Sanjay Bhardwaj vs Arvind Kumar Lalit Gulati
2011 Latest Caselaw 2541 Del

*                HIGH COURT OF DELHI : NEW DELHI

                 Judgment reserved on: April 07, 2011
                Judgment pronounced on: May 11, 2011
+
                          C.S. (OS) No. 501/2005

%     Sanjay Bhardwaj                           ...           Plaintiff
                         Through:    Mr. Manish Kaushik, Advocate.
                                  versus

      Arvind Kumar Lalit Gulati                    ...          Defendants
                         Through:     None.

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

1.       Whether the Reporters of local
         papers may be allowed to see the
         judgment?

2.       To be referred to Reporter or not?              No.

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

SUNIL GAUR, J.

1. A portion (50 sq. yards, as shown in red in the site plan) of

residential Property No.F-2/9, Krishna Nagar, Delhi, (hereinafter referred to

as the suit property) is the subject matter of this suit for specific

performance of the Agreement to Sell of 27th July, 2004. The plaintiff, who

by virtue of the aforesaid Agreement to Sell, is said to have entered into a

transaction for the purchase of 50 sq. yards of the suit property for a total

C.S. (OS) No. 501/2005 Page 1 consideration of Rs.27 lacs and plaintiff claims to have paid earnest money

of Rs.11 lacs to the defendant in respect of this transaction. Balance sale

consideration of Rs.16 lacs was payable to the defendant on or before 1st

March, 2005, upon execution of the necessary documents i.e. Sale Deed

etc. and in the event of default by the defendant, he would be liable to pay

double the amount of the part sale consideration received i.e. Rs.22 lacs.

As per the plaintiff, the defendant at the time of entering into the aforesaid

Agreement to Sell had handed over the certified copies of title documents

of the suit property to the plaintiff, upon receiving a sum of Rs.5,40,000/- in

cash and Rs.10000/- by cheque, purportedly given by the plaintiff to the

defendant on 7th April, 2004, and on the same day, a further sum of

Rs.5,50,000/- in cash against receipt is said to have been paid by the

plaintiff to the defendant. The execution of the aforesaid Agreement to

Sell, Special Power of Attorney, Will etc. is said to have been witnessed by

Shri Manoj Mudgal and Shri Rohit Kumar. Plaintiff avers that in the first

week of February, 2005, and thereafter on various dates, he had been

requesting the defendant to receive the balance sale consideration of

Rs.16 lacs and to execute the Sale Deed before the concerned Sub

Registrar, but the defendant had resorted to dilatory tactics.

2. It is also plaintiff's case that despite legal notice of 29th March, 2005,

no positive response was received from the defendant and when the

C.S. (OS) No. 501/2005 Page 2 plaintiff had apprehended that the defendant is proceeding to create third

party interest in the suit property, the instant suit was instituted. While

entertaining this suit, defendant was directed not to create any third party

interest in the suit property.

3. In the written statement, defendant has altogether denied the

plaintiff's case and has taken the stand that the plaintiff had introduced

himself to the defendant, as proprietor of M/s. Krishna Super Service

having the business of providing sim cards for mobile phones and in order

to provide sim cards to the defendant, got certain blank documents signed

from the defendant, as the defendant does not know how to write in

English, therefore, the defendant agreed to sign on the blank papers under

the bonafide belief that the plaintiff needs the said documents for providing

sim card. Defendant asserts that plaintiff had obtained two cheques of

Rs.1000/- towards payment of providing the sim cards and since the

defendant did not know how to write the name of the plaintiff's Company in

English, therefore he had signed the blank cheques in good faith and the

other details therein were lateron filled up by the plaintiff. However, as per

the defendant it was subsequently learnt that the plaintiff had committed

forgery by changing the amount in the aforesaid two cheques i.e. from

Rs.1000/- to Rs.41000/- and from Rs.1000/- to Rs.61000/- and had

withdrawn aforesaid amounts from the defendant's bank and in this regard

C.S. (OS) No. 501/2005 Page 3 a criminal complaint was filed by the defendant against the plaintiff on 23rd

March, 2005. Defendant denies having received any money purportedly in

respect of the sale transaction of a portion of the suit property from the

plaintiff. There is a reiteration of the plaintiff's version in the replication

filed to the written statement of the defendant.

4. Upon completion of pleadings, issues claimed by the parties to the

suit are as under:-

(i) Whether the parties have entered into an agreement dated 27th July, 2004, in respect of 50 square yards of property bearing No.F-2/9, Krishna Nagar, Delhi-110051?

(ii) Whether the plaintiff is entitled to specific performance of the agreement dated 27th July, 2004, in respect of 50 square yards of property bearing No.F-2/9, Krishna Nagar, Delhi- 110051?

