Shankar Chauhan vs Sunil Kumar Goel
2011 Latest Caselaw 61 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                      RFA No.110/1997
 %                                                   6th January, 2011


SHANKAR CHAUHAN                                ...... Appellant
                                   Through:    Mr. Ranbir Yadav,
                                               Advocate.
                       VERSUS

SUNIL KUMAR GOEL
                                               ...... Respondent

                                   Through:    Mr. Ajay Kumar,
                                               Advocate with Ms.
                                               Saahiba Lamba,
                                               Advocate.

 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?   Yes

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

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of the first appeal under Section

96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment and decree dated 13.3.1997 whereby the suit for specific

performance of the respondent/plaintiff was decreed. The property in

question is the property bearing No.WZ-899, Pankha Road, New Delhi

and the agreement to sell is dated 10.3.1996 whereby the property

was agreed to be sold for a sum of Rs.2,55,000/- and of which a sum of

Rs.1,55,000/- was paid in cash on the execution of the agreement to

sell. This agreement to sell is in fact not in the format of an agreement

to sell but is in fact a receipt of a few lines. This receipt is in Hindi and

therefore it is not possible to reproduce the same. This receipt is not

an exhibited document before the trial Court and has only been

marked as „Mark A‟.

2. There is no dispute that this receipt was executed between

the parties. The issue which arose for determination was whether this

agreement as comprised in receipt dated 10.3.1996 was cancelled

between the parties and the appellant/defendant refunded the amount

to the respondent/plaintiff. The trial Court has held that the

respondent/plaintiff had not received back the amount which was paid

in cash on three occasions and on one occasion by means of a self-

cheque and hence the case of the appellant was disbelieved that the

agreement/receipt stood cancelled as the same was torn when the

transaction was cancelled by return of the moneys.

For disbelieving the appellant that the transaction was

cancelled the trial Court has relied upon the inconsistency in deposition

of the appellant and the witnesses of the appellant in that whereas the

appellant stated that the receipt dated 10.3.1996 was torn by himself,

the two witnesses, (one being the father of the appellant)

deposed that the receipt dated 10.3.1996 was torn by the

respondent/plaintiff.

3. Before this Court, learned counsel for the appellant has

strenuously urged that the very fact that the original

receipt/agreement to sell dated 10.3.1996 has not seen the light of the

day is itself enough to hold that the agreement as comprised in the

said agreement dated 10.3.1996 was brought to an end by consent of

the parties. Attention of this Court is invited to Section 114 of the

Indian Evidence Act, 1872 and as per the illustration (i) thereto, when a

document creating an obligation is in the hands of the obligor, the

obligation would stand discharged. On the basis of this provision, it is

argued that once the original document as per the stand of the

appellant had come in his possession on the agreement being

discharged, the same was destroyed and therefore no right can subsist

thereunder i.e. the argument is that the receipt/agreement is given at

the time of entering into the transaction to the person who gives the

amount viz the buyer who pays the moneys is the person in whose

possession the receipt/agreement has to be if the transaction is

subsisting, and since, the original receipt/agreement is not with the

buyer/respondent the same is because the document was given back

to the appellant/defendant showing that the transaction was by mutual

consent brought to an end/cancelled. It is also urged that it cannot be

seriously disputed that respondent/plaintiff received the amount in

cash because even under the original agreement/receipt dated

10.3.1996, the amount which was paid by the respondent/plaintiff to

the appellant/defendant was also in cash, meaning thereby that

payment of cash is not an unusual method of payment in this case.

4. The learned counsel for the respondent/plaintiff, on the

contrary, very strenuously urged that the inconsistency in the evidence

of the appellant/defendant himself and other witnesses with regard to

destruction of the agreement should be held fatal to the case of the

appellant/defendant. It is further urged that it has not been

conclusively proved that the self cheque was handed over to Sh. Anil

Kumar, the cousin brother of the respondent/plaintiff. It is also urged

that once the agreement in question was admitted to have been

executed and the amount has been admittedly received by the

appellant, the suit for specific performance has been rightly decreed

by the Court below.

