Delhi District Court
Kapil Yadav ) vs Master Swapnil Yadav ) on 5 May, 2020
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 517188/2016
CNR No.DLSW010040822016
IN THE MATTER OF:
1. Kapil Yadav )
S/o Sh. Gajraj Singh )
R/o Village Hastsal )
New Delhi ) ... Plaintiff
v.
1. Master Swapnil Yadav )
S/o Late Chandan Singh )
Through his mother/natural guardian )
R/o 334, Kapashera, New Delhi - 110037 )
2. Smt. Meenakshi Yadav )
W/o Late Chandan Singh )
Through his mother/natural guardian )
R/o 334, Kapashera, New Delhi - 110037 ) ... Defendants
Date of institution of suit: 09.02.2009
Date of judgment reserved: 07.02.2020
Date of pronouncement of judgment: 05.05.2020
CS DJ ADJ No. 517188/2016
Page No. 1/51
JUDGMENT
1. Kapil Yadav has preferred a suit for specific performance, permanent injunction and an alternative relief of damages to the tune of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) against Swapnil Yadav, a minor and his mother, namely, Meenakshi Yadav.
2. Kapil Yadav on 21.09.2006 entered into an agreement to sell with regard to an immovable property i.e. 1/4 th share in an agricultural land situated under Khata No. 52/146-5 min, Khasra No. 16//20 (4-
16), 21 (4-16), 27 (0-2), 30//1 (4-12), 10/1 (3-1), 10/2 min (0-16) at village Papdawat, Tehsil Palam, Delhi (hereinafter "suit property") with Swapnil Yadav, a minor through his mother, a natural guardian, namely, Meenakshi Yadav for a total amount of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) against which he paid a sum of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) in cash to Meenakshi Yadav. Meenakshi Yadav on the following day got a fixed deposit receipt opened with Syndicate Bank for an amount of ₹6,25,000/- (Rupees Six lakhs twenty five thousand only). Meenakshi Yadav did not sign any application for no-objection in the favour of Kapil Yadav, as her son was a minor and she had to seek permission to transfer and alienate the minor's property. Kapil Yadav issued a notice dated 20.08.2007 to Meenakshi Yadav and called upon her that he is ready and willing with the entire balance payment and apprised her that he is aware that she had moved an application before the concerned Wards Court seeking CS DJ ADJ No. 517188/2016 Page No. 2/51 permission to transfer, sell the suit property owned by a minor. The said notice issued at the behest of Kapil Yadav also requested Meenakshi Yadav to apply for a no-objection certificate once she receives the permission from the Wards Court and accordingly inform him once the no-objection certificate is sought by her.
3. Because of Swapnil Yadav being a minor, the mother Meenakshi Yadav applied for permission with the concerned Wards Court. The permission was granted to Meenakshi Yadav to alienate and transfer the minor's property by judgment dated 30.01.2009 passed by the Wards Court in Master Swapnil Yadav (minor) Through his mother and natural guardian - Meenakshi Yadav v. State - Guardianship Case No. 111/2008.
4. Kapil Yadav approached Meenakshi Yadav on 01.02.2009 about signing, execution and registration of sale deed, however, Meenakshi Yadav declined to do the needful, hence the present suit by Kapil Yadav against Swapnil Yadav and Meenakshi Yadav. Pleadings
5. The plaintiff, namely, Kapil Yadav (hereinafter "plaintiff") has averred in the plaint that he is an agriculturist, who own lands in the State of Uttar Pradesh and Delhi. The plaintiff had entered into an agreement to sell dated 21.09.2006 with regard to the suit property i.e. 1/4th share in an agricultural land situated under Khata No. 52/146-5 min, Khasra No. 16//20 (4-16), 21 (4-16), 27 (0-2), 30//1 (4-12), 10/1 (3-1), 10/2 min (0-16) at village Papdawat, Tehsil Palam, Delhi owned by a minor, namely, Swapnil Yadav (hereinafter "defendant No.1") through his mother, namely, Meenakshi Yadav (hereinafter "defendant CS DJ ADJ No. 517188/2016 Page No. 3/51 No.2"). As per the agreement to sell dated 21.09.2006 (hereinafter "agreement to sell"), the plaintiff purchased the suit property for a total amount of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) against which he paid a sum of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) in cash to defendant No. 2.
6. The plaintiff has averred in the plaint that the defendant No. 2 on the following day of entering into an agreement to sell with him deposited the amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) in cash with the bank and opened a fixed deposit receipt.
7. As per the averments in the plaint, the clause 1 of the agreement to sell, the defendant No. 2 was to obtain permission to sell the suit property of the minor (defendant No. 1 herein) from the concerned Guardians and Wards Court and appropriate authorities. As per clause 2 of the agreement to sell it was agreed between the parties that the sale deed, qua the 1/4th share of defendant No. 1 would be executed after permission has been obtained from the Court. On 03.07.2007, a petition/application under Section 8 of the Hindu Minority and Guardianship Act, 1956 read with Section 29 of the Guardians and Wards Act, 1890 was moved by the defendant No. 1(sic). It is also averred by the plaintiff that the defendant No. 2 had entered into an agreement to sell with the plaintiff as a mother, who is a natural guardian of the defendant No. 1 to meet the legal necessities of education and upbringing her minor son.
CS DJ ADJ No. 517188/2016 Page No. 4/518. The plaintiff on gaining knowledge that the defendant No. 2 had applied to the Court of law seeking permission to sell the suit property, got a legal notice dated 20.08.2007 issued to the defendant No. 2 calling upon her to inform him about the grant of permission from the concerned Court and further requested the defendant No. 2 to obtain the necessary no-objection certificate and accordingly inform the plaintiff through registered post about herself obtaining the no- objection certificate and thereafter the plaintiff would get the sale deed executed in his favour within 10 days. It is averred by the plaintiff that he has been ready with the balance sale consideration amount to be paid by him to the defendant No. 2.
9. The plaintiff has further averred in the plaint that the Court of Ld. Addl. District Judge - III, West District, Delhi granted permission to the defendant No. 2 to sell the share of defendant No. 1 by judgment dated 30.01.2009. The plaintiff on 01.02.2009 gained knowledge about the grant of permission to sell the suit property and he immediately visited the house of the defendant No. 2 and requested her to take the balance sale consideration, which is lying ready with him and to execute the sale deed in his favour, as per the terms and conditions of the agreement to sell. However, the defendant No. 2 refused to do the needful.
10. The plaintiff has averred in the plaint that the refusal on the part of the defendant No. 2 to execute the sale deed in favour of the plaintiff in terms of the agreement to sell speaks of mala fide on her part and also reveals her dishonest intention to not honour the CS DJ ADJ No. 517188/2016 Page No. 5/51 commitment made by her after having accepted the consideration amount.
11. The plaintiff has repeatedly averred in the plaint that he has been ready and willing to perform his part of the contract, as he had arranged for the balance sale consideration. However, the defendant No. 2 has been evading to perform her part of the obligations as the prices of property in the area have skyrocketed since September 2006. The plaintiff has further urged that he had been constrained to approach this Court, as he has no other efficacious remedy to subvert the greed and dishonest intention of the defendants.
12. With the defendant No. 1 being a minor, the defendant No. 2 preferred her statement of defence by way of a written statement. The prime defence urged by the defendant No. 2 is that not only there is any cause of action for the plaintiff to maintain a suit against the defendants but also her signature on the agreement to sell are false and fabricated.
13. The defendant No. 2 in her written statement has urged that post the demise of her husband, Kanwar Pal Yadav the elder brother of her husband along with son, namely, Tej Pal Yadav have been managing the properties and rendering assistance to defendant No. 2. It is urged by the defendant No. 2 that she did not doubt the intentions of her brother-in-law, namely, Kanwar Pal Yadav and his son Tej Pal Yadav as they are her family members. The defendant No. 2 has averred in her written statement that the plaintiff has preferred the present suit in collusion and connivance with Kanwar Pal Yadav and Tej Pal Yadav. The defendant has urged in her written statement that the plaintiff is CS DJ ADJ No. 517188/2016 Page No. 6/51 the son-in-law of Kanwar Pal Yadav, who must have come across in possession of fixed deposit receipt dated 22.09.2006, as all the affairs with regard to her properties and family affairs were handled by him and the same is being misused by the plaintiff at the behest of Kanwar Pal Yadav and his son Tej Pal Yadav.
