*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 1st February, 2016
+ RFA No.382/2015 & CM No10256/2015 (for stay).
MOHINDER KUMAR SHARMA ..... Appellant
Through: Mr. Rohan Thawani & Mr. Manoj
Kapoor, Advs.
Versus
N.K. MANN & ORS. ..... Respondents
Through: Mr. Arvind Nigam, Sr. Adv. with Mr.
Jaswant Mann, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 impugns the judgment and decree dated 5th January, 2015 of the Court of the Additional District Judge (ADJ)-06 (West) Delhi decreeing the suit bearing M.No.1/14 (Unique Case ID No.02401C1144952005) for specific performance filed by the respondent no.1 N.K. Mann against the appellant by directing the appellant to execute the Sale Deed in favour of the respondent no.1/plaintiff after receiving the remaining sale consideration amount and declaring the Sale Deed dated 6th July, 2006 executed by the appellant and the respondent no.2 Pradeep Kumar Sharma in favour of the respondent no.3 Gurdeep Singh Grover as null and void and injuncting the RFA No.382/2015 Page 1 of 17 appellant and the respondents no.2&3 / defendants from creating third party interest in the suit property i.e. the roof of the first floor bearing no.63, situated in Block-E, Mansarovar Garden, New Delhi.
2. The appeal came up before this Court first on 27th May, 2015 when notice thereof was issued and the Trial Court record requisitioned. The respondents / defendants no.2&3 failed to appear despite service and were vide order dated 11th January, 2016 proceeded against ex parte. Vide order dated 6th August, 2015 execution proceedings were stayed. When the appeal came up on 20th January, 2016, it was the contention of the senior counsel for the respondent no.1/plaintiff that the grounds contained in the Memorandum of Appeal do not show any substantial challenge to the decree for specific performance and that the appeal either was liable to be dismissed or the stay granted of execution liable to be vacated. The counsels were heard. After some hearing the counsel for the appellant under instructions from the appellant present in Court quoted an additional price subject to payment of which it was stated that the appellant was ready to withdraw the appeal. However the respondent no.1/plaintiff expressed inability to pay the additional amount. The matter was adjourned to 21st January, 2016 for further consideration. On 21st January, 2016 though the respondent RFA No.382/2015 Page 2 of 17 no.1/plaintiff conveyed willingness for the proposal of the appellant but since the appellant was not present the matter was adjourned to 22 nd January, 2016. On 22nd January, 2016 though the appellant was present but sought adjournment on the ground of non-availability of his Advocate and the matter was adjourned to 27th January, 2016. The Advocate for the appellant did not appear on 27th January, 2016 also and the appellant in person stated that the compromise as earlier proposed by him was not acceptable to him. In this circumstance, the appeal was listed for further hearing for today. Today the counsel for the appellant has fairly stated that the appellant has now backed off from the proposal for settlement given himself. The counsels have been heard further and the Trial Court record perused.
3. The respondent no.1/plaintiff on 13th December, 2005 instituted the suit from which this appeal arises impleading the appellant and the respondent no.2, who is the brother of the appellant, only as the defendants thereto and for specific performance of an Agreement dated 7th September, 2005 of sale of roof of the first floor of property no.63, Block-E, Mansarover Garden, New Delhi. Though the appellant and the respondent no.2 defendants filed an application under Order 7 Rule 11 for rejection of the plaint in the said suit but failed to file their written statement and ultimately RFA No.382/2015 Page 3 of 17 their defence to the suit was struck off and the respondent no.1/plaintiff examined himself and his two witnesses who were cross-examined to the extent permissible by the counsel for the appellant and the respondent no.2/defendant. The suit, being suit no.254/2005, was decreed by the judgment and decree dated 3rd November, 2007.
4. The appellant only preferred RFA No.6/2008 thereagainst and which was disposed of vide order dated 10th December, 2013 by setting aside the decree for specific performance insofar as against the appellant (the respondent no.2 failed to appear in the appeal) and by remanding the suit to the learned ADJ for time bound disposal.
5. The respondent no.1/plaintiff applied for amendment of the plaint to impleaded the respondent no.3 Gurdeep Singh Grover as defendant no.3 to the suit averring that the appellant and the respondent no.2, notwithstanding the injunction order in force, had executed and registered a Sale Deed dated 6th July, 2006 with respect to the property agreed to be sold in favour of the respondent no.1/plaintiff in favour of the said respondent/defendant no.3 and seeking the relief of declaration of the said Sale Deed as void. The said amendment was allowed and the respondent no.3 impleaded as defendant no.3. However the respondent/defendant no.3 failed to appear before the RFA No.382/2015 Page 4 of 17 Trial Court and was proceeded against ex parte. Similarly, the respondent/defendant no.2 Pradeep Kumar Sharma also did not appear before the learned ADJ in the remanded proceedings.
