Yogesh Tyagi vs Kela Devi
2008 Latest Caselaw 2083 Del

*                 IN THE HIGH COURT OF DELHI

                       Judgment reserved on : November 20, 2008
%                     Judgment delivered on : November 26, 2008


+                      RFA 192/2007


YOGESH TYAGI                                ..... Appellant
                  Through:   Mr.Anil Kumar Gupta, Advocate

            VERSUS

KELA DEVI                                    ..... Respondent

                  Through:   Mr.R.C. Nangia, 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. Appellant who was the plaintiff, had filed a suit for

specific performance of an agreement to sell, Ex.PW-1/1,

stated to have been executed by the defendant i.e. the

respondent in the appeal on 19.10.2004, agreeing to sell to

him the property referred to in the agreement, for a total sale

consideration of Rs.16,50,000/- (Rupees Sixteen Lakhs Fifty

Thousand only), out of which Rs.3,00,000/- (Rupees Three

Lakhs only), was stated to have been paid, as recorded in the

agreement, as part sale consideration when Ex.PW-1/1 was

executed. It was pleaded that the agreement recorded that

the respondent would execute the sale deed by 15.2.2005 and

that the appellant made an attempt twice to tender the

balance sale consideration of Rs.13,50,000/- on 24.2.2005 and

10.3.2005; receiving no response from the respondent when

she did not even respond to a legal notice dated 24.3.2005,

Ex.PW-1/3, the appellant had no option but to file the suit.

2. First prayer made in the suit was to specifically

enforce the contract between the parties. Alternate prayer

was that if specific performance was not granted, as per

Clause 1 of the agreement, which stipulated that if respondent

did not comply with her obligations she would pay double the

amount of part sale consideration received, a decree in sum of

Rs.6,00,000/- (Rupees Six Lakhs only) be granted in his

favour.

3. Defence taken in the written statement was of a

complete denial. The respondent denied having executed any

agreement to sell, much less Ex.PW-1/1. It was pleaded that

the appellant was a tenant under the respondent in respect of

one room in the subject property and had earned the

confidence of the respondent who required a separate

electricity connection, for which, the appellant obtained

signatures of the respondent on blank papers. It was pleaded

that Ex.PW-1/1 was created by using the blank stamp paper

on which the respondent had affixed her signatures.

4. On the pleadings of the parties following issues

were settled on 19.1.2006:-

"1.Whether there is no cause of action for filing the present suit as claimed for by the defendant in Preliminary Objection No.5 of her written statement? OPD.

2. Whether plaintiff is tenant under the defendant as claimed for by her in Preliminary Objection No.2 of her written statement? OPD.

3. Whether Plaintiff is entitled to relief of specific performance as claimed for by her or in alternative plaintiff is entitled to recover a sum of Rs.6.00 lakhs from the defendant as claimed for by him? OPP.

4. Whether Plaintiff is entitled to relief of permanent injunction as sought for by him? OPP.

5. Relief."

5. At the trial, the appellant examined himself as PW-

1 and Ram Kumar and Mohd. Iqbal as PW-2 and PW-3

respectively.

6. Appellant deposed that he had purchased the

stamp paper on which PW-1/1 was drawn from the courts at

Seelampur and withdrew Rs.90,000/- from his account

maintained with Vijaya Bank, Loni Road, Shahdara and

borrowed the balance sum from his father when he paid

Rs.3,00,000/- to the respondent and that when he paid the

money to the respondent, Mukesh Sharma, Dhiraj Sharma,

Mohd. Iqbal, Ram Kumar and Chhotey Lal were also present.

He stated that time was extended for completion of the

transactions firstly on 4.2.2005 and secondly on 24.2.2005.

He stated that he got issued the legal notice, Ex.PW-1/3,

dated 24.3.2005, since on 10.3.2005 the respondent did not

appear before the Sub-Registrar for execution of the sale

documents. He stated that the postal envelop, Ex.PW-1/7, in

which the notice Ex.PW-1/3 was sent was returned back to

him with the report of the postman that the respondent had

refused to accept the docket. Appellant also tendered

certified copy of a plaint dated 14.12.2004, Ex.PW-1/9, and a

decision thereon, Ex.PW-1/8.

7. The plaint and the decision evidence that the

grandsons of the respondent, acting through their mother,

instituted a suit for injunction against the respondent alleging

that the property which formed the subject matter of the

agreement to sell was an ancestral property belonging to their

father and that they had learnt that their grandmother had

received Rs.3,00,000/- as earnest money in collusion with

Mr.Mukesh Kumar Sharma and was intending to sell the

property.

8. The decision, Ex.PW-1/8, is the judgment dated

27.5.2005 dismissing the said suit as not maintainable, on

being opposed by the respondent.

