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[Cites 17, Cited by 0]

Delhi District Court

R.K. Nangia vs Mr. K.L. Khanna (Since Deceased) on 26 November, 2022

DLND010000492006




IN THE COURT OF ADDITIONAL DISTRICT JUDGE­ 01,
  NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
                       NEW DELHI
 Presided over by :­ MS. VIJETA SINGH RAWAT (DHJS)

CS No. 57963/16

1. R.K. Nangia
S/o Late Sh. F.C. Nangia
R/o D­93, Vikas Puri,
New Delhi
                                                               ......... Plaintiff
                                                      Versus

Mr. K.L. Khanna (since deceased)
through & Ors.

(i)   Ms. Sunita Mehra
D/o Late Sh. K.L. Khanna
R/o I­750, Plam Vihar, Gurgaon,
Haryana

(ii) Ms. Anita Arora
D/o Late Sh. K.L. Khanna
R/o G­201, Naraina Vihar,
New Delhi

(iii) Ms. Ritu Bhatia
D/o Late Sh. K.L. Khanna
R/o G­201, Naraina Vihar,
New Delhi


CS No. 57963/16
Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs                   Page no. 1 of 23
 (iv) Ms. Nikita Singh
D/o Late Sh. K.L. Khanna
R/o G­201, Naraina Vihar,
New Delhi

(v) Sh. Sanjiv Khanna
S/o Late Sh. K.L. Khanna
R/o G­201, Naraina Vihar,
New Delhi
                                                           ........ Defendants

                         Suit presented      On : 19.12.2006
                         Arguments Concluded On : 09.11.2022
                         Judgment Pronounced On : 26.11.2022


JUDGMENT

1. This is a suit of specific performance of agreement to sell dated 11.04.2005 executed by the plaintiff (since deceased) in favour of the defendant for sale of first floor and terrace rights with proportionate right over the land underneath of the property bearing no. G201, Naraina Vihar, New Delhi - 110028, admeasuring 153 sq. yds. (hereinafter, referred to as 'the suit property').

1.1 The suit was initially filed against Sh. K.L. Khanna who expired on 02.01.2008. Thereafter, vide order dated 16.10.2008, his wife Smt. Kusum Khanna alongwith children namely Ms.Sunita Khanna, Ms.Anita Arora, Ms.Ritu Bhatia, Ms.Nitika Singh and Sh. Sanjiv Khanna were impleaded as LRs of deceased Sh. K.L. Khanna. Thereafter, on 18.05.2017, Smt. CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 2 of 23 Kusum Khanna also expired and now the only LRs defending the suit are Ms.Sunita Khanna, Ms.Anita Arora, Ms.Ritu Bhatia, Ms.Nitika Singh and Sh. Sanjiv Khanna.

PLEADINGS

2. It is the case of the plaintiff that defendant (since deceased) is the owner of the suit property vide perpetual lease deed dated 18.08.1966 executed by the DDA upon which, he constructed a single storey house. Since, the plaintiff was looking for a property to build his own house, the defendant (since deceased) agreed to sell the suit property to him on 11.04.2005 and the deal was struck through Harpal Properties having office at B­191, NIA Phase I, New Delhi. It was agreed that the total sale consideration would be Rs. 50,00,000/­. The defendant (since deceased) even handed over copy of lease deed to the plaintiff. The plaintiff has asserted that Rs. 5,00,000/­ was given to the defendant (since deceased) at the time of execution of the agreement as earnest money by way of cash and is reflected in the agreement. Additionally, it is also stated that on the same day by way of cheque no. 684123 dated 13.04.2005 drawn on Canara Bank, Rajouri Garden, another Rs.5,00,000/­ was also paid to the defendant (since deceased) on the same day. Thereafter, the plaintiff has relied upon a receipt acknowledging payment of Rs.10,00,000/­ as earnest money to urge that said amount was paid. It is stated that the parties had agreed to get the property converted from lease hold to free hold from DDA at the expense of the defendant (since deceased) and sale deed was to be CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 3 of 23 executed within 60 days from execution of conveyance deed in favour of the defendant (since deceased). Accordingly, the plaintiff states that the defendant (since deceased) applied for conversion of the property from lease hold to free hold on 03.04.2006 and the conversion charges of Rs.1,08,178/­ vide demand draft no. 542237 dated 03.04.2006 and balance amount of Rs.1740/­ on 03.10.2006 had been paid for by the plaintiff. It is stated that the conveyance deed was executed on 26.10.2006 but the defendant (since deceased) did not intimate the plaintiff regarding execution of the same. The plaintiff alleges that the defendant (since deceased) kept evading him and according to the plaintiff, on account of appreciation of value of the suit property, the defendant (since deceased) developed dishonest intention. Hence, a legal notice dated 26.11.2006 was served upon the defendant (since deceased). Thereafter, it is stated that on 08.12.2006, the defendant (since deceased) demanded Rs.25,00,000/­ over and above the earlier agreed amount and continued to remain adamant even on 12.12.2006. The plaintiff states that on 14.12.2006 the plaintiff was informed by the local property dealers that the defendant (since deceased) was negotiating with other buyers. Hence, the present suit came to be filed.