6. On the pleadings of the appellant/defendant and the respondent no.1 /plaintiff the learned ADJ on 23rd January, 2014 framed the following issues:-
"1. Whether the Plaintiff is entitled for specific performance of the agreement to sell dated 07.09.2005? OPP
2. Whether the agreement dated 07.09.2005 is not a valid agreement? OPD
3. Whether the plaintiff has not paid sum of Rs.5 Lacs to the defendants? OPD
4. Whether plaintiff is entitled for possession of the suit property as claimed for? OPP
5. Whether plaintiff is entitled for permanent injunction? OPP
6. Relief."
and on 15th April, 2014 framed the following additional issue:-
"Whether sale deed dated 06.07.2006 in favour of defendant no.3 Gurdeep Singh is null and void abinitio? OPP"
RFA No.382/2015 Page 5 of 17
7. The learned ADJ, on a consideration of the pleadings and the evidence, has decided all the issues aforesaid in favour of the respondent no.1/plaintiff.
8. The counsel for the appellant/defendant No.1 has during the hearing earlier and today made only the following contentions:-
A. that the Agreement to Sell in writing ordered to be specifically performed and titled "Agreement-cum-Receipt" is signed only by the appellant and the respondent no.2 defendants and the witnesses and is not signed by the respondent no.1/plaintiff and thus does not constitute an enforceable contract. With reference to the dicta of the Supreme Court in Aloka Bose Vs. Pramatma Devi (2009) 2 SCC 582 relied upon by the learned ADJ in this regard, it is contended that in that case the seller was not disputing the receipt of the earnest money while it was the plea of the appellant in the present case that as against the earnest money of Rs.5 lacs stated to have been paid in the "Agreement- cum-Receipt", only a sum of Rs.1 lac in cash had been paid i.e. Rs.50,000/- was received by the appellant and the other Rs.50,000/- was received by his brother respondent/defendant RFA No.382/2015 Page 6 of 17 no.2 and the cheques for Rs.2 lacs in favour of each of the appellant and the respondent/defendant no.2 recorded in the "Agreement-cum-Receipt" to have been given were never given and thus the said judgment has no application. B. that since the earnest money which according to the Agreement of which specific performance was sought was required to be paid was not paid, no Agreement in fact came into force. C. that the broker to the transaction in his cross-examination by the counsel for the appellant/defendant admitted that the blanks in the printed "Agreement-cum-Receipt" were filled up in his handwriting.
D. that the respondent no.1/plaintiff on the dates when he claimed to have called upon the appellant/defendant to fulfill his part of the Agreement did not have the balance sale consideration of Rs.16 lacs in his account as evident from the bank statement produced by the respondent no.1/plaintiff and thus the respondent no.1/plaintiff was not throughout ready and willing to perform his part of the Agreement as he was required to be in RFA No.382/2015 Page 7 of 17 terms of the judgment of the Supreme Court in N.P. Thirugnanam Vs. Dr. R. Jagan Mohan Rao (1995) 5 SCC
115.
9. Per contra the senior counsel for the respondent no.1/plaintiff has argued:-
I. that the conduct of the appellant defendant and his brother respondent no.2/defendants, of having executed the Sale Deed of the property notwithstanding injuction order in force disentitles the appellant from maintaining the present appeal. II. the mala fide of the appellant are evident from the fact that the appellant even post execution of the Sale Deed in favour of the respondent/defendant no.3 did not disclose the said fact in the amended written statement filed.
III. the fact that the respondent defendant no.3 in whose favour the Sale Deed has been executed, inspite of notice failed to appear before the Trial Court as well as before this Court clearly demonstrates that the said transaction is a sham transaction. RFA No.382/2015 Page 8 of 17 IV. that the appellant and his brother respondent no.2/defendants even refused to receive the telegrams sent by the respondent no.1/plaintiff calling upon them to complete their part of the Agreement to Sell in favour of the respondent no.1/plaintiff. V. that the earnest money of Rs.5 lacs, even in the "Agreement-
cum-Receipt", is shown to have been paid in the form of Rs.1 lac in cash and Rs.4 lacs vide two cheques in the name of the appellant and the respondent no.2/defendants for Rs.2 lacs each and the appellant or the respondent no.2/defendants at no time prior to the institution of the suit complained that they had not received the cheques or that the entire earnest money agreed to be paid had not been paid. It is however admitted that the said cheques were not encashed. It is thus contended that the appellant cannot raise a grievance in this respect.
