Aggressive Exports Industries ... vs Shri Ram Kumar
2009 Latest Caselaw 4533 Del

              * IN THE HIGH COURT OF DELHI AT NEW DELHI


                                          Date of Reserve: 3rd November, 2009
                                            Date of Order: November 09, 2009

IA No. 6941/2009 in CS(OS) No. 956/2009
%                                                              09.11.2009


       Aggressive Exports Industries Pvt. Ltd.          ... Plaintiff
                        Through: Mr. Sandeep Sethi, Sr. Advocate with
                        Mr. Sanjay Manchanda, Advocate

              Versus

       Shri Ram Kumar                                        ... Defendant
                             Through: Mr. A.K.Verma, Mr. Siddharth Yadav
                             & Mr. Vibhu Verma, Advocates

JUSTICE SHIV NARAYAN DHINGRA
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?


ORDER

In a suit for specific performance, the plaintiff has filed this application under Order 39 Rule 1 & 2 CPC seeking injunction against the defendant so as to restrain the defendant, his legal heirs, representatives, nominees etc. from creating any third party interest in the suit property.

2. The case of plaintiff is that the plaintiff had entered into an agreement to sell with defendant to purchase his 1/16th share in respect of agricultural land comprising in M.No. 25, Khasra No. 9(4-0), 10(3-0), 11(3-14), 12(3-12), 16(4-16), 20/2(1-17), M.No. 56, Khasra No. 13(2-16), M.No. 32 Khasra No. 11(4-16), 12(4-6), M.No. 31 Khasra No. 11/2(1-16), 12(4-16), 18(4-16), 19(4-16), 20(4-16), 21/1(2-10), M.No. 38 Khasra No. 1/1(2-10) and

1/8th share of agricultural land comprising in M.No. 38 Khasra No.1/2(2-6), 2(4-16), 3(4-16), 4/1(2-3), 9/1(2-13), M.No. 32 Khasra No. 21(4-16), 22/1(3-

11), M.No. 32 Khasra No. 6(4-16), 15(4-16), 16(4-16), M.No. 24 Khasra No. 24(4-16), M.No. 23 Khasra No. 10(4-4), 11/2(4-14), 20/2(2-18), 21/1(0-10), M.No. 24 Khasra No. 15/1(1-15), 16/1(1-15), 25/1(1-10) M.No. 32 Khasra No. 5/1/1(0-1) in Village Samalkha, Tehsil Vasant Vihar, New Delhi.

3. As per plaintiff, the price settled between the parties was Rs.15 crore for the share of the defendant in the above land. The plaintiff paid Rs.1,50,00,000/- as earnest money by Pay Order to the defendant and balance amount was payable against execution and registration of Sale Deed on 24th August, 2006, i.e. the date as agreed. The Pay Order was encashed by the defendant. In the same Khasra numbers Ramanand and another person Kisna also had their shares. Ramanand had the same share as the defendant had and the plaintiff agreed to purchase the share of Ramanand also for the same amount of Rs.15 crore and paid Rs.1.5 crore as earnest money. Shri Kisna had share double the share of the defendant and plaintiff had agreed to purchase his share also for a sum of Rs.30 crore. It is submitted that it was recorded in the agreement that proceedings for a part of the said land were pending under Section 81 of the Delhi Land Reforms Act in the Court of Revenue Authority (South & West) (SDM), Delhi and as soon as the proceedings were over the land was to be transferred in favour of the plaintiff. While the plaintiff had all along been willing and ready to pay the balance consideration, the defendant kept on promising the plaintiff that as soon as since the proceedings would be concluded, steps would be taken for applying of NOC and transaction would be completed. The defendant took further payment of Rs.5 crore form the plaintiff assuring that the proceedings under Section 80(1) of Delhi Land Reforms Act were likely to be quashed/set aside and the execution of sale deed would be done soon. Thus, the defendant received a sum of Rs.6.5 crore against a total consideration of Rs.15 crore, from the plaintiff. The defendant again approached plaintiff and demanded a further sum of Rs.1 crore. The plaintiff handed over a cheque of

