Rishi Dev Batra vs Dr. (Mrs.) Anup Suri
2008 Latest Caselaw 1726 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI



                       RFA (OS) No. 44/2007


                                           th
                 DATE OF DECISION: 24 September, 2008



RISHI DEV BATRA                                 .... Appellant

                            Through:   Mr. Rakesh Tikku, Advocate.




                                 Versus



DR. (MRS.) ANUP SURI                            ..... Respondent

                            Through:   Mr. Amity Kapoor with

                                       Ms. Garima Kapoor,

                                       Advocates



CORAM:

HON'BLE MR. JUSTICE MUKUL MUDGAL

HON'BLE MR. JUSTICE MANMOHAN



1. Whether Reporters of local papers may be allowed to see the

  judgment?                                           Yes

2. To be referred to the Reporter or not?             Yes

3. Whether the judgment should be reported in the digest? Yes


RFA (OS) No. 44/2007                                         Page 1 of 10
                            JUDGMENT

MUKUL MUDGAL, J: (ORAL)

th

1. This appeal challenges the order dated 15 March, 2007

whereby Appellant's suit for specific performance and perpetual

th injunction on the basis of receipt dated 28 August, 2003 was

dismissed by the learned Single Judge. It was also held that the

appellant had no arrangement to pay the balance sale

consideration and as such he was not ready and willing to

purchase the sale property.

2. The facts of this case as averred by the Appellant are as

follows:-

(a) The Plaintiff/Appellant herein entered into an Agreement to th Sell dated 28 August, 2003 with the Defendant/ Respondent

herein in respect of property bearing No. 8/273, Sunder Vihar,

Paschim Vihar, New Delhi for a sale consideration of Rs. 70

Lacs.

(b) Pursuant to the said Agreement to Sell the Appellant paid

an earnest money of Rs. 5 Lakhs to the Defendant/Respondent

herein, and balance amount of Rs. 65 Lakhs was agreed to be

paid after conversion of the suit property from leasehold to th freehold by the Respondent by 14 December, 2003.

(c) However, as per the Appellant, the Respondent failed to

perform her part of agreement since she failed to get the suit

property converted to freehold.

(d) Consequently, the Appellant filed a suit bearing CS (OS)

No. 902/2005 for specific performance and perpetual injunction.

(e) The suit of the Appellant for specific performance and

perpetual injunction was dismissed on the basis of the receipt th dated 28 March, 2003.

(f) Thereafter, the appellant filed the present appeal.

3. The learned Counsel for the Respondent filed a written

statement and urged that the Appellant's case in the suit as well

as in the present appeal is based on forged document. The

th receipt dated 28 August, 2003 was tampered and the words "&

freehold basis" which were never written in the original

agreement, were added afterwards. It was submitted by the

learned counsel for the Respondent that during the course of

hearing before this Hon'ble Court, the Appellant had himself

admitted that these words were added later on. It is also averred

by the counsel for the Respondent that the Appellant failed to

make the payment of balance sale consideration of Rs. 65 Lacs

th by 14 December, 2003 and there was no obligation on the part

of Respondent to get the property converted from leasehold to

freehold. The Appellant himself was required to get this property

converted from leasehold to freehold and the Respondent was

only to sign the necessary papers and assist the Appellant in

applying for the said conversion.

4. The Counsel for the Respondent also pointed out that even

at the time when the Agreement was entered into between the

parties, the application for conversion with DDA was pending and

the Respondent was already holding the required documents

from her children.

5. He further contended that in and around mid of September,

2003 one Shri Devender Kumar on behalf of Appellant

approached the Respondent and told her that she had to execute

fresh document from her son and daughter who were in USA and

only then the process of conversion can be completed. Even

though the Respondent was surprised by the Appellant's

conduct, she nevertheless contacted her children and received a

th fresh Power of Attorney dated 24 October, 2003 from her

daughter whereby she was authorized to get the conveyance

deed executed. She also received a power of attorney from her

son from USA.

th

6. On 13 December, 2003 the Appellant informed the

Respondent that having suffered huge losses in his brick

business in Orissa, he could not at that moment pay the balance

sale consideration and offered only Rs. 1 Lac which was refused

by the Respondent who demanded the entire balance sale

consideration. Since the balance sale consideration was not

th paid by the Appellant by 14 December, 2003, the Agreement

stood cancelled and became null and void.

7. The Learned Single Judge after hearing the pleadings of

the parties framed the following issues:-

"1. Whether the plaintiff had materially altered and forged exhibit P-1 i.e. Agreement-cum-receipt by adding the words "& freehold basis" as alleged in the written statement and, therefore, the suit is liable to be dismissed as such? OPD.