14. The defendant No. 2 has denied having entered into any agreement to sell with the plaintiff. The defendant No. 2 has also denied in her written statement that any money in cash to the tune of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) was paid by the plaintiff to her. The defendant No. 2 has further denied that she took a fixed deposit receipt for ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) out of the amount paid to her by the plaintiff. It is averred by the defendant No. 2 in her defence that she managed to make a fixed deposit receipt out of her own savings in the name of her minor son, as she was saving money for the wedding of her daughter, namely, Jyotsana.
15. The defendant No. 2 has also averred in her defence that the permission to sell the suit property was granted to her by the concerned Court of Ld. Addl. District Judge - III, West District, Delhi by judgment dated 30.01.2009. It is averred by the defendant No. 2 that as per the judgment dated 30.01.2009, the valuation of the suit property has been considered and fixed at ₹90,00,000/- (Rupees Ninety lakhs only). It is urged by the defendant No. 2 that the question of selling the suit property to the plaintiff by her at ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) does not arise and negate all the claims made by the CS DJ ADJ No. 517188/2016 Page No. 7/51 plaintiff. It is also urged by the defendant No. 2 that the sale of the suit property, as suggested by the plaintiff under no circumstances can be considered as for the beneficial interest of the minor (defendant No. 1 herein). The defendant No. 2 has urged in her defence for the sake of arguments that the agreement to sell dated 21.09.2006 is a void agreement and void transaction, as the same is purported to be signed and entered much prior to the grant of permission by the judgment dated 30.01.2009 by the concerned Court i.e. Guardians & Wards Court.
16. The defendant No. 2 in her written statement has also urged the defence of the purported agreement to sell being hit by Section 17(1A) of the Registration Act, 1908. It is also urged by the defendant No. 2 that the agreement to sell is also squarely hit by Section 33 and Section 42 of the Delhi Land Reforms Act, 1954, as the land in question is an agricultural land and the defendant No. 1 having become the owner of the same as the suit property devolved upon him on account of the demise of his father, who was a bhumidhar.
17. The defendant No. 2 has urged that no cause of action has arisen in favour of the plaintiff to prefer and maintain the suit against the defendants. It is also urged by the defendant that the suit be dismissed as the same is not only barred by law but also lack merits.
18. To the written statement preferred by the defendant No. 2, the plaintiff did file his replication and reiterated the contents of his plaint. The plaintiff refuted the challenges flanked by the defendant No. 2 in her written statement with great emphasis denied that the agreement to sell in question was a forged and fabricated agreement.
CS DJ ADJ No. 517188/2016 Page No. 8/51Questions
19. Based on pleadings, documents filed by the parties and the submissions advanced, the following issues were framed vide order dated 01.11.2010:
i. Whether the defendant No.1, acting through defendant No.2 entered into an agreement with the plaintiff to sell the land described in para-1 of the plaint, on 21st September 2006? ...OPP ii. Whether the plaintiff paid a sum of Rs.6,25,000/- to defendant No.1 through defendant No.2 as alleged in the plaint? ...OPP iii. Whether the suit is not maintainable in view of preliminary objection No.3 in the written statement? ...OPD iv. Whether the plaintiff is entitled to damages and, if so, to what amount? ...OPP v. Relief.
Evidence led by the Parties
20. To prove his case, the plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/X. PW1 produced and relied upon the following documents:
S. No. Exhibit Mark put Description and Date, if any, of the on the Document Document
1. Ex.PW1/A Original agreement to sell dated 21.09.2006
2. Ex.PW1/B Certified copy of the judgment dated 30.01.2009 in GP Case No.111/2008
3. Ex.PW1/C Office copy of legal notice dated 20.08.2007 CS DJ ADJ No. 517188/2016 Page No. 9/51 (objected to by learned counsel for the defendant on the ground that the document appears to be a mere photocopy and the signatures, as well are doubtful. Objection kept open.
4. Ex.PW1/D Original courier receipt and
5. Ex.PW1/E (Colly.) Original postal receipts and certificate of posting
21. PW2, namely, Mr. Tejpal Yadav, who is stated to be the attesting witness to the agreement to sell also tendered his evidence by way of affidavit Ex.P-2.
22. PW3, namely, Mr. Satish Kumar, JJA, Record Room Sessions, Tis Hazari Courts, Delhi produced the summoned record i.e. case file of guardianship case bearing No.111/08 titled Master Swapnil Yadav v. State, date of decision 30.01.2009 (already marked as Ex.PW1/B).
23. PW4, Mr. Vivek Kumr, Assistant Manager, Syndicate Bank, Bijwasan, New Delhi testified that the record pertaining to fixed deposit receipt (FDR) bearing account No.15365 dated 22.09.2006 was converted to CBS (Core Banking Solution) A/c No.90124010000663 and that the amount of the said FD was transferred to FD account No.90122210003266 in the name of Mr. Swapnil S/o Meenakshi Yadav. PW4 produced a statement dated 12.09.2017 (Ex.PW4/1) and a letter issued by Sr. Branch Manager as Ex.PW4/2.
24. PW5 B.N. Srivastava, a handwriting expert tendered his evidence by way of affidavit Ex.PW5/A and relied upon the following documents:
CS DJ ADJ No. 517188/2016 Page No. 10/51i. Ex.PW5/1 - expert opinion dated 07.04.2018 with regard to the signatures on the agreement to sell dated 21.09.2006 and that of defendant No.2;
ii. Ex.PW5/2 to Ex.PW5/19 - photographs, and iii. Ex.PW5/20 - a compact disc - CDR of digital camera.
25. On the other hand, the defendant No. 2, namely, Meenakshi Yadav (DW1) examined herself as a solitary witness. DW1 tendered her evidence by way of affidavit - Ex.DW1/A. Submissions by the Learned Counsel for the Parties
26. Mr. Sunil Chauhan learned counsel for the plaintiff and Mr. Harvinder Singh learned counsel for the defendants advanced their arguments.
27. Mr. Chauhan learned counsel for the plaintiff submitted that the defendant No. 2 had entered into an agreement to sell with the plaintiff. The learned counsel for the plaintiff further submitted that not only the defendant No. 2 paid an amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) but also the plaintiff had been ready and willing to pay the balance amount of ₹53,67,268/- (Rupees Fifty three lakhs sixty seven thousand two hundred and sixty eight only). The learned counsel further submitted that the plaintiff failed to honour the commitments and discharge the obligations, as per the terms and conditions of the agreement.
28. The learned counsel for the plaintiff submitted that the suit property was owned by a minor (defendant No. 1 herein) and the defendant No. 2 had applied for permission to sell the suit property under Section 8 of the Hindu Minority Guardianship Act, 1956 and CS DJ ADJ No. 517188/2016 Page No. 11/51 Section 29 of the Guardians & Wards, Act, 1956. The learned counsel for the plaintiff submitted that the defendant No. 2 had been very sneaky about the permission to sell the suit property. The learned counsel for the plaintiff further submitted that the plaintiff paid an amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) to the defendant No. 2, who got the same deposited in a fixed deposit receipt the following day and the balance amount was to be paid once the defendant No.2 had secured necessary permission from the Guardians and Wards Court. The learned counsel for the plaintiff further submitted that when the plaintiff approached the defendant No. 2 after the grant of permission by the concerned Wards Court, the defendant No. 2 flatly refused to do the needful.
29. The learned counsel for the plaintiff further submitted that the plaintiff has always been ready and willing to perform his part of the contract, however, the defendant No. 2 is the defaulter, who retracted from the contract and thus the plaintiff has been constrained to knock the doors of the Court. The learned counsel further submitted that the conduct of the defendant No.2 speaks for itself, as she failed to honour her commitments made to the plaintiff and above all sold the suit property to a third party.
30. Mr. Chauhan learned counsel for the plaintiff submitted that the plaintiff had given up the relief of specific performance and permanent injunction, however, the plaintiff intends to press for the relief of damages on the ground that the plaintiff has suffered immense loss and damages despite him having arranged for the balance sale consideration. The learned counsel for the plaintiff further submitted CS DJ ADJ No. 517188/2016 Page No. 12/51 that the plaintiff has not only proved the agreement to sell in question by having one of the attesting witnesses testify in his favour along with the signatures of the defendant No. 2 proved by handwriting expert, but also the plaintiff has led substantial evidence to prove the deposit of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) made by the defendant No. 2 in the bank by way of fixed deposit receipt.