Rs.1 crore in the name of the defendant but made it clear that said amount shall be paid, provided defendant applied for NOC with Revenue Authorities for sale of the said land and it was an understanding between the parties that the cheque shall be presented only after application for obtaining NOC was made. However, defendant did not make an application for NOC before the Revenue Authorities and presented the cheque for clearance. The plaintiff issued instructions to banker to stop the payment thus, the cheque got dishonoured. The defendant issued a legal notice invoking Section 138 of the Negotiable Instruments Act. This notice was duly replied by the plaintiff giving the facts and circumstances. Thereafter, plaintiff requested defendant to take necessary steps for fulfilling his contractual obligation under the agreement to sell but defendant was not inclined. Other co-owner of the land Shri Kisna had also not fulfilled his obligation under agreement to sell and plaintiff filed a suit being CS(OS) No. 427/2007 against Kisna which is pending before the Court. The defendant instead of fulfilling his contractual obligations started influencing the plaintiff to withdraw the suit filed by the plaintiff against Kisna. Since the plaintiff was not inclined to meet the demands of the defendant, plaintiff also sent a notice and a reminder to the defendant for fulfilling its contractual liability. However, the defendant failed to obtain NOC and thereafter to execute the sale deed in favour of the plaintiff in respect of the land in question. It is submitted by the plaintiff that defendant turned dishonest and despite receiving substantial part of consideration out of total consideration of Rs.15 crore, the defendant had told the property broker of area to find buyers for the land and the defendant was likely to enter into another agreement to sell with another buyer. Under these circumstances, prayer is made that the defendant should be restrained from creating any third party interest or entering into an agreement to sell with a third person in respect of the suit land. Prayer is also made that defendant be also restrained from parting with the possession of the suit property.

4. In the WS it is stated by the defendant that the suit was filed mala fidely and it was plaintiff who was guilty of breach of the contract.

Plaintiff could not muster the required funds for purchase of land in question for the agreed amount and started cooking stories. Plaintiff was also guilty of concealment of facts alteration/fabrication of documents and of filing fabricated documents in the Court with a view to obtain favorable order by misleading the Court. It is submitted that the fabrication of documents came to the knowledge of the defendant when notice of the Court was received along with plaint and defendant saw that the agreed price stated by the plaintiff was Rs.15 crore instead of Rs.30 crore. The conduct of plaintiff in altering and fabricating the document was highly objectionable and the case of the plaintiff was based on false averments. It is stated that price as mentioned in the agreement to sell was Rs.30 crore which the plaintiff has altered by tampering with and converted it to Rs.15 crore as was clear from the agreement to sell itself. It is stated that in view of forgery and tampering with the documents, the plaintiff was not entitled for any relief and the suit of the plaintiff was liable to be dismissed on this ground alone.

5. The plaintiff along with suit has filed the original agreement to sell. A perusal of original agreement to sell shows that the amount as typed in the agreement to sell was Rs.30 (Thirty) crore and this amount has been scored of by pen and figures '30' &'thirty' has been substituted by figure '15' & 'fifteen'. This scoring is at four places where the amount was mentioned in figures and words and 'thirty' & '30' has been corrected to read as 'fifteen' & '15' and countersigned by plaintiff's director. Relying on this scoring of Rs.30 crore and making it read as Rs.15 crore, learned counsel for the defendant has stated that application under Order 39 Rule 1&2 CPC should be dismissed.

6. It is undisputed that there were three persons who were having shares in the land and with whom plaintiff entered into agreement to sell. The defendant Ram Kumar, one Mr. Ramanand were having equal share and Shri Kisna was having double the share. It is also undisputed fact that shares of Ramanand, Kisna and defendant had been agreed to be purchased by the