VI. that the decree for specific performance with respect to the 50% share of the respondent/defendant no.2 in the property has already attained finality and the respondent/defendant no.2 has not even bothered to appeal thereagainst.
RFA No.382/2015 Page 9 of 17 VII. that though the appellant took a stand that he had signed the "Agreement-cum-Receipt" in blank and claimed to be in possession of a photocopy of the same but did not produce the same. Adverse inference has to be drawn against the appellant and it has but to be held that the photocopy in possession of the appellant is the same as produced before the Court and the appellant had not signed the "Agreement-cum-Receipt" in blank.
VIII. that the statement produced by the respondent no.1/plaintiff of his bank account shows that though the respondent no.1/plaintiff did not have the money on the date when he had sent the communication asking the appellant and the respondent/defendant no.2 to come for registration but on the date fixed for registration had the requisite money. IX. that it was not the case of the appellant that the respondent no.1/plaintiff had no means.
X. reliance besides on Aloka Bose supra is placed on Rajendra Pratap Singh Vs. Rameshwar Prasad (1998) 7 SCC 602 to RFA No.382/2015 Page 10 of 17 contend that the purchaser of immovable property need not sign the Agreement to Sell.
XI. reliance is placed on:
(a) Biswanath Ghose (Dead) by LR's Vs. Gobinda Ghosh @ Gobinda Chandra Ghosh JT 2014 (4) SC 132.
(b) Gurdial Kaur (Dead) through LR's Vs. Piara Singh (Dead) through LR's (2008) 14 SCC 735.
(c) Sukhbir Singh Vs. Brij Pal Singh (1997) 2 SCC 200.
(d) Azhar Sultana Vs. B. Rajamani (2009) 17 SCC 27.
(e) Meera Narula Vs. G.G. Malvankar 2014 (144) DRJ 522.
(f) Triveni Verma Vs. Vikas Girdhar 203(2013) DLT 508.
(g) Satya Jain (Dead) through LR's Vs. Anis Ahmed Rushdie (Dead) through LR's JT 2012 (12) SC 30.
(h) Silvey Vs. Arun Varghese (2008) 11 SCC 45.
(i) P. D'souza Vs. Shondrilo Naidu (2004) 6 SCC 649.
on the aspect of readiness and willingness and it is argued that the respondent no.1/plaintiff was not required to carry the money with him all the time.
RFA No.382/2015 Page 11 of 17
10. The counsel for the appellant in rejoinder has contended that the question of the appellant demanding the balance earnest money from the respondent no.1 / plaintiff did not arise as according to the appellant no Agreement to Sell came into existence since the respondent no.1 / plaintiff had not paid the entire agreed earnest money. It is also contended that the respondent no.1 / plaintiff did not prove having issued the two cheques for Rs.2,00,000/- each in favour of the appellant and the respondent no.2 towards earnest money.
11. I have considered the aforesaid contentions of the appellant and do not find any merit therein.
12. As far as the first of the aforesaid contentions of the counsel for the appellant is concerned, it is significant that it was / is not the case of the appellant that the agreement orally reached with the respondent no.1 / plaintiff was anything other than as reflected in the "Agreement-cum- Receipt". It was / is not the case of the appellant that the total sale consideration was not agreed to be Rs.17,00,000/- or that the earnest money was not agreed to be Rs.5,00,000/- or that the time agreed for completion of the sale was anything other than of three months. It was / is also not the case of the appellant that the "Agreement-cum-Receipt" was not signed by him or RFA No.382/2015 Page 12 of 17 not delivered by him to the respondent no.1/plaintiff. Supreme Court, in Aloka Bose supra has held that an Agreement of Sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed sale consideration on agreed terms - it can be oral - it can be by exchange of communications which may or may not be signed - it can be by the vendor executing the document and delivering it to the purchaser who accepts it. Similarly, in Rajendra Pratap Singh supra, though in the context of lease, it has been held that when the defendant does not dispute the fact of a lease having been validly made, it is not open to him to later on raise a contention that the instrument was void for the reason of having not been executed by both the lessor and the lessee.