9. The appellant identified the signatures of the

respondent on the agreement to sell, Ex.PW-1/1

10. PW-3, Mohd. Iqbal, deposed that he was present

when Ex.PW-1/1 was executed. He identified the signatures of

the respondent on the same and identified the point where he

had appended his signatures as an attesting witness. He

deposed in harmony with the deposition of the appellant of

the respondent receiving Rs.3,00,000/- when Ex.PW-1/1 was

executed.

11. Ram Kumar, PW-2, deposed that he was present,

though has not witnessed the same, when Ex.PW-1/1 was

executed and further deposed that Mukesh and Dhiraj, sons of

the respondent, were also present when the transactions took

place and had signed the agreement as witnesses, apart from

Mohd. Iqbal.

12. The respondent led no evidence, as 4.12.2006 was

the second date notified for leading defence evidence. None

appeared for the respondent on said date and hence she was

proceeded against ex-parte.

13. The suit has been dismissed by returning a finding

on Issue No.2 that the appellant was a tenant under the

respondent, an issue which we find is totally redundant, since

the suit sought a decree for specific performance of the

agreement to sell and it hardly mattered whether the

appellant i.e. the plaintiff was a tenant under the respondent

or not.

14. The first reason given by the learned Trial Judge to

non-suit the appellant on issues No.1, 3 and 4 which have

been decided together is as per finding returned in para 11 of

the impugned judgment wherein it has been held that since

Clause 1 of the agreement, Ex.PW-1/1, recorded that in case

the seller defaulted she would pay double the earnest money

as penalty, the suit for specific performance was not

maintainable.

15. The second reason given by the learned Trial Judge

is that there was variance in the pleadings and proof by the

appellant on the question whether the appellant sought time

to be extended for execution of the sale deed on 15.2.2005

and 24.2.2005 or whether the time was extended at the

asking of the respondent.

16. Noting that in the plaint, the appellant had stated

that time was extended on two dates at the asking of the

respondent, but in his deposition, during cross-examination,

stated that he got the time extended on said dates, the

learned Trial Judge has returned a finding that this shows that

the appellant was not ready and willing to comply with his

obligations to pay Rs.13,50,000/- (Rupees Thirteen Lakhs and

Fifty Thousand only) being the balance sale consideration.

Holding that the appellant was in breach of the agreement,

learned Trial Judge has held that as per the agreement the

earnest money was liable to be forfeited.

17. The result is that the claim in the suit for specific

performance and alternatively for damages has been rejected.

18. We note that the learned Trial Judge has not

discussed the evidence with respect to the defence that the

respondent never executed Ex.PW-1/1 and that her signatures

were obtained on a blank paper.

19. Learned counsel for the appellant urged that the

defendant i.e. the respondent led no evidence. She never

stepped into witness box. Statements made by the appellant

and the witnesses of the appellant to the effect that Mukesh

Kumar and Dhiraj, sons of the respondent, witnessed the

execution of the agreement to sell, apart from Mohd. Iqbal

were never challenged. Thus, counsel urged that

notwithstanding there being no discussion in the impugned

judgment, there is sufficient evidence to establish the due

execution of the agreement to sell, Ex.PW-1/1, and receipt of

Rs.3,00,000/- there under by the respondent.

20. Pertaining to time being extended on two dates i.e.

15.2.2005 and 24.2.2005, learned counsel pointed out that at

the rear of Ex.PW-1/1, there are two writings duly signed by

the respondent and the appellant recording therein that by

mutual consent time for execution of the sale deed was

extended firstly up to 24.2.2005 and there after up to

10.3.2005. Learned counsel urged that the said writings were

sufficient to hold that the time was extended twice by mutual

consent, thus, the finding returned by the learned Trial Judge

of there being a variance in the deposition of the appellant

vis-à-vis his pleadings is incorrect.

21. Lastly, counsel urged that in view of the defence

taken by the respondent, being of a complete denial of the

agreement to sell, where was the occasion for said respondent

to urge that the appellant was not ready and willing to pay the

balance sale consideration?

22. Learned counsel for the respondent conceded that

in view of the fact that the respondent had admitted, in her

pleadings, that the agreement to sell bore her signatures, her

defence of the same being blank when she affixed her

signatures required to be established by the respondent by

leading evidence to said effect and that since she had led no

evidence the presumption that the document, Ex.PW-1/1 was

properly drawn up before it was executed remains and hence

it stands established that the respondent had duly executed

the agreement to sell, Ex.PW-1/1 and had received

Rs.3,00,000/- as part sale consideration.

