. It is submitted that the Handwriting expert also opined that the word 'disguised' in his report means that the signatures are different from normal style. There are material contradiction in the plaint, replication and depositions of the plaintiff and his witnesses. The defendant was present on her duty in her DESU school at Rajghat on 28.08.1982. It is submitted that the DW-1 had taken her mother at 6.45 am to her school on his motor cycle and he had picked the defendant from the school at 1.15 pm. The plaintiff has not examined any attesting witness to prove execution of the agreement to sell. It is submitted that the said agreement is forged and fabricated. It is submitted that the plaintiff has failed to prove execution of agreement to sell Ex.PW-5/1.
27. On careful examination of the evidence, it is evident that the depositions of the plaintiff (PW-7) that he had entered into an agreement to sell Ex.PW-5/1 with the defendant in respect of the suit property for sale consideration of Rs.2,10,000/- on 28.08.1982 are credit worthy. There is no reason to doubt veracity of his testimony.
28. The plaintiff examined stamp vendor PW-2 who stated that the stamp on which the Agreement to sell was typed sold by him to Smt. Ram Pyari. He identified his signatures at point X-1. Perusal of the stamp shows that the stamp was purchased for an agreement to sell.
29. The Draftsman PW-3 corroborated testimony of the plaintiff. The PW-3 stated that the agreement was registered in the office of Sub - Registrar, Asaf Ali Road, New Delhi on 28.08.1982 in his presence and in the Suit no. 374/08/84 page 16of 41 Balkishan v. Ram Pyari Sharma presence of Sh. Kewal Krishan and Raghunath Singh. He stated that the defendant had signed in his presence at X.1 and X.3 on the agreement. He stated that the signature of the defendant at the time of execution is at mark M. In his cross - examination, he stated that Sh. Kewal Krishan and Raghunath had signed in his presence. He stated that Kewal Krishan along with the defendant came to him for drafting the document. He stated that he had signed below the witnesses.
30. The defendant admitted her signatures at places marked A, B, C and D on the agreement to sell Ex.PW-1/5 in her statement recorded on 13.02.1986. In her written statement, the defendant admitted that her signatures on the first page and last page of the agreement are genuine and further, her signature on the reverse side of the page under the seal of the stamp vendor, is genuine.
31. The plaintiff examined an official from the office of the Sub - Registrar, Asaf Ali Road, New Delhi (PW-5). He had brought the record pertaining to registration of the agreement to sell Ex.PW-5/1. He deposed that the agreement to sell Ex.PW-5/1 was duly registered with the office vide Registration No.5009, Book No.1, Vol.4727 at pages 1,2,3 on 30.08.1982. PW-5 proved the factum of registration of the agreement to sell dated 28.08.1982.
32. PW-6 Sh. J. P. S. Kataria was the Sub - Registrar, Asaf Ali Road, New Delhi in the August, 1982. He deposed that the document Ex.PW-5/1 was registered with the office of Sub - Registrar, Asaf Ali Road, New Delhi during his tenure. He identified his signatures at point AX, BX and CX. He deposed that the defendant had appeared before him at Suit no. 374/08/84 page 17of 41 Balkishan v. Ram Pyari Sharma the time of execution of the said document and she had admitted the execution before him. PW-5 had registered the agreement to sell Ex.PW-5/1 in discharge of his official duties. There is a presumption that the document was duly executed and registered. The defendant has not been able to rebut the said presumption. His testimony does not suffer from any material contradiction. Rather, he stated that Smt. Ram Pyari had signed at places mark X-1, X-2 and X-3 in his presence. He stated that remarks regarding advance payment was noted by him as per information given by the parties. PW-6 Sub - Registrar has proved execution and registration of the agreement to sell Ex.PW-5/1.
33. DW-3 Sh. Naveen Kumar is son of Sh. Raghunath Swaroop. He stated that signatures at mark E and F are like that of signatures of his father. His father died on 10.10. 94.
