Narender Dabas vs Shakuntla Gautam
2012 Latest Caselaw 4867 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on: 21.08.2012

+      CS(OS) 1746/2010

       NARENDER DABAS                                    ..... Plaintiff
                      Through: Mr Vikramjit Banerjee, Adv.
               versus

       SHAKUNTLA GAUTAM                             ..... Defendant
                   Through: Mr Prakash Gautam, Adv.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                          JUDGMENT

V.K.JAIN, J. (ORAL)

IAs No. 11400/2010 (O. 39 R. 1&2 CPC) and 10798/2010 (O. 39 R. 4 CPC)

1. The case of the plaintiff is that the defendant who is the owner and in

possession of Janta Flat No. 24/6, First Floor, East Vinay Nagar, New Delhi agreed

to sell the aforesaid flat to him for a consideration of Rs 23 lakh and after mutual

negotiations, an Agreement to Sell dated 20.04.2010 was executed, whereby it was

agreed that the registration of the sale deed would take place on or before June 12,

2010. This is also the case of the plaintiff that he paid a sum of Rs 22,20,000/- to

the defendant on various dates, partly in cash and partly by way of cheques. It is

further alleged that on the request of the defendant, the parties entered into another

agreement dated 12.06.2010, whereby it was agreed that registration of sale deed

would be completed on or before 31.08.2010. By that time, the plaintiff had

already paid a sum of Rs 13,20,000/- to the defendant. The plaintiff thereafter

made further payments, thereby bringing the total amount paid to the defendant to

Rs 22,20,000/-. This is also the case of the plaintiff that despite agreement, the

defendant had not come forward to take the balance sale consideration amounting

to Rs 80,000/- and execute the sale deed in his favour. The plaintiff has

accordingly sought specific performance of the agreement dated 12.06.2010.

2. The case of the defendant, on the other hand, is that the sale consideration

for sale of the aforesaid flat was agreed at Rs 47,00,000/- and an advance receipt-

cum-agreement to sell and purchase executed accordingly on 20.04.2010. It is

alleged in the written statement that the plaintiff had told the defendant that he was

in the process of availing a loan facility from Oriental Bank of Commerce and,

therefore, wanted an agreement for a sum of Rs 23 lakh. The defendant alleges to

have complied with the aforesaid request by executing the agreement dated

12.06.2010 with a view to assist the plaintiff in securing the loan from the bank.

The defendant has admitted receipt of the payments amounting to Rs 22,20,000/-

from the plaintiff, but alleges that the plaintiff did not come forward to pay the

balance sale consideration.

3. It is an admitted case of both the parties that initially an agreement was

executed between them on 20.04.2010 and that agreement contained the terms and

conditions agreed between them in respect of the sale of flat in question. The

plaintiff has not placed on record any copy of the agreement dated 20.04.2010 and

his counsel, during the course of arguments, submitted that the aforesaid agreement

was torn off and even a photocopy of the same was not retained. However, there is

no averment to this effect in the plaint through the replication contains an averment

to this effect. The defendant, on the other hand, has placed on record a copy of the

agreement dated 20.04.2010 and as per the copy filed by the defendant, the sale

consideration was agreed at Rs 47,00,000/-. The case of the plaintiff is that the

second page of the agreement dated 20.04.2010 has been replaced in the photocopy

filed by the defendant and that is why the photocopy of the second page does not

bear the signatures of the parties. The question as to whether the copy of the

agreement dated 20.04.2010 is true and correct copy of the original agreement or

not is a matter which can be verified only after trial. At this stage, I notice two

particular aspects of the case. The first is that the plaint does not disclose any

reason as to why the plaintiff agreed for execution of a second agreement with

respect to the same transaction, without any change in the terms and conditions

agreed between the parties with respect to the sale consideration and the property

subject matter of the agreement and that too without any reference to the first

agreement. For extension of time for completing the transaction, no new

agreement was required to be executed and that could have been done simply by

making an endorsement on the agreement dated 20.04.2010. Another aspect of the

matter is that the plaintiff has not placed on record any copy of the agreement dated

20.04.2010. Prima facie, it is difficult for me to accept that the plaintiff had torn

off the original agreement dated 20.04.2010, without even retaining a photocopy of

the document with him. The plaintiff claims to be a Government employee and,

therefore, is a well educated person. In the ordinary course of human conduct, an

educated person like a Government employee would not destroy an important

document such as an agreement to sell, without completing the transaction and

without retaining even a photocopy of the same with him.

