Hansalaya Properties And Anr. vs Dalmia Cement (Bharat) Ltd.
2008 Latest Caselaw 1398 Del

.                HIGH COURT OF DELHI : NEW DELHI

+                            RFA (OS) No.26/1986

                                  Judgment reserved on : 07th July, 2008

                                  Pronounced on :         20th August, 2008

    HANSALAYA PROPERTIES AND ANR.                         ...Appellants
                          Through                   : Mr. H.L. Tikku, Sr. Adv.
                                                      with Mr. Sumit Thakur, Adv.
                                 Vs.


    DALMIA CEMENT (BHARAT) LTD.                            ....Respondent
                          Through                   : Mr. T.K. Ganju, Sr. Adv. with
                                                      Mr. A.S. Mathur and Ms.
                                                      Neha Khatri, Advocates

Coram:

HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported                      Yes
   in the Digest?

MANMOHAN SINGH, J.

1. This is an appeal filed by the Appellants (hereinafter referred to as

Defendants) against the judgment and decree dated 11th October, 1985

passed by learned Single Judge of this Court whereby the Respondent

(hereinafter referred to as Plaintiff) suit for recovery which arises out of a

transaction for sale and purchase of 11th and 12th floor on the multi-

storeyed building known as "Hansalaya" situated at 15, Barakhamba

Road, New Delhi was partly decreed.

2. The brief matrix of the facts necessary for disposal of this appeal are that

the Plaintiff is a company registered under the Companies Act. In 1970,

Defendants No. 1 and Shri Hans Raj, the predecessor-in-interest and title

to Defendants No. 2, approached the Plaintiff company with an offer to

sell office accommodation in the then proposed multi-storeyed building

called „Hansalaya‟. The Plaintiff company agreed to purchase the entire

11th floor at a price computed at the rate of Rs.123.50 sq. ft. of the exact

carpet area which was at the time when the agreement of sale and

purchase entered into estimated at approximately 9850 sq. ft. besides

other terms, conditions and assurances.

3. Similarly Orissa Cement Limited agreed to purchase the entire 12 th floor

on similar terms and sale were reduced to writing by the exchange of two

letters, one dated September 30,1970 addressed by the Plaintiff to

Defendants No.1 and the other addressed by Orissa Cement Limited to

Defendants No. 1 and the two letters dated October 1,1970 addressed by

Defendants no 1 and said Shri Hans Raj to the Plaintiff and the other

addressed to ORISSA Cement Limited in respect of the 12th floor and the

Defendants substituted the Plaintiff company‟s name in place of Orissa

Cement limited in respect of 12th floor in October, 1973.

4. It was then pleaded that the Plaintiff company who were to pay to the

Defendants a total purchase/sale price of Rs.23,58,109.00 calculated at

the rate of Rs.123.50 per sq. ft. of the exact carpet area of the 11th and

12th floors, which carpet area is 19.094 sq. ft. for both the floors, have

instead paid a sum of Rs.23,11,302.50 calculated at the rate of 95% of the

price at the approximate carpet area of 19,700 sq. ft. for both the floors.

5. It was further averred that on or about July 22, 1976 the Defendants

wrote a letter to the Plaintiff company wherein the Defendants demanded

from the Plaintiff company a sum of Rs.1,18,200.00 calculated at the rate

of Rs.6/- per sq, ft, of the estimated carpet area of the Plaintiff

company‟s floor area in both the 11th and 12th floors for establishment of

an electric sub-station which the Defendants said was required to be

provided under the New Delhi Municipal Committee rules. The Plaintiff

company without realizing that the said demand was wholly illegal and

that the Defendants were not entitled under the terms of the contract to

demand the said payment however by mistake and inadvertence paid over

to the Defendants on July 23,1976 vide their cheque No. 763901 dated

July 23, 1976 drawn on Punjab National Bank, Janpath, New Delhi a sum

of Rs.1,18,200.00, which cheque was encashed by the Defendants. It

was pleaded that the Defendants obtained this payment by wrongful

inducement and wrong representations, despite their knowledge that the

agreement of purchase and sale qua the 11th and 12th floors of the said

building specifically incorporated the incidence of the said expenditure in

agreed sale/purchase price. It is stated that the Defendants had, therefore,

illegally deprived the Plaintiff company of the use and enjoyment of the

said money for nearly three years and have unlawfully enjoyed the use

thereof.