34. Contention that the PW-8 Handwriting expert is not a competent witness deserves to be accepted. The PW-8 is not qualified to be a Hand Writing expert. He has no academic qualification of a Hand Writing expert. He is just a matriculate. His evidence is not worth reliance. His report Ex.PW-8/1 cannot be relied upon. Mere fact that he has examined several documents would not make him an expert. He stated that he has done H.E., F.P.E and E.Q.D. from Seattle (USA). In his cross - examination, he has given an evasive reply to the question relating to his qualification. He stated that he has studied up to Inter - mediate standard from Punjab University. He stated that he did not pursue further academic qualification. He stated that he had obtained Diploma from Seattle, USA through correspondence. He has not worked under the guidance of Suit no. 374/08/84 page 18of 41 Balkishan v. Ram Pyari Sharma any expert. He is a self proclaimed handwriting expert. He admitted that he has never gone to USA. He stated that he had given report titled as 'Lalit Popli v. Union Bank of India, CWP No.2265/1996. He stated that use of word disguise in his report is in the sense that the signatures are different from the normal style. His report is absolutely vague. His opinion can't be foundation of any judicial opinion. Hon'ble High Court in the case of Lalit Popli v. Union of India & Ors., 75 (1998) DLT 269; observed that "Mr. Sakhuja is not a person competent to speak about the Handwriting or finger prints. His evidence is not evidence at all." Therefore, opinion of the PW-8 has no evidentiary value.
35. However, opinion of an expert is not the only mode to prove execution of a document. In this case, PW-3 and PW-6 proved execution of the agreement to sell Ex.PW-1/6. Their depositions do not suffer from any legal infirmity.
36. So far as contention that the DW-2 denied that he had appeared as PW-2 and the statement of PW-2 is unsigned is concerned, it can be stated that the statement of Sh. Ram Singh / stamp vendor was recorded on oath on 21.05.1990. There was no cross - examination that he was not the stamp vendor who had sold the stamp papers to the defendant. A statement recorded before the court on oath cannot be discarded for the simple reason that it was not signed. DW-2 has not stated in his examination in chief that he can't tell whether I appeared as a witness or not. Moreover, he failed to appear for his further examination in chief. Such partly recorded examination in chief, in the absence of cross - examination cannot be read in evidence.
Suit no. 374/08/84 page 19of 41 Balkishan v. Ram Pyari Sharma Merely because a person affixed different signatures on two occasions, his testimony does not become unworthy of reliance. It is pertinent to note that the plaintiff would not derive any advantage by impersonating any person as stamp vendor since the defendant admitted her signatures at point C in her written statement and statement recorded on 13.02.1986.
37. So far as contention that the averments that the cause of action arose in August, 1984 are false since the date 16.04.1984 was over-written as 28.08.1984 is concerned, it can be stated that there is no cross - examination of the plaintiff on this aspect. There is no suggestion to the plaintiff that the plaint was infact typed on 16.04.1984 and not on 28.08.1984. Attention of the plaintiff was not invited to the said over-writing. The stamps were purchased on 25.08.1984 and page no. 1 to 5 were typed on the stamp papers and page no.7 is in continuation of the page no.6. Such a typographical error cannot be given undue significance.
38. So far as contention that the page no.2 of the agreement to sell was added later on since the page 3 was written over page no.2 is concerned, it can be stated that the said agreement to sell Ex.PW-5/1 is a registered document. It bears seal and signatures of the Sub - Registrar on reverse side of the page no.2 at mark CX. There is no suggestion to the plaintiff that the page no.2 was inserted later on. There is no suggestion to the PW-3 that the page no.2 was drafted by him later on. PW-5 brought the record from the office of the Sub - Registrar and he compared the agreement to sell Ex.PW-5/1 with the Suit no. 374/08/84 page 20of 41 Balkishan v. Ram Pyari Sharma summoned record. The defendant has not confronted the plaintiff with the over-writing at page no.3. The plaintiff had no opportunity to explain the said over-writing. From the said over-writing, no such conclusion of forgery or fabrication can be drawn.
39. In so far as contention that the PW-2 stated that he does not know Ram Pyari Sharma is concerned, it can be stated that the PW-2 is a stamp vendor. He identified his signature at point X-1. He identified signature of Smt. Ram Pyari Sharma at point C. Further, the defendant admitted her signature at point C in her written statement and statement recorded on 13.02.1986.