(iii) Whether the plaintiff is ready and willing to perform his part of the agreement dated 27th July, 2004?

(iv) Relief.

5. Plaintiff's evidence comprises of his deposition as PW-1 and the

deposition of the Shri Rohit Kumar (PW-2), who claims to have witnessed

payment of earnest money, Agreement to Sell (Ex.PW.1/13, Mark 'A'),

Special Power of Attorney (Ex.PW.1/15, Mark 'B'), Will (Ex.PW.1/14, Mark

C.S. (OS) No. 501/2005 Page 4 'C') and Receipts (Ex.PW.1/1 and Ex.PW.1/1-A.). To assert that a cheque

of Rs.10,000/- was encashed on 29th April, 2004, plaintiff has got

examined his banker's Senior Assistant Shri Sanjiv Sharma as PW-3. The

last witness of the plaintiff is Shri Naveen Puri (PW-4), a stamp vendor,

who has deposed that stamp paper worth Rs.50/- were sold by him to the

defendant on 16th April, 2004. Solitary evidence of the defendant is his

own deposition as DW-1.

6. At the conclusion of the trial, plaintiff's counsel alone had come

forward to address this court and with the assistance of the learned

counsel for the plaintiff, the evidence on record has been analysed and,

thereafter, the findings returned on the issues framed, are as follows:-

Issue Nos.(i) & (ii)

7. These two issues are interlinked and are being taken up together.

To prove that in Agreement to Sell in respect of a portion of the suit

property was entered into between the parties on 27th July, 2004, the

plaintiff has himself deposed as PW-1 and has also got examined Shri

Rohit Kumar as PW-2, who is said to have witnessed the execution of this

Agreement to Sell (Ex.PW.1/13/ Mark 'A').

8. The legal position regarding enforcement of specific Performance of

Agreements like the one in question, as summed up by the Apex Court in

C.S. (OS) No. 501/2005 Page 5 Bal Krishna and Anr. Vs. Bhagwan Das (Dead) by Lrs and Ors. AIR

2008 SC 1786, is as under:-

"It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the Court and the Court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the Court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the Court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract."

9. Plaintiff relies upon a photo copy of the aforesaid Agreement to Sell

of 27th July, 2004, (Ex.PW.1/13, Mark 'A'). Initially, this document was a

marked document and was sought to be exhibited before the Joint

Registrar, who had not exhibited it, but it is in the plaintiff's deposition by

way of Affidavit, it has been exhibited as Ex.PW.1/13. Merely because an

exhibit is put on a document, it does not become admissible in evidence.

No secondary evidence has been led by the plaintiff in respect of the

aforesaid Agreement to Sell, marked as Ex.PW.1/13. Plaintiff in his

evidence is conspicuously silent about the original of the Agreement to Sell

marked Ex.PW.1/13. Even the plaintiff's witness Shri Rohit Kumar (PW-2)

has conveniently identified his signatures on the photo copy of the

C.S. (OS) No. 501/2005 Page 6 Agreement to Sell (Ex.PW.1/13) in question. When the plaintiff had

tendered himself for cross-examination, Agreement to Sell marked

Ex.PW.1/13 was de-exhibited, being a photo copy and the same was

marked 'A' and the accompanying Special Power of Attorney, Will etc.

were marked 'B' and 'C'. Question about the admissibility of the aforesaid

Agreement to Sell mark 'A' was raised at the time of cross-examination of

the plaintiff, but it was left open to be considered by this Court.

10. At the hearing, learned counsel for the plaintiff has rightly not placed

any reliance upon the photo copy of the Agreement to Sell mark 'A', but

instead thereof had chosen to rely upon two Receipts of 27th July, 2004,

Ex.PW.1/7 and Ex.PW.1/7A, to assert that these two Receipts contain an

Agreement in respect of the suit property.

11. Before I proceed to deal with the aforesaid two Receipts, I find no

hesitation in returning the finding on issue No: 1 against the plaintiff, while

holding that the Agreement to Sell of 27th July, 2004 (mark-A) is

inadmissible in evidence and hence is excluded from consideration.

12. Though, it is the case of the plaintiff and his witness Shri Rohit

Kumar (PW-2) that the Receipts Ex.PW.1/7 and Ex.PW.1/7A, were

executed in their presence, but the defendant has denied his signatures on

these two receipts, which are typed ones on plain paper, which bear a

C.S. (OS) No. 501/2005 Page 7 revenue stamp on it, but the signatures of the defendant are not on any

portion of the revenue stamp. Normally, when such Receipts are

executed, care is taken to ensure that the signatures of the person

concerned do come on the revenue stamp fixed on such like document.

