Sarla Devi vs Sham Bihari Aggarwal
2003 Latest Caselaw 594 Del

JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the judgment and a decree passed by the learned Additional District Judge dated 15.2.2003.

2. Brief facts which are necessary to dispose of the appeal are recapitulated as under. The respondent who was the plaintiff in the trial court filed a suit against the appellant (defendant) for specific performance of the contract with consequential relief. The respondent is engaged in the business of cloth under the name and style of M/s Sham Babu and Sons. The appellant was carrying on the business of cloth in partnership under the name and style of M/s Mangrove International. The appellant purchased goods on 30 days credit facility from the respondent through a broker Lakhan Singh Yadav for a total consideration of Rs. 5,05,765/- The transaction relates to the period 31.3.1998 to 29.5.1998. Admittedly, the appellant failed to adhere to the commitment of payment within the stipulated period despite repeated requests and reminders. Ultimately on 29.8.1998 the appellant along with her husband and other partners approached the respondent and offered to sell her house bearing No. 516/5A, Vijay Park, Gali No. 9, Maujpur, Delhi measuring 85 square yards for a consideration of Rs. 5 lakhs and to adjust the said amount towards the outstanding amount of the said firm. The respondent had agreed to purchase the aforesaid property for a consideration of Rs. 5,00,000/- The appellant executed the agreement to sell dated 29.8.1998, payment confirmation receipt, Will and General Power of Attorney in favor of the respondent in presence of her husband Om Narain Dubey. The outstanding amount of Rs. 5,05,765/- was rounded off to Rs. 5,00,000/- and the said outstanding payment to the respondent from the appellant was adjusted towards the consideration of the sale proceeds of the aforesaid property.

3. The appellant also delivered the vacant and peaceful possession of the ground floor and promised to execute the registered sale deed and deliver the vacant and peaceful possession of the remaining two floors of the property by the end of December, 1998. The appellant also handed over the original previous title documents of the said property to the respondent.

4. Despite repeated reminders and written communication dated 22.12.1998 and notice dated 21.1.1999 duly served on the appellant, she failed to fulfill her part of the contract by not executing of the sale deed in favor of the respondent and by handing over the remaining two floors of the property.

5. It is stated in the pleadings that the respondent has always been ready and willing to perform his part of the contract. The respondent has claimed a decree for specific performance with consequential relief thereby directing the appellant to execute the sale deed in respect of the property in question and also deliver vacant and peaceful possession of the remaining two floors.

6. The appellant contested the suit and submitted that the respondent obtained the signatures of the appellant, her husband and son on a number of blank papers at the house of Lakhan Singh at the point of revolver threatened to kill her husband and son. The appellant, her husband and her son were forced to sign blank papers and when they denied to do so, the appellant's husband and son were tortured by them. On the basis of the pleadings on record, the following issues were framed by the trial court:-

1. Whether the plaintiff obtained signatures of the defendant, her husband and son on blank papers under threats, as alleged in the written statement? OPD

2. Whether the suit in the present form is not maintainable? OPD.

3. Whether agreement to sell and other documents are without consideration and void ab initio? OPD.

4. Whether the suit is not properly valued? OPD.

5. Whether no cause of action has arisen for filing the present suit? OPD.

6. Whether the plaint is not duly verified? OPD

7. Whether the plaintiff is entitled to a decree of specific performance and consequential relief? OPP.

8. Whether the plaintiff is entitled to the decree of permanent injunction? OPP.

9. Relief.

7. On evaluation of the evidence the trial court came to the definite conclusion that the plaintiff (respondent) has fully supported the case as made out in the plaint on the basis of documentary evidence. Despite lengthy cross-examination the veracity and the reliability of the testimony of PW-1 remained undemolished and unchallenged on all the material points. On the other hand, the testimonies of DW-1 to DW-4 on the question of veracity, reliability and trustworthiness requires serious consideration.