40. So far as contention that the PW-3 stated that he has not seen Smt. Ram Pyari Sharma signing and he had not attested her signatures at any place is concerned, it can be stated that evidence of a witness is read in whole and not in piece meal. The PW-3 stated that he cannot identify her signatures excepting signatures which were affixed in his presence. He signed the agreement to sell as a draftsman and not as an attesting witness.
41. So far as contention that the PW-6 stated that no money transaction had taken in his presence whereas the plaintiff stated that he had made payment of Rs.95,000/- in the presence of the Sub - Registrar is concerned, it can be stated that initially, the plaintiff had stated that he had payment of Rs.95,000/- in cash in the presence of the Sub - Registrar. Later on, the plaintiff stated that Rs.95,000/- was not paid before the Sub - Registrar and the defendant had acknowledged having received this amount before the Sub - Registrar. There is no suggestion to the effect that the Suit no. 374/08/84 page 21of 41 Balkishan v. Ram Pyari Sharma plaintiff had not paid the amount of Rs.95,000/- to the defendant.
42. So far as contention that the DW-3 / son of Sh. Raghunath Swaroop stated that his father had never visited Delhi and the signatures on the receipt dated 29.01.1990 were not his father's signature and further, his father was a cancer patient and he died of cancer, it can be stated that the DW-3 stated that signatures at mark E and F on the agreement to sell Ex.PW-5/1 looks like signatures of his father. He stated that his father died in the year 1994 and the cancer was detected in the January, 1982. He stated that his father was not able to seat either in car or bus on 28.08.1982. The DW-3 has not produced any document to show that his father was diagnosed cancer in the year 1982. There is nothing on record except his statement to show that Sh. Raghu Nath Swaroop was unable to travel in the year 1982. He has not produced any evidence regarding stage of cancer in the year 1982. He has not stated that the signatures appearing at mark E and F do not belongs to his father. Such a sweeping statement that his father never visited Delhi at any point of time is unbelievable.
43. So far as contention that the plaintiff has not examined Sh. Raghunath Swaroop and Sh. Kewal Krishan is concerned, it can be stated that Sh. Raghunath Swaroop was summoned for examination on 21.05.1990. Sh. Raghunath Swaroop expired on 10.10.1994. Therefore, the plaintiff cannot be held responsible for non - examination of Sh. Raghunath Swaroop. It is the admitted case of the defendant that Sh. Kewal Krishan was her relative and he was residing with her. It is further case of the defendant that Suit no. 374/08/84 page 22of 41 Balkishan v. Ram Pyari Sharma she had executed a General Power of Attorney dated 14.08.1981 in his favour to act on her behalf in pending court cases. The defendant cancelled the said power of attorney on 04.06.1985 after receiving the summons of the present suit. The defendant had entered appearance through her counsel in this suit on 07.05.1985. The deposition of the plaintiff that Sh. Kewal Krishan has expired remained unchallenged.
44. So far as contention that the plaintiff has not placed any receipt pertaining to payment of Rs.95,000/- to the defendant is concerned, it can be stated that factum of payment of Rs.95,000/- was mentioned in the agreement to sell Ex.PW-5/1 and admitted before the Sub - Registrar at the time of execution and registration of the said agreement. Once the factum of payment was recorded in the agreement to sell Ex.PW-5/1, there was no need for seeking a separate receipt regarding payment of Rs. 95,000/- to the defendant.
45. So far as contention that the plaintiff could not give correct particulars of the roads and locations is concerned, it can be stated that such minor variations are insufficient to raise doubt on veracity of the plaintiff's evidence.
46. So far as contention that the DW-4 stated that no teacher is allowed to leave the school after marking presence in the register is concerned, it can be stated that testimony of DW-4 is general in nature. She had not brought the attendance register of the school. She was posted with the said school in 1998. She has no personal knowledge Suit no. 374/08/84 page 23of 41 Balkishan v. Ram Pyari Sharma regarding the presence of the defendant in the school on 28.08.1982. Rather, the defendant stated in her written statement that Sh. Kewal Krishan had taken her from school in hurry.
47. So far as contention that the plaintiff has stated facts about negotiation in respect of the suit property contrary to the facts pleaded in plaint is concerned, it can be stated that the plaintiff was deposing in the matter 13 years and 26 years after the agreement to sell. No one is expected to give graphic details of the transaction after 26 years. With the passage of time, minor variations and embellishment in the testimony is bound to occur. In the presence of cogent and consistent depositions of PW-2, PW-3, PW-6 and PW-7, such improvements, variations, contradictions and inconsistencies are not material. Rather, it strengthened the plaintiff's case. It is natural that a person cannot remember minute details of the transactions after so many years.