6. The Plaintiff company made a claim of Rs.23,11,302.50 calculated at the

rate of 95% of the price calculated at Rs.123.50 per sq. ft. for both the

floors and the above said sum of Rs.1,18,200.00 thus totaling to

Rs.24,29,502.50. According to the Plaintiff company the exact carpet

area is 19,094 sq. ft. and calculated at the rate of Rs.123.50 sq. ft. of the

carpet area of the two floors, the total amount payable is Rs.23,58,109.00

and thus the Plaintiff company have paid in excess a sum of

Rs.21,393.50.

7. It was then pleaded that vide clause 4 of the agreements, the Defendants

were also contractually bound to carry out all internal changes as far as

construction of internal masonary walls, flooring and painting etc. The

Plaintiff asserts of having done these jobs and claims a sum of Rs.

54,832.20 on this account. Similar averments were made in the plaint of

the responsibility of the Defendants to provide necessary electric wiring

and installation of necessary switch boards and switches in the two floors

and the price of Rs. 123.50per sq. feet was inclusive of this work. It is

pleaded that later on it was agreed to by and between the Plaintiff

company and the Defendants that these jobs would also be attended by

the Plaintiff directly and at their own costs as may be desired and

required by the Plaintiff and instead the Defendants would give the

Plaintiff company a rebate in the purchase price on account of the costs

saved by the Defendants as a result of the Defendants not having been

required to do these jobs and the purchase price of the two floors in

question, would stand reduced accordingly. The Plaintiff claimed to have

done the wiring and fixation of switch boards and switches and sue the

Defendants for the recovery of the sum of Rs. 59,100.00 on this account.

The Plaintiff company also claimed damages caused to the Plaintiff due

to the excess payment.

8. Since the Defendants failed to pay the total amount of Rs. 2,11,027.36 as

per details mentioned in paras 17 to 19 of the plaint inspite of repeated

demands, the suit was instituted on July 23, 1979 for recovery of the said

amount and grant of pendente lite and future interest at the reate of 12%

per annum from the date of institution of the suit till the date of

realization as per detail given in paras 17 to 19 of the plaint.

9. In the written statement the Defendants had on merits, admitted that the

Plaintiff company made an offer in writing to Defendant No. 1 to

purchase the entire 11th floor of the multi-storeyed building known as

„Hansalaya‟ when constructed having an approximate carpet area of 9850

sq. ft. on the terms and conditions contained in its letter dated September

30, 1970 and the Defendants agreed to it on the terms and conditions

contained in their letter dated October 1, 1970. Similar were the plea

with respect to the offer of Orissa Cement Limited to purchase the 12th

floor. It was, however, specifically denied that the price was agreed to be

computed at the rate of Rs.123.50 per sq. ft. of the exact carpet area as

alleged.

10. The Defendants admitted that the contract between the Plaintiff company

and the Defendant No.1 for sale of the alleged 11th floor and terms

thereof are contained in said letter dated September 30, 1970 as fully

accepted by the Plaintiff company. The acceptance of the said offer to

purchase 11th floor was accepted by Defendant No.1 by letter dated

October 1, 1970. It is stated that the Plaintiff company agreed to purchase

the 11th floor and Orissa Cement Limited the 12th floor having an

approximate carpet area of 9850 sq. ft. each and that the price of

Rs.123.50 per sq. ft. each and that the price of Rs.123.50 per sq. ft. was

to be computed in respect of the entire 11th and 12th floors and not for the

exact carpet area as alleged. It was averred that the reference to the

estimated carpet area in the correspondence constituting agreement

between the parties was to indicate the dimensions of the carpet area

involved in the complete floors.

11. It was admitted that the Plaintiff company has paid Rs.23,11,302.50

calculated at the rate of Rs.123.50 per sq. ft. and representing 95% of the

price. It was denied that the area is 19094 sq. ft. as alleged. According

to the Defendants the total area of entire/complete 11th and 12th floors of

the building on completion is 20,166 sq.ft. and a total amount of

Rs.24,90,501.00 was payable by the Plaintiff company less the amount of

Rs.23,11,302.50 already paid by the Plaintiff company and the balance

of Rs.1,79,198.20 was thus payable by the Plaintiff company to the

Defendants.