2.1 The plaintiff has stated that he has been ready and willing to perform his part of the contract and is also ready to pay the balance consideration at the time of execution of the sale deed and handing over of possession of the suit property.

CS No. 57963/16

Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 4 of 23 2.2 Per contra, by way of written statement, the defendant (since deceased) has alleged that the plaintiff has not approached the Court with clean hands. To elaborate on the same, even though it is admitted that agreement to sell was executed, the receipt dated 11.04.2005 has been stated to be forged and fabricated. It is also stated that on 03.05.2006 after negotiations, Rs.5,00,000/­ received as earnest money was also returned. The defendant (since deceased) also has stated that the plaintiff had agreed to even receive the refund of conversion charges paid by him but, had been avoiding the defendant (since deceased) and had refused to accept the same. It is denied that the defendant (since deceased) had the capacity and the intention to pay the sale consideration urging that even the earnest money was paid from the account of sister­in­law of the plaintiff. Reliance has also been placed on a notice dated 10.06.2006 wherein the defendant (since deceased) has also admitted the refund of earnest money. It is stated that the contract was rescinded and cannot be specifically enforced. It is also stated that the prayer clause seeks relief qua the entire property whereas the subject matter of the suit is only first floor, so the suit is also liable to be dismissed. It is also stated that the agreement to sell being not registered is not admissible in evidence.

2.3 By way of replication, it is denied that legal notice dated 10.06.2006 was issued or that the defendant (since deceased) has suppressed material facts regarding refund of the earnest money.

CS No. 57963/16

Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 5 of 23 It is also denied that the receipt dated 11.04.2005 is forged and fabricated.

ADMISSIONS AND DENIAL OF DOCUMENTS

3. During admission and denial of documents, the following documents have been admitted by the defendant (since deceased). 

     Sr.             Document                                       Ex. No.
     No.
     1               Agreement to sell and purchase                 Ex. P­1
     2               Challan no. 366361 of Central Bank dated Ex. P­2
                     03.04.2006


ISSUES

4. Vide order dated 20.07.2007 the following issues were framed :

1. Whether a valid and enforceable agreement dated 11 th April, 2005 was executed between the parties? OPP
2. Whether the plaintiff is entitled for specific performance of the agreement dated 11th April, 2005? OPP
3. Whether the suit is liable to be dismissed for suppression of material facts i.e. non disclosure of the notice dated 10th June, 2006? OPP
4. Relief.
EVIDENCE
5. To prove its case the plaintiff himself stepped in the witness box and tendered his evidence by way of affidavit as PW­1/X. PW1 Sh. R.K. Nangia, relied upon documents :
CS No. 57963/16
Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 6 of 23 Sl. Documents Exhibited as No.
1. Copy of perpetual deed dated 18.08.1996 Marked as P1
2. Agreement to sell and purchase dated Ex. PW1/A 11.04.2005 (already Ex.
P1)
3. Receipt date 11.04.2005 Ex . PW1/B
4. Photocopy of cheque dated 30.04.2005 Mark as P2
5. Challan dated 03.04.2006 Ex. PW1/C (already Ex.
P2)
6. Copy of pay order dated 03.04.2006 Marked as P3
7. Copy of challan dated 03.10.2006 Marked as P4
8. Copy of conveyance deed dated 26.10.2006 Marked as P5
9. Legal notice Ex. PW1/D (de­exhibited and marked as Mark P6)