4. The agreement dated 12.06.2010 is an admitted document and neither party

alleging any tampering with any part of this document. Para 2 of the agreement

dated 12.06.2010 reads as under:-

"That the balance payment of Rs 14,30,000/- (Rupees FOURTEEN LAKH THIRTY THOUSAND ONLY) will be paid on 30.08.2010 by the second party to fir5st party before the Sub-Registrar/DDA at the time of registration sale/lease deed/conveyance deed on or before 30.08.2010 from the date of the agreement and the second party shall have right to get the sale deed registered in their name."

If we take an agreement dated 12.06.2010 on its face value, a sum of Rs

14,30,000/- remained due to the defendant from the plaintiff of execution of this

agreement. The learned counsel for the plaintiff states that the case of the plaintiff

is that subsequent to the agreement dated 12.06.2010, a sum of Rs 2 lakh was paid

by the plaintiff to the defendant. The other payments of Rs 8,70,000/- comprising

Rs 1,70,000/- by cash, Rs 2,00,000/- and Rs 5,00,000/- by bank transfer on

18.06.2000 are already recorded in the agreement dated 12.06.2010. It defies logic

how the payment made by way of bank transfer on 18.06.2010 could have been

recorded in the agreement executed on 12.06.2010. The only inference which I can

draw from this is that the agreement dated 12.06.2010 has been antedated.

5. From whatever angle I am examine, prima facie the conduct of the plaintiff

is highly suspicious and indicates that he has not come to the Court with clean

hands and has not shared full facts of the case with the Court.

6. The next question which comes up for consideration is as to what should be

the appropriate interim order to be passed in the facts and circumstances of the

case. During the course of the arguments, I had suggested to the learned counsel

for the plaintiff that if he deposits a sum of Rs 12,30,000/- which as per the

agreement dated 12.06.2010, remained due to the defendant on that date, an

injunction can be issued, restraining the defendant from creating third party interest

in the suit property. The learned counsel for the plaintiff, however, expresses

inability of the plaintiff to deposit the aforesaid amount.

7. Section 16(c) of the Specific Relief Act stipulates that in a suit seeking

specific performance of an agreement to sell, the plaintiff has to aver and later on

prove that he had always been ready and willing to perform his part of the contract.

If the amount of Rs 14,30,000/- remained due to the defendant from the plaintiff on

execution of the agreement dated 12.06.2010, there is no reason why the plaintiff

should not be in a position to deposit the aforesaid amount in the Court.

In view of the decision of Division Bench of this Court in Mohan Overseas

P. Ltd vs. Goyal Tin & General Industries 169 (2010) DLT 487 (DB), it would be

appropriate if the plaintiff is directed to deposit the balance sale consideration in

this Court by way of an FDR in the name of Registrar General of this Court

initially for a period of one year. Such a condition will also ensure that having

obtained an interim order, the plaintiff does not protract the trial of the case and the

final decision can be rendered at an early date.

8. For the reasons stated herein above, subject to the plaintiff furnishing a bank

guarantee or an FDR of Rs 12,30,000/- in the name of Registrar General of this

Court within two weeks from today, the parties shall maintain status quo with

respect to title and possession of the suit property, during pendency of the suit. The

observations made in this order being tentative and prima facie would not affect the

decision of the suit on merits.

The applications stand disposed of.

CS(OS) 1746/2010

The following issues are framed on the pleadings of the parties:-

i) Whether the sale consideration agreed between the parties for sale of flat No.

24/6, First Floor, East Vinay Nagar, New Delhi, by the defendant to the plaintiff

was agreed at Rs 47,00,000/-, as alleged in the written statement? OPD

ii) Whether the agreement dated 12.06.2010 was superseded by the subsequent

agreements dated 18.06.2010 and 01.07.2010? OPD

iii) Whether the plaintiff has always been ready and willing to perform is part of

the contract? OPP

iv) Whether the plaintiff is entitled to the relief claimed in the suit? OPP

v) Relief.

No other issue arises or is claimed.

The affidavit by way of evidence be filed within four weeks. The parties to

appear before the Joint Registrar on 16.10.2012 for fixing dates for cross-

examination of witnesses of the plaintiff.

V.K. JAIN, J

AUGUST 21, 2012 bg