48. So far as contention that it was not possible for the plaintiff to reach Delhi at 8 am on 28.08.1982 since the travel time was about 6-7 hours from Delhi to Ambala is concerned, it can be stated that there is no evidence that during those days, the said road was single and had heavy traffic and travel time was 6 - 7 hrs. There is no evidence that one could not return to Delhi till 8 am if he had left Delhi at 7 pm during those days.
49. So far as contention that Sh. Charanjeet Sharma had taken the defendant to school at 6.45 am and picked her therefrom at 1.15 pm is concerned, it can be stated no credence can be given to such general statement in the Suit no. 374/08/84 page 24of 41 Balkishan v. Ram Pyari Sharma presence of credible evidence of PW-3, PW-5, PW-6 and PW-7.
50. So far as contention that the plaintiff has forged the agreement to sell Ex.PW-5/1 and got the said agreement registered by impersonation is concerned, it can be stated that the defendant has not been able to explain her signatures at mark A, B and D on the agreement to sell Ex.PW-5/1. The defendant has not been able to prove her plea of forgery. The defendant was a teacher. There is no evidence that the defendant had studied up to 8th Standard. There is no evidence as to why she had signed the said document. There is no evidence that the market value of the suit property was Rs.4,50,000/- to 5,00,000/- on 28.08.1982. The defendant has stated that she had cancelled the General Power of Attorney dated 14.08.1981 executed in favour of Sh. Kewal Krishan vide letter dated 04.06.1985. The defendant has not produced the said letter. The defendant fabricated the story of cancellation of the said GPA after service of the summons of the suit and entering appearance on 07.05.1985 with a view to create a false defence.
51. The defendant was a school teacher. It can not be believed that she would sign first and last page of a document without reading the said document. She has not explained as to why she had purchased a stamp paper for an agreement to sell on 28.08.1982.
52. This court is of the opinion that the plaintiff had entered into an agreement to sell in respect of the suit Suit no. 374/08/84 page 25of 41 Balkishan v. Ram Pyari Sharma property with the defendant for sale consideration of Rs. 2,10,000/- on 28.08.1982 vide agreement to sell Ex.PW-5/1. The defendant had purchased the stamp paper for an agreement to sell from the stamp vendor PW-2. The defendant has admitted her signatures at mark C below the seal of the stamp vendor. The stamp vendor PW-2 proved that he had sold the said stamp paper to the defendant on 28.08.1982. The PW-3 had drafted the said agreement to sell Ex.PW-5/1 under the instructions of the defendant. PW-5 proved registration of the said agreement to sell Ex.PW-5/1. PW-5 and PW-6 Sub - Registrar proved execution and registration of the said agreement to sell. They proved signatures of the defendant at mark X-1, X-2 and X-3 on the agreement to sell Ex.PW-5/1. The defendant has admitted her signatures at mark A, B, C and D on the agreement to sell in her written statement, and statement recorded on 13.02.1986. The plaintiff had paid a sum of Rs.95,000/- to the defendant and this fact was recorded in the agreement to sell Ex.PW-5/1 and acknowledged before the Sub - Registrar, and duly recorded by the Sub - Registrar on the reverse side of the page no.2 of the agreement to sell Ex.PW-5/1. The plaintiff has discharged the onus in respect of the issue no.1. The defendant has not been able to prove the contrary.
53. Therefore, it is proved that the plaintiff had entered into an agreement to sell dated 28.08.1982 with the defendant in respect of the suit property.
54. Therefore, the issue no.1 is decided in favour of the plaintiff and against the defendant. ISSUE NO.2:
Suit no. 374/08/84 page 26of 41 Balkishan v. Ram Pyari Sharma
55. Ld. Counsel for the plaintiff submitted that the plaintiff has been and is ready and willing to perform his part of the contract. He argued that the plaintiff had paid a sum of Rs.95,000/- at the time of execution of agreement to sell on 28.08.1982. He argued that the balance amount was payable at the time of registration of sale deed. He argued that the plaintiff has averred and proved that he has been and is ready and willing to perform his part of the contract. He argued that the plaintiff has proved that he had sufficient amount with him to perform his part of the contract.