31. The learned counsel for the plaintiff with regard to the defence urged by the defendants qua the fixed deposit receipt submitted that the fixed deposit deposited in the name of her minor son (defendant No. 1 herein) out of her personal savings, as she required the same for her daughter's wedding is an emotive plea but the same cannot disentitle the plaintiff's claim.
32. The learned counsel for the plaintiff further submitted that the defence urged by the defendants is a moonshine and under no manner based on such a frail defence can the relief sought by the plaintiff be declined. The learned counsel for the plaintiff further submitted that it is the case of the defendants that one, Kanwar Pal Yadav may have obtained the fixed deposit receipt dated 22.09.2006. The defendants have also urged that Kanwar Pal Yadav being the elder brother of the defendant No.2's husband abused his power and position with the defendants, as he used to handle all the paperwork and properties related issue post the demise of the defendant No. 2's husband. The learned counsel further submitted that this Court should not lose sight of the fact that despite the allegations of fraud and abuse of power by CS DJ ADJ No. 517188/2016 Page No. 13/51 the brother-in-law of the defendant No. 2, the defendants did not lodge any complaint against him for playing fraud upon them.
33. The learned counsel for the plaintiff submitted that the defendants failed to lead any cogent evidence to dispel the case urged by the plaintiff. The learned counsel for the plaintiff further submitted that the signatures of defendant No. 2 on her written statement, supporting affidavit, evidence by way of affidavit and testimony on in different style and languages. The learned counsel stressed that the same is nothing but a bogey to derail the case of the plaintiff. The learned counsel for the plaintiff further submitted that the plaintiff has led expert evidence with regard to the signatures of the defendant No. 2 on the agreement to sell, written statement, supporting affidavit, evidence by view of affidavit, testimony, et cetera, wherein it has come out that the signatures on the agreement to sell are that of the defendant No. 2 and she has knowingly appended signatures in different languages to mislead the court.
34. Lastly, the learned counsel for the plaintiff submitted that the conduct of a party is one of the most important aspect to be considered by the Court. The learned counsel submitted that the defendant No. 2 armed herself with the permission to sell the suit property by judgement dated 30.01.2009 passed by the concerned Wards Court. Thereafter, the plaintiff approached the defendant No. 2 to execute and register the sale deed in his favour but the defendant No. 2 flatly refused to do the needful. The learned counsel for the plaintiff further submitted that the plaintiff issued a notice dated 20.08.2007 to the defendant No. 2, which was duly addressed to the very same address CS DJ ADJ No. 517188/2016 Page No. 14/51 as mentioned by the defendant No. 2 in the petition preferred before the Wards Court. However, for the reasons best known to the defendant No.2, the defendant No. 2 failed to reply to the aforesaid notice. Thus, the conduct of the defendant No. 2 speaks for itself.
35. Per contra, Mr. Harvinder Singh learned counsel for the defendants contended the submissions advanced by the learned counsel for the plaintiff. The learned counsel for the defendants submitted the agreement to sell in question is not a valid agreement in the eyes of law. The learned counsel further submitted that there are certain additions in the purported agreement to sell which are not countersigned. The learned counsel contended that the genuineness of the agreement to sell is highly questionable, as the figure of 6,25,000 is typed whereas rest all entries in the purported agreement to sell (Ex.PW1/A) are handwritten. The learned counsel further drew attention of the Court to the fact that the plaintiff has failed to prove the source of funds.
36. The learned counsel for the defendants laid great emphasis on as contention, as flagged in the paragraph number 3 of the written statement, which is that without permission from the competent authority, no agreement to sell with regard to a minor could have been executed, thus the claim urged by the plaintiff is baseless and untenable in the eyes of law. The defendant No. 2 was not the competent person to sign and execute the purported agreement to sell.
37. Mr. Singh learned counsel for the defendants submitted that no reliance can be placed upon the purported agreement to sell, as the same has not been adequately stamped in accordance with law. The CS DJ ADJ No. 517188/2016 Page No. 15/51 learned counsel further added that there are legal objections about the purported agreement to sell, and on account of which, under no manner can the agreement to sell, as asserted by the plaintiff can be enforced. The learned counsel for the plaintiff submitted that the suit preferred by the plaintiff is hit by Section 33 and 42 of the Delhi Land Revenue Act, 1954, as the land in question is less than 8(eight) standard acres. The learned counsel for the defendants further submitted that the same contention has been specifically urged in the written statement and no plausible explanation has been urged by the plaintiff in his replication.
38. The learned counsel for the defendants read out the testimony of the plaintiff (PW1) and submitted that the same is marred by shortcomings and overtly reveals the weakness of the plaintiff's claim. The learned counsel for the defendants submitted not only the plaintiff failed to prove his source of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) but also no cogent evidence of himself having the balance sale consideration of ₹53,67,268/- (Rupees Fifty three lakhs sixty seven thousand two hundred and sixty eight only) has been lead.
39. The learned counsel for the defendants further contended that the very basis of plaintiff's claim of having entered into an agreement to sell and purchase the suit property for an amount of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) is baseless, as the same under no manner can be considered as the true value of the suit property. The learned counsel for the defendants further submitted that it is plaintiff's case that the defendant No. 2 did apply for permission to sell the suit property with CS DJ ADJ No. 517188/2016 Page No. 16/51 the Wards Court. The learned counsel for the defendants further submitted that the valuation of the suit property by the concerned Sub- Divisional Magistrate was turned in as ₹90,00,000/- (Rupees Ninety lakhs only) and thus the plaintiff's claim of entering into an agreement to sell by the defendant with him for an amount of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) is fallacious and untenable. The learned counsel for the defendants submitted that the market value of the suit property in the year 2009 was nothing less than ₹1,00,00,000/- (Rupees One crore only).
40. Mr. Singh learned counsel for the defendants shifted the focus of his contentions to the expert opinion of the handwriting expert, namely, B.N. Srivastava (PW5). The learned counsel for the defendants submitted that the expert opinion tendered by the expert witness is the most unreliable piece of evidence led by the plaintiff. The learned counsel for the defendants punched holes in the testimony of the expert witness (PW5) and his expert opinion on the ground that the same fails to consider the alleged signatures of the defendant No. 2 with her contemporaneous signatures.
41. The learned counsel further added that the purported signatures of the defendant No. 2 on the agreement to sell are stated to be of 21.09.2006, whereas the comparative signatures on the written statement, supporting affidavit are to be of 02.05.2009, the signature of the defendant No. 2 on the vakalatnama dated 06.02.2016 and the specimen signature of the defendant No. 2 taken on 16.02.2018 under no manner can be considered to determine the genuineness of the CS DJ ADJ No. 517188/2016 Page No. 17/51 signatures on the purported agreement to sell. To buttress his arguments, the learned counsel for the defendants placed reliance upon Gulzar Ali v. State of H.P.1 and Mohan Buildmart Pvt. Ltd. v. Hitesh Kumar.2 The learned counsel further submitted that the expert opinion has thrown the very basics of handwriting comparison to the gallows by considering signatures as comparative, which are not at all contemporary rather a decade apart. The learned counsel for the defendants submitted that the report of the handwriting expert cannot be relied, as he had been engaged by the plaintiff himself and the report tilts heavily in favour of the plaintiff.
42. Mr. Singh learned counsel for the defendants concluded his arguments on the note that the suit preferred by the plaintiff is bound to be dismissed with exemplary costs and the same may be awarded to the defendants.
43. Mr. Chauhan learned counsel for the plaintiff rejoined his arguments and submitted that the violation of Section 33 of the Delhi Land Reforms Act, 1954 cannot be investigated and such violation can only be looked by the concerned Sub-Divisional Magistrate.
44. The learned counsel for the plaintiff further submitted that the defendant has miserably failed to show and lead any evidence to prove and establish savings of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only). The learned counsel submitted that no proof has been lead by defendant No. 2 that she withdrew an amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) for her daughter's wedding. The learned counsel for the plaintiff stated that the stance 1 (1998) 2 SCC 192 2 258 (2019) DLT 327 CS DJ ADJ No. 517188/2016 Page No. 18/51 and defence urged by the defendant No. 2 in her written statement is hollow and the evidence led by the defendant No. 2 is completely on a different tangent. The learned counsel asserted that this Court must draw an adverse inference against the defendant No. 2.