13. The effort of the counsel for the appellant to distinguish the said judgments by contending that since the appellant was disputing the receipt of money, the ratio therein would not apply, has but to fail. Significantly, the parties here also are not at issue as to the total amount received by the appellant towards earnest money. The respondent no.1 / plaintiff also agrees that the cheque for Rs.2,00,000/- towards earnest money has not been encashed by the appellant. The only difference is that while according to the respondent no.1 / plaintiff, the said cheque had been delivered to the RFA No.382/2015 Page 13 of 17 appellant, according to the appellant, it had been not. The said fact would make no difference to the fact whether a binding Agreement to Sell had come into force between the parties. It was / is not the case of the appellant that such an agreement was to come into force only on encashment of the cheque. The learned ADJ has on appreciation of the evidence has returned a finding of fact that the cheque for Rs.2,00,000/- was received by the appellant but the appellant did not encash the same. I have also perused the evidence in this regard and do not find the appellant in his evidence to have laid any foundation for the said argument urged.
14. As far as the contention of the counsel for the appellant of the appellant having signed the "Agreement-cum-Receipt" in blank, again a perusal of the evidence does not show the appellant to have established the said case in his evidence or in the cross-examination of the witnesses of the respondent no.1 / plaintiff. Even today, the counsel for the appellant is totally unable to answer from the evidence as to why the appellant and his brother i.e. respondent no.2 in the normal course of human behaviour would have signed the "Agreement-cum-Receipt" in blank. The matter however is put beyond any pale of controversy from the appellant, though having taken a stand of possessing a photocopy of the Agreement-cum-Receipt but having RFA No.382/2015 Page 14 of 17 not produced the same. The senior counsel for the respondent no.1 / plaintiff is correct in his contention that adverse inference has to be drawn therefrom. In fact, the counsel for the appellant fairly admits that the appellant in his examination-in-chief did not even depose so.
15. That brings me to the last of the contentions of the counsel for the appellant, of the respondent no.1 / plaintiff having not been ready and willing to perform his part of the Agreement to Sell i.e. being not possessed of the balance sale consideration of Rs.16,00,000/-.
16. The learned ADJ in the impugned judgment in this respect has discussed the evidence of the Manager of the bank of the respondent no.1 / plaintiff to the effect that the respondent no.1 / plaintiff, on the last date agreed for completion of the sale i.e. on 6 th December, 2005, was having a sum of over Rs.16,00,000/- in his account and that the respondent no.1 / plaintiff had also proved having sent telegrams dated 1 st December, 2005, 2nd December, 2005 and 6th December, 2005 to the appellant and the respondent no.2 calling upon them to complete the sale. The contention of the counsel for the appellant as aforesaid is that though the respondent no.1 / plaintiff on 6th December, 2005 had over Rs.16,00,000/- in his account but did not have the said money on 1st December, 2005 and 2nd December, 2005 RFA No.382/2015 Page 15 of 17 when he sent the telegrams. The learned ADJ has in this regard also relied on the judgments aforesaid cited by the senior counsel for the respondent no.1 / plaintiff before the learned ADJ also to the effect that a plaintiff in a suit for specific performance is not required to prove being possessed of ready cash at all times to come.
17. I have enquired form the counsel for the appellant whether the appellant in the cross examination of the respondent no.1 / plaintiff quizzed the respondent no.1 / plaintiff as to from where he got over Rs.16,00,000/- in his account on 6th December, 2005 and / or suggested that the said monies were not available to the respondent no.1 / plaintiff at any earlier point of time.
18. The counsel for the appellant has fairly admitted that no such cross examination has been done.
19. I am in the circumstances unable to appreciate the purport of the contention. As aforesaid, the respondent no.1 / plaintiff on the date fixed for completion of the sale i.e. 6th July, 2005 was admittedly possessed of the balance sale consideration. There is no requirement of law for the respondent no.1 / plaintiff to with effect from the date of entering into the RFA No.382/2015 Page 16 of 17 Agreement to Sell and till the agreed date for completion of sale throughout hold the balance sale consideration in the savings bank account. In fact, when the appellant did cross-examine the respondent no.1 / plaintiff in this regard, it is not open to the appellant to contend that the monies, though available on the date stipulated, were not available earlier.
20. It is indeed found that the challenge in this appeal to the judgment and decree of the learned ADJ is not substantial.
21. I have otherwise satisfied myself that the findings arrived at by the learned ADJ on all the issues are based on the evidence on record and are consistent with the law in force.
22. There is thus no merit in the appeal.
Dismissed.
The appellant having co-operated in expeditious disposal of the appeal, no costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 1, 2016 „pp/gsr‟ ..
RFA No.382/2015 Page 17 of 17