Rajender Kumar Meena vs Smt. Vimla Devi
2008 Latest Caselaw 1536 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      R.F.A. No. 623/2004

     RAJENDER KUMAR MEENA                ........Appellant
              Through: Mr. K.N.Popli, Advocate

                            VERSUS

     SMT. VIMLA DEVI                  ........ Respondents
              Through: Mr. Rakesh Dhingra, Adv. for R-3

                           RESERVED ON:
                            26.08.2008

                         DATE OF DECISION:
%                           04.09.2008

CORAM:
    HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
    HON'BLE MR. JUSTICE SUNIL GAUR

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 was the plaintiff. He had sought specific

performance of an agreement to sell dated 24.9.1999, Ex.PW-

1/1. Appellant has suffered a dismissal of the suit and hence is

in appeal.

2. Claim of the appellant was that pursuant to the

agreement to sell dated 24.9.1999, Ex.PW-1/1, the defendant

had agreed to sell flat bearing No.B-54, Sector 1, Avantika,

Rohini, Delhi - 85 to him for a consideration of Rs.4,50,000/-

and that, as recorded in the agreement to sell, he had paid

Rs.1,50,000/- to the defendant. It was claimed that under the

agreement to sell the period prescribed for completion of the

sale was 15 months and that before said period expired he had

arranged the balance sale consideration in sum of

Rs.3,00,000/-. It was claimed that since respondent avoiding

to execute the sale deed after accepting balance sale

consideration, on 17.11.2000, he had issued a notice requiring

defendant to execute the sale documents and receive the

balance sale consideration. The respondent took the defence

that her son, Pawan, had taken a loan from the plaintiff and

that the plaintiff had obtained signatures of Pawan and her

thumb impression on a blank stamp paper which was used to

create the agreement to sell Ex.PW-1/1. Receipt of

Rs.1,50,000/- as recorded in the agreement to sell was denied.

3. It is thus apparent that on the respective pleadings

of the parties the main issue which was debated was whether

defendant had indeed entered into an agreement to sell as

alleged by the appellant and whether terms thereof were as

recorded in Ex.PW-1/1.

4. The appellant produced his father Puran Chand as

PW-2 and sought to prove the due execution of Ex.PW-1/1.

Puran Chand stated that he was a witness to the agreement to

sell. The appellant also examined himself as PW-1. The

respondent examined, besides herself as DW-1, her son Pawan

as DW-2 as also four other witnesses being B.D.Jain, DW-3,

P.C.Bhutani, DW-4, Pramod, DW-5 and Ashok Kumar, DW-6.

5. DW-3 to DW-6 being witnesses who spoke nothing

about the execution of the agreement to sell and hence

nothing turning on their testimony, their testimony finds no

discussion in the judgment and decree passed by the learned

Trial Judge.

6. After trial the finding returned by the learned Trial

Judge pertaining to the agreement to sell, Ex.PW-1/1 is as

under:-

"Ex.PW-1/1, the alleged agreement to sell, has been typed on a single stamp paper of Rs.10/-. The manner in which this document is typed shows that an attempt has been made to write all the typed material on a single page. The spacing between the paragraphs is not made. Neither sufficient space is made for obtaining the signatures of the parties as well as witnesses. Normally, while executing any legal document which requires to be witnessed the name of the witnesses appear on the left hand side of the documents whereas name and signatures of the first party and the second party are mentioned and obtained on the right hand side of the document. But it is very peculiar that on Ex.PW-1/1, the signatures of the first party and the second party are obtained on the left hand side and the name of the witnesses are mentioned just next to it. No space is left between the last paragraph and for

typing "Signatures of first party, witness number 1. The mere formatting of the whole document clearly shows that an attempt has been made to squeeze all the written material on one page,instead of continuing on the second page. In that case the parties and witnesses would have signed on the subsequent page. This shows that signatures and thumb impressions were already existing on the document and thereafter the matter was typed in squeezing manner to accommodate the signatures and thumb impressions at the places where it existed on the said document. Hence the genuinity of Ex.PW-1/1 cannot be believed.