56. Sh. Charanjit Sharma argued that the plaintiff had not sent any notice/letter to the defendant for executing sale documents. He argued that the plaintiff did not get any demand draft prepared for remaining sale consideration and produced before the defendant in order to show that he was ready to pay the balance sale consideration. He argued that the plaintiff had not purchased stamp papers for execution of sale documents. He argued that the PW-1 stated that the details of the payment brought by him pertain to H. K. Bansal and do not pertain to Sh. B. K. Bansal and that the plaintiff had no contract with Drainage Sub - Division. He argued that PW-4 stated that he could not say whether there is any partner namely Bal Krishan in the said firm. He argued that the plaintiff filed the present suit 2 years after the agreement to sell. He argued that the plaintiff has failed to prove his readiness and willingness to perform his part of the agreement.
Suit no. 374/08/84 page 27of 41 Balkishan v. Ram Pyari Sharma
57. The onus to prove the issue no.2 was upon the plaintiff.
58. Section 16 (c) of the Specific Relief Act, 1963 (Hereinafter referred as 'the SR Act') bars the specific performance of a contract in favour of a plaintiff "who fails to aver and prove that he has 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 terms the performance of which has been prevented or waived by the defendant.
Explanation (ii) to Section 16 provides that for the purposes of clause (c) of Section 16.- the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.
59. Thus, in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract.
60. In N. P. Thirugnanam v. R. Jagan Mohan Rao, AIR 1996 SC 116; Hon'ble Supreme Court held that "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 Suit no. 374/08/84 page 28of 41 Balkishan v. Ram Pyari Sharma 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. 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 ready and was always ready and willing to perform his part of contract."
61. In Man Kaur (Dead) by LRs. v. Hartar Singh Sangha, (2010) 10 SCC 512; Hon'ble Supreme Court observed that "Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient."
62. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the Suit no. 374/08/84 page 29of 41 Balkishan v. Ram Pyari Sharma conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.
63. In Aniglase Yohannan v. Ramlatha, AIR 2005 SC 3503; It was held that 'It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale."
64. The suit was filed by the plaintiff for specific performance of agreement to sell dated 28.08.1982 Ex.PW-5/1. The sale consideration was Rs.2,10,000/-. The plaintiff paid Rs.95,000/- on the date of agreement to sell. The period for performance of the agreement was three years. The suit property is a lease hold property. It was stipulated that the defendant will obtain sale permission from L & DO, Delhi and Income Tax Clearance and will inform the plaintiff by registered post, at least 15 days from the date of the registration of the sale deed. The defendant never applied to L & DO and Income Tax Department for sale permission. The plaintiff averred in the plaint that he was ready and prepared to purchase to the property by paying the balance consideration and to perform his obligations under the agreement to sell and is ready and willing to do so. The plaintiff averred that he always had the requisite amount at his disposal and it is still available with Suit no. 374/08/84 page 30of 41 Balkishan v. Ram Pyari Sharma him. The defendant resisted the suit on false and frivolous grounds. The defendant denied execution of agreement to sell. She stated that the agreement to sell Ex.PW-5/1 is a forged document.
65. The defendant admitted her signature on first page, reverse side of the first page and last page but denied her signatures on page no.2 of the agreement to sell. She set up the defence that son of her cousin had obtained her signatures on certain papers. She stated that she had executed an attorney in his favour and the said attorney was purportedly cancelled after service of summons of the suit and entering appearance in the suit. The plaintiff got the agreement to sell Ex.PW-5/1 registered. It shows his preparedness to purchase the suit property. He had paid nearly half of the consideration at the time of agreement to sell on 28.08.1982. It shows his readiness and willingness to purchase the suit property. Averments made in the plaint clearly indicate readiness and willingness of the plaintiff to purchase the suit property. The period for execution of sale deed was three years. The plaintiff filed the suit within 2 years from the date of agreement to sell. The plaint contains essential facts which lead to inference of plaintiff's readiness and willingness. The plaintiff averred in the plaint that the defendant was contemplating to sell the suit property since the prices of the properties had considerably increased and he had reminded the defendant of her obligations but she had refused to sell the suit property. The defendant stated in her written statement that the market value of the suit property was Rs.4,50,000/- to Rs. 5,00,000/-. The defendant was not interested in selling the suit property due soaring property rates in Delhi. The Suit no. 374/08/84 page 31of 41 Balkishan v. Ram Pyari Sharma plaintiff averred that the defendant had refused to execute the sale and therefore, he filed the suit. The plaintiff categorically deposed that he was always ready and willing to perform his part of the agreement.