5.1 PW­2 Sh. Shoti P. Gera and PW­3 Sh. Harpal Trehan who tendered their affidavits Ex. PW2/A and Ex. PW­3/A to prove execution of receipt Ex. PW­1/B. 5.2 PW­4 Sh. N.S. Bhati, ASO from the office of Deputy Director LA (Residential), to prove the following documents: 

 Sl. No. Documents                                                                 Exhibited as
 1                 Letter dated 13.03.2016                                         Ex. PW4/1
 2                 Letter dated 31.03.2006 signed by K.L. Ex. PW4/2
                   Khanna addressed to Commissioner DDA
 3                 Letter by an advocate Sh. Duli Chand Malik Ex. PW4/3
                   on behalf of K.L.Khanna dated 25.08.2005


CS No. 57963/16
Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs                                Page no. 7 of 23
                    requesting for withdrawal of demand of
                   Rs.2,62,520/­

5.3         All the witnesses were cross­examined by Ld. Counsel for

the defendant (since deceased). Vide order dated 12.02.2015 plaintiff evidence was closed by Ld Predecessor of this Court.

5.4 Thereafter, Sh.Sanjeev Khanna, LR/son of deceased defendant (since deceased) entered into the witness box as D1W1. However, vide order dated 30.03.2022, his evidence was taken off record at instance of his counsel.

5.5 Ms. Sunita Mehra, LR(ii)/ daughter of the deceased defendant (since deceased) tendered her evidence by way of affidavit Ex. D2W­1/A and was duly cross­examined.

FINAL ARGUMENTS :

6. Final arguments have been advanced by Sh. Vineet Chaudhary, Ld counsel for plaintiff, Sh. Naresh Thanai, Ld. Counsel for defendants no. 1, 3 and 6 and Sh. Rajeev Kapoor, Ld counsel for LR no.(ii) of the defendant. Written submissions were filed on behalf of the plaintiff and reliance was placed upon following judgments :

a) Sughar Singh vs. Hari Singh (Dead) through Lrs & Ors. Civil Appeal no.5110 of 2021 decided by Supreme Court of India on 26.10.2021.
b) Syed Dastagir vs. T.R. Gopalkrishna Setty Civil Appeal no.2061 of 1987 decided by Supreme Court of India on 11.08.1999.
c) P. Ramasubbamma vs. V. Vijaylakshmi & Ors. In CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 8 of 23 Civil Appeal no. 2095 of 2022 decided on 11.04.2022
d) Sujan Maity vs. Raj Kumar Koley 2017 SCC OnLine CAL 107 decided on 17.01.2017
e) A. Kanthamani vs. Nasreen Ahmed (2017) 4 Supreme Court Cases 654 decided on 06.03.2017
f) V. Ramesh vs. Smt. Bhavani A.S. No.1026 of 2019 decided on 13.02.2020
g) S. Kaladevi vs. V.R. Somasundaram & Ors. (2010) 5 Supreme Court Cases 401 decided on 12.04.2010
h) Ameer Minhaj vs. Dierdre Elizabeth (Wright) Issar Civil No.18377 of 2017 decided on 04.07.2018 I) Om Prakash (Dead) TH. His Lrs vs. Shanti Devi & Ors. Civil appeal no.20 of 2015 decided on 05.01.2015 and Ld Counsel for the LR no. (i) has relied upon the following judgments:
a) Shri Jinesh Kumar Jain vs. Smt. Iris Paintal & Ors. CS (OS) 1154/ 1989 decided on 10.07.2012.
b) Shree Aadhiya Build Well Pvt. Ltd. vs. Sh. Kartar Singh & Ors. CS (OS) No.325/2007 decided by High Court of Delhi on 09.02.2016.
c) Om Prakash Aggarwal vs. Raj Kumar Mittal 258 (2019) Delhi Law Times 248.
d) Mohinder Kaur vs. Sant Paul Singh Civil appeal no.2869­2870 of 2010 decided on 01.10.2019.
e) I.S. Sikandar (D) By Lrs. vs. K. Subramani & Ors.

Civil Appeal 7306 of 2013 decided on 29.08.2013.