45. Mr. Chauhan, learned counsel for the plaintiff also rejoined that the testimony of DW1 (defendant No. 2 herein) cannot be relied and the shortcomings of plaintiff' witnesses cannot be considered fatal to plaintiff's case. The learned counsel for the plaintiff placed reliance upon the judgment pronounced by the Apex Court in Kailash Nath Associates v. Delhi Development Authority3 to support his arguments on the aspect of damages claimed by the plaintiff from the defendants.
46. The learned counsel for the plaintiff concluded his arguments on the note that the suit of the plaintiff be decreed in favour of the plaintiff and an order be passed of drawing a decree of damages against the defendants along with the costs of the suit. Reasoning and Findings
47. I, have perused the complete case record, considered, and deliberated over the submissions advanced by the learned counsels for the parties. The issue-wise findings ensue in the following paragraphs of this judgment.
48. Before marching ahead, this Court observes that the plaintiff restricted his claim to the decree of damages to the tune of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) and forgo the relief of decree of specific performance of the agreement to sell dated 21.09.2006 and the decree 3 (2015) 4 SCC 136 CS DJ ADJ No. 517188/2016 Page No. 19/51 of permanent injunction against the defendant with regard to the suit property.
49. This Court also observes that initially the present suit was preferred before the Hon'ble High Court of Delhi and on account of enhancement of pecuniary jurisdiction, the suit was transferred to South West District Court at Dwarka, Delhi vide order 18.02.2016. It is also observed that vide order dated 09.02.2009, the defendants were restrained from creating any third-party interest in the suit property, however, the order dated 09.02.2009 was vacated vide order dated 14.03.2011.
Issue No.1 Whether the defendant No.1, acting through defendant No.2 entered into an agreement with the plaintiff to sell the land described in para- 1 of the plaint, on 21st September 2006?
50. The onus to prove issue No. 1 was casted upon the plaintiff.
51. Section 11 of the Indian Contract Act, 1872 (hereinafter "Contract Act") states that every person is competent to contract, who is the age of majority according to law to which he is subject and who is of sound mind and is not disqualified from contracting by any law to which he is subject.
52. The admitted position amongst the parties is that the defendant No. 1 was a minor on the relevant date i.e. 21.09.2006, the date of signing of the agreement to sell. It is the case of the plaintiff that the defendant No. 2 being the mother, natural guardian of the minor (defendant No. 1 herein) entered into an agreement to sell the suit property with him on 21.09.2006.
CS DJ ADJ No. 517188/2016 Page No. 20/5153. The relevant provisions of law with regard to the agency are enshrined in Chapter X, Section 182 - 238 of the Contract Act. Section 182 of the Contract Act provides the definition of 'agent' and 'principal'. An agent is a person employed to do any act for another, or to represent another in dealings with third person. The person for whom such act is done, or who is so represented is called the principal.
54. Section 183 of the Contract Act states that any person, who is the age of majority according to the law to which he is subject and who is of sound mind may employ agent. Section 184 of the Contract Act provides, who may be an agent. Section 184 states that as between the principal and third person any person may become an agent, but no person who is not of the age of majority and of sound mind can become an agent, so as to be responsible to his principal according to the provisions in that behalf herein contained. Section 186 of the Contract Act states that an authority of an agent may be expressed or implied. Section 187 of the Contract Act defines 'express' authority and 'implied' authority.
55. The plaintiff has urged that the defendant No. 2 entered into an agreement to sell with regard to the suit property with her for the benefit of the minor. It is also averred by the plaintiff in the plaint that the defendant No. 2 did apply with the concerned Guardians & Wards Court seeking permission to sell the suit property and the same was granted vide judgment dated 30.01.2009 passed by Ld. Addl. District Judge, West District, Tis Hazari Courts, Delhi. A certified copy of judgment dated 30.01.2009 passed in GP No. 111/2008 tendered in CS DJ ADJ No. 517188/2016 Page No. 21/51 evidence as Ex.PW1/B and proved by the summoned witness, PW3 - Satish Kumar, Junior Judicial Assistant, Record Room (Sessions), Tis Hazari Courts, Delhi is on record.
56. This Court observes that the defendant has urged the defence that the agreement to sell in question is dated 21.09.2006, which predates the judgment dated 30.01.2009 and thus the permission granted by the Guardians and Wards Court by its judgment has no relevance and bearing on the purported agreement, as the agreement to sell in question is a void agreement.
57. The question whether the guardian of a minor is competent to enter into a contract on behalf of the minor so as to bind him if it is for the benefit of the minor has been answered by the High Court of Delhi in Roomal & Ors. v. Siri Niwas.4 The question came to the High Court in an appeal whether the minors can sue for specific performance. The trial Court held that the agreement to sell could be specifically enforced only by plaintiff No. 1 - Siri Niwas, since he was a major and the minor plaintiffs - plaintiff Nos. 2 and 3 could not sue for specific performance. The trial Court held that the agreement to purchase was beyond the capacity of the guardians and did not bind the minors personally.
58. The High Court disagreed with the view taken by the trial Court and placed reliance upon the decision of the Apex Court in Manik Chand v. Ramachandra,5 wherein the divergence of opinion amongst High Courts was brought to rest. The Apex Court categorically held that a contract entered by a guardian on behalf of the minor is 4 ILR (185) I Delhi 677 5 (1980) 4 SCC 22 :: AIR 1981 SC 519 CS DJ ADJ No. 517188/2016 Page No. 22/51 enforceable. The Court held that under Hindu law the natural guardian is empowered to enter a contract on behalf of the minor and the contract is for the benefit of the minor.
59. The Apex Court held that the doctrine of mutuality is no longer the test and in cases of transfer of property it is not the minor's contract with which the Court is concerned. The Court is concerned with the guardian's powers in Hindu law when he makes the contract on behalf of the minor. If the contract is for the benefit of the minor and within the competence of the guardian the contract is valid and enforceable, whether is for sale or purchase of property. The Apex Court held that the guardian has substantial legal capacity to act on behalf of the minor. The guardian has full contractual powers. The Apex Court further held that the restriction on his powers is that the guardian must act for the benefit of the minor and not to his detriment.
60. His Lordship, Avadh Behari Rohatgi, J. in paragraph No. 15 of the judgment in Roomal & Ors. v. Siri Niwas6 stated the legal position as that a minor can be a "transferor" and a "transferee" of course subject to the restrictions enacted in the Hindu Minority and Guardianship Act, 1956 on the powers of the guardian of a Hindu minor. A contract entered into by a guardian of Hindu minor for purchase or sale of immovable property is specifically enforceable by or against the minor. His Lordship also observed that the authority and competence of the guardian can be challenged only by the minor or someone on his behalf, say maternal uncle or mother. It cannot be 6 ILR (185) I Delhi 677, pp 15 at p. 686 CS DJ ADJ No. 517188/2016 Page No. 23/51 challenged by the vendor, as he is neither the minor's keeper nor parens patriae7 / patria potestas8.
61. Keeping in mind the legal principle culled out in Roomal & Ors. v. Siri Niwas9 and also the fact that the defendant No. 2 herself had preferred a petition seeking permission of the Guardians & Wards Court to sell the suit property, does not upheaval the case of the plaintiff on the defence urged by the defendant No. 2 that she could not have entered into any such agreement of sale with regard to the suit property owned by a minor (defendant No. 1 herein).
62. That said, the question of primordial importance, which needs to be answered first is the genuineness of the agreement to sell, as the defendant No. 2 has out rightly denied entering into any agreement to sell with the plaintiff in her written statement. The defendant No. 2 has also alleged that the purported signatures on the agreement to sell are not her signatures and the same have been forged by the plaintiff in collusion with father-son duo of Kanwar Pal Yadav and Tej Pal Yadav. In short, the defendant No. 2 did flag an objection to the mode of proof of the purported agreement to sell.
63. The dictum in law is as old as the hills, one who avers must prove. To prove the genuineness of the agreement to sell and the signatures of the defendant No. 2, the plaintiff examined not only himself but also one of the attesting witnesses, namely, Tej Pal Yadav and a handwriting expert, namely, B.N. Srivastava.