12. As regards the payment of Rs. 1,18,200.00 is concerned, it was stated

that in accordance with the new rules of the N.D.M.C. for multi-storeyed

buildings, N.D.M.C. had decided to provide an electric sub-station

comprising of adequate number of transformers and cables etc. The

Defendants offered to provide an adequate space free of cost for

installation of the electric sub-station in the building along with other

ducting and layout of pipes etc. It was averred that under the rules 50%

cost of the electric sub-station including standby arrangements was to be

borne by the consumers and the remaining 50% was to be provided by

the N.D.M.C. and so the Defendants sent a circular to all who had agreed

to purchase space in the building including the Plaintiff company. It was

pleaded that the Plaintiff company were fully aware of all the facts and

circumstances and they voluntarily and not by mistake paid the amount

of Rs. 1,18,200.00 so as to take the benefit of the electric sub-station.

13. The Defendants further stated that all the jobs were duly carried out and

executed both in terms of the agreement between the parties and the

Plaintiff company were given possession of the 11th and 12th floors in

1975 after construction was over. The Defendants emphatically denied

that they are liable to pay to the Plaintiff company a sum of Rs.54,832.20

or any other amount for alleged masonary work, flooring or plastic

emulsion. It was also denied that the Plaintiff company executed the

work of the electric wiring, provision of switch boards or switch. The

Defendants denied that the Plaintiff company spent any amount on this

account.

14. On the pleading of the parties the following issues were framed on 25th

January 1983:-

"1. Whether the suit has been instituted and plaint signed and verified by a duly authorized person? OPP

2. Whether the suit is bad for misjoinder of causes of action? OPD

3. Whether the suit is within limitation? OPP

4. Whether the plaintiff is stopped from pleading any terms outside the agreements of sale and purchase contained in the two letters of 30 th September, 1970 and letters of 1st October, 1970 exchanged between the parties? OPD

5. Whether the sale price was to be calculated on the basis of the carpet area as pleaded by the plaintiff. If so what was the carpet area? OPP

6. Whether the sale price was to be calculated on the basis of the floor area as pleaded by the Defendants. If so what was the total floor area? OPD

7. Whether the plaintiff made payment ofs.1,18,200/- on 23rd July, 1976 under mistake and by inadvertence towards establishment of electric sub station. If so to what effect? OPP

8. Whether the electric sub-station was established by the Defendants as agreed. If not to what effect? OPD

9. Whether the Defendants were liable to provide adequate supply of electricity including standby generator? OPP

10. Whether the Defendants provided stand by generator in the building. If so from which date? OPD

11. Whether the plaintiff paid any excess price to the Defendants. If so what amount? OPP

12. Whether the plaintiff are entitled to claim any damages as claimed in para 9 of the plaint. If so to what amount?

OPP

13. Whether the Defendants were liable to carry out the jobs as mentioned in para 17 and 18 of the plaint and the Defendants filed to carry out those jobs. If so whether the plaintiff is entitled to expenses incurred by them as claimed in para 17 and 18 of the plaint? OPP

14. Whether the plaintiffs are entitled to interest. If so at what rate?

15. To what amount are the plaintiffs entitled?"

15. The matter went for trial. Plaintiff examined four witnesses, namely,

S.N. Mittal as PW-1, Ram Kirti Saran as PW-2, V.K. Mathur as PW-3

and V.P. Raori as PW-4. Defendants also produced four witnesses whose

statements were also recorded.

16. By the impugned judgment and decree dated 11th October, 1985 the

learned Single Judge granted a decree for Rs.8025.75 after the adjustment

of various claims by the plaintiff in favour of the plaintiff and against the

Defendants with proportionate costs of the suit. However, the learned

Single Judge dismissed the suit for damages for a sum of Rs.25,701.64

due to lack of evidence and also did not grant pendent lite and future

interest.

17. The Defendants have impugned the said judgment and decree by filing

the present appeal on various grounds. At the time of regular hearing of

appeal Mr. Tikku, learned Senior counsel for the Defendants confine his

arguments on Issues No.4 to 6 which are taken up together by the learned

Single Judge. In view of his submissions we will deal with the

submissions of the learned Senior counsel for the parties on these issues

for disposal of this appeal.

