Naresh Bhutani vs Vijay Kumar Khurana And Anr.
2007 Latest Caselaw 937 Del

JUDGMENT

Hima Kohli, J.

1. The present appeal is directed against the judgment and decree dated 13th October, 2006 passed by the learned Additional District Judge in a suit for specific performance and permanent injunction instituted by the appellant against the respondents.

2. Briefly stated the facts of the case are that the appellant, plaintiff in the court below, agreed to purchase the property bearing No. E-67, Moti Nagar, (hereinafter referred to as the suit premises) from the respondents, defendants in the court below. While there is no dispute about the fact that the appellant had paid a sum of Rs. 4 lacs as earnest money to the respondents (a sum of Rs. 2 lacs having been paid on 21st January, 1996 and the balance sum of Rs. 2 lacs on 2nd February, 1996), the parties are not at ad idem in respect of the sale consideration of the suit premises. While it was the case of the appellant that the suit premises was agreed to be purchased by him for a sum of Rs. 10 lacs, the respondents contended that the sale consideration was fixed at Rs. 35 lacs.

3. In the plaint, it was averred by the appellant that the receipt dated 2nd February, 1996 was in fact a receipt-cum-agreement and other terms and conditions of the agreement were settled between the parties orally. One of the terms and conditions of settlement, as agreed upon orally, was that the respondents would first get the requisite sale permission from the competent authority and shall then inform the appellant. And thereafter, within a month of the intimation, the balance amount of Rs. 6 lacs would be paid by the appellant to the respondents at the time of executing the sale deed. It was contended on behalf of the appellant that despite the letter dated 15th November, 1996 addressed to the respondents, the respondents failed to reply to the same and did not give any intimation to the appellant; thus compelling him to institute the suit out of which the present appeal arises.

4. On the other hand, case of the respondents is that initially an agreement was executed between the parties on 20th January, 1996 wherein the sale consideration was specified as Rs. 35 lacs and at the relevant time, the appellant also paid a sum of Rs. 2 lacs to the respondents as earnest money. Though the aforesaid agreement was stated to be signed by both the parties, it was averred in the written statement that the appellant did not sign the carbon copy of the Agreement and retained the original. Thereafter, a sum of Rs. 2 lacs was paid by the appellant to the respondents on 2nd February, 1996. At that time, at the request of the appellant, the receipt of Rs. 2 lacs executed on 20th January, 1996 was torn and a fresh receipt of Rs. 4 lacs was executed by the respondent on 2nd February, 1996. Simultaneously, the previous agreement to sell dated 20th January, 1996 was also torn and a fresh agreement to sell was executed on 2nd February, 1996 wherein it was mentioned that the appellant had paid a sum of Rs. 4 lacs as earnest money leaving a balance of Rs. 31 lacs to be paid by him by 21st April, 1996. However, it was alleged by the respondents that the original agreement was again retained by the appellant and the respondents had in their custody, only a carbon copy of the earlier unsigned agreement dated 20th January, 1996 and not the subsequent agreement dated 2nd February, 1996. It was further submitted that the time for paying the balance amount was extended by the appellant from 21st April to 20th May, 1996 but he failed to pay the same in time. As a result, a legal notice dated 19th November, 1996 was served upon the appellant but he failed to pay the balance amount and consequently the earnest money was liable to be forfeited.

5. Prior to framing of issues in the matter, vide order dated 18th October, 2000, the court examined the appellant as also respondent No. 1 under Order X Rule 2 of the Code of Civil Procedure (CPC). This statement was recorded in view of the fact that there was a dispute with regard to the receipt dated 2nd February, 1996 as the respondents contended that originally the appellant had filed on the record a photocopy of the receipt dated 2nd February, 1996 for Rs. 4 lacs wherein, in the column of witnesses, there were two initials. However, subsequently, the original receipt dated 2nd February, 1996 (Ex. PW-1/1) was filed by the appellant on the record, perusal of which reflected that the initials contained on the photocopy of the receipt filed earlier, were undoubtedly different from those that appeared on the original receipt. In the light of the aforesaid facts and circumstances, the court recorded the statement of both the parties. The statement of both the parties is reproduced hereinbelow:

Statement of Sh. Vijay Kr. Khurana, defendant No. 1, under Order X Rule 2 CPC on S.A.