66. The plaintiff deposed that he always had the requisite amount of Rs.1,15,000/-. He deposed that he still have that amount. He deposed that he is a Class I contractor of Punjab and Haryana Government. He has agricultural land. He runs a stone crusher also besides number of trucks. The depositions of the plaintiff remained unchallenged. In his cross - examination, he stated that he had personally requested the defendant several times. This testimony was not challenged. The defendant cannot contend that the plaintiff had not purchased stamp papers since it is not the case of the defendant that she had obtained requisite permission for sale from L & DO and Income Tax Department and the plaintiff had failed to make the payment of the balance amount. The balance sale consideration was payable at the time of registration of the sale deed.
67. The plaintiff examined PW-1 and PW-4 in order to prove that the balance sale consideration was available with him. PW-4 brought the certified copy of statement of account pertaining to M/s Bansal Construction Co. and H. K. Bansal & Co. vide Ex.PW-4/1 and Ex.PW-4/2 respectively in respect of the period from 01.04.1981 to 31.08.1982 from the State Bank of India, Ambala. He stated that B. K. Bansal, Minu Bansal and Prithvi Nath Bansal are the partners of M/s Bansal Construction Co. He stated that H. K. Bansal, S. K. Bansal and Urmil Rani are partners of M/s H. K. Bansal & Co.
Suit no. 374/08/84 page 32of 41 Balkishan v. Ram Pyari Sharma Ex.PW-4/1 shows that a sum of Rs. 78,763/- was available with the State Bank of India, Ambala on 30.07.1982 in the account of M/s Bansal Construction Co. PW-1 stated that a sum of Rs. 16,859/- was paid to Bansal Construction co. in respect of work done during 01.04.1982 to 31.08.1982.
68. Contention that the PW-4 stated that he cannot say as to whether there is any partner namely Bal Kishan in this firm would not further case of the defendant. There is no suggestion to the witness that Bal Kishan Bansal and B. K. Bansal are two different persons. Lord Campbell in Cork v. Ambergate etc. and Railway Co. (1851) 117 ER 1229 observed that in commonsense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it had it not been renounced by the defendant.
69. The plaintiff has been able to prove his readiness and willingness to perform his part of the contract.
70. Accordingly, issue no.2 is decided in favour of the plaintiff and against the defendant.
ISSUE NO.3:
71. Ld. Counsel for the plaintiff argued that the plaintiff had paid Rs.95,000/- out of total sale consideration of Rs.2,10,000/- at the time of agreement to sell. He argued that the suit property is a lease hold property and thus, it was agreed and stipulated in the agreement to sell Ex.PW-5/1 that the defendant will obtain sale permission from L & DO and Income Tax Authorities and inform the Suit no. 374/08/84 page 33of 41 Balkishan v. Ram Pyari Sharma plaintiff by registered post, at least 15 days from the date of registration of the sale deed. He argued that the defendant had not obtained sale permission from L & DO and Income Tax Department rather she was contemplating to sell the suit property. He argued that the defendant has committed breach of the contract.
72. Sh. Charajeet Sharma submitted that the plaintiff never tendered the balance sale consideration. He argued that the plaintiff has not proved any demand draft in respect of the remaining sale consideration. He argued that the plaintiff never asked the defendant to execute sale deed of the suit property. He argued that the plaintiff had no funds with him. He argued that stipulation of period of three years for execution of sale deed is unusual term and indicative of the fact that the plaintiff was unable to perform the agreement.