ISSUEWISE FINDINGS A) Whether a valid and enforceable agreement dated 11 th April, 2005 was executed between the parties? OPP (Issue no.1)

7. The onus to prove the issue is upon the plaintiff.

7.1 It has been argued on behalf of the plaintiff that the parties had entered into a valid and enforceable agreement to sell which CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 9 of 23 is evidenced by Ex. P­1 and has not been disputed by the defendant (since deceased).

7.2 Per contra, as regards the validity of the agreement Ex P­1, it has been submitted during the final arguments that the same is not denied. However, in view of the stipulation in Ex. P­1 'That if the second party fails to pay the balance consideration amount within the stipulated period, the earnest money paid by his shall stand forfeited be returned and if the first party infrings any terms or conditions of this agreement then he is liable to pay the double the same amount of the earnest money.', it has been argued that the agreement to sell Ex. P­1 was not enforceable because it is proved that the plaintiff had rescinded the contract and had also refunded the earnest money and so, nothing remained to be enforced.

7.3 Thus, the parties are at common ground qua the validity of agreement to sell Ex. P­1 and it has not been shown that the same was driven by way of any coercion, fraud, misrepresentation or incapacity and as such, the agreement to sell Ex P­1 is held to be valid. However, on account of its enforceability, a dispute has arisen whether the same has been appropriately, rescinded.

7.4 On this aspect, heavy reliance has been placed by the LRs of the defendant upon the following clause:

'That if the second party fails to pay the balance consideration amount within the stipulated period, the earnest money paid by his shall stand forfeited and if the first party infring any terms or conditions of this CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 10 of 23 agreement then he is liable to pay the double amount of the earnest money.' and thereafter, on the proof that Rs.5,00,000/­ was deposited back into the account of sister­in­law of the plaintiff and so, it has been urged that nothing survived to be enforced.
7.5 But it is to be borne in mind that as per Section 66 of The Indian Contract Act, 1872 (hereinafter, referred to as 'The Contract Act'), the rescission of the contract is required to be communicated or revoked in the same manner and subject to the same rules as apply to communication and revocation of a proposal. To prove the same, the LRs of the defendant have relied upon legal notice dated 10.06.2006 which is marked DX where there is acknowledgement of receipt of Rs.5,00,000/­ into the account of sister­in­law of the plaintiff. However, the document was denied by the plaintiff and was not proved by examining its author. Even otherwise, it cannot be said to be a revocation of the contract as envisaged by law because even therein, there is a protest that the amount was refunded without intimating the plaintiff. The plaintiff has denied all suggestions that the amount was deposited pursuant to an agreement qua revocation and no affirmative evidence to the contrary has been adduced by the LRs of the defendant. It has also been admitted by DW­2 that prior to depositing the aforesaid amount, no letter or notice was issued to the plaintiff by her father and also she could not corroborate specifically when the revocation was orally conveyed.
CS No. 57963/16
Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 11 of 23 7.6 Thus, the Court is constrained to hold that it has not been established that the agreement to sell was revoked and is unenforceable.
7.7 The issue is therefore, decided in favour of the plaintiff.

B) Whether the plaintiff is entitled for specific performance of the agreement dated 11th April, 2005? OPP (issue no.2)

8. The onus to prove the issue was upon the plaintiff.

8.1 It has been argued on behalf of the plaintiff that Ex P­1 has been duly proved followed by receipt Ex. PW­1/B and it is therefore, established that out of Rs.50,00,000/­ as consideration amount Rs.10,00,000/­ was paid on the day of the agreement i.e. 11.04.2005 (equally by way of cash and cheque). Further, it has been argued that the plaintiff also demonstrated his willingness and readiness to perform his part of the contract as even on 03.04.2006, he arranged and paid Rs.1,08,178/­ towards conversion charges evidenced by Ex. P­2 and also as late as 03.10.2006 when he further deposited ground rent and interest thereon, as per Ex. PW­1/LR­ii. It has been submitted that the readiness and willingness of the plaintiff to perform his obligation is also evident from his legal notice Mark P­6. It has been submitted that the capacity of the plaintiff to pay for the remaining amount of sale consideration can be gauged from his cross­examination conducted on 16.11.2012 where he stated that he owned 5 properties and that, the capacity of the plaintiff to be CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 12 of 23 able to make the balance payment can also be ascertained from the aforementioned cross­examination, where he had stated that he was intending to apply for bank loan but did not apply for the same between 11.04.2005 to 11.04.2006 because the defendant (since deceased) had not intimated to him, regarding the conversion of the property. It has been vehemently argued that the readiness and willingness on the part of the plaintiff does not imply that she should be carrying such amount in his pocket. It has further been submitted that the agreement to sell was never cancelled. It is adumbrated that even though the defendant (since deceased) raised a defence that the agreement had been revoked with consent of the plaintiff, pursuant to which the earnest money of Rs.5,00,000/­was returned to the plaintiff into the account of his sister­in­law, it could not be proved by the defendant (since deceased) firstly, because the return was unilateral without consent of the plaintiff and secondly, because the earnest money was not Rs.5,00,000/­ but Rs.10,00,000/­.

