Minu Chaterjee vs Laxmi Jain
2008 Latest Caselaw 2179 Del

*                 IN THE HIGH COURT OF DELHI

                        Judgment reserved on : December 01, 2008
%                        Judgment delivered on : December 05, 2008

+                      RFA 416/2008

MINU CHATERJEE                                   ..... Appellant

                  Through:   Mr.V.M. Issar, Advocate

             VERSUS

LAXMI JAIN                                      ..... Respondent

                  Through:   Mr.S.P.Singh Chaudhary, Advocate


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?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?


: PRADEEP NANDRAJOG, J.

1. The appellant has suffered a decree directing her to

receive the balance sale consideration and execute the sale

deed in respect of Flat No.32-B, Pocket-A, Mayur Vihar, Phase-II,

Delhi.

2. The case of the respondent was that she was

desirous of purchasing an immovable property for which an

agreement to sell, Ex.PW-2/B, was executed by the appellant on

31.12.2003 recording therein that the sale price agreed was

Rs.14,70,000/- (Rupees Fourteen Lacs Seventy Thousand only)

and that she paid Rs.1,00,000/- by three cheques of dated

31.12.2003 to the appellant and that said fact was duly

recorded in the agreement to sell. That three months' time was

stipulated for completion of the sale transaction within which

time she had to pay the balance sale consideration. That the

appellant desired some more time to execute the sale deed and

that further sum of Rs.2,00,000/- (Rupees Two Lacs only) was

paid by her on 8.3.2004 on receipt whereof the appellant

executed the receipt Ex.PW-2/C. That further sum of

Rs.50,000/- (Rupees Fifty Thousand only) was paid by her to the

appellant for which she executed the receipt Ex.PW-2/D.

Further sum of Rs.50,000/- (Rupees Fifty Thousand only) was

paid on 17.5.2004 for which the appellant while acknowledging

receipt, executed Ex.PW-2/E. That in this manner only

Rs.11,20,000/- remained as the amount outstanding which she

offered to the appellant on 2.9.2004 who postponed the issue of

execution of the sale deed stating that her husband was away in

the USA and she would await his return. It was stated that

sensing mischief a notice dated 4.9.2004, Ex.PW-2/F was sent

under registered AD post at two addresses of the appellant vide

postal receipt Ex.PW-2/G and Ex.PW-2/H.

3. The appellant filed a written statement denying

having executed the agreement to sell. She labeled the

agreement to sell Ex.PW-2/B as a forged and fabricated

document. Affirming having received Rs.1,00,000/- (Rupees

One Lac only) by means of three cheques from the respondent,

she stated that she received the said amount under an oral

agreement whereunder it was agreed that the property shall be

sold for Rs.17,70,000/- (Rupees Seventeen Lacs Seventy

Thousand only). She denied having received any further

amounts from the respondent.

4. On the pleadings of the parties, it is obvious, that the

material issue which arose for consideration was whether the

appellant had executed the agreement to sell Ex.PW-2/B and

whether she had received further amounts from the respondent

as claimed by the respondent and whether the respondent had

always been ready and willing to perform her obligations under

the agreement, if the same was proved as duly executed.

5. Respondent examined one Shri S.P.Singh as PW-1,

who claimed to be a handwriting expert. He proved his report

wherein he had opined that the disputed signatures of the

appellant on the agreement to sell and the receipts were those

of the appellant.

6. The respondent examined herself as PW-2 and

reiterated her version pleaded in the plaint and proved the

agreement to sell and the receipts noted hereinabove. She

identified the signatures of the appellant on the said documents

as also those of the witnesses who were present and had

witnessed the execution of the said documents.

7. Abhinandan Jain was examined as PW-3 who deposed

that he was present when the agreement to sell Ex.PW-2/B was

drawn up. He stated that the blank spaces were filled up before

the appellant executed the same. The witness was cross-

examined and a suggestion was put to him that the appellant

was forced and coerced into executing Ex.PW-2/C which was

denied by him.

8. H.C. Grover, the stated property dealer who had

brokered the deal was examined as PW-4. He deposed to have

settled the bargain between the parties and affirmed the case

pleaded by the respondent. He identified his signatures on the

agreement to sell, Ex.PW-2/B. He stated that one Sunil Gupta

was also present and even he had witnessed the execution of

the agreement to sell. The witness was cross-examined.

Relevant would it be note that a suggestion was put to him that

the signatures of the appellant were obtained under threat and

coercion on Ex.PW-2/C, Ex.PW-2/D and Ex.PW-2/E. Needless to

state the witness denied the suggestion.