73. The suit property is lease hold property. The defendant was required to obtain sale permission from L & DO and Income Tax Department and inform the plaintiff through registered post at least 15 days in advance from the date of registration of sale deed. The defendant never applied for permission / clearance from L & DO. The defendant has disputed the execution of the agreement to sell. The defendant has termed the agreement forged and fabricated. She stated that she learnt about the agreement to sell from the plaint itself. The defendant never had the intention to perform her part of the contract. Therefore, it is proved that the defendant had failed to perform her part of the contract. The defendant committed breach of the contract.
Suit no. 374/08/84 page 34of 41 Balkishan v. Ram Pyari Sharma
74. Accordingly, the issue no. 3 is decided in favour of the plaintiff and against the defendant.
ISSUE NO.4:
75. Onus to prove the issue no.4 was upon the defendant.
76. In her written statement, the defendant stated that she couldn't purchase any property for her residence at Rs. 2,10,000/-, and market value of the suit property was Rs. 4,50,000/- to 5,00,000/- at that time and she could not have agreed to sell the property at Rs.2,10,000/-. She stated that the suit property is a small house where she is residing with her married son and she cannot purchase any other property for her residence at Rs.2,10,000/- and she is a school teacher and she was not capable to purchase any other property for her residence. She alleged fraud by her General Power of Attorney Sh. Kewal Krishan in collusion with the plaintiff.
77. Ld. Counsel for the plaintiff argued that the defendant has not led any evidence to prove fraud. He argued that the defendant has not led any evidence that the market value of the suit property was Rs.5,00,000/- on 28.08.1982. He argued that the defendant has raised the said plea to evade from performing her obligations under the contract.
78. The defendant has alleged fraud by Sh. Kewal Krishan in collusion with the plaintiff. Onus to prove the Suit no. 374/08/84 page 35of 41 Balkishan v. Ram Pyari Sharma fraud was upon the defendant. The defendant has not led any evidence to substantiate her plea. The defendant has not led any evidence that market value of the suit property was Rs.5,00,000/- in the year 1982. The defendant has not led any evidence that she could not purchase a decent house for residence at Rs.2,00,000/- in the year 1982. The defendant has failed to prove various grounds mentioned in the written statement.
79. Accordingly, the issue no.4 is decided in favour of the plaintiff and against the defendant. ISSUE NO.5:
80. Ld. Counsel for the plaintiff argued that the plaintiff is entitled to a decree of specific performance of the agreement to sell dated 28.08.1982 Ex.PW-5/1. He argued that rise in property rates in Delhi is not a ground to decline the relief of specific performance. He argued that the plaintiff had half of the sale consideration on the date of agreement of sell and the defendant utilized the said amount. He argued that the defendant is solely responsible for delay in the disposal of the suit. He argued that the defendant cannot be allowed to take advantage of her wrongs.
81. Sh. Charanjeet Sharma submitted that the suit property is a sole dwelling house. He argued that he would be rendered shelter less in case relief of specific performance granted. He argued that the plaintiff caused delay in disposal of the suit as the plaintiff had not filed process for 4 years. He argued that the plaintiff is not entitled to a decree of specific performance.
Suit no. 374/08/84 page 36of 41 Balkishan v. Ram Pyari Sharma
82. Under Section 20 of the SR Act, Relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree of specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of the parties, and their respective interests under the contract. No specific performance of a contract, though it is vitiated by fraud or mis-representation can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.
83. In Mohammadia Coop. Building Society Ltd. v. Lakshmi Srinivasa Coop. Building Society Ltd. (2008) 7 SCC 340; the Hon'ble Supreme Court held that jurisdiction of the court to grant specific performance is discretionary and the role of the plaintiff is one of the most important factor to be taken into consideration.
84. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son, AIR 1987 SC 2328; the Hon'ble Supreme Court held that 'S. 20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and Suit no. 374/08/84 page 37of 41 Balkishan v. Ram Pyari Sharma circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
85. In P. S. Ranakrishna Reddy v. M. K. Bhagyalakshmi AIR 2007 SC 1256; it was held that "Rise in the price of an immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. [See P.D' Souza (supra) and Jai Narain Parasrampuria (supra).
