Mahavir Singh vs Joginder Singh
2012 Latest Caselaw 5810 Del

       *         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of Decision : 27.09.2012

+      CS(OS) No. 898/2012

       MAHAVIR SINGH                                ..... Plaintiff
                      Through:         Mr. Pushp Saini, Advocate
               versus

       JOGINDER SINGH                               ..... Defendant
                    Through:           Mr. Pradeep Kr. Arya, Mr. Ashish Sharma,
                                       Mr. Rahul Tomar and Mr. Narinder
                                       Chaudhary, Advocates

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

                          JUDGMENT

V.K.JAIN, J. (ORAL)

IA No.6188/2012 (under Order 39 Rule 1 and 2 CPC) The case of the plaintiff is that the defendant claimed to the owner of plot of land measuring 208 sq. yards situated on Khasra No.53/11/1, Phirni Road, Village Mundka, Delhi-110 041 and agreed to sell the same to him for a total sale consideration of Rs.56,50,000/-. A receipt-cum-agreement to sell is alleged to have been executed between the parties in this regard on 17.3.2011. It is also the case of the plaintiff that that a sum of Rs.26,50,000/- was paid to the defendant at the time of execution of the agreement and the balance sale consideration of Rs.30,00,000/- was agreed to be paid within three months from the date of the agreement. It is further alleged that the parties had also agreed that the defendant would deliver the vacant possession along with the original title documents at the time of execution of the sale deed and if he failed to do so, he would pay double of the earnest money

i.e. Rs.53 lac to the plaintiff. It has also been alleged in para 6 of the plaint that the plaintiff made payment of Rs.10 lac to the defendant on 7.5.2011 and on 10.9.2011, the plaintiff paid the balance sale consideration of Rs.20 lac. This payment is alleged to have been made partly in cash and partly by cheque, the cash component being Rs.15 lac and the cheque component being Rs.5 lac.

Since according to the plaintiff, the defendant has not honoured the agreement with him, a decree for specific performance has been sought. An alternative relief of recovery of Rs.83 lac has also been claimed along with interest.

2. The defendant has contested the suit and has denied having executed any agreement to sell the suit property to the plaintiff. The case of the defendant, as disclosed in the written statement is that he had taken a loan of Rs.5 lac from the plaintiff and in reply to the notice dated 5.3.2012, he sent a cheque of Rs.5 lac along with receipt dated 30.3.2012 and that cheque was encashed by the plaintiff. The defendant has denied having received any amount other than the aforesaid cheque of Rs.5 lac from the plaintiff.

It is also alleged by the defendant that he has already sold the suit property to one Mr. Subhash Kumar Bansal on 13.3.2012 vide documents such as agreement to sell and Power of Attorney etc. executed in his favour and has also transferred possession of the property to him.

3. The plaintiff has placed on record the original receipt-cum-agreement to sell alleged to have been executed between him and the defendant. The learned counsel for the plaintiff states that the original documents have been lost and report with the police in this regard was also lodged by the plaintiff. The receipts dated 7.5.2011 and 10.9.2011 for Rs.10 lac and Rs.15 lac receptively have also not been filed and the same are also alleged to have been lost by the plaintiff. The contention of the learned counsel for the defendant is that the original documents have not been produced for the reason that the same are forged documents and do not bear

the signatures of the defendant.

4. Though the plaintiff claimed to have paid Rs.26,50,000/- to the defendant in cash on 17.3.2011, the plaint does not disclose the source from which such a huge amount was paid by the plaintiff. No statement of any bank account has been filed by the plaintiff to show that he had that much amount in his bank on or around 17.3.2011. It is also not the case of the plaintiff that the plaintiff had borrowed the aforesaid amount for paying the same to the defendant. It would be pertinent to mention herein that giving or taking the loan exceeding Rs.20,000/- in cash is prohibited under Section 269 of the Income Tax Act and a person acting in contravention of the aforesaid statutory provision is liable to be prosecuted and punished. In any case, it is not the case in the plaint that the plaintiff had borrowed the amount, which he claims to have paid to the defendant on 17.3.2011.

The plaintiff also claims to have paid Rs.10 lac to the defendant on 7.5.2011. Again there is no explanation in the plaint as to what was the source form which this amount was paid. Again, no bank statement has been filed by the plaintiff to show that he had Rs.10 lac with him in a bank account or had withdrawn the said amount from any bank account. It is also not the case of the plaintiff in the plaint that the aforesaid sum of Rs.10 lac was borrowed by him from someone. The plaintiff further claims to have paid Rs.15 lac in cash. Again, the plaint does not disclose the source from which the cash payment of Rs.15 lac was made to the defendant. Again, the plaint does not disclose the source from which the cash payment of Rs.15 lac was made to the defendant. No bank statement has been filed to show that the plaintiff had Rs.15 lac in his bank account on or around 10.9.2011 and he had withdrawn the said amount from the bank account. There is no averment in the plaint that the aforesaid amount of Rs.15 lac was borrowed by the plaintiff from someone.