18. The main contentions of Mr.Tikku, learned Senior counsel for the

Defendants are that the prices in respect of each floor should have been

calculated on the basis of covered/floor area of 10698 sq. ft. and the price

of Rs.123.50 per sq. ft. was to be computed in respect of the entire 11 th

and 12th floor and not for the exact carpet area as alleged. There was no

justification to assume the total carpet area of floor as 10002 sq. ft.

excluding the staircase, lift, lobby, AC shafts and external walls as it has

not been established in Exts. PW-1/15, and reducing it to 9557 sq.ft. by

inducting 455 sq. ft. on the above account. Nothing can be deducted

except the external walls for arriving at the carpet area of the floor. The

second contention of the Defendants is that the plaintiff has failed to

prove its case as filed and one of the reasons is by not producing Shri

R.M. Gupta who was the main witness to the contract and therefore, it

was fatal to the case of the plaintiff due to the reasons that PW-1 in his

cross-examination has admitted that he was not involved in the

transaction between the parties contained in the letters dated 30th

September, 1970 by the plaintiff and the letter dated 1st October, 1970, by

the defendants. They are Exts.-PW1/6x to Exts.-PW1/9x. In view of this

failure the learned Single Judge ought to have draw adverse inference for

non-production of relevant witness.

19. Mr. T.K. Ganju, learned senior counsel for the plaintiff has supported the

judgment of the learned Single Judge on the basis of reasoning contained

therein. Learned senior counsel has made his submission that there is no

counter claim filed by the Defendants to claim excess area as alleged. He

has also relied upon the cross-examination of Shri B.R. Wadhera where

he has admitted that the covered area including the wall sand columns

and carpet area excludes the walls and columns. The carpet area is that

where a person can lay carpet. Learned Senior counsel for the Plaintiff

has also relied upon the certificate issued by M/s Roari & Associates

dated 12th January 1979 (Exts.PW1/15) where it was certified that the

total built up area and the carpet area of each of the two floors and has

given his certificate that the built up area of the each floor is 10698 sq.

feet excluding the lift and shaft. The total carpet area of the typical floor

excluding staircase, lift, lobby, AC shaft and external walls is 10002 sq.

feet less for AC shaft walls, 27 sq. feet lift walls, 82 sq. feet toilet walls,

280 sq. feet and columns, 128 sq. feet minus the total carpet area, the net

carpet area would be 9547 sq. feet. Mr. Roari was examined as PW-4 in

the present matter and there is no cross examination contrary to the same.

20. He has argued that nobody will sell the common area and similarly, no

one will purchase the common area. He has also drawn our attention to

the order passed by a Division Bench on 20 th February, 2005 of this

Hon‟ble Court wherein at the request of the parties the Court appointed

an independent Architect Mr. Sunil Saini to visit the site for reporting the

carpet area in possession of the Plaintiff and the report of the Local

Commissioner was accompanied by the certificate dated 5 th May 2005 of

Mr. Sunil Saini, Architect who has also confirmed that the exact area of

11th and 12th floor is 9497.39 sq ft. in each floor. It has also argued that

the defendants have not produced any documents or material to show that

they have sold all the flats in the multi-storeyed building "Hansalaya" on

the basis of the covered area.

21. We have considered the submissions of the learned Senior counsel of the

parties and have also gone through the material on record including the

documents and evidence led by the parties. We shall now to discuss their

arguments in detail.

22. It is the admitted position that the offer of purchase and sale was reduced

into writing by the exchange of letters dated 30th September, 1970

addressed by the plaintiff for Orissa Cement Ltd. (predecessor in interest 1st of the plaintiff company) and two letters dated October, 1970

addressed by the Defendants to the plaintiff company and M/s Orissa

Cement Ltd. The said letter dated 30th September, 1970 containing the

offer from the plaintiff company to the Defendants is Exts. PW-1/6x.

The letter dated 30th September, 1970 containing the offer from M/s

Orissa Cement Ltd. to the Defendants is Exts. PW-1/8x. The terms of the

offer in the two letters are identical pertaining to the 1 1th and 12th floor.

1st Similarly, the letter dated October, 1970 containing the terms of

acceptance from the Defendants to the plaintiff company is Exts. PW-

1/7x and that to M/s Orissa Cement Ltd. is Exts. PW-1/9x. The terms of

acceptance offer are also identical except the number of the floor.

23. The acceptance of the said offer is contained in letter Exts. PW-1/7x and

Exts. PW-1/9x which are differently worded. The Defendants confirmed

in the said Exts. PW-1/7x and Exts. PW-1/9x that they agreed to sell the

complete 11th and 12th floor having an approximate carpet area of 9850

sq. feet each floor in their building at the rate of Rs. 123.50 per sq. feet.

24. Learned Single Judge referred to the letters dated 30 th September, 1970

containing the offer from the Plaintiff company to the Defendants, Exts.

