Iqbal Ahmed vs Abid Khan & Ors.
2008 Latest Caselaw 2241 Del

*                 IN THE HIGH COURT OF DELHI

                      Judgment reserved on : December 10, 2008
%                     Judgment delivered on : December 12, 2008

+                     RFA No. 159/2003

IQBAL AHMED                                   ..... Appellant
                      Through:   Mr.Anis Suharwrdi, Advocate,
                                 Mr.M.Y.Khan, Advocate and
                                 Mr.M.Rais Farooqui, Advocate.

                      versus

ABID KHAN & ORS.                             ..... Respondent
                      Through:   Mr.S.K.Bhaduri, Advocate for
                                 respondent No.1

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 was the defendant No.3. Respondent

No.1 was the plaintiff. The battle in the suit for specific

performance was fought by the two. Defendant No.1, 2 and 2-

A were proforma parties. Hence, they have no concern with

the litigation.

2. Respondent No.1 filed a suit for specific

performance basing his claim on an agreement to sell dated

28.12.1995, Ex.PW-1/5, wherein appellant was stated to have

agreed to sell his property bearing No.33/127, Trilok Puri, Delhi

to him for a sale consideration of Rs.3,20,000/- (Rupees Three

Lacs Twenty Thousand only) out of which, as recorded in the

agreement, Rs.1,20,000/- (Rupees One Lac Twenty Thousand

only) was received when agreement was executed and the

sale had to be completed by 1.5.1996. A separate receipt,

Ex.PW-1/6, issued by the appellant acknowledging receipt of

Rs.1,20,000/- (Rupees One Lac Twenty Thousand only) was

also relied upon. It was pleaded that the plaintiff was ready

and willing to pay the balance sale consideration and that the

appellant was not receiving the same.

3. In the written statement, the appellant described

the agreement to sell as a forged document. He denied

having executed the receipt. He pleaded that he had received

Rs.1,20,000/- (Rupees One Lac Twenty Thousand only) by a

bank draft drawn on the State Bank of India from one Sohan

Lal Kukreti with whom he had an agreement to sell his house

bearing No.34/89, Himmat Puri, Trilok Puri, Delhi.

4. Needless to state on the respective pleadings the

material issues which arose for consideration at the trial were

whether Ex.PW-1/5 was executed by the appellant and

whether the respondent was ready and willing to perform his

obligations under the contract.

5. The plaintiff stepped into the witness box as PW-1

and stated that he was desirous of purchasing the property.

That the appellant wanted a bankers cheque drawn on the

State Bank of India and since he did not have an account with

the bank, the bank refused to issue any bankers cheque. That

he took the help of Sohan Lal Kukreti who had an account in

the said bank. That he withdrew Rs.1,25,000/- (Rupees One

Lac Twenty Five Thousand only) from his bank account

maintained with Punjab National Bank, Trilok Puri; withdrawal

entry being duly reflected in his pass book Ex.PW-1/1; and

deposited Rs.1,20,100/- (Rupees One Lac Twenty Thousand

One Hundred only) in the account of Sohan Lal Kukreti

evidenced by the counterfoil of the deposit slip, Ex.PW-1/2,

and a certificate issued by the banker to said effect, Ex.PW-

1/3. That the withdrawal was further evidenced by the

certificate issued by Punjab National Bank Ex.PW-1/4. He

stated that thereafter State Bank of India prepared the

bankers cheque by debiting the account of Sohan Lal Kukreti

which he paid to the appellant when the agreement Ex.PW-1/5

was executed and the receipt Ex.PW-1/6 was also executed.

He identified the signatures of the appellant on the two

documents at point 'A'. He identified the signatures of the

witnesses at points 'C', 'D', 'E, and 'F'. He deposed that in

April 1996 he got prepared two bank drafts in sum of

Rs.1,80,000/- (Rupees One Lac Eighty Thousand only) and

Rs.20,000/- (Rupees Twenty Thousand only) respectively in the

name of appellant, but since the appellant did not receive the

money he got the two drafts cancelled evidenced by Ex.PW-

1/7, a certificate dated 15.3.1999 was issued by the State

Bank of India certifying that two bankers cheques issued in

favour of the appellant were got cancelled at the request of

the respondent at whose instance the drafts were prepared.

6. The respondent examined three other witnesses

being Bundu Khan as PW-2, Mehfooz Ali as PW-3 and Habib

Khan as PW-4 all of whom claimed to be witnesses to the

agreement Ex.PW-1/5. They affirmed the stand of the

respondent.

7. Appellant examined himself as DW-1 and as

against the stand pleaded in the written statement that Ex.PW-

1/5 was a forged document deposed somewhat at a variance

viz-a-viz his pleadings, by stating that the last page thereof

bore his signatures but that the first two pages were not a part

of the agreement. He deposed that he had entered into an

agreement with Mr.Sohan Lal Kukreti to sell property bearing

No.34/89, Himmat Puri, Trilok Puri, Delhi to him and that he

had received Rs.1,20,000/- (Rupees One Lac Twenty Thousand

only) from said Sohan Lal Kukreti as part sale consideration.

The appellant examined DW-2, Shamil Ahmed, who also

deposed in lines of the appellant pertaining to the appellant

having executed an agreement with Sohan Lal Kukreti.

8. Vide impugned judgment and decree dated

1.11.2002, the suit for specific performance has been decreed.