Moreover, plaintiff has only made bald assertions that he was willing to purchase the suit property for Rs.4,50,000/-. During cross- examination as PW1 he deposed that his annual income was between Rs.60,000/- to 75,000/-. He also deposed that he did not withdraw either the amount of Rs.1,50,000/- paid to the defendant or Rs.3,00,000/- which he intended to pay to the defendant from his bank account. He rather testified that he got this amount arranged from his parent-in-law.

He deposed that his mother-in-law collected Rs.1,00,000/- from her daughter and Rs.50,000/- were taken from his brother-in-law. However, the plaintiff has not examined either his mother-in-law, father-in-law or brother-in-law to prove these contentions."

7. The agreement to sell Ex.PW-1/1 has a covenant

that in case the respondent fails to execute the sale she would

be liable to pay double the earnest money i.e. Rs.3 lacs. The

same reads as under:-

"3. That if the first party does not perform her part of contract within the stipulated period, then the second party shall be entitled to get the said

transaction completed through the Court of law at the cost and expenses of the first party or the second party can take double of the earnest money i.e. Rs. Three Lacs only."

8. Learned Trial Judge has also held that under the

agreement to sell, at best, the appellant could have claimed

Rs.3 lacs and not specific performance of the agreement to

sell.

9. We are in agreement with the submissions made by

learned counsel for the appellant that the alternative view

taken by the learned Trial Judge to decline a decree for specific

performance is incorrect, in view of the decision of the Hon'ble

Supreme Court reported as JT 1999(8) SC 34 Manzoor Ahmed

Margray Vs. Gulam Hassan Aram & Ors. wherein it was

observed as under:-

"7. From a reading of the aforesaid clause in the agreement, it can be stated that it is strictly a penalty clause for securing the performance of the contract. It only provides that if any party violates the terms and conditions of the agreement, he would be liable to pay a penalty of Rs.10,000/-. This would not mean that contract is not to be performed. It would only mean that if there is breach of some terms and conditions of the contract, the defaulting party has to pay the penalty specified therein. The said clause, also, does not provide that in case a sale deed is not executed, damages to the tune of Rs.10,000/- are to be awarded. While dealing with a similar contention and a clause in the contract providing that in case of failure of compliance of terms of agreement, vendor will be liable to refund security deposit and to pay

damages equal to the security, this Court in M.L.Devender Singh v. Syed Khaji [1973 (2) SCC 515] held that there was no mention anywhere in the contract that the party to it will have the option to either fulfil the contract to buy or sell or to pay the liquidated damages or penalty of Rs.20,000/- stipulated for a breach as an alternative to performance of the contract to buy or sell. The Court considered the provisions of Specific Relief Act, 1963, particularly Section 23 (which is similar to Section 20 of the Act of 1877) and held that Section 23 of the Act of 1963 contains a comprehensive statement of the principles on which, even before the Act of 1963, the presence of a term in a contract specifying a sum of money to be paid for a breach of the contract is to be construed."

10. Thus, we concentrate on the first issue, namely

whether the defendant executed Ex.PW-1/1.

11. As has been done by the learned Trial Judge, even

we have perused Ex.PW-1/1. Indeed, to a reader it would be

apparent that the contents of the document have been

squeezed in a manner which is suggestive of somebody trying

to squeeze the entire writing knowing that he has only one

paper to record the entire document. Further, the thumb

impression of the respondent and signature of her son find

appended side by side at the bottom of the paper and under

the thumb impression of the respondent, the notation,

"Signatures of second party" has been typed. Similarly, under

the signatures of Pawan, the notation "Witness No.2" has been

typed.

12. This is suggestive of the version of the respondent

that she and her son were made to affix the thumb impression

and signatures respectively when the document was blank.

The learned Trial Judge is fully justified in relying upon judicial

experience in relation to manner of execution of agreements to

sell where normally it is to be seen that the witnesses append

their signatures to record they having witnessed the execution

of the document by penning the signatures on the left side of

the document and the signatures of the executants normally

found on the right side of the document.

