Delhi District Court
Shri Abrar Ahmed vs Shri Sunder Nagar on 6 August, 2018
IN THE COURT OF SHRI SANJAY SHARMAI :
ADDL. DISTRICT JUDGE - 02 (EAST DISTRICT)
KARKARDOOMA COURTS : DELHI
Civil Suit No. 964/16
Shri Abrar Ahmed,
S/o Late Sh. Imam Baksh,
R/o A30, Gali No. 8,
Kanti Nagar Extension,
Delhi110051 ................Plaintiff
Versus
1.Shri Sunder Nagar, S/o Sh. Jit Ram,
2. Smt Shyam Wati, W/o Sh. Jit Ram Both resident of IX/5067, Old Seelampur, Delhi110031 ................Defendants Date of institution : 10.06.2011 Date of reserving judgment : 21.07.2018 Date of judgment : 06.08.2018 J U D G M E N T :
The plaintiff filed the present suit seeking recovery of Rs. 20 lacs against the defendants, under Order 37 CPC but it was treated as an ordinary suit for recovery vide order dt. 10.06.2011.
2. In brief, the facts as averred in the plaint are that the defendants agreed to sell property bearing house no. X/4146A, Gali No. 14, Shanti Mohalla, Gandhi Nagar, Delhi (hereinafter referred to as suit property), measuring 60 square yards to the plaintiff for a consideration of Rs. 45 lacs. The said house is owned by defendant no. 2 and defendant Civil Suit No. 964/16 1 of 16 no.1 is her real son. It has been claimed by the plaintiff that defendant no. 2 authorized her son defendant no.1 to execute the agreement to sell and other documents on her behalf in respect of the suit property, in favour of the plaintiff and accordingly, defendant no.1 executed an Agreement to Sell dated 02.02.2011, in respect of the suit property on behalf of defendant no.1 and in favour of the plaintiff. He has further claimed that out of the total consideration amount, he paid Rs. 20 lac as advance to defendant no.1 through two cheques of Rs. 10 lac each and the balance amount was to be paid on or before 04.03.2011 at the time of execution of the sale documents. It is also the case of the plaintiff that the defendants handed him over the photocopies of the title documents of the suit property to him.
He claims that despite receiving the advance payments, the defendants failed to appear before the Sub Registrar on 04.03.2011 and again on 11.03.2011, though he appeared there, and failed to execute the sale documents. On 12.03.2011, the defendants refused to execute the sale documents and also refused to return the double of the earnest money in terms of the agreement. The plaintiff served them with a legal notice dated 14.03.2011 which was replied by the defendants. He claims that the defendants are now trying to create third party interest in the suit property, and hence, the present suit for the recovery of advance payment of Rs. 20 lac given to the defendants.
3. Summons of the suit were served upon the defendants and they contested the suits and filed a common written statement wherein they denied the entire transaction. It was denied that they ever agreed to sell the suit property to the plaintiff or defendant no.1 executed any Agreement to Sell the suit property in favour of the plaintiff or had received a sum of Rs. 20 lac from him. The said agreement was termed to be a forged and Civil Suit No. 964/16 2 of 16 fabricated document. It was also submitted that the suit property is fully occupied by tenants and the rent is only source of income of defendant no. 2 in her old age and therefore, there is no question of her for selling the same. It was specifically denied that defendant no. 2 ever authorized her son defendant no. 2 to enter into any agreement in respect of the suit property. The fact of handling over the title documents of the suit property to the plaintiff were also denied as also the remaining facts as asserted by the plaintiff in the plaint.
4. The plaintiff filed the replication to the written statement of defendants, wherein he reiterated the facts as mentioned in the plaint and denied the pleadings of the defendants.