plaintiff vide three separate agreements to sell. It is also undisputed that all the three are related. While Ram Kumar and Ramanand are brothers Kisna is their paternal uncle. It is submitted by learned Counsel for plaintiff that the land agreed to be purchased by the plaintiff from above three persons formed part of the same Khasra numbers. There was no reason that the plaintiff would have agreed for paying to Ram Kumar and Ramanand double the price which it had agreed to pay to Shri Kisna (because Kisna has double the land). Counsel for plaintiff submitted that there occurred a typographical error in agreement to sell executed with Ramanand and Ram Kumar due to use of computers. Initially, the agreement was prepared in respect of land of Shri Kisna and the consideration stated was Rs.30 crore. While all other terms and conditions in the agreements to sell of Ramanand and Ram Kumar were same except the consideration which was half than the consideration payable to Kishna as his land was double the land of defendant. Inadvertently, the consideration was typed as Rs.30 crore instead of Rs.15 crore as was typed in the agreement to sell with Kisna. It is stated that in case of Kisna the earnest money paid was 10% of the price means Rs.3 crore and in case of Ram Kumar and Ramanand the earnest money paid was Rs.1.5 crore to each which comes to 10% of Rs.15 crore. It is stated that the earnest money of Rs.1.5 crore is shown paid to defendant which shows that the price agreed between the parties was Rs.15 crore for the share each of Ram Kumar and Ramanand and Rs.30 crore was amount payable to Kisna. The mistake in typing was discovered before signing of the agreement and at the time the agreement was signed the correction was made in the amount from Rs.30 crore to Rs. 15 crore. There was no forgery and it was only a corrected figure duly countersigned by the party to the agreement to sell.

7. While the counsel for defendant has vehemently opposed the maintainability of suit as well as application seeking interim injunction on the ground of forgery. I consider that the issue of forgery cannot be decided just on the basis of oral submissions made by the Counsel or by just making allegations by one party and denial of allegations by other party. Issue of

forgery has to be decided on the basis of evidence. However, prima facie the contention of learned Counsel for plaintiff has force that plaintiff would not have agreed to pay the double the price to Ram Kumar and Ramanand than what it had agreed to pay to Kisna for the land falling within the same Khasra numbers, similarly situated. If the land had been at different places forming part of different Khasras, one could imagine the value of land being different or changing. When the land agreed to be sold by Kisna formed part of same khasra, it does not appeal to the reason that plaintiff would have agreed to purchase the land from Ram Kumar or Ramanand for Rs.30 crore and would have also agreed to purchase the double the area which fell in the share of Kisna also for Rs.30 crore. Therefore, the stand taken by the Counsel for plaintiff that there was typographical error is a plausible stand.

8. At this stage the Court is not required to form an opinion about the forgery. The Court has only to see that since it is a suit for specific performance whether the subject matter of the suit should be protected during pendency of the suit or not. It is not disputed that the plaintiff had paid substantial amount of Rs.6.5 crore to the defendant. It is also not disputed that Rs.1.5 crore was the earnest money as mentioned in the agreement to sell, under these circumstances I consider that prima facie plaintiff has a good case and the balance of convenience also lies in favour of plaintiff. In case, the property is sold off by the defendant, the suit for specific performance itself would become infructuous and the plaintiff would suffer irreparable loss.

9. I, therefore consider that the application of the plaintiff is liable to be allowed and is hereby allowed. The defendant, its legal heirs, representatives, assignees, agents etc. are restrained from entering into any agreement to sell or alienating or in any way encumbering property falling in M.No. 25, Khasra No. 9(4-0), 10(3-0), 11(3-14), 12(3-12), 16(4-16), 20/2(1-

17), M.No. 56, Khasra No. 13(2-16), M.No. 32 Khasra No. 11(4-16), 12(4-6), M.No. 31 Khasra No. 11/2(1-16), 12(4-16), 18(4-16), 19(4-16), 20(4-16), 21/1(2-10), M.No. 38 Khasra No. 1/1(2-10) and 1/8th share of agricultural land

comprising in M.No. 38 Khasra No.1/2(2-6), 2(4-16), 3(4-16), 4/1(2-3), 9/1(2-

13), M.No. 32 Khasra No. 21(4-16), 22/1(3-11), M.No. 32 Khasra No. 6(4-16), 15(4-16), 16(4-16), M.No. 24 Khasra No. 24(4-16), M.No. 23 Khasra No. 10(4-4), 11/2(4-14), 20/2(2-18), 21/1(0-10), M.No. 24 Khasra No. 15/1(1-15), 16/1(1-15), 25/1(1-10) M.No. 32 Khasra No. 5/1/1(0-1) in Village Samalkha, Tehsil Vasant Vihar, New Delhi to the extent of his share.

The application stands disposed of.

CS(OS) No. 956/2009

Documents, if any, be filed by the parties within two weeks from today. List before the Joint Registrar for admission/denial of documents on 11th January, 2010 and thereafter Joint Registrar shall list the matter before Court for framing of issues.

November 09, 2009                         SHIV NARAYAN DHINGRA, J.
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