5. Keeping in view the fact that neither the original documents have been filed

nor has the plaintiff explained the source of the huge amounts, he claims to have paid in cash to the defendant, no prima facie, case is made out either with respect to the execution of the agreement for sale of the suit property or with respect to the payment of Rs.56,50,000/- except to the extent of Rs.5 lac which has been admitted by the defendant, whose case is that the aforesaid amount was taken by him as loan from the plaintiff.

6. The defendant has placed on record the notice dated 5.3.2012 which the plaintiff sent to him through C&C & Partners, who are the advocates of the plaintiff in this case. In para 2 of this notice it is alleged that the defendant had insisted on cancelling the deal, by offering to refund the entire amount of Rs.56,50,000/- along with additional amount of Rs.26,50,000/- and the plaintiff had agreed to the aforesaid proposal, provided the entire amount of Rs.83 lac was paid to him on or before 31.12.2011. It is further alleged in the notice that the defendant handed over cheque bearing number 077076 dated 30.10.2011 of Rs.5 lac in favour of Ms. Sunita Saini, wife of the plaintiff and promised to pay the balance amount of Rs.78 lac by 31.12.2011. The aforesaid cheque when presented to the banker was dishonoured. The plaintiff was called upon, vide this notice, to pay the amount of Rs.5 lac within 15 days from the receipt of the notice.

In reply to the notice dated 5.3.2012, sent through counsel, the defendant reiterated that he had not entered into any agreement to sell the suit property to the plaintiff. It was stated in the reply that the defendant had taken an interest-free loan of Rs.5 lac from the plaintiff through his wife and that dispute arose between the parties when the plaintiff demanded interest on that amount @ 3% per month. The defendant denied having received Rs.56,50,000/- from the plaintiff. As regards dishonour of cheque of Rs.5 lac, it was alleged that the defendant had sufficient funds in his bank account and the cheque was got dishonoured by the plaintiff in collusion with the bank employees. However, the bankers cheque of Rs.5 lac dated

29.3.2012 was annexed to the reply. Admittedly, that cheque was encashed by the plaintiff.

7. It is evident from the notice sent by the plaintiff to the defendant on 5.3.2012 that he had agreed to cancel the alleged transaction for sale of the suit property to him for consideration of Rs.56.5 lac and had agreed to accept Rs.83 lac from the defendant, in lieu of the suit property. It is also an admitted position that the bankers cheque of Rs.5 lac which the plaintiff received from the defendant, immediately after filing of the suit, has been encashed by the plaintiff. Section 16(c) of the Specific Relief Act provides that specific performance of a contract cannot be enforced in favour of a person unless he alleges and proves that he has always been ready and willing to perform the essential term of the contract which were to be performed by him. The Explanation, to the extent it is relevant, provides that for the purpose of Clause (c), the plaintiff must offer performance or readiness and willingness to perform the contract according to true construction. By agreeing to accept Rs.83 lac from the defendant and encashing the bankers cheque of Rs.5 lac, the plaintiff clearly indicated that he was no more ready and willing to go ahead with the transaction for sale of the suit property to him and had agreed to accept the total sum of Rs.83 lac from the defendant in lieu of the suit property allegedly agreed to be sold to him by the defendant.

Once, the plaintiff agreed to accept the damages in the form of an additional payment from the defendant, he cannot seek specific performance of the agreement set up by him for purchase of the suit property from the defendant. He can, therefore, claim only to recovery of the balance amount of Rs.78 lacs. Therefore, there is no ground made out for grant of an ad interim injunction during pendency of the suit, restraining the defendant from creating third party interest in the suit property. In any case, the plea taken by of the defendant is that he has already entered into a transaction with one Mr. Subhash Bansal on 13.3.2012, which was

more than two weeks before the present suit was filed.

For the reasons stated hereinabove, the application for grant of injunction is hereby dismissed. However, the observations made in this order being tentative and prima facie made only with a view to decide this application would not affect the decision of the suit on merits.

The application stands disposed of.

CS(OS) No.898/2012 The following issues are framed on the pleadings of the parties:-

1. Whether the defendant had received Rs.56,50,000/- from the plaintiff and agreed to sell the plot of land measuring 208 sq. yards situated on Khasra No.53/11/1, Phirni Road, Village Mundka, Delhi-110 041 to him for a consideration of Rs.56,50,000/-? OPD

2. Whether the defendant had agreed to pay Rs.83 lac to the plaintiff for cancelling the agreement to sell executed by him in favour of the defendant, as alleged in the plaint? OPD

3. Whether the plaintiff had always been ready and willing to perform his part of the contract? OPP

4. Whether the plaintiff is entitled to specific performance of the agreement dated 17.3.2011? OPP

5. Whether the plaintiff is entitled to an alternative relief of recovery of Rs.78 lac from the defendant? OPP

6. 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 23.11.2012 for admission/denial of documents

and fixing dates of cross examination of witnesses.

IA No.17806/2012 (under Order 39 Rule 2 A CPC) Reply be filed within two weeks. Rejoinder thereto can be filed two weeks thereafter.

List on 26.03.2013 for hearing.

V.K.JAIN, J SEPTEMBER 27, 2012/rd