7It is the right held by the court to take a reasonable decision on the part of a person who is unable to make one form himself. - Free Black's Law Dictionary https://www.freelawdictionary.org/parens-patriae/ 8 paternal authority; the paternal power - Free Black's Law Dictionary https://www.freelawdictionary.org/patria-potestas/ 9 ILR (185) I Delhi 677, pp 15 at p. 686 CS DJ ADJ No. 517188/2016 Page No. 24/51
64. When the Court must form an opinion upon a point of foreign law, or of science, or of art or as to the identity of handwriting or finger impression, the opinions upon that point of persons especially skilled in such matters are relevant facts. Such skilled persons are called experts - See Section 45 of the Indian Evidence Act, 1872.
65. An expert witness is one who has made the subject upon which he speaks a matter of particular study, practice or observation, having special knowledge, and evidence by such expert is of an advisory nature. In order to bring the evidence of a witness as that of an expert, it has to be shown that he has made a special study of the subject or acquired a special experience therein, or in other words that he is skilled and has adequate knowledge of the subject. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of these criteria. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor and often an important factor for consideration along with the other evidence of the case. An expert is not a witness of fact. His evidence is really of an advisory character - See State of Himachal Pradesh v. Jai Lal.10 The credibility of such a witness depends on the reasons stated in support of his conclusions and the date and material furnished which form the basis of his conclusions.
66. Handwriting may be proved by experts as well as by persons who are acquainted with the handwriting of the person by whom it is 10 (1999) 7 SCC 280 CS DJ ADJ No. 517188/2016 Page No. 25/51 supposed to be written. The science of identification of handwriting unlike the science of identification of fingerprints which has attained near perfection is not quite perfect and the risk is therefore, higher - See Murari Lal v. Madhya Pradesh.11 The evidence of a handwriting expert may never be conclusive as it is only opinion evidence.
67. Before a Court may act on the opinion evidence of a handwriting expert, two things must be proved beyond doubt, namely:
(i) the genuineness of the specimen or admitted handwriting, and
(ii) that the handwriting expert is a competent, reliable and dependable witness whose evidence inspires confidence.
68. The evidence of an expert is a rather weak type of evidence and the Courts do not generally consider it as offering conclusive proof and, therefore, safe to rely upon the same without seeking independent and reliable corroboration.
69. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee,12 the Apex Court held that no two signatures written by a person in the ordinary course of writing are precisely alike and differences may arise from various factors such as diversity in the makes of the pen, the level of the signatures the space it occupies, etc. Expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence.
11(1980) 1 SCC 704 12 AIR 1964 SC 529 CS DJ ADJ No. 517188/2016 Page No. 26/51
70. Though from the testimony of the plaintiff (PW1) it is not discernible that who appended his signatures first on the purported agreement to sell. It is observed that PW1 did not testify that which of the two attesting witnesses appended their signatures on the purported agreement to sell. It is also observed that PW1 did testify that Tej Pal Yadav (PW2), one of the two attesting witnesses is related to him as he is married to his sister. It is also observed that it is Tej Pal Yadav (PW2), who during his cross-examination stated that he put his signature on the purported agreement to sell (Ex.PW1/A) after the signatures of the plaintiff and defendant No. 2. PW2 further stated that another attesting witness Kanwar Lal Yadav put his signature on the purported agreement to sell (Ex.PW1/A) after PW2. It is also observed that PW2 during his cross-examination admitted that after the death of the husband of the defendant No. 2 his father, namely, Kanwar Lal Yadav used to help the defendant No. 2 in her financial affairs.
71. PW5 - the handwriting expert during his cross-examination admitted that the disputed signatures, comparative signatures and specimen signatures of defendant No. 2 on which he gave his opinion pertain to different years. It is also observed that the expert witness (PW5) has relied upon colour photographs - Ex.PW5/2 to Ex.PW5/19, which are stated to be taken from a digital camera and generated through a computer and collated on a compact disc, which has been filed in court and tendered in evidence, as Ex.PW5/20. It is observed that neither PW5 nor the plaintiff has filed along with his expert opinion (Ex.PW5/1) the mandatory certificate under Section 65B of the Indian Evidence, Act, 1872. In the absence of such certificate, CS DJ ADJ No. 517188/2016 Page No. 27/51 secondary evidence of electronic record cannot be admitted in evidence, as in present case - See Anvar P.V. v. P.K. Basheer & Ors.13
72. On careful perusal and examination of the opinion of the handwriting expert and his testimony, I am of the view that the same cannot be relied upon as the same is not accompanied by a pre- requisite mandatory certificate under Section 65B of the Indian Evidence Act, 1872 (hereinafter "Evidence Act"), but also the expert opinion is not based upon contemporary signatures of defendant No.
2. It is also observed that all the signatures considered by the handwriting expert are not only in different languages but are spread across months, years to an extent one of the signatures considered by him is 12 years apart.
73. In view of the above observations and findings, this Court holds that the plaintiff has failed to prove the signatures of the defendant No. 2 on the purported agreement to sell. Accordingly, the issue No. 1 is decided against the plaintiff and in favour of the defendants. Issue No.2 Whether the plaintiff paid a sum of Rs.6,25,000/- to defendant No.1 through defendant No.2 as alleged in the plaint?
74. The onus to prove issue No. 2 was also saddled upon the plaintiff. The case urged by the plaintiff is that she had entered into an agreement to purchase/sell of the suit property on 21.09.2006 for a total sale consideration of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) against which he made a payment of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) in cash to the defendant No. 2. It is also the case of the 13 (2014) 10 SCC 473 CS DJ ADJ No. 517188/2016 Page No. 28/51 plaintiff that an amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) paid by him to the defendant No. 2 on 21.09.2006 was deposited by her in a fixed deposit receipt on 22.09.2006.
75. The defendants in their written statement have not only denied having entered into the purported agreement to sell but also have denied any payment of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) made by the plaintiff to defendant No. 2. It has also been urged in defence by the defendant No. 2 in the written statement that the plaintiff be put to strict proof with regard to source of funds and mode of proof of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only).
76. This Court observes that the plaintiff has not placed on record any evidence to prove the availability of funds be it to the tune of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) and/or the balance sale consideration of ₹53,67,268/- (Rupees Fifty three lakhs sixty seven thousand two hundred and sixty eight only). The evidence led by the plaintiff through PW4 - Vivek Kumar, Assistant Manager, Syndicate Bank, Bijwasan, Delhi is with regard to proving the fixed deposit receipt dated 22.09.2006. The said witness proves that a fixed deposit receipt was undertaken in the name of defendant No. 1 by the defendant No. 2.
77. On perusal of the testimony of plaintiff, this Court observes that the plaintiff in his examination-in-chief deposed that accepted the offer of sale made by the defendant No. 2 and on 21.09.2006 he paid ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) in cash as part consideration to the defendant No. 2 in presence of two CS DJ ADJ No. 517188/2016 Page No. 29/51 witnesses, namely, Tejpal Yadav and Kanwar Pal Yadav and an agreement to sell cum, receipt was signed. The plaintiff has further deposed in his examination-in-chief that the defendant No. 2 on 22.09.2006 deposited the amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) in fixed deposit receipt.
78. This Court observes that the plaintiff in his examination-in-chief has not mentioned the bank and branch where the defendant No. 2 deposited the fixed deposit receipt of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only). Whereas, during his cross-examination the plaintiff stated that he is assessed to income tax since 2000 and he can produce his income tax returns for the financial years 2006-2007, 2007-2008 and 2008-2009. The plaintiff further stated during his cross-examination that the payment of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) made by him to the defendant No. 2 was not reflected in his income tax return for the relevant years. The reason voluntarily cited by the plaintiff for non-mentioning of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) was that the same was out of agriculture income and which need not be shown. The plaintiff also stated that he does not know whether the income from agriculture is to be necessarily shown in the income tax return. The plaintiff further stated that his income from agriculture for the relevant year 2006-2007 was between ₹1,50,000/- (Rupees One lakh and fifty thousand only) to ₹2,00,000/- (Rupees Two lakhs only). The plaintiff further stated that in the month of September 2006 he only had one bank account with syndicate Bank, Vikas Puri and he cannot recall what was the balance amount in the said account in the month of CS DJ ADJ No. 517188/2016 Page No. 30/51 September 2006. The plaintiff did voluntarily state that he can tell after consulting the relevant records. The plaintiff testified that he can produce the statement of account for the period 01.04.2006 to 31.03.2007. It is observed that the plaintiff did not lead any evidence to show the bank balance in his solitary bank account for the relevant period i.e. 21.09.2006 until the filing of the suit and/or during the pendency of the present legal proceedings.