I have seen the receipt Mark 'A' and it bears my signature at point 'X'. Plaintiff had paid to me and defendant No. 2 a total sum of Rs. 4 lacs. I have seen the agreement to sell dated 20th January, 1996 and it bears the signature of plaintiff as second party. Suit property was agreed to be sold out to the plaintiff for Rs. 35 lacs. On Mark 'A', the witnesses had not signed in my presence. Their signatures were obtained by the plaintiff himself later on.

Statement of Sh. Naresh Bhutani, plaintiff under Order X Rule 2 CPC, on S.A.

I have seen the agreement to sell dated 20th January, 1996 and also the receipt bearing the same date for Rs. 2 lacs filed by the defendants and both of them do not bear my signatures. In fact, only a receipt for Rs. 4 lacs was executed at the time the payment was made to the defendants. Mark 'A' which has been taken out from the sealed cover is the receipt which was executed by the defendants on 2nd February, 1996. I have seen Mark 'B' which too has been taken out from the sealed cover which is a photostat copy of the receipt Mark 'A'. Against the column of witnesses in Mark 'B', the witnesses had only entitled with pencil and when this fact was brought to my notice by my brother-in-law I asked the defendants to obtain full signatures of the witnesses on mark 'A'. That is the reason that on Mark 'B' full signatures of the two witnesses do not appear. In Mark 'A' initials made by the witnesses with pencil were rubbed off before they appended signatures thereon. Witnesses have not signed the receipt in my presence at the time it was handed over to me by the defendants. I had agreed to purchase the suit property for a total sum of Rs. 10 lacs only instead of Rs. 35 lacs as alleged by the defendants.

6. Thereafter, following issues were framed on 26th July, 2001:

(i) Whether the agreement dated 20.1.1996 was executed between the parties and if the consideration amount settled between the parties was Rs. 35 lacs?

(ii) In case Issue No. 1 is proved, if the plaintiff has paid the sum of Rs. 2 lac as advance to the defendants against a receipt? If so, its effect.

(iii) Whether the written agreement to sell dated 2.2.96 was executed between the parties?

(iv) Whether the civil suit is correctly valued for the purpose of court fee and jurisdiction?

(v) Whether the plaintiff has failed to perform his part of the contract?

(vi) Whether the receipt dated 2.2.1996 for Rs. 4 lacs is a genuine document?

(vii) Relief.

7. Subsequently, vide order dated 28th September, 2006, following additional issues were framed:

(i) Whether an oral agreement was executed between the parties in respect of the property in dispute in the sum of Rs. 10 lacs as alleged by the plaintiff? OPP

(ii) Whether the plaintiff is entitled for the decree for the suit for specific performance or in alternative is entitled to the decree of recovery of Rs. 10 lacs, and a decree of injunction, as prayed for? OPP

8. After evidence was adduced by the parties, taking into consideration the entire material on the record, the learned Additional District Judge while giving a finding in favor of the appellant in respect of the issues No. (i), (ii), (iii) & (iv), returned a finding against the appellant in respect of the issues No. (vi) and additional issues No. (i) and (ii). It was held in the impugned judgment that the receipt dated 2nd February, 1996 could not be held to be an Agreement to Sell as contended by the appellant and the appellant failed to discharged the onus placed upon him with regard to there existing an oral agreement between the parties by which the sale consideration of the suit premises was fixed at Rs. 10 lacs. Consequently, it was held that the appellant was not entitled to a decree of specific performance of the purported oral agreement dated 2nd February, 1996 and also for a decree of injunction. Issue No. (vii) was however decided in favor of the appellant by passing a money decree of Rs. 4 lacs along with simple interest @ 6% from the date of filing of the suit till the realization of amount as also costs in favor of the appellant.