5. From the pleadings of the parties, issues were initially framed on 08.09.2011, which are as under: ISSUES :
1. Whether the plaintiff has prepared false documents like agreement to sell dated 02.02.2011?OPD
2. Whether the plaintiff himself has withdrawn the amount from his own account in the name of defendant no.2?OPD
3. Whether the defendants have received Rs. 20 lacs in terms of the agreement executed in between the plaintiff and defendant no. 1 and 2?OPP
4. Whether the plaintiff is entitled to the amount of Rs. 20 lac i.e. the suit amount?OPP
5. Whether the plaintiff is entitled to any interest from the date of filing the suit till realization?OPP
6. Relief.
Civil Suit No. 964/16 3 of 16
6. On 07.08.2012, upon an application filed by the defendants, issue no. 5, as framed above, was directed to be deleted, being beyond the scope of the prayer in the suit and an additional issue was framed on the request of Ld. Counsel for parties as issue no. 1A which is as under: 1A Whether any agreement to sell dated 02.02.2011 be executed between the parties for selling the house no X/4146A, Gali No. 14, Shanti Mohalla, Gandhi Nagar Delhi?
7. The issues in the suit now read as under:
1. Whether the plaintiff has prepared false documents like agreement to sell dated 02.02.2011?OPD 1A Whether any agreement to sell dated 02.02.2011 be executed between the parties for selling the house no X/4146A, Gali No. 14, Shanti Mohalla, Gandhi Nagar Delhi?
2. Whether the plaintiff himself has withdrawn the amount from his own account in the name of defendant no.2?OPD
3. Whether the defendants have received Rs. 20 lacs in terms of the agreement executed in between the plaintiff and defendant no. 1 and 2?OPP
4. Whether the plaintiff is entitled to the amount of Rs. 20 lac i.e. the suit amount?OPP
5. Relief.
8. The plaintiff led his evidence and examined himself as PW1 and deposed the facts as stated in the plaint. He relied upon following documents: Civil Suit No. 964/16 4 of 16 Original Agreement to Sell dated 02.02.2011 as Ex. PW1/1;
Copy of cheque number 921575 dated 25.01.2011 as Ex. PW1/2; Copy of bank statement of Syndicate Bank as Ex PW1/3; Copy of cheque no. 670659 as Ex. PW1/4;
Copy of bank passbook of Central Bank from 05.01.2011 to 14.02.2011 as Ex. PW1/5;
Copy of registered GPA, Deed of Will, agreement to Sell, receipt, possession letter and affidavit all dated 08.04.2010 as Ex. PW1/6 (colly); Original registration form dated 11.03.2011 as Ex. PW1/8; Copy of legal notice dated 14.03.2011 as Ex. PW1/9; Original postal receipts as Ex. PW1/10 (colly);
Original courier receipt as Ex PW1/11 and Reply to the legal notice dated 06.04.2011 as Ex. PW1/12.
9. The plaintiff further examined Mohd. Nazeem as PW2, who deposed that he was the attesting witness to Agreement to Sell dated 02.02.2011 and the transaction took place in his presence.
10. He further examined his brother Sh. Jamal Ahmad as PW3, another attesting witness to the said agreement.
11. The plaintiff further examined PW4 Sh. Sudarshan Singh Negi, Manager Syndicate Bank, Delhi who proved the cheque no. 921575 dated 25.01.2011 as Ex. PW4/1 and the statement of account of the firm of the plaintiff M/s NFM Traders as Ex. PW4/2. He further examined PW5 Sh. Subhash Mishra, from Central Bank of India, Ghonda, who proved another cheque no. 670639 dated 08.02.2011 as Ex. PW1/4 and certified copy of the statement of account as Ex. PW5/1. Thereafter, the plaintiff closed his evidence.
12. The defendants also led their evidence. Defendant no. 1 Civil Suit No. 964/16 5 of 16 examined himself as DW1 and deposed the facts as stated in the WS. Defendant no. 2 was examined as DW2 and the evidence of the defendant was closed.
13. I have heard Shri YK Sharma, Ld. Counsel for plaintiff and Sh. Sumit Kumar Khatri, Ld. Counsel for defendants and have carefully gone through the records of the case.