8. After examining the entire evidence and documents on record, the trial court came to the conclusion that the story of obtaining of the signatures of appellant, her husband and her son under threat does not inspire any confidence and consequently the issue was decided against the appellant and in favor of the respondent and the trial court observed that if the defendant(appellant), her husband and her children were threatened, how could they make a statement without any fear in the court and how could their daughter (DW-3) file several complaints against the plaintiff (respondent) and Lakhan Singh. The trial court further observed as under :-

"The perception of threat, as alleged by the defendant, appears to be very selective. Whenever they wanted to do something without any fear, force or coercion, they do it. But when something goes against the interest of the defendant then threat is used as a seal/cover up.

9. While examining the evidence of DW1 and DW2 the trial court observed as under:-

"The testimonies of DW1 and DW2 on all the material points are not only full of improvements and contradictions over the averments made in the written statement but the same are contrary to the documentary evidence. If these contradictions and improvements are taken out from the testimony of DW1 and DW2, then nothing material remains to be discussed. In other words, the portion of the truthful testimony of DW1 and DW2, in fact supports the case of the plaintiff and contradicts their own defense."

10. The trial court gave the finding on Issue No. 1 against the appellant while observing as under:-

"In my considered view, the defendants have miserably failed to discharge this onus. Not only this, but the testimony of DW1 and DW2 is untrustworthy, unreliable and untruthful on this account and the same has to be discarded and disbelieved. Thus, this issue is decided in favor of the plaintiff and against the defendant."

11. The trial court decided Issue Nos. 2 and 5 regarding maintainability and cause of action for filing the suit together. The trial court observed that "The defendant admits the signatures on the documents but refused to comply with her part of the contract". Both these issues were decided in favor of the respondent-plaintiff and against the appellant-defendant.

12. Issue No. 3 relates to whether agreement to sell and other documents were without consideration and void ab initio. The trial court observed that the defendant has admitted the liability of the firm as a partner severally. The trial court further observed that the respondent plaintiff has successfully proved that the appellant owed a sum of Rs. 5,05,765/- to the respondent. Therefore, it cannot be said that the documents were executed without any consideration. This issue was also decided in favor of the respondent and against the appellant.

13. Issue No. 4 relates to the valuation of the suit which has been decided in favor of the respondent. Issue No. 6 regarding verification of the plaint has not been pressed by the appellant and therefore, no finding has been given on this issue.

14. Issue No. 7 relates to the respondent's entitlement to a decree of specific performance with consequential relief. The trial court came to the conclusion that the plaintiff (respondent) was always ready and willing to perform his part of the contract and had already paid the entire sale consideration amounting to Rs. 5 lakhs to the defendant (appellant). The trial court came to the conclusion that though the plaintiff is not bound to prove his readiness and willingness to perform his part of the contract for getting the relief claimed because the plaintiff has already completed his part of the contract and nothing remains to be done by him except to purchase the stamp papers required for execution of sale deed. The trial court on examination of the entire documents on record came to the conclusion that the plaintiff is entitled to a decree of specific performance and consequential relief. The trial court while deciding Issue No. 8 also observed that the plaintiff is entitled to a decree of permanent injunction.

15. The trial court passed the decree of permanent injunction in favor of the plaintiff and against the defendant thereby restraining the defendant, her agents, representatives, assigns, any other person acting on her behalf from selling, transferring, alienating or parting with the possession of the said property bearing No. 516/5-A, Vijay Park, Gali No. 9, Maujpur, Delhi to any third person or to encumber the same in any manner whatsoever. The trial court also directed the defendant to execute the sale deed of the suit property in favor of the plaintiff within three months in the office of the concerned Sub Registrar.

16. We have heard the learned counsel for the appellant at length and perused the impugned judgment, the documents and pleadings mentioned therein. In our opinion, the appellant has purchased goods worth Rs. 5,05,765/- and could not pay the outstanding amount. She offered to sell her house and even gave possession of the ground floor and agreed to give possession of the remaining two floors, first floor and second floor, by the end of December 1998. and executed all necessary documents. The appellant has been using different excuses to wriggle out of the specific performance of the contract. The respondent had already performed his part of the contract whereas the appellant was trying to avoid performing her part of the contract after receiving the entire sale consideration.

17. In this view of the matter, we approve of the findings on the issues arrived at by the learned trial court. The appeal being devoid of any merit is accordingly dismissed with costs.