Raman Kumar vs Neelam Nagpal & Others
2012 Latest Caselaw 5490 Del

       *      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                               Judgment delivered on : September 13, 2012

+      CS(OS) No. 1743/2010

       RAMAN KUMAR                                                    ..... Plaintiff
                                Through :   Mr. V.K.Sharma, Adv.

                   versus

       NEELAM NAGPAL & OTHERS                                    ..... Defendants
                        Through :           Mr. Alok Sharma, Mr. Ajit Kumar
                                            Singh, Adv. For D-1.
                                            Mr. Rajesh Anand, Adv. for D-2 to 4.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
                  JUDGMENT

V.K.JAIN, J. (ORAL)

IA 11389/2010(O.39 R.1 & 2 CPC)

The case of the plaintiff is that late Shri K.L.Nagpal, husband of defendant

No.1 and the father of defendants 2 to 4 had, vide Agreement to Sell dated

26.04.2004, agreed to sell B-105, Derawal Nagar, Delhi, to him for a consideration

of Rs.25 lakhs and the whole of the consideration had been paid to him in his

lifetime. In terms of the Agreement to Sell dated 7th August, 2004, the plaintiff

claims to have paid Rs.15 lakhs to late Shri K.L.Nagpal on 26th April, 2004,

Rs.3 lakhs on 07.08.2004, Rs.2 lakhs on 18 th March, 2005, another Rs.2 lakh on

20th March, 2005, Rs.2 lakhs on 21st March, 2007 and Rs.1 lakh on 19 th March,

2008.

This is also the case of the plaintiff that on payment of Rs.3 lakhs on

7th August, 2004 another agreement was executed by late Shri K.L.Nagpal in his

favour thereby agreeing that 75% of the rent being received from the above

property will be paid to the plaintiff. A General Power of Attorney is alleged to

have been executed in favour of the plaintiff on that date. A Will with respect to

the aforesaid property is also stated to have been executed by late Shri K.L.Nagpal

in favour of the plaintiff on 19th March, 2008. Shri K.L.Nagpal expired on 27th

March, 2008. The plaintiff is now seeking a declaration that he is the rightful

owner in possession of the aforesaid property. He has also sought a direction to the

defendants to execute the sale deed in his favour.

2. The suit has been contested by the defendants who have alleged that the

documents relied upon by the plaintiff are forged and fabricated documents. They

have denied the transaction set up in the plaint and have also denied the payments

alleged to have been made to late Shri K.L.Nagpal from time to time.

3. A perusal of the Agreement to Sell dated 26th April, 2004 filed by the

plaintiff would show that the following was the schedule of payment which late

Shri K.L.Nagpal is alleged to have agreed with the plaintiff:

                     Amount              Month
                    Rs.3 lakhs          August, 2004
                    Rs.2 lakhs          March, 2005
                    Rs.2 lakhs          March, 2007
                    Rs.1 lakh           March 2008

Thus, the seller, according to the plaintiff, agreed to accept the sale

consideration in instalments spread-over about four years. Ordinarily, in the

absence of special reasons, it is not usual for a person agreeing to sell an

immovable property to accept the balance sale consideration in instalments spread

over such a long duration and the sale consideration is agreed to be paid within a

few months after the agreement is concluded between the parties. There is no

explanation as to why late Shri K.L.Nagpal, agreed to accept the sale consideration

in instalments spread over almost four years.

4. Admittedly, no payment by way of a cheque or pay order was made by the

plaintiff to late Shri K.L.Nagpal. Ordinarily, in transactions for sale of immovable

properties at least part-payment is made by way of cheque/draft so as to have

unimpeachable documentary evidence of the transaction between the parties.

Again, there is no explanation for not making even a part payment by way of

cheque or demand draft.