79. This Court observes and finds that to prove whether a payment of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) was made by the plaintiff to defendant No. 2, the plaintiff did not lead any documentary evidence to prove whether he had sufficient amount available either in his bank account or in person. The evidence led by the plaintiff to prove that he had made the payment of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) to the defendant No. 2 on 21.09.2006 is the testimony of one of the attesting witnesses, namely, Tej Pal Yadav.
80. The admitted position amongst the plaintiff and the defendants is that Tej Pal Yadav (PW2) is closely related to the plaintiff, as PW2 is his brother-in-law. PW2 during his cross-examination testified that after putting the signatures by the parties and both the witnesses, an amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) was given in cash to the defendant No. 2. During his cross- examination, PW2 also stated that on 22.09.2006 he accompanied the defendant No. 2 to the bank on her asking.
81. From the testimony of PW2, it is observed that a specific question was put to PW2 with regard to that how could he say that the CS DJ ADJ No. 517188/2016 Page No. 31/51 amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) deposited by the defendant No. 2 in bank on 22.09.2006 was the same amount, which was allegedly given by plaintiff to her on 21.09.2006. PW2 answered, "because the amount was same."14 PW2 denied the suggestion that he did not accompany the defendant No. 2 on 22.09.2006. PW2 also denied the suggestion that the amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) deposited by defendant No. 2 was from her savings.
82. On careful perusal of the plaint this Court observes and finds that no such averment has been made by the plaintiff that after the payment of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) by the plaintiff to defendant No. 2 did Tejpal Yadav (PW2) accompany the defendant No. 2 on 22.09.2006 to deposit the said amount in bank and open a fixed deposit receipt.
83. At this stage, I deem appropriate to reiterate the definition of 'proved', 'disproved' and 'not proved', as provided in the Evidence Act. Section 3 of the Evidence Act defines, 'proved' as a fact is said to be proved when, after considering the matter is before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. 'Disproved' is defined as a fact is said to be disproved when, after considering the matter is before eight, the Court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it 14 See Cross-examination of Tejpal Yadav (PW2) recorded on 08.05.2017, p. 143 of the paper- book CS DJ ADJ No. 517188/2016 Page No. 32/51 does not exist. 'Not proved' is defined as a fact is said not to be proved when it is neither proved or disproved.
84. It is the Court's belief and conclusions as to probability that determine the matters of proof but that determination follows the consideration of matters before the Court. The standard is that of a prudent man and its application is case specific to the circumstances of the particular case. The Evidence Act does not confine the matter is before the Court only to evidence admissible under the act but extends to other matters such as affidavits, admissions, confessions, Courts personal visits, demeanour of witnesses, court's own assessment of probative value of evidence and reliability of witnesses, et cetera. Not merely can the court based its conclusion on the effect of the evidence taken as a whole but it may also draw an adverse inference is against a party being in a position to adduce better evidence deliberately abstains from doing so.
85. The term evidence is derived from the Latin word evidere which means "to show clearly; to a certain; to prove". The word 'evidence' is used in common parlance in three different senses:
(i) as equivalent to relevant; (ii) as equivalent to proof, and (iii) as equivalent to the material, on the basis of which courts
come to a conclusion about the existence or nonexistence of disputed facts.
As the definition of the term 'proved' in Section 3 shows, evidence is not equivalent to prove, and it is the third connotation which is correct as evidence is the material on the basis of which the CS DJ ADJ No. 517188/2016 Page No. 33/51 Court considers a fact as proved. Thus, evidence is the means and proof is the result.
86. Mere production and marketing of a document as exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence that is by the evidence of those persons who can vouchsafe for the truth of the facts in issue. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted. The case at hand, not only the defendant No. 2 has denied her signatures on the purported agreement to sell but also she has denied receiving any payment of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) from the plaintiff. Though, the plaintiff has exhorted that he made payment of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) in cash to the defendant No. 2, however, the plaintiff has not adduced any evidence to corroborate his claim to not only show any source of funds at his disposal but also that he was financially sound to make such payment.
87. This Court cannot lose sight of the prevailing practice particularly in cash transactions, where one of the parties claim himself to be an agriculturist that he had sufficient money at his disposal on account of agricultural income. Interestingly, on perusal of an assessment order and intimation under Section 143(1) of the Income Tax Act, 1971 passed by the concerned income tax officer qua the return filed by an income tax assessee for the relevant assessment year it is to be seemingly found that 'agricultural income' does have a mention under a reporting head in the income tax return and the CS DJ ADJ No. 517188/2016 Page No. 34/51 concerned assessment order. In the case at hand, the plaintiff has failed to place any of his income tax returns on record in evidence to show and prove whether he had any agricultural income.
88. Section 114 of the Evidence Act provides that a Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in the relation to the facts of the particular case. The illustration (g) of Section 114 of the Evidence Act further provides that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. In short, law empowers this Court to draw an adverse inference against the party who fails to lead evidence. If a party in possession of best evidence, which will throw light in controversy, withholds it, the Court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him - See Tomaso Bruno v. State of Uttar Pradesh.15
89. The plaintiff did state during his cross-examination that he is an income tax assessee and he has been filing income tax returns since 2000. The plaintiff also stated during his cross-examination that he only has one bank account, however, no bank statement for the period when the purported agreement to sell was entered. The plaintiff did not file any bank statement from the date of the signing of the purported agreement to sell until he stepped into the witness box to record his testimony.
15(2015) 7 SCC 17 CS DJ ADJ No. 517188/2016 Page No. 35/51
90. Even though, the plaintiff has given up the relief of specific performance, but the readiness and willingness of the plaintiff ought to have been proved by him from the date when he stated to have entered into the purported agreement to sell until the date of the passing of the judgment by this court. However, this Court finds that the plaintiff failed to tender any of his income tax returns, bank statements in evidence, as the fact of him having funds available with him, his financial soundness and source of funds all being relevant facts for the adjudication of the dispute at hand.
91. In view of the above observations and findings, this Court holds that the plaintiff has failed to prove that he paid a sum of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) to the defendant No. 2, as alleged in the plaint. Accordingly, the issue No. 2 is decided against the plaintiff and in favour of the defendants.
Issue No. 3Whether the suit is not maintainable in view of preliminary objection No.3 in the written statement?
92. The onus to prove issue No. 3 was casted upon the defendants. The defendant No. 2 in paragraph No. 3 under the heading preliminary objection in her written statement has exhorted that the purported agreement to sell dated 21.09.2006 is stated to having being entered by the defendant No. 2 prior to grant of permission by the competent court - Wards Court by judgment dated 30.01.2009 and thus the purported agreement to sell is a void transaction and the same cannot be enforced and specifically performed.
CS DJ ADJ No. 517188/2016 Page No. 36/5193. In the preceding paragraphs of this judgment, particularly, under the issue No. 1, I have held that the present suit is maintainable by the plaintiff against the defendants by placing fruitful reliance upon the decision of the Apex Court in Manik Chand v. Ramachandra16 and the judgment passed by the High Court of Delhi in Roomal & Ors. v. Siri Niwas17 that the legal position as that a minor can be a "transferor" and a "transferee" of course subject to the restrictions enacted in the Hindu Minority and Guardianship Act, 1956 on the powers of the guardian of a Hindu minor. A contract entered into by a guardian of Hindu minor for purchase or sale of immovable property is specifically enforceable by or against the minor.
94. This Court is not in consonance with the challenge flanked by the defendants that the purported agreement to sell is void and the same cannot be enforced and specifically performed. The plaintiff is held to be within his right to prefer the present suit against the defendants. Accordingly, the issue No. 3 is decided against the defendants and in favour of the plaintiff.
Issue No. 4Whether the plaintiff is entitled to damages and, if so, to what amount?
95. The onus to prove issue No. 4 is upon the plaintiff. Initially, the plaintiff preferred a suit for specific performance, permanent injunction and damages to the tune of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) against the defendants with regard to the suit property. The plaintiff midway 16 (1980) 4 SCC 22 :: AIR 1981 SC 519 17 ILR (185) I Delhi 677, pp 15 at p. 686 CS DJ ADJ No. 517188/2016 Page No. 37/51 gave up the relief of specific performance and permanent injunction, as the defendants had already sold the suit property and confined his relief to that of damages.