Since the stand of the defendant is of denial, there is onerous burden upon

the plaintiff to prove the existence of the Receipts Ex.PW.1/7 and

Ex.PW.1/7A. Simply by getting these two Receipts notarized, the plaintiff

does not succeed in proving the existence of these two Receipts, more so,

when the plaintiff has not got examined the Notary Public, in whose

presence these two Receipts Ex.PW.1/7 and Ex.PW.1/7A were purportedly

executed. Right from the beginning, the stand of the defendant is that his

signatures were obtained on blank papers to obtain a sim card and in that

regard he had issued two cheques of Rs.1000/- each, which were inter-

polated and a criminal case in that regard is said to be pending.

Pertinently, the plaintiff in his deposition has admitted that he is facing

criminal proceedings in a cheating case in a FIR registered against him at

Police Station Pahar Ganj, Delhi.

13. In this background, the self-serving statement of the plaintiff and his

witness alone is not sufficient to establish the authenticity of Receipts

Ex.PW.1/7 and Ex.PW.1/7A, upon which no reliance can be placed, for the

reason that though it is plaintiff's case that the stamp papers were

C.S. (OS) No. 501/2005 Page 8 purchased by the defendant, but these two Receipts are not on the stamp

papers and in the absence of the deposition of the Notary Public, who

purportedly is a witness to these two Receipts, I hold that the plaintiff fails

to satisfactorily prove that an amount of Rs.5,40,000/- and Rs.5,50,000/-

was paid by the plaintiff to the defendant vide these two Receipts. As

regards the payment of Rs.10,000/- by cheque is concerned, all that which

stands proved from the deposition of plaintiff's banker Shri Sanjiv Sharma

(PW-3), is that Rs.10,000/- was debited from the account of the plaintiff on

29th April, 2004, which is not of any consequence, for the reason that it

does not stand established from the deposition of this witness that this

amount was paid to whom. Furthermore, this payment of Rs.10,000/- by

the plaintiff is not proved to be made to the defendant and is also of a

period prior to the Agreement in question and it remains un-explained, as

to why few months prior to the execution of the purported Agreement in

question, the said amount of Rs.10,000/- was paid by the plaintiff to the

defendant. Even the defendant's banker has not been got examined to

establish that the said amount of Rs.10,000/- was credited into the account

of the defendant in April, 2004. In any case, this is not of much

consequence. Once this payment of Rs.10,000/- is excluded from

consideration, plaintiff's case of having paid Rs.11 lacs to the defendant

falls to the ground. Consequently, it is held that the plaintiff fails to

C.S. (OS) No. 501/2005 Page 9 establish the existence of any Agreement to Sell and the so called

Agreement-cum-receipt Ex.PW.1/7 and Ex.PW.1/7A is not duly proved on

record. Accordingly, findings on these two issues are returned against the

plaintiff.

Issue No.(iii)

14. Consequent upon the aforesaid findings, not much remains to be

said. However, I find that by merely asserting that the plaintiff was ready

and willing to perform his part of Agreement is not sufficient. This has to

be proved by leading evidence. Plaintiff claims that he had arranged part of

the earnest money of Rs.5,40,000/- in cash from his own resources and

had taken some part of this amount on credit from one Bobby, having an

electrical shop. Plaintiff also claims to possess a PAN card, but he is not

placed on record its copy. Plaintiff being in possession of certified copies

of the title documents of the suit property, is inconsequential especially

when the Agreement to Sell, Receipts etc. are not duly proved on record.

Annual income of the plaintiff was allegedly about Rs.1.5 lacs to Rs.2 lacs

per annum, but copy of the Income Tax Return of the plaintiff for the year

2004-05, indicates that the annual income of the plaintiff was just little

more than Rs.1 lac and the said payments of Rs.5,40,000/- and

Rs.5,50,000/- are not reflected therein. Though plaintiff claims that he had

C.S. (OS) No. 501/2005 Page 10 three bank accounts in the year 2004, but he has not been able to

establish that, he was in position of making the payment of the balance

sale consideration of Rs.16 lacs, at any point of time during the period in

question. Rather the plaintiff had admitted in evidence that in none of his

bank accounts more than Rs.10 lacs was available in March, 2005.

15. In view of the aforesaid infirmities in plaintiff's evidence and

abovesaid categorical admission, the finding on this Issue has to be

returned against the plaintiff. Accordingly, it is held that the plaintiff was

not in a position to perform his part of the Agreement, i.e. to pay the

balance sale consideration of Rs.16 lacs at any point of time. This issue is

accordingly decided against the plaintiff.

Issue No.(iv)

16. In the light of the findings returned, as aforesaid, suit of the plaintiff

is dismissed, while leaving the parties to bear their own costs. This suit is

accordingly disposed of.

Sunil Gaur, J.

May 11, 2011
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C.S. (OS) No. 501/2005                                                  Page 11