9. Aggrieved by the aforesaid judgment and decree, the appellant has preferred the present appeal. It is contended by the learned Counsel for the appellant that the decision in the impugned judgment with regard to issues No. (vi) and additional issues No. (i) and (ii) is erroneous and that in view of the evidence adduced by the appellant, the learned Additional District Judge ought to have held that there was an oral agreement between the parties with regard to sale and purchase of the suit premises, which was evident from the receipt dated 2nd February, 1996 (Ex.PW-1/1) as also the admission of the respondents with regard to receipt of the earnest money of Rs. 4 lacs. It was further argued that once the respondents admitted having received the payment of Rs. 4 lacs towards the earnest money and there being strong circumstantial evidence in favor of the appellant, there can be no dispute about the existence of an oral agreement between the parties which entitles the appellant to grant of relief of specific performance of contract and possession of the suit premises.

10. We have heard the counsels for the parties. It is apparent from the discussion above that the entire issue hinges on the receipt dated 2nd February, 1996 as also the existence of terms and conditions, if any, of the oral agreement between the parties with respect to the sale consideration. While dealing with the said issue, the learned Additional District Judge addressed himself to the question as to whether the receipt (Ex.PW-1/1) could be termed as a receipt-cum-agreement to sell as contended by the counsel for the appellant. Taking note of certain judgments rendered on the said issue, including Nanak Builders and Investors Pvt. Ltd. v. Vinod Kumar Alag reported as AIR 1991 Delhi 315, Rabindra Nath Sahu v. Mrs. Maya Devi and Anr. reported as and Lalit Kumar Sabharwal v. Ved Prakash Vijh reported as , the learned Additional District Judge arrived at the conclusion that only if the receipt contained the signatures of both the parties as also the relevant terms and conditions, such an Agreement could be considered as an agreement to sell. In the present case, since the basic requirements for a document to constitute an agreement were missing, as for example, the receipt did not bear the signatures of both the parties, it did not contain the relevant terms and conditions and description of the suit premises, it was rightly concluded that the same could not be treated as an agreement to sell.

11. Having agreed with the conclusion in the impugned judgment that the receipt in question could not be treated as an agreement to sell, the plea of the appellant that there was an oral agreement between the parties whereby the respondents agreed to sell the suit premises in question, not for a sum of Rs. 35 lacs but for Rs. 10 lacs, has to be examined. After discussing the law with regard to the discharge of the burden to prove whether there was an oral agreement or not and if so, the terms and conditions thereof, reference was made to a judgment of the Supreme Court in the case of Ouseph Varghese v. Joseph Acey and Ors. reported as and of this Court in the case of Brij Mohan and Ors. v. Smt. Sugra Begum and Ors. reported as JT 1990 (3) 255. After discussing the position of law on the subject, a finding was returned against the appellant by holding that he failed to discharge the heavy onus placed on him to establish that there existed an oral agreement fixing the sale consideration of the suit premises at Rs. 10 lacs.

12. In a recent judgment of this Court in the case of Smt. Sheela Gehlot v. Smt. Sonu Kochar and Ors. reported as 2006 (9) AD (Delhi) 169, which was a suit for specific performance of the agreement to sell allegedly entered into between the parties therein and wherein the appellant claimed that there was an oral agreement between the parties, the Court held as below:

16. ...In Abdul Rasheed and Ors. v. Abdul Hakeem reported as , the Andhra Pradesh High Court has held that the burden of proof naturally lies heavily on the plaintiff to prove the alleged agreement of sale by reliable, cogent and convincing evidence. It was also held that law, no doubt, recognises oral agreement of sale and there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. But in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden is on the plaintiff to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. The Andhra Pradesh High Court recorded the aforesaid principles on the basis of the decision of the Supreme Court in Brijmohan and Ors. v. Surga Begum and Ors. reported as . In Mayawanti v. Kaushalya Devi reported as and Mirahul Enterprises and Ors. v. Mrs. Vijaya Sirivastava reported as , it was held that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contact has not been made, the court will not make a contract for the parties. We may also refer to a decision of the Supreme Court in Ganesh Shet v. Dr. C.S.G.K. Setty and Ors. reported as wherein it is laid down that in a suit for specific performance of contract, the evidence and proof of the agreement must be absolutely clear and certain. It was further held that a greater amount or degree of certainty is required in the terms of an agreement, which is to be specifically enforced, than is necessary in a contract which is to be the basis of an action at law or damages.

