Mrs. Butna Devi vs Mr. Amit Talwar & Ors.
2009 Latest Caselaw 3267 Del

.*         HIGH COURT OF DELHI : NEW DELHI

+          I.A.No.14741/2007 in C.S. [OS] No.1687/2006

                                 Reserved on: 13th August, 2009

%                                Decided on:    20th August, 2009

Mrs. Butna Devi                                         ...Plaintiff
                       Through : Mr. R.M. Sinha, Adv.

                       Versus

Mr. Amit Talwar & Ors.                           ....Defendants
                   Through : Mr. D.K. Aggarwal, Adv. with
                             Mr. Raghwendra Kumar Dwivedi,
                             Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                     No

2. To be referred to Reporter or not?                                  No

3. Whether the judgment should be reported                             No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order I shall dispose of the application filed by the

Plaintiff under Order XII Rule 6 read with Section 151 CPC being

I.A.No.14741/07 praying that this court may pass a decree declaring the

sale deed dated 4th August 2006 executed by the plaintiff in favour of

the defendant No.1 as null and void or in the alternative for return of

cheque amount with damages of Rs. 5 lac.

2. The brief facts are that the plaintiff is the exclusive owner

and in possession of the property comprising of entire first floor with

servant quarter on property No.R-563, New Rajinder Nagar, New Delhi

on land measuring about 200 sq.yd. The plaintiff and defendant entered

into an agreement to sell on 2 nd May 2006 for total consideration of

Rs.73.50 lac. The defendant paid Rs.7,25,000/- as part consideration.

The balance amount of Rs.66.25 lac was to be paid on the date of

execution of the sale deed. The sale deed was executed with the office

of Sub Registrar, Asaf Ali Road, Delhi on 4 th August 2006 wherein the

balance consideration of Rs.66.25 lac was shown to have been paid

before the Sub Registrar in the following manner:-

(i) A sum of Rs.35,36,751/- was paid to the plaintiff by defendant

No.1 in cash against acknowledgement till the execution of

sale deed.

(ii) A banker's cheque bearing No. 186931 dated 3 rd August 2006

amount to Rs.30,88,249/- drawn on City Bank (Financial)

Pushp Vihar, New Delhi was handed over to the plaintiff

before the Sub Registrar.

3. The sale deed was executed and got registered before the Sub

Registrar, Asaf Ali Road, Delhi showing the total consideration of the

suit property to be as Rs.35 lac i.e. cash amount of Rs.4,11,751/- and a

banker's cheque amounting to Rs.30,88,249/-. The sale deed dated 4th

August 2006 superseded the agreement to sell dated 2 nd May 2008 and

the receipt dated 13th April 2006 executed by the parties.

4. The contention of the plaintiff is that after fulfilling the

entire formalities, the plaintiff was told that there was a typing error in

cheque as in place of the name of the plaintiff being Smt. Butna Devi,

the words Smt.Bhutani Devi, was typed. The plaintiff was assured that

the correct banker's cheque would be handed over to her within a day.

In view of the said assurance, the plaintiff retained the actual physical

possession of the suit property with her and the same was not handed

over to defendant No.1 for the time being. It is stated in the plaint that

till the filing of the suit, no banker's cheque for a sum of Rs.30,88,249/-

was delivered to the plaintiff, therefore, the present suit has been filed.

5. In the present application, the plaintiff has sought a decree

on the basis of the admission made by the defendant in the written

statement as well as the order passed by this court and the affidavit filed

by the bank. It is prayed that the sale deed dated 4 th August 2006 is to

be declared as null and void because all the facts stated in the sale deed

have been proved to be wrong.

6. The application is opposed by the defendant who has not

denied the mode of payment as well as the execution of the sale deed

between the parties and consideration thereof. It is stated by the

defendant that after the execution of the registration of sale deed, the

plaintiff has voluntarily delivered the said cheque to the authorised

representative of the bank for removal of certain clerical corrections to

enable her to deliver the papers including those relating to mutation etc

to complete the formalities. Since the plaintiff did not complete the

formalities, the defendant bank refused to deliver back the banker's

cheque to the plaintiff. The defendant has also claimed that the

constructive and physical possession of the property remained with the

plaintiff.

7. According to the defendant, the sale deed remain to be

completed as the banker's cheque was delivered before the Sub

Registrar and sent to the plaintiff for receipt of consideration and only

thereafter the process of registration was to commence and concluded.

Defendant No.1 states that he was not aware about the return of the

banker's cheque by the plaintiff. In any case the defendant No.1

throughout was willing to pay the said amount.

8. The contention of the defendant is that in fact it is a case of

collusion between the plaintiff and the authorised representative of the

bank to manipulate ground to wriggle out of the sale transaction and as

such there was neither any demand nor the plaintiff was entitled for any

decree as prayed for and the suit is otherwise liable to be dismissed.

Learned counsel for the defendant has argued that the plaint is liable to

be rejected under Order 7 Rule 11 CPC as there is no cause of action in

favour of the plaintiff. He states that admittedly the substantial amount

has been paid to the plaintiff and the plaintiff is also enjoying the

property after execution of the sale deed in favour of defendants. The

counsel has also referred to the written statement in which it is stated

that the plaintiff is also not willing to receive the balance consideration

against the said banker's cheque from the defendant, therefore, the

question of cancellation of sale deed does not arise. In fact the plaintiff

has made a concocted story to defeat the said transaction. It is further

contended by the learned counsel for the defendant that there is no fault

on the part of the defendant as at the time of execution of the sale deed,

the plaintiff was given banker's cheque and thereafter the sale deed was

executed.

9. After hearing learned counsel for the parties and having gone

through the respective pleadings of the parties, it appears that there is no

specific and clear admission made by the defendant in the written

statement for cancellation of the sale deed nor any positive statement

has been made in this regard. Rather, the plaintiff has admittedly taken

the substantial amount of sale consideration of the property as well as

having the possession of the property. Prima facie, no case under Order

XII Rule 6 has been made out as this Court is of the considered view

that this matter requires trial and it can not be decided in the facts and

circumstances of the matter.

10. It is well settled that a judgment on admissions by defendant

under Order XII Rule 6 CPC is a matter of discretion and not a matter

of right and where a case involves question of facts and law which

cannot be conveniently disposed of on motion under the rule, the Court

may in exercise of the discretion refuse the motion.

11. There is no admission, lest absolute unequivocal,

unambiguous admission by the defendant. Therefore, this court cannot

exercise its discretion in favour of the plaintiff.

12. In the case of Sneh Vasih vs. Filatex India Ltd., 2002 (95)

DLT 373 it was held as under :

"There has to be an admission of fact made in pleadings or otherwise and if such admissions have been made the court at any stage may pronounce a judgment in that regard. This clearly reveals that firstly admissions have to be of facts. Admission

must be clear and unambiguous. No admissions are required obviously with respect to questions of law which can always be gone into. And second important aspect of Order 12 Rule 6, Code of Civil Procedure is that it is not mandatory for the court to act and pass a judgment because facts and circumstances of each case have to be taken note of."

13. The application is, therefore, liable to be dismissed under

these circumstances. It is ordered accordingly. No costs.

C.S. [OS] No.1687/2006

List on 7th October, 2009.

MANMOHAN SINGH, J AUGUST 20, 2009 SD