My issue wise findings are as under:
ISSUE No. 1A
14. This issue was framed on 07.08.2012, after the framing of main issues, on the application of the defendants. It is a settled law that issues have to be framed on the basis of the pleadings of the parties and upon the relief claimed in the plaint. It is, however, to be noted that the present suit has been filed by the plaintiff simply for recovery of Rs. 20 lac. There has been no prayer in the plaint for the execution of the Agreement to Sell dated 02.02.2011. The suit was never amended by the plaintiff to include the said relief. Similarly, the defendants have also not claimed anywhere that such an agreement was entered into by them, which is liable to be executed and therefore, this issue appears to have been framed erroneously. Hence, this issue is decided accordingly. ISSUE No. 4.
15. The pivot of the claim of the plaintiff is the Agreement to Sell dated 02.02.2011, an unregistered and deficiently stamped document. The name of the purchaser on the back of the stamp paper is mentioned as Sunder Nagar i.e. defendant no.1, however, defendant no.1 denied the said document itself whereas all the three material witnesses of the plaintiff i.e. he himself as PW1 and the other two witnesses of the plaintiff PW2 and PW3 could not satisfactorily depose as to who purchased it. PW1 deposed Civil Suit No. 964/16 6 of 16 in the cross examination that he purchased the stamp paper on 02.02.2011. PW2 deposed that he was not aware who purchased the said stamp paper, while PW3 deposed that in his presence defendant no. 2 had asked the plaintiff to purchase the stamp paper sometime in January 2011, although it was purchased on 02.02.2011. Hence, the simple fact of purchasing the stamp paper on which the said agreement was recorded is not clear and has been deposed differently by the three witnesses.
16. Admittedly, the said agreement to sell is unregistered though, it conveys that a sum of Rs. 20 lac was paid to the proposed buyer. The law in this respect is now well settled. According to Section 17(1) (b) of the Registration Act 1908 as amended in 2001, even an Agreement to Sell is required to be registered, that too when part payment has been made at the time of its execution. The following judgments can be referred in this regard: In Yellapu Uma Maheshwari & anr. Vs. Budha Jagadheeswararao 2015 (4) CLJ 358 SC it was held as under :
"Any document which has effect of creating and taking away rights in respect of an immovable property must be registered".
It was also held that :
"An unstamped instrument is not admissible in evidence even for collateral purpose until same is impounded".
17. The Hon'ble High Court of Delhi in Om Prakash Singhal Vs. KL Kurian (IA 9528 of 2012 in CS(OS) No. 1433/2012) dt. 19.2.2014, decreed the suit of the plaintiff on an application under Order 15A CPC. In Civil Suit No. 964/16 7 of 16 the said suit, the defendants who were husband and wife took a joint plea that they had entered into an unregistered byana agreement with the plaintiff under which they claimed ownership and possession. The said document was denied by the plaintiff. It was observed by the Hon'ble Court as under :
"The wife of the defendant even if held to be an agreement purchaser of the said flat and even if it were to be held that possession of the said flat pursuant to the said agreement to sell was delivered, has no right to continue in possession thereof in pursuance of the said agreement".
It was further observed that :
"The said byana agreement was an unregistered document and pursuant to the amendment w.e.f. 24.9.2001 of the Registration Act, 1908 and the Transfer of Property Act, 1882, no plea of delivery of possession in part performance is entertainable without the agreement to sell in pursuance to which possession is delivered being registered". (emphasis supplied)
18. In Ramesh Chand Vs. Suresh Chand and Another 188 (2012) DLT 538 it has been held that "Any agreement to sell which is not a registered deed of conveyance (sale deed) would fall short of requirements of Section 54 and 55 of the Act and will not confer any title nor transfer any interest in immovable property except to limited right granted under Section 53A of the Act".