86. In Laxman Tatyaba Kankate and anr. v. Taramati Harishchandra Dhatrak, (2010) 7 SCC 717; Hon'ble Supreme Court had taken note of judicial principles applicable to a suit for specific performance and held as under:
"22. The discretion of the court has to be exercised as per the settled judicial principles. All the aforesaid principles are squarely satisfied in the present case and it is the appellants before us who have taken advantage of the pendency of the proceedings. They have used the sum of Rs. 10,000/- which was given as earnest money for all this period, as well as, have enjoyed the fruits of the property. The present case does not fall within the ambit of any of the aforesaid cases specified under Section 20 (2) of the Act. In the present case, it is not only lawful but even equity and facts of the case demand that a decree for specific performance should be granted in favour of the respondent.
25. It was contended on behalf of the appellants that Suit no. 374/08/84 page 38of 41 Balkishan v. Ram Pyari Sharma there has been considerable increase in the price of the land in question. Though that may be true, it cannot be a ground for denying the decree of specific performance to the respondent."
87. The judgment in Laxman Tatyaba Kankate and anr. v. Taramati Harishchandra Dhatrak (supra) is squarely applicable to the present case. In this case, the plaintiff had paid a sum of Rs.95,000/- as advance out of total sale consideration of Rs.2,10,000/- at the time of agreement to sell on 28.08.1982. The defendant failed to apply for sale permission despite stipulation in the said agreement.
88. The defendant enjoyed the said amount of Rs. 95,000/- as well as the suit property for more than two decades. When the defendant was called upon to execute sale deed, the defendant denied execution of sale deed. The defendant raised all false and frivolous grounds which could be taken. The Hon'ble High Court of Delhi vide order dated 15.01.1992 and 06.07.1993 had imposed cost of Rs. 1,000/- and Rs.2,000/- respectively for seeking adjournments. In most calculated manner, her brother Sh. Dwarka Nath moved an application under Order 1 Rule 10 of the Code of Civil Procedure, 1908 for seeking impleadment in the suit on 01.05.1997. In the said application, Sh. Dwarka Nath alleged collusion between the plaintiff and the defendant and alleged himself one of the co-owners of the suit property. In the said application, he stated that he is an illiterate person whereas the defendant is a teacher and educated lady. Sh. Dwarka Nath is natural father of Sh. Charanjit Sharma, Lr of the defendant. The said application was dismissed vide order dated 21.07.1999. Surprisingly, Sh. Dwarka Nath had Suit no. 374/08/84 page 39of 41 Balkishan v. Ram Pyari Sharma appeared for the defendant on 18.10.2004, 29.10.2004, 28.02.2005, 14.03.2005 and thereafter, Sh. Charanjit Sharma was impleaded as Lr of the defendant vide order dated 06.09.2007. Vide order dated 19.03.2005, 26.07.2008, 20.08.2008 and 23.01.2010, the Court observed that the defendant intentionally and calculatedly delayed the disposal of the suit. Grant of specific performance would not give any unfair advantage to the plaintiff. There is no equitable reason to withhold decree of specific performance. Therefore, the plaintiff is entitled to a decree of specific performance of agreement to sell in the facts and circumstances of the case.
89. Accordingly, the issue no. 5 is decided in favour of the plaintiff and against the defendant.
Relief:
90. In view of the finding on the issue no.1 to 5, the suit for specific performance filed by the plaintiff is decreed as under:
A. A decree for specific performance of Agreement to sell dated 28.08.1982 Ex.PW-5/1 is passed in favour of the plaintiff and against the defendant.
B. The defendant is hereby directed to execute sale deed in respect of the property no. II-E/88, Lajpat Nagar, New Delhi measuring 100 sq. yds in favour of the plaintiff within two months today.
C. The plaintiff shall pay the balance sale consideration of Rs.1,15,000/- at the time of registration of the sale deed.
D. The defendant shall deliver vacant possession of Suit no. 374/08/84 page 40of 41 Balkishan v. Ram Pyari Sharma the property no. II-E/88, Lajpat Nagar, New Delhi measuring 100 sq. yds to the plaintiff at the time of execution of sale deed.
E. The plaintiff shall be entitled to the costs of the suit.
F. Decree Sheet be prepared.
G. File be consigned to Record Room.
Order announced in the open (SANJAY SHARMA) Court on 02nd January, 2012 JSCC-Cum-ASCJ-Cum GUARDIAN JUDGE (West) Delhi Suit no. 374/08/84 page 41of 41