Jaswant Singh vs Smt. Surinder Kaur Kohli
2009 Latest Caselaw 555 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                Date of Reserve: January 28, 2009
                                                  Date of Order: February 16, 2009

+ CS(OS) 1559 of 2008
%                                                           16.02.2009
     Jaswant Singh                                   ...Plaintiffs
     Through: Ms. Kiran Suri with Mr. Purvesh Buttan & Ms. Aparna Bhat,
     Advocates

               Versus

       Smt. Surinder Kaur Kohli,                                  ...Defendant
       Through: Mr. Vineet Bahl, Advocate


       JUSTICE SHIV NARAYAN DHINGRA

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 judgment should be reported in Digest?                                  Yes.


       JUDGMENT

1. This suit has been filed by the plaintiff for declaration of sale deed

executed by the plaintiff in favour of the defendant as null and void and

thereafter cancellation of the sale deed dated 23rd January 2008 executed by

the plaintiff in favour of the defendant at the Sub Registrar's Office vide

Registration No.422, Additional Book No.1 Vol. 877, Pages 109 to 114.

2. It is submitted by the plaintiff that the value of the property transferred

by the virtue of the sale deed was Rs.85 lac and out of that Rs.25 lac was the

sale consideration mentioned in the sale deed and Rs.60 lac was to be paid in

cash by the defendant by the same evening. He took the plea that the

defendant played foul play and did not hand over the cash and also did not

hand over the cheques as mentioned in the sale deed. The plaintiff has

CS (OS) 1559/2008 Jaswant singh vs. Smt. Smt. Surinder Kaur Kohli Page 1 Of 5 valued the suit for the purpose of jurisdiction at Rs.85 lacs but for the purpose

of court fees, he has not valued the suit and stated that the Court fee paid as

Rs.20 only. While issuing summons of the suit, this Court had left the question

of court fee open and allowed registration of the instant plaint.

3. The statement of plaintiff under Order 10 CPC was recorded by this

Court on 13th January 2009. The statement tendered by the plaintiff is not in

conformity with the plea taken by the plaintiff in the suit. While in the suit,

the plaintiff has taken the plea that the sale deed was executed as a security

and the property was to be transferred back. In his statement under Order 10

CPC, he has not taken this stand and rather had taken the plea that he had

entered into an oral agreement initially and he had executed the sale deed

since he was under debt and he needed finance as they had to pay money to

State Bank of India, Punjab National Bank, Rajasthan Bank and Syndicate

Bank. The total money payable by him and his son to various banks was

around Rs.5 crore. He stated that he had mortgaged this property to

Allahabad Bank and the title deeds of the property were lying with Allahabad

Bank.

4. Some of the provisions of the sale deed executed by the plaintiff are as

under:

"NOW THIS SALE DEED WITNESSETH AS UNDER:

1. That the Vendor has received the entire sale consideration i.e. Rs.25,00,000/- (Rupees Twenty Five only), from the Vendee, details are as under:

(i) Rs.8,00,000/- vide Cheque No.076298 dated 23.01.2008

(ii) Rs.8,00,000/- vide Cheque No.076299 dated 23.01.2008

(iii) Rs.9,00,000/- vide Cheque No.076300 dated 23.01.2008

CS (OS) 1559/2008 Jaswant singh vs. Smt. Smt. Surinder Kaur Kohli Page 2 Of 5 Drawn on Punjab & Sind Bank, Mota Singh Branch, Guru Harkishan Nagar, New Delhi-110 087

which is full and final settlement, prior to the execution of this sale deed and the Vendor thereby admit and acknowledge the receipt of the same before the sub- registrar, Delhi, at the time of presentation/ registration of this Sale deed and the Vendor of his/ her free will, sound, mind, good health and without any pressure and/or influence of any one, hereby sell, convey, transfer and assign the aforesaid property to and in the name of the Vendee free from all encumbrances, TO HAVE AND HOLD the same by the Vendee absolutely.