9. Sunil Kumar Gupta the second witness to the

agreement to sell Ex.PW-2/B was examined as PW-5. He

deposed that he was present when the agreement to sell was

executed and that he had witnessed the same. In cross-

examination he admitted that he was the brother of the

respondent.

10. The appellant examined herself as DW-1 and in her

examination-in-chief stated that she never executed the

agreement to sell Ex.PW-2/B. She stated that her signatures

were forged evidenced by the fact that she always signed as

M.Chaterjee and never as M.Chawla. She stated that PW-4, a

property dealer had visited her house on 31.12.2003 to

negotiate the sale of her flat and that she demanded

Rs.17,70,000/- (Rupees Seventeen Lacs Seventy Thousand only)

as the price thereof. She stated that the respondent demanded,

for her perusal, the original title deeds of the property and at

that stage it was noted that in the title documents the flat No.

was incorrectly mentioned as 82-B instead of 32-B in the

affidavit of Ravinder Kumar Kaul from whom she had purchased

the property and that the respondent desired a correction to be

made. She stated that PW-4 undertook to get the errors

rectified and at that point of time obtained her signatures on

four blank papers. Affirming having received Rs.1,00,000/-

(Rupees One Lac only) as earnest money, she asserted that the

receipts were got prepared by using the blank signed papers

which were got signed from her.

11. The appellant was extensively cross-examined and

admitted that she had been signing sometimes as M.Chaterjee,

sometimes as M.Chawla and sometimes as Meenu Chawla.

12. The next witness examined by the respondent was

Constable Satish, DW-2 who proved a report mark 'A' received

by the DCP in which appellant had made a grievance of the

agreement to sell being a fraudulent document. In cross-

examination the witness stated that he had no knowledge as to

what happened to the complaint. DW-3, HC Mukesh Kumar also

deposed about the complaint being received. So did DW-4, SI

Noor Mohd. who deposed that the complaint evidenced a civil

dispute and hence no action was taken thereon. DW-5, HC

Achint Dass also referred to a complaint being received. It may

be noted at this stage that nothing turns on the testimony of

DW-2 to DW-5.

13. One Syed Sarfaraz Ahmed, a handwriting expert was

examined as DW-6 who proved his report Ex.DW-6/1 to the

effect that the signatures of the appellant on the agreement to

sell and all the receipts were not those of the appellant's.

14. Mayank Goswami was the next witness examined by

the appellant who also has been referred to as DW-6. He

produced the register maintained by his father, the notary

public before whom Ex.PW-2 was notarized on 31.12.2003. He

stated that there is no entry in the said register pertaining to

the agreement to sell in question.

15. The witness was cross-examined. He deposed that

he had no knowledge about the register which he has produced.

He admitted that the register did not have any pagination. With

respect to the signatures of the notary public on the agreement

to sell Ex.PW-2/B he deposed that he was not in a position to

identify the signatures at point 'D' on the same.

16. Needless to state, the argument of the appellant

before the learned Trial Judge was predicated firstly on the plea

that the testimony of DW-6, Mayank Goswami established that

the agreement to sell Ex.PW-2/B was never attested by the Oath

Commissioner and hence the credibility thereof stood

demolished. Second contention urged was that the witnesses of

the respondent were interested witnesses. Testimony of PW-5,

Sunil Kumar was labeled as tainted since he was the brother of

the respondent and that of PW-4, H.C. Grover was likewise

stated to be tainted as he was alleged to be the perpetrator of

the fraud. It was urged that the testimony of Syed Sarfaraz

Ahmed, DW-6, concluded that the signatures of the appellant on

all the disputed documents were forged.

17. The learned Trial Judge has negated the contentions

of the appellant by noting the inconsistent stand adopted by her

from time to time evidenced from the line of cross-examination

adopted by her. Learned Trial Judge has noted that from being

a case of total denial of even the existence of her signatures on

the disputed documents, all of which were stated to be forged

signatures, the appellant suggested to PW-3 that she was forced

and coerced into signing Ex.PW-2/C. Suggestion put to PW-4

was the same i.e. of threat and coercion into signing Ex.PW-2/C,

Ex.PW-2/D and Ex.PW-2/E. Not only that, learned Trial Judge has

further noted that when she was cross-examined, the appellant

took a completely different stand by stating that she had signed

on blank papers some of which had affixed thereon revenue

stamps.

18. In a nutshell, in view of the contradictory stand taken

by the appellant vis-à-vis her pleadings in the written statement

and her statements made on oath as a witness as also a

contradiction in her pleadings and the line of cross-examination

adopted when witnesses of the respondent were cross-

examined a finding has been returned that Ex.PW-2/B to Ex.PW-

2/E bore the signatures of the appellant and that the documents

were duly drawn up before they were executed.

