Delhi High Court
Kamal Kumar vs Amrita Singh & Others on 28 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.507/2001
% 28th February, 2011
KAMAL KUMAR ...... Appellant.
Through: Mr. Atul Batra, Advocate with Ms. Swapnil
Jain, Advocate.
VERSUS
AMRITA SINGH & OTHERS ...... Respondents.
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of the present Regular First Appeal
under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the
impugned judgment and decree dated 16.7.2001 whereby the suit of the
appellant/plaintiff for specific performance or in the alternative for a money
decree of Rs.1,55,000/- was dismissed.
2. The facts of the case are that the appellant/plaintiff claimed to
have entered into an agreement on 5.1.1984 with late Brig. Hari Pal Singh
RFA No.507/2001 Page 1 of 5
who was an allottee of flat No.122, S.F.S., DDA, East of Kailash, New Delhi for
purchase of the allotment rights from the said Brig. Hari Pal Singh for a total
sale consideration of Rs.1,05,000/-. It was the case of the appellant/plaintiff
that a sum of Rs.5,000/- was paid on 5.1.1984 and subsequently four
amounts were paid in cash of Rs.20,000/- on 16.1.1984, Rs.40,000/- on
16.2.1984, Rs.20,000/- on 12.3.1984 and Rs.20,000/- on 29.6.1984. Brig.
Hari Pal Singh expired on 17.9.1984 leaving behind the defendants/
respondents as his legal heirs. The appellant/plaintiff sent a legal notice
dated 17.3.1987 to the respondents for specific performance and on failure
of the defendants/respondents to sell the said flat, the subject suit came to
be filed. The respondents/defendants contested the suit, however, after the
case was transferred from the original side of this Court to the District Court,
the defendants failed to appear and were proceeded exparte. The plaintiff
led evidence by way of an affidavit. The trial Court has disbelieved the case
of the appellant/plaintiff and dismissed the suit.
3. From the pleadings of the parties, the trial Court framed the
following issues:-
"1. Whether late Brig. Hari Pal Singh entered into an agreement
dated 5th January, 1984 with the plaintiff in respect of flat no.12, Self
Financing Scheme, DDA, East of Kailash, New Delhi?
2. Whether a sum of Rs.1,05,000/- was paid by the plaintiff to
late Brig. Haripal Singh?
3. Whether plaintiff is entitled to decree of specific performance
or damages in the alternative?
RFA No.507/2001 Page 2 of 5
4. Relief."
4. In this regard the trial Court has given the following findings:-
(i) There is no certainty as to the name of the buyer because the
receipts which are relied upon by the appellant/plaintiff only refer to one
Kumar without any parentage or the address.
(ii) There was no reason why a Brig. would receive the amount in
cash, more so by means of receipts which are pieces of different note books
or pads.
(iii) The appellant/plaintiff failed to prove the handwriting by calling
the handwriting expert that the receipts contained the signatures of late
Brig. Hari Pal Singh.
(iv) The last receipt instead of being a full and final payment receipt
talks of receipt of a part payment of Rs.20,000/-.
(v) The handwriting expert talks of the disputed signature being of
Smt. Amrita Pal Singh and not of late Brig. Hari Pal Singh.
5. I may note that specific performance is a discretionary relief.
Even if there is proved that a contract was entered into between the parties,
the facts of the case must justify the grant of relief of specific performance.
Relief of specific performance is ordinarily not granted on the basis of
doubtful documentation, especially when they are mere slips of paper which
RFA No.507/2001 Page 3 of 5
do not even contain the complete names of the buyers. Payment in cash is
also frowned upon by the Courts, especially, when the transaction is not
between illiterate persons or in a village and is between literate persons.
6. During the course of arguments, I put it to the counsel for the
appellant that if really there was an Agreement to Sell between the
appellant/plaintiff and the late Brig. Hari Pal Singh on 5.1.1984, did the
appellant/plaintiff file an income tax return for the financial year 1983-84 of
having entered into an Agreement to Sell and having paid the amounts of
Rs.5,000/- on 5.1.1984, Rs.20,000/- on 16.1.1984, Rs.40,000/- on 16.2.1984
and Rs.20,000/- on 12.3.1984. The counsel for the appellant admitted that
no such income tax return was filed. If really the transaction between the
parties was a genuine transaction, the appellant/plaintiff would have filed an
income tax return not only showing the existence of the Agreement to Sell
but also having paid amounts to late Brig. Hari Pal Singh in the financial year
1983-84, and which admittedly was not done. Further, even for the financial
year 1984-85, no income tax return was filed to show the alleged payment of
Rs.20,000/- on 29.6.1984 and the fact that there was an Agreement to Sell
for which the said amount was paid. Quite clearly in such facts and
circumstances, the trial Court was justified in refusing to grant the relief of
specific performance. I may add that possibly the appellant may have
pleaded a case confined to return of the amounts paid by him to late Brig.
Hari Pal Singh, especially because the receipts which are stated to be in the
RFA No.507/2001 Page 4 of 5
handwriting of late Brig. Hari Pal Singh and which handwriting could well
have been proved from the government records inasmuch as Brig. Hari Pal
Singh was a member of the armed forces, however, no evidence was led on
behalf of the appellant/plaintiff i.e. no evidence was summoned from the
government records or admitted records to show the handwriting being of
Brig. Hari Pal Singh on the alleged receipts dated 5.1.1984, 16.1.1984,
16.2.1984, 12.3.1984 and 29.6.1984.
7. This Court is entitled to interfere with the findings and
conclusions of the trial Court only if the said findings are illegal and perverse.
I do not find any illegality or perversity in the findings and conclusions of the
trial Court. Merely because two views are possible, this Court is not entitled
to interfere with one plausible view which has been taken by the trial Court.
In view of the above, there is no merit in the appeal, which is
therefore dismissed, leaving the parties to bear their own costs. Interim
orders are vacated. Trial Court record be sent back.
FEBRUARY 28, 2011 VALMIKI J. MEHTA, J.
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