Civil Suit No. 964/16 8 of 16
19. It is because of this legal position, that the plaintiff did not file any suit for specific performance but has filed a simple suit for recovery of the amount allegedly paid as part consideration. Section 49 of the Registration Act provides as under: No document required by Section 17 or by any provision of the Transfer of Property Act 1882, to be registered shall
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or The Transfer of Property Act 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of The Specific Relief Act 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.
20. It is clear from the plain reading of this Section that an unregistered document which is though required to be registered under Section 17 of the Registration Act or under The Transfer of Property Act, cannot be received as evidence of transaction effecting such property. As already observed hereinabove, an Agreement to Sell is required to be registered both under Section 17 of the Registration Act and Section 55 of Transfer of Property Act. In M/s SMS Tea Estates Pvt. Ltd. Vs. M/s Chandmari Tea Company Pvt. Limited (Civil Appeal No. 5820/2011 arising out of SLP (C) No. 24484/2010 dated 20.07.2011), the Hon'ble Apex Court described the term collateral transaction. It was held that "a collateral transaction is not the transaction affecting the immovable property, but a transaction which is incidentally connected with the transaction". In that case, the unregistered lease deed between the parties though required to be compulsorily registered, contained an arbitration Civil Suit No. 964/16 9 of 16 clause/agreement and it was treated to be collateral to the main contract.
21. In the instant case, the plaintiff has claimed to have paid Rs. 20 lac on the basis of the said Agreement to Sell as part payment for the purchase of the property and therefore, its recovery is not collateral to the main transaction as it has an effect over the property and it is on the basis of this agreement that the plaintiff claims to have been conferred the right to recover the suit amount. Hence, the Agreement to Sell dated 02.02.2011 cannot be received in evidence and no reliance can be placed upon it.
22. Apart from the above legal position, the factual position is also quite interesting in the present suit. Admittedly, the suit property is owned by defendant no.2. The plaintiff claims that defendant no.1 was authorized by defendant no. 2 to execute the Agreement to Sell in his favour. However, no such written authorization has been placed on record and even the Agreement to Sell simply states that defendant no.1 is executing the agreement on behalf of his mother. In the absence of any written authority or General Power of Attorney favouring defendant no.1, the onus was upon the plaintiff to prove such an authority and that too, when the defendant no.2 had categorically denied that she had ever authorized defendant no.1 to execute any such agreement or authorized him to sell the suit property. Ld. Counsel for plaintiff had crossexamined both the defendants at length on this aspect but without any success. Their testimonies remained unimpeached, particularly of defendant no. 2, who in her crossexamination maintained that she had never authorized defendant no.1 to sell or deal with the suit property on her behalf. It is her case that the suit property is let out to various tenants and the rent received from them is the only source of her income and livelihood and therefore, there was no occasion for her to enter into any sale agreement in respect of the Civil Suit No. 964/16 10 of 16 said property.
23. It is also to be noted that the only two attesting witnesses to the said agreement were none other than a neighbour and the younger brother of the plaintiff. It was deposed by PW2, the neighbour, that defendant no. 2 had authorized defendant no.1 to execute the documents on her behalf as she was old and aged. It means that defendant no. 2 was also present at the time of execution of Agreement to Sell but still her signatures/thumb impression were never obtained on the said documents to attach authenticity and no reason has been assigned by the plaintiff for it. Thus, the argument of the Ld. Counsel for defendants that the said agreement does not bear the thumb impressions of defendant no.2 since they could not have been forged, has force.