13. Normally, space is given in between the paragraphs

in a document. Ex.PW-1/1 has no space in between the

paragraphs.

14. There is one more feature, not noted by the learned

Trial Judge, which is also reflective of thumb impression of the

respondent being appended and signature of her son obtained

thereon on a blank stamp paper. The same is evidenced from

two facets evident on the face of the document.

15. The notation "Witness No.1" is found typed just

above the letter 'P' forming the first letter of the signature of

the son of the respondent i.e. Pawan. The bottom curve of the

letter 't' forming part of the word "Witness" is clearly printed

above the loop of the letter "P" where Pawan has signed.

Similarly, the thumb impression of the respondent, on the left

margin of Ex.PW-1/1 shows that the letters 'N' and 'O' of the

word "Now" and the numeral '(I)' being the first serial number

of the covenant below the word "Now" and the letters "b" and

"e" forming part of the word "Between" immediately below

serial No.1 have again been printed above the thumb

impression of the respondent, suggestive of the thumb

impression being on the paper before afore-noted letters were

printed thereon. To give clarity to what we are intending to

convey, it may be recorded, that after typing the recitals the

agreement to sell records:

"NOW THIS DEED OF AGREEMENT WITNESSED AS UNDER: (I) That the period for the completion of the said transaction between the parties is fixed up to 15 months from the date of execution of this agreement i.e. 24.9.1999."

16. The thumb impression is where the word "Now", the

numeral '(I)' and the letters "b" and "e" forming the word

"between" are printed.

17. It would not be out of place to note that the

appellant failed to produce any written receipt evidencing

payment of Rs.1,50,000/- to the respondent save and except

the said fact being recorded in the agreement to sell, Ex.PW-

1/1. When questioned as to where from appellant got

Rs.1,50,000/-, inasmuch as no document was filed by the

appellant to prove that the appellant was having said sum with

him, during cross examination, he responded that he took the

money from his brother-in-law and mother-in-law.

18. We note that neither the brother-in-law nor the

mother-in-law of the appellant were produced as witnesses to

establish that they were persons of means and/or they lent any

money to the appellant.

19. That the son of the respondent had obtained a loan

from the appellant and had issued cheques to repay the same

is evident from Ex.DW-6/3, being the certified copy of a

complaint lodged by the appellant under Section 138 of the NI

Act, alleging dishonour of cheques issued to the appellant by

Pawan, the son of the respondent, and no payment tendered

for the cheques when statutory notice was served upon Pawan

upon dishonour of the cheques.

20. We may record that the learned counsel for the

appellant urged before us that a presumption arises that a

document was duly drawn up before it was executed and that

the respondent has led no evidence to prove to the contrary.

Learned counsel urged that PW-2, Puran Chand, a witness to

Ex.PW-1/1 had supported the case of the appellant. These two

were the only submissions made at the hearing of the appeal.

21. We note that Puran Chand is the father of the

appellant and hence is an interested witness.

22. What the eyes can see, the ears may miss. We

have noted hereinabove the inherent features of the disputed

document i.e. Ex.PW-1/1 which features probablizes the

version of the respondent. What is crucial in our opinion is the

fact that certain letters of the document are clearly printed

above the thumb impression of the respondent and pertaining

to Pawan's signatures, as noted above we have noted certain

letters being printed above the signatures of Pawan. They

reveal that the document was typed after thumb impression

and signatures were obtained at a prior point of time.

23. It is settled law that a fact is disproved, when after

considering the evidence before it, the Court either believes

that it does not exist, or considers its non-existence so

probable that a prudent man ought, under the circumstances

of the particular case, to act upon the supposition that it does

not exist.

24. We have satisfied ourselves independently by re-

appreciating the evidence as also by having a visual look at

the disputed document. We are satisfied that the view taken

by the learned Trial Judge is correct.

25. We find no merits in the appeal.

26. The appeal is dismissed.

27. The respondent shall be entitled to cost all through-

out.

PRADEEP NANDRAJOG, J.

SUNIL GAUR, J.

September 4, 2008 mm