2. That in consideration of above amount, the Vendor do hereby absolutely assigns, sells, conveys and transfers all his/her rights of the ownership, titles and interests whatsoever in the said floor under sale, together with all ways, paths, passages, rights, benefits, easements, options, privileges and appurtenances thereto unto the said Vendee and the Vendee have hereinafter become the absolute owner of the above mentioned floor under the sale and the Vendee shall enjoy all the absolute and exclusive rights of ownership, titles and interest of the said floor without any interruption, disturbance and demand whatsoever from the Vendor or his heirs, successors, administrations, survivors and assignees etc.

3. That the Vendor has relinquished /released all his rights, title interest of the said floor in favour of the said vendee, in all respects and the vendor has no right, share, titles, interest, claims, concern, whatsoever in respect of the said floor and the Vendee have hereinafter become the sole and absolute complete owner of the said floor and she is at liberty to utilize, enjoy as per her ability to give the property to any one and or to sell the same as per her sweet will and in the manner she like.

4. That the vendor has delivered the vacant physical possession of the said ground floor without roof rights to the Vendee who has occupied the same.

5. That all dues and demands such as property tax, water and electricity bills, relating to above said floor of the said property upto the date of execution of this sale deed shall be paid and cleared by the vendor and thereafter the Vendee shall pay all such dues and taxes to the authorities concerned.

6. That all costs of stamps and registration fee of this

CS (OS) 1559/2008 Jaswant singh vs. Smt. Smt. Surinder Kaur Kohli Page 3 Of 5 sale deed have been paid and borne by the Vendee"

(emphasis added)

5. The statement of the plaintiff recorded in the Court also shows that the

plaintiff was a businessman and he had been in trading business from 1978 to

1998 and thereafter he started doing business of fabrication of readymade

clothes with his son. He was not an illiterate person and had working

knowledge of English language and could understand English. He had

understood the nature of documents before signing the same.

6. Since the suit has been filed by the plaintiff for cancellation of the sale

deed of a property worth Rs.85 lac, it is apparent that in order to avoid

payment of correct court fees for transferring back the property worth Rs.85

lac, he camouflaged the suit in the form of declaration that the deed was void

and was not binding on the plaintiff. In all such cases where cancellation or

voiding of the sale deed is sought, it implicitly amounts to a claim over the

property already sold and possessions delivered. Section 7 (iv) (c) of the

Court Fees Act would apply and the plaintiff is bound to pay the Court fees on

the valuation of the suit put by him for the purpose of jurisdiction. Plaintiff

cannot affix a court fee of Rs.20 as levied by the plaintiff where the suit is for

cancellation of the sale deed on the ground of foul play or coercion or undue

influence, which comes within the ambit of Section 7(iv) (c). The Court fee has

to be paid on the valuation of the suit put by the plaintiff for the purpose of

jurisdiction only.

7. The contention of the plaintiff that defendant fraudulently made the

plaintiff execute the sale deed, without payment of consideration, on the face

of it cannot be considered even for the purpose of Court fees, in view of

CS (OS) 1559/2008 Jaswant singh vs. Smt. Smt. Surinder Kaur Kohli Page 4 Of 5 settled law that any amount of oral evidence cannot be considered by the

court when the parties have entered into a written contract and the written

contract will have the precedence. Where the sale deed, on the very face of it

had been duly executed and registered and title and possession have passed

to defendant by virtue of the sale deed, a declaration of sale deed being void,

would necessarily implicit cancellation of the sale deed and the consequential

relief of passing of title back to the plaintiff is implicit in the prayer and,

therefore, suit is governed by Section 7(iv) (c) of the Court Fees Act and not

by Schedule II, Article 17(3). In fact by filing this suit, the plaintiff has claimed

title over the property which, according to plaintiff if Rs.85 lac. Thus, the

plaintiff is liable to pay Court fees on this amount. The suit of the plaintiff is

thus liable to be rejected on the ground of non-payment of court fees.

However, the plaintiff is given a chance to pay the Court fee on the value of

Rs.85 lac, as put by the plaintiff for the purpose of jurisdiction, within three

weeks from today. In case the court fee is not paid within three weeks, the

suit is liable to be rejected on this ground.

8. List on 2nd April 2009.

February 16, 2009                                   SHIV NARAYAN DHINGRA J.
rd

CS (OS) 1559/2008 Jaswant singh vs. Smt. Smt. Surinder Kaur Kohli Page 5 Of 5