96. On perusal of the plaint, it is observed that there is no averment with regard to the plaintiff having suffered damages to the tune of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only). It is further observed that the case urged by the plaintiff against the defendants is that he had entered into an agreement to purchase the suit property for an amount of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) against which the plaintiff paid an amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) in cash. It is further urged by the plaintiff that since the defendant No. 1, the owner of the suit property was a minor, the defendant No. 2 applied for permission to sell the suit property with the concerned Wards court and the same was granted to the defendant No. 2 by judgment dated 30.01.2009. It is also urged by the plaintiff that post 30.01.2009 he approached the defendant No. 2 to transfer the suit property in his name by conveyance, execution and registration of title documents. The defendant No. 2 refused to transfer the suit property in favour of the plaintiff and hence the present suit. It is averred by the plaintiff that he has been ready and willing with the balance sale consideration, however the defendant No. 2 failed to honour and discharge the obligations as per the terms and conditions of the agreement to sell dated 21.09.2006 it is also averred by the plaintiff that on 01.02.2009 CS DJ ADJ No. 517188/2016 Page No. 38/51 he personally visited the residence of the defendant No. 2 and showed his readiness to pay the balance sale consideration.
97. Where a party to a contract breaks it, he must compensate the other party for any loss or damage that arises for which the parties knew would result from the breach when they entered into the contract. However, compensation is not to be awarded for any remote or indirect loss sustained by reason of the breach. The above said legal principle is culled out in Section 73 of the Indian Contract Act, 1872.
98. The Indian Contract, 1872 uses the term 'compensation' rather than 'damages'. Similarly, where a person rightfully rescinds a contract, he is entitled to compensation for the damage arising out of its non-performance. Compensation for breach of contract must place the injured party in the same position in which he would have been, had the contract not been broken. The fundamental basis thus is compensation for the pecuniary loss which naturally flows for the breach. The function of the remedy is to compensate and not punish. Compensation is therefore based on the laws of the plaintiff and not on the game to the defendant.
99. Breach of contract must be proved before approaching the question of compensation. No damages can be awarded by the Court without coming to any conclusion about breach, merely on the ground that the defendant has been profited by the contract. Whether there is breach cannot be decided by a party. It must be adjudicated and must be proved.
100. Breach does not give a direct right to claim the loss suffered. The claim for compensation must be adjudicated by the Court and not CS DJ ADJ No. 517188/2016 Page No. 39/51 a party to the contract. Breach by one party merely gives to the other party a right to sue and have compensation assessed.
101. Clause 11 and Clause 12 of the purported agreement to sell cover the aspect of breach of contract and thus it is imperative to reproduce the same, which reads as under:
"11. That in case the First Party violates the terms and conditions of this agreement, the Second Party can get the transaction enforced through the court of law or the First party will give Nine time of the advance money to the Second party. In case the second Party is unable to get the Registry or P.O.A within the stipulated period the advance money will be forfeited by the First party.
12. That the First Party has assured the Second Party that the said Agriculture Land is free from all encumbrances i.e. mortgage, court injunction, attachment dispute, gift sale deed will is, exchanges etc. and if it is ever proved otherwise the First Party shall be liable and responsible for the same, and pay the Nine Time value agreed upon in this AGREEMENT to the second party."
102. On considering the aspect of breach of contract and the remedy as provided in the purported agreement to sell, the plaintiff would be entitled for an amount, which is 9 (nine) times of the advance money. As per the plaintiff, he paid an amount of ₹6,25,000/- (Rupees Six lakhs and twenty five thousand only) as advance to the defendant No. 2 on 21.09.2006. Thus, in light of the same, the plaintiff would be entitled for an amount of ₹56,25,000/- (Rupees Fifty six lakhs and twenty five thousand only) which is computed by ₹6,25,000 x 9. In short, the plaintiff's claim for damages for breach of the contract against the defendants as per the terms and conditions of the purported agreement to sell shall be confined to ₹56,25,000/- (Rupees Fifty six CS DJ ADJ No. 517188/2016 Page No. 40/51 lakhs and twenty five thousand only) and not ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) provided the plaintiff succeeds to prove actual damages and losses suffered by him.
103. Section 74 of the Indian Contract Act, 1872, as it originally stood read thus:
"When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named."
104. By an amendment made in 1899, the Section was amended to read:
"74. Compensation for breach of contract where penalty stipulated for.-- When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
Explanation.-- A stipulation for increased interest from the date of default may be a stipulation by way of penalty.CS DJ ADJ No. 517188/2016 Page No. 41/51
Exception.-- When any person enters into any bail-bond, recognizance or other instrument of the same nature, or, under the provisions of any law, or under the orders of the Central Government or of any State Government, gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of any condition of any such instrument, to pay the whole sum mentioned therein.
Explanation.-- A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested."
105. Specific performance to perform what he has agreed to do under the terms of the contract, to compel a defendant to perform a positive obligation of his own under this contract. Specific performance is not granted (i) in cases of those contracts for the non-performance of which compensation will be an adequate remedy; (ii) where the enforcement of the terms of the contract is difficult, expensive or ineffective; (iii) where the plaintiff conduct disentitle him from seeking the equitable relief. Specific performance for a contract to deliver goods under a contract of sale is granted subject to the same principles. In any case, specific performance is granted in the discretion of the court, to be exercised on the basis of sound principles.
106. In a suit for specific performance of the contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. A plaintiff who claims specific performance for damages in the alternative, may elect between the two CS DJ ADJ No. 517188/2016 Page No. 42/51 remedies at any time until the hearing if he is not otherwise in default. The claim for such compensation must be pleaded. In determining the amount of any compensation awarded under this section, the Court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872.
107. A claim for an agreed sum, also referred as a claim in debt, is a liquidated claim for the precise sum. It is a definite amount of money fixed by agreement that one party must pay the other party in return of the specified obligation by the other party. Unlike the relief of specific performance, it is available as of right and is not subject to judicial discretion.
108. The mere fact that a liquidated some is provided for in the contract as payable upon breach is not a ground for refusing the relief of specific performance and/or awarding the said liquidated amount to the plaintiff. The plaintiff has to plead and prove the damages suffered.
109. A party is liable to pay damages only if there exists a valid contract and is not liable to pay damages in cases of void or unlawful agreements. Breach of contract must be proved before approaching the question of compensation. No damages can be awarded by the court without coming to any conclusion about breach, merely on the ground that the defendant has been profited by the contract. As mentioned above a breach cannot be decided by a party it must be adjudicated and must be proved.
110. At this stage, I deem appropriate to state that with the issue No. 1 having been decided against the plaintiff and it has been held that CS DJ ADJ No. 517188/2016 Page No. 43/51 the plaintiff has failed to prove the genuineness of the signatures of the defendant No. 2, consequentially there exists no contract amongst the parties. Thus, the question of plaintiff having suffered any damages on breach of contract does not arise.
111. That said, Mr. Chauhan learned counsel for the plaintiff placed heavy reliance upon Kailash Nath Associates v. Delhi Development Authority18 to buttress his arguments and stake claim to the damages.
112. In Kailash Nath Associates v. Delhi Development Authority 19 the Apex Court observed that Section 74 occurs in Chapter 6 of the Indian Contract Act, 1872 which reads "Of the consequences of breach of contract". It is in fact sandwiched between Sections 73 and 75 which deal with compensation for loss or damage caused by breach of contract and compensation for damage, which a party may sustain through nonfulfillment of a contract after such party rightfully rescinds such contract. It is important to note that like Sections 73 and 75, compensation is payable for breach of contract under Section 74 only where damage or loss is caused by such breach.
113. This Court humbly disagrees with the case pleaded by the plaintiff and the submissions advanced by Mr. Chauhan learned counsel for the plaintiff that the plaintiff is entitled for damages against the defendants.
114. The raison d'être for disagreeing with the learned counsel for the plaintiff's understanding is the legal principles culled out by the Hon'ble Supreme Court with regard to the law of compensation of breach of contract under Section 74 of the Indian Contract Act, 1872 18 (2015) 4 SCC 136 19 ibid.
CS DJ ADJ No. 517188/2016 Page No. 44/51in the landmark judgment of Kailash Nath Associates v. Delhi Development Authority & Anr.20
115. The Apex Court in Kailash Nath Associates v. Delhi Development Authority & Anr.21 after traversing through all the relevant cases holding the field of law of damages and compensation under Section 74 of the Contract Act held that in cases where a public auction is held, the forfeiture of earnest money may take place even before an agreement is reached, as bid money is to be accepted only after the earnest money is paid. In such cases, Section 74 of the Contract Act may not be attracted on its plain language because it applies only "when a contract has been broken".