Finding returned is that the appellant has failed to prove his

ownership qua property No.34/89, Himmat Puri, Trilok Puri,

Delhi and hence his deposition that he had entered into an

agreement to sell the said house to Sohan Lal Kukreti was

false; additionally for the reason Sohan Lal Kukreti never filed

any claim against the appellant. With reference to Ex.PW-1/1

to Ex.PW-1/4, the learned Trial Judge has returned a finding

that the bankers cheque in sum of Rs.1,20,000/- (Rupees One

Lac Twenty Thousand only) was issued by debiting the account

of Sohan Lal Kukreti but money was credited in the said

account when respondent withdrew money from his account

with the Punjab National Bank and deposited the same in the

account of Sohan Lal Kukreti with the State Bank of India.

Learned Trial Judge has disbelieved the appellant that the

agreement in question was executed by him with Sohan Lal

Kukreti and that the first two pages thereof have been

changed.

9. At the hearing held on 10.12.2008, learned counsel

for the appellant sought to draw variations here and there in

the testimony of the witnesses of the appellant, some of whom

did not depose about the appellant having executed any

receipt and the others deposing about the appellant having

executed the agreement to sell and the receipt and that the

respondent stated that the appellant had signed each page of

the agreement to sell but the fact was that the first two pages

thereof did not bear the signatures of the appellant.

10. It is settled law that minor variations in the

testimony of witnesses of a party are not fatal. Material

contradictions alone jeopardize the testimony of witnesses.

11. In the instant case, to succeed on the defence

urged, the appellant had to establish that he had entered into

an agreement to sell with Sohan Lal Kukreti and that

Rs.1,20,000/- (Rupees One Lac Twenty Thousand only)

received by him pertained to the said agreement. The

appellant also had to establish that the said agreement related

to property No.34/89, Himmat Puri, Trilok Puri, Delhi; of which

he was the owner.

12. As noted above the appellant examined himself as

DW-1. He was cross-examined qua the ownership of property

No.34/89, Himmat Puri, Trilok Puri, Delhi. It was put to him

that one Anwari Begum is the owner of the property.

13. Being relevant, we quote from the testimony of the

appellant when he was cross examined:-

"I do not know whether property No.34/89 belongs to Smt. Anwari Begum or not. It might be hers...... I have entered into an agreement with one Mr.Ahmad Ulah on an unstamped paper in respect of property No.34/89, Himmat Puri..... I did not check the papers of ownership in favour of Ahmad Ulah...... At present

one person known to me is residing in property No.34/89 but I do not know the name of the said person. He has shifted into the said property for the last one or two day..... Till date I have not paid any further amount to Ahmad Ulah...... I am not aware if the monthly installment of premises No.34/89 is Rs.63.20 and the same is being paid to the DDA by Anwari Begum in her name. I am not aware as to in whose name is the electricity and water connection of property No.34/89."

14. It is not in dispute that property No.34/89, Himmat

Puri, Trilok Puri has been allotted by DDA under a hire

purchase. The appellant had thus to establish title to the said

property through the person to whom DDA had allotted the

said property on hire purchase. As noted above, the appellant

claimed title through Ahmad Ulah and admitted that the only

document of title was an agreement on an unstamped paper.

It is of importance to note that Ahmad Ulah was not examined

by the appellant. Further, the unstamped paper on which the

alleged agreement was purportedly executed by Ahmad Ulah

can be created at any point of time and hence would be a

suspicious document. That apart, if the appellant had

purchased the same from Ahmad Ulah normal conduct would

have been that of the owner of the property; who would know

as to in whose name the water and electricity connection has

been sanctioned and as to who is in possession of the

property. The appellant knew nothing about said facts which

lead us to infer that the appellant has no concern with the said

property.

15. It has to be noted that as against the stand in the

pleading that Ex.PW-1/5 was a forged document, evidence

sought to be led by the appellant was at variance; in the

evidence the appellant sought to prove that the first two pages

of the agreement were changed and only the last page was

retained.

16. We are satisfied with the view taken by the learned

Trial Judge that the appellant has failed to prove ownership of

property No.34/89, Himmat Puri, Trilok Puri, Delhi and thus

there was no occasion for him to enter into an agreement for

sale of the said property.

17. The said finding knocks of the very foundation of

the defence of the appellant. That apart, the appellant had to

examine Sohan Lal Kukreti to prove that he had entered into

an agreement with Sohan Lal Kukreti. If indeed, Sohan Lal

Kukreti had paid Rs.1,20,000/- (Rupees One Lac Twenty

Thousand Only) to the appellant for purchase of a property by

him, normal human conduct would have been for Sohan Lal

Kukreti to lay a claim under the said agreement.

18. Ex.PW-1/1 to Ex.PW-1/4 conclusively prove that the

funds utilized when the draft in sum of Rs.1,20,000/- (Rupees

One Lac Twenty Thousand Only) was issued by the State Bank

of India in favour of the appellant came from the respondent.

19. Pertaining to the readiness and willingness of the

respondent, Ex.PW-1/7 concludes the issue inasmuch as the

respondent has proved having the requisite funds, and in fact

having got prepared two drafts payable in the name of the

appellant for the balance sale consideration before the date

specified in the agreement for the sale to be completed had

lapsed.

20. A last submission made by counsel for the appellant

may be noted. With reference to the clause in Ex.PW-1/5 that

in case of default by the seller, the buyer would be entitled to

double the amount of earnest as recompense requires

monetary compensation to be paid to the respondent and not

the specific performance of the agreement to sell.

21. The issue pertaining to such clauses in the

agreement to sell stands concluded by the decision of the

Supreme Court reported as AIR 2004 SC 4472 P. D'Souza

Vs. Shondrilo Naidu.

22. It was held that such a clause does not prohibit a

claim for specific performance.

23. We find no merits in the appeal.

24. The same is dismissed with costs.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

December 12, 2008 rk