5. During the course of arguments on last hearing, I specifically asked the

learned counsel for the plaintiff as to what was the source of payments alleged to

have been made by the plaintiff to late Shri K.L.Nagpal, from time to time. An

affidavit has been filed today in which it is alleged that the plaintiff had deposited

two chit funds scheme with late Shri K.L.Nagpal and had deposited Rs.3 lakhs with

him upto September, 2003 which he had to take from him. There is no averment to

this effect in the plaint or in the Agreement to Sell filed by the plaintiff. If the

plaintiff had to take Rs.3 lakhs from late Shri K.L.Nagpal, at the time of execution

of the Agreement to Sell in his favour in April, 2004, this amount would have been

adjusted, at the time of agreement itself, towards part-payment of the sale

consideration. Moreover, no document has been filed by the plaintiff to show that

he had to take Rs.3 lakhs from late Shri K.L.Nagpal by September, 2003.

It has been next alleged in the affidavit that the mother of the plaintiff sold

jewellery sometimes in March, for purchase of the suit property. The affidavit is

silent as to whom the jewellery was sold. There is no document evidencing sale of

jewellery worth Rs.6 lakhs by the mother of the plaintiff sometimes in

March-April, 2004. The affidavit does not disclose whether the payment for

purchase of the jewellery was received in cash or by way of a cheque/pay order.

The affidavit is silent as to where the money was kept if it was received in cash,

before it was paid to late Shri K.L.Nagpal.

It is next alleged in the affidavit that the plaintiff had received Rs.3 lakhs

from one Ved Prakash at the time of purchase of this property. The affidavit does

not disclose on which date the payment was allegedly received by him from Ved

Prakash. There is no documentary proof of any payment having been received.

The affidavit is silent as to whether this payment is received by cash or by way of

cheque.

It is also alleged in the affidavit that the plaintiff borrowed

Rs.2.5 - 3 lakhs from relatives and friends. Again, the affidavit does not disclose

the particulars of relatives and friends from whom he claims to have taken loan of

Rs.2.5 - 3 lakhs. No break up has been given as to how much amount was received

from whom and when. The affidavit is conspicuously silent as to whether the

aforesaid loan was taken in cash or by way of a cheque/draft.

It is alleged in the affidavit that the second payment of Rs.3 lakhs in

August-September, 2004 was made from the chit fund scheme being run by late

Shri K.L.Nagpal. A perusal of the receipt of Rs.3 lakhs filed by the plaintiff dated

7th August, 2004 would show that there is absolutely no indication in the aforesaid

document that this amount was received by way of adjustment of the amount which

was payable to the plaintiff in the chit fund account. This document purports to be

a receipt of payment of cash recovered from the plaintiff and not a receipt of

adjustment of any amount which was payable by the seller to the purchaser. Again,

there is no explanation from this apparent contradiction.

It is alleged in the affidavit that the balance amount of Rs.7 lakhs was paid

by the plaintiff from his earnings by selling namkeens etc. and he was paying

Rs.2 lakhs per annum to late Shri K.L.Nagpal. The plaintiff has not placed on

record his Income-Tax Returns to indicate what was his income during the relevant

years. He has not disclosed as to where the money was kept before it was paid by

him to late Shri K.L.Nagpal. As noted earlier, the payment is alleged to have been

made in instalments, of Rs.2 lakhs on 18th March, 2005, Rs.2 lakh on 20th March,

2005, Rs.2 lakh on 21st March, 2007 and Rs.1 lakh on 19th March, 2008. Thus,

Rs.4 lakhs are alleged to have been paid in the financial year 2004-2005. If the

plaintiff was not earning that much amount during the said financial year, he

obviously could not have paid that amount to late Shri K.L.Nagpal. The plaintiff

has not filed any bank statement or passbook to show that he had cash deposit in

his bank account to make payment to late Shri K.L.Nagpal. Though it is stated in

the affidavit that the plaintiff was paying Rs.2 lakh per annum to late Shri

K.L.Nagpal, no payment is alleged to have been made in the financial year 2005-

2006. In these circumstances, I find it difficult to accept even prima facie, that the

whole of the sale consideration was paid to late Shri K.L.Nagpal, in cash.