19. At the hearing of the appeal, learned counsel for the

appellant reiterated that there is no evidence on record to

establish that the appellant had executed Ex.PW-2/B to Ex.PW-

2/E. Learned counsel sought to get over the contradictions in

the oral evidence of the appellant vis-à-vis her pleadings and

the conflicting line adopted during cross-examination of the

witnesses of the respondent by blaming her counsels at the trial

court by urging that the lawyers did so on their own and without

any instruction from the appellant. Lastly, counsel urged that

relief of specific performance is a discretionary relief and urged

that the same may be declined by awarding compensation to

the respondent; if this Court were not to agree with the first

contention urged by the appellant.

20. Pertaining to the first plea urged, we had repeatedly

questioned learned counsel for the appellant whether a ground

had been urged in the memorandum of appeal that the counsels

for the appellant adopted a contradictory line of cross-

examination when witnesses of the respondent were being

cross-examined without the instructions of the appellant.

Learned counsel could not point out any ground in which said

stand was taken. On a perusal of the pleadings of the appellant,

her testimony as her own witness and the cross-examination of

the witnesses of the respondent reveals that the appellant kept

on changing her stand from that of a complete denial in the

written statement of having executed any documents to stating

on oath when she was cross-examined that her signatures were

obtained on blank papers; followed by another contradictory line

adopted by suggesting to PW-3 that her signatures were

obtained by force and coercion on Ex.PW-2/C and suggesting to

PW-4 that her signatures were obtained on Ex.PW-2/C, Ex.PW-

2/D and Ex.PW-2/E by threat and coercion. It has also to be

noted that what was the threat extended or in what manner was

she coerced has not been brought on record. We note that a

very important facet of the evidence has not been noted by the

learned Trial Judge, which is fatal to the case of the appellant.

The same is her line of cross-examination adopted when the

respondent was cross-examined. A suggestion has been put to

the respondent that prior to the execution of Ex.PW-2/B at an

oral negotiation the deal was settled at Rs.14.7 lakhs. We just

do not understand as to what was the appellant doing at the

trial. The only logic which we find in the illogical stand adopted

by the appellant is to keep on shooting in the dark hoping that

some bullet may find the target.

21. It is important to note that the first payment made

on 31st December 2003 is by means of three cheques, a fact

admitted by the appellant. Her stand that she received the said

payment under an oral agreement that she would sell the flat

for Rs.17,70,000/- is not acceptable as it runs contrary to the

course of ordinary human conduct being that, a buyer would

insist on a written acknowledgment recording the purpose for

which the payment was made.

22. Though not argued by learned counsel for the

appellant, the appellant cannot take any benefit from the

testimony of Mayank Goswami, the son of the notary public who

had produced a register purportedly maintained by his father

which did not record any entry of Ex.PW-2/B being notarized on

31st December 2003. The reason is obvious, the register did not

have page numbers. Mayank Goswami admitted that he had no

personal knowledge about the register. Surprisingly, he could

not even confirm or deny whether the signatures of the notary

public on the said document were those or not of his father.

23. The conduct of the respondent shows her readiness

and willingness to pay the balance sale consideration and get

executed the sale deed in her favour. We note that no

submission was made by learned counsel for the appellant on

the issue of the respondent not being ready and willing to

perform her part of the contract.

24. On the plea that specific performance should be

denied as a relief to the respondent we note that no equitable

grounds were brought out by learned counsel for the appellant

to entitle her for exercise of discretion in her favour. On the

contrary, the conduct of the appellant is not above board. She

executed the agreement to sell Ex.PW-2/B and the receipt

Ex.PW-2/C as M.Chawla and the other documents were executed

by her as M.Chaterjee. She falsely deposed in her examination-

in-chief that she never signs as M.Chawla, but on sustained

cross-examination admitted that she does so. She admitted

that when she got her daughter Sanjogta admitted in Manav

Sthali School she signed as M.Chawla. She also admitted that in

the complaint made by her to the police, Ex.DW-1/PD she signed

as Minu Chawla. It is apparent that the appellant whose maiden

surname is Chaterjee, after marriage to Om Prakash Chawla

adopted the surname of her husband but for unexplainable

reasons sometimes represented herself to be Minu Chawla and

sometimes as Minu Chaterjee.

25. Discretion has to be exercised on equitable principles

and has to be informed by reason and tempered by logic. The

conduct of a party becomes relevant while considering, in

equity, whether discretion should be exercised to deny relief

which a party is otherwise entitled to in law. We hold that there

is no material on record to exercise discretion by denying the

relief of specific performance to the respondent.

26. The appeal is dismissed with costs in favour of the

respondent and against the appellant.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

December 05, 2008 rk