13. Having discussed the law on the issue and taking note of the fact that the appellant examined only himself to prove the oral agreement which was disputed by the respondents throughout, in the absence of any other evidence on the record, we have no hesitation in agreeing with the findings in the impugned judgment that the testimony of the appellant who appeared as PW-1 was insufficient to prove that there existed any oral agreement between the parties fixing the sale consideration of the suit premises as Rs. 10 lacs. We also have no hesitation in turning down the plea of the appellant that there was sufficient circumstantial evidence in the light of the receipt dated 2nd February, 1996 and the admission of the respondents of having received an advance of Rs. 4 lacs for being granted the relief of specific performance of contract on the basis of an oral agreement inasmuch as records establish that the appellant was unable to discharge the onus placed on him by producing convincing evidence that there existed an oral agreement between the parties whereby the sale consideration was fixed at Rs. 10 lacs. In this context, we may also refer to the legal notice dated 19th November, 1996 issued by the respondents to the appellant, referring to an Agreement to Sell dated 2nd February, 1996 in respect of the suit premises, acknowledging the receipt of earnest money of Rs. 4 lacs on the same date and also adverting to the balance amount of Rs. 31 lacs payable by the appellant on or before 21st April, 1996. It was further stated that in view of the inability of the appellant to pay the balance amount by the fixed date, his request to extend the time till 20th May, 1996 was acceded to, and the appellant was informed that his earnest money was liable to be forfeited in view of his failure to the pay the balance amount within the stipulated time. It was in reply to the said notice that the appellant for the first time claimed that the total sale consideration of the suit premises was Rs. 10 lacs. We cannot give any credence to the letter dated 15th November, 1996 purportedly issued by the appellant to the respondents, as there is no proof of dispatch or receipt thereof.

14. Coming to the issue with regard to the manipulation in the receipt (Ex. PW-1/1), learned Counsel for the appellant contended that the findings in the impugned judgment were liable to be reversed as the receipt in question was genuine and an admitted document on the basis of which he was entitled to grant of specific performance of contract. The said plea is taken note of and rejected especially in the light of statement of the appellant himself, which was recorded by the court and is reproduced in para 4 hereinabove, wherein he deposed that the receipt (marked as 'B') was only the photocopy of the original receipt (Ex.PW-1/1) and that the said receipt bore the initials of the witnesses with pencil and that when the same was brought to the knowledge of the appellant, he asked the respondent to obtain the full signatures of the witnesses. The appellant further deposed that when the witnesses affixed their full signatures on the originals, their initials with pencil were erased from the receipt. It is evident from the testimony of the appellant himself that both the witnesses did not sign the receipt themselves in the presence of the appellant and that this fact was brought to his knowledge later on. However, later on, in his deposition, the appellant deposed to the contrary. He claimed that the receipt was initially not signed by any witnesses and that he along with his relative Yogesh Malik went to the house of the respondents on 4.2.1996 and requested them to obtain signatures of the witnesses and only thereafter, the receipt was signed by one witness on behalf of the respondent and the other witness on behalf of the appellant. Thus, at the time of filing of the suit the plaintiff filed the receipt (marked as 'B'), and later on, he filed the receipt (Ex.PW-1/1) which was duly witnessed by two persons whose signatures were apparently obtained after institution of the suit.

15. After perusing the depositions of PW-1 & 2, the court below arrived at a conclusion that there was no evidence on record to prove the transaction that had allegedly taken place through the receipt (Ex.PW-1/1). On examining the seriatim in which the events occurred and as they have been specifically narrated in the impugned judgment, we find no infirmity in the findings given in the impugned judgment to the effect that the appellant had manipulated the receipt by subsequently obtaining the signatures of the two witnesses thereon.

16. In view of the aforesaid discussion, all the pleas raised by the counsel for the appellant are found to be misconceived and untenable and are, therefore, rejected. We find no infirmity in the impugned judgment and decree either on account of misconstruction of the oral and documentary evidence, or on account of misappreciation of the position of law. The appeal is dismissed.

17. No orders as to costs.