PW1/6x and the letter dated September 30, 1970 containing the offer

from M/s Orissa Cement Limited to the Defendants, Exts.PW1/8x. The

terms of the offer in the two letters are identical except particularizing

11th and 12th floors. The relevant portion of Exts.PW1/6x reads as

under :

"with reference to the discussions our Advocate Shri R.M. Gupta, had with you, we offer to purchase on ownership basis, one complete floor (Floor No.11) having an approximate carpet area of 9,850 sq. feet, in the above building to be constructed by you in accordance with the building plans shown to us at No.15, Barakhamba Road, New Delhi-1 at the rate of Rs.123.50 paise per square foot, to be paid as follows :

                i)    10% on application for booking;





               ii)    10% on sanction of plan by the New Delhi Municipal
                     Committee;
              iii)   10% on completion of piling;
              iv)    10% after Roof Slab of 1st floor;
              v)     10% after Roof Slab of 3rd floor;
              vi)    10% after Roof Slab of 6th floor;
              vii)   10% after Roof Slab of 9th floor;
              viii) 10% after Roof Slab of 12th floor;
              ix)    10% after Roof Slab of 14th floor;
              x)     5% after Roof Slab of 16th floor;
              xi)    5% on completion"

25. The letter dated October 1, 1970 containing the terms of acceptance from

the Defendants to the Plaintiff company is Exts.PW1/7x and that to M/s

Orissa Cement Limited is Exts.PW1/9x. The terms of acceptance area

also identical except to the number of floors. The relevant portion of

Exts. PW1/8x reads as under :

"We thank you for your letter No.ND/291/20 dated 30 th September, 1970 regarding your offer to purchase on ownership basis one complete floor (floor No.11) having an approximate carpet area of 9850 sq.ft. in our above building at a rate of Rs.123.50 paise per sq.ft. and now you are requested to make the initial deposit at the rate of 10% of the entire cost of the said floor i.e. Rs.1,21,647.50 paise. But as desired by you, you may pay Rs.21,647.50 by cheque immediately and furnish a bank guarantee in the sum of Rs.1 lac and the amount be paid when we start piling the foundations."

It is clear that the intention of the Defendants was that the price was to be calculated on the basis of carpet area when the plaintiff company is requested to make the initial deposit at the rate of 10% of the entire cost of the said floor i.e. Rs.1,21,647/-.

26. The subsequent conduct and the manner in which parties acted, brings

out the intention of the parties viz the price was to be paid on the basis of

the carpet area. It is the admitted case of the parties that the subsequent

seven installments of 10% and one installment of 5% was again paid by

the plaintiff company and received by the Defendants calculated on the

basis of the approximate carpet area of 9850 sq. feet. In para 9 of the

plaint it is pleaded that the plaintiff company who were to pay to the

Defendants a total purchase/sale price of Rs. 23, 58,109.00 calculated at

the rate of Rs. 123.50 per sq. feet of the exact carpet area of the said two

floors, which carpet area is 19,094 sq. feet have instead paid to the

Defendants a sum of Rs. 23,11,302.50 calculated at the rate of 95% of the

price calculated at Rs. 123.50 per sq. feet at the approximate carpet area

of 19,700 sq. feet for both the floors. In the corresponding paragraph in

the written statement it is not denied that the plaintiff company has paid

Rs. 23,11,302.50 calculated at the rate of Rs. 123.50 per sq. feet and

representing 95% of the price. The subsequent payments have been

received by the Defendants at the rate of 10% or 5%, as the case may be,

of the entire cost of the 11th and 12th floors. This was calculated not on the

basis of the floor/covered area but on the carpet area basis. Therefore,

there is no ambiguity.

27. It is settled law that the courts will enforce not only the terms expressly

agreed between the parties, but also those which are 'logically implied'

from those express terms. There is no intention independent of the

meaning of the words used in the contract by the parties. When the court

ascertains the intention, it does not study what the parties intended to do,

but what the language employed shows that they did: 'in other words,

they are not constructing a contract on the lines of what may be thought

to have been what the parties intended, but they are construing the words

and expressions used by the parties themselves'. The construction of a

contract cannot be governed or affected by the intention or belief of one

of the parties not communicated to the other.

28. In construing a contract, the court must look primarily at the words used

in the contract itself, unless they are such that one may suspect that they

do not convey the intention correctly. If the words are clear, there is very

little the court can do about it. This precludes the parties from giving

direct evidence to show that their real intention was different from that

reflected in the document.