5. Ordinarily, this Court would not have interfered with the

decision of the trial Court once two views are possible, however, this

Court is a Court both of fact and law. Sitting in first appeal therefore if

injustice is caused by the view as taken by the trial Court, this Court

can and does exercise its power of appeal in setting aside the

impugned judgment and decree by interfering with the conclusions of

facts and law as arrived at by the trial Court.

6. The most crucial aspect in this case is that no original

agreement/receipt dated 10.3.1996 has come on record. Admittedly,

only a photocopy of the agreement/receipt dated 10.3.1996 is on the

trial Court record. Even this document has not been exhibited but is

simply marked as "Mark A". Once a document is not exhibited and

simply marked, I fail to understand as to how on the basis of such a

document which is not exhibited, the suit for specific performance

could have been decreed considering that for specific performance to

be decreed it has to be proved as a sine qua non the existence and

continued validity of the agreement. An unproved document cannot

be the basis of a decree of a suit, more so one so important in nature

such as a suit for specific performance. Further, though Section 114 of

the Evidence Act may not in one sense be directly applicable, the

provision as quoted by the learned counsel for the appellant clearly

applies because after all it was very convenient for the

respondent/plaintiff to allege that the agreement was lost once the

same was destroyed after exchange of cash between the parties for

bringing the transaction to an end. If action of the respondent/plaintiff

in succeeding in the suit for specific performance is sustained, then the

same would mean that even if the original agreement is not filed and

proved on record inasmuch as the same is stated to be destroyed, yet

valuable rights in an immovable property can be lost on the basis of a

photocopy of document. This is not, in my humble opinion, the legal

position more so, when in the facts of the case, it is clear that the

exchange of consideration whether from the respondent/plaintiff/buyer

to the appellant/defendant under the agreement/receipt dated

10.3.1996 was in cash and the fact that subsequently when the

agreement was cancelled, on 30.3.1996, the return of the

consideration by the appellant/defendant to the

respondent/plaintiff/buyer was also in cash. Non-existence of the

original agreement to sell is therefore extremely crucial and vital in a

case like the present and which therefore disentitles the

respondent/plaintiff to claim the grant of a decree for specific

performance. The agreement was clearly destroyed at the time of

cancelling the transaction and if the transaction stood there was no

reason for the respondent/plaintiff/buyer not to have in his possession

the original receipt which was executed. Once an original agreement

came back into the hands of the appellant/defendant on the

transaction having been cancelled the same was destroyed and the

convenient story of alleged loss of the document by the

respondent/plaintiff does not inspire any confidence and is thus held as

not proved and in any case lacking credibility for the same to be

accepted by the Court.

7. Clearly therefore the agreement to sell had come to an end

and it is for that reason that the original has not seen the light of the

day and the onus to sustain an unsustainable claim on the basis of a

photocopy of the receipt/agreement (which has not been exhibited)

was really upon the respondent/plaintiff and which has wrongly been

accepted by the trial Court for decreeing the suit of the nature of

specific performance which in law in any case is a discretionary relief.

8. In view of the above, I find that the impugned judgment

and decree is clearly unsustainable because it grants specific

performance of such an agreement whose existence has still not seen

the light of the day. The relief of specific performance is discretionary

and in the facts of the case where cash is said to have been exchanged

both at the time of the original transaction and also at the time of the

subsequent accord and satisfaction, the present is not a fit case where

relief of specific performance ought to have been decreed. Uncertain

situations and uncertain existence of agreements are not really

envisaged in the grant of specific performance relating to valuable

immovable property.

9. In view of the above, the appeal is accepted and the

impugned judgment and decree dated 13.3.1997 is set aside and the

suit of the respondent/plaintiff for specific performance is dismissed,

leaving the parties to bear their own costs. Decree sheet be prepared

accordingly. Trial Court record be sent back.

JANUARY 06, 2011                                VALMIKI J. MEHTA,J
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