Shivaji Sindhu vs Daulat Ram Deepani & Anr
2008 Latest Caselaw 2154 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Order: 4th December, 2008

+    RFA 50/2008

     SHIVAJI SINDHU                 ..... Appellant

               versus

     DAULAT RAM DEEPANI & ANR            .....Respondents

     RFA 51/2008

     ASHOK SINDHU                   ..... Appellant

               versus

     VERSHA DEEPANI & ANR              ..... Respondent

     RFA 52/2008

     SHIVAJI SINDHU                 ..... Appellant

               versus

     DAULAT RAM DEEPANI               ..... Respondent

     RFA 53/2008

     ASHOK SINDHU                   ..... Appellant

               versus

     VERSHA DEEPANI                 ..... Respondent

               Present :   Mr.Sunil Malhotra, Advocate and
                           Ms.Sonali Malhotra, Advocate for
                           the appellants.
                           Mr.O.P.Aggarwal, Advocate for
                           the respondents.

     CORAM:
     HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
     HON'BLE MR. JUSTICE J.R. MIDHA

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

                                                          Page 1 of 6
 2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.(Oral)

1.         Heard learned counsel for the parties.

2.         The two appeals arise out of two suits having counter

claims.

3.         Suits filed by the appellants Shivaji Sindhu and Ashok

Sindhu have been dismissed.     Counter claim of the respective

defendants in the two suits have been allowed.

4.         The two suits sought enforcement of two agreements

to sell both proved as Ex.PW-1/2 in each suit, as per which the

defendant(s) of the two suits agreed to sell the two flats, one

each forming subject matter of the two agreements to sell,

being Flat No.45-C (SF), Block No.BW, Category-2, Shalimar

Bagh, Delhi and Flat No.48-C (SF), Block No.BW, Category-2,

Shalimar Bagh, Delhi.

5.         The two agreements to sell record that the agreed

sale price of the two flats is Rs.3,20,000/- (Rupees Three Lac

Twenty Thousand) and Rs.3,60,000/- (Rupees Three Lac Sixty

Thousand) respectively. In both agreements to sell it has been

recorded that the entire sale consideration has been tendered

and received vide pay order issued by SBI, Azad Market, Delhi

and that possession of the respective flat has been handed over

to the buyers.

                                                         Page 2 of 6
 6.         The two agreements to sell have been registered

before the Sub-Registrar.        A general power of attorney

pertaining to both flats, being Ex.PW-1/5 (two documents) as

also a separate receipt evidencing receipt of the pay order

proved as Ex.PW-1/3, in both the suits as also a registered will

executed by the seller in favour of the buyer being Ex.PW-1/4,

was proved in each suit.

7.         The defence taken by the defendants in both the

suits was identical. They stated that on 14 th July, 2003, the date

on which the afore-noted documents were executed before the

Sub-Registrar, they reached the office of the Sub-Registrar and

were shown two pay orders. They executed the documents but

that the pay orders were not handed over to them as the sellers

stated that they would send the pay orders by post.             They

pleaded that the possession of the flat was with them and that

said fact evidenced a false recital in the agreements to sell of

possession being delivered.

8.         Since original title documents were handed over to

the buyers, counter claims were filed praying that a mandatory

order be passed directing the return of their original title

documents.

9.         At the trial, the plaintiff(s) of the two suits stated that

in the agreements to sell as also in the plaint it was

inadvertently recorded that the respective payments were


                                                             Page 3 of 6
 tendered by the pay orders. The plaintiffs said that actually two

cheques in sum of Rs.3,20,000/- and Rs.3,60,000/- respectively

were handed over and that the sellers, with a mala fide intent

did not encash the cheques.

10.        On behalf of the plaintiff, evidence was led by their

constituted attorney.

11.        The    suits   seeking   specific   performance   of    the

agreements to sell have been dismissed. Counter claims have

been allowed.

12.        Two reasons have been given by the learned Trial

Judge to do so.

13.        The first reason is that the evidence of the plaintiffs

has to be ignored because the constituted attorney could not

depose facts on behalf of the plaintiffs. The second is that the

agreement(s) to sell records payment by means of a pay-

order(s) which was also the claim in the plaint but ultimately the

plaintiff conceded that no pay orders were tendered but sought

to prove payment being tendered by means of two cheques

which were found unencashed.             Learned Trial Judge has

accordingly held that it stands established that nothing flowed

from the coffers of the plaintiffs of the two suits to the

defendants of the two suits.

14.        We concur with the first submission made by learned

counsel for the appellant that the evidence of the attorney of


                                                             Page 4 of 6
 the plaintiff could not be wished away, for the reason the

attorney deposed of being present when the transaction was

transacted; he spoke from personal knowledge.

15.        We would like to clarify a misconception which we

notice is repeatedly emanating in judicial pronouncements. The

rule that a general attorney cannot depose to a fact is limited to

facts which would be in the personal knowledge of the principal

but does not relate to personal knowledge of the facts within the

knowledge (personal) of the general attorney.

16.        But, we do not agree with the second contention

urged by learned counsel for the appellants, viz., that in the

agreement(s) to sell and in the plaint it inadvertently got

recorded that the payment was made by pay orders; as a matter

of fact payment was made by two cheques.

17.        The principal factor which has weighed with us to

disagree with the submissions made by learned counsel for the

appellants is the fact that if indeed, payments were made by

cheques, the two cheques would have been tendered on

14.7.2003; the date of execution of the two agreements to sell.

The suit has been filed in the month of January 2004.            No

evidence has been led that the plaintiffs have questioned the

defendants as to why have the cheques have not been

encashed. Further, if full payment was tendered by the buyers

and flats were in possession of the sellers normal human


                                                          Page 5 of 6
 conduct would require the buyers to insist upon possession

being delivered. It be noted that the cheques allegedly given

were never encashed.

18.          We note that the agreement(s) to sell record that

possession has been handed over to the buyer(s), a fact which is

admittedly incorrect.

19.          We find no infirmity with the view taken by the

learned Trial Judge that the suit for specific performance has to

be      dismissed.   The   corollary      thereof   would   be    the

entitlement of the defendants to a return of the original title

documents which they handed over to the plaintiffs.

20.          Finding of the learned Trial Judge pertaining to the

counter claims is affirmed.

21.          All appeals are dismissed.

22.          There shall be no order as to costs.

23.          At this stage, we note the statement made by

learned counsel for the appellants that the title documents have

been deposited by the appellants in this Court.         If be so, we

direct the Registry to return the title documents to the sellers

i.e. the defendants of the two suits.


                                   PRADEEP NANDRAJOG, J.

J.R. MIDHA, J. DECEMBER 04, 2008 Dharmender