29. The UNIDROIT Principles provide the rules of interpretation of the

contracts. The Principles provide that a contract shall be interpreted

according to the common intention of the parties. It is only when the

intention cannot be established, that the contract shall be interpreted

according to the meaning that reasonable persons of the same kind as the

parties would give it in the same circumstances.

30. It is, also well known that the intention of the parties to an instrument

must be gathered from the terms thereof examined in the light of the

surrounding circumstances (See Sohan Lal Naraindas v. Laxmidas

Raghunath Gadit (1971) 1 SCC 276). In Delta International Ltd. v.

Shyam Sundar Ganeriwalla (1999) 4 SC 545 this Court noticed: (SCC

p. 560, para 17) :

"17. For construction of contracts between the parties and for the interpretation of such document, learned Senior Counsel, Mr. Desai has rightly relied upon some paragraphs from The Interpretation of Contracts by Kim Lewison, Q.C. as under:

'1.03. For the purpose of the construction of contracts, the intention of the parties is the meaning of the words they have used. There is no intention independent of that meaning.

6.09. Where the words of a contract are capable of two meanings, one of which is lawful and the other unlawful, the former construction should be preferred."

31. In the decision of the Supreme Court reported in 2003(2) CTC 282 (Oil

and Natural Gas Corporation Ltd vs. Saw Pipes Ltd) it was observed as

follows:-

"40. It cannot be disputed that for the construction of the contract it is well settled that the intention of the parties is to be gathered from the words used in the agreement. If the words are unambiguous and are used in after full understanding of their meaning by experts, it would be difficult to gather their intention different from the language used in the agreement. If upon a reading of the document as a whole, it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term, there is nothing in law which prevents them from setting up that term (Re: Modi & Co. vs. Union of India, 1968 (2) SCR 565. Further in constructing the contract the court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the court can do about it (Re: Pravash Chandra Dului & Anr. Vs. Bishwanath Banerjee & Anr. 1989 Supp (1) SCC 487)."

"Law is well settled that when the contract is reduced in writing the terms of the contract are to be ascertained from the words used in the contract unless there is any blatant or patent ambiguity."

32. Keeping in mind the well settled legal position as discussed by us above,

and considering the letters dated 30th September, 1970 and 1st October,

1970 which constitutes the offer and acceptance of this contract agreed to

by and between both the parities, nothing could be construed outside the

express terms of the contract. Primarily the words expressed in the

contract are "one complete floor having an approximate carpet area of

9850 sq.ft. Even otherwise, the defendants have not produced any

evidence to prove that they have sold other flats in the building

„Hansalaya‟ on the basis of the covered area.

33. The other argument raised by the Defendants is that the non production

of Sh. R.M. Gupta is fatal to the case of the Respondent/Plaintiff and an

adverse inference should have been drawn by the learned Single Judge

against the Plaintiff, have no force on the reason that when the terms of a

contract, or of a grant, or any other deposition of property have been

reduced to the form of a document, and in all cases in which any matter is

required by law to be reduced to the form of a document, no evidence

shall be given in proof of the terms of such contract, grant or disposition,

or of such matter, except the document itself.

34. Further, all the acts done in pursuance of this agreement are also on the

basis of carpet area of 9850 sq.ft. which reflects the common intention of

the parties clearly since the words of the contract are clear, there is no

ambiguity or inconsistency in the contract, we consider that no extrinsic

evidence can be looked into to bring out clearly the express terms of the

contract. He agree with the findings of learned Single Judge that both the

parties acted on the documents in accordance with that interpretation and

this is admissible guide to the construction of Exts. PW1/6x to PW1/9x.

35. When such terms of a contract, etc, or matter referred above is proved by

producing the document, no oral agreement or statement can be admitted

as between the parties to any such document for the purpose of

contradicting, varying, adding to, or subtracting from its terms according

to Section 91 of Evidence Act. Therefore, we do not feel that non-

production of Shri R.M. Gupta as a witness in any way fatal to the case

of the Plaintiff or the case has not been proved nor any adverse inference

cannot be taken.

36. In view of the above, we are in agreement with the aforesaid finding of

the learned Single Judge and the manner in which the same are arrived

at. We do not find any force in the submissions of the Defendants.

Therefore, we find no merit in the appeal and it is hereby dismissed. No

costs.

MANMOHAN SINGH, J.

A.K. SIKRI, J.

August 20, 2008 sa/sd