24. Ld. Counsel for plaintiff submitted that the photocopies of the title documents of the suit property in favour of defendant no. 2 were handed over to the plaintiff and have been placed on record. Though, the defendants gave an explanation for it that they were so obtained by the defendant on the pretext of changing the name in the electricity connection, but the same being registered document could have been otherwise obtained by the plaintiff. The receipt regarding the presence of the plaintiff at the office of the Sub Registrar on 04.03.2011 and 11.03.2011 to show his presence on those dates reflect the reason of his presence as "inspection" and not for execution of any document, and thus, does not help the plaintiff. Otherwise, also these receipts are only a farce as plaintiff himself admitted in the cross examination that he had never purchased the required stamp paper for the execution of the sale deed. In his further crossexamination he denied knowledge if between the period 01.03.2011 to 10.03.2011, none of his accounts were having a balance of Rs. 25 lacs. As per his Statement Civil Suit No. 964/16 11 of 16 of Account with Central Bank of India Ex. PW5/1, he was having a maximum balance of Rs. 39,273/ during this period whereas he was having a debit balance in the other account with Syndicate Bank vide Ex. PW4/2. Thus, he never had the capacity to pay the balance consideration price of Rs. 25 lac on 04.03.2011 or 11.03.2011. It has nowhere been deposed by the plaintiff that he had already arranged the said amount from other sources. It only shows that the said receipts have been obtained by the plaintiff to create evidence in his favour, though he had no readiness or willingness to execute the agreement.
25. There is another aspect of the matter. He was admittedly enjoying cash credit facility with Syndicate Bank as admitted by him, to the extent of Rs. 15 lac. He issued a cheque for Rs. 10 lacs from the said account. The cash credit facility is given to a firm or a company to promote the business and to raise the capital. This facility cannot be used by the account holder for personal gains or to purchase property in personal name and thus, this facility was misused by the plaintiff.
26. It is thus, clear that defendant no.1 had no authority or power to enter into the said agreement and he himself denied having executed the said agreement and has alleged that his signatures have been forged upon it. A document executed by a person without any power or authority has no values in the eyes of law. Ld. Counsel for plaintiff pointed out to the cross examination of the defendant no. 2 who deposed that since she is illiterate, all the writing work on her behalf is done by her sons and then clarified that it is so done by her middle son. Defendant no.1 is her eldest son. He also pointed out to the cross examination of DW1/Defendant no.1, who had deposed that his mother is illiterate and is head of the family. However, these facts are not sufficient to prove that defendant no.1, being the eldest Civil Suit No. 964/16 12 of 16 son of defendant no.2, was impliedly authorized by her to sell the suit property. No such inference can be drawn from the said deposition in view of the categorical denial by both the defendants in this regard which remained unchallenged. Hence, there is no hesitation to hold that no relief can be claimed by the plaintiff on the strength of the said agreement to sell Ex. PW1/1. The fact of the plaintiff having paid the suit amount to the defendants is also questionable and would be discussed in the next issues. This issue in any case is decided against the plaintiff.
ISSUE No. 1 to 327. Onus to prove issue no.1 and 2 was upon the defendants while that of issue no. 3 was upon the plaintiff but all the issues are inter connected and therefore are being answered together.
28. It was argued on behalf of the defendants that no money whatsoever was paid by the plaintiff to the defendants and particularly to defendant no.1. It is to be noted that the cheques alleged to have been given by the plaintiff to defendant no.1 for Rs. 10 lac each were bearer cheques and could have been encashed by anyone. The transaction of such a huge amount of money, if made through cheques should have been by way of account payee cheques. It is not the case of the plaintiff that defendant no.1 or 2 were not having bank accounts or they had requested him to issue bearer cheques. It has also been admitted by PW1/plaintiff that he had not obtained any separate receipt for the payment of the said amount. One of the two cheques in dispute was issued on 25.01.2011 i.e. before the execution of the said Agreement to Sell and there is no explanation as to why and under what circumstances the said cheque was issued before the execution of the agreement.