2. Whether the plaintiff has always been ready and willing to purchase the suit property?

3. Whether the plaintiff failed to perform his obligations under the Agreement/Receipt dated 28.08.2003?

4. Whether the suit is maintainable in its present form?

5. Whether the plaintiff is entitled to the relief(s) prayed for?"

8. There are various versions stated by the appellant

regarding addition of the words "& free hold basis".

"a) In the statement recorded on 12.09.2005 under Order X Rule 1, the appellant states that the receipt was signed at the house of one of his friends Sh. Yash Pal Chawla. Smt. Anup Suri alongwith one another person who was accompanying her brought the receipt- cum-agreement which was already filled up and there was no carbon copy. The person who was accompanying the respondent had added those words and then the appellant signed the same.

b) In the cross examination of the appellant conducted on 12.02.2005 he says that besides Dr. Suri, Mr. Chawla and a persons with Dr. Suri whose name he does not remember, Mr. Davinder was also there. He says that

he does not remember whether there was any carbon copy attached to the agreement. He also goes on to say that Mr. Ramesh had probably in his handwriting added the said expression."

9. The Learned Single Judge on the basis of the evidence

recorded the following findings:-

a) The words "& freehold basis" were th added subsequently and the receipt dated 28 September, 2003 has been tampered with.

b) Non-payment of balance sale consideration demonstrates that the Appellant was not ready and willing to perform his part of agreement.

c) The words "& freehold basis" were added with different ink which fact was not denied by the Appellant. Except for these words all other blanks which were filled were in dark blue ink colour whereas these words were in black/black-blue ink colour.

d) The conduct of the Appellant also found false qua the stand adopted by him. The payment of balance sale consideration was to th be made on or before 14 December, 2003. The Appellant did not write any letter to fulfill the said obligation so as to pay the said money. In fact, there was complete lack of th correspondence between the parties from 14 th December, 2003 till 5 May, 2005 when the first time legal notice was sent by the Appellant to the Respondent.

e) The Appellant admitted during the cross examination by the Respondent that at no point of time he had Rs. 65 Lacs in his bank

account and the Appellant only stated that he could arrange the money from his father as he had a lot of money.

f) In the statement recorded under Order th X Rule 1 on 12 September, 2005 the Appellant categorically stated that there was no carbon copy along with the Agreement but in his cross examination as a witness, he stated that he does not remember whether there was any carbon copy attached to the Agreement. The Appellant also mentioned that the Respondent had already spent Rs. 20,000/- for getting the property converted from leasehold to freehold and if the Respondent had spent this amount, there was no question of Appellant's recovering the amount from the Respondent by adjusting the same from the sale consideration. This demonstrates that the Appellant did not have the money to pay the balance sale consideration that is why he kept quite. He thus failed to perform his part of obligation under the Agreement by making payment of balance sale consideration.

10. The Learned Counsel for the Appellant sought to displace

the above findings by submitting that the alteration to the receipt

was made in different ink but these alterations were made before

the Agreement was signed, which after a careful examination of

the original document was not believed by the learned Single

Judge and in our opinion rightly so. The entire circumstances of

the case and in particular the fact that the Appellant could not

show his readiness and willingness by way of establishing the

availability of the balance sale consideration in any manner

clearly shows that whatsoever the facts and circumstances of the

case are, the Appellant was not entitled to a decree of specific

performance. Even assuming that there was a breach by the

Respondent, the fact that the Appellant kept quiet for the period

th th from 14 December, 2003 to 5 May, 2005 eloquently

demonstrates that whatever the remedy Appellant could have, he

was certainly not entitled to a decree of specific performance. In

fact, the learned Single Judge noted the plea of the Respondent

that even in the event of breach of the agreement by the

Respondent the Appellant was only entitled to double the amount

of Rs. 5 Lacs as compensation. Even though the learned Single

Judge chose not to decide this issue, nevertheless, in the interest

of justice we asked the learned Counsel for Respondent to pay

double of aforesaid amount of Rs.5 lacs i.e. Rs. 10 Lacs to the

Appellant in full and final settlement of his claim. However, the

Appellant declined to accept this suggestion even though the

Respondent had agreed to pay Rs. 10 lakhs to the Appellant.

11. After perusal of the facts and circumstances of the case, it

is aptly clear that the Appellant tampered with the receipt dated

28.08.2003, never had the requisite funds and had no intention to

proceed with the transaction. Accordingly, we are satisfied that

no case is made out to interfere with the findings of learned

Single Judge. Consequently, the present appeal being devoid of

merits is dismissed with cost of Rs. 20,000/- to be paid to Delhi

Legal Aid Services Authority not later than four weeks from

today.

MUKUL MUDGAL, J.

MANMOHAN, J.

SEPTEMBER 09, 2008

rn/sk