6. There are yet another aspects of the case which needs consideration in this

regard. Admittedly, documents of title of the suit property are not in possession of

the plaintiff. There is no explanation as to why the plaintiff did not insist on the

original documents of title being handed over to him, before paying the whole of

the sale consideration agreed between the parties. The learned counsel appearing

for the defendants maintains that the original documents are with the defendants

and he is carrying the same to the Court. He has also pointed that even photocopies

of the documents of title are not with the plaintiff. This is yet another indicator

which creates serious doubt on the truthfulness of the case set up in the plaint.

7. The case of the plaintiff is that the entire sale consideration was paid by

him on 19th March, 2008. The present suit has been filed on 30th August, 2010.

There is no explanation from the plaintiff as to why he waited for more than two

years to come to the Court seeking specific performance of the agreement alleged

to have been executed between him and late Shri K.L.Nagpal. If there is

unexplained and unreasonable delay in seeking specific performance of an

Agreement to Sell to an immovable property, that by itself may be a sufficient

ground to deny specific performance considering the fact that the relief of specific

performance is a discretionary relief and a person is not entitled to specific

performance of an Agreement as a matter of right even if he is not otherwise able

to prove execution of such an Agreement. The following view taken by Supreme

Court in Mrs. Saradamani Kandappan v. S. Rajalakshmi and Ors (2011) 2 SCC

18 is pertinent in this regard:-

"(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. Courts will also 'frown' upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser."

This is yet another reason, why prima facie I am of the view that the

Agreement to Sell set up in the plaint cannot be allowed to enforce through the

process of the Court.

9. For the reasons stated hereinabove, no prima facie case has been made out

by the plaintiff for grant of ad interim injunction restraining the defendants from

creating third party interest in the suit property. The application is, therefore,

dismissed. The observations made in this order being prima facie and tentative,

made with a view to decide this application, would not affect the decision of the

suit on merits.

IA 11716/2012(u/S.151 CPC for directions to take off w.s. of D-2 to D-4 from the record)

This is an application for taking the written statement of defendants 2 to 4

off the record on the ground that the written statement is neither signed nor verified

by the defendants and that is why the Division Bench vide its order dated 4th May,

2012 in FAO(OS) No. 8082/2012 was pleased to permit the plaintiff to move this

Court for taking the written statement off the record.

The learned counsel for the plaintiff states that the written statement of

defendants No.2 to 4 besides being defective was also not filed within the

prescribed period of ninety days and for this reason also, it is liable to be taken off

the record. A perusal of the previous orders would show that IA 4558/2011(O.VIII

R.10 CPC) was filed by the plaintiff for closing the rights of defendants 2 to 4 to

file the written statement on the ground that they had filed the written statement on

2nd July, 2011 and, therefore, had not been filed within the prescribed time. The

Court directed the written statement to be taken on record subject to payment of

Rs.5,000/- as costs. The order dated 19th December, 2011 was challenged by the

plaintiff by way of FAO(OS) No. 188/2012. The learned counsel for the

plaintiff/appellant stated before the Division Bench that since the written statement

was defective, he would like to move this Court for the written statement of

defendants 2 to 4 to be taken off record. The appeal was then dismissed as

withdrawn. As a result of these orders, the order dated 19 th December, 2011, to the

extent delay in filing the written statement by defendants 2 to 4 was condoned

became final and it is no more open to the plaintiff to contend that the written

statement, being delayed cannot be taken on record. The only plea which is open

to the plaintiff to contend that the written statement is otherwise defective being

unsigned and unverified. On a perusal of the written statement of defendants No.2

to 4, I find that it has been signed by the learned counsels and not by defendants

No. 2 to 4 and has not been verified at all. The defendants 2 to 4 are permitted to

file a properly and signed written statement within two weeks subject to payment

of Rs.10,000/- as costs.

This application stands disposed of in terms of this order.

CS(OS) 1743/2010

Replication be filed within two weeks.

The parties to appear before the Joint Registrar on 5th November, 2012 for

admission/denial of documents.

The matter be listed before Court on 28th February, 2013 for framing of

issues.

V.K.JAIN, J SEPTEMBER 13, 2012 'sn'