116. The relevant extract of paragraph No. 43 of Kailash Nath Associates v. Delhi Development Authority & Anr.22 is reproduced, as under:
"43. On a conspectus of the above authorities, the law on compensation for breach of contract under Section 74 can be stated to be as follows:-
1. Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the Court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where 20 ibid.21
ibid.
22ibid.
CS DJ ADJ No. 517188/2016 Page No. 45/51the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the Court cannot grant reasonable compensation.
2. Reasonable compensation will be fixed on well known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act.
3. Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the Section.
4. The Section applies whether a person is a plaintiff or a defendant in a suit.
5. The sum spoken of may already be paid or be payable in future.
6. The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded.
7. Section 74 will apply to cases of forfeiture of earnest money under a contract. Where, however, forfeiture takes place under the terms and conditions of a public auction before agreement is reached, Section 74 would have no application."
CS DJ ADJ No. 517188/2016 Page No. 46/51[Emphasis added by underlining and highlighting(bold) of text]
117. The position in law is well settled that in a suit for specific performance the burden to prove readiness and willingness upon the plaintiff remains constant not only at the time and date of entering into a contract but also during the entire lifetime of the said suit. This Court observes from the careful perusal and examination of the plaint that nowhere has the plaintiff averred to show and prove his readiness and willingness to make payment of the balance sale consideration as per the purported agreement to sell. It is observed from the examination-in-chief of the plaintiff (PW1), particularly, paragraph No. 7 of the evidence by way of affidavit (Ex.PW1/X), 23 which is reproduced in verbatim as under:
"7. That on 01.02.2009 the plaintiff visited the house of defendant's with the balance sale consideration money and requested her to execute the sale deed in terms of the agreement Ex.PW-1/A but she refused to accept the balance sale consideration and also to execute the sale deed in my favour. Thus breached the agreement to sell Ex.PW-1/A and by breaching the agreement to sell Ex.PW-1/A defendants have caused damages to me to the tune of Rupees 59,92,268.00 (Fiftynine lac Ninety Two Thousand Two Hundred Sixty Eight only). Had defendants not breach the agreement to sell then I would not have suffered damages of Rs. 59,92,268.00 (Fiftynine lac Ninety Two Thousand Two Hundred Sixty Eight only) that was capped by me for paying to the defendants. I am also entitled to Rs. 59,92,268.00 (Fiftynine lac Ninety Two Thousand Two Hundred Sixty Eight only) as damages with interest @12% per annum. On the claim of Rupees 59,92,268.00 (Fiftynine lac Ninety Two Thousand Two Hundred Sixty Eight only) as damages from the date of the breach of agreement till the payment is made."23
See p. 279 - 283 of the paper book at p. 281 CS DJ ADJ No. 517188/2016 Page No. 47/51
118. During the cross-examination, the plaintiff (PW1) on 22.01.2013 stated that on 01.02.2009 he took the payment of the balance amount to the defendants in cash. PW1 also stated that the amount was not reflected in his income tax return for the relevant year. PW1 voluntarily stated that the amount was received from sale of another property, whose sale did not reflect in his income tax return for the relevant period as the same was an ancestral property. PW1 further stated that he had not deposited the sale proceeds of that particular property with any bank account. PW1 further stated part of the sale proceeds received by him from the sale of ancestral property was utilised towards construction/renovation of his house and the part amount was available with him. PW1 stated that he did not deposit it with any bank. PW1voluntarily stated as the amount was to the tune of ₹5.00 to ₹10.00 lakhs.
119. Further during his cross-examination PW1 stated that the house was constructed in the year 2010 at Hastal, Delhi and he has not placed any documentary proof of its construction. PW1 testified that he had spent around ₹20.00 to ₹25.00 lakhs upon construction of his house. PW1 denied the suggestion that he did not sell any property and had received no sale proceeds. PW1 also denied the suggestion that he did not offer any cash as balance payment to the defendants as he did not have any such amount with him on 01.02.2009.
120. On 23.01.2017, a specific question was put to the plaintiff (PW1) during his cross-examination that how he suffered damages of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two CS DJ ADJ No. 517188/2016 Page No. 48/51 hundred and sixty eight only). The plaintiff retorted that he sold their ancestral/agricultural land and the amount of the same was capped by them for purchasing another land/property for about 1½ years and said amount was used due to the refusal of defendant No. 2. However, the plaintiff did admit that the aforesaid fact was not mentioned in his plaint as well as in the evidence by way of affidavit.
121. The position in law is well settled that evidence cannot be led beyond pleadings. In the case at hand, the plaintiff has merely averred in the plaint that he approached the defendants on 01.02.2009 at their residence and requested the defendant No. 2 to take the balance consideration amount which is ready with him and to execute the sale deed in his favour as per the terms of agreement to sell, as the Court has granted permission to the defendant No. 2 to sell the suit property.24 It is observed that there is no averment in the plaint with regard to the plaintiff having disposed of any of his ancestral property and the sale proceeds received by him on sale of such ancestral property was available at his disposal. It is further observed that the plaintiff himself testified that out of the sale proceeds received by him from the sale of the ancestral property he had spent around ₹20.00 to ₹25.00 lakhs on construction of his house and he did not deposit the balance amount with any bank as the amount left with him was only ₹5.00 to ₹10.00 lakhs.
122. This Court observes that claim of the plaintiff having been ready and willing to pay the balance sale consideration as on 01.02.2009 is not convincing as the plaintiff (PW1) himself testified 24 See pp. 4 of the plaint, p. 175 of the paper book CS DJ ADJ No. 517188/2016 Page No. 49/51 that the amount available with him after having sold an ancestral property and undertaken construction was only to the tune of ₹5.00 to ₹10.00 lakhs. It is also observed that the plaintiff failed to bring on record any of his income tax returns, bank statements or any shred of evidence to show that he had been ready and willing with the balance sale consideration to pay to the defendants as per the purported agreement to sell. It is further observed that the plaintiff did not lead any evidence to show that he had been ready and willing with the balance sale consideration not only from the date of the purported agreement to sell i.e. 21.09.2006 but also on 01.02.2009 and as late as on the date when the plaintiff stepped in the witness box to testify. Thus, the question of plaintiff having suffered damages of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) does not arise.
123. In view of the above observations and on application of the legal principles culled by the Hon'ble Apex Court in Kailash Nath Associates v. Delhi Development Authority25 this Court holds that the same does not come to the aide of the plaintiff and the same is clearly distinguishable on facts and above all not only has the plaintiff failed to prove the underlying agreement to sell dated 21.09.2006 but also the fact that he suffered any actual damages.
124. Accordingly, the issue No. 4 is answered against the plaintiff and in favour of the defendants.
Issue No. 5Relief 25 ibid.
CS DJ ADJ No. 517188/2016 Page No. 50/51125. With the issue Nos. 1, 2 and 4 having being held and ruled against the plaintiff, I am of the considered opinion that the suit of the plaintiff shall fail, as the plaintiff is not entitled for any relief against the defendants.
126. In view of the above observations and findings, this Court rules and orders that the plaintiff is held not to be entitled for any damages of ₹59,92,268/- (Rupees Fifty nine lakhs ninety two thousand two hundred and sixty eight only) against the defendants and the suit is dismissed. All interim applications, if any, stand disposed of as infructuous.
127. The ends of justice would be served by awarding the costs of the suit to the defendants. The reason for awarding costs of the suit to the defendants is that the plaintiff embroiled the defendant No. 1, who was a minor at the point in time when the plaint was preferred and attained adulthood during the pendency of the present legal proceedings and the defendant No. 2, a widow in the present suit, which the plaintiff miserably failed to prove. The costs of the suit are to be paid by the plaintiff to the defendants. Let decree sheet be drawn accordingly.
128. File be consigned to record room only after due compliance and necessary action, as per Rules.
HARGURVARIND Digitally signed by HARGURVARINDER SINGH JAGGI ER SINGH JAGGI Date: 2020.05.05 15:51:43 +05'30' Pronounced in the open Court (Hargurvarinder Singh Jaggi) on May 05, 2020 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No. 517188/2016 Page No. 51/51