29. Out of the two cheques, the first cheque dated 25.01.2011 Ex.
Civil Suit No. 964/16 13 of 16 PW4/1 is drawn on Syndicate Bank and the other cheque dated 08.02.2011 Ex. PW1/4 is drawn on Central Bank of India. Though both the cheques have been admittedly issued by the plaintiff but both have different signatures of the plaintiff upon them. It is also noteworthy that on both the cheques the signatures of the plaintiff also appear on the reverse side, which were not required as the signatures of only the bearer obtaining the payment are required to be made on the reverse side according to the banking procedure. This very fact was deposed by PW4 from Syndicate Bank. The plaintiff alleges that defendant no.1 had put his signatures on the reverse while defendant no.1 alleged that the plaintiff forged his signatures on the reverse of the two cheques. It is also noteworthy that in the cheque dated 08.02.2011 Ex. PW1/4, the token number assigned by the bank while making the payment is just below the signatures of the plaintiff and his mobile number also appears on its reverse. Thus, the possibility, as alleged by the defendants, that the plaintiff himself withdrew the said amount from the bank and transferred it to his other accounts can not be ruled out.
30. The Statement of Account of the plaintiff of the two banks, as aforesaid, is also on record as Ex. PW5/1 and Ex. PW4/2. The entries in the said statements show that an amount of Rs. 10 lac was debited on 09.02.2011 towards cash payment from his account from Central Bank of India through cheque Ex. PW1/4. Similarly, his account with Syndicate Bank was debited for a sum of Rs. 10 lac as withdrawal in cash through cheque Ex. PW4/1 on 25.01.2011.
31. The plaintiff was specifically asked a question in his cross examination if he had himself withdrawn a sum of Rs. 10 lac on 09.02.2011 from his account with Central Bank of India in cash to which he replied " I do not know". He further deposed that he was unable to say if after Civil Suit No. 964/16 14 of 16 withdrawing the said amount from Central Bank of India in cash, he deposited a sum of Rs. 7 lac in cash in three installments in Syndicate Bank on 12.02.2011 to 17.02.2011. It is also to be noted that there is another entry in his account with Central Bank of India of deposit of Rs. 5,76,200/ dated 08.02.2011 in cash. It cannot be expected that a person would not be aware about the withdrawal and deposit of such huge amount of cash in his accounts. The above evasive answers show that the plaintiff had manipulated the entries in his bank account and therefore, the possibility of he himself having withdrawn the cheque amounts is quite possible. It is also worth mentioning that the plaintiff placed on record the copy of his ITR for the year 20112012 Ex. PW1/D1 which reflects his gross total income for the said assessment year to be Rs. 2,70,255/ which is incompatible with the above transactions and in fact does not reflect those transactions. Issue no. 2 is accordingly, decided against the plaintiff.
32. On the other hand, the plaintiff himself has otherwise failed to prove the fact that the defendants have received the suit amount through the said cheques. The crossexamination of the two defendants has not led to any inference whatsoever that either of them had received the cheques or encashed them. The bank witnesses examined by the plaintiff also could not prove that defendant no. 1 had encashed the cheques. Hence, it has not been proved that the defendants had received Rs. 20 lac in terms of the agreement dated 02.02.2011. Issue no. 3 is therefore, also decided against the plaintiff.
33. As already observed hereinabove, it has been noted that the plaintiff has been using different signatures for operating his two different bank accounts. Similarly, it is also observed that defendant no.1 had also been making different signatures at different places and on different Civil Suit No. 964/16 15 of 16 documents. During his cross examination, he even denied his admitted signatures on record. Therefore, it is not possible to give any opinion about the alleged signatures of defendant no.1 on the Agreement to Sell Ex. PW1/1. Even otherwise, the said document has been held to be having no legal sanctity and therefore, cannot be relied upon. Issue no. 1 is decided accordingly.
ISSUE No. 5/Relief.
34. In view of the above findings, the plaintiff is not entitled to any relief. The suit stands dismissed with no order as to cost. Decree Sheet be drawn accordingly.
File be consigned to Record Room.
Digitally signed byANNOUNCED IN OPEN COURT SANJAY SANJAY SHARMA
Location: Delhi
ON 6th day of August 2018 SHARMA Date: 2018.08.07
15:34:24 +0530
(SANJAY SHARMAI)
Addl. District Judge02 (East)
Karkardooma Courts, Delhi
Civil Suit No. 964/16 16 of 16