23. We may note that the agreement to sell, Ex.PW-

1/1, has not only been signed by the respondent but has even

been witnessed by her two sons, Mukesh Kumar and Dhiraj

who are literate persons, which is evidenced by the fact that

Dhiraj has affixed his signatures in English. They would

presumably not sign a document as witnesses if the same was

not scribed before they witnessed due execution thereof. We

additionally note that the respondent never produced, for

cross-examination, her two sons.

24. The suit filed by the grandsons of the respondent

against her, certified copy whereof is Ex.PW-1/9, lends

assurance to the fact that the respondent received

Rs.3,00,000/- from the appellant and had executed the

agreement to sell. Obviously, the factum of her attempting to

sell the suit property came to be known within the family and

her daughter-in-law used her sons i.e. the grandsons of the

respondent to thwart the sale. It is interesting to note that in

the plaint filed by the grand-sons of the respondent, they

stated that their grand-mother had received Rs.3,00,000/- as

part sale consideration.

25. The reasoning of the learned Trial Judge that

merely because there exists a clause of liquidated damages or

a penalty clause in Ex.PW-1/1 disentitles the appellant to

specifically enforce the contract, is a wrong view. The issue

stands settled by the decision of the Supreme Court reported

as (2004) 6 SCC 649 P. D'Souza Vs. Shondrilo Naidu. The view

to the contrary expressed in the decision reported as (1999) 8

SCC 416 Dada Rao Vs. Ram Rao was held to be per incurium.

26. Indeed, the reasons given by the learned Trial

Judge to hold that the appellant has failed to establish his

readiness and willingness to comply with the contract i.e. the

agreement to sell, are patently erroneous and proceed in the

teeth of the written acknowledgements duly signed by the

respondent, recorded at the rear of the agreement to sell

Ex.PW-1/1. The respondent and the appellant have affixed

their signatures at two places by recording as under:-

"Sale document execution time will be extended by the mutual consent of both parties on or before 24.2.2005, both parties have also signed this agreement before the marginal witnesses.

xxxxxxxxxxxxxx

Sale document execution time further will be extended by the mutual consent of both parties on or before 10.3.2005, both parties have also signed this agreement before the marginal witnesses.

xxxxxxxxxxxxxxx"

27. The witnesses to the said writings being executed

by the appellant and the respondent are Mukesh Sharma, the

son of the respondent and Mohd. Iqbal.

28. The learned Trial Judge has ignored that in his

examination-in-chief Mohd. Iqbal had deposed that he was

present when the first extension was recorded at the rear of

Ex.PW-1/1 for completion of the sale document and that the

appellant and the respondent had signed the same in his

presence. He further stated that he was present when the

second extension by mutual consent was recorded and had

witnessed the same when appellant and respondent signed

beneath the writing recording the second extension for

completion of the sale by 10.3.2005. The learned Trial Judge

has further ignored that the testimony of Mohd. Iqbal on said

point was not challenged in cross-examination.

29. It is evidently a case where the learned Trial Judge

has ignored the decision of the Supreme Court in P. D'Souza

Vs. Shondrilo Naidu (supra). Further, the learned Trial Judge

has ignored material evidence to which we have referred to

herein above. The learned Trial Judge failed to appreciate

that the respondent led no evidence. The learned Trial Judge

failed to appreciate that on material particulars, the witnesses

of the appellant were not even cross-examined. Learned Trial

Judge has ignored that the parties recorded, in writing, the

factum of time being extended for execution of the sale deed

by mutual consent. The learned Trial Judge has ignored the

testimony of the appellant that he had thrice attempted to

pay the balance sale consideration and get executed the sale

deed and that the same has not even been challenged in

cross-examination. Lastly, the learned Trial Judge has failed

to appreciate that the respondent refused to accept the legal

notice dated 24.3.2005, Ex.PW-1/3, evidenced by the remarks

of the postal authorities on the registered envelop, Ex.PW-1/7,

that the respondent had refused to accept the same.

30. We accordingly hold that the appellant has

successfully established his readiness and willingness to pay

the balance sale consideration. We allow the appeal and set

aside the impugned judgment and decree dated 27.5.2005.

Suit filed by the appellant seeking a decree for specific

performance of Ex.PW-1/1 is decreed with a direction to the

respondent that she would execute the sale deed to convey

the property which is the subject matter of Ex.PW-1/1 in

favour of the appellant within three months from today. Of

course, within said period the appellant shall deposit

Rs.13,50,000/- with the learned Trial Judge which the

respondent shall be permitted to withdraw after she executes

the sale deed. Needless to state, if the respondent does not

execute the sale deed, the learned Trial Judge would appoint a

Court Officer to do so.

31. The appellant is held entitled to costs all through-

out.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

November 26, 2008 rk