8.2 Per contra, the argument on behalf of LR no.(i) of the defendant has been that the receipt Ex. PW­1/B has not been proved as there is material contradictions in the testimony of PW­1, PW­2 & PW­3 regarding the date and time of its execution. It has also been argued that Ex. PW­1/B has also not been proved because not only is the execution of document shrouded in doubt but it is also evident to naked eye that signatures of the plaintiff have been forged at points 'G' and 'H' of Ex. PW­1/B which are also in different inks. Thereafter, CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 13 of 23 leading the Court to the admission of the plaintiff when examined as PW­1, it has been shown that no receipt qua payment of Rs.5,00,000/­ way of cash was obtained and only reliance has been placed upon Ex. P­1 where the defendant (since deceased) consciously has written 'pay order' to precede 'cash' implying that money only exchanged hand by way of cheque which was for a sum of Rs.5,00,000/­ only. Therefore, it has been submitted that the defendant (since deceased) failed to establish that the earnest money paid was of Rs.1,00,000/­ apart from the conversion charges.

8.3 It has been argued by Ld. Counsel for LRs no. (iii) to (v) of the defendant that the plaintiff has not proved his readiness and willingness merely by making deposits of conversion charges because it has been shown from his cross­examination that the conversion charges demanded by the DDA were already under challenge by the defendant (since deceased) vide letter dated 31.03.2006 which is Ex. PW­4/2 and without consent of the defendant (since deceased), the plaintiff deposited the amount and so, was in possession of the original challan Ex. P­2. It has also been submitted that the incapacity of the plaintiff to perform his obligation is also evident from his admissions that Rs.5,00,000/­ by way of cheque was drawn on the account of his sister­in­law and so was the demand draft of the conversion charges. Leading the Court through the admission that when Rs.5,00,000/­ was paid by way of cheque, the same was done from the account of sister­in­law of the plaintiff because the CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 14 of 23 plaintiff did not have sufficient funds, it has been argued that from the inception, the plaintiff did not have the readiness and willingness to perform the contract. Thereafter, referring to the admission of the defendant (since deceased) that even upto 11.04.2006, there was no bank balance to the tune of Rs.40,00,000/­, it has been sought to be shown that the plaintiff was not equipped to perform the contract.

8.4 The contentions on the basis of the arguments can be crystallized as under:

a) Whether Rs.10,00,000/­ exclusive of conversions charges being a substantial amount of the sale consideration, was paid?
b) Whether the payment of conversion charges was without consent of the defendant (since deceased) and does not reflect the readiness and willingness on the part of the plaintiff to perform the contract?

8.5 Before embarking upon to analyze the evidence on record to arrive at the findings, this Court deems it fit to recapitulate the law on specific performance of contract as provided in Chapter II of The Specific Relief Act, 1963 (hereinafter, referred to as 'SRA'). In U.N. Krishnamurthy (since deceased) through LRs vs A.M. Krishnamurthy Civil Appeal No.407 of 2022 arising out of SLP (C)No. 19643 of 2018 decided on 12.07.2022, the Apex Court had held as under:

'33.....In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:­ CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 15 of 23
i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and
ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963.' 8.6 Further, it has been held as under:
'21.....It is well settled that in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money.
'25...To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, 10the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.
'29.......In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors.4, this Court reiterated that Section 16(c) of the Specific Relief Act, 1963 envisages that the Plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which were to be performed by him 355 IA 300, at pg. 372:AIR 1928 PC 2084 (1995) 5 SCC 115 12other than those terms, the performance of which has been prevented or waived by the Defendant. In N.P. Thirugnanam(supra) this Court said that the continuous readiness and willingness on the part of the Plaintiff was a condition precedent for grant of the CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 16 of 23 relief of Specific Performance.
30.This Court, in effect, held that for determining whether the Plaintiff was ready and willing to perform his part of the agreement it is necessary for the Court to consider the conduct of the Plaintiff prior and subsequent to filing the suit for specific performance. The relevant part of the judgment is extracted herein below:- "5....Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiffis a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief..."
34.There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar7cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position,willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati v. Rakesh Kumar.' 8.7 The only basis to establish that Rs. 10,00,000/­ was paid is Ex PW­1/B and testimony of PW­2 as a witness. Ex. PW­1/B was denied by the defendant (since deceased). To prove the same, the plaintiff examined himself, PW­2 and PW­3. The plaintiff stated that cash of Rs.5,00,000/­was paid when Ex, PW­ 1 was signed. Thereafter, he stated that on the same day, cheque was given at 5.00 pm in the evening. On 21.02.2012 during cross­examination, he admitted that no separate cash receipt was issued as it was mentioned in the agreement Ex. P­1. Thereafter, his attention was drawn to Ex P­1 where 'pay order/cash' is CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 17 of 23 mentioned to which he replied that he did not pay the aforesaid amount of Rs.5,00,000/­ either by way of pay order or demand draft. Thereafter, he stated that Ex PW­1/B was prepared at about 2.00 - 3.00 PM. He stated during cross­examination on 30.05.2012 that Ex. PW­1/B was executed on the first floor of property no. G­112, Naraina Vihar, Delhi. He denied the suggestion that Sh. K.K. Khanna and Mr. Sharma (owner of property no. G­112) were not present during its execution as they did not sign it. However, PW­2 during his cross­examination on 16.04.2013 stated the same was executed in the house of the defendant (since deceased) in the presence of his wife and son as well even though, they are not witnesses to the same. Whereas, PW­3 has stated that receipt Ex PW­1/B has been prepared at G­ 112, Naraina Vihar at about 6.00­6.30 PM and in the presence of same witnesses who were present at the time of execution of Ex.

P­1. Therefore, the circumstances surrounding the purported execution of Ex PW­1/B is suspicious and the execution of the document has not been established by the plaintiff. As per records, half hearted attempt has been made to get the document examined as FSL. As per order dated 28.02.2014, the interim application for obtaining the opinion of handwriting expert was dismissed calling upon the parties to prove their case by way of evidence. However, thereafter again vide order dated 12.12.2018, a similar application was dismissed observing that no request for examination of handwriting expert was made at the time of plaintiff's evidence. The order was thereafter not challenged and attained finality. It is also pertinent to observe that purported CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 18 of 23 signatures at points G & H are in different inks. Through cross­ examination of PW­1, it has also been shown that the witnesses to Ex PW­1/B were also property dealers and had affinity with the plaintiff. Thus, the authenticity of Ex PW­1/B, the onus to prove which was upon the plaintiff, has not been conclusively established. Therefore, all that remains is Ex P­1 where it is recorded that only Rs.5,00,000/­ had been given towards the sale consideration on 11.04.2005.

8.8 To further establish that there was readiness and willingness on the part of the plaintiff, much has been argued regarding his having deposited the conversion charges with DDA to show his intention. However, there are two observations in this regard:

a) As already observed above, Ex PW­1/B has not been proved yet, it is worth noting that it is silent that the balance amount of Rs.40,00,000/­ is inclusive of payment towards conversion charges. Even the agreement Ex P­1 is not stipulating that the conversion charges are inclusive in the purchase amount of Rs.50,00,000/­. There is therefore, no evidence of when such a subsequent alteration in the contract was done.
b) Also, a question has been raised whether the payment to DDA was without consent of the defendant (since deceased).

Here, it is pertinent to note that PW­4 has proved letter Ex. PW­ 4/2 which was issued by the defendant (since deceased) to the Commissioner, DDA seeking correction of demand of misuse charges for conversion of the property that was served upon CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 19 of 23 DDA on 05.04.2006. Even though initially, the plaintiff stated that the conversion charges were paid by the defendant (since deceased) and pay order was prepared by the plaintiff, subsequently, he admitted that he had deposited it himself, without the consent of the defendant (since deceased) and so Ex. P­2 was produced from his own custody. Thus, the overwriting of date on Ex P­2 assumes importance as initially, the date appears to be 31.05.2006 which has been overwritten as 03.04.2006. On this aspect the witness was cross­examined but he pleaded his ignorance regarding the handwriting vide which the date was altered and particulars of demand draft were filed in even though, the original has been produced by him and on record is Ex. PW­4/2 relied upon by the plaintiff himself where the defendant is contesting the amount.

c) Therefore, by reliance upon such payment, it cannot be asserted that there was readiness and willingness on the part of the plaintiff especially, when this amount has also been admitted to have been deposited on demand draft drawn on the bank account of the sister­in­law of the plaintiff.

8.9 The plaint merely states that the plaintiff was ready and willing to perform his part of the contract and pay the balance consideration at the time of execution of sale deed and handing over of possession but there is no averment either in the plaint and no iota of evidence on record to show either he was in possession of sufficient funds or in the capacity to arrange it. During cross­examination, there are repeated admissions that the CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 20 of 23 payment was made from the account of his sister­in­law because he did not have sufficient funds in his account and even the demand draft for conversion charges was drawn on the account of his sister­in­law which has not been plausibly explained if at that stage, he had sufficient funds. His ownership of five properties is as on the date of his testimony. Thus, in the considered view of this Court, the plaintiff has not been able to establish that he was either ready or willing to perform the contract.

8.10 The issue is decided against the plaintiff.

C) Whether the suit is liable to be dismissed for suppression of material facts i.e. non disclosure of the notice dated 10th June, 2006? OPP (issue no.3)

9. The onus to prove the issue was upon the plaintiff.

9.1 It has been argued on behalf of the plaintiff that notice dated 10.06.2006 Mark DX was denied by the plaintiff and has not been proved by examination of the concerned counsel Sh. Dinesh Agnani. Therefore, it has not been established that the plaintiff has suppressed material facts.

9.2 Per contra, the Court has been led through the cross­ examination of PW­1 on 06.11.2012, where he has admitted that he learnt about refund of Rs.5,00,000/­ by the defendant (since deceased) in December 2005/ January 2006 and has also CS No. 57963/16 Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 21 of 23 conceded that he did not bring the aforementioned fact on record subsequently. Attention of the Court has been drawn to the replication filed in December 2007 where the defendant (since deceased) had still denied that Rs.5,00,000/­ was refunded.

9.3 The contention is premised upon the defendant (since deceased) having concealed return of Rs.5,00,000/­ into the account of sister­in­law of the plaintiff even prior to the filing of the suit. The suit was instituted in December 2006 and it is silent regarding the refund of the aforesaid amount. In the written statement, it was contended that the earnest money was returned pursuant to negotiations dated 03.05.2006. However, as per the replication, which was filed on 12.07.2007, it was denied that the amount had been refunded and it has been alleged that story was concocted by the defendant (since deceased). During cross­ examination on the aforesaid aspect, PW­1 has waivered as to when he gained knowledge about the same. He stated that he learnt about the amount being refunded after filing of the suit and then stated that he learnt about it in May 2006, albeit without intimating the plaintiff, he also stated that he did not recollect the date, month and year when he learnt about it but merely stated that it was 'in the later stages.' Hence, by preponderance of probabilities, the only conclusion that can be drawn is that the plaintiff has concealed refund of earnest money, from this Court.

9.4 The issue is decided in favour of the defendant (since deceased) through Lrs.

CS No. 57963/16

Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs Page no. 22 of 23 RELIEF

10. The suit of the plaintiff is dismissed.

11. Decree sheet be prepared accordingly.

12. File be consigned to records.





Pronounced in open Court
on 26.11.2022                                           (Vijeta Singh Rawat)
                                                      Additional District Judge­01,
                                                         New Delhi District,
                                                        Patiala House Courts,
                                                              New Delhi




CS No. 57963/16
Sh. R.K. Nangia Vs. Sh. K.L. Khanna (D) Through LRs                        Page no. 23 of 23